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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL WRIT JURISDICTION

WRIT PETITION (  CIVIL  )   NO  .55 OF 2013

KOSHY JACOB                                       …Petitioner

VERSUS

UNION OF INDIA &ORS.                          …Respondents

O R D E R

1. We have heard learned counsel for the parties.

2. This petition, filed under Article 32 of the Constitution of India, seeks

direction  for  implementation  of  guidelines  issued  by  this  Court  in

Destruction of  Public  and Private  Properties,  In  Re v.  State of  Andhra

Pradesh and Others, (2009) 5 SCC 212.

3. According  to  the  averments  in  the  petition,  the  petitioner  is  an

advocate.  He was forced to spend more than 12 hours on road to reach

his home after being discharged from hospital after surgery on 23rd May,

2012, on account of an on-going agitation.  According to the petitioner,

large  number  of  strikes/agitations  have  taken  place  resulting  in

destruction  of  public  property  and  also  resulting  in  violation  of

fundamental  right  of  the  people  for  which  suitable  remedy  is  not

available to the aggrieved victims.  

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4. Committees  appointed  by  this  Court  in  the  above  case

recommended statutory amendments for making those sponsoring such

agitations accountable and punishable under the criminal law and also

requiring preventive and remedial actions such as videography of all the

activities and award for damages.  In spite of such recommendations, no

legislation  or  speedy mechanism has  been put  in  place  so  far  which

appears to be the reason for this petition.

5. In pursuance of notice issued by this Court in this matter, affidavits

have been filed by different States as well as by Union of India.  In the

affidavit filed by the Union of India, it is submitted that the process has

been initiated  for  amendment  of  the  Prevention  of  Damage to  Public

Property Act, 1984 in consultation with the Ministry of Law and Justice.  A

draft has been prepared and published on the website seeking comments

of the public and other stake-holders.   Union of India has also sent a

letter dated 6th May, 2013 to all the States and Union Territories advising

the  action  to  be  taken  as  soon  as  there  is  a  demonstration.   The

guidelines are as follows:

“(i) If the officer in charge of a police station or other law enforcing agency is of the opinion that any direct action, either declared or undeclared has the potential of causing destruction or damage to public property, he  shall  avail  himself  of  the  services  of  video operators.  For this purpose each police station shall be  empowered  to  maintain  a  panel  of  local  video operators  who  could  be  made  available  at  short notices.

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(ii) The police officer who have responsibility to act on the information that a direct action is immediate and if  he  has  reason to  apprehend that  such direct action  has  the  potential  of  causing  destruction  of public property, he shall immediately avail himself of the services of the video-grapher to accompany him or any other police officer deputed by him to the site or any  other  place  wherefrom  video  shooting  can conveniently  be  arranged  concentrating  on  the person/persons  indulging  in  any  acts  of  violence  or other  acts  causing  destruction  of  damage  to  any property.

(iii) No sooner  than the  direct  action  subsides,  the police officer concerned shall  authenticate the video by  producing  the  videographer  before  the  Sub divisional  or  Executive  Magistrate  to  entrust  such CD/material to the custody of the police officer or any other  person  to  be  produced  in  court  at  the appropriate stage or as and when called for. (iv) The organizer shall meet the police to review and revise the route to betaken and to lay down conditions for a peaceful march or protest. (v) All weapons, including knives, lathis and the like shall be prohibited. (vi) An  undertaking  is  to  be  provided  by  the organizers to ensure a peaceful march with marshals at each relevant junction. (vii) The  police  and  State  Government  shall  ensure videography of such protests to the maximum extent possible. (viii) The  person  in  charge  to  supervise  the demonstration  shall  be  the  SP  (if  the  situation  is confined to the district) and the highest police officer in the State, where the situation stretches beyond one district. (ix) In the event that demonstrations turn violent, the officer-in-charge  shall  ensure  that  the  events  are videographed  through  private  operators  and  also request such further information from the media and

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others on the incidents in question. (x) The  Police  shall  immediately  inform  the  State Government  with  reports  on  the  events,  including damage, if any caused. (xi) The State Government shall prepare a report on the police reports and other information that may be available  to  it  and  shall  file  a  petition  including  its reports in the High Court or Supreme Court as the case may  be  for  the  Court  in  question  to  take  suo  motu action.”

6. Mr.  K.K.  Venugopal,  learned  Attorney  General  for  India,  has

submitted that in spite of the guidelines, situations have been created

wherein peaceful agitation turns into violent, causing loss of lives and

destruction of public property.  At times, central forces are deployed to

aid the law and order machinery.  He fairly states that there is undoubted

need for preventive and remedial measures to be adopted to deal with

such situations.  A mechanism is necessary to fix accountability of any

failure to take preventive steps as well as to provide for punishing the

guilty and compensation to the victim.

7. In  Destruction of Public and Private Properties, In Re (Supra), this

Court took suo motu proceedings to remedy the large scale destruction

of public and private property in agitations, bandhs, hartals and the like.

The  reports  of  the  committee  appointed  by  this  Court  recommended

prosecution of those involved in damage to the public property, including

the leaders and office-bearers of the organisations which call for such

action.   Recommendation  includes  collection  of  evidence  by  using

electronic means such as videography and to compensate the victims.

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Taking  into  account  the  said  reports,  this  Court,  in  absence  of  a

legislation on the subject, issued guidelines to the effect that this Court

or  the High Court  may take  suo motu action,  set  up  a machinery  to

investigate and to award compensation.  An assessor could be appointed

by the High Court or by this Court, to assess the claim of the people.

The guidelines, inter alia, are as follows:

“6. The  recommendations  of  the  Justice  Thomas Committee  have  been  made  on  the  basis  of  the following conclusions after taking into consideration the materials.

In respect of (I)

7. “According  to  this  Committee  the  prosecution should be required to prove, first that public property has  been  damaged  in  a  direct  action  called  by  an organisation and that the accused also participated in such direct action. From that stage the burden can be shifted to the accused to prove his innocence.  Hence we are of the view that in situations where  prosecution succeeds  in  proving  that  public  property  has  been damaged in direct  actions in which the accused also participated,  the court  should be given the power to draw  a  presumption  that  the  accused  is  guilty  of destroying public  property and that it  is  open to  the accused to rebut such presumption.  The PDPP Act may be amended to contain provisions to that effect.”

In respect of (ii)

8. “ Next we considered how far the leaders of the organisations can also be caught and brought to trial, when public property is damaged in the direct actions called at the behest of such organisations.  Destruction of public property has become so rampant during such direct  actions  called  by  organisations.   In  almost  all

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such cases the top leaders of such organisations who really instigate such direct actions will keep themselves in the background and only the ordinary or common members  or  grass  root  level  followers  of  the organisation  would  directly  participate  in  such  direct actions  and  they  alone  would  be  vulnerable  to prosecution  proceedings.   In  many  such  cases,  the leaders would really be the main offenders being the abettors of  the crime.   If  they are not caught in the dragnet and allowed to  be immune from prosecution proceedings,  such  direct  actions  would  continue unabated,  if  not  further  escalated,  and will  remain a constant or recurring affair.

Of  course,  it  is  normally  difficult  to  prove abetment  of  the  offence  with  the  help  of  direct evidence.  This flaw can be remedied to a great extent by making an additional provision in PDPP Act to the effect  that  specified  categories  of  leaders  of  the organisation  which  make  the  call  for  direct  actions resulting  in  damage  to  public  property,  shall  be deemed to be guilty of abetment of the offence.  At the same time,no innocent person, in spite of his being a leader of the organisation shall be made to suffer for the actions done by others.  This requires the inclusion of a safeguard to protect such innocent leaders.”

In respect of (iii)

9. “  After  considering  various  aspects  to  this question we decided to  recommend that  prosecution should be required to prove (I) that those accused were the leaders or office-bearers of the organisation which called  out  for  the  direct  actions  and  (ii)  that  public property  has  been  damaged  in  or  during  or  in  the aftermath of such direct actions. At that stage of trial it should  be  open  to  the  court  to  draw a  presumption against  such persons  who  are  arraigned  in  the  case that  they  have  abetted  the  commission  of  offence. However, the accused in such case shall not be liable to conviction if  he proves that  (I)  he was in no way connected with the action called by his political party

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or  that  (ii)  he  has  taken all  reasonable  measures  to prevent causing damage to public property in the direct action called by his organisation.”

8. It was observed that this Court could not issue a direction to make

law  which  matter  had  to  be  left  to  the  concerned  authorities  and

guidelines were to operate till relevant law was framed.

9. Since no law has been framed even though 8 years have passed

after the matter was dealt with by this Court in the aforesaid judgment,

the petitioner has approached this court, as noted earlier.

10. In view of the stand in the counter affidavit and the statement of

learned Attorney General, we do hope that the law now proposed by the

Union of India is brought into force within a reasonable time to address

all  concerned issues.  Learned Attorney General has very fairly stated

that  the law may provide for speedy mechanism for criminal  liability,

action for administrative failures as well as remedies to the victims.  A

suggestion has been made that one or more district/additional district

Judges can be appointed by the State Government in consultation with

the High Court to deal with such issue either on whole-time basis or on

part-time  basis,  as  the  situation  may  require.   In  such  cases  cadre

strength  of  the  judicial  officers  may  require  suitable  temporary  or

permanent increase.  This suggestion can be considered in the course of

making the proposed law.

11. As  far  as  the individual  claim of  the petitioner  is  concerned,  the

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organisers of the agitation are not before this Court.  The petitioner is at

liberty to take his remedy at appropriate forum in accordance with law.  

The writ petition is accordingly disposed of.

………..........................J.                 (ADARSH KUMAR GOEL)

………............................J.         (UDAY UMESH LALIT)

New Delhi, November 28, 2017.