Martin Menacherry vs State Of Kerala
2021 Latest Caselaw 17612 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                               &
           THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
  FRIDAY, THE 27TH DAY OF AUGUST 2021 / 5TH BHADRA, 1943
                    WP(C) NO. 17327 OF 2021
PETITIONER:

           MARTIN MENACHERRY,
           AGED 40 YEARS
           S/O. VARGHESE, KOMOTH BUILDING,
           THOPPUMPADY P.O. KOCHI.
           BY ADV M.SHYJU

RESPONDENTS:

    1      STATE OF KERALA,
           REPRESENTED BY THE CHIEF SECRETARY,
           SECRETARIAT, THIRUVANANTHAPURAM 695 001.
    2      THE SECRETARY,
           DEPARTMENT OF HOME, SECRETARIAT,
           THIRUVANANTHAPURAM 695 001.
    3      STATE POLICE CHIEF OF KERALA,
           STATE POLICE HEADQUARTERS, VAZHUTHACAUD P.O.
           THIRUVANANTHAPURAM 695 010.
    4      COMMISSIONER OF POLICE,
           ERNAKULAM, OFFICE OF THE POLICE COMMISSIONER,
           ERNAKULAM 682 011.
    5      DEPUTY COMMISSIONER OF POLICE,
           ERNAKULAM, OFFICE OF THE DEPUTY COMMISSIONER OF
           POLICE, ERNAKULAM 682 011.
           SRI. K.P.HARISH, SR GP FOR RESPONDENTS
     THIS WRIT PETITION      (CIVIL) HAVING COME UP        FOR
ADMISSION ON 27.08.2021,     THE COURT ON THE SAME         DAY
DELIVERED THE FOLLOWING:
 W.P(C).17327/2021
                                        2


                                JUDGMENT

Dated this the 27th day of August, 2021

S. Manikumar, CJ.

Instant Public Interest Litigation is filed for the following reliefs:

"(i) issue a writ of mandamus or any other appropriate writ, direction or order, directing respondents 1 to 3 to take measures to prevent the practice of charging cases for the purpose of mobilizing money by fixing quota system and targets for achieving high number of cases under the Kerala Epidemic Diseases Act, 2021;

(ii)To declare that Section 7A of the Kerala Epidemic Diseases Act, 2021 as null and void as it is violative of Articles 14 and 21 of the Constitution of India."

2. Short facts leading to filing of the writ petition are that the

petitioner is aggrieved by the action on the part of the respondents in

collecting more and more amount of fine from the public, which facilitates

massive penalization and collection of fine amount in large scale, under

the guise of implementation of the Kerala Epidemic Diseases Act, 2021. It

is contended that the police officers in the State of Kerala are using the

unfettered delegated power under the Kerala Epidemic Diseases Act,

2021, to oppress and exploit the people of Kerala. The superior officers of

police are conveying oral directions for charging cases under the Act and

thereby, to mobilize maximum money for the Government. W.P(C).17327/2021

3. Petitioner has further contended that it is a mockery on the judicial

system that penalization of the people for false charges implemented as a

policy to mobilize money for the Government. It is also contended that the

system, which the respondents are following, pose a serious threat to rule

of law and is violative of the fundamental rights of the citizens.

4. According to the petitioner, during the second wave of COVID-19

period from May 8 to August 4, police have registered 17.75 lakh cases

under the Kerala Epidemic Diseases Act, 2021 and mobilized a fine

amount of nearly Rs.150 crores. It is also contended that each police

station is given a quota by the superior officers for charging petty cases.

Innocent people are victimized. The action of the respondents is violative

of Articles 14 and 21 of the Constitution of India. Furthermore, Section 8 of

the Kerala Epidemic Diseases Act, 2021 (Section 7A of the Kerala

Epidemic Diseases Ordinance, 2021), is ultra vires of the Constitution.

The action of the respondents herein, in implementing the Kerala Epidemic

Diseases Act, 2021 is unreasonable, arbitrary and unfair.

5. Based on the above, petitioner has contended that the policy of

the Government, conferring unlimited and unfettered delegated power is

against the democratic spirit of the Constitution. He has also contended

that unreasonableness, arbitrariness, unfair actions or policies, contrary to

the letter, intent and philosophy of law expanding beyond the permissible

limit of delegated power is violative of the Constitutional provisions. W.P(C).17327/2021

6. Relying on the newspaper reports, petitioner has contended that

superior officers are imposing quota for charging more cases under the

Act, 2021 and innocent people are prey to the action on the part of the

respondents. Therefore, it is highly necessary to direct the respondents to

immediately put an end to the system of charging more petty cases

against the public. According to him, the instruction of massive

penalisation would lead to deteriorating the concept of rule of law.

7. Heard Mr. M.Shyju, learned counsel for the petitioner, and Mr.

K.P. Harish, learned Senior Government Pleader.

8. Before adverting to the submissions, let us consider the relevant

statutory provisions. In exercise of the powers conferred by clause (1) of

Article 213 of the Constitution of India, the Governor of Kerala has

promulgated the Kerala Epidemic Diseases Ordinance, 2021, on 9.2.2021,

to unify and consolidate the laws relating to the regulation and prevention

of epidemic diseases and for matters connected therewith or incidental

thereto. Later the Act was come into force namely, the Kerala Epidemic

Diseases Act, 2021, on and with effect from the date of promulgation of

Ordinance at various stages untill the Ordinance, 2021, promulgated on

9.2.2021.

9. In order to understand the challenge made by the petitioner,

Section 5 to 8 are extracted hereunder:

5. Penalty.--Any person/institution/company who is bound by W.P(C).17327/2021

regulations or order contravenes or disobey any such regulation or order made under this Act or obstruct any officer empowered under this Act shall on conviction be punishable with imprisonment for a term which may extend to two years or with fine which may extend to ten thousand rupees or with both.

6. Abetment of offences.--Whoever, abets any offence under this Act and if the act abetted is committed in consequence of the abetment, shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to ten thousand rupees or with both.

7. Offence under this Act to be cognizable and bailable.-- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) all offences under this Act shall be cognizable and bailable.

8. Composition of offences.-- (1) Offences punishable under this Act may be compounded on the application of the accused either before the institution of prosecution or with permission of the Court concerned after the institution of prosecution, by such officers and for such amount, as the Government may by notification published in the Official Gazette, specify in this behalf.

(2) Where an offence has been compounded, no further proceedings shall be continued against the offender in respect of the offence compounded and the offender if in custody and the vehicles if any seized shall be released."

10. The Ordinances were promulgated by the State Government

and later the Act, 2021, in order to ensure that the larger interest of the W.P(C).17327/2021

public is protected on account of the emergent situation due to the Covid-

19 pandemic. The petitioner has challenged Section 8 of the Act, 2021

(Section 7A of the Kerala Epidemic Diseases Ordinance, 2021) in regard

to the Composition of Offences. The penal provisions are incorporated

under the Ordinance and later in the Act, 2021 to ensure that the citizens

at large refrain from violating the protocol prescribed by the State

Government to tide over Covid-19 pandemic. We are unable to

understand how the petitioner or for that matter, a group of people is

affected by the penal provisions, because the penal provisions will come

into play only if the provisions of the Act is violated. The petitioner could

not also point out any specific instances, where any member of the Public

is charged with the offences contained in the Act, 2021, without anyone

committing offences constituted under the Act.

11. When the intention of the Government is noble and to protect

the larger community, it can never be said that the deterrent provisions to

prevail upon the citizens is in any manner unconstitutional or interfering

with any of the rights enjoyed by the citizens under part-III of the

Constitution of India. This we say because the fundamental rights

conferred under Part-III of the Constitution are not absolute in nature and

the State is at liberty to impose any reasonable restrictions in the interest

of larger community and the nation as such.

12. The present situation of Covid -19 pandemic is one such W.P(C).17327/2021

situation, which enables the State Government to bring any suitable and

appropriate legislation so as to contain the disease Covid-19 and thereby

save the lives of citizens and it was in the said background, the Act, 2021

was brought into effect and therefore, it cannot be said that Section 8

dealing with offences under the Act, 2021 is in any manner

unconstitutional or illegal so as to sustain the contentions raised by the

petitioner in the writ petition. Therefore, we are also of the considered

opinion that there is no arbitrariness, illegality or other unfairness in

incorporating the penal provisions in the Act, 2021 and provisions for

Composition of offences constituted under Act, 2021.

13. In support of the reliefs sought for, Mr. M.Shyju, learned counsel

for the petitioner, has relied on newspaper reports. On more than one

occasion, the Hon'ble Supreme Court held that writ petitions filed purely

based on newspaper reports are not maintainable. Reference can be

made to a few decisions:

(i) In Laxmi Raj Shetty and Another v. State of Tamil Nadu [(1988) 3 SCC 319], at paragraphs 25 and 26, the Hon'ble Supreme Court held as under:

"25. ............ We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspapers is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspapers report cannot be treated as proved of the W.P(C).17327/2021

facts reported therein.

26. It is now well settled that a statement of fact contained in a newspapers is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported. The accused should have therefore produced the persons in whose presence the seizure of the stolen money from Appellant 2's house at Mangalore was effected or examined the press correspondents in proof of the truth of the contents of the news item. The question as to the admissibility of newspaper reports has been dealt with by this Court in Samant N. Balakrishna v. George Femandez and Ors. [(1969) 3 SCR 603]. There the question arose whether Shri George Femandez, the successful candidate returned to Parliament from the Bombay South Parliamentary Constituency had delivered a speech at Shivaji Park attributed to him as reported in the Maratha, a widely circulated Marathi newspaper in Bombay, and it was said:

"A newspaper report without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible."

We need not burden the judgment with many citations. There is nothing on record to substantiate the facts as reported in the newspapers showing recovery of the stolen amount from the residence of Appellant 2 at Mangalore. We have therefore no reason to discard the testimony of PW 50 and the seizure witnesses which go to establish that the amount in question was actually recovered at Madras on the 29th and the 30th as alleged."

(ii) In S.A. Khan v. Ch. Bhajan Lal and Another reported in (1993) 3 SCC 151: AIR 1993 SC 1348, at paragraph 22, the Hon'ble Supreme Court held as under:

"22. In the present case, no evidence has been let in proof W.P(C).17327/2021

of the statement of facts contained in the newspaper report. The absence of any denial by Ch. Bhajan Lal will not absolve the applicant from discharging his obligation of proving the statement of facts as appeared in the Press report. In fact, Ch. Bhajan Lal in his counter affidavit has taken a stand that the statements attributed to him based on the newspaper report are mere hearsay and cannot in law be relied upon for the purpose of initiating such proceedings. Therefore, in the absence of required legal proof, the Court will not be justified in issuing a suo motu notice for contempt of court."

(iii) In Ravinder Kumar Sharma v. The State of Assam and Ors., reported in AIR 1999 SC 3571, at paragraph 25, the Hon'ble Supreme Court held as under:

"25. Newspaper reports regarding the Central Government decision could not be any basis for the respondents to stop action under the Assam Control Order of 1961. The paper reports do not specifically refer to the Assam Control Order, 1961. In fact, Government of Assam itself was not prepared to act on the newspaper reports, as stated in its wireless message. Section 81 of the Evidence Act was relied upon for the appellant, in this behalf, to say that the newspaper reports were evidence and conveyed the necessary information to one and all including the respondents 2 and

3. But the presumption of genuineness attached under Section 81 to newspaper reports cannot be treated as proof of the facts stated therein. The statements of fact in newspapers are merely hearsay Laxmi Raj Setty v. State of Tamil Nadu [1988CriLJ1783]."

(iv) In Vikas Vashishth v. Allahabad High Court reported in (2004) 13 SCC 485, the Hon'ble Supreme Court held as under:

"4. At the very outset, we put it to the petitioner that a bare perusal of the petition shows that it is based entirely on newspaper reports and asked him whether before filing the petition he has taken care to verify the facts personally. His answer is in the negative. In the writ petition all the 21 High Courts have been included as respondents and Union of India has also been impleaded as the 22 nd respondent. We asked the petitioner what has provoked him to implead all the High Courts as respondents and he states that it is his apprehension that similar incidents may occur in other High Courts though there is no factual foundation for such W.P(C).17327/2021

appreciation.

5. After affording the full opportunity of hearing, we are satisfied that what purports to have been filed as a public interest litigation is nothing more than a "publicity interest litigation". It is writ large that it has been filed without any effort at verifying the facts by the petitioner personally."

(v) In Rohit Pandey v. Union of India reported in (2005) 13 SCC 702, Hon'ble Supreme Court held as under:

"1. This petition purporting to be in public interest has been filed by a member of the legal fraternity seeking directions against the respondents to hand over the investigation of the case pertaining to recovery of light machine gun, which is said to have been stolen from the army according to reports published in two newspapers, to the Central Bureau of Investigation for fair investigation to ensure that the real culprits who are behind such theft of army arms and ammunition endangering the integrity and sovereignty of the country may be brought to book and action may be taken against them in accordance with law. The only basis for the petitioner coming to this Court are two newspaper reports dated 25-1-2004, and the other dated 12-2-2004. This petition was immediately filed on 16-2-2004 after the aforesaid second newspaper report appeared. On enquiry from the learned counsel, we have learnt that the petitioner is a young advocate having been in practice for a year or two. The Union of India, the State of Uttar Pradesh and the Chief Minister of the State of Uttar Pradesh, have been arrayed as party respondents. In the newspaper reports, there is no allegation either against the Union of India or against the Chief Minister.

2. We expect that when such a petition is filed in public interest and particularly by a member of the legal profession, it would be filed with all seriousness and after doing the necessary homework and enquiry. If the petitioner is so public-spirited at such a young age as is so professed, the least one would expect is that an enquiry would be made from the authorities concerned as to the nature of investigation which may be going on before filing a petition that the investigation be conducted by the Central Bureau of Investigation. Admittedly, no such measures were taken by the petitioner. There is nothing in the petition as to what, in fact, prompted the petitioner to approach this Court within W.P(C).17327/2021

two-three days of the second publication dated 12-2-2004, in the newspaper Amar Ujala. Further, the State of Uttar Pradesh had filed its affidavit a year earlier i.e. on 7-10- 2004, placing on record the steps taken against the accused persons, including the submission of the charge- sheet before the appropriate court. Despite one year having elapsed after the filing of the affidavit by the Special Secretary to the Home Department of the Government of Uttar Pradesh, nothing seems to have been done by the petitioner. The petitioner has not even controverted what is stated in the affidavit. Ordinarily, we would have dismissed such a misconceived petition with exemplary costs but considering that the petitioner is a young advocate, we feel that the ends of justice would be met and the necessary message conveyed if a token cost of rupees one thousand is imposed on the petitioner "

(vi) In Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra and Ors. [(2007) 14 SCC 281], the Hon'ble Apex Court held as under:

"18. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra v. Prabhu (1995) ILLJ 622 SC, and Andhra Pradesh State Financial Corporation v. GAR Re-Rolling Mills and Anr. [1994] 1 SCR 857. No litigant has a right to unlimited draught on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. [See Dr. B.K. Subbarao v. Mr. K. Parasaran (1996 CriLJ 3983)]. Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public.

19. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are W.P(C).17327/2021

entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. It is also noticed that petitions are based on newspaper reports without any attempt to verify their authenticity. As observed by this Court in several cases newspaper reports do not constitute evidence. A petition based on unconfirmed news reports, without verifying their authenticity should not normally be entertained. As noted above, such petitions do not provide any basis for verifying the correctness of statements made and information given in the petition. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as afore-stated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts."

14. It is also equally important and relevant to note that the

petitioner has not made any effort at all to substantiate any of the

contentions raised. Petitioner is unable to point out any specific instances

of misuse of the law and thereby victimised any citizen. The contentions

raised are also to be addressed taking into account the present pandemic

situation of Covid -19 pandemic. Moreover, we are of the view that if

there is any misuse of the law and illegality in the exercise of statutory

power by any authority under law and registered cases, it has to be taken

as a defense in the criminal proceedings, for which adequate

compensation can be ordered for malicious prosecution. Above all, the

contentions raised are revolving around various factual aspects, which can

only be deciphered by a fact finding court and not in a proceeding under

Article 226 of the Constitution of India, which is a well recognised legal

position.

W.P(C).17327/2021

In the light of the above discussions and decisions, instant writ

petition is dismissed.

Sd/-

S. Manikumar, Chief Justice

Sd/-

Shaji P. Chaly, Judge sou.

 W.P(C).17327/2021


                    APPENDIX OF WP(C) 17327/2021

PETITIONER EXHIBITS
EXHIBIT P1             TRUE   COPY  OF   THE   KERALA  EPIDEMIC
                       DISEASES ORDINANCE, 2021 DATED 9.2.2021.
EXHIBIT P2             TRUE COPY OF THE NEWSPAPER REPORT
                       PUBLISHED IN THE NEW INDIAN EXPRESS
                       DAILY REPORTS DATED 10.08.2021.