Smt. Palaniammal v. The State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30.04.2008C O R A MTHE HONOURABLE Mr.JUSTICE P.JYOTHIMANIW.P.No.19702 of 2000 Smt. Palaniammal.. Petitioner -Vs-1. The State of Tamilnadu, through its Secretary, Home Department, Fort St. George, Chennai – 9.

District Collector of Coimbatore, Coimbatore – 18... Respondents Writ Petition filed under Article 226 of the Constitution of Indiafor the issuance of a Writ of Mandamus directing the respondents to paya sum of Rs.5,00,000/- to the petitioner as compensation for the death of the petitioner's husband M.Ganesan, while in police custody. For Petitioner : Mr.V.VenkatasamyFor Respondents : Mr.N.Senthil Kumar Government AdvocateO R D E RThe husband of the petitioner, late M.Ganesan was employed as alorry driver, who purchased a lorry for his own in September, 1996.Normally, the lorry of the petitioner's husband was engaged byM/s.Venkateswara Paper Mills, Madathukulam at Udumalpet for transporting its paper load. The case of the petitioner is that on 13.06.1997, whenher husband returned to the house in the lorry after unloading the paper the lorry met with an accident with a Corporation bus belonging to the Cheran Transport Corporation, near Khaikatti in Jamin Uthukuli Village.

This incident of custodial death was widely published in the newspapers. The second respondent has ordered enquiry under Clause 145of Police Standing Orders and on the same date, there was a direction to pay a sum of Rs.50,000/- to the petitioner for the death of her husbandin police custody. In the report submitted by the Sub-Collector, Pollachi it has been clearly found that the petitioner's husband was tortured while in custody. The petitioner was also informed about the same. Accepting the report, the Government has initiated disciplinary proceedings against the police and also a criminal case was filed.

It is the case of the petitioner that she has three daughters out of the wedlock with her husband M.Ganesan and therefore, she has filed the present writ petition for a direction against the respondents to pay a sum of Rs.5,00,000/- to her as compensation for the death of her husband, while in police custody.

In the counter affidavit filed on behalf of the respondents, the accident which took place on 13.06.1997 has been admitted and it has also been admitted that on the complaint from the driver of CheranTransport Corporation, one Vellingiri, a case was registered against thepetitioner's husband. It is also admitted that during the time of enquiry by the Head Constable one K.Subramaniam, there was exchange of words and blows which led to the intervention of the Sub-Inspector,B.Kalitheerthan at 7.00 PM on 13.06.1997. It is admitted that after holding enquiry, the Sub-Inspector took the petitioner's husband into custody and brought him to the police station at 8.45 PM. Further, itis stated that the petitioner's husband has consumed liquor and https://hcservices.ecourts.gov.in/hcservices/ therefore, he was referred to Government Hospital, Pollachi and drunkenness certificate was obtained.

It is also admitted in the counter affidavit that the dutyDoctor Dr.S.Sakunthala, after examining the petitioner's husband on13.06.1997 at 9.25 PM, certified that the petitioner's husband has consumed liquor, but he was not under its influence and also stated that blood was not taken for any analysis.

It is also admitted that on the next day i.e. on 14.06.1997,when the police officials went to the lock-up and tried to wake up thepetitioner's husband, he was found unconscious and he was rushed to the Government Hospital, Pollachi by the said Head Constable and another policeman Panneerselvan. The petitioner's husband was examination byDr.P.Vijayan, at the Government Hospital, Pollachi and as per his clinical advice, petitioner's husband was shifted to Coimbatore MedicalCollege Hospital, Coimbatore in an Ambulance. In the meantime, he was also produced before the Judicial Magistrate-III, Pollachi at 11.20 AMand was brought to the Coimbatore Medical College Hospital at 12.20 PMand admitted in the Intensive Care Unit (ICU). The Judicial Magistrate-III, who went to the Coimbatore Medical College Hospital at 11.45 AM on15.06.1997 has ordered the remand of Ganesan to judicial custody. Further, the petitioner's husband was undergoing treatment in the ICUupto 20.06.1997 and he died at 3.00 PM without revival of consciousness.

It is specifically admitted in the counter affidavit that the Assistant Collector and Sub-Divisional Magistrate, Pollachi conducted enquiry and in his findings, recommended to launch criminal prosecution against V.Kalitheerthan, Sub-Inspector of Police and K.Subramaniam, HeadConstable under Section 304-A IPC read with Section 34 IPC for rashly torturing petitioner's husband, which has ultimately caused his death.

It is also specifically admitted in the counter affidavit that the Government has accepted the findings of the Assistant Collector, Pollachi and ordered both departmental and criminal action against the concerned police personnel and ultimately the complaint was taken on file by the Court in PRC No.50/99 and the case had ended in acquittal on24.03.2000. Since it was opined that it was a not a fit case for appeal, no appeal was filled.

It is also admitted that since the departmental action has been taken against the erred police personnel involved in the torture, as per the Government Order in G.O.Ms.No.874, Public (Law & Order-B)Department, dated 08.09.1996, a sum of Rs.50,000/- was sanctioned from the Chief Minister's Public Relief Fund and the same was paid to the petitioner on 23.06.1997. Since the criminal court has acquitted the concerned police personnel, the Government is not liable to pay the compensation not more than Rs.50,000/-, which was already paid. https://hcservices.ecourts.gov.in/hcservices/

I have heard Mr.V.Venkataswamy, learned counsel appearing for the petitioner and Mr.N.Senthilkumar, learned Government Advocateappearing for the respondents and perused the records.

A reference to the counter affidavit filed by the respondents as elicited above shows the torture effected on the petitioner's husband by the said police officials viz., Sub-Inspector of Police as well as Police Head Constable is admitted. In such circumstances, the observation stated to have been made by Dr.S.Sakunthala that thepetitioner's husband has consumed liquor but was not under its influence, cannot absolve the conduct of the respondents and it would not prevent the right of the petitioner from getting any benefit to which she may be entitled to otherwise.

It is also admitted that the petitioner's husband was taken to custody on 13.06.1997 and lodged in the lock-up and on 14.06.1997, he was found unconscious and till his death on 20.06.1997, he has not regained his consciousness. The averment made by the petitioner in the affidavit that she has three daughters is not denied by the respondents in the counter affidavit. However, the only reason given is that the criminal case which has been filed against the erred police officials, ended in acquittal and therefore, the petitioner is not entitled for any compensation more than the amount of Rs.50,000/- made under the ChiefMinister's Public Relief Fund on exgratia basis. On the face of it, the stand taken by the second respondent in the counter affidavit in this regard is not sustainable. The mere fact that a criminal court has acquitted the police officials, which may be on the basis of benefit of doubt or the incident has not been proved beyond any reasonable doubt, that does not mean that the custodial violence committed by the police officials on the petitioner's husband ceases to exist, especially under the circumstances when the said fact of custodial violence has been candidly admitted in clear terms in the counter affidavit.

In fact in the order of the District Collector, Coimbatore inR.O.C.No.55540/97/E3 dated 22.06.1997, in which the petitioner was granted exgratia of a sum of Rs.50,000/- from the Tamil Nadu ChiefMinister's Public Relief Fund, it is clearly admitted that the death caused to the petitioner's husband was due to police torture. Therelevant portion is as follows:

In pursuance of orders issued in the G.O. cited, sanctionis hereby accorded for the drawal and payment of Rs.50,000/-(Rupees fifty thousand only) to Tmt. Palaniammal, W/o. LateGanesan, Zamin Uthukuli Village, Pollachi Taluk whose husbandThiru. Ganesan died due to alleged police torture.

It is seen from the analysis report filed by the Department of Forensic Medicine, Coimabtore, dated 21.06.1997, that the deceased person was aged about 40 years and as it is seen from the affidavit https://hcservices.ecourts.gov.in/hcservices/ filed in support of this writ petition that the writ petition was filed in the year 2000 and her age is stated as 37 years and therefore, at the time of the death of the petitioner's husband, she must have been around34 years. In the absence of any denial about the three daughters the petitioner is having, I am of the considered view that at this point of time, after nearly eight years, it will be doing gross injustice to the petitioner, if the petitioner is driven to the Civil Court, especially in the absence of any denial of factual position regarding the torture and death of the petitioner's husband including the age of the petitioners.

As I have stated above, mere acquittal of the police personnel in the criminal case will not absolve the responsibility of the respondents in paying compensation for the atrocities committed and custodial violence caused against the petitioner's husband.

It is well settled that remedy of awarding compensation is available in public law based on the principles of strict liability for contravention of fundamental rights, to which, the principles of sovereign immunity do not apply and in such circumstances, compensation can be granted by this Court under Article 226 of the Constitution of India and by the Hon'ble Supreme Court under Article 32 of the Constitution of India. The Hon'ble Supreme Court in Rudul Sah vs. Stateof Bihar (1983 (4) SCC 141), has held as follows: "... The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justified award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental rights is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226, for contravention of fundamental rights. Certain further observations in Rudul Sah which may tend to minimise the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of the Supreme Court in Rudul Sah and others in that line have to be understood and Kastuilal distinguished therefrom. "

In a recent judgment rendered in Munshi Singh Gautam (dead) and others vs. State of Madhya Pradesh reported in 2005 (9) SCC 631, the Hon'ble Supreme Court has observed that while dealing with the police atrocities and custodial violence and deaths, there cannot be a direct https://hcservices.ecourts.gov.in/hcservices/ evidence in such cases due to complicity of police personnel and therefore, the question of adherence to the establishment of proof beyond every reasonable doubt in such cases, would result in miscarriage of justice and making the justice delivery system suspect and vulnerable and if such unrealistic approach is taken, it would only encourage the torture in police custody, since it would reinforce the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock-up because there would hardly be any evidence available to the prosecution to directly implicate them in the torture. The SupremeCourt in the above said judgment, quoted the following words of AbrahamLincoln, viz., "If you once forfeit the confidence of our fellow citizens you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time"The Hon'ble Supreme Court has also expressed great concern about the atrocities perpetuated by the protectors of law, which is as follows: " .... The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kinds of crime in a civilised society governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. .... "and ultimately held," .... The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of the judiciary itself, which if it happens, will bea sad day, for anyone to reckon with. "

In D.K.Basu Vs. State of West Bengal ((1997) 1 SCC 416) the Hon'ble Supreme Court has evolved a right to compensation in cases of established unconstitutional deprivation of personal liberty or life holding that Ubi jus ibi remedium, does not mean that declaring an act as invalid but it means providing a meaningful remedy. Even though it relates to victims of unlawful arrest or detention, the Hon'ble SupremeCourt has evolved the theory of grant of compensation in para 40 and 41which is as follows: “40. Ubi jus, ibi remedium.—There is no wrong without aremedy. The law wills that in every case where a man is wronged https://hcservices.ecourts.gov.in/hcservices/ and endamaged he must have a remedy. A mere declaration of invalidity of an action or finding of custodial violence or death in lock-up, does not by itself provide any meaningful remedy to a person whose fundamental right to life has been infringed. Much more needs to be done.41......42. Article 9(5) of the International Covenant on Civiland Political Rights, 1966 (ICCPR) provides that “anyone who has been the victim of unlawful arrest or detention shall have enforceable right to compensation”. Of course, the Governmentof India at the time of its ratification (of ICCPR) in 1979 andmade a specific reservation to the effect that the Indian legal system does not recognise a right to compensation for victims of unlawful arrest or detention and thus did not become a party to the Covenant. That reservation, however, has now lost its relevance in view of the law laid down by this Court in anumber of cases awarding compensation for the infringement of the fundamental right to life of a citizen. (See with advantageRudul Sah v. State of Bihar; Sebastian M. Hongray v. Union of India; Bhim Singh v. State of J&K; Saheli, A Women’s ResourcesCentre v. Commr. of Police.) There is indeed no express provision in the Constitution of India for grant of compensation for violation of a fundamental right to life, nonetheless, this Court has judicially evolved a right to compensation in cases of established unconstitutional deprivation of personal liberty or life. (See Nilabati Beherav. State).”

The availability of such remedy for payment of compensation which can be enforced under Article 226 of the Constitution of India in respect of defiance of public law, was also the view taken by the Hon'ble Supreme Court in Nilabati Behera Vs. State of Orissa ((1993) 3SCC 746).

While dealing with the claim of compensation in death cases during encounter with police in Malkiat Singh Vs. State of U.P. ((1998)9 SCC 351), under Article 32 of the Constitution of India, the Hon'bleSupreme Court has granted compensation of Rs.5,00,000/-, the relevant portion being;

4. In a similar case, i.e. in Writ Petition No.632 of1992 this Court awarded Rs.5 lakhs as compensation. We think that the ends of justice would be met if the respondent-Stateis directed to pay Rs.5 lakhs to the petitioner by way of compensation for the death of Talvinder Singh. The State shall pay this amount within 8 weeks.....

The concept applicable as pointed out by the Hon'ble Apex Courtis Ubi jus ibi remedium, wherein for the atrocities committed and https://hcservices.ecourts.gov.in/hcservices/ custodial violence caused to the petitioner's husband as explained in the present case, certainly the wife of such person is entitled to compensation not only under the principles of Strict Liability but also on absolute liability as enshrined by the Hon'ble Supreme Court inM.C.Metha's case (AIR 1987 SC 1086).