Police Complaints Authority; Mahipal Yadav Vs. State [Kerala High Court, 25-07-2016]

Criminal Law – Jisha Murder Case – Police Act, 2011 – Section 110 – State Police Complaints Authority – Summoning a superior Police Officer – Abuse or misuse of police powers – Complaint before the Authority alleging that vital evidence in the case were allowed to be destroyed by not preserving the scene of occurrence – postmortem of the deceased was conducted by a Post Graduate Medical student, instead of a Police Surgeon – body of the deceased was permitted to be cremated before completion of the investigation – Held, there is no material before the State Authority, other than the complaint, to satisfy prima facie that the Complaint is a genuine one – Summoning a superior Police Officer merely on the basis of the allegations raised in a complaint is not justified at all – the writ petition is disposed of directing the State Police Complaints Authority to examine whether it is a genuine complaint, if required, after calling for reports from the superior Police Officers and the State Government – if the State Police Complaints Authority is satisfied prima facie on the said exercise that the complaint in the instant case is a genuine one involving abuse or misuse of police powers, the Authority can certainly summon the petitioner.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.B. SURESH KUMAR, J.

W.P.(C) No.18811 of 2016

Dated 25 th July, 2016

PETITIONER

SRI.MAHIPAL YADAV S/O.SRI.CHHITAR MAL YADAV, AGED 50 YEARS, INSPECTOR GENERAL OF POLICE, KOCHI RANGE, ERNAKULAM.

BY ADV. SRI.AJAY BEN JOSE

RESPONDENT(S)

1. THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM

2. STATE POLICE COMPLAINTS AUTHORITY, TCXV/1402, TAGORE NAGAR, LANE-2, VAZHUTHACAUD, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY

3. ADV.BASIL KURIAKOSE, S/O KURIAKOSE, AGED 35 YEARS, MANGALATH HOUSE, VENGOLA VILLAGE, PERUMBAVOOR. R1 BY GOVERNMENT PLEADER SRI.JOSEPH GEORGE

R2 BY SRI.P.RAVINDRAN (SENIOR ADVOCATE) ADV.SRI.SREEDHAR RAVINDRAN R3 BY SRI.K.RAMAKUMAR (SENIOR ADVOCATE) ADVS.SRI.S.M.PRASANTH SRI.G.RENJITH

J U D G M E N T

The petitioner is a senior IPS officer presently serving the State Government as Inspector General of Police. He is aggrieved by Ext.P7 proceedings of the State Police Complaints Authority (‘the State Authority’ for short).

2. The short facts relevant for decision are the following :

Kuruppampady police registered a case on 28.4.2016 under Sections 302 and 449 of the Indian Penal Code in connection with the murder of one Jisha. On getting information about the crime, the State Police Chief constituted a Special Investigation Team, with the petitioner as its head for its investigation. Accordingly, the petitioner has been investigating the case. According to the petitioner, while the investigation of the case was proceeding in the right direction, he was served with a summons by the State Authority directing him to appear before it with a written statement on Ext.P5 complaint filed by the third respondent. A copy of Ext.P5 complaint was also forwarded by the State Authority to the petitioner along with the summons. In Ext.P5, it is alleged that though Jisha was murdered in her house on 28.4.2016, the petitioner and others have concealed the said fact from the media; that vital evidence in the case were allowed to be destroyed by not preserving the scene of occurrence; that the postmortem of the deceased was conducted by a Post Graduate Medical student, instead of a Police Surgeon and that the body of the deceased was permitted to be cremated before completion of the investigation. On receipt of Ext.P5 complaint, the petitioner informed the State Authority that it has no jurisdiction to entertain a complaint in the nature of Ext.P5. Ext.P6 is the report submitted by the petitioner before the State Authority in this connection. In Ext. P6, it is stated by the petitioner that the allegations raised in Ext.P5 complaint pertain to an ongoing investigation in a case and by entertaining a complaint of this nature, the State Authority is not only interfering with the investigation of the case, but also usurping the functions of the jurisdictional Magistrate. On a consideration of Ext.P6 report, the State Authority issued Ext.P7 proceedings holding that it has jurisdiction to entertain complaints in the nature of Ext.P5 and directed the petitioner to appear before it in person again on 2.6.2016 with his written statement of defence. It is stated in Ext.P7 that if the petitioner does not appear before the State Authority on 2.6.2016 as directed, the complaint will be heard and disposed of as if the petitioner has no valid defence against the various allegations raised in the complaint, followed by a recommendation to register a criminal case against the erring Police Officers. As noted above, the petitioner is aggrieved by Ext.P7 proceedings.

3. A counter affidavit has been filed by the third respondent reiterating the allegations in Ext.P5 complaint and contending that the petitioner and other Police Officers are guilty of grave misconduct in the matter of conducting the investigation of the case.

4. Heard the learned Senior Counsel for the petitioner, the learned Senior Counsel for the State Authority and the learned Senior Counsel for the third respondent.

5. The learned Senior Counsel for the petitioner, relying on the decisions of the Apex Court in

# State of West Bengal v. Sampat Lal, AIR 1985 SC 195

and

# Union of India v. Prakash P. Hinduja, (2003) 6 SCC 195

contended that investigation is essentially a matter coming within the domain of the Police and by entertaining a complaint of the instant nature, the State Authority is interfering with the investigation of the case. Relying on the decision of the Apex Court in

# Sakiri Vasu v. State of U.P., (2008) 2 SCC 409

the learned Senior Counsel for the petitioner also contended that the jurisdictional Magistrate is monitoring the investigation of the case and by entertaining a complaint in the nature of Ext.P5, the State Authority is usurping the jurisdiction of the jurisdictional Magistrate. The learned Senior Counsel, relying on the decision of this Court in

# Sr. Sephy and Others v. Union of India and another, 2009 (1) KHC 118

and the decisions of the Apex Court in

# Ravinder Kumar Sharma v. State of Assam and others, (1999) 7 SCC 435

# Laxmi Raj Shetty v. State of Tamil Nadu, (1988) 3 SCC 319

and

# Dr.B.Singh v. Union of India, (2004) 3 SCC 363

further contended that Ext.P5 complaint being one preferred solely based on the inferences made by the print and visual media, the State Authority should not have acted upon the same and issued summons to the petitioner. Lastly, it was contended by the learned Senior Counsel, relying on the decision of the Apex Court in

# R.S.Singh v. U.P. Malaria Nirikshak Sangh, (2011) 4 SCC 281

that the Apex Court has time and again deprecated the practice of summoning senior officials of the State and Central Governments in court, except in exceptionally exceptional cases and the conduct of the State Authority in summoning the officers in the stature of the petitioner and others on a complaint of the instant nature lodged solely based on the print and visual media reports would adversely affect the decorum of their office.

6. Per contra, the learned Senior Counsel for the State Authority has drawn my attention to the background of the police enactments in the country and the circumstances which led to the enactment of

# Police Act, 2011

(‘the Act’ for short), as narrated in detail by the Apex court in

# Prakash Singh v. Union of India, (2006) 8 SCC 1

It was pointed out by the learned Senior Counsel that the Act was brought into force for the purpose of establishing a disciplined and dedicated police force to ensure rule of law and one of the very objects of the Act is to ensure that the powers of the police shall not be abused and that the activities of the police are subject to statutory and effective controls. According to the learned Senior Counsel, Section 110 of the Act confers power on the State Authority to examine and inquire into all complaints involving misconducts against the police officers of and above the rank of Superintendent of Police, irrespective of the fact as to whether the alleged misconduct has been committed in the course of investigation of a case. The learned Senior Counsel has vehemently contended that the State Authority has nothing to do with the investigation of any case and it is concerned only with the misconducts of the members of the police force. According to the learned Senior Counsel, if it is held that the State Authority cannot examine and inquire into a complaint involving misconduct of a police officer while the investigation of the case is going on, the same would defeat the very purpose for which the State Authority is constituted, for, the powers of the police is generally misused in the course of investigation of cases. It was conceded, however, by the learned Senior Counsel for the State Authority that complaints of the instant nature are to be dealt with utmost care and caution, but that does not mean that the State Authority shall fold its hands and remain helpless, until the investigation of the case is over. Relying on the provisions contained in Section 110(2) of the Act, the learned Senior Counsel contended that it cannot be presumed that the State Authority consisting of persons in the stature of a retired Judge of the High Court, an officer not below the rank of the Principal Secretary to the Government, an Officer not below the rank of the Additional Director General of Police and persons nominated by the Government from the panels furnished by the State Human Rights Commission and the State Lok Ayuktha would conduct proceedings in a manner affecting the investigation of a case. The learned Senior Counsel for the State Authority has also taken me to the various decisions of the Apex Court dealing with the concept of ‘misconduct’ and contended that the allegations levelled against the petitioner and others in Ext.P5 would certainly come within the scope of ‘misconduct’ referred to in Section 110 of the Act.

7. The learned Senior Counsel for the third respondent contended that the petitioner has no locus standi to institute a writ petition as none of his legal rights is infracted. It was also contended by the learned Senior Counsel for the third respondent that the contents of Ext.P5 complaint would clearly demonstrate misconducts on the part of the petitioner which the State Authority is duty bound to examine and inquire into.

8. I have considered the contentions raised by the learned Senior Counsel for the parties. As rightly pointed out by the learned Senior Counsel for the State Authority, there was no comprehensive review of the police system in the country after independence, despite the radical changes in the social, economical and political environment. Misuse of the powers by the police has been increasing day by day and consequently, the need for institutional arrangements to prevent misuse of the powers by the police was deeply felt to ensure rule of law by giving due regard to life, property, freedom, dignity and human rights of the citizens. Since the executive Governments in power did not take any steps in this regard, the Apex Court, in discharge of its constitutional obligation issued directions in Prakash Singh’s case (supra) to the Central and State Governments for compliance till framing of appropriate legislations, among others, to constitute Police Complaints Authorities, both at the State as also at the District Level, in the manner indicated in the judgment, to examine and inquire into misconducts against police personnel. It is in compliance of the said direction, provisions have been made in the Act for constitution of police complaint authorities. Section 110 of the Act dealing with the Constitution of the police complaint authorities and its powers and functions reads thus:

# 110. Police Complaints Authority

(1) The Government shall constitute a State Police Complaints Authority for examining and inquiring the–

(i) complaints on all types of misconduct against police officers of and above the rank of Superintendent of Police;

(ii) grave complaints against officers of other ranks in respect of sexual harassment of women in custody or causing death of any person or inflicting grevious hurt on any person or rape, etc.

(2) The State Authority shall consist of the following members, namely :-

(i) a retired Judge of a High Court who shall be the Chairperson of the Authority;

(ii) an officer not below the rank of Principal Secretary to Government;

(iii) an officer not below the rank of Additional Director General of Police;

(iv) a person as may be fixed by the Government, in consultation with the Leader of Opposition, from a three member panel of retired suitable officers not below the rank of Inspector General of Police furnished by the Chairman of the State Human Rights Commission; and

(v) a person as may be fixed by the Government, in consultation with the Leader of Opposition, from a three member panel of retired suitable District Judges furnished by the State Lok Ayuktha.

(3) The Government shall constitute the Police Complaints Authority at district level for examining and inquiring the complaints against police officers of and up to the said rank of Deputy Superintendent of Police.

(4) The District Authority shall consist of the following members, namely :-

(i) a retired District Judge, who shall be the Chairperson;

(ii) the District Collector; and

(iii) the District Superintendent of Police :

Provided that the Chairperson of one District Authority may be appointed as the Chairperson of more than one District Authorities.

(5) The terms and conditions of service, salary of the members of the State Authority and District Authorities and the procedure of the authorities shall be such as may be prescribed.

(6) Government shall, in consultation with the authority or authorities, establish and give all necessary facilities for their proper functioning.

(7) The State Authority and the District Level Authorities shall, on conducting inquiries, have all the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) in respect of the following matters, namely :-

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of any document;

(c) receiving evidence on affidavit; and

(d) any other matter as may be prescribed.

(8) All officers of the Government shall render all possible assistance to the authority for ensuring the production of records necessary for the functioning of the Complaints Authorities, examination of the records and provision of expert assistance in needed matters, etc.

(9) All concerned officers shall be bound to carry out the recommendations given by the authority in respect of matters of initiation of department level inquiry, registration of criminal case etc. against a police officer.”

Section 110 of the Act confers power on the State Authority to examine and inquire into complaints of all types of misconduct against police officers of and above the rank of Superintendent of Police. If the provision is understood in the background of the legislation, it is evident that the word ‘misconduct’ is used in the Section to cover all instances of misuse and abuse of power by the police. If one looks at the allegations raised in Ext.P5 complaint in the above perspective, it cannot be said that the allegations in the complaint, if not all, do not fall within the scope of ‘misconduct’ contemplated by the legislature. That does not mean that the petitioner has committed any misconduct while conducting the investigation of the case. It only means that a complaint of the instant nature can be examined and inquired into by the State Authority. Whether there is any substance in the allegations in the complaint is a matter for the State Authority to consider and decide.

9. It is settled that the investigation in a case is essentially a matter coming within the domain of the police and no court or authority shall interfere with the investigation of the case. It is also settled that the jurisdictional Magistrate is monitoring the investigation and in appropriate cases, it is the function of the jurisdictional Magistrate to issue necessary directions to the Investigating Officer concerning the investigation. As noted above, the scope of the jurisdiction of the Police Complaints Authorities is to examine and inquire into instances of misuse and abuse of the power by the police, which is broadly categorized as misconduct. Exercise of the said jurisdiction by the Police Complaints Authorities does not amount to interference with the investigation in a case nor does it amount to usurpation of the function of the jurisdictional Magistrate. Once the jurisdiction of the Police Complaints Authorities is understood in the aforesaid manner, there is absolutely no basis for the contention that allegations of misconduct raised against Police Officers cannot be examined or inquired into when the investigation of a case is going on. True, when complaints involving allegations of misconduct against Police Officers are received by the Police Complaints Authorities in the course of investigation, the same are to be dealt with great care and caution and with greater circumspection to see that the examination of the complaint by the Police Complaints Authority shall not, in any manner, affect the investigation of the case. As rightly pointed out by the learned Senior Counsel for the State Authority, having regard to the stature of the persons who are occupying the office of the Police Complaints Authority, it cannot be presumed that the Police Complaint Authorities would examine the complaints received by it in a manner affecting the investigation of the case. The contention of the petitioner that the State Authority has no jurisdiction to entertain a complaint in the nature of Ext.P5 is, therefore, rejected.

10. As noted above, the specific case of the petitioner is that Ext.P5 complaint has been lodged by the third respondent solely based on inferences made by the print and visual media and there is absolutely no substance in the allegations raised in the complaint. The occurrence in this case took place on 28.4.2016. The complaint is seen lodged on 5.5.2016. The third respondent who lodged the complaint in the instant case is not a relative of the victim. He has also no connection whatsoever with the victim. The complaint, in the circumstances, can be considered only as a complaint from a member of the general public. True, when the provisions in the Act are examined in the backdrop of the decision of the Apex Court in Prakash Singh’s case (supra), it cannot be said that a member of the general public cannot initiate a proceedings before the Police Complaint Authority, especially when the complaints before the Police Complaints Authorities necessarily involve violation of human rights. A meticulous scrutiny of the complaint in the instant case indicates that allegations are raised in the complaint casually based on the inferences made by the print and visual media, for, the third respondent had no direct knowledge concerning the various steps taken by the police during the investigation. The only overt act against the petitioner in the complaint is that he has concealed the commission of the crime from the media. The complaint may be one instituted with all bona fides and with a view to espouse the cause of the general public, but at the same time, the possibility of the complaint being one instituted with a view to gain media publicity in a sensitive matter of this nature cannot be ruled out.

11. It is beyond dispute that Police Complaints Authorities are constituted to examine and inquire into genuine complaints of abuse and misuse of police powers. While it is necessary to ensure that powers of the police are not abused and misused, it is equally necessary to maintain the decorum of the high offices of the police for securing rule of law. It is, therefore, obligatory for the Police Complaints Authorities to examine whether the complaint in a given case is a bona fide one, before summoning the police officers concerned, especially when superior officers in the Police Department are arrayed as parties in the complaint. It is so because the possibility of preferring complaints in sensitive matters with a view to gain media attention cannot be ruled out. Likewise, the possibility of accused themselves causing complaints to be preferred in the course of investigation to harass and thereby demoralize the investigating officers and to divert the focus, cannot also be ruled out. It is seen that the statute confers power on the Police Complaints Authorities, to summon and enforce attendance of any person and examine him on oath; to require discovery and production of documents; to receive evidence on affidavit, etc. The statute permits officers against whom complaints are preferred to produce evidence in the matter and cross examine witnesses, on occasions suitable and practicable. As such, once the officers are summoned, irrespective of their rank and stature, they will be constrained to participate in the proceedings. In this context, it is worth referring to the observations made by the Apex Court in

# State of Gujarat v. Turabali Gulamhussain Hirani, [(2007) 14 SCC 94]

in the context of the practice followed by some of the High Courts in summoning senior officials before the Court. The relevant observations read thus:

“6. A large number of cases have come up before this Court where we find that learned Judges of various High Courts have been summoning the Chief Secretary, Secretaries to the Government (Central and State), Directors General of Police, Director, CBI or BSF or other senior officials of the Government.

7. There is no doubt that the High Court has power to summon these officials, but in our opinion that should be done in very rare and exceptional cases when there are compelling circumstances to do so. Such summoning orders should not be passed lightly or as a routine or at the drop of a hat.

8. Judges should have modesty and humility. They should realise that summoning a senior official, except in some very rare and exceptional situation, and that too for compelling reasons, is counterproductive and may also involve heavy expenses and valuable time of the official concerned.

9. The judiciary must have respect for the executive and the legislature. Judges should realise that officials like the Chief Secretary, Secretary to Government, Commissioners, District Magistrates, senior police officials, etc. are extremely busy persons who are often working from morning till night. No doubt, the ministers lay down the policy, but the actual implementation of the policy and day-to-day running of the Government has to be done by the bureaucrats, and hence the bureaucrats are often working round the clock. If they are summoned by the Court they will, of course, appear before the Court, but then a lot of public money and time may be unnecessarily wasted. Sometimes the High Court Judges summon high officials in far-off places like Director, CBI or Home Secretary to the Government of India not realising that it entails heavy expenditure like arranging of a BSF aircraft, coupled with public money and valuable time which would have been otherwise spent on public welfare.

10. Hence, frequent, casual and lackadaisical summoning of high officials by the Court cannot be appreciated. We are constrained to make these observations because we are coming across a large number of cases where such orders summoning of high officials are being passed by the High Courts and often it is nothing but for the ego satisfaction of the learned Judge.

11. We do not mean to say that in no circumstances and on no occasion should an official be summoned by the Court. In some extreme and compelling situation that may be done, but on such occasions also the senior official must be given proper respect by the Court and he should not be humiliated. Such senior officials need not be made to stand all the time when the hearing is going on, and they can be offered a chair by the Court to sit. They need to stand only when answering or making a statement in the Court. The senior officials too have their selfrespect, and if the Court gives them respect they in turn will respect the Court. Respect begets respect.

12. It sometimes happens that a senior official may not even know about the order of the High Court. For example, if the High Court stays the order of the Collector of suspension of a Class III or Class IV employee in a government department, and certified copy of that order is left with the clerk in the office of the Collector, it often happens that the Collector is not even aware of the order as he has gone on tour and he may come to know about it only after a few days. In the meantime a contempt of court notice is issued against him by the Court summoning him to be personally present in Court. In our opinion, this should not be readily done, because there is no reason why the Collector would not obey the order of the High Court. In such circumstances, the Court should only request the Government Counsel to inform the Collector concerned about the earlier order of the Court which may not have been brought to the notice of the Collector concerned, and the High Court can again list the case after a week or two. Almost invariably it will be found that as soon as the Collector comes to know about the stay order of the High Court, he orders compliance with it.

13. In the present case, we find no occasion or reason for the learned Judge to summon the Chief Secretary or the Law Secretary by the impugned order. If the learned Judge was concerned about the lack of enough stenographers in the office of the Public Prosecutor he could have called the Advocate General or Govt. Advocate to his chamber and have asked him to convey the Court’s displeasure to the Government, but where was the need to summon the Chief Secretary or Law Secretary? Hence, we set aside the impugned interim order dated 11-4-2007 and condone the delay of 25 days in filing the appeal before the High Court. The High Court may now proceed to hear the criminal appeal in accordance with law. The appeal is allowed.”

The statute does not elaborate the procedures to be followed by the Police Complaints Authorities in the matter of examining and inquiring into the complaints received by it. The statute also does not contemplate rules to be framed for governing the procedure before the Police Complaints Authorities. The statute, however, confers power on the Police Complaints Authorities to call for a report from the police or Government in respect of important matters in the complaint. In the circumstances, in the absence of any statutory mechanism for screening the complaints before the Police Complaints Authorities, especially the State Authority before whom complaints against officers of and above the rank of the Superintendent of Police are preferred, the Authorities have to involve a methodology to screen the complaints, before superior officers in the Police Department are summoned to answer the complaints. For this purpose, if required, the State Authority can certainly call for reports from the superior Police Officers or from the Government, as provided in the Act.

12. Coming back to the facts of the present case, there is no material before the State Authority, other than the complaint, to satisfy prima facie that Ext.P5 is a genuine one. Summoning a superior Police Officer merely on the basis of the allegations raised in a complaint in the nature of Ext.P5, according to me, is not justified at all.

In the aforesaid facts and circumstances, the writ petition is disposed of directing the State Police Complaints Authority to examine whether Ext.P5 is a genuine complaint, if required, after calling for reports from the superior Police Officers and the State Government. It is made clear that if the State Police Complaints Authority is satisfied prima facie on the said exercise that the complaint in the instant case is a genuine one involving abuse or misuse of police powers, the Authority can certainly summon the petitioner.

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