Ganesan v. The Home Secretary Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.2.2008CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.179 of 2008Ganesan.. PetitionerVs.1. The Home Secretary Government of Tamil Nadu Fort St. George, Chennai-600 009.2. Inspector General of Prisons 1 and 2nd Floor Thazhamauthu Natarajar Maaligai Egmore, Chennai 600 008.3. Superintendent of Prison Central Prison (Men) Vellore.4. Superintendent of Police Vellore District, Vellore.5. Inspector of Police Bagayam Police Station Vellore District.6. Vajiravelu7. Tamilselvan8. Mahendra Varman9. Balamurugan10.Murthy.. RespondentsPetition filed under Article 226 of the Constitution ofIndia for issue of Writ of Habeas Corpus as stated thereindirecting the 4th and 5th respondents herein to produce the bodyof th detenu Mrs. Nadhiya aged about 25 years of wife of Ganesanbefore this Court and set her at liberty. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner: Mr.R.Sankarasubbu For Mr.P.Ravi Kumarand Mr.JoelFor Respondents: Mr.N.R.Elango Addl. Public Prosecutor O R D E R(Made by P.D.DINAKARAN,J.)The petitioner is a convict for the offence punishable underSections 366 and 376 IPC and undergoing imprisonment in theCentral Jail, Vellore. It is alleged that when his wife Nadhiya,aged 25 years, the detenue herein, used to visit the prison to seehim, respondents 7 to 10 befriended her. His further allegationwas that the eighth respondent after the detenue's visit to thejail on 15.11.2007, took her on a bike to his residence,respondents 7, 9 and 10 went to the residence of eighthrespondent, gave a cool drink to her and thereafter, she wasforcibly subjected to gang rape by respondents 7 to 10 and thesame was informed to the petitioner, when she visited him on3.1.2008.2. According to the petitioner, he lodged a complaint on15.1.2008 to the second respondent. Since the detenue did notvisit him thereafter, suspecting danger to her life and person, hemade a further complaint on 24.1.2008 and following the same, thepetitioner filed the above petition seeking production of thedetenue before this Court and set her at liberty.3. Considering the seriousness of the allegation, when thematter came up before this Court for admission on 15.2.2008, thisCourt observed as follows:"As the allegations, prima facie, appear to be veryserious and painful; and if the same aresubstantiated, it would not only cause a dot but alsothrow a dirt on the Uniform Forces. Therefore, we areof the considered opinion that a duty is cast uponthe executives to remove the stigma caused by theimpugned complaint. That apart, in order to remove the cloud as to thebonafide of the complaint, we direct the learnedPrincipal District Judge, Vellore, to visit the jailpersonally, record a statement from the petitioner https://hcservices.ecourts.gov.in/hcservices/ relating to the impugned complaint and forward thesame to the Registry for our consideration."4. When the matter came up for further orders on 18.2.2008,it was reported that the first respondent, in order to show theirbona fide, transferred respondents 7 to 10 to different CentralJails and this Court passed the following interim order:"From the above materials, it is obvious that theAdditional Director General of Police (Prisons) hadnot given serious concern over the entire issue.Therefore, we are constrained to pass the followingdirections:-(i) the Home Secretary, the first respondentherein, is directed to give appropriatedirections to the Director General of Police,to entrust the entire investigation of the caseto a competent police officer not below therank of Superintendent of Police for moreeffective investigation, who shall file areport to that effect within a period of oneweek; and(ii) since the Inspector of Police, VelloreTaluk Police Station, has not taken note of theseriousness of the allegation, as even now hehas registered the case only under 'WomenMissing', necessary directions shall be issuedby the Home Secretary to the Director Generalof Police in this regard."5. Pursuant to the orders of this Court referred to above,respondents 1 to 4 took untiring efforts to search the detenue,basically to erase the apprehension as to the danger to the lifeand person of the detenue and of course, to remove the stigma caston the uniformed force by the impugned allegation, and havesuccessfully secured the detenue and produced her before thisCourt on 22.2.2008. However, they sought further time to file adetailed report today.6. Today, they filed a detailed report dated 25.2.2008 afterexamining 34 witnesses, which includes a medical witness, therelevant portion of the said report dated 25.2.2008 is extractedhereunder:" 7. I respectfully submit that the following are thefacts that emerge from the deposition of thewitnesses, perusal of the documents and from myenquiry. https://hcservices.ecourts.gov.in/hcservices/ (i)Nathiya left the petitioner's house on her ownaccord, since there was no conducive atmosphere forher stay in that house.(ii)She totally rejected the averments made by thepetitioner in his petition and she declaredhereself that she is a virgin. She is mentallystrong and very clear in her averments. She neverhad any sexual intercourse with Ganesan or anybodyelse. She hardly lived with him for few daysbefore he was put in jail (on 04.09.2007).(iii)Her assertive declaration of her virginity wascorroborated by a team of Doctors namely Dr.Shanthiand Dr.Yashmin of Govt. Vellore Medical College andHospital. The team of Doctors clearly andcategorically asserted that the rims of hymen areintact and her vagina admits only one fingertightly. The team of Doctors opined that there isno evidence of forceful sexual intercourse orexternal injuries as per clinical findings.(iv)On a disputed dated (13.11.2007), the respondents7 to 9 were on duty inside the Central Prison asper the "in and out record" maintained by the Jailauthorities. Respondent 10 was also on duty but hewas engaged in attending to electrical works.(v)The neighbours in and around the alleged place ofoccurrence stated that the alleged occurrence didnot take place.(vi)In the Central Prison, particularly the areabetween the main entrance and the visitors hall, istotally within the public view and on any visitors'day, there may be a crowd of more than 100visitors, remand prisoners and escort personnel.There is no scope for sexual torture in the aboveplace.(vii)There are many contradictions between thepetitioner's affidavit and his statement withregard to the place of alleged occurrence and themanner of the alleged occurrence.(viii)My discreet enquiry reveals that the petitioneris a torture-oriented sexual maniac and has spoiledmany women in and around his village. The cruelbehaviour was exposed through the statement of hisfirst wife Saritha and even the petitioner has notspared the handicapped sister of the first wife tosatiate his lust.(ix)The petitioner is a convict prisoner, convictedby the FTC Court, Vellore on 04.09.2007 for theoffence of abduction and rape u/s.366 and 376 IPC https://hcservices.ecourts.gov.in/hcservices/ committed by him against one Vijayakumari and thisshows his character and mindset."7. Of course, we are conscious of our jurisdiction conferredon us under Article 226 of the Constitution of India, in a habeascorpus petition. The alleged sordid tale, of course, has come toan end with the production of the detenue. In the circumstances,suffice it to record the statement of the detenue that she, beinga major, is desirous of going with her mother Radha and close theabove petition. But, the backdrop of the case requires some thingmore to be referred and directed for further action. 8. One cannot ignore as to why this Court took a very seriousnote of the allegation made in the above petition. Rape is a mosthatred crime. It is a crime against basick human rights andviolates the most cherished fundamental right, namely the 'rightto life' guaranteed under Article 21 of the Constitution of India.Rape is, therefore, not only a crime against the victim, but alsoagainst the entire society. It not only destroys the entirepsychology of the victim, but also pushes her to deep emotionalcrisis, which in turn stirs the society. The Court has toconsider the plight of the victim in a case involving a rape andthe social stigma that may follow the victim to the grave, which,in most cases, practically ruins all prospects of a normal lifefor the victim.9. What is complained in the instant case is a gang rapeagainst the detenue, who is allegedly the wife of a convict forthe offence of rape itself, by the persons who are supposed toguard such an individual, whose husband is in confinement.10. That apart, the 'right to life' means something more thansurvival or animal existence. 'Right to life' includes the rightto live with human dignity. 'Human dignity' is the essence andsoul of human rights. Any abrasion, laceration or contusion on'human dignity' shall be an extensive and massive infarction to'right to life'. 11. But, fortunately, the allegation was found to be untrueand baseless, not only from the reports submitted by the secondrespondent; but also as per the statements recorded from thedetenue herself. 12. That is why, we like to be more stringent in directingrespondents 1 to 6 to register a case for appropriate offenceagainst all the persons concerned for having, not only made falseallegations against respondents 7 to 10, but also for havingattributed allegation of rape against the detenue falsely, when https://hcservices.ecourts.gov.in/hcservices/ there is no iota of truth in the same, as per the materialscollected pursuant to the orders of this Court, and having causeddamages on the human dignity of the detenue; and to proceedagainst all the persons concerned, whomsoever, independently, inaccordance with law.13. At this juncture, as Mr.Sankara Subbu and learned counselon record have come forward to pay a token sum of Rs.5,000/- tothe detenue for the embarrassment caused to the detenue by filingthe above petition, we record the same and permit them to make thepayment directly to the detenue; and the same is without prejudiceto her right to stake any further claim for the damages caused toher human dignity. 14. That apart, we also record our appreciations that thefirst respondent has transferred respondents 7 to 10 in order toshow their bona fide. As the stigma cast on respondents 7 to 10has been wiped away, based on the report filed by the fourthrespondent and the statement of the detenue herself, the secondrespondent is at liberty to restore them to the original positionand to take appropriate decision to transfer the petitioner tosome other Central Jail, if it is deem fit and necessary.This habeas corpus petition is closed with the aboveobservations and directions.25.02.2008 This petition having been posted on 27.2.2008 under thecaption "For being mentioned" subsequent to the order of thisCourt dated 25.2.2008 and made herein and in the presence of theaforesaid Advocates the Court made the following order:-On being mentioned the matter was taken up today (27.2.2008)Mr. Paul Kanagaraj, President of Madras High Court AdvocatesAssociation submits that paragraph 13 of the order dated 25.2.2008would cause stigma on the legal fraternity. But, we do not thinkso. Of course, we also make it clear that what was recorded inparagraph 13 of the order dated 25.2.2008 would not be construedanything against the legal fraternity, much less against Mr.Sankara Subbu or the learned counsel on record, as we neverrendered any finding against any of them nor intended that theyshould pay the token sum of Rs.5,000/- to the detenu. However, https://hcservices.ecourts.gov.in/hcservices/ the learned counsel on record, are at liberty to collect the saidamount from the petitioner and pay the same to the detenu, if theydesire so.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1. The Home Secretary Government of Tamil Nadu Fort St. George, Chennai-600 009.2. The Inspector General of Prisons 1 and 2nd Floor Thazhamauthu Natarajar Maaligai Egmore, Chennai 600 008.3. Superintendent of Prison Central Prison (Men) Vellore.4. The Superintendent of PoliceSpecial Prison for Women, Vellore.5.The Superintendent of Police Vellore Vellore District.6. The Inspector of Police Bagayam Police Station Vellore District.7. The Additional Director of Police (Prisons) Chennai.8. The Public Prosecutor,High Court, Madras.1 cc to Mr.S. Joel, Advocate, SR. 10164H.C.P.No.179 of 200825.02.2008/ 27.2.2008NG (CO)kk 29/2