IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 22.04.2010 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.O.P.No.31721 of 2007 and M.P.No.1 of 2007 1.M.Loganathan 2.L.Latha .. Petitioners/Accused 1 & 2 Vs V.R.Eswaramoorthy .. Respondent/Complainant Criminal Original Petition filed under section 482 of Criminal Procedure Code praying to call for the records and quash the complaint dated 09.08.2004 filed by the respondent and pending on the file of the learned Principal Sessions Court cum Human Rights Court, Erode in H.R.C.C.No.2 of 2004. For Petitioners : Mr.S.Jayakumar For Respondent : Mr.N.Manokaran ***** O R D E R The petitioners, who are facing prosecution in case pending in H.R.C.C.No.2 of 2004 on the file of the learned Principal Sessions Court cum Human Rights Court, Erode seek to quash proceedings as against them. 2.The respondent herein has preferred a complaint before such Court informing that the petitioners had borrowed a sum of Rs.1,25,000/- from the respondent/ complainant and issued a cheque dated 02.04.2004. The cheque, when presented for collection, was dishonoured for want of funds. The respondent/complainant has filed a complaint in C.C.No.401 of 2004 before the learned Judicial Magistrate II, Erode on 06.08.2004. When the respondent was waiting before the court hall on 06.08.2004, two police constables attached to District Crime Branch, Erode, who are arrayed as accused No.5 and 6 in the case before the lower Court, assaulted the respondent in the presence of the public. Though, the petitioners had not been present at the place of occurrence, the respondent/complainant had https://hcservices.ecourts.gov.in/hcservices/ alleged that the assault had taken place with the connivance of the petitioners. Hence, the police personnel as also these petitioners are said to have committed offences punishable under the Protection of Human Rights Act, 1993 (hereinafter referred to as Act). 3.The short point taken by the learned counsel for the petitioners is that the admitted position is that these petitioners are not public servants. A Division Bench of this Court in Santhosh Hospitals Private Limited v. State Human Rights Commission & others 2005 (2) MWN (Cr.) 46 (DB) has held that the Act would apply only in respect of violations of human rights committed by a public servant. As such, these petitioners, who are not public servants could not be prosecuted for the offence alleged against them under the Act. 4.The learned counsel for the respondent would state that the decision of the Division Bench came about in a challenge by way of writ proceedings to an order passed by the State Human Rights Commission, Tamil Nadu. The Act makes a distinction between Human Rights Commission and Human Rights Court. The power of both organs are not one and the same. The learned counsel would rely on Section 16 of the Act, which reads as follows: "16.Persons likely to be prejudicially affected to be heard.- If, at any stage of the inquiry, the Commission.- (a)considers it necessary to inquire into the conduct of any person; or (b)is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, it shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence: Provided that nothing in this section shall apply where the credit of a witness is being impeached." 5.The contention is that it was open to the Human Rights Commission, when it considered it so necessary to inquire into the conduct of any person. There is no limitation to the effect that only the conduct of the public servants could be inquired into. 6.Further, as fairly pointed out by the learned counsel for the respondent, another Division Bench of this court in Tamil Nadu Pazhankudi Makkal Sangam v. Government of Tamil Nadu 1997 [Vol.XLI] MLJ (Crl.)655 has specifically found as follows: "63.In the light of definition of 'offences', as contained in Sec.2(n) of the Code, the offences arising out of violation of 'Human Rights', as mentioned in Sec.30 of P.H.R.A., will, in the context of the definition of 'Human Rights', under Sec.2(1)(d) thereof, means that such act or omission on the part of the instrumentalities of the State, that is to say, public servants, punishable by law for the https://hcservices.ecourts.gov.in/hcservices/ time being in force, as relatable to life, liberty, equality and dignity of the individuals and nothing else." "66...... (c) Point No.3(a): It is only such violations of 'Human Rights' as embodied in International Covenants, treatise etc., either incorporated etc., either incorporated in the Consitution, as justiciable right or incorporated or transformed in municipal law, at the instance of the instrumentalities of the State that get attracted the jurisdiction of the High Court under Art.226 or the Supreme Court under Art.32 of the Constitution. The violation of such rights, if occurred at the instance of private individuals, there is no other go for the affected individual, except to seek his remedies under the ordinary law of the land." 7.On consideration of the rival submissions, this Court is of the opinion that the petition has to be allowed. The specific contention before the Division Bench [Santhosh Hospitals Private Limited v. State Human Rights Commission & others 2005 (2) MWN (Cr.) 46 (DB)] was that the Act dealt only with violation of human rights by public servants and not by others. On consideration of such contention, the Division Bench has held in paragraph 24 as follows: "24.Thus, a perusal of the provisions of the Act and the forms annexed to the Regulations clearly indicate that the Human Rights Act deals with violation of Human Rights by a public servant and not others. The petitioner is surely not a public servant, and hence the Human Rights Act will not apply to him at all." 8.Given the unambiguous decision of the Division Bench and the admitted position that these petitioners are not public servants, this Criminal Original Petition is allowed. The proceedings in H.R.C.C.No.2 of 2004 on the file of the learned Principal Sessions Court cum Human Rights Court, Erode shall stand quashed in so far these petitioners are concerned. Consequently, the connected miscellaneous petition is closed. gm Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Principal Sessions Court cum Human Rights Court, Erode. + 1 cc to M/s. N. Manokaran, Advocate SR No.26783 + 1 cc to M/s. S. Jayakumar, Advocate SR No.26683 MG(CO) SR/7.5.2010 Crl.O.P.No.31721 of 2007 and M.P.No.1 of 2007 https://hcservices.ecourts.gov.in/hcservices/