JUDGMENT
S. Siri Jagan, J.
1. The appellants in this appeal are the Regional Cancer Centre, a Research Institute owned by the Government of Kerala and its Director. The question posed in this Writ Appeal is as to the scope of Section 36(2) of the Protection of Human Rights Act. 1993. The facts necessary for the disposal of this Writ Appeal are hereunder.
2. The original 1st respondent in the Writ Appeal was a cancer patient who complained of violation of human rights. He died during the pendency of this appeal and his son has been impleaded as the additional 10th respondent being a legal heir. The 1st respondent approached the appellants for expert treatment of cancer. He was registered as a patient on, 13-11-1999 and admitted in the cancer centre on 5-1-2000. Before the Human Rights Commission, he alleged that he was recruited for study called NDGA study without his consent or knowledge and that on 13-1-2000, 14-1-2000 and 15-1-2000, certain injections were administered on him and, thereafter, surgical removal of the cancer affected part was done on 18-1-2000. He was discharged on 20-1-2000. He was under regular follow up treatment and on 14-10-2000, the 1st respondent experienced foreign body sensation in the throat and a new tumour developed in the throat which, according to the 1st respondent, was the result of the injection of harmful chemicals. Alleging that the 1st respondent was denied timely and effective treatment and was subjected to experimental studies for making illegal and unethical monetary gains, on 1-8-2001, the 1st respondent filed a complaint before the State Commission for Human Rights, Trivandrum as HRMP.No. 2188/2001. On receipt of notice, the appellants herein entered appearance and filed a statement of objection refuting the allegations of the 1st respondent. Later, they raised a preliminary objection regarding the maintainability of the petition itself on three grounds, namely, (a) the petition is barred under Section 36(1) of the Protection of Human Rights Act in so far as an expert, namely, Dr. Pareek, was appointed by the Government to enquire into the allegations against the appellants. (b) that the petition is barred under Section 36(2) of the Protection of Human Rights Act in so far as the petition was filed beyond the period of one year prescribed under the said sub-section and (c) in so far as an original petition is pending before the High Court of Kerala as O.P.No. 21618/2001, the matter is sub judice and, therefore, an enquiry into the same by the State Human Rights Commission is barred. A member of the Human Rights Commission heard the preliminary objections and passed Ext.P4 order holding that the three preliminary objections are not sustainable and the petition is maintainable. Challenging the said order, the appellants filed O.P.No. 10174/2002 before this Court in which although all the three contentions were taken, only the contention regarding limitation under Section 36(2) was seen pressed into service. The learned single Judge, on a reasoning that since the 1st respondent could have experienced the adverse effect of administration of medicine only on 14-1-2000 when a new tumour was noticed, the starting point of computation of the period of one year mentioned in Section 36(2) is that date and in that view, upheld the order of the Commission with the rider that whether the formation of the new tumour is because of the administration of the drugs or because of the delayed surgery is a matter to be proved by the 1st respondent while prosecuting Ext.Pl claim. It is the said judgment, which is under challenge in this Writ Appeal at the instance of the petitioners in the Original Petition.
3. In this Writ Appeal also, although in the appeal memorandum, the appellants have reiterated the three objections, they have pressed into service only the contention on the basis of limitation under Section 36(2). Therefore, the question to be decided in this appeal is as to whether the Commission was right in entertaining the petition, rejecting the objection of the appellants, on the basis of Section 36(2) of the Act and whether the Single Judge was right in upholding the order of the Commission.
4. Counsel for the appellants would submit that by virtue of Section 36(2), no complaint can be entertained by the Commission after the expiry of one year from the date on which the drug was administered on the 1st respondent, namely, 15-1-2000 and, therefore, the Commission erred in holding that the petition filed by the 1st respondent was maintainable.
5. On the other hand, counsel for the 10th respondent vehemently argued that the words “act constituting violation of human rights would include the effect of the act also and in so far as he could not have been aware of that effect before 14-10-2000 on which date the 1st respondent experienced foreign body sensation in the throat, the petition filed on 1-8-2001 is perfectly within the period prescribed under Section 36(2) and, therefore, Ext.P4 order of the Commission rejecting the preliminary objections is perfectly valid and proper.
6. Since the issue involved in this appeal is interpretation of Section 36(2) of the Protection of Human Rights Act, 1993, we shall reproduce here the said sub-section:
36. Matters not subject to jurisdiction of the Commission:
(1) XXX XXX XXX (2) The Commission or the State Commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed. The Commission and the learned Single Judge have proceeded on the basis that Section 36(2) is a provision incorporating a limitation period for filing complaints before the Commission, which, on a plain reading of the Section would show is not correct. The said Section postulates a bar on the jurisdiction of the Commission as is clear from the Headnote to Section 36, which reads thus: Matters not subject to jurisdiction of the Commission. Therefore, what is to be looked into is not as to what is the starting point of period of limitation for filing the complaint but whether the Commission had jurisdiction to enquire into matters referred to in the complaint after expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed.
7. Admittedly, the basic act constituting the violation of human rights alleged by the 1st respondent has occurred latest on 15-1-2000 when the last of the injection was administered. As such, the Commission could have enquired into the matter only within one year from that date. This very question has been subject matter of decision by the Hon’ble Supreme Court of India in the decision of N.C. Dhoundial v. Union of India and Ors., . Paragraphs 15 and 16 of the said judgment deals with the issue, which reads thus:
15. Now, let us look at Section 36 of the Protection of Human Rights Act, which reads thus: “36. Matters not subject to jurisdiction of the Commission. —
(1) The Commission shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force.
(2) The Commission or the State Commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed.
Section 36(2) of the Act thus places an embargo against the Commission enquiring into any matter after expiry of one year from the date of the alleged act violative of human rights. The caption or the marginal heading to the section indicates that it is a jurisdictional bar. Periods of limitation, though basically procedural in nature, can also operate as fetters on jurisdiction in certain situations. If an authority is needed for this proposition, the observations of this Court in S.S. Gadgil v. Lal & Co., may be recalled. Construing Section 34 of the Income Tax Act. 1922, the Court observed thus: (AIR P. 176. para 10)
10. Again the period prescribed by Section 34 for assessment is not a period of limitation. The Section in terms imposes a fetter upon the power of the Income Tax Officer to bring to tax escaped income.
The language employed in the marginal heading is another indicator that it is a jurisdictional limitation. It is a settled rule of interpretation that the Section heading or marginal note can be relied upon to clear any doubt or ambiguity in the interpretation of the provision and to discern the legislative intent (vide Uttam Das Chela Sunder Das v. Shiromani Gurdwara Parbandhak Committee, and Bhinka v. Charan Singh, .)
16. In fact, Section 36(2) does not mince the words and the language used is clear and categorical. The marginal note to the Section is being referred to only to consider whether the bar created by Section 36(2) has a bearing on the power of jurisdiction of the Commission.”
Going by the same, it is clear that the Commission could not have enquired into the matter after expiry of one year from 15-1-2000.
8. However, we need to deal with a finding by the Commission to the effect that the reading of the petition filed by the 1st respondent as a whole would show that the cause of action is a recurring one and, therefore, the petition is not barred under Section 36(2). In fact, this contention was also specifically dealt with by the Supreme Court in the decision supra at paragraph 17. In paragraph 17, the Supreme Court held as follows:
17. The bar under Section 36(2) is sought to be got over by the Commission by invoking the theory of continuing wrong and the recurring cause of action. According to the Commission, every violation of human right is a continuing wrong until and unless due reparation is made. We find it difficult to accept this proposition propounded by the Commission. The short answer to this view point is that such a view, if accepted, makes Section 36(2) practically a dead letter. Moreover, going by the language employed in Section 36(2), we do not think that the concept of continuing wrong could at all be pressed into service in the instant case. The time-limit prescribed is referable to the alleged “act” constituting the violation of human rights. In a case like illegal detention, the offensive act must be deemed to have been committed when a person is placed under detention and it continues so long as the affected person remains under illegal detention. The commission of offensive act is complete at a particular point of time and it does not continue to be so even after the unauthorised detention ends. It is not in dispute that the complainant was produced before the Special Judge on 3-4-1994 and remand was obtained in accordance with the procedure prescribed by law. The alleged act of unauthorized detention which give rise to violation of human rights ceased on 3-4-1994 and it does not perpetuate thereafter. It is not the effect of illegal detention which is contemplated by Section 36(2) but it is the illegal act itself. It would be a contradiction in terms to say that the arrest or detention beyond 3-4-1994 was in accordance with law and at the same time, the arrest/detention continued to be wrongful. It cannot, therefore, be brought under the category of continuing wrong which is analogous to the expression continuing offence” in the field of criminal law. It cannot be said that the alleged wrongful act of detention repeats itself everyday even after the complainant was produced before the Magistrate and remand was obtained in accordance with law. Beyond 3-4-1994. there was no breach of obligation imposed by law either by means of positive or passive conduct of the alleged wrongdoers. To characterize it as a continuing wrong is, therefore, inappropriate. One-year period for taking up the enquiry into the complaint, therefore, comes to an end by 3-4-1995. Just as in the case of Section 473 Cr.P.C. there is no provision in the Act to extend the period of limitation of one year….
From the above finding of the Supreme Court, it is clear that Section 36(2) of the Act cannot be overcome by a reasoning that the act complained of by the 1st respondent constitutes a continuing and recurring cause of action.
9. Counsel for the 10th respondent would argue that the Supreme Court decision in Dhoundial’s case (supra) does not in any way affect the maintainability of the petition filed by the 1st respondent in so far as the words “act constituting violation of human rights” include not only the overt act of the appellants in administering injections but also the consequences of the same, namely, the experiencing of foreign body sensation in throat by the 1st respondent and the development of the new tumour which occurred on 14-10-2000. In support of this contention, the learned Counsel relied on the meaning given to the word act’ in the Law Lexicon which included the ‘consequences which it produces.” In fact, the learned Single Judge also accepted the same argument, although, by importing a reasoning on the basis of date of knowledge of the 1st respondent of the alleged after-effect of the drug. According to the learned Single Judge, 4-10-2000 is the date of knowledge of the 1st respondent of the ill effect of the injection and, therefore, that is the starting point of limitation. We are afraid that we cannot subscribe to the said reasoning. Such a reasoning would be applicable only if we are dealing with the question of limitation for filing complaint before the Commission. As we have already held earlier, what Section 36(2) postulates is not a period of limitation prescribed, but a bar on the jurisdiction of the Commission itself to enquire into the allegation of violation of human rights alleged after a specified period. The concept of date of knowledge applicable to the question of limitation in filing applications cannot be imported into this bar on jurisdiction as is clear from the above said decision of the Supreme Court. This is further clear from the language used in the Section. The words used are “act constituting violation of human rights is alleged to have been committed.” The act alleged to have been committed by the appellants can only be the administration of the drug. The after-effects of the drug cannot be alleged to be committed by the appellants. Such an interpretation could have been employed only if the wording of the Section were “The Commission or the State Commission shall not enquire into any matter after the expiry of one year from the date of the act constituting violation of human rights.
10. It seems that the Commission as well as the learned Single Judge proceeded as if the Human Rights Commission is the only forum available to the 1st respondent for redressing his grievances in respect of the alleged violations by the appellants, which must be the reason for this strained interpretation. This is not so. This question has also been dealt with by the Supreme Court in the above said decision at paragraph 14, which reads thus:
14. We cannot endorse the view of the Commission. The Commission which is a “unique expert body” is no doubt, entrusted with a very important function of protecting human rights, but, it is needless to point out that the Commission has no unlimited jurisdiction nor does it exercise plenary powers in derogation of the statutory limitations. The Commission, which is the creature of statute, is bound by its provisions. Its duties and functions are defined and circumscribed by the Act. Of course, as any other statutory functionary, it undoubtedly has incidental or ancillary powers to effectively exercise its jurisdiction in respect of the powers confided to it but the Commission should necessarily act within the parameters prescribed by the Act creating it and the confines of jurisdiction vested in it by the Act. The Commission is one of the fora which can redress the grievances arising out of the violations of human rights. Even if it is not in a position to take up the enquiry and to afford redressal on account of certain statutory fetters or handicaps, the aggrieved persons are not without other remedies. The assumption underlying the observation in the concluding passage extracted above proceeds on an incorrect premise that the person wronged by violation of human rights would be left without remedy if the Commission does not take up the matter.
As such, it is clear that in such circumstances, the 1st respondent could have resorted to other remedies available to him by way of suits for damages or by approaching the Consumer Disputes Redressal Forum under the Consumer Protection Act where he could raise all these contentions including that regarding limitation.
11. There is another aspect also. If the effect of Section 36(2) is stretched to such limits then the said Section itself would be rendered otiose which could not have been the intention of the legislature while putting a fetter on the jurisdiction of the Commission by prescribing a jurisdictional limit of one year for the Commission to enquire into any matter regarding the allegation of the act constituting violation of human rights. If the interpretation put by the Commission and the learned Single Judge is accepted, there would be no end to the period during which a person complaining of violation of the nature referred to herein can approach the Commission.
12. In view of the above findings, we have absolutely no hesitation to hold that in this case, the Commission could not have entertained the petition filed by the 1st respondent since the same was filed beyond one year from 15-1-2000, namely, the last date of administration of the drug which is alleged to be the act constituting violation of human rights by the 1st respondent. In that view. Ext.P4 order of the Human Rights Commission as also the judgment of the learned Single Judge deserves to be set aside and we do so, accordingly, HRMP No. 2188/2001 on the files of the Kerala State Human Rights Commission, Trivandrum would stand dismissed, however, without prejudice to the right of the 10th respondent to work out his remedies under the common law or other statutory provisions available to him. The Writ Appeal is allowed as above, but without any order as to costs.