Mrs. P. R. Kavitha v. State of Tamil Nadu, rep. by Secretary to Government (Home), Secretariat & Another
2009-10-08
M.SATHYANARAYANAN, PRABHA SRIDEVAN
body2009
DigiLaw.ai
Judgment :- Prabha Sridevan, J. The present Application for Review is filed at the instance of the writ petitioner who prays for of review the order dated 30.4.2008 made in W.P.No.28763 of 2005. 2. In W.P.No.28763 of 2005, the petitioner herein prayed for the issuance of a writ of mandamus directing the 6th Respondent therein namely the Central Bureau of Investigation to conduct a comprehensive investigation into the grave allegations levelled therein besides a de novo investigation of the cases in Crime Nos.482/1997, 1435/1999, 70/2005, 100/2005 registered by Karumalaikudal Police Station, Crime Nos.1059/2001, 552/2002 and 317/2003 registered by Meheri Police Station, Crime No123/2000 registered by Mettur Police Station and Crime No.713/2005 registered by Hasthampatti Police Station, Salem District, respectively. 3. According to the petitioner, her father is a Head Constable and her mother is a Inspector of Police. The petitioner did her graduation at Saradha College, Salem between 1997-2000 and did her Law degree at Central Law College at Salem, between 2000-2003. The petitioner is attached to the office of Mr.V.R.Chandrasekar, who is the President of Criminal Bar Association, Salem, Salem District. It is the case of the petitioner that the Tamil Nadu Police is obstructing her from discharge her duties as a lawyer. It is also a case of the petitioner a number of false cases has been foisted against his uncle Thiru.Anbuselvam who is running a power loom unit at Kunjandiyur, is also President of Labour Union of Travancore Chemicals Limited, and two other companies namely SISCOL and CHEMPLAST at Mettur and since she is assisting him in defending those false cases, she is also being harassed by the police by foisting false cases against her. 4. During the course of hearing in the writ petition, learned counsel appearing for the petitioner has prepared an index of cases and sought appropriate relief and the same was marked as document (D). The cases pertain to Crime No.482/1997, Crime No.1435/1999, Crime No.317/2003 and intimidation regarding fake encounter and petitioners appearance in the Fast Track Court No.I, Salem. 5. A counter affidavit has been filed on behalf of the State submitting among other things that the petitioners sister namely Amudha was given in marriage to one Anbuselvam. Against Thiru.Anbuselvam, 17 cases have been registered out of which 5 cases are murder cases.
5. A counter affidavit has been filed on behalf of the State submitting among other things that the petitioners sister namely Amudha was given in marriage to one Anbuselvam. Against Thiru.Anbuselvam, 17 cases have been registered out of which 5 cases are murder cases. Since due to the threat at the instance of Anbuselvam, the prosecution was not able to secure/sustain enough evidence to get him convicted. It is the specific case of the Respondents that Anbuselvam is a history sheeted Rowdy. The petitioner under the guise of order of police protection misused the same and threatening the witnesses. It is further submitted that the petitioner is also misusing her position as Advocate and threatening the police officers. 6. This Court after going through the materials available on record and after hearing rival submissions has passed the following order:- "In the result, (i) In the first matter, which relates to the attack on the petitioner, a complaint has been given to the Chief Judicial Magistrate, Erode and the learned Chief Judicial Magistrate shall deal with it in accordance with law. (ii) In the second matter, (Cr.No.1435 of 1999) the complainant is the mother of Anbuselvan and not the petitioner. It is for the complainant to proceed as she deems fit. The petitioner cannot seek any relief on behalf of a third party. (iii) As regards the third matter, (Cr.No.317/2003) relating to alleged illegal detention, a private complaint had been filed. The petitioner may revive it or it is open to the petitioner to seek her remedy in the appropriate forum where the facts leading to the detention and discharge can be proved by evidence. (iv) As regards the fourth issue, regarding intimidation to fake encounter, it is open to the petitioner to apply for whatever documents relating to Court proceedings including the one under Section 110 Cr.P.C. and the concerned Court will deal with it in accordance with law. (v) Finally, in the last matter, which relates to alleged outrage of the petitioners modesty and threat to foist cases, the petitioner has given a complaint. The matter shall be investigated thoroughly and dealt with in accordance with law. All the writ petitions are disposed of accordingly." 7.
(v) Finally, in the last matter, which relates to alleged outrage of the petitioners modesty and threat to foist cases, the petitioner has given a complaint. The matter shall be investigated thoroughly and dealt with in accordance with law. All the writ petitions are disposed of accordingly." 7. The learned counsel appearing for the petitioner would primarily contend that regarding registration of cases in Crime No.317/2003, no private complaint in S.C.No.257 of 2008 has been filed by Anbuselvam and misrepresentation on the part of the Respondents made this Court to pass an order directing the petitioner to seek her remedy in the appropriate forum. It is the further submission of the learned counsel appearing for the petitioner, in view of the said misrepresentation proceedings under Section 340 of Cr.P.C. ought to have been initiated against the Respondents for furnishing false statement before this Court. 8. The learned counsel appearing for the petitioner would also submit that in Crime No.317/2003 though the petitioner was arrested, later on, her name was removed from the charge sheet. In view of the illegal detention, she should be adequately compensated. Learned counsel also filed his written submissions. 9. Per contra, the learned Special Government Pleader would submit that this Court while disposing of the writ petition, has taken into consideration all the relevant factors and passed an order granting liberty to the petitioner to proceed further in accordance with the law and no interference is warranted in exercise of power of review. 10. This Court has carefully considered the submissions made by the learned counsel appearing on either side, perused the typed set of documents filed in support of the review petition and also the written submissions filed on behalf of the petitioner. 11. As regards the scope of review, the following judgments are relevant. In Moran Mar Basselios Catholicos v. Mar Poulose Athanasius reported in ( AIR 1954 SC 526 ) it has been held as follows: “32. … Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein.
… Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely, (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. It has been held by the Judicial Committee that the words ‘any other sufficient reason’ must mean ‘a reason sufficient on grounds, least analogous to those specified in the rule’.” 12. In Ajit Kumar Rath v. State of Orissa reported in (1999) 9 SCC 596 the Honble Supreme Court of India held that the power of Review is similar to one conferred upon a civil court and held as follows:- “30. The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with Order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression ‘any other sufficient reason’ used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the Rule. 31.
It may be pointed out that the expression ‘any other sufficient reason’ used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the Rule. 31. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment.” 13. In State of West Bengal vs. Kamalsengupta reported in (2008) 8 Supreme Court Cases page 612, the Honble Supreme Court of India after taking into consideration its various pronouncements had culled out the following principles, which are as follows: “(i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a civil court under Section 114 read with Order 47 Rule 1 CPC. (ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise. (iii) The expression “any other sufficient reason” appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds. (iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f). (v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review. (vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court. (vii) While considering an application for review, the tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/ decision as vitiated by an error apparent. (viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.” 14.
(viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.” 14. In the light of the legal principles enunciated in various pronouncements of the Honble Supreme Court of India, this Court is considering the plea of the petitioner as to whether the order dated 30.4.2008 made in W.P.No.28763 of 2005 is to be reviewed or not? 15. The main plank of attack projected by the learned counsel appearing for the petitioner is that regard to the registration of a case in Crime No.317/2003, no private complaint has been filed in S.C.No.257 of 2008 on the file of the Court of Chief Judicial Magistrate-Human Rights Court, Salem and the said private complaint pertains to some other case. In view of the said misrepresentation, this court was mislead to pass the orders in the main writ petition and therefore it requires review according to the learned counsel appearing for the petitioner. 16. The learned counsel appearing for the petitioner also placed reliance upon the judgment of the Honble Supreme Court of India reported in 1994(2) Crimes page 106 – Joginder Kumar vs. State of Uttar Pradesh. With regard to the violation of human rights while indiscriminating arrest on the part of the police the Honble Supreme Court of India has issued instructions with regard to the right of the arrested persons, which are as follows:- “1. An arrested person being held in custody is entitled, if he so requests to have one friend relative or other person who is known to him or likely to an interest in his welfare told as far as is practicable that he has been arrested and where is being detained. 2. The Police Officer shall inform the arrested person when he is brought to the police station of this right. 3. An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly. It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.
These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly. It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with. The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various Police Manuals.” Since the arrest and detention of the petitioner in Crime No.317/2003 was in per se violation of the above said mandatory guidelines issued by the Honble Supreme Court of India, the learned counsel appearing for the petitioner would further submit that appropriate action is to be taken against the concerned police officials and also compensation is to be paid to the petitioner. The learned counsel for the petitioner also prays that the order impugned may please be reviewed and the investigation is to be transferred to the CBI for proper and effective investigation. 17. In the written submissions, the focus is on the alleged illegal detention of the petitioner on 24. 2003, when she was not informed about the grounds of arrest and no legal assistance was provided to her to formulate her defence. According to the written submissions, the arrest and detention was illegal and contrary to the rights enshrined in the Constitution of India. It is also alleged that the Judicial Magistrate had remanded her to custody without providing medical aid and that she had remained so in custody for over one month. The report of the expert proves that the alleged weapon was a toy pistol and in the final report, no case was made out against the petitioner and the case was dropped. According to the learned counsel, this itself would prove that she had been taken into custody illegally and with malicious intent and that since an investigating officer should know the difference between a toy pistol and a fire arm, the entire police action is malice in law. It is reiterated in the written submissions that the petitioners right to practice her profession cannot be restrained and that several cases were foisted against her and she was tortured and humiliated.
It is reiterated in the written submissions that the petitioners right to practice her profession cannot be restrained and that several cases were foisted against her and she was tortured and humiliated. We have found in the order under review that the petitioner has been appearing in criminal courts in Salem and Mettur and therefore, there is no evidence to show that she was prevented from carrying on her duties as an advocate and there is nothing in the grounds of review to indicate that there is an error apparent on the face of the record in this regard. 18. As regards the illegal detention, the petitioner has made several allegations, which have been denied by the police. If in the order under review we had restricted ourselves by directing the petitioner to revive the private complaint without any further directions or without giving any further liberty, there may be some justification for the petitioner to seek a review of the order on the ground that there was no private complaint and therefore, the question of the private complaint being closed would not arise and therefore, the matter had to be reviewed. Even if there was no private complaint with regard to the illegal detention, when the matters alleged are not admitted, it is necessary that the facts leading to detention and discharge must be proved by evidence. Even as per her own affidavit, though the petitioner was arrayed as an accused in the first instance, it is evident that the police found that the evidence was not sufficient and they had dropped her name from the array of accused in the final report. If so, it is difficult for us to presume that the mere fact that she was shown as an accused is sufficient to prove that the act of the police was vitiated by malice. It is always open to the petitioner to prove her case in accordance with law, which is what we have directed in the order under review. Therefore, we do not see any reason why we have to review the said order. 19. Therefore, we are of the considered opinion that the impugned order does not require any review.
It is always open to the petitioner to prove her case in accordance with law, which is what we have directed in the order under review. Therefore, we do not see any reason why we have to review the said order. 19. Therefore, we are of the considered opinion that the impugned order does not require any review. The primary ground of attack that as regards registration of Crime No.317/2003, a false representation was made as if a private complaint has been registered, is without substance as a perusal of the counter affidavit would reveal that no such statement has been made. Assuming that the learned Government Pleader had made such a representation on instructions, this court has not foreclosed the option and in fact granted liberty to the petitioner to seek remedy in the appropriate forum where the facts leading to the detention and discharge can be proved by evidence. A perusal of the grounds of review would reveal that the impugned order passed in the writ petition is sought to be challenged on the ground that the decision was erroneous on merits. Assuming that the impugned order is erroneous on merits, the remedy available to the petitioner is only to prefer an appeal and not by way of review. As regards the compensation and action of perjury, this court, on a perusal of the averments made in the affidavit and the counter affidavit, is of the considered opinion that the facts projected by the petitioner are seriously disputed by the Respondents and therefore, the same cannot be agitated by way of writ petition. Therefore, this court, in the impugned order, has rightly directed the petitioner to seek remedy in an appropriate forum where the facts leading to the alleged illegal detention and her discharge in Crime No.317/2003 can be proved by evidence. 20. There is no error apparent on the face of the record so as to review the order passed in the main writ petition and this Court finds no merits. Accordingly, the review petition is dismissed. But in the circumstances, there will be no order as to costs.