M.G. Shivaraj vs Inspector of Police, Thuraipakkam Police Station

This petition is registered on a telegram received by the Chief Justice issued by M. G. Shivaraj, Advocate. It is issued on 11-10-1993 at 18-29

hrs. The contains of the telegram are that Vaiyapuri, son of Govindaswamy, aged 18 years of Canalpuram Palavakkam, Madras was forcibly

taken by the Inspector of Police. Thuraipakkam and his men on 7-10-1993 and was illegally detained for the past five days. It is stated that the life

of the petitioner is in stake and relatives are not allowed to feed him. The Chief Justice is requested to kindly intervene and save this life of the

petitioner. When this H.C.P. was posted before on 13-10-1993, nobody was present on behalf of the petitioner. The name of the counsel Mr.

Shivaraj appeared in the cause list. But, he remained absent. We were informed by the Public Prosecutor that a regular writ petition has been filed

and it is numbered as H.C.P. No. 1900/93 with respect to the very same matter and it comes up before the other Bench consisting of

Arunachalam, J. and Swamidurai, J. we direct the matter to be posted the next day i.e., yesterday. Yesterday also nobody represented the

petitioner and counsel remained absent. We directed the matter to be posted today.

Today, Dr. G. Krishnamoorthy appears in Court and represents that Mr. Shivaraj is his junior and as H.C.P. No. 1900/93 has been

entertained, there is no necessity for this petition and this can be dismissed as such. The Public Prosecutor represents that nowadays it has become

a fashion to send telegram of this kind and then file writ petitions making allegations that no action has been taken. It is submitted by him that

advocates should not be permitted to send telegrams like this. It is also brought to our notice that most of the telegrams do not contain the address

or other particulars of the sender and on enquiry the contents are found to be false.

We find that the complaint of the Public Prosecutor is well laid. We have already noted that the telegram was issued at 18.29 hrs. on 11-10-

1993. It has been issued by an advocate. It reached the Chief Justice on the 12th morning and immediately ordered to be registered as H.C.P.

Nobody could have expected any action earlier than that. Yet, in H.C.P. No. 1990/93, the petitioner viz., Mrs. Dhanam, w/o Govindaswamy

being the mother of the person who is said to have been in custody has filed an affidavit alleging in paragraph 7 that she sent telegrams through her

counsel on 11-10-1993 to His Excellency the Governor of Tamil Nadu, the Chief Justice of Tamil Nadu, the Home Secretary, the the Director

General of Police and the Superintendent of Police, Chengai M.G.R. East District and that ""there is no effect to the same"". It is said, ""I have no

other alternative remedy than to invoke the Special Original Jurisdiction of this Court under Art. 226 of the Constitution of India"". The affidavit has

been sworn to on the 12th day of October, 1993. It has been taken on file on that day itself and registered as H.C.P. No. 1990 of 1993. The very

allegation shows that the telegram has not been sent with bona fide intention. The telegram is sent by one advocate late in the evening and the next

morning another advocate files a regular writ petition alleging that no action has been taken on the telegram. Both advocates belong to the same

office, being the juniors of Dr. Krishnamurthy. The advocate who sent the telegram does not choose to appear before Court even though the

matter is shown in the cause list for three days consecutively.

It is submitted by the Public Prosecutor that the Registry should not register every telegram as a H.C.P. In our view, he is right. We have now

come across a number of cases in which this practice of registering telegrams as writ petitions under Art. 226 of the Constitution of India is being

not only misused but also grossly abused. In one case, a petition under Art. 226 of the Constitution was pending as H.C.P. No. 1239 of 1993

from 2-8-1993. In that case, the detenu''s wife sent a telegram to the Chief Justice on 4-9-1993 requesting him to treat it as a writ petition and

making a complaint against the District Judge, Salem that he was illegally remanding her husband into custody beyond the period specified by law.

There was no reference to the pending H.C.P. in the telegram. The Chief Justice had to direct an administrative enquiry. It was found that the

District Judge had acted within the parameters laid down by law and the papers had to be filed. But, lot of time had to be spent unnecessarily on it

which could have been avoided if a reference to the pending H.C.P. had been made in the telegram.

In another case, viz., H.C.P. No. 1860 of 1993, the telegram was sent by one Krishnaveni stating that her husband Balaraman was illegally

detained by E-3 Crime Inspector. The address of the sender of the telegram or any other particulars of the sender were not found in the telegram.

The same was registered as H.C.P. and the Public Prosecutor had made enquiries with the concerned Police Inspector. It was reported by him

that the person mentioned in the telegram viz., Balaraman was not in police custody and he was not required in connection with any offence.

Learned counsel appearing for the petitioner at the instance of the Legal Aid Centre could not contact the sender of the telegram as there was no

address. We adjourned the matter from 7-10-1993 to 14-10-1993. It came yesterday. Learned counsel reported that she had written to the Chief

Superintendent, Department of Telecommunications and there was no reply. We dismissed the petition observing that it was not the duty of the

Court or counsel to find out the address of the sender of the telegram when the latter had not chosen to give it in the telegram itself.

In H.C.P. No. 1901 of 1993, which was also a petition registered on a telegram, there was no address of the person who issued the telegram.

The Public Prosecutor got the information from the concerned Inspector of Police that the person mentioned in the telegram was no under custody

and that she had to be questioned in connection with suicide committed by one Ethiraj as her name was found in the suicide-note. It was also

reported by the Public Prosecutor that the person had already been sent back. Recording the statement of the Public Prosecutor, we had

dismissed the petition.

In H.C.P. No. 1903 of 1993, a telegram was sent by the wife of the detenu in the night on 11-10-1993. It was received by the High Court on

12-10-1993. On that day itself the very same person engaged advocates and filed a regular writ petition which was registered as H.C.P. No.

1923 of 1993. Referring to the said fact, we dismissed the petition as unnecessary.

In H.C.P. 1890 of 1993, the telegram was sent by an advocate who failed to appear before Court though his name was printed in the cause list

as petitioner. According to the telegram, his client was taken to the police station and forced to sign a blank paper. There was no allegation of

illegal detention. Yet, the Registry registered it as a H.C.P. and posted before us. We dismissed it yesterday as there was no case.

In H.C.P. 1923 of 1993, the telegram which was registered as H.C.P. was sent on 12-10-1993 with the allegation that some persons were

illegally detained from 22 hrs. on 11-10-1993 and tortured by the police. Neither the address nor the relationship of the sender was disclosed. The

Public Prosecutor could get the relevant information from the police station mentioned in the telegram on the basis of which we dismissed the

H.C.P.

On a study of the above cases, we find that people are taking undue advantage of the fact that the High Court is acting on telegrams being sent

even when such telegrams do not contain relevant particulars. It is seen that the telegrams are treated as Public Interest Litigations by the P.I.L.

Cell of the High Court and registered as writ petitioners by the Registry of the High Court. On such registration, the Legal Aid Centre is requested

to nominate a lawyer for conducting the case on behalf of the petitioner if the telegrams have been sent by persons other than lawyers. If the

senders of the telegrams are advocates, they are themselves treated as counsel in the case and their names are printed in the cause list. If the Legal

Aid Centre nominates a lawyer, he is paid a minimum fee of Rs. 250/- for the case. If the case is contested and involves some argument, the

lawyer is paid at least Rs. 500/-. Thus, the total expenditure in each case ranges from Rs. 400/- to Rs. 750/- at least. We are unable to appreciate

how public funds can be spent on matters of this type when most of the telegrams turn out to be false alarms setting this Court on a wild goose

chase. These cases will not fall either under the category of PIL or under Legal Aid Cases. The characteristics of a public interest litigation are by

now well defined. Recently, in Janata Dal Vs. H.S. Chowdhary and Others, , the Supreme Court warned against frivolous litigations in the garb of

public interest litigation and said :-

It is thus clear that only a person acting bona fide and having sufficient interest in the proceedings of PIL will alone have a locus standi and

can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for

personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought

before the Court for vindicating any personal grievance, deserves rejection at the threshold.

It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumberable days are wasted which time

otherwise could have been spent for the disposal of cases of the genuine litigants. Though we are second to none in fostering and developing the

newly invented concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental

rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard; yet we cannot avoid but express our opinion that

while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases

in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for

long years, persons suffering from the undue delay in service matters, Government or private persons awaiting the disposal of tax cases wherein

huge amounts of public revenue or unauthorised collection of tax amounts are locked up, detenus expecting their release from the detention orders

etc. etc. - are all standing in a long serpentine queue for years with the found hope of getting into the Courts and having their grievances redressed,

the busy bodies, meddlesome interlopes, wayfarers or officious interveners having absolutely no public interest except for personal gain or private

profit either for themselves or as proxy or others or for any other extraneous motivation or for glare of publicity break the queue muffling their faces

by wearing the mask of public interest litigation, and get into the Courts by filing vexatious and frivolous petitions and thus criminally waste the

valuable time of the Courts and as a result of which the queue standing outside the doors of the Court never moves which piquent situation creates

a frustation in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system.

In the words of Bhagwati, J. (as he then was) ""the Courts must be careful in entertaining public interest litigations"" or in the words of Sarkaria,

J. ""the applications of the busy bodies should be rejected at the threshold itself"" and as Krishna Iyer, J. has pointed out, the doors of the Courts

should not be a jar for such vexatious litigants.

Nor do the cases require legal aid which is intended only for the poor who cannot afford to engage lawyers and avail of the normal process of

law. In fact we found that the parties in some of these cases are very rich and they can well afford to engage renowned and senior lawyers whose

usual charges are heavy.

Apart from that as pointed out rightly by the Public Prosecutor, these telegrams are often intended to put a spoke in the wheel of ''law

enforcement'' and hamper the progress of investigation. There is a good chance of relevant and crucial evidence being removed or destroyed while

the investigating officer is summoned to this court to answer the H.C.P. The Public Prosecutor points out that for example in cases of dacoity,

when the concerned police officer who is in charge of investigation is in the process of instructing the Public Prosecutor with the facts to be placed

before the Court the interested persons will destroy the relevant evidence.

Further, valuable time of the Judges and other officials of this Court will be wasted on such matters while genuine cases of persons who have

approached this Court through the regular roads have to wait continuously unattended for years together. A look at the statistics will disclose how

in the recent past the number of H.C.Ps. has shot up beyond anyone''s expectation increasing the workload beyond measure. There is no

presumption that every police officer indulges in illegal detention.

If the time of the Police Officials is to be consumed by their attending to these H.C.Ps. how will they carry out their normal duties in the matter

of enforcement of law ? Already there is a complaint from all quarters that police officials are used only for the bandobust duties of V.I.Ps. and

V.V.I.Ps. and sufficient number of them is not available to attend to either the increasing traffic problems or prevention or detection of heinous

crimes. There is also likelihood of the police officials getting demoralised if they are summoned to this Court even when they function in accordance

with law. Besides, the police officers have to be paid by the State their travelling expenses, and daily battas, etc. That will also be a big drain on the

State Exchequer.

More than anything else, we are pained to note that advocates have started issuing telegrams to the Chief Justice thus misusing the procedure.

In our opinion, when an advocate receives instruction from the party with regard to the facts, it is his duty to adopt the appropriate procedure

prescribed by law. It is not as if there is no provision in the law with regard to these matters. For example, there is a provision in S. 97 of the Code

of Criminal Procedure which enables a person to approach the District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class in

cases where a person is stated to be wrongfully confined. The advocates can always avail themselves of such provisions of law and file appropriate

proceedings. In fact, it is not necessary in every case to approach this Court and invoke its extraordinary jurisdiction under Art. 226 of the

Constitution with a petition for issue of writ of habeas corpus. Even without a writ petition, the relief which may be needed by the party can easily

be obtained by resorting to other remedies. Hence, we are of the opinion that in no case an advocate who receives instructions from the parties

with regard to the facts should send a telegram to this Court or the Judges with an expectation that it would be treated as a writ petition.

It appears that people send telegrams as soon as any person is arrested by the police or taken to the police station for enquiry. In the

circumstances, we are firmly of the view that the Registry of this Court should stop this practice of indiscriminate registering of the telegrams as

H.C.Ps. Otherwise, in course of time, people will stop adopting the normal procedure prescribed by law and the normal safeguards provided by

the Legislature will have to be thrown into the dustbin. In the larger interests of the country, the Legislative wisdom cannot be ignored and Courts

should not evolve a new procedure unless there is an extraordinary situation warranting it.

Hence, we lay down the following guidelines to be followed by the High Court Legal Aid Centre, Madras and the Registry of this Court :-

(1) A telegram should not be registered as H.C.P. unless it contains the following particulars :-

(a) the connection or relationship between the sender of the telegram and the persons who are said to have been taken into custody and illegally

detained;

(b) full particulars of the sender.

(2) A telegram sent by an advocate on behalf of a party should not be registered as H.C.P. In all cases where the advocate have received

instructions from the parties with regard to the facts should get affidavits from the parties and file the same in Court with appropriate petitions. No

advocate should indulge in sending a telegram to the Chief Justice and requesting the latter to treat it as a writ petition. It is the duty of an advocate

to advise the party appropriately and file a proper petition before the Court. The procedure of sending telegram and registering it as writ petition is

intended only for poor people who cannot afford to engage advocates.

(3) All telegrams received by the High Court must be forwarded to the Tamil Nadu State Legal Aid and Advisory Board for the purpose of their

investigation and taking action only when necessary. It is noticed that the Legal Aid and Advisory Board is having machinery for making such

investigations and they are having their branches in every district. It will be convenient for them to ascertain the facts before any action is taken in

Court.

The habeas corpus petition is dismissed with the above directions.

Petition dismissed.