Facts Disputed, Girl Allegedly Harassed By Pink Police Officer Not Entitled To Compensation: State Before Kerala High Court

The State has submitted before the Kerala High Court that the 8-year-old girl child and her father allegedly antagonised by a pink police officer in public are not entitled to a public law remedy since the facts in the case were disputed. 

The allegation against the officer was that she rushed to the girl and her father, yelling at the duo to return her mobile phone, which according to her, was stealthily removed by them.

Last week, the Court had sought the State's views about granting compensation to the petitioner under a constitutional tort.

However, the argument note submitted through Additional Public Prosecutor P. Narayanan submitted that a public law remedy can only be availed when the facts are undisputed and that there is a specific finding to the violation of fundamental right under Article 21 of the Constitution.

It was added that in the instant case, the facts are disputed and there cannot be a conclusive finding that any action of the said police officer amounts to a violation of the fundamental right guaranteed to the petitioner under Article 21:

"The petitioner cannot avail Public Law remedy since the facts are strongly disputed and the allegations in the writ petition are denied and controverted by the respondents in the Affidavit dated 25.11.2021 of the Inspector General of police and the Report of the state police Chief." 

The State further argued that the petitioner's averments were based on the statements of the witnesses.  It was pointed out that these statements are produced before the Court only to show the genuineness of the enquiry conducted by the Police.

It was also submitted that the Court may not rely on the statements given by the witnesses during the fact-finding (non-statutory) enquiry by the departmental authorities for a judicial decision as the veracity of the statements is not tested by subjecting it to cross-examination.

"It may not be appropriate for the Court to rely upon the untested statements of the witnesses without subjecting to cross-examination, for the purpose of arriving at a judicial decision. The statement can be used only to form an opinion about the facts of the case by the Departmental authorities."

The primary fact in dispute is that the police officer did not utter anything to humiliate the child during the incident. It was pointed out that the independent witnesses specifically stood proof for the same. 

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 The State government added that in its order dated 19.11.2021, this Court itself had observed that "it is too early a stage for this Court to conclude whether the allegations made in this writ petition are right or wrong".

On this ground, it was contended that since the veracity of the allegation is yet to be considered by the Court, the State may not be in a position to offer any compensation in as much as the contentions raised by the official respondents in their respective pleading are to the effect that the actions of the pink police officer are not violative of fundamental rights of the petitioner under Article 21.

The said police officer was transferred to a different station in a non-uniformed post. The State argued that considering her family background, the transfer has actually caused much hardship to her and now she is being relieved from the duty as a Pink Police.