M.Kalithai v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 14.3.2009C O R A M :THE HONOURABLE MR.JUSTICE P.K.MISRAandTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.11569 of 1999M.Kalithai ... Petitionervs. 1.State of Tamil Nadu rep.by itsSecretary (Home), Fort St.George,Chennai.2.The Collector,Collector's Office,Tirunelveli District.3.The Inspector General of Police,I.G's office, Madras.4.The Inspector of Police,Sankaran Koil Police Station,Tirunelveli District. ... RespondentsPRAYER : Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of mandamus directingrespondents 3 and 4 to compensate the petitioner by payment ofRs.10,00,000/- as damages caused by the untimely custodial death ofthe petitioner's husband caused by respondents 3 and 4 while he wasin custody of the fourth respondent. For Petitioner :: Mr.A.Natarajan For Respondents :: Mr.M.Dhandapani, Spl.G.P. ***** https://hcservices.ecourts.gov.in/hcservices/ O R D E RK. CHANDRU, J. This writ petition came to be posted under the orders of theHonourable Acting Chief Justice, dated 06.1.2009. The matteroriginally came up before the learned Single Judge. By an orderdated 22.10.2008, the matter was referred to be heard by a DivisionBench. Hence, the writ petition stood posted before this DivisionBench.2. The petitioner is the wife of one Marisamy and a resident ofNelkattumseval, Vasudevanallur, Sivagiri Taluk, TirunelveliDistrict. She has filed the present writ petition seeking for acompensation of Rs.10 lakhs from the respondents as damages forhaving caused the death of her husband while he was in the custodyof the fourth respondent. 3. The writ petition was admitted and notice was ordered on07.7.1999. Subsequently, when the matter came up for final disposalon 06.9.2008, this Court directed the fourth respondent to bepresent with the concerned files relating to the death of thepetitioner's husband Marisamy. 4. In the meanwhile, on behalf of the first respondent, acounter affidavit dated 22.9.2008 was filed. On behalf of the fourthrespondent also, another counter affidavit has been filed with thesame date. The respondents have also circulated the documents in theform of a typed set.5. It is seen that an RDO enquiry was conducted against thedeath of the petitioner's husband under Police Standing OrderNo.145. The Revenue Divisional Officer, Tirunelveli by his reportdated 12.3.1999 found that the death was due to suffocation and dueto hanging as opined by the Medical Officer and not due to tortureby the police personnel. This report was sent to the DistrictCollector, Tirunelveli, who agreed with the report of the RevenueDivisional Officer and forwarded it to the State Government. 6. The Government, by its order in G.O.(Ms).No.204, Public (Lawand Order-E) Department, dated 04.2.2000 found that six policemen,including the Inspector and Sub-Inspector were negligent. By afurther letter dated 25.2.2002, the Government also informed theNational Human Rights Commission that since the death was caused dueto carelessness of the police personnel on duty, while the deceasedwas in the police custody, they have issued orders to takedepartmental action against the concerned police personnel.Subsequently, the policemen were proceeded with disciplinary action https://hcservices.ecourts.gov.in/hcservices/ and minor punishments were imposed on them. 7. The Government also took up the contention that while theGovernment Order in G.O.Ms.No.153, Public (Law and Order-B)Department, dated 31.1.1998 provided for compensation under certaincircumstances, the present case was not covered by the said G.O. 8. It is an admitted case that the petitioner's husband haddied in police lockup under suspicious circumstances. Therefore,whether the petitioner, being the wife of the deceased, is eligiblefor compensation, will have to be decided in this writ petition.9. It is brought to the notice that a letter sent by thepetitioner to the Hon'ble Chief Justice, which was received on24.10.1998 was taken up as a Writ Petition. It came to be postedbefore a Division Bench registering it as W.P.No.19642 of 1998.After treating it as a writ petition, no notice was sent to thepetitioner. However, an Advocate of this Court was appointed as anamicus curiae to assist the Court. Unfortunately, when the mattercame up before the Division Bench on 13.6.2005, the said amicuscuriae had not appeared. No further intimation was also sent to thepetitioner. Further, the Division Bench was also not informed aboutthe pendency of the writ petition having been filed by thepetitioner herself in W.P.No.11569 of 1999 and prosecuted by anAdvocate. In the absence of such information, the Division benchdismissed the writ petition for default vide its order dated13.6.2005.10. Before we take up the merits of this writ petition, itmust be stated that the earlier Division Bench by its order dated13.6.2005 dismissed the writ petition only for default. Though anamicus curiae was appointed, since she had not appeared, by normalpractice, notice should have been issued to the petitioner inperson. The dismissal was not on merits but only for default. Evenat that time it was not brought to the notice of the Court about thependency of the present writ petition. Hence, we do not think thatthe order passed by this Court dated 13.6.2005 will operate againstthe petitioner is prosecuting the present writ petition. Theobjection raised in this regard stands overruled.11. Pursuant to the direction given by the learned Judge, theoriginal records were also circulated for perusal by this Court. TheRevenue Divisional Officer, Tirunelveli received an FIR forwarded bythe Deputy Superintendent of Police, Sankarankoil for an enquiryunder Police Standing Order 145, pursuant to which, the RevenueDivisional Officer, Tirunelveli conducted an enquiry. As per theFIR, the deceased Marisamy was arrested along with two other accusedM/s.Ramar and Murugaiah by the Inspector of Police, Vasudevanallur https://hcservices.ecourts.gov.in/hcservices/ at Nelkattumseval on 16.9.1998 at 6.30 a.m. and brought to thepolice station at Sankarankoil at 9.30 a.m. After due search, he waslocked up and the other two accused were kept in the Writer's roomfor interrogation.12. It was further stated that when the Inspector of Policecame back at 12 0' clock, he was told by the two police constablesthat the accused had gone to the toilet. When they later followedhim to the toilet, they found that the accused had put a noosearound his neck with a lungi and hanged by tying the other end ofthe lungi with the wire mesh of the window of the toilet and hadattempted to commit suicide. Having found him struggling for life,the two constables lifted him and removed his lungi from his neckand took him to a local nursing home. The doctor there declared thesaid Marisamy dead.13. The Revenue Divisional Officer by his report dated12.3.1999 opined that due to the scolding by the deceased Marisamy'sfather, he must have committed suicide and his father's statementwas also recorded. He disbelieved the evidence of the co-accused onthe plea that they were the relatives of the deceased and were alsoaccused in a murder case. He went by the post-mortem report and thefinal medical opinion to hold that there were no external orinternal injuries on his body. After inspecting the police station,he opined that there was a possibility of hanging with a lungi tiedto the window wire mesh. Therefore, he concluded that the death wasdue to suffocation and due to hanging and not due to the torture bythe police. 14. This report was forwarded to the District Collector,Tirunelveli, who in turn, forwarded to the first respondent Statewith a covering letter dated 24.3.1999. He agreed with the findingsof the Revenue Divisional Officer. The State Government issuedG.O.Rt.No.204, Public (Law and Order) Department, dated 04.2.2000.In para 'C', the State Government fixed the responsibility onvarious police personnel. In para 'C-1' it was found that theInspector Vijayaraghavan of Vasudevanallur Police Station who was incharge of the fourth respondent police station was found guilty ofretaining the accused Marisamy without properly recording his arrestin the station register. He was also fixed the responsibility ofhaving allowed him to stay inside with the lungi therebyfacilitating his suicide. In the same way, the Sub-InspectorKottaisamy, Head Constable Samuthiravel, P.C. Gr.I Venkatachalam,P.C.Gr.I Kasipandian and Assistant Station Writer Gr.I ConstableSolaisamy were fixed the responsibility for both the events.15. By the said G.O. the department was directed to takedepartmental action against the persons concerned. Thereafter ittranspires that departmental action was taken and punishment was https://hcservices.ecourts.gov.in/hcservices/ imposed on four policemen. Action against Kasipandian Gr.I P.C. andSolaisamy Gr.I. Constable were dropped. In respect of the Inspectorof Police, Sub-Inspector and Head Constable and also one other GradeI Constable, reduction in pay by two stages for one year withoutcumulative effect was given. This matter was brought to the noticeof the Government and the Government accepted the punishment imposedon them by a letter dated 14.6.2004.16. The counter affidavit more or less extracts these passagesand prayed for dismissal of the writ petition on the ground thatthere was no necessity to grant any compensation as prayed for inthe writ petition.17. In paragraphs 12 and 13 of the counter affidavit, it hasbeen averred as follows:-Para 12. With reference to the averments made in para 8 ofthe affidavit, it is submitted that as per theexisting norms in G.O.Ms.No.153, Public (Law andOrder-B) department, dated 31.1.1998, a financialrelief of Rs.1,00,000/- (Rupees one lakh only) isbeing sanctioned by the Government in respect ofthe following categories.1. (a) Death in caste/communal clashes (b) Death due to police torture (c) Death due to police firing (d) Rape by police.2. Permanent incapacitationPara 13. It is submitted that in the instant case, as thedeceased had died due to committing suicide, thesanction of exgratia was not considered by theGovernment".Therefore, the learned Special Government Pleader Mr.Dhandapaniprayed for dismissal of the writ petition.18. But, however, the learned counsel for the petitionercontended that the findings of the Revenue Divisional Officer indisregarding the evidence given by two under-trials as well as thepetitioner were erroneous. Whatever may be the circumstances underwhich the petitioner's husband had committed suicide, the factremains that when the police belonging to the fourth respondentpolice station took him into custody and they did not record hisarrest in the station records. Contrary to standing procedure, hewas allowed to wear a lungi inside the lockup. Responsibilities werefixed on the policemen and they were dealt by a departmental action.Penalty was imposed on them. Whether the penalty imposed on thepolicemen was commensurate with the misconducts committed by them ornot, we are not called upon to decide the same in this writ https://hcservices.ecourts.gov.in/hcservices/ petition.19. It is suffice to state that the finding that his arrest wasnot shown on records is enough to hold that the respondents wereguilty of violating Article 22(1) of the Constitution of India aswell as the 11 commandments (guidelines) issued by the Supreme Courtin the judgment relating to D.K.Basu -vs- State of West Bengalreported in AIR 1997 SC 610. Therefore, we have no hesitation toreject the stand taken by the respondent State that D.K.Basuguidelines have been followed in the case of arrest of LateMarisamy. We also hold that this G.O. referred to by the respondentState, as extracted above, cannot be a 'be-all and end-all' in thematter of grant of compensation in case of human rights abuse in apolice station. Therefore, the primary cause in the present case isthat the accused Late Marisamy was taken to the police station andkept in custody without any record. 20. The subordinates of the respondent State have committedgross contempt of the orders of the Supreme Court rendered inD.K.Basu's case (cited supra). In the same judgment, the nature ofaction to be taken for violation of the order is set out inparagraphs 37 and 38, which is as follows:-''37. Failure to comply with the requirementshereinabove mentioned shall apart from rendering theofficial concerned liable for departmental action, alsorender him liable to be punished for contempt of court andthe proceedings for contempt of court may be instituted inany High Court of the country, having territorialjurisdiction over the matter.38. The requirements, referred to above flow fromArticles 21 and 22(1) of the Constitution and need to bestrictly followed. These would apply with equal force tothe other governmental agencies also to which a referencehas been made earlier." 21. In this context, it is necessary to refer to the FullBench judgment of this Court in P.P.M.Thangaiah Nadar Firm, rep.byits Partner T.P.Prakasam, Tuticorin and others -vs- Government ofTamil Nadu, rep.by its Chief Secretary, Chennai and others reportedin (2007) 2 MLJ 685. The Full Bench after referring to variouscases of the Supreme Court in paragraph 38, held as follows:-''38. Now, the inevitable end of the journey or may bebeginning of another. In view of the various decisionsnoticed by us and many other decisions referred to insuch decisions, the following conclusions can bereached. The State is not necessarily liable in everycase where there is loss of life or damage to the https://hcservices.ecourts.gov.in/hcservices/ property during rioting. Where, however, it isestablished that the officers of the State ordained withduty of maintaining law and order have failed to protectthe life, liberty and property of person and suchfailure amounts to dereliction of duty, the State wouldbe liable to pay compensation to the victim. Suchliability can be enforced through Public Law remedy orCommon Law remedy. Where, necessary facts to establishculpable negligence on the part of the officials areavailable, the High Court under Article 226 can issueappropriate direction". 22. In this context, it is necessary to refer to a latestdecision of the Supreme Court in Dalbir Singh v. State of U.P. andOthers (Writ Petition (Crl.) No. 193 of 2006, decided on February 3,2009). Paragraphs 6 to 11 are relevant and they may be usefullyreproduced below:-''Para 6. Custodial violence, torture and abuse of policepower are not peculiar to this country, but it iswidespread. It has been the concern of internationalcommunity because the problem is universal and thechallenge is almost global. The Universal Declarationof Human Rights in 1948 which marked the emergence ofa worldwide trend of protection and guarantee ofcertain basic human rights stipulates in Article 5that "No one shall be subjected to torture or tocruel, inhuman or degrading treatment or punishment".Despite this pious declaration, the crime continuesunabated, though every civilized nation shows itsconcern and makes efforts for its eradication. Para 7. If it is assuming alarming proportions, now a days,all around it is merely on account of the devilishdevices adopted by those at the helm of affairs whoproclaim from roof tops to be the defenders ofdemocracy and protectors of peoples' rights and yet donot hesitate to condescend behind the screen to letloose their men in uniform to settle personal scores,feigning ignorance of what happens and pretending tobe peace loving puritans and saviours of citizens'rights. Para 8. Article 21 which is one of the luminary provisions inthe Constitution of India, 1950 (in short the`Constitution') and is a part of the scheme forfundamental rights occupies a place of pride in theConstitution. The Article mandates that no personshall be deprived of his life and personal libertyexcept according to the procedure established by law.This sacred and cherished right i.e. personal liberty https://hcservices.ecourts.gov.in/hcservices/ has an important role to play in the life of everycitizen. Life or personal liberty includes a right tolive with human dignity. There is an inbuilt guaranteeagainst torture or assault by the State or itsfunctionaries. Chapter V of the Code of CriminalProcedure, 1973 (for short the `Code') deals with thepowers of arrest of persons and the safeguardsrequired to be followed by the police to protect theinterest of the arrested person. Articles 20(3) and 22of the Constitution further manifest theconstitutional protection extended to every citizenand the guarantees held out for making life meaningfuland not a mere animal existence. It is thereforedifficult to comprehend how torture and custodialviolence can be permitted to defy the rights flowingfrom the Constitution. The dehumanizing torture,assault and death in custody which have assumedalarming proportions raise serious questions about thecredibility of rule of law and administration ofcriminal justice system. The community rightly getsdisturbed. The cry for justice becomes louder andwarrants immediate remedial measures. This Court hasin a large number of cases expressed concern at theatrocities perpetuated by the protectors of law.Justice Brandies's observation which have becomeclassic are in following immortal words:"Government as the omnipotent and omnipresentteacher teaches the whole people by itsexample, if the Government becomes a lawbreaker, it breeds contempt for law, itinvites every man to become a law intohimself". (in (1928) 277 U.S. 438, quoted in(1961) 367 U.S. 643 at 659). Para 9.The diabolic recurrence of police torture resulting ina terrible scare in the minds of common citizens thattheir lives and liberty are under a new andunwarranted peril because guardians of law destroy thehuman rights by custodial violence and torture andinvariably resulting in death. The vulnerability ofhuman rights assumes a traumatic torture whenfunctionaries of the State whose paramount duty is toprotect the citizens and not to commit gruesomeoffences against them, in reality perpetrate them. Theconcern which was shown in Raghubir Singh's case(supra) more than two decades back seems to havefallen to deaf ears and the situation does not seem to https://hcservices.ecourts.gov.in/hcservices/ be showing any noticeable change. The anguishexpressed in Gauri Shanker Sharma v. State of U.P.(AIR 1990 SC 709), Bhagwan Singh and Anr. v. State ofPunjab (1992 (3) SCC 249), Smt. Nilabati Behera@Lalita Behera v. State of Orissa and Ors. (AIR 1993SC 1960), Pratul Kumar Sinha v. State of Bihar andAnr. (1994 Supp. (3) SCC 100), Kewal Pati (Smt.) v.State of U.P. and Ors. (1995 (3) SCC 600), Inder Singhv. State of Punjab and Ors. (1995(3) SCC 702), Stateof M.P. v. Shyamsunder Trivedi and Ors. (1995 (4) SCC262) and by now celebrated decision in Shri D.K. Basuv. State of West Bengal (JT 1997 (1) SC 1) seems tohave caused not even any softening attitude to theinhuman approach in dealing with persons in custody. Para 10. Rarely in cases of police torture or custodialdeath, there is any direct ocular evidence of thecomplicity of the police personnel alone who can onlyexplain the circumstances in which a person in theircustody had died. Bound as they are by the ties ofbrotherhood, it is not unknown that the policepersonnel prefer to remain silent and more often thannot even pervert the truth to save their colleagues -and the present case is an apt illustration - as tohow one after the other police witnesses feignedignorance about the whole matter. Para 11. The exaggerated adherence to and insistence upon theestablishment of proof beyond every reasonable doubtby the prosecution, at times even when the prosecutingagencies are themselves fixed in the dock, ignoringthe ground realities, the fact-situation and thepeculiar circumstances of a given case, as in thepresent case, often results in miscarriage of justiceand makes the justice delivery system suspect andvulnerable. In the ultimate analysis the societysuffers and a criminal gets encouraged. Tortures inpolice custody, which of late are on the increase,receive encouragement by this type of an unrealisticapproach at times by the courts as well because itreinforces the belief in the mind of the police thatno harm would come to them if one prisoner dies in thelock-up because there would hardly be any evidenceavailable to the prosecution to directly implicatethem with the torture. The courts must not lose sightof the fact that death in police custody is perhapsone of the worst kind of crimes in a civilizedsociety, governed by the rule of law and poses aserious threat to an orderly civilized society.Torture in custody flouts the basic rights of the https://hcservices.ecourts.gov.in/hcservices/ citizens recognized by the Indian Constitution and isan affront to human dignity. Police excesses and themaltreatment of detainees/under- trial prisoners orsuspects tarnishes the image of any civilised nationand encourages the men in `Khaki' to considerthemselves to be above the law and sometimes even tobecome law unto themselves. Unless stern measures aretaken to check the malady of the very fence eating thecrops, the foundations of the criminal justicedelivery system would be shaken and the civilizationitself would risk the consequence of heading, towardstotal decay resulting in anarchy and authoritarianismreminiscent of barbarism. The courts must, therefore,deal with such cases in a realistic manner and withthe sensitivity which they deserve, otherwise thecommon man may tend to gradually lose faith in theefficacy of the system of judiciary itself, which, ifit happens, will be a sad day, for any one to reckonwith. "(Emphasis Added)23. On the strength of the dictum laid down by the SupremeCourt, the report of the Revenue Divisional Officer deserves to bediscarded. But, however, the view which we have taken herein, we donot think that it is necessary to go into the validity of thefinding rendered by the Revenue Divisional Officer, which is only aprima facie finding. 24. Therefore, we hold that the illegal arrest of Late Marisamyand lack of care in saving his life while in police custody aresufficiently proved and those findings established here are enoughto order compensation by the State. The respondents are herebydirected to pay a sum of Rs.2 lakhs (Rupees two lakhs only) ascompensation towards the death of the petitioner's husband (LateMarisamy) in lockup due to illegalities committed by the policemen.The writ petition will stand allowed to the extent indicated above.No costs. The respondent State is hereby directed to pay thecompensation within a period of eight weeks from the date of receiptof a copy of the order of this Court and report compliance.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ jsTo1.The Secretary (Home),State of Tamil Nadu, Fort St.George,Chennai-600 009.2. The Collector,Collector's Office,Tirunelveli District.3. The Inspector General of Police, I.G's office, Chennai-4.4. The Inspector of Police,Sankaran Koil Police Station, Tirunelveli District. 5.The Section Officer,Writ Section,High Court,Madras.+1cc to Govt. Pleader Sr 7946BVN(CO)km/19.3.W.P.No.11569 of 1999