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Madras High Court
G.Meena vs The Commissioner Of Police … on 8 December, 2008
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated:  08.12.2008

Coram

The Honourable Mr. JUSTICE K.MOHAN RAM

Crl.O.P. No.20980 of 2008

G.Meena								....  Petitioner

-Vs.-

1. The Commissioner of Police (Sub-urban)
    St. Thomas Mount, Chennai
2. The Assistant Commissioner of Police,
    Madipakkam Range, Chennai
3. The Inspector of Police,
    Pallikaranai Police Station, Chennai  600 302
4. Smt. Vasanthi Rajendran,
    President of Kovilambakkam Village Panchayat		
5.G.Meena								
(R-5 impleaded as per the order of this Court 
 dated .....12.2008)						....  Respondents

Prayer:- Criminal Original Petition filed under Section 482 of the Criminal Procedure Code praying for a direction to direct to the first and second respondents to give police protection to the petitioner's life and property against the illegal activities of the accused person in the complaint given by the petitioner dated 18.06.2008 pending on the file of the third respondent.

	For Petitioner 	:  Mr. K.Ashok Kumar, senior counsel, for,
				    Mr. Abudu Kumar Rajaratnam

	For Respondents 	:  Mr. Hasan Mohamed Jinnah,
				   Government Advocate (Crl. Side), for R-1 to R-3.
				    Mr. Doraswamy Naidu, for R-4
- - -



O R D E R

The facts which are necessary for the disposal of the above Criminal Original Petition are set-out below:-

The petitioner claims that she has purchased 3 acres and 12 cents in Survey No.390/2 Sunnambu Kolathur Village in Tambaram Taluk under various registered sale deeds from various persons and after selling away an extent of 1.5 acres she has retained 1.62 acres for establishing a School in that area; she got approval from the CMDA in 1998; from the date of purchase the petitioner is in possession and enjoyment of the property; all revenue records stand in the petitioner’s name and she is paying all necessary taxes and other charges to the concerned authorities. It is the case of the petitioner that at the instigation of one Rajendran, his wife-Vasanthi Rajendran, the fourth respondent herein, who was the President of Kovilambakkam Village Panchayat filed O.S.No.216 of 2001 for permanent injunction before the District Munsif Court, Alandur, against the Assistant Settlement Officer and Others to restrain the defendants from changing the classification of the said land in the revenue records and the same was dismissed as early as on 28.11.2005.

2. According to the petitioner since the following persons namely Devendran, K.Rajendran and Kabali claiming the said land to be classified as Government Annadheenam tried to interfere with the possession; hence she filed O.S.No.104 of 2005 against them before the District Munsif Court, Alandur, for permanent injunction restraining them from interfering with her peaceful possession and enjoyment of the said property and pending the suit she prayed for interim injunction in I.A.No.467 of 2005 and by an exparte order dated 24.02.2005 ad-interim injunction was granted and on service of notice the defendants entered appearance and filed their written statements and counter statements and interim injunction order was being extended from time to time and on 10.04.2006 the injunction was extended till the disposal of the suit and since the suit was ripe for trial the injunction petition was closed. It is the further case of the petitioner that thereafter the said Rajendran through his henchman-one Kumar filed a Public Interest Litigation (PIL) before this Court to direct the District Collector, Kancheepuram and Tahsildar to set-right the records relating to the property in Survey No.390/2 and the same was dismissed by this Court on 12.04.2007; on 03.04.2007 when the workers of the petitioner were doing fencing work in the above said property for establishing the School, the said Rajendran and his henchman trespassed into the property with deadly weapons and threatened the workers with dire consequences which forced the petitioner to lodge a complaint before the third respondent and the third respondent issued a receipt in CSR No.216 of 2007 but failed to take any action and later by virtue of an order passed by this Court under Section 482 Cr.P.C., a case in Crime No.1490 of 2008 has been registered by the third respondent for the offences under Sections 147, 148, 323, 383, 441, 463, 464, 120-B and 506 (ii) IPC against the said Rajendran, the fourth respondent herein, Devendran, Kabali and others; since there was frequent interference with the possession of the petitioner, the petitioner submitted a representation to the Revenue Divisional Officer, Chengalpet, for police protection for fencing the property and the Revenue Divisional Officer by his communication dated 27.05.2008 forwarded the representation to the second respondent herein for necessary action but no action has been taken to protect the petitioner’s life and property at the hands of the accused persons in Crime No.1490 of 2008. Contending that the petitioner has no other remedy except to approach this Court under Section 482 Cr.P.C., the aforesaid relief is sought for.

3. While the petition was pending M.P.No.1 of 2008 has been filed by Kovilambakkam Panchayat, Represented by its President K.Rajendran, seeking to implead himself as a party respondent in the above Criminal Original Petition. In the affidavit filed in support of the impleading petition it is stated that the land bearing Sruvey No.390/2 measuring an extent of 3.12 acres is Annadheenam Poramboke land and out of that, an extent of 1.62 acres is in the continuous possession and enjoyment of the Kovilambakkam Panchayat and in the said land the Panchayat has constructed overhead water tank and pipeline in the year 1998, put up a hand bore pump and a 32 feet high light mast and also constructed bus-stop shelter and the villagers are using the same as playground which contains a tennis court to play tennis, etc. According to the Panchayat, the said land is under the custody and possession of the Panchayat and hence the Panchayat is a proper and necessary party for proper adjudication of the case.

4. The fourth respondent has filed a counter statement inter-alia contending as follows:-

The petitioner has suppressed all the material facts which are against her i.e., granting of Ryotwari Patta expired in the year 1997; the petitioner filed O.S.No.264 of 1998 before the District Munsif Court, Alandur, against Kovilambakkam Panchayat and after the Panchayat filed counter affidavit and written statement, the petitioner withdrew the suit since she knew well that she cannot succeed in the suit and the suit was dismissed on 11.04.2001; the land in question is admittedly an ‘Annadheenam Government Land’; the petitioner has purchased several acres of land and had developed a layout and named it as “Viduthalai Nagar” in an extent of 33 acres and the petitioner with an intention to grab the land in Survey No.390/2, had included the said land in the said layout by simply clubbing Survey No.390 with other survey numbers and got the approval sanctioned in L.P.DM.No.10/74 D.T.C.P. but the petitioner has no documents to prove her possession of an extent of 3.12 acres in Survey No.390/2; the petitioner is not the owner in possession of the said lands whereas the villagers of the Kolathur are actually in possession of the land; the petitioner has created bogus sale deeds and has cheated the Public by selling the plots in Survey No.390/2; the petitioner has no documents to prove her possession till 2003; therefore the allegation in the petition that revenue records are standing in her name are not correct; since the period of the fourth respondent as President of the Panchayat got expired, O.S.No.216 of 2001 was left for dismissal and hence the dismissal of the suit does not create any title or possession in favour of the petitioner; the suit in O.S.No.104 of 2005 on the file of the District Munsif Court, Alandur, was posted for trial on 29.09.2008, the villagers of Kolathur have filed O.S.No.500 of 2003 against the Revenue Divisional Officer and that the suit was also posted for trial on 15.09.2008; yet another suit in O.S.No.695 of 2007 has been filed by the residents of the Kolathur Village against the petitioner and the same is also pending; when the petitioner tried to take forcible possession of the said land with the help of rowdy elements and attempted to fence the property the villagers objected the same and hence the police officials came and prevented the illegal acts of the petitioner and the Villager Administrative Officer at the direction of the higher authorities removed the materials like granite stones, etc., and the same are lying in the Panchayat Office, but the petitioner has lodged a false complaint against the fourth respondent and others; suppressing the above real facts and in order to get police protection with a view to grab the land in Survey No.390/2 the above petition has been filed; an attempt is being made by the petitioner to take possession of the property without proving her title before the civil Court. It is further stated in the counter statement that in the said land a water head tank been constructed in 1998 by the Panchayat for providing water supply to the villagers through the pipelines laid through the land and a bus-shelter has been put up besides that the land is being used as a play ground with facility to play tennis, etc.,

5. Heard the learned counsel on either side.

6. Learned senior counsel appearing for the petitioner submitted that admittedly a case in Crime No.1490 of 2008 has been registered on the file of the third respondent against the fourth respondent-Rajendran, Vasanthi Rajendran-the petitioner in MP.No.1 of 2008 who is impleaded as fifth respondent and others; on a representation made by the petitioner to the Revenue Divisional Officer, Chengalpet, the Revenue Divisional Officer, has sent a communication dated 28.05.2008 to the second respondent herein forwarding the representation but so far no action has been taken by the second respondent to provide police protection. He further submitted that the order dated 12.05.2008 passed by the Land Survey and Settlement Officer in rejecting the petition filed by one Devendran and to set-aside the order passed by the settlement officer and the proceedings of the Revenue Divisional Officer in rejecting the petition filed by Rajendran and the rejection of the Public Interest Litigation filed by K.Kumar-the henchman of Rajendran will all show that the petitioner is in possession of the land in question.

7. Learned senior counsel for the petitioner strenuously contended that since admittedly the learned District Munsif, Alandur, has granted an order of interim injunction in I.A.No.467 of 2005 as early as on 10.04.2006 and the same is still in force, respondents 1 to 3 are duty bound to provide police protection to the petitioner and to her property but since they have failed to discharge their statutory duties the petitioner is invoking the jurisdiction of this Court under Section 482 Cr.P.C., In support of his contentions the learned senior counsel relied upon the decisions of the Apex court reported in 2006 (5) SCC 539 (HOWRAH MILLS CO. LTD. v. MD.SHAMIN) and 1993 Law Weekly (Crl.) 357 (D.Muthukrishnan v. The Superintendent of Police, Chengai-MGR Dist. & Others).

8. Countering the said submissions the learned counsel for the fourth respondent submitted that the defendants in O.S.No.104 of 2005 on the file of the District Munsif Court, Alandur, have filed IASR No.11860 of 2008 in I.A.No.467 of 2005 to set-aside the order of interim injunction granted therein and the same is pending. He further submitted that the order of interim injunction granted in I.A.No.467 of 2005 is an exparte order of injunction and the same was not passed on merits after contest; the interim order was being extended from time to time and as the Court felt that the suit is ripe for trial I.A.No.467 of 2005 was closed by extending the interim injunction till the disposal of the suit; therefore when admittedly the order of interim injunction has not been passed by the District Munsif, Alandur, on merits relying solely on that order the petitioner is not entitled to seek police protection before this Court by invoking Section 482 Cr.P.C. He further submitted that the defendants in O.S.No.104 of 2005 namely Devendran, Rajendran and Kabali are not the respondents in the above Criminal Original Petition and without admitting but assuming that the petitioner can seek police protection under Section 482 Cr.P.C., on the basis of the interim injunction granted by the Civil Court; the petitioner can claim such relief at best only against the defendants in the suit but not against persons who are not parties to the suit.

9. Learned counsel for the fourth respondent further submitted that the fourth respondent is not the party in O.S.No.104 of 2005 and as such the interim injunction granted by the District Munsif court, Alandur, is not binding on her. He further submitted that the voluminous documents produced before this Court and the nature of pleadings on either side makes it abundantly clear that there is a dispute regarding the title to the property in question and the proper forum to adjudicate the title and possession is only the Civil Court and the same cannot be adjudicated before this Court in a petition filed under Section 482 Cr.P.C., He further submitted that the land in Survey No.390/2 is in the absolute possession of the Kovilambakkam Panchayat, the fifth respondent herein and admittedly there is no order of injunction against the Kovilambakkam Panchayat. He further submitted that if an Advocate commissioner is appointed he can very well note down the physical features of the properties and it can be easily proved that the Panchayat has put up a overhead tank for supply of water to the villagers through underground pipeline, a hand bore-pump, a bus shelter and a high light mast of 32 feet height have also been put up in the land in question and the land is being used as a playground. He further submitted that the intention of the petitioner in seeking police protection is to take possession of the property by using the order of police protection but such an attempt on the part of the petitioner should not be encouraged by this Court. He further submitted that the petitioner is trying to grab illegally the property belonging to the Panchayat and the villagers.

10. Learned counsel for the fifth respondent adopted the submissions made by the learned counsel for the fourth respondent. Learned Government Advocate (Crl. Side) was also heard.

11. I have carefully considered the said submissions made by the learned counsel on either side.

12. The facts narrated above and the extensive submissions made by the respective counsel makes it abundantly clear that there is a serious dispute involving title and possession to the land measuring an extent of 1.62 acres in Survey No.390/2; civil suits in O.S.Nos.216 of 2001 and 104 of 2005 on the file of the District Munsif Court, Alandur and O.S.No.500 of 2003 against the Revenue Divisional Officer, are pending; an order of interim injunction has been granted in I.A.No.467 of 2005 in O.S.No.104 of 2005 in favour of the petitioner and against the following persons namely Devendran, Rajendran and Kabali; the above petition has been filed mainly based on the interim injunction granted by the Civil Court. Admittedly in the above criminal original petition the defendants in O.S.No.104 of 2005 are not parties. Likewise neither the fourth respondent nor the fifth respondent are parties to O.S.No.104 of 2005. In such circumstances it is un-understandable as to how the petitioner can press into service the order of injunction granted in I.A.No.104 of 2005 for getting an order of police protection against the fourth and fifth respondents herein.

13. In this context it will be useful to refer to the decision of the Apex Court reported in (2006) 4 SCC 501 (P.R.Muralidharan and Others v. Swami Dharmananda Theertha Padar and others) wherein in paragraphs 12 and 17 to 19 it has been laid down as under:-

12. It is one thing to say that in a given case a person may be held to be entitled to police protection, having regard to the threat perception, but it is another thing to say that he is entitled thereto for holding an office and discharging certain functions when his right to do so is open to question. A person could not approach the High Court for the purpose of determining such disputed questions of fact which were beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it also involved determination of disputed questions of fact.

…..

17. A writ petition under the guise of seeking a writ of mandamus directing the police authorities to give protection to a writ petitioner, cannot be made a forum for adjudicating on civil rights. It is one thing to approach the High Court, for issuance of such a writ on a plea that a particular party has not obeyed a decree or an order of injunction passed in favour of the writ petitioner, was deliberately flouting that decree or order and in spite of the petitioner applying for it, or that the police authorities are not giving him the needed protection in terms of the decree or order passed by a court with jurisdiction. But, it is quite another thing to seek a writ of mandamus directing protection in respect of property, status or right which remains to be adjudicated upon and when such an adjudication can only be got done in a properly instituted civil suit. It would be an abuse of process for a writ petitioner to approach the High Court under Article 226 of the Constitution seeking a writ of mandamus directing the police authorities to protect his claimed possession of a property without first establishing his possession in an appropriate civil court. The temptation to grant relief in cases of this nature should be resisted by the High Court. The wide jurisdiction under Article 226 of the Constitution would remain effective and meaningful only when it is exercised prudently and in appropriate situations.

18. In the case on hand, various disputed questions arose based on a deed of trust and the facts pleaded by the writ petitioner and controverted by the other side. The High Court should have normally directed the writ petitioner to have his rights adjudicated upon, in an appropriate suit in a civil court. The fact that a writ petitioner may be barred from approaching the civil court, in view of Order 9 Rule 9 of the Code of Civil Procedure, or some other provisions, is no ground for the High Court to take upon itself, under Article 226 of the Constitution, the duty to adjudicate on the civil rights of parties for the purpose of deciding whether a writ of mandamus could be issued to the police authorities for the protection of the alleged rights of the writ petitioner. A writ of mandamus directing the police authorities to give protection to the person of a writ petitioner can be issued, when the court is satisfied that there is a threat to his person and the authorities have failed to perform their duties and it is different from granting relief for the first time to a person either to allegedly protect his right to property or his right to an office, especially when the pleadings themselves disclose that disputed questions are involved. My learned Brother has rightly pointed out that the High Court was in error in proceeding to adjudicate on the rights and obligations arising out of the trust deed merely based on the affidavits and the deed itself. I fully agree with my learned Brother that the High Court should not have undertaken such an exercise on the basis that the right of the writ petitioner under Article 21 of the Constitution is sought to be affected by the actions of the contesting respondents and their supporters and that can be prevented by the issue of the writ of mandamus prayed for.

19. A writ for police protection so-called, has only a limited scope, as, when the court is approached for protection of rights declared by a decree or by an order passed by a civil court. It cannot be extended to cases where rights have not been determined either finally by the civil court or, at least at an interlocutory stage in an unambiguous manner, and then too in furtherance of the decree or order.
A careful reading of the above decision shows that a writ of mandamus directing the police authorities to give protection to the person can be issued when the Court is satisfied that there is a threat to his person and the authorities have failed to perform their duties. But when the pleadings themselves disclose that disputed questions are involved it is not open to this Court to grant relief for the first time to a person either allegedly to protect his right to property or his right to an office. It has also been laid down in the said decision that police protection cannot be extended to cases where rights have not been determined either finally by the civil court or at least at an interlocutory stage in an unambiguous manner, and then too in furtherance of the decree or order. (Underlining supplied)

14. In this case admittedly the interim injunction was passed exparte at an initial stage and thereafter though the respondents in the I.A. had filed their counter affidavit the I.A. was not taken up for final disposal. But admittedly the following order has been passed by the learned District Munsif, on 10.04.2006:

Since suit is ripe for trial injunction is extended till the disposal of the suit. Hence petition closed.

From the aforesaid order passed by the learned District Munsif, Alandur, it cannot be said that the rights of the parties at the interlocutory stage has been determined in an unambiguous manner. The order has not been passed on a consideration of the rival contentions and no finding on merits has been recorded regarding the possession of the petitioner. In such circumstances when the right of the petitioner to possession of the property has not been determined at the interlocutory stage in an unambiguous manner merely basing reliance on the said order of the learned District Munsif, Alandur, it is not open to the petitioner to seek police protection under Section 482 Cr.P.C.,

15. In yet another decision of the Apex Court reported in (2007) 6 SCC 517 (Moran M. Baselios Marthoma Mathews II and others v. State of Kerala and Others) it has been laid down as under:-

The High Court should not have gone into the rival contentions of the parties. The High Court committed a manifest error in going into the disputed questions of title as also the disputed questions in regard to the rights of a particular group to manage the Churches, in exercise of its jurisdiction, particularly, when such questions are pending consideration before competent civil courts. Such disputed questions in regard to title of the properties or the right of one group against the other in respect of the management of such a large number of Churches could not have been the subject-matter for determination by a writ court under Article 226 of the Constitution of India in the garb of grant of police protection to one or the other appellants.

If the aforesaid principles laid down by the Hon ‘ble Apex Court is applied to the facts of this case it can be stated without any hesitation or doubt that it is not open to this Court to adjudicate the disputed questions relating to title or possession of the property in question while exercising jurisdiction under Section 482 Cr.P.C. and the proper forum to decide such questions is the Civil Court and while admittedly several civil suits are pending for adjudication this Court is not inclined to invoke its jurisdiction under Section 482 Cr.P.C.,

16. Learned senior counsel for the petitioner relied upon a decision of the Apex Court reported in (2006) 5 Supreme Court Cases 539 (referred to supra). At the outset, it has to be pointed out that the facts of that case are entirely different from the facts of the case on hand. That was the case where the appellants before the Apex Court had approached the High Court of Calcutta ‘praying for the issue of a writ of mandamus directing the State and its police authorities to give the appellants the necessary protection in respect of the property of the first appellant, Howrah Mills Co. Ltd; the appellants pointed out that the Company was before the Board for Industrial and Financial Reconstruction (in short “BIFR”) for its reconstruction and a proposal to sell away a portion of its land as a means to revive the industry, had been approved by BIFR, especially since the State of West Bengal had also agreed before it to such a course; the Company owned a vast extent of land out of which a portion was to be sold and the process for sale is at an advanced stage; meanwhile, attempts were being made to interfere with the possession of the appellants over the property and in spite of requests in that behalf, the police authorities were not rendering the necessary help to the appellants; the Company employed about six thousand workers and a revival of the Company, which was still working, would be for the benefit of such a workforce also and it was all the more reason for the respondents to give the necessary protection to the appellants to protect the property from unauthorised trespassers; there was also a prayer for affording protection for the purpose of repairing the compound wall of the property and for putting up a separate boundary wall protecting the portion to be alienated; the appellants offered that they would met the expenses for the affording of such protection’. The respondents 1 to 3 in that case contested the prayer of the appellants by disputing title and possession claimed by the appellants. While considering the aforesaid facts and contentions put forth by respondents 1 to 3 the Apex Court has observed in paragraphs 9 and 10 of the judgment which reads as follows:-

“9. We do not see much force in the submission for counsel for Respondents 1 to 3 that since they are raising some claim over a fraction of the property, no relief can be granted to the appellants herein. At best, Respondents 1 to 3 herein are assignees of undivided shares from a co-owner, and prima facie, their right, if any, is to sue for partition. Prima facie, they are not entitled to enter the property or to interfere with the possession of the appellants. If the property is protected from trespassers meanwhile, it will only be to their advantage. Then they can work out their rights without obstruction.

10. It appears to us that this is a case where the State should be equally interested in seeing to it that the property was fully protected, until the scheme proposed by BIFR is implemented and the revival of the industry is ensured. It is said that six thousand workers are involved and their welfare, along with the welfare of the creditors and of the management, depends upon the scheme being put through. One would have expected the State of West Bengal to readily respond to a request for protecting the property from trespassers so as to ensure that the revival of a sinking industry is achieved and its workers are protected. Even otherwise, in a situation like the present, it is the duty of the police of the Sate to give necessary protection to the struggling industry to tide over the crises and protect its property from the interference by lawless elements and unauthorised persons.”

Therefore, it could be seen that the facts of that case are totally different from the case on hand. In that case before the Hon’ble Apex Court there was no necessity to adjudicate the disputed questions relating to title and possession to the property but on the contrary the facts in this case as stated above shows that title and possession to the property in Survey No.390/2 are being disputed. Hence in the considered view of this Court the decision will not be of any assistance to the petitioner.

17. Learned senior counsel for the petitioner relied upon a decision reported in 1993 Law Weekly (Crl.) 357 (referred to supra), wherein basing reliance on an order of interim injunction police protection was sought for and an objection was raised that since the order relied upon was only an interim order and the same had not been made absolute, the respondents therein should not be directed to render police protection but the said contention was rejected by the learned Judge holding that there is no difference between the interim order or the order made absolute by the Civil Court. Basing reliance on the aforesaid decision the learned senior counsel for the petitioner sought to repel the objections raised by the fourth and fifth respondents. But in the light of the law laid down by the Apex Court in the decision referred to supra and as pointed out above since the rights of the parties have not been determined in an unambiguous manner the said decision of the learned Judge of this Court, in the considered view of this Court, will not be of any assistance to the petitioner. Yet another important aspect which should be pointed out at this juncture is that in the very same decision the learned Judge in paragraph 4 has observed as under:-

4. … The learned District Munsif has also failed to order police protection. Otherwise there is no need at all for the petitioner to file the present application. Public will lose confidence in judiciary if such applications are not disposed of urgently. Learned District Munsif, Poonamallee shall not keep such applications in future without passing any orders. In the circumstances, the petition is allowed.
The aforesaid observation of the learned Judge makes it abundantly clear that had the District Munsif disposed of the application filed before him seeking police protection the learned Judge would not have exercised his jurisdiction under Section 482 Cr.P.C. It has to be pointed out that admittedly the petitioner herein had not filed any application under Section 151 C.P.C., before the learned District Munsif, Alandur, seeking police protection to give effect to the order of interim injunction granted in I.A.No.467 of 2005.

18. In this context it is pertinent to point out that though this Court in the decision reported in 1969 Crl.L.J. 206 (Mad.) (Chelpark Company Ltd. v. Commissioner of Police) has laid down that to secure ends of justice, the High Court in its inherent powers can direct the police officer to do his duty where he has failed to do but it is pertinent to point out that the facts of that case are totally different from the facts of this case on hand. In Chelpark case, petitions were filed under Section 561-A Cr.P.C. against the respondents, the Commissioner of Police, Madras and the Assistant Commissioner of Police (Law and Order) Southern Range, Madras praying for a direction to the respondents to do their duty and evict the labourers (27 persons) from the factory premises of the petitioner at the close of working hours. By way of abundant caution in case it was felt that the Criminal Miscellaneous Petition could not afford an adequate remedy, the petitioner also filed a writ petition for the issue of Writ of Mandamus.

19. In Chelpark case, twenty seven employees of the company assembled inside the factory and refused to carry out their duties at the instigation of the Union representing the said twenty seven persons and commenced what is called stay-in-strike. The said employees also obstructed a lorry laden with packing cases consigned to the petitioner from entering the factory and the lorry had to return with the packing cases. Further, seven female employees were prevented from leaving the factory and were gheraoed for nearly 2 = hours and it was further alleged that some of the striking workmen surrounded the petitioner’s Accountant and abused him in an attempt to intimidate him. In spite of the complaint being lodged with the police, no action was taken. Hence, the petitioner filed a suit before the City Civil Court, Madras, for an injunction (a) restraining the striking workmen from obstructing the petitioner’s lawful discharge of duties and preventing its loyal workers from carrying on their duties (b) restraining the said persons from interfering with the petitioner’s business, and (c ) for a direction to the said twenty-seven persons to leave the petitioner’s factory premises after the working hours. Pending suit, on the application filed by the petitioner, the Court granted an interim injunction restraining the striking workmen from collecting themselves in the premises after the working hours. The bailiff of the City Civil Court went to the petitioner’s factory premises and in the presence of the Police Constables sought to serve the order of interim injunction on the striking workmen, but they refused to receive the order and hence, the bailiff affixed a copy of the notice on the notice board of the factory. The striking workmen, even after the order of interim injunction was brought to their notice, refused to leave the factory premises after the working hours. In such circumstances, the petitioner approached the police authorities to give assistance in evicting the striking workmen from the factory premises. But no assistance was rendered and hence, the above petitions were filed.

20. In the aforesaid factual background and considering the law on the subject, the learned Judge in paragraphs 38 to 41 of the Judgment has laid down as under:-

38……. It is further contended that the matter is sub judice as the petitioner has gone to a Civil Court and the matter is pending before it. The pendency of the suit cannot be a bar for taking action by the police if cognizable offences are disclosed or a breach of the peace is likely to occur. In this case, the order of injunction was passed against the striking workmen from collecting within the factory premises after working hours. The police should have given effect to the order of injunction by dispersing the striking workmen against whom the said order was passed. It is, therefore, not necessary for the police to consider whether any alternative remedy is available to the petitioner or any dispute is pending before any Court. They are only concerned to see whether the incidents complained of disclosed a cognizable offences were committed or likely to be committed. If the police had come to the conclusion that the striking workmen had committed a cognizable offence, it was their statutory duty to take appropriate action.

39. It appears that in this case the respondents have been under the impression that the striking workmen remaining in the factory premises after working hours does not disclose a cognizable offence. If they had known that a cognizable offence was committed, they would have certainly taken necessary action. As I have now found that the striking workmen had committed the offence of criminal trespass and they formed themselves into an unlawful assembly by remaining after working hours in the factory premises, the respondents would take necessary appropriate action. The respondents have got various measures in giving relief to the petitioner. They can direct the striking workmen squatting within the factory premises after working hours to disperse and remove them from the premises of the factory. As already stated, under Section 127 Criminal Procedure Code the officer-in-charge of a Police Station may command any unlawful assembly likely to cause disturbance of the public peace , to disperse. In this case, if the petitioner and the willing workmen had resisted the striking workmen remaining after working hours in the factory, it would have resulted in a breach of the peace. This is a fit case where the respondents can take action under Section 127(1) Criminal Procedure Code. They may arrest the striking workmen as cognizable offences are disclosed and investigate and file charge sheets, if there is a prima facie case. It is a matter for the police in this case to decide what they should do and what course they should adopt in order to give an effective relief to the petitioner.

40. It is no doubt true that the capital and labour should contribute equally for its development and progress and the rights and interest of both the employer and employees should be protected. But, if they transgress the bounds of law and create an atmosphere likely to affect law and order, which are the foundations of the civilised society, the police should not lag behind to do its statutory duty of taking appropriate action contemplated by law. Otherwise, there will be chaos and confusion in the country affecting the normal avocations of people. The powers and duties of the police are directed, not to the interest of the police, but to the protection and welfare of the public.

41. As I have found in this case that the striking workmen remaining after working hours in the factory premises committed the offence of criminal trespass and formed themselves into an unlawful assembly, the respondents are directed, to disperse and remove such of those persons who remain in the said premises after working hours, if necessary with the assistance of their subordinates, and take such appropriate action as they may think fit in the circumstances of the case. Crl.M.P.No.2250 of 1967 is allowed.

A careful reading of the above decision makes it abundantly clear that no disputed questions were involved and the right to property or possession of it was not sought to be adjudicated in that case. Adjudication of issues relating to possession or title to the factory premises was not involved. But the only issue, that too a legal issue, which came up for consideration was the right of the striking workmen to remain inside the factory premises after the working hours and whether their refusal to leave the factory premises after the working hours will tantamount to trespass and the other alleged acts amount to cognizable offences or not. Only in such circumstances, after holding that their act will amount to criminal trespass and unlawful Assembly police protection was granted and therefore, the law laid down in that decision cannot be applied to the facts of this case which as pointed above are totally different, where disputed questions of fact relating to possession and title to the property in question are involved.

21. It has to be pointed out that the High Court in exercising its extraordinary powers under Section 482 Cr.P.C., will take into consideration the gravity of the injustice brought to its notice and non-availability of an effective remedy otherwise. The power under Section 482 Cr.P.C., will be used sparingly in deserving cases. Hence it has to be seen as to whether the petitioner has got an alternative effective remedy or not.

22. In this context it will be useful to refer to a decision of the Division Bench of this Court reported in 1993 (1) MLJ 274 (Sri-la-Sri Sivasubramanyanada Swami v Sri-la Sri Arunachalasamy) wherein the Division Bench of this Court in paragraphs 22 and 23 has laid down as under:-

22. However, there is no provision in the Code providing for the implementation of the order of temporary injunction or decree for perpetual injunction granted by the courts. When there is no specific provision of law which is sufficient to implement the order of temporary injunction or the decree for perpetual injunction granted by the court, we do not see why the provisions of Sec. 151 of the Code cannot be invoked for the said purpose to render justice or to redress the wrong, because, the courts should not only have the power to pass an order, but also should have the power to implement the said order. Therefore, when a party has obtained an order of temporary injunction from a court under O.39, Rule 1 of the Code and the other party against whom the order of injunction is passed disobeys the same, the aggrieved party can certainly approach the court invoking the power of the court under Sec. 151 and pray for police aid for the enforcement of the order of temporary injunction. When it is brought to the notice of the court that the enforcement of the order of temporary injunction is sought to be prevented or obstructed, the court in exercise of the inherent powers under Sec. 151, can direct the police authorities to render all aid to the aggrieved party in the enforcement of the order of the injunction granted by the court in order to render complete justice. It must be remembered, by ordering police help to the party who has obtained an order of temporary injunction, the court merely takes the follow-up steps to implement its earlier order of injunction. In appropriate cases, where the court finds that a party who had secured an order of injunction from the court is not in a position to have its full benefit owing either to obstruction or non-cooperation of the other side, it is always open to the court to direct the police authorities to see that its order is obeyed. As observed by the Full Bench of this Court in Century Flour Mills Ltd. v. Suppiah (1975) 2 M.L.J. 54, when there is a violation of an order of injunction granted by the civil court, or when something has been done in disobedience of such an order of injunction, it is the duty of the court as a matter of judicial Policy to undo the wrong done in disobedience of the court’s order and the power to enforce the order of injunction by ordering police aid is available under Sec. 151 of the Code.

23. In view of the above position of law, it has to be held that in appropriate cases, directions under Sec. 151 of the Civil Procedure Code can be issued by the civil courts to the police authorities to extend their aid and assistance in the execution of decrees and orders or to render aid to aggrieved parties for the due and proper implementation of the order of temporary injunction or a decree for permanent injunction granted by civil courts.

23. In yet another decision reported in 1996-1-L.W. 52 (The Coimbatore Pioneer Mills Ltd v. Chandra Textiles Ltd.), His Lordship Mr. Justice M.Srinivasan, as His Lordship then was, has observed as under:-

6. … Further, police aid cannot be granted simultaneously with an order of injunction. Only if the court is satisfied that the order of injunction passed by it is not obeyed by the other party and the party, who has secured the order, is not in a position to enjoy the benefits of the order because of the conduct of the other party and police interference is absolutely necessary, the court can grant an order of police aid. …

24. In the Division Bench judgment referred to above it has been laid down that, in appropriate cases, where the court finds that a party who had secured an order of injunction from the court is not in a position to have its full benefit owing either to obstruction or non-cooperation of the other side, it is always open to the court to direct the police authorities to see that its order is obeyed. Therefore, when an effective and alternative remedy is available to the petitioner to approach the Civil Court under Section 151 CPC and seek police protection by satisfying the Court that she is not in a position to have the full benefit of the order granted in her favour because of the obstructions or non-cooperation of the defendants, it is not open to the petitioner to approach this Court under Section 482 Cr.P.C. If a petition is filed under Section 151 CPC before the Civil Court, then it will be open to the civil court to consider the objections raised by the other side and the Court can also appoint an Advocate Commissioner to find out the physical features of the properties and decide as to whether the police protection should be provided or not. Such a detailed enquiry or adjudication of the disputed questions of fact cannot be gone into by this Court while exercising jurisdiction under Section 482 Cr.P.C., Therefore this Court is not inclined to direct respondents 1 to 3 to provide police protection to the property of the petitioner.

K.MOHAN RAM, J.,

srk

25. For the aforesaid reasons, the above criminal original petition fails and the same is dismissed. But however it is open to the petitioner to make a representation to the first respondent seeking police protection to her life and security and if such a representation is received the first respondent shall cause a proper enquiry to be made within ten days of the receipt of such representation and if such enquiry reveals the necessity to provide police protection to the petitioner’s life and liberty then it should be provided.

08.12.2008
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srk

1. The Commissioner of Police (Sub-urban), St. Thomas Mount, Chennai

2. The Assistant Commissioner of Police, Madipakkam Range, Chennai

3. The Inspector of Police, Pallikaranai Police Station, Chennai 600 302

Pre-Delivery Order in
Crl.O.P. No.20980 of 2008


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