2000 Supreme(Del) 358

High Court Of Delhi
B.L.WADHERA - Appellant
Versus
STATE (NATIONAL CAPITAL TERRITORY OF DELHI) - Respondent
Civil Writ 206 of 2000
Decided On : 04/17/2000

Headnote:Constitution of India, 1950 - Article 19(1)(g) — Lawyers strike — Constitutional validity — Use offeree of police on procession of lawyers held in violation of prohibitory order issued under Section 144 of Criminal Procedure Code, 1973 — Indiscriminate use of force — Direction for suspension of police officers cannot be given in the circumstance.

       Held :

       In exercise of the powers conferred upon him by Section 144 of the Cr.P.C. the Commissioner of Police, Delhi had made a written order prohibiting (i) the holding of any public meeting (ii) assembly of 5 or more persons (iii) currying of fire arms, banners, placards, lathis, spears, swords, slicks, brickbat etc. (iv) shouting of slogans (v) making of speeches, etc. (vi) processions and demonstrations, and (vii) pickling or dharna in any public place within the area specified in the Schedule and Site Plan appended to the order, without a written permission. The said order under section 144 Cr. P.C. came into force with effect from 28.12.1999 and remained in force for a period of 60 days i.e. up to 25.2.2000. Any person contravening the said order was liable to be punished under Section 188 of the Indian Penal Code. Thus on 24.2.2000 the exercise of the fundamental right under Article 19(1)(a) and 19 (1)(b) of the Constitution in any pubic place within the area specified in the schedule and Sita Plan appended to the order under Section 144 Cr. P.C. stood curtailed or restricted to the extent staled in the said order. In other words the acts mentioned in the said order should not be done without a written permission. Admittedly the area specified in the Schedule and Site Plan appended to the order covered the Parliament Housy together with its surrounding localities including the Parliament street. It was not disputed that the lawyers had been refused permission to hold any procession or demonstration in any public place within the specified area on 24.2.2000. The prohibitory order was not challenged in any proceedings. Hence, prima facie, the Parliament March held by the lawyers on 24.2.2000 was in violation of the prohibitory order issued under Section 144 of the Cr.P.C. The police were authorised and were duty bound to enforce the prohibitory order and to prevent its violation. They were also authorised and empowered to remove or disperse any unlawful assembly in accordance with law. Hence they were justified in pulling up barricades on the road and taking and other lawful action to enforce the prohibitory order and to prevent its violation. At the same lime, the lawyers had the right even to violate a prohibitory order in a peaceful and non violent manner and to court arrest as a mark of their protest. The police could have used only the minimum degree of force required to enforce the prohibitory order and to disperse the unlawful assembly.

       On a careful consideration of the materials placed before this Court we arc not inclined to hold that the actions and conduct of the police while dispersing the unlawful assembly on 24.2.2000 warrant any legal action or disciplinary proceedings against the police officers at this stage, we do not find any illegality or arbitrariness in the decision of the Government to await the recommendations of the Commission of inquiry in this regard. At the same time we are not at all satisfied with the action taken by the Government against the police officials who, even according to the Government "used force against some individual lawyers, including a lady lawyer, which was unwarranted and should have been avoided". In the Video films those police officials were seen beating the lawyers as if they were mad dogs on the streets. Their action was totally unwarranted, unprovoked and unjustified. They were indicated even in the report submitted by the Divisional Commissioner, Delhi to the Lt. Governor. There were around 8-10 police officials who used such unwarranted force and assaulted individual lawyers in blatant violation of the rules relating to use of force to disperse an unlawful assembly. But only three of the said police officials have been placed under suspension, The reason stated for not taking action against others is that only three of the erring officials had been identified. Having seen the video film which was got recorded by the police itself and also the video film recorded by the ANI TV, we are constrained to observe that if the Government wanted, most of them could have been easily identified with the assistance of the police officer(s) who was/were in immediate charge of those police officials. Looking at the video films, the officer in charge could have easily identified and named the officials concerned. We are surprised that even after admitting that unwarranted force which should have been avoided was used by some police officials against some individual lawyers, the Government did not make earnest and possible efforts to identify all the guilty police officials and to place ail of them under suspension immediately. This reluctance or hesitation or inaction on the part of the Government should be viewed in the light of the allegation made on behalf of the lawyers that the Government was under tremendous pressure from the top brass of the police force and that the suspension of the three policemen was only a farce and as eye wash to protect the guilty policemen and senior police officers by making the three suspended policemen the scape-goals. It was alleged on behalf of the lawyers that the suspension of the three policemen was only a hesitant, half hearted, make belief attempt to convey a false impression that the Government was interested and willing to take action against the erring police officials . Whether these allegations are true or not, the conduct of the Government is capable of raising doubts about the sincerity and bona fides of the Government in taking action against the erring police officials. Since the Government unjustifiably failed of refused to take necessary steps for identifying all the erring police officials and to place them under suspension which the government should have done in the lawful and proper exercise of its power and discretion, the Government is liable to be directed by this Court lo lake immediate steps for identifying all those police officials who admittedly used unwarranted force against individual lawyers at the dispersal stage and also to place them under suspension immediately, as in the case of the three policemen already suspended by the Government, In fact the learned Solicitor General had submitted that the Government Had no objection to continue the efforts to identify the remaining police officials also and to place them wider suspension.

       We are conscious of the fact that when a decision regarding use of force by police has to be taken on the spot, it is not possible to weigh with precision and to determine with accuracy the minimum force required to disperse an unlawful assembly and to ensure the use of only just the minimum force and nothing more. At the same time, considering the facts and circumstance stated earlier, we are the view that the justifiability of the use of force by police on 24-2-2000 and the culpability, if any, of the police officials require to be seriously inquired into from all the angles. The said inquiry will be conducted by the Commission of Inquiry and not by this Court. But in view of the earlier mentioned peculiar facts and circumstances of this case, pending inquiry by the Commission, all the police officials whose action and conduct are the subject matter of the inquiry should be removed, at least temporarily, from the posts held by them. This is necessary to facilitate a proper and fair inquiry. It is only just and proper that the officer concerned is removed from the sphere of his activity, in as much as it may be necessary to find out facts from people working under him or look into papers or records in his custody and it would be embarrassing for all concerned if the officer is present at the spot. Such removal from the posts is also necessary in the interest of justice, since the continuance of the officers in the same post/place during the inquiry may send a wrong signal regarding the bonafides in ordering the inquiry, the fairness of the inquiry and the usefulness of the inquiry. An officer can be removed from the post by suspension from service or by transfer. If there are sufficient grounds to suspend the officer he may be suspended and if not he should be transferred out and such transfer cannot be avoided. Unfortunately these very relevant aspects were not properly considered by the Government while taking a decision on the demand of the lawyers. The officers liable to be removed from the posts will include Mr. P. Nanda, D.C.P. who ordered the lathi-charge and Mr. Vijay Mallick A.C.P., Mr. T.C. Bhalla, A.C.P. and Mr. Mangia, S.H.O. Parliament street police station who were managing the event on the spot. In this connection we wish to point out that apart from the other allegations against them, the above mentioned officers had allegedly failed to exercise proper and effective supervision and control over the police officials who admittedly used unwarranted force on individual lawyers at the dispersal stage and the said alleged failure and its implications and consequences also are under scrutiny by the Commission.

       We appreciate that the Government found it necessary to transfer the two Assistant Commissioners from the posts they were holding. Their transfer was intended to facilitate a fair and proper inquiry which is possible only when the officers concerned are not in a position to influence or prejudice the inquiry, ft was also intended to inspire confidence in the minds of the people about the bonafides in ordering the inquiiy and the fairness and usefulness of the inquiry. But in the circumstances of this case, we consider that the transfer already effected in their case will not adequately serve the avowed purpose of facilitating a proper and fair inquiry and of inspiring confidence in the minds of the people concerned. Considering the jurisdiction and importance of the two posts to which they have been transferred it would appear that they are posts from where the officers may be in a position to influence or prejudice the inquiry. Having appointed a Commission of Inquiry, the Government should be anxious to facilitate a proper and fair inquiry and to take conscious steps to build confidence in the minds of the people about the fairness and usefulness of the inquiry and also to avoid all possible hindrances. This vital and relevant aspect was ignored while transferring Mr. T.S. Bhalla and Mr. Vijay Mallick to their present posts. Even though it was not intended by the Government, the said transfers are capable of sending wrong signals and giving an impression that the Government was not seriously interested to have a proper and fair inquiry. In these circumstances we are of the view that the Government should transfer the said Assistant Commissioners of Police to some other posts from where they may not be in a position to influence or prejudice the inquiry. There are a good number of such posts. We have full confidence that the Government and the Commissioner of Police will be able to identify suitable posts for them in the light of what has been observed above. Hence, we do not consider it necessary to specify the posts to which they should now be transferred. Nor is it our function to suggest the posts. The Government may effect the transfers but bearing in mind the spirit of the observations made by us and the administrative exigencies.

       Article 226 — Judicial review — Scope of — There is no administrative action beyond the scope of judicial review — Any act of repository of power is open to challenge if it is in conflict with the constitution or general principles of law.