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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 29.10.2009

C O R A M:

THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA

and

THE HONOURABLE MRS.JUSTICE R.BANUMATHI

W.P.Nos.3335, 3703, 3704, 3705 and 3910/2009 andConnected M.Ps. and M.P.S.Rs.

&Crl.O.P.Nos.4085, 4287 and 4434/2009

W.P.No.3335 of 2009(Suo Motu Taken up (PIL) WP)

1. The Chief Secretary to the Government of Tamil Nadu Fort Saint George, Chennai – 9

2. The Home Secretary to Government, Fort Saint George, Chennai – 9

3. The Director General of Police, Chennai – 4

4. The Commissioner of Police, Greater Chennai, Chennai – 8.

5. The Secretary, Union of India, Department of Personnel and Training, New Delhi – 1

6. The Director, Central Bureau of Investigation, Shastri Bhavan, Chennai.

7. The Registrar General, High Court, Madras.

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8. The Advocate General, High Court, Madras.

9. The Additional Solicitor General of India. High Court, Madras.

10.The Secretary, Bar Council of Tamil Nadu & Pondicherry, High Court Buildings, Madras.

11.The Secretary, Madras Bar Association, High Court, Madras.

12.The Secretary, Madras High Court Advocates Association, High Court, Madras.

13.The Secretary, Women Lawyers Association, High Court, Madras.

14.The Secretary, Law Association, High Court, Madras.

15.The Secretary, Tamil Nadu Advocates Association, High Court, Madras.

W.P.No.3703 of 2009Women Lawyers' Associationrep. By Ms.V.Nalini, Secretary,High Court Building,Chennai – 600 104. ... Petitioner

Vs.1. Government of Tamil Nadu, rep. By Secretary, Home Dept. Secretariat, Fort St. George, Chennai – 600 009.

2. The Director General of Police, Office of the DGP, Kamarajar Salai, Chennai – 600 004.

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3. The Inspector of Police, B-2 Esplanade Police Station, Chennai – 600 104. ... Respondents

W.P.No.3704 of 2009M.VelmuruganSecretary, Madras High Court Advocate Association,High Court buildings, Madras- 600 104. ... Petitioner

Vs.1. The State of Tamil Nadu Rep. by its Secretary, Home Department, Fort St. George, Madras – 600 009.

2. The Commissioner of Police, Egmore, Chennai – 600 008.

3. The Director General of Police, Kamaraj Salai, Madras – 5.

4. The Joint Commissioner of Police, North Chennai, Madras.

5. The Addl. Commissioner of Police, Rajaji Salai, Madras – 8

6. The Assistant Commissioner of Police, North Madras, Rajaji Salai, Madras – 1

7. K.P. Jain, IPS, Office of the Director General of Police, Kamaraj Salai, Madras – 5.

8. K. Radhakrishnan, IPS Office of the Commissioner of Police, Egmore, Chennai – 600 008.

9. Ramasubramaniam, IPS The Joint Commissioner of Police, North Chennai, Madras.

10.A.K.Vishwanathan, Office of the Addl. Commissioner of Police, North, Madras – 600 001. ... Respondents

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W.P.No.3705 of 2009The Madras High Court Advocates Associationrepresented by its PresidentMr.R.C. Paul KangarajHigh Court Buildings, Chennai – 600 104. ... Petitioner

Vs.1. The Union of India, Rep. by its Secretary to Government, Ministry of Home Affairs, New Delhi.

2. The State of Tamil Nadu Rep. By its Chief Secretary, Fort St. George, Chennai – 600 009.

3. Secretary to Government, Home, Excise & Prohibition Department, Government of Tamil Nadu, Fort St. George, Chennai – 600 009.

4. Ms. S.Malathi, Principal Secretary to Government, Home, Excise & Prohibition Department, Fort St. George, Chennai – 600 009.

5. The Director General of Police, Office of the Director General of Police, Kamaraj Salai, Chennai – 600 005.

6. Mr.K.P.Jain, Director General of Police, Kamaraj Salai, Chennai – 600 005.

7. The Commissioner of Police, Office of the Commissioner of Police, Egmore, Chennai – 600 008.

8. Mr.K.Radhakrishnan Commissioner of Police, Chennai City, Egmore, Chennai – 600 008.

9. Mr.T.Rajendran, Additional Director General of Police, (Law and Order) Chennai – 600 005.

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10.Mr.A.K.Viswanathan Additional Commissioner of Police, Chennai – 600 009.

11.J.Ramasubramani Joint Commissioner of Police (Chennai North), Presently DIG, Coimbatore Range. Coimbatore.

12.The Registrar General, High Court, Madras.

13.The Central Bureau of Investigation, Represented by its Director, New Delhi. ... Respondents

W.P.No.3910 of 2009The Tamil Nadu Advocate's Association,rep. by its Joint Secretary,No.196, New Addl. Law Chambers,High Court, Chennai – 600 104 ... Petitioner

Vs.1.The Chief Secretary, State of Tamil Nadu, Secretariat, Fort St. George, Chennai – 600 009.

2.The Director General of Police, Kamarajar Salai, Chennai

3.R.Radhakrishnan, Commissioner of Police, Chennai O/o, The Commissioner of Police, Egmore, Chennai - 600 008.

4.Anup Jaiswal, Additional Director General of Police, (Intelligence) O/o. The Director General of Police, Mylapore, Chennai – 600 004.

5.K.Viswanathan, Additional Commissioner of Police, Chennai. O/o. The Commissioner of Police, Egmore, Chennai – 600 008.

6.T.Rajendran, Additional Commissioner of Police, Chennai O/o. The Commissioner of Police, Egmore, Chennai – 600 008.

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7.Sunil Kumar, Additional Commissioner of Police, (Traffic) Chennai. O/o. The Commissioner of Police, Egmore, Chennai – 600 008.

8.Ramasubramaniam, Joint Commissioner of Police, (North Chennai) O/o. The Commissioner of Police, Egmore, Chennai – 600 008.

9.Sandeep Roy Rathode, Joint Commissioner of Police, (Central Chennai) O/o. The Commissioner of Police, Egmore, Chennai – 600 008.

10.Gunaseelan, Joint Commissioner of Police, (Central Chennai) O/o. The Commissioner of Police, Egmore, Chennai – 600 008.

11.M.C.Sarangan, Deputy Commissioner of Police, Kilpauk District, G-3, Kilpauk Police Station Campus, Chennai.

12.Prem Anand Sinha, Deputy Commissioner of Police, Flower Bazaar District, B-1, North Beach Police Station Campus, Chennai.

13.Paneerselvam, Deputy Commissioner of Police, Pulainthope District. P-2, Otteri Police Station Campus, Chennai.

14.T.S.Anbu, Deputy Commissioner of Police, Anna Nagar District, K-4, Anna Nagar Police Station Campus, Chennai

15.Sridar, Deputy Commissioner of Police, Adyar District, J-2, Adyar Police Station Campus, Chennai.

16.Joshi Nirmal Kumar, Deputy Commissioner of Police, (Traffic South) Chennai.

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17.Thirugnanam, Deputy Commissioner of Police, (Traffic North) G-3, Kilpauk Police Station Campus, Chennai. ... Respondents

CRL.OP.No.4085 of 2009S.Doraisamy,Advocate, No. 223, N.S.C.Bose Road,Y.M.C.A.Building, 2nd Floor,Chennai – 600 001. ... Petitioner

Vs.

1. The Deputy Superintendent of Police, Central Bureau of Investigation, Rajaji Bhavan, Chennai.

2. State: Inspector of Police, B-2, Police Station, Esplanade, Chennai – 104. ... Respondents

CRL.OP.No.4287 of 2009

Mr.S.Sivakumar ... Petitioner Vs.

1. The State of Tamil Nadu, rep. by Inspector of Police, High Court Police Station, now closed and functioning at West Side Gate Entrance of the High Court of Madras i.e. B.2 Esplanade Police Station, Chennai – 600 104.

2. The Union of India, rep. by its Chief Investigating Officer and Superintendent of Police, Central Bureau of Investigation (Special Investigation Team) C. Wing A. Block. III Floor, SCB Annx, Rajaji Bhawan Besant Nagar, Chennai – 600 090. ... Respondents

CRL.OP.No.4434 of 2009

JB Solomon Peter Kamaladoss ... PetitionerVs.

The Inspector of Police,B2-Esplanade Police Station,Chennai-600 001. ... Respondents

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PRAYER IN W.P.No.3703 of 2009: Writ Petition filed under Article

226 of Constitution of India praying to issue Writ of Mandamus to take

legal measures to adjudicate and take further action regarding the

violence and incidents that took place on 19.02.2009 and consequently

take criminal action by registering FIR against all the police personnel

who were deployed for the said purpose and compensate for the

damages to life and property of the lawyers and other persons inside

the court campus and grant such other reliefs.

PRAYER IN W.P.No.3704 of 2009: Writ Petition filed under Article

226 of Constitution of India praying to issue Writ of Mandamus to

direct the 1st respondent to initiate penal action against the

respondents 7 to 10 and the Swift Action Force under the provisions of

Unlawful Activities (prevention) Act, 1967, as amended by Act 35 of

2008, and further recover the damage done to properties of the State

and the public from them by appointing an assessor/ Valuer.

PRAYER IN W.P.No.3705 of 2009: Writ Petition filed under Article

226 of Constitution of India praying to issue Writ of Mandamus to

direct the respondents 2 and 3 immediately initiate appropriate

proceedings, both criminal and disciplinary against respondents 6, 8-

11 and their subordinates concerned who had a role to play in the

police atrocities within and in proximity to the High Court premises on

19.02.2009, direct investigation and prosecution by the Central Bureau

of Investigation, the 13th respondent herein in regard to the said

incidents, direct payment of Rs.5,00,000/- as compensation to each

victim of police brutality, compensation for damage and loss to

property, both public and private.

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PRAYER IN W.P.NO.3910 of 2009: Writ Petition filed under Article

226 of Constitution of India praying to issue Writ of Mandamus to

direct the 2nd respondent to furnish a list of police officers and

subordinate police personnel who had indulged in unleashing terror

inside the High Court campus on 19.02.2009 to this Hon'ble Court at

the earliest point of time as may be fixed by this Hon'ble Court,

pending disposal of the above Writ Petition.

PRAYER IN CRL.OP.No.4085 of 2009: Criminal Original Petition

filed under Section 482 of Cr.P.C praying to register a case on the

complaint given by the Petitioner dated 21.02.2009 on the file of the

2nd respondent and to arrest all the accused and proceed with the

investigation according to law.

PRAYER IN CRL.OP.No.4287 of 2009: Criminal Original Petition

filed under Section 482 of Cr.P.C to issue (a) direction to register the

complaint of the Petitioner dated 14.03.2009 by the first respondent

to register a case and record his evidence/statement of the attack

against him and further; (b) To Conduct fresh enquiry by the second

respondent with the petitioner to record his statement in connection

with the attack on him on 19.02.2009 with the narrated the facts and

other circumstances of the case.

PRAYER IN CRL.OP.No.4434 of 2009: Criminal Original Petition

filed under Sec.482 Cr.P.C. praying to direct the Respondent to

register a FIR on the basis of the Petitioner's complaint dated

19.2.2009.

* * * * *

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Counsel appeared for the Petitioners :

1. Mr.R.Krishnamurthy, Senior Counsel 2. Mr.T.V.Ramanujam, Senior Counsel3. Mr.S.Prabhakaran 4. Mr.R.C.Paulkanagaraj,5. Ms.R.Vaigai6. Mr.V.Raghavachari7. Mr.V.Elangovan8. M.S.Sivakumar9. Dr.G.Krishnamurthy10. Mr.R.Kaaruppan, 11. Mr.R.Sankarasubbu,

Counsel appeared for the Respondents :

1. Dr.Rajeev Dhavan Senior Counsel Assisted by Mr.J.Raja KalifullaGovernment Pleader for all Police Officials in Official Rank and PersonalCapacity except Mr.A.K.Viswanathan, Mr.Sandeep Rai Rathore andMr.J.Ramasubramani.

2. Mr.P.S.Raman, Advocate General Assisted by Mr.M.DhandapaniSpecial Government Pleader for Chief Secretary, Home Secretary toGovernment of Tamil Nadu and Director General of Police.

3. Mr.M.Ravindran Additional Solicitor General of India Assisted byMr.P.Chandrasekaran SCGSC for Union of India

4. Mr.N.Chandrasekar, Special Public Prosecutor for CBI

5. Mr.I.Subramaniam Senior Counsel Assisted by Mr.P.N.Swaminathanfor Mr.Sandeep Rai Rathore.

6. Mr.V.Selvaraj for Mr.A.K.Viswanathan

7. Mr.P.N.Prakash for Mr.J.Ramasubramani

8. Mr.R.Muthukumaraswamy Senior Counsel Assisted byMr.A.Jenasenan for Registrar General, High Court, Madras.

* * * * *

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C O M M O N O R D E R

F.M.IBRAHIM KALIFULLA, J.

1. I have had the advantage of perusing the order of

Mrs.Justice R.Banumathi, who has dealt with the issue involved in

these writ petitions in depth, covering every one of the issues

raised, contentions made and authorities cited in support of such

contentions. I fully concur with every one of the reasoning and

conclusions of the illuminating order of the learned Judge.

However, I on my part, wish to add my own reasoning and

conclusions for our ultimate directions contained in paragraph

Nos.602 to 607 of this order.

2. Broad spectrum of this public interest litigation and the

connected writ petitions as well as other criminal original

petitions concerns the State police, lawyers and the Court.

3. The facts which led to the initiation of the suo motu

public interest litigation by this Court are that the members of

the Bar went on an indefinite boycott of Courts on and from

29.01.2009, alleging that the Government was not taking any

action to stop the genocide of Tamils in Sri Lanka. As part of

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their agitation, some lawyers entered the First Court presided

over by the Hon’ble Acting Chief Justice where some of the

lawyers who were attending to their cases were asked to join the

boycott. One learned senior counsel by name Mr.A.E.Chellaiah

and his wife advocate Mrs.Vasanthi, were stated to have been

abused by the agitating lawyers. The boycott, which commenced

on 29.01.2009, continued and was gaining momentum. Several

other incidents as part of agitation of the lawyers was also

reported on various dates.

4. On 17.02.2009, Dr.Subramaniam Swamy as party-in-

person stated to have appeared before the Bench presided over

by Hon’ble Mr.Justice P.K.Misra and Hon’ble Mr.Justice

K.Chandru, for getting himself impleaded in a case related to a

temple situated at Chidambaram. Around 11.45 a.m. some of the

agitating lawyers stated to have entered the Court Hall of Hon’ble

Mr.Justice P.K.Misra Bench and apart from abusing and assaulting

Dr.Subramaniam Swamy, stated to have thrown eggs at him,

under the direct gaze of the Hon’ble Judges. In fact the Judges

frowned upon the misbehaviour of all those lawyers and recorded

the same in their order dated 17.02.2009. A copy of which was

forwarded to the Hon’ble Acting Chief Justice for appropriate

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action and the Registry was also directed to send a copy of the

said order to the Hon’ble Chief Justice of India.

5. The then Commissioner of Police addressed a

communication dated 17.02.2009, to the Registrar General

pointing out the unsavory incident that took place in Court Hall

No.3 and sought for the concurrence to register a criminal case

and set the criminal law in motion against those advocates. The

Registrar General by a communication dated 18.02.2009,

informed the Commissioner of Police that it is for the police to

register any criminal case on its own and the concurrence of the

Registry is not required in law.

6. The case which was posted on 17.02.2009, before the

3rd Court was adjourned to 19.02.2009. On 18.02.2009,

according to the Commissioner of Police, there was a meeting

convened by the Hon’ble Acting Chief Justice in his Chamber, that

the Hon’ble Acting Chief Justice while deploring the incident of

17.02.2009, told the police to be firm in taking action against the

erring advocates.

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7. On 19.02.2009, according to the Commissioner of Police,

there was a specific intelligence input from the Intelligence

Section of the City Police and the State Special Branch CID that

the advocates who were involved in the incident on 17.02.2009,

in the 3rd Court Hall would create serious problems when

Dr.Subramaniam Swamy was scheduled to visit the High Court in

connection with a matter before the Hon’ble Acting Chief Justice

and in the 21st Court.

8. On 19.02.2009, the Commissioner of Police arranged for

a heavy police guard in the High Court campus in order to ensure

that no untoward incident takes place at the time of the visit of

Dr.Subramaniam Swamy. Dr.Subramaniam Swamy stated to

have appeared before the Court presided over by the Hon’ble

Acting Chief Justice as well as the 21st Court and left the High

Court campus around 11.30 am.

9. The heavy police guard under the leadership of the

jurisdictional Joint Commissioner of Police Mr.M.Ramasubramani

was stated to have been withdrawn from the High Court campus

to B-2 Police Station situated outside the High Court campus for

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debriefing by around 11.30 am. While so, according to the police

around 12.00 noon M/s.Vijendran and Kunaraja, Advocates came

to B-2 Police Station and asked for the list of accused advocates

involved in the incident dated 17.02.2009, and stated that they

wanted to surrender themselves.

10. According to the jurisdictional Joint Commissioner of

Police who dealt with the said claim of surrender would state that

two of the advocates namely Mr.Vijendran and Mr.Kunaraja

approached him in B-2 Police Station and stated that they would

surrender the advocates before the police immediately. The Joint

Commissioner of Police would state that those advocates wanted

the list of accused, that though one of the advocates namely

Mr.Vijendran also figured as an accused was to be arrested, since

Mr.Vijendran promised to bring all the accused positively for

surrender, he decided not to arrest him in a haste and asked his

officers to give him time to keep up his promise.

11. According to the Joint Commissioner of Police, the

debriefing of the police force was withdrawn awaiting the

surrender of wanted accused advocates. Therefore, the police

force which was withdrawn from the High Court campus at 11.30

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a.m. was stated to have been made to wait till 2.00 p.m. It is

stated that Mr.Karuppan, another advocate led Messers

Rajnikanth, Vijendran, Pughazhendi and Jayakumar along with

large number of advocates to B-4 Police Station located inside

the High Court campus and represented that the advocates who

were accused in the 17.02.2009 incident wanted to surrender. It

is also stated that when the police wanted to take them into

custody, Mr.Karuppan supported by other advocates insisted

registration of a case against Dr.Subramaniam Swamy as a

precondition for their surrender. The jurisdictional Joint

Commissioner of Police who was waiting in B-2 Police Station is

stated to have rushed to B-4 Police Station along with the entire

strength of police force which was kept in wait in B-2 Police

Station.

12. The complaint which was registered against

Dr.Subramaniam Swamy was stated to have been made under

the Scheduled Caste and Scheduled Tribes (Prevention of

Atrocities) Act. The said complaint was stated to have been

received by the jurisdictional Deputy Commissioner of Police

(Flower Bazaar) Mr.Prem Anand Sinha, who in turn directed the

Inspector of Police Mr.Sethuraman of B-4 Police Station to

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register a case. A case was stated to have been registered in

Crime No.14 of 2009, under Section 3(1)(x) of the Scheduled

Caste and Scheduled Tribes (Prevention of Atrocities) Act read

with Section 506(ii) IPC against Dr.Subramaniam Swamy. A

copy of the FIR in Crime No.14 of 2009 was also stated to have

been handed over to the advocates who thereafter wanted the

arrest of Dr.Subramaniam Swamy and also refused to surrender.

13. It is the case of the jurisdictional Joint Commissioner of

Police that though tension was mounting since the accused

advocates involved in 17.02.2009 incident made themselves

available before him in the presence of the media, his position

was precarious as he would not only be accused of dereliction of

duty for not arresting them but also invite criticism from all

quarters. According to him, he apprehended few advocates

involved in the 17.02.2009 incident and certain others who were

obstructing the police from taking them into the police van, that

it was at that point of time, the crowd became restive and started

shouting at the police in filthy language and that a chappal was

thrown at them apart from throwing stones.

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14. The time was stated to have been 4.00 pm and though

the advocates stated that after the arrest all the police need not

remain in the premises and they can leave the premises, the

policemen who were excited by the throwing of stones by the

advocates were standing in a formation near B-4 Police Station

which ultimately necessitated the jurisdictional Deputy

Commissioner of Police Mr.Prem Anand Sinha to declare the

assembly as unlawful and ordered lathi charge after consulting

the senior officers including the jurisdictional Joint Commissioner

of Police. After brief chase, the police force was stated to have

been withdrawn to B-4 Police Station and thereafter the

advocates were stated to have gathered near the Family Court

and started pelting stones. It was at that point of time Hon’ble

Mr. Justice A.C.Arumugaperumal Adityan was stated to have

intervened to pacify the mob but was also stated to have been

assaulted by the police. The learned Judge was stated to have

been shifted to an ambulance for treatment, that thereafter as

per the instructions of the Commissioner of Police the entire

police were withdrawn from the B-4 Police Station to B-2 Police

Station. Thereafter, according to the police, the advocates set

fire to the B-4 Police Station and they also prevented the fire

service personnel from putting out the fire by pelting stones and

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a lathi charge was ordered to bring the situation under control. It

was around 5.35 pm the B-4 Police Station was stated to have

been ransacked.

15. Be that as it may a reference to the order of the Full

Bench dated 19.02.2009, discloses that when the Court was in

session, at about 3.30 to 3.45 pm., on hearing unusual noise,

when enquiries were made, the Court was informed that large

number of special police (Riot Police) personnel with lathis or

guns have entered the Court premises and were pelting stones on

the lawyers apart from making lathi charge. The vehicles parked

inside the Court campus were stated to have been smashed in

the process. The Hon’ble Acting Chief Justice was stated to have

immediately contacted the Commissioner of Police and the Chief

Secretary over phone and directed them to remove the police

force immediately from the High Court campus in as much as it

entered without the permission of the Court or the Acting Chief

Justice. Many of the learned Judges who also raised from the

Court stated to have witnessed the gory incident. The Court was

also informed about the assault on the Hon’ble Mr. Justice

A.C.Arumugaperumal Adityan. The order also states that the

police were found chasing the persons inside the Court Halls and

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lathi charged the lawyers, staff and others. The situation was

stated to have been beyond control and that the police force did

not go out of the campus while the Commissioner of Police

telephonically informed that he is in the Police Station and trying

to get the police out of the campus. Subsequently, though the

Commissioner of Police informed the Court that the police

personnel have been removed from the campus, they were

chasing the advocates who were coming outside the Court

campus by beating them mercilessly. At about 5.30–5.45 pm it

is stated that the Court learnt the police force had gone outside

the campus. At that point of time, B-4 Police Station was stated

to have been set on fire and on a query, the Commissioner of

Police alleged that the advocates set fire to the Police Station

while many of the lady lawyers present in the Court Hall and

others informed that the police themselves set fire to the Police

Station and were throwing the blame on the lawyers.

16. The Court summoned the Chief Secretary, Home

Secretary, Director General of Police, Commissioner of Police as

well as some other officers and in the presence of number of

lawyers, the Full Bench passed its order at about 6.40 pm in the

presence of the Government Pleader, who also stated to have

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witnessed the incident. The Chief Secretary, Home Secretary,

Director General of Police and the Commissioner of Police gave

their statement with the following undertakings:

“2…….(i) The Commissioner of Police,

Chennai, stated that some of the injured

lawyers have been taken for treatment, but

no arrest has been made.

(ii) The Home Secretary states that no

lawyer will be taken in custody in connection

with today’s incidents. After proper police

investigation and after informing the matter

to the Hon’ble The Chief Justice (Acting Chief

Justice for the present), if necessary, in

future, they may proceed in accordance with

law.

Further undertaking is given that if any

person, including the lawyers, staff of the

High Court or Subordinate Court or any officer

of the Court or the litigant, whoever were

present inside the Court or outside N.S.C.Bose

Road, Thambu Chetty Street, Armenian Street

and nearby roads, if taken in custody, they

will be released immediately today.

It is further undertaken that those who have

been arrested today or had to surrender

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before the police in connection with the earlier

FIR today, they will be released on personal

bond to ensure that normalcy returns in the

High Court.

(iii) So far as the question of enquiry and

FIR lodges and investigation of today’s

incidents is concerned, on behalf of the State,

the Chief Secretary to Government assured

that the matter will be referred to the Central

Government for enquiry and investigation by

the Central Bureau of Investigation.

(iv) The Chief Secretary and Home

Secretary have also undertaken to treat all

the persons injured in connection with today’s

incident and they will be treated free of cost

at the expense of the State.”

17. The said officers along with the Union of India, Director

of Central Bureau of Investigation and the Registrar General of

the High Court were treated as party respondents in the suo

motu writ petition in public interest and in the interest of the

institution viz., the High Court and the Subordinate Courts. The

respondents were directed to adhere to the undertakings and

failing which it was made clear that it would be treated as

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violation of the Court’s order. The State Government was

directed to refer the matter along with a copy of the order dated

19.02.2009, to the Secretary to Government, Department of

Personnel and Training, Government of India, New Delhi, who in

turn was to take up the matter to the Director of Central Bureau

of Investigation for action in terms of the undertaking as well as

the directions issued. The Assistant Solicitor General of India

was present in the Court and accepted notice on behalf of the

Union of India and Central Bureau of Investigation.

18. Simultaneously three teams were constituted consisting

of officers of the Registry, Government Pleader and Advocates to

inspect the whole campus and take videograph that day itself to

note down the damages caused to the building, vehicles and

other properties. The Chief Secretary, Home Secretary, Director

General of Police and the Commissioner of Police were directed to

inform the content of the order to all concerned without waiting

for a copy through electronic media and print media (television

and newspaper). Since the Court was seized of the issue, it was

stated that the members of the various lawyers association were

asked to restore normalcy within the Court campus.

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19. Though the case was directed to be posted on

02.03.2009, the Full Bench met again on 21.02.2009 and passed

further orders. In the said order, the Full Bench which met in the

residence of the Hon’ble Acting Chief Justice, directed the then

Commissioner of Police and jurisdictional Joint Commissioner of

Police 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 in the campus and at whose instance the order

was issued for lathi charge by the police and swift action force.

They were also directed to give specific names with designation

of the officers and constables at whose instance such action was

taken. The initiation of suo motu contempt was decided to wait

till such report is submitted to the Court. Though Ms.R.Vaigai

appeared before the Full Bench for initiation of contempt

proceedings, she was directed to file the said petition in the

Registry.

20. On 02.03.2009, the Full Bench met again and after

noting that the case registered by the CBI was not as per the

orders of the Full Bench dated 19.02.2009, but was one

registered as Crime No.15 of 2009 under Sections 147, 353, 332,

450, 436 & 307, IPC r/w Section 3(1) of the Tamil Nadu

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Properties (Prevention of Damages and Loss) Act, 1992 based on

a complaint made by Sub Inspector of Police of B-4 Police

Station, which was taken on record as a case to be forwarded to

the CBI, while in the said Crime No.15 of 2009, there was no

reference to the Court order dated 19.02.2009 and the facts

mentioned therein including the timings. The Court made it clear

that the respondents/authorities of the State had violated the

Court order dated 19.02.2009, by not registering a case as per

its order dated 19.02.2009 and the CBI was not asked to

investigate the matter as per the said order dated 19.02.2009. It

was specifically directed that the respondents/State authorities

and Union of India should pass appropriate orders on the basis of

the FIR received by them at 6.40 pm pursuant to the Court’s

order dated 19.02.2009 and any other information given

subsequently or at about 19.20 hours (7.20 pm) cannot be

treated to be a case registered pursuant to the Court’s order.

The respective Bar associations were also included as proforma

respondents.

21. In the meantime, while the proceedings were being held

by the Full Bench in the aforesaid manner, certain writ petitions

were moved before the Hon’ble Supreme Court under Article 32

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of the Constitution of India, which were taken up on file and was

heard by the Hon’ble Supreme Court on 25.02.2009 and

26.02.2009 and the Hon’ble Supreme Court by an order dated

26.02.2009, appointed One Man Committee headed by Hon’ble

Mr.Justice B.N.Srikrishna, former Judge of the Supreme Court to

enquire into the incident which happened on 19.02.2009. The

Committee was to initially consider whether any immediate action

is called for against the police officers who allegedly allowed

armed policemen to enter the premises of the High Court without

permission of the Acting Chief Justice and file an interim report.

22. In the meantime the jurisdictional Joint Commissioner

of Police and the Deputy Commissioner of Police along with two

other Deputy Commissioners were transferred from the Madras

city, which was noted by the Hon’ble Supreme Court in its order

dated 26.02.2009.

23. The Hon’ble Supreme Court directed the Committee

appointed by the High Court to assess the medical facilities

provided to the injured advocates as well as reasonable

compensation for the injured apart from the damages caused to

the vehicles and other properties of the High Court as well as the

27

lawyers associations. The State Government was directed to

deposit a sum of Rs.25,00,000/- in the first instance at the

disposal of the Committee for immediate relief. The advocates

were directed not to cause any disturbance of the Court

proceedings and not to shout slogans in the Court premises and

that no meeting should be held in the High Court premises

without the permission of the Acting Chief Justice.

24. After 26.02.2009 order, the Hon’ble Supreme Court

passed further orders on 03.03.2009, 06.03.2009 and

14.07.2009. In the order dated 06.03.2009, the Hon’ble

Supreme Court forwarded the interim report of the Committee

headed by Hon’ble Mr.Justice B.N.Srikrishna to the State

Government as well as to the Acting Chief Justice for appropriate

action, if any. The Hon’ble Supreme Court also held that since

the three Judge Bench was already seized of the matter regarding

the incident happened in the High Court premises, suggestion to

appoint a Judicial Commission was also allowed to be decided by

the same Bench.

25. Subsequently, on 18.03.2009, the Full Bench passed

orders holding as under:

“8. As we find that a prima facie case made

28

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.”

26. Aggrieved against the order of the Full Bench dated

18.03.2009, the two police officers approached the Hon’ble

Supreme Court by filing Special Leave Petition (Civil) No.7540 of

2009. The Hon’ble Supreme Court taking note of the fact that

those officers were not heard before the Full Bench passed its

order dated 18.03.2009, the Hon’ble Supreme Court felt that

they should be given an opportunity of being heard by the High

Court. The Hon’ble Supreme Court specifically directed that the

Bench headed by the Chief Justice or any other Court can deal

with the matter and shall ensure fair hearing to the counsel

appearing for the SLP petitioners and other parties to the

dispute. The learned counsel appearing for the lawyers also

29

submitted before the Hon’ble Supreme Court that till such time

the hearing is over, they will not proceed with their contempt

proceedings. The Hon’ble Supreme Court also noted that the

concerned officers were not working in the City of Chennai and

that they were working elsewhere.

27. It is in the above stated background, this Suo Motu

(Taken Up) W.P.(PIL) No.3335 of 2009, connected writ petitions

and other petitions were directed to be posed before us by the

Hon’ble the Chief Justice.

28. We commenced the hearing on 10.09.2009, and the

various leaders of the Bar viz., Mr.R.Krishnamurthy, representing

Madras Bar Association, Mr.R.C.Paul Kanagaraj and Ms.R.Vaigai,

representing Madras High Court Advocate Association,

Mr.S.Prabhakaran, representing Tamil Nadu Advocate Association

Mr.T.V.Krishnakumar representing Law Association and

Ms.D.Prasanna representing Women Lawyers Association and

Messers N.G.R.Prasad, R.Karuppan, V.Ragavachari and

T.V.Ramanujam as members of the Bar made their submissions

while Mr.V.Selvaraj appeared for the Additional Commissioner of

Police Mr.A.K.Viswanathan, Mr.P.N.Swaminathan, appeared for

30

the Joint Commissioner of Police (Central) Mr.Sandeep Rai

Rathore, Mr.P.N.Prakash appeared for Jurisdictional Joint

Commissioner of Police Mr.M.Ramasubramani and for the rest of

the police officers including the Commissioner of Police, the

Government Pleader appeared who was represented by Dr.Rajeev

Dhavan, Senior Advocate and Mr.P.S.Raman, learned Advocate

General appeared for the State including the Chief Secretary,

Home Secretary and the Director General of Police.

29. Having heard the learned counsel for the various parties

we pass the following order.

30. In his submissions, Mr.S.Prabhakaran, learned counsel

contended that the attack on the lawyers on 19.02.2009, was a

preplanned and conspired one. He also contended that they did

not have the permission of the Registry on that day. According

to him while more than 100 advocates and staff were injured, no

policeman was seriously injured. He would state that while cases

were registered against the advocates, no case was registered

against any policemen who indulged in vandalism. By referring to

the affidavits of Mr.A.K.Viswanathan and Mr.Sandeep Rai

Rathore, the learned counsel contended that atleast those two

31

officers stated that they did not agree for lathi charge. The

learned counsel contended that lawyers assembling inside the

Court campus cannot be construed as an unlawful assembly. He

further contended that by virtue of the gory incident that took

place on 19.02.2009, the High Court did not function for several

days while the City Civil Court and the Court of Small Causes did

not function for one full week. The learned counsel stated that

the police apart from injuring the lawyers, staff members and a

sitting Judge of this Court also caused extensive damage to the

vehicles parked inside the Court campus, Court Building including

Judges Chamber, lawyers chamber and even a Judges' vehicle

was not spared. He pointed out that a Crech in the women

lawyers Association was also damaged by the police. The learned

counsel also contended that even if the advocates wanted to

surrender there was no necessity for the police to gather too

many policemen. He also submitted that the relevant provisions

of the Police Standing Orders (PSO) were not adhered to.

31. Mr.R.C.Paul Kanagaraj, learned counsel in his

submissions contended that the Court proceedings were

disrupted by the act of the police in the afternoon on 19.02.2009

and the High Court could resume work on 25.02.2009, while the

32

City Civil Court and the Court of Small Causes could resume work

only on 02.03.2009. The learned counsel therefore contended

that the act of the police fall within the definition of criminal

contempt under Section 2(c) of the Contempt of Courts Act and

therefore they are liable to be proceeded against under the said

provisions. The learned counsel contended that the Madras High

Court Advocate Association only wanted to support the cause of

Srilankan Tamils and not the banned organization LTTE. As far

as the various acts alleged to have been indulged in by the

lawyers, which was put against them, the learned counsel

contended that all those acts were not by the association but by

some individual lawyers for which separate cases have been filed

and the association has nothing to do with those incidents. He

also stated that those cases have to be individually proceeded

against those persons and the same cannot be put against the

lawyers to justify the incident that took place on 19.02.2009. He

also contended that the incident that took place on 17.02.2009

cannot be stated to be the root cause for the gory incident that

happened on 19.02.2009. The learned counsel contended that

the retention of the police inside the campus between 11.30 am

to 2.00 pm was unlawful for which they are liable to be

proceeded against. He further pointed out that none of the 15

33

lawyers taken into custody were the accused in the case

pertaining to the 17.02.2009 incident. According to the learned

counsel, the police failed to follow the prescribed procedure under

the Drill and Training Manual as well as the Police Standing

Orders. He also contended that the Commissioner of Police’s

failure to get the permission of the Court calls for serious action.

The police personnel should therefore be punished for the offence

committed by them jointly as well as individually.

32. Ms.R.Vaigai, learned counsel in her submissions stated

that the stand of the State Government does not show any

respite for what happened on 19.02.2009. By pointing out to

certain averments contained in the affidavit of the Home

Secretary to the effect that the Court did not give proper hearing

before passing the order dated 19.02.2009, the learned counsel

pointed out that in the very order, it was mentioned that the high

level officers namely the Chief Secretary, Home Secretary,

Director General of Police and the Commissioner of Police were

given an in camera audience before passing of the said order.

Commenting upon the stand of the Director General of Police, the

learned counsel contended that he failed to discharge his

responsibility by properly assessing the unsavory incident with

34

due responsibility. According to the learned counsel neither the

State nor the police have realized the enormity of what happened

and therefore in order to uphold the Majesty of Law, Court should

come for the rescue. The learned counsel pointed out that in the

CD produced by the police nothing was recorded in between 2.21

pm and 3.48 pm and still it was not known why the police

remained inside the campus and ultimately unleashed violence on

the advocates. The learned counsel submitted that various false

pleas made by the high level officers including the Home

Secretary and the Commissioner of Police are serious insult to the

Court which calls for serious action. The learned counsel pointed

out that the Commissioner of Police in his counter affidavit failed

to furnish the timings thereby wanted to wriggle out of the

situation by making slippery statements. The learned counsel

also submitted that going by the visuals in the CD which discloses

the assault on the Hon’ble Judge viz., Mr.Justice

A.C.Arumugaperumal Adityan, at which point of time the

Commissioner of Police was very much present which was around

4.15 pm while according to him, he entered the Court premises

only at 5.00 pm. By referring to para 24 of the affidavit of the

Commissioner of Police dated 07.09.2009, the learned counsel

contended that if that was the perception of the Commissioner of

35

Police himself it was not known how he took the decision to allow

the surrender of advocates inside the campus. The learned

counsel contended that what had happened on 19.02.2009, to

the Court was loss of dignity and grace of the Court which can

never be erased. The learned counsel relied upon various

decisions of the Hon’ble Supreme Court and contended that even

in extraordinary situations permission of the Court was sought by

the Police and that therefore, the privileges that are available to

Parliament premises should be equally extended to the premises

of the Court. The learned counsel contended that when

admittedly the Commissioner of Police anticipated huge trouble,

he should have taken the permission of the Acting Chief Justice

and his failure to do so was a deliberate attempt on his part to

unleash violence on the lawyers. According to the learned

counsel, past events of the advocates cannot be telescoped to

justify the gory incident that took place inside the Court premises

on 19.02.2009. The lawyers are expected to be inside the Court

and the attempt of the police to disperse them under the guise of

unlawful assembly was a deliberate vengeantful action to teach a

lesson to the lawyers and that there was absolutely no

justification for the police to remain inside when there were no

activities after 2.41 pm till lathi charge was made at 3.58 pm. In

36

respect of the arrest of the lawyers also she contended that the

guidelines laid down by the Hon’ble Supreme Court in the

D.K.Basu case (1997 1 SCC 416) was not followed. The

learned counsel therefore contended that serious action should be

taken against the police personnel by way of disciplinary action

as well as contempt proceedings. The learned counsel contended

that in the light of the serious nature of activities indulged in by

the police in order to have a fair enquiry suspension of the

concerned police officers is imminent apart from initiating

criminal contempt against them. The learned counsel further

contended that the payment of compensation for the injured

lawyers was not adequate and atleast a sum of Rs.1,00,000/- to

lawyers who sustained major injuries and Rs.50,000/- for those

who sustained minor injuries should be ordered.

33. Mr.R.Krishnamurthy, learned senior counsel

representing the Madras Bar Association and the Women Lawyers

Association contended that after Dr.Subramaniam Swamy left the

Court premises at around 11.00 am, there was no reason why

the police remained inside the campus and that no valid reason

was disclosed by the police. The learned senior counsel pointed

out that when even in respect of a cognizable offence enough

37

discretion is given to the police officers for arresting a person, it

is not known why they ventured to arrest the lawyers who

wanted to surrender inside the Court campus and the said Act of

the police was stage managed in order to create a situation

where they can unleash violence on the Advocates.

34. Mr.T.V.Ramanujam, learned senior counsel contended

that by invoking Article 215 of the Constitution of India, this

Court should take appropriate action against the erring

policemen. The learned senior counsel contended that it was not

an innocent attack on the lawyers.

35. Mr.V.Ragavachari, learned counsel contended that even

for taking into custody of 15 lawyers, the police ought to have

taken permission of the Registry especially when they anticipated

stout resistance from the lawyers.

36. Mr.R.Karuppan, learned counsel in his submissions

stated that it was he who led the lawyers to B-4 Police Station for

surrender and that the registration of the complaint against

Dr.Subramaniam Swamy was delayed upto 3.00 pm by the police

and that by that time all those lawyers who were connected with

38

the incident that took place on 17.02.2009, left him in the lurch

and that the police forcefully pushed into a van 15 innocent

lawyers who were standing near that place. The learned counsel

stated that when he was unable to surrender the lawyers as

promised to the police, he gave back the FIR to the police and

left that place. The learned counsel contended that the police

ought not to have drawn so many policemen without the

permission of the Acting Chief Justice. By referring to the Full

Bench order dated 21.02.2009, the learned counsel contended

that the said order made it clear that the Acting Chief Justice

never gave permission to the police to enter the premises and

therefore their presence was illegal. According to the learned

counsel since the police indulged in all acts of violence during

Court hours and disrupted the proceedings on 19.02.2009 and

subsequent days, it calls for serious action of criminal contempt

against the police.

37. Mr.V.Selvaraj, learned counsel appearing for the

Additional Commissioner of Police Mr.A.K.Viswanathan, at the

outset contended that two questions arise for consideration viz.,

(i) who brought the police inside and (ii) who ordered lathi

charge. He contended that the Commissioner of Police wants to

39

escape by shifting the blame on other junior officers. According

to him, the Commissioner of Police misused the discussion that

took place on 18.02.2009, in the Chambers of the Acting Chief

Justice along with other officers. He also contended that it was

the Commissioner of Police who organized the police force in the

forenoon as well as the additional force in the afternoon. The

learned counsel pointed out that after Dr.Subramaniam Swamy

left at 11.30 am, the police force was shifted to B-2 Police Station

but it was brought back to B-4 Police Station at 2.00 pm at his

instance. He contended that the Additional Commissioner of

Police Mr.A.K.Viswanathan entered the High Court premises only

after 3.45 pm at the instance of the Commissioner of Police and

even according to the jurisdictional Joint Commissioner of Police,

the lathi charge was ordered only by the Deputy Commissioner of

Police Mr.Prem Anand Sinha. The learned counsel contended that

when according to the learned Advocate General that after the

lathi charge, he went to Ramachandra Hospital at 3.45 pm to

appraise the Hon’ble the Chief Minister about the incident, it can

be safely held that the first lathi charge commenced at 3.00 pm

and went up to 3.30 pm, while the Additional Commissioner of

Police entered the High Court premises only at 3.45 pm. The

learned counsel pointed out that while the Acting Chief Justice

40

tried to contact the Commissioner of Police from 3.30 pm

onwards to remove the police force from the High Court premises

even at 4.50 pm, the Commissioner of Police was arranging for

reinforcement of more police force. The learned counsel by

referring to a call data furnished by the BSNL pointed out that the

Commissioner of Police was very much inside the High Court

premises at 16.27 hours i.e. 4.27 p.m. and that he alone was

controlling the force. He also referred to the complaint of the

Inspector of Police Jayakodi to point out that the Commissioner

of Police came to B-4 Police Station at 4.30 pm. The learned

counsel therefore contended that the Commissioner of Police took

charge from the Additional Commissioner of Police at 4.40 pm

inside the High Court premises and only thereafter the second

lathi charge took place.

38. Mr.P.N.Prakash, learned counsel appearing for the

jurisdictional Joint Commissioner of Police Mr.M.Ramasubramani,

at the outset stated that the said officer is extending his apology

openly and publicly without any qualms and that he is regretting

for the incident that happened on 19.02.2009. The learned

counsel also stated that the jurisdictional Joint Commissioner

admitted his presence in the morning as well as in the afternoon,

41

that he mobilized the police force and that he takes the

responsibility. He however contended that he did everything in

good faith. He also contended that for an unlawful assembly

what was required is common object and the place is not the

determinative. The learned counsel pointed out that when there

was variation of things as regards the lathi charge and since the

whole complaint has been referred to the CBI, it should be left to

the CBI to investigate and one should not go by the order of the

Full Bench dated 19.02.2009.

39. Mr.P.N.Swaminathan appearing for Mr.Sandeep Rai

Rathore, Joint Commissioner of Police (Central) submitted that

the Joint Commissioner of Police proceeded to B-4 Police Station

as directed by the Additional Commissioner of Police on

19.02.2009 and that he was not commanding any one. He also

claims that he was not involved in any of the incident and that he

was also not consulted by any one. The Joint Commissioner of

Police in his affidavit however stated that after the arrest of the

advocates, the police ought not to have remained in the High

Court premises. He also tendered an unconditional apology for

what had happened inside the High Court premises.

42

40. Mr.P.S.Raman, the learned Advocate General appearing

for the State including the Chief Secretary, Home Secretary and

Director General of Police prefaced his submissions by stating

that he is addressing the Court in his position as a leader of the

Bar, as the Advocate General for the State, as well as, as an

yeoman party in the suo motu Public Interest Litigation. While

making his submissions, the learned Advocate General stated

that the State does not want to take sides and that if the Court

finds any one responsible for the unsavory incident that

happened on 19.02.2009, the State will take appropriate action

against the concerned officer as directed by this Court. While

deploring about the recent trend that is prevailing amongst the

lawyers in resorting to boycott for all and sundry, the learned

Advocate General lamented that while carrying on a dignified

profession as lawyers such absenteeism from the Court by

lawyers, whatever be the reason, would cause serious prejudice

to the litigant public apart from causing hindrance to the course

of justice. It also to a very great extent results in degradation of

the lawyers’ profession in the eyes of the public at large. The

learned Advocate General with heavy heart submitted that time

has come where the Bar associations representing the lawyers

should seriously think about any other method by which they can

43

raise their protest instead of absenting the Courts which is not

liked by the litigant public and for that matter the public at large.

41. We fully endorse the views of the learned Advocate

General and here and now we want to state that there is every

justification in what is stated by the learned Advocate General in

the interest of the members of the Bar and the litigant public as

well as the working of the Court. Therefore time has come that

the leaders of the Bar should stand up to the occasion and guide

the members of the Bar not to resort to boycott of Courts which

is also held to be not permissible by the Hon’ble Supreme Court

in the decision reported in (2003) 2 SCC 45 (Harish Uppal

(Ex-Capt.) Vs. Union of India).

42. As regards the presence of the police inside the Court,

the learned Advocate General contended that the High Court

campus is a public place where several Judicial Forums viz., High

Court, Tribunals, Small Causes Court, City Civil Court and other

judicial forums are located apart from the fact that people throng

the premises since the old light house is situated in the High

Court premises which is one of the tourist spot for the traveling

public. The learned Advocate General while drawing our

44

attention to the Division Bench decision reported in 2007 (2)

MLJ 456 (The Registrar General, High Court of Madras

Vs. State of Tamil Nadu) contended that the Division Bench

has directed the State to provide necessary security arrangement

pursuant to which by G.O.Ms.No.395, dated 20.03.2007, the

State Government passed orders in compliance with the orders of

the Division Bench. The learned Advocate General also submitted

that after the terrorist attack of the Parliament House, by virtue

of the directives of the Union of India, high security arrangement

was necessitated which resulted in the constitution of the

Security Committee in the High Court itself consisting of sitting

Judges of this Hon’ble Court apart from high level police officers

and law officers, which Committee decided to increase the

strength of the police personnel from the present level of 252 to

451. The learned Advocate General pointed out that on

19.02.2009, apart from 130 police personnel, who were already

present in the Court, additional strength of 292 was drawn in all

422 police personnel for security purposes. The learned Advocate

General therefore contended that by virtue of Section 149 Cr.P.C.

and the above security arrangement made, the presence of the

police personnel inside the Court campus on 19.02.2009, cannot

be held to be against law. The learned Advocate General also

45

contended that there is no Constitutional provision or statutory

stipulations providing for immunity from any security system or

police presence to the High Court premises. Lastly the learned

Advocate General contended that on 19.02.2009, after the

incident, he met the Hon’ble Chief Minister who was ailing and

taking treatment in the Hospital and around 6.00 pm to 7.30 pm

the Hon’ble Chief Minister sent a fax message to the Hon’ble

Acting Chief Justice expressing his concern and regretted for

whatever that happened in the High Court premises and

expressed his preparedness to abide by whatever direction that

the Court may issue to set right the disaster that had taken

place. It was therefore contended that in pursuance of such

assurance extended by the Hon’ble the Chief Minister, the Chief

Secretary, Home Secretary and the Director General of Police

came to the Hon’ble Acting Chief Justice chamber and agreed for

whatever course of action that was directed to be made by the

Full Bench in its order dated 19.02.2009. The Advocate General

then contended that the State Government also constituted an

independent Committee in G.O.Ms.No.229, dated 09.03.2009,

appointing Dr.N.Sundaradevan, I.A.S., to enquire into the police

excess and fix the responsibility on the concerned police officer

and if he finds any one guilty, the State will take necessary action

46

against the concerned persons. The learned Advocate General

therefore contended that the State cannot be faulted on any

account in so far as the incident that took place on 19.02.2009 is

concerned and that it is prepared to abide by whatever direction

that may be issued by this Court.

43. We also heard Dr.Rajeev Dhavan, learned senior

counsel who appeared for 12 of the police officers other than

Mr.A.K.Viswanathan, the then Additional Commissioner of Police,

Mr.M.Ramasubramani, jurisdictional Joint Commissioner of Police

and Mr.Sandeep Rai Rathore, Joint Commissioner of Police

(Central).

44. The submissions of Dr.Rajeev Dhavan was fourfold.

According to him the questions which are required to be

considered are (i) whether the presence of the Police in the High

Court can be faulted? (ii) what value one can attach to the report

of Mr.Justice B.N.Srikrishna? (iii) was there any consistency in

the evidence placed before this Court on behalf of the lawyers, on

the other hand they were contradictory in nature and (iv) was

there a police conspiracy at all? Lastly the learned counsel also

made his submissions as to the relief that can be granted in these

proceedings.

47

45. Elaborating his submissions, the learned senior counsel

contended that the entry of the police into the High Court

premises on 19.02.2009, was imminent in the light of the threat

perception to men and material. The learned senior counsel

therefore contended that the presence of the police force inside

the High Court campus cannot be decried. According to him the

arrest of the lawyers was not at the initiative of the police but at

the instance of those lawyers themselves who came forward to

surrender.

46. As far as the efficacy of the report of Mr.Justice

B.N.Srikrishna, it was pointed out to the learned senior counsel

that in as much as the whole gamut of the case with all details

and particulars having been placed before the Court, there is no

need to be guided by the report of Mr.Justice B.N.Srikrishna

which is only an interim report and therefore this Court can

independently assess and analyse the various materials and draw

its own conclusion. Therefore, the learned senior counsel did not

address any argument based on Mr.Justice B.N.Srikrishna’s

report. In fact when Mr.S.Prabhakaran, representing the lawyers

wanted to make comments upon the report of Mr.Justice

48

B.N.Srikrishna, this Court made it clear to the learned counsel

that it wanted to assess the whole issue and reach its own

conclusion independently and therefore, there was no need to

refer to Mr.Justice B.N.Srikrishna’s report in the course of the

submissions by any one.

47. In fact the Hon’ble Supreme Court in its order dated

06.03.2009, while sending the interim report of Mr.Justice

B.N.Srikrishna to the State Government as well as to this Court

left it to the discretion of this Court to deal with the said report.

Dr.Rajeev Dhavan therefore did not deliberate upon the report of

Mr.Justice B.N.Srikrishna in the course of his submissions.

48. As far as the scope of any disciplinary action against

any of the police officers whom if this Court ultimately finds

responsible for the gory incident that took place on 19.02.2009,

the learned senior counsel contended that such a course of action

would be governed by Articles 309 to 311 of the Constitution and

the holding of enquiry including suspension can be dealt with only

by an appropriate disciplinary authority in accordance with the

Constitutional provisions and the rules framed thereunder.

49

49. As far as the scope of initiating any contempt action

against any of the officers based on the ultimate conclusion of

this Court, the learned senior counsel contended that it would be

too wide a proposition, for the counsel representing the lawyers,

to claim immunity or privilege for the High Court premises in

comparison with the Parliament or the Assembly. The learned

senior counsel would however state that the Court will have to

analyze the issue of contempt by examining the same from the

point of view of the “intent” of the concerned police officers but

not by mere excessive action or other misdeeds.

50. On the relief aspect, the learned senior counsel fairly

submitted that whomsoever suffered any physical injury or other

damages should be compensated by considering payment of ex

gratia instead of attempting to measure the actual suffering or

damages.

51. Out of 12 police officers for whom the learned senior

counsel made his submissions, he pointed out that Messers

A.M.S.Gunaseelan, Joint Commissioner of Police (South),

T.S.Anbu, Deputy Commissioner of Police (Anna Nagar) and

C.Sridhar, Deputy Commissioner of Police (Adyar) arrived at the

scene of occurrence only at 5.00 pm and therefore, by no stretch

50

of imagination they can be held to have had any role to play. As

far as Mr.R.Thirugnanam, Deputy Commissioner of Police (Traffic-

North) and Mr.K.Joshi Nirmal Kumar, Deputy Commissioner of

Police (Traffic-South) are concerned, the learned senior counsel

pointed out that they were actually in charge of traffic

arrangements and therefore their presence did not have anything

to do with the incident of lathi charge, in as much as they had no

role to play on that aspect and that merely because they were

officers and they were present at the time of occurrence they

cannot be roped in. The learned senior counsel also pointed out

that there was no specific allegation against those officers as to

any specific act of overt act on their part. According to the

learned senior counsel, the test is as to whether any police officer

committed breach of statutory duty and even going by the stance

of the Government, the officers whomsoever responsible alone

should be punished.

52. The learned senior counsel submitted that there was

absolutely no basis for the allegation of conspiracy leveled

against either the Commissioner of Police or other police officers.

According to him, when the police officers carried out their duties

out of necessity for maintaining any law and order situation and

public tranquility they should be given full protection.

51

53. The learned senior counsel by drawing the attention of

this Court to various G.Os. and other steps taken by the Court

including arrangements made by the Security Committee headed

by senior Judges of this Court for the protection of the High Court

premises and also the various criminal cases pending against

various lawyers, numbering more than 90 submitted that there

was a real threat perception that was prevailing which reached its

peak on 19.02.2009 and therefore the presence of police in large

number was necessitated inside the premises. He also contended

that the intelligence report also reminded of the serious threat

perception prevailing and that the police acted based on such

intelligence report and the same cannot be faulted on the footing

that they did not obtain the prior permission of the Registry. He

also relied upon an earlier Division Bench decision of this Court

reported in (2007) 2 MLJ 1 (Madras High Court Advocates

Association Vs State of Tamil Nadu) and the judgment of the

Hon’ble Supreme Court reported in (2003) 2 SCC 45 (Harish

Uppal (Ex-Capt.) Vs. Union of India). He also made a

reference to the incident that took place inside the Court Hall on

17.02.2009, when some 15 advocates behaved in an unruly

manner inside the Court Hall and contend that such activities of

52

the lawyers contributed more to the threat perception for the

police to act in the campus on 19.02.2009. By referring to the

various incidents that took place in and around the High Court

campus at the instance of the lawyers, the learned senior counsel

contended that the threat perception was very much in existence

for the police to act on 19.02.2009 and this Court should not

substitute its own opinion about the threat perception assessed

by the police authorities. The learned senior counsel however

came forward to tender an unconditional apology on behalf of all

the police officers for whatever happened on 19.02.2009.

According to him as there was no mala fide motive there would

be no scope for proceeding against the police officers for

contempt. He also contended that on a combined reading of

Section 52 IPC and Section 132 of Cr.P.C., it can be seen that

unless there is want of good faith, the conduct of the police

officers and other persons will not warrant any action against

them either by way of disciplinary proceedings or by way of

criminal proceedings or by way of contempt. According to him

there was no reasonable ground for proceeding against them.

The action of the police at best can be construed as an error of

judgment and not an intentional onslaught unleashed against the

lawyers as contended by the lawyers. The learned senior counsel

53

strenuously contended that the attempt of the lawyers to brand

the police action on 19.02.2009, by calling it as an “Operation

Black Coat” has absolutely no basis and to call it the least it was

a bogus allegation.

54. The learned counsel also contended that in any event

the incident that happened at 5.00 pm cannot be attributed to

the Commissioner of Police and he cannot be proceeded against

either by way of disciplinary action or for contempt.

55. The learned senior counsel contended that the Court

can consider payment of any ex gratia either by itself or by

referring to a retired Judge of this Court to determine.

56. The learned senior counsel strongly condemned the

political parties attempting to use the High Court premises as

their propaganda platform and that the lawyers should not give

scope for any one to enter the campus with that intent.

According to him the root cause for all the problems was not the

presence of the police inside the campus but the political

involvement of the lawyers and their activities inside the campus.

54

57. The learned senior counsel also pointed out that the

State Government has taken the necessary initiative by

appointing One Man Committee headed by Dr.N.Sundaradevan,

I.A.S., to enquire into the matter in order to ascertain as to any

one responsible for the gory incident that took place on

19.02.2009 and that the lawyers can cooperate with the said

Committee to pin down the person responsible. It was further

contended that since as per the direction of this Court, the CBI

has been entrusted with the task of investigation, this Court

should permit such agency to carryout its task in accordance with

law and there cannot be any parallel enquiry by this Court in this

proceeding. According to him what can be done by way of

judicial process cannot be done by way of pre-emptive measure,

which will amount to anticipatory mala fides. The learned

counsel therefore contended that there was no basis for placing

the officers under suspension and the suspension order by the

Full Bench dated 18.03.2009, should be withdrawn.

58. The learned senior counsel submitted that if for any

reason this Court concludes that initiation of contempt

proceedings is warranted, the same need not be ordered in as

much as the respondents whom he represent offer unconditional

55

apology in advance and that their apology should be accepted

and they should be relived.

59. Mr.R.Muthukumarasamy, learned senior counsel

representing the High Court placed before this Court a report filed

by the Registrar General which states that due to the incident

that occurred on 19.02.2009, extensive damage was caused to

Court buildings and vehicles and that the Court proceedings were

disrupted after 4.00 pm because of the gory incident, glass

pieces were strewn all over the premises and the damaged

vehicles were parked in haphazard manner and therefore the

High Court and the Subordinate Courts inside the High Court

campus remain closed initially on 20.02.2009 and thereafter on

23.02.2009 and 24.02.2009. The Court campus was stated to

have been subsequently cleaned and the Courts in the State

commenced functioning only on 25.02.2009, though the boycott

by the advocates continued till 20.03.2009. In the said report

the Registrar General has also furnished the details about the

compensation paid to the vehicle owners as well as for the

personal injuries suffered by the advocates and others apart from

the medical expenses incurred for the injured. Annexures 1 to 3

has also been filed along with the report furnishing the details of

56

extent of damages caused to the vehicles and the details of

compensation awarded for personal injuries.

60. The learned senior counsel by referring to Article 215 of

the Constitution submitted that the power of the High Court is

plenary, as superior Court of Records. He also contended that

whether or not grant of permission by the Registry is required for

the police to enter, the question is can the police exceed their

limit inside the Court premises, which would call for any stern

action. The learned senior counsel referred to the decisions of

the Hon’ble Supreme Court reported in AIR 1967 SC 1 (Naresh

Shridhar Mirajkar Vs. State of Maharashtra) and AIR 1993

SC 1014 (M.V.Elisabeth Vs. Harwan Investements and

Trading Private Limited, Goa) in the course of his

submissions.

61. In their reply argument Mr.S.Prabarkaran and

Mr.R.C.Paul Kanagaraj contended that this Court should proceed

against the police officers straightaway for contempt and impose

punishment and no further opportunity should be extended to

them.

57

62. Ms.R.Vaigai, in her reply submissions, by relying upon

the decision reported in 1898 ILR Mds 21 (Queen-Empress

Vs. Subba Naik and Others) submitted that even prior to the

coming into force of the Constitution, this Court has taken the

view that whomsoever participate in police excess either on their

own volition or out of their official necessities, they are

compositely responsible and should be punished for their excess.

63. The learned counsel pointed out that the various

submissions made on behalf of the police officers only referred to

the law and order situation and there was no justifiable ground

demonstrated for violation of any public order in order to invoke

Chapter X which contains Sections 129 to 136 of the Cr.P.C.

warranting lathi charge on the ground of unlawful assembly. In

other words, the learned counsel would contend that mere law

and order situation cannot be a ground for ordering lathi charge

and to justify lathi charge to quell the mob, there should be

public tranquility. The learned counsel by referring to the

decisions of the Hon’ble Supreme Court reported in AIR 1966 SC

740 (Ram Manohar Lohia Vs. The State of Bihar) and 1970

(3) SCC 746 (Madhu Limaye Vs. Sub-Divisional Magistrate,

Monghyr) contended that the police completely misdirected

58

themselves in a circumstances where there was admittedly only

law and order situation and not public disorder or a situation

calling for such action on the ground of safeguarding the

sovereignty of the State. According to the learned counsel there

was total suppression of truth by the highest functionaries of

police and therefore, in order to hold a proper and fair enquiry,

suspension of the police officials is imminent. According to her,

the claim for ex gratia payment as claimed in W.P.No.3705 of

2009 should be considered by this Court and direct the State to

order such payment.

64. This proceedings including the various writ petitions and

criminal original petitions filed by the lawyers as well as party-in-

persons, which stems from the suo motu writ petition initiated by

this Court cannot be strictly called as an adversarial litigation.

Nevertheless, having regard to the magnitude of the occurrence

that took place on 19.02.2009, there were allegations and

counter allegations at the instance of the lawyers on the one side

and the police on the other side, which made the present

proceeding appear as though it was adversarial in nature. But in

our considered opinion, this Court has to make all endeavors to

actively steer for a search in order to ascertain the truth in as

59

much as, as against the rival contentions of the parties who

appeared before us, this Court is of the view that the issue

concerns the prestige/stature of the institution viz., judiciary and

the steps to be taken in future to protect the institution from any

onslaught and thereby ensure that the confidence reposed in this

institution by the public at large is not in any way impaired.

Therefore in our view, the whole proceeding is a blend of

adversarial and inquisitorial in nature. We say so in as much as

the adversarial system places a premium on the individual rights

of the accused, whereas the inquisitorial system places the rights

of the accused secondary to the search for truth.

65. With this prelude as to the approach to be made in this

proceeding, when we examine the various facts placed before us,

we find that we are obligated upon to examine the following

issues for consideration viz.,

(i) Whether the premises of judicial

institutions in particular the High Court

campus is comparable to the premises of the

Parliament and the regulations providing

immunity from any attack from any quarters ?

60

(ii) What was the root cause for the

unsavory incident that took place on

19.02.2009, inside the High Court campus and

who was responsible for the ghastly incident

to take place on 19.02.2009 ?

(iii) If so, who are the concerned persons

to be blamed ?

(iv) If the responsibility can be fixed on

any particular individual or officer what is the

consequential action to be taken?

(v) Ghastly incident apart, what are the

steps to be taken in future to ensure that no

such incident recur again ?

(vi) In the event of some one being held

responsible for the ghastly incident that took

place on 19.02.2009, whether necessary

contempt action is called for ?

While examining the various contentions raised by the parties, as

far as possible, we are taking into account the pleadings and the

documents and other materials placed before us at the instance

of the State and the Police Officers.

61

QUESTION Nos.(i), (ii) and (iii) :-

66. Questions (i), (ii) & (iii) can be examined together. For

that purpose, we have before us the affidavit of lawyers and the

police officers. The sum and substance of the plea of the lawyers

to be briefly stated are that they were on boycott from

29.01.2009, to support the Sri Lankan Tamils (not the LTTE);

that as part of their agitation, they went on procession, fasting,

etc., that there was an incident on 17.02.2009, inside the Court

Hall No.3, in which one Dr.Subramaniam Swamy was

manhandled and on whom eggs were thrown; that with reference

to the said incident, a case was registered against 15 advocates;

that on 19.02.2009, at the instance of those 15 advocates who

have been arrayed as accused in a criminal case registered

against them, Mr.Karuppan, led them to B-4 Police Station

around 2.30 pm; that at their instance a counter case was

registered in Crime No.14 of 2009 as against Dr.Subramaniam

Swamy under the Scheduled Caste and Scheduled Tribes

(Prevention of Atrocities) Act; that the Advocate/Accused action

who initially wanted to surrender before the police on their own,

later, after getting a copy of the FIR in Crime No.14 of 2009,

resiled from their stand and were not inclined to surrender and

62

subsequently, took the stand that Dr.Subramaniam Swamy

should be arrested first if they were to surrender. Mr.Karuppan

expressing his inability to keep up his word, stated to have

returned back the FIR copy of Crime No.14 of 2009 and walked

away.

67. The VCD placed before the Court by

Mr.A.K.Viswanathan, Additional Commissioner of Police, which is

marked as CD-R2 reveals that it was around 15.36 hours tense

situation mounted near the B-4 police station and it was at that

point of time, the armed policemen who were gathered in

sufficient number at that spot pushed in some advocates into the

police van and after taking into custody of about 15 lawyers, the

police van left the campus. Closely thereafter, there was pelting

of stones on either side which ended in a lathi charge by the

police around 3.40 pm.

68. Thereafter the advocates from two different directions

were posing a challenge to the police and the police repeated the

lathi charge apart from beating the lawyers in single or in

groups. The vehicles parked inside the campus were also

damaged by the police personnel. After 4.00 pm it looked as if it

63

was a battleground in as much as the police were seen on a

hitting spree as and when groups of advocates were posing a

challenge to them from different directions and in that process

the police in fact entered the Small Causes Court and the Library

Section of the Law Association, Madras High Court Advocate

Association and also the annexe building of the High Court. At

one point of time such charging policemen were even seen near

the Hon'ble Chief Justice Chamber.

69. In the meantime, the Acting Chief Justice who was

informed about the lathi charge by the police around 3.40 pm

tried to contact the Commissioner of Police in order to remove

the police personnel from the campus as the permission of the

Court was not obtained by the police in order to either make the

arrest or take any other action under the guise of maintaining law

and order. Though the Commissioner of Police does not dispute

the time of the Hon'ble Acting Chief Justice directing him to meet

him in his Chambers and stop the movement of police force

inside the campus, took the stand that he was not able to meet

the Hon'ble Acting Chief Justice and that he withdrew the police

only after 5.00 pm. After withdrawal of the police, B-4 police

station was set on fire and some of the properties were also

64

burnt in the said fire which took place between 5.00 to 5.30 pm,

when the fire service personnel approached to put down the fire,

the same was resisted and once again the police resorted to

another lathi charge at 5.35 pm to quell the mob and thereafter

the fire in the B-4 Police Station was put down.

70. The Commissioner of Police went to the Chambers of

the Hon'ble Acting Chief Justice along with the Chief Secretary,

Home Secretary and the Director General of Police. In the

Chambers of the Hon'ble Acting Chief Justice, a Full Bench was

constituted and an order came to be passed by initiating a suo

motu writ proceedings in W.P.No.3335 of 2009. In the said

order, after narrating briefly the incident and the havoc caused to

the men and material, the Full Bench after hearing the high level

officers of the State namely the Chief Secretary, the Home

Secretary, the Director General of Police and the Commissioner of

Police directed the matter to be entrusted with the CBI as agreed

to by the Chief Secretary and the CBI was directed to register a

case treating the order passed by the Full Bench as First

Information Report.

65

71. The report of the Registry disclose that in the lathi

charge that took place on 19.02.2009, as many as 95 advocates,

20 staff and 24 others were injured, who suffered major as well

as minor injuries apart from the damages caused to 64 four

wheelers, 67 two wheelers, 3 bicycles including a Judges’ van

parked inside the premises. Damages were also caused to library

books, bookracks and also a TV kept in the Law Association of

the Small Causes Court.

72. When we examine the above narration of events and

find out as to who ignited the spark, the direct information is

available in the affidavit of the jurisdictional Joint Commissioner

of Police. In his affidavit dated 07.09.2009, he states that on

19.02.2009, he along with the Additional Commissioner of Police

Mr.A.K.Viswanathan arranged for the bandobust in the High Court

campus since there was intelligence information that on that date

Dr.Subramaniam Swamy who is scheduled to visit the High Court

to attend as party-in-person before a Division Bench presided

over by the Hon'ble Acting Chief Justice as well as the Court

presided over by Hon'ble Mr.Justice S.Manikumar, there was

likelihood of an attack on him. According to the jurisdictional

Joint Commissioner of Police, Dr.Subramaniam Swamy as

66

scheduled came to the High Court, that the police bandobust was

neatly carried out and he also left the High Court campus by

around 11.30 am. The Joint Commissioner of Police is stated to

have withdrawn the additional police force to B-2 police station

and was involved in debriefing the force. At that point of time he

would state that Mr.Vijyandran one of the accused in the

occurrence that took place on 17.02.2009, in Court Hall No.3

approached him and wanted the list of names of other accused in

order to enable them to surrender on their own. The

jurisdictional Joint Commissioner of Police would claim that he

wanted to make use of the voluntary approach made by that

accused and furnished the list of names and to accomplish their

surrender, proceeded back to B-4 Police Station located inside

the High Court campus along with his force. In fact the approach

was stated to have been made by Mr.Vijayendren at about 12

noon. The rest of the incident about the group led by

Mr.Karuppan and others was after 2.00 pm.

73. When we examine those facts stated by the

jurisdictional Joint Commissioner, we feel that we should also

keep in mind what was the stand of the jurisdictional Joint

Commissioner of Police as well as the Additional Commissioner of

67

Police on this aspect. In the affidavit of the Additional

Commissioner of Police Mr.A.K.Viswanathan, it is stated that he

was also assigned the task of bandobust to be provided to

Dr.Subramaniam Swamy in the morning session and that after

Dr.Subramaniam Swamy left the High Court premises, he also

left for his office at Egmore. That around 2.45 pm the

Commissioner of Police directed him to proceed to the High Court

and oversee the process of surrender of the accused involved in

the occurrence dated 17.02.2009. According to

Mr.A.K.Viswanathan, he was not in favour of such a move of the

surrender offered by the advocates that too in the High Court

premises, therefore he expressed his viewpoint that it would not

be prudent for the police to accept their offer of surrender at that

point of time that too inside the premises as it may ultimately

result in very serious consequences. Mr.A.K.Viswanathan also

stated in his affidavit that in spite of his viewpoint expressed to

the Commissioner of Police, the Commissioner of Police insisted

that the process of surrender should be proceeded with and

Mr.A.K.Viswanathan should remain in the High Court premises

along with the jurisdictional Joint Commissioner.

Mr.A.K.Viswanathan would therefore state that the Commissioner

of Police being his superior officer, he had to obey his command

68

and therefore he waited for his further directions by remaining at

B-2 police station and went inside the High Campus through

Esplanade entrance by around 3.45 pm. He would further state

that as directed by the Commissioner of Police, the first lathi

charge took place around 3.56 pm and the subsequent lathi

charge also took place as directed by the Commissioner of

Police. The jurisdictional Joint Commissioner of Police would

state in his affidavit that after Mr.Karuppan expressed his

inability to surrender the accused advocates as promised, the

police took into custody 15 persons without ascertaining as to

whether they were the real accused in the occurrence that took

place on 17.02.2009, that since thereafter, there was a threat to

the B-4 police station, the police force continued to remain near

the B-4 police station and since the advocates mob went out of

control, the jurisdictional Deputy Commissioner of Police Mr.Prem

Anand Sinha ordered for lathi charge at around 3.55 pm. He

would state that subsequently such lathi charge was repeated at

4.27 pm and it went on till 5.00 pm, when the Commissioner of

Police came to the spot and withdrawn the police force to B-2

police station.

69

74. The Commissioner of Police in his version would state

that after receiving the information about the tension that

mounted inside the premises, he proceeded to the High Court

from his Egmore Office and that he could reach the B-2 Police

Station only around 16.03 hours and since he was also attending

to the traffic congestion and giving directions to other police

personnel in the light of the Assembly Session in progress, he

could reach the actual spot of the High Court only by 5.00 pm.

Though he would say he was contacted by the Hon'ble Acting

Chief Justice who directed him to withdraw the police from the

High Court campus, he could not enter the campus itself as the

gates were all closed and he could enter only by 5.00 pm through

Esplanade gate. He would further state that after he reached the

spot, he immediately gave directions to withdraw the police and

that the lathi charge was ordered by the Additional Commissioner

of Police Mr.A.K.Viswanathan in consultation with other officers

viz., the Joint Commissioner of Police, the Deputy Commissioner

of Police and others.

75. Apart from the above version about the incident, as far

as the necessity for mobilizing additional police force into the

campus on 19.02.2009, is concerned, while the Additional

70

Commissioner of Police would state that the same was

necessitated initially to provide bandobust to Dr.Subramaniam

Swamy, the Commissioner of Police mobilized such additional

force at different times, based on his own assessment of the

situation.

76. At this juncture, it will also be worthwhile to refer to

statutory documents namely the First Information Report (FIR) in

Crime No.15 of 2009 dated 19.02.2009. The said FIR was

registered at 19.20 hours on 19.02.2009 and the complainant is

the Inspector of Police of B-2 Police Station. The date of

occurrence has been noted as 19.02.2009 and the duration was

stated to be from 14.30 hours to 18.00 hours. As per the said

FIR registered with the B-4 police station, the relevant facts that

could be gathered are as under:

(a) On 19.02.2009, armed police,

commando guards were drawn into the

High Court campus along with higher

officials and that the complainant was also

present on security duty.

(b) At the instance of the lawyers led

by Mr.Karuppan, Crime No.14 of 2009 was

registered under Section 3(1)(x) of SC/ST

71

Prevention of Atrocity Act read with

Section 506 (ii) IPC against

Dr.Subramaniam Swamy and Radha

Mohan.

(c) After the registration and

furnishing of copies of the FIR since the

lawyers raised slogans, the police officials

caught hold of 4 to 5 lawyers involved in

the earlier case and put them in the police

vehicle since they refused to surrender

apart from using vulgar abuses towards

the police.

(d) The lawyers who were assembled

there pelted stones, shouted slogans and

hurled uncultured and uncivilized abuses

and retrieved those lawyers who were put

into the police van.

(e) By the stone throwing of the

lawyers, the Sub-Inspector of Police, the

Inspector of Police and many male and

female police personnel were injured and

one Police Head Constable fainted.

(f) The lawyers around 150 in

number continue to throw stones opposite

the B-4 Police Station from a distance and

72

caused damages to two wheelers and four

wheelers and the time was around 3.30

pm.

(g) At that point of time, the Deputy

Commissioner of Police (Flower Bazaar

Range) after giving necessary warning to

disperse, directed the police to fire teargas

shells to disperse the crowd and that

thereafter he also directed the lathi charge

since the crowd did not disperse but

continue to pelt stones.

(h) Mr.Justice A.C.Arumugaperumal

Adityan who came to the spot was injured

by a stone pelted by the lawyers and he

was put in a separate vehicle and sent to

the hospital and the time was 4.30 pm.

(i) At 4.30 pm the Commissioner of

Police also came there and directed the

policemen and higher officials to return

back to B-2 Police Station and that he

would inform the Hon’ble Chief Justice of

the High Court about the incident.

Accordingly all the policemen went near

the B-2 Esplanade Police Station.

73

(j) Thereafter the lawyers who had

formed an unlawful assembly set fire to the

B-4 Police Station and also to the

Government properties namely two four

wheelers and five two wheelers parked in

front of the B-4 Police Station which were

worth about 4 to 5 lakhs. The police

therefore entered the High Court premises

once again for chasing the lawyers with

lathi and also by beating by way of self

defence in which some of the lawyers and

more than 60 policemen and higher

officials sustained bleeding injuries.

(k) Therefore the complainant

wanted appropriate action to be taken

against Messers Karuppan, Rajanikant,

Vijayendran, Pughazhendi and Jeyakumar

who were in the forefront of the

disturbance as well as the lawyers who

accompanied them in the criminal act.

77. The Commissioner of Police filed a report before the Full

Bench on 18.03.2009. In the said report, the Commissioner of

Police has stated that along with the jurisdictional Joint

Commissioner of Police and the jurisdictional Deputy

Commissioner of Police, 147 policemen including quick reaction

74

team were mobilized in connection with the visit of

Dr.Subramaniam Swamy; that at 11.30 am, Dr.Subramaniam

Swamy left the Court premises; that after the police force moved

to B-2 Police Station for debriefing; advocates Mr.Vijendran and

Mr.Kunaraja approached the officer and asked for the list of

accused who were involved in the incident inside the Court Hall

on 17.02.2009; that at 2.10 pm Messers Karuppan, Rajnikanth,

Vijendran, Pughazhendi and Jayakumar along with large number

of advocates went to the B-4 Police Station and insisted for

registration of a case against Dr.Subramaniam Swamy as a pre

condition for surrender; that at 2.30 pm, he had the information

that trouble was brewing, whereupon he sent the Additional

Commissioner of Police Mr.A.K.Viswanathan along with the Joint

Commissioner of Police (Central) and some other officers with

reinforcement of 118 men and officers in all 265 men and officers

included special action group which is part of the armed reserve

police with special training. He also stated that around 3.45 pm

FIR copy was given to the advocates who thereafter insisted for

arrest of Dr.Subramaniam Swamy before arresting them. Even

Mr.Karrupan’s persuasion did not yield any result. Thereafter,

the mob started pelting stones at the police in which some

policemen were injured.

75

78. As per the report 15 advocates were apprehended and

sent in a police van to Thousand Lights Police Station. In

paragraph 16 of the said report, the Commissioner of Police

would say that to protect the life and property of the police

personnel, the public and others, the Additional Commissioner of

Police who was the senior most officer present at the spot after

consulting the other senior officers took a collective decision to

declare the assembly as unlawful and disperse it. Based on his

directions, the Deputy Commissioner of Police (Flower Bazaar

Range) took the measures to disperse the unlawful assembly by

using minimum force. This was stated to have taken place at

4.00 pm. He also stated that some additional reinforcement

along with Joint Commissioner of Police (South), Deputy

Commissioners of Police from Adyar, Anna Nagar, T.Nagar and

Mylapore were also rushed in to control the situation and the

total strength was 291 men and officers. He would further state

that he was directed by the Hon’ble Acting Chief Justice to

withdraw the police and that he entered the High Court Police

Station at around 5.00 pm and also went around the High Court

campus to assess the situation and get first hand information as

to what happened in the High Court campus. According to him,

76

at around 5.30 pm the entire strength was withdrawn from the

High Court premises to B-2 Esplanade Police Station.

79. The Commissioner of Police in paragraph 19 of the said

report would state that around 5.35 pm as the B-4 Police Station

was set on fire and the fire brigade was not allowed to put down

the fire, as Commissioner of Police cum Additional District

Magistrate and after consulting all the senior officers present on

the spot, he took the collective decision to disperse the unlawful

assembly and after the fire was put down, he withdrew the police

force to the Esplanade Police Station.

80. He stated that he reached the Chambers of the Hon’ble

Acting Chief Justice at 6.40 pm along with the Director General of

Police, Home Secretary and the Chief Secretary. According to

him in the clash 120 police personnel including fire service

personnel, one Hon’ble Judge, 77 advocates, 10 Court staff, 4

press persons, 3 law students and 7 others were injured. Along

with the report, the Commissioner of Police also produced the

manpower chart showing the presence of police strength in B-4

Police Station area on 19.02.2009, drawn at different times. He

also produced the list of police officers present in the High Court

between 3.00 pm and 5.00 pm.

77

81. The Commissioner of Police addressed a letter to the

Registrar General of this Court on 17.02.2009, wherein, he after

referring to the assault by a group of unruly advocates on

Dr.Subramaniam Swamy and other police personnel with eggs

and hands inside the Court Hall, sought for the concurrence of

the Registrar General to register a criminal case and set the

criminal law in motion, since the incident happened inside the

High Court premises. In the said letter itself he has referred to a

complaint already made by the Assistant Commissioner of Police,

High Court range.

82. The Registrar General sent a reply dated 18.02.2009,

stating as under:

“I am to state that under law, the

concurrence of the Registry is required to

register a criminal case but police should

do it on its own, in view of the fact that

already a complaint is preferred by

Mr.M.P.R.Kader Mohideen, Asst.

Commissioner of Police, High Court Range

with the High Court Police Station.”

There seems to be a typing mistake in the second sentence were

the word ‘not’ after the expression ‘concurrence of the Registry is

(not) required’ seems to have been omitted to be typed.

78

83. Therefore while the Commissioner of Police wanted the

concurrence to register a criminal case, the Registrar General

made it clear that the police should register the criminal case on

its own.

84. Keeping the above facts in mind when we find the

answer for Question No.(ii), at the outset, we are of the view that

the whole ghastly incident could have been avoided if the police

personnel headed by the Commissioner of Police had applied their

prudence after thoroughly analysing the various factors past as

well as the present that happened upto that date. The conduct of

the police personnel in having provided necessary bandobust in

the light of appearance of Dr.Subramaniam Swamy in two

different matters in the High Court on 19.02.2009, cannot be

faulted.

85. It cannot be disputed that there was a high level of

threat perception to Dr.Subramaniam Swamy and therefore it

was the duty of the State police to ensure that no harm was

caused to him at the time of his visit to the High Court premises

in connection with certain litigations in which he was involved. In

79

fact having regard to the high level bandobust arranged,

Dr.Subramaniam Swamy could transact his business and leave

the Court campus at 11.30 am without any hindrance. After he

left, the jurisdictional Joint Commissioner of Police also withdrew

the extra police force drawn for that purpose to B-2 Police Station

for debriefing.

86. The whole trouble started when two advocates by name

Mr.Vijendran and Mr.Kunaraja approached the Joint

Commissioner of Police and stated that 15 advocates who were

involved in the incident on 17.02.2009, inside the 3rd Court Hall

wanted to surrender. Though the Commissioner of Police in his

letter dated 17.02.2009, stated that since the incident on

17.02.2009, happened inside the High Court premises, he needed

the concurrence of the Registry even to register a criminal case in

order to set the criminal law in motion, we wonder how having

regard to the background of the accused involved in the said

incident dated 17.02.2009, any prudent officer at the level of the

Commissioner of Police could have been lured by the offer of

voluntary surrender and that too in a smooth manner making it

so very easy for the police personnel to take them into custody.

Moreover, after the boycott which commenced on 29.01.2009,

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the advocates started attending Courts only from 19.02.2009. In

fact during the course of the boycott between 29.01.2009 and

18.02.2009, there were number of incidents which had taken

place outside the Court campus in which a Cycle shop in

Broadway was looted, a Transport Corporation vehicle was

hijacked and when some advocates were arrested, hue and cry

was made relating to their remand. In all those cases, some of

the accused amongst the 15 advocates who were involved in the

incident dated 17.02.2009, were also arrayed as accused.

87. The Commissioner of Police himself in his affidavits

dated 07.09.2009, 09.09.2009, 18.09.2009 and the report dated

18.03.2009, has descriptively stated the various alleged activities

of group of lawyers which caused concern. In such a situation as

the head of the police force of the city of Chennai when one of his

immediate subordinate officers namely Additional Commissioner

of Police is stated to have suggested to him as has been stated in

his affidavit dated 27.08.2009, that it was not prudent to arrest

the advocates in the High Court Police Station as it would create

problems, it was quite strange that the Commissioner of Police

ignored such a notable advice of an officer no less than in the

position of Additional Commissioner of Police and proceed to

81

state that when the advocates wanted to surrender, such

surrender should be allowed to take place by mobilizing the police

strength to 291 which included special task force and armed

police personnel. There is no reason why the statement of the

Additional Commissioner of Police that it is not advisable to

attempt the process of surrender inside the High Court premises

should not be accepted as true.

88. It is not the case of the Commissioner of Police that the

Additional Commissioner of Police had an axe to grind and that

he wanted to let down the Commissioner of Police by spinning

such a story. In fact when the Commissioner of Police directed

him around 14.45 hours to proceed to Esplanade Police Station

and monitor the surrender of advocates in the High Court police

station, he immediately proceeded to the Esplanade Police

Station and thereafter went to B-4 Police Station situated inside

the High Court campus. The point for consideration is that when

at least one of the high level officers could visualize the

magnitude of the problem that may crop up while allowing the

surrender to take place on the date when the advocates have

withdrawn the boycott and the advocates started attending the

Court proceedings in full strength, the Commissioner of Police

82

could have ignored his view point. The claim of the Additional

Commissioner of Police that he did advise the Commissioner of

Police not to go ahead with the surrender by the advocates inside

the High Court premises in the background of the situation that

was prevailing prior to 19.02.2009, would have been the proper

advice of any normal thinking person and more so in the case of

a high ranking police officer at the level of Additional

Commissioner of Police. In the counter affidavit filed by the

Commissioner of Police himself dated 09.09.2009, no where he

has alleged any sort of animosity or any difference of opinion that

existed between him and the Additional Commissioner of Police in

order to state that with a view to wreck vengeance on the

Commissioner of Police, the Additional Commissioner of Police

came forward with such a version in his affidavit in order to shirk

his responsibilities and that such a suggestion never emanated

from him on the fateful day.

89. A perusal of the affidavit of the Additional

Commissioner of Police Mr.A.K.Viswanathan dated 27.08.2009,

discloses that though he told the Commissioner of Police that

after the arrest of the 15 advocates and taken to the Thousand

Lights Police Station, it would atleast then be prudent to

83

withdraw the entire police force from the High Court premises,

the Commissioner of Police is stated to have insisted that the

entire force should remain in the premises and protect the B-4

Police Station. In paragraph 11 of the said affidavit, he has

stated that apart from him, the jurisdictional Joint Commissioner

of Police and the Central Zone Joint Commissioner of Police also

wanted to withdraw all the police from the High Court campus but

at the insistence of the Commissioner of Police, the entire force

had to remain inside the High Court campus. He would further

state that by around 16.00 hours, the Commissioner of Police

reached the Esplanade Police Station and since the trouble was

mounting in the High Court premises, the police force were

chasing the advocates and therefore he contacted the

Commissioner of Police for withdrawing the force to which also he

did not agree on the ground that the police station should be

protected.

90. According to him the Commissioner of Police came

inside the High Court premises with additional force numbering

more than 100 and thereafter as per his orders teargas was fired

for the first time at about 16.45 hours followed by a lathi charge.

He would then state that only at about 17.15 hours, the

84

Commissioner of Police ordered for withdrawal of the police force

near the fire station, which is also inside the High Court campus

and thereafter at about 17.45 hours, the High Court Police

Station was set on fire. The Commissioner of Police stated to

have ordered fresh lathi charge again at that point of time. The

Additional Commissioner of Police therefore stated that the

Commissioner of Police was commanding the entire operation

inside the High Court premises on 19.02.2009.

91. A counter affidavit was filed by the Commissioner of

Police on 09.09.2009 to the affidavit of Mr.A.K.Viswanathan. In

the said affidavit, the Commissioner of Police was only

attempting to throw the entire blame on the Additional

Commissioner of Police Mr.A.K.Viswanathan. As far as the police

presence upto the stage when Dr.Subramaniam Swamy left the

High Court premises is concerned, there is no contradiction. The

Commissioner of Police however deny the statement of

Mr.A.K.Viswanathan that he was contacted at 1.00 pm or that he

voiced his concern about the process of arrest of those advocates

who wanted to surrender. The Commissioner of Police however

confirmed that at about 14.15 hours when he was informed about

the arrival of advocates to surrender at B-4 police station, he

85

directed Mr.A.K.Viswanathan to proceed to B-4 Police Station to

monitor the surrender. He was also stated to have subsequently

instructed Mr.A.K.Viswanathan at about 14.45 hours to ensure

peaceful surrender of advocates on account of their new demand

of arrest of Dr.Subramaniam Swamy as a precondition. The

Commissioner of Police therefore would state that

Mr.A.K.Viswanathan as Additional Commissioner of Police was in

command from 15.30 hours onwards when the pressure mounted

inside the High Court premises at B-4 Police Station which led to

lathi charge around 16.00 hours. According to the Commissioner

of Police when the accused advocates who were to be arrested by

virtue of registration of a criminal case in Crime No.13 of 2009,

for the eggs thrown and assault incident that took place on

17.02.2009, it was well within the powers of the jurisdictional

Joint Commissioner of Police to accept the offer of surrender of

advocates and therefore there was nothing wrong in the police

force remaining inside the High Court campus and ensure their

arrest.

92. When the above sequence of events narrated by the

Commissioner of Police and the Additional Commissioner of Police

as well as that of the jurisdictional Joint Commissioner of Police

86

are analyzed, it is clear that while the Additional Commissioner

of Police would contend that the acceptance of surrender of

advocates and their arrest inside the High Court campus was not

a prudent step and that keeping the police force in large numbers

in pursuance of such arrest was also an imprudent act, the tone

and tenor of the stand of the Commissioner of Police in the

various affidavits sworn to by him does not reflect such a

thinking. On the other hand the firm stand of the Commissioner

of Police right through was what come may being an accused in a

crime, when the accused advocates came forward to surrender on

their own, irrespective of other consequence that may erupt in

the High Court campus, the police should proceed with its

determination to accept their offer of surrender and nobody can

find fault with such a step.

93. It is quite amazing to hear such a stand of the

Commissioner of Police whom according to the learned senior

counsel Dr.Rajeev Dhavan is a recipient of a gold medal in his

service and that he is presently doing his Doctorate in one of the

subjects connected with police administration. If an immediate

subordinate officer at the level of Additional Commissioner of

Police could think in a prudent way not to entertain the surrender

87

offered by the advocates which in his opinion was a design to

create a problem inside the High Court premises, we are at a loss

to understand how a police officer of such a calibre as that of the

Commissioner of Police was not able to realize the game plan and

succumb to such a move, which had resulted in a very costly

havoc and has made an indelible black mark in the history of

Judiciary which can never be condoned irrespective of as to

whomsoever or at whose instance such a situation came to be

created. It cannot be said that an officer at the level of a

Commissioner of Police could not have visualized or anticipated a

situation of the magnitude to which the issue would have blown

up when somebody offered to surrender themselves against

whom there were cases pending for serious offences of even

Section 307 IPC right from the year 2001 onwards. In fact in the

documents filed at the instance of the police as found in

Respondent Volume II at pages 167 to 259, the various criminal

cases registered with different police station between the years

2001 to 2009, where all cases in which the accused were

advocates. The said statement discloses that there were 13

cases against Mr.Vijendran, 7 cases against Pughazhendi, 7 cases

against Mr.R.Karuppan, 5 cases against Sengodi and 17 cases

against Mr.Rajani S/o Vijayakumar. Of those cases there were

88

cases in which charges were leveled under Sections 147, 323,

506 (ii) and even 307 IPC. When such overwhelming documents

disclose the pending criminal cases against some of the accused

of 17.02.2009 incident, it is strange that the Commissioner of

Police could not even visualize or anticipate any grave

consequence while accepting the offer of surrender by accused

advocates at B-4 police station. We are convinced that the

Additional Commissioner of Police Mr.A.K.Viswanathan's stand

that he advised the Commissioner of Police not to entertain the

surrender inside the High Court Police Station would have been

true and we have to state that at least such an advice of his

immediate junior officer should have prompted the Commissioner

of Police not to venture any attempt to accede to the offer of

surrender by the accused themselves in the campus of a premier

institution of the State namely the High Court. It was very

unfortunate that the Commissioner of Police, who is stated to be

of a very high calibre to have taken such a foolhardy (recklessly

harsh) step and thereby brought (with utmost hesitation to state)

a lifelong shame to a prestigious institution namely the High

Court and the JUDICIARY, which is the last resort for any

common man to seek justice.

89

94. The Commissioner of Police relied upon the letter of the

Registrar General dated 18.02.2009, to contend that the police

was given a free hand to deal with the accused involved in the

occurrence inside the 3rd Court Hall on 17.02.2009. In fact what

all the Registrar General has communicated to the Commissioner

of Police in the said letter was that the concurrence of the

Registry was not required to register a criminal case but the

police should act on its own, in as much as, a complaint has

already been preferred. The Registrar General on behalf of the

High Court never gave a free hand to the Commissioner of Police

to behave in the manner in which he allowed his men to ransack

the whole premises and to state that he was only carrying out his

duties as a police officer in the matter of arrest of certain accused

who came forward to surrender which opportunity the police

wanted to grab, taking the letter of the Registry as a licence to

indulge in such an unpardonable exercise which has brought a

grave disrepute to an institution which has nurtured its reputation

for over more than one and half century.

95. Considering the status and position held by the

Commissioner of Police as head of the police institution of the city

of Chennai, we are not impressed with the stand taken by him

90

that though he was duly informed of the offer of certain accused

to surrender who are advocates and who were involved in a nasty

incident which occurred on 17.02.2009, inside the High Court

premises but yet he did not bother to handle the issue directly by

making himself available on the spot and without due

consultation with the Registry of this Court.

96. Going by the statement of the jurisdiction Joint

Commissioner of Police, by around 12.00 noon, the offer of

surrender came to be made by two of the accused advocates. If

really the Commissioner of Police had real concern any one would

expect him to rush to the spot at the earliest point of time and

deal with the issue directly without giving scope for anybody else

to mishandle it and thereby not only bringing disrepute to his

institution but also allow the course of action to result in an

unsavory situation on a premier Institution viz., the HIGH COURT

and making an indelible mark of disrespect for an indefinite

period to come.

97. In the various affidavits the Commissioner of Police

himself has made it clear that he was cautious enough to draw

more force apart from stating that there is a customary practice

91

for the force to allow for wait and watch period including

debriefing. It is quite apparent that the Commissioner of Police

was alive to the gravity of the issue and the attempt of the

accused advocates in offering themselves to surrender but yet he

would state as though the situation could be dealt with as if it

were like any other normal situation where any accused would

have offered to surrender themselves. It is very hard to believe

such a stand taken by the Commissioner of Police whose calibre,

the learned senior counsel would boast upon having regard to his

bright career growth all along. Moreover the stand of the

Commissioner of Police in stating that instead of reacting to the

offer of surrender by making himself present on the spot and deal

with it directly, by his own conduct he has shown that he wanted

the jurisdictional Joint Commissioner of Police, Additional

Commissioner of Police and the jurisdictional Deputy

Commissioner of Police to handle along with all other officers

numbering not less than 16, among whom there were two

Additional Commissioner of Police, three Joint Commissioner of

Police, 8 Deputy Commissioner of Police and two Additional

Deputy Commissioner of Police, who were drawn into the High

Court campus and to remain present between 3.00 pm to 5.00

pm and as Commissioner of Police wanted to control the situation

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by remote control. The Commissioner of Police himself has

furnished the above particulars along with his report dated

18.03.2009, wherein according to his own statement at 9.00 am

147 policemen were brought in, which force was reinforced with

another 118 policemen at 2.30 pm and a further reinforcement of

officers and personnel to the tune of 26 was added at around

4.50 pm. Therefore as between 3.00 pm to 5.30 pm as many as

292 police personnel consisting of officers and policemen were

drawn apart from 130 personnel who were available on duty

attached with B-4 Police Station, in all an unusual strength of 421

policemen were drawn into the High Court campus solely at the

instance of the Commissioner of Police but yet he would state

that he left his office at Egmore at 3.52 pm, which enabled him

to reach the B-4 Police Station only at 5.00 pm.

98. Further in the affidavit dated 07.09.2009, in paragraph

24, the Commissioner of Police has referred to seven instances

which according to him were pressing issues that constrained the

police personnel and the officers to remain in the High Court

premises. The said issues were:

(a) The incident that took place on

04.02.2009, with arrest of some advocates

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resulted in group of other advocates

preventing the police from discharging

their duty.

(b) The advocates choose to

surrender when the High Court campus

was buzzing with activities and the police

could ill afford another violent attack by

advocates in or around the High Court

campus as the threat to the lives of huge

number of other people.

(c) The advocates who had attacked

an Assistant Commissioner of Police and

Dr.Subramaniam Swamy inside the 3rd

Court Hall would not hesitate to indulge in

violence though they were inside the High

Court campus.

(d) Some of those advocates had

already assaulted the Inspector of Police,

B-4 Police Station by hitting his leg with an

iron door.

(e) The advocates had already

damaged a Door Frame Metal Detector

erected in the High Court premises as a

security measure and therefore they would

not hesitate to damage any other public

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property and it was essential to ensure that

the heritage structure of the High Court

remains unscathed.

(f) The advocates who offered to

surrender included persons who had

several criminal cases pending against

them for grave criminal offences such as

rioting with deadly weapons, attempt to

murder, criminal intimidation, causing hurt,

wrongful restraint, assault on public

servant discharging his duty, negligent

conduct with respect to fire and destruction

of public property and therefore the police

could not afford similar violent conduct

inside the High Court campus.

99. Though everyone of the above instances stated by the

Commissioner of Police and his perception in that background

cannot be belittled, it is unfortunate that instead of taking a

decision which would have enabled the police to achieve the

objective he proceeded to take, the decision which totally

destroyed the purpose sought to be achieved was taken and

implemented to its full extent. Moreover, it was not as if that

consequence which had ultimately resulted due to the lathi

charge could not have been anticipated at all. On the other

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hand, at least two of the officers namely the Additional

Commissioner of Police and the Joint Commissioner of Police

(Central) stated to have felt that it was not prudent to accede to

the request for surrender inside the High Court campus as that

would create lot of complications. At least one amongst them

namely the Additional Commissioner of Police,

Mr.A.K.Viswanathan has stated in more than one place in his

affidavit that he did caution the Commissioner of Police about the

imprudent step being taken by accepting the offer of surrender

and proceed with the arrest which advice was thrown to the

winds by the Commissioner of Police for reasons best known to

him.

100. It was a pity that while according to the Commissioner

of Police the threat was to the lives of huge number of people

and the High Court was bustling with activities since the

advocates started attending Courts after withdrawing the boycott

on 19.02.2009, instead of allowing such activities to remain

without any disturbance, the act of the police themselves in

having chosen to allow the process of surrender of accused to

take place in a more vulnerable situation that too by gathering

nearly 421 policemen, the Commissioner of Police has miserably

96

failed in his responsibilities and duty to protect the interest of

public and instead made himself responsible for the most

imprudent act of creating a situation of lawlessness which

ultimately resulted in very ghastly incident to take place inside

the High Court premises and thereby creating a blot on the

institution namely the Judiciary. We therefore hold that the root

cause for the unsavoury incident that took place on 19.02.2009,

was the promptitude of the accused Advocates led by

Mr.R.Karuppan who offered to surrender themselves. We further

hold that by the imprudent act of the police in having encouraged

the offer of surrender to take place insider the High Court

campus, the high level police officers, namely, the Commissioner

of Police, the Additional Commissioner of Police, the jurisdictional

Joint Commissioner of Police and the jurisdiction Deputy

Commissioner of Police, sowed the seed for the ghastly incident.

As far as Question No.(i) is concerned, though as claimed by

Ms.R.Vaigai that the Judiciary is also entitled for the extent of

immunity i.e. Available to the Parliament cannot be accepted, in

the same breath, it will have to be stated that Judiciary as a

constitutional machinery is entitled for higher amount of

protection and safety and therefore the other wings of the State

have to display utmost restraint while carrying out their

97

operations inside the premises of the institution. Consequently

when such other institution like police or executive want to deal

with the said institution, they are bound to get necessary

instructions and if necessary permission for carrying out any of

their activities which would otherwise cause prejudice to the

institution. We answer the Question Nos.(i), (ii) & (iii) as above.

We however hold that the allegation of the lawyers that there

was a conspiracy under the brand name of "Operation Black

Coat" is not made out.

QUESTION No.(iv) :-

101. It will have to be made clear that while deliberating on

this issue, this Court is not really concerned with the grievance of

any particular class of people. As rightly pointed out by

Ms.R.Vaigai, learned counsel representing the lawyers, the

onslaught on 19.02.2009, was on the institution namely the

'JUDICIARY' irrespective of whatever grievance that existed

between the police on the one side and the lawyers on the other

side.

102. When we examine the aftermath of the incident, the

report of the Registrar General discloses that due to the incident

98

that occurred on 19.02.2009, the Court proceedings after 4.00

pm was disrupted and heavy debris including glass pieces found

strewn all over which had to be cleaned to ensure public safety.

The damaged vehicles were lying in a haphazard manner. The

High Court and the Subordinate Courts in the campus remained

closed on 20.02.2009 and thereafter on 23.02.2009 and

24.02.2009 and all the Courts in the State commenced

functioning only from 25.02.2009. The City Civil Court and the

Court of Small Causes and the other Courts located in those

buildings started functioning only from 02.03.2009. Remand

orders were passed by the respective Judicial Magistrates by

visiting the prisons as the police refused to enter the Court

premises. The inspection carried out by the Committee and the

Sub-Committee constituted by the Full Bench revealed damages

to 131 vehicles and 139 persons most of whom were lawyers had

suffered injuries. The damages caused to the High Court

building, City Civil Court building and Court of Small Causes

building is stated to be in the order of Rs.6,39,460/-. The injured

persons were disbursed with a sum of Rs.20,92,768/- towards

medical expenses and compensation apart from a sum of

Rs.10,79,497/- and Rs.1,18,330/- paid to M/s Appolo Hospital

and Life Line Hospital. A sum of Rs.10,60,333/- was stated to

99

have been disbursed to the owners of 55 four wheelers and 63

two wheelers and three bicycles.

103. It can be stated with authority that in the history of

judicial functioning, such a disruption of Court proceedings to the

magnitude to which it had taken place consequent to the

ghastly incident that happened on 19.02.2009, had not occured.

The factum of non-functioning of the whole of judicial institutions

throughout the State for at least three days only mean that the

judiciary was paralyzed and was made immobile for no fault of

it. Due to the non-functioning of the judicial forum and thereby

depriving of any common man to have access to the judicial

institutions for redressal of his grievance, to be stated in the

most humble manner was that the judiciary impliedly expressed

its helplessness to extend its helping hand to any one who was

really in need of judicial intervention seeking justice. Therefore,

when the consequence that resulted by virtue of the occurrence

that took place on 19.02.2009 is examined, there can be no two

opinion that whomsoever was responsible for creating such a

situation cannot be dealt with lightly or any leniency can be

shown to such person/persons as otherwise it would only give a

wrong signal that one can carryout any unsavoury operation of

100

very high magnitude unmindful of the consequences and can get

away with it by shifting the responsibility on others or by

referring to very many circumstances as the cause for such

ghastly incident.

104. The highest judicial forum of this State in whose

premises such a ghastly incident was allowed to take place

cannot be lightly ignored or dealt with, as it will not be in the

interest of public at large to allow any one who dealt with the

INSTITUTION in such a light hearted manner. In our considered

opinion, unless very drastic and deterrent action is taken on the

persons responsible for the occurrence that took place on

19.02.2009, the public faith on the institution would be totally

eroded and if the institution fails to deal with such persons firmly

or fails to deal with them in the appropriate manner, it would

completely shake the confidence of the common man who seek

reccour for all their other grievances in the normal day to day

life.

105. In the above stated background, we are constrained

to state that this Court has no hesitation to hold that the

Commissioner of Police Mr.K.Radhakrishnan, is primarily

responsible while the responsibility of other high ranking officers

101

namely the Additional Commissioner of Police

Mr.A.K.Viswanathan, the jurisdictional Joint Commissioner of

Police Mr.M.Ramasubramni and the jurisdictional Deputy

Commissioner of Police Mr.Prem Anand Sinha were all equally

culpable for the gory incident which gripped the High Court

premises on 19.02.2009, at least between 12.00 noon and

around 6.30 pm, as well as on the subsequent dates namely

when the High Court did not function on 20.02.2009, 23.02.2009

and 24.02.2009 and when the Subordinate Courts inside the High

Court campus did not function on 20.02.2009 and 23.02.2009 to

27.02.2009.

106. As far as the Additional Commissioner of Police

Mr.A.K.Viswanathan is concerned, though we are inclined to

agree with his stand that he did advise the Commissioner of

Police not to accept the surrendering process offered by the

accused advocates, as that would create a serious complication,

as rightly pointed out by the Commissioner of Police in his

counter affidavit, there was no reason why he failed to stop that

imprudent move to take place. In the counter affidavit of the

Commissioner of Police dated 09.09.2009, which he filed in

response to the affidavit of Mr.A.K.Viswanathan dated

102

27.08.2009, in paragraph 9 the Commissioner of Police has

stated as under

“9. I submit that the assertion at

para-10 that Mr.A.K.Viswanathan called me

over the phone and suggested that it was

“prudent” to withdraw the force and that I

insisted that the force remain, is incorrect.

No such telephonic conservation took

place. As he was the highest ranking

officer of the rank of Inspector

General of Police and the Chief

Operating Officer of the law and order

machinery (that it why he is

designated as Additional

Commissioner of Police, Law & Order),

present in the spot he could have

withdrawn the force, if he had thought

that it was prudent to withdraw.

Withdrawal of a force from a serious

law and order situation is a tactical

decision which can be taken only by an

officer present in the spot and

handling the situation and no other

officer, however great he may be,

sitting at a different place cannot give

orders through remote control. He

needed no direction from anybody, as he

was the best judge in the actual field

103

witnessing the events personally. His

further assertion at para 11 that the other

officers present also wanted to withdraw

the force within the premises is, as far as I

know, not correct. Further at no point of

time neither Mr.A.K.Viswanathan nor any

other officer had expressed any desire for

the force to withdraw, which they

themselves were competent to do so as

being senior supervisory officers present on

the spot witnessing the events and were

hence the best judges of police action to be

taken as of on that day.” (Emphasis added)

107. We fully concur with the stand of the Commissioner of

Police on the lines stated above as regards the power of the

Additional Commissioner of Police who was the next highest level

officer who was actually monitoring the whole operation inside

the High Court premises. He cannot he heard to say that when

the Commissioner of Police was the highest authority and as a

less higher authority he can remain as a silent spectator when

the ghastly incident was taking place which could have been

controlled and that fearing the command of the highest officer,

he allowed the ghastly incident to develop on the ground that he

is merely a subordinate to the Commissioner of Police. Such a

104

stand at the instance of the Additional Commissioner of Police

can never be expected of or accepted for mere statement. We

can only call such a stand of the Additional Commissioner of

Police as a feeble attempt to shirk his responsibility reposed in

him as an officer at the level of Additional Commissioner of

Police. We are not therefore inclined to accept the stand of the

Additional Commissioner of Police in trying to throw the entire

blame on the Commissioner of Police and thereby escape from his

responsibilities. Therefore, we have no hesitation to hold that he

is also equally responsible along with the Commissioner of Police.

108. Ms.Vaigai, the learned counsel representing the

lawyers referred to a decision reported in 1898 ILR (Mad) 21

(Queen-Empress Vs. Subba Naik and Others). That was a

judgment of pre-independence period. However, we find the

ratio of the said decision applicable for all times to come. That

was a case where there was a dispute between two co-widows

about the enjoyment of certain field. Two of the witnesses along

with their coolies went to the field in question and started

harvesting the crops on behalf of the junior widow stated to have

been sown by the senior widow. After harvesting of the crops

started, the prisoners who were Station House Officer and

105

constables and a private watcher appeared on the scene armed

with guns. The first prisoner ordered the reapers to desist, which

was resisted. The coolies however continued with the harvesting

operation. Thereafter, at the instance of the first prisoner one of

the constables fired in the air. Some of the coolies ran away

while the rest of the coolies continued with the harvesting

operation. There was a second order for shoot by the first

prisoner, which was obeyed by the second prisoner and one

Sankaralingam was mortally wounded. The other prisoner

knocked down one of the witnesses with stick and stabbed him

with a weapon and injuries were however not serious.

Prosecution case was that the deceased attempted to persuade

the coolies not to stop the harvesting which was the reason for

the second prisoner to shoot him. In the above stated

background the Court held as under at page 251 :

”We are of the opinion that the

accused police officers cannot shield

themselves on the plea that they were

acting in good faith, for nothing is said to

be done in good faith which is one without

due care and attention, and we are of the

opinion that neither the first nor the

second accused believed that it was

necessary for the public security to

106

disperse such an assembly by firing on

them.”

The Court went on to state again:

“The decree of force which may be lawfully

used in the suppression of an unlawful

assembly depends on the nature of such

assembly, for the force used must always

be moderated and proportioned to the

circumstances of the case and to the end

to be obtained. (Lord Bowen’s Report on

the Colliers” Strikes and Riot, --1893.)”

Ultimately the Court held:

“We are of the opinion that the second

accused is not protected in that he obeyed

the orders of his superior officer. The

command of the head constable cannot of

itself justify his subordinate in firing if the

command was illegal, for he and the head

constable had the same opportunity of

observing what the danger was, and

judging what action the necessities of the

case required. We are of opinion that

the order the second accused obeyed

was manifestly illegal, and the second

accused must suffer the consequence

of his illegal act…..” (Emphasis added)

107

109. When we come to the role played by the jurisdictional

Joint Commissioner of Police Mr.M.Ramasubramani, who is also

an IPS officer and who was really responsible for the root cause

for the incident to get triggered of at 12.00 noon and to its

ultimate conclusion around 6.30 pm. He was on the spot right

from 9.00 am onwards. It was he to whom the two advocates of

whom one had already been arrayed as accused in the

17.02.2009, incident namely Mr.Vijendran approached and

expressed the desire of 15 accused advocates to surrender and

he wanted the names of all of them. It is really not

understandable how an IPS officer of his experience was not able

to assess the real situation, who has been working in the field

and to state that he discussed with the advocates and furnished

the list and then instead of proceeding with the debriefing at B-2

Police Station took the entire force into the High Court campus

i.e. to the B-4 Police Station and indulged in heated dialogue with

the accused advocates who approached under the leadership of

Mr.R.Karuppan. At least when the situation was taking a

different shape, namely that while in the beginning, the

representation of the accused advocates were that they wanted

to merely surrender, at the B-4 Police Station they shifted their

stand by insisting for registration of a criminal case as against

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Dr.Subramaniam Swamy, it is quite strange that the jurisdictional

Joint Commissioner did not even think that the situation was

slipping out of his control and having regard to the vulnerable

atmosphere in which the whole incident was taking place,

prudence demanded a different step and avoid any clash inside

the premises. Instead, a perusal of his affidavit discloses that

according to him had he abstained from arresting the

surrendering advocates, he would not only be accused of

dereliction of duty but would have invited criticism from all

quarters. Such a statement has been made in the affidavit after

stating in unambiguous terms that tension was brewing and that

oral abuses were being made against the police. When ultimately

at the end, the jurisdictional Deputy Commissioner of Police

Mr.Prem Anand Sinha declared the assembly as unlawful and

ordered a lathi charge. At least in paragraph 20 of the affidavit

the Joint Commissioner of Police would state that he was

endeavoring to place before this Court the totality of the events

which was brought about by a minuscule group of advocates

whom the peace loving majority advocates failed to contain. It is

also stated that he was also aware of the names of all the

advocates who threw stones at the police and kept on provoking

the police with obscene words and gestures, but he was not

109

inclined to disclose their names in order to save them from

embarrassment.

110. Such a statement of the jurisdictional Joint

Commissioner of Police makes a poor reading of his application of

his sense of discretion while handling a situation, which was not

conducive to contain. In paragraph 25 of his affidavit dated

07.09.2009, he would state that the act of lathi charge held on

19.02.2009, cannot be examined minutely in order to find out its

justification or otherwise and that for the excesses committed by

individual policemen, he cannot be vicariously held liable and that

such individuals can be proceeded against in accordance with law.

111. Again in paragraph 28, he would categorically state

that being a subordinate officer to the Additional Commissioner of

Police and Commissioner of Police in the Chennai City Police

hierarchy and in the presence of senior officers, he was not in a

position to take a decision on his own. As in the case of the

Additional Commissioner of Police, the jurisdictional Joint

Commissioner of Police was also attempting to wriggle out of the

situation in which he is placed.

110

112. As stated by us earlier, first and foremost, as

jurisdictional Joint Commissioner of Police, he should have the

courage to own his responsibility for whatever that happened on

19.02.2009. His stand that he was subordinate to the Additional

Commissioner of Police and Commissioner of Police cannot be

accepted, in as much as, being an IPS officer and at the level of

Joint Commissioner of Police, it was never expected of an officer

of his level to make any attempt to get rid of the situation by

attempting to throw the responsibility on his higher authorities.

Like that of the Additional Commissioner of Police, as Joint

Commissioner of Police of the concerned jurisdiction, it was his

responsibility to have appraised the Commissioner of Police and

insisted for not proceeding with the arrest and avoided any

mishap from taking place inside the High Court premises. The

sensitivity of which premises was very well known to him as

could be seen from his own assessment of the nature of activities

being carried on. Therefore it is too late in the day for the

jurisdiction Joint Commissioner of Police Mr.M.Ramasubramani to

merely come forward with an offer of apology in order to relieve

him of his responsibility. Having regard to the magnitude of the

havoc caused which we have elaborately stated in the previous

paragraphs and the onerous responsibilities reposed in the said

111

officer as jurisdictional Joint Commissioner of Police, we hold that

he was also equally responsible for the occurrence that took place

on 19.02.2009, as well as the subsequent events which

immobilized the functioning of the Courts both in the High Court

and the Subordinate Courts.

113. As far as the jurisdiction Deputy Commissioner of

Police Mr.Prem Anand Sinha is concerned, he is also an IPS

officer like that of the jurisdiction Joint Commissioner of Police.

He was also present and was participating in the occurrence right

from the beginning till its end. In fact the Commissioner of

Police, the Additional Commissioner of Police and the Joint

Commissioner of Police have stated in unambiguous terms that it

was he who declared the mob as unlawful assembly and also

ordered for lathi charge. When according to the Commissioner of

Police, Additional Commissioner of Police and jurisdictional Joint

Commissioner of Police, his decision to declare the mob as

unlawful assembly was left with him, as a responsible IPS officer

he ought to have taken the decision on his own instead of meekly

surrendering his powers and jurisdiction to his higher authorities

and by ordering a lathi charge. Being an IPS officer who occupy

a very high status in the police force and before being actually

112

assigned with any field work are imparted with intensive training

for considerable years, the jurisdictional Deputy Commissioner of

Police ought to have assessed the situation, the place, the

consequence that would arise, the historical background of the

parties who were involved in the offence while taking a decision.

Though he may be 4th in rank in the hierarchy, after the

Commissioner of Police, Additional Commissioner of Police and

jurisdictional Joint Commissioner of Police, he being a police

officer belonging to the All India Service, he should not have

ventured to indulge in an act which would bring grave disrepute

to a constitutional machinery which was not in the interest of the

public at large. One cannot expect an IPS officer in the level of a

Deputy Commissioner of Police to take the stand that there was a

group discussion amongst them and ultimately as jurisdictional

Deputy Commissioner of Police, he declared the mob as unlawful

assembly and ordered for consequential lathi charge.

114. Therefore we hold that the said officer is also equally

responsible in the same proportion like that of the other officers

namely the Commissioner of Police, Additional Commissioner of

Police and the jurisdictional Joint Commissioner of Police for the

unsavory incident that happened on 19.02.2009, as well as for

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the subsequent consequences which paralyzed the functioning of

the judiciary through out the State.

115. While holding so, we also wish to state that even while

invoking the power relating to unlawful assembly as prescribed

under Chapter X of the Code of Criminal Procedure, the various

prescriptions contained in the said provisions have been

completely thrown overboard. Section 129(1) falling under the

said Chapter makes it clear that any Executive Magistrate or

officer in charge of a police station or, in the absence of such

officer in charge, any police officer, not below the rank of a Sub-

Inspector, can disperse the unlawful assembly which is likely to

cause a disturbance of the public peace. Sub-Section (2) to

Section 129 states that for the purpose of dispersing such

assembly one can even resort to arrest or confine the persons

who form part of the unlawful assembly or by use of force.

Under Section 129, the use of armed force is not provided for.

Therefore, as the first step, the use of such force can by no

means be by way of lathi charge. Without the aid of any armed

force only the officer should attempt to disperse any such

assembly. Since arrest of unruly mob is part of Section 129(2),

an attempt should have been made to identify such key persons

114

who are indulging in any unlawful assembly and make an attempt

to arrest them without resorting to any other measure. The

paramount purpose is to prevent anybody’s attempt to disturb

public peace. Therefore mere law and order cannot be a situation

for invoking the provisions contained under Chapter X.

116. Use of armed force can be resorted to only by

invoking Section 130 of the said Chapter. Here again, Section

130(1) makes it clear that only if such assembly cannot be

otherwise dispersed and when it is necessary for the public

security that it should be dispersed and the Executive Magistrate

of the highest rank who is present may cause it to be dispersed

by the armed forces. Therefore, a reading of Sections 129 and

130(1) together makes it crystal clear that dispersement of any

unlawful assembly should be resorted to without any scope for

any untoward incident taking place. It must be stated that when

any such group of persons assemble and thereby providing scope

for declaring it as an unlawful assembly, the whole endeavor of

the Executive Magistrate or any other officer of the highest rank

who is present at the spot should adopt ways and means which

would cause the least effect in the dispersal. It can therefore be

stated that at the very first instance, it would be the

115

responsibility of the police officer of the highest rank to ensure

that no such unlawful assembly is ever allowed to gather

especially when there was any scope for such assembly in a

vulnerable place like that of the High Court and that too on a day

when the lawyers resumed their Court work after more than 20

days of boycott.

117. Furthermore under Section 130(3), it is specifically

prescribed that even when any such officer in command of the

armed force that requisitioned the use of little force and do as

little injury to person and property in the process of dispersal or

arrest or detention of such persons.

118. When we examine the implication of Section 130(3),

at the outset, it is to be pointed out that it was not disclosed

before us as to who were all the officers in command of any of

the armed force, which were drawn into the High Court premises

on that day. If any violation of the prescription of Section 130(3)

is to be examined, it will be well nigh possible for any one to pin

point to the concerned officer in command who can be held

responsible for any excess in carrying out the process of lathi

charge by the armed forces. The report of the Registrar General

116

which we have stated in detail discloses the extensive damages

caused to the vehicles parked inside the campus numbering more

than 100 and the injuries caused to advocates, staff and others

numbering nearly 139 apart from the damages caused to the

buildings of the High Court, Small Causes Court, City Civil Court,

library sections of the Law Association and Madras High Court

Advocates Association. When Section 130(3) is read along with

the Drill and Training Manual it is apparent that there cannot be

an indiscriminate hitting of any person all over the body and wild

destruction of properties. When we viewed the CD placed before

us by the Commissioner of Police, the Additional Commissioner of

Police as well as at the instance of the Advocate Associations, it

was quite visible that the armed forces which were let loose on

that day were in a hitting spree. They did not spare even a van,

which carried the symbol, i.e. “ePjpj;Jiw (Judiciary)” the vehicle

which was provided by the State Government for the subordinate

Judicial Officers to reach the Court and get back home. In fact

one of the Court Halls of the Small Cause Court namely the XII

Court Hall was also damaged in the process of lathi charge.

Though the police officers would claim that they were only trying

to chase the advocates, the same was not true. The beating of

the advocates by surrounding them as a group or any individual

117

advocate is quiet visible in the videograph which is highly

shocking. The photographs placed before us discloses the extent

of damage caused to the library books shelves and the vehicles

which only shows that as part of the process of lathi charge

uncontrolled violence was unleashed inside the premises and

since there was no officer in command, we can only hold that the

very same four officers namely the Commissioner of Police, the

Additional Commissioner of Police, the jurisdictional Joint

Commissioner of Police and the jurisdictional Deputy

Commissioner of Police were squarely responsible for the

violation of the provisions contained under Sections 129 and 130

of the Cr.P.C.

119. Under Section 131, also falling under Chapter X, it is

stated that the use of armed force for the purpose of dispersing

of any unlawful assembly can be carried out by an officer in

command. While using any armed force it should be carried out

under the direct supervision of the commandant of that force and

not by any other officer. Whereas on 19.02.2009, it is not the

case of the above four police officers that there was any

commandant to control the armed forces. On the other hand

admittedly it was the above four officers who directly used the

118

armed forces and thereby providing scope for such force to

indulge in uncontrolled action of lathi charge and thereby causing

extensive damages to men and material. In fact the total extent

of compensation disbursed from the funds furnished by the State

Government was in the order of Rs.50,41,008/-, it can be

therefore visualized as to the extent of damages that had been

caused to men and material by the use of force.

120. With that when we examine the immunity provided

under Section 132 falling under Chapter X, it specifically states

that no prosecution against any person for any act purporting to

be done under Sections 129, 130 and 131 shall be instituted in

any Criminal Court. In the foremost, sub-section (2)(a) makes it

clear that in order to avail such immunity, the officer concerned

should have acted under those Sections in good faith. In fact

Sections 132(2)(a) to (d) makes it clear that in order to claim

protection under the substantive part of Section 132(1) action on

good faith is paramount or such member of the armed force does

any act in obedience of any order which he is bound to obey.

Section 132 therefore makes it clear that good faith should be

the basis for an officer or a member of the armed force to claim

any benefit provided under the said Section.

119

121. Having regard to our conclusion in the earlier

paragraphs where we have held that the Commissioner of Police,

the Additional Commissioner of Police, the jurisdictional Joint

Commissioner of Police and the jurisdictional Deputy

Commissioner of Police were squarely responsible for the ghastly

incident, we hold that having regard to the manner in which they

exercised their power while ordering lathi charge by invoking

Sections 129 to 131 of the Code of Criminal Procedure, we have

no hesitation to hold that there was absolutely no faith in their

conduct much less good faith in order to enable them to avail the

protection under Section 132(i) of the Code.

122. Though we are conscious of our limitation while

dealing with Section 132 of the Code, in as much as, we are not

presently dealing with any prosecution as against those officers

but yet for the limited purpose of finding out and identifying the

officers responsible, we have to necessarily examine the defence

put forth before us at the instance of the above police officers by

Dr.Rajeev Dhavan by relying upon the said provisions. In any

event, any conclusion of ours in relation to the said provision

should be exclusively for the purpose of passing orders in these

writ petitions, in as much as, our decision is based on the

120

materials, which were placed before us by the respondents

themselves.

123. In this context, it will be worthwhile to refer to certain

decisions placed before us by Dr.Rajeev Dhavan as well as

Ms.R.Vaigai.

124. Dr.Rajeev Dhavan relied upon the decisions reported

in 155 (2008) DLT 209 (Police Commissioner Vs. Yashpal

Sharma) and MANU/DE/2653/2007 (Commissioner of

Police Vs. Manoj Sharma) for the proposition as to what

constitutes reasonable force. In the above referred to decisions it

was held whether the force used in a particular case, to disperse

such demonstration, is reasonable or not would depend upon the

facts and circumstances of each case. As to how much force is

necessary to disperse the unlawful assembly should be left to the

decision of the Executive Magistrate or the police officer

concerned to take a decision on the spot assessing the situation

and such assessment of the situation has to be left to the officer

concerned. In fact in the decision relating to Commissioner of

Police Vs. Manoj Sharma (MANU/DE/2653/2007), it is held

“……In a situation of maintenance of law

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and order decisions are to be taken

instantly and there is not enough time for

reflection. Such decisions are to be taken

by the officer in-charge of the situation…….

”

125. The above referred to decisions will be of no

assistance to the respondent police. As held by us earlier, the

fault of the respondent police is in having allowed the offer of

surrender by the accused advocates to drift to a detrimental

situation and thereby made it vulnerable for the police

themselves to get rid of it and in that process, the unprecedented

damage was caused to a constitutional machinery which was

totally unwarranted and uncalled for.

126. Viewed in that respect, it was immaterial to examine

the justification for ordering lathi charge by relying upon the

situation, which prevailed. In our considered opinion, the

situation itself was created by the imprudent action of the

respondent police officers and therefore the justification of their

conduct cannot be judged based on the ultimate action but had

to be necessarily judged based on the situation that prevailed at

the very inception namely at 11.30 am and thereafter when the

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respondent police officers paved the way for any one to create

the said unpleasant situation.

127. It will be worthwhile to refer to Section 52 of the

Indian Penal Code, which defines ‘good faith’. Section 52 reads

as under:

“52. Nothing is said to be done or believed

in ‘good faith’ which is done or believed

without due care and attention.”

128. In this context, we can also usefully refer to the

decision of the Hon’ble Supreme Court reported in (2001) 2 SCC

171 (S.K.Sundaram In Re.), paragraph 28 and 29 of the said

decision reads as under:

“28. The expression “good faith” in

criminal jurisprudence has a definite

connotation. Its import is totally different

from saying that the person concerned has

honestly believed the truth of what is said.

Good faith is defined in Section 52 of the

Indian Penal Code thus:

“52. Nothing is said to be

done or believed in ‘good

faith’ which is done or

believed without due care and

attention.”

123

29. See the language of the law in this

regard. It starts in the negative tone

excluding all except what is allowed to be

within its amplitude. Insistence sought to

be achieved through the commencing

words of the definition “nothing is said to

be done or believed in good faith” is that

the solitary item included within the

purview of the expression “good faith” is

what is done with “due care and

attention”. Due care denotes the degree

of reasonableness in the care sought to be

exercised. In Black’s Law Dictionary,

“reasonable care” is explained as

“such a degree of care,

precaution, or diligence as

may fairly and properly be

expected or required, having

regard to the nature of the

action, or of the subject-

matter and the

circumstances surrounding

the transaction. It is such

care as an ordinary prudent

person would exercise under

the conditions existing at the

time he is called upon to

act”.”

124

129. Therefore in order to establish good faith one will have

to show his previous conduct of due care and attention. When we

apply the above ratio to the facts of this case, our analysis to the

decision making process applied by the Commissioner of Police,

Additional Commissioner of Police, jurisdictional Joint

Commissioner of Police and the jurisdictional Deputy

Commissioner of Police makes it clear that there was total lack of

proper care and caution taken while taking a decision. Since we

have elaborately dealt with their conduct right from the initial

stage of offer of surrender and the ultimate lathi charge ordered,

we are convinced that there was total lack of due care and

indiscreet decision taken unmindful of the place, persons, time

and the necessity for taking such a decision. It was not the case

that the officers were totally kept in dark about any of the prior

incidents in which the concerned persons were involved or

situation that was prevailing on that date namely 19.02.2009,

where it can be said that resort to lathi charge was imminent and

it was unavoidable at that point of time. On the other hand our

discussion lead us to hold that instead of preventing any

untoward incident taking place inside the High Court campus, by

the foolhardy act of the police officers themselves a piquant

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situation was created and in order to guard themselves and them

alone; not any public or other innocent persons; a resort was

made to the extreme step of lathi charge in such an extensive

manner which can never be called as one carried out in good faith

or that there was due care or attention made in order to enable

them to seek protection under Section 132(i) of the Code.

130. In this context it will also be appropriate to refer to

Chapter XXXIX of the Police Standing Order and PSO 699(3)(a),

703(2)(h)(i)(j), 703(3) and 703(4)(e) which are relevant which

reads as under:

“PSO 699. Preventive Action:

(1) ***

(2) ***

(3) (a) All public officers shall consider it

their duty to do everything that is

possible for the removal of causes of

friction, communal or otherwise, to

foster good relations and friendly

feelings between different sections of

the public, to take all possible

precautions to prevent disorders and to

spare no efforts in bringing disorders

under control with the least possible

delay. There should be no hesitation in

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taking disciplinary action against any

Government servant who is guilty of any

willful neglect of duty or who contributed

openly or covertly to the origin or the

continuance of the tension.”

PSO 703. Dispersal of Unlawful

Assemblies:

(1) ***

(2) (h) If the members of the unlawful

assembly do not disperse, the Executive

Magistrate or the senior most Police

Officer present in the absence of the

Executive Magistrate shall direct the

Police to use force, that is necessary for

the purpose. The nature of force to be

used, tear gas, lathi cane charge or

water jet and the method of quantum of

force to be used should be decided by

the senior most Police Officer present on

the spot.

(i) If the crowd refuses to follow the

lawful instructions to disperse, the riot

flag should be raised, the attention of

the mob drawn through a bugle call with

long blast and a clear warning that force

would be used to disperse them will be

given through megaphone. The

operation will commence if the mob

refuses to heed to the warning.

127

(j) Officers commanding police parties

will on every occasion when employed in

the suppression of a riot of enforcement

of the law, ensure that the fullest

warning is given to the mob in a clear

and distinct manner before any order is

given to use tear gas or lathi/cane or

fire arms and to use the most effectful

means to explain before hand to the

people opposed to them, in the event of

the Police party ordered to fire that the

fire will be effective.

(3) If the crowd becomes defiant tear

gas should be used effectively. If this

becomes in fructious then lathi cane

charge can be made. If the crowd is still

defiant resort, may be had to the use of

fire arms.

(4) (3) If water jets or tear gas fail to

disperse the mob, lathi cane charge

should be ordered. Lathi/Cane charges

should not be attempted if the strength

of the Police force is not adequate to

create an effect on the crowd and the

crowd is likely to overwhelm the Police

party easily. The personnel engaged in

the lathi/cane charge should be under

the proper control and the charging

should cease as soon as the desired

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objective is achieved. The procedure

laid down in the Drill and Training

Manual will be followed. Care should be

taken to prevent the lathi/cane sections

getting separated from the main party

and the Commander.”

131. Under the Tamil Nadu City Police Act, 1888 in Section

3 the expression Commissioner is defined which means the

Commissioner of Police for Madras referred to in Section 5.

Under Section 5, it is stated that the administration of the Police

of the City of Madras shall be vested in an officer to be styled the

Commissioner of Police for Madras.

132. The Joint Commissioner of Police, Deputy

Commissioner of Police and the Assistant Commissioner of Police

are appointed by the Government in exercise of power vested

with it under Section 6 of the Tamil Nadu City Police Act. Under

Section 7 of the said Act, the Commissioner of Police by virtue of

his office, is designated as Executive Magistrate for the purpose

of the Code of Criminal Procedure and vested with powers as an

Executive Magistrate.

129

133. On behalf of the respondent police officers Dr.Rajeev

Dhavan in his submissions contended that the resort to lathi

charge became imminent since the threat perception prevailing

on that day necessitated such an action. In support of the said

submission, the learned senior counsel wanted to rely upon the

various incidents of advocate excess in and around the High

Court campus. The learned senior counsel referred to the listed

out cases in pages 165 to 259 of Respondent Vol-II.

134. According to the learned senior counsel there were as

many as 92 criminal cases booked against several advocates

between the years 2001 to 2007; the recent clash between two

group of law college students on 12.11.2009; the incident that

took place in the Court of the Acting Chief Justice on 29.01.2009

and the 5th Court presided over by Mr.Justice S.Manikumar; the

hijack of MTC bus by advocates on 30.01.2009; the burning of

the portrait of Dr.Subramaniam Swamy in the course of the

demonstration by about 50 advocates on 03.02.2009; the looting

of a cycle shop (Bombay Cycle Mart) opposite to the High Court

campus alleged to have been done by the advocates on

04.02.2009; the burning of Congress Party flag and portraits of

Congress leaders in the High Court campus by about 100

130

advocates headed by one Mr.Kanakraj on 11.02.2009; the

procession taken out by advocates within the High Court campus

and burning of the Congress party banner on 12.02.2009, headed

by Mr.Kanakraj and the procession taken out by 75 advocates on

the same date from the High Court and their attempt to lay siege

to the Army Headquarters at Chennai; the incident on

13.02.2009, by two groups of advocates headed by Mr.Kanakraj

and Rajnikanth in the procession to picket the Central Railway

Station; burning of the photos of Ms.Sonia Gandhi and Sri Lankan

President within the High Court campus by 20 advocates on

16.02.2009 and also burning of Election Photo Identity Cards by

35 advocates renunciating their Indian Citizenship apart from

burning the photos of Ms.Sonia Gandhi.

135. By referring to the above, the learned senior counsel

would contend that when such a high amount of threat

perception was prevailing which was assessed by the police, it

cannot be held that the situation did not warrant a lathi charge.

The learned senior counsel also placed reliance upon (1997) 7

SCC 91 (Amitabh Bachchan Corporation Ltd. Vs. Mahila

Jagram Manch) for the proposition that the Court cannot

substitute its own judgment for the subjective satisfaction of the

131

police officer who was in the midst of a grave situation and was

trying to maintain law and order. With reference to the above

proposition of law there can be absolutely no quarrel, but even

while applying the above principle to the facts of this case, we

have only held that the concerned police officers miserably failed

to thwart the incident of such a magnitude over which they had

absolute control at the very inception namely at 11.30 am, when

the threat perception relating to the visit of Dr.Subramaniam

Swamy came to an end and the entire armed force retired to B-2

Police Station for debriefing.

136. In our considered opinion the conduct of the

concerned police officers in having entertained any proposal at

the instance of the accused advocates on 17.02.2009, was wholly

an imprudent conduct which triggered the whole ghastly incident

for which they and they alone were squarely responsible. It can

never be held that the various past incidents which occurred

between 2001 and 2008 or the incidents occurred between

29.01.2009 to 17.02.2009, can be construed as cause of threat

perception to hold that that was the basis for ordering the lathi

charge. Such a submission of the learned senior counsel cannot

be accepted in as much as the threat perception in order to

132

justify any lathi charge should have developed on its own at the

spot and in order to control such a perception it became

imminent for the police to resort to lathi charge. By no stretch of

imagination it can be said that all the incidents that happened

prior to 19.02.2009, was brewing and was existing in an

uncontrolled manner, in order to state that on 19.02.2009 any

threat perception was prevailing either to the litigant public or to

the other advocates and that the police had no other option

except to resort to lathi charge on any unruly mob. On the other

hand even according to the Commissioner of Police and other

police officers nothing untoward happened when

Dr.Subramaniam Swamy visited the High Court to attend two of

the cases i.e. one before the Bench headed by the Hon’ble Acting

Chief Justice and the other in the 5th Court before Mr.Justice

S.Manikumar. After attending to those cases, he also peacefully

left the High Court campus by 11.30 am and there was no

incident worth mentioning even thereafter since the very fact that

the jurisdictional Joint Commissioner of Police withdrew the entire

police force to B-2 Police Station for debriefing was proof positive

to support the said conclusion.

133

137. Any amount of assertion on the part of the

Commissioner of Police, the Additional Commissioner of Police,

the jurisdictional Joint Commissioner of Police, or jurisdictional

Deputy Commissioner of Police, in attempting to portray a picture

of threat perception was wholly baseless and does not merit any

consideration.

138. In fact though the various cases as between 2001 and

2009 have been listed out before us in Page Nos.167 to 259 of

the Respondents Volume – II, we are at a loss to understand as

to how and why the cases pertaining to the years 2001 onwards

have not made any progress at all especially when in many of the

cases, the charges are for grave offences such as rioting with

deadly weapons, attempt to murder, criminal intimidation,

causing hurt, wrongful restraint, assault on public servant

discharging his duty, negligent conduct with respect to fire and

destruction of public property. The argument therefore does not

stand to any reason.

139. A perusal of the list of cases in pages 167 to 259 of

Respondent Vol-II, shows that almost all the cases were either

under investigation or pending trial. If the police authorities were

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keen or alive to such criminal cases pending against the

advocates which caused concern, it is hard to believe that a case

of the year 2001 was still under the investigation of the police

authorities which means that no final report was filed. Even in

respect of those cases where charge sheets have been filed they

are pending trial for more than 6 to 7 years. That only shows

total lack of interest shown in dealing with the criminal cases

launched against the advocates for reasons best known to the

concerned police authorities.

140. It is not the stand of the respondent police that there

were any other impediment or court orders in all those cases

which tied their hands from proceeding with the investigation,

filing of final report and conduct of trial. When that is the

interest shown in respect of those good number of cases, we are

not in a position to accede to the submission of the learned

senior counsel made on behalf of the respondent police officers

that those large number of pending cases should be construed as

a threat perception in order to justify their conduct on

19.02.2009. Therefore, the said contention put forth on behalf of

the respondent police officers cannot also be accepted.

135

141. In order to justify the conduct of the respondent police

officers in having acceded to the offer of surrender reliance was

placed upon the decision reported in 1995 Cri.L.J. 1956 (In Re:

Rajendran and others) wherein it has been held as under in

paragraph 69:

“69. Hence it may be, that the police officials

have a right to arrest offenders, anywhere it

will even be possible in the event of surrender

by any of the offenders before Court, for, the

police to seek police custody for the purpose

of interrogation. It could have been, easily

stated by the police officers, in the instant

case, that they were expecting, to arrest

Thiru. Natarajan and a part of apprehension,

after initial arrest, had taken place inside the

Court campus. Police officers must have

intimated to the Senior Magistrate about the

closure of northern gate fully and the

southern gate partially and the purpose for

which they had closed the gates. They must

have equally informed the other heads of the

department, in the variety of officers situated

in that campus. If there is an emergency, the

police can certainly act, without forwarding

prior intimation, but even then they would

certainly owe a duty to inform the concerned

officers of Court as well as other officers soon

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thereafter about the closure of the gates. In a

situation, emergent and the reason, that led

to such closure.”

142. Even going by the ratio laid down in the said decision,

it has been held therein that whether the arrest is taking place

inside the Court campus due intimation to the concerned officers

should be made. For an arrest in the normal course in any

criminal case such a pre-condition is called for even in the

perception of the police officer when an extraordinary situation

was prevailing for quite a long time prior to 19.02.2009, we

wonder how an unilateral decision was taken by the police

officers to resort to arrest certain accused who were stated to

have volunteered to surrender but did not carry out their original

offer but were taking a different stand at different point of time

but yet at no point of time the police officers though it fit even to

intimate the Registry, leave alone seek the permission of the

Hon’ble Acting Chief Justice to resort to such an extraordinary

step. In our view, the failure of the respondent police not to

intimate and get necessary clearance from the Registry and the

Hon’ble Acting Chief Justice was a grave blunder committed by

them which was one of the causes for the ultimate havoc that

137

happened on that day. In fact in the order dated 19.02.2009,

the Full Bench expressed its deep anguish by stating with what

authority the police in such large number entered the campus for

the purpose of effecting an arrest and the ultimate indiscriminate

lathi charge resorted to inside the campus. The stand of the

respondent police in relying upon the letter of the Registrar

General dated 18.02.2009, can be of no avail in as much as the

said letter never granted a carte blanche to act in any manner

they liked in the matter of dealing with the accused advocates or

for that matter against any other accused inside the Court

campus. Though the submission of Ms.R.Vaigai for a total

immunity as has been provided for Parliament for which separate

rules and regulations have been prescribed cannot be applied for

other institutions including the judiciary, it cannot be stated that

in the absence of any such provisions statutory or otherwise, a

prime institution like that of a High Court which is a constitutional

machinery can be treated by the police authorities like any other

public place and carry on with any activities which would bring

grave disrepute to such a prime institution and that too without

bringing it to the notice of the concerned authorities of that

institution, leave alone without prior permission.

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143. In fact when the unsavory incident took place on

17.02.2009, inside Court Hall No.3, these very same officers

thought it fit to meet the Hon’ble Acting Chief Justice and the

other officials of the Registry even for registering a case against

the concerned accused advocates. When the very same police

officers were aware that such a step was required when it comes

to the question of carrying out their operation relating to an

incident that took place inside the High Court campus, it is not

known how everything was given a go bye in respect of an

incident which was gaining grave momentum right from 12.00

noon onwards and with reference to which nothing was brought

to the notice of the Court till the whole episode was completed at

around 6.00 – 6.30 pm and whereafter the Commissioner of

Police thought it fit to meet the Hon’ble Acting Chief Justice.

144. We are not for a moment suggesting that even if a

gross crime takes place inside the campus which warrant the

interference of police, the police should sit quite and seek for the

permission before taking up any action to prevent any such crime

taking place or perpetration of any such a crime.

139

145. In fact when reference was made to an order of this

Court in the case relating to Law College incident, that was a

converse case where the police remained a silent spectator when

a ghastly crime was being committed just in front of the police

force but yet none of the police personnel including an Assistant

Commissioner of Police though it fit to interfere and prevent such

a crime of grievous assault on one single individual by a group of

individuals. On that occasion also, the police miserably failed to

assess the situation in the proper perspective while exercising

their powers. The reliance placed upon the said decision

therefore does not support the stand of the respondents.

146. In this context we feel it appropriate to refer to

paragraph 56 and 97 from the judgment namely 1995 Cri.L.J.

1956 (In Re: Rajendran and others) which needs to be

stated, in as much as, we feel that the unfortunate incident that

occurred on 19.02.2009 and the gravity of which is such that this

Court has to necessarily take a firm view and pass appropriate

orders so that the message can be made loud and clear that no

such recurrence can ever be dreamt of in future by any one. The

said paragraphs read as under:

“56. Mrs.Prabha Sridevan, President, Women

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Lawyers’ Association, submitted that the

after-noon incident had a close connection

with the morning closure of gates Advocates

as well as policemen, were important limbs,

for the former were right protectors – while

the latter were law enforcers. The tension, if

any, between them must be comfortably

resolved. Re-orientation programmes must

be organized.

* * * * *

97. We are very clear and let us transmit a

certain message. We are totally conscious,

that we have dealt with the contemners,

rather lightly, but that has been the outcome

after serious and thought provoking process

and the positive response of ours, to the

fervent, sincere and responsible plea, backed

up with purposeful panorama of a possible

good ear ahead, made by learned senior

counsel, learned Advocate General and the

Presidents of various Associations of

Advocates. Let not any one walk out of this

Court Hall with an impression, that whatever

be the gravity of the offence, one could

always escape lightly. The instant untoward

incident, has been analysed by all concerned,

and the answer in unison was that let this

episode serve as a sure foundation or eye

opener for fostering of a better tomorrow,

141

with an assurance that recurrence, if any,

though chances may be bleak, will have to be

gravely taken note of and appropriate

punishment meted out.”

147. Dr.Rajeev Dhavan, in his submissions contended that

the counsel representing the advocates made several prayers

such as suspension of police officers, production of various

circulars, initiation of disciplinary action against officers, safety of

advocates, investigation and prosecution by CBI, registration of

criminal complaint against police officials, compensation for

injured advocates, damages caused to men and material etc.,

and contended that many of those grievance including direction

for investigation and prosecution by CBI have been already

fulfilled. In so far as the suspension of the police officers and

initiation of disciplinary proceedings is concerned, the learned

senior counsel by making a reference to Articles 309 to 311 of

the Constitution of India contended that there are certain well

laid down principles contained in those constitutional provisions

and the same cannot be given a go bye and the Court should not

take upon the role of the State by ordering suspension or any

other action. By relying upon the decisions reported in (1968) 1

SCR 185 (Roshan Lal Tandon Vs. Union of India), (1997) 6

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SCC 623 (Chairman, Railway Board Vs.

C.R.Rangadhamaiah), (1962) 1 SCR 151 (Jagannath

Prasad Sharma Vs. State of U.P.), 1958 SCR 828

(Parshotam Lal Dhingra Vs. Union of India) and 1963 Supp

(1) SCR 648 (State of Orissa Vs. Bidyabhushan

Mohapatra), the learned senior counsel contended that the

position of civil servant is one of status and is not like a contract

of service between master and servant and therefore it should be

left to the State to decide as to what course of action it should

take against any of its erring employees. As far as the prescribed

procedure contained in Articles 309 to 311 is concerned, the

same cannot be disputed. However, we are of the view that the

powers of this Court to give appropriate directions to the State to

take any action against the erring officers is not taken away. For

that proposition, we seek succor for that proposition in the

decisions relied upon by Ms.R.Vaigai reported in (1996) 4 SCC

742 (Punjab & Haryana High Court Bar Association Vs.

State of Punjab) at para 5, (2004) 5 SCC 26 (Daroga Singh

Vs. B.K.Pandey) at para 49 and (1991) 4 SCC 406 (Delhi

Judicial Service Assn. Vs. State of Gujarat) at para 54. It will

be sufficient if we make a reference to the observations of the

Hon'ble Supreme Court made at paragraph 54 in the decision

143

reported in (1991) 4 SCC 406 (Delhi Judicial Service Assn.

Vs. State of Gujarat) :

"54.We are constrained to observe that the

State Government did not immediately take

effective steps against the erring officials. In

spite of the direction issued by this Court the

erring police officers were neither arrested nor

placed under suspension. It was only after this

Court took serious view of the matter and

directed the State Government to suspend the

erring police officers and arrest them, the State

Government moved in the matter. The apathy of

the State Government in taking effective action

against the erring police officers leads to an

impression that in the State of Gujarat, police

appears to have upper hand, as the

administration was hesitant in taking action

against the erring police officers. If this practice

and tendency is allowed to grow it would result in

serious erosion of the Rule of Law in the State.

We hope and trust that the State Government will

take effective measures to avoid reoccurrence of

any such instance. The State Government should

further take immediate steps for the review and

revision of the Police Regulations in the light of

the findings recorded by the Commission."

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148. With this when we deal with the submission as to the

judicial restraint to be adopted, the various decisions relied upon

were all cases where the Hon’ble Supreme Court was considering

the final order of punishment and with reference to which the

scope of interference has been set out. We are at a stage where

the consideration is as to in what manner such of those police

officers who have been held to have acted highly detrimental to

the interest of the institution and such detrimental action has

caused a permanent black mark on the institution which cannot

be lightly ignored or condoned. In such a situation while on the

one hand the various associations of lawyers and other respective

counsel would commend this Court to direct the State

Government to place the concerned officers under suspension

and take appropriate disciplinary action against them, the learned

senior counsel appearing for the respondent police officers would

canvass for the matter to be left to the discretion of the State.

149. In fact in the order dated 18.03.2009, the Full Bench

after the submission of the report by the Commissioner of Police

of the same date thought it fit to place the Additional

Commissioner of Police and the jurisdictional Joint Commissioner

of Police under suspension. The Full Bench has given its reasons

145

in paragraph 8, which reads as under:

“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.”

150. Since the Hon’ble Supreme Court held that the said

direction came to be issued without hearing the Additional

Commissioner of Police and the jurisdictional Joint Commissioner

of Police, this Court was directed to give an opportunity to them

before passing any further orders.

151. Be that as it may, the learned Advocate General in his

own inimitable style made a very fair statement to the Court that

the State neither supports nor oppose the action of the police and

instead it wanted to identify the concerned officers who are

146

responsible for the ghastly incident against whom it is always

prepared to take appropriate action. In his submission the

learned Advocate General stated that for that purpose the State

Government has appointed Dr.N.Sundaradevan, I.A.S., as One

Man Committee and that unfortunately in the enquiry held by

him, none of the advocates participated. He would therefore

contend that in the event of the Court finding any officer

responsible, the State would carryout the directions of this Court

scrupulously. In the light of the above stand of the learned

Advocate General, we are of the considered opinion that in the

extraordinary facts placed before us, we are convinced that the

four police officers whom we have held responsible for the whole

ghastly incident that took place on 19.02.2009, inside the High

Court campus in which severe damage was caused to men and

materials by their imprudent act which has created an indelible

stigma on the prime institution, it would be in order for the State

to take necessary disciplinary action against them and in order to

proceed with such action without any interference, it would be in

order for the State Government even to place them under

suspension pending disciplinary action. Having regard to the

solemn undertaking placed before us through the learned

Advocate General, we are convinced that it would be suffice for

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the State to take note of our above observation in the proper

perspective and leave no stone unturned to fulfill the objective in

the interest of justice. We answer Question No.(iv) as above.

QUESTION No.(vi)

152. As far as the power of this Court to initiate any

contempt action is concerned, the High Court being a Court of

Record it has got every power to punish any one for contempt of

itself. It is the constitutional mandate as stated under Article 215

of the Constitution of India.

153. As far as the contempt is concerned the various

submissions of learned counsel who appeared for the advocates

is considered, Mr.R.C.Paul Kanakaraj, in his submissions pointed

out that after the incident that took place in the High Court on

19.02.2009, the Court could not function on 20.02.2009,

23.02.2009 and 24.02.2009. As far as the City Civil Court and

Court of Small Causes and other judicial forums located inside

the campus was concerned, the same were able to function only

from 02.03.2009. In fact these days were undeclared holidays

for all the above institutions.

148

154. As stated by us earlier in the annals of the set up of

the High Court for more than a century and half, this was the first

time that Courts were immobilized due to the incident that

happened inside the High Court campus. According to the

learned counsel the said situation would fall within the definition

of criminal contempt as defined under Section 2(c) of the Act.

The learned counsel also submitted that after 11.30 am the

retention of the armed forces inside the High Court campus

without any permission and without any justifiable cause calls for

severe action. The indiscriminate beating of the lawyers and

others in which, many sustained head injuries. One of the P.As

to the Hon’ble Judge was severely beaten. Above all a sitting

Judge of this Court also sustained a lathi blow. Ms.R.Vaigai in

her submissions stated that neither the State nor the police have

realized the enormity of what happened on 19.02.2009 and

therefore to uphold the majesty of the institution namely the

judiciary, the Court alone should come for the rescue. According

to her the CD produced by the police is an edited version in as

much as the time recorded therein jumps intermittently. The

statement of the Commissioner of Police about his entry into the

High Court premises itself is incorrect in as much as one of the

photographs discloses that while he was very much present

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inside the High Court premises and was in the midst of police

personnel the time in the watch worn by him itself display 4.45

pm, whereas he would repeatedly contend that he entered the

High Court premises only at 5.00 pm. She also contended that

the beating of Hon’ble Mr.Justice A.C.Arumugaperumal Adityan

was clearly visible in the CD produced at her instance at which

point of time also the Commissioner of Police was very much

present inside the High Court campus which was around 4.15

pm. The learned counsel therefore contended that the

Commissioner of Police was attempting to mislead this Court by

not disclosing the correct facts relating to the incident.

155. The learned counsel contended that the incident as

well as its aftermath has caused grave prejudice to the institution

and that it was a loss of dignity and grace of the institution. She

further contended that it was not as if the police officers could

not have assessed the magnitude of the issue before even

venturing to entertain the plea of surrender by the accused

advocates, and therefore their failure to seek the permission of

the Court to entertain the plea of such accused advocates cannot

be pardoned. The enormity of the situation was such that it was

so extraordinary the police officers should have applied great

150

caution before entering upon it. Therefore according to her their

failure to obtain prior permission of the Court to carry out the

exercise on that day or at least inform the Registry before doing

that was a serious conduct, which calls for serious action. The

learned counsel further contended that when the Commissioner

of Police himself admitted that he anticipated huge trouble, it was

constitutionally mandated upon him to have taken the necessary

precaution to seek the permission of the Hon’ble Acting Chief

Justice especially when he wanted deployment of large number of

armed forces to carry out that mission. The learned counsel

therefore contended that it calls for serious contempt action

against the police officers.

156. Mr.N.G.R.Prasad, learned counsel representing the

lawyers in his submissions pointed out that it was not a mere

police excess but it is a state excess and that the attack was not

only against the lawyers but against the whole institution which

was not innocent. The learned counsels therefore contend that it

calls for serious action by way of initiation of contempt.

157. As against the above submissions on contempt,

Dr.Rajeev Dhavan in his submissions contended that in the first

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place the submission of the learned counsel for the advocates

drawing an analogy of the judiciary on par with the parliament

was somewhat overbroad argument. According to the learned

counsel even while acknowledging the status of judiciary in

particular its independence to be safeguarded by virtue of articles

50 and 121 of the Constitution, yet it would be too wide a

proposition to be equated with parliamentary privileges to be

extended to judicial institution. According to the learned senior

counsel having regard to the very many constitutional provisions

under Articles 105, 194 and specific regulatory provisions

providing for autonomous control for the Parliament over its

precincts especially in the matter of arrest in the House, the

enclosed vicinity and of its members, such an extraordinary

privilege has not been provided for any other institutions

including judiciary except what has been provided under Articles

121, 211 and 124(4) of the Constitution as well as Section 77 of

the Indian Penal Code.

158. The learned senior counsel even while making a

reference to Articles 129 and 215 of the Constitution which has

provided special powers of contempt for the Supreme Court and

the High Court, would contend that in exercise of such power

utmost restraint need to be applied. According to the learned

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senior counsel the contention of the learned counsel representing

the lawyers allege both civil as well as criminal contempt as can

be stated as under:

(a) When the civil contempt alleged

relating to the order dated 19.02.2009, in

W.P.Nos.181 to 183 of 2009 which directed

the appellant to file report on the events of

17.02.2009.

(b) Order dated 19.02.2009 in Suo

Motu W.P.No.3335 of 2009 directed

release of advocates and no further arrest

to be made.

(c) Order dated 18.03.2009 in Suo

Motu W.P.No.3335 of 2009 directing

disciplinary action against Messers

A.K.Viswanathan and M.Ramasubramani,

and

(d) Order dated 13.03.2009, in

W.P.Nos.3703 to 3705 of 2009 and

M.P.Nos.1 to 8 of 2009 and

Crl.O.P.No.4085 of 2009, directing the

police to produce the log book and

telephone records of all senior officers

As far as the criminal contempt is concerned, the learned counsel

153

would contend that behaviour of the advocates inside the Court

Hall on 17.02.2009, throwing eggs on Dr.Subramaniam Swamy,

throwing of stones by lawyers and indulging in violence on

19.02.2009, burning of the police station inside the High Court

campus, contradictory affidavits of lawyers in these proceedings

and the articulation of slogans against judges on 19.02.2009

needs to be examined. He also referred to the allegation of the

petitioners as regards the criminal contempt alleged against the

respondent police officers, viz., bringing in reinforcement without

the consent of the Chief Justice; a pre-planed attack on the High

Court and its personnel; attack on the lawyers, judges and staff;

filing wrong or misleading affidavits and information; and having

damaged lawyers’ property and High Court building and property.

159. The learned senior counsel submitted that the

procedure to be followed is generally as per the rules of the

Madras High Court dated 07.08.1975. As a matter of practice,

the advice of the learned Advocate General is sought which is

entitled to the highest consideration and in any case it cannot be

disputed that obstruction of the course of justice would enable

this Court to initiate contempt of itself suo motu.

154

160. When we consider the above submissions of the

respective counsel at the outset we wish to state that the incident

that took place on 17.02.2009, is being dealt with by a Full Bench

and therefore we refrain ourselves from dealing with the said

issue in this order. On contempt action, we wish to be guided by

the various decisions on this aspect. In the decision reported in

(2004) 5 SCC 26 (Daroga Singh Vs. B.K.Pandey) the Hon’ble

Supreme Court dealt with a case where the conduct of the

policemen who was also an Office Bearer of the association of

policemen at district level and who along with his supporters

entered the chambers of First Additional District and Sessions

Judge, Bhagalpur in Bihar after assaulting the Court peon, further

assaulted the Sessions Judge himself. Due to the manhandling,

the Sessions Judge felt dizziness and became unconscious. It

was due to the timely arrival of a team of Doctors his life was

saved. After assaulting the Sessions Judge and its Court Staff

the police personnel took away certain records and damaged the

doors and grills of the gate. They also assaulted some of the

lawyers and damaged their furniture and the motor vehicle

parked inside the Court compound. There was a report referring

the names of the police officials who were identified by the Court

staff as well as the Additional District Judge as well as the

155

lawyers who were assaulted. Based on the report of the District

Judge, the Division Bench of the High Court entertained a writ

petition and after hearing the President of the High Court

Advocates Association as well as the learned Advocate General,

the Division Bench came to the conclusion that prima facie case

of criminal contempt has been made out against the

contemnors. Thereafter proceedings under the Contempt of

Courts Act were initiated and contempt notice were issued by the

Registry to the contemnors calling upon them to show cause why

suitable action should not be taken against them for the alleged

misconduct. The State Government was also asked to report

about the steps taken relating to the incident. The Director

General of Police found the officers guilty of the alleged incident

and condemned the police officials for their act. The State

Government acting on the basis of the report of the Director

General of Police issued orders suspending all such officials from

service. A Commission of Enquiry was also set up under the

provisions of the Commissions of Enquiry Act, 1952. Apart from

the departmental proceedings, Criminal cases were also lodged

against them. When a request was made by the contemnors to

keep the contempt proceedings in abeyance awaiting the

outcome of the criminal prosecution as well as departmental

156

proceedings, the High Court declined the said prayer. In

response to the show cause notice, the contemnors condemned

the incident of assault on the Additional District Judge. Some of

the contemnors tried to justify the act by stating that there was

resentment amongst police personal for the arrest of one of their

colleagues and removal of stars from his uniform in the Court.

Some of them pleaded alibi. The High Court after taking due care

and caution dropped the proceedings against those who were not

really involved in the incident but found at least 10 of them guilty

and imposed punishment of simple imprisonment for a period of

three months and for another 8 contemnors to undergo simple

imprisonment for a period of two months. It was also made clear

that the discharge of rule of contempt notice of the proceedings

against the other 17 would not absolve them of their misconduct

and guilt for their respective offences, if any. The said order of

the High Court was the subject matter of challenge before the

Hon’ble Supreme Court. Several contentions were raised and

dealing with such contentions, ultimate conclusion of the Hon’ble

Supreme Court are stated as under in paragraphs 26, 29, 31, 32,

33, 35, 41 and 44:

“26. What is made punishable under

Section 228 IPC is the offence of

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intentional insult to a judge or interruption

of court proceedings but not as a contempt

of court. The definition of criminal

contempt is wide enough to include

any act by a person which would

either scandalise the court or which

would tend to interfere with the

administration of justice. It would also

include any act which lowers the

authority of the court or prejudices or

interferes with the due course of any

judicial proceedings. It is not limited to

the offering of intentional insult to the

judge or interruption of the judicial

proceedings. This Court observed in Delhi

Judicial Service Assn. v. State of Gujarat:

(SCC pp.457-58, paras 42 & 43)

The public have a vital stake in effective

and orderly administration of justice. The

Court has the duty of protecting the

interest of the community in the due

administration of justice and, so, it is

entrusted with the power to commit

for contempt of court, not to protect

the dignity of the Court against insult

or injury, but, to protect and vindicate

the right of the public so that the

administration of justice is not

158

perverted, prejudiced, obstructed or

interfered with. The power to punish

for contempt is thus for the protection

of public justice, whose interest requires

that decency and decorum is preserved in

courts of justice. Those who have to

discharge duty in a court of justice are

protected by the law, and shielded in the

discharge of their duties. Any deliberate

interference with the discharge of

such duties either in court or outside

the court by attacking the presiding

officers of the court, would amount to

criminal contempt and the courts must

take serious cognisance of such

conduct.

*****

29. We respectfully agree with the view

taken in this judgment and hold that the

High Court could initiate proceedings on its

own motion under the Contempt of Courts

Act against the appellants. On the facts of

this case apart from the report sent by the

Vth Additional District and Sessions Judge

of the incident, Young Lawyers’ Association

had also filed a writ petition. The

Presidents of the three Bar Associations

and the Advocate General were present

and heard before initiating the proceedings

159

for criminal contempt. It has been noted by

the High Court that “all the three

Presidents of the High Court Associations

and the Advocate General arrived at the

conclusion that a prima facie case of

criminal contempt was made out against

the contemners”. This shows that the

Advocate General of the State was also of

the opinion that prima facie a case for

initiation of proceedings for criminal

contempt was made out and he was a

consenting party to the initiation of the

proceedings.

*****

31. It has repeatedly been held by this

Court [Vinay Chandra Mishra, In re]

that the procedure prescribed either

under the Code of Criminal Procedure

or under the Evidence Act is not

attracted to the proceedings initiated

under Section 15 of the Contempt of

Courts Act. The High Court can deal

with such matters summarily and

adopt its own procedure. The only

caution that has to be observed by the

Court in exercising this inherent power of

summary procedure is that the procedure

followed must be fair and the

contemners are made aware of the

160

charges levelled against them and

given a fair and reasonable

opportunity. Having regard to the fact

that contempt proceedings are to be

decided expeditiously in a summary

manner the convictions have been

recorded without extending the opportunity

to the contemners to cross-examine those

who had deposed against them on

affidavits. Though the procedure adopted

in this case was summary but adequate

safeguards were taken to protect the

contemners’ interest. The contemners were

issued notices apprising them of the

specific allegations made against them.

They were given an opportunity to

counter the allegations by filing

their counter-affidavits and additional

counter/supplementary affidavits as per

their request. They were also given

opportunity to file affidavits of any other

persons which they did. They were given

opportunities to produce any other

material in their defence which they did not

do. Most of the contemners had taken the

plea that at the relevant time they were on

duty in their respective police stations

though in the same town. They also

attached copies of station diaries and duty

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chart in support of their alibi. The High

Court did not accept the plea of alibi as all

these papers had been prepared by the

contemners themselves and none of the

superior officers had supported such a

plea. The evidence produced by the

respondents was rejected in the face of the

reports made by the Additional District and

Sessions Judge, Director General of Police

coupled with affidavits of Mr Barai, the

Additional District and Sessions Judge, two

court officials and affidavits of some of the

lawyers who had witnessed the occurrence.

32. The contempt proceedings have to be

decided in a summary manner. The judge

has to remain in full control of the hearing

of the case and immediate action is

required to be taken to make it effective

and deterrent. Immediate steps are

required to be taken to restore order as

early and quickly as possible. Dragging the

proceedings unnecessarily would impede

the speed and efficiency with which justice

has to be administered. This Court while

considering all these aspects held in

Vinay Chandra Mishra, In re (the

alleged contemner) that the criminal

contempt no doubt amounts to an

162

offence but it is an offence sui generis

and hence for such offence, the

procedure adopted both under the

common law and the statute law in the

country has always been summary. It

was observed that the need was for taking

speedy action and to put the judge in full

control of the hearing. It was emphasised

that immediate steps were required to be

taken to restore order in the court

proceedings as quickly as possible. To

quote from the above-referred-to case:

(SCC pp. 609-10, para 26)

“However, the fact that the process is

summary does not mean that the

procedural requirement viz. that an

opportunity of meeting the charge, is

denied to the contemner. The degree of

precision with which the charge may be

stated depends upon the circumstances. So

long as the gist of the specific allegations is

made clear or otherwise the contemner is

aware of the specific allegation, it is not

always necessary to formulate the charge

in a specific allegation. The consensus of

opinion among the judiciary and the

jurists alike is that despite the

objection that the judge deals with the

163

contempt himself and the contemner

has little opportunity to defend

himself, there is a residue of cases

where not only it is justifiable to

punish on the spot but it is the only

realistic way of dealing with certain

offenders. This procedure does not

offend against the principle of natural

justice viz. nemo judex in sua causa

since the prosecution is not aimed at

protecting the judge personally but

protecting the administration of

justice. The threat of immediate

punishment is the most effective deterrent

against misconduct. The judge has to

remain in full control of the hearing of the

case and he must be able to take steps to

restore order as early and quickly as

possible. The time factor is crucial.

Dragging out the contempt proceedings

means a lengthy interruption to the main

proceedings which paralyses the court for a

time and indirectly impedes the speed and

efficiency with which justice is

administered. Instant justice can never be

completely satisfactory yet it does provide

the simplest, most effective and least

unsatisfactory method of dealing with

disruptive conduct in court. So long as

164

the contemner’s interests are

adequately safeguarded by giving him

an opportunity of being heard in his

defence, even summary procedure in

the case of contempt in the face of the

court is commended and not faulted.”

33. In the present case the High Court had

decided to proceed with the contempt

proceedings in a summary manner. Due

opportunity was afforded to all the

contemners and after verifying and cross-

checking the material available before it,

coming from different reliable sources the

High Court convicted only nine persons out

of twenty-six persons arrayed as

contemners before it. The High Court

took due care to ascertain the identity

of the contemners by cross-checking

with the affidavits filed by the

different persons. It is also based on the

independent reports submitted by the

Director General of Police and

Superintendent of Police. We do not find

any fault in the procedure adopted by the

High Court in conducting the proceedings

in the present case. For the survival of the

rule of law the orders of the courts have to

be obeyed and continue to be obeyed

165

unless overturned, modified or stayed by

the appellate or revisional courts. The

court does not have any agency of its own

to enforce its orders. The executive

authority of the State has to come to the

aid of the party seeking implementation of

the court orders. The might of the State

must stand behind the court orders for

the survival of the rule of the court in

the country. Incidents which

undermine the dignity of the courts

should be condemned and dealt with

swiftly. When a judge is attacked and

assaulted in his courtroom and chambers

by persons on whose shoulders lay the

obligation of maintaining law and order and

protecting the citizen against any unlawful

act, it needs to be condemned in the

severest of terms. If the judiciary has to

perform its duties and functions in a fair

and free manner, the dignity and the

authority of the courts has to be respected

and maintained at all stages and by all

concerned failing which the very

constitutional scheme and public faith in

the judiciary runs the risk of being lost.

*****

35. Plea that reasonable and adequate

opportunity was not afforded to the

166

appellants is equally untenable. We find

from the record that all the materials

(affidavits, show-cause notice, etc.) which

were brought on record were properly

served on the learned advocates appearing

for the contemners. The reports submitted

by the Vth Additional Sessions Judge,

District Judge, affidavit of Shri Barai and

his staff, namely, R. Das and B. Sharma

and the other affidavits of the advocates

who had seen the occurrence and the

reports submitted by the Director General

of Police and the Superintendent of Police

were given to the learned advocates who

were appearing for the contemners in the

High Court. Statements of A. Natarajan,

the then SP, Harihar Choudhary, the then

Deputy Superintendent of Police, Ranjit

Pandey, the then Sergeant Major and

Shashi Lata Singh, the then SI were

recorded by the High Court in the presence

of all the lawyers. The Registry of the High

Court was directed to keep their

statements in a sealed cover. The

contemners were permitted to file

affidavits and produce any other material

in support of the same. They were also

permitted to file affidavits of any other

person supporting their version. They

167

were all taken on record. After

affording due opportunity of hearing

to the counsel appearing for the

contemners, the High Court recorded

the order of conviction. Thus the

appellants were given the evidence which

had come on the record. They were given

an opportunity to controvert the

allegations made against them and

produce evidence in support thereof.

Counsel appearing for the contemners

were satisfied with the opportunity

provided to them by the High Court. Plea

that reasonable opportunity was not

afforded to the contemners was not raised

before the High Court. We are of the

opinion that due reasonable and adequate

opportunity was afforded to the appellants

to defend themselves and put forth their

point of view.

*****

41. In the constitutional scheme the

judiciary is entrusted with the task of

upholding the Constitution and the laws.

Apart from interpreting the Constitution

and the laws, the judiciary discharges the

function of securing maintenance of law

and order by deciding the disputes in a

manner acceptable to civilised and peace-

168

loving society. In order to maintain the

faith of the society in the rule of law

the role of the judiciary cannot be

undermined. In a number of cases this

Court has observed that foundation of

the judiciary is the trust and

confidence of the people of the nation

and when such foundation or trust is

rudely shaken by means of any

disrespect by the very persons who

are required to enforce the orders of

the court and maintain law and order

the people’s perception of efficacy of

the systems gets eroded.

42. The judges are — as a jurist calls them

— “paper tigers”. They do not have any

machinery of their own for implementing

their orders. People, while approaching

the court of law which they regard as

the temple of justice, feel safe and

secure whilst they are in the court.

Police personnel are deployed in the court

campus for the purpose of maintaining

order and to see that not only the judges

can work fearlessly in a calm, cool and

serene atmosphere but also to see that

anyone coming to the court too feels safe

and secure thereat. Every participant in

169

court proceedings is either a seeker of

justice or one who comes to assist in

administration of justice. So is the

expectation of the members of the Bar who

are treated as officers of the court. We

shudder to feel what would happen if

the police personnel themselves, and

that too in an organised manner, are

found to be responsible for disturbing

the peace and order in the court

campus, for causing assault on the

judges and thus sullying the temple of

justice apart from bringing a bad

name to an indispensable organ of the

executive wing of the State.

*****

44. We have not been able to forget the

policing role of the police of the British Raj

wherein an attitude of hostility between

the police and the policed under the

colonial rule was understandable. It is

unfortunate that in one of the largest

constitutional democracies of the world the

police has not been able to change its that

trait of hostility.” (Emphasis added)

161. In the decision of the Hon’ble Supreme Court reported

in (1995) 3 SCC 767 (Dhananjay Sharma Vs. State of

170

Haryana and Others) while dealing with a false plea made

before the High Court in a Habeas Corpus petition, the Hon’ble

Supreme Court held as under in paragraph 38 :

“38. Section 2(c) of the Contempt of

Courts Act, 1971 (for short the Act) defines

criminal contempt as “the publication

(whether by words, spoken or written or by

signs or visible representation or

otherwise) of any matter or the doing of

any other act whatsoever to (1) scandalise

or tend to scandalise or lower or tend to

lower the authority of any court; (2)

prejudice or interfere or tend to interfere

with the due course of judicial proceedings

or (3) interfere or tend to interfere with, or

obstruct or tend to obstruct the

administration of justice in any other

manner. Thus, any conduct which has the

tendency to interfere with the

administration of justice or the due course

of judicial proceedings amounts to the

commission of criminal contempt. The

swearing of false affidavits in judicial

proceedings not only has the tendency

of causing obstruction in the due

course of judicial proceedings but has

also the tendency to impede, obstruct

and interfere with the administration

171

of justice. The filing of false affidavits

in judicial proceedings in any court of

law exposes the intention of the party

concerned in perverting the course of

justice. The due process of law cannot be

permitted to be slighted nor the majesty of

law be made a mockery of by such acts or

conduct on the part of the parties to the

litigation or even while appearing as

witnesses. Anyone who makes an attempt

to impede or undermine or obstruct the

free flow of the unsoiled stream of justice

by resorting to the filing of false evidence,

commits criminal contempt of the court

and renders himself liable to be dealt with

in accordance with the Act. Filing of false

affidavits or making false statement

on oath in courts aims at striking a

blow at the rule of law and no court

can ignore such conduct which has the

tendency to shake public confidence in

the judicial institutions because the

very structure of an ordered life is put

at stake. It would be a great public

disaster if the fountain of justice is allowed

to be poisoned by anyone resorting to filing

of false affidavits or giving of false

statements and fabricating false evidence

in a court of law. The stream of justice has

172

to be kept clear and pure and anyone

soiling its purity must be dealt with sternly

so that the message percolates loud and

clear that no one can be permitted to

undermine the dignity of the court and

interfere with the due course of judicial

proceedings or the administration of

justice. In Chandra Shashi v. Anil Kumar

Verma the respondents produced a false

and fabricated certificate to defeat the

claim of the respondent for transfer of a

case. This action was found to be an act

amounting to interference with the

administration of justice. Brother Hansaria,

J. speaking for the Bench observed: (SCC

pp.423-24, paras 1 and 2)

“The stream of administration of

justice has to remain unpolluted

so that purity of court’s

atmosphere may give vitality to

all the organs of the State.

Polluters of judicial firmament

are, therefore, required to be

well taken care of to maintain

the sublimity of court’s

environment; so also to enable

it to administer justice fairly and

to the satisfaction of all

concerned.

173

Anyone who takes

recourse to fraud deflects the

course of judicial proceedings;

or if anything is done with

oblique motive, the same

interferes with the

administration of justice. Such

persons are required to be

properly dealt with, not only to

punish them for the wrong

done, but also to deter others

from indulging in similar acts

which shake the faith of people

in the system of administration

of justice.” (Emphasis added)

162. In the decision reported in (1996) 6 SCC 323

(Commissioner of Police, Delhi and another Vs. Registrar,

Delhi High Court, New Delhi), the Hon’ble Supreme Court

dealt with a case where the former Prime Minister P.V.Narasimha

Rao was summoned by the Chief Metropolitan

Magistrate/Additional Sessions Judge, Tis Hazari Court. As

Mr.P.V.Narasimha Rao as former Prime Minister was to be

provided with necessary security of highest degree, the Court

was approached to permit the authorities to make the entire

174

Court campus a sterilized zone. When the parties approached the

Delhi High Court, seeking for change of venue and the place of

trial, the High Court declined their request on the administrative

side. The matter went before the Hon’ble Supreme Court. The

Hon’ble Supreme Court while considering the rejection order of

the Administrative Committee of the High Court took note of the

detailed minutes which disclosed that the paramount interest of

the Court is the normal functioning of the regular Courts even

while noting that the security personnel even while providing

security cover of special protection to the former Prime Minister

cannot cause any inconvenience to the functioning of the Courts.

That decisions also makes it clear that even under extraordinary

circumstance such as affording of special protection cover to a

former Prime Minister as a statutory obligation, the concerned

authorities felt the need to approach the Court for prior

permission and not take an unilateral decision.

163. In the Division Bench decision of the Allahabad High

Court reported in 1983 Cri.L.J. 866 (State of U.P. Vs. Deg Raj

Singh), the Division Bench held as under in paragraphs 34 and

36:

“34. In the instant case both the accused

175

viz. Surendra Singh and Ramesh Singh

approached the Court of the learned Chief

Judicial Magistrate in connection with their

surrender application. The contemners in

a high handed manner deprived the court

to dispose of their surrender application

and thus denied the Court the power to

administer justice duly and impartially and

it clearly amounted to a gross contempt of

Court. Such act and conduct of the

contemners clearly amounted to

interference with the administration of

justice in this case. The contemners never

informed the Court about any warrant, etc.

in their possession nor sought his

permission before apprehension of Ramesh

Singh and Surendra Singh and are not

entitled to any protection by alleging that

the aforesaid accused were local terrors

and absconders and they were duty bound

to arrest them despite the commission of

contempt of Court. So they are held guilty

of Section 2(c) of the Contempt of Courts

Act, 1971.

*****

36. If apology is to dilute the gravity of

the offence it should be voluntary,

unconditional and indicative of remorse

and contrition tendered at the earliest

176

opportunity. In the instant case it has been

found that the apology was offered by both

the contemners while denying the act of

contempt and was not sincere and so it was

simply an empty formality. Such apology

which is devoid of remorse could not

counteract or palliate the mischief that had

already been done.” (Emphasis added)

164. In the decision reported in 2007 (4) CHN 842

(Association for Protection of Democratic Rights Vs. State

of West Bengal and Ors.) a Division Bench of the Calcutta High

Court in a suo motu writ petition relating to the incident that took

place at Nandhigram were the West Bengal police stated to have

taken some action against the agitating farmers and other

villagers, the Division Bench held that prima facie in a wholly

indefensible manner innocent people were shot down by none

other than the uniformed police officers. Dealing with the said

situation in the suo motu writ petition, the Court formulated the

following questions in paragraph 76 and observed as under in

paragraph 77 and 78:

“76. The action of the police would,

therefore, raise some very serious

questions, viz.:

177

(a) Was it necessary to surround the area

by three thousand strong police force ?

(b) Was the police action justified in

virtually invading the villages ?

(c) Did the officers concerned have any

jurisdiction to order the police to open fire

indiscriminately without identifying the

targets or the ring leaders in the huge

crowd?

(d) The crowd was no large by its very

nature only individuals at the front would

have been the target of the bullets?

77. The fact situation has been

depicted by the team of Advocates in their

report. Mr.Mukherjee has made a

reference to a diagram in the area where

the police firing took place. He had

reiterated time and again the pleadings in

which it is categorically stated that the

police firing that erupted on 14th of March,

2007 was in the nature of State sponsored

terrorism. Furthermore, the report

submitted by the doctors who visited the

locality have actually shown the individuals

who are responsible for rape, arson etc. In

such circumstances, we are of the opinion

that the learned Senior Counsel,

Mr.Mukherjee, is justified in his submission

178

that the High Court ought to exercise its

power under Article 226/227 of the

Constitution of India and issue necessary

orders and directions to unearth the truth.

78. We are unable to accept the

submission of the learned Advocate

General that mere gathering of very large

group of villagers would be so intimidating

or awesome as to overawe the State or its

authorities as required under Section 129

of the Cr.P.C. The very wide definition of

‘force’ given in Section 349 of IPC,

therefore, cannot be a justification for

discriminate gun firing indulged in by the

police, ostensibly disperse or control the

crowd.”

The Division Bench went on to hold as under in paragraph 106,

where the Division Bench referred to certain principles laid down

by the Hon’ble Supreme Court in LLP.State Road Transport

Case:

“106…..There is thus no doubt that the

High Courts in India exercising their

jurisdiction under Article 226 have the

power to issue a writ of mandamus or

a writ in the nature of mandamus or to

pass orders and give necessary

179

directions where the Government or a

public authority has failed to exercise

or has wrongly exercised the

discretion conferred upon it by a

statute or a rule or a policy decision of

the Government or has exercised such

discretion mala fide or on irrelevant

considerations or by ignoring the

relevant considerations and materials

or in such a manner as to frustrate the

object of conferring such discretion or

the policy for implementing which

such discretion has been conferred. In

all such cases and in any other fit and

proper case a High Court can, in the

exercise of its jurisdiction under Article

226, issue a writ of mandamus or a writ in

the nature of mandamus or pass orders

and give directions to compel the

performance in a proper and lawful manner

of the discretion conferred upon the

Government or a public authority, and in a

proper case, in order to prevent injustice

resulting to the concerned parties, the

Court may itself pass an order or give

directions which the Government or the

public authority should have passed or

given had it properly and lawfully exercised

its discretion………” (Emphasis added)

180

165. We also bestow our due consideration to the decisions

placed before us by Dr.Rajeev Dhavan on the issue of contempt

jurisdiction. In the decision reported in (1972) 1 SCC 651

(R.L.Kapur Vs. State of Madras) it has been held as under in

paragraph 5:

“5. Article 215 declares that every High

Court shall be a Court of record and shall

have all powers of such a Court including

the power to punish for contempt of itself.

Whether Article 215 declares the power of

the High Court already existing in it by

reason of its being a Court of record, or

whether the article confers the power as

inherent in a Court of record, the

jurisdiction is a special one, not arising or

derived from the Contempt of Courts Act,

1952, and therefore, not within the

purview of either the Penal Code or the

Code of Criminal Procedure……..In any

case, so far as contempt of the High Court

itself is concerned, as distinguished from

that of a Court subordinate to it, the

Constitution vests these rights in every

High Court, and so on Act of a Legislature

could take away that jurisdiction and

confer it afresh by virtue of its own

authority.”

181

166. The learned senior counsel also referred to a decision

reported in (1995) 2 SCC 584 (Vinay Chandra Mishra, In re

v.) where in paragraph 45 the Hon’ble Supreme Court took the

following view:

“45…..That jurisdiction is independent of

the statutory law of contempt enacted by

Parliament under Entry 77 of List I of

Seventh Schedule of the Constitution. The

jurisdiction of this Court under Article 129

is sui generis. The jurisdiction to take

cognizance of the contempt as well as to

award punishment for it being

constitutional, it cannot be controlled by

any statute.”

167. Dr.Rajeev Dhavan however made a fair statement that

though in the decision of the Hon’ble Supreme Court reported in

(1996) 11 SCC 93 (Executive Director, Tirumala Tirupathi

Devasthanam Vs. D.Nagulu Naidu) it was observed that the

Hon’ble Supreme Court or High Court does not have a carte

blanche power to exercise whatever power it thinks fit, in the

name of contempt of Court.

168. The learned senior counsel referred to an earlier

decision of the Hon’ble Supreme Court reported in (1991) 4 SCC

182

406 (Delhi Judicial Service Association Vs. State of

Gujarat), wherein, it has been stated that the Court of Justice

without power to vindicate its own dignity, to enforce obedience

to its mandates, to protect its officers, or to shield those who are

entrusted to its care, would be an anomaly which could not be

permitted to exist in any civilized community Society.

169. The learned senior counsel also contended that the

argument of the learned counsel for the petitioners that there is

rigid rule whereby the judiciary is insulated with an iron like

curtain, where it is wholly impermissible for the police to arrest

any criminal or even its presence is overbroad submission and

should not be accepted.

170. According to the learned senior counsel when based

on Government of India guidelines considering the threat

perception of the Supreme Court and the High Court in the

Country, specified security arrangements was directed to be

made and such security system was introduced to this Court on

and from 29.01.2009, the presence of the police cannot be

frowned upon and the action of the police in their genuine

attempt to control the law and order situation cannot be found

183

fault with. The learned senior counsel therefore contended that

the police officers having come forward to express their

unconditional apology for whatever happened on 19.02.2009 and

in respect of the Commissioner of Police whose career growth by

virtue of his personal excellence in the field of police

administration, initiation of either disciplinary or contempt

proceedings would seriously impinge upon/spoil his career and

therefore this Court should not countenance the claim of the

petitioners.

171. Having been fortunate enough to hear the enlightened

and dispassionate submissions of Dr.Rajeev Dhavan and the

anxious submissions made by Ms.R.Vaigai and other learned

counsel representing the lawyers, we proceed to consider this

question with utmost care and caution.

172. As rightly contended by Dr.Rajeev Dhavan, we do

agree that there cannot be total immunity, as has been claimed

on behalf of the petitioners from other wings of the State in

particular by the police. The non-availability of any statutory or

other regulations apart, we must state in the present day context

the judiciary plays a pivotal role in rendering its yeomen service

184

to the citizens of this country. Time and again, it is being

repeatedly stated from every quarters that for every man’s

redressal the last resort is the judiciary. De hors and despite

several constraints and criticism, there can be no two opinion

that even today the judiciary is the institution which commends

high amount of reputation and respect from among the members

of the society and the right thinking persons. The institution,

which is rendering service to the common man, is looked upon by

every one with high amount of confidence and hope that pitted

against any onslaught or at extreme situation where one seeks

succor, this institution has not failed to come for one’s rescue and

take all endeavor to remedy the wrong or prevent an evil from

taking place or redress the grievance to the extent to which one

is entitled/possible and thus proved its existence all these years

and thereby keeping its mettle high in everyone’s esteem and

expectation.

173. If the scheme of the Constitutional provisions are

looked into, the institution of the Parliament and the Legislative

Assembly on the one hand and the other wing of the State

namely the Executive including the Police force and armed forces

are dealt with differently. Special privileges are accorded to the

185

institution of Parliament and the Legislative Assembly. Under

Article 105 of the Constitution, such principles have been spelt

out in so far as the Houses of Parliament and all its members and

the Committees thereof. Under Article 194 of the Constitution

such privileges have been extended to the State Legislature, its

members and Committees thereof. The services of those under

the State are concerned, the same is dealt with under Chapter IV

of Part XIV of the Constitution consisting of Articles 308 to 314.

174. As compared to such regulations contained in such

Chapter in so far as the the services of the Courts, we find that

under Chapter VI which contains Articles 233 to 237 of the

Constitution of India, the whole of the regulatory measures on

the subordinate courts are vested with the High Court apart from

the power of superintendence over all Courts subordinate to it by

the High Court under Article 227 of the Constitution. When we

make a glimpse of the provisions contained under Article 124

relating to the establishment and constitution of the Supreme

Court falling under Chapter IV and Articles 217 and 218 relating

to the appointment and condition of office of a Judge of a High

Court falling under Chapter V, the provisions have been couched

in such a manner that the framers of the Constitution bestowed

186

their utmost concern to ensure that the process of judicial

institution is kept aloof from the reach of any other wing of the

State and thereby ensure confidence in the minds of the common

man that though the expenditure of the judiciary is also met from

the State Exchequer but yet the wing of the judiciary would

encompass any situation and any person or body when it comes

to the question of rendering justice irrespective of caste, creed,

colour or status.

175. Keeping the above lofty ideas which weighed with the

constitutional framers, while providing a special status to the

judiciary in the hierarchy of public service, we are convinced that

any attempt from any quarters either deliberately or subvertly or

negligently or recklessly or in any other allied manner to cause a

dent to the institution should be seriously dealt with in order to

ensure that the greatness of the institution is not undermined by

any one to the detriment of the public at large. To put it

differently, unless as pointed out by the Hon’ble Supreme Court

in the decision reported in (1991) 4 SCC 406 (Delhi Judicial

Service Association Vs. State of Gujarat), wherein, it has

been stated with authority and confidence that the Court of

Justice without power to vindicate its own dignity, to enforce

187

obedience to its mandates, to protect its officers, or to shield

those who are entrusted to its care, in our considered opinion

there would only be anarchy everywhere else in as much as it will

be the starting point for shaking the insurmountable pillar of the

institution providing scope for anybody else to attempt to play a

dirty game with the institution by designing their own form of evil

schemes.

176. Keeping the above perception in mind about the

status of the institution and its obligation to the society at large,

when we analyze the issue and questions posed before us, at the

very outset we are constrained to state that what happened on

19.02.2009, was an extreme and extraordinary situation which

calls for an extraordinary action. In fact that is the principle

stated by the Hon’ble Supreme Court in the decision reported in

(2003) 6 SCC 581 (T.K.Rangarajan Vs. Government of

Tamil Nadu).

177. The enormity and extraordinary nature of the situation

can be focused by listing out the following circumstances namely:

(i) The Head of the Council of

Ministers of the State namely the Hon’ble

188

the Chief Minister in his spontaneous

response, forwarded a fax message to the

then Hon’ble Acting Chief Justice on

19.02.2009, described the happening in

the High Court as:

“Unprecedented violence has

taken place…..”

He concluded the said fax message by

saying”

“…..I am expecting your

valuable suggestions to

contain this violence and to

ensure justice is done and

peace is restored. Though I

am in the hospital, if you wish

to see me, I will come and

meet you even in an

Ambulance.”

(ii) There was bloodshed inside the

campus to a very large extent which the

campus never ever witnessed from the

date of its inception.

(iii) Such bloodshed was of the

lawyers (mostly innocent), Staff members,

some of the policemen as well as litigant

public.

189

(iv) There were instances of lathi

charge by the policemen who indulged in

such lathi charge in an uncontrollable

manner and as could be seen from the CD,

such lathi charge was indiscriminate and

was not in consonance with the manner in

which it was set out in the Drill and

Training Manual.

(v) The officers concerned who were

responsible for ordering such lathi charge

had absolutely no control over their own

men.

(vi) In the process of such lathi

charge, there was extensive damage

caused to the vehicles numbering more

than 100 both four wheelers and two

wheelers as well as bicycles which was not

permissible in law.

(vii) Physical injury was caused to a

sitting Judge of this Court who attempted

to prevent such incidents from taking

place. The scene of attack of the learned

Judge as displayed in the CD was

extremely pathetic.

190

(viii) The policemen found in the

process of lathi charge were seen entering

into the buildings of the Court premises,

which was totally unwarranted and

impermissible.

(ix) There were even damages

caused to the furnitures inside the Court

Hall of the XII Judge, Court of Small

Causes.

(x) Extensive damages were caused

to the buildings of the City Civil Court,

Small Causes Court including the High

Court and to repair such damages, it

costed not less than Rs.7,00,000/- for the

Public Works Department.

(xi) The injuries sustained were

severe and some of the injured sustained

head injuries and the cost of treatment for

all those injured persons was in the order

of Rs.32,97,595/- and odd.

(xii) The charging policemen did not

spare even a van which was meant for

transporting the judicial officers, in spite of

the fact that there was a clear indication

on the side of the van where it was written

191

“ePjpj;Jiw (Judiciary)”.

(xiii) Apart from Hon’ble Mr.Justice

A.C.Arumugaperumal Adityan, though the

Hon’ble Acting Chief Justice himself along

with some of the Hon’ble Judges rushed to

the starting point of the lathi charge, they

were forced to withdraw since they were

cautioned that the mood of the policemen

was such that anything may happen even

to the Hon’ble Judges.

(xiv) Though the solitary victim was

Hon’ble Mr.Justice A.C.Arumugaperumal

Adityan, while the Hon’ble Acting Chief

Justice, Hon’ble Mr.Justice R.Sudhakar and

Hon’ble Mr.Justice R.Regupathi had a

narrow escape.

(xv) The charging policemen entered

into the library section of the Law

Association as well as Madras High Court

Advocates Association and caused

extensive damages to the Bookshelves as

well as to the books kept therein.

(xvi) Some of the clippings disclose

that even while taking the injured

advocates to the ambulance before

192

allowing them to enter into the ambulance

van, severe beating was meted out to such

injured advocates without any mercy.

(xvii) Though the severity of the

situation indisputably commenced after

2.00 pm and ended by around 6.30 pm

none of the concerned police officers

namely the Commissioner of Police,

Additional Commissioner of Police,

jurisdictional Joint Commissioner of Police

and jurisdictional Deputy Commissioner of

Police either on their own or at the

instance of the Hon’ble Acting Chief Justice

were prepared to meet him and apprise

him of the seriousness of the situation.

(xviii) the order dated 19.02.2009,

passed by the Full Bench headed by the

Hon’ble Acting Chief Justice himself,

disclose that the High Court was totally

unaware of the game plan of the police

headed by the Commissioner of Police till a

report was filed by the Commissioner of

Police that too after repeated persistence

on 18.03.2009.

(xix) The situation which developed

after 12.00 noon was not a spontaneous

193

one posing a threat perception for the

police to act but was one which was

developed and fuelled by the police

themselves which went out of control and

the consequence was a piquant situation in

which the police themselves were placed.

(xx) The beating of lawyers was not

restricted to the High Court campus alone,

it was carried beyond the campus and the

video clippings disclose that the policemen

were chasing the lawyers in some of the

streets opposite to the High Court

premises on the northern side where many

of the lawyers have got their own

chambers.

(xxi) All the top officers namely the

Chief Secretary, Home Secretary, Director

General of Police, Additional Director

General of Police and the Commissioner of

Police assembled in the Acting Chief Justice

Chambers where a Full Bench was

constituted on 19.02.2009 at around 6.40

pm, that is, after the extensive damage

was done to the personnel and the

premises of the High Court.

194

(xxii) realizing the enormity of the

situation, the team of top officials referred

to above who were given a personal

hearing by the Full Bench came forward to

straight away agree for an enquiry of the

whole incident by the CBI.

(xxiii) The injured advocates, staff

and others numbering more than 130 were

all given first aid in the Government

Hospital and were later admitted in private

hospitals for which the State had to shell

out a sum of Rs.32,97,595/-.

(xxiv) Similarly for the damaged

vehicles compensation to the tune of

Rs.10,63,953/- has so far been disbursed

through the High Court from the funds

provided by the State Government.

(xxv) the aftermath of the incident

on 19.02.2009, was still worse, in as much

as, the High Court did not function on the

next day i.e. on 20.02.2009 which was a

Friday and also on 23.02.2009 and

24.02.2009, i.e. the following Monday and

Tuesday.

195

(xxvi) Though the advocates who

were on boycott from 29.01.2009 for the

cause of Srilankan Tamils withdrew their

boycott and started attending Courts on

19.02.2009, in the light of the occurrence

on 19.02.2009, they continued their

boycott subsequently also which could be

brought to an end only on and from

23.03.2009.

(xxvii) City Civil Court and the Court

of Small Causes as well as the subordinate

Courts also did not work from 20.02.2009

upto 27.02.2009. Further the City Civil

Court and the Court of Small Causes could

resume their work only from 02.03.2009.

(xxviii) Because of the

unprecedented occurrence on 19.02.2009,

the animosity between the police and the

advocates also got aggravated and

consequently the policemen were reluctant

to accompany the remand prisoners to the

Court and consequently the Judicial

Magistrate’s had to go to the concerned

Jail or sub-jail to pass orders of remand.

Such a situation was prevailing for more

than a month.

196

(xxix) in and around the High Court

campus since the lawyers were protesting

against the action of the police, the normal

traffic got disrupted on the NSC Bose Road

and the public were put to great

inconvenience.

(xxx) Such a situation also created

grave tension till the advocates resumed

their work on and from 23.03.2009.

(xxxi) on 19.02.2009, itself the B-4

Police Station located inside the High Court

campus was set on fire and extensive

damage was caused to its property.

(xxxii) on 20.02.2009, a vehicle

belonging to the fire service was set on fire

and the vehicle was completely burnt into

ashes.

178. A consideration of the prevalence of the above

circumstances cannot be treated in a light-hearted manner. In

other words, by virtue of the unprecedented unsavory incident

that occurred on 19.02.2009, the institution namely the Judiciary

in the State of Tamil Nadu from the top to bottom was totally

paralyzed for which whomsoever was responsible is bound to

197

answer and face the necessary consequences. As stated by us

earlier, the enormity of the situation was something

extraordinary which cannot be dealt with lightly. We say so

because the occurrence must be an eye opener for everyone both

the lawyers as well as the police in future and under no

circumstances, either this institution namely the Judiciary or any

other constitutional machinery or for that matter other limbs of

the State could afford to face such a situation by shifting the

responsibilities or fault on somebody else or any group of

persons. The Court will be failing in its duty if appropriate

measures are not taken to protect its status, glory and dignity

and thereby instil confidence in the minds of everyone that the

Judiciary will uphold its authority and status at times when

people cry for justice and it will not leave any stone unturned in

order to achieve that goal.

179. With the above point of view in mind when we

consider some of the decisions cited by the members of the bar

we find that the decision reported in (2004) 5 SCC 26 (Daroga

Singh Vs. B.K.Pandey) was more or less identical to the case

on hand. That was also a case where for one single individual

who was a policeman a group of policemen indulged in vandalism

198

under the direct supervision of the higher officials which

necessitated the Court to initiate appropriate contempt action

and out of 26 police personnel who were issued with show cause

notice for contempt, 18 of them were imposed with punishment

which was also upheld by the Hon’ble Supreme Court. It will be

sufficient to make a reference to the extracted part of that

decision in the earlier part of this order.

180. While considering the submissions of Dr.Rajeev

Dhavan that the police have got every authority to remain in the

premises, that the immunity as has been provided to the

Parliament and its members cannot be applied to the Courts and

Judiciary are concerned, we do agree with the said submission of

the learned senior counsel. But we have spelt out our own

reasons as to why we were not in a position to accept his

submission that threat perception of this Court warranted not

only their mere presence but also indulging in certain serious

actions such as lathi charge etc., in order to hold that no further

direction need be necessary. With great respect to the learned

senior counsel, we hold that the various factors which has

weighed with this Court and referred to above constraints, this

Court to hold that the action of the police who were under the

199

command of four high level police officers namely the

Commissioner of Police Mr.K.Radhakrishnan, Additional

Commissioner of Police Mr.A.K.Viswanathan, jurisdictional Joint

Commissioner of Police Mr.M.Ramasubramani and the

jurisdictional Deputy Commissioner of Police Mr.Prem Anand

Sinha are squarely responsible and consequently they are bound

to answer to this Court as to why action for contempt should not

be taken against them for having deranged the prestigious

institution namely the Judiciary of the State by paralyzing its

activities due to unprecedented and uncontrolled act of

indiscriminate lathi charge and consequential extensive damages

caused to men and material inside the High Court campus

between 2.00 pm and 6.30 pm on 19.02.2009. The plea of

Dr.Rajeev Dhavan that the act of the police was not intentionally

done cannot therefore be accepted. Therefore, any amount of

apology offered does not deserve any merit for acceptance.

Question No.(vi) is thus answered as above.

QUESTION No.(v):-

181. Though one may feel what remains after the above

order as against the police, we feel that as the highest Court of

this State, some of the naked truth about the conduct of the

200

lawyers also calls for reformation. We are fully conscious of the

status of a lawyer in the society and by calling for a reformation,

we do not mean any disrespect to the profession. With all the

responsibilities instilled in this Court while at the same time being

part of the legal fraternity, we will be failing in our duty if some

of the factors which have developed in the recent past are not

brought to light and the lawyer’s community is directed to focus

their attention more towards their greater assistance in the

implementation of law and service to the society instead of

providing any scope for unscrupulous elements to take advantage

of enormous wealth and strength of power inbuilt in the legal

profession for achieving their unlawful objectives.

182. In this context, we are obliged to refer to the

untrammeled submission of Mr.R.C.Paul Kanakaraj, learned

counsel representing the lawyers and who is also the President of

the Madras High Court Advocates Association, in the course of his

submissions when he made it clear that their agitation which

commenced on 21.01.2009, in the course of which whatever

methods adopted by them was only for the cause of the Sri

Lankan Tamil citizens who were treated harshly in the

neighbouring country namely Sri Lanka. The learned counsel also

201

submitted that whomsoever indulged in any other criminal

activities against whom criminal cases were launched is not

supported by the association of lawyers and the police will be at

liberty to proceed against them in the manner known to law and

the association or its members did not and will not support any

such alleged criminal activities indulged in by any of the accused

in those incidents.

183. While appreciating the fair statement made by the

President of the Madras High Court Advocates Association, we are

bound to point out that the abstaining of Courts by the lawyers

for whatever reason it may be does not behove well. There are

umpty number of various other methodologies by which without

causing hurt to any one or without causing damage to any one

and without disrupting the functioning of the Courts, the lawyers

who belong to a noble profession can display their protest which

would draw the attention of the concerned authorities with much

more care and concern. It is not for this Court to suggest as to

what those other peaceful methodology that can be resorted to.

184. At this juncture it will not be out of place to remind

ourselves of the fact that the Father of our Nation the great

202

Mahatma Gandhi, who fought for the Independence of this

Country was himself a member of the legal fraternity. Every one

of the other leaders namely Dr. Rajendra Prasad, Pandit

Jawaharlal Nehru, Dr.Ambedkar, Dr.Rajaji, Dr.Jaykar, Alladi

Krishnasamy Iyer and very many other great personalities who

constituted the Constitution Assembly were all lawyers. In other

words, the Magna Carta of this Country, namely the Constitution

was framed by those great personalities who all belonged to the

Lawyers community by exerting and toiling their mind, body and

soul for nearly three long years i.e between 1947 and 1950 and

that ultimately the Constitution was dedicated to the Nation on

26.01.1950.

185. It was for these reasons that the legal profession was

always placed in a high esteem by every other member of this

Society and such confidence is still reposed in this profession as it

has now become a settled position that it is the lawyers who can

lead this Country in every other pursuit, also by virtue of the

wealth of knowledge and know-how, learnt and retained by them.

When that be the credibility of the profession, the time has now

come for everyone who is part of this institution namely the legal

fraternity to stand up and question to thyself whether we are

203

proceeding in the right direction. For the sake of immediate

attention we also wish to list out certain statistics relating to

boycott of Courts at the instance of the lawyers. The following

are the details of boycott by lawyers in each district of Tamil

Nadu during the years 2006, 2007, 2008 and 2009:

TOTAL NUMBER OF DAYS OF BOYCOTT BY LAWYERSIN EACH DISTRICT IN TAMIL NADU DURING

THE YEARS 2006, 2007, 2008 & 2009

DETAILS FURNISHED BY THE PRINCIPAL DISTRICT JUDGES

1. COIMBATORE DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Coimbatore City 11 4 31 56

b) Tiruppur 2 3 24 36

c) Pollachi 5 7 28 36

d) Udumalpet 4 3 28 36

e) Valparai 5 4 6 36

f) Mettupalayam 3 10 4 42

g) Palladam 5 4 24 36

h) Avinashi 4 4 28 36

2. CUDDALORE DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Cuddalore 14 13 40 8

b) Panruti 20 30 75 18

c) Chidambaram 20 20 14 7

d) Neyveli 26 16 41 7

e) Portonovo 9 25 19 17

f) Tittangudi 7 9 26 17

g) Katumannarkovil 1 43 7 3

h) Virudhachalam 23 66 38 23

3. DHARMAPURI DISTRICT: District Court constituted on 17.02.2008

PLACE 2008 2009 upto31.08.09

a) Dharmapuri 47 76

b) Harur 25 46

c) Pennagaram 27 13

d) Pappireddypatti 15 17

e) Palacode 12 5

204

4. DINDUGUL

PLACE 2006 2007 2008 2009 upto31.08.09

a) Dindugul 30 21 37 53

b) Palani 36 55 - 19

c) Kodaikanal

42 24 17

No ResolutionReceived bythe District

Court

d) Nilakottai 16 53 25 62

e) Vedasandur 19 33 31 29

f) Natham 2 21 - 47

g) Oddanchatram - - 24 21

5. ERODE DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Combined court building, Erode, 4 7 25 23

b) Addl District Court, FTC IV, Bhavani 7 16 30

c) Sub-Court, Bhavani 6 15 37

d) I Addl District Munsif Court, Bhavani 8 15 30

e) Judicial Magistrate, Bhavani 6 14 30

34

f) Fast Track Court No.III, Gobi 6 3 51

g) Sub-Court, Gobi 6 3 51

h) District Munsif Court, Gobi 6 3 51

i) Judicial Magistrate No.I, Gobi 6 3 51

j) Judicial Magistrate No.II, Gobi 6 3 51

31

k) Judicial Magistrate, Satyamangalam 3 4 8 21

l) District Munsif Court, Kangeyam 4 4 1 20

m) Fast Track Court No.III, Dharapuram 12 6 4 31

n) Sub-Court, Dharapuram 12 6 4 31

o) District Munsif Court, Perundurai 12 6 11

p) DM-cum-JM, Perundurai Nil Nil 621

q) DM-cum-JM, Kodumudi 8 22 5 28

6. KANCHEEPURAM DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Kancheepuram 38 8 8 Entire period from01.01.09 to

31.08.09

b) Pallipattu 2 - - -

c) Tambaram 6 2 13 18

d) Thirukalikundram 2 1 10 17

e) Maduantakam 1 3 24 23

f) Uthiramerur 1 5 3 13

g) Alandur 1 5 4 21

h) Chengalpattu 1 1 15 19

i) Sriperumbudur - - - 1

205

7. KANNIYAKUMARI DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Nagercoil

b) Bhoothapandy

c) Padmanabhapuram

d) Eraniel

e) Kuzhithurai

41 67 58

82

69

69

69

69

8. KARUR DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Karur 45 32 54

b) Kulithalai 25 39 4647

9. KRISHNAGIRI DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Krishnagiri

b) Hosur

c) Denkanikottai

d) Uthangarai

e) Pochampalli

53 82 36

22

27

26

23

24

10. MADRAS DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

MADRAS NIL 8 8 32

11. MADURAI DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

Madurai 58 61 47 44 12. NAGAPATTINAM DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Nagapattinam 10 5 18 18

b) Mayiladuthurai 15 9 29 23

c) Sirkali 11 9 18 24

d) Thiruvarur 3 3 8 30

e) Thiruthuraipoondi 6 6 13 14

f) Mannargudi 6 5 24 16

g) Nannilam 12 5 12 34

h) Vedaranyam - - 2 5

206

13. NAMAKKAL DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Namakkal

b) Tiruchengode

c) Rasipuram

d) Paramathy

23 66 82

394338

44

14. NILGIRI DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Ooctacamund 45 50 64

b) Gudalur 3 19 9

c) Coonoor 2 4 NIL

d) Kothagiri Nil 3 Nil

52

15. PERAMBALUR DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Perambalur

b) Ariyalur

c) Jayankondam

27 3 87

51

39

37

16. PUDUCHERRY DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Puducherry 19 30 70

b) Karaikal 21 20 48 ½

c) Mahe - - -

d) Yanam 5 2 -

47

17. PUDUKOTTAI DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

Pudukottai 31 46 68 25

18. RAMANATHAPURAM DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Ramanathapuram 52 68 45

b) Parmakudi 42 55 44

c) Mudukalathur 64 55 38

d) Kamuthi 49 29 46

e) Thiruvadanai 23 40 33

f) Rameswaram 69 55 33

46

19. SALEM DISTRICT:

207

PLACE 2006 2007 2008 2009 upto31.08.09

a) Salem

b) Athur

c) Sankagiri

d) Mettur

16 25 19

41

41

43

52

20. SIVAGANGAI DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) District Court, Sivagangai 61 46 59

b) CJM Court, Sivagangai 61 46 59

c) Sub Court, Sivagangai 61 46 59

d) DT. Munsif Court Sivagangai 61 46 59

e) JM Court No.I, Sivagangai 61 46 59

f) JM Court No.II, Sivagangai 61 46 59

38

g) Sub Court, Devakottai 40 19 41

h) DT. Munsif Court, Devakottai 40 19 41

i) JM Court, Devakottai 40 19 41

44

j) PDM Cum JM Court, Karaikudi 50 50 35 40

k) Addl.DM Court, Manamadurai 50 50 35

l) PDM cum DM Court, Manamadurai 40 30 46

m) Addl. DM cum JM Court, Manamadurai 40 30 46

48

n) DM cum JM Court, Tirupathur 25 11 42 38

o) DM cum JM Court, Illyangudi 20 49 24 42

21. THANJAVUR DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

Thanjavur 34 34 39 46

22. THENI DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Theni 46 20 44 26

b) Periyakulam 49 20 94 26

c) Uthamapalayam 27 15 66 22

d) Bodinayackanur 35 61 43 30

e) Andipatti 54 32 43 33

23. TIRUCHIRAPALLI DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Tiruchirapalli

b) Manapparai

c) Thuraiyur

d) Musiri

e) Lalgudi

11 16 42

63

36

35

41

83

24. THOOTHUKUDI DISTRICT:

208

PLACE 2006 2007 2008 2009 upto31.08.09

a) Thoothukudi 41 47 61 40

b) Kovilpatti 35 51 50 68

c) Srivaikuntam 61 23 63 41

d) Sathankulam 44 51 61 45

e) Tiruchendur 16 23 78 39

f) Vilathikulam 36 40 60 42

25. TIRUNELVELI DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Tirunelveli 37 7 45 55

e) Ambasamudram 35 34 54 80

b) Cheramahadevi 25 16 30 75

c) Tenkasi 21 52 38 42

d) Shencottah 20 44 31 44

f) Sankarankovil 28 38 54 48

g) Sivagiri 19 37 54 47

h) Nanguneri 28 33 31 50

i) Valliyoor 43 59 35 66

26. TIRUVALLUR DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Tiruvallur 1+3 13 56 45

b) Poonamallee 1+8 8 12 1

c) Ponneri 1 4 2 2

d) Thiruvottriyur Nil 2 7 23

e) Tiruttani 1 31 4 16

27. THIRUVANNAMALAI DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Thiruvannamalai 16 25 29 23

b) Polur 3 - 28 22

c) Cheyyar 6 3 28 21

d) Arni 3 17 21 12

e) Chengam 3 7 28 32

f) Vandavasi 22 23 34 31

28. TIRUVARUR DISTRICT: District Court constituted on 20.09.2008

PLACE 2008 2009 upto31.08.09

a) Tiruvarur 4 30

b) Mannargudi 5 16

c) Nannilam 11 34

29. VELLORE DISTRICT:

209

PLACE 2006 2007 2008 2009 upto31.08.09

a) Vellore 50 39 50 43

b) Arcot - - 39 40

c) Wallajah - 39 32 37

d) Ranipet 33 33 26 40

e) Solinghur 51 59 33 5

f) Tirupattur 52 21 34 48

g) Ambur 19 10 13 35 1/2

g) Vaniyambadi 71 41 18 33

i) Arakkonam 3 39 52 4

j) Gudiyatham 64 52 79 40

30. VILLUPURAM DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Villupuram

b) Tindivanam

c) Gingee

d) Kallakurichi

e) Ulundurpet

f) Vanur

g) Tirukoilur

h) Sankarapuram

25 42 68

44

53

53

39

32

29

21

5

31. VIRUDHUNAGAR DISTRICT:

PLACE 2006 2007 2008 2009 upto31.08.09

a) Virudhunagar 38 59 23

b) Srivilluputhur 25 25 45

c) Rajapalayam 12 5 8

d) Sivakasi 31 48 38

e) Sattur 51 59 48

f) Aruppukottai 44 25 39

62

TOTAL NUMBER OF DAYS OF BOYCOTT BY LAWYERS INTHE PRINCIPAL SEAT OF MADRAS HIGH COURT& MADURAI BENCH OF MADRAS HIGH COURT

DURING THE YEARS 2006, 2007, 2008 & 2009.

PLACE 2006 2007 2008 2009 upto31.08.09

Madras High Court Particulars not available 35

Madurai Bench of Madras High Court Particulars not available 37

Boycott Particulars received from the

210

Madras High Court Advocates' Association for the year 2009

Sl.No

Date Reason No. ofdays

129.01.2009to09.02.2009

Condemning the Sri Lankan Governmentperpetrating genocide against Tamilians inSri Lanka.

8

211.02.2009to12.02.2009

After one day's work, MHAA continued theboycott 2

317.02.2009to23.03.2009

Opposing the amendments made to Cr.P.C.including the 19.02.2009 clash betwen thepolice and the advocates.

23

4 '06.07.2009

Condemning the Government of TamilNadu for not complying with the Hon'bleHigh Court's Order dated 18.03.2009 inrespect of 19.02.2009 attach on lawyers.

1

531.07.2009

As per the call given by the Federation ofDistrict and Subordinate Courts AdvocatesAssociation and to take action against theofficers who committed offence on19.02.2009.

1

186. A cursory glance of the above particulars shows that

very many man-days of the Courts were lost. Since there is hue

and cry everywhere that delayed justice is denied justice, it is

imperative that the boycott of Courts by lawyers is stopped once

and for all.

187. In fact on days of boycott, when out of necessity some

of the parties appear before us, however much, the Court exhibit

its anxiety to go for the rescue and render justice, it should be

211

stated that due to inexperience and over anxiety of the parties

they are either not in a position to place the facts in full before

the Court and thereby disable the Court to render full justice and

in many cases, the parties because of their inability to express

their grievance remain as silent sufferers.

188. In this context, the submission of the learned

Advocate General that the image of the lawyers in the opinion of

the common man is highly eroded though may appear to be bit

harsh is the real fact which has to be accepted with a pinch of

salt. There is no gain saying that as lawyers belong to a very

high clan and as such entitled for certain privileges in the Society,

while at the same time when they fail to fulfill the obligations

arising out of such status which the lawyers community is obliged

to reciprocatively display to the Society at large, the same would

certainly gain an impression adverse to their interest. In this

context, the further fact remains as to, of the whole lot of the

lawyers how many of them are really interested in abstaining

from Courts. Therefore, it is high time that the Associations take

a very pragmatic approach and take a firm decision to resort to

any other passive method by which they can exhibit their protest

in a subtle way instead of resorting to Boycott of Courts.

212

189. Apart from resorting to boycott, in the recent past the

situation has become so vulnerable that certain other personality

in the Society wanted to take advantage of the lawyers unity to

achieve their other goals. In fact in the decision reported in

(2007) 2 MLJ 1 (Madras High Court Advocates Association

Vs State of Tamil Nadu) the Division Bench of this Court has

taken pains to analyze the various factors relating to boycott

being resorted to by the members of the Bar where this Court

has noted that because of such frequent agitation either at

district level or at the state level they were being treated shabbily

by the police in the Society. This Court also pointed out that as a

sequel to the frequent boycott of Courts, the work in the Courts

suffer to a very large extent and that it may even paralyze the

functioning of the judiciary which will be totally against public

interest. The Division Bench has expressed its anguish in the

following words in paragraph 18 of its order:

“18. We are constrained to observe that

while going through the norms fixed for the

Subordinate Courts and when remarks

have been received from many of the

Subordinate Courts that the norms have

not been able to be achieved because of

213

the prolonged strike by the advocates.

This is a serious issue and if it is

allowed to proceed, it may even

paralyse the functioning of the

judiciary, which is not in public

interest.” (Emphasis added)

The Division Bench ultimately though it fit to constitute a

Committee at the State Level as stated in paragraph 22.1 of its

order which reads as under:

“22.1. The lessons learnt from the

agitations leading to the ordering of a

Commission of Inquiry indicates certain

things. One precious judicial time was

wasted due to the lawyers agitations. The

decision to go on Court boycott was rather

emotional than based on reason, because

both the Commissions found in all the

three incidents referred to them were that

the incidents complained of was either

exaggerated or that the lawyers for whom

the Bar went on strike were themselves

were on the wrong. The other lesson was

that the stake (sis State) was not

responding to the issue of Court boycott

with utmost seriousness and was

procrastinating in finding a proper

solution. In the ultimate analysis the issue

arising out of the direct action of the Bar

214

requires an urgent and appropriate

intervention. The need of the hour is to

evolve a suitable mechanism which can

quickly find a solution to any unpleasant

stand-off between the Bar and Police in

future. Ultimately this alone will prevent a

situation leading to catastrophy.

Appointment of Commissions of Inquiry are

not only time consuming but with

enormous cost energies are wasted.

Further, in a probe by an independent

authority the Police is not the losers and

they need not apprehend any partisan

probe. In both Commissions, the report

was balanced and the Commissioners

found that in a surcharged atmosphere the

truth was the casualty.”

Again in paragraph 23, the Division Bench issued certain

directions as to how the working of the Committee should be

made more purposeful which is as follows:

“23. It goes without saying that the

constitution of the Committee is the need

of the hour and the Court cannot afford to

lose its precious judicial time due to the

frequent Court boycotts indulged by the

advocates and, therefore, we direct the

State of Tamil Nadu (first respondent

herein) to immediately issue the

215

administrative G.O. constituting the

Committee, in any event, within a period of

two weeks’ from the date of receipt of a

copy of this order. In view of the

constitution of the Committee with the

highest dignitaries of the State, it is

expected that the members of the Bar,

respective Bar Associations including their

Federations and the Tamil Nadu State Bar

Council will hereafter maintain utmost

restraint in giving a call for any Court

boycott and as agreed to by them, despite

any provocation. They are expected to

approach the State Level Co-ordination

Committee formed with a view to resolve

any accusation made against the Police

regarding their misbehaviour towards the

members of the Bar and abide by the

decision of the Committee in this regard.”

190. In an earlier decision of this Court reported in 1995

Cri.L.J. 1956 (In Re: Rajendran and others), the Division

Bench held as under in paragraph 56 and 97:

“56. Mrs.Prabha Sridevan, President,

Women Lawyers’ Association, submitted

that the after-noon incident had a close

connection with the morning closure of

gates Advocates as well as policemen,

216

were important limbs, for the former were

right protectors – while the latter were law

enforcers. The tension, if any, between

them must be comfortably resolved. Re-

orientation programmes must be

organized.

* * * * *

97. We are very clear and let us transmit a

certain message. We are totally conscious,

that we have dealt with the contemners,

rather lightly, but that has been the

outcome after serious and thought

provoking process and the positive

response of ours, to the fervent, sincere

and responsible plea, backed up with

purposeful panorama of a possible good

ear ahead, made by learned senior

counsel, learned Advocate General and the

Presidents of various Associations of

Advocates. Let not any one walk out of

this Court Hall with an impression, that

whatever be the gravity of the offence, one

could always escape lightly. The instant

untoward incident, has been analysed by

all concerned, and the answer in unison

was that let this episode serve as a sure

foundation or eye opener for fostering of a

better tomorrow, with an assurance that

recurrence, if any, though chances may be

217

bleak, will have to be gravely taken note of

and appropriate punishment meted out.”

191. In this context it will be worthwhile to refer to some of

the decisions of the Hon’ble Supreme Court reported in (2001) 1

SCC 118 (Ramon Services (P) Ltd. Vs. Subhash Kapoor),

(2003) 2 SCC 45 (Harish Uppal (Ex-Capt.) Vs. Union of

India) and (2006) 9 SCC 295 (Common Cause, A

Registered Society Vs. Union of India).

192. The Hon’ble Supreme Court has extensively dealt with

the various pit falls in the boycott resorted to by the Advocates

and have held as under in paragraph 35 in the decision reported

in (2003) 2 SCC 45 (Harish Uppal (Ex-Capt.) Vs. Union of

India)

“35. In conclusion, it is held that lawyers

have no right to go on strike or give a

call for boycott, not even on a token

strike. The protest, if any is required,

can only be by giving press

statements, TV interviews, carrying

out of court premises banners and/or

placards, wearing black or white or

any colour armbands, peaceful protest

marches outside and away from court

218

premises, going on dharnas or relay

fasts etc. It is held that lawyers holding

vakalats on behalf of their clients cannot

refuse to attend courts in pursuance of a

call for strike or boycott. All lawyers must

boldly refuse to abide by any call for strike

or boycott. No lawyer can be visited with

any adverse consequences by the

Association or the Council and no threat or

coercion of any nature including that of

expulsion can be held out. It is held that

no Bar Council or Bar Association can

permit calling of a meeting for

purposes of considering a call for

strike or boycott and requisition, if

any, for such meeting must be

ignored. It is held that only in the rarest

of rare cases where the dignity, integrity

and independence of the Bar and/or the

Bench are at stake, courts may ignore

(turn a blind eye) to a protest abstention

from work for not more than one day. It is

being clarified that it will be for the court to

decide whether or not the issue involves

dignity or integrity or independence of the

Bar and/or the Bench. Therefore in such

cases the President of the Bar must first

consult the Chief Justice or the District

Judge before advocates decide to absent

219

themselves from court. The decision of the

Chief Justice or the District Judge would be

final and have to be abided by the Bar. It is

held that courts are under no obligation to

adjourn matters because lawyers are on

strike. On the contrary, it is the duty of all

courts to go on with matters on their

boards even in the absence of lawyers. In

other words, courts must not be privy to

strikes or calls for boycotts. It is held that

if a lawyer, holding a vakalat of a

client, abstains from attending court

due to a strike call, he shall be

personally liable to pay costs which

shall be in addition to damages which

he might have to pay his client for loss

suffered by him.” (Emphasis added)

193. The Hon’ble Supreme Court has held as under in

paragraph 4 of the decision reported in (2006) 9 SCC 295

(Common Cause, A Registered Society Vs. Union of India)

“4. The Constitution Bench has, in Ex Capt.

Harish Uppal case culled out the law in the

following terms: (SCC pp.64 & 71-74, paras

20-21 & 34-36)

“20. Thus the law is already well

settled. It is the duty of every advocate

who has accepted a brief to attend

220

trial, even though it may go on day to

day and for a prolonged period. It is

also settled law that a lawyer who has

accepted a brief cannot refuse to

attend court because a boycott call is

given by the Bar Association. It is

settled law that it is unprofessional as

well as unbecoming for a lawyer who

has accepted a brief to refuse to attend

court even in pursuance of a call for

strike or boycott by the Bar Association

or the Bar Council. It is settled law

that courts are under an obligation

to hear and decide cases brought

before them and cannot adjourn

matters merely because lawyers

are on strike. The law is that it is the

duty and obligation of courts to go on

with matters or otherwise it would

tantamount to becoming a privy to the

strike. It is also settled law that if a

resolution is passed by Bar

Associations expressing want of

confidence in judicial officers, it would

amount to scandalising the courts to

undermine its authority and thereby

the advocates will have committed

contempt of court. Lawyers have

known, at least since Mahabir Singh

221

case that if they participate in a

boycott or a strike, their action is ex

facie bad in view of the declaration of

law by this Court. A lawyer’s duty is to

boldly ignore a call for strike or boycott

of court(s). Lawyers have also known,

at least since Ramon Services case,

that the advocates would be

answerable for the consequences

suffered by their clients if the non-

appearance was solely on grounds of a

strike call.

21. It must also be remembered

that an advocate is an officer of

the court and enjoys special status

in society. Advocates have obligations

and duties to ensure smooth

functioning of the court. They owe a

duty to their clients. Strikes interfere

with administration of justice.

They cannot thus disrupt court

proceedings and put interest of

their clients in jeopardy.

*****

34. One last thing which must be

mentioned is that the right of

appearance in courts is still within the

control and jurisdiction of courts.

222

Section 30 of the Advocates Act has

not been brought into force and rightly

so. Control of conduct in court can only

be within the domain of courts. Thus

Article 145 of the Constitution of India

gives to the Supreme Court and

Section 34 of the Advocates Act gives

to the High Court power to frame rules

including rules regarding condition on

which a person (including an advocate)

can practise in the Supreme Court

and/or in the High Court and courts

subordinate thereto. Many courts have

framed rules in this behalf. Such a rule

would be valid and binding on all. Let

the Bar take note that unless self-

restraint is exercised, courts may

now have to consider framing

specific rules debarring advocates

guilty of contempt and/or

unprofessional or unbecoming

conduct, from appearing before the

courts. Such a rule if framed would

not have anything to do with the

disciplinary jurisdiction of the Bar

Councils. It would be concerning the

dignity and orderly functioning of the

courts. The right of the advocate to

practise envelops a lot of acts to be

223

performed by him in discharge of his

professional duties. Apart from

appearing in the courts he can be

consulted by his clients, he can give his

legal opinion whenever sought for, he

can draft instruments, pleadings,

affidavits or any other documents, he

can participate in any conference

involving legal discussions, he can

work in any office or firm as a legal

officer, he can appear for clients before

an arbitrator or arbitrators etc. Such a

rule would have nothing to do with all

the acts done by an advocate during

his practice. He may even file vakalat

on behalf of a client even though his

appearance inside the court is not

permitted. Conduct in court is a matter

concerning the court and hence the Bar

Council cannot claim that what should

happen inside the court could also be

regulated by them in exercise of their

disciplinary powers. The right to

practise, no doubt, is the genus of

which the right to appear and conduct

cases in the court may be a specie. But

the right to appear and conduct cases

in the court is a matter on which the

court must and does have major

224

supervisory and controlling power.

Hence courts cannot be and are not

divested of control or supervision of

conduct in court merely because it may

involve the right of an advocate. A rule

can stipulate that a person who has

committed contempt of court or has

behaved unprofessionally and in an

unbecoming manner will not have the

right to continue to appear and plead

and conduct cases in courts. The Bar

Councils cannot overrule such a

regulation concerning the orderly

conduct of court proceedings. On the

contrary, it will be their duty to see

that such a rule is strictly abided by.

Courts of law are structured in such a

design as to evoke respect and

reverence to the majesty of law and

justice. The machinery for dispensation

of justice according to law is operated

by the court. Proceedings inside the

courts are always expected to be held

in a dignified and orderly manner. The

very sight of an advocate, who is guilty

of contempt of court or of unbecoming

or unprofessional conduct, standing in

the court would erode the dignity of

the court and even corrode its majesty

225

besides impairing the confidence of the

public in the efficacy of the institution

of the courts. The power to frame such

rules should not be confused with the

right to practise law. While the Bar

Council can exercise control over the

latter, the courts are in control of the

former. This distinction is clearly

brought out by the difference in

language in Section 49 of the

Advocates Act on the one hand and

Article 145 of the Constitution of India

and Section 34(1) of the Advocates Act

on the other. Section 49 merely

empowers the Bar Council to frame

rules laying down conditions subject to

which an advocate shall have a right to

practise i.e. do all the other acts set

out above. However, Article 145 of the

Constitution of India empowers the

Supreme Court to make rules for

regulating this practice and procedure

of the court including inter alia rules as

to persons practising before this Court.

Similarly Section 34 of the Advocates

Act empowers High Courts to frame

rules, inter alia to lay down conditions

on which an advocate shall be

permitted to practise in courts. Article

226

145 of the Constitution of India and

Section 34 of the Advocates Act clearly

show that there is no absolute right to

an advocate to appear in a court. An

advocate appears in a court subject to

such conditions as are laid down by the

court. It must be remembered that

Section 30 has not been brought into

force, and this also shows that there is

no absolute right to appear in a court.

Even if Section 30 were to be brought

into force control of proceedings in

court will always remain with the court.

Thus even then the right to appear in

court will be subject to complying with

conditions laid down by courts just as

practice outside courts would be

subject to conditions laid down by Bar

Council of India. There is thus no

conflict or clash between other

provisions of the Advocates Act on the

one hand and Section 34 or Article 145

of the Constitution of India on the

other.

35. In conclusion, it is held that

lawyers have no right to go on

strike or give a call for boycott, not

even on a token strike. The protest,

227

if any is required, can only be by giving

press statements, TV interviews,

carrying out of court premises banners

and/or placards, wearing black or white

or any colour armbands, peaceful

protect marches outside and away

from court premises, going on dharnas

or relay fasts, etc. It is held that

lawyers holding vakalats on behalf of

their clients cannot refuse to attend

courts in pursuance of a call for strike

or boycott. All lawyers must boldly

refuse to abide by any call for strike or

boycott. No lawyer can be visited with

any adverse consequences by the

Association or the Council and no

threat or coercion of any nature

including that of expulsion can be held

out. It is held that no Bar Council or

Bar Association can permit calling of a

meeting for purposes of considering a

call for strike or boycott and

requisition, if any, for such meeting

must be ignored. It is held that only in

the rarest of rare cases where the

dignity, integrity and independence of

the Bar and/or the Bench are at stake,

courts may ignore (turn a blind eye) to

a protest, abstention from work for not

228

more than one day. It is being clarified

that it will be for the court to decide

whether or not the issue involves

dignity or integrity or independence of

the Bar and/or the Bench. Therefore in

such cases the President of the Bar

must first consult the Chief Justice or

the District Judge before advocates

decide to absent themselves from

court. The decision of the Chief Justice

or the District Judge would be final and

have to be abided by the Bar. It is held

that courts are under no obligation to

adjourn matters because lawyers are

on strike. On the contrary, it is the

duty of all courts to go on with matters

on their boards even in the absence of

lawyers. In other words, courts must

not be privy to strikes or calls for

boycotts. It is held that if a lawyer,

holding a vakalat of a client, abstains

from attending court due to a strike

call, he shall be personally liable to pay

costs which shall be in addition to

damages which he might have to pay

his client for loss suffered by him.

36. It is now hoped that with the

above clarifications, there will be

229

no strikes and/or calls for boycott.

It is hoped that better sense will

prevail and self-restraint will be

exercised. The petitions stand

disposed of accordingly.”

The Court also dealt with the role of

Bar Councils on the following terms:

(SCC pp. 66-68, paras 25-26)

“25. In the case of Supreme Court

Bar Assn. v. Union of India it has

been held that professional

misconduct may also amount to

contempt of court (para 21). It has

further been held as follows: (SCC

pp.444-46, paras 79-80)

‘79. An advocate who is found guilty

of contempt of court may also, as

already noticed, be guilty of

professional misconduct in a given

case but it is for the Bar Council of

the State or Bar Council of India to

punish that advocate by either

debarring him from practice or

suspending his licence, as may be

warranted, in the facts and

circumstances of each case. The

learned Solicitor General informed us

that there have been cases where the

Bar Council of India taking note of the

230

contumacious and objectionable

conduct of an advocate, had initiated

disciplinary proceedings against him

and even punished him for

“professional misconduct”, on the

basis of his having been found guilty

of committing contempt of court. We

do not entertain any doubt that the

Bar Council of the State or Bar

Council of India, as the case may be,

when apprised of the established

contumacious conduct of an advocate

by the High Court or by this Court,

would rise to the occasion, and take

appropriate action against such an

advocate. Under Article 144 of the

Constitution “all authorities, civil and

judicial, in the territory of India shall

act in aid of the Supreme Court”. The

Bar Council which performs a public

duty and is charged with the

obligation to protect the dignity of the

profession and maintain professional

standards and etiquette is also

obliged to act “in aid of the Supreme

Court”. It must, whenever facts

warrant, rise to the occasion and

discharge its duties uninfluenced by

the position of the contemnor

231

advocate. It must act in accordance

with the prescribed procedure,

whenever its attention is drawn by

this Court to the contumacious and

unbecoming conduct of an advocate

which has the tendency to interfere

with due administration of justice. It

is possible for the High Courts also to

draw the attention of the Bar Council

of the State to a case of professional

misconduct of a contemnor advocate

to enable the State Bar Council to

proceed in the manner prescribed by

the Act and the rules framed

thereunder. There is no justification

to assume that the Bar Councils

would not rise to the occasion, as

they are equally responsible to uphold

the dignity of the courts and the

majesty of law and prevent any

interference in the administration of

justice. Learned counsel for the

parties present before us do not

dispute and rightly so that whenever

a court of record records its findings

about the conduct of an advocate

while finding him guilty of committing

contempt of court and desires or

refers the matter to be considered by

232

the Bar Council concerned,

appropriate action should be initiated

by the Bar Council concerned in

accordance with law with a view to

maintain the dignity of the courts and

to uphold the majesty of law and

professional standards and etiquette.

Nothing is more destructive of public

confidence in the administration of

justice than incivility, rudeness or

disrespectful conduct on the part of a

counsel towards the court or

disregard by the court of the

privileges of the Bar. In case the Bar

Council, even after receiving

“reference” from the Court, fails to

take action against the advocate

concerned, this Court might consider

invoking its powers under Section 38

of the Act by sending for the record of

the proceedings from the Bar Council

and passing appropriate orders. Of

course, the appellate powers under

Section 38 would be available to this

Court only and not to the High

Courts. We, however, hope that such

a situation would not arise.

233

80. In a given case it may be

possible, for this Court or the High

Court, to prevent the contemnor

advocate to appear before it till he

purges himself of the contempt but

that is much different from

suspending or revoking his licence or

debarring him to practise as an

advocate. In a case of contemptuous,

contumacious, unbecoming or

blameworthy conduct of an Advocate-

on-Record, this Court possesses

jurisdiction, under the Supreme Court

Rules itself, to withdraw his privilege

to practise as an Advocate-on-Record

because that privilege is conferred by

this Court and the power to grant the

privilege includes the power to revoke

or suspend it. The withdrawal of that

privilege, however, does not amount

to suspending or revoking his licence

to practise as an advocate in other

courts or tribunals.’

Thus a Constitution Bench of this

Court has held that the Bar

Councils are expected to rise to

the occasion as they are

responsible to uphold the dignity

234

of courts and majesty of law and

to prevent interference in

administration of justice. In our

view it is the duty of the Bar Councils

to ensure that there is no

unprofessional and/or unbecoming

conduct. This being their duty no Bar

Council can even consider giving a

call for strike or a call for boycott. It

follows that the Bar Councils and

even Bar Associations can never

consider or take seriously any

requisition calling for a meeting to

consider a call for a strike or a call for

boycott. Such requisitions should be

consigned to the place where they

belong viz. the waste-paper basket.

In case any Association calls for a

strike or a call for boycott, the State

Bar Council concerned and on its

failure the Bar Council of India must

immediately take disciplinary action

against the advocates who give a call

for strike and if the committee

members permit calling of a meeting

for such purpose, against the

committee members. Further, it is

the duty of every advocate to

boldly ignore a call for strike or

235

boycott.

26. It must also be noted that courts

are not powerless or helpless. Section

38 of the Advocates Act provides that

even in disciplinary matters the final

Appellate Authority is the Supreme

Court. Thus even if the Bar Councils

do not rise to the occasion and

perform their duties by taking

disciplinary action on a complaint

from a client against an advocate for

non-appearance by reason of a call

for strike or boycott, on an appeal the

Supreme Court can and will. Apart

from this, as set out in Ramon

Services case every court now should

and must mulct advocates who hold

vakalats but still refrain from

attending courts in pursuance of a

strike call, with costs. Such costs

would be in addition to the damages

which the advocate may have to pay

for the loss suffered by his client by

reason of his non-appearance.”

Apart from reiterating the above law, we do

not propose to take any further action. The

contempt notices stand discharged.”

(Emphasis added)

236

194. The Hon’ble Supreme Court has held as under in

paragraphs 22, 23 and 25 in the decision reported in (2001) 1

SCC 118 (Ramon Services (P) Ltd. Vs. Subhash Kapoor)

“22. Generally strikes are antithesis of

progress, prosperity and development. Strikes

by the professionals including the advocates

cannot be equated with strikes undertaken by

the industrial workers in accordance with the

statutory provisions. The services rendered by

the advocates to their clients are regulated by

a contract between the two besides statutory

limitations, restrictions and guidelines

incorporated in the Advocates Act, the rules

made thereunder and rules of procedure

adopted by the Supreme Court and the High

Courts. Abstaining from the courts by the

advocates, by and large, does not only affect

the persons belonging to the legal profession

but also hampers the process of justice

sometimes urgently needed by the consumers

of justice, the litigants. Legal profession is

essentially a service-oriented profession. The

relationship between the lawyer and his client

is one of trust and confidence.

23. With the strike by the lawyers, the

process of court intended to secure justice is

obstructed which is unwarranted under the

237

provisions of the Advocates Act. Law is no

trade and briefs of the litigants not

merchandise. This Court in Bar Council of

Maharashtra v. M.V. Dabholkar placed on

record its expectations from the Bar and

observed: (SCC pp.301-02, para 24)

“24. We wish to put beyond cavil the

new call to the lawyer in the

economic order. In the days ahead,

legal aid to the poor and the weak,

public interest litigation and other

rule-of-law responsibilities will

demand a whole new range of

responses from the Bar or organised

social groups with lawyer members.

Indeed, the hope of democracy is the

dynamism of the new frontiersmen of

the law in this developing area and

what we have observed against

solicitation and alleged profit-making

vices are distant from such free

service to the community in the jural

sector as part of the profession’s tryst

with the people of India.”

*****

25. This Court in Tahil Ram Issardas

Sadarangani v. Ramchand Issardas

Sadarangani while deprecating the decreasing

238

trend of service element and increasing trend

of commercialisation of legal profession,

pointed out that it was for the Members of the

Bar to act and take positive steps to remove

such an impression before it is too late. By

striking work, the lawyers fail in their

contractual and professional duty to conduct

the cases for which they are engaged and

paid. In Common Cause, A Regd. Society v.

Union of India it was observed: (SCC p.

558, para 1)

“Since litigants have a fundamental

right to speedy justice as observed in

Hussainara Khatoon (I) v. Home

Secy., State of Bihar it is essential

that cases must proceed when they

appear on board and should not

ordinarily be adjourned on account of

the absence of the lawyers unless

there are cogent reasons to do so. If

cases get adjourned time and again

due to cessation of work by lawyers it

will in the end result in erosion of

faith in the justice delivery system

which will harm the image and dignity

of the court as well.”

239

195. Taking a clue and guided by the above decisions we

state that time has now come for this Court to put things straight

and make the message loud and clear that hereafter under the

guise of boycott of Courts no hindrance should be caused to the

litigant public or the working of the Court.

196. As far as the guidelines issued by the Government of

India for preserving the security of this institution is concerned as

per the direction contained in the relevant letter

No.VI.23014/79/2005-VS, dated 31.05.2007 and the subsequent

order dated 17.11.2008 and the steps taken by the Madras High

Court Security Committee revising the Security arrangement

system as was implemented from 28.01.2009, should be restored

forthwith.

197. The imposition of ban ordered by the Division Bench in

the decision reported in (2007) 2 MLJ 1 (Madras High Court

Advocates Association Vs State of Tamil Nadu) should be

strictly enforced.

198. The ban imposed (W.P.No.7646 of 2006 dated

20.06.2006) for any one to hold meeting inside the High Court

240

campus other than regular meetings of the Association or any

special meetings in their association premises shall be strictly

adhered and no political party affiliation shall be permitted inside

the High Court campus and other Court premises throughout the

State for holding any meeting or demonstration or any other

form of agitation inside the premises.

199. In this context, the recent order of the Hon’ble

Supreme Court in this case itself dated 26.02.2009, namely that

the advocates should not cause any disturbance to the Court

proceedings and should not shout slogans inside the Court

premises as well as no meeting should be held in the Court

premises without the permission of the Chief Justice except other

meetings in their Association premises shall be implemented

forthwith by the Registry.

200. Having expressed our grave concern of the litigant

public and the emergent need of this institution to come up to the

expectations of the public at large, we hold that by implementing

the severe security measures approved by the Security

Committee of this Court in the interest of the institution, the

implementation of it will be unscrupulously followed and it will be

241

the responsibility of the members of the Bar to extend their

cooperation in its implementation. Question No.(v) is answered

in the above terms.

201. As far as the various criminal cases listed out in

between pages 167 and 243 of the Respondents Volume-I is

concerned, if there is no other impediment by way of Court

orders or otherwise there is no reason why the police should fail

to prosecute those proceedings without any further delay.

202. Having thus answered the various questions posed for

consideration and having regard to our consensual conclusion on

various issues, we deem it appropriate to give our common

conclusions and directions contained in paragraph Nos. 602 to

607.

* * * * *

R.BANUMATHI, J.

203. I had the benefit of going through the Order of my learned

Brother Justice F.M.Ibrahim Kalifullah,J. I fully agree with the

views of my learned Brother. While concurring with conclusions and

directions, I wish to express my views on the various issues and

contentious points raised.

242

204. In respect of unfortunate incident on 19.2.2009 in the High

Court campus, on 19.2.2009 the Hon'ble Acting Chief Justice had

passed suo-moto order which was taken up in W.P.No.3335/2009.

W.P.Nos.3703, 3704, 3705 and 3910/2009 came to be filed by various

Lawyers Association praying to initiate appropriate proceedings against

those Officers responsible for the brutal attack on the Advocates in the

High Court campus on 19.02.2009.

205. Since all the Writ Petitions and Crl.O.Ps. arise out of the

same facts and the issue and question of law involved are one and the

same, all the Writ Petitions and Crl.O.Ps. were taken up together and

disposed by this Common Order. For the sake of convenience, the

parties (particularly the Respondents) are referred to, as per their

array in W.P.No.3705/2009.

206. Events prior to 19.02.2009:-

For quite some time, the lawyers practising in Madras High Court

and the Subordinate Courts owing allegiance and sympathizing with

the cause of Sri Lankan Tamils resorted to organising meetings and

demonstrations in and around High Court premises. Condemning

genocide of Tamils in Sri Lanka, lawyers decided to boycott the Courts

from 29.01.2009 in support of innocent Tamil population in Sri Lanka.

The function of the Courts were paralysed by the Advocates on strike

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and those Advocates who were discharging their professional duty

were forced to come out of the Court Halls.

207. On 17.2.2009, Writ Appeal Nos.181 to 183/2009 relating

to taking over of the administration of Chidambaram Natarajar Temple

were listed for hearing in the Court of Justice P.K.Misra and

K.Chandru, JJ. At about 10.00 A.M. Dr. Subramaniam Swamy,

President of Janata Party who has been given 'Z' category protection

by the Government came to Court Hall No.III and was waiting in the

Court to argue his case to implead himself in the said pending Writ

Appeals. At about 11.45 A.M., 20 Advocates, who were allegedly

agitating in support of Sri Lankan Tamils came to the Court shouting

slogans condemning the Central and State Governments and the

Police. Shouting slogans against Dr. Subramaniam Swamy, the group

of agitating lawyers attacked Dr. Subramaniam Swamy and also the

Police who tried to intervene. The slogans shouted by the lawyers in

Tamil were recorded by the Division Bench of this Court in its order as

"Brahmin dog down down, and Rajiv Gandhi killer go away". The order

further states that the crowd had shouted many other filthy slogans

and such unruly behaviour continued for about 15 minutes despite

warnings given by the learned Judges. The learned Judges directed

the Registry to place the said order before the Hon'ble ACJ and also

directed to forward a copy of order to the Hon'ble The Chief Justice of

India.

244

208. Regarding the incident in Court Hall No.III, complaint was

also lodged on 17.2.2009 with the Inspector of B4-High Court Police

Station by Mr.Khader Moideen, Asst. Commr of Police who was also

injured. After obtaining written concurrence from the Registrar-

General of High Court [12th Respondent] on 18.2.2009, a case was

registered in Crime No.13/2009 under Sec.147, 451, 355, 332, 506(ii)

294(b) and 153-A IPC.

209. On 18.2.2009, Advocate Gini Leo Immanuel who was an

accused in Crime No.13/2009 on the file of B4-High Court Police

Station registered in connection with the assault on Dr. Subramaniam

Swamy on 17.2.2009 was arrested on 18.2.2009. He was produced

before the George Town Court and remanded to judicial custody.

210. Occurrence on 19.2.2009: Pleadings and Averments in Petitions:

On 19.2.2009 Dr. Subramaniam Swamy appeared in

connection with the same Natarajar Temple case and also in another

Court. Extensive security cover was given by the Police and personally

supervised by the 10th Respondent- Mr.Viswanathan, Additional

Commissioner of Police, Law and Order [Addl. CoP] and JCP (North)

Mr.Ramasubramani and Dr. Subramaniam Swamy's visit passed off

peacefully. After departure of Dr. Subramaniam Swamy, 11th

Respondent, Joint Commissioner of Police [JCP] - Mr.Ramasubramani

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and Deputy Commissioner of Police (DCP), Flower Bazaar [12th

respondent in W.P.No. 3910/2009] – Mr.Prem Anand Sinha and DCP,

Puliyanthope (13th Respondent in W.P.No.3910/2009) -

Mr.Panneerselvam and Police party went to B2-Esplanade Police

Station for a debriefing and also to give instructions on the security

measures to be taken during the next hearing date on 26.2.2009

when Dr. Subramaniam Swamy will again appear in the High Court. At

about 12.00 noon Mr.Vijayendran, advocate went to B2-Esplanade

Police Station asking for list of advocates shown as accused in Crime

No.13/2009. At about 2.00 P.M., large number of Advocates including

Advocates Tvl. Karuppan, Rajinikanth, Vijayendran, Pugazhenthi and

Jayakumar went to B4-High Court Police station located inside the High

Court campus [just near City Civil Court, Chennai] volunteering to

surrender in Crime No.13/2009. They also shouted slogans

demanding registration of case against Dr. Subramaniam Swamy as

pre-condition to surrender.

211. On the instructions of DCP- Mr.Prem Anand Sinha,

Mr.Sethuraman, Inspector of Police attached to B4-High Court Police

Station, on the complaint given by Mr.Rajinikanth, Advocate registered

a case in Crime No.14/2009 u/s.3(1)(x) SC/ST [Prevention of

Atrocities Act] Act and under Sec.506(ii) IPC against Dr. Subramaniam

Swamy and Radha Mohan and furnished copy of FIR to the Advocates.

Around 2.18 – 2.30 P.M., crowd of Advocates shouted slogans

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demanding arrest of Dr. Subramaniam Swamy. After receiving copy of

FIR, Advocates are said to have shouted slogans that Police should

immediately arrest Dr. Subramaniam Swamy and Advocates refused to

surrender.

212. Hearing those developments, on the direction from the 7th

Respondent-CoP, 10th Respondent Mr.Viswanathan-Addl. CoP [L&O],

Mr. Sandeep Rai Rathore-JCP [Central Zone] [9th Respondent in

W.P.No.3910/2009], Mr.Sarangan-DCP, Kilpauk [11th Respondent in

W.P.No.3910/2009] came to the High Court Police Station to arrest the

Advocates present there so as to maintain Law and Order.

213. At about 3.00 P.M., Addl. CoP [L&O] and JCP [Central

Zone], 2 Deputy Commissioner of Police, 9 Assistant Commissioner of

Police, 11 Inspectors, 4 Sub-Inspector of Police and 90 TSP men (in all

118) came as an additional strength. Mr.Ramasubramani, JCP (North

Zone) [11th Respondent] tried to speak to few of the lawyers for

surrender but without result.

214. On seeing the Advocates gathering, 11th Respondent – JCP

(North)-Mr.Ramasubramani instructed the police party to apprehend

the Advocates involved in 17.2.2009 incident and at 3.45 P.M. few of

them were apprehended and also those who obstructed the arrest

were made to board into the Police van for effecting arrest. Even when

247

the Advocates were arrested, the other Advocates have abused the

Police and indulged in violent activities by throwing stones on the

Policemen. The arrested Advocates were taken to Thousand Lights

Police Station.

215. After the Advocates were arrested and taken, there were

pelting of stones by both sides. According to the Police, after warnings

and on seeing the continued violent activities, 10th Respondent -Addl.

CoP (L&O) [Mr.Viswanathan] who was the senior most officer present

in the spot consulted with other senior officers and took collective

decision to declare the assembly as 'unlawful' and to disperse it.

Further, according to the Police, even after such warnings, the unruly

mob continued their violent activities. DCP-Mr.Prem Anand Sinha,

ordered to fire teargas shells and accordingly teargas shells were fired.

Police ordered lathicharge to disperse the unlawful assembly.

Thereafter, there were continued stone pelting by both sides.

Lawyers, litigant public, Police Officers and Justice Arumuga Perumal

Adhityan who came to pacify both groups sustained injuries. It is

alleged that at about 5.30 P.M., a mob of Advocates have set fire to

the said Police Station. When fire tender vehicle was brought to

douse the fire, the unruly mob of Advocates are said to have thrown

stones on the fire tender vehicle. Since the violent activities

continued, 7th Respondent-CoP after discussing with the other senior

officers present in the spot ordered lathicharge again. Fire was

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extinguished. Regarding the incidents, Inspector of B2-Esplanade

Police Station gave a report to the Assistant Commissioner of High

Court Police Station and based on the report a case was registered in

Crime No.15/2009 under Sec.147, 353, 332, 450, 436 and 307 IPC

read with Sec.3(1)(x) of SC/ST [Prevention of Atrocities] Act and Sec.3

(i) TNP(PDL) Act against the lawyers.

216. Having learnt about the grave situation, the ACJ remained

in contact with the Officers, viz., Chief Secretary, Government of Tamil

Nadu, Commissioner of Police, Chennai and Home Secretary. Bench

comprising of ACJ held the sitting at 7.40 P.M. The First Bench

directed the 7th Respondent-CoP and 11th Respondent-JCP [North] to

file a report on the following issues:-

(a) " ...... under whose authority the Police entered

the High Court premises to arrest certain accused

from the High Court campus;

(b) at whose instance the order was issued for

lathicharge by the police and swift action force;

(c) who are the Police Officers/Police Personnel

responsible for the Police excess within the Court

campus;

First Bench also directed the CBI to investigate into the incidents. First

Bench also directed the State Government to file status report.

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217. Three teams headed by Registrars were constituted to take

videographs with regard to the damages caused within the High Court

premises and also in the Court buildings. Committee of Judges was

also constituted to report as to the damages caused in the premises.

218. Tense situation prevailed on 20th February 2009 and

subsequently. On the administrative side, in order to restore the

normal working condition and to safeguard the court properties and to

enable collection of materials and evidence by the Investigating agency

regarding the incidents that took place on 19th February 2009, Full

Court has taken a decision that Principal Seat of Madras High Court

and Madurai Bench of Madras High Court and all Subordinate Courts

and Tribunals under the supervision of Madras High Court situated

within the State of Tamil Nadu and Union Territory of Pondicherry to be

closed on 20.2.2009, 23.2.2009 and 24.2.2009. In view of extensive

damages caused, City Civil Court and Small Causes Court, Chennai

remained closed till 27.2.2009 and re-opened only on 02.3.2009.

219. By the order dated 26.2.2009 in W.P.No.94/2009, the

Hon'ble Supreme Court requested Mr. Justice B.N.Srikrishna,

former Judge, Supreme Court of India to inquire into the incident

which happened on 19th February 2009 and the terms of reference to

the Committee to be given by the Hon'ble ACJ of Madras High Court.

The Supreme Court inter alia issued direction to assess the damages

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caused to the vehicles as well as Court buildings/furnitures and

directed the State Government to place a sum of Rs.25 lakhs at the

disposal of Registrar-General for the immediate relief and repair work.

220. By the order dated 18.3.2009, Full Bench of this Court

directed the State Government to initiate disciplinary proceedings

against 10th Respondent – Mr.Viswanathan-Addl. CoP and 11th

Respondent – Mr.Ramasubramani-JCP (North) as they were the

persons who were in the helm of affairs under whose supervision the

operation was carried on and that they should be placed under

suspension. Aggrieved by the said Order, both the Officers approached

the Supreme Court in S.L.P. (Civil) No.7540/2009. By the Order dated

14.7.2009, the matter was again sent back to this Court for giving an

opportunity of being heard. After the matter was remanded to this

Court, Mr.Viswanathan-Addl. CoP was represented by learned counsel

Mr.V.Selvaraj, whereas Mr.Ramasubramani-JCP (North) was

represented by Mr. P.N.Prakash. CoP and other Police officers were

represented by the Senior Counsel Dr.Rajeev Dhavan. Mr.Sandeep Rai

Rathore-JCP (Central) was represented by Senior Counsel

Mr.I.Subramaniam.

221. By G.O.Ms.No.229 Public (Law & Order B) dated

09.3.2009, Mr.N.Sundaradevan, IAS, Principal

Secretary/Commissioner of Revenue Administration, Chepauk, Chennai

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was appointed as One Man Commission to inquire into the Police action

and fix responsibility for the alleged excesses committed during Law

and Order incidents which occurred in the campus of High Court,

Madras on 19.2.2009.

222. Averments in the counter-affidavits:-

Public and Rehabilitation Secretary Mr. P.Jothi

Jagarajan [2nd Respondent] who is also holding additional charge of

Secretary, Home Department [3rd Respondent] filed counter stating

that the Police personnel, if found to be responsible for excesses

committed would be suitably punished through departmental action

based on the report of One Man Committee. The Secretary had also

referred to various steps taken by the State Government to fix the

responsibility and that Rs.61 lakhs was placed at the disposal of the

Registrar-General to reimburse the medical expenses incurred by the

Advocates and to pay compensation to the damages caused to their

vehicles.

223. Terming it as a serious Law and Order problem, 7th

Respondent-CoP [Mr.Radhakrishnan] filed counter denying

averments that Police had deliberately violated the human rights of

lawyers. CoP averred that Police had used only minimum force to

chase away the Advocates and the Advocates relentlessly continued

their unruly activities. The situation and circumstances were such that

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the Police had to resort to lathicharge; but for which, the life and

safety of the public and the Policemen would have been in peril. CoP

has further averred that it was the collective decision taken by the

senior officers to lathicharge to bring the situation under control.

224. The then Addl. CoP Mr.Viswanathan [10th Respondent]

filed counter stating that CoP informed him that arrest of lawyers was

already cleared by the ACJ and obeying the orders of the CoP, the

Officers present at the High Court Police Station have arrested the

Advocates. It is further averred that he and other Police Officers

wanted withdrawal of Police from the High Court campus and in view

of the order of CoP, they remained inside the High Court campus.

According to Mr.Viswanathan-Addl. CoP, the CoP himself reached B2-

Esplanade Police Station at about 4.00 P.M. and at about 4.30 P.M.,

the CoP came to the High Court Police Station with additional

reinforcement of Armed Police and only on the orders of CoP teargas

shells was fired at 4.45 P.M. and it was followed by lathicharge.

225. In response to the counter-affidavit filed by

Mr.Viswanathan-Addl. CoP, 7th Respondent – CoP [Mr.Radhakrishnan]

filed reply counter-affidavit stating that there was no occasion for any

apprehension since accused Advocates themselves contacted the

concerned senior officers proposing to surrender. 7th Respondent –

CoP denied that Addl. CoP had raised concern over arresting of those

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who wanted to surrender in connection with the incident in Court Hall

No.III on 17.2.2009 when Dr. Subramaniam Swamy was attacked.

CoP had also denied Mr.Viswanathan's averments that CoP arrived at

the High Court Police Station at 4.30 P.M. with more than 100 Armed

Police personnel and ordered teargas shells to be lobbed at 4.45 P.M.

followed by lathicharge. According to CoP ordering lathicharge was the

collective decision taken by him and other senior police officers present

to handle the grave situation.

226. Referring to the happenings on 17.2.2009 and the meeting

held by the ACJ on 18.2.2009, 11th Respondent Mr.Ramasubramani-

JCP has filed counter stating that after safe passing of Dr.

Subramaniam Swamy, the Police party assembled at B2 Police Station

for debriefing. At that time Advocate Mr.Vijayendran came there

asking list of Advocates shown as accused in Crime No.13/2009 of B4-

High Court Police Station to enable them to surrender and because of

turn of events, the Officers and men did not disperse but stayed back

in B2-Esplanade Police Station waiting for the surrender of wanted

Advocates. It is further averred that at around 2.00 P.M., Advocates

Mr.R.Karuppan and Mr.Rajinikanth and others along with number of

Advocates came to B4-High Court Police Station and those Advocates

volunteered to surrender in connection with the incident in Court Hall

No.III on 17.2.2009 and insisted for registration of case against

Dr.Subramaniam Swamy. On receiving information,

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Mr.Ramasubramani - JCP (North) rushed to B4-High Court Police

Station. Referring to registration of case in Crime No. 14/2009 u/s.3

(1)(x) SC/ST [Prevention of Atrocities Act] Act and under Sec.506(ii)

IPC against Dr. Subramaniam Swamy and Ms.Radha Mohan, JCP

(North) has averred that Advocates involved in the occurrence on

17.2.2009 and others resisting the arrest were taken to custody and

were taken to Thousand Lights Police Station. It is further averred

that the situation was so tense, Mr.Prem Anand Sinha-DCP, Flower

Bazaar Police Station declared the assembly as 'unlawful' and ordered

lathicharge. It is further averred that the situation was so chaotic and

he had no occasion to keep track of the exact time of arrival of CoP.

227. Mr.Prem Anand Sinha, jurisdictional DCP [12th Respondent

in W.P.No.3910/2009] filed counter referring to the bandobust

arrangements in connection with Dr. Subramaniam Swamy's

appearance on 19.2.2009. It is averred that after safe passage of Dr.

Subramaniam Swamy, all of them gathered in B2-Esplanade Police

Station for debriefing. On hearing about the gathering of Advocates in

B4-High Court Police Station, Mr.Ramasubramani-JCP (North) and

jurisdictional DCP Mr.Prem Anand Sinha and other Officers went to

B4-High Court Police Station. It is further averred that on the

insistence from Advocate Mr.R.Karuppan and other Advocates, a case

in Crime No.14/2009 was registered against Dr.Subramaniam Swamy

under Sec.3(1) (x) SC/ST (Prevention of Atrocities) Act and under

255

Sec.506(ii) IPC. It is further averred that thereafter the Advocates

shouted slogans seeking for immediate arrest of Dr. Subramaniam

Swamy. According to Mr.Prem Anand Sinha, at about 3.00 P.M., the

Addl. CoP (L&O) and JCP (Central Zone), 2 DCPs, 9 ACs, 11

Inspectors, 4 Sub-Inspectors and 90 TSP men (in all 118) came as an

additional strength. According to Mr. Prem Anand Sinha, on the orders

of Addl. CoP (L&O), the gathering was declared as "unlawful assembly"

and after so declaring, Mr. Prem Anand Sinha ordered to fire teargas

shells. Since, lawyers continued with stone pelting, in consultation

with the Addl. CoP and JCP (North), lathicharge was ordered. At 5.00

P.M, CoP came to the High Court premises and directed withdrawal of

Police force and return to B2-Esplanade Police Station. It is further

averred that at 5.30 P.M., two wheelers and B4-High Court Police

Station were set on fire and there was further lathicharge.

228. Mr.Sandeep Rai Rathore-JCP (Central Zone) [9th

Respondent in W.P.No.3910/2009] has filed counter stating that on the

instructions of Addl. CoP (L&O), he came to the High Court premises at

3.00 – 3.15 P.M. Reiterating the averments in the counter-affidavit of

Mr.Prem Anand Sinha-DCP, Mr.Sandeep Rai Rathore-JCP (Central

Zone) has further averred that he is not the jurisdictional officer and

not directly involved in the decision making and ordering lathicharge

and therefore, he is not responsible.

229. Mr.Sarangan-DCP [11th Respondent in W.P.No.3910/2009]

256

has filed counter-affidavit stating that he has sustained injuries on his

left shoulder, fore-arm and chest.

230. The other Officers viz., Mr.Anup Jaiswal-Addl. DGP (Int);

Mr.Sunil Kumar-Addl. CoP (Traffic); Mr.Gunaseelan-JCP (South

Chennai); Mr.Panneerselvam-DCP; Mr.Anbu-DCP; Mr.Sridhar-DCP;

Mr.Joshi Nirmal Kumar-DCP; Mr.Thirugnanam-DCP (Traffic-North)

[Respondent No.4,7,10,13 to 17 in W.P.No.3910/2009 respectively]

and Jayakodi, Inspector of Police, B2-Esplanade Police Station [3rd

Respondent in W.P.No.3703/2009] have also filed counter-affidavits

stating that to tackle the situation, it was necessary to use the

minimum force to disperse mob of advocates involved in the violent

activities. It is further averred that only on the orders of the superior

officers, they went to the High Court premises. According to these

officers, they are not the jurisdictional officers and not responsible for

the incident.

231. CONTENTIONS OF LAWYERS

Contending that it was a pre-planned attack, Mr.S.Prabakaran,

President, Tamil Nadu Advocates Association has submitted that when

it was natural for the Advocates to assemble in the Court, there was

no justification for terming the gathering as "unlawful assembly". He

further contended that Police were chasing the Advocates and

ransacked their offices at NSC Bose Road, Thambu Chetty street and

257

other areas which would indicate that Police were venting their anger

against the Advocates. Taking us through the individual affidavits and

pointing out the contradictions thereon, he would further submit that

in view of the discrepancy in the claims whether actual clearance was

given by the Hon'ble ACJ, it is necessary for the Bench to issue notice

to the then Hon'ble ACJ for clarifying the contradictions. Mr.

S.Prabakaran further submitted that an 'invisible' hand directed the

operation and the same 'invisible' hand is now protecting all the

personnel involved in the violence from criminal prosecution. He

would further submit that inspite of the injuries inflicted upon many

Advocates, vehicles damaged and Court Halls were ransacked by the

Police force, so far not even a single case has been registered against

even one constable.

232. Submitting that act of lawyers cannot be equated with any

other unruly mob, the learned counsel Ms. R.Vaigai made elaborate

submissions inter alia raising the following contentions:-

➢ Excess was committed by the Police personnel with

impunity and the then CoP cannot avoid the

responsibility;

➢ Before accepting the alleged voluntary surrender,

Police must have foreseen the consequences of

deployment of force on 19.2.2009;

➢ Police impelled by animosity against the lawyers

258

mercilessly beaten them and rampaging Police

ransacked the Court premises which disrupted

functioning of the Court which would amount to

criminal contempt of court;

➢ In so far as initial reaction of lawyers, on seeing that

their fellow lawyers being taken to custody, it was

natural reaction on the part of the lawyers to

protest. Gathering and any other natural reaction of

lawyers cannot be termed as 'unlawful assembly'

warranting deployment of more personnel and

lathicharge.;

➢ Procedure of Police Standing Order 703 to disperse

the crowds was not followed;

➢ Contrary to the stand of CoP, he was well present in

the campus even around 4.30 P.M., the then CoP is

to be squarely held responsible.

233. Ms. Vaigai further submitted that for deployment of Police

force prior permission of Registrar-General ought to have been

obtained and that the precincts of High Court is a protected area and

that permission ought to have been obtained before arresting the

lawyers. In support of her contention, Ms. Vaigai placed reliance upon

(1980) 2 SCC 559 [Niranjan Singh and another v. Prabhakar

Rajaram Kharote and others]; 1983 Crl LJ 1866 [State of UP v.

259

Deg Raj Singh and others]; (1987) 3 SCC 434 [State of UP v.

Niyamat and others]; (1994) 6 SCC 442 [Mohd. Aslam @ Bhure

Acchan Rizvi v. UoI and others]; (1995) 3 SCC 757 [Dhananjay

Sharma v. State of Haryana and others]; 1995 Supp (3) SCC

736 [Secretary, Hailakandi Bar Association v. State of Assam

and another]; (1996) 4 SCC 742 [Punjab & Haryana High Court

Bar Association v. State of Punjab and others]; (1997) 1 SCC

416 [D.K.Basu v. State of WB]; AIR 2000 Delhi 266

[Dr.B.L.Wadehra v. State (NCT of Delhi) and others]; (2000) 2

SCC 465 [Chairman, Railway Board and others v. Chandrima

Das and others]; (2004) 5 SCC 26 [Daroga Singh and others v.

B.K.Pandey]; 2004 (5) CTC 612 [Devan, formerly the Inspector

of Police, Needamangalam Police Station, Needamangalam,

Tiruvarur District] and (1996) 6 SCC 323 [Commissioner of

Police, Delhi and another v. Registrar, Delhi High Court, New

Delhi].

234. In her reply submissions, learned counsel Ms. Vaigai placed

reliance upon 1992 Cri LJ 634 [State of Karnataka v.

B.Padmanabha Beliya and others]; AIR 1956 Raj 179

[Rajasthan Bar Council v. Nathuram and another]; AIR 1966 SC

740 [Ram Manohar Lohia v. State of Bihar]; 1970 (3) SCC 746

[Madhu Limaye v. Sub Divisional Magistrate, Monghyr]; 1984

(3) SCC 14 [Vijay Narain Singh v. State of Bihar]; 2003 (7) SCC

260

749 [Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble

and another]; 2005 (10) SCC 97 [Union of India and another v.

Chaya Ghoshal and another]; 2007 (2) MLJ 1 [Madras High

Court Advocate Association v. State of Tamil Nadu]; 2007 (4)

SCC 474 [Destruction of Public and Private Properties, In Re:];

2007 (4) CHN 842 [Association for Protection of Democratic

Rights v. State of West Bengal and others]; 2008 (4) MLJ 763

[Coimbatore Bar Association v. State of Tamil Nadu]; 2008 (5)

SCC 89 [Pulin Das @ Panna Koch v. State of Assam]; 2009 Cri LJ

854 [Chairman, Bar Council of TN v. State of Tamil Nadu and

others] and 1898 ILR MDS (21) 249 [Queen Empress v. Subba

Naik].

235. Contending that Respondents have not answered the

question raised by the Court under what authority Police entered the

premises, Mr. R.C.Paul Kanagaraj, President, Madras High Court

Advocates Association [MHAA] has submitted that when lawyers were

forcibly taken to the custody, the other lawyers gathered to rescue the

lawyers and such reaction and gathering of lawyers cannot be termed

as 'unlawful assembly'. He would further submit that all the rules of

Police Standing Orders to disperse the crowds was given a go bye and

without following the procedure, lathicharge was ordered. Mr.

R.C.Paul Kanagaraj would further contend that dispersal of gathering

of lawyers by use of force was with a deliberation and violation of

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Sec.129 Cr.P.C. and the Police Standing Orders. He would further

submit that the higher Police officials and also Police personnel are to

be proceeded with for contempt of court for disrupting the Court

activities and closure of High Court and other Courts in the premises

for three days and six days respectively.

236. Senior Counsel Mr. R.Krishnamurthy, President Madras

Bar Association for themselves and onbehalf of Women Lawyers'

Association submitted that Police officers who ordered lathicharge

should be identified and action should be taken against them and other

higher officers should be collectively held responsible. Drawing our

attention to the inconsistencies in the counter-affidavits, Mr.

R.Krishnamurthy, learned Senior Counsel would submit that the

counter-affidavits are contradictory to each other and the responsible

Police officers ought to have come to the Court with clear averments.

Questioning the propriety of Mr. N.Sundaradeven One Man

Committee, learned Senior Counsel would further submit that Mr.

N.Sundaradeven One Man Committee cannot be expected to be fair

and that it would not reflect the correct statement and the One Man

Committee might not deliberate upon the misdeeds of higher officials.

In support of his contention learned Senior Counsel placed reliance

upon 1980 (2) SCC 559 [Niranjan Singh and another v.

Prabhakar Rajaram Kharote and others].

262

237. Mr. T.V.Ramanujam, learned Senior Counsel submitted

that the Police attack on the lawyers was an onslaught upon the

Institution and deterrent orders has to be passed against them.

238. Mr. N.G.R.Prasad, learned counsel has submitted that

lawyers agitation on the Sri Lankan Tamils issue was causing

embarrassment to the Government and, the attack on lawyers was not

a 'Mere police excess' but was a 'State excess' violating human rights.

239. Mr. V.Raghavachari, learned counsel has submitted that

law enforcing agencies have no right to arrest the lawyers within the

High Court premises. He would further submit that Advocates are the

Officers of the Court and any attack on the Advocates would amount to

interference with the administration of justice. In support of his

contention, Mr. V.Raghavachari placed reliance upon AIR 1954 Mad

249 [Public Prosecutor v. K.G.Sivaswamy and another]; 2007

(4) CHN 842 [Association for Protection of Democratic Rights v.

State of WB and others]; 1996 Crl.LJ 1956 [In Re: Rajendran

and others]; ILR (1992) 1 Delhi 498 [P.V.Kapoor and another v.

UoI and another]; AIR 1999 Gujarat 316 [State of Gujarat v.

Govindbhai Jakhubai and another]; AIR 2002 Jharkhand 47

[M/s.Gray Hound Transport Co., v. UoI and others]; AIR 1970

SC 2015 [E.M.Sankaran Namboodripad v. T.Narayanan

Nambiar]; 1992(240 DRJ 221A [State v. J.P.Singh]; AIR 2002

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SC 1375 [In Re: Arundhati Roy]; AIR 1964 Calcutta 572 [The

State v. Debabrata Bandopadhyay, District Magistrate, Nadia

and another]; 2001 SCC (Cri) 1048 [T.T.Antony v. State of

Kerala and others]; AIR 2000 Delhi 266 [B.L.Wadehra v. State

(NCT of Delhi) and others]; 2009 Crl.LJ 1677 [Court on its own

motion v. State and others]; (1994) 4 SCC 260 [Joginder Kumar

v. State of UP and others]; Queen Bench Division Vol.I (1875)

75 [Smith v. Cook]; 1970 Court of Appeal 114 [Morris and

others v. Crown Office]; 1994 (6) SCC 205 [N.Nagendra Rao

and Co., v. The State of Andhra Pradesh]; (2007) Queens Bench

399 [Regina (W) v. Commissioner of Police of the Metropolis

and another] and MANU/DE/ 1477/ 2008 [Police Commissioner

and others v. Yash Pal Sharma].

240. We have also heard Mr. R.Karuppan who filed affidavit

and also made submissions regarding voluntary surrender of

Advocates in connection with Crime No.13/2009 of B4-High Court

Police Station under Sec.147, 451, 355, 332, 506(ii) 294(b) and 153-A

IPC on the file of B4-High Court Police Station.

241. Onbehalf of the State expressing regret over the situation,

Mr. P.S.Raman, learned Advocate-General has submitted that

Government of Tamil Nadu has the highest regard to the Institution

and that any Police Officer found guilty in the incident by One Man

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Commission would be strictly dealt with. The learned Advocate

General submitted that if the Court finds anyone responsible for the

incident on 19.2.2009, the State will take appropriate action against

the concerned officers. Learned Advocate-General has taken us

through the then existing security arrangements to the High Court.

Learned Advocate-General has also enumerated the steps taken by the

State Government and that pursuant to the orders of the Supreme

Court, State Government has appointed One Man Committee. Learned

Advocate-General has also submitted that Rs.61 lakhs was sanctioned

by the Government and placed at the disposal of the Registrar-General

for payment of compensation to the injured Advocates and for the

damages caused to the vehicles and the Court buildings for repair.

Elaborating upon various steps taken in protecting the Heritage

building, learned Advocate-General interalia appealed to us to use this

opportunity to build a "bridge" between the Bar and Police.

242. Taking us through the affidavits and contradicting

averments in the common counter-affidavit, Mr.V.Selvaraj, learned

counsel for Mr.Viswanathan, Addl CoP [10th Respondent] submitted

that so far as Metropolitan cities are concerned, CoP is incharge of the

same and only at the instance of CoP, Mr.Viswanathan [10th

Respondent] came to the High Court campus. Taking us through the

call log of the cellphones, learned counsel would further submit that

CoP himself came to the riot area at about 4.45 P.M. with additional

265

re-enforcement of Police, CoP cannot avoid responsibility by throwing

blame upon other persons. Arguing onbehalf of Addl CoP, learned

counsel further submitted that only between 3.50 – 4.30 P.M., Addl

CoP was incharge and during which time, he did not declare any

'unlawful assembly' and while so, it was highly improper for the CoP to

file report before the Court fixing the responsibility upon Addl CoP.

243. Onbehalf of JCP (North) Mr.M.Ramasubramani, expressing

sincere apology over unsavoury incident on 19.2.2009,

Mr.P.N.Prakash, learned counsel submitted that as jurisdictional JCP,

he was present both in the morning and in the afternoon on

19.2.2009. It was submitted that because of the incident on

17.2.2009, there was a need for mobilising the Police force and the

situation was volatile which necessitated mobilisation of force in the

morning.

244. It was further argued that Dr.Subramaniam Swamy who is

in 'Z' category has to appear the Court on 19.2.2009 and having

regard to the happenings on 17.2.2009, Mr.Ramasubramani had taken

bonafide decision in good faith to move the Police force which gathered

in B2-Esplanade Police Station for debriefing. Placing reliance upon

1995 (II) LW Crl 723 (Rajendran & 23 others/contemnors/

Respondents/Police officers/ Advocates if Saidapet Bar) and that in

view of the source of power under Sec.41 Cr.P.C., there was no bar for

266

the Police to arrest the Advocates in the Court campus. Taking us

through the Typed set of papers, learned counsel would submit that

there is no consistent version regarding the time and therefore, the

time stated in the order dated 19.2.2009 cannot be taken as

conclusive.

245. Appearing onbehalf of Mr.Sandeep Rai Rathore, JCP

(Central Zone) [9th Respondent in W.P.No.3910/2009],

Mr.P.N.Swaminathan, learned counsel submitted that on the direction

from the Addl. CoP [Mr.Viswanathan], Mr.Sandeep Rai Rathore, JCP

(Central Zone) arrived in High Court at 3.00 – 3.15 P.M. and reported

before the JCP (North). Learned counsel would further submit that

Mr.Sandeep Rai Rathore was not a jurisdictional officer and no specific

command was assigned to him and therefore, he cannot be held

responsible for the incident on 19.2.2009. Learned counsel would

further submit that Mr.Sandeep Rai Rathore was not part of decision

making ordering lathicharge. Without prejudice to the above

contentions, onbehalf of Mr.Sandeep Rai Rathore, an unconditional

apology was also expressed for the incident on 19.2.2009.

246. Drawing our attention to long list of incidents of

misbehaviour by the Advocates and number of Criminal cases

registered against the Advocates, Dr.Rajeev Dhavan, learned Senior

Counsel submitted that there was a serious threat perception which

justified mobilisation of Police force. Learned Senior Counsel would

267

further submit that the attack on Dr.Subramaniam Swamy on

17.2.2009 contributed to the threat perception and therefore,

mobilisation of Police force was only a precautionary measure.

Learned Senior Counsel made persuasive submissions interalia raising

the following contentions:-

(i)Whether presence of Police on the Court premises was

uninvited and what was the level of threat perception;

(ii)Difficult and complicated questions of facts are

involved; reliability and acceptability of evidence and

materials available cannot be gone into exercising

jurisdiction under Article 226 of the Constitution of

India;

(iii)Because of continuous boycott of Advocates and their

defiant acts in the past, there was serious threat

perception which necessitated use of reasonable force;

Court cannot comprehend what would have been the

anticipated threat;

(iv)Since Police officers are Civil Servants entitled to

protection under Article 311 of Constitution, Court

straightaway cannot order suspension/impose

punishment without due process of law by initiation of

disciplinary proceedings; rights available to the Officers

for acting bonafide;

(v)Absolutely, there was no malafide intention or pre-

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planned attack to invoke contempt jurisdiction; and

(vi)Moulding relief – balance to be adopted and how the

reliefs could be moulded, keeping in view of interest of

both lawyers and Police.

247. Pitched battle of lawyers with Police in the Court premises

on 19.2.2009 was the most unfortunate incident; a situation which

should never happen in future anywhere. Lawyers and the Police are

two wings of the law-enforcement machinery. They complement each

other in the task of maintaining law and order. It is deplorable that

their relationship has been strained to the extent of indulging in a

pitched battle. The relationship between the lawyers and the police

has never been particularly good. What happened in the High Court

was the culmination of such long-standing differences. The gross

impropriety committed by the police on the Court premises resulted

indiscriminate attack on everyone – lawyers, litigants, staff and one

High Court Judge.

248. An unbiased examination of facts would reveal that culture

of boycott of Courts by the lawyers developed in the State in the

recent past and provocation of handful of lawyers on 17.2.2009 and

19.2.2009 led to this unprecedented incident. Though, we are mainly

concerned with the developments during and aftermath of 19.2.2009,

at the outset, it is apposite to highlight the high standards fixed for the

269

lawyers and decadence of values in the legal profession.

249. Legal profession – Necessity for maintaining high level of morality and standards:-

Because of the good work and services rendered by the

professionals, they are accorded status and autonomy in the society.

It is relevant to quote the following passage from the book Howard

Gardner's Five Minds for the Future – Chapter 6 – The Ethical

Mind – Page 128 [Published by Harvard Business School Press,

Boston, Massachusetts]:

"We conceptualize a profession as a highly trained

group of workers who perform an important service

for society. In return for serving in an impartial

manner and exercising prudent judgment under

complex circumstances, professionals are accorded

status and autonomy."

"Work may be good in the sense of being excellent

in quality – in our terms, it is highly disciplined.

Such work may be good in the sense of being

responsible – it regularly takes into account its

implications for the wider community within which it

is situated. And such work may be good in the

sense of feeling good – it is engaging and

meaningful, and provides sustenance even under

challenging conditions. ....."

250. In AIR 1993 SC 1535 : 1993 (2) SCC 562 [J.S.Jadhav

270

v. Mustafa Haji Mohamed Yusuf], the Supreme Court observed that

the legal profession is regarded to be a noble one. In the inaugural

address at the Bar Council of India Seminar, Justice Sundara Aiyar,

former Judge, Madras High Court spoke that the profession of an

advocate has always been regarded as one of the noblest profession.

[See AIR 1961 (15th April) Journal Section]. There is no

profession/class which has done more to develop and defend the

human rights.

251. It will be apposite to quote a passage from a celebrated

decision of the Supreme Court in Sanjiv Datta's case (1995) 3 SCC

619 - "The legal profession is a solemn and serious occupation. It is

a noble calling and all those who belong to are its honourable

members. Although entry to the profession can be had by acquiring

merely the qualification of technical competence, honour as a conduct

both in and outside the court."

252. The legal profession is most honourable profession, with

high traditions and with the potentialities for great good in the

progress of orderely society and maintenance of law and order.

Lawyers have been in the vanguard of a country's progress and have

always zealously guarded human liberties and the rule of law. For an

ambitious young man of keen intellect and capacity to work hard, the

legal profession holds unlimited prizes. It gives him an insight into the

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character of his fellow-men, into all their weaknesses and all their

strength, and an opportunity to do real good by helping in the proper

administration of justice and maintenance of judicial standards.

253. The profession of the advocate is a permanent institution in

the world's justice, coming down through the ages, and garnering

traditions and wisdom from generation to generation for the edification

of present and future ones. Client and counsellor, advocate, jury, and

judge - their ways and their needs and their notions were known and

studied in Athens, Rome, England and America. The world's business

and its laws may change, but human nature's motives and foibles have

formed a constant element. The psychology of a law suit is still the

great problem for the lawyer; and Quintilian, Scarlett and Choate here

come together on common ground [Passage quoted from Page

No.6 of P.Ramanatha Aiyer's – Legal and Professional Ethics –

Third Edition, 2003].

254. There is a nobility of purpose involved in the profession of

the law. There is a chivalry of action. It may be called into play any

day. It involves the idea that a man can stand forward and become

the advocate of some person who cannot speak for himself, who will

have the courage and boldness to defend liberty from an assault upon

her citizens, who will have the strength of character to denounce a

wrong and who after all will remember that while he owes a great duty

272

to his profession, he is called upon to give a corresponding duty to his

country [Passage quoted from Page No.12 of P.Ramanatha

Aiyer's – Legal and Professional Ethics – Third Edition, 2003].

255. The American Tycoon Mr. IACOCCA who achieved fame as

one of America's leading Captain of industry was asked to address a

group of prominent lawyers. He said to his captive audience:

"As lawyers you are little more equal than the rest

of us. You are trained to use the freedoms

granted by the Constitution. We all have them, of

course, but you know better than the rest of us

how to use them. That is your job. Advocacy is

your profession. And it is an hon'ble one. The

Constitution might tell us that our rights are

sacred, but some times they are not worth a dime

unless people like you, skilled in the law, are able

to push them and protect them for us". "In our

democracy, the final judges will always be laymen

like me, and all the millions like me, who do not

read the Constitution regularly and who may not

even understand everything it says. We are the

judges of the effectiveness of the Constitution and

the wisdom of the laws written under it and the

integrity of the legal profession. There is a lawyer

in the United States called Roger Bridges who is

engaged in unearthing legal cases in which

Abraham Lincoln appeared and argued – this

ambitious research project undertaken by Bridges

and his team is called the 'Lincoln Legals'. They

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came across Abraham Lincoln's notes for a law

lecture in 1850. In it he said:

"Resolve to be honest at all events;

and if in your judgment you cannot be

an honest lawyer, resolve to be

honest without being a lawyer.

Choose some other occupation rather

than one in the chosing of which you

do, in advance, consent to be a

knave." "

[Passage quoted from Gururaja Chari's Advocacy and Professional

Ethics – Page No.644 of first Edition, Wadwa and Company].

256. As held by the Supreme Court in 1994 (2) LW 187 :

(1994) 2 SCC 204 (State of U.P. and others v. U.P. State Law

Officers Association and others), legal profession is essentially a

service oriented profession. Lawyers should remember, that service is

the keynote of profession and should not consider it as a mere means

of livelihood. They have great responsibility to protect and promote

the democratic institutions in the country by striving to uphold rule of

law.

257. Lawyer an Officer of Court – Duties and responsibilities:-

The United States has somewhat dubious distinction of having

world's largest population of lawyers. India comes second in having

world's largest population of lawyers. No free nation can ignore or

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forget the judiciary as part of democracy.

258. Indian society is multifaceted, multi-racial, multi-religious,

and multi-lingual. The greatness, glory and distinction of this Country

lies in unity in diversity. The very fact that we are surviving as a

democratic country having a Rule of Law and an independent judiciary

itself is significant. The constitution might tell that our rights are

sacred. But sometimes they are not worth a dime unless lawyers

skilled in the law are able to push them and protect them for the

citizen.

259. No free nation can ignore or forget the importance of Law

of Judiciary. If the Rule of Law has been a success and is even

progressing in this country, the lawyers and judges are to be credited

for their contribution to what is Rule of Law.

260. The profession of law is a public institution and lawyer

discharges his public duty in so far as he assists in the administration

of justice. The preamble of the chapter on Standards of professional

conduct and Etiquette prescribed by the Bar Council of India reads as

follows:

"An advocate shall, at all times, comport himself

in a manner befitting his status as an officer of

the Court, a privileged member of the

community, and a gentleman, bearing in mind

275

that what may be lawful and moral for a person

who is not a member of the Bar, or for a member

of the Bar in his non-professional capacity may

still be improper for an advocate."

261. It takes great intellectual gifts to make a great advocate.

No man wins a height at a bar, without a struggle and without

intellectual power. Here no deception is possible, as in other cases.

Not like the clergyman with his ex parte case behind the pulpit; not

like the physician with his prescription in the dark; the lawyer's work is

done in the broad light of open day, confronted at every step by able

opposition and argument, with the entire public looking on. To meet

such a test requires the greatest and keenest powers. The vulgar

notion of advocacy that sees nothing in it higher than an effort to

'before the jury' is a great mistake. Rather it is often the business of

the true advocate to clear and dispel by the electric heat and lightning

of his genius, the fog-bank that has already settled there [See from

60 Mich. Reports, Page 1, Eulogy on Hon. Chas Stuart, a great

Advocate; May on Advocates cited in Donovan's skill in Trials,

Page 145].

262. Genius indeed will leave its mark in whatever sphere it may

move. But learning, industry and integrity or essential traits in the

profession. Fidelity to the Court, fidelity to the client, fidelity to the

claims of truth and honour: these are the matters comprised in the

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oath of office of a lawyer.

263. There are pitfalls and mantraps at every step, and the

mere youth at the very outset of his career, needs often the prudence

and self-denial, as well as the moral courage, which belong commonly

to riper years. High moral principle is his only safe guide; the only

torch to light his way amidst darkness and obstruction. [Passage

quoted from Page No.12 of P.Ramanatha Aiyer's – Legal and

Professional Ethics – Third Edition, 2003].

264. In (1995) 1 SCC 732 [Indian Council of Legal Aid and

Advice v. Bar Council of India], Para (3) the Supreme Court held

as follows:-

"3. ....... It is generally believed that members of

the legal profession have certain social

obligations. e.g. to render "pro bono publico"

service to the poor and the underprivileged.

Since the duty of a lawyer is to assist the Court in

the administration of justice, the practice of law

has a public utility flavour and, therefore, he

must strictly and scrupulously abide by the Code

of Conduct behoving the noble profession and

must not indulge in any activity which may tend

to lower the image of the profession in society.

That is why the functions of the Bar Council

include the laying down of standards of

professional conduct and etiquette which

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advocates must follow to maintain the dignity and

purity of the profession."

265. Observing that the legal profession is a solemn and serious

occupation, in (1995) 3 SCC 619 : 1995 AIR SCW 2203 [In Re:

Sanjeev Datta], Para (20), the Supreme Court has stated as follows:-

"20. The legal profession is a solemn and serious

occupation. It is a noble calling and all those who

belong to it are its honourable members.

Although the entry to the profession can be had

by acquiring merely the qualification of technical

competence, the honour as a professional has to

be maintained by its members by their exemplary

conduct both in and outside the Court. The legal

profession is different from other professions in

that what the lawyers do, affects not only an

individual but the administration of justice which

is the foundation of the civilised society. Both as

a leading member of the intelligentsia of the

society and as a responsible citizen, the lawyer

has to conduct himself as a model for others both

in his professional and in his private and public

life. The society has a right to expect of him such

ideal behaviour. It must not be forgotten that the

legal profession has always been held in high

esteem and its members have played an enviable

role in public life. The regard for the legal and

judicial systems in this country is in no small

measure due to the tireless role played by the

278

stalwarts in the profession to strengthen them.

They took their profession seriously and practised

it with dignity, deference and devotion. If the

profession is to survive, the judicial system has to

be vitalised. No service will be too small in

making the system efficient, effective and

credible."

266. On the Conduct of Lawyers:

As held by the Hon'ble Supreme Court in Ramon Services

(P) Ltd. v. Subhash Kapoor (2001 1 SCC 118), persons belonging

to the legal profession are concededly the elite of the society. The

lawyers, who have been acknowledged as being sober, task-oriented,

professionally-responsible stratum of the population, are further

obliged to utilise their skills for socio-political modernisation of the

country. The lawyers are a force for the preservance and

strengthening of constitutional government as they are guardians of

the modern legal system.

267. As soon as a lawyer is enrolled as an advocate, he is

subject to:-

a) the professional code of advocates; and

b) disciplinary proceedings for misconduct.

268. Section 35(1) of the Advocates Act reads as follows:

279

"35. Punishment of advocates for misconduct:-

(1) Where on receipt of a complaint or otherwise

a State Bar Council has reason to believe that any

advocate on its roll has been guilty of professional

or other misconduct, it shall refer the case for

disposal to its disciplinary committee".

It will be seen that the emphasis is on both the professional and other

misconduct.

269. Likewise, the Bar Council of India Rules has laid down

'Rules governing Advocates, in part IV of the said Rules. In particular,

Chapter II of that part lays down

"Standard of Professional Conduct and

Etiquette"

The preamble of these Standards states:

"An Advocate shall, at all times, comport himself

in a manner befitting his status as an officer of

the court, a privileged member in the community;

and a gentleman, bearing in mind that what may

be lawful and a moral for a person who is not a

member of the Bar, or for a member of the Bar in

his non-professional capacity may still be

improper for an advocate. Without prejudice to

the generality of the foregoing obligation, an

advocate shall fearlessly uphold the interests of

his client, and in his conduct conform to the rules

hereinafter mentioned both in letter and in spirit.

The rules hereinafter mentioned contain canons

of conduct and etiquette adopted as general

280

guides; yet the specific mention thereof shall not

be construed as a denial of the existence of other

equally imperative though not specifically

mentioned."

270. Dilution of Professional Standards:-

The moral decadence that has crept into society has not

spared the advocates. It is important to underscore that being

recognised as a member of a profession is not the same acting like a

professional. Some lawyers fail to honour the central precepts and

strictures of their of calling and nobility of profession. It must be

remembered that advocate pursues the profession not only for his

personal enrichment but primarily to help the court in adjudicating a

dispute according to law. (Emphasis supplied) The law should not be

stultified by sanctifying little omissions as fatal flaws. Some of the

defects may be attributed to the lack of inservice training. We only

wish that in future Leadership in Bar would endeavour to impart

inservice training to new entrants.

271. The ever-growing numerical strength of the advocates and

the ever-shrinking litigation scope have certainly had their impact.

Mediocrity, indifference and incompetence on the part of the members

of the profession can seriously vitiate the cause of justice and

undermine public confidence in the system.

281

272. Dilution of professional standards and the consequent

weakening of the administration of justice have reached disturbing

proportions. Professional competence has been eroded to an alarming

extent. A lack of professional discipline and poor standard of ethical

conduct pervade the system. The effect is felt in the system and on its

credibility among the people.

273. An increasing number of entrants are ill-equipped, poorly

trained with little sense of social accountability. Considerations of

professional competence have been jettisoned to an alarming extent,

leading society to question the very ability of the profession to correct

the distortions and to serve public interest. Ignorance of common man

and depravity in the system have led to the unfair and indifferent

delivery of legal service.

274. Expressing deep concern over the falling standards in the

legal profession, Professor (Dr.) N.R.Madhava Menon, has

emphasised need for meaningful reforms in the legal profession. We

quote -

"With unprecedented changes induced by

technology and globalisation, all professions are

forced to re-think their methods of management

and delivery of services. Accountability systems

are being made more transparent and

participatory with the object of controlling

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commercialisation and improving the quality of

services. Even the code of ethics and methods of

disciplining erring members are being reworked

across professions. It is in this context that the

Indian legal profession is to be looked at for

seeking reforms."

[Article by Professor (Dr.) N.R.Madhava

Menon, former Director of National Law School,

National University of Juridical Sciences and

National Judicial Academy - Reforming the legal

profession:some ideas – Hindu dated 20th

February 2008 -].

275. In his popular work "The World is Flat"

Thomasfriedman has detailed on how the progress of globalisation

has resulted in a 'flat playing field'. In the era of globalisation foreign

law firms are making endeavours to make entry in India. Despite the

resistance to their entry, we understand foreign law firms have tie-ups

and associate offices in India with whom they continue to work. When

everywhere there is competence and thriving to excel in

professionalism, lawyers cannot afford to lag behind.

276. Lawyers should not forget that they have glorious

traditions left behind them while the previous generations they have to

maintain those traditions of love and service to the society. Advocates

must have exemplary traits of sincerity of purpose. Re-appraisal of

professional obligations, decency and decorum should be placed

283

high on the agenda to check the debasement of advocacy. Bar

Associations/Council's need to adopt strategies to improve the image

of the profession. As a whole, lawyers need to elaborate Codes of

Ethics even for their fundamental values remain the same. Lawyers

need to take steps to raise their collective consciousness against

unethical practices or violation of professional responsibility.

277. Boycott of Courts by Lawyers:-

It must be remembered that Advocate is an Officer of the

Court. Lawyers have obligation and duties to ensure smooth

functioning of the Court. They owe a duty towards their clients and

Court and society at large. Strikes interfere with the administration of

justice.

278. In Ex. Capt. Harish Uppal's case, Supreme Court held

that by very nature of their calling to assist in the dispensation of

justice, lawyers should not resort to strike. Observing that Advocates

owe a duty towards clients, in AIR 2001 SC 207 [Ramon Services

Pvt. Ltd. v. Subhash Kapoor and others] in Para (5), the Supreme

Court held as follows:-

"5. ... When the advocate who was engaged by a

party was on strike there is no obligation on the

part of the Court either to wait or to adjourn the

case on that account. Time and again this Court

has said that an advocate has no right to stall the

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Court proceedings on the ground that advocates

have decided to strike or to boycott the Courts or

even boycott any particular Court. Vide

U.P.Sales Tax Service Association v.

Taxation Bar Association, Agra (1995) 5 SCC

716: (1995 AIR SCW 3759 : AIR 1996 SC

98 : 1995 All LJ 2052), K.John Koshy v. Dr.

Tarakeshwar Prasad Shaw (1998) 8 SCC

624; Mahabir Prasad Singh v. Jacks Aviation

(1999) 1 SCC 37 : (1998 AIR SCW 3806 :

AIR 1999 SC 287); and Kolittumottil Razak

v. State of Kerala (2000) 4 SCC 465.

279. While it is true that lawyers have contributed largely in the

fields of human rights, environmental law, socio-economic rights, there

are very few professions that have been criticised as legal profession.

Of late, boycotting of Courts has become order of the day. Advocates

strike and boycott the Courts at the slightest provocation overlooking

the harm caused to the judicial system in general and the litigant

public in particular and to themselves in the estimate of the general

public.

280. Observing that striking lawyers failed in their contractual

and professional duty and conduct, in AIR 2001 SC 207 [Ramon

Services Pvt. Ltd., v. Subhash Kapoor and others], Para (26) the

Supreme Court held as under:-

"26. Noting casual and indifferent attitude of

some of the lawyers and expecting improvement

285

in quality of service this Court in In Re : Sanjiv

Datta, Deputy Secretary, Ministry of

Information and Broadcasting, New Delhi

(1995) 3 SCC 619 : (1995 AIR SCW 2203 :

1995 Cri LJ 2910) held (para 12 of AIR SCW

and Cri LJ):

"Of late, we have been coming across several

instances which can only be described as

unfortunate both for the legal profession and the

administration of justice. It becomes, therefore,

our duty to bring it to the notice of the members

of the profession that it is in their hands to

improve the quality of the service they render

both to the litigant-public and to the Courts, and

to brighten their image in the society. Some

members of the profession have been adopting

perceptibly casual approach to the practice of the

profession as is evident from their absence when

the matters are called out, the filing of

incomplete and inaccurate pleadings – many time

even illegible and without personal check and

verification, the non-payment of Court-fees and

process fees, the failure to remove office

objections, the failure to take steps to serve the

parties, et al. They do not realise the seriousness

of these acts and omissions. They not only

amount to the contempt of the Court but do

positive disservice to the litigants and create

embarrassing situation in the Court leading to

avoidable unpleasantness and delay in the

disposal of matters. This augurs ill for the health

of our judicial system.

286

The legal profession is a solemn and serious

occupation. It is a noble calling and all those who

belong to it are its honourable members.

Although the entry to the profession can be had

by acquiring merely the qualification of technical

competence, the honour as a professional has to

be maintained by its members by their exemplary

conduct both in and outside the Court. The legal

profession is different from other professions in

that what the lawyers do, affects not only an

individual but the administration of justice which

is the foundation of the civilised society. Both as

a leading member of the intelligentsia of the

society and as a responsible citizen, the lawyer

has to conduct himself as a model for others both

in his professional and in his private and public

life. The society has a right to expect of him such

ideal behaviour. It must not be forgotten that

the legal profession has always been held in high

esteem and its members have played an enviable

role in public life. The regard for the legal and

judicial systems in this country is in no small

measure due to the tireless role played by the

stalwarts in the profession to strengthen them.

They took their profession seriously and practised

it with dignity, deference and devotion. If the

profession is to survive, the judicial system has to

be vitalised. No service will be too small in

making the system efficient, effective and

credible. The casualness and indifference with

which some members practise the profession are

certainly not calculated to achieve that purpose

287

or to enhance the prestige either of the

profession or of the institution they are serving.

If people lose confidence in the profession on

account of the deviant ways of some of its

members, it is not only the profession which will

suffer but also the administration of justice as a

whole. The present trend unless checked is likely

to lead to a stage when the system will be found

wrecked from within before it is wrecked from

outside. It is for the members of the profession

to introspect and take the corrective steps in time

and also spare the Courts the unpleasant duty.

We say no more."

In Brahma Prakash Sharma v. State of

U.P., 1953 SCR 1169 : (AIR 1954 SC 10 :

1954 Cri LJ 238) a Constitution Bench of this

Court held that a resolution passed by the Bar

Association expressing want of confidence in the

judicial officers amounted to scandalising the

Court to undermine its authority which amounted

to contempt of Court. In Tarini Mohan Barari,

Re : AIR 1923 Cal 212 the Full Bench of the

High Court held that pleaders deliberately

abstaining from attending the Court and taking

part in a concerted movement to boycott the

Court, was a course of conduct held not justified.

The pleaders had duties and obligations to their

clients in respect of matters entrusted to them

which were pending in the Courts. They had duty

and obligation to co-operate with the Court in the

orderly administration of justice. Boycotting the

Court was held to be high-handed and unjustified.

288

In Pleader, Re : AIR 1924 Rangoon 320 a Division

Bench of the High Court held that a pleader

abstaining from appearing in the Court without

obtaining his client's consent and leaving him

undefended, amounted to unprofessional

conduct. In U.P. Sales Tax Service

Association v. Taxation Bar Association,

Agra (1995) 5 SCC 716 : (1995 AIR SCW

3759 : AIR1996 SC 98 : 1995 All LJ 2052)

this Court observed (paras 15 and 16 of AIR

SCW, AIR and All LJ):

"It has been a frequent notice in the recent past

to witness that advocates strike work and boycott

the Courts at the slightest provocation

overlooking the harm caused to the judicial

system in general and the litigant public in

particular and to themselves in the estimate of

the general public. An advocate is an officer of

the Court and enjoys a special status in the

society. The workers in furtherance of collective

bargaining organise strike as per the provisions of

the Industrial Disputes Act as a last resort to

compel the management to concede their

legitimate demands. ......."

281. Question of lawyers going on strike has been the subject in

number of decisions of the Supreme Court. Most of those decisions

have been referred to in the decision of the Constitution Bench of

Supreme Court in AIR 2003 SC 739 [Ex. Capt. Harish Uppal v.

Union of India and another] in Paras (27) to (31), it has been held

289

as follows:-

"27. In the case of B.L.Wadehra v. State (NCT

of Delhi) and others reported in AIR (2000)

Delhi 266, one of the questions was whether a

direction should be issued to the lawyers to call

off a strike. The Delhi High Court noted certain

observations of this Court which are worth

reproducing:

"In Indian Council of Legal Aid and Advice v.

Bar Council of India, reported in (1995) 1 SCC

732 : (AIR 1995 SC 691), the Supreme Court

observed thus:

"It is generally believed that members of the

legal profession have certain social obligations.

e.g. to render "pro bono publico" service to the

poor and the underprivileged. Since the duty of a

lawyer is to assist the Court in the administration

of justice, the practice of law has a public utility

flavour and, therefore, he must strictly and

scrupulously abide by the Code of Conduct

behoving the noble profession and must not

indulge in any activity which may tend to lower

the image of the profession in society. That is

why the functions of the Bar Council include the

laying down of standards of professional conduct

and etiquette which advocates must follow to

maintain the dignity and purity of the profession."

............

The Delhi High Court then considered various

other authorities of this Court, including some set

out above, and concluded as follows:-

290

"30. In the light of the above-mentioned views

expressed by the Supreme Court, lawyers have

no right to strike i.e. to abstain from appearing in

Court in cases in which they hold vakalat for the

parties, even if it is in response to or in

compliance with a decision of any association or

body of lawyers. In our view, in exercise of the

right to protest, a lawyer may refuse to accept

new engagements and may even refuse to

appear in a case in which he had already been

engaged, if he has been duly discharged from the

case. But so long as a lawyer holds the vakalat

for his client and has not been duly discharged,

he has no right to abstain from appearing in

Court even on the ground of a strike called by the

Bar Association or any other body of lawyers. If

he so abstains, he commits a professional

misconduct, a breach of professional duty, a

breach of contract and also a breach of trust and

he will be liable to suffer all the consequences

thereof. There is no fundamental right, either

under Article 19 or under Article 21 of the

Constitution, which permits or authorises a

lawyer to abstain from appearing in Court in a

case in which he holds the vakalat for a party in

that case. On the other hand a litigant has a

fundamental right for speedy trial of his case,

because, speedy trial, as held by the Supreme

Court in Hussainara Khatoon v. Home

Secretary, State of Bihar, (1980) 1 SCC 81 :

(AIR 1979 SC 1360) is an integral and essential

part of the fundamental right to life and liberty

291

enshrined in article 21 of the Constitution. Strike

by lawyers will infringe the above-mentioned

fundamental right of the litigants and such

infringement cannot be permitted. Assuming that

the lawyers are trying to convey their feelings or

sentiments and ideas through the strike in

exercise of their fundamental right to freedom of

speech and expression guaranteed by Article 19

(1) (a) of the Constitution. We are of the view

that the exercise of the right under Article 19(1)

(a) will come to an end when such exercise

threatens to infringe the fundamental right of

another. Such a limitation is inherent in the

exercise of the right under Article 19(1)(a).

Hence the lawyers cannot go on strike infringing

the fundamental right of the litigants for speedy

trial. The right to practise any profession or to

carry on any occupation guaranteed by Article 19

(1)(g) may include the right to discontinue such

profession or occupation but it will not include

any right to abstain from appearing in Court while

holding a vakalat in the case. Similarly, the

exercise of the right to protest by the lawyers

cannot be allowed to infract the litigant's

fundamental right for speedy trial or to interfere

with the administration of justice. The lawyer

has a duty and obligation to co-operate with the

Court in the orderly and pure administration of

justice.

Members of the legal profession have certain

social obligations also and the practice of law has

a public utility flavour.

292

According to the Bar Council of India Rules, 1975

"an Advocate shall, at all times, comport himself

in a manner befitting his status as an officer of

the Court, a privileged member of the community

and a gentleman, bearing in mind that what may

be lawful and moral for a person who is not a

member of the Bar or for a member of the Bar in

his non-professional capacity, may still be

improper for an Advocate". It is below the

dignity, honour and status of the members of the

noble profession of law to organize and

participate in strike. It is unprofessional and

unethical to do so. In view of the nobility and

tradition of the legal profession, the status of the

lawyer as an officer of the court and the fiduciary

character of the relationship between a lawyer

and his client and since strike interferes with the

administration of justice and infringes the

fundamental right of litigants for speedy trial of

their cases, strike by lawyers cannot be approved

as an acceptable mode of protest, irrespective of

the gravity of the provocation and the

genuineness of the cause. Lawyers should adopt

other modes of protest which will not interrupt or

disrupt court proceedings or adversely affect the

interest of the litigant. Thereby lawyers can also

set an example to other sections of the society in

the matter of protest and agitations.

31. Every Court has a solemn duty to proceed

with the judicial business during Court hours and

the Court is not obliged to adjourn a case

293

because of a strike call. The Court is under an

obligation to hear and decide cases brought

before it and it cannot shirk that obligation on the

ground that the advocates are on strike. If the

counsel or/and the party does not appear, the

necessary consequences contemplated in law

should follow. The Court should not become

privy to the strike by adjourning the case on the

ground that lawyers are on strike. Even in the

Common Cause case the Supreme Court had

asked the members of the legal profession to be

alive to the possibility of Judges refusing

adjournments merely on the ground of there

being a strike call and insisting on proceeding

with the cases. Strike infringes the litigant's

fundamental right for speedy trial and the Court

cannot remain a mute spectator or throw up its

hands in helplessness on the face of such

continued violation of the fundamental right.

32. Either in the name of a strike or otherwise,

no lawyer has any right to obstruct or prevent

another lawyer from discharging his professional

duty of appearing in Court. In any one does it,

he commits a criminal offence and interferes with

the administration of justice and commits

contempt of Court and he is liable to be

proceeded against on all these counts.

33. In the light of the above discussion we are of

the view that the present strike by lawyers is

illegal and unethical. Whatever might have been

the compelling circumstances earlier, now there

is absolutely no justification for the continuance

294

of the strike in view of the appointment of the

Commission of Inquiry and the directions being

issued in this case."

28. In our view the conclusions reached are

absolutely correct and the same need to be and

are hereby approved.

29. Thereafter in the case of Ramon Services

Pvt. Ltd. v. Subhash Kapoor reported in

(2001) 1 SCC 118 = 2001 -1 -L.W. 61, the

question was whether a litigant should suffer a

penalty because his advocate had boycotted the

Court pursuant to a strike call made by the

Association of which the advocate was a member.

In answer to this question it has been held that

when an advocate engaged by a party is on strike

there is no obligation on the part of the Court to

either wait or adjourn the case on that account.

It was held that this Court has time and again set

out that an advocate has no right to stall court

proceedings on the ground that they have

decided to go on a strike. In this case it was

noted that in Mahabir Prasad's case (supra), it

has been held that strikes and boycotts are

illegal. That the lawyers and the Bar understood

that they could not resort to strikes is clear from

statement of Senior Counsel Shri. Krishnamani

which this Court recorded. The state is as

follows:

"13. Shri Krishnamani, however, made the

present position as unambiguously clear in the

295

following words:

"Today, if a lawyer participates in a Bar

Association's boycott of a particular court that is

ex facie bad in view of the clear declaration of

law by this Hon'ble Court. Now, even if there is

boycott call, a lawyer can boldly ignore the same

in view of the ruling of this Hon'ble Court in

Mahabir Prasad Singh (1999) 1 SCC 37."

30. Thus the law is already well settled. It is the

duty of every Advocate who has accepted a brief

to attend trial, even though it may go on day to

day and for a prolonged period. It is also settled

law that a lawyer who has accepted a brief

cannot refuse to attend Court because a boycott

call is given by the Bar Association. It is settled

law that it is unprofessional as well as

unbecoming for a lawyer who has accepted a

brief to refuse to attend Court even in pursuance

of a call for strike or boycott by the Bar

Association or the Bar Council. It is settled law

that Courts are under an obligation to hear and

decide cases brought before it and cannot

adjourn matters merely because lawyers are on

strike. The law is that it is the duty and

obligation of the Courts to go on with matters or

otherwise it would tantamount to becoming a

privy to the strike. It is also settled law that if a

resolution is passed by Bar Associations

expressing want of confidence in judicial officers

it would amount to scandalising the Courts to

undermine its authority and thereby the

Advocates will have committed contempt of

296

Court. Lawyers have known, at least since

Mahabir Singh's case (supra) that if they

participate in a boycott or a strike, their action is

ex-facie bad in view of the declaration of law by

this Court. A lawyer's duty is to boldly ignore a

call for strike or boycott of Court/s. Lawyers

have also known, at least since Roman Services'

case, that the Advocates would be answerable for

the consequences suffered by their clients if the

non-appearance was solely on grounds of a strike

call.

31. It must also be remembered that an

Advocate is an officer of the Court and enjoys

special status in society. Advocates have

obligations and duties to ensure smooth

functioning of the Court. They owe a duty to

their client. Strikes interfere with administration

of justice. They cannot thus disrupt Court

proceedings and put interest of their clients in

jeopardy. ......"

282. Despite such positive direction by the Supreme Court, in

the State of Tamil Nadu, there are any number of lawyers' strike and

boycott of Courts. Not a single day passes without strike by lawyers in

some part of the State. We have lost very many Court working hours

as seen from the number of days of boycott of various Courts in the

State of Tamil Nadu and Pondicherry from 2006 till 31.8.2009. The

number of days of boycott of Courts is really shocking. It may be noticed

that there is an increasing trend of strike by lawyers and more Court working

297

hours are lost because of lawyers strike.

283. At this juncture, it is apposite to refer the following passage

of Shri P.P.Rao, Senior Advocate – Strikes by Professionals,

extracted in Gururaja Chari's Advocacy and Professional Ethics –

First Edition, 2000 [page 553]:

"A strike is an extreme form of protest. It loses

its efficiency if it is resorted to frequently. During

the struggle for Independence Mahatma Gandhi

gave a call to boycott the British rule and many

lawyers responded by giving up their lucrative

practice and joining the freedom movement. Is it

wise to use this weapon in free India over

relatively insignificant issues? No every

provocation by the police or the Government

warrants a strike, there are strikes and strikes.

In the year 1986 when Mr. Justice T.P.S. Chawla,

the senior most Judge was not appointed as the

Chief Justice of the Delhi High Court although he

was entitled to the office even according to the

declared policy of the Government, the entire Bar

in Delhi went on strike. The Supreme Court Bar

too joined the strike. It was successful. The

Government had to yield to the demand, as the

cause was just and had wide public support. The

strike was over a basic issue affecting the

independence of the judiciary which is a matter

of overriding importance to the public at large.

Can the same thing be said in respect of a strike

over alteration of pecuniary jurisdiction of a High

298

Court or setting up of a new Bench of a High

Court or opening new District Courts?

284. So far as, Principal Bench of Madras High Court is

concerned, there was vigorous boycott of Courts from 1st July 2004

protesting against formation of Madurai Bench of Madras High Court

and also inclusion of certain Districts within the jurisdiction of Madurai

Bench. There were clashes between two groups of Advocates and

number of cases came to be registered from March 2004 to August

2004. There were also demonstration, protest, forming human chain,

fast unto death demonstrations inside the Court campus and

procession in the Court corridors. At that stage, the Code of Conduct

for Advocates was notified. Protesting the notification of Code of

Conduct, the Advocates in George Town/Egmore/Saidapet/Tiruvotriyur

also joined in the protest. Lawyers' strike percolated to the Districts

also. Later the Code of conduct was withdrawn. What we notice is that

there is an ever increasing trend of boycott of Courts both in High

Court as well as in the Districts.

285. Another disturbing feature is that the strikes are of long

duration. It is a matter of common experience that during the strike

periods, no one is allowed to appear before the Court. More often,

there will be demonstrations and procession inside the Court premises

particularly in the verandah. Of course, now the processions in the

299

Court verandah have been stopped after the direction of the Supreme

Court in S.L.P. (Civil) No.7540/2009 dated 14.7.2009 directing that

there shall be no procession in the Court verandah.

286. Yet another disturbing feature of strikes is that they tend to

divide the Bar and at times they lead to scuffle amongst lawyers.

Democratic functioning of the Bar becomes impossible. Litigants are

not the only sufferers. The non-affluent sections of the Bar too suffer

silently. The Judges are handicapped in disposing of cases without the

assistance of lawyers.

287. We must admit that judiciary has not strongly reacted the

lawyers' boycott calls. Pointing out adopting of soft approach towards

continuance of strikes in AIR 2001 SC 207 [Ramon Services Pvt.

Ltd. v. Subhash Kapoor and others], Para (28), the Supreme Court

observed as under:-

"28. Though a matter of regret, yet it is a fact,

that the Courts in the country have been

contributory to the continuance of the strikes on

account of their action of sympathising with the

Bar and failing to discharge their legal obligations

obviously under the threat of public frenzy and

harassment by the striking advocates. I find

myself in agreement with the submission of Sh.

M.N.Krishnamani, Senior Advocate that the

Courts were sympathising with the Bar by not

300

agreeing to dismiss the cases for default of

appearance of the striking advocates. I have my

reservations with the observations of Thomas, J.

That the Courts had not been sympathising with

the Bar during the strikes or boycotts. Some

Courts might have conducted the cases even

during the strike or boycott periods or adjourned

due to helplessness for not being in a position to

decide the lis in the absence of the counsel but

majority of the Courts in the country have been

impliedly sympathisers by not rising to the

occasion by taking positive stand for the

preservation of the high traditions of law and for

continued restoration of the confidence of the

common man in the institution of judiciary. ......."

288. During boycott calls, most of the times no adverse orders

would be passed and thereby a convenient ground was created for the

lawyers again and again to give boycott call even on 'non-legal issue'.

As a result, as noted earlier, Courts have lost number of working days.

Hitherto, number of steps have been taken to ensure smooth/cordial

relationship between the Bar and Police by forming committees at

Districts level. After initial euphoria not much could be deliberated

upon them and the committees are no longer functional.

289. Pendency of Cases:

There is staggering arrears of nearly three crore cases are

pending at every stage in different Courts of India. In the country,

301

Madras High Court has the second largest pendency of cases i.e.

4,62,009 [Source – Court News - Supreme Court of India – Vol.IV,

Issue No.2 – April & June 2009]. Subordinate Courts in the State of

Tamil Nadu have pendency of 10,57,141 [Source – Court News -

Supreme Court of India – Vol.IV, Issue No.2 – April & June 2009].

Disposal of pending cases in a time bound manner and also dealing

with newly filed cases is a daunting challenge before the judiciary.

290. Expressing concern as to how lawyer's boycott affected

Subordinate Judiciary making it difficult in reaching the norms in 2007

2 MLJ page 1[Madras High Court Advocates' Association V.

State of T.N] First bench of this Court has held as under:-

"18. We are constrained to observe that while

going through the norms fixed for the

Subordinate Courts and when remarks have been

received from many of the Subordinate Courts

that the norms have not been able to be

achieved because of the prolonged strike by the

advocates. This is a serious issue and if it is

allowed to proceed, it may even paralyse the

functioning of the judiciary, which is not in public

interest."

291. Any judicial reform will have to go hand in hand with

administrative reforms as well as co-operation from the Bar, otherwise

speedy disposal of cases would surely then become a farce. We wish

and hope that lawyers in the State of Tamil Nadu would rise up to the

302

occasion rendering hands of co-operation and refraining from Courts'

boycott.

292. Observing that lawyers have no right to strike and issuing

directions to Courts for framing specific rules/Code of conduct of

lawyers in Court, in Ex. Capt. Harish Uppal's case [AIR 2003 SC

739], the Supreme Court held as under:-

"44. One last thing which must be mentioned is

that the right of appearance in Courts is till within

the control and jurisdiction of Courts. Section 30

of the Advocates Act has not been brought into

force and rightly so.

Control of conduct in Court can only be

within the domain of Courts. Thus Article 145 of

the Constitution of India gives to the Supreme

Court and Section 34 of the Advocates Act gives

to the High Court power to frame rules including

rules regarding condition on which a person

(including an Advocate) can practice in the

Supreme Court and/or in the High Court and

Courts subordinate thereto. Many Courts have

framed rules in this behalf.

Such a rule would be valid and binding on

all. Let all the Bar take note that unless self

restraint is exercised, Courts may now have to

consider framing specific rules debarring

Advocates, guilty of contempt and/or

303

unprofessional or unbecoming conduct, from

appearing before the Courts. Such a rule if

framed would not have anything to do with the

disciplinary jurisdiction of Bar Councils. It would

be concerning the dignity and orderly functioning

of the Courts.

..............

The Bar Councils cannot overrule such a

regulation concerning the orderly conduct of

Court proceedings. On the contrary it will be

their duty to see that such a rule is strictly abided

by. Courts of law are structured in such a design

as to evoke respect and reverence to the majesty

of law and justice. The machinery for

dispensation of justice according to law is

operated by the Court. Proceedings inside the

Courts are always expected to be held in a

dignified and orderly manner. The very sight of

an advocate, who is guilty of contempt of Court

or of unbecoming or unprofessional conduct,

standing in the court would erode the dignity of

the Court and even corrode the majesty of it

besides impairing the confidence of the public in

the efficacy of the institution of the Courts. The

power to frame such rules should not be confused

with the right to practise law.

While the Bar Council can exercise control

over the latter, the Courts are in control of the

former. This distinction is clearly brought out by

the difference in language in Section 49 of the

Advocates Act on the one hand and Article 145 of

304

the Constitution of India and Section 34(1) of the

Advocates Act on the other. Section 49 merely

empowers the Bar Council to frame rules laying

down conditions subject to which an Advocate

shall have a right to practise i.e. do all the other

acts set out above.

However, Article 145 of the Constitution of

India empowers the Supreme Court to make

rules for regulating this practice and procedure of

the Court including inter-alia rules as to persons

practising before this Court. Similarly Section 34

of the Advocates Act empowers High Courts to

frame rules, inter-alia to lay down conditions on

which an Advocate shall be permitted to practice

in Courts.

Article 145 of the Constitution of India and

Section 34 of the Advocates Act clearly show that

there is no absolute right to an Advocate to

appear in a Court. An Advocate appears in a

Court subject to such conditions as are laid down

by the Court. It must be remembered that

Section 30 has not been brought into force and

this also shows that there is no absolute right to

appear in a Court. Even if Section 30 were to be

brought into force control of proceedings in Court

will always remain with the Court.

Thus even then the right to appear in Court

will be subject to complying with conditions laid

down by Courts just as practice outside Courts

305

would be subject to conditions laid down by Bar

Council of India. There is thus no conflict or clash

between other provisions of the Advocates Act on

the one hand and Section 34 or Article 145 of the

Constitution of India on the other.

45. In conclusion it is held that lawyers have no

right to do on strike or give a call for boycott, not

even on a token strike.

The protest, if any is required, can only be

by giving press statements, TV interviews,

carrying out of Court premises banners and/or

placards, wearing black or white or any colour

arm bands, peaceful protect marches outside and

away from Court premises, going on dharnas or

relay fasts etc. It is held that lawyers holding

Vakalats on behalf of their clients cannot not

attend Courts' in pursuance to a call for strike or

boycott.

All lawyers must boldly refuse to abide by

any call for strike or boycott. No lawyer can be

visited with any adverse consequences by the

Association or the Council and no threat or

coercion of any nature including that of expulsion

can be held out. It is held that no Bar Council or

Bar Association can permit calling of a meeting

for purposes of considering a call for strike or

boycott and requisition, if any, for such meeting

must be ignored. It is held that only in the rarest

of rate cases where the dignity, integrity and

306

independence of the Bar and/or the Bench are at

stake, Courts may ignore (turn a blind eye) to a

protest abstention from work for not more than

one day. It is being clarified that it will be for the

Courts to decide whether or not the issue

involves dignity or integrity or independence of

the Bar and/or the Bench.

Therefore in such cases the President of the

Bar must first consult the Chief Justice or the

District Judge before Advocates decide to absent

themselves from Court. The decision of the Chief

Justice or the District Judge would be final and

have to be abided by the Bar. It is held that

Courts are under no obligation to adjourn matters

because lawyers are on strike. On the contrary,

it is the duty of all Courts to go on with matters

on their boards even in the absence of lawyers.

In other words, Courts must not be privy to

strikes or calls for boycotts. It is held that if a

lawyer, holding a Vakalat of a client, abstains

from attending Court due to a strike call, he shall

be personally liable to pay costs which shall be

addition to damages which he might have to pay

his client for loss suffered by him.

46. It is now hoped that with the above

clarifications, there will be no strikes and/or calls

for boycott. It is hoped that better sense will

prevail and self restraint will be exercised. The

Petitions stand disposed of accordingly."

(underlining added by us for emphasis)

307

293. As held by the Supreme Court in Ramon Services Pvt.

Ltd case "majority of the Courts in the country have been impliedly

sympathisers by not rising to the occasion by taking positive stand for

the preservation of the high traditions of law and for continued

restoration of the confidence of the common man in the institution of

judiciary. The Supreme Court further held that it is not too late even

now for the Courts in the country to rise from the slumber and perform

their duties without fear or favour particularly after the Judgment of

the Supreme Court in Mahabir Singh's case [AIR 1999 SC 287].

Inaction will surely contribute to the erosion of ethics and values in the

legal profession. The defaulting Courts may also be contributory to the

contempt of Court.

294. Role of Bar Council and its Responsibilities:

The Advocates Act 1961 gave autonomy to a Bar Council of a

State or Bar Council of India and Section 6(1) empowers them to

make such action deemed necessary to set their house in order, to

prevent fall in professional conduct and to punish the incorrigible as

not befitting the noble profession apart from admission of the

advocates on its roll. Section 6(1) (c) and rules made in that behalf.

The members of the judiciary are drawn primarily and invariably from

the Bar at different levels. The high moral, ethical and professional

standards among the members of the Bar are preconditions even for

high ethical standards of the Bench. Degeneration thereof inevitably

308

has its eruption and tends to reflect the other side of the coin. The Bar

Council, therefore, is enjoined by the Advocates Act to maintain high

moral, ethical and professional standards which of late is far from

satisfactory.

295. The Bar Council acts as the sentinel of professional code of

conduct and is vitally interested in the rights and privileges of the

advocates as well as the purity and dignity of the profession. The Bar

Council acts as the custodian of the high traditions of the noble

profession.

296. Observing that Bar Councils are expected to rise to the

occasion as they are responsible to uphold the dignity of courts and

majesty of law and to prevent interference in the Administration of

Justice, in the case of Supreme Court Bar Association v. Union of

India reported in ( (1998) 4 SCC 408) Constitution Bench of the

Hon'ble Supreme Court has held as follows:

"79. An advocate who is found guilty of Contempt

of Court may also, as already noticed, be guilty of

professional misconduct in a given case but it is

for the Bar Council of the State or Bar Council of

India to punish that advocate by either debarring

him from practice or suspending his licence, as

may be warranted, in the facts and

circumstances of each case. The learned Solicitor

General informed us that there have been cases

309

where the Bar Council of India taking note of the

contumacious and objectionable conduct of an

advocate, had initiated disciplinary proceedings

against him and even punished him for

'professional misconduct", on the basis of his

having been found guilty of committing Contempt

of Court. We do not entertain any doubt that the

Bar Council of the State or Bar Council of India,

as the case may be, when apprised of the

established contumacious conduct of an advocate

by the High Court or by this Court, would rise to

the occasion, and take appropriate action against

such an advocate. Under Article 144 of the

Constitution all authorities, civil and judicial, in

the territory of India shall act in the aid of the

Supreme Court. The Bar council which performs a

public duty and is charged with the obligation to

protect the dignity of the profession and maintain

professional standards and etiquette is also

obliged to the act "in aid of the Supreme Court".

It must, whenever facts warrant, rise to the

occasion and discharge its duties uninfluenced by

the position of the contemner advocate. It must

act in accordance with the prescribed procedure,

whenever its attention is drawn by this court to

the contumacious and unbecoming conduct of an

advocate which has the tendency to interfere

with due administration of justice. It is possible

for the High Courts also to draw the attention of

the Bar Council of the State to a case of

professional misconduct of a contemner advocate

to enable the State Bar council to proceed in the

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manner prescribed by the Act and the Rules

framed thereunder. There is no justification to

assume that the Bar Council to proceed in the

manner prescribed by the Act and the Rules

framed thereunder. There is no justification to

assume that the Bar Councils would not rise to

the occasion, as they are equally responsible to

uphold the dignity of the Courts and the majesty

of law and prevent any interference in the

administration justice. Learned counsel for the

parties present before us do not dispute and

rightly so the whenever a Court of record records

its findings about the conduct of an advocate

while finding him guilty of committing Contempt

of court and desires or refers the matter to be

considered by the Bar Council concerned,

appropriate action should be initiated by the Bar

council concerned in accordance with law with a

view to maintain the dignity of the Courts and to

uphold the majesty of law and professional

standards and etiquette. Nothing is more

destructive of public confidence in the

administration of justice than incivility, rudeness

of disrespectful conduct on the part of a counsel

towards the Court or disregard by the Court of

the privileges of the Bar. In case the Bar Council,

even after receiving "reference" from the Court,

fails to take action against the advocate

concerned, this Court might consider invoking its

powers under Section 38 of the Act by sending

for the record of the proceedings from the Bar

Council and passing appropriate orders. Of

311

course, the appellate powers under Section 38

would be available to this Court only and not to

the High Courts. We, however, hope that such a

situation would not arise.

80. In a given case it may be possible, for this

Court of the High Court, to prevent the

contemner advocate before it till he purges

himself of the contempt but that is much different

from suspending or revoking his licence or

debarring him to practise as an advocate. In a

case of contemptuous, contumacious,

unbecoming or blameworthy conduct of an

Advocate on Record, this Court possesses

jurisdiction, under the supreme Court Rules itself,

to withdraw his privilege to practice as an

Advocate on Record because that privilege is

conferred by this court and the power to grant

the privilege includes the power to revoke or

suspend it. The withdrawal of that privilege,

however, does not amount to suspending or

revoking his licence to practice as an advocate in

other courts of Tribunals."

297. Reiterating roles and responsibilities of Bar Council,

decision on the Ex.Capt. Harish Uppal's case the Hon'ble

Supreme Court has held as under:

"35. ...... Thus a Constitution Bench of this Court

has held that the Bar Councils are expected to

rise to the occasion as they are responsible to

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uphold the dignity of the Courts and majesty of

law and to prevent interference in administration

of justice. In our view it is the duty of the Bar

Councils to ensure that there is no unprofessional

and/or unbecoming conduct. This being their duty

no Bar Council can even consider giving a call for

strike or a call for boycott. It follows that the Bar

Councils and eve Bar Associations can never

consider or take seriously any requisition calling

for a meeting to consider a call for a strike or a

call for boycott. Such requisitions should be

consigned to the place where they belong viz. the

waste paper basket. In case any Association call

for a strike or a call for boycott the concerned

State Bar Council and on their failure the Bar

Council of India must immediately take

disciplinary action against the Advocates who

give a call for strike and if the Committee

Members permit calling of a meeting for such

purpose against the Committee Members. Further

it is the duty of every Advocate to bodily ignore a

call for strike or boycott." (underlining added by

us for emphasis).

We hope that Tamil Nadu State Bar Council would rise to the occasion

313

to comply with directions of the Supreme Court in dealing with the

conduct of advocates boycott calls and take serious view of the same.

298. In Ex. Capt. Harish Uppal's case directed the

Constitution of Grievance Redressal Committees in the level of High

Court and District Courts level to ventilate grievances:- (i) Local issues

(ii) Issues relating to one section of the Bar and another section (iii)

Issues involving dignity, integrity, independence of the Bar and

Judiciary (iv) Legislation without consultation with the Bar Councils. (v)

National issues and Regional issues affecting the Public at large/ the

insensitivity of all concerned.

299. Expressing concern over prolonged strikes an account of

rift between Police and Lawyers in W.P.No.24445/2006 reported in

2007 2 MLJ Page 1 [Madras High Court Advocates' Association

v. The State of Tamil Nadu and others], First Bench of this Court

proposed constitution of the State Level Co-ordination Committee to

examine any complaint or illtreatment of any Advocate at the hands of

the Police officials and to redress the grievance and thereby to

maintain cordial relationship between Police and lawyers.

300. As directed by the First Bench, in G.O.Ms. No.1249 Home

Police IX Department dated 28.12.2006 to maintain cordial

relationship between the Police and lawyers, State Level Co-ordination

314

Committee has been constituted. As per the G.O., composition of

State Level Co-ordination Committee is as under:-

1. Two Hon'ble Judges of the High Court, ..... Chairperson/Member Madras to be nominated by The Hon'ble

The Chief Justice. The Hon'ble Senior Judge shall be the Chairperson and the other Hon'ble Judges shall be the Member

2. The Advocate-General, Government of ..... Member Tamil Nadu

3. The Chief Secretary, Government of ..... Member Tamil Nadu

4. The Principal Secretary, Home Department, ..... Member Government of Tamil Nadu

5. The Additional Director General of Police/ ..... Member Inspector-General of Police (Law and Order)

6. The Chairman, Bar Council of Tamil Nadu ..... Member

7. The President, Madras High Court Advocates' ..... Member Association

8. The Chairperson, Federation of District and ..... Member Subordinate Courts' Bar Association of Tamil Nadu and Pondicherry, 17 Law Chambers,

Sampath Nagar, Erode

Any accusation made against the Police regarding their misbehaviour

towards members of Bar are to be brought to the notice of State Level

Co-ordination committee to sort out disputes. We take this

opportunity to reiterate the directions in W.P.No.24445/2006.

301. After the incident on 19.02.2009, public opinion is very

much against lawyers. Lawyers need to dispel the impression that they

are "Law Unto themselves". We fully endorse the submissions of

learned Advocate General Mr.P.S.Raman that advocates should be

'model citizens' and lawyers must rise up to restore the glory and their

public image. Mere saying that they would go by the rules may not be

315

sufficient. On the other hand "Self conscious engagement" on the part

of the lawyers individually and also collectively is required.

302. As observed by the Supreme Court in Ex. Capt. Harish

Uppal's case, we hope that in future there will be no strikes and/or

calls for boycott. It is hoped that better sense will prevail upon

lawyers and self restraint will be exercised.

303. Lawyers' strike call from 29.01.2009:-

Madras High Court Advocates Association (MHAA) announced

indefinite boycott of Courts in Tamil Nadu demanding an end to the

war in Sri Lanka. Lawyers took out a rally shouting slogans inside the

Court premises against genocide to Tamils in Sri Lanka. They stopped

MTC Bus and took it to Kilpauk Medical College Hospital to pay homage

to Muthukumar, who had committed self-immolation earlier in the day

over the Sri Lankan war. They are alleged to have caused damage to

the Bank of Ceylon, E.V.R. Periyar Salai, Kilpauk and also caused

damage to the car belonging to the Bank Manager. In this regard, a

case was registered in Veppery Police Station Cr.No.80/2009 under

Section 143, 144, 149 & 336 IPC of Section 3 (1) of TNP(PDL) Act.

304. On 30.01.2009 a large group of lawyers entered into the

Court Halls poohing Judges, dragged the Advocates including

Government Law Officers present in the Court. During the period of

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boycott, Advocates shouted slogans, took out procession in the

Corridors of Court Halls using Megaphone. Senior Advocate Mr.

A.E.Chelliah, was pulled out from the First Court Hall and was man-

handled by some Advocates in the presence of his wife, who is also an

Advocate.

305. Dragging out of the learned Senior Counsel Mr. A.E.Chelliah

from the Court was most unfortunate. The Advocates dared to enter

Court Hall No.1 and dragged the Senior Advocate Mr.A.E.Chelliah and

his wife just for the reason that they were arguing the case in the

Court. In our considered view, it was clearly an attempt to interfere

with the administration of justice. The Principle is that those who have

duties to discharge in a Court of Justice are protected by the law and

shielded by the law to discharge their duties. The advocates in turn

have duty to protect the Courts and act in furtherance of

administration of Justice.

306. The lawyers strike continued from 02.02.2009 to

09.02.2009. MHAA continued the boycott demanding end to the war in

Sri Lanka. They took out procession in the High Court Corridors using

Megaphones and also organised demonstrations and also conducted

meetings inside and outside the Court premises. The Advocates who

willingly participated in the Court proceedings were prevented from

attending the Court by the striking lawyers.

317

307. On 04.02.2009, the striking Lawyers are said to have

caused damage to several shops in Paris during the Bandh in support

of the Sri Lankan Tamils. A complaint was also lodged by the owner of

the shops. In this connection three cases were registered in B2-

Esplanade Police Station in Crime No. 73/2009 u/s 147, 143, 188, 286

IPC r/w 3(1) of TNPPDL Act, Crime No.74/2009 u/s 147, 148, 341,

324, 307 and 506(ii) IPC r/w 3(1) of TNPPDL Act and Crime

No.75/2009 u/s 147, 332, 353, 354 and 506(ii) IPC r/w 3(1) of

TNPPDL Act.

308. At about 2.30 A.M. (05.02.2009) about 40 Advocates are

said to have scaled over the compound wall of the High Court premises

and damaged the temporary shelter put up in connection with security

measures, Frisking Cubicle installed at the entrance of the High Court.

In this connection a case was registered in B4-High Court Police

Station Crime No.8/2009 u/s 147, 294(b), 427 506(ii) r/w 3(1) of

TNPPDL Act. On 05.02.2009 forenoon, MHAA convened a meeting at

the Library building and resolved to continue the boycott.

309. Some of the Advocates, who were involved in the

occurrence were arrested. The arrested Advocates were taken to the

quarters of the VII Metropolitan Magistrate, Saidapet in a police

vehicle. It is alleged that number of offenders gathered and raised

318

slogans against the Police which resulted in a scuffle between the

Advocates and Police. To reduce the tension, the advocates were taken

to Rajarathinam Stadium, Egmore and the Additional Metropolitan

Magistrate had gone to the Stadium. Additional Metropolitan Magistrate

remanded the advocates to judicial custody and immediately released

them on bail on personal bonds.

310. The boycott continued till 09.02.2009. On 10.02.2009

advocates resumed the work. After one day's work, again on

11.02.2009 MHAA continued the boycott by taking out procession and

raising slogans in the Court Corridors.

311. For days together lawyers have been boycotting the courts

and taking out procession and demonstrations demanding that the Sri

Lanka Government to announce cease fire operation against LTTE. Sri

Lankan issue was of no direct concern to the legal fraternity which is

clearly a political issue. Lawyers were responsible for the protests and

demonstrations and raising slogans in the Court Corridor and

preventing the advocates who wanted to attend the Court proceedings

and thereby creating tense situation in the Court premises during the

strike period.

312. In W.P.No.7646/2006, first Bench of this Court directed

that no political activity is to take place within the High Court campus.

319

In the said order, the Registrar-General and the concerned Asst.

Commr. of Police were directed to remove all the political hoardings,

cut-outs and advertisements inside the premises of the High Court or

on the compound wall of the premises.

313. Order in W.P.No.7646/2006 dated 20.6.2006 reads as

under:

"(1) The Registrar General, High Court, Madras

and the concerned Assistant Commissioner of

Police, High Court, Madras, are directed to ensure

that no political activity of any manner including

display of political cutouts, banners, posters or

organizing dharnas and meetings or birthday

celebration of any party leaders takes place

within the premises of the High Court.

(2) The Registrar General and the concerned

Assistant Commissioner of Police are directed to

remove forthwith all the political hoardings,

cutouts, advertisements, photographs etc, placed

inside the premises of the High Court or on the

compound wall of the premises.

(3) In case of any violation of the order of this

Court, the Registrar General/the concerned

Assistant Commissioner of Police is directed to

report the names of the lawyers or persons

indulging in such activities to the Chief Justice.

320

(4) The advocates of the various Associations of

this court are also requested to co-operate with

the Registrar General/Assistant Commissioner of

Police to maintain the decorum and dignity of this

Court.

314. The lawyers' boycott sympathising with Sri Lankan Tamil

Population and organising demonstrations and protest inside High

Court premises was in clear violation of this Court's order in

W.P.No.7646/2006. Unfortunately, the above direction was never

implemented nor any show cause notice was issued to the protesting

advocates. We are of the view, had the directions in

W.P.No.7646/2006 been strictly implemented the events would not

have taken an ugly turn on 17.02.2009 and on 19.02.2009.

315. The directions in W.P.No.7646/2006 Mutatis Muntandis

shall apply to the District courts and Moffusil courts. In so far as

District courts and Moffussil courts in the place of Registrar General

the District Judges and in the place of Asst. Commr. of Police, the

concerned Superintendent of Police are directed to ensure compliance

of the directions in W.P.No.7646/2006.

316. We direct the Registrar General to send copy of the order

in W.P.No.7646/2006 dated 20.06.2006 to the Bar Council, all the Bar

Associations in the Principal Bench and to Madurai Bench and to the

321

District Judges for being circulated to all the Bar Associations and Bar

Councils in the District courts and in the Moffussil courts.

317. We further direct as per the directions of the Supreme

Court in SLP (Civil) No. 7540 of 2009 dated 14.7.2009, there shall be

no procession in the Court verandah or in any part of the court

premises except within their Association Halls, that too in a peaceful

manner.

318. Occurrence on 17.02.2009:- Dr.Subramaniam Swamy,

President/Janata Party appeared in Court Hall No.III on 17.2.2009

before the Bench comprising the Hon'ble Justice P.K.Misra and the

Hon'ble Justice K.Chandru to implead himself in connection with

Chidambaram Natarajar Temple's case. When the hearing of the case

was in progress, at about 11.45 A.M., a group of advocates entered

into the Court Hall and assaulted Dr.Subramaniam Swamy and threw

eggs on him. The lawyers are also said to have attacked Mr.Kadher

Mohideen, Assistant Commissioner of Police who went inside the Court

Hall to control the lawyers by disrupting the Court proceedings.

Inspite of the warning, the attack continued for 15 minutes. The

Bench has recorded the incident and directed the Registry to place the

order before the Hon'ble The Acting Chief Justice and also forwarded a

copy of the order to the Hon'ble The Chief Justice of India. Based on

the complaint lodged by Mr.Kadher Mohideen, ACP, a case was

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registered in B4-High Court Police Station Crime No.13/2009 u/s 147,

451, 355,332, 506(ii), 294(B) and 153A IPC r/w Section 3(1) of

TNPPDL Act.

319. By the order dated 19.2.2009, Bench directed that the

incident on 17.2.2009 be treated as PIL and directed that PIL to be

heard by five member of Judges to go into the attack on

Dr.Subramaniam Swamy in W.P.No.3498/2009. The incident on

17.02.2009 has trigged the whole incident. It is on the said complaint

lodged, handful of advocates who attacked Dr.Subramaniam Swamy

went to B4-High Court Police Station volunteering to surrender which

led to the unsavoury incident on 19.2.2009.

320. Observing that it is the solemn duty of every Court to

proceed with the Judicial business during Court hours and that no

Court should yield to pressure tactics or boycott calls or any kind of

browbeating in Mahabir Prasad Singh's case (1999) 1 SCC 37 :

(1998 AIR SCW 3806: AIR 1999 SC 287), the Supreme Court held

as under:-

"2. Judicial function cannot and should not be

permitted to be stonewalled by browbeating or

bullying methodology, whether it is by litigants or

by counsel. Judicial process must run its even

course unbridled by any boycott call of the Bar,

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or tactics of filibuster adopted by any member

thereof. High Courts are duty bound to insulate

judicial functionaries within their territory from

being demoralised due to such onslaughts by

giving full protection to them to discharge their

duties without fear. But unfortunately this case

reflects apathy on the part of the High Court in

affording such protection to a judicial functionary

who resisted, through legal means, a pressure

strategy slammed on him in open Court."

In para (16) it was further held as under:-

"16. If any counsel does not want to appear in a

particular Court, that too for justifiable reasons,

professional decorum and etiquett require him to

give up his engagement in that Court so that the

party can engage another counsel. But retaining

the brief of his client and at the same time

abstaining from appearing in that Court, that too

not on any particular day on account of some

personal inconvenience of the counsel but as a

permanent feature, is unprofessional as also

unbecoming of the status of an advocate. No

324

Court is obliged to adjourn a cause because of

the strike call given by any association of

advocates or a decision to boycott the Courts

either in general or any particular Court. It is the

solemn duty of every Court to proceed with the

judicial business during Court hours. No Court

should yield to pressure tactics or boycott calls or

any kind or browbeating."

321. The incident on 17.02.2009 and voluntary surrender of

advocates in Cr.No.13/2009 has trigged the sordid episode on

19.02.2009. The learned Senior Counsel Mr.R.Krishnamoorthy

submitted that the occurrence at Court Hall No.III on 17.02.2009

might be an offence under Section 175, 179, 180 IPC and all of which

are only non-cognizable offence and therefore, advocates could not

have volunteered to surrender on 19.02.2009. It was further

submitted that as per the procedure contemplated under Section 345

Cr.P.C., arrest is totally inapplicable to the occurrence on 17.02.2009.

Since, larger Bench has seized up the matter, we do not propose to

express any opinion on the above submissions.

322. Suffice it to note that Mr.R.Karuppan, has categorically

stated that they have gone to B4-High Court Police Station to

voluntarily surrender in connection with B4-High Court Police Station

325

Cr.No.13/2009. As pointed out earlier, on 19.02.2009 Court has

ordered that five member Judges would hear the W.P.(PIL)

No.3498/2009 to go into the attack on Dr.Subramaniam Swamy. After

having known that PIL was ordered to be heard by a larger Bench

quite possibly, lawyers have gone to B4-High Court Police Station to

surrender themselves.

323. The learned Senior Counsel Dr.Rajeev Dhavan, submitted

that the surrender of lawyers on 19.02.2009 was a mock surrender

only to bargain registration of case against Dr.Swamy. It was therefore

submitted that it was unbecoming conduct of lawyers to enact such

mock surrender and urged us to initiate proceedings against those

responsible for the mock surrender and to provoke the incident on

19.02.2009.

324. In so far as the incident in Court Hall III on 17.02.2009,

public interest litigation is pending before the Larger Bench.

Cr.13/2009– B4-High Court Police Station has also been registered

against lawyers and investigation is pending. That apart, when PIL is

pending as to the attack of Dr.Swamy we do not propose to go in

detail in the above matter. Nor do we think it appropriate to issue any

direction for initiation of proceedings against those lawyers.

326

325. Occurrence on 19.02.2009:-

At the risk of repetition, let us recapitulate the happenings on

19.2.2009:

10.30 A.M. Dr. Subramaniam Swamy appeared before ACJ Court and in CourtHall No.III.

For providing security to Dr.Subramaniam Swamy, JCP mobilised105 Police personnel.

11.30 A.M. Dr. Subramaniam Swamy leaves High Court campus.

Police personnel go to B2-Esplanade Police Station for debriefing.12.00 Noon Advocate Mr.Vijayendran and Mr.Kunaraja appeared in B2-

Esplanade Police Station stating that they would surrender andinsisted for the list of Advocates involved in Crime No.13/2009.

2.00 – 2.30 P.M. Large number of Advocates led by Mr.R.Karuppan, Rajinikanth,Vijayendran, Pugazhenthi and Jayakumar had gone to B4-HighCourt Police Station and insisted for registering the complaintagainst Dr. Subramaniam Swamy and Radha Mohan as a pre-condition to their surrender.

On receiving information, Mr.Prem Anand Sinha, DC andMr.M.Ramasubramani, JCP rushed from B2-Esplanade PoliceStation to B4-High Court Police Station.

3.00 – 3.30 P.M. On the basis of the complaint by Advocate Mr.Rajinikanth, casewas registered in Crime No.14/2009 under Sec.3(1) SC/ST(Prevention of Atrocities) Act and under Sec.506(ii) IPC.

Available strength in B2-Esplanade Police Station was shifted toB4-High Court Police Station.

Advocates demanded copy of FIR and the same was handed overto them. Advocates then started demanding that Dr.Subramaniam Swamy to be arrested and only thereafter, theywould surrender and there was slogans raising.

3.00 – 3.45 P.M. Addl CoP (L&O) and JCP (Central Zone), 2 Dcs, 9 Acs, 11Inspectors, 4 S.Is. and 90 TSP men came as an additionalstrength.

Advocates were apprehended and those Advocates who resistedthe arrest were also taken to custody.

3.45 – 3.55 P.M. Stone pelting. Both sides claim that other side pelted stones first.

[Dispute as to time of arriving of Addl. CoP (L&O) Mr.Viswanathanand command to be dealt with later].

[Teargas shells were fired and lathicharge was ordered. There isdispute as to the time firing teargas shells and lathicharge which,we shall deal with it little later].

327

326. Exercise of Jurisdiction under Article 226 :-

Both sides have filed counter-affidavits and reply affidavits.

There are number of inconsistent and varying versions. In the

affidavit filed by Mr.Paul Kanagaraj, Ms.Nalini and Mr.Sampathkumar,

it is averred that at 3.30 P.M., they have seen group of Police

personnel throwing stones on the Advocates. They have also averred

that the Police in mufti were wearing Black and White mingled freely

with the Advocates and they were the provocateurs. In her affidavit,

Ms.Nalini also averred that Policemen were seen carrying stones in a

small cloth bag.

327. Drawing our attention to varying versions, learned Senior

Counsel Dr.Rajeev Dhavan submitted that the issue involves disputed

questions of fact which cannot be determined except on evidence and

therefore, the same are not fit to be taken up for adjudication in

exercise of Writ jurisdiction. It was further argued that there is no

worthy reliable evidence to arrive at the conclusion and therefore,

Court should be slow in embarking upon the adjudication of highly

disputed questions of fact. Even after lifting the veil, Court can still

say that the materials available are not sufficient to arrive at the

conclusion. Submitting that when number of persons were injured and

the various factors are to be gone into for determining the

compensation, such complicated questions of fact cannot be gone into

in writ jurisdiction. Learned Senior Counsel further submitted that the

massive facts and events are judicially "unmanageable" and therefore,

328

identification of the delinquent Police officers and question of

determining the compensation cannot be determined exercising

jurisdiction under Article 226 of Constitution of India. In support of his

contention, learned Senior Counsel placed reliance upon 1958 SCR

499 [Union of India v. T.R.Varma]; (2005) 12 SCC 725 [Orissa

Agro Industries Corporation Ltd. v. Bharati Industries] and

(1969) 3 SCC 769 [Gunwant Kaur v. Municipal Committee,

Bhatinda].

328. Observing that where highly disputed questions of fact

exist which cannot be determined except on evidence, the High Court

should not normally entertain the Writ Petition, in 1958 SCR 499

[Union of India v. T.R.Varma], the Supreme Court held as follows:-

".........On the other hand, the point for

determination in this petition whether the

respondent was denied a reasonable opportunity

to present his case, turns mainly on the question

whether he was prevented from cross-examining

the witnesses, who gave evidence in support of

the charge. That is a question on which there is a

serious dispute, which cannot be satisfactorily

decided without taking evidence. It is not the

practice of courts to decide questions of that

character in a writ petition, and it would have

been a proper exercise of discretion in the

present case if the learned Judges had referred

the respondent to a suit."

329

329. In (2005) 12 SCC 725 [Orissa Agro Industries

Corporation Ltd. v. Bharati Industries], Para 7, the Supreme Court

held as under:-

"7. .............. Where a complicated question of

fact is involved and the matter requires thorough

proof on factual aspects, the High Court should

not entertain the writ petition. Whether or not the

High Court should exercise jurisdiction under

Article 226 of the Constitution would largely

depend upon the nature of dispute and if the

dispute cannot be resolved without going into the

factual controversy, the High Court should not

entertain the writ petition."

330. Observing that only as a matter of exception High Court

can exercise its discretion under Article 226 of Constitution and

entertain Writ Petitions involving disputed questions of fact requiring

oral evidence, in (1969) 3 SCC 769 [Gunwant Kaur v. Municipal

Committee, Bhatinda], Para 14, the Supreme Court held as follows:-

"14. .............. The High Court is not deprived of

its jurisdiction to entertain a petition under Article

226 merely because in considering the

petitioner's right to relief questions of fact may

fall to be determined. In a petition under Article

226 the High Court has jurisdiction to try issues

both of fact and law. Exercise of the jurisdiction

is, it is true, discretionary, but the discretion must

330

be exercised on sound judicial principles. When

the petition raises questions of fact of a complex

nature, which may for their determination require

oral evidence to be taken, and on that account

the High Court is of the view that the dispute may

not appropriately be tried in a writ petition, the

High Court may decline to try a

petition......................"

331. In (2003) 6 SCC 581 (T.K.Rangarajan v. Govt. of

T.N.), the Supreme Court has reiterated the jurisdiction of this Court

under Article 226 of Constitution of India in the following words:-

"5. At the outset, it is to be reiterated that under

Article 226 of the Constitution, the High Court is

empowered to exercise its extraordinary

jurisdiction to meet unprecedented extraordinary

situation having no parallel. It is equally true

that extraordinary powers are required to be

sparingly used. The facts of the present case

reveal that this was most extraordinary case,

which called for interference by the High Court,

as the State Government had dismissed about

two lakh employees for going on strike."

332. In (1980) 2 SCC 593 (Gujarat Steel Tubes Ltd. v.

G.S.T.Mazdoor Sabha), the Supreme Court held as under:-

" ..... Article 226 is a sparing surgery but the

lancet operates where injustice suppurates. .......

judicial daring is not daunted where glaring

331

injustice demands even affirmative action. ......

And an appellate power interferes not when the

order appealed is not right, but only when it is

clearly wrong. The difference is real though

fine."

333. In case of alleged rigging of Polling Booths in the Chennai

Corporation Election, referring to the above decisions, in (2007) 2

MLJ 129 [All India Anna Dravida Munnetra Kazhagam, Chennai

v. State Election Commissioner and others] (in which one of us

was a member – F.M.I.K.,J) summed up the legal position as under:-

"156. ...... (iv) In a Public Interest Litigation,

whenever injustice is meted out to a large

number of people, the Court should not hesitate

to step in.

(v) In a writ petition under Article 226 of

Constitution, even questions of fact of complex

nature can be determined.

..................

(viii) If the monstrosity of the situation or other

exceptional circumstances cry for timely

jurisdictional interdict or mandate, the Court

should not hesitate to exercise its extraordinary

power under Article 226 of the Constitution.

(ix) The mentor of law is justice and a potent

drug should be judicially administered.

(x) Judicial daring is not daunted where glaring

injustice demands even affirmative action. ......"

332

334. Exercise of jurisdiction under Article 226 of Constitution of

India is not daunted, where glaring injustice demands affirmative

action. This is the suo-moto taken up matter treated as Public Interest

Litigation. Whenever injustice is meted out to a large number of

people, Court will not hesitate in stepping in. In furtherance of the

public interest and in the interest of justice, on the available materials,

it is necessary to enquire into the incidents on 19.2.2009.

335. In Gunwant Kaur's case cited supra, Para 16, the

Supreme Court held as follows:-

"16. In the present case, in our judgment, the

High Court was not justified in dismissing the

petition on the ground that it will not determine

disputed questions of fact. The High Court has

jurisdiction to determine questions of fact, even if

they are in dispute and the present, in our

judgment, is a case in which in the interests of

both the parties the High Court should have

entertained the petition and called for an

affidavit-in-reply from the respondents, and

should have proceeded to try the petition instead

of relegating the appellants to a separate suit."

336. The above said decision of the Supreme Court in Gunwant

Kaur's case cited supra was followed in a decision of the Supreme

Court in ABL International Ltd. v. Export Credit Guarantee

Corporation of India Ltd. [(2004) 3 SCC 553], wherein Para 19,

333

the Supreme Court held as under:-

"19. Therefore, it is clear from the above

enunciation of law that merely because one of the

parties to the litigation raises a dispute in regard

to the facts of the case, the Court entertaining

such petition under Article 226 of the Constitution

is not always bound to relegate the parties to a

suit. In the above case of (Gunwant Kau

(Kunwant Kaur v. Municipal Committee,

Bhatinda (1969) 3 SCC 769) this Court even

went to the extent of holding that in a writ

petition, if the facts require, even oral evidence

can be taken. This clearly shows that in an

appropriate case, the writ Court has the

jurisdiction to entertain a writ petition involving

disputed questions of fact and there is no

absolute bar for entertaining a writ petition even

if the same arises out of a contractual obligation

and/or involves some disputed questions of fact."

337. As held by the Supreme Court in Rohtas Industries Ltd.

v. Staff Union (AIR 1976 SC 425 : (1976) 2 SCC 82 : 1976-I-

LLJ-274), the writ power has by and large been the people's sentinel

on the qui vive and to cut back on or liquidate that power may cast a

peril to human rights.

338. Having regard to the facts of the case, High Court has

discretion to entertain or not to entertain the Writ Petition. Ofcourse,

by and large when disputed questions of fact arise, High Court would

334

not go into such disputed facts and filing of suit may be the

appropriate remedy. Where necessary facts as to negligence/excesses

are available, the High Court can proceed under Article 226 of

Constitution of India. No hard and fast rules can be laid down on

these aspects and obviously the remedy under Article 226 would

depend upon facts and circumstances of each case.

339. The case before us is unprecedented. On 19.2.2009 even

when the Courts were functioning, without informing ACJ/Registrar

General, Police force was brought in. Police went on rampage and

about 175 lawyers, staff and also litigant public have sustained

injuries. Needless for us to state that exceptional or extraordinary

circumstances of this case warrant exercise of jurisdiction under Article

226 of Constitution of India. The monstrosity of the situation and

exceptional circumstances in this case convince us to exercise

jurisdiction under Article 226 of Constitution of India.

340. In fact, due to the enormity of the situation that prevailed

in the campus of this Court, the Full Bench of this Court thought it fit

to suo moto issue a Writ in order to examine the ghastly incident, its

cause and the perpetration, for the purpose of passing appropriate

orders to uphold the dignity and honour of this great Institution.

Therefore, we are convinced that the Writ Petition is maintainable and

we reject the said submission of the learned counsel.

335

341. Learned Senior Counsel Dr.Rajeev Dhavan submitted that

disputed questions of fact cannot be determined except on evidence

and that hardly any reliable evidence has been placed before the

Court. Learned Senior Counsel would further urge that serious doubts

arise as to the acceptability of Videos and Photos and based on such

slender materials court cannot adjudicate upon the highly disputed

questions of fact. We are unable to subscribe the submissions that

there are no sufficient materials produced before us to resolve the

contentious points raised.

342. Both in the suo-moto Writ Petition and other Writ Petitions

filed by the Advocates, Respondents have filed counter-affidavits

traversing each and every allegations in the affidavits. Respondents

have clearly and distinctly dealt with the averments in the affidavits.

Both sides advanced an elaborate submissions and we have heard the

matter at length. In fact, hearing of the case stretched over for a

couple of weeks. Based on the averments in Petitioners' affidavits and

counter-affidavits and from the elaborate submissions, we are able to

analyse and examine the contentious points raised before us. We are

not to point accusing the finger either against the Police or Lawyers.

We are primarily concerned with the Police excess/intrusion into the

Majesty of the Institution and the attack on the persons and Court

buildings and damage to Court properties paralysing the institution.

336

343. Probabilities are important elements of consideration. On

the materials placed before us and calling in aid experience and by

preponderance of probabilities, exercising Writ jurisdiction, we proceed

to examine the facts and the contentious points urged before us.

344. Admissibility of sound and video recordings and photography:-

A series of videos and photographs have been filed and shown

in the Court and were marked as under:-

➢ Video Clippings provided by the Police on the

19.02.2009 incident – CD-R1

➢ Video Clippings provided by Mr.Viswanathan – CD-R2

➢ Video Clippings filed by Ms.Vaigai -CD-P3 & P4

➢ Video Clippings provided by Mr.Karuppan-CD-P5

➢ Video Clippings provided by MHAA-CD-P1 & P2

➢ Photographs filed by both petitioners and respondents

345. Questioning authenticity of videos filed by petitioners, the

learned senior counsel Dr.Rajeev Dhavan submitted that only the

Police video recording have been authenticated, as the Police

videographer has filed an affidavit in the Court and Photos and Videos

produced by the Petitioners is not authenticated and hence unreliable.

Placing reliance upon R.M.Malkani V. State of Maharashtra (1983)

337

1 SCC 471 the learned senior counsel submitted that admissibility of

tape record of relevant conversation is subject to it being

authenticated in terms of the source, time and place without

tampering.

346. A contemporaneous tape record of a relevant conversation

is admissible under Section 8 of the Evidence Act. The tape recorded

conversation is relevant to the matter in issue if the identification of

the voice and accuracy of the conversation is proved by eliminating the

admissibility of erasing the recorded tape.

347. In so far as admissibility of tape recorded statement, in

1995 (supp.) SCC 611 the Hon'ble Supreme Court has held as

follows:-

"A tape-recorded statement is admissible in

evidence, subject to the following conditions:-

(1) The voice of the speaker must be

identified by the maker of the record or

other persons recognising his voice. Where the

maker is unable to identify the voice, strict

proof will be required to determine whether

or not it was the voice of the alleged speaker.

(2) The accuracy of the tape-recorded

statement must be proved by the maker

of the record by satisfactory evidence: direct or

circumstantial.

338

(3) Possibility of tampering with, or erasure

of any part of, the tape-recorded statement must

be totally excluded.

(4) The tape-recorded statement must be

relevant.

(5) The recorded cassette must be sealed

and must be kept in safe or official custody.

(6) The voice of the particular speaker must

be clearly audible and must not be lost or

distorted by other sounds or disturbances.

In Ramsingh's case that, the tape-recordings were held misleading

and could not be relied on because in most places they were

unintelligible and of a poor quality and of no use so their potential

prejudicial effect outweighed the evidentiary value of the recordings.

348. We are conscious that anything which is born of trickery or

trapping or cunningness should be very cautiously and carefully

considered by the Court before it is admitted and accepted.

349. That a bald denial of the contents of a video tape is not

adequate to doubt its authenticity; there should be material to show

that the video clippings are doctored or morphed. This view was

reiterated in Jagjit Singh V. State of Haryana

MANU/SC/5473/2006 : AIR 2007SC590. In R.M.Malkani

339

V.State of Maharashtra MANU/SC/0204/1972:1973CrilJ228. It

was noted that in Shri.N.Sri Rama Reddy, Yusufalh Esmail Nagree

V. State of Maharashtra MANU/SC/0092/1967 : 1968CrilJ103

and S. Pratap Singh V. State of Punjab MANU/SC/0272/1963 :

(1996) ILLJ458SC a conversation or dialogue recorded on a tape

recording machine was accepted as admissible evidence. But, it was

pointed out that such a conversation is admissible provided:- first, the

conversation is relevant to the matters in issue; second, there is

identification of the voice; third, the accuracy of the tape recording is

proved by eliminating the possibility of erasing the tape record. 'A

contemporaneous tape record of a relevant conversation is a relevant

fact and is admissible under Section 8 of the Evidence Act. It is

resgestae. It is also comparable to a photograph of a relevant

incident. The tape recorded conversation is therefore a relevant fact

and is admissible under Section 7 of the Evidence Act. This is, of

course, subject to ascertaining the genuineness of the tape recording

and its being free from tampering or mutilation.

350. The respondents have not disputed that the video clippings

filed by the petitioners relate to the occurrence. Even though video

clippings filed by the petitioners do not have the running time, We

have watched the videos and looked into the photos as corroborative

piece of evidence. In addition to the materials, we have watched the

videos and looked into the photos for proper appreciation of various

340

contentions. In so far as timings of chasing of lawyers and lathi

charge, we have mainly taken into account the video clippings filed by

the respondents CD-R1 & CD-R2. It is to be noted that in CD-R1 filed

by the respondents video clippings jump at several places with 'no

footages'. We have mainly referred to the Video clippings filed by

Mr.Viswanathan, Addl. CoP (L & O) C.D-R2.

351. Justice B.N.Srikrishna's report:

On 26.02.2009, the Hon'ble Supreme Court requested Justice

B.N.Srikrishna, former Judge of the Supreme Court to inquire into the

incident which happened on 19.02.2009 and file a report. After holding

initial enquiry on 28.02.2009, 01.03.2009, Justice B.N.Srikrishna

submitted his report on 04.03.2009. On 06.03.2009, the Hon'ble

Supreme Court took the report as part of the record and passed the

following order:

Report of enquiry submitted by Justice

Srikrishna is taken on record.

"...... Report is being sent to the State

Government and also the Acting Chief Justice of

the Madras High Court for appropriate action if

any".

352. In his report Justice B.N.Srikrishna though found police

excess, observed that the "circumstances facing the police on the

fateful day justified use of force by the police".

341

353. Placing reliance upon (1984) 3 SCC 161 (Bandhua

Mukti Morcha v. Union of India) the learned Senior Counsel Mr.

Rajeev Dhavan, submitted that Enquiry Report would furnish prima

facie evidence of the facts and data gathered by the Commission

during the objective and impartial enquiry carries much value. The

learned Senior counsel urged us to consider the report as primafacie

evidence of lawyers unruly behaviour justifying the use of force by the

police. The learned Senior counsel would further submit that since the

Supreme Court has taken on record Justice Srikrishna's report which

finds no mention as to any objections by the lawyers, to that extent,

Justice Srikrishna report attains prima facie finality and urged us to

look into the report of Justice Srikrishna as of evidentiary value.

354. With due respect, even in the beginning of hearing of the

matter, we made it clear that we may not refer to Justice

B.N.Srikrishna's report. The reason being it was only an Interim

Report. By its order dated 26.02.2009, Hon'ble Supreme Court asked

ACJ to decide terms of reference in consultation with the Advocate

General of the Madras High Court and Presidents of various Bar

Associations in Madras and place before the Committee the terms of

reference to the committee. It does not transpire from the report of

Justice Srikrishna that any such terms of reference was finalised by

ACJ for reference before the committee.

342

355. Having regard to the then continuation of Courts' boycott

by lawyers, Justice B.N.Srikrishna filed only an Interim Report. Since it

is only an Interim Report, with due respect, we were of the view we

may not refer to Justice B.N.Srikrishna report. We have heard the

matter at threadbare. Since overwhelming materials are placed before

us by way of affidavits and counter affidavits and other materials and

submissions, we proceeded to analyse the matter afresh.

356. Incidents – Surrender, Stone pelting and Lathicharge:-

We proceed to deal with this on the following aspects:-

➢ Whether there was pre-plan, premeditated and Police

conspiracy as alleged by the Advocates.

➢ Whether presence of Police force on the Court premises

was uninvited and unjustifiable or was it only a pre-

cautionary measure.

➢ Whether there was imminent "Threat Perception"

compelling the need for mobilising the Police as alleged

by the Police.

➢ Attack and who were responsible for the incident.

➢ Whether there is Contempt of Court and if so, who are to

be proceeded for Contempt of Court.

➢ Moulding of relief.

343

357. Re.contention -Premeditation and Police conspiracy:-

In the affidavits after affidavits, lawyers have alleged that the

Police action against the unruling mob was pre-planned conspiracy to

attack the lawyers. Lawyers have taken varied stance that Police

unleashed violence against the lawyers as part of pre-planned and

premeditated plan. In the representation dated 22.2.2009, Ms.Vaigai

has stated that "Police carried out a premeditated and well planned

attack on the judiciary". In his affidavit dated 09.3.2009, Mr.Paul

Kanagaraj, President MHAA has alleged that "it is a pre-planned

conspiracy to create a chilling effect on the legal fraternity in the State

including the judiciary". In her affidavit dated 11.3.2009, Ms. Nalini,

and in his affidavit dated 11.3.2009, Mr.Velmurugan, averred that the

attack was with pre-plan. Mr.Velmurugan has gone a step further

alleging that " the attack could not have been done without the

knowledge of the Home Minister, Home Secretary and Chief

Secretary". In the affidavit of Mr.M.Baskar dated 07.9.2009, pure

unfounded speculation has been made terming the incident as

"Operation Blackcoat".

358. Likening the February 19 violence to 'Operation Blue Star'

at the Amritsar Golden Temple, Mr.S.Prabakaran, President TNAA

submitted that similar preplanning preceded the campus violence,

which was code-named by Police as "Operation Black Coat".

344

Reiterating the averments, in their counter-affidavits Ms.Vaigai and

Mr.Paul Kanagaraj would also submit that the entire violence of the

Police was pre-planned and premeditated.

359. Mr.S. Prabhakaran, President, TNAA and Ms.Vaigai,

learned counsel have drawn our attention to the letter of the

Commissioner in D.O.Lr.No. 151/S.B.VII/2009 dated 6.2.2009 to the

Registrar-General bringing it to the notice of the Registrar-General the

behaviour of the lawyers indulged in agitations, entering into ruckus

with Police officials and disturbing the public peace. It was therefore

contended that the pre-determined mind of CoP is evident from the

letter dated 6.2.2009. Based on the said letter we are not inclined to

hold that there was conspiracy by Police against lawyers. The tenor of

the said letter only indicates the anguish of CoP about the law and

order situation in and around the High Court premises and not a pre-

determined mind as alleged by the lawyers.

360. The stand of lawyers that the incident was pre-planned and

premeditated is unfounded. The allegations are pure unfounded

speculation and unsupported by any materials. As rightly submitted by

the learned Senior Counsel Dr.Rajeev Dhavan, mere assertion that it is

pre-planned and premeditated would not constitute the evidence and

mere assertion cannot by themselves lead to the conclusion that there

was Pre-arranged Plan. To constitute premeditation, one should have

345

reflected the determination. There is no material showing expression

of 'ill-feelings' or 'previous threat' by the Police to say that there

was Pre-arranged plan.

361. The allegations that the incident was well prepared in

furtherance of Police conspiracy are baseless and mere speculation

based on nothing. Conspiracy consists in the agreement of two or

more persons to do an unlawful act, or to do a lawful act by unlawful

means. Absolutely, there is no material to show that there was

transmission of thoughts sharing unlawful design. To constitute

conspiracy, there must be 'common design' and 'common

intention' to work in furtherance of common design. Equally, the

averments are lacking as to what was the unlawful design. In fact, if

the group of lawyers had not gone to B4-High Court Police Station for

surrender, the day 19.2.2009 would have passed off like any other

normal day. While so, it is farfetched to contend that the incident on

19.2.2009 was a pre-planned operation by the Police conspiracy.

We have no hesitation in rejecting the plea of pre-plan and Police

conspiracy.

362. Whether mobilisation of Police force as pre- cautionary measure:-

Before we deal with this question, it is necessary to refer

security plan of the High Court and the sanctioned strength of Police

personnel for the security of High Court.

346

363. The High Court of Judicature, Madras is one of the three

Chartered High Courts established by Letter Patent granted by Her

Majesty Queen Victoria bearing dated 26.06.1862. High Court, Madras

is the highest Court in the State. The building is of antiquity Heritage

building with Indo-Sarocenic construction. High Court is a place of

historical importance attracting tourists. For any tourist, visit to

Chennai is incomplete without a visit to High Court buildings. High

Court sprawls in an extent of 38 acres. The premises comprises of

Court Halls, Judges' Chambers, Registry, Legal Services Authority,

Museum, Law Chambers, Canteen, B4-High Court Police Station, City

Civil Court, Family Court, Small Causes Court, Tribunals, Government

Press, Law College, Fire Station, BSNL office, Railway Booking Office,

Post Office etc. It is a place visited by number of litigants and public.

Having regard to the antiquity and nature of Heritage building, there is

compelling need to preserve the present building and premises for

posterity.

364. Mobilisation of Police Force – Whether PrecautionaryMeasure

Security to the High Court : W.P.No.3197/2007 –

02.02.2007: Providing security to the High Court has drawn the

attention for quite some time. Having regard to the vast extent

accommodating number of Courts and floating population of lawyers,

347

staff, clients, witnesses, visitors and vendors, in G.O.Ms.No.1536 dated

11.10.1996, B4-High Court Police Station was established sanctioning

Police personnel.

365. As per G.O.Ms.No.1810 dated 15.12.1997, Police

protection was provided to all the Courts in the High Court complex

and four Magistrate Courts in Chennai and sanctioning additional

manpower, arms, ammunition and equipments, vehicles etc. As per

G.O.Ms.No.51 dated 18.1.1999, Security wing was created to the

Hon'ble the Chief Justice and to the Hon'ble Judges, High Court,

Madras by providing personal security in the Cadre of Sub-Inspector of

Police.

366. For the purpose of ensuring security in High Court

premises, Registrar-General, High Court, Madras filed

W.P.No.3197/2007. In the said Writ Petition in W.P.No.3197/2007, it

was stated that the total sanctioned strength of Police personnel

comprising Officers and other rank is 252. Considering that High Court

is a Court of Record under Article 215 of Constitution of India as well

as it is housed in a Heritage building and that it also attracts thousands

of visitors every day and that there is an imperative need to provide

security cover to the premises of the High Court, in W.P.No.3197/2007

[Registrar-General, High Court, Madras v. State of Tamil Nadu,

rep. by the Chief Secretary to Government, Chennai and others

348

(reported in (2007) 2 MLJ 456)], Division Bench of this Court has

issued the following directions to maintain the sanctioned strength of

252 Police personnel. In Para (13) the Division Bench held as under:-

"13. ......

(i)The respondents are directed to maintain the

sanctioned strength of 252 Police personnel

comprising of officers and other rank and

provided in the tabular column above (para 6)

at all times and also to fill up the existing

vacancies within a period of four weeks from

today.

(ii)The Registrar-General of the High Court will

indicate a suitable place for constructing

accommodation for locating the Police outpost

within the High Court campus to the

respondents, who will construct a building at

their own costs with a built-up area of 4000

sq.ft., comprising of ground floor and first floor.

(iii)No personnel, who is coming within the

sanctioned strength of 252, comprising of

various categories listed above shall be

deputed to any other work, except for the work

of the High Court and no diversion of the force

will be permitted, except with the prior

permission of the Honourable Chief Justice of

the High Court.

(iv)The respondents 1 and 2 are directed to

ascertain the number of Police personnel

required for providing security at the residence

of the Honourable Judges within a period of

four weeks from today and also issue an order

349

sanctioning the said strength and report

compliance to this Court regarding the same,

within a period of two weeks thereafter.

(v)Adequate training to the Police force deployed

as suggested by the Special Committee should

be given.

367. By the letter dated 31.5.2007, Government of India issued

guidelines for the security of High Courts and District/Subordinate

Courts in the country. In the said guidelines, it has been mentioned

as follows:-

"(v) The High Court in the respective States/UTs

should be declared as High Security Zone.

(vi)There should be fool-proof Access Control

System for the premises of the High Courts

with regulated entry for all concerned,

including Judges, staff members, advocates,

plaintiffs and respondents, accused persons,

under trials, press, general public, etc., on the

basis of passes/Identity Cards. Different types

of passes/Identity Cards may be issued to

different visitors.

(vii)There should be random frisking or

checking of persons entering the Court

premises.

(viii)There should be provision for the separate

frisking of the under trials, preferably in the

lock-up provided for them.

350

368. After various incidents of terrorist attacks in the form of

serial blasts in different parts of the country and pointing that there

have been certain incidents of bomb blasts in Court complexes in the

State of Uttar Pradesh, reiterating the necessity for security

arrangements in the High Courts and District/Subordinate Courts and

also in respect of Hon'ble Judges, on 17.11.2008 directions were

issued to the Chief Secretary, State of Tamilnadu by the Home

Secretary, Government of India to review the security arrangements in

the High Court and District/Subordinate Courts and also in respect of

Hon'ble Judges.

369. Pursuant to these directions, Security Committee of the

High Court reviewed the entire security system as per the revised

security arrangement system in Para 2.5 of the Security Plan that

Static Armed Guard of one plus four to be posted at all entrances in

the High Court campus. Those guards are to provide very effective

check against any surprise entry into restricted areas and form the

first barrier against any unauthorised intrusion. The proposal

envisaging deployment of 451 personnel was approved by the

Committee of Judges in their meeting dated 28.1.2009. In

compliance, Quick Reaction Team (QRT) headed by an Officer has

been positioned inside the High Court premises from 28.1.2009. As

per the direction of the Court in W.P.No.3197/2007, the sanctioned

strength is 252 Police personnel. The proposal for deployment of 451

351

personnel was approved by the Committee of Judges in their

Proceedings dated 28.1.2009.

370. Shifting of Police personnel from B2-Esplanade

Police Station to B4-High Court Police Station:- After a long

period of strike, on 19.2.2009, Advocates resumed work. On

19.2.2009, Dr. Subramaniam Swamy appeared in Court Hall No.III

and in another Court. The following security was mobilised for the

security duty in connection with the visit of Dr.Subramaniam Swamy

(excluding the actual strength available for duty in Court) at 9.00 A.M.

Addl.CoP

Jcs Dcs ADCs Acs Insp.

SIs.

Others

Total

Local 1 3 1 4 8 23 65 105QRT 1 20 21SAG 1 20 21TOTAL 1 3 1 4 8 25 105 147

Elaborate bandobust arrangement was made with 3 DCs including

Mr.Prem Anand Sinha-DCP, Mr.Ramasubramani-JCP(North) and

Mr.Viswanathan-Addl. CoP. Addl. CoP Mr.Viswanathan and JCP (North)

Mr.Ramasubramani came to the High Court campus at 10.00 A.M. and

remained till 11.30 A.M. Dr. Subramaniam Swamy left the Court at

11.30 A.M. and it was safe exit. When Dr. Subramaniam Swamy

appeared in the Court absolutely there was no ruckus.

352

371. According to Mr.Ramasubramani-JCP (North), since Dr.

Subramaniam Swamy within 'Z' category has to appear in the Court

and that it is the responsibility of the State to protect the person under

'Z' category, to supervise the security arrangements, he came to the

High Court at 9.00 A.M. to personally oversee the bandobust

arrangements. Further, according to JCP (North), since the Assembly

was in Session and the Hon'ble Chief Minister was then hospitalised, he

took an objective decision in mobilising the strength to provide security

to Dr. Subramaniam Swamy. We do feel that mobilising strength for

security duty in connection with the visit of Dr. Subramaniam Swamy

was a bonafide decision taken by JCP (North). After Dr. Subramaniam

Swamy left, the Police personnel gathered at B2-Esplanade Police

Station for debriefing. The debriefing after bandobust is with meaning

and purpose i.e. to find out any happenings during security and the

personnel when will have to report back and to give such other

instructions.

372. In the counter-affidavit of the jurisdictional DCP, Mr.Prem

Anand Sinha, it is averred that when the Police personnel gathered at

B2-Esplanade Police Station for debriefing, at about 12.00 noon, ACP –

MKB Nagar told them that few Advocates approached him to surrender

and requested for list of accused Advocates concerned in B4-High

Court Police Station Crime No.13/2009 and list of accused Advocates

was furnished to them by ACP – MKB Nagar.

353

373. From the Videos filed by the Respondents, it was seen that

lawyers have gone to B4-High Court Police Station at 14.00 hours for

surrender. It was also seen from the Videos that lawyers raised

slogans and insisted for registration of case against Dr. Subramaniam

Swamy. Case in Crime No.14/2009 was registered against Dr.

Subramniam Swamy and copy of FIR was handed over to the lawyers

at 14:20 – 14:22 hours. At that time, only one Police Officer was

seen in the midst of the lawyers. After receiving copy of FIR, lawyers

started raising slogans and shouting for arrest of Dr. Subramaniam

Swamy. After about 14:22 hours, there is a gap in the Video clippings.

In the Videos, we notice the presence of Police personnel shifted to

B4-High Court Police Station between 14:22 to 15:34 hours.

374. According to Mr.Ramasubramani-JCP (North), he and

Mr.Prem Anand Sinha-DCP and other Police personnel waited in B2-

Esplanade Police Station waiting for surrender of Advocates. On

receiving information that there was sloganeering and protest in B4-

High Court Police Station, available strength in B2-Esplanade Police

Station was shifted to B4-High Court Police Station.

375. In his counter-affidavit Mr.Viswanathan-Addl. CoP has

averred that when he came to B2-Esplanade Police Station, he learnt

that the entire Police force present in the B4-High Court Police Station

354

at 10.00 A.M. continued to be stationed near B4-High Court Police

Station. The averments in Para (8) alleging that the Police force

continued to be stationed near B4-High Court Police Station is not

correct. It was seen from the Videos, from 14:00 – 14:20 hours,

there was no Police force near B4-High Court Police Station. Only on

information, about brewing tension in B4-High court Police Station,

Police force was shifted from B2-Esplanade Police Station to B4-High

Court Police Station.

376. As per the order in W.P.No.3197/2007, the sanctioned

strength of Police personnel was 251 (excluding ACP). As per the

security plan of the High Court, the sanctioned strength is 451

(including officers). According to Police that the strength mobilised on

19.2.2009 was 292 in addition to the existing strength of 130 more or

less within the limits of 451 which is the sanctioned strength as per the

security plan.

377. By and large, the then strength actually available for duty

in the High Court (Guards, Judges Chambers, Halls, Gates, Booth,

Traffic etc.) is only about 130. In addition to the existing strength in

the High Court 130, on 19.2.2009 additional strength mobilised was

147 + 118 + 26 = 291 totalling 421 [130 + 291 = 421]. As per the

security plan, the sanctioned strength of 451 personnel was mainly for

man power deployment at (i) Gates; (ii) Armed Guard; (iii)

Surveillance; (iv) Bomb detection; (v) Bomb Disposal; (vi) Control

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Room; (vii) Baggage Screening; (viii) High Court Halls/Judges

Chambers; (ix) Other Court premises; (x) Parking areas and (xi) QRT.

When the manpower deployment was for multi-purpose ensuring

security, evidently that force was not meant to be garnered in B4-High

Court Police Station. The additional strength deployed on 19.02.2009

were TSP, SAG, TNCF and not regular Armed Reserve. While so, it

cannot be contended that strength mobilised on 19.02.2009 was only

as per the sanctioned strength of security plan.

378. THREAT PERCEPTION: Learned Counsel Dr.Rajeev

Dhavan mainly argued that in the assessment of Police, there was

'Threat Perception' which necessitated mobilisation of force and

subsequent acts. According to the Police 'Threat Perception' was on

two counts:- (i) High Court being high security Zone, Police was

concerned about general security and advocates gathered in huge

numbers were sloganeering. (ii) Antecedents of Advocates particularly

activities from November 2008.

379. Submitting that holistic threat perception meant taking into

account various antecedent facts related to the incidents of Advocates'

excess in and around the High Court campus and involving Advocates,

learned Senior Counsel enumerated number of incidents such as:-

➢ 2001 – 2007 - 92 criminal cases booked against

several Advocates.

356

➢ 12.11.2008 – Incident of clash between two

groups of Dr. Ambedkar Government Law College

Students within the High Court campus.

➢ 29.1.2009 – Advocates entered the Court

presided by ACJ and asked Advocates there to join

in boycott. Further, the Advocates went to the Vth

Court presided by Justice Manikumar and disrupted

proceedings by banging on the door. Advocates

moved inside High Court complex shouting slogans

on megaphone against Sonia Gandhi.

➢ 30.1.2009 – Advocates hijacked MTC bus to pay

homage Muthukumar. Subsequently, about 100

advocates went in a procession inside the High

Court campus and sloganeered.

➢ 03.2.2009 – 50 Advocates staged demonstration

to pay homage to Muthukumar and burnt a portrait

of Subramaniam Swamy.

➢ 04.2.2009 – Hartal declared all over Chennai by

political parties. Cycle shop (Bombay Cycle Mart)

opposite the High Court which was still open

damaged by advocates.

➢ 11.2.2009 – 100 Advocates headed by

Mr.Kanakaraj led demonstration and burnt

Congress Party flag and portraits of Congress

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leaders within High Court campus.

➢ 12.2.2009 – 60 Advocates headed by

Mr.Kanakaraj took out procession within High

Court campus and burnt Congress party banner.

Later, 75 Advocates went in procession from High

Court and attempted to lay siege to the Army

Headquarters, Chennai.

➢ 13.2.2009 – Two group of Advocates headed by

Mr.Kanakaraj and Mr.Rajinikanth led a procession

to picket Central Railway Station.

➢ 16.2.2009 – 20 Advocates sloganeered and burnt

portraits of Sonia Gandhi and Sri Lankan President

within the High Court campus. Later 35 Advocates

burnt their Election Photo Identity Cards

renunciating their Indian citizenship and burnt

photo of Sonia Gandhi.

It was submitted that in the above circumstances, there was serious

'Threat Perception' and in view of such 'Threat Perception', Police

mobilised additional strength to provide security to Dr. Subramaniam

Swamy and in the light of surrender by lawyers. Learned Senior

Counsel would further submit that it is for the Police to take reasonable

action to deal with the 'Threat Perception' and it is not for the Court

to substitute its own view whether mobilisation of strength was

necessary or not. It was further submitted that leeway to be given to

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the Police to deal with the threats to Law and order situation or public

order, Police must evaluate over all such Threat Perception.

380. Ofcourse, there have been number of cases against the

Advocates. But in most of the cases, charge sheets have not been

filed. We do not subscribe to the contention of 'Threat Perception'

based on the prior incidents. As we pointed out earlier, on 19.2.2009

lawyers resumed work and from the morning Courts were smoothly

functioning. Visit of Dr. Subramaniam Swamy passed off peacefully.

Surrender was initially supposed to be a voluntary surrender. In our

considered view, there was no imminent 'Threat Perception' as

alleged by the Police to shift the Police personnel from B2-Esplanade

Police Station to B4-High Court Police Station and to mobilise

additional strength.

381. In the counter-affidavit of Mr. Viswanathan, Addl. CoP, it is

averred that when he reached B2-Esplanade Police Station at 3.10

P.M., he learnt that "entire Police force secured in the morning at

10.00 A.M. continued to be stationed near High Court Police Station".

The stand of Mr.Viswanathan that Police Force continued in B-4 Police

Station is not correct. As we pointed out earlier, at the time of

registration of FIR and handing over copy of FIR to lawyers at 2.21

P.M., in the video clippings, we do not find additional police strength;

But only Inspector of Police with lawyers.

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382. According to Mr.Ramasubramani-JCP (North) and Mr. Prem

Anand Sinha-DCP, there was a meeting held by ACJ on 18.2.2009 and

they were instructed to take firm action against the lawyers involved in

the attack on Dr. Subramaniam Swamy in Crime No.13/2009. Mr.

P.N.Prakash, learned counsel for Mr.Ramasubramani-JCP (North)

submitted that Assembly was in Session and the Hon'ble Chief Minister

was in hospital and Dr. Subramaniam Swamy was in 'Z' category

protection and therefore, even after his safe exit, and number of

advocates gathered and since there was sloganeering and trouble

brewing up, shifting of Police personnel was an objective decision

taken by the JCP (North) in "Good faith".

383. According to the General Clauses Act X of 1897 "A thing

shall be deemed to be done in 'good faith' where it is in fact done

honestly whether it is done negligently or not.". Good faith is denied

in Sec.52 IPC as under:-

"Nothing is said to be done or believed in "good faith"

which is done or believed without due care and attention."

Good faith requires not logical infallibility, but due care and attention.

But how far erroneous actions or statements are to be imputed to want

of due care and caution must in each case, be considered with

reference to the general circumstances and the capacity and

intelligence of the person, whose conduct is in question. When a

360

question arises as to whether a person acted in good faith, then it

devolves upon him to show not merely that he had a good intention

but that he exercised such care and skill as the duty reasonably

demanded for its due discharge.

384. Observing that the test is of a reasonable and prudent

man, in Re : S.K.Sundaram (2001) 2 SCC 171, the Supreme Court,

in Paras (28) and (29) held as follows:-

"28. The expression "good faith" in criminal

jurisprudence has a definite connotation. Its

import is totally different from saying that the

person concerned has honestly believed the truth

of what is said. Good faith is defined in Section

52 of the Indian Penal Code thus:

"52. Nothing is said to be done or believed in

'good faith' which is done or believed without due

care and attention."

29. See the language of the law in this regard. It

starts in the negative tone excluding all except

what is allowed to be within its amplitude.

Insistence sought to be achieved through the

commencing words of the definition "nothing is

said tobe done or believed in good faith" is that

the solitary item included within the purview of

the expression "good faith" is what is done with

"due care and attention". Due care denotes the

degree of reasonableness in the care sought to

be exercised. In Black's Law Dictionary,

"reasonable care" is explained as

361

"such a degree of care, precaution, or diligence

as may fairly and properly be expected or

required, having regard to the nature of the

action, or of the subject-matter and the

circumstances surrounding the transaction. It is

such care as an ordinary prudent person would

exercise under the conditions existing at the time

he is called upon to act". "

385. From the Video clippings [Respondents' side CD-R1], we

have seen that at 15:34 hours, lawyers were raising slogans asking

the Police “to go out” from the campus. Sloganeering continued till

15:41 hours. We could see from the Video clippings,

Mr.Ramasubramani-JCP(North) and other Police Officers trying to

pacify the protesting lawyers. At about 15:45 hours, lawyers have

been forcibly taken to custody in the Police van. There was a lot of

hustle and tussle while taking the lawyers to custody.

386. After the lawyers were taken to custody and Police van left

the premises, at 15:47 hours, there was a lot of protest by lawyers.

What initially started as protest against the Police turned to be 'stone

pelting' by the lawyers from 15:50 hours onwards. It was seen from

the Video clippings, lawyers have taken position in the corridors of

Courts and pelted stones towards the Police for about two to three

minutes. Within a couple of minutes stones were pelted from all

directions. Police also pelted stones and matched the lawyers in their

362

lawlessness. Stones that came their way was quickly thrown back by

the Police.

387. The relationship between the Police and lawyers has never

been cordial. In (2007) 2 MLJ 1 [Madras High Court Advocates

Association represented by its President, High Court Campus,

Chennai v. State of Tamil Nadu rep. by the Chief Secretary, Fort

St. George, Chennai and others], Division Bench of this Court has

set out the genesis of this problems of lawyers vs. Police rivalry and

expounded measures to nip such incidents in bud. Any friction

between the fraternity of lawyers and police carry dangerous portents

of escalation beyond a point of easy containment.

388. In the background of persistent rift between police and

lawyers, bonafide in shifting the Police personnel from B2-Esplanade

Police Station to B4-High Court Police Station has to be examined. The

phrase "due care and attention" implies genuine efforts to reach the

truth and not the ready acceptance of ill-natured belief. The test is of

a reasonable and prudent man. As we pointed out earlier, lawyers

resumed work on 19.2.2009 and the Courts were functioning

smoothly. In fact, visit of Dr. Subramaniam Swamy passed off

peacefully. In such circumstance, was it prudent on the part of the

Police to accept the surrender of lawyers in B4 High Court Police

Station. Police had well known that Advocate Mr.Vijayendran was

363

involved in several cases. Even though, Mr. Vijayendran, Advocate

involved in Crime No.13/2009 approached the Police, Police have not

chosen to arrest him. On the other hand, it is stated that they have

believed the words of Mr. Vijayendran that the Advocates involved in

Crime No.13/2009 have proposed to surrender.

389. B4-High Court Police Station is situated in the midst of City

Civil Court and Small Causes Court. City Civil Court, Principal Judge's

chamber and Court are situated just abutting the access road on the

northern side of B4-High Court Police Station. City Civil Court's

Annexure building and Small Causes Court and Family Court along with

creche are on the eastern side and north eastern side respectively.

Since the Courts were functioning on that date, before shifting the

Police force from B2-Esplanade Police Station to B4-High Court Police

Station, JCP (North) Mr.M.Ramasubramani and DCP Mr.Prem Anand

Sinha ought to have exercised 'due care and attention' and foreseen

the consequences. The situation for further protest and sloganeering

was created by the Police by forcibly taking the lawyers into custody at

3.45 P.M.

390. As we have pointed out earlier, Police personnel must have

been shifted from B2-Esplanade Police Station to B4-High Court Police

Station between 2.30 to 3.30 P.M. For shifting the Police personnel

from B2-Esplanade Police Station to B4-High Court Police Station, JCP

(North) must have certainly obtained permission from the CoP. On

364

coming to know about brewing tension in the High Court campus

between 2.00 to 2.30 P.M., the CoP called Addl. CoP Mr.Viswanathan

at 2.45 P.M. and instructed him to go to High Court (according to

Mr.Viswanathan B-2 Esplanade Police Station) to monitor the situation.

The then Commissioner's Cellphone No. is 9444465555. Cell Phone of

Mr.A.K.Viswanathan is 9444000029. Cell Phone of Mr.Ramasubramani

is 9940455455. The call log of CoP between 14:23:53 to 15:55 hours

are as under:-

919444465555 919940455455 Incoming 19-2-09 14:23:53 87 919444591111 11041 35640601166038 1104-IBS-Commr

919444465555 919841021543 Incoming 19-2-09 14:38:22 75 919444591111 11041 35640601166038 1104-IBS-Commr

JCP(N)calls CoP

919444465555 919841021543 Roming-IC 19-02-09 14:38:38 74 919444590031 0919444465555 919940455455 Outgoing 19-02-09 143951 92 919444591111 11041 35640601166038 1104-IBS-

CommrCoP callsJCP(N)

919444465555 919444000029 Outgoing 19-02-09 144518 118 919444591111 11041 35640601166038 1104-IBS-Commr

CoP callsAddl.CoP(L&O)

919444465555 919443049191 Incoming 19-02-09 144757 41 919444591111 11041 35640601166038 1104-IBS-Commr

919444465555 919443049191 Roming-IC 19-02-09 144814 40 919444596800 0919444465555 919940455455 Incoming 19-02-09 150102 137 919444591111 11041 35640601166038 1104-IBS-

CommrJCP(N)

calls CoP919444465555 919600039077 Incoming 19-02-09 152312 65 919444591111 11041 35640601166038 1104-IBS-

Commr919444465555 914424301269 Incoming 19-02-09 152808 105 919444591111 11041 35640601166038 1104-IBS-

Commr919444465555 914424301269 Roming-IC 19-02-09 152824 105 919444591162 0919444465555 919445012233 Outgoing 19-02-09 153008 221 919444591111 11041 35640601166038 1104-IBS-

Commr919444465555 919444000029 Outgoing 19-02-09 153505 87 919444591111 11041 35640601166038 1104-IBS-

CommrCoP callsAddl.CoP(L&O)

919444465555 919444000029 Incoming 19-02-09 153812 49 919444591111 11041 35640601166038 1104-IBS-Commr

Addl.CoP(L&O)

calls CoP919444465555 919444000029 Incoming 19-02-09 155049 89 919444591111 11041 35640601166038 1104-IBS-

CommrAddl.CoP(L&O)

calls CoP919444465555 919600041411 Outgoing 19-02-09 155250 36 919444591111 11041 35640601166038 1104-IBS-

CommrCoP calls

DCP919444465555 919444000029 Incoming 19-02-09 155557 10 919444591111 11211 35640601166038 1121-

EgmoreAddl.CoP(L&O)

calls CoP

Between 2.23 P.M. to 3.55 P.M., CoP had spoken to JCP (North) at

least three times. The Commissioner directed Addl. CoP

Mr.Viswanathan to go to High Court to monitor the situation. Neither

CoP nor JCP (North) have chosen to inform the High Court/ACJ about

the shifting of Policer personnel from B2 to B4 Police Station. They did

not take permission of the High Court/ACJ for deploying the Police

Personnel.

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391. It is not the case of Police that they informed the High

Court/ACJ about the brewing tension and mobilisation of additional

Police force. From the call log of CoP, we do not find any such calls to

the High Court Registry. The official Cellphone of the then Registrar-

General is 9444449933. From the call log of CoP, we find that the first

call from Registrar-General was at 16:01:33 hours about which we

shall deal a little later.

392. It was nextly contended that in view of volatile situation,

the Police were free to act and where the situation warranted in

exercise of 'Good faith', Police mobilised additional strength. As we

pointed out earlier, B4-High Court Police Station is in the midst of City

Civil Court and Small Causes Court in the High Court campus. What

ever be the compelling situation before mobilisation and deployment of

Police inside the Court premises, since Courts were functioning at that

time, Police ought to have foreseen the consequences. Having regard

to the fact that High Court/ACJ was not informed about the

mobilisation of strength, in our considered view, the Police have not

exercised 'due care and attention' before deployment of Police

personnel.

393. In 1995-2-LW (Crl) 723 [Rajendran and 23 others

Contemners/Respondents/Police Officers/Advocates of

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Saidapet Bar], in Saidapet Metropolitan Magistrate Court, for taking

into custody of one Natarajan accused in a registered Crime and his

Advocate who came to surrender before Magistrate. The said

Natarajan and his advocates were taken away by the police forcibly,

which, Police closed northern gates fully. Southern gate was partially

closed. Taking serious view of the act of Police in closing the gates

and observing that the Police officers must have intimated to the

Senior Magistrate about the closure of northern gate fully and the

southern gate partially, Division Bench of this Court held as under:-

"61-A. ....... Police Officers must have intimated to

the Senior Magistrate about the closure of northern

gate fully and the southern gate partially and the

purpose for which they had closed the gates. They

must have equally informed the other heads of the

department, in the variety of officers situated in that

campus. If there is an emergency, the police can

certainly act, without forwarding prior intimation, but

even then they would certainly owe a duty to inform

the concerned officers of court as well as other

officers soon thereafter about the closure of the

gates, in a situation, emergent and the reasons, that

led to such closure. It cannot be overlocked, that

several hundred of member of the public would

usually be visiting this campus in Saidapet. The

question is not whether any one of the members of

the public or even the Magistrate themselves had

complained about the inaccessibility to the premises,

leading to obstruction of the course of justice."

367

394. We fully agree with the view taken by the Division Bench.

For deployment of additional strength in the High Court campus, the

Police ought to have obtained permission of ACJ/Registrar General. If

there was an emergency, Police can certainly act, without prior

intimation. Even then they are duty bound to inform the ACJ/Registrar

General as to the problem in the campus and mobilisation of additional

strength to handle the situation.

395. Between 2.00 to 3.45 P.M., the trouble was brewing. In

his earlier report, CoP averred that around 2.30 P.M. trouble was

brewing, he deputed Addl. CoP Mr.Viswanathan along with JCP (Central

Zone) and other officers (118 men and officers) to the High Court to

take charge of the situation. As seen from the report of CoP and the

counter filed by Mr.Prem Anand Sinha, DCP, at about 3.00 P.M., the

Addl. CoP (L & O) and JCP (Central Zone), 2 Dcs, 9 Acs, 11 Inspectors,

4 SIs and 90 TSP men [Totally 118] came as an additional strength.

According to Addl. CoP (L & O), he arrived in the spot only at 3.50 P.M.

[regarding which, we shall deal later]. As per the Man power chart

showing the presence of Police personnel at 3.00 P.M., the total

strength was 265 personnel and officers [147 + 118]. Evidently, CoP

has learnt about the volatile situation and only because of which, CoP

asked the Addl. CoP (L & O) to go to High Court to monitor the

situation and the additional strength of 118 men and officers were also

sent to High Court campus.

368

396. As we have pointed out earlier, JCP (North)

Mr.Ramasubramani has spoken to the CoP number of times from

14:23:53 hours onwards. Based on the information, at about 2.30

P.M., CoP has made all arrangements to send additional reinforcement.

Despite communication of the Officers who were in the field and

despatching of additional strength to the High Court, neither CoP nor

jurisdictional Officers present in the field have chosen to inform the

High Court/ACJ about the volatile situation and mobilisation of

additional strength of Police personnel and officers in B4-High Court

Police Station.

397. Onbehalf of the Registrar-General, High Court, Madras [12th

Respondent], Mr.Muthukumaraswamy, learned Senior Counsel

submitted that High Court precincts cannot be tested on the touch

stone of Criminal Procedure Code and that as per Article 215 of

Constitution, High Court is the superior Court of Records and power of

regulating the entry of Police vests with the Chief Justice.

398. As per Article 215 of Constitution of India, High Courts in

India are superior Courts of Record. They have original and appellate

jurisdiction. They have inherent and plenary powers. Unless expressly

or impliedly barred, and subject to the appellate or discretionary

jurisdiction of this Court, the High Courts have unlimited jurisdiction,

369

including the jurisdiction to determine their own powers. [See AIR

1967 SC 1 (Naresh Shridhar Mirajkar v. State ofMaharashtra) &

AIR 1993 SC 1014 (M.V.Elisabeth and others v. Harwan

Investment & Trading Pvt. Ltd., Hanoekar House,

Swatontapeth, Vasco-De-Gama, Gao].

399. The Constitution has assigned a new role to the

Constitutional Courts to ensure rule of law in the country. Under

Constitutional frame, High Court is complete self-contained and self-

sufficient Institution, independent of others. Every High Court draws

its own power and jurisdiction from the provisions of Constitution.

400. The Chief Justice of High Court is the head of judiciary in

the State and in over all control of its administration. Being a self-

contained institution, it is prerogative of the Chief Justice to regulate

the entry of Police in the campus. That is why for deploying the Police

personnel or for increasing the strength and to regulate the security by

the order of the Chief Justice, Security Committee has been

constituted. Before deploying additional strength (in addition to the

existing personnel for security) either for providing security to VIPs

attending the Courts or under other circumstances, permission of the

High Court/ACJ ought to be obtained.

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401. Ofcourse, in cases of Law and Order problem in the

Campus, Police cannot remain spectator as in the incident happened in

Dr. Ambedkar Government Law College, Chennai. For deploying

additional strength, permission of High Court/Hon'ble the Chief Justice

shall be obtained. When there is serious Law and Order problem

within the campus, Police are to necessarily act even without prior

intimation and even then, they are duty bound to inform the High

Court/Chief Justice about mobilisation of additional strength and the

steps taken in handling the situation. In so far as the Districts, the

Principal District Judge/District Judge is the authority to regulate the

entry of Police and security arrangements on the above lines subject to

other directions issued by the High Court.

402. In fact, CoP was conscious to inform the High Court before

registration of case regarding the incident on 17.2.2009. On

17.2.2009, CoP had written letter Rc.No.203/SB VII/09 dated

17.2.2009 seeking concurrence of the High Court to register a criminal

case and set the criminal law in motion. In response to the said letter,

by the letter dated 18.2.2009, Registrar-General [Roc.No.760-

A/2009/F1 dated 18.2.2009] informed the CoP "that under law, the

concurrence of the Registry is required (sic) to register a criminal case

and in view of the fact that already a complaint is preferred by Mr.

Kader Mohideen, ACP, Police should do it on its own". By and large, to

register a case concurrence of High Court is not required. We feel that

371

in the said letter of Registrar General word 'not' is missing before the

word 'required' and we think it is a typographical mistake. When CoP

was conscious of informing High Court before setting the criminal law

in motion on 19.2.2009, CoP ought to have informed the High Court

for mobilisation of extra strength.

403. In (1996) 6 SCC 323 [Commissioner of Police, Delhi

and another v. Registrar, Delhi High Court, New Delhi], the

former Prime Minister Mr.P.V.Narasimha Rao was to be provided

proximate security by SPG during his appearance in Tis Hazari Courts.

When SPG sought permission from Delhi High Court for deploying the

Police persons in Tis Hazari Courts, having regard to the practical

difficulties involved in Police personnel in the Court premises,

Administrative Committee of five Hon'ble Judges declined permission

to deploy Police personnel in Tis Hazari Courts to provide proximate

security. When Commissioner of Police moved the Supreme Court for

change of venue, accepting the decision of Administrative Committee

of Delhi High Court, Supreme Court accepted the plea of change of

venue in providing proximate security satisfactorily by deploying

necessary Police officers. Mobilisation of additional strength in

Court premises has its own impact involving practical difficulties and

cannot be a matter of course.

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404. At the risk repetition, we note that JCP (North)

[Mr.M.Ramasubramani] and jurisdictional DCP [Mr.Prem Anand Sinha]

do not seem to have exercised due care and attention. Question of

'Good faith' should be considered in the position of the Police officers

and the surrounding circumstances. After the strike, lawyers resumed

work on 19.2.2009. From the incident on 04.2.2009 and 17.02.2009

and other incidents, the Police officers must have quite known about

the unacceptable behaviour of the Advocates. While so, Police officers

ought to have tactfully handled the situation. It is not as if some

officers in the lower hierarchy alone were in the spot. Since the

officers in the higher hierarchy, Mr.Ramasubramani-JCP (North),

Mr.Prem Anand Sinha-DCP were in the field, they ought to have

foreseen that any slight jerk would disrupt the functioning of the

Courts. Keeping in view the facts circumstances and Courts

functioning, in our considered view in shifting and mobilisation of Police

personnel from 2.30 P.M. to 4.30 P.M., the Police particularly CoP

Mr.Radhakrishnan, JCP (North) Mr.Ramasubramani and DCP Mr.Prem

Anand Sinha have not exercised due care and attention and are to be

held squarely responsible. This is all the more so, when they have not

chosen to inform the High Court/ACJ about mobilisation of strength.

This initial mistake was a costly mistake which led to shedding of blood

in the campus and extensive damages to the Court buildings and

properties.

373

405. In so far as, Mr.Viswanathan-Addl. CoP, as we pointed out,

he was assigned the task of monitoring the surrender of lawyers.

According to Mr.Viswanathan-Addl. CoP at 14:45 hours he was asked

by CoP to proceed to “B2-Esplanade Police Station” and monitor the

developments caused by the surrender of Advocates. Mr.Viswanathan-

Addl.CoP arrived at B2-Esplanade Police Station at 3.10 P.M. When he

reached B2-Esplanade Police Station, Mr.Viswanathan-Addl. CoP must

have learnt about the brewing tension in B4-High Court Police Station

and advocates resisting the surrender. Even though, he arrived at B2-

Esplanade Police Station at 3.10 P.M., Mr.Viswanathan, Addl. CoP has

chosen to remain in B2-Esplanade Police Station. Only after the

lawyers were taken to custody at 15:45 hours, Mr.Viswanathan-Addl.

CoP reached in B4-High Court Police Station at 3.50 P.M. Having been

assigned the task of monitoring the surrender of lawyers, we find that

Mr.Viswanathan-Addl. CoP has avoided his responsibility and chosen to

remain in B2-Esplanade Police Station.

406. In his counter-affidavit, Mr.Viswanathan-Addl. CoP has not

indicated the details of his conversation with Mr.Ramasubramani-JCP

(North) and Mr.Prem Anand Sinha-DCP. In our considered view, Addl.

CoP Mr.Viswanathan has also not exercised 'due care and attention'

and not acted in 'good faith' in handling the situation and is to be

held equally responsible.

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407. Surrender and Arrest:-

According to Police, Advocates proposed to surrender including

persons who had several cases pending against them. Initially, it was

proposed to be a voluntary surrender. M/s.R.Karuppan, Rajinikanth,

Vijayendran, Pugazhenthi, Jayakumar and large number of Advocates

went to B4-High Court Police Station volunteering to surrender at

2.00P.M. and demanding registration of case against Dr. Subramaniam

Swamy as condition precedent. As seen from the Video produced by

the Police (CD-R1) and from the contents in Crime No.15/2009, case

against Dr. Subramaniam Swamy in Crime No.14/2009 was registered

prior to at about 2.20 P.M. and lawyers received copy of FIR at 2.21

P.M. On receipt of FIR, lawyers started raising slogans that Dr.

Subramaniam Swamy must be arrested immediately.

408. Even though, lawyers came to B4-High Court Police Station

creating an impression of voluntary surrender, it is stated that after

registration of case, they were not prepared to surrender and started

raising slogans for arrest of Dr. Subramaniam Swamy. From the

Videos (C.D-R1 and R2), it is seen that lawyers were shouting slogans

and were unruly. After noticing slogan shouting and unruly behaviour

of the lawyers, at least at that stage, Police ought to have realised that

any reaction by them would precipitate the situation which was likely

to disrupt the functioning of the Courts. In our considered view, Police

instead of showing restraint have committed serious error in deploying

375

additional strength of Police Personnel and arresting lawyers inside the

campus. As pointed out earlier, between 14:23 hours to 15.55 hours,

there were three conversations between JCP (North) and CoP and at

14:45:18 hours, CoP issued direction to Addl. CoP Mr.Viswanathan to

proceed to High Court to monitor the situation. Even at that time,

additional reinforcement (118 personnel) was commanded and

additional strength of 118 reached High Court premises even at about

3.00 P.M.

409. In the counter-affidavit of Mr.Prem Anand Sinha-DCP and

from the Videos, we find that when the lawyers went to the Police

Station and at the time of registration of FIR and immediately

thereafter, there was sloganeering and commotion. It is seen from the

Videos that inspite of such commotion and volatile situation, lawyers

were forcibly taken to custody and they were taken to Thousand Lights

Police Station.

410. Onbehalf of the lawyers, it was submitted that in the melee

only innocent Advocates who were standing by were taken to custody

which provoked the lawyers to react. To ascertain about the names of

the lawyers who were taken to custody, we have called for General

Diary of Thousand Lights Police Station. But we did not find any entry

regarding High Court lawyers taken to Thousand Lights Police Station.

Ms.Jeyakodi, Inspector of Police, B2-Esplanade Police Station has filed

376

an affidavit on 29.9.2009 stating that details showing names of

arrested lawyers was kept in B4-High Court Police Station was

destroyed when the Police Station was set on fire. Regarding arrest of

lawyers, advocate Mr.G.Balaji has filed affidavit making certain

allegations against the Police officers. We are not inclined to go into

merits of rival contention. Such disputed questions could be examined

only in the trial in Cr.no.13/2009-B4, High Court Police Station and in

[Crl. R.C.No.2(S)/2009/CBI/SCB]. However, the fact remains

that the arrest of 15 Advocates triggered the whole incident. It is hard

to believe that no records were kept as to who were arrested and

where they were taken to custody. The story put forth in the affidavit

of Mr.Jayakodi, Inspector of Police that the records were destroyed in

the fire when B4-High Court Police Station was set on fire cannot be

believed. In fact, the affidavit of Mr.Jayakodi, Inspector of Police was

filed only after we repeatedly asked where the arrested Advocates

were taken to custody. Affidavit of Mr.Jayakodi, Inspector of Police

that the records were destroyed in the fire clearly seems to be an after

thought. By seeing the Videos, we feel that no records could have

been made as the lawyers were forcibly taken into the Van. In the

affidavit filed by Mr.G.Balaji, Advocate it is seen that they were kept in

custody till night. B4-High Court Police Station was set on fire at 5.45

P.M. and fire was extinguished between 6.00 – 6.30 P.M. While so,

the affidavit of Mr.Jayakodi, Inspector of Police that the records

showing arrest of Advocates were destroyed in the fire is unbelievable.

377

411. Arrest of Advocates in the Court Premises:-

Section 41 Cr.P.C. deals with the power of a Police officer to

arrest any person without an order from a Magistrate and without a

warrant. Section 42 deals with the power of a Police officer to arrest

any person who in the presence of a Police Officer has committed or

has been accused of committing a non-cognizable offence and who

refuses on demand "to give his name and residence or gives a name or

residence which such officer has reason to believe to be false".

Section 43 empowers any private person to arrest any person who in

his presence commits a non-cognizable offence, or any proclaimed

offender. Section 44 states that when any offence is committed in the

presence of a Magistrate whether Executive or Judicial, within his local

jurisdiction, he may himself arrest or order any person to arrest the

offender and may thereupon subject to the provisions contained in the

Code as to bail commit the offender to custody. Thus the Code gives

power of arrest not only to a Police Officer and a Magistrate but also

under certain circumstances or given situations to private persons.

412. Dr. Rajeev Dhavan, learned Senior Counsel and learned

counsel Mr.P.N.Prakash contended that as per Sec.41 Cr.P.C., Police

Officer is empowered to arrest any person without an order from a

Magistrate and without a warrant and there was nothing wrong for the

Police Officers to take the lawyers to Police custody. Learned counsel

378

Mr.P.N.Prakash would submit that to diffuse the situation, Police have

taken the lawyers to custody and it cannot be said that the Police

acted with malafide. It was further urged that Police did not go into

the Court Halls searching for any accused/lawyers and when the

lawyers came to the Police Station on their own, there was nothing

wrong in taking them to custody.

413. Placing reliance upon 1995-2-LW (Crl) 723 [Rajendran

and 23 others/ Contemners/ Respondents/ Police Officers/

Advocates of Saidapet Bar], learned counsel Mr.P.N.Prakash

submitted that Police Officers are empowered to arrest lawyers

involved in cognizable offence any where and there is no impediment

for arresting the lawyers in the Court precincts.

414. Reliance was placed upon 1956 Rajasthan 179

[Rajasthan Bar Council v. Nathuram and another]. Observing

that arrest of counsel in the Court precincts may not amount to

contempt of Court. In the said decision, it was held as follows:-

"Generally speaking, arrest of counsel in the court

precincts, without more, may not amount to

contempt of Court because it cannot generally be

predicated of an arrest in such cases that it

constitutes a contemptuous interference with the

administration of justice or that it has the

tendency to cause any such obstruction."

379

415. Learned counsel Mr. P.N.Prakash also placed reliance upon

1983 LW (Crl) 289 [Roshan Beevi and others v. Joint Secretary

to the Govt. of Tamil Nadu, Public Dept. (Law and Order) and

others] and (1994) 3 SCC 440 [Directorate of Enforcement v.

Deepak Mahajan and another] to show distinction between

"Arrest" and "Taking into custody". Those decisions deal with

distinction between "Arrest" and "Taking into custody" are not of

much relevance to the case on hand.

416. Drawing our attention to Dr. D.C. Saxena V. Hon'ble the

Chief Justice of India reported in 1996 5 SCC 216 the learned

counsel Ms.Vaigai submitted that in the said case even for taking the

contemnor into custody and confine him to Tihar Jail, The Hon'ble

Supreme Court has directed Court Marshal to take custody of the

contemnor, the learned counsel Ms.Vaigai submitted that such is the

action taken by the Supreme Court in calling the Police inside the

Court premises even for handing over custody of a contemnor while so

for deploying additional strength of Police personnel, the Commissioner

of Police ought to have obtained permission of the ACJ.

417. Laying emphasis upon the concept independence of

judiciary, the learned counsel Ms. Vaigai placed reliance upon

Supreme Court Advocates-on-Record Association and another,

V.Union of India, with S.P. Gupta V. Union of India [AIR 1994

380

SCC 268] wherein it has been held as under:-

"75. In the draft Constitution, there was no

reference to this Directive Principle, but on being

reminded of the important plank of the freedom

movement, Article 39A was introduced which

reads thus:

"39A. The State shall take steps to secure

that, within a period of three years from the

commencement of this Constitution, there is

separation of the judiciary from the executive in

the public services of the State".

..........

78. During the Constituent Assembly

Debates on Art. 39-A, one of the members, Shri

R.K.Sidwa on 25th November 1948 made the

following pertinent observation:

"As Dr.Ambedkar stated yesterday, ever

since its inception the Congress has been stating

that these two functions must be separated if you

really want impartial justice to be done to the

accused persons.

The arguments advanced yesterday were

that in Free India the conditions have changed and

that therefore, it is not desirable that these two

functions should be separated. The real secret, so

far as I know, of those who advocate retaining the

same position is that they want to retain their

power. If the Honourable Ministers of the

provincial Governments feel that these two should

not be separated, it is because they feel the power

381

of appointments which is in their patronage, would

go away from them to the High Court Judges."

.............

81. Realising the significance of the

independence of judiciary and in order to give a

full life to that concept, the founding fathers of our

Constitution, felt the need of separation of

judiciary from executive and designedly inserted

Art. 50 in the Constitution after a heated debate;

because the judiciary under our constitutional

scheme has to take up a positive and creative

function in securing socio-economic justice to the

people".

418. In the above case, focus was on the independence of

judiciary and that it is the live wire of our judicial system. If that wire

is snapped, the doomsday of the judiciary will not be far of. The

contention that independence of judiciary is to be extended to the

entire Court precincts does not merit acceptance. If such contention is

to be accepted, Court premises would become a sanctuary for

criminals and it would not be possible to maintain law and order within

the precincts of Court.

419. In AIR 1945 Calcutta 107 [Niharendu v. Porter],

Special Bench of three Judges of Calcutta High Court held as under:-

"It has been argued that arrests inside the court

building are improper. I cannot agree with that

contention. Persons going to and from the Court

382

upon the business of the Court in connection with

litigation are exempt from arrest under civil

process, but there is no such exemption in

respect of criminal process as the case in (1843-

12-LJQB (N.S) 49, referred to hereafter, shows.

If such general exemption were to obtain, the

court building would become a sanctuary for

criminals and the administration of justice in them

would become impossible. There have been

cases where arrest on criminal process have

occurred in the Sessions Court when a prisoner

has been acquitted and discharged on the charge

and rearrested in the court, while the Judge is

sitting, on another charge. A case occurred

sometime back where a litigant in a civil case on

the conclusion of his case was arrested as he was

leaving the court room on a criminal charge

preferred at Madras".

420. Read with Article 21 the directive principles in Article 39-A

of Constitution of India has been taken cognizance of by the Supreme

Court. The State shall secure that the operation of the legal system

promotes Justice on basis of equal opportunity. Placing reliance upon

State of Maharashtra V. Maubhai Pragaji Vashi and Others in

(1995) 5 SCC 730, the learned counsel Ms.Vaigai submitted that

lawyers are rendering service in accomplishing the Constitutional goal

of rendering free legal aid rendering speedy trial rendering their

assistance for speedy trial and such freedom of lawyers cannot be

383

scuttled by beating lawyers. Main plank of arguments was that lawyers

as Officers of Court are entitled to immunity within the Court campus.

421. Drawing our attention to Parliamentary privileges, the

learned counsel Ms.Vaigai submitted that as per Parliamentary

privileges, no member of Parliament can be arrested within the

precincts of Parliament, and permission of Speaker/Chairman to be

obtained and such immunity available even to the private person inside

the Parliament House. It was further argued that any person entering

the precincts of the Parliament are entitled to immunity and privileges.

Persuading us to draw an analogy, the learned counsel Ms.Vaigai

submitted that Court premises is like the precincts of Parliament and

submitted that deploying of Police personnel would erode the

independence of judiciary. It was further argued that when Section 41

Cr.P.C. cannot be applied to the precincts of Parliament, the Police

officials were not right in declaring the gathering of lawyers in the

precincts of High Court as an "unlawful assembly". It was further

argued that independence of judiciary is a larger concept and such

independence is available even to a practising lawyer.

422. The above arguments advanced enlarging the concept of

independence of judiciary to all the activities of practising lawyers

cannot be countenanced. Source of Parliamentary privileges is from

Article 105 of Constitution of India. Article 105 of Constitution

384

empowers the Parliament to frame such Parliamentary privileges. More

important of the privileges is the freedom of speech in Parliament and

immunity to the members from any proceedings in any Court in

respect of anything said in Parliament. The powers, privileges and

immunities of each HOUSE of Parliament its committees and its

members derive their authority from Article 105 of Constitution of

India. We are of the considered view that no such analogy can be

drawn from the Parliamentary privileges to that of the Court Precincts.

The contention that there cannot be an arrest inside the Court building

under any circumstance cannot be countenanced. If such a contention

is to be accepted, Court premises would become a sanctuary for all

unlawful activities.

423. Onbehalf of the lawyers, it was contended that arrest of the

lawyers in the premises was malafide and such arrest would amount

to interference with the administration of justice. That an arrest to

constitute contempt must be something more than arrest without legal

justification and that there must be something in the nature of

malafides, that is, an intention directly or indirectly to interfere with

the due administration of justice.

424. Generally speaking, arrest of counsel in the court precincts,

without motive, may not amount to contempt of court since it cannot,

generally be predicated of an arrest in such cases that it constitutes a

385

contemptuous interference with the administration of justice or that it

has the tendency to cause any such obstruction.

425. In AIR 1956 Raj 179 [Rajasthan Bar Council v.

Nathuram], counsel Kothari was conducting a criminal case in the

Magistrate's court and while in the middle of the case he just went out

for a few seconds, to return back into court to continue the cross-

examination. The Sub-Inspector arrested him, handcuffed him and

took him away. That was a clear case of obstruction to the course of

justice and preventing counsel from doing his duty before the court

who was then engaged fully in the actual conduct of the case and

whose progress was interfered with by the act of the Sub-Inspector.

The court held that where an arrest is sought to be made in the view

of the court or almost in its view and which causes an actual

obstruction to the judicial duties performed by presiding officer at the

time of the arrest complained against. On this count the Sub-

Inspector was adjudged guilty of contempt and the more aggravating

count was that the Sub-Inspector refused to produce counsel before

the Magistrate even after the later ordered it. On both counts he was

found guilty and fined Rs.100/- and to suffer imprisonment for one

month in case of default of payment within a month.

426. Only where the circumstances of arrest of a counsel show

that it was in the bad faith and tended to interfere with the

386

administration of justice, it could be held to be contempt. When a

counsel is arrested for criminal process, mala fide has necessarily to be

shown to indicate that there was an intention to interfere with the due

course of justice. As we pointed out earlier, Advocates involved in

Crime No.13/2009 volunteered to surrender. Though, arrest of

lawyers was by force, it cannot be said that the arrest was mala fide.

427. Rule of law applies to all and lawyers are no exception:-

There is fine distinction between discharge of professional duties

and other acts of the lawyers in the campus. As an officer of the

Court, lawyers may be entitled to protection in discharging their

professional duties which again is subject to their adherence to the

Code of Conduct. Say for instance, lawyers cannot be picked up from

Court Hall or while proceeding to a court to defend a case. While

discharging his professional duties as an Officer of the Court, a lawyer

may be entitled to veil of protection. But to say that there is general

immunity for all the activities of lawyers inside the Court premises

would tantamount to conferring special privilege upon them. Within

the campus or elsewhere, lawyers are not above the law.

428. Throwing stones on 19.2.2009 by lawyers is most

unacceptable. For such behaviour in the campus lawyers cannot seek

protection. Regarding the incidents on 19.2.2009, a case was

387

registered in Crime No.15/2009 which is now continued to be

investigated by CBI in R.C.1(S)/2009/CBI/SCB under Sec.

147,353,332,450,436,307 IPC and under Sec.3 (1) of TNP(PDL) Act.

429. Recent violence in Dr.Ambedkar Government Law College,

Chennai and conduct of lawyers on 19.2.2009 is a matter of serious

concern. That being so, to accept the contention that the lawyers are

entitled to immunity of all their activities in the Court premises would

be dangerous. Acceptance of such contention would lead to a situation

that lawyers would assume that they could violate the law with

impunity. Rule of law applies to all and lawyers are 'no exception'.

430. Incident: Pelting of stones and Lathicharge: The

Respondent police officers Mr.Ramasubramani-JCP (North) and

Mr.Prem Anand Sinha-DCP, Flower Bazaar averred that the crowd

became restive and started shouting at the police and started pelting

stones. Addl. CoP Mr.Viswanathan has also averred that " the mob of

advocates got unruly and started pelting stones at the police present

there, which merely retreated to the police station inside the High

Court premises".

431. Learned senior counsel Dr.Rajeev Dhavan submitted that

mob of lawyers threw stones first protesting against the arrest of

lawyers. The learned senior counsel would further submit that lawyers

388

cannot take law into their own hands and react to the arrest by pelting

stones and lawyers had no reason to use the force under any

circumstances.

432. Per contra, the Petitioners/ lawyers averred that stones

were pelted on all directions and that reports say that the police

started first. In his affidavit, Mr.Paul Kanagaraj averred that they

learnt that the police and their hired goons in mufti were wearing black

and white uniforms mingled very well with the advocates and they

were the provocateurs.

433. In his reply affidavit dated 14.9.2009, Mr.Paul Kanagaraj

has taken a plea of self defence alleging that the advocates acted only

in self defence since the police abused all the advocates and provoked

the advocates by throwing stones at them.

434. Ms.Vaigai has submitted that pelting of stones was started

first by the police and in any event, it could only be stated that the

lawyers acted in self defence on seeing other lawyers being taken to

custody and such reaction could only be a natural reaction.

435. From watching the videos, we have noticed that after

lawyers were taken to custody, from 15.46 – 15.47, there were lot of

protest by lawyers. At about 15.47 hours, there were stone pelting by

389

lawyers. The stone pelting persisted for about six minutes. Stone

pelting continued till about 15.53.31 hours. At about 15.53.35 hours,

the police chased the lawyers. For few seconds, thereafter there is no

footage in the video. We have noticed that at every time, the police

chased the lawyers, they went on damage-spree, damaging cars and

motor cycles parked around the premises, particularly belonging to

lawyers. We have also seen that at about 16.11.58 hours, the

Registrar-Management Mr.Vijayan, pacifying the lawyers and

persuaded them not to pelt the stones. From 16.14 to 16.18 hours,

lawyers receded back. At 15.55 hours, few advocates were loudly

saying and asking the police to go out of the campus as their job of

arrest is over. Inspite of the same, stone pelting continued. We have

noticed that at about 15.53.35 hours, there was chasing of lawyers by

the police. At about 16.02.53 hours, one team of police seen entering

into the corridors of the City Civil Court Annexe building.

436. When the additional strength was deployed for taking the

lawyers to custody, we fail to understand as to what was the necessity

for large number of police to be present in steel-helmeted, wielding

lathies. We have also watched police acting in retaliation throwing back

the stones. We are of the view that the police officers in command did

not act tactfully to bring the situation under the control. The Addl. CoP

Mr.Viswanathan, who was then in command does not seem to have

acted to bring the situation under control. We also fail to understand

390

as to what was the need for retaining large number of police

personnel/riot police even after taking the lawyers to custody.

437. In fact, from the call log of the CoP, we have also noticed

that then Registrar-General spoke to CoP (Registrar General Cell No.

9444449933) at 16.01, 16.03 and 16.06. Though details of

conversation are not known, we think that the Registrar General must

have asked the Commissioner to withdraw the police force. In para

(34) of his counter affidavit CoP averred that ACJ requested him over

phone to withdraw the police force. But the situation did not improve.

On the other hand, the situation only worsened by deploying more

strength.

438. From CD-R2 produced by Addl. CoP Mr.Viswanathan, it was

seen that from 16.14 to 16.18 hours, advocates were receding about

16.23 hours, there was incessant stone pelting from police. At 16.24

hours, there was lathicharge on a private party/Sivakumar who

sustained head injuries due to lathicharge. The said Sivakumar

appeared before us on 08.10.2009 and reiterated that he sustained

head injuries due to lathicharge. At about 16.26 hours, advocate

Mr.Mohanakrishnan pelted stones towards police. The advocate

Mr.Mohanakrishnan was not amongst the group of lawyers. But,

emerging singly, advocate Mr.Mohanakrishnan pelted stones. At 16.26

hours, number of riot police surrounded advocate Mr.Mohanakrishnan

391

and he was brutally beaten causing and heavy bleeding head injuries.

As we pointed out earlier, advocate Mr.Mohanakrishnan, pelted stones

as a single individual and not standing along with the group. While

advocate Mr.Mohanakrishnan was defiant by pelting stones, the police

could have very well surrounded and taken him to custody. On the

other hand, advocate Mr.Mohanakrishnan was brutally beaten by the

group of Police personnel.

439. In paragraph 10 of the counter affidavit, Additional CoP

Mr.Viswanathan has averred that he told CoP that it would be prudent

to withdraw the police force and that CoP insisted of retaining the

police in the campus. We do not propose to go into the details of the

same, suffice it to note that if Additional CoP thought so, when he was

in command,he could have exercised control over the situation. But,

that was not done. Seemingly there was no Police officers seen

keeping the personnel within the limits and ordering self-restraint.

440. As we pointed out earlier, from 15.50 to 16.25 hours, there

was persistent stone pelting. The police did not act tactfully and bring

the situation under control. During stone pelting, the police chased the

lawyers number of times and every time, they chased the lawyers, the

police behaved in a worst possible manner. Instead of containing the

violence, the police incited the violence and damaged the vehicles.

392

441. During 16:30 – 17:30 hours, there were two spells of

lathicharge. One at 16:39 hours and another at 17:05 hours. In his

counter-affidavit, CoP has averred that he has entered the riot area at

17:00 hours. In Para (37) of his counter-affidavit, CoP averred that

between 16:30 hours and 17:00 hours, he was continuously in touch

with the Registrar-General/ACJ [7 calls] and that he was continuously

coordinating with all top personalities to diffuse the tense situation. In

Para (37), CoP further averred that -

"..... Once I learnt about fresh tension around 17.00

hours, I immediately rushed from the Esplanade Gate

area towards the riotous scene and personally started

handling the situation"

In their counter-affidavits, Mr.Prem Anand Sinha-DCP (12th Respondent

in W.P.No.3910/2009) and Mr.Sarangan-DCP (11th Respondent in

W.P.No.3910/2009) have also averred that they saw CoP in the place

of occurrence at about 5.00 P.M. and that CoP directed the Police

personnel and Police officers to withdraw and return to B2-Esplanade

Police Station. On the other hand, in his counter-affidavit, Addl. CoP

Mr.Viswanathan averred that CoP came to the High Court Police

Station with additional reinforcement of Armed Police of more than 100

even at 16:30 hours.

442. Statement of CoP that he entered the High Court premises

at 17:00 hours is demonstrably incorrect. Call logs of Cellphone of

393

CoP [Mobile No.9444465555] indicates that presence of CoP near

Family Court even at 16:43:50 hours. The following call logs of CoP

would show his presence in the scene of occurrence even from

16:43:50 hours.

919444465555 919444449933 Incoming 19-2-09 16:43:50 7 919444596987 10491 35640601166038 1049-IBS-FamilyCourt

CoP inFamilyCourt

919444465555 919444449933 Incoming 19-2-09 16:44:21 76 919444591110 10372 35640601166038 1037-HighCourt-2

919444465555 919840983832 Incoming 19-02-09 16:47:53 83 919444591110 10372 35640601166038 1037-HighCourt-2

919444465555 919444414203 Incoming 19-02-09 16:49:17 2 919444591110 10372 35640601166038 1037-HighCourt-2

919444465555 919444414203 Outgoing 19-02-09 16:49:40 104 919444591110 10372 35640601166038 1037-HighCourt-2

919444465555 919444449933 Incoming 19-02-09 16:51:26 73 919444591110 10372 35640601166038 1037-HighCourt-2

919444465555 919444449933 Outgoing 19-02-09 16:55:31 86 919444591110 10372 35640601166038 1037-HighCourt-2

919444465555 919444449933 Incoming 19-02-09 16:57:36 141 919444591110 10372 35640601166038 1037-HighCourt-2

919444465555 919444802222 Roaming-IC

19-02-09 17:00:21 35 919444590420 0919444465555 919444802222 Incoming 19-02-09 17:00:25 35 919444591110 10372 35640601166038 1037-High

Court-2919444465555 919003073527 Incoming 19-0209 17:29:33 33 919444591110 10392 35640601166038 1039-Flower

Bazar-S919444465555 919444444710 Outgoing 19-02-09 17:30:31 177 919444591110 10392 35640601166038 1039-Flower

Bazar-S919444465555 911204341925 Incoming 19-02-09 17:33:52 10 919444591110 10372 35640601166038 1037-High

Court-2919444465555 911204341925 Roaming-

IC19-02-09 17:34:09 10 919444596497 0

919444465555 919944309627 Incoming 19-02-09 17:34:33 19 919444591110 10362 35640601166038 1036-FlowerBazar-E

919444465555 919444449933 Incoming 19-02-09 17:36:20 256 919444591110 10403 35640601166038 1040-PortTrust-3

443. From the photographs produced by the Petitioners, it is

seen that standing alongside with JCP (North) Mr.Ramasubramani

while CoP was talking over Phone, the wrist watch of CoP shows the

time as "16:43 – 16:44 hours". In fact at 16:43 – 16:44 hours, CoP

received two calls from the Registrar-General. Those two calls indicate

the towers "Family Court" and "High Court" respectively. Call log,

photographs and the averments in the counter-affidavit of

Mr.Viswanathan-Addl. CoP, in our view, the CoP must have been

present in the scene of occurrence even from 16:43:50 hours. We are

constrained to express our disapproval in filing such false affidavit in

the Court. By simply saying that around 17:00 hours, he rushed

394

towards riot scene and handled the situation, CoP has not chosen to

taken up the responsibility for extensive lathicharge at 17:05 hours

which we would shortly elaborate.

444. Between 16:30 – 17:30 hours especially during lathicharge

(two spells at 16:39 and 17:05 hours) and while chasing the lawyers,

Policemen took law into their own hands. There was excessive use of

force on the lawyers. As many as 175 persons - lawyers, litigants,

Court staff and one Hon'ble Judge [Justice A.C.Arumugaperumal

Adityan] sustained injuries. Policemen chased the lawyers to the

streets and lashed out lathi blows on any one who was in white shirt.

Even the parties [wearing white shirt], one P.A. to the Hon'ble Judges

(who was wearing black Coat] and High Court drivers who were

wearing white, none of them were spared. Police went on rampage

throwing stones and lashing out lathi blows on the Cars/Two wheelers

parked in the complex. Policemen beat up even women lawyers whom

they came across.

445. Policemen threw stones towards corridors including the

corridors adjacent to the Chief Justice Chamber and smashed the

window panes. Police entered into the Court room of Small Causes

Court and Family Court within the High Court complex and indulged in

destruction of furnitures, computers and other articles within the Court

premises. There was plenty of blood shed in the inner access roads,

395

along the corridors and also inside the office premises where the police

entered looking out for the lawyers. It was submitted that Police did

not spare the children's creche also from their attack. We have seen

from the Videos, not being satisfied with beating up the lawyers within

the Court premises, the rampaging police ran through the Chambers of

lawyers within the High Court premises and also went to the lawyers

Chambers situated in Lingi Chetty street, Thambu chetty street and

other streets in the vicinity of the High Court. It was submitted that

extensive damages were caused to the lawyers chambers and

furnitures and also library of Law Association, MHAA and Small Causes

Court.

446. Lathicharge continued irrespective of whether lawyer is a

miscreant or not; whether the individual resisted the violence or not.

It was a mindless attack on whomsoever the Police came across – be it

lawyers, litigants, Court staff. Even members of the media were not

spared, when the police chased and lathi-charged the advocates. A

photographer of Tamizh Chudar, two cameramen of Makkal TV and a

photographer of Nakkeeran were among the injured brought to

hospital. Another journalist N.Karthik Prabhu is said to have locked

himself up along with a few Judges in the Small Cause Court to escape

from the police. But some police personnel are said to have knocked

the door and asked them to come out. When Mr.Prabhu and others

came out to reveal their identity, the police hit them. (Source the

Hindu dated 20.02.2009)

396

447. From the Videos, we have seen Justice

A.C.Arumugaperumal Adityan went into the riot area, the Judge

wearing white shirt and black coat. One lathi blow fell on Justice

A.C.Arumugaperumal Adityan and the Judge had fallen down. A lady

advocate who was trying to protect him had also fallen down. We

have also noticed that group of lawyers who tried to prevent the lathi

blows on Justice A.C.Arumugaperumal Adityan were also

brutally attacked. The Hon'ble Judge while taken to ambulance, heard

shouting "stop it, it is a Chartered High Court". The incident on

19.2.2009 depicted above, left scores bleeding and thousands

embittered.

448. Dispersal of unlawful assembly: Commissioner as Executive Magistrate empowered to exercise Powers:

As per Sec.5 of Tamil Nadu City Police Act, 1888 –

Administration of the Police of the City of Madras is vested with the

Commissioner of Police, Madras.

449. As per Sec.7 of Tamil Nadu City Police Act – Commissioner

is vested with powers as Presidency Magistrate. Sec. 7 of TNCP Act

reads as under:-

“7. Commissioner's powers as Magistrate –

The Commissioner shall by virtue of his office be

a Presidency Magistrate, but shall exercise his

397

powers as Magistrate subject to such orders as

may from time to time be issued by the State

Government.

Provided that he shall not exercise any powers

under Chapter XVIII, XX or XXI of the Code of

Criminal Procedure, 1882.”

450. Commissioner of Police of Chennai is also empowered as

the Additional District Magistrate of Chennai under a Government

Order -G.O.Ms.No.736 dated 28.04.1974 issued by Home Department,

Tamil Nadu Government.

451. Learned Senior Counsel Dr.Rajeev Dhavan contended that

when there was serious Law and Order problem which was likely to

breach public peace, to maintain public order, Police can exercise the

power subject to the provisions in Cr.P.C. Learned Senior Counsel

further contended that the Commissioner as Executive Magistrate had

a statutory right to disperse the assembly if it was unlawful and even if

it was not an unlawful assembly, Police had a statutory right to do so,

if in their opinion the 'unlawful assembly' was likely to cause

disturbance of public peace and conducted itself in such a manner

showing determination not to disperse.

452. Sections 129 and 130 Cr.P.C. give guidelines for dispersal

of unlawful assembly by use of civil Force. Learned Senior Counsel

398

Dr.Rajeev Dhavan urged that to control the 'unlawful assembly' of

lawyers and to protect the premises and also the Police Station and to

ensure public order within the campus, Police officers acted in

accordance with Secs.129 and 130 Cr.P.C. Learned Senior Counsel

further submitted that as per Sec.132 Cr.P.C., no person acting in

'Good faith' under Chapter X of Cr.P.C., is liable to be criminally

prosecuted except with the sanction of Central or State Government as

the case may be.

453. Section 129 Cr.P.C. would permit any Executive Magistrate

or Officer-in-Charge of a Police station or in the absence of any Officer-

in-Charge, any Police officer, not below the rank of Sub-Inspector to

command the unlawful assembly likely to cause a disturbance of the

public peace, to disperse. If on such command being given the

assembly does not disperse, the Executive Magistrate or the officers

referred to in Sub-section (1) may proceed to disperse such assembly

by force. The underlying intention of section Section 129 Cr.P.C.

appears to be to disperse the assembly with the minimum amount of

force and as little injury as possible. If the assembly shows no

disposition to disperse quietly, force may be employed to disperse it

and it would be permissible to require any male person to render

assistance. The section, however, emphatically declares that such

male person shall not be an officer or member of the armed forces and

acting as such. The section indicates clearly that in order to disperse

399

the crowd it is permissible to arrest and confine in jail the person

constituting the unlawful assembly. Thereafter, the arrested persons

can be punished according to law. It is only when action taken under

Section 129 fails to disperse the assembly, that an Executive

Magistrate of the highest rank who is present may cause it to be

dispersed by armed forces.

454. According to Police, about 150 lawyers gathered and there

was indiscriminate stone pelting. Learned Senior Counsel submitted

that the common object of the unlawful assembly is to be deduced

from unruly behaviour of lawyers in pelting stones from all sides and

since lawyers indulged in stone pelting and because of resistance in

execution of law, Police officers arrived at 'subjective satisfaction' to

declare the assembly as "unlawful assembly". Contending that the

satisfaction of declaring the gathering as 'unlawful assembly' and

quantum of Force to be used has to be left to the Officers, the learned

Senior Counsel submitted that Court cannot substitute its own

Judgment for the subjective satisfaction of the Police officer who was

in the midst of a grave situation and was trying to maintain Law and

Order.

455. Contending that Court must give leeway to Police to assess

'Threat Perception' and not substitute their own discretion for that of

the Police, learned Senior Counsel placed reliance upon (1997) 7 SCC

400

91 [Amitabh Bachan Corporation Ltd., v. Mahila Jagran Manch

wherein the Supreme Court held as under:-

"The High Court should have realized that the

rights of the organisers and other members of the

society had to be protected if a law and order

situation was created on account of such

agitation, demonstration, etc. If for dealing with

the threat to law and order, the State

Government was required to use its Police Force

or Security Forces, it was not proper on the part

of the High Court to interfere and give directions

in regard to the type of force to be used because

it is very difficult in such situations to visualize

what shape the demonstration and agitation may

take and the type of law and order situation

which may have to be dealt with. To restrain the

State from using the BSF or the Armed Forces, it

necessary would in certain situations create a

very serious problem as the State would not be

able to deal with it in case it turns ugly. This is

not an area where the Court should exercise its

jurisdiction and issue directions because it is

difficult to anticipate how the situation will

develop in course of time. This is a function

which must be left to the executive as the

judiciary is not equipped to deal with it."

In the said case, providing security in relation to conducting 'Beauty

Pageant' was the subject matter. While issuing certain directions to

the State Government, Division Bench of Karnataka High Court

directed that the Police security shall be provided only from the State

401

Police Force and the Government shall not requisition for deployment

of any other force except with the permission of the Court. In such

facts and circumstances, Supreme Court held that it was not proper on

the part of High Court to interfere and give directions in regard to the

type of Force to be used because it is very difficult in such situations to

vizualize what shape the demonstration may take. The above decision

of the Supreme Court cannot be applied to the case on hand as in the

instant case, the very deployment of Police strength inside the High

Court campus is in question.

456. Learned Senior Counsel would further submit that

sequence of events the lawyers were involved, the Police officers

evaluated 'Threat Perception' and declared them as "unlawful

assembly". The learned Senior Counsel submitted that resistance to

carrying out the legal process or to the execution of legal process is

deemed to be illegal and the Police officers cannot said to have acted

in malafide warranting either Contempt proceedings or other

proceedings. It was argued that earlier, B4-High Court Police Station

was attacked at least two times. Therefore, it necessitated the Police

to act and no malafide could be attributed to the Police. Learned

Senior Counsel mainly urged that Courts must give police the leeway

to assess the threat perception and not substitute their own views.

402

457. On the other hand, stand of lawyers is that number of

innocent lawyers were taken to custody and when the Policemen were

determined to take custody by force, gathering of lawyers resisted the

arrest of the innocent lawyers. Mr. S.Prabakaran, President-TNAA,

Ms.Vaigai,learned counsel and Mr.R.C.Paul Kanakaraj, President MHAA

submitted that to arrest the lawyers without any justification, there

were serious encroachment upon the professional discharge of duties

and irked by the conduct of Police, lawyers reacted and such gathering

of lawyers cannot be said to be an 'unlawful assembly'.

458. The learned counsel Ms.Vaigai submitted that lawyers have

acted only in defence raising their protest for illegal arrest of lawyers.

Contending that gathering of lawyers would not be an unlawful

assembly, the learned counsel Ms.Vaigai placed reliance upon the

Judgement 1987 (3) SCC 434 (State of U.P. Vs. Niyamat and

others). That was the case where one Dharampuri was taken to Police

Custody. The accused thereon came to the place with the object of

rescuing Dharampuri from the custody of the constables in which shots

were fired. Considering in the light of right of private defence, the

Hon'ble Supreme Court has held that the action of the accused thereon

at best would only be to rescue Dharampuri from unlawful custody and

that there was no unlawful assembly. The lawyers were taken to

custody. The lawyers who gathered in numbers raised protest and

started pelting stones. We do not propose to go into the question,

403

whether lawyers had any such right of private defence and whether,

the gathering would not constitute an unlawful assembly. Such

questions are to be investigated and examined in Crime No.15/2009

[R.C.No.1(S)/2009/CBI/SCB] now seized up by CBI.

459. By seeing the Videos, we have seen both sides have pelted

stones and trying to get their best. What would be an unlawful

assembly is defined under Section 141 IPC. Under this section an

assembly of five or more persons is designated as unlawful assembly,

if the common object of the person composing that assembly is to

overawe by criminal force, or show of criminal force, the Central or

any State Government, or any public servant in the exercise of the

lawful power of such public servant. Whether lawyers taken to custody

are innocent lawyers; whether lawyers could so act resisting the arrest

and whether the gathering of lawyers constitute 'unlawful assembly'

are the points to be investigated in Crime No.15/2009 [R.C.No.1(S)/

2009/CBI/SCB] now seized up by CBI. Now we are concerned with

whether the Police was justified in deploying the Police Force of various

cadre including TN Commando Force and whether Police acted in 'good

faith' in deploying the Armed Police and indulging in pitched battle.

460. Judicial Review of Threat perception and use of force by Police:-

Learned Senior Counsel Dr.Rajeev Dhavan submitted that

judicial review on use of force by Police is limited and that Courts

404

cannot substitute its own judgment for the subjective satisfaction of

the police officer who is in the midst of grave situation trying to

maintain law and order. Learned Senior Counsel would further submit

that the test is to see whether the Officer has acted in a good faith

without exercising due care and attention and what a prudent officer

would do in such circumstances. Learned Senior Counsel would further

submit that the criteria for testing the good faith would be:-

(i)apprehension of breach of peace;

(ii)reasonable due care and attention;

(iii)While so, acting and in good faith, whether there was

any error of judgment. The learned senior counsel

mainly urged that the officers acted with due care and

attention apprehending breach of peace and therefore,

the protection under Section 132 Cr.P.C. is available to

CoP and other officers.

The main plank of argument was that the Court cannot substitute its

view as to apprehension of peace and nature of force to be used to

quell the mob.

461. Section 132 Cr.P.C. gives protection to persons. Section

132, clauses (b) and (d) provide that no officer acting under Section

131 in good faith and no inferior officer, or soldier, sailor or airman in

the armed forces doing any act in obedience to any order which he

was bound to obey, shall be deemed to have thereby committed an

405

offence. ... This section gives protection to persons against prosecution

for any act purporting to be done under Ss. 129-131, except with the

sanction of the State Government or the Central Government. The

protection conferred by this section will be rendered nugatory if the

onus is to be thrown on persons to prove at the trial that they acted

under the relevant sections. This could not have been the object of the

Legislature when it provided safeguards for the protection of public

servants while they were acting in the discharge of their duties. The

deeming provision of sub-section (2) takes the bona fide acts of the

Executive Magistrate, police officer, officers and members of the armed

forces and persons bona fide acting in compliance with requisition

made under Section 129 or Section 130, out of the category or

offence".

462. In Nandigram's case [Association for Protection of

Democratic Rights v. State of West Bengal and others [2007 (4) CHN

842], a reference has been made as regards PANCHAM LAL's

[Pancham Lal v. Dadan Singh – 1979 Cr. LJ 1018] case, in which it

has been held as follows:-

"In the case of Pancham Lal, the Patna High Court

has held that the Officer on the spot would be the

best Judge of the degree of force which would be

required to control a particular situation. It is

quite different from sitting and calculating in a cool

and serene atmosphere of a Court room dissecting

406

the acts and counter- acts alleged by parties. This

observation has been approved by the Supreme

Court in the case of Akhilesh Prasad v. Union

Territory of Mizoram – 1981 CrlLJ 407. Again in

the cases of Empress v. Tucker , Norman &

Thompson reported in Indian Decisions (7)

Bombay 28 and D.N. Srivastava, IPS v. Shri

Pathajoy Das and ors – 1983 Crimes 248, it has

been held that the opinion of the policemen as to

what steps would succeed in diffusing the situation

are relevant. "

463. In Nandigram's case, (cited supra), the Division Bench of

Calcutta High Court retained judicial review, but, reiterated the view

that the Officer on the scene is the best judge of the situation and the

quantum of force to handle the same. Learned senior counsel laid

emphasis upon the following observation in para 63 in Nandigram's

case, which reads as follows:-

".......... Indeed, the officer on the scene would be best

judge as to the amount of force to be used, in a particular

situation. This would not preclude the Court from exercising

its power to judicial review. The aforesaid cases are wholly

irrelevant for the decision in this case.

464. We agree with the submission of the learned senior counsel

Dr.Rajeev Dhavan that power of judicial review as to the actions of the

police is very limited. We are conscious of the fact that when a

decision regarding use of force by police has to be taken on the spot, it

407

is not possible to weigh with precision and accuracy the minimum force

required to disperse an unlawful assembly.

465. In Nandigram's case, the Court has dealt with police

firing on the agitating farmers protesting against acquisitions lands in

which atleast 14 people died and number of them were injured. Even

in Nandigram's case, the Division Bench of Calcutta High Court has

held that,

"....................... All actions of the police would have to

be justified, to have been lawfully taken under a

procedure established by law. That procedure would

have to be just fair and reasonable. Article 21 of the

Constitution makes provision for protection of life and

personal liberty of all persons within the territory of

India."

466. Even though the Police Officers in the field were the best

Judges as to the action to be taken and nature of force to be used,

police action is not beyond the pale of judicial review. A discretionary

power is one which is exercisable by the holder of Authoritative power

on subjective satisfaction of appliance of his intelligentia mind on

evaluation of facts, prevailing circumstances governing the situation

and imminent necessity warranting for operation of his empowerment

as well as his answerability and responsibility to the situation. The

aforesaid onerous public official responsibility of his, must not be

408

arbitrary, fanciful and influenced by extraneous considerations. In

matters of discretion like this, the choice must have to be dictated by

public interest, to safeguard law and order as well as public tranquility

and it must not be unprincipled or unreasoned. Reasonableness and

non-arbitrary exercise of discretion is an inbuilt requirement of the law

and the discretion must be exercised reasonably.

467. In our considered view, certainly the action of the police

officers are to be tested on the following questions:-

➢ Was it necessary to mobilize the additional strength drawing

force from TSF, QRT, SAG, TNCF in the High Court?

➢ Was the Police action justified in deploying large number of

police personnel even during court's working time?

➢ Whether due procedure was followed in disbursal of alleged

unlawful assembly of lawyers?

➢ Whether the police personnel were justified in

indiscriminately lashing out lathi charge on the lawyers and

others irrespective of whether they are miscreants or not?

➢ Whether the police acted in accordance with police standing

orders and whether reasonable force was used?

468. We have already narrated the ugly incident/ fact situation

which persisted for atleast 3 – 4 hours. From CD-R2 produced by Addl.

CoP Mr.Viswanathan, it was seen that the police personnel entered the

409

corridors of Court buildings (firstly one team entering in the City Civil

Court Annex building at 16.02 hours), even when the Courts were

functioning. The police personnel were not justified in entering the

corridors of Court even while the Courts were functioning. As we

pointed out earlier, Registry has clarified that no permission was given

by the ACJ or Registrar General to the police to enter the premises.

469. The Constitution is based on the Rule of Law. The question

before us is whether the police were justified in entering the Court

buildings even when Courts were functioning and committed excess

and whether there was arbitrary exercise of powers, like any other

incidents or case. In the instant case, it is not a question of mere

police excess. By committing excess, police have hampered the

administration of Justice. It is really the Majesty of the Institution is in

peril. We cannot accept the contention of the police that sporadic

stone pelting by lawyers has created serious law and order problem

which justified deploying of additional police force. Having regard to

the gravity of the situation and keeping in view the number of persons

injured and the damage caused to the Court buildings and the

properties and the vehicle, the Court cannot afford to sit by limply,

while those who committed excess go scot-free. Of course, the police

officers are vested with discretion to decide as to the proper action to

be taken and as to the amount of force to be used in particular

situation. Merely because such discretion is vested with the Officer,

410

the Court cannot fold its hands in despair and declare that the powers

of Judicial review is very limited. If the police acted arbitrarily in an

absolute disregard of constitutionalism and the police standing orders,

they can be challenged by seeking judicial review. So long as the

question arises that the police have committed excess and exceeded

their limits, it is always open to the Court to lift the veil and decide

whether there was good faith and whether the officer has acted with

due care and attention.

470. In the case of Shakila Abdul Gafar Khan v. Vasant

Raghunath Dhoble (2003) 7 SCC 749, while considering the

criminal appeal against the conviction under Section 302 IPC, where

the deceased died of injuries received during the police custody, even

though evidence was not sufficient to convict the police man concerned

under Section 302 IPC, the Supreme Court inter alia issued directions

for payment of compensation to the heirs of the deceased against the

State.

471. Expressing concern over diabolic recurrence of torture,

quoting Abrahim Lincoln, the Supreme Court held as follows:-

1........ "If you once forfeit the confidence of your

fellow citizens you can never regain their respect

and esteem. It is true that you can fool all the

people some of the time, and some of the people

all the time, but you cannot fool all the people all

411

the time", said Abraham Lincoln. This Court in

Raghbir Singh V. State of Haryana (1980) 3

SCC 70: 1980 SCC (Cri)526:AIR 1980 SC

1087 took note of these immortal observations

(SCC p.72, para 4) while deprecating custodial

torture by the police.

2....... The Universal Declaration of Human

Rights in 1948 which marked the emergence of a

worldwide trend of protection and guarantee of

certain basic human rights stipulates in Articles 5

that "No one shall be subjected to torture or to

cruel, inhuman or degrading treatment or

punishment." Despite this pious declaration, the

crime continues unabated, though every civilized

nation shows its concern and makes efforts for its

eradication.

3. If it is assuming alarming proportions,

nowadays, all around, it is merely on account of

the devilish devices adopted by those at the helm

of affairs who proclaim from rooftops to be the

defenders of democracy and protectors of

people's rights and yet do not hesitate to

condescend behind the screen to let loose their

men in uniform to settle personal scores, feigning

ignorance of what happens and pretending to be

peace-loving puritans and saviours of citizens'

right.

4........ This Court has in a large number of cases

expressed concern at the atrocities perpetuated

412

by the protectors of law. Justice Brandeis'

observations which have become classic are in

the following immortal words;

Government as the omnipotent and omnipresent

teacher teaches the whole people by its example.

If the Government becomes a lawbreaker, it

breeds contempt for law; it invites every man to

become a law unto himself. (In Olmstead V.

United States 277 US 438:72L Ed 944

(1928), US at P.485, quoted in Map V. Ohio

367 US 643:6L Ed 2d 1081 (1961), US at

p.659.)

5.The diabolic recurrence of police torture

resulting in a terrible scare in the minds of

common citizens that their lives and liberty are

under a new and unwarranted peril because the

guardians of law destroy the human rights by

custodial violence and torture, invariably resulting

in death. The vulnerability of human rights

assumes a traumatic torture when functionaries

of the State whose paramount duty is to protect

the citizens and not to commit gruesome offences

against them, in reality perpetrate them. The

concern which was shown in Raghbir Singh case

[RAGHBIR SINGH v. STATE OF HARYANA –

(1980) 3 SCC 70] more than two decades back

seems to have fallen on deaf ears and the

situation does not seem to be showing any

noticeable change. The anguish expressed in

Gauri Shanker Sharma v. State of U.P – 1990

Supp SCC 565, Bhagwan Singh v. State of Punjab

413

– (1992) 3 SCC 249, Nilabati Behera v. State of

Orissa – (1993) 2 SCC 746, Pratul Kumar Sinha

v. State of Bihar – 1994 Supp (3) SCC 100,

Kewal Pati v. State of U.P.- (1995) 3 SCC 600,

Inder Singh v. State of Punjab – (1995) 3 SCC

702, State of M.P. v. Shyamsunder Trivedi –

(1995) 4 SCC 262 and by now a celebrated

decision in D.K.Basu v. State of W.B. - (1997) 1

SCC 416 seems to have caused not even any

softening attitude to the inhuman approach in

dealing with persons in custody. "

472. The right to life and liberty is guaranteed under Article 21

of the Constitution of India. Right to life and liberty have been given

unique place in the scheme of the Indian Constitution. Fundamental

Rights are so important that they occupy unique place in all civilized

societies. Therefore, any apprehension of the fundamental rights must

be strictly in conformity with the Law validly enacted by a competent

legislature. We are of the view, the action of the police in using the

force to disburse unlawful assembly and the order of lathi charge

cannot be said to be beyond the pale of judicial review.

473. As we pointed out earlier, the police strength was mobilised

from TSP, QRT, SAG and TNCF. That apart, number of officers in the

ranking of JCs, DCs, ADCs and ACs and Inspector of Sub Inspectors

were also drawn. As pointed out earlier, as per the Man Power Chart,

414

the total strength mobilised was 147+118+26=291 apart from the

strength of 130 already in High Court. When the acts of police

affected the fundamental rights, injuring many lawyers, litigants and

courts staff, apart from causing damage to the court buildings and

properties, it is for the Court to go into the decision making process

who were responsible for such excess. It cannot be said that the

nature of force to be used was within the discretion of the police

officers which is beyond the pale of judicial review. The main question

falling for our consideration is whether the police acted illegally,

unjustifiably affecting the Majesty of the Institution and thereby

committed contempt of Court. Let us consider the question of threat

perception on which the police try to justify using the force.

474. We proceed to consider the same on the following aspects.

➢ Alleged threat perception and necessity for deployment

of police personnel for disbursal of unlawful assembly.

➢ Whether the procedure contemplated under the police

standing orders for disbursal of unlawful assembly was

duly complied with before ordering lathi charge.

➢ Whether unreasonableness vitiates the action of the

police.

475. Learned senior counsel Dr.Rajeev Dhavan submitted that

from 2001 to 2009, lawyers were involved in number of cases and the

415

Court cannot ignore the political activities in the campus. Submitting

that the court will have to come to terms with the root cause, the

learned senior counsel contended that the action on 19.2.2009 has to

be viewed in the context of such political activities of a group of

lawyers which is in total violation of the directions of the Constitution

Bench in Harish Uppal's case. Learned senior counsel would further

submit that while examining the acts of the police, the Court has to

keep in view the directions passed by the First Bench in W.P.No. 7646

of 2006. It was further submitted that in view of large number of cases

registered against the lawyers and their past conduct, the police

officers had threat perception and that the threat perception is based

on ample materials. Learned senior counsel would further submit that

the egg throwing incident on Dr.Swamy on 17.2.2009 has further

contributed to the threat perception.

476. It was mainly argued that the acts of the police on

19.2.2009 cannot be examined in isolation and has to be read in the

background of defiant conduct of the lawyers. We are unable to

accept the above contention that the incident on 19.2.2009 has to be

viewed in the background of number of cases registered against the

lawyers in the past. As we pointed out earlier, the lawyers resumed

work on 19.2.2009 and courts were functioning normally from

morning. Earlier acts of lawyers or cases registered against them

cannot colour the incident on 19.2.2009. In our considered view,

416

earlier conduct of lawyers cannot justify the police excess on

19.2.2009. Most of the cases registered against lawyers are either

under investigation or pending trial. In our considered view, the past

conduct of the lawyers cannot be said to be a reasonable threat

perception to deploy large number of Police personnel and lathi

charge.

477. The learned Senior Counsel Dr.Rajeev Dhavan submitted

that in view of serious law and order problem and brewing tension to

avoid deterioration of the situation, Police was left with no other option

but use the required minimum force to maintain order and to disperse

unlawful assembly. The learned senior counsel further submitted that

the reasonable apprehension of Police could be seen from subsequent

developments of setting fire to B-4 Police Station. Setting fire to Police

Station was post lathi charge. That cannot be the test for chasing of

lawyers and use of force even from 15:53 hours.

478. The boycott of courts from 29.1.2009 was to express

solidarity with the victims of Anti Tamil Genocide by Srilankan

Government and demanding Indian Government to stop the genocide

in Sri Lanka. There was an unseemly incident on 17.2.2009 regarding

which the advocates came to surrender in B4-High Court Police Station

on 19.2.2009 insisting of registration of a case against Dr.

Subramaniam Swamy. In our considered view, there was no

417

justification to deploy posse of policemen when a group of lawyers

came to surrender. The lawyers were forcibly taken into custody. Even

after taking the lawyers to custody, there was no need for retaining

posse of policemen in B4-High Court Police Station situated within the

campus.

479. In his counter affidavit, the Addl. CoP Mr.Viswanathan has

averred that they have suggested to the CoP that it would be prudent

to withdraw the police force. Retention of the police force even after

the arrest of the lawyers seems to be against the suggestion of

Mr.Viswanathan and other officers. Atleast when there was stone

pelting from all directions, between 15.47 and 15.53 hours, the police

force could have been withdrawn and taken outside the High Court

premise keeping in view the functioning of the courts. By deploying

and retaining the police personnel, police officers have not acted in

good faith and have not exercised due care and attention. On the other

hand by throwing back stones and by retaliating Police acted as

provocateurs.

480. Lathicharge – Whether PSO was followed Whether reasonable force was used :-

After the lawyers were taken to custody, from 15:47 hours

there was a protest. At 15:49:49 hours, stone pelting by the lawyers

by taking position in the corridors. For about five minutes, there were

stone pelting from all directions and it was a free fight both for lawyers

and the Police. At about 15:53:35 hours, there was first chasing of

418

lawyers. According to lawyers, there was lathicharge even at that

time. From the Video, it could not be ascertained whether there was

lathicharge at that point of time. From the CD-R2 produced by

Mr.Viswanathan-Addl. CoP, it was seen that first time the Police

officers went inside the City Civil Court Annexe building at 16:02:53

hours. As we have pointed out earlier, there was lathicharge on

private party Mr.Sivakumar and Advocate Mr.Mohanakrishnan at 16:24

and 16:26 hours respectively. At 16:39:29 hours, there was vigorous

chasing of lawyers by the Police. At 17:05 hours teargas was fired

followed by lathicharge.

481. In his counter-affidavit Mr.Prem Anand Sinha-DCP has

averred that in consultation with Addl. CoP Mr.Viswanathan and JCP

(North) Mr.Ramasubramani, ordered the Police personnel to make

"lathicharge" to disperse the unlawful assembly and to return back

after the chase. Mr.Viswanathan, Addl. CoP has denied any such

consultation. In the Videos, we have seen that lawyers are standing

on the other side and pelting stones towards the Police which was

quickly thrown back by the Police towards the lawyers. As such we do

not find any declaration declaring the gathering as 'unlawful assembly'

nor any warning was given prior to unlawful assembly. At about 17:02

– 17:03 hours, lawyers in huge gathering showing hand signal "not to

pelt stones" were found proceeding towards the Police. In the CD-R2

produced by Mr.Viswanathan, we have also seen some of the

419

Chowkidars with official headgears seen coming along side lawyers

indicating arrival of some of the Hon'ble Judges. But there seem to be

no relenting by the Police. Even at that time there was incessant stone

pelting by the Police and chasing followed by lathicharge. Only signal

before chasing, was the mass pelting of stones by the Police towards

lawyers and chasing them and lashing out lathi blows. In Para (37) of

his counter-affidavit, CoP averred that "having learnt about fresh

tension around 17.00 hours, he immediately rushed from the

Esplanade Gate area towards the riotous scene and personally started

handling the situation". As we pointed out earlier, at 17:05 hours

there was another spell of lathicharge. Before chasing the lawyers and

lashing out blows [17:05:38 hours] between 17:03 – 17:05:34 hours,

there was incessant stone pelting of stones by the Police.

482. In the CD-R1 produced by the Respondents, the slides

showing arrival of Judges with their Chowkidars and lawyers

proceeding towards the Police showing hands "not to pelt stones"

were edited. Only from the CD-R2 produced by Mr.Viswanathan,

Addl. CoP, we were able to see that Advocates and couple of

Chowkidars are marching towards the Police persuading them with

hand signal 'not to pelt stones'. The response from the Police was only

mass pelting of stones between 17:03 – 17:05:34 hours followed by

lathicharge. As we have pointed out earlier, from the call logs of

Commissioner, CoP was very much available inside the High Court

420

premises even from 16:43:50 hours. In his counter-affidavit, CoP has

not averred anything regarding the declaration of unlawful assembly at

that spell of lathicharge (17:05 hours).

483. Dr. Rajeev Dhavan, the learned Senior Counsel submitted

dealing with preservation of peace under Tamil Nadu Police Standing

Orders [PSO] 698, it is duty of the Police to collect information about

the movement and that failure in their performance of their duty will

be severely noticed and the Police have acted in accordance with Police

Standing Orders in taking precautionary measures and preventive

actions and Police officers cannot be faulted for taking such

precautionary measures. The main plank of argument is that Police

acted in accordance with Police Standing Orders.

484. Chapter X of Cr.P.C. lays down the procedure that is

required to be followed in the dispersal of unlawful assemblies either

by use of Civil Force or Armed Force. Sec.129 Cr.P.C. uses the word

'Force in a broad sense' and in order to regulate the use of such Force

and the manner in which should be used Tamil Nadu Government

issued Police Standing Orders [PSO]. PSO 699 stipulates preventive

action and PSO 703 deals with dispersal of unlawful assembly.

485. The learned Senior Counsel has drawn our attention to

PSO 698(2) & (5); 699 (1) and PSO 700 (9) which read as under:-

421

"PSO 698 – Watching for developments:- (2)

One of the most important duties of the Police is the

collection of information about every movement,

state of feeling, dispute or incident which may lead to

breach of peace and the communication of such

information to the District Collector. Failure in the

performance of this duty will be severely noticed.

(5) But, generally speaking when tension is really

acute, experienceis very definitely in favour of taking

excessive rather than inadequate precautions, since

these tend to inspire confidence in the weaker party

and caution in the stronger one. They also tend to

check the ardor of the inflammatory elements on

both sides.

"PSO 699 Preventive Action:- (1) When a breach

of the peace is anticipated, the Police should take

timely action under the preventive sections of

Chapter XI and XII of the Criminal Procedure Code,

and under the provisions of Sections 30 and 30A of

the Police Act, 1861 (Act V of 1861). First report

made to the Magistrates with a view to action being

taken under Sections 144 and 145 of the Criminal

Procedure Code should be made on the First

Information Report form and subsequent reports on

case diary forms, as in ordinary cases under the

Indian Penal Code and copies sent to the superior

Police Officers concerned.

"PSO 700 (9) When clashes occur:- If a clash

occurs immediate and vigorous action may nip the

trouble in the bud and prevent it from spreading. If

it is possible to make arrests, these will have a good

effect. Where the clash take the form of mob

422

fighting, there should be no hesitation to disperse by

force or to resort to firing, if life is seriously

endangered, the provisions of the law in their

respects being, of course, observed. Procrastinating

and feeble parleying for long periods often lead to

the heightening of tension and worsening of the

situation. This is frequently so because lack of

prompt firmness and decision is interpreted as

weakness and vacillation on the part of the

authorities, which it frequently actually is."

486. PSO 703 stipulates standing orders for dispersal of

unlawful assembly in consonance with Sections 129 and 130 Cr.P.C.

The Police draws its authority to declare and disperse unlawful

assemblies. The relevant clauses in PSO 703 (1) (a) (b) (g) & (h)

reads as under:-

"(1)(a) It is the bounden duty of the Police to prevent

cognizable offences as per Section 149 Cr.P.C. which is as

follows:

"Every Police Officer may interpose for the purpose of

preventing and shall to the best of his ability, prevent,

the commission of any cognizable offence".

(b) The police draws its authority to declare and disperse

unlawful assemblies from Section 129 Cr.P.C.,

"Any Executive Magistrate or Officer in-charge of a

Police Station or, in the absence of such Officer in-

charge, any Police Officer not below the rank of a Sub-

Inspector, may command any unlawful assembly, or any

assembly of five or more persons likely to cause

disturbance of the police peace, to disperse, and it shall

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there upon be the duty of the members of such

assembly to disperse accordingly.

If, upon being so commanded, any such assembly does

not disperse, or if, without being so commanded, it

conducts itself in such a manner as to show a

determination not to disperse, any Executive Magistrate

or Police Officer referred to in Sub-section (1), may

proceed to disperse such assembly by force, and may

require assistance of any male person, not being an

officer or member of the armed forces and acting as

such, for the purpose of dispersing such assembly and,

if necessary, arresting and confining the persons who

form part of it in order to disperse such assembly or

that they may be punished according to law."

...........

(g) The procedure to be followed in dealing with unlawful

assemblies is laid down in the "Drill and Training Manual"

Section 123-Drill instruction for dealing with crowds,

riotous, mobs etc. and in section 126-Mob, firing small

parties of Police.

(h) All Police Officers should be fully conversant with the

above noted provisions of law which enumerate their

rights and responsibilities in dealing with unlawful

assemblies and with the drill procedure as laid down in

the Drill and Training Manual.

487. PSO 702 (2) (3) & (4) elaborates upon Standing orders

for dispersal of unlawful assembly and use of minimum necessary

force. PSO 703 (2), (3) and (4) read as under:-

"2 (a) When a Magistrate is present, an assembly

424

shall not be called upon to disperse nor shall

force be used to disperse it without the order of

such Magistrate; provided that if a gazetted Police

Officer is present in the absence of the

Magistrate, such Police Officer may act

independently in ordering an assembly to

disperse.

(b) If an Executive Magistrate is present at the

spot, it shall be his responsibility to declares the

mob unlawful and direct them to disperse. If the

members of the unlawful assembly do not

disperse the Executive Magistrate shall direct the

Police to use force that is necessary for the

purpose. The nature of force to be used. Tear

gas, lathi-charge or water jet and the method and

quantum of force to be used should be decided by

the senior most Police Officer present on the

spot. Thereupon the Executive Magistrate shall

not interfere with the physical operation of mob

dispersal.

(c) In the absence of an Executive Magistrate,

the senior most Police Officer not below the rank

of Sub-Inspector will carry out the functions of

the Executive Magistrate in addition to his own.

(d) If any Police Officer below the rank of a Sub-

Inspector is faced with a mob, he shall exercise

his right of private defence, taking particular care

not to exceed his rights.

(e) All commands to the Police are to be given by

Officer-in-Command of the party.

(f) The main principle to be observed is that the

minimum necessary force to achieve the desired

425

object should be used regulating it according to

the circumstances of each case. The object of the

use of force is to prevent disturbance of the

peace or to disperse an assembly which threatens

such disturbances and has either refused to

disperse or shows a determination not to

disperse; no punitive or repressive considerations

being permitted to become operative while this is

being done.

(g) Having decided on the kind of force to be

used the Officer-in-charge of the Police will be

responsible for deciding as to the exact amount of

the force to be used, the manner of using it and

for setting the details of the operations connected

with the use of force the Police Officer should, of

course, bear in mind the principle that no force

more than is necessary should be used.

(h) If the members of the unlawful assembly do

not disperse, the Executive Magistrate or the

senior most Police Officer present in the absence

of the Executive Magistrate shall direct the Police

to use force, that is necessary for the purpose.

The nature of force to be used, tear gas, lathi

cane charge or water jet and the method of

quantum of force to be used should be decided by

the senior most Police Officer present on the

spot.

(i) If the crowd refuses to follow the lawful

instructions to disperse, the riot flag should be

raised, the attention of the mob drawn through a

bugle call with long blast and a clear warning that

force would be used to disperse them will be

426

given through megaphone. The operation will

commence if the mob refuses to head to the

warning.

(j) Officers commanding police parties will on

every occasion when employed in the suppression

of a riot of enforcement of the law, ensure that

the fullest warning is given to the mob in a clear

and distinct manner before any order is given to

use tear gas or lathi/cane or fire arms and to use

the most effectful means to explain before hand

to the people opposed to them, in the event of

the Police party ordered to fire that the fire will

be effective.

(k) If any or all these method fail to disperse the

mob and if in his opinion nothing short of firing

can disperse the mob, the Executive Magistrate

will order fire to be opened. Again the manner in

which firing is to be directed against the mob,

type of ammunition to be used and the method of

firing are the individual responsibilities of the

senior most Police Officer.

3. If the crowd becomes defiant tear gas should

be used effectively. If this becomes in fractious

then lathi can charge can be made. If the crowd

is still defiant resort, may be had to the use of

fire arms".

4. (a) It is not necessary that on every occasion

tear gas should be used. Use of tear gas will

depend on the availability of a sufficient stock of

gas ammunition, wind direction, nature of the

neighbourhood and availability of escape routes

for the mob. On no account should gas be used

427

in poor visibility especially between sunset and

sunrise, and inside buildings or when the wind

direction is such that the smoke will affect the

Police party or innocent people in the vicinity or

when the mob is too close to the Policy party.

.........

(e) If water jets or tear gas fail to disperse the

mob, lathi cane charge should be ordered.

Lathi/Cane charges should not be attempted if

the strength of the Police force is not adequate to

create an effect on the crowd and the crowd is

likely to overhelm the Police party easily. The

personnel engaged in the lathi/cane charge

should be under the proper control and the

charging should cease as soon as the desired

objective is achieved. The procedure laid down in

the Drill and Training Manual will be followed.

Care should be taken to prevent the lathi/cane

sections getting separated from the main party

and the Commander."

488. As per PSO 703 (2) (b) if Executive Magistrate is present

at the spot, it shall be his responsibility to declare the mob unlawful

and direct them to disperse. As we pointed out earlier, we do not find

any such declaration of gathering as 'unlawful assembly' before

ordering lathicharge. In Para (38) of the counter-affidavit, CoP

averred that after B4-High Court Police Station was set on fire by the

Advocates and when stone pelting continued, at 17:45 hours in

consultation with the other Officers present on the spot, a collective

428

decision was taken to disperse the unlawful assembly which indulged

in stone pelting preventing the arrival of Fire tender vehicle.

Thereafter, there was chasing of lawyers followed by lathicharge.

Other than the above, we do not find any other averments declaring

the gathering as 'unlawful assembly'.

489. For the earlier spells of lathicharge, there was clear

violation of the requirement of PSO 703 (2) (b) declaring the gathering

as unlawful assembly. None of the recorded Videos show that any

prior warning was given. Absolutely, there was no order declaring it as

'unlawful assembly' or warning that Police is going to resort to

lathicharge. The procedures stipulated in Police Standing Orders was

neither followed nor reasonable Force was used to disperse the

gathering. It was mindless pelting of stones by the Police followed by

lathicharge.

490. As per PSO 703 (2) (b) – "Executive Magistrate to direct

the Police to use force necessary for the purpose and nature of force to

be used". The procedure to be followed in dealing with the unlawful

assemblies is laid down in Drill and Training Manual and the

procedure thereon will have to be followed. As per PSO 703 (4) (e)

– "care should be taken to prevent the lathi/cane sections separated

from the main party and the Commander. Seemingly, no one was in

command leading lathi/cane sections. What we have seen in the Video

429

is each one of Police personnel of lathi/cane sections going in their own

way and indulging the mindless attack of lawyers, passersby and who

came on their way.

491. Excepting the mere allegations that the mob was declared

'unlawful', we could not see anything declaring the mob as an 'unlawful

assembly'. As per PSO 703 (2) (j) – "Officers commanding Police

parties will on every occasion when employed in the suppression of a

riot, ensure that the fullest warning is given to the mob in a clear and

distinct manner before any order is given to use teargas or

lathicharge". Absolutely, no such warning seemed to have been given

before ordering lathicharge.

492. Police violence:-

The degree of force which may be lawfully used in the

suppression of an unlawful assembly depends on the nature of such

assembly, for the force used must always be moderated and

proportioned to the circumstances of the case and to the end to be

obtained. But in the incident on 19.2.2009, Police used excessive

force in clear violation of PSO 703. By pelting stones lawyers took the

law into their own hands. Needless for us to state that lawyers

behaved in a most unacceptable manner, but what was the reaction of

the Police.

430

493. No matter how rude or unruly the lawyers were, the Police

should not have used extreme force. The riot Police personnel were all

steel-helmeted and were having riot shields. Pelting stones by the

lawyers though reprehensible, would have hardly affected the Police as

they were steel-helmeted. But the Police quickly turned back the

stones that came their way at the lawyers and matched the lawyers in

their lawlessness. Hardly any Police officer could be seen keep their

men under restraint. The most notorious is the actions of the Police

going on rampage in the entire premises. Claim of Police that lawyers

were rioting would be of no justification for letting loose violence by

the Police in the entire campus. Police smashed the glass doors, tube

lights and extensive damages to the Courts, Cars/two wheelers and

whatever they could hit with lathi.

494. There are some widely known cases of Police excess. But

there are thousands of incidents that never received attention. The

incident on 19.2.2009 would be remembered for long as a widely

known case of Police excess. In the confrontation between Police and

Lawyers, in our considered view, Police used wrongful,

disproportionate, unlawful and excessive force against the lawyers,

litigants, staff and whoever came on their way. The act of the Police

attacking lawyers whether they were miscreants or not was a blatant

disregard of Police Standing orders. Ofcourse, there was also rioting

431

by handful of lawyers. But the initial reaction by the lawyers can be no

argument for the brute force used by the Police. Ofcourse setting fire

to the Police Station is a grave offence. But setting fire to Police

Station was at 5.45 P.M. after number of spells of lathicharge. Lashing

out lathi blows and having sustained injuries, the angered mob set fire

to the Police Station. The wrath of lawyers was against the Police.

Subsequent events after 5.45 P.M. may not justify the Police excess

between 4.00 – 5.30 P.M. Police used teargas, lathicharge to disperse

groups of lawyer who were unarmed (though disobedient even

disorderly). Police violence led to the extreme situation like break

down of law and order in the campus ultimately damage to the Court

properties and also closure of Courts. It was mindless attack by the

Police on any one who came across and vehicles parked in the campus.

Police have ransacked the court buildings and even went up to the

Chief Justice chamber and beaten up the lawyers who assembled in

the verandah to complain to the Chief Justice. No one was spared.

495. No higher officer/Commando seemed to be in control of the

situation. No officer was seen preventing the Police personnel from

pelting the stones. No instructions seem to have been given for self-

restraint during lathicharge. No efforts were taken to see that

lathi/cane sections do not separate from the main party and the

commander. There is clear violation of directions in PSO 703 for

dispersal of unlawful assembly.

432

496. Coming to the question of manner the injured were treated

and taken to the hospital. Even while taking to the Ambulance, near

the Ambulance some of the injured lawyers were mercilessly beaten

even though some of them were already profusely bleeding. Some of

the injured were seen forcibly dragged and placed in Ambulance.

497. As per Police Standing Orders and instructions, while using

lathi/cane sections, as far as possible, the blows should be below the

knee. But in clear violation of directions in Police Standing Orders, the

riot police inflicted most of the lathi blows on the head as in seen from

the Accident Registers. While there can be no possible justification for

the assembly of lawyers resorting to stone throwing, we have no

hesitation in coming to the conclusion that there was excessive use of

force by the Police. There was clear violation of PSO 703 (2) (f) as

to use of minimum necessary force.

498. Responsibility of Police:-

Police are subject to the same crowd psychology as any other

group of armed men and women, when in large confrontational groups

in encounters whose outcome is uncertain, when in the grip of anger,

or strong emotion. However, Police carrying deadly weapons and a

privileged authority and so have a special responsibility to keep control

of themselves and their fellow officers especially since a breach in

relations between Police and Civilians can make their jobs impossible

433

and lead to more widespread violence.

499. Any action of the Government or its Officers must be free

from arbitrariness and reasonableness. In the case of Maneka

Gandhi v. Union of India and another [MANU/SC/0133/1978],

it has been clearly held as follows:

"120. To sum up, 'procedure' in Article 21 means fair, not

formal procedure 'Law' is reasonable law, not any

enacted piece."

500. The aforesaid proposition has been reiterated by the

Supreme Court in the case of Olga Tellis and others v. Bombay

Municipal Corporation and others [MANU/SC/0039/1985] as

follows:-

"39. It is far too well-settled to admit of any

argument that the procedure prescribed by law

for the deprivation of the right conferred by

Article 21 must be fair, just and reasonable [See

E.P.Royappa v. State of Tamil Nadu

MANU/SC/0380/1973; Menaka Gandhi v. Union of

India MANU/SC/0133/1978; M.H.Hoskot v. State

of Maharashtra MANU/SC/0119/1978; Sunil Batra

v. Delhi Administration MANU/SC/0184/1978; Sita

Ram v. State of U.P MANU/SC/0244/1979;

Hussainara Khatoon I v. Home Secretary, State of

Bihar, Patna MANU/SC/0121/1979; Hussainara

Khatoon II v. Home Secretary, State of Nihar,

434

Patna MANU/SC/0119/1979; Sunil Batra II v.

Delhi Administration MANU/SC/0184/1978; Jolly

George Verghese v. Bank of Cochin

MANU/SC/0014/1980; Kasturi Lal Lakshmi Reddy

v. State of Jammu & Kashmir

MANU/SC/0079/1980; and Francis Coralie Mullin

v. Administrator, Union Territory of Delhi

MANU/SC/0517/1981.

40. Just as a male fide act has no existence in the

eye of law, even so, unreasonableness vitiates

law and procedure alike. It is thereafter essential

that the procedure prescribed by law for depriving

a person of his fundamental right, in this case the

right to life, must conform to the norms of justice

and fair play. Procedure, which is unjust or unfair

in the circumstances of a case, attracts the vice of

unreasonableness, thereby vitiating the law which

prescribes that procedure and consequently, the

action taken under it. Any action taken by a

public authority which is invested with statutory

powers has, therefore, to be tested by the

application of two standards. The action must be

within the scope of the authority conferred by law

and secondly, it must be reasonable. If any

action within the scope of the authority conferred

by law, is found to be unreasonable, it must mean

that the procedure established by law made which

that action is taken is itself unreasonable. The

substance of the law cannot be divorced from the

procedure which it prescribes for how reasonable

the law is depends upon how fair is the procedure

prescribed by it. Sir Raymond Evershed says that

435

'The Influence of Remedies on Right' (Current

Legal Problems 1953, Volume 6.). "from the

point of view of the ordinary citizen, it is the

procedure that will most strongly weigh with him.

He will tend to from his judgment of the

excellence or otherwise of the legal system from

his personal knowledge and experience in seeing

the legalmachine at work". Therefore, "He that

takes the procedure sword shall perish with the

sword". Per Frankfuter J. In Vitarelli v. Seaton

1959 (3) Law ED 2d 1012.

41. Justice K.K.Mathew points out in his article on

'The Welfare State, Rule of Law and Natural

Justice", which is to be found in his book

'Democracy, Equality and Freedom', that there is

'substantial agreement in justice thought that the

great purpose of the rule of law notice is the

protection of the individual against arbitrary

exercise of power wherever it is found'. Adopting

that formulation. Bhagwati, J. Speaking for the

Court, observed in Ramana Dayaram Shetty v.

International Airport Authority of India

MANU/SC/0048/1979, that it is "unthinkable that

in a democracy governed by the rule of law, the

executive Government or of its officers should

posses arbitrary power over the interests of the

individual. Every action of the Executive

Government must be informed with reason and

should be free arbitrariness. That is the very

essence of the rule of law and its bare minimal

requirement."

436

501. Power of the Police under Police Standing Orders cannot be

dissociated from the procedure which it prescribes for reasonable

exercise of power in dispersal of unlawful assembly. Learned Senior

Counsel Mr. Rajeev Dhavan submitted that from the consequences of

Police action viz., photographs of injured lawyers cannot be taken as

basis for testing the reasonableness. When there is clear violation of

procedure and fundamental rights, the consequences of arbitrariness

cannot be ignored.

502. The independence and impartiality of the judiciary is one of

the Hallmark of a judicial set up. Courts are the Institutions by which

justice is rendered to the people. By setting ablaze to the Police

Station and indulging in stone pelting ofcourse, lawyers behaved in a

most unacceptable manner. The Courts are not for the individual

Judges or lawyers; but the Courts are for rendering administration of

justice.

503. If the judiciary has to perform its duties and functions in a

fair and free manner, the dignity and the authority of the Courts has to

be respected and maintained at all stages and by all concerned, failing

which the very constitutional scheme and public faith in the judiciary

runs the risk of being lost. The cause is of the public. It is this Police,

Justice delivery system depends as one of the important wing in the

437

administration of criminal justice. Police who are supposed to be the

protectors of the Institution, barged into the Court rooms damaging

the Court properties. Police went berserk in the Court premises and

beat any one they came across and smashing the vehicles and the

furious attack venting their anger. The violent acts of the Police

undermined the Majesty of the Institution. Any time a Police officer

abuses his or her authority and inflicts undue suffering on any person,

it is an affront, not only to the victim of the pain but to society as a

whole. In this case, it is an affront to judiciary. Even slightest

disrespect to the judicial system or its Constituents may lead to

disastrous effect annihilating the very fabric of Rule of law.

504. Contempt of Court:-

In a democratic society, the three organisation of Government

namely the Executive, the Legislative and the Judiciary are expected to

perform their function within their limitations for the benefit of the

public. No one organisation is expected to interfere with the

functioning of the other. Though Judiciary is entrusted with the

function of Administration of Justice, it cannot claim superiority over

other two organisations and Judiciary has been given all the

requirements needed for upholding the majesty of law particularly

when it has neither the power of purse nor power of the Police. So

through contempt proceedings the Judiciary performs its function of

proper Administration of Justice and safeguards the Rule of law. It is

438

fairly well settled that Contempt jurisdiction is extraordinary in

character, should not be used for the personal protection of the

Judges. The jurisdiction is applied against any authority or person

whenever there is any kind of interference in the Administration of

Justice and to maintain supremacy of law.

505. As per Article 215 of Constitution every High Court shall be

a Court of Record and shall have all powers of such a Court including

the power to punish for contempt of itself. While much of the

contempt power of the High Courts and Supreme Court has been

codified by the Contempt of Courts Act 1971, there remains a reservoir

of inherent power which draws from them being Courts of Record,

which has not been trammelled by Statute.

506. As per Sec.23 of Contempt of Courts Act, 1971 – Supreme

Court and High Courts are empowered to make Rules. Section 23

reads as under:-

"23. Power of Supreme Court and High

Courts to make rules. - The Supreme Court or,

as the case may be, any High Court, may make

rules, not inconsistent with the provisions of this

Act, providing for any matter relating to its

procedure."

439

507. Referring to Rule making power of Supreme Court and High

Courts, in (1997) 3 SCC 11 [High Court of Judicature at

Allahabad v. Raj Kishore Yadav], the Supreme Court held as

follows:-

"Contempt jurisdiction is an independent

jurisdiction of original nature whether emanating

from the Contempt of Courts Act or under Article

215 of the Constitution of India. How such

original jurisdiction can be exercised is a matter

which can legitimately be governed by the

relevant Rules framed by the High Court on its

administrative side by exercising its rule-making

power under Section 23 of the Act or under its

general rule-making power flowing from the

relevant provisions of the constitutional scheme

as seen earlier."

508. Delhi Judicial Service Association Tis Hazari Court v.

State of Gujarat, (1991) 4 SCC 406 : 1991 Cri LJ 3086, facts are

too well known to the legal world and need not be recapitulated in

detail. It was a case where a Chief Judicial Magistrate was arrested,

assaulted and kept in wrongful detention after having been taken to a

Police Station. The Supreme Court held that "a Court of justice

without power to vindicate its own dignity, to enforce obedience to its

mandates, to protect its officers, or to shield those who are entrusted

to its care, would be an anomaly which could not be permitted to exist

in any civilised community."

440

509. Before we proceed to consider the question of contempt,

we would like to remind ourselves the observation of the Supreme

Court in the case of Special Reference [1965 (1) SCR 413] "The

power to punish for contempt large as it is, must always be exercised

cautiously, wisely and with circumspection. Frequent or indiscriminate

use of this power in anger or irritation would not help to sustain the

dignity of the Court, but may sometimes affect it adversely".

510. Contempt of Court - Civil Contempt:

On 18.3.2009, Court has passed an order directing the State

Government to initiate disciplinary proceedings against Addl. CoP

Mr.Viswanathan and JCP (North) Mr.Ramasubramani and that they

should be placed under suspension. But the officers were not

immediately placed under suspension. Onbehalf of the lawyers, it was

contended that order of the Court [18.3.2009] was not obeyed by the

State Government and therefore, the Chief Secretary and Home

Secretary are liable to be proceeded with for Civil contempt for

disobeying the orders of the Court.

511. We are unable to accept the above contention. After the

orders of this Court dated 18.3.2009, number of Petitions came to be

filed before the Supreme Court and the Supreme Court seized up the

matter. Challenging the order of suspension on the ground of

441

violation of principles of natural justice, both the officers have filed SLP

No.7540/2009 before the Supreme Court. By the order dated

14.7.2009, the Supreme Court set aside the order of suspension and

remitted back the matter to the High Court for affording opportunity to

both the officers. Having regard to the subsequent developments, we

do not find any wilful disobedience of the order of the Court dated

18.3.2009 by the State Government.

512. Lawyers have called for production of call log of CoP and

other officers. Call log of CoP was filed without 'Tower details'.

Onbehalf of the lawyers, it was therefore submitted that there was

disobedience of the Court order by not filing the call logs with correct

particulars. Onbehalf of CoP, the learned Government Pleader

submitted that on being requested, call log was given without Tower

and there was no wilful disobedience of the order of the Court.

Subsequently, the call log was filed with Towers. Therefore, we are

not inclined to accept the contention that there is disobedience of the

orders of the Court.

513. Chief Secretary and Home Secretary:

Placing reliance upon 1994 (6) SCC 442 [Mohd. Aslan @

Bhure, Acchan Rizvi v. Union of India, State of Uttar Pradesh

and others], it was contended that when a Government Official has

committed contempt of court, State Government are also to be

442

proceeded for contempt of court. Onbehalf of the lawyers, it was

contended that in the order dated 19.2.2009, Court has clearly pointed

out that ACJ has contacted CoP as well as Chief Secretary requesting

them to withdraw the Police forces. But the Police force was not

withdrawn; but on the other hand, they came to ACJ's Chamber along

with CoP only after 6.00 P.M. and therefore, there is disobedience of

the order of Court.

514. Ofcourse, in the order dated 19.2.2009, it is indicated that

ACJ had telephonic conversation with CoP and Chief Secretary

requesting them to withdraw the Police force. According to the Police

to quell the mob, additional strength was deployed in the High Court

campus. We have already held that CoP Mr.Radhakrishan, Addl. CoP

Mr.Viswanathan, JCP (North) Mr.Ramasubramani and DCP Mr.Prem

Anand Sinha have not exercised due care and caution in deploying the

police force and retaining them. The time of telephonic conversation

with the Chief Secretary is also not indicated in the order dated

19.2.2009. While so, it cannot be contended that State Government

has also contributed to the situation.

515. While the matter was heard at 6.40 P.M. on 19.2.2009 in

the Chambers of ACJ, the Chief Secretary and Home Secretary who

were present have undertaken to abide the orders of the court in

referring the matter to CBI. By Notification No.13933/Pol.VII/2009

443

dated 23.2.2009 under Sec.6 of DSPE Act, 1946 of Home (Pol.VII)

Department, Government of Tamil Nadu and Notification

No.228/10/2009-AVD-IIdated 28.2.2009 under Sec.5 of DSPE Act,

1946 of Government of India, State Government has referred the

case registered against the lawyers in Crime No.15/2009 on the file of

B4-High Court Police Station for investigation to CBI. The investigation

as to the entire incident and the Police excess and the order of the

Court was not referred. Based on the same, CBI has re-registered the

case in R.C.No.1(S)/2009/CBI/SCB/Chennai under Sec. 147, 353, 332,

450, 436, 307 IPC and Sec.3 (1) TNPPDL Act.

516. Court order dated 19.2.2009 was not made the basis for

referring the matter to CBI. In the order dated 02.3.2009, Court has

observed that State has violated the Court's direction in not registering

the case pursuant to the Court's order dated 19.2.2009 and asking CBI

to investigate the matter as per the Court's order dated 19.2.2009.

State Government addressed Government of India, Department of

Personnel and Training, Ministry of Personnel, Public Grievances and

Pensions referring to the order passed by the Court on 2.3.2009.

Based on the order dated 19.2.2009, CBI has registered the case in

R.C.No.2(S)/2009/CBI/SCB/Chennai under Sec. 144, 147, 148, 323,

325, 326, 427, 436 and 450 IPC and under Sec. 3(1) and 4 of TNPPDL

Act.

444

517. Onbehalf of the lawyers, it was contended that there was

clear violation of State Government in not referring the entire incident

on 19.2.2009 and therefore, State Government has to be proceeded

with for civil contempt. Learned Government Pleader tried to explain

that without complaint as to the incident on 19.2.2009, the matter

could not be referred to. Even though, in the order dated 02.3.2009,

Court has observed that State have violated the Court's order dated

19.2.2009, having regard to the fact that subsequently, CBI has

registered the case in R.C.No.2(S)/2009/CBI/SCB/Chennai, we do not

find any disobedience of the order of the Court committed by the State

Government. Prima facie, we do not find any wilful disobedience of

the Court's order by the State Government to proceed against the

State Government.

518. Contempt of Court – Criminal Contempt:-

Criminal contempt has been defined under Section 2 (c) of the

Contempt of Courts Act. Sec.2(c) of Contempt of Courts Act reads as

under:-

"2 (c) 'Criminal Contempt' means the publication

(whenever by words, spoken or written, or by signs, or by

visible representation, or otherwise) of any matter or the

doing of any other act whatsoever which -

(i)scandalizes or tends to scandalize, or lowers or

tends to lower the authority of, any court; or

445

(ii)prejudices, or interferes or tends to interfere with,

the due course of any judicial proceeding; or

(iii)interferes or tends to interfere with, or obstructs

or tends to obstruct, the administration of justice

in any other manner.

519. Contempt is sui generis. There is no prosecution, no

summons or warrant, no right of trial by jury. The judge decides the

matter, as in this case, on the basis of his own knowledge of the facts

which is the basis of his power.

520. In Baradakanta Mishra v. The Registrar of Orissa

High Court, MANU/SC/0071/1973 : 1974 Cri LJ 631, the

Supreme Court noted that all the three clauses of Section 2(c) of the

Contempt of Courts Act, 1971 that define 'criminal contempt' define it

in terms of obstruction of or interference with the administration of

justice. It was further noted that broadly the Act accepts that

proceedings in contempt are always with reference to the

administration of justice. With reference to the three sub-clauses of

Section 2 (c) of the Act, the Supreme Court observed that Sub-clauses

(i) and (ii) deal with obstruction and interference respectively in the

particular way described therein, while Sub-clause (iii) is a residuary

provision by which any other type of obstruction or interference with

the administration of justice is regarded as a criminal contempt. A

446

little later in the decision citing R v.Gray [1900] 2 QB 36 it was said

that the contempt jurisdiction should be exercised 'with scrupulous

care and only when the case is clear and beyond reasonable doubt.

521. In 1981 Cri LJ 315 [Rachpudi Subba Rao v. Advocate

General], the Supreme Court considered the scope of the expressions

'administration of justice' appearing in Sub-clause (iii) of Section 2(c)

of the Act and 'course of judicial proceedings' appearing in Sub-clause

(i) and (ii) thereof. It was observed that the expression

'administration of justice' is far wider in scope than the expression

'course of judicial proceedings'. The words 'in any other manner'

further extend its ambit and give it a residuary character. It was

emphasized that 'although Sub-clauses (i) to (iii) describe three

distinct species of 'criminal contempt' they are not mutually exclusive.

Interference or tendency to interfere with any judicial proceeding or

administration of justice is a common element of Sub-clauses (ii) and

(iii).

522. In (2004) 5 SCC 26 [Daroga singh and others v.

B.K.Pandey] on 18.11.1997 at Bhagalpur in Bihar, 1st Additional

District Judge in his Court room and Chambers was attacked by

number of Police officers. Because of non-appearance in Court, NBW

was issued against one Investigating Officer-Jokhu Singh and he was

remanded to judicial custody. Reiterating their demand for

447

unconditional release of Jokhu Singh, number of Police Officers armed

with lathis and other weapons and shouting slogans against the

Judicial Officer, barged in to his Court room and overpowered the

bodyguard assaulted the Judicial Officer. Based on the report sent by

the District Judge, Patna High Court initiated suo moto contempt

where Police officers and personnel were found guilty of contempt of

court. Observing that the act committed amounts to deliberate

interference with the discharge of duty of the Judicial Officer and that

it has the tendency to affect the entire judiciary in the country which is

a dangerous trend, Supreme Court held as follows:-

"27. In the present case, a judicial officer of the

rank of District Judge was attacked in a pre-

planned and calculated manner in his courtroom

and when he tried to protect himself from

physical harm by retiring of his chambers by

chasing him there and causing injuries to him.

The raising of slogans and demanding

unconditional bail for Jokhu Singh further

compounded the offence. The courts cannot be

compelled to give "command orders". The act

committed amounts to deliberate interference

with the discharge of duty of a judicial officer by

intimidation apart from scandalising and lowering

the dignity of the court and interference with the

administration of justice. The effect of such an

act is not confirmed by to a particular court or a

district, or the State, it has the tendency to affect

the entire judiciary in the country. It is a

448

dangerous trend. Such a trend has to be curbed.

If for passing judicial orders to the annoyance of

the police the presiding officers of the courts are

to be assaulted and humiliated the judicial system

in the country would collapse.

...........

41. In the constitutional scheme the judiciary is

entrusted with the task of upholding the

Constitution and the laws. Apart from

interpreting the Constitution and the laws, the

judiciary discharges the function of securing

maintenance of law and order by deciding the

disputes in a manner acceptable to civilised and

peace-loving society. In order to maintain the

faith of the society in the rule of law the role of

the judiciary cannot be undermined. In a number

of cases this Court has observed that foundation

of the judiciary is the trust and confidence of the

people of the national and when such foundation

or trust is rudely shaken by means of any

disrespect by the very persons who are required

to enforce the orders of the court and maintain

law and order the people's perception of efficacy

of the systems gets eroded.

42. The judges are – as a jurist calls them –

"paper tigers". They do not have any machinery

of their own for implementing their orders.

People, while approaching the court of law which

they regard as the temple of justice, feel safe and

secure whilst they are in the court. Police

personnel are deployed in the court campus for

the purpose of maintaining order and to see that

449

not only the judges can work fearlessly in a calm,

cool and serene atmosphere but also to see that

anyone coming to the court too feels safe and

secure threat. Every participant in court

proceedings is either a seeker of justice or one

who comes to assist in administration of justice.

So is the expectation of the members of the Bar

who are treated as officers of the court. We

shudder to feel what would happen if the police

personnel themselves, and that toc in an

organised manner, are found to be responsible

for disturbing the peace and order in the court

campus, for causing assault on the judges and

thus sullying the temple of justice apart from

bringing a bad name to an indispensable organ of

the executive wing of the State.

43. Police is the executive force of the State to

which is entrusted the duty of maintaining law

and order and of enforcing regulations for the

prevention and detection of crime. (Encyclopaedia

Britannica, Vol.58, p.158). The police force is

considered by society as an organised force of

civil officers under the command of the State

engaged in the preservation of law and order in

the society and maintaining peace by

enforcement of laws and prevention and

detection of crime. One who is entrusted with

the task of maintaining discipline in the society

must first itself be disciplined. Police is an agency

to which social control belongs and therefore the

police has to come up to the expectations of the

society." (Emphasis added)

450

523. The learned counsel Mr.Raghavachari placed reliance upon

2009 Cri LJ 677 [Courts on its own motion v. State and others]

– Suo moto Contempt Petition in the case of Senior Counsel

Mr.R.K.Anand. Referring to plethora of decisions, Delhi High Court

summarised the emerging principles as important considerations in

dealing with the cases of Criminal Contempt of Court as under:-

1. The contempt jurisdiction of a Court is sui

generis; it is a special jurisdiction and a

summary jurisdiction. The Court is in effect the

jury, the prosecutor, the judge and the

hangman and so the jurisdiction has to be

exercised with great caution and

circumspection.

2. Action for contempt may be taken only if there

is a substantial interference in the

administration of justice. A Court should not be

hypersensitive and take umbrage at every

trivial misdemeanor. A Court should punish for

contempt only if the act of omission complained

of is deliberate and contumacious.

3. Proceedings for contempt are quasi-criminal in

nature. While it may not be necessary to prove

mens rea, but the standard of proof is that of

proof beyond a reasonable doubt. This is

because an alleged contemnor may be sent to

prison for criminal contempt of Court.

4. Since proceedings for contempt of Court are

quasi criminal in nature, the alleged contemnor

451

must be duly informed, with sufficient

particularity, of the allegations against him so

that he may effectively defend himself.

5. A burden of proof is on the person asserting

that there is a contempt of Court.

6. The Court is entitled to devise its own

procedure for dealing with contempt of Court,

and the generally accepted criminal law

principles or the Evidence Act are not applicable

to such proceedings. However, the principles of

natural justice must be adhered to Summary

justice may be rough justice, but it should be

fair.

We keep these principles in mind before proceeding to consider the

contempt committed by the Police Officers and Police personnel.

524. Aftermath of 19.02.2009:-

Let us give a brief sketch how the incident on 19.2.2009 affected

functioning of Courts and administration of justice. The violence left

scores of Advocates and some of Police personnel, Court staff, litigants

injured. Police entering into Court halls and attacking the Court

premises, lawyers, Court staff is a serious matter. The incident

persisted for nearly 3- 4 hours. The Committee of Hon'ble Judges was

appointed to assess the damages caused to the Court property and

also to the vehicles. The smashed Cars and other vehicles and

mangled remains of damaged Court properties remained as it is for a

few days. Glass pieces, vehicles and other articles were found strewn

452

all around the court premises. Because of brewing tension and

damages caused to the Court buildings and properties, both Principal

Seat and Madurai Bench of Madras High Court remain closed on

20.2.2009, 23.2.2009 and 24.2.2009. City Civil Court, Small Causes

Court, Tribunals functioning in the High Court campus remained closed

for about one week and the Courts opened only on 02.3.2009.

525. Police entering the court premises and lathicharging the

lawyers has also caused ripples in the District Courts and moffusil

Courts. Both High Court and District Courts and also moffusil Courts,

lawyers staged protest throughout the State. Because of the rift

between the lawyers and the Police, the under-trial prisoners could not

be taken to the Courts for remand extension and remand extension

could not be done.

526. The stand off between advocates and Police personnel had

resulted in the Police taking decision not to enter Court premises in

many Districts. Resultantly the work of the criminal Courts could not

make progress. In Madurai, Court of VIth Judicial Magistrate himself

did the Escort work taking the surrendered accused to Prison [Source

– The Hindu dated 06.3.2009].

527. As we elaborated earlier, the riot Police barged into the

corridors of the Court Halls even when the Courts were functioning.

453

The chaos and confusion in the premises disrupted the Court

proceedings. By the mindless attack, Police smashed tube lights, glass

doors and whatever they could damage with their lathis. The incident

persisted for 3 -4 hours. The gross impropriety committed by the

Police on the Court premises and the rank lawlessness they indulged in

by resorting to indiscriminate attack on everyone including Judges,

litigants and lawyers is clearly an affront to the judiciary.

528. Learned Senior Counsel Mr. Rajeev Dhavan submitted that

only to diffuse Law and Order problem and to protect the Court

buildings and also B4-High Court Police Station within the premises,

the Police had to act using the required minimum force and the Police

officers had no personal affront to the Institution.

529. Inherent power of the Court to protect the public in the

Administration of Justice and to convict by way of fine or imprisonment

had existed in the Courts from time immemorial. In Morris v. Crown

Office (C.A) [(1970) 2 QB 114 – Law graduates of impeccable

character felt that attention should be drawn to the lack of status and

dignity accorded to their mother tongue in Wales. The

recommendation of the committee under Sir David Hughes Parry in

1965 in favour of the equal validity of Welsh and English in all

departments of public administration in Wales has only been partially

implemented through the Welsh Language Act, 1967. Being impatient

454

over the delay in implementation the Appellants decided to invaded the

Court. It was clearly prearranged. They had come all the way from

their University of Aberystwyth. They strode into the well of the Court.

They flocked into the public gallery. They shouted slogans. They

scattered pamphlets. They sang songs. They broke up the hearing.

The judge had to adjourn. Some of them were sentenced to three

months imprisonment for contempt and those who were appealed

were imposed fine of 50£. In the said case the contention raised was

that the appellants intended no personal affront to the Judge.

Observing that whatever be the noble aim of the appellants and

affirming the orders of the lower court finding them guilty, Court of

Appeals held as under:-

"In sentencing these young people in this way the

judge was exercising a jurisdiction which goes

back for centuries. It was well described over 200

years ago by Wilmot J. in an opinion which he

prepared but never delivered. "It is a necessary

incident," he said, "to every court of justice to fine

and imprison for a contempt of the court acted in

the fact of it." That is Rex v. Almon (1765) Wilm

243, 254. The phrase "contempt in the fact of the

court" had a quaint old-fashioned ring about it;

but the importance of it is this; of all the places

where law and order must be maintained, it is

here in these courts. The course of justice must

not be deflected or interfered with. Those who

strike at it strike at the very foundations of our

society. To maintain law and order, the judges

455

have, and must have, power at once to deal with

those who offend against it. It is a great power –

a power instantly to imprison a person without

trial but it is a necessary power. ......" (Emphasis

added)

We are of the considered view, the degree of violence unleashed in the

High Court campus is clear obstruction and interference in the course

of Administration of justice.

530. Responsibility of individual Officers/Role played by individual Officers:

As we pointed out earlier, as per Sec.5 of Chennai City Police Act

– Administration of the City of Chennai is vested with the

Commissioner. As per Sec.7 of Chennai City Police Act, Commissioner

shall be the Executive magistrate within the city limits. Under Sec.6 of

the Act, Government appoints Jt. Commissioner of Police/Dy.

Commissioner of Police or Asst. Commissioners who shall perform any

of the duties or exercise any of the powers assigned to that Officers as

Commissioner directs.

531. In his capacity as Commissioner of Police, 7th Respondent

has seized up the problem of lawyers' boycott even from 29.1.2009.

On 6.2.2009, Commissioner has written a letter in

D.O.Lr.No.151/S.B.VII/2009 to the Registrar-General, High Court,

Madras narrating various types of agitations indulged by the lawyers in

and around the High Court premises. Referring to egg throwing

456

incident and attack on Dr. Subramaniam Swamy, on 18.2.2009 a

meeting was convened by ACJ in which DGP-Mr.K.P.Jain, Addl. DGP

(L&O)-Mr.Rajendran, CoP-Mr.Radhakrishnan, JCP (North)-

Mr.Ramasubramani, DCP-Mr.Prem Anand Sinha, ACP-Mr.Kader

Mohideen attended.

532. After safe exit of Dr. Subramaniam Swamy, after the

lawyers came to B4-High Court Police Station for surrender, strength

of Police personnel (147) was shifted by JCP (North)

Mr.Ramasubramani and DCP Mr.Prem Anand Sinha. As pointed out

earlier, this initial mistake of shifting the Police personnel from B2-

Explanade Police Station to B4-High Court Police Station led to the

sordid episode. As we pointed out earlier, there was communication

between CoP and JCP(North) between 14:23 – 15:01 hours. From the

facts and circumstances, we have no hesitation in holding that shifting

of Police personnel (147) from B2-Esplanade Police Station to B4-High

Court Police Station must have been with the knowledge of CoP. At

14:45 hours, CoP issued direction to Addl. CoP Mr.Viswanathan to go

to B2-Esplanade Police Station to monitor the developments caused by

the surrender of Advocates.

533. During the course of arguments, Dr. Rajeev Dhavan,

learned Senior Counsel would submit that CoP Mr.Radhakrishnan is

one of the distinguished meritorious Police Officer in the State and that

457

he has also addressed the United Nations as to "Harmonious

functioning of the Police in the Inter Religious Community Living".

Learned Senior Counsel has also submitted that the Officer being a

distinguished Officer needs protection from the higher judiciary in his

actions done in 'good faith'. As we have discussed earlier, the Officer

appears to have acted with obstinate mind. Acting Chief

Justice/Registrar-General kept on calling CoP from 16:01 hours

requesting him to withdraw the Police Force from High Court campus.

What we find is, again and again, the strength in the High Court

campus was increased. Being vested with the Administration of City

Police, we find the then CoP Mr.Radhakrishnan is squarely responsible

for deploying the riot Police inside the High Court campus on

19.2.2009.

534. As we discussed earlier, CoP was present in the riot area

even from 16:43:50 hours. Even according to the version of CoP, he

entered into the riot area at 17:00 hours. As pointed out by us earlier,

from the Video clippings [CD-R2], it was clear that between 17:03 –

17:05 hours there were incessant pelting of stones by the Police

inspite of the fact that lawyers were showing hands 'not to pelt

stones'; and inspite of the signals that Hon'ble Judges who were

coming along with their chowkidars. Inspite of such signals, lawyers

were chased and there was lathicharge at 17:05 hours. According to

CoP. after Police Station was set fire, a collective decision was taken

458

and lathicharge was ordered at 5.45 P.M. As discussed earlier, there

was clear violation of PSO 703. On the basis of the materials produced

before us, we are of considered view that CoP being vested with the

Administration of City Police was mainly responsible for deploying the

riot Police force and violence in the High Court campus and which

caused obstruction and interference in the course of Administration of

Justice.

535. Being jurisdictional Officers, JCP (North)

Mr.Ramasubramani and DCP Mr.Prem Anand Sinha mobilised the

strength for providing security in connection with the visit of Dr.

Subramaniam Swamy on 19.2.2009. As jurisdictional Officers and

being present in the premises from the morning, both these Officers

are solely responsible for shifting of strength (147) from B2-Esplanade

Police Station to B4-High Court Police Station. Both these Officers are

also to be held responsible for not appraising the CoP about the

volatile situation. The then JCP (North) Mr.Ramasubramani and DCP

Mr.Prem Anand Sinha have committed the initial mistake of shifting the

Police strength and thereafter B2-Esplanade Police Station to B4-High

Court Police Station and forcibly taking the lawyers to custody and

continuing to retain the Police force in the premises. As per lawyers'

version, first spell of lathicharge was between 3.30 – 4.00 P.M. From

CD-R2, we have also seen that there was chasing of lawyers even at

15:53 hours and damages caused to vehicles. Even from 15:53 hours

Police retaliated and no one seems to be controlling the situation.

459

536. Both JCP(North) Mr.Ramasubramani and DCP-Mr.Prem

Anand Sinha have not foreseen the consequences of such shifting and

forcible taking of lawyers to custody and thereafter continuing to retain

the Police force near B4-High Court Police Station. In our considered

view, in shifting the Police personnel from B2-Esplanade Police Station

to B4-High Court Police Station and retaining the additional strength in

B4-High Court Police Station JCP (North) Mr.Ramasubramani and DCP-

Mr.Prem Anand Sinha have not acted in 'good faith' and they have not

exercised due care and caution and therefore to be held responsible.

537. As pointed out earlier, at 14:45:18 hours, Mr.Viswanathan,

Addl. CoP was directed by the CoP to go to B2-Esplanade Police Station

to monitor the developments caused by the surrender of the advocates

in B2-Esplanade Police Station. Mr.Viswanathan arrived in B2-

Esplanade Police Station at 15:10 hours. When Mr.Viswanathan

arrived in B2-Esplanade Police Station, the officer must have learnt

about the brewing tension in B4-High Court Police Station. But

Mr.Viswanathan has not chosen to proceed to B4-High Court Police

Station to monitor the situation; but he has chosen to reach B4-High

Court Police Station only at 15:50 hours after the lawyers were forcibly

taken to custody. While Mr.Viswanathan, Addl. CoP was in B2-

Esplanade Police Station, there were number of calls between

Mr.Viswanathan Addl. CoP and Mr.Ramasubramni-JCP(North) and

460

Mr.Prem Anand Sinha-DCP. The call log of Addl CoP Mr.Viswanathan

(Cell No.9444000029) is as under:-

919444000029 919444082838 Outgoing 19-2-09 151821 10 919444591110 10392 35898401415079 1039-FlowerBazaar-STR-2

9194440000299 919940455455 Outgoing 19-2-09 152238 120 919444591110 10392 35898401415079 1039-FlowerBazaar-STR-2

JCP(N)calls

Addl.CoP9194440000299 919445300101 Incoming 19-209 152701 40 919444591110 10392 35898401415079 1039-

FlowerBazaar-STR-2

DCP callsAddl. CoP

9194440000299 919840566666 SMSIncoming

19-2-09 153132 0 919444591110 10392 1039-FlowerBazaar-STR-2

9194440000299 919840566666 SMSIncoming

19-2-09 153318 0 919444591110 10392 1039-FlowerBazaar-STR-2

9194440000299 919444465555 Incoming 19-209 153505 87 919444591110 10392 35898401415079 1039-FlowerBazaar-STR-2

CoP callsAddl. CoP

9194440000299 919445300101 Outgoing 19-2-09 153651 67 919444591110 10392 35898401415079 1039-FlowerBazaar-STR-2

DCP callsAddl. CoP

9194440000299 919444465555 Outgoing 19-2-09 153812 49 919444591110 10392 35898401415079 1039-FlowerBazaar-STR-2

CoP callsAddl. CoP

9194440000299 919444082838 Outgoing 19-2-09 155017 9 919444591110 10372 35898401415079 1037-HighCourt-2

9194440000299 919444465555 Outgoing 19-2-09 155049 89 919444591110 10372 35898401415079 1037-HighCourt-2

Addl. CoPcalls CoP

In his counter-affidavit, Mr.Viswanathan, Addl.CoP has not elaborated

upon the details of those conversation and what was the

instructions/directions given by him to JCP(North) Mr.Ramasubramani

and DCP Mr.Prem Anand Sinha.

538. Be that as it may, admittedly Mr.Viswanathan, Addl. CoP

had arrived at B4-High Court Police Station at 15:50 hours. Being

higher officer, he was in command from 15.50 hours till CoP arrived in

the riot area at 16.43 hours. As elaborated earlier, at 15:53 hours,

there were stone pelting by the Police and chasing of lawyers. As

noted earlier, at 16:25 hours, there was lathicharge on the litigant

public Mr.Sivakumar. At 16:26 hours Advocate Mr.Mohanakrishnan

461

was surrounded by number of Policemen and lashed out lathi blows.

At 16:39 hours, there was chasing of lawyers followed by lathicharge.

539. In his counter-affidavit, Mr.Viswanathan averred that when

trouble was brewing, Police had to chase the angry advocates now and

then as ordered by the CoP. Mr.Viswanathan, Addl. CoP has further

averred that he contacted CoP number of times at 15:55, 16:04,

16:24 and 16;27 hours seeking permission to withdraw the Police

force from High Court Campus.

540. Mr.V.Selvaraj, learned counsel for Mr.Viswanathan

submitted that Mr.Viswanathan, Addl. CoP repeatedly suggested to CoP

that it would be prudent to withdraw the entire Police force from the

High Court premises, but the CoP insisted that Police should not be

withdrawn and that the entire Police Station should remain in the High

Court campus and protect the Police Station in the High Court

premises.

541. In his counter-affidavit, CoP has denied any such

suggestion by Mr.Viswanathan, Addl.CoP. By saying that they have

simply obeyed the direction of the CoP, Mr.Viswanatha, Addl. CoP

cannot avoid his responsibility. As held in 1898 ILR Mds (21) 249

[Queen-Empress v. Subba Naik and others], Police officer is not

protected in that as he obeyed the orders of superior officer. It is

462

pertinent to note that Mr.Viswanathan-Addl.CoP and

Mr.Ramasubramani-JCP (North) were directed to be suspended by the

orders of this Court dated 18.3.2009 which was challenged before the

Supreme Court in SLP No.7540/2009. In such circumstances, the

value to be attached to the averments in the counter-affidavit filed by

Mr.Viswanathan on 27.8.2009 and 16.9.2009 remains to be seen. The

officer Mr.Viswanathan, Addl. CoP being in command from 15:50 to

16:43 hours has not exercised due care and caution.

542. We are of the considered view that there are overwhelming

materials prima facie to show that the actions of Mr.Radhakrishnan,

then CoP; Mr.Viswanathan, then Addl. CoP; Mr.Ramasubramani, then

JCP (North) and Mr.Prem Anand Sinha-then DCP, Flower Bazaar

caused obstruction to functioning of Courts and interference in the

course of administration of justice and therefore, contempt

proceedings are to be necessarily be initiated against them. Contempt

notice is ordered to be issued to the above Officers under Sec.15(1)

read with Sec.2(c)(iii) of Contempt Act for the following alleged

excesses viz., (i) for deployment of additional armed force inside the

High Court campus on 19.02.2009, after 11.30 am i.e. after

Dr.Subramaniam Swamy left the High Court premises and that too

without intimation/permission of the Registry; (ii) for the act of

creating commotion inside the High Court premises under the guise of

attempt to arrest the accused advocates and other advocates in

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between 12.00 noon and 3.45 p.m.; (iii) for the act of entering the

High Court, City Civil Court, Court of Small Causes, Family Court, Law

Association premises, Madras High Court Advocates Association

premises under the guise of chasing the lawyers; (iv) for the alleged

act of causing extensive damages to the properties inside the campus

such as vehicles, buildings and association libraries and furniture; (v)

for the alleged act of causing injuries on the personnel namely the

sitting Judge of this Court, the lawyers, court staff and litigant public

who assembled in the High Court campus for carrying on their lawful

activities; (vi) for the alleged acts of interference in the course of

justice by paralysing the functioning of the High Court on 20th, 23rd and

24th of February, 2009, the functioning of City Civil Court, Court of

Small Causes and other Judicial Forums located inside the High Court

campus on 20th and 23rd to 27th February, 2009 and paralysing the

functioning of subordinate Courts throughout the State on 20th, 23rd

and 24th February, 2009; (vii) for the alleged act of failure to withdraw

the additional armed forces drawn into High Court premises inspite of

specific and repeated directions of the Hon'ble Acting Chief Justice;

(viii) for having filed false affidavits in this proceedings; and (ix) for

such other acts of the above contemnors which this Court comes

across in the course of the hearing of the contempt petition.

543. Director General of Police-Mr.K.P.Jain:

As we pointed out earlier, administration of City Police is vested

464

with CoP. Even though, administration of City Police is vested with

the Commissioner, in the counter-affidavit, DGP has extensively

referred to Police Standing Orders and has only averred that it was

well within the jurisdiction of CoP to handle any law and order situation

to the best of his ability. We are not happy with the way in which

counter affidavit has been filed by the DGP. The entire averments in

the counter-affidavit appears to be only blaming the lawyers. As the

Head of Police department, it was expected of the DGP to file the

counter affidavit with definite averments as to who were the Police

officers and Police personnel deployed and what are the positive steps

that DGP has taken in this regard. Though, we are not happy with the

averments in the counter-affidavit filed by DGP, we do not think that

there are enough materials to initiate contempt proceedings against

DGP.

544. Other Officers and various Police personnel presentin High Court Premises on 19.02.2009:

Mr.Anup Jaiswal-DGP (I&T), Mr.Sunil Kumar-Addl. CoP (Traffic),

Mr. Sandeep Rai Rathore, JCP [Central], Mr.Gunaseelan-JC (South

Zone), Mr.Sarangan-DCP, Kilpauk, S.Panneerselvam-DCP, Pulianthope,

Mr.T.S.Anbu-DCP, Anna Nagar, Mr.C.Sridhar, DCP, Adyar, Mr.

M.S.Muthusamy-DCP, T.Nagar, Mr.K.Joshi Nirmal Kumar-DCP (Traffic-

South), Mr.Thirugnanam-DCP (Traffic-North) and Mr.C.Jayakodi-

Inspector of Police were all present. That apart number of Inspectors

and Police personnel were also deployed.

465

545. On behalf of Mr.Sandeep Rai Rathore-JCP (Central),

Mr.Muthusamy-DCP (T.Nagar) and Mr.K.Joshi Nirmal Kumar-DCP

(Traffic-South), it was stated that those officers have no role to play in

the incident on 19.2.2009.

546. In his counter, Mr.Rajendran-Addl. DGP averred that the

only role played by him was to attend the meeting held in the

Chamber of ACJ on 18.2.2009 and he had no role to play in the

incident on 19.2.2009. Mr.Rajendran-then Addl. DGP attended only

the meeting on 18.2.2009 and no case is made out to initiate

Contempt proceedings against Mr.Rajendran-then Addl. DGP.

547. In the counter-affidavit filed by Mr.Anup Jaiswal-DGP (I&T),

it is averred that he had nothing to do with the occurrence which took

place on 19.2.2009 and never took park in any of the events happened

there. In his counter, Mr.Sunil Kumar-Addl. ACP (Traffic) averred that

his role was confined to see the free flow of traffic on 19.2.2009

around the High Court. In his counter, Mr.Gunaseelan-JCP has stated

that he reached the High Court at 5.00 P.M. and he had nothing to do

with the incident on 19.2.2009. Mr.Sarangan-DCP has stated that he

was present in the High Court as per direction. Like wise, in their

counter-affidavits Mr.S.Panneerselvam-DCP, Mr.T.S.Anbu-DCP and

Mr.C.Sridhar-DCP averred that they had no role to play and they

466

reached the High Court only at 5.00 P.M. In his counter, Mr.N.K.Joshi-

DCP averred that he had to role to play and he was not even present

in the campus on 19.2.2009. Mr.Thirugnanam-DCP has stated in his

counter that he had no role to play and from 4.00 P.M. he was

directed to control traffic work. It his counter, Mr.C.Jayakodi-

Inspector of Police averred that he simply assisted in the operations

and no role was assigned to him other than being present.

548. As per the direction of CoP/JCP (North), the above Officers

were deployed in the High Court premises and outside. Mr.Anup

Jaiswal-DGP (I&T); Mr.Sunil Kumar-Addl. CoP (Traffic); Mr. Sandeep

Rai Rathore-JCP [Central]; Mr.Gunaseelan-JCP (South Zone);

Mr.Sarangan-DCP, Kilpauk; Mr.S.Panneerselvam-DCP, Pulianthope;

Mr.T.S.Anbu-DCP, Anna Nagar; Mr.C.Sridhar, DCP, Adyar; Mr.

M.S.Muthusamy-DCP, T.Nagar; Mr.K.Joshi Nirmal Kumar-DCP (Traffic-

South) and Mr.Thirugnanam-DCP (Traffic-North) had no role in the

decision making process either in deploying the police personnel or

ordering lathicharge. There are no materials warranting initiation of

contempt proceedings against the above officers. But it would not

absolve them of their misconduct, if any, for the respective offences in

R.C.No.2(S)/2009/CBI/SCB/Chennai under Sec.144, 147, 148, 323,

325, 326, 427, 436 and 450 IPC and under Sec.3 (1) and 4of TNP

(PDL) Act, the FIR registered by the CBI. If any of the above Officers

are identified as having committed excess, those of the Officers are to

467

be proceeded with in accordance with law both in R.C.No.2 (S)/

2009/CBI/SCB/Chennai and also disciplinary proceedings.

549. So far as, Mr.Jeyakodi, Inspector of Police and other

Inspectors and Police constables including the riot police, are not

proceeded for contempt Cout . But it would not absolve them of their

misconduct, if any, for the respective offences in R.C.No.2(S)/

2009/CBI/SCB/Chennai under Sec.144, 147, 148, 323, 325, 326, 427,

436 and 450 IPC and under Sec.3 (1) and 4 of TNP (PDL) Act in

accordance with law.

550. DISCIPLINARY PROCEEDINGS:-

Upon analysis of materials, we have arrived at the conclusion

that CoP- Mr.Radhakrishnan, Addl.CoP – Mr.Viswanathan, JCP (North)

– Mr.Ramasubramani and DCP (Flower Bazaar) – Mr.Prem Anand Sinha

were responsible for deploying the police force and for interference

with the administration of justice. Having regard to our order directing

initiation of the contempt proceedings on the above Officers, the next

aspect to be considered is initiation of appropriate disciplinary

proceedings against the said four officers.

551. By order dated 18.3.2009, the Full Bench has directed

initiation of disciplinary proceedings against JCP (North) –

Mr.Ramasubramani and Addl. CoP (L&O) Mr.Viswanathan and directed

468

them to be placed under suspension. In SLP (Civil) No. 7540 of 2009,

the Supreme Court has set aside the order and remitted the matter

back to the High Court to afford an opportunity to the above two

officers.

552. We have heard the arguments at length on behalf of JCP

(North) – Mr.Ramasubramani and Addl. CoP (L&O) Mr.Viswanathan.

553. On behalf of the State, it was submitted that Sundaradevan

- One Man Committee headed by Mr.Sundaradevan, IAS was appointed

to inquire into the police action and to fix the responsibility for the

alleged excess committed during the law and order incident which

happened in the High Court campus on 19.2.2009 and the lawyers did

not co-operate with the Sundaradevan Committee.

554. The learned Advocate General submitted that since the

lawyers did not co-operate in the inquiry by the One Man Committee,

the Committee is yet to arrive at the conclusion as to who were

responsible for committing excess and in such circumstances, writ of

mandamus to initiate disciplinary proceedings may not be appropriate.

555. Dr. Rajeev Dhavan, learned Senior Counsel submitted that

a positive mandamus will lie when the exercise of power contains

objective criteria and where there is a power coupled with a duty. It

469

was further submitted that while dealing with the law and order

situation in the High Court campus on 19.2.2009 for committing the

alleged excess, no mandamus could lie to the Government to

initiate disciplinary proceedings.

556. Elaborating upon the circumstances under which the writ of

mandamus will lie, the learned senior counsel Dr.Rajeev Dhavan

placed reliance upon judgment of the Supreme Court rendered in

Comptroller and Auditor-General of India v. K.S.Jagannathan -

(1986) 2 SCC 679, wherein it was held as follows:-

"There is thus no doubt that the High Courts in

India exercising their jurisdiction under Article

226 have the power to issue a writ of mandamus

or a writ in the nature of mandamus or to pass

orders and give necessary directions where the

government or a public authority has failed to

exercise or has wrongly exercised the discretion

conferred upon it by a statute or a rule or a policy

decision of the government or has exercised such

discretion mala fide or on irrelevant

considerations or by ignoring the relevant

considerations and materials or in such a manner

as to frustrate the object of conferring such

discretion or the policy for implementing which

such discretion has been conferred. In all such

cases and in any other fit and proper case a High

Court can, in the exercise of its jurisdiction under

Article 226, issue a writ of mandamus or a writ in

470

the nature of mandamus or pass orders and give

directions to compel the performance in a proper

and lawful manner of the discretion conferred

upon the government or a public authority, and in

a proper case, in order to prevent injustice

resulting to the concerned parties, the court may

itself pass an order to give directions which the

government or the public authority should have

passed or given had it properly and lawfully

exercised its discretion." [Emphasis added].

557. It was submitted that since the police officers have acted in

good faith to maintain law and order situation in the premises, no case

is made out for issuing direction to the State Government to exercise

its discretion to initiate disciplinary proceedings against the officers.

558. Article 311 of the Constitution of India gives a two-fold

protection (i) against dismissal or removal by authority subordinate to

that by which appointed and (ii) against dismissal, removal or

reduction in rank without giving a reasonable opportunity of showing

cause against the proposed action. Protection under Article 311 is

available to permanent as well as temporary employees. To invoke

Article 311, the Court has to apply two tests viz., (i) whether the

government servant has right to the post or the rank or (ii) whether he

has been visited with civil consequences. The protection under Article

311 of the Constitution of India applies to the persons who are

471

members of civil servant of the State or All India service or holding

Civil post under Union or State.

559. We have already arrived at the conclusion that the Officers

viz., CoP- Mr.Radhakrishnan, Addl.CoP – Mr.Viswanathan, JCP (North)

– Mr.Ramasubramani and DCP (Flower Bazaar) – Mr.Prem Anand Sinha

were responsible for causing obstruction to the functioning of the

Courts on 19.2.2009 and also caused interference with the course of

administration of justice which led to closure of the High Court on

20.2.2009, 23.2.2009 and 24.2.2009 and for one week in the City Civil

Court and Small Causes Court situated in the High Court premises.

Hence, we are of the considered view that disciplinary proceedings are

to be initiated against CoP-Mr.Radhakrishnan, Addl.CoP–

Mr.Viswanathan, JCP (North)–Mr.Ramasubramani and DCP (Flower

Bazaar)–Mr.Prem Anand Sinha.

560. For any action taken under Sections 129 and 130 of

Crl.P.C., in dispersal of assembly by use of civil force and for use of

armed forces to disperse assembly, the Officers/ Police personnel are

entitled to protection against the prosecution for acts done under

Sections 129 and Section 130 Cr.P.C., only if they have acted in good

faith. We have already held that prima facie that there are over

whelming materials to show that the above officers have not acted in

good faith and they have not exercised due care and caution; nor did

472

they have foreseen the consequences of their action upon the

administration of justice. In such view of the matter, there could be no

impediment in initiating disciplinary proceedings.

561. In the counter affidavit filed by the Home Secretary, in

para 22, the State Government placed on record its statement that

any Police Personnel if found to be the cause for the excess committed

they will be suitably punished by initiating appropriate departmental

action. During his submission, the learned Advocate General also

reiterated the stand of the Government.

562. On behalf of the lawyers, it was submitted that the

Officers, who were at the helm of affairs should be (a) transferred, (b)

suspended, (c) to file criminal complaints against them and (d) to

initiate disciplinary proceedings. It was mainly argued that suitable

directions are to be issued to the State Government for initiating

disciplinary proceedings and during pendency of the disciplinary

proceedings to suspend the officers responsible for the incident on

19.2.20009.

563. Submitting that suspension is a major punishment, the

learned senior counsel Dr. Rajeev Dhavan contended that order of

suspension cannot lightly be passed against a civil servant who is

entitled to protection under Article 311 of the Constitution of India. It

473

was further argued that only when the Officer was proceeded under

the following charges, any suspension can be ordered viz., (i) Rule 17

(e) of the TNCS (D & A) Rules (or) (ii) Rule 3(e) of TNPSS (D & A)

Rules (or) (iii) Rule 3 of the AIS (D & A) Rules and no suspension can

be made apart from the above circumstances.

564. The learned senior counsel would further submit that

responsibility for ordering suspension is wholly with the constitutional

and statutory authorities and it is not for the Court to see whether to

keep an employee under suspension pending any action. In support of

his contention, the learned senior counsel placed reliance upon the

judgment of the Supreme Court rendered in State of Orissa v.

BimalKumar Mohanty - (1994) 4 SCC 126, wherein the Supreme

Court has held that after taking into consideration the gravity of the

misconduct sought to be inquired into or investigated and the nature of

the evidence placed before the appointing authority and on application

of mind by disciplinary authority, should consider the above aspects,

decide whether it is expedient to keep an employee under suspension

pending disciplinary proceedings. It is fairly settled that it is the

prerogative of the appointing authority or disciplinary authority

whether to place the officer on suspension or not on consideration of

gravity of the alleged misconduct or the nature of the allegations

imputed to the delinquent employee. The learned senior counsel

Dr.Rajeev Dhavan submitted that when it is purely the discretion of

474

the Government to keep an employee under suspension pending

disciplinary proceedings, no mandamus will lie to usurp statutorily

assigned role or dictate how it is to be done.

565. Learned Senior Counsel mainly urged that the Court cannot

dictate the decision of the statutory authority that ought to be made in

the exercise of discretion in given case and the Court cannot direct the

statutory authority to exercise the discretion in a particular manner.

Reliance was placed in the Supreme Court judgment rendered in U.P.

State Road Transport Corpn. v. Mohd. Ismail (1991) 3 SCC 239

and Aeltemesh Rein v. Union of India (1988) 4 SCC 54.

566. Reliance was also placed on the judgments of the Supreme

Court reported in State of W.B. v. Nuruddin Mallick (1998) 8 SCC

143 and A.P. SRTC v G. Srinivas Reddy (2006) 3 SCC 674. In one

of the decision viz., in (1998) 8 SCC 143, it was held that,

"................... It would not be appropriate for the

Court to substitute itself for the statutory authorities to

decide the matter".

567. Observing that the Court cannot direct the statutory

authority to exercise the discretion in a particular manner, reliance was

placed on the judgment of the Supreme Court reported in Chingleput

Bottlers v. Majestic Bottling Co., (1984) 3 SCC 258, wherein it is

475

held as follows:-

"....... Normally, where the statute vests a discretionary

power upon an administrative authority, the Court

would not interfere with the exercise of such

discretion unless it is made with oblique motives

or extraneous purposes or upon extraneous

considerations." (Emphasis added)

568. We are conscious that it would not be appropriate for the

Court to substitute itself for the statutory authorities and usurp the

discretion of the Government in dealing with its Officers. We are also

conscious that normally writ of mandamus may not be issued directing

the State Government to exercise its discretion in a particular manner.

The extra ordinary jurisdiction under Article 226 of the Constitution of

India is not daunted where there is glaring violation of fundamental

rights and situation warrants an affirmative action.

569. In the judgment of the Supreme Court rendered in

GUJARAT STEEL TUBES LTD. v. G.S.T. MAZDOOR SABHA 1980

(1) LLJ 137, it was observed that the power under Article 226 of the

Constitution of India is larger. In para 80 of the said judgment, it was

held as follows:-

“ ....... So broad are the expressive expressions

designedly used in Article 226 that any order

476

which should have been made by the lower

authority could be made by the High Court. The

very width of the power and the disinclination to

meddle, except where gross injustice or fatal

illegality and the like are present, inhibit the

exercise but do not abolish the power.“

570. We are mainly concerned with fair and unbiased inquiry.

Continuance in office by the Officers who were responsible for the

police excess might prejudice the inquiry. Having regard to our

conclusion that the Officers viz., CoP- Mr.Radhakrishnan, Addl.CoP –

Mr.Viswanathan, JCP (North) – Mr.Ramasubramani and DCP (Flower

Bazaar) – Mr.Prem Anand Sinha are responsible for the excess

committed and causing obstruction to administration of justice, to

enable fair and unbiased inquiry, in our considered view that it will be

in order for the State Government to exercise its discretion by placing

the above Officers under suspension pending the disciplinary

proceedings.

571. Directions to CBI case:

R.C.No.1(S)/2009/CBI/SCB/Chennai:- Based on the

complaint lodged by Mr.Jayakodi-Inspector of Police on 19.2.2009,

case was registered in Crime No.15/2009 under Sec.147, 353, 332,

450, 436, 307 IPC r/w. 3(1) TNPPDL Act against named five lawyers

477

and 150 lawyers. Crime No.15/2009 was transferred to CBI and re-

registered in R.C.No.1(S) CBI/SCB/Chennai under Sec.147, 353, 332,

450, 436, 307 IPC and under Sec.3 (1) TNPPDL Act.

572. Mr.Prabakaran, President TNAA and Mr.Paul Kanagaraj,

President MHAA contended that as per the order dated 2.3.2009 any

information given subsequently after 6.40 P.M. on 19.2.2009 cannot

be treated to be a case and urged us to pass appropriate directions

that R.C.No.1(S)/2009/CBI/SCB/Chennai registered against lawyers

cannot be proceeded with.

573. We are unable to accept the contention that R.C.No.1(S)/

2009/CBI/SCB Chennai cannot be proceeded with. The relevant

portion of the order dated 2.3.2009 reads as under:-

"4. ...... 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 6.40 P.M.

pursuant to the Court's order dated 19th February

2009. Any other information given subsequently

at or about 19.20 hours (7.20 P.M.) 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

478

dated 19th February 2009.

Court has only expressed its concern for non-registration of the case

based upon the order passed by the Bench at 6.40 P.M. on 19.2.2009.

Absolutely, there is nothing to indicate that Court has interdicted

continuance of investigation in R.C.No.1(S)/2009/CBI/SCB/Chennai

[Crime No.15/2009]. This is made very clear from the earlier order of

the Court dated 19.2.2009. In the said order dated 19.2.2009, Court

has recorded statement of Home Secretary that regarding the incident

on 19.2.2009, no lawyer would be taken to custody. However, Court

has categorically said after investigation, if necessary, they may

proceed in accordance with law. The relevant portion of the order

reads as follows:-

" 2 (ii) The Home Secretary states that no lawyer will

be taken in custody in connection with today's

incidence. After proper police investigation and after

informing the matter to the Hon'ble the Chief Justice

(Acting Chief Justice for the present), if necessary, in

future, they may proceed in accordance with law."

574. As we elaborated earlier, group of lawyers pelted stones

and acted in a most unacceptable manner. There are also prima facie

evidence to indicate that miscreants appearing to be lawyers setting

fire to the B4-High Court Police Station. If really the lawyers have

caused damage to the public properties and set fire to the B4-High

479

Court Police Station, they are necessarily to be proceeded with in

accordance with law.

575. On 18.9.2009, CoP has filed list of names of Advocates who

are said to have formed an unlawful assembly in front of B4-High

Court Police Station at 2.00 P.M. and also names of advocates who are

said to have set fire to B4-High Court Police Station. On the side of

Advocates, strong objections were raised contending that the list is

camouflaged by including the names of lawyers whom the Police seek

to victimise. As such we are not inclined to accept the list of names

furnished either by lawyers or by police involved. Therefore, we

direct the investigation in Crime No.15/2009 now CBI R.C.No.1 (S)/

2009/CBI/Chennai be proceed in accordance with law.

576. R.C.No.2(S)/2009/CBI:- After the orders of the Court

dated 02.3.2009 and based upon the order dated 19.2.2009, CBI has

registered the case in R.C.No.2(S)/2009/CBI/SCB/Chennai against the

unnamed Police officials and other Police personnel. In its report, CBI

has stated that it has examined number of witnesses, Police officers,

Advocates, Judicial Officers, Court staff, litigant public and others.

577. In Para (16) of its report, CBI averred that "particulars

relating to identity of the Advocates have been collected from Madras

High Court Advocates Association and Madras Bar Association. But the

480

report does not indicate anything about the identification of the Police

personnel who indulged in deliberate destruction of vehicles and court

properties and beating of lawyers. After the incident, eight months

had gone; but still the identity of the Police personnel who indulged in

deliberate destruction of vehicles and properties are yet to be known.

578. In the rejoinder, lawyers have given annexure containing

names of Police officers and Police constables allegedly involved in

damaging the vehicles. In the list, they have also alleged that only

Police officers set fire to Police Station. The learned Government

Pleader raised serious objections contending that such allegations are

baseless and reckless allegations are levelled against the Police

Officers. We are not inclined to place any reliance upon the annexure

filed by the lawyers and we eschew it from our consideration. CBI is

directed to proceed with the investigation in R.C.No.2(S)/

2009/CBI/SCB/Chennai independently.

579. In so far as, R.C.No.2(S)/2009/CBI/SCB/Chennai, CBI is

directed to identify the Police officers and Police personnel who

indulged in excesses lashing out lathi blows on the lawyers, litigant

public, Court staff and who indulged in causing damage to the vehicles

and also to the Court properties. The State Government and Director

General of Police are directed to immediately furnish the list of entire

Police officers and Police personnel and their present designation who

481

were in the High Court on 19.2.2009 to the CBI to enable it to identify

the Police officers and Police personnel. CBI is also permitted to have

copy of Video and Photos taken by the Committee constituted by the

High Court to assess the damages. On identification of the Police

Officers and police Personnel CBI is directed to proceed with the

investigation in R.C.No.2(S)/2009/CBI/SCB/Chennai in accordance

with law.

580. CBI shall proceed with the investigation in both the cases

expeditiously and CBI is directed to file final Report in both cases

within a period of three months from the date of this order.

581. Incident on 17.2.2009/Crime No.13 of 2009:

In so far as the incident on 17.2.2009, already larger Bench has

seized up the matter and therefore, it is not necessary for us to issue

any direction in respect of Crime No.13/2009.

582. Compensation:-

To reimburse the medical expenses and for payment of

compensation to the damages caused to the vehicles, State

Government has placed [G.O.Ms.No.668 dated 20.07.2009] at the

disposal of Registrar-General a total sum of Rs.61,00,000/-. Out of

the said amount of Rs.61,00,000/-, medical expenses and

compensation to the injured and to the damaged vehicles were paid as

482

under:-

1.Payment to Hospitals (Apollo Hospital ... Rs. 11,97,827.00and Lifeline Multi Speciality Hospital)

2.Compensation for injuries to persons ... Rs. 20,99,768.00

3.Damages to Vehiclesi) Four Wheelers to 56 persons ... Rs. 10,63,953.00ii) Two Wheelers to 59 personsiii) For Cycles to 3 persons

4.Expenditure incurred for RepairingThe Damages caused to High Court, ... Rs. 6,39,460.00City Civil Court, Small Causes Court

5.Law Association (TV) ... Rs. 40,000.00

--------------------

TOTAL Rs. 50,41,008.00--------------------

Compensation for injuries to some more claimants is said to be under

processing.

583. Apart from medical expenses, the lawyers who sustained

grievous and simple injuries were also paid compensation as indicated

in the report filed by the Registrar-General. The question falling for

consideration is whether any further amount is to be paid to the

lawyers for infringement of their fundamental rights and for the

ignominy and humiliation suffered by them .

584. Award of compensation against the State is an appropriate

and effective remedy for redress of an established infringement of a

fundamental right under Article 21 by a public servant. The quantum of

compensation will, however, depend upon the facts and circumstances

483

of each case. Award of such compensation by way of public law

remedy will not come in the way of the aggrieved person claiming

additional compensation in a civil Court, in enforcement of the private

law remedy in tort, nor come in the way of the criminal Court ordering

compensation under Section 357 of Code of Civil Procedure.

585. Award of compensation as a Public law remedy for violation

of fundamental rights enshrined in Article 21 of the Constitution, in

addition to the private law remedy under the Law of Torts was evolved

in the last two and half decades. The Supreme Court considered the

question of awarding compensation as Public Law remedy in AIR

1981 SC 928 [Bhagalpur Blinding case, (Khatri (ii) v. State of

Bihar].

586. In [Rudul Sah case Vs. State of Bihar [1983(4) SCC

141], the petitioner therein approached the Supreme Court under

Article 32 of the Constitution alleging that though he was acquitted by

the Sessions Court on 3-6-1968, he was released from jail only on

06-10-1982, after 14 years, and sought compensation for his illegal

detention. The Hon'ble Supreme Court while recongnizing that Article

32 cannot be used as a substitute for the enforcement of rights and

obligations which can be enforced efficaciously through the ordinary

processes of courts, civil and criminal, raised for consideration the

important question as to whether in the exercise of its jurisdiction

484

under Article 32, the Supreme Court can pass an order for payment of

money, as compensation for the deprivation of a fundamental right.

Awarding compensation the Supreme Court held as follows:-

6. "Article 21 which guarantees the right to

life and liberty will be denuded of its significant

content if the power of this Court were limited to

passing orders of release from illegal detention.

One of the telling ways in which the violation of

that right can reasonably be prevented and due

compliance with the mandate of Article 21 secured,

is to mulct its violators in the payment of monetary

compensation. Administrative sclerosis leading to

flagrant infringements of fundamental rights

cannot be corrected by any other method open to

the judiciary to adopt. The right to compensation is

some palliative for the unlawful acts of

instrumentalities which act in the name of public

interest and which present for their protection the

powers of the State as a shield. If civilisation is not

to perish in this country as it has perished in some

others too well-known to suffer mention. It is

necessary to educate ourselves into accepting that,

respect for the rights of individuals is the true

bastion of democracy. Therefore, the State must

repair the damage done by its officers to the

petitioner's rights. It may have recourse against

those officers".

587. Rudul Sah case was followed in Bhim Singh V. State of

J&K [1985(4) SCC 677] and People's Union for Democratic

485

Rights V. Police Commissioner, Delhi Police Headquarters

[1989 (4) SCC 730].

588. The law was crystallised in Nilabati Behera V. State of

Orissa [1993 (2) SCC 746]. In that case, the deceased was arrested

by the police, handcuffed and kept in a police custody. The next day,

his dead-body was found on a railway track. The Supreme Court

awarded compensation to the mother of the deceased. Hon'ble

Supreme Court spelt out the following principles:-

"Award of compensation in a proceeding under

Article 32 by this Court or by the High Court

under Article 226 of the Constitution is a remedy

available in public law, based on strict liability for

contravention of fundamental rights to which the

principle of sovereign immunity does not apply,

even though it may be available as a defence in

private law in an action based on tort.

Enforcement of the constitutional right and grant

of redress embraces award of compensation as

part of the legal consequences of its

contravention.

9. A claim in public law for compensation

for contravention of human rights and

fundamental freedoms, the protection of which is

guaranteed in the Constitution, is an

486

acknowledged remedy for enforcement and

protection of such rights, and such a claim based

on strict liability made by resorting to a

constitutional remedy provided for the

enforcement of a fundamental right is 'distinct

from, and in addition to, the remedy in private

law for damages for the tort' resulting from the

contravention of the fundamental right. The

defence of sovereign immunity being inapplicable,

and alien to the concept of guarantee of

fundamental rights, there can be no question of

such a defence being available in the

constitutional remedy. It is this principle which

justifies award of monetary compensation for

contravention of fundamental rights guaranteed

by the Constitution, when that is the only

practicable mode of redress available for the

contravention made by the State or its servants

in the purported exercise of their powers, and

enforcement of the fundamental right is claimed

by resort to the remedy in public law under the

Constitution by recourse to Articles 32 and 226 of

the Constitution.

487

589. The distinction between tort by the officers for which the

State may be vicariously liable and the primary and strict liability of

the State for the public law wrong of violation of a fundamental right

has sometimes not been maintained and cases of public law wrongs

redressed under the public law remedies by applications under Article

226 have at times been, referred to as cases of tort. In Chairman

Railway Board V. Mrs. Chandrima Das (AIR 2000 SC 988) where

a Bangladeshi woman was gang raped by employees of the Indian

Railway, the court rightly held that it was a case of violation of the

fundamental right of the Bangladeshi woman under Article, 21 which

applies also to non-citizens and the High Court was right in allowing

compensation of Rs.10 lakhs against the Railway in a public interest

petition under Article 226 as the "state was under a constitutional

liability to pay compensation to here. But in the course of discussion

some earlier cases relating to violation of fundamental right awarding

compensation under Article 32 or 226 have been described as cases

"in the the realm of tort" and there is also some reference to vicarious

liability of the State. As submitted earlier, the liability enforced under

Article 32 or 226 for violation of a fundamental right is the primary and

strict liability of the State and not its vicarious liability for the tort

committed by its officers.

590. We are conscious that extension of fundamental rights

under Articles 21 and 32 against private persons, apart from being of

488

doubtful validity, may open a Pandora's box and flood the Supreme

Court and High Courts with petitions seeking damages. Rights to life

and personal liberty against private persons are already covered by

common law and statute law and private law remedies are available

for violations of these rights. The courts must also be astute to guard

against the trend that the blame for every misfortune must be laid at

the doorstep of the State under Article 21, lest every wrong or offence

against the person or property becomes redressable as a public law

wrong against the State on the ground that it was not sufficiently

vigilant in protecting the person or property of the victim. Time and

again the Supreme Court deprecated the tendency to grant huge sums

as damages under Article 226 in cases where the facts are disputed

and there has been no trial of issues involved.

591. In Nilabati Behera's case [1993 AIR SCW 2366], the

Supreme Court put in a word of caution as follows:-

"Of course, relief in exercise of the power under

Article 32 or 226 would be granted only (when) it

is established that there has been an infringement

of the fundamental rights of the citizen and no

other form of appropriate redressal by the court in

the facts and circumstances of the case, is

possible, ...Law is in the process of development

and the process necessitates developing separate

public law procedures as also public law principles.

It may be necessary to identify the situations to

489

which separate proceedings and principles apply

and the courts have to act firmly but with certain

amount of circumspection and self-restraint lest

proceedings under Article 32 or 226 are misused as

a disguised substitute for civil action in private

law".

592. We are conscious that it is not in every case where there is

breach of fundamental right committed by the violator/Police that

compensation would be awarded under Article 226 of Constitution. The

infringement of the fundamental right must be gross and patent and in

controvertible and ex-facie glaring. But the case before us is of

exceptional nature where number of lawyers sustained grievous and

simple injuries. It is a clear case of breach of fundamental rights and

the infringement of fundamental rights is gross and patent and ex-

facie glaring. Having regard to the large scale infringement of

fundamental rights of large number of persons, in our considered view

that this is an appropriate case to award further damages towards the

injured persons.

593. Committee of Hon'ble Judges was constituted and the

committee had gone into the nature of injuries and fixed the

compensation payable. Depending upon the nature of injuries and pain

and suffering the injured lawyers, Courts staff and others were paid

some amount as compensation. We are informed that most of the

lawyers have received the compensation amount without prejudice to

their right of claiming further compensation.

490

594. Having regard to the breach of fundamental rights of large

number of persons and with a view to give quietus to the matter, we

deem it appropriate to award further compensation to the injured

persons. We have carefully examined the list furnished by the

Registrar-General and the nature of injuries sustained by each of the

injured persons. As per the report of the Registrar General, totally

175 were injured, out of which only 139 appeared before the Medical

Board/Committee. Those of them who sustained grievous injuries

resulting in impairments shall be entitled to Rs.1,00,000/- each as ex-

gratia amount. Those of them sustained simple injuries shall be paid a

sum of Rs.25,000/- each as ex-gratia amount. The above ex-gratia

amount shall be in addition to the compensation already paid to them.

595. The following lawyers/ Court staff who sustained grievous

injuries shall be paid further ex-gratia amount of Rs.1,00,000/-each.

1) K.Sudhan 7) S.Raghu 13) A.Zakir Hussain

2) V.Ramalingam 8) S.Alagarraj 14) B.Dakshinamurthy(Court Staff)

3) S.V.Karthikeyan, 9) P.Gnana Sekaran 15)P.Balasubramanian(Court Staff)

4) D.Sivakumar, 10)M.Muneeswaran 16)K.Prabhu

5) S.Anandan 11) D.Anandan 17) R.J.Arjuna

6) R.Bhagawat Krishna 12) N.Gowthaman 18) P.Subramanian

[Totalling Rs.18,00,000/-]

Sl.Nos.1 to 12 .... Advocates; Sl.Nos.14 to 18 – Court Staff.

The following lawyers/court staff/law college students and others who

sustained injuries/simple injuries shall be paid further ex-gratia

491

amount of Rs.25,000/- each.

1)T.Karthikeyan 42)R.Raja 83)G.Sathyaraj

2)K.Jayakannan 43)P.Rajendran 84)P.Chinnadurai

3)J.Kingsly Solomon 44)S.Sankar 85)G.Senthil Kumar

4)N.A.Saidque 45)M.Thomas Acquinas 86)V.Karthikeyan

5)Dr.R.Sampath Kumar 46)A.Mohandoss 87)P.Vijayakanth

6)V.Thirunavukkarasu 47)M.Rajendran 88)R.Kamalakkannan

7)Dr.G.Krishnamurthy 48)S.Sankaranarayana 89)Vellidoss

8)U.Prabhu 49)T.M.Ajin 90)S.Jeevarathina

9)I.Arockia Selvaraj 50)R.Velu 91)Thangapandian

10)A.Singaravelu 51)P.Arivumani 92)M.Mahalingam

11)D.Thirumurthy 52)J.John 93)N.Chandrababu

12)K.Gokulram 53)S.Ananda Kumar 94)V.Srinivasan

13)S.V.Singaravelan 54)R.Vijayakumar 95)R.Sathyamoorthy

14)K.Jayaraman 55)R.Kubendiran 96)T.E.Sampath Kumar

15)J.Karthick 56)V.Selvaperumal 97)T.Baskaran

16)R.Sudhakar 57)S.Immanuvel Thamilselvan 98)M.Rajendran

17)R.L.Saravanan 58)K.Jagannadha Rao 99)R.Sekar

18)R.Sudha 59)S.Arul 100)P.Pooliahpandian

19)L.Sasidharan 60)M.Anbuselvan 101)J.Abdul Malick

20)K.S.Purushothaman 61)S.Nagarajan 102)M.Chennakesavalu

21)T.S.Kanmani 62)M.Mohamed Rafi 103)R.Manickam

22)C.Narayana Ram 63)G.Mohanakrishnan 104)G.Vijayakumar

23)S.Meenakshi Sundaram 64)G.Balakrishnan 105)S.Chandrasekaran

24)R.Suresh Kumar 65)G.Vijaya Balan 106)M.Jahir Hussain

25)S.Siva Sankar 66)J.Pooma Chandran 107)Mrs.Bhuvaneswari

26)C.S.V.Loganathan 67)B.Mohan Raj 108)E.Sivaraj

27)G.Srinivasan 68)T.Senthil Rajan 109)S.Gopi

28)R.Sreerangan 69)P.Madasamy 110)Rajaguru

29)A.K.Kaleel Ahamed 70)R.Murali 111)K.Hemalatha

30)Kayal @ Angayarkanni 71)K.Ramasundaram 112)M.Sekar

31)M.Zainul Abideen 72)S.Kamaraj 113)K.Shanmugam

32)C.Panneer Selvam 73)N.Vijayaraj 114)D.Williams

33)V.Alamelu 74)S.Vijayalakshmi 115)P.Akila

34)S.Ramajayam 75)R.Janagi 116)M.Bharathi

35)M.Karthikeyan 76)V.Amudha 117)Vishwanth Swami

36)A.Anandan 77)R.Arun 118)S.Usha Koshi

37)A.Juhilin Jinu Hebarson 78)N.Velayudam 119)N.Selvam

38)M.K.Thiruvengadam 79)M.Jaikumar 120)B.Ellappan

39)C.Ramesh 80)J.N.Nareshkumar 121)M.S.Sivakumar

40)A.Arokiadoss 81)S.Arumugam

41)C.Chandrasekar 82)K.Nagarajan

[Totalling Rs.30,25,000/-]

492

Sl.Nos. 1 to 84 ... Advocates; Sl.No.85 to 89 ... Law College Students; Sl.Nos. 90

to 105 ... Court Staff and Sl.Nos. 106 to 121 ... Others.

596. We direct that the payment of ex-gratia amount shall be in

'full and final settlement' of all the claims of injured persons. On

payment of the said amount no further claim shall lie in this regard.

We direct the State Government to place further a sum of

Rs.48,25,000/- at the disposal of Registrar General for disbursement

of the ex-gratia amount to the injured persons as indicated above.

597. On 19.02.2009 the Police have also entered into the Law

Association, Small Causes Court, and Madras High Court Advocate

Association [MHAA] and caused extensive damages to the library and

other furnitures. Already an amount of Rs.40,000/- was paid to Small

Causes Court for replacement of damages for Sony LCD TV. We have

also seen the photographs and the damages caused. Having regard to

the damages caused to the above two Associations, an amount of

Rs.5,00,000/- each shall be paid to the Law Association and MHAA

respectively. [Total Rs.10,00,000/-].

598. The State Government is directed to place at the disposal

of Registrar-General a total sum of Rs.58,25,000/- for being paid to

the injured persons and to the Law Association and MHAA. After paying

the amount, the Registrar General is directed to send report to the

State Government as to amount disbursed.

493

599. We make it clear, apart from the claims so far already

made and the 36 injured persons who have not appeared before the

Hon'ble Committee/Registrar-General (as per the list filed by the

Registry), no fresh claim shall be entertained.

600. SECURITY IN PRINCIPAL SEAT AND MADURAI BENCH:

The revised security Scheme/Plan for Principal Seat with the

strength of 252 Police personnel was inaugurated on 21.1.2009. With

252 Police personnel, the scheme was implemented from 28.1.2009

and 252 Police personnel [in shift] continued in the premises and

discharging their security duty in the respective assigned area. On

17.2.2009, Dr. Subramaniam Swamy appeared in Court Hall No.III

and was attacked. After the incident on 19.2.2009, Police Force inside

the High Court premises was withdrawn. On 23.4.2009, the Hon'ble

Security Committee directed the Registry to address the State

Government to restore the complement of Police force as it existed

prior to 17.2.2009 with effect from 01.5.2009. But from 01.5.2009,

only a skeletal complement of Police personnel is being posted inside

the High Court premises at important places.

601. High Court being high Security Zone, as resolved by the

Hon'ble Security Committee, State Government is directed to restore

complement of Police force as it existed prior to 17.2.2009. Lawyers

494

are directed to render all co-operation for implementation of Security

plan as it existed prior to 17.2.2009.

* * * * *

F.M.IBRAHIM KALIFULLA, J. &R.BANUMATHI, J.

602. COMMON CONCLUSIONS AND DIRECTIONS:

I. Compensation:-

(a) It is held that the injured lawyers/court

staff/others who sustained grievous injuries shall be

paid an ex-gratia amount of Rs.1,00,000/- each

(Rupees One lakh only). The injured lawyers/court

staff/others who sustained simple injuries shall be

paid an ex-gratia amount of Rs.25,000/- each

(Rupees Twenty five thousand only). [Vide List in

Para (595)]. Payment of ex-gratia amount to the

injured lawyers/court staff/others shall be in

addition to the compensation amount already paid

to them from and out of the amount already

sanctioned by the State Government. Payment of

ex-gratia shall be in full and final settlement of

all the claims of the injured lawyers/court

495

staff/others and there shall be no further claim in

this regard.

(b) Law Association and Madras High Court

Advocates Association (MHAA) shall be paid

Rs.5,00,000/- each (Rupees Five lakhs) towards the

damages caused to the Library and other

infrastructures of their Associations.

(c) State Government is directed to place

further amount of Rs.58,25,000/- (Rupees Fifty

eight lakhs twenty five thousand) at the disposal of

the Registrar-General, High Court, Madras for

disbursement of ex-gratia amount as directed by us

in Para (598) to the injured lawyers/court

staff/others and for payment of damages to the Law

Association and MHAA within six weeks from the

date of this order.

(d) The Registrar-General and Registrar-

Management shall ensure disbursement of the

amount to the injured persons as per the list in Para

496

(595) and to the Law Association and Madras High

Court Advocates Association (MHAA).

(e) No fresh claims shall be entertained apart

from the claims already made before the Registrar-

General.

II. Contempt Proceedings:

(a) Primafacie case is made out against

Mr.Radhakrishnan,then CoP, Chennai;

Mr.A.K.Viswanathan then Addl. CoP (L&O), Chennai;

Mr.Ramasubramani-then JCP(North) and Mr.Prem

Anand Sinha-then DCP, Flower Bazaar that they have

caused obstruction in the course of administration of

justice and contempt proceedings have to be

necessarily initiated against them.

(b) Contempt notice under Section 15(1) read

with Section 2 (c) (iii) of Contempt of Courts Act is

ordered to be issued to Mr.K.Radhakrishnan-then

CoP, Chennai; Mr.A.K.Viswanathan-then Addl. CoP,

Chennai; Mr.M.Ramasubramani-then JCP(North) and

497

Mr.Prem Anand Sinha-then DCP, Flower Bazaar for the

following alleged excesses:

(i) for deployment of additional armed

force inside the High Court campus on

19.02.2009, after 11.30 am i.e. after

Dr.Subramaniam Swamy left the High Court

premises and that too without intimation /

permission of the Registry;

(ii) for the act of creating commotion

inside the High Court premises under the

guise of attempt to arrest the accused

advocates and other advocates in between

12.00 noon and 3.45 p.m.;

(iii) for the act of entering the High

Court, City Civil Court, Court of Small Causes,

Family Court, Law Association premises,

Madras High Court Advocates Association

premises under the guise of chasing the

lawyers;

498

(iv) for the alleged act of causing

extensive damages to the properties inside

the campus such as vehicles, buildings and

association libraries and furniture;

(v) for the alleged act of causing

injuries on the personnel namely the then

sitting Judge of this Court, lawyers, court

staff and litigant public who assembled in the

High Court campus for carrying on their

lawful activities;

(vi) for the alleged acts of interference

in the course of justice by paralysing the

functioning of the High Court on 20th, 23rd and

24th of February, 2009, the functioning of City

Civil Court, Court of Small Causes and other

Judicial Forums located inside the High Court

campus on 20th and 23rd to 27th February,

2009 and paralysing the functioning of

subordinate Courts throughout the State on

20th, 23rd and 24th February, 2009;

499

(vii) for the alleged act of failure to

withdraw the additional armed forces drawn

into High Court premises inspite of specific

and repeated directions of the Hon'ble Acting

Chief Justice;

(viii) for having filed false affidavits in

this proceedings; and

(ix) for such other acts of the above

contemnors which this Court comes across in

the course of the hearing of the contempt

petition.

(c) No case is made out to initiate Contempt

proceedings against the Chief Secretary, Home

Secretary, Director General of Police and then Addl.

Director General of Police (L&O) Mr.T.Rajendran.

(d) No case is made out to initiate Contempt

proceedings against other officers viz., Mr.Anup

500

Jaiswal-DGP (I&T); Mr.Sunil Kumar-Addl. CoP

(Traffic); Mr. Sandeep Rai Rathore-JCP [Central];

Mr.Gunaseelan-JCP (South Zone); Mr.Sarangan-DCP,

Kilpauk; Mr.S.Panneerselvam-DCP, Pulianthope;

Mr.T.S.Anbu-DCP, Anna Nagar; Mr.C.Sridhar-DCP,

Adyar; Mr. M.S.Muthusamy-DCP, T.Nagar; Mr.K.Joshi

Nirmal Kumar-DCP (Traffic-South); Mr.Thirugnanam-

DCP (Traffic-North) and Mr.C.Jayakodi-Inspector of

Police B2-Esplanade Police Station. Even though, no

prima facie case is made out to initiate Contempt

Proceedings against these Officers, in the Criminal

Case, if the above said Officers are charged as having

committed excess in the incident on 19.2.2009, those

Officers should be proceeded with in accordance with

law both in R.C.No.2(S)/2009/CBI/SCB/Chennai

and also by way of disciplinary proceedings.

III. Directions to the Government:

In as much as the learned Advocate General in

the course of his submissions stated that the State

Government will scrupulously comply with the

directions that may be issued for taking any action

501

against erring officers, we issue the following

directions:

(a) In the light of various specific directions

issued in this order, it is up to the State Government

to consider whether continuance of One Man

Committee (Dr.N.Sundaradevan Committee)

appointed by the State Government should be

pursued or not.

(b) Having regard to our conclusions holding

that Mr.Radhakrishnan-then CoP, Chennai;

Mr.A.K.Viswanathan-then Addl. CoP, Chennai;

Mr.Ramasubramani-then JCP(North) and Mr.Prem

Anand Sinha-then DCP, Flower Bazaar are responsible

for the incident in the High Court campus on

19.2.2009 and Police excess in violation of statutory

provisions including Police Standing Orders, we direct

the State Government to initiate appropriate

disciplinary proceedings against the above said

officers and proceed with them in accordance with

law.

502

(c) To enable fair and unbiased enquiry, it will

be in order for the State Government to exercise its

discretion to place the Officers viz.,

Mr.Radhakrishnan-then CoP, Chennai;

Mr.Viswanathan-then Addl. CoP, Chennai;

Mr.Ramasubramani-then JCP(North) and Mr.Prem

Anand Sinha-then DCP, Flower Bazaar under

suspension pending disciplinary action.

(d) In so far as, other Police officers and Police

personnel deployed in the High Court on 19.2.2009, if

in the final report in R.C.No.2/2009/CBI/SCB/

Chennai, are charged as having committed excess in

the incident on 19.2.2009, we direct suitable

disciplinary proceedings to be initiated against those

Police officers and personnel also.

IV. Directions to CBI:

(a) We direct CBI to proceed with the

investigation in R.C.No.1(S)/2009/CBI/SCB/

Chennai registered against the lawyers in accordance

with law.

503

(b) In so far as, R.C.No.2(S)/

2009/CBI/SCB /Chennai, registered against the

Police, CBI is directed to proceed with the

investigation in accordance with law.

(c) The CBI shall proceed with the investigation

in both the cases expeditiously and file the final

Report within three months from the date of this

Order.

V. Directions to Registry:-

(a) Directions in W.P.No.7646/2006 dated

20.6.2006 shall be strictly implemented. We further

direct that as per the directions of the Supreme Court

in S.L.P. (Civil) No.7540/2009 dated 14.7.2009, there

shall be no procession or Meetings in the Court

verandah or in any part of the Court premises except

within their Association Halls and that too in a

peaceful manner in order to ensure that the

proceedings of the Court is not in anyway disrupted.

(b) We reiterate the directions in

W.P.No.24445/2006 dated 09.10.2006 which led to

504

the constitution of State Level Co-ordination

Committee in G.O.Ms.No.1249 Home (Police IX)

Department dated 28.12.2006.

(c) We direct the Registrar-General to send a

copy of the order in W.P.No.7646/2006 dated

20.6.2006 and our directions in these Writ Petitions to

the Bar Council, all the Bar Associations in the

Principal Seat and Madurai Bench and to the District

Judges for being circulated to all the Bar Associations

in the District Courts and in Moffusil Courts for strict

implementation within six weeks from the date of this

order.

VI. Security to High Court:-

(a) As far as the guidelines issued by the

Government of India for preserving the Security of

this Institution is concerned as per the direction

contained in the letter No.IV.23014/79/2005/VS

dated 31.5.2007 and the subsequent order dated

17.11.2008 and the steps taken by the Madras High

Court Security Committee revising the Security

505

arrangement system as was implemented from

28.1.2009, should be restored forthwith.

(b) State Government is directed to restore

complement of Police force as it existed prior to

17.2.2009 as resolved by the Hon'ble Security

Committee. Lawyers are directed to co-operate with

the Registry for implementation of Security Plan as it

existed prior to 17.2.2009.

VII. Security to District Courts and other Courts:-

State Government is directed to restore

Security to District Courts and other Courts

throughout the State as it existed prior to

19.02.2009.

603. We have dealt with the issues, keeping in view the

public interest, interest of the Police, interest of the lawyers and

above all, interest of the Institution. Though, we have found

fault with some of the Officers, it should not be taken to mean

that the whole Police Force is at fault. While we have found fault

with certain Officers, in the same breath, we have also found

fault with the lawyers for their continued boycotts and how it

506

caused inconvenience to the public at large. We wish that Police

and lawyers would bury their differences and rift in the interest of

the public at large and in the interest of the Institution. Both the

lawyers and Police, the two wings of the Institution should always

work together for the administration of justice. Functioning of

Courts and carrying on business of administration of justice

depends upon the harmonious relation between the Police and

lawyers. We wish that better counsel will prevail upon the Police

and lawyers. We hope that Police and lawyers work hand in hand

and promote better relationships. We also feel that it may be

appropriate for the Police and lawyers to constitute their

respective Committees both at State level/District level to resolve

the differences in an amicable manner.

604. With the above directions and observations, all the

Writ Petitions are disposed off except Suo Moto

W.P.No.3335/2009 which shall be called along with the Contempt

proceedings to be initiated as directed in this Order. Since CBI

has registered the case in R.C. No.2 (S)/2009/CBI/SCB/Chennai,

the Criminal O.Ps. are dismissed as infructuous.

Consequently, all the connected M.Ps. and M.P.S.Rs. are closed.

No costs.

507

605. The CDs filed and marked on either side [CD-P1 to P5

and CD-R1 & R2] and other CDs and documents shall form part

of record and ordered to be kept along with the records in safe

custody.

606. Likewise, the call log particulars filed by

Mr.A.K.Viswanathan-Addl. CoP along with his counter shall form

part of record and ordered to be kept along with the other

records.

607. CBI is permitted to peruse the CDs and records and if

need be, copy of records and CDs may also be furnished to CBI to

facilitate the investigation.

608. We place on record the valuable assistance rendered

by Mr.P.S.Raman, learned Advocate-General; learned Senior

Counsel Dr.Rajeev Dhavan; and Mr.Raja Kalifullah, Government

Pleader. We also place on record the co-operation extended by

Mr.V.Selvaraj, Mr.P.N.Prakash and Mr.Swaminathan who argued

onbehalf of some of the Police Officers.

508

609. We also place on record the co-operation of the

lawyers in general and in particular Mr.S.Prabakaran, President

TNAA, Mr.R.C.Paul Kanagaraj, President, MHAA, Ms.R.Vaigai,

Senior Counsel Mr.R.Krishnamurthy, Senior Counsel

Mr.T.V.Ramanujam, Mr.N.G.R.Prasad and Mr.V.Raghavachari.

(F.M.I.K.,J.) (R.B.I.,J)

29.10.2009

Index : Yes Internet : Yes kk/bbr

509

F.M.IBRAHIM KALIFULLA, J.

and

R.BANUMATHI, J.

kk/bbr

COMMON ORDERin W.P.Nos.3335, 3703, 3704,

3705 and 3910/2009 and ConnectedM.Ps. and M.P.S.Rs. & Crl.O.P.

Nos.4085, 4287 and 4434/2009

29.10.2009