S. Aslam v. State of Kerala, Represented by the Secretary, Department of Home Affiars, Thiruvananthapuram
2011-02-17
S.S.SATHEESACHANDRAN, THOTTATHIL B.RADHAKRISHNAN
body2011
DigiLaw.ai
Judgment :- Thottathil B. Radhakrishnan, J. 1. This writ petition is filed alleging that the 4th respondent Assistant Sub Inspector of Police has ill-will against the petitioners on account of certain reasons attributed to a crime case registered as Crime No. 3028/2010 of the Kottarakkara Police station. The 1st petitioner is stated to have been released on bail in that case. It appears that the daughter of the 4th respondent is the alleged victim in that case, which is at the stage of investigation. The 2nd petitioner is the mother of the 1st petitioner. They say that at the instructions of the 4th respondent, the 3rd respondent is harassing the petitioner. It is submitted that there is also a demand for money. The learned Government Pleader, on instructions, states that there is no case of harassment and the 1st petitioner was required to appear before the investigating officer on all wednesdays and the mother had come over to the police station along with 1st petitioner requesting that the said condition be waived by the police. Such a request could not have been accepted by the police since the judicial order will continue to govern the parties unless modified by the court. 2. Chapter IIIA of the Kerala Police Act, 1960 was inserted by Act XXI of 2007 with effect from 7.4.2007. It provides for, among other things, Police Complaints Authority in Section 17E. It provides for the establishment of a Police Complaints Authority at the State level; Police Complaints Authorities at the District level, called ‘the District Authority’. Those authorities are bestowed with statutory duties and powers. The State Authority shall look into complaints of grave misconduct of all types against police officers of and above the rank of Superintendent of Police and serious complaints against officers of other ranks relating to molestation of women in custody or causation of death to any person or infliction of grievous hurt to any person or rape. The District Authority is to look into complaints against police officers of and up to the rank of Deputy Superintendent of Police. The State Authority is to be headed by a retired Judge of a High Court and the District Authority is to be headed by a retired District Judge. The District Collector and the District Superintendent of Police are members of the District Authority.
The State Authority is to be headed by a retired Judge of a High Court and the District Authority is to be headed by a retired District Judge. The District Collector and the District Superintendent of Police are members of the District Authority. The State Authority and the District Authorities have powers to summon and to record evidence etc. Sub-section 8 of Section 17E enjoins that all agencies of the Government shall render all possible assistance to the authority or authorities in respect of production of documents, examination of records etc. The recommendations of the Authorities, for any action, departmental or criminal, against a delinquent police officer shall be binding in so far as initiation of departmental proceedings or registration of a criminal case is concerned. This is specifically provided for in sub-section 9 of Section 17E. Such recommendations shall, however, not prejudice the application of mind by the enquiry officer or the investigating officer when he is conducting the departmental enquiry or criminal investigation, as the case may be. A survey of the aforesaid and other provisions of the Police Act and also of other laws, including criminal laws, particularly the Indian Penal Code, would show that if appropriately considered and applied, the provisions in Section 17E contain sufficient teeth to protect the life and liberty of citizens who complain about police harassment. Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, is liable to be punished in terms of Section 166 of the Indian Penal Code with simple imprisonment for a term which may extend to one year, or with fine, or with both. This is a non-compoundable offence. Though non-cognizable, the recommendations of the competent authority in terms of Section 17E(9) of the Police Act would make it obligatory that a criminal case is registered for offence punishable under Section 166 IPC, if so recommended. This example, when appropriately applied to other provisions, would clearly show that the Complaints Authorities under Section 17E have abundant power to ensure that any act of police harassment is appropriately taken note of and redressed. 3.
This example, when appropriately applied to other provisions, would clearly show that the Complaints Authorities under Section 17E have abundant power to ensure that any act of police harassment is appropriately taken note of and redressed. 3. The power to take action in particular situation includes the power to issue orders as may be necessary to ensure that any reasonable apprehension of such illegal acts is also taken note of and preventive orders, which would protect the rights of citizens, are issued. 4. With the aforesaid efficacious remedial provisions being in place, the citizens appear to remain unaware of such remedies and they often move the High Court for protective orders invoking Articles 226 of the Constitution. The extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India is to be invoked by parties and exercised by the Court only in exceptional circumstances of grave and imminent danger to the person applying for such relief, provides, such a situation is shown and demonstrated to the satisfaction of the writ court and it is shown that the afore-noted alternate remedies are resorted to, but remains ineffective or has turned futile. Such orders cannot be sought for in a routine manner. We observe that a good number of writ petitions are being filed as matters relating to “police harassment”. Yet, many of them turn out to be merely impending due process of law and interfering with legitimate machanisms. 5. Even apart from the provisions contained in Section 17E of the Police Act, the law is fairly well settled that every police officer is duty bound to ensure that he shall act in strict conformity with the laws. Firstly, he is a public servant. More importantly, he is one who belongs to a uniformed force. The conditions of service of such an establishment oblige the personnel to act only within the frame work of the Constitution and the laws. In an establishment with a hierarchy of officers in administration, every superior officer is duty bound to ensure that the subordinate does not breach the law and acts only in strict conformity with the laws. This has to be so, even by the terms of the Police Act.
In an establishment with a hierarchy of officers in administration, every superior officer is duty bound to ensure that the subordinate does not breach the law and acts only in strict conformity with the laws. This has to be so, even by the terms of the Police Act. Therefore, it is all the more the duty of every superior officer in the police establishment to attend to any complaint of citizens of any harassment or other unlawful act by any member of the police force subordinate to such officer. In this view of the matter also, the citizens have abundant avenues to bring complaints before the superior officers in the police establishment. For the aforesaid reasons, we direct the petitioners to appear before the 2nd respondent, before whom it is stated that they have filed Ext. P2. If the petitioners appear before the 2nd respondent, the needful would be done in terms of law.