Dinil J.K vs Kerala State Human Rights Commission & Ors.

Syam Kumar V.M., J.

Heard Mr.K.S.Prenjith Kumar, learned counsel for the petitioner and Ms.Steffy V.J., learned counsel for respondent Nos. 2 and 3.

The present writ petition has been filed by the petitioner, who was the 1st respondent in proceedings before the Kerala State Human Rights Commission in HRMP Nos.6915/11/12/2015 and 1586/2019. By the order dated 16^th February 2023 rendered in the said HRMP, the Human Rights Commission had concluded that the petitioner who was the Assistant Commissioner of Police of Fort Police Station, Thiruvananthapuram, during the relevant period, had failed to record the fact that the 2nd respondent had been brought to the said Police Station pursuant to a complaint. The Commission held that being a responsible Senior Police Officer, the petitioner had not complied with the guidelines to be followed while keeping a person under custody and recommended to the State Police Chief to take appropriate Departmental level action against the petitioner to ensure that he does not in future repeat such action. Aggrieved by the said order of the Commission, this W.P.(C) is filed by the petitioner.

The petitioner has in the W.P. (C) contended that the order of the Commission is unjust, arbitrary and illegal and is liable to be set aside. It is stated that while passing the impugned order, the Commission had exceeded its jurisdiction and the impugned order is liable to be set aside on the said account. Referring to Section 113 of the Kerala Police Act, 2011, it is contended that no suit, prosecution or other legal proceedings shall lie against the Government or any police officer or any public servant duly appointed or authorised under the said Act for anything done or intended to be done in good faith in the due discharge of the official duties. Elaborating on the circumstances in which the 2nd respondent had to remain in the Police Station, it is inter alia stated in the W.P.(C) that the mere fact that the second respondent/accused continued in the police station for a few hours during the night will not make it an illegal custody and human rights violation as contemplated under the Protection of Human Rights Act, 1993.

The learned counsel for the petitioner submitted that the petitioner, being a Police Officer, had acted only in accordance with law and also in good faith to ensure justice to the victim. There was no ill motive or abuse of power involved in his actions and the findings of the Commission are not based on proper appreciation of facts or law and hence the same is liable to be quashed.

The learned counsel for respondents 2 and 3 submitted that the order of the Human Rights Commission is legal and had been rendered after due appreciation of all relevant aspects, thus calls for no interference.

We note that the Commission had confined its inquiry to examine whether the 2nd respondent had been kept in illegal detention and did not proceed to consider the merits of the matter. After due hearing and appreciation of relevant aspects, the Commission had concluded that the 2nd respondent's presence in the Police Station from midnight on 29^th June 2018 until 10:00 a.m. on 30^th June 2018 had not been entered in the General Diary (GD), as envisaged under law. It was also concluded that the 2nd respondent was there in the Fort Police Station from the midnight of 29.06.2018 till morning at 10.00 on 30.6.2018 and thereupon he was taken to Thampanoor Police Station on 30.06.2018 and at 16.30 hours his arrest was recorded by the Thampanoor police and on 01.07.2018 at 14.30 he was produced before the court. It was also noted by the Commission that till the recording of his arrest on 30.06.2018 at 16.30 hours there was no entry in the GD entry of Fort and Thampanoor Police Station regarding the fact of keeping the 2nd respondent in custody.

In short, it was concluded by the Commission after due enquiry that for about 40 hours the 2nd respondent was kept in police custody. The Commission concluded that prima facie it could be seen that there was failure on the part of the petitioner, who was the Assistant Commissioner of Fort Police Station. It is on the basis of the same that the Commission concluded that, being a responsible senior police officer, the petitioner had failed to adhere to the guidelines governing the custody of persons under police custody and recommended to the State Police Chief that appropriate departmental action be initiated against the petitioner as stated above.

We find that the Commission, upon a detailed consideration of the records, the report submitted by its Investigation Department, and the materials produced by the parties, rightly concluded that the petitioner, who was in charge of the Police Station during the relevant period, had failed to comply with the guidelines prescribed for the custody of a person. Although an attempt has been made during the course of arguments to contend that the petitioner had complied with all the prescribed guidelines, the fact remains that there was a dereliction of duty on his part in failing to register the case on 29^th June 2018, as is evident from the documents produced before the Commission. The said lapse has not been explained even at this stage. The record speaks for itself. There is a famous saying that the witness may lie, but documents would never lie. The Human Rights Commission has meticulously considered the records produced before it and arrived at a definite finding regarding the dereliction of duty on the part of the writ petitioner, who was holding the responsible post of Assistant Commissioner of Police (ACP) during the relevant period. The dereliction of duty is borne out from the records produced before the Commission. In the absence of any cogent evidence to show that the reason for which the petitioner was held to be responsible for not complying with the mandatory guidelines in respect of a person while keeping him under custody, there is no reason for us to interfere with a very well reasoned and meticulous order passed by the Chairperson of the Kerala State Human Rights Commission, a former Judge of this Court. The merits of the matter have not been gone into. Moreover, we are only upholding the recommendation of the Human Rights Commission and not deciding the matter on merits.

The writ petition is accordingly disposed of. However, there shall be no order as to costs.

Exhibit P1 A TRUE COPY OF THE STATEMENT DATED 29.06.2018 OF THE DEFACTO COMPLAINANT RECORDED BY THE WSI, FORT POLICE STATION

Exhibit P2 A TRUE COPY OF FIR NO. 942 OF 2018 OF THAMPANOOR POLICE STATION

Exhibit P3 A TRUE COPY OF ORDER DATED 02.08.2018 IN BA NO. 5010 OF 2018 OF THIS HON’BLE COURT

Exhibit P4 A TRUE COPY OF THE COMPLAINT DATED 18.07.2018 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT

Exhibit P5 A TRUE COPY OF THE COMPLAINT DATED 28.02.2019 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT

Exhibit P6 A TRUE COPY OF THE REPORT DATED 17.07.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT COMMISSION

Exhibit P7 A TRUE COPY OF OBJECTION DATED 01.08.2018 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT COMMISSION

Exhibit P8 A TRUE COPY OF REPORT DATED 03.09.2019 SUBMITTED BY SMT. JAYA B., (WOMEN SUB-INSPECTOR) BEFORE THE 1ST RESPONDENT

Exhibit P9 A TRUE COPY OF THE REPORT DATED 10.10.2019 SUBMITTED BY SHRI. SREEKUMAR V.M., SUB INSPECTOR BEFORE THE 1ST RESPONDENT

Exhibit P10 A TRUE COPY OF OBJECTION DATED 07.01.2020 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT

Exhibit P11 A TRUE COPY OF THE ORDER DATED 16.02.2023 IN HRMP NOS 6915/11/12/2015 AND 1586/2019 ISSUED BY THE 1ST RESPONDENT