BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10/11/2006 CORAM: THE HONOURABLE MR.JUSTICE M.JEYAPAUL CRL.O.P.(MD).No.4529 of 2006 and M.P.(MD).Nos.1 and 2 of 2006 K.Dhamodharan ... Petitioner Vs. R.V.Narbabi ... Respondent Prayer Criminal Original Petition filed under Section 482 of the Criminal Procedure Code, praying to call for the records relating to P.R.C.No.38 of 2005 on the file of the learned Judicial Magistrate No.I, Thanjavur, quash the same. !For Petitioner ... Mr.S.Nagamuthu ^For Respondent ... Mr.K.Thirumalairaj :ORDER
The petition is filed seeking quashment of the criminal proceedings in
P.R.C.No.38 of 2005 on the file of the learned Judicial Magistrate No.I,
Thanjavur.
2. The respondent/complainant preferred a complaint before the Court of
the Chief Judicial Magistrate, Kumbakonam, which was formerly the Human Rights
Court, under Section 2 (d) of the Protection of Human Rights Act r/w Section 200
of the Code of Criminal Procedure. Thereafter, the entire records in the case
was sent to the Court of the Principal District Judge, Thanjavur which was
notified as the Human Rights Court in the District of Thanjavur. The latter
chose to send the entire case records to the Judicial Magistrate No.I, Thanjavur
to adhere to the committal proceedings, as the Human Rights Court was not vested
with the power to take up the private complaint directly on file without
committal proceedings.
3. The sum and substance of the complaint is that the petitioner/accused
herein, who was serving as Station House Officer at Thanjavur Town East Police
Station, entertained a false complaint given by one Ashokkumar in connection
with the introduction of one Sethu Ramachandran by the complainant to the said
Ashokkumar and in the guise of such a complaint preferred by Ashokkumar, the
complainant was forcibly taken by the accused to the police station on
19.04.2003. The accused and his subordinates tortured the complainant to give a
cheque and put his signature in stamp papers. The complainant was not given even
food by the accused. The accused tortured and harassed the complainant for
eight long hours on 19.04.2003 in order to obtain a cheque and his signature in
stamped papers. The accused let off the complainant only in the evening of
19.04.2003 after forcibly obtaining his signature in two stamp papers dated
28.03.2003. The accused violated the fundamental rights of the complainant in
keeping him in illegal custody. Further, the accused committed custodial
violence by torturing and harassing the complainant on 19.04.2003.
4. With the above allegation, the complainant has sought criminal action
as against the accused for an offence under Section 2(d) of the Protection of
Human Rights Act, 1993 and also compensation of Rs.1,00,000/- for the torture
and harassment meted out to the complainant.
5. As the committal proceedings are in progress, the present petition has
been filed by the accused seeking quashment of the whole proceedings in
P.R.C.No.38 of 2005 on the file of the learned Judicial Magistrate No.I,
Thanajavur.
6. The learned counsel for the petitioner/accused would vehemently submit
that any complaint regarding the violation of human rights shall be submitted
only before the State Commission constituted under the Protection of Human
Rights Act, 1993. No private complaint would lie as against the public servant.
The protection given under the Human Rights Act for the public servant will be
in peril, if such a private complaint is entertained by the Judicial Magistrate.
The private complaint filed by the complainant has no sanction of law. He would
further contend that the entire gamut of facts and circumstances spoken to by
the complainant in the private complaint does not reflect violation of any human
rights. On that score also the complainant cannot prosecute the Inspector of
Police, who was just performed his duty on receipt of complaint against the
complainant. Therefore, the whole proceedings which culminated in P.R.C.No.38 of
2005 on the file of the learned Judicial Magistrate No.I, Thanjavur may be
quashed, he would lastly submit.
7. The learned counsel for the respondent/complainant would contend that
the Human Rights Commission constituted under the Human Rights Act, of course,
has the power to enquire into the violations of human rights alleged against a
public servant on the basis of the complaint given by an aggrieved person. But
the plenary power of the criminal Courts to entertain the complaint alleging
commission of criminal offence has not been taken away by the Protection of
Human Rights Act, 1993. All the offences arising out of violation of human
rights will have to be dealt only by the Human Rights Court specially
established for the purpose of speedy trial of such cases, as contemplated under
Section 30 of the Protection of Human Rights Act, 1993. Therefore, he would
contend that the petitioner has come forward with the present petition seeking
quashment just to stall the proceedings initiated by the complainant, who is
aggrieved.
8. As per Section 2(d) of the Protection of Human Rights Act, 1993, “Human
Rights” means the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution or embodied in the International
Covenants and enforceable by Courts in India.
9. The Human Rights Court specified under Section 30 of the said Act is
the Human Rights Court as per the definition found in Section 2(e) of the said
Act.
10. The legislature in its wisdom has thought it fit to constitute Human
Rights Court for the speedy trial of the offences arising out of violation of
human rights in the State.
11. Two important aspects are very obvious under Section 30 of the
Protection of Human Rights Act, 1993. The Human Rights Courts have been
established for the purpose of speedy trial of the offences arising out of
violation of human rights. Secondly, all the offences arising out of violation
of human rights will have to be dealt only by the Human Rights Courts
established under Section 30 of the said Act. The nature of offences arising out
of violation of human rights have not been defined under the Protection of Human
Rights Act, 1993.
12. State Human Rights Commission is constituted as stipulated under
Section 21 of the said Act. Coming to the functions and powers of the
Commission, it is seen that under Section 12 of the said Act, the Commission is
authorised to inquire, suo motu or on a petition presented to it by a victim or
any person on his behalf, into the complaint of violation of human rights or
abetment thereof or negligence in the prevention of such violation by a public
servant.
13. The Commission may initiate an enquiry under Section 17 of the said
Act, if it considers necessary to do so, having regard to the nature of the
complaint. The follow up measures to be taken by the Commission after the
enquiry is dealt under Section 18 of the Act. Where the inquiry discloses, the
commission of violation of human rights or negligence in the prevention of
violation of human rights by a public servant, the Commission may recommend to
the Government or authority concerned for initiation of proceedings for
prosecution or such other action as the Commission may deem fit.
14. It is pertinent to refer to the definition of complaint found under
Section 2(c) of the State Human Rights Commission, Tamil Nadu (Procedure)
Regulations, 1997. It reads as follows:
“2(c) “Complaint” means all petitions or communications, received by the
Commission from a victim or any other person on his behalf, in person by post or
by telegram or by Fax or by any other means whatsoever, alleging violation or
abetment thereof or negligence in the prevention of such violation, by a public
servant, of all or any of the human rights defined in Section 2(d) read with
Section 21(5) of the Act.”
15. The cumulative reading of Section 12(a) and 18 of the Protection of
Human Rights Act, 1993 and Section 2(c) of the State Human Rights Commission,
Tamil Nadu (Procedure) Regulations, 1997 would reveal that the State Commission
has the authority to deal with a complaint as against a public servant. The
Division Bench of our High Court in Santosh Hospitals Private Limited v. State
Human Rights Commission 2005(3) M.L.J. 406 has chosen to set aside the
proceedings taken by the State Human Rights Commission as against a private
individual. The Division Bench has categorically held that the Protection of
Human Rights Act, 1993 contemplates initiation of proceedings by the State Human
Rights Commission only as against a public servant and not against a private
individual.
16. If we closely read the entire Protection of Human Rights Act, 1993,
one thing is loud and unambiguous. The Human Rights Commission has the power to
enquire into complaint of violation of human rights as against a public servant.
But the Human Rights Court specially established under Section 30 of the said
Act has the power to try offences arising out of violation of human rights. When
an offence has been committed against the background of human rights violation,
the Commission has virtually no power to deal with such offences to its logical
end except holding an enquiry as against the public servant and recommending for
necessary action by the State Government.
17. There is no provision in the Protection of Human Rights Act, 1993
which speaks about routing of all the complaints relating to the offences
arising out of human rights only through the State Human Rights Commission
constituted under the Act. Even if an offence arising out of the human rights
was committed against a public servant, it is not mandatory that such aggrieved
person should route his complaint only through the Human Rights Commission, as
the Human Rights Commission has the power to deal with only the violations of
human rights and not the offences arising out of human rights. If at all the
legislature in its wisdom has meant to route all the complaints relating to
violation of human rights through the State Human Rights Commission, it would
have covered the complaints preferred as against the private individuals also.
What has been contemplated under the definition ‘complaint’ in Section 2(c) of
the State Human Rights Commission, Tamil Nadu (Procedure) Regulations, 1997 is
only the complaint alleging violation or abetment of human rights and not
complaints traversing offences arising out of human rights violation.
18. The offences under the Indian Penal Code are tried by various Courts
in the judicial hierarchy in the State. The Special Courts have been constituted
under Section 30 of the Act, as the legislature has thought it fit to dispose of
those cases at the earliest point of time, as it involves violation of human
rights also.
19. No special procedure has been contemplated under the Protection of
Human Rights Act for the trial of offences arising out of human rights. The
powers of the Human Rights Courts also have not been codified under the Act.
Therefore, when the criminal Courts in the judicial hierarchy in the State have
the power drawn under the Code of Criminal Procedure to deal with the offences
under the Indian Penal Code, the Human Rights Court constituted under the
special statute sans any special procedure enshrined therein has to fall back on
the Code of Criminal Procedure. The definition under Section 2(d) of the Code of
Criminal Procedure, 1973 will apply to the complaint preferred alleging
commission of offences arising out of human rights violation also. Section 193
of the Code of Criminal Procedure puts an embargo on the Court of Session to
take cognizance of any offence unless the case has been committed to it by a
Magistrate under the Code of Criminal Procedure.
20. This Court has held in Dr.S.Sourubarani & another v. C.Selvi 2005(1)
L.W.(Crl.) 139 that the Human Rights Court has no power to entertain the
complaint directly without the committal proceedings taken by the Judicial
Magistrate concerned.
21. This Court in Crl.O.P.No.3473 of 2006 dated 20.04.2006 has directed
the learned Judicial Magistrate concerned to take the private complaint alleging
commission of offences arising out of Human Rights on file for the purpose of
committing the case to the specially constituted Human Rights Court for trial.
22. To sum up the Human Rights Commission has the authority to enquire
into only the violations of human rights as against a public servant, suo motu
or on a complaint preferred before the Commission. A complainant is not obliged
to lodge a complaint against a public servant, if an offence arising out of
violation of human rights is committed.
23. The Human Rights Court specially constituted under the Act shall deal
with all the offences arising out of human rights violation. As the Human Rights
Court has no power to entertain a complaint directly as it has no original
criminal jurisdiction, the private complaint will have to be preferred only
before the Judicial Magistrate concerned, who shall initiate the committal
proceedings and commit the case for trial before the Human Rights Court. The
Judicial Magistrate concerned under Section 190 r/w Section 200 of the Code of
Criminal Procedure has every authority to entertain the private complaint filed
under the Human Rights Act for the purpose of committing the same for trial
before the Human Rights Court.
24. Coming to the submissions made by the learned counsel for the
petitioner that no offence under the Protection of Human Rights Act, 1993 was
committed by the petitioner, it is found, on a thorough perusal of the complaint
given by the complainant that he has specifically stated that he had been
forcibly taken by the accused and was kept in the police station without even
providing food for about eight long hours on 19.04.2003. The further allegation
is that he was tortured and harassed to give cheque and subscribe his signature
in stamp papers and accordingly he had to sign in two stamp papers dated
28.03.2003. Illegal custody of the petitioner in the guise of a complaint has
also been alleged in the complaint. Violation of right to life, liberty and
dignity of the complainant is made out in the aforesaid allegations levelled
against the accused.
25. Detaining a person in the police station for eight long hours without
providing any food may not attract any offence under the Indian Penal Code. But
definitely it constitutes violation of human right to life, liberty and dignity
of an individual. Therefore, it is not a simple case where some offences under
the Indian Penal Code have been allegedly committed by the accused as against
the complainant. Human Rights Violation as per the definition of Section 2(d) of
the Protection of Human Rights Act, 1993 is prima facie made out in the
complaint.
26. Under the above facts and circumstances, it is found that the learned
Judicial Magistrate No.I, Thanjavur has rightly entertained the private
complaint for processing it for the purpose of committing the same to the Human
Rights Court for trial. The accused has simply filed this petition with the
above untenable and unsustainable pleas just to protract the proceedings.
27. In the result, the petition seeking quashment of the criminal
proceedings in P.R.C.No.38 of 2005 on the file of the learned Judicial
Magistrate No.I, Thanjavur stands dismissed. Consequently, the connected
miscellaneous petitions are also dismissed.
sml
To
The Judicial Magistrate No.I,
Thanjavur.