Krishnammal v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19.1.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.No.6195 of 2000andW.P.M.P.No.9269 of 2000Krishnammal.. Petitioner-vs-1.State of Tamil Nadu rep.bySecretary to Government,Home Department, Fort St.George,Chennai-9.2.The Director General of Police,Chennai-600 004.3.The Superintendent of Police,Thoothukudi. .. RespondentsPRAYER : Petition filed under Article 226 of the Constitution of Indiapraying for the issuance of a writ of mandamus directing therespondents to entrust investigation into the death of thepetitioner's husband Mr.Vincent to a Special Investigation Teamconstituted under the provisions of Section 37 of the Protection ofHuman Rights Act,1993 or to the CB CID to take suitable disciplinaryaction against the police personnel responsible and to pay acompensation of Rs.8,00,000/- to the petitioner and her five children.For petitioner: Mr.R.Chandrasekar for M/s.P.V.S.Giridhar AssociatesFor respondents: Mrs.Sneha, GA.*****O R D E RHeard both sides. 2. The writ petition is filed by the wife of late Vincent who waskilled in police custody on 18.9.1999 by the policemen belonging toThalamuthu Nagar Police Station, Thoothukudi District without anylegal justification. She is seeking for an investigation into thedeath of her husband and also for grant of sufficient compensationfrom the State, as her husband was killed by the police. https://hcservices.ecourts.gov.in/hcservices/

3. The petitioner, who was a resident of West Alangarathattuvillage (Arokiapuram Post, Thoothukudi Taluk) states that she wasmarried to Vincent during the year 1986. She had five minor childrenat the time of filing of the writ petition. She belonged to theScheduled Caste community. Her husband was a ward member of thevillage panchayat and he owned a bullock cart for transportingconstruction material and was earning around Rs.150/- per day.4. On 17.9.1999, when her husband went to attend a local templefestival in his bicycle, it was claimed that he was arrested by thepolicemen belonging to Thalamuthu Nagar Police Station. When thepetitioner came to know about the arrest of her husband on the nextday, i.e. 18.9.1999 around 7.00 a.m. she rushed to the police stationand found that her husband was chained by his leg and was not able tospeak properly. She was told that her husband was tortured by thepolicemen attached to the police station. She also saw that there werebleeding injuries in the feet of her husband. Unable to bear the painher husband was seen crying. The petitioner pleaded before the Sub-Inspector of Police not to torture her husband. In turn she was toldby him that her husband will be beaten to death and she may have tovisit the police station in a white saree on the next day. This was tosuggest that she will become a widow. She was also driven away fromthe place. Around 4.00 p.m. when she found many police vans weremoving in that area, which was rather unusual, she rushed to thepolice station. But however, she was not allowed to enter the policestation. Later when she heard from a local leader that her husbandpassed away she rushed to the Government General Hospital,Thoothukudi. She was told by the doctors that when her husband wasbrought to the hospital he was already found dead. 5. An FIR was registered in Crime No.170 of 1999 on 18.9.1999 andwas sent to the Revenue Divisional Officer, Thoothukudi. The incidentbrought a severe law and order problem in that area and demonstrationswere held demanding action against the policemen responsible for thedeath. The District Collector, Thoothukudi sent a memo dated 19.9.1999directing the RDO, Thoothukudi to conduct an enquiry in terms ofpolice standing order 145 and submit a report. Even before an enquiry,he granted Rs.1,00,000/- by his proceedings dated 20.9.1999 to thepetitioner as compensation.6. The RDO, Thoothukudi conducted an enquiry on 04.10.1999. Herecorded the statement of 23 witnesses. The postmortem was conductedby Dr.A.J.Balakrishna Rao and Dr.S.Vellai Pandian. In the postmortemreport, it was noted that there were 38 injuries on the body of lateVincent. The opinion for the death was due to the injuries andbreathing problems. 7. The RDO in his report dated 09.4.2000, held that the lateVincent was arrested on the night of 17.9.1999 and was taken to thepolice station along with two other persons. He was severely beaten inthe police station. After the life of Vincent entered into a criticalstage, the body was taken from the police station in a police jeep toa private doctor and on his advice, he was taken to the GovernmentHospital. Therefore, he recommended action against all the policemen https://hcservices.ecourts.gov.in/hcservices/ who were in the station on 17th and 18th September 1999 for causing thedeath of Vincent, by his report dated 09.4.2000. The said report wasforwarded by the District Collector to the first respondent State witha covering letter dated 18.9.2000. 8. The Government upon receipt of the said report, agreed withthe report and passed an order in G.O.Ms.No.1284, Public (Law & Order)Department, dated 20.9.2000, instructing the District Collector,Thoothukudi to direct the RDO, Thoothukudi to take immediate criminalprosecution. The second respondent DGP was directed to takedisciplinary action against the responsible policemen. The operativeportion of the Government Order reads as follows:-''2. The enquiry officer after enquiry has given hisfindings that it is clearly proved that the deceasedThiru Vincent and two other persons Tvl.Muthu andMariadass were arrested by the Thalamuthu Nagar Policeon the night of 17.9.1999 and they were brutallytortured in Thalamuthu Nagar Police Station by thepolice personnel and as the condition of Thiru Vincentworsened due to excessive torture, he was sent out ofthe police station through one Thiru Rajendran. When hewas brought to the Government Hospital, Thoothukudi, thedoctor who examined him has declared that he was dead.The enquiry officer has come to the conclusion that thebrutal attack and torture by all the police personnelwho were on duty on 17.9.99 and 18.9.99 in ThalamuthuNagar police station were responsible for causinginjuries to Thiru Vincent which was also one of thereasons for his death and has recommended to initiateaction against all the police personnel who were on dutyon 17.9.99 and 18.9.99 in Thalamuthu Nagar PoliceStation. He has also recommended to initiate criminalproceedings against Tvl.Muthu and Mariadass forsuppressing the facts about the torture meted out toThiru Vincent and to them by the police personnel ofThalamuthu Nagar Police station at the time of enquiryas they are fully aware of the facts. The Collector ofThoothukudi on perusal of the enquiry report and inconsultation with the Superintendent of Police,Thoothukudi has reported that the following policepersonnel were responsible for torturing Thiru Vincentand has recommended for both criminal prosecution anddepartmental action against them.Tvl.1.M.SomasundaramSub Inspector2.JayasekaranSub Inspector3.JosephrajGr.I PC-10594.PichaiahGr.I PC-21285.ChellathuraiGr.I PC-22096.VeerabaguGr.I PC 19207.SivasubramanianGr.I PC 19978.SubbiahGr.I PC-11239.RathinasamyGr.I.PC-127810.BalasubramanianGr.I PC-1154 https://hcservices.ecourts.gov.in/hcservices/

3. The Government after careful examination of theenquiry report and the recommendation of the Collector,Thoothukudi have decided to launch criminal prosecutionand departmental action against the police personnelmentioned in para 2 above for causing injuries to ThiruVincent which was also one of the reasons for his deathon 18.9.1999. The Government have also decided to launchcriminal prosecution against Tvl.Muthu and Mariadoss forhaving suppressed the facts before the PSO 145 enquiryofficer as they were fully aware of the torture metedout to Thiru Vincent and to them by the police personnelof Thalamuthu Nagar Police Station."9. The petitioner made best efforts to get the copies of thedocuments. She also sent a letter dated 29.9.1999 seeking for properaction against the respondents and also for a just compensation. Sinceshe was not successful in her efforts to get justice at the hands ofthe respondents she moved this court by way of the present writpetition.10. Notice of motion was ordered on 06.4.2000. The writ petitionwas subsequently admitted on 11.10.2000. Her prayer for interim reliefwas rejected by this Court. Even though in WMP 9269 of 2000, shesought for the copies of the report of the RDO, the same was not givento her. This Court by an order dated 27.11.1008, directed therespondents to produce the copy of the RDO report as well as the GOdated 20.9.2000. The learned Government Advocate circulated thoserecords. In the counter affidavit filed by the third respondent, nodetails were given as to the nature of action taken against the tenpolicemen who were named in the Government Order.11. The prayer for compensation sought for by the petitioner isfully justified since facts were not in dispute.12. This Court in more or less identical circumstances in thejudgment in Baggiam Doraiswamy -vs- State of Tamil Nadu reported in1994-2-L.W.(Crl) 687 had dealt with an issue regarding compensationordered on the basis of the report of a Revenue Enquiry. In para 8 ofthe judgment, it was observed as follows:-''8. The petitioner has brought to the Court the fact thather son has been killed by the police. The police versionthat the petitioner's son was killed in an encounter was notaccepted by the Deputy Collector who held the inquest and bythe Member, Board of Revenue, who held the enquiry. Thenature of injuries also indicates that the encounter theorydoes not fit in with the assault upon the petitioner's son.The assailants, it is conceded, are policemen. That theyassaulted the petitioner's son in self-defence has beenaccepted by the Session Judge and this Court in revision hasdeclined to interfere with the acquittal of he accusedpersons. Yet, the assailants are identified and it cannot besaid that the earliest finding as to the aggressive acts ofthe police as recorded by the Member, board of Revenue is https://hcservices.ecourts.gov.in/hcservices/ not such a finding which this Court should accept, or thatthis Court must accept the finding in this behalf asrecorded by the Court of Session. On an independentassessment of the facts as aforementioned, which are not incontroversy, I have no hesitation in holding that thepetitioner has made out a positive case of assault upon herson by the police and that policemen alone are responsiblefor this death. She has lost a bread earner and she, in myopinion, is entitled to compensation. The Court shall befailing in its duty, as pointed out by the Supreme Court inthe case of Neelabati Bahera (AIR 1993 SC 1960) supra in notordering any compensation to the petitioner." 13. Even though in that case, the question of compensation wasrestricted to Rs.1 lakh (which was the amount demanded by thepetitioner), the same petitioner preferred a writ appeal inW.A.No.1929 of 2005. The said writ appeal came to be posted before aDivision Bench, to which I am a party (K.Chandru, J.) and the DivisionBench, by a judgment dated 11.8.2006 after confirming the order passedby the learned Judge enhanced the compensation by ordering interest tobe paid from the date of demand of compensation till the date of itspayment.14. It will be out of place to mention that the citizens of thiscountry cannot be left in the lurch without being granted relief incase of their fundamental right being deprived at the instance of thepolice personnel who are supposed to protect the person and propertyof the Indian citizens. If such acts are found uncontrolled by theState, the citizens of this country are not helpless and the long armof Article 226 vests power on this court to order suitablecompensation. 15. In this context, it is necessary to refer to the Full Benchjudgment of this Court in P.P.M.Thangaiah Nadar Firm, rep.by itsPartner T.P.Prakasam, Tuticorin and others -vs- Government of TamilNadu, rep.by its Chief Secretary, Chennai and others reported in(2007) 2 MLJ 685. The Full Bench presided by P.K.Misra, J. afterreferring to various cases of the Supreme Court in paragraph 38, heldas 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 in suchdecisions, the following conclusions can be reached. TheState is not necessarily liable in every case where thereis loss of life or damage to the property during rioting.Where, however, it is established that the officers of theState ordained with duty of maintaining law and order havefailed to protect the life, liberty and property of personand such failure amounts to dereliction of duty, the Statewould be 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 issue https://hcservices.ecourts.gov.in/hcservices/ appropriate direction.16. Subsequently, a Division Bench of this Court in CoimbatoreBar Association and another -vs- State of T.N. and another reported in2008 Writ L.R.662 also dealt with a situation where the member of thelegal profession was assaulted by the police personnel that too in apublic place. The question came up for consideration was whether theState was liable to compensate such injury to the members of the barwho was a victim of State violence. In paragraph No.9 of the saiddecision, the Division Bench presided by A.P.Shah, C.J. had observedas follows:9. In the instant case, it is an undeniable fact thatas a result of the assault, the second petitioner hassustained multiple injuries – bruises, abrasions andcontusions and his evidence implicating respondents5, 6 and 7 is found to be acceptable. Though theincident was triggered off by the second petitionerdashing against the fifth respondent due to his lowvision, there is no jurisdiction for the behaviour ofthe police personnel in having beaten himmercilessly, especially respondents 5, 6 and 7. Thehuman rights of the second petitioner were violatedwith impunity and he is entitled to be suitably andadequately compensated. The power of the Court toaward monetary compensation by way of exemplary costsor otherwise is now established by the decisions ofthe Supreme Court in Rudal Sah -vs- State of Bihar(AIR 1983 SC 1086); Sebestian M.Hongray -vs- Union ofIndia, (AIR 1984 SC 1026); Bhim Singh -vs- State ofJammu & Kashmir (AIR 1986 SC 494); Saheli, A Women'sResources Centre -vs- Commissioner of Police, DelhiPolice Headquarters (AIR 1990 SC 513) and State ofMaharashtra -vs- Ravikant S.Patil (1991) 2 SCC 373).In Smt.Nilabati Behera alias Lalita Behera -vs- Stateof Orissa and others (AIR 1993 SC 1960), the SupremeCourt after examination of the earlier cases, clearlylaid down that the award of compensation in aproceeding under Article 32 of the Constitution bythe Supreme Court or under Article 226 by the HighCourt is a remedy available in public law, based onstrict liability for contravention of fundamentalrights to which the principle of sovereign immunitydoes not apply, even though it may be available as adefence in private law in an action based on tort.The same view was reiterated in Consumer Educationand Research Centre and others -vs- Union of Indiaand others (AIR 1995 SC 922). In a recent judgmentin Chairman, Railway Board & Others -vs-Mrs.Chandrima Das and Others ((2002) 2 SCC 465), theSupreme Court observed where public functionaries areinvolved and the matter relates to violation ofFundamental Rights or the enforcement of publicduties, the remedy would still be available under thePublic Law notwithstanding that a suit could be filed https://hcservices.ecourts.gov.in/hcservices/ for damages under Private Law. In our opinion, thesecond petitioner has made a strong prima facie casefor award of compensation and having regard to theinhuman way in which the second petitioner wasmercilessly beaten, we feel that the ends of justicewould be met, if we award Rs.50,000/- as compensationto the second petitioner. The second petitioner hasincurred an expenditure of more than a sum ofRs.1,00,000/- (Rupees one lakh only) for histreatment and has also suffered mental agony. But onbehalf of the respondents 5 to 7, the learnedGovernment Pleader pleaded for some indulgence.Therefore, we fix the compensation at a sum ofRs.50,000/- taking into account the situation of theparties. It is needless to state that the State wouldbe entitled to recover this amount of compensationfrom respondents 5 to 7, who were found to beinvolved in the assault on the second petitioner."Aggrieved by the quantum of compensation granted by this Court, theaggrieved Advocate had gone to the Supreme Court seeking for highercompensation and the matter is pending.17. In Lucknow Development Authority -vs- N.K.Gupta reported in1994 (1) SCC 243, the Supreme Court in paragraphs 8 and 10, observedas follows:-''8. ... State is liable to compensate for loss or injurysuffered by a citizen due to arbitrary actions of itsemployees. Public authorities who are entrusted withstatutory function cannot act negligently. No functionary inexercise of statutory power can claim immunity, except tothe extent protected by the statute itself. Publicauthorities acting in violation of constitutional orstatutory provision oppressively are accountable for theirbehaviour before authorities created under the statute likethe commission or the Courts entrusted with responsibilityof maintaining the rule of law. The authority empowered tofunction under the statute with exercising power dischargespublic duty. It has to act subserve general welfare andcommon good. In discharging this duty honestly and bonafide, loss may accrue to any person. But where it is foundthat exercise of discretion was mala fide and thecomplainant is entitled to compensation for mental andphysical harassment then the officer cannot more claim to beunder protective cover. In modern society no authority canarrogate to itself the power to act in a manner which isarbitrary. When a citizen seeks to recover compensation froma public authority in respect of injuries suffered by himfor capricious exercise of power then it has a statutoryobligation to award the same if proved".''10. ...The jurisdiction and power of the courts toindemnify a citizen for injury suffered due to abuse ofpower by public authority is founded on the principle thatan award of exemplary damage can serve a useful purpose in https://hcservices.ecourts.gov.in/hcservices/ indicating the strength of law. A public functionary if heacts maliciously or oppressively and the exercise of powerresults in harassment and agony then it is not an exerciseof power but its abuse. No law provides protection againstit. He is responsible for it; must suffer for it;compensation or damages may arise even when the officerdischarges his duty honestly and bona fide. But when itarises due to arbitrary or capricious behaviour then itlooses its individual character and assumes socialsignificance. Award of compensation for harassment by publicauthorities not only compensates the individual, satisfieshim personally but helps in curing social evil."18. In the present case, even the State itself had accepted thatthe deceased Vincent was taken to police custody without authoritykept in custody for over two days violating the mandate of Article 22(1) of the Constitution and directly violating the mandatoryguidelines given by the Supreme Court in D.K.Basu -vs- State of WestBengal reported in AIR 1997 SC 610. In the same judgment, the natureof action 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 to theother governmental agencies also to which a reference hasbeen made earlier." 19. The petitioner lost her only breadwinner by the gruesome actcommitted by the policemen functioning under the control of the thirdrespondent. At the time of filing of the writ petition, she had fiveminor children and she would have suffered to bring them up in life.Under these circumstances, the prayer of the petitioner meritsacceptance. 20. The writ petition will stand allowed and the first respondentState is directed to pay a sum of Rs.8,00,000/- (Rupees eight lakhsonly) to the petitioner within a period of four weeks from the date ofreceipt of a copy of this order and report compliance to this Court.Though the petitioner is also entitled to get interest on thecompensation amount awarded by this Court, as the death of thepetitioner's husband had occurred 10 years before and the writpetition itself had been kept pending in this court for the last eightyears, the same is not ordered in view of the fact that the petitionerhad already been given Rs.1 lakh by the District Collector immediatelyafter the death of her husband. 21. This Court is not able to directly take against all thepolicemen who were found guilty as they have not been made https://hcservices.ecourts.gov.in/hcservices/ individually parties to this writ petition. But, however, the firstrespondent State is directed to proceed against those officers whowere found guilty for violation of all constitutional safeguards givento the citizens after due notice to those persons. If necessary,recover the amounts from the personal salaries of those officers. Thisshall be given after due notice to those officers and by passing aspeaking order. But on that ground, the payment of compensation to thepetitioner cannot be stalled any further. The State shall adhere tothe time schedule prescribed above. Consequently, the connectedmiscellaneous petition is closed. There will be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarjsTo1.The Secretary to Government,Home Department, Fort St.George,Chennai-9.2.The Director General of Police,Chennai-600 004.3.The Superintendent of Police, Thoothukudi. +1cc to M/s.P.V.S.Giridhar Associates Sr 1664KG (CO)km/30.1.W.P.No.6195 of 2000andWPMP.No.9269 of 2000