W.A No. 1130 of 2006 · Madras High Court

COMMON JUDGMENT ( DELIVERED BY P.JYOTHIMANI,J.)This appeal is directed against the order of the learned singleJudge dated 01.076.2006 made in M.P.No.1 of 2006 in W.P.No.24160 of2006, dismissing the above said petition, the petitioner has preferredthe above writ appeal.

The Writ Petition No.24160 of 2006, is filed for Mandamus, directing the respondents 1 to 8 to pay a sum of Rs.10 lakhs ascompensation to the petitioner for the death of her brother and also todirect the second respondent, viz., the Commissioner of Police, Chennai, to initiate appropriate disciplinary action against respondents 3 to 8.

The case of the petitioner, as seen in the affidavit filedin support of the writ petition, is that she along with her husband andher brother Pandian were living in Vyasarpadi and the said Pandian, whowas aged about 18 years, was working as a helper in the vegetable shopbelonging to one Ms.Renuka at New Merginpuram at Vyasarpadi. Accordingto the petitioner, her brother Pandian was having the traits of a womanand later, became a transgender person. By knowing his nature, thethird respondent Police has named him as Pandian @ Pottai Pandian in the First Information Report registered in Crime No.614 of 2006. 3 (a). It is the further case of the petitioner that on01.05.2006 at around 11.00 PM, the police personnel belonging to thethird respondent Police Station have come to the house searching for Pandian in the premises stating that one Saranraj had committed theftand to interrogate the same, they wanted to take Pandian and immediatelyafter the whereabouts of the said Saranraj was known, Pandian would bereleased.

The respondents have filed a counter affidavit in the writpetition. The case of the first respondent-State is that in respect ofa case registered in the third respondent Police Station on 30.04.2006based on the report of one Nandakumar regarding theft of gold jewels, the said Pandian and Saranraj were secured on suspicion and duringinterrogation, they have admitted the theft committed by them bybreaking open the padlock of a premises, and the gold jewels were alsorecovered. While it was admitted that the said Pandian has secured bailon condition that he should appear every day, it is the case of thefirst respondent that he appeared on 07.06.2006 and 08.06.2006, butfailed to turn-up between 09.06.2006 and 11.06.2006. It is the furthercase of the said respondent that when the said Pandian came on12.06.2006 at 8.00 AM, he was questioned about the failure in notappearing on the previous days and directed to come at 10.00 AM. It isalso the case of the first respondent that at about 8.30 AM on the saiddate, at S.M. Road, the said Pandian has procured kerosene and a matchbox from the shop of one Ramalingam and poured kerosene upon himself ashe approached the Corporation School compound and set fire himself.

In the counter affidavit filed by the third respondent, thethird respondent has chosen to state that in respect of the complaintregarding theft of jewels, the Sub-Inspector of Police has secured oneSaranraj and Pandian on 04.05.2006 under suspicious circumstances andafter interrogation, they have admitted the guilt and the goods werealso recovered. It is the case of the third respondent that the saidPandian was arrested on 04.05.2006 and it was informed to the mother ofthe said Pandian. The third respondent has also stated in the line ofthe counter affidavit filed by the first respondent about the incidentwhich took place on 12.06.2006 stating that on 12.06.2006, at about 8.30AM at S.M. Road, the said Pandian has procured kerosene and a match boxfrom the shop of one Ramalingam and poured kerosene upon himself as heapproached the Corporation School compound and set himself fire and with35% burn injuries he was admitted in Kilpauk Government Medical CollegeHospital by his sister.

The respondents 4 to 8 have filed their counter affidavit atthe writ appeal stage. It is their case that the said Pandian wasapprehended along with Saranraj in respect of a theft case and there wasa confession. It is also their case that the said Pandian committedsuicide on S.M.Road near P.3 Police Station by self-immolation and hesustained 37% of burn injuries. In the statement recorded by the Magistrate in the presence of Doctor, the said Pandian has notcomplained anything about the alleged harassment. It is the case of thesaid respondents that the said Pandian died after 17 days ofhospitalisation due to burns on 29.06.2006. It is also their case thatthe petitioner who has made a complaint before the National Commissionfor Schedule Caste and Schedule Tribes on 10.05.2006, has not raised https://hcservices.ecourts.gov.in/hcservices/ anything about the present allegation against respondents 4 to 8 thather brother was harassed physically and sexually. The said respondentshave also stated that when the said Pandian was in judicial custody at Central Prison, Chennai, the petitioner met him on 13.05.2006, and thesaid Pandian is said to have stated as follows: "7. ...... Daily 6, 7 prisoners are trying tomisbehave with me and having much pain in theparts to pass urine and motion and the blood wasoozing from backside and that he is suffering allthese things in a hell and pleaded me to arrangefor coming out on bail. I also advised him togive complaint to the jailor for which he said hehas already gave complaint to the prisonauthorities about this for that they stated tohim, you are an enunch (impotent) and so you givecompany to the male persons. "It is also the case of the respondents that the said Pandian tookextreme step to commit suicide fearing that due to non-compliance ofbail conditions, he would be taken to prison again, where he was forcedto do unnatural sex with the prisoners. It is the case of therespondents that a false story has been manipulated against them. Inall other respects, the said respondents have denied various allegationsmade by the petitioner in the writ petition.

Pending the writ petition, the petitioner has filed M.P.No.1of 2006, praying for interim injunction restraining the respondents 3 to8 from continuing in their official posts and that petition came to bedismissed on 31.07.2006. It was, as against the said dismissal order inthe interim application, the petitioner filed W.A.No.1130 of 2006. Asper the direction of this Bench, the first respondent has filed acounter affidavit.

Pending the writ appeal, this Court has also appointed the Registrar (Vigilance), High Court, to conduct enquiry into the issuerelating to the suicide committed by the said Pandian and to submit areport and accordingly, the Registrar (Vigilance) conducted andsubmitted her report dated 16.02.2007, and the statements of witnessescited in the report have also been forwarded. In these circumstances, the writ appeal as well as writ petitions were taken together for finalhearing. The respondents have also filed their objections to the Enquiry Officer's report stating that the Enquiry Officer's report isone sided.

Ms. D. Geetha, learned counsel appearing for the petitionerwhile taking us through the relevant portions of the enquiry reportwould submit the following points from the said report, whichsubstantiate the contention of the petitioner about the policeharassment. The Commissioner appointed by the Court has found that theentries relating to non-appearance of Pandian between 09.06.2006 to11.06.2006 are unnatural and abnormal comparing the G.D. Entriesrelating to 09.06.2006, 10.06.2006, 11.06.2006 and 12.06.2006 andtherefore, the entries create suspicious circumstances in the commissionof suicide by the deceased Pandian. " (i) The Commissioner found that Dr.Megajabin, https://hcservices.ecourts.gov.in/hcservices/ the Doctor who first admitted the said Pandian inthe hospital gave a copy of the Accident Registermarked as Document No.18 and in the document itis stated that the said deceased has burnthimself by setting fire in P.3 Police Station at8.30 AM, and in the said document the Commissioner found the word "in" before P.3police station was struck off and instead, thewords, "near P.3 police station and near S.M.Road" were inserted. (ii) She would also submit that the Commissionerhas found that Noori, examined as witness No.22who visited the said Pandian at hospital hasstated that when she visited Pandian he wascrying and when she asked as to how the incidenttook place, Pandian has stated that he had goneto the police station to comply with the bailcondition imposed by the Magistrate and at thattime the police personnel caused sexualharassment to him and hence he was forced tocommit suicide. She also stated that since thepolice authorities were watching theirconversation, she returned. She also stated thatthe names of the persons that the said Pandiandisclosed to her were, Sampath, Thirunavukarasuand one another. Therefore, according to her, the report prima facie reveals that the saidPandian was instigated to commit self-immolationonly by the conduct of the respondents 4 to 8. "

On the other hand, Mr. L.Chandrakumar, learned counselappearing for respondents 4 to 8 would submit that the report is one-sided. He would state that Asha Bharathi examined as Witness No.44 wassatisfied that there was no truth in the allegation of harassment andtherefore, she has gave up her idea to protest against the policeatrocities. According to the learned counsel, the Commissionerappointed by the Court has only focused at the witnesses who have spokenagainst the police, and therefore, according to him, the allegation asif the respondents 4 to 8 were involved in harassing the deceased has nobasis and therefore, contended that the writ petition has no substanceand may be dismissed.

We have heard the learned counsel for the petitioner in thewrit petition as also the learned Government Pleader apart from thelearned counsel appearing for respondents 4 to 8 and perused the entirerecords, including the report submitted by the Commissioner appointed bythis Court and also the statements.

On perusal of entire records, we are prima facie satisfiedthat excesses have been committed by the respondents and we have nodoubt to arrive at the conclusion that the suicide committed by Pandianwas only in consequence of the conduct of the respondents, especiallyrespondents 4 to 8.

On the facts and circumstances of this case, it is not indispute that the said Pandian, brother of the petitioner was a https://hcservices.ecourts.gov.in/hcservices/ transgender/Aravani and in respect of the complaint given by oneNandhakumar, he was taken for interrogation on 04.05.2006 by R.3 PoliceStation. Even though the report of the Commissioner shows that the pleaof confession by the said Pandian and seizure based on the saidconfession is stated to be false on materials, the fact remains that inrespect of that incident, the said Pandian was released on bail on18.05.2006 on condition that he should appear before the thirdrespondent Police Station every day and the said order was intimated andfollowed from 07.06.2006.

It is also the admitted case of the respondents that thesaid Pandian has appeared before the third respondent Police Station on07.06.2006 and 08.06.2006, while it is the case of the respondents thathe did not appear between 09.06.2006 and 11.06.2006. Thereafter, it wason 12.06.2006, as it is found by the Commissioner, as per the DocumentNo.69, viz., General Diary Extract (GDE), the said Pandian has appearedbefore the third respondent Police Station at 8.00 AM and the case ofthe respondents is that as per the order of the Court he should appearat 10.00 AM, and therefore, he was asked to come at 10 O'clock and inthe meantime, at 8.30 AM, he has self-immolated himself. The case ofthe petitioner is that from the date when the said Pandian was taken forinterrogation on 04.05.2006, the police personnel attached to the thirdrespondent Police Station, who are mentioned as respondents 4 to 8 haveharassed him by sexual abuse taking advantage of the fact that hehappened to be a trans-gender. The Commissioner in her report wouldstate that the General Diary Extract for the three dates, viz., 09th, 10thand 11th of June, 2006, the dates on which the said Pandian was stated tohave not appeared before the third respondent Police Station is unusual, since in respect of 09.06.2006, an entry is made as if Pandian has notappeared and likewise in the entry for 11.06.2006 also, there is anendorsement, but the same was not available for 10.06.2006. Taking intoaccount that in the General Diary, for the previous date, there was noentry about the appearance of Pandian and in respect of some otherperson, viz., Ravi, such entry was not available, the Commissioner hasconcluded that the averment in this regard may not be acceptable.

It is relevant to note that when the said Pandian wasallowed to sign the register as seen in Document No.64 on 08.06.2006 at9.15 AM, why he was not allowed to sign when the Pandian is stated tohave appeared before the third respondent Police Station on 12.06.2006at 8.00 AM. It is also relevant to note that the reason for the saidPandian to commit self-immolation on 12.06.2006 can be gathered fromthe factual position and also from the enquiry report. Nevertheless, itis true that there is a contradiction in the entries themselves. Thatapart, in respect of the place of occurrence, there are three versions, namely, "(i)the occurrence is stated to have taken placein front of Corporation School at Vyasarpadi, V.Kalyanapuram Sathya Nagar Road; (ii) the incident is said to have taken place on12.06.2006, inside the third respondent PoliceStation; and (iii) the incident is said to have taken place infront of the third respondent Police Station. However, one can easily see, as it is seen from the report of the https://hcservices.ecourts.gov.in/hcservices/ Commissioner, that the incident of self-immolation of the said Pandianhas taken place in front of the third respondent Police Station, and weare certainly able to see from the report of the Commissioner that therespondents have attempted to create certain documents to show as if theincident has not taken place in front of the police station. TheDocument No.18, which is the Accident Register copy relating to Pandianas found by the Commissioner contains the statement, "that the allegedburns by self-immolation at 8.30 AM by pouring kerosene on himself andset fire by himself today near P3 Police Station", has beensubsequently converted by adding "near P.3 Police Station and near S.M.Road".

The case sheet in respect of said Pandian marked as DocumentNo.25 also shows that the suicide attempt has taken place in front ofthe police station. In addition to that, Dr.Angelin Selvaraj, who hasgiven evidence as Witness No.24 has also stated that she was told by Pandian himself when she was in-charge of ICU Ward in Kilpauk GovernmentMedical College Hospital on 12.06.2006 at 9.20 AM that he has self-immolated himself opposite to P.3 Police Station. The same has alsobeen corroborated by another Dr.Megajabin, who was the first Doctortreating him. Therefore, the finding that the occurrence in which thesaid Pandian has poured kerosene and set fire himself has taken placeopposite to the third respondent Police Station at 8.30 AM is clear. On documents, it is found and it is also not in dispute that the saidPandian came to the Police Station on 12.06.2006 at 8.00 AM and he wasdirected to come back at 10.00 AM and in the meantime, within half-anhour, he has attempted to commit suicide and ultimately he died on29.06.2006. As it is seen from the report, even though there is no eyewitness to speak about the harassment caused to the said Pandian byrespondents 4 to 8, there are abundant circumstantial evidence to provethat the averment made by the petitioner in the writ petition are primafacie correct. The witness by name Janaki, whose evidence is in factrelied upon by respondents themselves, clearly says that on 12.06.2006at 8.30 AM Pandian came to her shop and at that time he was in adisturbed mood.

That apart, another witness Noori, has clearly stated thatwhen she visited Pandian, he was crying. When she enquired Pandian, asto how this incident had happened, the said Pandian told her that whenhe has gone to Police Station to comply with the bail condition imposedby the Magistrate, the police personnel had caused sexual harassment tohim which forced him to commit suicide. She has also stated that Pandian has disclosed the names of the police personnel as Sampath and Thirunavukarasu, who are the respondents 8 and 5 respectively.

That apart, the complaint given by the deceased Pandianhimself is clear that when he went to the police station on 12.06.2006,the Writer in the police station has threatened him that he will be sentto jail since he has not complied with the condition and immediatelythereafter, he went out of the police station and purchased kerosene andset himself fire, and the said complaint given by Pandian on 12.06.2006is Document No.26.

In addition to that, the dying declaration recorded by the Metropolitan Magistrate, who was examined as Witness No.23, clearlyshows that the said Pandian has given statement before the Magistrate to https://hcservices.ecourts.gov.in/hcservices/ the effect that for the past one month he was harassed by the police. It is also seen that in the dying declaration, he has stated that thepolice has threatened him that a false case will be foisted against himand heckled at him that he is an Aravani and it was due to that reason, he has committed suicide by drowning himself to kerosene and set fire.

In addition to that, one Chandramohan, who has givenevidence as Witness No.2 has clearly stated that he being a Columnist ofa weekly issue "Netrikkan", having come to know about the incident, wentto Kilpauk Government Medical College Hospital on 14.06.2006 and metPandian and on enquiry, the said Pandian has told him, as per thecondition for bail, when he went to the police station to sign theregister, the police officials, viz., Kumar, Ravi, Sampath and ChinnaPandian (respondents 6, 7, 8 and 9 respectively) and another policeman, whose name is not known, apart from three other police constables havecommitted physical and sexual assault and that the sexual assaultcontinued till 11.06.2006 and he was unable to bear the same. He hasfurther stated that Pandian told him that he has informed the same tohis sister (petitioner herein) and on 12.06.2006 and when he went to thepolice station, the Sub-Inspector of Police, Chinna Pandian (4threspondent herein) has teased him as transgender (thlh xd; gJ) apart fromusing filthy language and in fact, he has told the said Sub-Inspector, if he continues the same, he will commit suicide for which also the saidSub-Inspector Chinna Pandian, 4th respondent herein has heckled him, andimmediately thereafter, he came out and poured kerosene and set himselffire.

It is also relevant to point out, at this stage, that basedon the complaint given by the deceased Pandian, no action has been takenby the respondents. The seriousness of this sort of harassment by thedisciplined force has been dealt with by the Apex Court in series ofcases. In P. Rathinam vs. Union of India and others reported in 1989 Suppl. (2) SCC 716, the Supreme Court while dealing with the victim ofrape, has directed the State to pay interim compensation of Rs.20,000/- https://hcservices.ecourts.gov.in/hcservices/ with permission to her to apply to the Supreme Court for furthercompensation after the criminal trial reaches its finality.

While dealing with the defence of principle of sovereignimmunity claimed by such Government servants in respect of the act doneby them during the course of their work, in Nilabati Behera (Smt.) @Lalita vs. State of Orissa and others reported in 1993 (2) SCC 746, the Supreme Court has held that in such cases where the death was unnatural, the burden is clearly on the respondents to explain how the deceasedsustained those injuries which caused his death and unless a plausibleexplanation is given by the respondents, which is consistent with theirinnocence, the obvious inference is that the fatal injuries wereinflicted on the deceased in police custody resulting in his death, forwhich the respondents are responsible and liable. That was a case ofcustodial death wherein the Supreme Court has held that there is nodoubt that on the facts and circumstances the State Government wasliable to pay compensation by holding that the enforcement of theconstitutional right and grant of redress embraces award of compensationas part of the legal consequences of its contravention.

In a recent judgement rendered in Munshi Singh Gautam (dead)and others vs. State of Madhya Pradesh reported in 2005 (9) SCC 631,while dealing with the police atrocities and custodial violence anddeaths, the Supreme Court has observed that there cannot be a directevidence in such cases due to complicity of police personnel and https://hcservices.ecourts.gov.in/hcservices/ therefore the question of adherence to the establishment of proof beyondevery reasonable doubt in such cases would result in miscarriage ofjustice and making the justice delivery system suspect and vulnerableand if such unrealistic approach is taken, it would only encourage thetorture in police custody, since it would reinforce the belief in themind of the police that no harm would come to them if one prisoner diesin the lock-up because there would hardly be any evidence available tothe prosecution to directly implicate them in the torture. The SupremeCourt in the above said judgement, Quoting from Abraham Lingan's words, "If you once forfeit the confidence of ourfellow citizens you can never regain theirrespect and esteem. It is true that you can foolall the people some of the time, and some of thepeople all the time"Expressing concern at the atrocities perpetuated by the protectors oflaw, the Supreme Court further held as follows: " .... The courts must not lose sight of the factthat death in police custody is perhaps one of theworst kinds of crime in a civilised society governedby the rule of law and poses a serious threat to anorderly civilised society. Torture in custody floutsthe basic rights of the citizens recognised by the Indian Constitution and is an affront to humandignity. .... "and ultimately held," .... The courts must, therefore, deal with suchcases in a realistic manner and with the sensitivitywhich they deserve, otherwise the common man may tendto gradually lose faith in the efficacy of the systemof the judiciary itself, which if it happens, will bea sad day, for anyone to reckon with. "

In view of the above said legal precedents, as we havefound that prima facie case has been made out by the petitioner that herbrother Pandian was harassed by respondents 4 to 8 while working aspolice officials, the writ petition and the writ appeal stand partlyallowed with the following directions: (i) The first respondent, State Government shallpay compensation of a sum of Rs.5 lakhs (Rupeesfive lakhs only) to the petitioner for theharassment meted out to her brother Pandian dueto the conduct of respondents 4 to 8 in thecourse of their functioning as police officialsworking in P.3 Vyasarpadi Police Station, Vyasarpadi, Chennai; (ii)The respondents 1 and 2 are directed toinitiate disciplinary action againstrespondents 4 to 8 for the treatment meted outto the deceased Pandian, which resulted in hisself-immolation on 12.06.2006 and ultimatedeath on 29.06.2006.(iii)It is open to the State Government to takeappropriate steps to recover the amountdirected to be paid to the petitioner in thisorder from respondents 4 to 8. https://hcservices.ecourts.gov.in/hcservices/ There is no order as to costs in both the cases. Connectedmiscellaneous petitions are closed. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarkhTo1.The Secretary State of Tamil NaduPublic DepartmentSecretariat, Fort St. GeorgeChennai 600 009.2. The Commissioner of PoliceOffice of the Commissioner of PoliceEgmore, Chennai 600 008.3. The Inspector of PoliceP.3, Vyasarpadi Police StationVyasarpadi, Chennai. 2 cc to Mr.L.Chadrakumar Advocate SR.NO.413741 cc to M/s.D.Geetha Advocate SR.NO. 415662 CC TO Govt. pleader SR.NO.41502,41503SR(co)RD 19.7.07 W.A.No.1130 of 2006 and W.P.No.24160 of 2006