Today the Writ Petition filed by Sabha @ SabhaRathinam was listed for admission as item No.55 before Justice G.K.Ilantharayan today. After hearing the arguments of Mr.Niranjan.S.Kumar, Counsel for the Petitioner, the Hon’ble Madurai Bench of Madras High Court has directed the
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[3/10, 12:52] Sekarreporter: Today the Writ Petition filed by Sabha @ SabhaRathinam was listed for admission as item No.55 before Justice G.K.Ilantharayan today. After hearing the arguments of Mr.Niranjan.S.Kumar, Counsel for the Petitioner, the Hon’ble Madurai Bench of Madras High Court has directed the DGP/Commissioner of Police to File their Counter affidavit on or before 12.04.2022. The prayer in the Writ Petition is for a issuance of a Writ of Mandamus, to forbear the Police from attempting Encounter and for a consequential direction to accept Surrender of the Petitioner.
[3/10, 12:52] Sekarreporter: .
THE HIGH COURT JUDICATURE OF AT MADRAS
MADURAI BENCH
(Special Original Jurisdiction)
WP(MD).No. of 2022
P.Saba @ Sabarathinam (M-42/ 2022),
S/O/Pandi,
3/489 Chinthamani Main Road,
Keeraithurai,
Madurai
… Petitioner
-Vs.-
1) The Director General of Police,
Office of Director of General of Police,
Dr.Radhakrishnan Salai,
Mylapore,
Chennai – 600-004.
And 2 others ….Respondent
BOOKLET – INDEX
S.No Date Description Page No
1 —— Synopsis and Dates & Events 1-2
2 —— Court Fee 3
3 —— Coding Sheet 4
4 —— Writ Petition 5-6
5 —— Affidavit 7-15
TYPED SET OF PAPERS
6 11.02.2022 Representation Sent by the petitioner with tracking report 16-24
7 ——– Copy of theJudgment in W.P(MD) No: 5876 of 2010 25-30
8 Vakalat 31-32
9 Batta 33-34
Certified the above are true copies of the Originals.
Dated at Madurai on this 7th March 2022
Counsel for Petitioner
IN THE HIGH COURT OF JUDICATURE AT MADRAS
MADURAI BENCH
(Special Original Jurisdiction)
W.P.(MD)No. of 2022
P.Saba @ Sabarathinam (M-42/ 2022),
S/O/Pandi,
3/489 Chinthamani Main Road,
Keeraithurai,
Madurai
… Petitioner
-Vs.-
1) The Director General of Police,
Office of Director of General of Police,
Dr.Radhakrishnan Salai,
Mylapore,
Chennai – 600-004.
2) The Commissioner of Police,
Madurai City,
Alagar Kovil Main Raod,
Madurai.
3) The Superintendent of Police,
District Superintendent of Police,
Ramanathapuram … Respondents
AFFIDAVIT OF PETITIONER
I, P.Saba @ Sabarathinam, S/O.Pandi, Hindu Aged about 42 years, residing at 3/489Chinthamani Main Road, Keeraithurai, Madurai and do hereby solemnly affirm and sincerely state as follows: –
1) I submit that I am the petitioner herein and as such I am well acquainted with the facts and circumstances of the case. I have not filed any other Writ Petition seeking similar relief arising out of same cause of action.
2) I submit that I am Coolie by profession and I belong to economically down trodden community and I am the only bread-winner for my family. During the year 2008, due to unwanted friendship, I have been falsely implicated in a case, which was registered by Keeraithurai Police Station. Subsequently, I was enlarged on bail in the said case.
3) I further submit that, I submit that there after the Madurai city police officials, whenever they could not trace the real accused, my name was added to their convenience and as a result I was made/added as accused in many cases.
4) I submit that even though all the many cases where registered, my involvement in the cases are only illusionary. Though those cases are illusionary, I promptly filed anticipatory Bail/bail application and that either before the trial court/District Sessions court or the Hon’ble High court and have been enlarging on anticipatory bail/bail in all the cases. The investigating agency namely the concern Inspector of police had filed charge sheets before the appropriate court and cognizance had been taken and that the trial is pending. Many cases were disposed as on date.
5) I further submit that I am regularly appearing in all the above said cases and that as on date, there is no Warrant (NBW) pending in any of the cases. As a responsible citizen, all along I have been contesting all the cases tooth and nail to prove my innocence.
6) I submit that even though I am facing above mentioned cases and that my time is almost spent at court each and every day, as I have stated earlier that I am also bound to earn the bread and butter for my family. In spite of the difficulties faced by me I have been regularly cooperating for all the investigation and regularly appearing before the trial Courts.
7) I submit that while the situation being so, the Inspectors of police of S.S. Colony police station, Subramaniyapuram police station, Paramakudi town police station, Keeraithurai police station, have registered false cases against me under the Narcotic Drugs and Psychotropic Substances Act, 1985 in their respective police station I have neither involved in any of the cases nor had even any connection in those cases.
8) I submit that in these circumstances it is pertinent to mention that the police officials of Madurai seized 1500KGms of Kanja (Marijuna) from a container near Erode-Coimbatore District. The Police Officials instead of registering a case for the entire recovery of 1500Kgms of Kanja, they used such recovered Kanja to foist false case against the entire person whom the police wanted to remand
9) I further submit that, due to foist of criminal cases by Madurai City Police and Superintendent of Police, Ramnathapuram. Now I have been facing criminal cases as stated below.
S.No. Crime No. Sections Police Station Stage of case
1. 1453/2019 8(c)r/w 20(b)(ii)(C), 25, 29(i) NDPS Act C2 Subramaniapuram L&O Police Station, Madurai City. PT
2. 349/2017 147, 148, 302, 341, 506(ii) IPC @ 120(b), 147, 148, 302, 341, 506(ii) IPC (PT) B6 Keeraithurai Police Station PT
3. 607/2019 20(b)(ii)(C), 8(c) NDPS Act @ 20(b)(ii)(B), 25, 29(1) NDPS Act B6 Keeraithurai Police Station PT
4. 396/2018 147, 148, 341, 294(b), 302, 506(ii) IPC B6 Keeraithurai Police Station PT
5. 165/2019 302,341, 506(ii) IPC @ 109, 114, 120(b), 147, 148, 149, 201, 302, 506(ii) IPC B5 South Gate Police Station PT
6. 90/2015 147, 148, 364, 302 & 201 IPC
B5 South Gate Police Station PT
7. 153/2018 25(1)(a) Arms Act, 147, 148, 294(b), 392, 397, 506(ii) IPC @ 25(1)(a) Arms Act, 120(b), 147, 148, 212, 294(b), 34, 392, 397, 506(ii) IPC
C3 SS Colony Police Station PT
8. 2361/2020 8(c) r/w 20(b)(ii)(c), 25& 29 (i) NDPS Act C3 SS Colony Police Station UI
9. 604/2017 147, 148, 302,324,341, 506(ii) IPC @ 120(b), 147, 148, 302, 324, 341, 506(ii) IPC B3 Theppakulam Police Station PT
10. 544/2019 4(1-A), 4(1)(aaa) TNP Act PEW Madurai City NTF
11. 68/2013 Trnas. to CBCID
11/2015 109, 120(b), 147, 148, 149, 202, 216, 302, 34, 341, 342 IPC & 3(1) TNPPDL Act @ 212, 216, 149, 342, 302, 34, 341 & 109 IPC & 3(1) of TNPPDL Act C2 Subramaniyapuram Police Station PT
12. 72/2016 147, 148, 294(b), 302, 120(b) r/w 212 IPC Sikkal Police Station, Ramnad District PT
10) I further submit that, prior to registering a false NDPS cases as against me, I have been extending my fullest co-operation to complete the trail to prove my innocence. Once after foisting the false NDPS cases I kept my self low from the threat of fake encounter.
11) I further submit that, encounter is directly violating the Article 21 of Constitution. A judgment reported in (2010) 7 SCC 263 : Selvi Vs State of Karnataka has held that
“Forcing an individual to undergo any of the impugned techniques violates the standard of `substantive due process’ which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature”.
12) I further submit that , a judgment reported in (2011) 6 SCC 189 : Prakash Kadam & Etc Vs V.Ramprasad Vishwanath Gupta & another has held that that
“Fake encounters’ are equivalent to ‘cold blooded’ and ‘brutal murder’ by persons who are expected to uphold the supremacy of law. Also it has been observed by the Hon’ble court that if crimes are committed by common people, ordinary punishment should be given, but if the offence is committed by policemen much stricter punishment should be given to them because they do an act totally opposed to their duties, and where a fake encounter is established against policemen in a trial, they must be given death sentence, considering it as the ‘rarest of rare cases’ ”.
13) I further submit that a judgment reported in (2012) 12 SCC 72 ; Om Prakash Vs State of Jharkhand has held as
“‘State-sponsored terrorism’ and stated that it is not the duty of the policemen to neutralize the accused just because he is a ‘dreaded criminal’. The police have to arrest the culprit and put them up for trial. Such killings must not be cherished. They are not justified by our criminal justice administration system”
14) I further submit that country has a history of allegedly fake encounters ranging from Veerapan of Tamil Nadu in 2004, Ishrat Jahan who was also encountered in 2004 by the Gujarat police for which the trial is still underway in a CBI court in Ahmedabad, Sohrabuddin Sheikh who was again encountered by the same Gujarat police in 2005 in which lately on December 21, 2018, all the 22 accused were acquitted by a special CBI court citing lack of evidence.
15) I further submitted that our country functions on rule of law and on the principle of ‘presumption of innocence’ till the guilt is proved against the person charged. The judicial process upholds the supremacy of law and prevents arbitrary exercise of power. Even Ajmal Kasab, perpetrator of the 26/11, got a trial. When I prepared to face the trial, it is obvious that there are high chances of my acquittal, as all the criminal cases are falsely foisted one. Therefore, in order to avoid such an embracement, for the officials, under whose instructions, all these false cases were foisted, now encounter is planned. The police encounters affect the credibility of the rule of law and the administration of the criminal justice system.
16) I further submit that, while deciding the similar case, this Hon’ble court in Writ petition in WP(MD) No: 5876 of 2010 dated 01.03.2011 had issued directions which is extracted below for the easy reference
DIRECTIONS:
(A) (1) It is open to the accused to surrender before the learned Chief Judicial Magistrate, Thanjavur in S.C.No.46 of 2008.
(2) In case the police makes a request for custody in any of the cases pending against the accused, the learned Magistrate must impose appropriate conditions to ensure the life of the accused.
(3) The learned Magistrate must obtain an affidavit from the police officer seeking custody, undertaking to produce the accused in the very same condition, in which he was taken from judicial custody.
(4) The police officer must declare before the learned Magistrate the names, designation and roll number of the police men and officers, who accompany the accused during custody and in transit. It would be the personal responsibility of those men and officers to produce the accused back for judicial custody.
(5) Before giving custody, the accused should be subjected to medical examination. Similarly, after the police custody, accused should be produced before the medical officer and the medical report should be produced before the learned Magistrate.
(6) The learned Magistrate should consider the option to permit the counsel for the accused to accompany the accused during police custody.
(7) It is open to the learned Magistrate to impose any other reasonable conditions to ensure that no bodily injury or death is caused to the accused while in police custody.
(B) (1) In addition to the above directions, the police must scrupulously follow the eleven directions issued by the Supreme Court in D.K.Basu v. State of W.B. [1997(1) SCC 416]. The directions read thus:
(i) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(ii) That the police officer carrying out the arrest of arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(iii) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(iv) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(v) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(vi) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(vii) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(viii) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(ix) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(x) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(xi) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
17) I further submit that, the protection of life is guaranteed under Article 21 of Constitution of India, for being accused on false foisted cases by the police, his right cannot be deprived. The accused person also has to give a sufficient opportunity to prove his innocence before the due process of law. The Hon’ble Supreme Court has reiterated time and again that the accused has its right to prove his innocence by proving the opportunity in trail which is guaranteed under constitution of India.
18) I further submit that, even though after registering false criminals. I am ready to surrender and co operative before the Hon’ble Trail Court to prove my innocence. Now unfortunately I were put in bleak that the respondent police had prepared a special squad to fake encounter on me. Even though I made a detailed representations to the respondents herein date on 11.02.2022 and the same was not consider by the respondents. In such circumstance therefore, I have no other effective and efficacious alternative remedy except to approach this Hon’ble Court by invoking the extra ordinary Jurisdiction of this Hon’ble Court under Article 226 of the Constitution of India.
Therefore, it is prayed this Hon’ble Court may be pleased to issue a Writ or Order or Direction in the nature of WRIT OF MANDAMUS, forbearing the respondents from committing encounter the petitioner namely P.Saba @ Sabarathinam as against falsely foisted cases by the 2nd and 3rd respondent’s jurisdictions and allow the petitioner to surrender before the jurisdiction competent court for falsely foisted cases by considering the representation sent by the petitioner dated on 11.02.2022 and pass such further or other orders as this Hon’ble court may deem fit and proper in the nature and circumstances of the case and thus render justice.
Solemnly affirmed at Madurai. This the 24thday of February, 2022 the contents of this Affidavit were read to him and he appeared to have understood the same perfectly and signed his name in my presence.
BEFORE ME
Memorandum of Writ Petition
(Under the Article 226 of Constitution of India)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
MADURAI BENCH
(Special Original Jurisdiction)
W.P.(MD)No. of 2022
P.Saba @ Sabarathinam (M-42/ 2022),
S/O/Pandi,
3/489 Chinthamani Main Road,
Keeraithurai,
Madurai
… Petitioner
-Vs.-
1) The Director General of Police,
Office of Director of General of Police,
Dr.Radhakrishnan Salai,
Mylapore,
Chennai – 600-004.
2) The Commissioner of Police,
Madurai City,
Alagar Kovil Main Raod,
Madurai.
3) The Superintendent of Police,
District Superintendent of Police,
Ramanathapuram. … Respondents
WRIT PETITION
The address for service of all notice and processes on the petitioner is that of his counsel M/s. NIRANJAN.S.KUMAR, R.VIGNESH, B.SUNDARARAJAN, K.PANDI, S.MURUGAGANESAN, C.KARTHIK, E.BASKAR and N.MAHARAJA, having office at Plot.No.18/10, East First Street, K.K.Nagar, Madurai-625020.
The address for services of all notice and processer on the respondents is as stated above.
For the reason stated in the accompanying affidavit, it is prayed this Hon’ble Court may be pleased to issue a Writ or Order or Direction in the nature of WRIT OF MANDAMUS, forbearing the respondents from committing encounter the petitioner namely P.Saba @ Sabarathinam as against falsely foisted cases by the 2nd and 3rd respondent’s jurisdictions and allow the petitioner to surrender before the jurisdiction competent court for falsely foisted cases by considering the representation sent by the petitioner dated on 11.02.2022 and pass such further or other orders as this Hon’ble court may deem fit and proper in the nature and circumstances of the case and thus render justice.
Dated at Madurai on this 07th of March 2022.
COUNSEL FOR THE PETITIONER
IN THE HIGH COURT OF JUDICATURE AT MADRAS
MADURAI BENCH
(Special Original Jurisdiction)
W.P.(MD)No. of 2022
P.Saba @ Sabarathinam (M-42/ 2022),
S/O/Pandi,
3/489 Chinthamani Main Road,
Keeraithurai,
Madurai
… Petitioner
-Vs.-
1) The Director General of Police,
Office of Director of General of Police,
Dr.Radhakrishnan Salai,
Mylapore,
Chennai – 600-004.
And 2 others … Respondents
SYNOPSIS
1) The petitioner submitted that he is a coolie by profession and petitioner’s family is purely depends on the source of income of the petitioner. Due to the unwanted friendship the petitioner had been roped into false criminal case and thereafter when the police could not found out the real accused they had foisted criminal cases as against petitioner.
2) The petitioner submitted that even being in the weaker situation in society as well as in financial background the petitioner would not fight as against the police who foisted criminal cases as against the petitioner.
3) The petitioner submitted that being a dutiful citizen the petitioner extended his hand by co-operating with line of investigations without deviation and also released on bail and anticipatory. Only in order to scot free the real accused the police had foisted criminal cases as against the petitioner. For the time being, the petitioner had appeared before the competent court without fail to prove his innocence so far no Non-Bailable Warrant issued against the petitioner.
4) The petitioner submitted that, the petitioner had been falsely foisted only on the criminal cases for the IPC offences, thereafter the police had foisted the NDPS as petitioner when the Hon’ble Supreme court had taken serious stands to prevent the youngster from consumption of illicit material. Thereafter the petitioner had been falsely foisted in contraband quantity of NDPS Cases only through the confession statements of co-accused. It is admitted fact that the petitioner has 12 criminal cases for the IPC offences, but no NDPS offences. Now the police had foisted numerous NDPS that too in contraband quantity.
5) The petitioner submitted that, he is apprehending on fake encounter of respondent police. Now the petitioner is coming forward to surrender himself before the competent court to cooperative with trail for all his falsely foisted cases to prove his innocence. It is pertinent to mentioned that right guaranteed under Article 21 of Constitution of India could not be deprived as being a accused. The Hon’ble Supreme court time and again reiterated that even the accused person has right to prove his innocence by conducting fair trial. The petitioner made a representation to the respondent police dated 11.02.2022 and the same was not considered so far, the petitioner has no other alternate remedy other than approaching this Hon’ble court by invoking article 226 of Constitution of India. Hence, the present writ petition.
DATES AND EVENTS
Date Events
11.02.2022 Representation Sent by the petitioner with tracking report
Dated at Madurai on this 07th of March 2022.
COUNSEL FOR THE PETITIONER
