IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 WP(C).No. 26355 of 2004(K) ------------------------------------- PETITIONER(S): ----------------------- ASHOK YADAV, I.P.S., COMMANDANT, MALABAR SPECIAL POLICE, MALAPPURAM. BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE BY ADV. SRI.P.K.MANOJKUMAR RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, TRIVANDRUM. 2. KERALA STATE HUMAN RIGHTS COMMISSION, REPRESENTED BY ITS SECRETARY, TRIVANDRUM. 3. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, TRIVANDRUM. R1 & R3 BY GOVT. PLEADER SRI.M.A.ASIF R2 BY ADV. SRI.SEBASTIAN DAVIS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/05/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.26355/2004 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOTICE NO. HRMP 2000/03 DTD. 13.10.03 ISSUED BY THE REGISTRAR, KERALA STATE HUMAN RIGHTS COMMISSION THIRUVANANTHAPURAM TO THE TO THE SUPERINTENDENT OF POLICE, RURAL, THIRUVANANTHAPURAM. P2:- COPY OF THE NEWS REPORT DTD. 6.10.03 PUBLISHED BY THE MALAYALA MANORAMA MALAYALA DAILY.. P3:- COPY OF THE REPORT DTD. 5.10.03 PETITIONER SENT A DETAILED REPORT TO THE COMMISSION, P4:- COPY OF THE LETTER NO.TR/110/CAMP/2003/T DTD. 28.10.03 ISSUED BY THE SUPERINTENDENT OF POLICE TRIVANDRUM TO THE HONOURABLE STATE HUMAN RIGHTS COMMISSION, TRIVANDRUM. P5:- COPY OF THE SUSPENSION ORDER G.O.(RT) NO.8794/2003/GAD DTD. 11.12.03 ISSUED BY THE GOVERNMENT. P6:- COPY OF THE REPORT OF THE HUMAN RIGHTS COMMISSION H.R.M.P. NO.2800 OF 2003 DTD. 21.11.03 ISSUED BY THE KERALA STATE HUMAN RIGHTS COMMISSION, THIRUVANANTHAPURAM. P7:- COPY OF THE NEWSPAPER REPORT THAT APPEARD IN THE NEW INDIAN EXPRESS ENGLISH DAILY IN ITS ISSUE DTD. 19.12.03. P8:- COPY OF THE REPORT OF THE HUMAN RIGHTS PROTECTION COUNCIL TO THE HONOURABLE CHAIRMAN, HUMAN RIGHTS COMMISSION, TRIVANDRUM. TRUE COPY P.S. TO JUDGE tss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 26355 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 28th day of May, 2010. J U D G M E N T The petitioner challenges Ext. P6 order of the Kerala State Human Rights Commission, Thiruvananthapuram, wherein the petitioner who is a police officer, has been found to have caused excesses in a police operation in the infamous Killy incident. The petitioner challenges that order primarily on the ground that before finding the petitioner guilty of police excesses, the petitioner was not afforded an opportunity of being heard. According to the petitioner, under Section 16 of the Protection of Human Rights Act, 1993, a reasonable opportunity of being heard is a must. The petitioner therefore seeks the following reliefs: “A) To issue a writ of certiorari or other appropriate writ, order or direction to quash Ext. P6 report; B) To issue a writ of mandamus or other appropriate writ, order or direction to declare the report Ext. P6 submitted by the Kerala State Human Rights Commission to the Government as illegal and void; C) To issue a writ of mandamus or other appropriate writ, order or direction to produce the entire records leading up to Ext. P6 before this Hon'ble Court.” 2. No counter affidavit has been filed in this case. 3. Section 16 of the Protection of Human Rights Act, 1993 reads thus: “16. Persons likely to be prejudicially affected to be heard:- If, at any stage of the inquiry, the Commission- (a) consider 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 enquiry. W.P.C. No. 26355/2004. -: 2 :- 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.” The petitioner has categorically averred in the writ petition that the petitioner has not been given an opportunity of being heard before passing Ext. P6 as mandated by Section 16. That specific averment has not been controverted by the respondents by any pleading. That being so, Ext. P6 is vitiated by non-compliance of the provisions of Section 16 of the Act. Therefore, Ext. P 6 to the extent it affects the petitioner is quashed. The Kerala Human Rights Commission is directed to re-consider the matter after issuing a notice to the petitioner and affording him a reasonable opportunity of being heard in the enquiry to be conducted afresh. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/