Kerala High Court
C.R. Badhran vs Radhakrishna Pillai P.K on 28 May, 2021
WP(C) NO. 12756 OF 2020 -1-
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 28TH DAY OF MAY 2021 / 7TH JYAISHTA, 1943
WP(C) NO. 12756 OF 2020
PETITIONER/S:
C.R. BADHRAN,
0
AGED 60 YEARS
S/O.RESIDING AT TC-31/650 (1), ASWATHY BUILDING,
S.N.NAGAR, PETTAH P.O., THIRUVANANTHAPURAM-695
024
BY ADVS.
G.S.KRISHNAN KARTHA
SRI.LIJIN THAMBAN
RESPONDENT/S:
1 RADHAKRISHNA PILLAI P.K.,
KRISHNA,TC 31/727(I), MOONNAM,
MANAKKAL,PETTTAH.P.O., THIRUVANANTHAPURAM-695 024
2 KERALA STATE HUMAN RIGHTS COMMISSION,
TURBO PLUS TOWER, PMG ROAD,
THIRUVANANTHAPURAM,PIN-695 033, REPRESENTED BY
ITS REGISTRAR
BY ADVS.
SRI.K.P.SUJESH KUMAR FOR R1
SRI.A.DINESH RAO, SC FOR R2
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 28.05.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 12756 OF 2020 -2-
JUDGMENT
Dated this the 28th day of May, 2021
S. Manikumar, CJ
Instant writ petition has been filed aggrieved by the order of
Kerala State Human Rights Commission, Thiruvananthapuram, in HRMP
No.4730/2018/TVM dated 27.02.2020 (Exhibit-P4).
2. Short facts leading to the filing of the writ petition are that, the
1st respondent herein has lodged a complaint regarding removal of soil
from the manhole, before the Sub Inspector of Police, Pettah Police
Station contending false and frivolous allegations against the petitioner.
When the police made an attempt to resolve the dispute, the 1 st
respondent did not accede to the same. On the other hand, he has
forwarded a complaint to the Kerala State Human Rights Commission and
the Human Rights Commission has numbered it as HRMP
No.4730/2018/TVM.
3. After considering the complaint, Human Rights Commission has
passed an order directing the Superintendent of Police,
Thiruvananthapuram City, to take steps to register FIR and take legal
proceedings thereto against the petitioner. Being aggrieved, instant writ
petition has been filed seeking the following relief:
"Issue a writ of Certiorari or any other appropriate writ order or
direction quashing Ext.P4"
4. In support of the prayer sought for, petitioner has, inter alia,
raised the following grounds:
A. The 2 nd respondent without differentiating the remedy provided to the
1st respondent under the Code of Criminal Procedure in accordance with
the procedure established by law, has passed Ext.P4 by erroneous
exercise of jurisdiction and authority vested on it
B. If the police fails to investigate a case arising from a First Information
Report lodged before it, disclosing commission of a cognizable offence
it is open to the informant/complainant to move the Magistrate
concerned for appropriate order u/s.156 CrPC or may file a complaint
and obtain appropriate orders for issuance of process against the
accused for trial. Having failed to do so the 1 st respondent has found a
novel device of moving the Kerala State Human Rights Commission, 2 nd
respondent. Such a complaint ought not to have been entertained by
the 2nd respondent when remedy is provided to the aggrieved party
under the Code of Criminal Procedure in accordance with the procedure
established by law.
C. The 2nd respondent has no jurisdiction or authority to direct the
Superintendent of Police to take steps to register FIR and conduct
investigation since the 1st respondent has an alternative remedy
available under the Code of Criminal Procedure. In Anandawardhan Vs.
Pandurang (2006) 2 Crimes 165, 2005 (11) SCC 195 held that "the law
provides that if the police fails to investigate a case arising from a First
Information Report lodged before it disclosing commission of a
cognizable offence, it is open to the informant/complainant to move the
Magistrate concerned for appropriate order u/s. 156 CrPC or may file a
complaint and obtain appropriate orders for issuance of process against
the accused for trial".
D. While Passing Ext.P4, the 2 nd respondent has not properly considered
Ext.P3 complaint filed by the 1st respondent. It is evident from Ext.P3
that the Assistant Commissioner of Police has recorded the statements
of complainant and accused and found no substance which constitutes
a cognizable offence and moreover the 1st respondent himself deposed
that he has no intention to proceed with the allegations levelled in the
complaint. Once the statement of the complainant was recorded by an
investigating officer, the same cannot be dispelled by evasive denial of
the 1st respondent. The 2nd respondent ought to have found that the
complaint of the 1st respondent is devoid of any merit and an
alternative remedy is open to him to approach the concerned
magistrate for redressal of his grievance.
5. Respondent No.1 has filed a counter affidavit dated 30.10.2020.
Relevant paragraphs of the same read thus:
"9. I stoutly deny the averments contained in paragraphs 1 and 2 of
the writ petition. It is true that the petitioner has removed the
sewage waste from the manhole situated in the road and dumped
the same right in my front gate and the incident was very clearly
narrated in my complaint produced in the writ petition and
marked as Exhibit P1. Consequent upon the rain, the sewage
waste started to melt and flow into my compound. Myself and
petitioner were called to the police in connection with the enquiry
pursuant to my complaint and the unfortunate incidents occurred
only due to the biased attitude on the part of the Station House
Officer, when I requested him to register a case against the
petitioner. I have not misbehaved in the police station as averred
by the petitioner. Exhibit P2 was submitted as a counter blast to
the complaints submitted by me. It is being aggrieved by the
inhuman and much prejudiced attitude on the part of the Station
House Officer, who was expected to act impartially and fairly, I
was constrained to submit the complaint before the second
respondent. Having convinced the falsity of allegations made in
Exhibit P2, police did not take any action in the said complaint.
The contentions raised in paragraphs 3 and 4 of writ petition are
also false and hence denied. Police is bound to register FIR in
case of cognizable offences in view of the dictum laid down by
the Apex Court in Lalita Kumari v. Govt. of U.P. [2013 (4) KLT
552].
10. I submit that the Compact Disks and photos evidencing the
threat posed by the petitioner submitted by me before the
Assistant Commissioner of Police, Sanghumugham were
forwarded to Sri.Sajikumar, SHO, Pettah Police Station on
7/09/2018 along with a report with due acknowledgment to take
further legal action in the matter. Later I came to know that the
said records were found missing and I believe that the said
records were destroyed while Sri.Sajukumar was working as the
Station House Officer under the influence of the petitioner. A
copy of the CD and the photographs were also submitted before
the second respondent while submitting Exhibit P1 application
and it is after considering the said materials, the second
respondent has issued Exhibit P4 order. In view of the grave
allegations raised against the SHO, Sri.Sajukumar, it is highly
necessary in the interest of justice to continue the proceedings
initiated against the Station House Officer as directed in Exhibit
P4 order.
11. Though it was directed in Exhibit P4 order that the District Police
Chief shall conduct an enquiry directly by hearing all the
concerned parties and examining the documents, he deputed the
Assistant Commissioner of Police, Narcotic Cell to conduct the
enquiry and submit a report, and in the report ACP covered up all
the grave allegations against the errant officer and on the other
hand recommended that the officer shall be directed to behave
respectfully to senior citizens, ladies and children who approach
the police for aid. In the circumstances, I submitted a
representation before the Deputy Commissioner of Police (L&O),
Thiruvananthapuram City on 30/07/2020 requesting to ensure fair
and impartial enquiry in the matter. True copy of the
representation submitted by me before the Deputy Commissioner
of Police (L&O), Thiruvananthapuram City, dated 30/07/2020 is
produced herewith and marked as Exhibit R1(d).
12. None of the grounds raised in the writ petition are maintainable.
Petitioner has no grievance regarding the direction issued to the
District Police Chief to conduct enquiry as against the Station
House Officer. True copy of the representation submitted by me
before the Director General of Police, dated 10/08/2020 is
produced herewith and marked as Exhibit R1(e). Despite the
submission of Exhibit R1(e) representation, police are not taking
any action in the matter. The threat and harassment at the
instance of the petitioner is still continuing. Petitioner is not
entitled to any of the reliefs sought for in the writ petition. "
6. Heard the learned counsel for the respective parties and
perused the materials available on record.
7. The question that arises for consideration is, whether Exhibit-P4
order in HRMP No.4730/2018/TVM dated 27.02.2020 of the Kerala State
Human Rights Commission requires any interference. The deliberation of
facts made above would make it clear that the 1 st respondent has filed a
complaint alleging that the complaint lodged before the Pettah Police
Station with regard to dumping of septic waste in front of his house by
his neighbour Mr. Badhran was not registered and further that the Sub
Inspector of Police viz., one Mr.Sajukumar had misbehaved with the 1 st
respondent and insulted him. It was further stated in the said complaint
that the brother of Mr.Badhran/the writ petitioner viz., one
Mr.Parthasarathi has obstructed him and used filthy words. But the
police, in spite of the complaint, have not taken any action.
8. It is also evident that the District Police Superintendent has
conducted an enquiry as regards the allegations made through the
Assistant Commissioner of Police, Shangumugham. However, it seems
the 1st respondent informed that he is not interested in proceeding with
the complaint and it was thereupon that no action was initiated. Any
how, the Human Rights Commission, after assimilating the factual
situations, found that the Sub Inspector of Police has failed in his duty to
register a case and thereupon issued the following directions:
"1) Based on the holding of the Hon'ble Supreme Court in
Lalithakumari Vs. State of U.P, that in the case of complaints
where cognizable offences are proved prima facie, the police
officers are bound to register F.I.R and proceed with legal
action, in the complaint submitted by Radhakrishna Pillai, the
complainant in this case against Parthasarathy and others on
14-5-2018 and against Bhadran on 5-9-2018, the District Police
Chief, Thiruvananthapuram city shall take necessary steps to
register F.I.R and proceed with legal action.
2) The Commission hereby directs that the District Police
Chief, Thiruvananthapuram city shall directly conduct an
enquiry to find out whether or not there had been any omission
on the part of Sajukumar, S.H.O, Pettah in taking necessary
action in the aforementioned complaints by examining all
parties and records, and if it is found that there had been any
such omission on the part of the respondent, appropriate legal
action shall be taken."
9. The contention advanced by the petitioner is that if the 1 st
respondent was really aggrieved by the non-registration of crime by Sub
Inspector of Police, his remedy was to approach the concerned
Magistrate Court by filing a complaint and the approach of the 1 st
respondent by submitting a complaint to the Kerala State Human Rights
Commission cannot be sustained under law.
10. In order to analyse the situation, let us consider Section 12 of
the Protection of Human Rights Act, 1993, which speaks about the
functions of the Human Rights Commission. Section 12 reads thus:
"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 or on a direction or
order of any court, 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;
(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. Section 13 of the Act, 1993 speaks about the powers of the
Commission relating to inquiries and it reads thus:
"(1) The Commission shall, while inquiring into
complaints under this Act, have all the powers of a civil
court trying a suit under the Code of Civil Procedure, 1908
(5 of 1908), and in particular in respect of the following
matters, namely:--
(a) summoning and enforcing the attendance of witnesses
and examining them on oath;
(b) discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from
any court or office;
(e) issuing commissions for the examination of witnesses
or documents;
(f) any other matter which may be prescribed.
(2) The Commission shall have power to require
any person, subject to any privilege which may be claimed
by that person under any law for the time being in force,
to furnish information on such points or matters as, in the
opinion of the Commission, may be useful for, or relevant
to, the subject matter of the inquiry and any person so
required shall be deemed to be legally bound to furnish
such information within the meaning of section 176 and
section 177 of the Indian Penal Code (45 of 1860).
(3) The Commission or any other officer, not below
the rank of a Gazetted Officer, specially authorised in this
behalf by the Commission may enter any building or place
where the Commission has reason to believe that any
document relating to the subject matter of the inquiry
may be found, and may seize any such document or take
extracts or copies therefrom subject to the provisions of
section 100 of the Code of Criminal Procedure, 1973 (2 of
1974), in so far as it may be applicable.
(4) The Commission shall be deemed to be a civil
court and when any offence as is described in section
175, section 178, section 179, section 180 or section 228
of the Indian Penal Code (45 of 1860) is committed in the
view or presence of the Commission, the Commission
may, after recording the facts constituting the offence and
the statement of the accused as provided for in the Code
of Criminal Procedure, 1973 (2 of 1974), forward the case
to a Magistrate having jurisdiction to try the same and the
Magistrate to whom any such case is forwarded shall
proceed to hear the complaint against the accused as if
the case has been forwarded to him under section 346 of
the Code of Criminal Procedure, 1973.
(5) Every proceeding before the Commission shall
be deemed to be a judicial proceeding within the meaning
of sections 193 and 228, and for the purposes of section
196, of the Indian Penal Code (45 of 1860), and the
Commission shall be deemed to be a civil court for all the
purposes of section 195 and Chapter XXVI of the Code of
Criminal Procedure, 1973 (2 of 1974).
(6) Where the Commission considers it necessary
or expedient so to do, it may, by order, transfer any
complaint filed or pending before it to the State
Commission of the State from which the complaint arises,
for disposal in accordance with the provisions of this Act:
PROVIDED that no such complaint shall be
transferred unless the same is one respecting which the
State Commission has jurisdiction to entertain the same.
(7) Every complaint transferred under sub-section
(6) shall be dealt with and disposed of by the State
Commission as if it were a complaint initially filed before
it."
12. Section 14 of the Act, 1993 speaks about investigation and it
reads thus:
"(1) The Commission may, for the purpose of
conducting any investigation pertaining to the inquiry,
utilise the services of any officer or investigation agency
of the Central Government or any State Government with
the concurrence of the Central Government or the State
Government, as the case may be.
(2) For the purpose of investigating into any matter
pertaining to the inquiry, any officer or agency whose
services are utilised under sub-section (1) may, subject to
the direction and control of the Commission,-
(a) summon and enforce the attendance of any person
and examine him;
(b) require the discovery and production of any
document; and
(c) requisition any public record or copy thereof from any
office.
(3) The provisions of section 15 shall apply in
relation to any statement made by a person before any
officer or agency whose services are utilised under sub-
section (1) as they apply in relation to any statement
made by a person in the course of giving evidence before
the Commission.
(4) The officer or agency whose services are
utilised under sub-section (1) shall investigate into any
matter pertaining to the inquiry and submit a report
thereon to the Commission within such period as may be
specified by the Commission in this behalf.
(5) The Commission shall satisfy itself about the
correctness of the facts stated and the conclusion, if any,
arrived at in the report submitted to it under sub-section
(4) and for this purpose the Commission may make such
inquiry (including the examination of the person or
persons who conducted or assisted in the investigation) as
it thinks fit."
13. Section 17 of the Act speaks about inquiry into the complaints
and it reads thus:
"The Commission while inquiring into the
complaints of violations of human rights may--
(i) call for information or report from the Central
Government or any State Government or any other
authority or organisation subordinate thereto within such
time as may be specified by it:
PROVIDED that--
(a) if the information or report is not received
within the time stipulated by the Commission, it may
proceed to inquire into the complaint on its own;
(b) if, on receipt of information or report, the
Commission is satisfied either that no further inquiry is
required or that the required action has been initiated or
taken by the concerned Government or authority, it may
not proceed with the complaint and inform the
complainant accordingly;
(ii) without prejudice to anything contained in
clause (i), if it considers necessary, having regard to the
nature of the complaint, initiate an inquiry."
14. Section 18 of the Act, 1993 speaks about steps during enquiry
and after inquiry and it reads thus:
"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 negligence in the prevention
of violation of human rights or abetment thereof by a
public servant, it may recommend to the concerned
Government or authority--
(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 at any stage of the inquiry 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."
15. Section 21 of the Act, 1993 speaks about constitution of State
Human Rights Commission and it reads thus:
"(1) A State Government may constitute a body to
be known as the..................(name of the State) Human
Rights Commission to exercise the powers conferred
upon, and to perform the functions assigned to, a State
Commission under this Chapter.
(2) The State Commission shall, with effect from
such date as the State Government may by notification
specify, consist of--
(a) a Chairperson who has been a Chief Justice or
a Judge of a High Court;
(b) one Member who is, or has been, a Judge of a
High Court or District Judge in the State with a minimum
of seven years experience as District Judge;
(c) one Member to be appointed from among
persons having knowledge of or practical experience in
matters relating to human rights.
(3) There shall be a Secretary who shall be the
Chief Executive Officer of the State Commission and shall,
subject to control of the Chairperson, exercise all
administrative and financial powers of the State
Commission.
(4) The headquarters of the State Commission
shall be at such place as the State Government may, by
notification, specify.
(5) A State Commission may inquire into violation
of human rights only in respect of matters relatable to
any of the entries enumerated in List II and List III in the
Seventh Schedule to the Constitution:
PROVIDED that if any such matter is already being
inquired into by the Commission or any other Commission
duly constituted under any law for the time being in
force, the State Commission shall not inquire into the said
matter:
(6) Two or more State Governments may, with the
consent of a Chairperson or Member of a State
Commission, appoint such Chairperson or, as the case
may be, such Member of another State Commission
simultaneously if such Chairperson or Member consents
to such appointment:
PROVIDED that every appointment made under
this sub-section shall be made after obtaining the
recommendations of the Committee referred to in sub-
section (1) of section 22 in respect of the State for which
a common Chairperson or Member, or both, as the case
may be, is to be appointed.
(7) Subject to the provisions of section 12, the
Central Government may, by order, confer upon the State
Commission the functions relating to human rights being
discharged by the Union territories, other than Union
territory of Delhi, Union territory of Jammu and Kashmir
and Union territory of Ladakh.
(8) The functions relating to human rights in case
of Union territory of Delhi, Union territory of Jammu and
Kashmir and Union territory of Ladakh shall be dealt with
by the Commission."
16. Reading of the above said provisions makes it clear that the
Human Rights Commission is vested with ample powers to identify as to
whether there is any violation of human rights. If there is any such
violation, the Commission is at liberty to step in and do the necessary.
Here is a case whether the State Human Rights Commission has found
that the Sub Inspector of Police, Pettah Police Station has failed to
register an FIR, since the allegations levelled by the 1 st respondent was
cognizable in nature. The issue involved was considered by the
Commission bearing in mind as to whether there was violation of human
rights, in not registering a crime, and not that the 1st respondent had
any remedy to approach the concerned Magistrate, having the police not
registered a crime. It was in that regard, the State Human Rights
Commission, by the impugned order, has ordered necessary inquiry.
17. The Commission accordingly, has found that there is prima
facie, cognizable offence and the police was under the obligation to
register an FIR and to take consequential legal action. Viewed the
directions of the Kerala State Human Rights Commission in that angle, it
cannot be said that the directions issued are illegal or arbitrary or that
the Commission has no power to issue any such directions.
18. Taking into account all the above aspects, we are of the
considered opinion that the petitioner has not made out a case for
interference with Exhibit-P4 impugned order dated 27.02.2020, in
exercise of the discretionary powers conferred under Article 226 of the
Constitution of India, there being no patent arbitrariness or illegality,
justifying us to do so.
In the result, this writ petition fails and accordingly, dismissed.
No costs.
Pending interlocutory applications, if any, shall stand closed.
Sd/-
S.Manikumar
Chief Justice
Sd/-
Shaji P.Chaly
Judge
vpv
///TRUE COPY///
P. A. TO JUDGE
APPENDIX OF WP(C) 12756/2020
ANNEXURE/EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE COMPLAINT DATED
08.05.2018 FILED BY THE 1ST RESPONDENT
BEFORE THE S.I. OF POLICE PETTAH POLICE
STATION
EXHIBIT P2 A TRUE COPY OF THE COMPLAINT FILED BY
THE PETITIONER DATED 16.07.2018 BEFORE
THE CITY POLICE COMMISSIONER,
VAZHUTHAKKAD, THIRUVANANTHAPURAM WITH
TRANSLATION IN ENGLISH LANGUAGE
EXHIBIT P3 A TRUE COPY OF THE REPORT ON THE
COMPLAINT OF THE 1ST RESPONDENT
SUBMITTED BY THE AST. COMMISSIONER OF
POLICE, SHANGUMUKHAM SUB-DIVISION,
THIRUVANANTHAPURAM DATED 29.05.2018
BEFORE THE 2ND RESPONDENT WITH
TRANSLATION IN ENGLISH LANGUAGE
EXHIBIT P4 A TRUE COPY OF THE ORDER IN HRMP NO
4730/2018/TVM DATED 27.02.2020 OF THE
KERALA STATE HUMAN RIGHTS COMMISSION
WITH TRANSLATION IN ENGLISH LANAGUAGE
EXHIBIT P5 A TRUE COPY OF THE JUDGMENT OF THE
HON'BLE SUPREME COURT IN ANADAWARDHAN
VS. PANDURAG REPORTED AS 2005 (11) SCC
EXHIBIT R1 (A) TRUE COPY OF THE REPORT SUBMITTED BY
THE CHIEF INVESTIGATOR OFFICER BEFORE
THE SECOND RESPONDNET DATED 20.03.2019
EXHIBIT R1 (B) TRUE ENGLISH TRANSLATION OF EXHIBIT R1
A
EXHIBIT R1 (C) TRUE COPY OF THE FIR IN CRIME NO. 1519
OF 2020 OF PATTAH POLICE STATION, DATED
07.08.2020
EXHIBIT R1 (D) TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE FIRST RESPONDENT
BEFORE THE DEPUTY COMMISSIONER OF
POLICE, THIRUVANANTHAPURAM CITY, DATED
30.07.2020
EXHIBIT R1 (E) TRUE COPY OF THE REPRESENTAATION
SUBMITTED BY THE FIRST RESPONDENT
BEFORE THE DIRECTOR GENERAL OF POLICE,
DATED 10.08.2020
