1. Crl. M.P. No. 34 of 1978 has been filed under Section 482, Crl. P.C. praying this Court to direct the respondent-the Commissioner of Police by himself and through his officers to disperse and remove all the persons remaining unlawfully inside the premises of the Neo Ranga Vilas Hotel at No. 366-367, N.S.C. Bose Road, Madras to enable the petitioner and his partners to have exclusive control and possession of the premises. Writ Petition No. 560 of 1978 is a petition for the issue of a writ of Mandamus or any other appropriate writ to the respondent-Commissioner of Police directing him to disperse the unlawful assembly in the aforesaid premises.
2. The petitioner in both these petitions is one of the three partners who own and run a vegetarian restaurant in the name and style of Neo Ranga Vilas at No. 366-367, N.S.C. Bose Road, Madras, which hotel has been running for the last several years. The aforesaid premises actually belonged to the L.I.C. of India, but the petitioner and his partners have taken it on lease on a monthly rent of Rs. 1,800 for running the hotel in the premises. In the affidavit filed by the petitioner in support of his petition Crl. M.P. No. 34 of 1978 and that filed in support of the writ petition, it has been stated that there are about 65 workers in that hotel, that about a month prior to the filing of the Crl. M.P. a section of the workers joined an unregistered trade union under the name and style of the Madras City Anna Hotel Workers Union which union was formed on the initiative of some outsiders and at the instigation of those outsiders about 40 of the workers, have been indulging in acts of indiscipline, intimidation of other workers, and non-co-operation with the employers; and while matters were so, on 24th December, 1971 the petitioner and his partners issued a notice to one M.R. Sekar, a temporary employee of the hotel terminating his service since his behaviour with the customers was becoming increasingly atrocious and since the aforesaid employee refused to accept the notice, the notice was sent by registered post, but it was still not accepted, and hence on 27th December, 1977 the notice was displayed on the notice-board, and on 29th December, 1977 after the working hours of the hotel which were from 06-30 hours in the morning till 20-30 hours in the night, when K.M. Mohideen, one of the partners and the petitioner were working in the office examining the accounts in the aforesaid premises, and Abdullah the cashier was counting the cash, about 40 workmen belonging to the aforesaid union along with a number of outsiders trespassed into the hotel at 20-45 hours and assaulted the petitioner, his partner and the cashier Abdullah and caused extensive damage to the properties in the premises and 8 of those persons surrounded the petitioner and beat him, causing injuries to him and he had to be taken to the Stanley Hospital for treatment, and when a call was made to the emergency police, the police came to the spot and all the workmen were asked to leave the premises and most of them went away to their quarters at No. 55, P.V. Iyer Street, Madras which quarters had been provided by the employers and the aforesaid persons belonging to the aforesaid union threatened the loyal workers and as a result thereof the loyal workers were afraid to work any longer in the hotel, and consequently, the hotel had to be closed down from 30th December, 1977 after the gates of the hotel had been locked on the night of 29th December, 1977, but on 31st December, 1977 at about 10-30 a.m. the workmen who created that trouble and who were squatting outside the premises broke open the locks and trespassed into the hotel premises, locked themselves inside and are continuing to stay inside the hotel premises and when a complaint was given to the Inspector of Police B2, Police Station by the petitioner complaining of trespass and unlawful assembly and requesting the Inspector to remove the trespassers from the premises and to render protection to the property kept in the premises, the Police did not take any action except to send two policemen to guard the pavement outside the hotel, and in spite of several representations made by the petitioner and his partners to various officials of the police department and in spite of a petition presented on 2nd January, 1978 to the Commissioner of Police himself, the police have not taken any action against the trespassers and as such the Commissioner of Police and the Officers of the B2 police station have abdicated their functions and their statutory duties and as such a direction may be given by this Court, directing the respondent-Commissioner of Police to disperse all the persons who are remaining unlawfully inside the hotel premises in order to enable the proprietors to have exclusive control and possession of the premises.
3. A notice was issued to the respondent in the Crl. M.P. and in response thereto, Sri Selvaraj, the Sub-Inspector of Police, Law College Police Station filed a counter-affidavit in which he has stated that on 29th December, 1977 at 9 p.m. a complaint was given by the petitioner against 8 workers and some others alleging that those 8 persons who were employees in his hotel New Ranga Vilas had assaulted him when an altercation. ensued between him and those persons when one of the persons, Sekar and some others attempted to remove from the notice board a notice of termination of the services of Sekar and he, Selvaraj registered that complaint as Cr. Mo. 1119/77 under Sections 147, 341, 323, 324 and 427, IPC and at 9-15 p.m. the same day one Anthony, an employee of the same hotel preferred a complaint against the petitioner and his partner and some others alleging that when he requested the removal of the notice regarding the termination of the services of Sekar, the petitioner refused to do so and challenged him, Anthony whereupon, there was an altercation in which the petitioner and his partner, Mohideen Bai assaulted him and some strangers, whose presence had been secured by the petitioner took a chair and assaulted him, Anthony and his men and as a result of it, he, Anthony and three others sustained injuries and that complaint was registered as Cr. No. 1120/77 under Sections 147, 341, 323, 324 and 427, IPC and both the aforesaid crimes were investigated into and the investigation disclosed that there was a dispute between the management and the workers and as a consequence thereof both sides came to blows. It is further stated in that affidavit of Thiru Selvaraj that even though both sides alleged that outsiders had also taken part in the incidents, he could not trace who those outsiders were and since according to the Police Standing Orders, he had to get the opinion of the Public Prosecutor of the City as to who should be charged in view of the two complaints he was sending a report of the case through the Deptuy Commissioner of Police, Law and Order, Madras to the City Public Prosecutor for his opinion and since he wanted to ensure that there was no trouble in the area he visited the place on 30th December, 1977 and found the hotel open and found Mohideen Bai, one of the partners along with some of the employees inside the hotel and things appeared to be normal, but on 31st December, 1977 Thiru K.M. Mohideen gave a complaint at 12 noon against the workmen of the hotel alleging trespass and mischief and stating that they had already closed the hotel on 30th December, 1977, but the workmen were squatting outside the hotel till the morning of 31st December, 1977, and at about 10-30 a.m. on 31st December, 1977 they broke open the lock put up on the gate, and trespassed into the hotel along with some outsiders and were continuing to stay inside the hotel and on receipt of that complaint he, Selvaraj rushed to the hotel and found some employees inside the hotel and enquired them as to why they were inside the hotel, when the hotel was not being run, but they told him that they were all staying in that hotel whether they had work or not and even after working hours, and that even though the management had stopped running the hotel, they were staying as usual and are entitled to stay there and they told him further that they were there even on 30th December, 1977 inside the hotel since the rest quarters at 55, P.V. Iyer Street was found insufficient to accommodate all the employees during the rest periods and he recorded statements from those persons and wanted to confront K.M. Mohideen with those statements but the latter did not turn up and even though he, Selvaraj went to his residence in Kondi Chetty Street he could not find K.M. Mohideen and he then made enquiries in the locality but could not get any information from any outsiders about the breaking open of the locks and about the employees' forcible entry into the hotel and that he was still continuing to investigate into the matter.
4. In winding up his affidavit, Thiru Selvaraj stated that the investigation done by him so far in Crl. No. 1125/1977 (which was apparently the case registered on the complaint of K.M. Mohideen on 31st December, 1977) showed that the management had not locked the gate on the night of 29th December, 1977 and the management cannot say that there has been 'closure' of the hotel as required by the Industrial Disputes Act and that all necessary action had been taken as warranted by law, and police pickets have also been posted to see that no untoward events take place and that, therefore, it cannot be said that the police officers had abdicated their functions or statutory duties and since there was no unlawful assembly the question of dispersal of unlawful assembly did not arise and the question of removal of any person from the premises also does not arise.
5. After the filing of the aforesaid counter-affidavit by Thiru Selvaraj, supporting affidavits had been filed on behalf of the petitioner (1) by the Eramullan, who is having a shop near the hotel Neo Ranga Vilas and who claims that on 31st December, 1977 at about 10-30 a.m. the workmen of Neo Ranga Vilas who were till then squatting outside, broke open the lock of the gate and entered the premises; (2) by Aiyappan Nair, Madhavan, Raghavan and one Chandran who are employees of the Neo Ranga Vilas to the effect that all the workmen working in the hotel after working hours have been staying in the rest quarters at No. 55, P.V. Iyer Street and after working hours none of them was allowed to sleep in the hotel premises at any time and on 9th December, 1977 when they were sleeping in the rest quarters some workmen came to the quarters and threatened them and drove them away and the hotel remained closed from 30th December, 1977 and on 31st December, 1977 the workers belonging to the union and some outsiders broke open the lock and entered the hotel; (3) by one Abdul Rahim who is carrying on a petty trade on the platform near the hotel, Neo Ranga Vilas to the effect that at about 10-30 a.m., the workmen of the Neo Ranga Vilas who were till then squatting outside broke open the lock of the gate and entered the hotel premises; (4) by one Kutty Ali who claims to be working in a shop near the hotel, Neo Ranga Vilas to the effect that at about 10-30 a.m. the workmen of the Neo Ranga Vilas who were till then squatting outside broke open the lock of the gate and entered the hotel premises; (5) by one A. Valsanathan, who claims to be having a shop near the hotel to the same effect; (6) by one P. Mohan who claims to be carrying on a petty trade on the platform in front of the aforesaid hotel to the same effect; and (7) by one John James who was engaged by the management, of the hotel as security in-charge of the hotel to the effect that after the rioting incident on 29th December, 1977 the management closed the hotel and locked the gates, and he and his assistants were keeping guard at the gate and on 31st December, 1977 at about 10-30 a.m. the workmen who were till then squatting outside along with some outsiders forcibly pushed him and his assistants and broke open the lock and entered the hotel premises.
6. On behalf of the workers a number of affidavits have been filed by the workers to the effect that some of them have been residing in the hotel premises along with other workers from the time of their entering into the services of the hotel and that there was no closure of the hotel as alleged on 29th December, 1977 and that the workers did not enter the hotel premises on 31st December, 1977 at 10-30 a.m. by breaking open the lock and that the workers are residing in the hotel in their own right and only 25 workers live in No. 55, P.V. Iyer Street while the rest live in the hotel premises,
7. The Commissioner of Police, Thiru P. Paramagaru himself has filed an affidavit on 9th January, 1978 in which it is stated that when on 2nd January, 1978 a complaint was presented before him on behalf of one, K.M. Mohideen of the Neo Ranga Vilas, he forwarded the same to the Deputy Commissioner of Police, Law and Order, North, for necessary action and he ascertained that a complaint had already been preferred by the said Mohideen at 12 noon on 31st December, 1977 in regard to the same matter at the Law College Police Station which had been registered as Cr. No. 1125/77 and the matter was under investigation and he was also informed about the prior complaint given by one Mohamood Hajee relating to some incident that took place on 29th December, 1977 in the same premises and a counter-complaint given by the workers of the hotel on the same day in regard to the same incident, and the Sub Inspector of Police was investigating into the two complaints which had been registered as Crime Nos. 1119 and 1120 of 1977 and the complaint which he forwarded to the Deputy Commissioner, Law and Order, North, was duly endorsed to the Inspector of Police for necessary action and that he understood that necessary action warranted by law had already been taken in this matter and that he was satisfied that the police had taken adequate and proper action warranted by law in this matter.
8. The writ petition has been filed for the same purpose in view of the doubt as to whether under Section 482, Crl. P.C., the Court could issue such a direction as has been asked for by the petitioner. In the writ petition after setting out all the facts which have been stated in the affidavit filed in support of the Crl. M.P. under Section 482, Crl. P.C. it is further stated that premises No. 55, P.V. Iyer Street, has been provided by the management for the workmen who were not on duty to stay in and most of the workers except those who have houses nearby have been using the aforesaid premises as their living quarters, and under Rule 28 of the Rules made under the Tamil Nadu Catering Establishment Act, 1958 none of the operations connected with a catering establishment shall be conducted or carried on in any room used as living or sleeping quarters of employees as reinforced in Rule 23 and non-compliance with the Rules is an offence for which the management can be prosecuted under Section 23 of the Act, and further under Section 279 of the Madras City Municipal Corporation Act, no person can run a catering establishment without a licence granted by the Commissioner and the licence is to be granted under the bye-laws made by the Council under Section 349 of the Act and paragraph 15 of the conditions of licence issued to the petitioner by the Corporation reads that no part of the building shall be used at any time for purposes of human habitation unless such building is sufficiently detached or separated from the rest of the premises to the satisfaction of the Health Officer, and noncompliance with the conditions of the licence is an offence under Section 357 of the Act and that after effecting forcible and unlawful entry into the hotel, the workers conducted the hotel on 4th January, 1978 and 5th January, 1978 with the stock available in the store room and, therefore, to the knowledge of the police the workmen have constituted themselves into an unlawful assembly as defined under Section 141, IPC with effect from 10-30 a.m. on 31st December, 1977, and have been continuously committing the offence of unlawful assembly, criminal trespass and mischief and in the above circumstances, the police have the following statutory duties to perform; (1) under Section 129, Crl. P.C. to command any unlawful assembly to disperse, and if they do not, to take necessary coercive steps; (2) under Section 41 Crl. P.C. to arrest without any warrant anyone concerned in any cognizable offence, (3) under Section 25 of the Madras City Police Act to apprehend any person committing an offence affecting the personal property of another; (4) under Section 23 of the City Police Act to prevent offences and public nuisances; (5) under Section 24 of the City Police Act to arrest without warrant any person committing offence punishable under the Act; and (6) under Sections 402 and 408 of the Madras City Municipal Corporation Act to use the police powers in the enforcement of that Act, and since in spite of his complaints to the concerned police, no action has been taken by the police to stop the lawlessness in the hotel premises and the Commissioner of Police and his Subordinate Officers are guilty of grave dereliction of their statutory duties, the Court may issue a writ of mandamus or any Other appropriate writ, direction or order to the respondent and his Subordinate Officers to perform the aforesaid statutory duties and to disperse the unlawful assembly and arrest the members thereof.
9. The stand taken by the respondent in the writ petition is the same as the one which has been taken by him in the Criminal Miscellaneous Petition.
10. Before going into the merits of the case, I must consider the inherent powers of this Court under Section 482 of the Criminal Procedure Code and see whether those powers extend to the giving of such directions as have been prayed for in the Crl. M.P. In support of his contention that this Court could under its Inherent powers give such directions, Mr. U.N.R. Rao, appearing for the petitioner has cited a number of decisions. First of all he has cited the decision in Chelpark Co. Ltd. v. Commissioner of Police and Ors. : (1967)IILLJ836Mad . There the striking workmen remained in the factory premises after working hours and an order of injunction by the City Civil Court restraining them from collecting inside the factory premises after working hours was served on the workman by affixture on the notice-board of the factory premises since the workmen refused to receive the same. The police on being approached, refused to remove the striking workmen on the ground that they were of the view that it was purely a labour problem governed by the Industrial Disputes Act and that no cognizable offence was committed and that there was no duty cast on them to evict the striking workers. Krishnaswamy Reddy, J., held that while it is no doubt true that capital and labour should contribute equally for the industry's development and progress, and the rights and interests of both the employer and employees should be protected, yet if the workers transgress the bounds of law and create an atmosphere likely to affect law and order, which are the foundations of civilized society, the police should not lag behind to do its statutory duty of taking appropriate action contemplated by law, as otherwise there would be chaos and confusion in the country affecting normal avocations of people. He further observed that 'the powers and duties of the police are directed to the protection and welfare of the public; and the striking workers remaining after working hours in the factory premises committed the offence of criminal trespass and formed themselves into an unlawful assembly. Either before or after the working hours, the workers have no right to occupy the property of the employer. The employees can stay and strike only during working hours when they can stay and work; but after the closing hours the employer is entitled to close the factory and make arrangements for the protection of his property and the act of the workmen remaining in the factory premises after working hours is unlawful and will amount to trespass'. He has further observed that ' it is true, the ultimate object of the striking workmen is to make the petitioners yield to their wishes; but the means adopted to achieve their object must also be lawful; and some of the acts committed by them would amount to offences under Sections 341, 503 and 504, IPC and the intent of the workers in remaining after the office hours was to annoy, insult, intimidate and commit offences'. Referring to the powers and duties of the police officers as enumerated in the Madras City Police Act, Sections 23 and 41 and Section 154, Criminal Procedure Code it was observed that from the said provisions it is clear, the police officers have obligations and duties to perform such as dispersing unlawful assembly, preseiving peace, detecting and bringing offenders to justice, removing persons under certain circumstances and investigating cognizable offences, etc.
11. With regard to the inherent powers of the High Court to direct Police Officers to evict the striking workmen, Krishnaswamy Reddy, J. held that in the circumstances of the case, the High Court would be justified in invoking its inherent powers and to give the directions asked for. He directed the respondents to disperse and remove such of those persons who remained in the factory premises after working hours, if necessary, with the assistance of their subordinates and take such appropriate action as they may think fit in the circumstances of the case.
12. It might be noted that in that case also a petition was filed for invoking the inherent powers, and a writ petition was also filed for the issue of a writ of mandamus. Krishnaswamy Reddy, J., dismissed the writ petition in view of the aforesaid directions which he gave in the petition invoking the inherent powers of the Court. I am in respectful agreement with the aforesaid observations of Krishnaswamy Reddy, J.
13. It might also be noted that Krishnaswamy Reddy, J., has also referred to the decision of the Mysore High Court in Mysore Machinery Manufacturers v. State of Mysore, W.P. No. 1021 of 1967. The learned Public Prosecutor however, contends that in the case before Krishnaswamy Reddy, J., there was a Civil Court injunction order against the workmen, and that makes all the difference, but in the case now before me there is no such order by a civil Court and as such this is not a case where this Court could interfere either by invoking its powers under Section 482, Crl. P.C. or by issuing a writ of mandamus or other appropriate writ giving to the respondent such directions as have been asked for in this petition.
14. Yet another decision which his a bearing on this case is the one in A.S.V. Varauachariar v. The Commissioner of Police (1969) 2 M.L.J. 1. There the petitioner prayed for the issue of a writ of mandamus directing the Commissioner of Police, Madras, to secure to him peaceful and quiet enjoyment of his property by removing the persons who are unlawfully remaining on the property. The Commissioner of Police raised a plea that whether police action is necessary in this regard or what action is to be taken, was within the discretion of the police and that the mandamus sought for by the petitioner cannot be issued. It was held that the duty of the Commissioner of Police is to determine whether the continued presence of the hut-dwellers on the property belonging to the petitioner amounts to criminal trespass, and if he comes to the conclusion, it is clearly his duty to evict the trespassers and give protection to the petitioner and that the plea of the Commissioner that it is within his discretion to take action or not has no basis in law, and such a plea should never have been advanced, for, it is his duty to enforce the law of the land and that the Commissioner of Police will have to proceed to act in accordance with the directions indicated in the judgment. Kailasam, J. (as he then was) has referred to the decision in R. v. Metropolitan Police Commissioner  I All E.R. 763, where Lord Denning, M.R., in dealing with the duties of the Commissioner of Police observed as follows:
I hold it to be the duty of the Commissioner of Police, as it is of every Chief Constable, to enforce the law of the land.... In all these things, he is not the servant of anyone, save of the law itself.... The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.
He has also referred to the observations of Salmon, L.J. referring to the duties of the police which are as follows:
In this Court, it has been argued on behalf of the Commissioner that the police are under no legal duty to anyone in regard to law enforcement. If their argument were correct, it would mean that in so far as their most important function is concerned, the police are above the law and, therefore, immune from any control by the Court. I reject that argument. In my judgment, the police owe the public a clear legal duty to enforce the law, a duty which I have no doubt they recognise and which generally they perform most conscientiously and efficiently.... For example, if, as is quite unthinkable, the Chief Police Officer in any district were to issue an instruction that as a matter of policy the Police would take no steps to prosecute any house-breaker, I have little doubt but that any householder in that district would be able to obtain an order of mandamus for the instruction to be withdrawn.
Kailasam, J. (as he then was) has also referred to the observations of Edmund Davies, L.J. while repelling the proposition that the Law Enforcement Officers of the country owe no duty to the public to enforce the law, as under:
Carried to its logical limit, such a submission would mean that, however, brazen the failure of the Police to enforce the law, the public would be wholly without a remedy and would simply have to await some practical expression of the Court's displeasure. In particular, it would follow that the Commissioner would be under no duty to prosecute anyone for breaches of the Gaming Acts, no matter how flagrantly and persisitently they were defied. Can that be right? Is our much-vaunted legal system in truth so anaemic that, in the last resort, it would be powerless against those who, having been appointed to enforce it, merely cocked a snook at it? The very idea is as repugnant as it is startling, and I consider it regrettable that it was ever advanced.
The learned Judge, Kailasam, J. (as he then was) wound up as follows:
The extracts from the three judgments as given above clearly define the duties of the Commissioner of Police and the right of this Court to issue a writ of mandamus. In the present case, it is the duty of the Commissioner of Police to determine whether the continued presence of the hut dwellers amounts to criminal trespass. If he comes to that conclusions it is clearly his duty to evict the trespassers and give protection to the petitioner.... It is his duty to enforce the law of the land.
I am in respectful agreement with the aforesaid decision of Kailasam, J. (as he then was).
15. It must be noted that under Section 129 of the Crl. P.C. any Officer incharge of a police station may command any unlawful assembly or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse and if such assembly does not disperse on being so commanded or conducts itself in such a manner as to show a determination not to disperse, the officer may proceed to disperse such assembly by force. Then under Section 41 of the Crl. P.C. any Police Officer may without an order from a Magistrate and without a warrant, arrest any person who has been concerned in any congnizable offence or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned.
16. Section 23 of the City Police Act states that it shall be the duty of every police-officer to use his best endeavours and ability to prevent offences and public nuisances, to preserve the peace, apprehend the disorderly and suspicious characters, to detect and bring offenders to justice, etc. Then again, under Section 403 of the City Municipal Corporation Act, if any Police Officer sees any person committing an offence against any of the provisions of this Act, or of any Rule, bye-law or Regulation made under it, he shall, if the name and address of such person are unknown to him if the said person on demand declines to give his name and address or gives a name and address which such officer has reason to believe to be false, arrest such person. These are some of the statutory powers given to Police Officers and duties imposed on Police Officers. It might also be noted that under Rule 28 of the Rules framed under the Tamil Nadu Catering Establishments Act, 1958, none of the operations connected with a catering establishment shall be conducted or carried on in any room used as living or sleeping quarters of employees. Therefore, it has to be seen whether any of the workers are staying in the hotel itself at premises Nos. 366-367, N.S.C. Bose Road, Madras, after the working hours and whether such stay would amount to an infrigement of the Rules framed under the Tamil Nadu Catering Establishments Act.
17. Moreover, under the conditions of the licence issued under Section 279 of the City Municipal Corporation Act no part of the building in which a catering establishment is situated shall be used at any time for purposes of human habitation unless such building is sufficiently detached or separated from the rest of the premises to the satisfaction of the Health Officer. The police have to investigate as to whether any of the workers of the hotel are remaining in the premises in which the hotel is being run out of working hours, despite the fact that quarters had been provided for them at No. 55, P.V. Iyer Street, Madras for their stay out of working hours and whether such a stay in the hotel premises would amount to contravention of the provisions of the Tamil Nadu Catering Establishments Act and the Rules made thereunder or in contravention of the conditions of the licence issued to the petitioner under Section 279 of the City Municipal Corporation Act. It has also to be investigated as to whether the workers had effected forcible entry into the hotel and have committed criminal trespass into the same and are unlawfully remaining there with any of the intents specified in Section 441, IPC.
18. The affidavit filed by the Commissioner of Police in this case merely states that he understood that necessary action warranted by law had already been taken in this matter and that he was satisfied that the police had taken adequate and proper action warranted in law on this matter. In these circumstances, as was done in A.S.V. Varadachariar v. The Commissioner of Police (1969) 2 M.L.J. 1, the Commissioner of Police is directed to cause an investigation to be made on the points mentioned by me above and take necessary action according to law, in case it is found that there has been a criminal trespass by the workers into the premises and the presence of the workers there inside the hotel premises would amount to criminal trespass. Writ Petition No. 560 of 1978 is so ordered.
19. Crl. M.P. No. 34 of 1978 is dismissed in view of the order I have passed in the writ petition and also because when a remedy by way of writ lies, it would not be proper to invoke the inherent powers of this Court under Section 482, Crl. P.C., There will be no orders as to costs in the writ petition.
After pronouncing the above Order on 28th April, 1978 these petitions having been set down this day 'for being spoken to' the Court made the following: