TMI Blog2012 (2) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty may not be levied for awarding compensation to the complainant and is accordingly quashed. Writ application is partially allowed so far response of officials were sought for levying monetary penalty; it's challenge against findings of violation of Human Rights is dismissed. - C.W. Jurisdiction Case No.10707 of 2011 - - - Dated:- 2-2-2012 - Samarendra Pratap Singh, J. JUDGMENT Samarendra Pratap Singh, J. The present writ petition has been filed against the order dated 28.4.2011 passed by the Chairperson, Human Rights Commission by which the learned Commission has held that there has been violation of human rights of respondent no.3 (Rajendra Singh) by the concerned officials of the Income Tax Department while continuing search and seizure operation, for which he would be entitled to monetary compensation and has further asked the department to submit its response as to why the monetary compensation be not awarded to the applicant recoverable from the salary of the concerned officials of the department. 2. One Rajendra Singh made a complaint before the Bihar State Human Rights Commission (hereinafter referred to as 'the Commission') that during the search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition mainly on the grounds mentioned hereinbelow: ( i ) The order of the learned Single Member is without jurisdiction being Coram non-judice. In short, in absence of any rules and regulations prepared by the State or the Commission, the order could have been passed only by all the three members sitting together and not by an individual member. ( ii ) The complainant had not come to this court with clean hands as he had filed a complaint before the NHRC, National Commission of Minorities and the criminal case being Jakkanpur P.S. Case no.246 of 2010. ( iii ) The Commission ought not to have heard the matter as the department had preferred Cr. Misc. No.43811 of 2010 for quashing of the F.I.R. and the criminal case itself being sub-judice before the Chief Judicial Magistrate, Patna. ( iv ) The Commission ought not to have held the concerned officials of the Income Tax guilty of violating human rights without affording an opportunity of hearing them personally under section 16 of the Protection of Human Rights Act, 1993 (hereinafter referred to as 'the Act, 1993'). ( v ) The officer had acted in good faith and in discharge of their official duty. ( vi ) The Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure to be followed by Commission under section 10(2). Section 10(2) of the Protection of Human Rights Act, 1993 read as under: "10. Procedure to be regulated by the Commission- (1) The Commission shall meet at such time and place as the Chairman may think fit. (2) Subject to the provisions of this Act and the rules made thereunder, the Commission shall have the power to lay down by regulations its own procedure". In exercise of power under section 10(2) read with section 40-B, the National Human Rights Commission (in short 'NHRC') has made regulations being the National Human Rights Commission (Procedure) Regulation, 1994. Rule 8 lays down the procedure for dealing with the complaint. Sub-rule(1) of Rule 8 lays down the criteria for a case to be taken by a Single Member bench or bench of two members or more than two members. Rule 8(1) is quoted hereinbelow for each reference. "8. Procedure for dealing with complaints (1) All complaints in whatever form received by the Commission, shall be registered and assigned a number and placed for admission as per the special or general directions of the Chairperson before a Single-Member Bench constituted for the purpose, not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Minorities and also lodged a criminal case being Jakkanpur P.S. Case No.246 of 2010. ( iii ) The Commission ought not to have heard the matter as the department had preferred Cr. Misc. No.43811 of 2010 for quashing of the F.I.R. and the criminal case itself being sub-judice before the Chief Judicial Magistrate, Patna. Answer: The National Commission of Minorities or a Criminal Court exercises different jurisdictions. One single incident may have wide ramifications e.g. a person apart from being proceeded for intrusions of right of a minority, can also be proceeded for violation of human rights as well as for committing a penal offence, if the facts, so justify. The respective complaint to the National Commission of Minorities or to the police, addresses different and distinct concerns. Respondent no.3 ought to have mentioned in his complaint that he has written to the NHRC, which complaint was subsequently transferred to the SHRC. The non-mentioning of writing of such complaint to NHRC, which eventually is to be endorsed to the competent body e.g. SHRC would be an irregularity and in no way obviate or wipe off the act of violation of human rights. Thus though it is desirab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er partner or the brothers except respondent no.3. The petitioners submits that the case of Pooran Mal v. Director of Inspection (Inv), reported in (1974) 96 ITR 505 (SC) would apply mutatis mutandis to searches made under section 41 of the Income-tax Act, 1922 now section 132 of the Income-tax Act, 1961. It is further the case of the petitioners that search and seizure is a temporary interference with right to hold the premises and the articles seized. They also state that any reasonable restrictions cannot be held to be unconstitutional. Reliance has been placed on the following passage from the case of M.P. Sharma v. Satish Chandra which is quoted herein below : "A search seizure is only a temporary interference with the right to hold the premises searched and the articles seized. Statutory regulation in this behalf is necessary and reasonable restriction cannot per se be considered to be unconstitutional". The petitioners submit that in the case of Rajendran Chingaravelu v. Mr. R.K. Mishra, Addl. CIT Ors, reported in 2010 (1) SCC 457, the Hon'ble Apex Court upheld the detention of the applicant for 15 hours who was carrying a cash of Rs.65 lacs along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he department cannot force an individual to remain awake when it is a time for sleep. 16. The respondent no.3 submits that the order of the Commission is in consonance with the objectives and purpose for which Protection of Human Rights Act, 1993 has been enacted. He submits that all laws must confirm to the charter of human values and dignity. In support of his submission, he relied upon a decision in the case of Ireland v. the United Kingdom, reported in (1978) ECHR 1 and in the case of Kalashnikov v. Russia, reported in (2002) ECHR 596. 17. It appears that the learned Commission has concluded that question no.15 would show that despite passage of more than 36 hours, the books of accounts were not produced. The Commission as such inferred that the question was being asked at about 10 P.M. on 9.9.2010, as the operation had begun on 8.9.2010 at 9.30 A.M.. The Commission was of the view that in case if a break was given, the same would have been duly entered in the record. The Commission observed that it becomes evident from question no.16, that 3 hours further time was granted to produce the books of accounts, which time would expire at 1 A.M. on 10.9.2010. The Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t went to the extent of stating that Convention prohibits in absolute terms Torture or Inhuman or Degrading Treatment or Punishment and went on to the extent of stating that no exception to Article 3 can be made even in the event of Public Emergency threatening the life of the Nation. The human rights belong to all of us equally and would apply no less to an intruder of law, as to a law enforcing agency. 19. The term 'human rights' has been defined in section 2(d) of 1993 Act as the right relating to life, liberty, quality and dignity of the individual granted by the Constitution as provided in Part III of the Constitution and as embodied in International Covenants. The International Covenants has been defined in section 2(f) of the Act which means International covenants on civil and political rights and international covenants on economic, social and cultural representations adopted by the general assembly of the United Nation. Article 7 of the International Covenant on Civil and Political Rights states that no one shall be subject to torture or to cruel inhuman or degrading treatment or punishment. Article 10(1) states that all persons deprived of liberty shall be treated wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in agreement with the submissions of the petitioners that if required, the search and seizure can continue for days but at the same time due regard to human dignity and value cannot be ignored. In the instant case, no reason has been assigned as to why it was absolutely imperative to continue with the interrogations at 3 A.M. on 10.9.2010, when search and seizure has commenced on 8.9.2010 at 9.30 A.M. Even if I agree with the submissions of petitioners that there were breaks and there were no continuous interrogation for 36 hours as held by Commission, still the department has no plausible excuse for making interrogations till odd hours of second night till 3 A.M. Thus I partially affirm the order of learned Commission holding the department guilty of violating human rights but only to the extent indicated in paras 18 and 22. I am conscious of the fact that the efforts of the team led to unearthing of undisclosed income from petitioner and his three brothers totaling over Rs.4,81,00,000/-. I even agree with the submissions of petitioners that operations were conducted in best interest of revenue and good faith. 23. The other aspect is that the learned Commission has not issued ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
