STATE OF KERALA Vs. T T ANTONY

JUDGEMENT

(1.) MR. Revada A. Chandrasekhar hails from Andhra. He is a member of the Indian Police Service. He was selected by the Union Public service Commission for appointment to the IPS cadre. After completing his training course, he was allotted to the IPS cadre of Kerala State. He got his first posting as Asst. Superintendent of Police on 23. 11. 94 at Thalassery, kannur. He assumed charge in the afternoon of 23. 11. 94. Before joining duty he hardly got any time to familarise himself with his official duties or with the local language. He was informed that the then Minister for Co-operation would be making an official visit to Kuthuparamba on 25. 11. 94 and that there was a likelihood of a serious law and order situation developing in the above place. He was advised to attend the meeting of the police officers to be held on the next day to discuss the ways and means for containing the apprehended law and order situation. He was further told that police force had strict instructions from the Headquarters to make arrangements for providing adequate and effective protection to the Minister for all his official visits especially to Kannur district, where the threat against his life was real and grave. The discussion took place in the office of the Supdt. of Police, Shri. K. Padmakumar on 25. 11. 94. A final decision regarding various steps to be taken by the police to maintain law and order was arrived at. When the decision, as evidenced by Ext. PI. was taken in the meeting of the Police Officers, sufficient information was gathered by the police from various intelligence sources regarding the nature and gravity of the law and order situation which was likely to develop on the occasion of the visit of the men Minister, Shri. M. V. Raghavan. In this background the presence of an Executive Magistrate was requisitioned by the supdt. of Police, Kannur and the District Collector, Kannur, directed Shri. T. T. Antony, Dy. Collector and Executive Magistrate to remain on duty at Kuthuparamba Town Hall when the Minister for Co-operation was to attend the function on 25. 11. 1994. The entire area was divided into five sectors and details regarding the duties to be performed by the police led by senior officers were mentioned in Ext. P1. Sector 5 specified in Ext. P1 was put in charge of the petitioner, who had to perform his duties with the assistance of senior officers like philip Joseph and several other Assistant Officers. The Officers were given specific instructions to ensure smooth entry of the Minister into the Town Hall and that no obstructions are made on the toad leading to the Town Hall. As already noticed, the petitioner was totally unfamiliar with the local situation, made an assessment of the duties to be performed by him and discharged the same to the best of his ability with the assistance received from the senior police officials placed under his charge. The Minister was to arrive at 10. 00 a. m. on 25. 11. 1994. In the meanwhile thousands of persons belonging to the militant groups and other rank and file of the Marxist communist Party collected at various places covered by the five sectors mentioned in Ext. P1. It may be noticed that all these groups of persons belonged to the then opposition party righting the then ruling party in the state viz. , UDF and the Minister, Shri. M. V. Raghavan was a member of the UDF government. The Minister's motorcade arrived near the town hall at 11. 45 a. m. By that time the crowd began to surge forward shouting slogans crashing through the blockade made by the police. They pelted stones against the police and they were hit by stones. By that time the Executive Magistrate, Shri. T. T. Antony was present at the spot, took over control of the situation and declared the crowd an unlawful assembly and ordered the police to disperse them. It became very difficult for the police to disperse the crowd as the crowd of people turned out to be uncontrollable. The Executive Magistrate ordered police to have recourse to bursting tear gas shells against the crowd. But it turned out to be of no effect. Thereafter, the Executive Magistrate ordered to commence lathi-charge, which went on for a few minutes and in the meanwhile, the militant crowd retaliated by pelting stones against the police. Several policemen were hit by stones, resulting in serious injuries to them. The crowd grew more violent and the whole situation prevailing was getting out of control. By that time the Minister entered the town hall and protection was given to him at the risk of injuries to policemen. The crowd began to move forward towards the town hall not only shouting slogans but also pelting stones and other weapons against the police. The whole crowd went out of control. The police apprehended real threat and danger to the life of Shri. M. V. Raghavan and the Executive Magistrate who was present at the spot ordered the police finally to open fire to disperse the unruly crowd. The police thereupon, after giving due warning to the crowd and in due compliance with the procedure prescribed by law opened a few rounds of fire into the air. This warning did not produce any result and the crowd became more violent. Then the rifle party opened a few rounds of fire into the violent crowd and the crowd began to disperse slowly. Thus the whole situation was brought into control and the Minister was given protection to return from the place. A report was submitted by the Executive Magistrate to the District Collector explaining the circumstances under which he had to give the order to open fire against the violent mob. The District Collector also submitted a report to the government under Ext. P3. The Supdt. of Police submitted his report to the director General of Police under Ext. P4. We have already referred to these exhibits in paragraphs supra. The Government ordered a judicial enquiry to be held by the District and Sessions Judge, Shri. Padmanabhan Nair was appointed in that behalf. We have already referred to the terms of reference and the findings rendered by the Commission of Inquiry in extenso in paragraphs supra. In so far as this case is concerned, it is pertinent to note that item No. 3 in the terms of reference is definte and conclusive. The conclusion has been arrived at after a detailed enquiry and appraisal of evidence. The Commission of Enquiry has discussed about the involvement of ASP, MR. Revada Chandrasekhar in a separate heading: "the ASP - how far responsible". It is beneficial to extract the same : "sri. R. A. Chandrasekhar, A. S. P. was the officer who carried out the order of the Executive Magistrate to fire. As I have pointed out earlier, along with M/s. M. V. Raghavan, T. T. Antony and Abdul Hakkim bathery, status under S. 8-B of the Commissions of Inquiry Act was conferred on him also. A junior 1. P. S. Officer form the A. S. P. , Shri. R. A. Chandrasekhar came to Thalassery for the first time on the evening of 23. 11. 1994 and took charge as A. S P. He has got no idea about the topography of Kuthuparamba, much less the political equations or situations at Kuthuparamba. I have found that there was no evidence on record to prove the alleged conspiracy with Sri. M. V. Raghavan, Deputy S. P. Abdul Hakkim Bathery, Deputy Collector T. T. Antony and a. S. P. R. A. Chandrasekhar. Moreover, the A party has no case that Sri. R. A. Chandrasekhar has met or even seen Sri M. V. Raghavan before that incident. There is nothing on record to show that he was known to Sri. M. V. Raghavan previously. It has come out in evidence that Deputy S. P. Hakkim Bathery and deputy Collector T. T. Antony are responsible for opening lathi charge and firing at the demonstrators. Of course, the A. S. P. also ought to have exercised the discretion vested with him more carefully. But the evidence adduced in this proceedings shows that it was not the police party under the control of the a. S. P. who started the lathi charge first and it was started by the Deputy S. P. who was escorting the Minister. Then the situation went out of control and there was heavy stone pelting from the side of the demonstrators. The A. S. P. had no other option but to join the escort party. In the matter of firing it is the duty of the Executive magistrate to take decision whether firing is to be resorted to or not. In this case, the Executive Magistrate was present at the spot and he gave the necessary orders. The A. S. P. carried out the order of the Executive Magistrate. The evidence of CW14 shows that originally the firing squad was standing near the Tpwn Hall gate on the Kannur-Kuthuparamba road and they fired from that place. Subsequently, firing took place from other places also. The evidence shows that firing was made from spots in front of the Co-operative Urban Bank on the Kuthuparamba-Thalassery road, a place more than 144 metres on south-west of the traffic island junction. There is no evidence as to who fired those shots. There is also no evidence to hold that any member of the firing party under the control of the A. S. P. went there and fired those shots. Since the a. S. P. is only an inexperienced junior I. P. S. Officer who took charge only 2 days prior to the incident, I am of the view that even if there is minor lapses on his part, the same can be condoned.- Hence I do not find any reason to place any liability on his shoulders. "

(2.) IT is thus seen from the findings and evidence let in before the Commission that Mr. Revada Chandrasekhar has been totally exonerated from any liability by the Commission, which further found that the said officer had only performed duties in strict compliance of the orders of the Executive magistrate. The Commission found that there is total absence of evidence, even suggestive of the fact that any member of the police party led by him opened fire, which resulted in the death of victims. IT is pertinent to note that report of Commission was placed before the Government and that the said report has been accepted by the State Government and on accepting the same directed the Director General of Police, to take necessary action on the basis of the findings of the Enquiry Commission Report. On 2. 7. 1997, the DGP ordered Mr. Jacob Punnose to register a crime against persons who are found to be responsible for the incident. Accordingly the said IPS Officer was issued proceedings dated 4. 7. 1997 directing the Station House Officer, Kuthuparamba to register a crime case against persons who are held to be responsible for the police firing on 25. 11. 1994 by the Enquiry Commission. As per the above direction, the Sub Inspector of Police registered Crime No. 268/97 of kuthuparamba Police Station against Mr. M. V. Raghavan, former Minister of cooperation and Ports, Mr. Abdul Hakkim Dy. S. P. Kannur for offence punishable under section 302 IPC and forwarded the investigation copy of the F. I. R. to the dig of Police for further investigation. IT can be seen from Ext. P6 FIR that a case has been registered as directed by the third respondent on the basis of the findings of Shri. Padmanabhan Nair Commission of Enquiry. IT is also seen that the findings of the Commission on each of the terms are also referred to in ext. P6. The F. I. R. thus filed before the Judicial First Class Magistrate, kuthuparamba does not contain the name of Mr. Revada Chandrasekhar as there is definite findings in the Commission Report wherein the petitioner has been fully exonerated. While so, on 9. 6. 1998, after one year and two months, for the registration of crime, the investigating officer filed a report before the court below implicating as accused in the case several police officials, including Mr. Revada Chandrasekhar. Since the petitioner suspected some foul play in the investigation by the present team, he approached this Court. According to the petitioner, if the present investigating agency is permitted to continue, it will certainly lead to miscarriage of justice. Now the question is whether the petitioner, Mr. Revada Chandrasekhar can now be included as one of the accused and proceeded before a criminal court, who was completely exonerated of all the blame and liability by the Padmanabhan Nair Enquiry commission. IT is also a matter of record that the Commission's report was accepted in full and the Chief Secretary has instructed the DGP by his letter dated 30. 6. 1997 to initiate criminal action against the police officials and register a case on the basis of the findings. In our opinion no case can be registered against Mr. Revada Chandrasekhar since the Commission of Enquiry has exonerated him completely. Ext, P6 is signed by Mr. Jacob Punnose, which is the f. I. R. file. The letter sent by Mr. Jacob Punnose to the Station House Officer, kuthuparamba Police Station dated 4. 7. 1997 is very specific and restricted the offence only to three persons viz. , Mr. M. V. Raghavan, former Minister of co-operation and Ports, Mr. Abdul Hakkim Bathery, Dy. S. P. , Kannur and Mr. T. T. Antony, Deputy Collector and Executive Magistrate. The findings of the Enquiry commission's Report are also incorporated in Ext. P6 proceedings. In the meanwhile, petitioner was promoted and posted as Supdt. of Police. IT was only one year and two months thereafter, Ext. P8 report was filed by the third respondent, Mr. Jacob Punnose, implicating the petitioner as accused No. 10 on the allegation that he had committed an offence punishable under S. 302 IPC. There is every reason to believe that the petitioner was implicated as accused in the case and sought to be made as a scapegoat. Ext. P8 has completely ignored the fact that the Commission has entered a definite finding that the petitioner is in no way responsible for the incidence which took place on 25. 11. 1994. In fact the Executive Magistrate was in control of the entire situation and the other police officers including the petitioner have acted on the orders issued by the Executive Magistrate from time to time. As per Ext. P8 proceedings the petitioner and other police officers are implicated as accused in the above crime case accusing them of having committed various offences including the offence of murder and by ignoring Ext. P2 report submitted by Mr. T. T. Antony stating that he became convinced that the mob could not be dispersed without resorting to firing and that the A. S. P. has given orders to disperse the mob by resorting to firing. After giving warning to the mob, the police started firing into the air to scare the mob. Even after firing about 40 or 50 shots into the air, the mob were not in a mood to disperse. Ultimately the police fired into the mob after giving proper warning. Ext. P8 proceedings in so far as it seeks to implicate the petitioner Shri. Revada Chandrasekhar as an accused in the above crime case is vitiated by legal and factual malafides. There is yet another reason to quash the FIR in so far as the petitioner is concerned. A case of conspiracy was introduced for the first time in Ext. P8 report.

(3.) EXT. PI 5, in our opinion, is yet another supporting document in favour of the petitioner Shri. Revada Chandrasekhar to countenance his prayer for quashing the proceedings. This apart, not a single person sustained injuries as a result of firing a few rounds by the police under the command of the petitioner, under the orders of the Executive Magistrate. In our view the petitioner has carried out the orders faithfully issued by the Executive magistrate in good faith.