D.Sandilyan Vs. the Superintendent of Police - Court Judgment

SooperKanoon Citationsooperkanoon.com/927699
SubjectBanking
CourtChennai High Court
Decided OnJun-12-2012
Case NumberW.P.No.12710 of 2012
JudgeK.CHANDRU, J.
ActsBombay Police Act - Section 33(1)(o); Madras City Police Act, 1888 - Section 41; Constitution of India - Article 226, 19(1)(a)
AppellantD.Sandilyan
RespondentThe Superintendent of Police
Appellant AdvocateMr.S.Rajanikanth, Adv.
Respondent AdvocateMr.M.Dig Vijaya Pandian, Adv.
Excerpt:
[k.chandru, j.] bombay police act - section 33(1)(o) -- the petitioner in this writ petition seeks for a direction to the second respondent to permit conducting of demonstration either near tahsildar office or near revenue divisional office at cheyyar. this court by an order dated 1.3.2012 had permitted demonstration to be conducted. it is stated by him that on previous occasions, such demonstrations were allowed near tahsildar office. the taluk office is a place where public is assembled in large numbers and in such places, no permission can be granted. the petitioner is inclined to conduct demonstration on 25.6.2012 in front of the taluk office, cheyyar.this writ petition is preferred under article 226 of the constitution of india praying for the issue of a writ of mandamus to direct the second respondent to allot one of the regulated venue i.e. (1)near tahsildar office (2)near revenue divisional office for conducting demonstration in future date within a time frame fixed by the court.order1. the petitioner in this writ petition seeks for a direction to the second respondent to permit conducting of demonstration either near tahsildar office or near revenue divisional office at cheyyar.2. the petitioner is a town organizer of viduthalai chiruthaikal katchi, a registered political party. when he earlier was denied conducting demonstration by an order dated 8.2.2012, he had moved this court successfully in w.p.no.4139 of 2012. this court by an order dated 1.3.2012 had permitted demonstration to be conducted. in any event, in the present case, when the petitioner sought for conducting demonstration by a representation dated 11.3.2012 as per the direction issued by this court near the tahsildar office or near the revenue divisional office, by a communication, dated 11.3.2012, the second respondent inspector of police, cheyyar police station had declined to grant permission in those two places indicated on law and order grounds. however, he was permitted to conduct demonstration on 15.3.2012 for one hour near kanniam nagar in cheyyar to kancheepuram road near soundari theatre. once again, the petitioner had announced for conducting the rally for retrieving panchami lands on 09.04.2012 starting from mangal koot road to tahsildar office, cheyyar. it is stated by him that on previous occasions, such demonstrations were allowed near tahsildar office. even the other political party such as p.m.k was allowed to conduct demonstration on 4.4.2012. therefore, denial of permission was not valid.3. when the matter came up on 5.6.2012, this court ordered notice on admission and had directed the learned additional government pleader to get instructions from the respondents.4. today, when the matter came up, a counter affidavit was filed by the second respondent inspector of police. in the counter affidavit, allegations were made against the conduct of the petitioner stating that there were several criminal cases pending against the petitioner. the taluk office is a place where public is assembled in large numbers and in such places, no permission can be granted. in the last paragraph of the counter, it was averred as follows:"the respondent usually seeking permissions for one reason and conducting demonstrations against the police, revenue and judicial departments and created panic among the public and also spoiled the police image protesting the arrest of one desiga @ deivasigamani, an associate of the respondent who involved in 23 cases including a murder case. similarly the respondent also involved in the above four cases and is facing trial. if he was allowed to conduct demonstrations in the above places, the public peace and tranquility will be paralyzed and create panic among the public. hence i objected to grant permission for conducting demonstrations in front of taluk office and rdo's office, cheyyar and permission may be granted to the respondent to some other places where deemed fit."5. it is not clear as to how the grounds raised by the respondent for refusing permission can be said to be germane to the issue on hand. the petitioner belonged to a registered political party. both as an individual as well as political party, he is entitled to ventilate his grievance by a public demonstration, such as procession or dharna. it is not as if the taluk office is a place which is precluded from being the venue for conducting demonstrations.6. in this context, it is necessary to refer to the judgment of the supreme court in himat lal k. shah v. police commissioner, ahmedabad reported in (1973) 1 scc 227 rendered by a constitution bench of the apex court, wherein, the court struck down rule 7 of the rules framed under the bombay police act on the ground that rule, which empowered the commissioner of police to refuse permission to hold meetings without giving any guidance under the rule and thereby conferring an arbitrary discretion, was an unreasonable restriction on the freedom of association and freedom of assembly guaranteed under article 19 of the constitution. the court also held that the word "regulating" in section 33(1)(o) of the bombay police act would include the power to prohibit and impose the condition that permission should be taken a few days before the holding of the meeting on a public street. mathew, j., dissented from the view of the majority and held that the power to regulate did not include the right to prohibit and the permission sought for holding a meeting ought not be refused. the majority opinion was that regulation is necessary to enable citizens to enjoy the various rights in crowded public streets, and that the state can make regulation in aid of the right of the assembly of each citizen and can impose reasonable restrictions in the interest of public order.7. the supreme court also in s. rangarajan v. p.jagjivan ram reported in (1989) 2 scc 574 held that freedom of speech under article 19(1)(a) of the constitution of india means the right to express one's own opinion by word of mouth, printing, picture or is any one manner of ideas made through any and the communication of ideas made through any medium. such right, however, was held to be subject to reasonable restrictions in the larger interest of the community and the country as set out in article 19(2) of the constitution. those restrictions are intended to strike a proper balance between the liberty guaranteed, and the social interests specified under article 19(2). the court emphasised that the interest of freedom of expression and social interest cannot be regarded as of equal weight and the court's commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. the anticipated danger should not be remote, conjectural or farfetched, but should have proximate and direct nexus with the expression. the expression of thought should be intrinsically dangerous to the public interests. it should be inseparably locked up with the action contemplated like the equivalent of a "spark in a powder keg." further it is not the intention of respondents to prohibit the demonstration itself. the only question is the place where the demonstration can proceed.8. while dealing with a similar situation on the powers conferred on the commissioner of police under section 41 of the madras city police act, 1888, this court (r. jayasimha babu, j.) vide judgment in p. nedumaran v. state of tamil nadu and others reported in 1999 (1) l.w. (cri) 73 defined the scope of the rights of citizen and the power of the state to impose reasonable restriction. the following passages found in paragraphs 15 to 18 may be usefully extracted:para 15:"the rights conferred on the citizens by article 19 of the constitution are precious rights and are not to be lightly breached or restricted by the state or any functionary of the state. any regulation of exercise of those rights must be for the purposes specified in article 19 of the constitution itself, and that power must be so exercised as to subserve the larger public good. the power to impose restrictions is not the power which is available for exercise in an arbitrary manner or for the purpose of promoting the interest of those in power, or for suppressing dissent democracy can be made dynamic an truly alive only when there is free market for ideas and discussion and debate is not only permitted but is encouraged. all expression of opposing view point cannot be regarded as dangerous to the safety or security of the country and all expressions which do not find the approval of those exercising the power of the state cannot be regarded as harmful to the state and to the public order.para 16:the power conferred on the commissioner under section 41 of the madras city police act is sweeping, that power is meant to be exercised with great care and caution. the madras city police act is a pre-constitution enactment, and the powers conferred on the authorities at a time when the country was under the colonial regime, and during the period when suppression of dissent was considered to be a legitimate policy of the state, cannot be exercised after the enactment of the constitution in the same manner, as it was exercised earlier. the intelligence report placed before the court shows that the police still have the attitude which does not seem to recognise that the country is a democratic nation, where every citizen has a right to full and equal participation in the process of government. no citizen can be regarded as an enemy of the state merely because he has voiced a view which is not the one favoured by those in authority.para 17:the fact that the police are vested with power should not make them assume that, that power is available for exercise in any manner that they consider fit. that power is to be exercised strictly within the ambit of the provisions of the constitution, more particularly, the requirement that any restriction placed on the exercise of fundamental rights should be a reasonable restriction, and the restrictions so placed should be shown to be essential, having regard to the permissible purpose for which restrictions may be imposed.para 18:the fact that the petitioner-association is voicing a view point which may not be popular cannot be a justification for preventing that point of view being projected."this court is in entire agreement with the views expressed therein.9. the petitioner is inclined to conduct demonstration on 25.6.2012 in front of the taluk office, cheyyar. it is stated by the learned additional government pleader that no fresh representation was given. inasmuch as there was already a direction of this court to consider the representation and that representation was not having been considered, which is the subject matter of this writ petition, it is unnecessary to seek for an another representation. therefore, this court is convinced with the right of the petitioner to conduct such demonstration. hence the petitioner is permitted to hold the demonstration on 25.6.2012 in front of the taluk office, cheyyar within the time chosen by him and also intimated to the respondents. it is needless to state that the petitioner and his party men will keep public peace and tranquility during the demonstration and not to give room for any complaint. accordingly, the writ petition will stand allowed to an extent indicated above. no costs.
Judgment:

This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the second respondent to allot one of the regulated venue i.e. (1)near Tahsildar office (2)near Revenue Divisional Office for conducting demonstration in future date within a time frame fixed by the court.

ORDER

1. The petitioner in this writ petition seeks for a direction to the second respondent to permit conducting of demonstration either near Tahsildar Office or near Revenue Divisional Office at Cheyyar.

2. The petitioner is a Town Organizer of Viduthalai Chiruthaikal Katchi, a registered political party. When he earlier was denied conducting demonstration by an order dated 8.2.2012, he had moved this court successfully in W.P.No.4139 of 2012. This court by an order dated 1.3.2012 had permitted demonstration to be conducted. In any event, in the present case, when the petitioner sought for conducting demonstration by a representation dated 11.3.2012 as per the direction issued by this court near the Tahsildar office or near the Revenue Divisional office, by a communication, dated 11.3.2012, the second respondent Inspector of Police, Cheyyar Police station had declined to grant permission in those two places indicated on law and order grounds. However, he was permitted to conduct demonstration on 15.3.2012 for one hour near Kanniam Nagar in Cheyyar to Kancheepuram road near Soundari Theatre. Once again, the petitioner had announced for conducting the rally for retrieving Panchami lands on 09.04.2012 starting from Mangal Koot Road to Tahsildar office, Cheyyar. It is stated by him that on previous occasions, such demonstrations were allowed near Tahsildar office. Even the other political party such as P.M.K was allowed to conduct demonstration on 4.4.2012. Therefore, denial of permission was not valid.

3. When the matter came up on 5.6.2012, this court ordered notice on admission and had directed the learned Additional Government Pleader to get instructions from the respondents.

4. Today, when the matter came up, a counter affidavit was filed by the second respondent Inspector of Police. In the counter affidavit, allegations were made against the conduct of the petitioner stating that there were several criminal cases pending against the petitioner. The taluk office is a place where public is assembled in large numbers and in such places, no permission can be granted. In the last paragraph of the counter, it was averred as follows:

"The respondent usually seeking permissions for one reason and conducting demonstrations against the Police, Revenue and Judicial Departments and created panic among the public and also spoiled the police image protesting the arrest of one Desiga @ Deivasigamani, an associate of the respondent who involved in 23 cases including a murder case. Similarly the respondent also involved in the above four cases and is facing trial. If he was allowed to conduct demonstrations in the above places, the public peace and tranquility will be paralyzed and create panic among the public. Hence I objected to grant permission for conducting demonstrations in front of Taluk Office and RDO's office, Cheyyar and permission may be granted to the respondent to some other places where deemed fit."

5. It is not clear as to how the grounds raised by the respondent for refusing permission can be said to be germane to the issue on hand. The petitioner belonged to a registered political party. Both as an individual as well as political party, he is entitled to ventilate his grievance by a public demonstration, such as procession or dharna. It is not as if the Taluk office is a place which is precluded from being the venue for conducting demonstrations.

6. In this context, it is necessary to refer to the judgment of the Supreme Court in Himat Lal K. Shah v. Police Commissioner, Ahmedabad reported in (1973) 1 SCC 227 rendered by a Constitution Bench of the Apex Court, wherein, the Court struck down Rule 7 of the Rules framed under the Bombay Police Act on the ground that Rule, which empowered the Commissioner of Police to refuse permission to hold meetings without giving any guidance under the Rule and thereby conferring an arbitrary discretion, was an unreasonable restriction on the freedom of association and freedom of assembly guaranteed under Article 19 of the Constitution. The Court also held that the word "regulating" in Section 33(1)(o) of the Bombay Police Act would include the power to prohibit and impose the condition that permission should be taken a few days before the holding of the meeting on a public street. Mathew, J., dissented from the view of the majority and held that the power to regulate did not include the right to prohibit and the permission sought for holding a meeting ought not be refused. The majority opinion was that regulation is necessary to enable citizens to enjoy the various rights in crowded Public Streets, and that the State can make regulation in aid of the right of the assembly of each citizen and can impose reasonable restrictions in the interest of public order.

7. The Supreme Court also in S. Rangarajan v. P.Jagjivan Ram reported in (1989) 2 SCC 574 held that freedom of speech under Article 19(1)(a) of the Constitution of India means the right to express one's own opinion by word of mouth, printing, picture or is any one manner of ideas made through any and the communication of ideas made through any medium. Such right, however, was held to be subject to reasonable restrictions in the larger interest of the community and the country as set out in Article 19(2) of the Constitution. Those restrictions are intended to strike a proper balance between the liberty guaranteed, and the social interests specified under Article 19(2). The Court emphasised that the interest of freedom of expression and social interest cannot be regarded as of equal weight and the court's commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or farfetched, but should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interests. It should be inseparably locked up with the action contemplated like the equivalent of a "spark in a powder keg." Further it is not the intention of respondents to prohibit the demonstration itself. The only question is the place where the demonstration can proceed.

8. While dealing with a similar situation on the powers conferred on the Commissioner of Police under Section 41 of the Madras City Police Act, 1888, this Court (R. Jayasimha Babu, J.) vide judgment in P. Nedumaran v. State of Tamil Nadu and others reported in 1999 (1) L.W. (CRI) 73 defined the scope of the rights of citizen and the power of the State to impose reasonable restriction. The following passages found in paragraphs 15 to 18 may be usefully extracted:

Para 15:"The rights conferred on the citizens by Article 19 of the Constitution are precious rights and are not to be lightly breached or restricted by the State or any functionary of the State. Any regulation of exercise of those rights must be for the purposes specified in Article 19 of the Constitution itself, and that power must be so exercised as to subserve the larger public good. The power to impose restrictions is not the power which is available for exercise in an arbitrary manner or for the purpose of promoting the interest of those in power, or for suppressing dissent Democracy can be made dynamic an truly alive only when there is free market for ideas and discussion and debate is not only permitted but is encouraged. All expression of opposing view point cannot be regarded as dangerous to the safety or security of the country and all expressions which do not find the approval of those exercising the power of the State cannot be regarded as harmful to the State and to the public order.

Para 16:The power conferred on the Commissioner under Section 41 of the Madras City Police Act is sweeping, that power is meant to be exercised with great care and caution. The Madras City Police Act is a pre-Constitution enactment, and the powers conferred on the authorities at a time when the country was under the colonial regime, and during the period when suppression of dissent was considered to be a legitimate policy of the State, cannot be exercised after the enactment of the Constitution in the same manner, as it was exercised earlier. The Intelligence Report placed before the Court shows that the police still have the attitude which does not seem to recognise that the country is a democratic nation, where every citizen has a right to full and equal participation in the process of Government. No citizen can be regarded as an enemy of the State merely because he has voiced a view which is not the one favoured by those in authority.

Para 17:The fact that the police are vested with power should not make them assume that, that power is available for exercise in any manner that they consider fit. That power is to be exercised strictly within the ambit of the provisions of the Constitution, more particularly, the requirement that any restriction placed on the exercise of fundamental rights should be a reasonable restriction, and the restrictions so placed should be shown to be essential, having regard to the permissible purpose for which restrictions may be imposed.

Para 18:The fact that the petitioner-Association is voicing a view point which may not be popular cannot be a justification for preventing that point of view being projected."

This Court is in entire agreement with the views expressed therein.

9. The petitioner is inclined to conduct demonstration on 25.6.2012 in front of the Taluk office, Cheyyar. It is stated by the learned Additional Government Pleader that no fresh representation was given. Inasmuch as there was already a direction of this court to consider the representation and that representation was not having been considered, which is the subject matter of this writ petition, it is unnecessary to seek for an another representation. Therefore, this court is convinced with the right of the petitioner to conduct such demonstration. Hence the petitioner is permitted to hold the demonstration on 25.6.2012 in front of the Taluk Office, Cheyyar within the time chosen by him and also intimated to the respondents. It is needless to state that the petitioner and his party men will keep public peace and tranquility during the demonstration and not to give room for any complaint. Accordingly, the writ petition will stand allowed to an extent indicated above. No costs.