IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27..08..2010 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU W.P.Nos.21604 to 21607 of 2000 Rajesh Das, I.P.S., S/o.Pranabandhu Das, superintendent of Police, T.N.U.S.R.B. Chennai. ... Petitioner in all the writ petitions -Versus- Tamil Nadu State Human Rights Commission, Rep. by its Secretary, Chennai 600 014. ... 1st Respondent in all the Writ Petitions Mr.Ariasamy ... 2nd respondent in W.P.No.21604 of 2000 A.Laxmanan ... 2nd respondent in W.P.No.21605 of 2000 Tmt.A.Francina ... 2nd respondent in W.P.No.21606 of 2000 Tmt.Lakshmi ... 2nd respondent in W.P.No.21607 of 2000 The Govrenment of Tamil Nadu, Rep. By its Secretary to Government, Home Department, Fort St. George, Chennai 600 009. [3rd respondent impleaded as per order of this Court dated 22.04.2002 in W.P.M.P.No.16257 to 16260 of 2002 respectively] ... 3rd respondent in all the Writ Petitions Prayer in W.P.No.21604 of 2000:- Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari calling for the records relating to S.H.R.C. Case No.850 of 2000/RRS on the file of the 1st respondent and quash the order dated 08.12.2000 passed therein. Prayer in W.P.No.21605 of 2000:- Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari calling for the records relating to S.H.R.C. Case No.851 of 2000/RRS on the file of the 1st respondent and quash the order dated 08.12.2000 passed therein. https://hcservices.ecourts.gov.in/hcservices/ Prayer in W.P.No.21606 of 2000:- Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari calling for the records relating to S.H.R.C. Case No.852 of 2000/RRS on the file of the 1st respondent and quash the order dated 08.12.2000 passed therein. Prayer in W.P.No.21607 of 2000:- Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari calling for the records relating to S.H.R.C. Case No.853 of 2000/RRS on the file of the 1st respondent and quash the order dated 08.12.2000 passed therein. For petitioner in all the writ petitions : Mr.Vijaya Narayanan, Senior Counsel for Mr.A.Stalin For respondent (s) in all the writ petitions : Mr.R.Srinivas for R1 : Mr.V.Selvaraj for R2 : Mr.S.Sivashanmugam, Govt. Advocate for R3 COMMON ORDER "Whether the Human Rights Commissions constituted under the Protection of Human Rights Act, 1993 have power of adjudication in the sense of passing an order which can be enforced propri vigore?" These writ petitions are all about this important question. 2. The occurrence which has given rise to these litigations happened on 15.03.2000 in the Police Battalion Ground at Trichy. During the relevant time, the petitioner in these writ petitions, an I.P.S. Officer, was working as Commandant, TSP Battalion No.1, Trichy. His wife, Dr.Beela Rajesh, an I.A.S. Officer, during the relevant period, was working as Sub Collector at Chengalpattu. On date of occurrence, his wife along with two other women police constables was waiting near the Shuttlecock Court in the Battalion Ground to play. At that time, two police constable by name Prabhu and Anbarasan attached to Armed Reserve came near them and eve teased the women. The Police Constables by name Nagarathinam, Krishnamurthy, Shankar and Dinesh, who intervened, were manhandled and attacked by Prabhu and Anbarasan. On a complaint preferred in respect of the same, a criminal case was registered against Prabhu and Anbarasan in Cr.No.55 of 2000 at K.K.Nagar Police Station for offences under Section 341, 323 and 509 of IPC. 3. The respondent Ariasamy is the father of Anbarasan and the respondents A.Lakshmanan, Tmt.A.Francina and Tmt.Lakshmi are the father, mother and wife respectively of Prabhu. According https://hcservices.ecourts.gov.in/hcservices/ to them, the petitioner's wife and other police personnel were actually playing shuttlecock. At that time, Prabhu came to the spot and on seeing Havildar - Mr.Krishnamuthy [the 4th respondent in the complaints], he made fun of him. The wife of the petitioner mistook it and questioned the same. On hearing the call from his wife, the petitioner rushed to the spot along with the other police personnel. It is alleged that Prabhu was attacked by the petitioner and his subordinates. His father, mother and wife came to the place of occurrence and questioned. They were also attacked. Then, Anbarasan came and questioned. He was also attacked. Anbarasan and Prabhu were kicked by the petitioner and forced to make somersaults. For sometime, they were illegally detained by the petitioner. They were latter on arrested by registering a false case against them. They underwent treatment for the injuries sustained in the occurrence for few days. On the complaint of Mrs.Lakshmi, a case was registered against the assailants on the file of K.K.Nagar Police Station, Trichy. 4. In respect of the above occurrence, alleging human rights violations, there were four complaints made by M.Ariasamy, A.Lakshmanan, Tmt.Francina and Tmt.Lakshmi and the same were entertained by the Tamil Nadu State Human Rights Commission in SHRC Nos.850 to 853 of 2000/RSS respectively on the file of the 1st respondent. The petitioner was the 1st respondent in all the four cases and the other police personnel by name Kandasami [Sub Inspector of Police], Manickam [Sub Inspector of Police] and Krishnamurthy [Havildar] were respondents 2 to 4. The petitioner and the other respondents in the SHRC cases denied the allegations made against them. 5. On service of notice, the petitioner herein and three other respondents in SHRC cases appeared before the Commission and filed their counters denying all these allegations. Before the Commission, besides the victims, few other witnesses were examined on the side of the complainants and some documents were exhibited. They were allowed to be cross examined by the petitioner herein and the other respondents in the SHRC cases. On side of the petitioner, he was examined besides few more witnesses. Some documents were also exhibited on his side. Having considered all the above, the Commission by its proceedings dated 08.12.2000 made the following recommendations:- (1) Prabhu and Anbarasan be paid a compensation of Rs.2,00,000/- (Rupees Two lakhs) each by the Government. (2) Lakshmanan and Tmt.Lakshmi be paid a compensation of Rs.50,000/- (Rupees Fifty Thousand) each by the Government. (3) The compensation amount so paid by the Government has to be recovered from the First Respondent. https://hcservices.ecourts.gov.in/hcservices/ (4) The Commission recommends that a circular be issued to the police officers and any indulgence by them of hitting the subordinates and directing them to do somersaults (front rolls) will be against law and should be strictly avoided. (5) The above recommendations are required to be complied within a month. Challenging the above recommendations the petitioner has come up with these writ petitions raising several grounds assailing the correctness of the conclusions arrived at by the State Human Rights Commission and its recommendations. 6. At the outset, this court expressed its doubt regarding the maintainability of these writ petitions at this stage since what is under challenge is only a recommendation by the State Human Rights Commission. Therefore, this Court invited the counsel on either side to address on the question of maintainability, first. Accordingly, on the said question, the learned counsel on either side putforth their arguments at length. 7. Mr.Vijaya Narayanan, the learned senior counsel, appearing for the petitioner would submit that the writ petitions are maintainable; whereas Mr.V.Selvaraj, learned counsel appearing for the 2nd respondent in the writ petitions would submit that the writ petitions are not maintainable at this stage. 8. In order to resolve this issue, let us begin the journey with the Scheme of "The Protection of Human Rights Act, 1993". Chapter III of the The Protection of Human Rights Act, 1993 deals with the Functions and Powers of the Commission and Chapter IV deals with the procedure. 9. Having taken note of the Scheme of the Act, the Hon'ble Supreme Court, in N.C.Dhoundial v. Union of India and ohters, (2004) 2 SCC 579 while dealing with the proceedings of the National Human Rights Commission, in para 14 has held as follows:- "14. .......... The Commission which is an "unique expert body" is, no doubt, entrusted with a very important function of protecting the human rights, but, it is needless to point out that the Commission has no unlimited jurisdiction nor does it exercise plenary powers in derogation of the statutory limitations. The Commission, which is the creature of statute, is bound by its provisions. Its duties and functions are defined and circumscribed by the Act. Of course, as any other statutory functionary, it undoubtedly has incidental or ancillary powers to effectively exercise its jurisdiction in respect of the powers confided to it but the Commission should necessarily act https://hcservices.ecourts.gov.in/hcservices/ within the parameters prescribed by the Act creating it and the confines of jurisdiction vested in it by the Act. The Commission is one of the fora which can redress the grievances arising out of the violations of human rights. Even if it is not in a position to take up the enquiry and to afford redressal on account of certain statutory fetters or handicaps, the aggrieved persons are not without other remedies. The assumption underlying the observation in the concluding passage extracted above proceeds on an incorrect premise that the person wronged by violation of human rights would be left without remedy if the Commission does not take up the matter." 10. Keeping in mind the above observations of the Hon'ble Supreme Court, let me now have a glimpse of the relevant provisions of the Act. Section 12 of the Protection of Human Rights Act, 1993 read as follows:- "12. Functions of the Commission.- The Commission shall perform all or any of the following functions, namely:- (a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, into complaint of- (i) violation of human rights or abetment thereof; or (ii) negligence in the prevention of such violation, by a public servant; (b) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court; (c) visit, notwithstanding anything contained in any other law for the time being in force , any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection for the study of the living conditions of the inmates thereof and make recommendations thereon to the Government; (d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation; https://hcservices.ecourts.gov.in/hcservices/ (e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures; (f) study treaties and other international instruments on human rights and make recommendations for their effective implementation; (g) undertake and promote research in the field of human rights; (h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means; (i) encourage the efforts of non- governmental organisations and institutions working in the field of human rights; (j) such other functions as it may consider necessary for the promotion of human rights." 11. A cursory reading of Section 12 of The Protection of Human Rights Act, 1993 would make it abundantly clear that in respect of violation of human rights or abetment thereof, the commission shall inquire either suo motu or on a petition to be presented by a victim or any person on his behalf or on a direction or order of any Court. 12. Section 13 of the Act speaks of the powers relating to inquiries such as the power to summon and enforce the attendance of witnesses, examination of witnesses on oath, receipt of evidence on affidavits , etc. The next relevant provision, Section 17 deals with the procedure for inquiry into the complaints. Section 18 of the Act is more relevant which reads as follows:- "18. Steps during and after inquiry.- The Commission may take any of the following steps during or upon the completion of an inquiry held under this Act, namely- (a) where the inquiry discloses, the commission of violation of human rights or abetment thereof by a public servant, it may recommend it may recommend to the concerned Government or authority - https://hcservices.ecourts.gov.in/hcservices/ (i) to make payment of compensation or damages to the complainant or to the victim or the members of his family as the Commission may consider necessary; (ii) to initiate proceedings for prosecution or such other suitable action as the Commission may deem fit against the concerned person or persons; (iii) to take such further action as it may think fit; (b) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary; (c) recommend to the concerned Government or authority for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary; (d) subject to the provisions of clause (e) provide a copy of the inquiry report to the petitioner or his representative; (e) the Commission shall send a copy of its inquiry report together with its recommendations to the concerned Government or authority and the concerned Government or authority shall, within a period of one month, or such further time as the Commission may allow, forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission; (f) the Commission shall publish its inquiry report together with the comments of the concerned Government or authority, if any, and the action taken or proposed to be taken by the concerned Government or authority on the recommendations of the Commission." 13. From a close reading of the above provisions, it is crystal clear that while inquiring into any complaint of human rights violation, the commission shall exercise the power of a civil court to the limited extent of securing the presence of witnesses, examination of witnesses, etc. After completing the inquiry, as envisaged in Section 18 of the Act, the commission shall make only a recommendation to the Government such as to make payment of compensation or damages to the complainant or to the victim or member of his family as the commission may consider necessary, in the event the inquiry discloses violation of human https://hcservices.ecourts.gov.in/hcservices/ rights or negligence in the prevention of such violation by a public servant. 14. A deep understanding of Section 18 of the Act together with Sections 12, 13 and 17 of the Act would go to show that the commission has got no power either to order for payment of compensation or to issue any other order. The power, in simple terms, is only to make appropriate recommendation to the Government. The said recommendation cannot be equated to an executable order at all. The commission is neither a judicial authority nor a quasi judicial authority to adjudicate upon the disputed facts. This is evident from the statement of objects and reasons of the Act, wherein while describing the salient features of the Act, it has been stated by the Parliament as follows:- " (3) The commission will be a fact-finding body with powers to conduct inquiry into the complaints of violation of human rights;" 15. Thus, there can be no doubt that the commission is only a fact-finding body and not an adjudicatory authority. If, it is an adjudicatory authority, there can be no doubt that on adjudicating upon the issues involved, the commission can pass an order which will be binding on the parties to the issues. But, as per the Scheme of the Act, the commission is not an adjudicatory authority at all. Therefore, the recommendations made by the commission under Section 18 of the Act cannot be termed as a verdict on resolving the disputed facts and thus the same is not binding on the parties before the commission. 16. In this regard, I may refer to the judgement of the constitution Bench of the Hon'ble Supreme Court in State of Karnataka v. Union of India and another, (1977) 4 SCC 608, wherein the provisions of the Commissions of Inquiry Act, 1952 [hereafter referred to the CI Act] came up for consideration. It is needless to point out that many of the provisions of the said Act, which I am going to refer to herein below, are in pari materia to the provisions of The Protection of Human Rights Act, 1993 [herein after referred to as "the HR Act"] It is needless to point out that a commission to be appointed under the CI Act also has got similar power to hold inquiry and submit a report to the Government. After having a complete survey of the provisions of the CI Act, speaking for majority, Hon'ble Chief Justice M.H.Beg in para 33 of the aforesaid judgement has held as follows:- "33. .... The Act, however, contains no provisions for giving any effect to the findings of the Commission or for enforcing any order which could be made by the Commission against any person as a result of an inquiry. In fact, the only orders a Commission under the Act is empowered to make against anybody are those relating to adduction of evidence, whether oral or documentary, and those which may be required to protect the Commission https://hcservices.ecourts.gov.in/hcservices/ against "acts calculated to bring the Commission or any member thereof into disrepute". The proceedings of a Commission could only result in a Report which is to be laid before the Legislature concerned under the provisions of Section 3(4) of the Act. Hence, the obvious intention behind the Act is to enable the machinery of democratic government to function more efficiently and effectively. ........ " 17. In the said judgement , the Hon'ble Supreme Court has further referred to yet another judgement in Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123 wherein the Hon'ble Supreme Court had earlier held as follows:- " The Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore. A clear distinction must, on the authorities, be drawn between a decision, which, by itself, has no force and no penal effect and a decision which becomes enforceable immediately or which may become enforceable by some action being taken." 18. The Judgement of the Constitution Bench of the Hon'ble Supreme Court in Shri Ram Krishna Dalmia v. Shri Justice S.R.Tendolkar, AIR 1958 SC 538 has also been referred to with approval. In Shri Ram Krishna Dalmia's case cited supra, the Hon'ble Supreme Court has held as follows:- " .......As has been stated by the High Court itself in the latter part of its judgement, the only power that the Commission has is to inquire and make a report and embody therein its recommendations. The Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore. A clear distinction must, on the authorities, be drawn between a decision which, by itself, has no force and no penal effect and a decision which becomes enforceable immediately or which may become enforceable by some action being taken. Therefore, as the Commission we are concerned with is merely to investigate and record its findings and recommendations without having any power to enforce them, the inquiry or report cannot be looked upon as a judicial inquiry in the sense of its being an exercise of judicial function properly so called and consequently the question of usurpation by Parliament or the Government of the powers of the judicial organs of the Union of India cannot arise on the facts of this case " https://hcservices.ecourts.gov.in/hcservices/ 19. In State of Karnataka v. Union of India and another , (1977) 4 SCC 608, in the concurring judgement, His Lordship Justice Y.V.Chandrachud [as he then was] has approved the view taken by Nagpur Bench of the Bombay High Court in M.V.Rajwade v. Dr.S.M.Hassan, AIR 1954 Nag 71 wherein it was held that Section 4 of the Act merely clothes the Commission with certain powers of a Civil Court but does not confer on it the status of a Court and that the Commission is only fictionally a Civil court for the limited purposes enumerated in Section 5(4) . The Court observed that there is no accuser, no accused and no specific charges for trial before the Commission, nor is the Government, under the law, required to pronounce one way or the other on the findings of the Commission. 20. In the said judgement in para 186 His Lordship Y.V.Chandrachud.J., has concluded as follows:- "On receipt of the Commission's report, the Central Government may or may not take any action, depending upon the nature of the findings recorded by the Commission. If it decides to take any action, the validity thereof may have to be tested in the light of the constitutional provisions. But until that stage arrives, it is difficult to hold that the Central Government is exercising any control or supervisory jurisdiction over the executive functions of the State Government. As observed by this court in Shri Ram Krishna Dalmia v. Shri Justice S.R.Tendolkar, AIR 1958 SC 538, "the Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore." 21. Following the above judgements, a Full Bench of this court in P.P.M.Thangaiah Nadar Firm v. The Government of Tamil Nadu, 2006 (5) CTC 97 has held as follows:- "40. It cannot be disputed that the report of a Commission of Inquiry is not binding on the State which constitutes such Commission of Inquiry nor its findings are binding on those against whom any recommendation is made. The conclusions of a Commission of Inquiry are not admissible in a Court of law, in criminal case or even in civil case. Such conclusions are merely advisory in nature." 22. In T.T.Antony v. State of Kerala, 2001 (6) SCC 181 a Division Bench of the Hon'ble Supreme Court after having followed Shri Ram Krishna Dalmia's case cited earlier has held in para 33 as follows:- https://hcservices.ecourts.gov.in/hcservices/ "33. It is thus seen that the report and findings of the Commission of Inquiry are meant for information of the Government. Acceptance of the report of the Commission by the Government would only suggest that being bound by the rule of law and having duty to act fairly, it has endorsed to act upon it. ....." 23. From the above judgements, it is ipso facto clear that the Commission's report under the Commissions of Inquiry Act is only in the nature of a recommendation and it is not an order on any adjudication. Therefore, the same is not binding on the parties who are likely to be affected by such recommendation. Nor is it binding on the Government as well. 24. Now the question is whether the above law laid down by the Hon'ble Supreme Court with reference to the Commissions of Inquiry Act [in short CI Act] could be imported to the HR Act. As I have already stated, one of the objects of the CI Act is "To appoint Commissions of Inquiry vesting with certain powers as a fact-finding body and to submit a report to the Government to enable the Government to take necessary action on the same". Similarly, as I have already extracted, "The State Human Rights Commission will be a fact-finding body with powers to conduct inquiry on the complaints of violation of human rights" [vide the objects and reasons of the Act]. Apart from this, most of the provisions in respect of the Functions, Powers and Procedure of the National Human Rights Commission / State Human Rights Commission are in pari materia to the provisions relating to the Functions, Powers and Procedure of the Commissions under the CI Act. 25. For instance, Section 13 of the HR Act deals with the powers relating to inquiries. It says that the