P.Pugalenthi v. The State of Tamilnadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.7.2009CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE C.T.SELVAMHabeas Corpus Petition No.49 of 2009P.Pugalenthi... PetitionerVs.1.The State of Tamilnadu rep.by the Secretary, Home Department, Secretariat, Chennai-600009.2.The Director General of Prisons, Gandhi Irvin Salai, Egmore, Chennai-600008.3.The Superintendent, Special Prison for Women, Vellore.... Respondents* * *Habeas Corpus Petition filed under Article 226 of theConstitution of India, praying to direct the respondents to producethe body and person of Ms.Saradha, aged 55, R.P.No.7340, now confinedin Special Women Prison, Vellore, to provide her proper medicaltreatment for the injuries suffered by her at the prison, to takedisciplinary action against all those responsible for the ill-treatment meted out to the said Ms.Saradha at the said prison andfurther directing the respondents to pay appropriate compensation tothe said Ms.Saradha.* * *For petitioner : Mr.RadhakrishnanFor respondents : Mr.N.R.Elango, Addl.P.P.* * * https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe petitioner is a practising Advocate in this Court and he hasfiled this Habeas Corpus Petition praying to produce the body andperson of Mrs.Saradha, aged 55, R.P.No.7340, now confined in SpecialWomen Prison, Vellore, to provide her proper medical treatment forthe injuries suffered by her at the prison; to take disciplinaryaction against all those responsible for the ill-treatment meted outto the said Ms.Saradha at the said prison and further directing therespondents to pay appropriate compensation to the said Ms.Saradha.2. In the affidavit filed in support of this petition, thepetitioner has submitted that besides being a practising Advocate, heis also the Director of Prisoners Rights Forum, established to createlaw awareness among the prisoners to help them enforce their humanrights, constitutional rights and legal rights and is also the JointSecretary of Thamizhaga Makkal Urimai Kazhagam (Tamil Nadu Peoples'Rights Forum), a human rights organization. He has submitted in hisaffidavit that on 5.1.2009, he went to the Vellore Women Prison andmet his client S.Nalini, who informed him that one Saradha wasbrought to Special Prison for Women, Vellore as a remand prisonerhaving been remanded by the Judicial Magistrate Court No.4, Velloreon 31.12.2008 and was lodged in the said prison and she was allottedR.P.No.7340; that while she was taken inside her cell by theofficials, she is said to have clandestinely taken with her a sum ofRs.5,000/= without the knowledge of prison officials; that fearingdetection of her act by the prison officials, she had handed over thesaid amount to a prison inmate on 31.12.2008 itself; that on2.1.2009, the said Saradha demanded the said inmate to return themoney, who refused to give back the amount; that on such refusal,Saradha was understandably told the inmate that she would report tothe Jailor against her and started proceeding towards the office ofthe Jailor and when she was so proceeding, three convict warders byname Kasthuri, Muneeswari and Dhanam along with the said inmateassaulted Saradha and made her suffer untold misery; that the assaultwas so shocking that no human being could ever have thought of suchan assault on a helpless woman remand prisoner. 3. The petitioner would further submit that he was told by hisclient Nalini that Saradha was surrounded by all the said four women,and she was undressed totally and dragged nude for quite a some timetill they reached the entrance of her cell and was put in solitaryconfinement and she was never given back her clothes and no officialin the prison bothered about her; that she suffered serious bleedinginjuries all over her body and she was crying for help the wholenight, but in vain. The petitioner would further submit that the https://hcservices.ecourts.gov.in/hcservices/ detenue is yet to get the attention of the prison officials for hermedical treatment and in spite of lapse of a week's time till thetime of filing of this petition, the respondents or the officialsworking under them have not extended their helping hand toMs.Saradha, even to get back her clothes and therefore, he had sent atelegram on 5.1.2009 demanding the respondent to give immediatemedical treatment to her and also to take necessary action againstthe persons responsible for the above incident and it appears thatthe respondents have not cared to look into the telegram anddischarge their duties and the condition of Saradha remains as it hasbeen and would pray for the relief prayed for.4. When the matter was taken up for hearing, a strong objectionhas been raised on the part of the learned Additional PublicProsecutor appearing on behalf of the respondents regarding the verymaintainability of this petition on the ground that the petitionerbeing a practising Advocate and not being a friend or relative of thedetenu, cannot invoke the extraordinary jurisdiction of this Courtunder Article 226 of the Constitution of India, that too in theabsence of any complaint lodged or made by the detenue herself aboutthe alleged attack made on her. In support of his contentions, thelearned Additional Public Prosecutor has relied upon a judgment ofthis Court in S.SENGKODI vs. STATE OF TAMIL NADU AND FOUR OTHERS[2009 (3) CTC 6], wherein when a practising Advocate of this Courthas filed the Habeas Corpus Petition seeking a direction to therespondents therein to produce the body and person of her client,this Court, after analysing and discussing the entire legal aspect onthe issue and analysing various provisions in the Advocates Act, 1961and the Bar Council of India Rules, has held that an Advocate cannotenter into the shoes of his client. 5. No doubt, in the case on hand also, the petitioner is apractising Advocate, but he has not filed this petition for anyrelief in favour of his client, entering into the shoes of hisclient. Instead, he has filed this petition in the capacity of asocial activist being the Director of 'Prisoners Rights Forum' whichhas been formed by him to create law awareness among the prisonersand to help them enforce their human rights, constitutional rightsand legal rights. The said Forum was created by the petitioner undera registered Instrument of Trust on 8.12.2008, a copy of which hasbeen submitted before us. 6. Further more, in S.Sengkodi's case, whereupon much reliancehas been placed on the part of the learned Additional PublicProsecutor, the detenu was a literate person and though he is havingall the avenues to champaign his own cause either by himself orthrough his friends or relatives, he kept silent with no appreciable https://hcservices.ecourts.gov.in/hcservices/ reason offered and his advocate has come forward to file the HabeasCorpus Petition, steeping into the shoes of her client. It is notthe situation with regard to the case on hand. The detenu is anilliterate woman, as could be seen from the affidavit filed by herbefore this Court as she has affixed her thumb impression. Thepetitioner is championing the cause of such prisoners by establishinga forum under the name and style of Prisoners Rights Forum. Nomotives can be attributed to the petitioner in filing this habeascorpus petition. Therefore, the above judgment of this Court inS.Sengkodi's case has no application to the case on hand, since thecase on hand stands entirely on a different footing and requiresconsideration on different parameters. Answering this question ofmaintainability accordingly in favour of the petitioner, we shall nowproceed to discuss the other aspects of the case. 7. From the averments made in the petition and the subsequentsupporting affidavit filed by the detenue, it is seen that the detenuwas attacked by three convict warders Kasthuri, Muniswari and Dhanambrutally and in a barbaric manner by making the detenu nude. 8. Rule 344 of the Tamil Nadu Prison Rules, 1983 (hereinafterreferred to as the 'Rules') permits employment of convict officersand Rule 349 mandates gradation of the convict officers into threegrades viz. (1) convict night-watchman, (2) convict overseers and (3)convict warders. The above said Kasthuri, Muniswari and Dhanam, whoare alleged to have attacked the detenue are the convict wardersappointed by the prison authorities and Rule 354 of the Rulescodified the duties of convict warders as follows:(1)to perform such duties in the matter of guarding and thelike as may, at any time, be assigned to them;(2)to report all infringements of the prison rules and takeall lawful measures to prevent them; and(3)to render all necessary assistance to the officials inauthority over him in the daily routine and in allemergencies and unforeseen situations."9. Except to do such supervisory works as has been classified inRule 354 of the Rules, they have not been entrusted with the dutiesof punishing any other prisoner. Rule 359 confers certain privilegeson such convict warders and the method of appointment of ConvictOfficers has been provided for in Rule 343 as follows:"The Classification Committee in each prison shall selectprisoners to work as prison officers on the basis of their https://hcservices.ecourts.gov.in/hcservices/ previous crime record, special background, institutionalbehaviour, efforts for self improvement and desire forrendering service to prisoners if they are otherwiseeligible. Care shall be taken to ensure that demoralised orundesirable prisoners are not selected."10. The composition of the Classification Committee in eachCentral Prison and in the State Prison for Women, Vellore has beendescribed in Rule 210 of the Rules as follows:(a) Chairman.. Superintendent(b) Members.. (1) Jailor (2) Senior Assistant Surgeon (3) Psychologist (wherever there is one) (4) Social Worker (wherever there is one) (5) Welfare Officer(c) Member Secretary.. Assistant Jailor (Interview).11. Therefore, every care has been provided for under the Rulesas to how a Convict Officer shall be appointed and how unscrupulouspersons shall be kept away from such duties and responsibilities.But, in the case on hand, from the manner in which the incident hasoccurred, we have to take a judicial note of the fact that the mannerand the measures provides for in the appointment of such convictofficers has not been given strict adherence by the jail authorities,particularly by the Classification Committee of the Special Prisonfor Women, Vellore, leading to commotion and the barbaric act ofattack on the detenue, that too making her nude and tying her tuft tothe window and keeping her nude for two days. We are quite disturbedas to what the prison authorities are doing when the alleged incidenthas taken place in the broad day light at around 2.00 p.m. within theprison itself. The prison authorities cannot shirk theirresponsibility of securing peace inside the premises, without anyinterference or disturbance from any quarter. Just for the reasonthat the assailants are the convict warders, appointed by the jailauthorities themselves, they cannot take it for granted that theycould behave in the manner they wish. The jail authorities cannotplead ignorance of the incident, since they would have heard thescreaming of the victim. Just because the victim has failed to reportthe matter to the Jailor or any other superior officer, probablyfearing further attack from the assailants as they are the convictwarders having some nexus or proximity with the officials, the jailauthorities should not have allowed such barbaric incidents to takeplace within the prison premises. https://hcservices.ecourts.gov.in/hcservices/

12. Taking serious note of the matter as there appeared to begross violation of human rights in the third respondent prison, bythe order dated 17.1.2009, we have directed the learned PrincipalDistrict Judge, Vellore, to inspect the Jail along with the Dean,Christian Medical College and enquire into the matter and submit areport. Accordingly, the learned Principal District Judge, Vellorealong with the Principal of the C.M.C.Hospital, Vellore have visitedthe prison on 3.2.2009 and recorded the statements of the victimMrs.Saradha and the witnesses Mrs.Nalini; Mrs.Banu, Mrs.MalarkodiHead Constable-Grade I; Ms.Soundaram, a Junior Grade Constable andMrs.Reena Raj, Warder Grade-II.13. In her statement before the learned Principal DistrictJudge, Vellore, the victim Mrs.Saradha has clearly narrated thetrauma undergone by her at the hands of the three Convict Warders atthe behest of the prisoner Chinnapapa, to whom the detenue is said tohave handed over Rs.5,000/= at the time of her admission into theprison. Her version was materially corroborated by the statement ofMrs.Nalini, at whose behest this legal proceeding has been initiatedby the petitioner. Though one more prisoner by name Banu wasexamined, she did not reveal anything and her statement is of no use.The other official witnesses viz. Mrs.Malarkodi, Head ConstableGrade-I and Mrs.Reena Raj, Grade II Warder, tried to create a picturethat the detenue Saradha is a mentally disordered woman. 14. Even in the counter, the respondents have tried to maintainthe same picture as if the detenue is a mentally retarded person.But, from the very counter it is seen that the detenue Saradha wasexamined by the Doctor at the time of admission into the prison andfound to be normal. It has also been submitted that Saradha nevercomplained about any loss of money. 15. But, it is the specific admission of the detenue herselfthat she has taken into the cell with her a sum of Rs.5,000/= byconcealing and fearing search, she has given it to Chinnapapa, a co-prisoner and when she demanded return of her amount, only a sum ofRs.1,000/= was returned to her and when she insisted for the balanceamount, the said lady prisoner Chinnapapa has denied her liabilityand only then she has replied that she would report the matter to thewarder and so saying when she was about to be moved, the co-prisonersattacked her. Thus, when there is a specific admission on the partof the detenue herself that she has clandestinely carried with her asum of Rs.5,000/= and that she never complained about the incident toany authority, since even before she was proceeding to complain, shewas attacked by the co-prisoners, the above statement of theSuperintendent, Special Prison for women cannot be believed and hasno relevance at all. Moreover, from the evidence available on https://hcservices.ecourts.gov.in/hcservices/ record, a picture is sought to be created on the part of the officialwitnesses examined before the learned Principal District Judge,Vellore as if the detenue was suffering from some mental disorder,even though from the very counter of the Superintendent, SpecialPrison for Women, Vellore, it is seen that the Medical Officer of thePrison had examined the detenue as per the NHRC norms and found hernormal at the time of admission. When such is the position, howcould a person would become a mentally disorder, soon after theincident was brought to the notice of this Court? 16. Further more, from the medical report filed by the MedicalSuperintendent, no need of any psycho medication for the detenue hasbeen suggested and no abnormality, in any form, has been found. Evenat the time of recording the statement of the detenue, the Principal,Christian Medical College, Vellore has certified that she was fullyconscious throughout the time of recording the statement and she wasin fit state of mind. From the report filed by the MedicalSuperintendent, Vellore, it is also seen that the detenue was foundto have a bruise in her left wrist. When the medical evidenceavailable on record suggests nothing abnormal with the mentalcondition of the detenue, the contentions of the respondents, thatthe detenue is a mentally challenged person, cannot be accepted andthe said contention is strongly rejected. 17. On 15.4.2009, the victim Smt.Saradha appeared before us andexplained the entire incident and has also admitted that she hadclandestinely taken a sum of Rs.5,000/= into the prison and owing todispute regarding such sum, some of the inmates had set upon her, herhair was tied to the window, her hands were tied behind her back,water was thrown upon her and she was beaten indiscriminately and shesuffered injuries on her hands and feet. She also complained thatshe finds difficulty in walking and expressed her distress that shehad been stripped off her clothes and left naked for a whole day inthe prison. She further asserted that but for the intervention ofNalini, she would have lost her life. She also informed that she wastaken to one Pakiyam Hospital and Vellore CMC Hospital on the pretextthat she was mentally ill. She further submitted that she had notpreferred any complaint about the incident nor had she authorisedanybody either by vakalat or otherwise to represent her and shebecame aware of the present HCP proceedings before this Court onlyupon she was enquired by the Principal District Judge, Vellore, whoconducted such enquiry as ordered by this Court. She also showed usthe injuries received by her at the hands and feet. We found nothingto doubt the tenor of the victim.18. On a thorough analysis of the entire materials placed onrecord, we could see that the victim was brutally and in a barbaric https://hcservices.ecourts.gov.in/hcservices/ manner attacked by three convict prisoners and the entire incidentwas tried to be diluted by the respondents particularly the thirdrespondent as if no such incident had ever occurred. 19. Had the guidelines prescribed by the Rules in appointingsuch convict warders been scrupulously followed by the ClassificationCommittee of the third respondent prison, unscrupulous persons likethe convict warders in the case on hand who had indulged in thebarbaric act of attack and insult on the victim, would not have foundplace in such appointments. 20. Under Section 23 of the Prisons Act, 'the prisoners who havebeen appointed as officers of prisons shall be deemed to be publicservants within the meaning of the Indian Penal Code.' Therefore,for the deeds and misdeeds committed by such convict officers, theState is vicariously liable. Therefore, considering the manner inwhich the incident had taken place and the insult meted out to herand the trauma undergone by the detenue, we feel it appropriate todirect the respondents to pay a compensation of Rs.50,000/= (RupeesFifty Thousand Only) to the detenue within eight weeks from today. 21. We place on record our patting for the petitioner, forbringing to light such a ghastly incident and fighting for the causeof a poor and illiterate woman prisoner.22. Since we could see gross dereliction of duty of theofficials who are at the helm of affairs regarding the safety andsecurity of the inmates of the prison, leading to the incident inquestion to occur within the jail premises putting at stake thedignity of a woman prisoner besides outraging her modesty, we directthe respondents 1 and 2 to find out the officials at the helm ofaffairs during the time of occurrence in the third respondent Jailand whose negligence and dereliction in duty has resulted in thisghastly incident of violation of human rights of a helpless ladyprisoner in the prison and initiate necessary disciplinaryproceedings against them. The respondents 1 to 3 are also directed toproceed against the above named three convict warders and the saidChinnapapa for committing prison offences contemplated in Section 45of the Prison Act, 1894 and Rule 297 of the Rules and deal with themin accordance with law. https://hcservices.ecourts.gov.in/hcservices/ This Habeas Corpus Petition is allowed in the above terms.RaoSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary to the Govt.of Tamil Nadu, Home Department, Secretariat, Chennai-600009.2.The Director General of Prisons, Gandhi Irvin Salai, Egmore, Chennai-600008.3.The Superintendent, Special Prison for Women, Vellore. 4. The Joint Secretary to Government, (Public Law & order) Fort.ST. George, Chennai.95. The Public Prosecutor, High Court, Madras.+ 1 cc to Mr. M. Radhakrishnan, advocate (CC SR.No.32368)+ 1 cc to Government Pleader (CC SR.32034) Pre-delivery Order in H.C.P.No.49 of 2009GV(CO)EU 27.7.2009.