Mrs.Vijaya v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 10-11-2009Coram:THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE N.KIRUBAKARANH.C.P.No.1334 of 2009Mrs.Vijaya ... Petitioner Versus1.The State of Tamil Nadu, rep. by its Secretary to Government, Home Department, Secretariat, Chennai-600 009.2.The Director General of Police, Mylapore, Chennai-600 004.3.The Superintendent of Police, Salem District.4.The Inspector of Police, Veeranam Police Station, Salem District.5.The Superintendent of Police, Central Prison, Salem. ... RespondentsHapeaus Corpus Petition filed under Article 226 of Constitutionof India praying for the issuance of Writ of Habeaus Corpus directingthe respondents No.1 and 2 to take necessary departmental actionagainst the erring police personnel attached with the 4th respondentand also to pay necessary and adequate compensation to the detenuE.Iyyanar, S/o.Elumalai aged about 39 years for the maltreatment ofthe 4th respondent during the custody period. For Petitioners :Mr.P.VijendranFor Respondents :Mr.V.R.Balsubramaniam Additional Public Prosecutor. https://hcservices.ecourts.gov.in/hcservices/ O R D E RN.KIRUBAKARAN,J.This Habeas Corpus petition has been filed by the wife of thedetenu for the following relief: "Directing the respondents No.1 and 2 to take necessarydepartmental action against the erring police personnel attached tothe 4th respondent and also directing the respondents to pay necessaryand adequate compensation to the detenu E.Iyyanar, S/o.Elumalai agedabout 39 years for the maltreatment of the 4th respondent during thecustody period."2.The case of the petitioner is that her husband E.Iyyappan,son of Elumalai was illegally tortured and detained under the fifthrespondent. She states that her husband is a District Treasurer ofthe Human Rights Protection Centre (HRPC) and he has beencontinuously working for the people's right cause including againstthe atrocities committed by the police officials.3.The petitioner contended that the fourth respondent hadtaken her husband to Ercuard Hill Station and where he was attackedindiscriminately and photographs were taken as if the detenu wasdistilling illicit liquor. The detenu was charged under Sections 4(1)(b), 4(1)(g), 4(1)(aaa) and 4(1-A) of the Tamil Nadu Prohibition Actand a case was registered in Crime No.318 of 2009. The petitioner wasproduced before the learned Judicial Magistrate III, Salem, whoremanded him to judicial custody on 9.8.2009. It is further case ofthe petitioner that the detenu made a complaint against the policeofficials namely 1) Mr.Raja Ramaveerapandian, Inspector of Police,Attayampatti, 2) Ravikumar, Inspector of Police, Veeranam PoliceStation and 3) Vinayagam, Sub-Inspector of Police, Veeranam PoliceStation at the time of remand, and the Magistrate refused to registerand take action on the complaint given by the detenu though thedetenu was severely attacked and sustained fractured in his leftforearm.4.The petitioner contended that she made a complaint on9.8.2009 to the Deputy Superintendent of Police, Salem and to theChief Minister Grievance Cell and others and a representation wasalso sent to the District Collector on 10.8.2009. The C.M.P.No.3064of 2009 filed by the petitioner before the Judicial Magistrate-IV,Salem seeking direction to provide medical treatment to the detnuewas dismissed on 12.l8.2009. In nutshell the petitioner alleged thatthe detenu was illegally arrested and beaten severely by the fourthrespondent. https://hcservices.ecourts.gov.in/hcservices/

5.Aggrieved by the same, the writ petition has been filed.This court after hearing the learned counsel for the petitioner by anorder dated 25.8.2009 directed the learned Judicial Magistrate No.IV,Salem to make arrangement for medical examination on the detenu andin the event if any injury was found on the body of the detenu, themedical officer should arrange for necessary treatment to be given tothe detenu and the Judicial Magistrate should also collect necessarymedical reports from the medical officer.6.The learned Judicial Magistrate No.IV, Salem submitted hisreport stating that the detenu was sent to Mohan KumaramangalamMedical College Hospital, Salem for medical examination andtreatment. As directed by the Dean of the Medical College a committeewas formed consisting of specialist and they examined the detenu andsubmitted a final report, which reads as follows:" Plaster of paris already applied was removed andreapplication with plaster of paris above elbow was doneafter reviewing in the X-rays. X-rays show communicatedfracture of olecranon left ulna. Patient was treated withIV fluids antibiotics and pail killers.On examination of the patient by the board members on27.8.2009, patients conscious, comfortably afebrele obesenot jaundiced, not anaemic, not cyanosed, no gluvving andno lymphadenopathy. No external injuries. Patient is onabove elbow plaster of pairs slab left upper limb. Cardiovascular and respiratory systems were normal abdomen wassoft, no Organomegaly no free fluid. Central nervoussystems and locomotor systems normal..."7.The learned Judicial Magistrate No.IV, Salem by its reportdated 27.8.2009 submitted that on 9.8.2009 the detenu was produced at6 p.m. by the police; that the detenu did not make any complaintagainst the police when he was remanded to judicial custody and thatthe detenu did not send any application through the superintendentof police. It is seen from the said report that this court grantedbail to the detenu in Crl.O.P.No.17194 of 2009 on 26.8.2009 and hewas released. 8.Status report has been filed by the Public Prosecutorstating that on 9.8.2009 at 10.00 hours, when the police went for araid, the detenu was distilling illicit arrack and was arrested. Aconfession statement was recorded in the presence of VillageAdministrative Officer, Veeranam and 200 liters of Fermented Wash ofthree barrels and 150 litres of illicit distilled arrack wererecovered. A case was registered in Crime No.318 of 2009 under https://hcservices.ecourts.gov.in/hcservices/ Sections 4(1)(b), 4(1)(g), 4(1)(aaa) and 4(1-A) of the Tamil NaduProhibition Act. The status report further stated that the detenu metwith an accident and sustained injuries on his left hand and he wastaking treatment prior to judicial custody on 9.8.2009.9.It is further stated that the detenu was involved in twoother cases registered by the Prohibition and Enforcement Wing and hewas convicted by an order dated 22.9.2003 in STR No.2248 of 2003 onthe file of the Judicial Magistrate Court, Salem. The status reportfurther states that the detenu's wife namely the petitioner hereinand his father were also offenders under Prohibition Act. In theadditional status report dated 30.9.2009, it is mentioned that thepetitioner in her complaint dated 14.9.2009 addressed to the TamilNadu Human Rights Commission admitted that the injuries was alreadysustained by the detenu on his left hand. In paragraph 5 of theadditional status report, it is stated that the detenu was involvedin four other cases filed by the Veeranam Police Station and fourother cases in Crime No.308/05,226/2006,658/2008 and 836 of 2008 onthe file of the Steel Plant Prohibition Enforcement Wings, Salem. Thepetitioner was also involved in three other cases in CrimeNo.827/02,1131/2002 and Crime No.212 of 2005 under Prohibition Act. 10.To put in nutshell, the prosecution submitted that thedetenu as well as the petitioner are habitual offenders andmanufacturing illicit liquor and the detenu was arrested during theprohibition raid and he was not illegally arrested or tortured asalleged.11.Learned counsel for the petitioner submitted that no doubt,the detenu was a bootlegger, but he is not, now, carrying on anyillicit arrack business as alleged by the police, that the policeillegally arrested and tortured him and that is the reason why thepetitioner approached this Hon'ble court praying for a writ of habeascorpus directing the respondents to have a departmental actionagainst the erring police personnel attached to the fourth respondentand give adequate compensation to the detenu for the illegal torturegiven by the fourth respondent to the detenu during the custodyperiod.12.The learned counsel for the petitioner relied upon ajudgement of the Supreme Court in the case of Common Cause, aRegistered Society vs. Union of India and others reported in (1999) 6SCC 667 and would contend that where the public functions areinvolved and the matter relates to violation of fundamental rights orenforcement of public duty etc. at the option of the petitioner underthe public law notwithstanding damages may be claimed in thoseproceedings. In particular he relied upon paragraph 65 of theaforesaid judgement and stated that the court can award damagesagainst the public authorities to compensate for the loss or injury https://hcservices.ecourts.gov.in/hcservices/ caused to the petitioner, provided the case involves, in thiscountry, the of violation of fundamental rights by the Government orother public authorities or that their action was wholly arbitraryor oppressive in violation of Article 14 of the Constitution ofIndia. Reference was also made by the learned counsel for thepetitioner to the case of Ramanuj Pandey vs. State of Mathya Pradeshand others reported in (2009) 7 SCC 248. In that case, a HeadConstable was charged for wrongly detaining a public servant underlunacy Act. The authority removed the said constable from service forthe said act. While dealing with the aforesaid matter, the Hon'bleSupreme Court held in its judgement in paragraph 10, which is asfollows:"10. In the present matter the appellant, whiledischarging his duties apprehended Laxmi Narain andregistered him under the Lunacy Act without anysufficient reasons. This act of his had indisputablycaused harassment to Laxmi Narain and was detrimental tothe image of the Police Department, but the same was alsonot grave enough to punish him with removal fromservices. The appellant as a Head Constable was bestowedwith official duties and while discharging them he wentoutside its purview, which definitely warrants that hisservices must be terminated, but as a warning to othersand not as a vengeance." 13.Relying upon the the said judgements, learned counsel forthe petitioner submitted that in this case also the detenu waswrongly detained and tortured and hence the erring police officialswere to be proceeded with departmental action and the detenu has tobe compensated.14.On the other hand Mr.V.R.Balasubramaniam,learned PublicProsecutor submitted that the petitioner was arrested and remanded tojudicial custody as pear law. Apart from that he submitted that therewas a fracture in left forearm of the detenu even before the saidalleged incident and it was suppressed in the writ petition. Moreoverthe said fact was already admitted by the detenu's wife, in herrepresentation given to the Human Rights Commission.15.A perusal of the affidavit as well as the status reportwould show that the detenu as well as the petitioner are involved ina number of prohibition cases. In some of the cases also they wereconvicted. It is not as if the police registered the case against thedetenu for the first time and arrested him under prohibition Act. Itis seen from paragraph 5 of the affidavit it is alleged that thedetenu was severely attacked and sustained fracture in his leftforearm, whereas in the representation dated 10.8.2009 given to theDistrict Collector, the petitioner stated as follows: https://hcservices.ecourts.gov.in/hcservices/ "vdJ fzth; ma;adhh; th';f kWf;f nkw;go nghyPrhh;fs; moj;JJd;g[Wj;jp fhak; glhkYk; Vw;fdnt Kwpe;J nghd if nkYk; btspf;fha';fs;Vw;glhky; moj;J fl;lhag; gLj;jp miHj;Jr; brd;W vdJ fzth;ma;adhhplk; fl;lhag; gLj;jp xg;g[jy; thf;FK:yk; th';fp vdJ fzth; kPJrhuha tHf;F jhf;fy; bra;J ifJ bra;J rpiwapy; milj;J cs;shh;@ 16.The fact that the detenu had already sustained fracture inhis left hand is also found place in paragraph 3 of the affidavitfiled in support of the petition in C.M.P.No.3064 of 2009 before theJudicial Magistrate No.IV seeking medical aid to the detenu.17.Therefore it is very clear that the detenu had alreadysustained fracture even before his arrest as admitted by thepetitioner herself, whereas in the affidavit the said fact has beensuppressed and it is alleged as if the respondent police had causedfracture on the detenu's left hand during/after arrest.18.Medical report submitted pursuant to the orders of thiscourt speaks about swelling in left L.Bow and the report reads asfollows:" As per the history given by the patient by 4 knownpersons took him to a place near a hill station atKarikadu and beaten him with sticks on 9.8.2009 at around8 a.m. nd he was taken to Veeranam Police Station at 1.30p.m. Since the patient had a swelling over the left elbow— Mavukattu was applied by an unknown persons in thepolice station at Veeranam.Ice application was also given to the swelling inthe both gluteal region."19.The petitioner gave a complaint to the Tamil Nadu HumanRights Commission on 12.8.2009 in which she stated that detenu's handwas already fractured even before the arrest. The medical report alsoshows that there was a fracture in the left forearm. A conjointreading of the petitioner's representation dated 12.8.2009 and themedical report shows that the fracture is not due to the policeaction/torture as alleged by the petitioner.20.With regard to the allegations of the petitioner that thedetenu was severely attacked by the police officials namely:1) Mr.Raja Ramaveerapandian, Inspector of Police, Attayampatti,2) Ravikumar, Inspector of Police, Veeranam Police Station and3) Vinayagam, Sub-Inspector of Police, Veeranam Police Station. The aforesaid details are only given for the first time in paragraph5 of the writ petition. In the complaint given to the Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Human Rights Commission on 12.8.2009, the petitioner did not give thenames of the police officials against whom the allegations are madein the writ petition. The Medical Board's report reads as follows:"As per history given by the patient by 4 knownpersons took him to a place near a hill station atKarikadu and beaten him with sticks on 9.8.2009 at around8 a.m. nd he was taken to Veeranam Police Station at 1.30p.m."21.The detenu did not mention the names of the alleged knownpersons to the medical board. Apart from that if the police officialsattacked him he would have definitely informed the medical board,which examined him, and it would have been reflected in the report.However, counsel for the petitioner complained that the medicalboard's report did not give correct details. It is to be noted thatthe Medical Board was constituted pursuant to the orders of thiscourt and this court has to believe the medical report and no motivecould be attributed against the Doctors who consisted the medicalboard. 22.It is curious to note the contents of the telegram given on10.8.2009 to the Chief Minister Grievance Cell complaining aboutdetenu's arrest. The following is extracted from the said telegram." on 1.8.2009 when my husband was attacked and injuredby some rowdy elements, he gone to police station to file apolice complaint, but they refused to receive the complaintand insulted my husband as to go to court to get remedy."The aforesaid statement made in the telegram given by the petitioner(detenu's wife) would show that the detenu was attacked and injuredby some rowdy elements on 1.8.2009. Learned Judicial MagistrateNo.IV, Salem in his report dated 27.8.2009 stated that when thedetenu was produced before him on 9.8.2009 at 6 p.m. and the detenudid not make any complaint against the police officials.23.The above facts of the case would reveal the following:1)The detenu was arrested on 9.8.2009 by the respondentpolice as admitted by the petitioner herself in her complaint dated10.8.2009 to the Deputy Superintendent of Police and in the telegramdated 9.8.2009 and he was produced before the learned JudicialMagistrate No.IV, Salem at 6 P.M. on 9.8.2009, as revealed in thereport dated 27.8.2009 filed by the Judicial Magistrate No.IV, Salem.2)The arrest was made for the offence under Section 4(1) (b)4(1)(G) 4(1) (aaa) 4(1)(8) of the Tamil Nadu Prohibition Act and acase was registered in crime No.519 of 2009. https://hcservices.ecourts.gov.in/hcservices/ 3)The allegation of unlawful arrest of the detenue is withoutany substance as he was arrested for the aforesaid offences.4)With regard to the allegation of torture by the namedpolice officials, it is made for the first time in the writ petitionand there is no evidence on the side of the petitioner to prove thesame.24.Mr.Vijayendran, learned counsel for the petitionersubmitted that it is a fact that the detenu was attacked by thepolice officials. Secondly he submitted that even though the detenucomplained to the Medical Board that he was attacked by the policeofficials, the Medical Board did not record the names of the policeofficials. Thirdly he submitted that since the detenu was injured bythe police, he has to be compensated suitably and departmental actionhas to be taken against the erring police personnel attached toVeeranam Police Station.25.In the absence of any materials to substantiate the claimof the petitioner that the police officials illegally arrested andtortured the detenu, it is very difficult for this court to believethe version of the petitioner as this writ petition is to be decidedon the basis of the affidavit and the records produced by theprosecution. 26.Before this court, it is not proved that the names ofpolice officials mentioned in paragraph 5 of the affidavit filed insupport of the writ petition have been reflected any where in thecomplaint given by the petitioner nor in the Medical Board report.Hence this court has to come to the conclusion that the saidallegations are not proved as per the evidence available before thiscourt.27.Regarding the compensation as rightly pointed out by thelearned counsel for the petitioner this court has got jurisdictionand power under Article 226 of the Constitution of India to awardcompensation for violation of fundamental rights quaranteed underArticle 21 of the Constitution of India. No doubt, this court haspower and jurisdiction to award compensation, if violation offundamental rights of the citizen were infringed. In Rudul Shahversus State of Bihar reported in AIR 1983 SC 1086 the Hon'bleSupreme Court awarded compensation in exercise of Writ Jurisdiction.Similarly in Sepestian Hongray v. Union of India reported in AIR 1984SC 571 and Bhim Singh v. State of Jammu & Kasmir reported in 1986 SC494 compensation was awarded. This court awarded compensation for asum of Rs.50,000/- to a lady who was illegally detained in the caseVeera vs. State of Tamil Nadu reported in 1991 Crl.L.J. 2395. https://hcservices.ecourts.gov.in/hcservices/

28.However, what has to be seen whether any fundamental rightsof the detenu was infringed? It has been held in Consumer Educationand Research Centre vs. Union of India reported in AIR 1995 SC 922that public law remedy for the purpose of grant of compensation canbe resorted to only when the fundamental rights of a citizen underArticle 21 of the Constitution is violated and not otherwise. In thiscase no materials are produced by the petitioner in this case toprove illegal detention and torture, it is very difficult to awardcompensation for the alleged injuries sustained by the detenu. Thedetenu was arrested as per law and hence the detention cannot becalled illegal detention. As long as the injuries are not proved tobe caused by the police officials, this court is not inclined toaward compensation.29.In the affidavit filed by the detenu dated 3.10.2009 filedbefore the court on 12.10.2009 action was sought againstMr.Ravikumar, Police personnel attached to the fourth respondent andsought a direction to the third respondent to initiate departmentalaction against the erring police officials attached to the fourthrespondent. The prayer cannot be granted as all the police personalattached to the fourth respondent are not impleaded before this courtand this writ petition is bad for non-jointer of parties.30.Counsel for the petitioner strenuously argued and createdan impression that the detenu was illegally detained and tortured.The impression is not enough for this court to award compensationunless there is proof for illegal detention and torture.31.In these circumstances this court cannot issue direction asprayed for by the petitioner. However the order of this court willnot stand in the way of the petitioner or the detenu to seekappropriate remedy against the concerned persons by approaching thecompetent court jurisdiction for remedy. 32.In the result, the writ petition is dismissed with theabove observation. However, there will be no order as to costs.Consequently the connected M.P.No.1 of 2009 is also dismissed. Sd/Asst.Registrar/true copy/Sub Asst.Registrarvk https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary to Government, State of Tamil Nadu, Home Department, Secretariat, Chennai-600 009.2.The Director General of Police, Mylapore, Chennai-600 004.3.The Superintendent of Police, Salem District.4.The Inspector of Police, Veeranam Police Station, Salem District.5.The Superintendent of Police, Central Prison, Salem.6. The Public Prosecutor, High Court, Madras.+ 1 cc to Mr.P.Vijendran, Advocate, SR No.60316 ORDERIN H.C.P.1334 of 2009AKR (CO)RH (7.12.09)