2 suo motu Writ Petition 3335 of 2009

Order passed on 21ST February 2009.

Hon’ble Acting Chief Justice

V.Dhanapalan.J.
&
K.Chandru.J.

1) After the incidents that had  taken place in the High Court campus on 19th February 2009 various facts have come to the notice of the administrative side of the court. It is found that the court buildings have been damaged, including the office and court halls of the High court. Court halls of Small Causes Court, Addl.City Civil court building, Family Courts, Mediation and Conciliation Centre, Lawyers chambers and as huge damage has been caused, it is not only requires money for repairing, but in the present position, some of the courts may not be in a position to function without extensive repairs being made. It is reported that the damage has been caused by the police and persons have seen the police entering into the court charging on those who were inside the court halls.

2. There are some misleading reports in the newspapers, which has been brought to the notice of the learned Government Pleader. Till date, it has not been reported as to how the police entered the court campus even for arresting an accused without the permission of the court. From the information we could get, till ate it has not been identified as to who are the police officers or the police personnel responsible for the police excess within the court campus nor any step seems to have been taken till now, though it is informed that the government is looking into the matter.

3. As total position was taken into consideration to find out whether the Court could be reopened from Monday, i.e. 23rd February 2009, and it was found that because of damage to various court halls and buildings, of which reference given above, the Court cannot function, we took up the matter urgently in a special sitting in the official residence of one of us (Acting Chief Justice) and to decide as to what step can be taken. During the proceeding has appeared along with her juniors. She wanted to present a petition for initiation of contempt proceeding, but we have asked her to file the petition in the Registry of the Court. She addressed on facts which we have noticed.

4.After taking into consideration the damages as found in the court premises and court halls and the injury caused to various persons on 19th February 2009, as noticed on the earlier date, we are of the view that the action may call for initiation of suo moto criminal contempt proceeding, but it can be decided after receipt of report calling for names of persons, who were instrumental in the matter.

5.The Commissioner of Police, Chennai and the Jt.Commissioner of Police (North Central) who is stated to be present on the said date (now under order of transfer as DIG Railways) as informed by the Government Pleader) they will file a report and state as to under who authority of the High court they entered the High court premises to arrest certain accused from the High Court campus and at whose instance the order was issued for lathi charge by the police and swift action force. They will give specific names with designation of the officers and constables at whose instance such action was taken. On receipt of such report the Court will decide whether suo motu criminal contempt shall be initiated against the concerned persons.

The State Government will also file its reply as to why they be not directed to pay of compensation for personal injury and damages to property and all expenses for immediately repairing of the court premises, court halls, furniture and lawyers chambers, including the chamber of the Government Counsel.

5. To ensure that the evidence with regard to damages to court buildings, court halls, lawyer’s chambers, etc. is not destroyed because of the starting of the Court, we direct the Registry of the High court to take videography of the damaged premises. If so necessary, three videography teams may be constituted, headed b y the Registrar (Vigilance) Registrar (Administration) and Registrar (Management) At the time of videography of the law chambers, it will be desirable that the President and Secretary of the respective Advocates Associations and one of the law officer of the State is present.

6. List the case on 2nd March 2009 as ordered earlier.

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Order passed on  March 3, 2009

HON’BLE ACTING CHIEF JUSTICE

MR. JUSTICE V. DHANAPALAN

MR. JUSTICE K. CHANDRU

Pursuant to the Court’s orders dated 19th February, 2009 and 21st February, 2009, the case has been listed today. While it is informed that the State Government has referred and entrusted the matter to the CBI, after perusal of the records, we are of the view that the Court’s order dated 19th February, 2009 has not been complied with by the respondents. This would be evident from the following facts:

1. On 19th February, 2009, this Court noticed all the relevant facts, information received from one or other sources and counter claim made by the police and the lawyers. The details regarding the incidents with time have been shown in the said order and in the said order, it has also been mentioned that the Court passed the order at about 6.40pm. The said order was dictated in the presence of the Chief Secretary, Home Secretary, Director General of Police, Commissioner of Police, Government Pleader and certain lawyers. It was ordered to forward a copy of the said order to the Secretary to Government, Department of Personnel and Training, Government of India, New Delhi, who, in its turn, was directed to forward the same to the Director, CBI investigation. This was so ordered as that was the first information given to the Police Officials, viz., Director General of Police, Commissioner of Police, Chennai, apart from other Police Officials, who were present in the Court, which was to be registered as a case for the purpose of investigation by CBI. But from the records, it appears that no case has been registered in terms with the first information received by the Respondents vide Court’s order dated 19th February, 2009. It appears that a separate case in Crime No. 15 of 2009 under Sections 147,353,332,450,436 & 307, IPC r/w Section 3[1] of the Tamilnadu Properties [Prevention of Damages and Loss] Act, 1992, made on the basis of a complaint made by a Sub-Inspector of Police, was forwarded by the State Government and a notification issued in this regard on 23rd February, 2009, on the basis of which the Union of India, from its Department of Personnel and Training issued a notification contained in letter No.228/10/2009 AVD.II dated 28th February, 2009.

2. We have also noticed that in the said Crime No.15 of 2009, no reference has been made with regard to the Court’s order dated 19th February, 2009 and the facts shown therein, including the time given, which also differ from the information received by the Respondents pursuant to the Court’s order dated 19th February, 2009.

3. Counter Affidavits have been filed by the First Respondent/Chief Secretary to the Government of Tamilnadu and Fourth Respondent/Commissioner of Police, Chennai. Learned Government Pleader submits that it is a procedural matter, for which a case was to be registered, but such stand can be taken only if the FIR is lodged in terms with the facts recorded by the Court on its Order dated 19th February, 2009.

4. By order dated 19.02.2009, we directed the Respondents to adhere to their undertaking given before this Court with clear stipulation that on failure, it will be treated to be a violation of the Court’s order. Therefore, prima facie, we are of the view that the Respondents/authorities of the State have violated the Court’s order dated 19th February, 2009, by not registering a case pursuant to the Court’s order dated 19th February, 2009 and asking the CBI to investigate the matter as per Court’s order dated 19th February, 2009. We, accordingly, grant time to the Respondents to file an affidavit in this regard by the next date. It will also be open to the Respondents/State Authorities and Union of India to pass appropriate orders on the basis of the first information received by them at 6.40pm pursuant to the Court’s order dated 19.02.2009. Any other information given subsequently at or about 19.20hours [7.20pm] cannot be treated to be a case registered pursuant to the Court’s order. It will also be open to the CBI to register a case on the basis of the Court’s order dated 19th February, 2009.

5. In public interest, it would be desirable to implead the Madras Bar Association, Madras High Court Advocates Association, Women Lawyers Association, Law Association and Tamilnadu Advocates Association as profroma respondents, as all of them have represented before the Supreme Court.

So far as the question as to who ordered to enter the High Court premises is concerned, we are not making any observation as the matter os pending consideration before the Supreme Court.

Let the case be listed under the same caption on 11th March, 2009 at 2.30p.m.

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Order passed on  March 18, 2009

S.J.MUKHOPADHAYA,J.
V.DHANAPALAN,J.
AND
K.CHANDRU,J.

1.In regard to the incidents taken place in the HIgh Court campus on 19th Feb., 2009, a writ petition, W.P.(PIL) NO. 3335/09 was suo motu taken up on 19th Feb., 2009 and detailed orders were passed therein at about 6.40 p.m. Subsequently, certain interim orders were passedon 21st Feb., 2009 followed by order dated 2nd March, 2009, relevant of which will be discussed hereunder.

2. It appears that in the meantime a number of writ petitions in W.P.(Civil) No.94/09 and others were filed before the Supreme Court. Having noticed the submission made by learned counsel, Supreme Court appointed a committee to enquire into the incidents, which happened on 19th Feb., 2009. It was orderd that the terms of reference of the Committee shall be finally decided by the then Acting Chief Justice of the Madras High Corut in consultation with the Advocate General and President of other associations as named therein. It was ordered that the committee, initially, shall consider whether any immediate action against police officers, who allegedly allowed armed policemen to enter into the High Court premises without permission of the then Acting Chief Justice and was requested to submit an interim report. An interim report was submitted, which was referred by the Supreme Court to this Court to decide the action to be taken, if any. With regard to suggestion to appoint a Judicial Commission, this Court was also directed to decide the same.

In view of the report and order of the Hon’ble Supreme Court, the present Bench has been constituted to hear the matter. In the meantime, a number of writ petitions and criminal orginal petition have beenfiled, which have also been listed before this Bench.

3. Learned Counsel appearing on behalf of different associations of the High Court submitted that the Court’s order has not been complied with including the undertaking given before the Supreme Court and the committee having not answered the question whether any immediate action to be taken against police officers, who allegedly allowed armed policemen to enter the premises of the High Court without the permission of the then Acting Chief Justice, requested to pass interim order against the police officials.

So far as the committee’s report is concerned, counsel submitted that many factual aspects are incorrect, but even if the finding with regard to police officials are taken into consideration, police excess is evident from the same and that no permission was obtained from the then Acting Chief Justice to enter the premises of the High Court.

4. In this connection, we may only refer to certain orders, which were passed by this Court and the Hon’ble Supreme Court earlier.

This Court, vide order dated 21st Feb., 2009, taking into consideration the damage to the court premises and court halls, observed that action may call for initiation of suo motu criminal contempt proceedings, but the same can be decided after receipt of report calling for the names of persons, who were instrumental in the matter. The Commissioner of POoilce, Chennai and the then Joint Commissioner of Police, North Chennai, who were present on the said date, were directed to file reprt and state as to under whose authority of the High Court they entered the High Court premises to arrest certain accused from the High Court campus and at whose instance order was issued for latti charge by the poloice and swift action force. They were asked to provide the specific names with designation of the officers and constables at whose instance such action was taken. It was observed that on receipt of such report, the Court will decide whether suo motu criminal contempt shall be initiated against the concerned persons.

Subsequently, when Supreme Court up W.P.(Civil) NO.94/09 on 26th Feb., 2009, having noticed the facts, ordered for enquiry by a committee comprising a retried Hon’ble Supreme Court judge, on behalf of the State of Tamil Nadu it was submitted that “whatsoever suggested by the High Court or by the Commissioner appointed for that purpose will be complied with fully by the State Government at the earliest”.

5. Inspite of such order passed by this Court and undertaking given before the Supreme Court, no affidavit was filed by the State Government till date. Learned Advocate General appearing on behalf of the State initially asked for time to submit the report and at 2.30 p.m., he submitted an affidavit and a report filed by the Commissioner of Police, Chennai. In the said report, while details of the order passed by one or other Court and the report of the Committee has been referred, at para-16, the following statement has been made:-

“16. I am informed that around 4.00 pm, the stone pelting continued and a few two wheelers and cars were damaged and many police personnel sustained injuries on their head and other vital parts. Head Constable 276 Krishnakumar sustained a grievous stone-hit injury on his testicles, became unconscious and fell down on the ground. The situation was turning grave and the life and security of the general public and the police personnel was in imminent threat. To protect the life and property of the police personnel, the public and others, the Additoinal Commissioner of Police (law & Order) who was the seniormost officer present in the spot, consulted other senior officers in the spot, viz., the Joint Commissioner of Police (North), the Joint Commissioner of Police (Central), the Deputy Commissioner of Police, Flower Bazaar, the Deputy Commissioner of Police, Pulianthope and the Deputy Commissioner of Police, Kilpauk and took the collective decision to declare the assembly as unlawful and to disperse it. Accordingly he directed the Deputy Commissioner of Police, Flower Bazaar who in turn took measures to disperse the unlawful assembly using minimum force.”

6. Learned Advocate General appearing on behalf of the State referred to the Supreme Court order dated 26th Feb., 2009 and submitted that learned counsel appearing on behalf of various associations requested that all those officers, who are responsible for the incident should be placed under Suspension, but no such relief was granted by the Supreme Court. In this connection, the reply of the counsel appearing on behalf of the association is that, to find out whether any immediate action to be taken against police officers, who allegedly allowed armed policemen to enter the premises of the High Court without the permission of the then Acting Chief Justice, was referred to the Committee for submitted report. The committee’s report being silent on the issue, the matter has been referred back to this Court by Supreme Court vide order dated 6th March, 2009.

7. We have heard the learned counsel for the parties and noticed the rival contentions for the purpose of deciding whether any interim order is called for at this stage. It will be evident that this Court, vide order dated 21st Feb., 2009, while observed that action may call for initiation of suo motu criminal contempt proceeding, directed the Commissioner of Police, Chennai and Joint Commissioner of Police (North Chennai) to file a report and state as to under whose authority of the High Court they entered the High Court premises to arrest certain accused from the High Court campus and at whose instance order was issued for latti charge by the police and swift action force. They were asked to give specific names with designation of the officers and constables at whose instance such action was taken. On receipt of such report this Court was to decide whether suo motu criminal contempt was to be initiated against the concerned person. It further appears that before the Supreme Court, on behalf of the State of Tamil Nadu, it was undertaken that whatsoever suggestion by the High Court or by the Commission appointed for that purpose would be complied with fully by the State Government at the earliest. It is only today the names of persons have been shown in the affidavit filed by the Commissioner, but it has not been made clear whether any immediate action has been taken against the police officers, who allegedly allowed the armed policemen to enter the premises of the High Court without permission of the then Acting Chief justice.

We may mention that the Supreme Court, while passing order on 26th Feb., 2009, observed “It is an unfortunate incidence. If armed policemen wanted to control any situation like riot, they should have obtained the permission of the Acting Chief Justice and he be kept informed of the situation before entering into the premises of the High Court” Inspite of such observation, nothing brought on record that any permission was sought for from the then Acting Chief Justice or from this Court by the police officials to enter into the premises to allow the entry of latti police into the premises of the High Court and to latti charge.

8. As we find that a prima facie case made out to initiate disciplinary proceeding against the concerned officers, to ensure the State Government to pass appropriate orders, we are of the view that i) Mr.A.K.Viswanathan, IPS, Addl. Commissioner of Police (Law & Order) and ii) Mr.M.Ramasubramani, IPS, formerly Joint Commissioner of Police (North) (Jurisdiction JCP), should be placed under suspension, as they were the persons who were in the helm of the affairs and under whose direct supervision the operation was carried on.

It is needless to say that the lawyers have no right to strike, i.e., to abstain from appearing in the Court in cases in which they hold vakalat for the parties. It is below the dignity, honour and status of the members of the noble profession of law to organize and participate in strike, though it is open to the lawyers to adopt some other mode to protest without interrupting or disrupting the Court proceeding or adversely affecting the interest of the litigants. We, therefore, ask the associations and the Tamil Nadu Bar Council to recall their strike forthwith and resume work.

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