Contempt Petition No. 1187 of 2010 · High Court · 2011

1 IN THE HIGH COURT OF JUDICATURE AT MADRAS(CONTEMPT JURISDICTION) THURSDAY, THE 16TH DAY OF JUNE, 2011 THE HON'BLE MR.JUSTICE K.CHANDRUCONTEMPT PETITION NO.1187 OF 2010 *********S.Sugumar,S/o.Sigamani,No.12,A-Block,Cemetery,Shenoy Nagar,Chennai – 600 030... Petitioner Vs.VijayaraghavanThe Assistant Commissioner of Police,Kilpauk Range,Kilpauk, Chennai-10... Respondent Contempt Petition praying that this Court be pleased topunish the respondent for his act of Contempt of Court fordeliberately disobeyed the order of this Hon'ble Court dated17/02/2010 and made in Crl.O.P.No.3274 of 2010. The above Contempt Petition coming on this day before thisCourt for hearing in the presence of Mr.K.Balaji, Advocatefor the petitioner herein; and of Mr.K.P.Anantha Krishnan,Government Advocate (Crl.Side) for the respondent herein; andupon reading the petition and affidavit of S.Sugumar, filedherein; the Court made the following order:-Heard both sides.2.The petitioner has filed the present contempt seekingfor punishing the respondent for having disobeyed the orderpassed by this Court in Crl.O.P.No.3274 of 2010, dated https://hcservices.ecourts.gov.in/hcservices/

217.02.2010. The said O.P was filed by the petitioner seeking fora direction to the respondent to file a final report in CrimeNo.479 of 2009. This Court after notice to the learnedAdditional Public Prosecutor and after recording the statementthat investigation was almost over and a final report was to besubmitted at the earliest and after perusal of the records, gavea direction to the respondent to file the final report within aperiod of two months from 17.2.2010. It is for the disobedienceof the said order, the contempt petition came to be filed.3.It is the stand of the petitioner that he is apracticing Advocate and he normally appears before variousMetropolitan Magistrate Courts at Egmore. He belonged to thescheduled caste community. He also resides within thejurisdiction of the respondent. He was informed that his clientone Muni was taken to the police station by the Inspector ofPolice, K-6, T.P.Chatram Police Station. On information, he wentto the police station. In the police station, he found that theInspector of Police Lakshmanan and two other constables kept hisclient hanging upside down and they also put a wooden stick andbeat him severely from top to bottom with a police lathi in abrutal manner. When the petitioner questioned the Inspector ofPolice as to the legal authority for beating his client, theInspector of Police had attacked the petitioner on his chest andhip. He also used filthy language and called him by his castename. He also threw a dust bin containing contaminated wastes athim thereby soiling the clothes worn by the petitioner. He https://hcservices.ecourts.gov.in/hcservices/ 3further threatened the petitioner with dire consequences if hedoes not leave the station immediately. Thereafter, thepetitioner went and registered a complaint with the higherpolice authorities. He sent a telegram followed by a letter sentby registered post against the said Lakshmanan. 4.Since no action was taken, the petitioner filed aCriminal O.P.No.7594 of 2009 to register his complaint. Pendingthat petition, a criminal case was registered against the saidInspector of Police Lakshmanan in Crime No.479 of 2009 foroffences punishable under Section 3(1)(x) of the ScheduledCastes and Scheduled Tribes (Prevention of Atrocities) Act, 1989read with Section 323 of IPC on 22.7.2009. The petitioner'searlier O.P was closed on 28.07.2009. Though a case wasregistered, there was no progress in the said case. Therespondent did not take any action because the complaint waslaid against the member of their own police force. Therefore,the petitioner filed a Crl.O.P.No.3274 of 2010 seeking for adirection to respondent to file the final report. Though thiscourt had directed the report to be filed within two months, thesame was not filed and that the statements of concerned personswere not recorded. The petitioner also gave a legal notice on2.7.2010. Since the same was not filed, the contempt petitionercame to be filed.5.When the matter came up on 21.4.2011, this Courtdirected the respondent to file a status report with referenceto the stage of the criminal investigation. When the matter came https://hcservices.ecourts.gov.in/hcservices/ 4up on 28.4.2011, the respondent had filed the status report,dated 28.4.2011 and requested for further time to get an orderfrom the District Collector. This Court expressed its dismaywith the stand taken by the respondent. The respondent wasdirected to hand over the original file to see the progress ofthe case. In the status report filed by the respondent, it wasstated that he had duly examined the witnesses and recordedtheir statements. Subsequently, when the matter came up on9.6.2011, the respondent produced a copy of the final report,dated 3.6.2011. He had recorded that the complaint given by thepetitioner was contrary to truth and was done with a view towreak vengeance. Hence, the case was to be treated as mistake offact. He also produced a copy of the MF report to be served onthe defacto complainant.6.A perusal of the original file clearly showed that therespondent was not sincere in conducting the investigation. Hewas clouded by the fact that the member of his own force wasinvolved as an accused. In fact, the statements recorded underSection 161 Cr.P.C from the private persons including thepetitioner and M.Munirathinam, S/o.Murthy, G.Sathishkumar,S/o.Gangadurai, C.Nagammal, W/o.Chellappan, R.Muralikrishnan,S/o.Raghunath and Gokulakrishnan, S/o.Raghunathan, clearlyshowed that the incident spoken to by the petitioner had takenplace and supported by the witnesses. In order to underplay theseriousness of those charges, the respondent had examined police https://hcservices.ecourts.gov.in/hcservices/ 5officers from his own police station and neighbouring stations.He had acted like a judge to come to the conclusion that thecomplaint was false and made with oblique motive. Even oneDr.Arumugam, CMO of KMC Hospital, who was examined, had statedthat the petitioner had approached the hospital with a complaintof chest pain. These are all matters which will have to beexamined in a trial. The respondent cannot come to his ownconclusion to close the file. 7.It must be noted that the offence under Section 3(1)(x) when committed by a public servant, the court will have totake the same with more seriousness. The petitioner is apracticing Advocate and when he had visited the station, hefound to his disbelief that the authorities were inflictingthird degree torture on an alleged accused. Whatever thecriminal background of the said person, the respondent or hissubordinates have no right to inflict such tortures and actingin gross violation of Article 21 of the Constitution. 8.In this context, it is necessary to refer to a recentjudgment of the Supreme Court in Arumugam Servai Vs. State ofTamil Nadu reported in 2011 (4) Scale 756. The Supreme Court inparagraph 13 of the said judgment had observed as follows:"13....... 22.It may be mentioned that when we interpretsection 3(1)(x) of the Act we have to see the purposefor which the Act was enacted. It was obviously madeto prevent indignities, humiliation and harassment tothe members of SC/ST community, as is evident fromthe Statement of Objects & Reasons of the Act. Hence,while interpreting section 3(1)(x) of the Act, we https://hcservices.ecourts.gov.in/hcservices/ 6have to take into account the popular meaningof the word `Chamar' which it hasacquired by usage, and not theetymological meaning. If we go by theetymological meaning, we may frustrate thevery object of the Act, and hence that wouldnot be a correct manner of interpretation. 23.This is the age of democracy and equality.No people or community should be today insulted orlooked down upon, and nobody's feelingsshould be hurt. This is also the spirit of ourConstitution and is part of its basic features.Hence, in our opinion, the so-called upper castes andOBCs should not use the word `Chamar'when addressing a member of the ScheduledCaste, even if that person in fact belongs to the`Chamar' caste, because use of such a wordwill hurt his feelings. In such a country like ourswith so much diversity - so manyreligions, castes, ethnic and lingual groups,etc. - all communities and groups must be treatedwith respect, and no one should be looked down uponas an inferior. That is the only way we can keep ourcountry united. 24.In our opinion, calling a memberof the Scheduled Caste `Chamar' withintent to insult or humiliate him in aplace within public view is certainly anoffence under section 3(1)(x) of the Act.Whether there was intent to insult orhumiliate by using the word `Chamar' will ofcourse depend on the context in which it was used". 9.The Supreme Court in the same judgment also gavedirections to Execution Magistrates to take strong measures asfound in paragraph 17 of the said judgment, which reads asfollows:"17.Hence, we direct the administrativeand police officials to take strongmeasures to prevent such atrocious acts.If any such incidents happen, apartfrom instituting criminal proceedings against thoseresponsible for such atrocities, the StateGovernment is directed to immediately suspend theDistrict Magistrate/Collector and SSP/SPs of thedistrict as well as other officials concerned and https://hcservices.ecourts.gov.in/hcservices/ 7chargesheet them and proceed against themdepartmentally if they do not (1) prevent theincident if it has not already occurred butthey have knowledge of it in advance,or (2) if it has occurred, they donot promptly apprehend the culprits andothers involved and institute criminalproceedings against them, as in our opinion theywill be deemed to be directly or indirectlyaccountable in this connection."A copy of the said judgment was also directed to be circulatedto all concerned including the judges of the High Courts. Thiswill show the sensitivity that was required in dealing with suchcases. When the Supreme Court has held that serious view willhave to be taken note of, it is not open to the respondent totreat the complaint lightly and file a farce of a final reportalong with a MF notice. 10.It is needless to state that when once a report isfiled, under Section 173, the Magistrate if he decides not totake cognizance of the offence and to drop the proceedings byholding that there are no sufficient grounds for proceeding, hehas to give notice to the informer and to provide him anopportunity of hearing at the time of consideration of thereport. 11.In this context, it is necessary to refer to ajudgment of the Supreme Court in Bhagwant Singh v. Commissionerof Police reported in (1985) 2 SCC 537. In paragraphs 4 to 6,the Supreme Court had observed as follows:"4. ..... There can. therefore, be no doubt thatwhen, on a consideration of the report made by theofficer-in-charge of a police station under sub-section (2)(i) of Section 173, the Magistrate isnot inclined to take cognizance of the offence and https://hcservices.ecourts.gov.in/hcservices/ 8issue process, the informant must be given anopportunity of being heard so that he can make hissubmissions to persuade the Magistrate to takecognizance of the offence and issue process. We areaccordingly of the view that in a case where theMagistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to takecognizance of the offence and to drop theproceeding or takes the view that there is nosufficient ground for proceeding against some ofthe persons mentioned in the first informationreport, the Magistrate must give notice to theinformant and provide him an opportunity to beheard at the time of consideration of the report.It was urged before us on behalf of the respondentsthat if in such a case notice is required to begiven to the informant, it might result inunnecessary delay on account of the difficulty ofeffecting service of the notice on the informant.But we do not think this can be regarded as a validobjection against the view we are taking, becausein any case the action taken by the police on thefirst information report has to be communicated tothe informant and a copy of the report has to besupplied to him under sub-section (2)(i) of Section173 and if that be so, we do not see any reason whyit should be difficult to serve notice of theconsideration of the report on the informant.Moreover, in any event, the difficulty of serviceof notice on the informant cannot possibly provideany justification for depriving the informant ofthe opportunity of being heard at the time when thereport is considered by the Magistrate.5..... But even if such person is not entitled tonotice from the Magistrate, he can appear beforethe Magistrate and make his submissions when thereport is considered by the Magistrate for thepurpose of deciding what action he should take onthe report. The injured person or any relative ofthe deceased, though not entitled to notice fromthe Magistrate, has locus to appear before theMagistrate at the time of consideration of thereport, if he otherwise comes to know that thereport is going to be considered by the Magistrateand if he wants to make his submissions in regardto the report, the Magistrate is bound to hear him.We may also observe that even though the Magistrateis not bound to give notice of the hearing fixedfor consideration of the report to the injuredperson or to any relative of the deceased, he may,in the exercise of his discretion, if he so thinks https://hcservices.ecourts.gov.in/hcservices/ 9fit, give such notice to the injured person or toany particular relative or relatives of thedeceased, but not giving of such notice will nothave any invalidating effect on the order which maybe made by the Magistrate on a consideration of thereport.6. This is our view in regard to the question whichhas arisen for consideration before us. Since thequestion is one of general importance, we woulddirect that copies of this judgment shall be sentto the High Courts in all the States so that theHigh Courts may in their turn circulate thisjudgment amongst the Magistrates within theirrespective jurisdictions."12.In the light of the above, the contentions of therespondent had to be rejected. But yet as it is only a contemptpetition and unless there was a willful disobedience of theorder of the Court, the respondent contemnor cannot be punished.The order passed by this court merely directed the respondent tofile the final report within a time frame. Since theinvestigation had taken some more time, no punishment can begiven to the respondent. But at the same time, this court is notwilling to close the contempt and intends to give certaindirections to the learned Magistrate.13.As and when the final report is received along withMF report, the 5th Metropolitan Magistrate, Egmore, Chennai-600008 or any other Magistrate dealing with the case, shall give anotice to the petitioner. After hearing his submissions, he mustmake an appropriate direction including an order for freshinvestigation by some other investigating agency. While doing https://hcservices.ecourts.gov.in/hcservices/ 10so, the learned Magistrate will take note of the order passed inthis regard and the relevant legal provisions. A copy of theorder will be marked to the learned Magistrate. With theseobservations, the contempt petition will stand closed. No costs. Witness the Hon'ble Thiru M.YUSUF EQBAL, The Chief Justiceof High Court at Madras, as aforesaid, this the 16th day ofJune, 2011. sd/- DEPUTY REGISTRAR (OS)//Certified to be true copy// Dated at Madras this the day of 2011. COURT OFFICER (O.S.)From 25th Day of September 2008 the Registry is issuing certifiedcopies of the orders/judgments/Decrees in this format. https://hcservices.ecourts.gov.in/hcservices/ 11Cns.CONTEMPT PETITION No.1187/2010THE HON' BLE MR.JUSTICEK.CHANDRU ORDERDATED : 16/06/2011FOR APPROVAL :17/06/2011APPROVED ON :17/06/2011Copy to:The 5th Metropolitan Magistrate,Egmore, Chennai – 600 008.