Madras High Court
P.Packianatham vs )The Superintendent Of Police on 3 August, 2021
CRL.OP(MD)No.11665 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.08.2021
(Reserved on 23.12.2020)
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRL.OP(MD)No.11665 of 2020
P.Packianatham ... Petitioner
vs.
1)The Superintendent of Police,
Office of the Superintendent of Police,
Alagarkovil Road,
Madurai-625 007.
2)The Deputy Superintendent of Police,
Melur Taluk,
Melur.
3)The Inspector of Police,
Melur Police Station,
Melur.
4)The Sub Inspector of Police,
Melavalazhu Police Station,
Melur.
5)A.Chinnanaih
6)A.Thirviam ... Respondents
Prayer : Petition filed under Section 482 of the Criminal
Procedure Code, directing the respondents 1 to 4 herein to provide
adequate police protection to the life and limb of the petitioner and for
the agricultural works in the lands comprised in S.Nos.198/6A, 199/1,
204/3 B, 204/2 of Seikipatti Village, Melur Taluk, Madurai District, by
considering his representation dated 05.10.2020 within the time
stipulated by this Hon'ble Court.
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CRL.OP(MD)No.11665 of 2020
For Petitioner : Mr.Veera Kathiravan, Senior Counsel for
M/s.Veera Associates
For R1 to R4 : Mr.V.Neelakandan
Additional Public Prosecutor
For R5 & R6 : Mr.S.Kanagarajan
For Intervener : Mr.Chandrapandi
ORDER
When police protection is sought for, towards the implementation
of a civil court order, whether it is justifiable on the part of the police to
insist upon a specific court order to give police protection. This is the
issue raised in the present petition seeking direction to the Police to give
police protection
a)to the life and limb of the petitioner, and
b)for the agricultural work in the lands comprised in SF.Nos.198/6A,
199/1, 204/3B, 204/2 of Seikipatti Village, Melur Taluk, Madurai
District, which is also the subject matter of the civil court decree granted
in O.S.No.25/2008 on the file of the Sub Court, Madurai.
2.The issue raised is all the more critical when there is a G.O i.e.,
G.O.NO.1580, Home Department dated 24.11.2008 which reads as
follows:-
''When police protection is sought, for the implementation of
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CRL.OP(MD)No.11665 of 2020
a civil court order, it should be given readily. Police should not
insist on a specific court direction to give police protection.''
3.The question to be answered is painful when this Hon'ble Court
in umpteen number of cases 10 of which are specifically relied upon by
the learned counsel for the petitioner reiterate that when police protection
is sought, for the implementation of a civil court order, it should be given
readily. Police should not insist on a specific court direction to give
police protection.
4.Brief facts:-
The subject matter of property originally belonged to the family
Trust created by one M.Somasundaram Chettiar vide Document No.
934/1940 and is administered by his grandson K.R.Somasundaram
Chettiar. The petitioner claims that he is the lessee of the property and
that the respondents 5 and 6 are also claiming tenancy rights in the
capacity as cultivating tenant. The civil suit filed by the petitioner before
the Sub Court, Madurai in O.S.25/2008 seeking the relief of permanent
injunction has crystalised into a decree and it has also attained finality.
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CRL.OP(MD)No.11665 of 2020
4.1.The respondents 5 and 6 claimed that it is an exparte decree
and that the remedy open to the petitioner is only to file an execution
petition and not the present petition for direction. The respondents 5 and
6 claim that they have already moved the Tahsildar, Melur to record their
names in the record of tenancy and the applications filed by the
respondents 5 and 6 in TR.13/2006 and T.R.13/2008 are pending and that
when the applications are pending consideration, there is a bar of
jurisdiction under Section 16-A of the Tamil Nadu Agricultural Land
Record of Tenancy Rights Act, 1969, and therefore, the decree passed
without jurisdiction is null and void and the present petition for direction
based upon that decree is not valid.
5.The first question to be answered is whether this petition for
direction based upon a civil court decree, is null and void or a valid
decree. The contention of the respondents 5 and 6 that the decree is a
void decree is baseless. The further contention that it is an exparte
decree is also invalid. It is not as if that the respondents 5 and 6
remained exparte without contesting the proceedings in O.S.No.25/2008.
When the suit was posted for the evidence of the defendants, the counsel
for the defendants have reported no instructions and the suit was decreed
on 20.04.2010. Thereafter, the respondents 5 and 6 filed I.A.No.49/2015
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CRL.OP(MD)No.11665 of 2020
in O.S.No.25/2008 with an application to condone the delay of 1651 days
in filing the application to set aside the exparte decree that was dismissed
on 13.12.2017. Challenging the same, CRP(MD)(NPD)No.2016/2018
filed was also dismissed on 17.09.2018. Thus, the civil court decree in
O.S.No.25/2008 has attained finality. The issue regarding jurisdiction
under Section 16-A of the Tamil Nadu Agricultural Land Record of
Tenancy Rights Act, 1969, should have been raised only in O.S.No.
25/2008, but wilfully during the part heard stage, the respondents 5 and 6
remained outside the court perhaps with an intention to drag on the
proceedings which is evident from the application filed to condone the
delay of 1651 days in filing the application to set aside the exparte
decree. It is not as if they had no knowledge about the institution of the
suit. It is not a case of non service of summons. It is not a case of
proceedings between 2 third parties where they had knowledge at
subsequent point of time. The respondents 5 and 6 were parties to the
proceedings having knowledge and having participated in the
proceedings. Having failed to establish the defence with regard to
jurisdiction under Section 16-A of the Tamil Nadu Agricultural Land
Record of Tenancy Rights Act, 1969, the respondents 5 and 6 are
estopped from raising the very same defence in this petition.
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CRL.OP(MD)No.11665 of 2020
6.At any stretch of imagination, the decree cannot be claimed to be
an exparte decree. Even assuming for the sake of argument that it is an
exparte decree, the exparte decree is as good as a contested decree.
Therefore the contention that the decree is not a valid decree is not
correct. The next contention is that the remedy open to the petitioner is
only to file an execution petition and not the present petition for
direction. The question of seeking an alternative remedy depends upon
the effectiveness of the remedy and the nature of the remedy sought for.
The relief sought for or the relief expected/relief needed is important for
the decree holder and even assuming that there was an alternative
remedy, it is only a policy of law and not a rule of law. The possible
remedy that could be obtained by invoking the provisions of Order 21
whether could have been sufficient or effective for the decree holder has
to be looked into.
7.Order 21 Rule 32(1) and (5) provides for execution of decree for
injunction which reads as follows:-
"32. Decree for specific performance for restitution of
conjugal rights, or for an injunction.-(1) Where the party
against whom a decree for the specific performance of a
contract, or for restitution of conjugal rights, or for an
injunction, has been passed, has had an opportunity of obeying
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CRL.OP(MD)No.11665 of 2020
the decree and has wilfully failed to obey it, the decree may be
enforced in the case of a decree for restitution of conjugal
rights by the attachment of his property or, in the case of a
decree for the specific performance of a contract, or for an
injunction by his detention in the civil prison, or by the
attachment of his property, or by both.
(5) Where a decree for the specific performance of a
contract or for an injunction has not been obeyed, the Court
may, in lieu of or in addition to all or any of the processes
aforesaid, direct that the act required to b e done may be done
so far as practicable by the decree-holder or some other person
appointed by the Court, at the cost of the judgment-debtor, and
upon the act being done the expenses incurred may be
ascertained in such manner as the Court may direct and may be
recovered as if they were included in the decree.
[Explanation.-For the removal of doubts, it is hereby declared
that the expression "the act required to be done" covers
prohibitory as well as mandatory injunctions.]"
8.The very nature of the relief that could be obtained are the arrest
of the respondents 5 and 6 or the attachment of their properties. The
relief expected for the decree holder is that his property should be
protected/his life should be protected. When the decree holder did not
derive any pleasure either by attaching the property of the respondents 5
and 6 or by arresting the respondents 5 and 6 and when no fruitful result
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CRL.OP(MD)No.11665 of 2020
would enure for the benefit of the petitioner by doing it, it would be
futile to seek the enforcement of the decree under Order 21 Rule 32 CPC.
Therefore, the contention that there had been an alternative remedy that
too an effective alternative remedy is not correct when no remedy would
be fruitful for the petitioner/decree holder.
9.Right to life is a precious remedy under Article 21 of the
Constitution of India. The main concern of the decree holder is that if his
right to property(possession and enjoyment) as confirmed by the civil
court decree can be protected only by getting the order of protection from
the police, necessarily that relief has to be conferred in order to protect
his right. Right to property is possible only if the right to life is
protected. Therefore, this petition for direction is justified and the only
question is whether there should be a specific order by this Court
directing the police to offer or render police protection in order to
safeguard the rights that are finally granted in the civil court order. As
would be implied/conveyed in the question for consideration, the
Government itself has issued guidelines to the police officers directing
them to give police protection towards the implementation of a civil
court order and that police should not insist on specific court order.
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CRL.OP(MD)No.11665 of 2020
10.The Government has taken the responsibility of rendering
police protection in the light of the civil court decree by constituting a
committee and based on the recommendations of the committee, has
issued such guidelines with a direction to circulate the order to all the
police stations and the relevant paragraph which is highlighted in the
judgment of this Court in M.S.Sivasubramaniam vs. Inspector of Police,
Thirumullaivoyal, is towards recollection of memory for the police
officers.
''4.This Court already held in 2014(2) CTC 695 ?
Radhika Sri Hari and another Vs. Commissioner of Police,
Coimbatore City, Coimbatore? that,
?7.In the aforesaid circumstances, this Court considers it
appropriate to refer to Report of the Committee constituted by
the Government in G.O.(3D) No.42, Home dated 30.06.2008
towards review of the system of treating complaints relating to
money and land matters and to suggest a legally acceptable
methodology. The Report of such Committee touching upon
several issues, was accepted by Government. Having done so,
under G.O.Ms.No.1580, Home (Pol.VII) Department dated
24.11.2008, the Director General of Police was required to
circulate the Report along with the 14 point guidelines annexed
to such Government Order to Police Officers/Stations for
appropriate adherence. Under C.No.43/CRB/CSP/2008 dated
08.12.2008, the Commissioner of Police, Chennai Sub-Urban,
has caused communications to all Deputy Commissioners,
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Assistant Commissioners and Inspector of Police for necessary
action. Guideline 11 issued by the Committee reads as
follows:-
?11.When police protection is sought for the
implementation of a Civil Court Order, it should be given
readily. Police should not insist on a specific Court
direction to give police protection.?
8.What is informed above makes clear that the petitioner
would be entitled to police protection as prayed for. Criminal
Original petition is allowed. There will be a direction to
respondents to provide polilce protection to the petitioners for
a period of three weeks from the date of receipt of a copy of
this order towards enabling them raising fresh barbed wire
fences on their property. The same will be at the cost of the
petitioner.?''
11.Even after the expiry of 14 years (Vanavasam period), this
Government Order is not implemented in letter and spirit driving people
unnecessary to the court. It is high time the police officers are required
to respect to the orders of this Court and also to respect the Government
Order.
12.In the light of the legal position indicated, it should have been
the responsibility of the police to have rendered police protection in
terms of the representation dated 05.10.2020. To avoid further
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recurrence of this kind of petition, the Director General of Police, Tamil
Nadu, is once again required to issue reminder to all the police stations
under his jurisdiction with regard to the report of the committee
constituted by the Government in GO(3D)No.42, Home dated
30.06.2008 and G.O.Ms.No.1580, Home (Pol.VII), Department dated
24.11.2008. It is appropriate to point out dividing/demarcating line of
jurisdiction for the police as to when to interfere and when not to
interfere in civil matters. This demarcation has been pointed out in the
judgment of this Court reported in G.Anand vs. The Inspector of Police,
ICF Police Station, Chennai (W.P.No.12956 of 2006 dated 25.02.2015).
The relevant portion of the judgment reads as under:-
''4.It is trite to say that function of the police authorities
is to control law and order and to investigate the crime. The
objective is not to be an arbiter of civil dispute. The police
authorities, thus, cannot take over the job of Civil Court to
adjudicate the disputes and that being the problem appears to
have been redressed by G.O.Ms.No.1580, dated 24.11.2008.
Suffice for us to say that G.O.Ms.No.1580, dated 24.11.2008
should be followed in letter and spirit and the process of
investigation of any crime has to be in accordance with law
laid down by the highest Court.''
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13.Perhaps without understanding the stage at which the police can
interfere in the civil jurisdiction, the police is insiting upon the
production of the civil court order. If necessary, the the Director General
of Police, Tamil Nadu, may also issue a clarification.
14.With the above observation and directions, this Criminal
Original Petition is disposed of.
Index : Yes / No
Internet: Yes / No
bala 03.08.2021
To
1)The Superintendent of Police,
Office of the Superintendent of Police,
Alagarkovil Road,
Madurai-625 007.
2)The Deputy Superintendent of Police,
Melur Taluk,
Melur.
3)The Inspector of Police,
Melur Police Station,
Melur.
4)The Sub Inspector of Police,
Melavalazhu Police Station,
Melur.
5)The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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CRL.OP(MD)No.11665 of 2020
J.NISHA BANU, J.
bala
PRE-DELIVERY ORDER MADE IN
CRL.OP(MD)No.11665 of 2020
DATED : 03.08.2021
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