S.Lakshmanan v. State Human Rights Commission, Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17.2.2009C O R A M :THE HONOURABLE MR.JUSTICE P.K.MISRAandTHE HONOURABLE MR. JUSTICE K. CHANDRUW.P.Nos.120 to 122 of 2009andM.P.Nos.1 and 2 of 2009S.Lakshmanan .. Petitioner in W.P. No.120 of 2009T.Pandiyan .. Petitioner in W.P. No.121 of 2009D.Sathyamoorthy .. Petitioner in W.P. No.122 of 2009-vs-1.The Assistant Registrar (Law),State Human Rights Commission,Tamil Nadu.2.C.Thilaivannan .. Respondents in all the W.Ps.PRAYER : Petitions filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorari calling forthe entire records in respect of the order passed by the Human RightsCommission in SHRC.No.3799/2006 dated 16.5.2008 and set aside thesame.For petitioners: Mr.D.RajagopalFor respondents : Mr.Raja Kalifulla, GP *****O R D E RK. CHANDRU, J. The three petitioners have challenged the common order passed by https://hcservices.ecourts.gov.in/hcservices/ the State Human Rights Commission, Tamil Nadu (represented by thefirst respondent) made in SHRC Case No.3799 of 2006 dated 16.5.2008.By the aforesaid order, the Commission held that since thepetitioners along with two others were responsible for violation ofhuman rights of the second respondent, they are bound to pay acompensation of Rs.1000/- each (totalling a sum of Rs.5000/-). Afurther direction was given to the State of Tamil Nadu to pay thesaid amount to the second respondent and further directed to recoverthe said sums out of the salaries of the three petitioners along withtwo other policemen who were named in the said complaint.2. It is seen from the records that the petitioner inW.P.No.120 of 2009 (S.Lakshmanan) was at the relevant time theInspector of Police, Ambur Town Police Station, Vellore District. Thepetitioner in W.P.No.121 of 2009 (T.Pandian) was an Head Constable inAmbur Town Police Station and the petitioner in W.P.No.122 of 2009(Sathiamurthy) was a special branch Head Constable. It was the caseof the second respondent that the petitioners along with oneVenkatesan, Sub-Inspector of Police, Ambur Village Police Station andDharmalingam, Sub-Inspector of Police, Ambur Town Police Stationentered and forcibly took him out of his house to the policestation. When the father and mother of the second respondentintervened, the petitioner in W.P.No.120 of 2009 (Lakshmanan) drovethem away. The second respondent was taken to Ambur Rural PoliceStation in a jeep and he was questioned whether he was responsiblefor the theft of a motor bike (Pulsor). 3. When the second respondent informed that he had purchased thevehicle with Registration No.TN-22 AD 9079 from a person at Tambaram,he was abused by the policemen and was compelled for admitting thathe had committed a chain snatching. When he refused to succumb totheir pressure, they forcibly took his fingerprints and also made tokneel in the police station between 3.30 a.m. to 9.30 p.m. (on14.2.2006). Only thereafter he was driven out of the station. Hisvehicle was returned on the next day after his repeated requests. Itwas also the case of the second respondent that he belonged to dalitcommunity and he was an educated person. The incident had causedmental agony apart from bringing disrepute in the eyes of the localcommunity. The second respondent made a complaint to theSuperintendent of Police, Vellore. The Superintendent of Police,Vellore in his report stated that he believed the version of thepolice officials who caused the deprivation of human right of thesecond respondent. It was thereafter he lodged a complaint with theState Human Rights Commission and his complaint was taken on file asSHRC Case No.37 of 1999 and notices were ordered to the petitionersas well as two other policemen.4. It was the stand of the petitioners along with two otherpolicemen that a case was registered in Ambur Town Police Station in https://hcservices.ecourts.gov.in/hcservices/ Crime Nos.335, 313 and 316 of 2006 respectively under section 379,IPC and during the enquiry it was found that theft of a chain wascommitted by the complainant. The persons who snatched the chain hadcome in a motor bike of Pulsor Model and the description of theaccused given by the defacto complainant resembled that of thesecond respondent. Therefore the second respondent was called to theAmbur Police Station on 14.2.2006. After the proper enquiry he wassent out and no complaint was made by the said person. The Commissionfound that since the alleged theft had taken place within thejurisdiction of the Ambur Town Police Station, there was no reasonfor the second respondent to be taken to the Ambur Police Stationwhich had no jurisdiction to enquire into the complaint. Theirfurther contention that the second respondent was not taken to AmburTaluk Police Station and since two of the accused police officersalso belonged to the dalit community there was no chance of thesecond respondent being accused with caste names and his complaint tothe Superintendent of Police was not immediate and it was lodgedafter a month. It was also pleaded that they were not in the place ofoccurrence at the time of the incident.5. The State Human Rights Commission rejected the stand taken bythe petitioners and held that their stand was at variance with thereport sent by the Superintendent of Police, Vellore. The Commissionalso found that the police officers visited the house of the secondrespondent during midnight and took the second respondent in a jeep.The Commission also found that the story set up by the petitioner wasa calculated attempt to escape from the arm of law and no credencecan be attached to their stand. The petitioners' attempt to set up aplea of alibi was not proved. 6. In paragraph 17 the Commission recorded the followingfindings:-Para 17. The complainant has stated that he was made tostand between3.00 a.m. to 9.00 pm. On 14.6.2006 inthe Ambur Taluk P.S. Pichandi, PW3, an independentwitness who hails from the village of thecomplainant, P.W4 Rajamanikkam, neighbour and PW.5Sivalingam, brother-in-law who is working as HeadConstable in RPF Southern Railway who came to thepolice station on hearing the telephonic messagefrom P.W.2, father of the complainant have clearlystated that the complainant was kept inside theAmbur Talulk PS. All of them have no axe to grindagainst the respondents. P.W.5 has stated that hegot permission from the Dy.S.P. And met thecomplainant in the police station. Their evidencecannot be brushed aside easily. Neither thecomplainant nor the witnesses summoned on his side https://hcservices.ecourts.gov.in/hcservices/ have stated that the complainant was tortured bythe respondents. The complainant alone has statedthat the respondents made him to stand and alsokneel inside the police station. The otherwitnesses have not stated so. However, in thecircumstances of the case, the allegation of thecomplainant that the respondents had committedhuman rights violation by taking him in theircustody by entering insider his house and alsotaking him to a different police station has beenproved. Hence respondents 1 to 5 are liable forviolation of human rights against the complainantThillaivanan".It is in view of these findings, the Commission thought it fit toorder compensation. 7. On the basis of the finding of fact recorded by theCommission, a question will arise as to whether the action of thepetitioners was contrary to law. The petitioners had not claimed thatthey have arrested the second respondent in connection with anyoffence but they questioned him in connection with the complaint oftheft. In such circumstances, pulling out a person from the houseduring midnight and forcibly taking him to another police stationlimit for the purpose of questioning is a clear transgression ofcivilized limits and is in gross violation of Articles 21 and 22 ofthe Constitution of India.8. The Supreme Court in its judgment in D.K.Basu -vs- State ofWest Bengal reported in 1997 (1) SCC 416 had set out 11 guidelines(presently called as 11 commandments) to be followed by stationhouse officers. In case of violation of such guidelines, the SupremeCourt has also directed that action should be taken and the erringpersons should be punished. The following passage found inparagraphs 37 and 38 may be extracted below:-''Para 37. The requirements, referred to above flow fromArticles 21 and 22(1) of the Constitution andneed to be strictly followed. These would applywith equal force to the other governmentalagencies also to which a reference has been madeearlier.Para 38. These requirements are in addition to theconstitutional and statutory safeguards and donot detract from various other directions givenby the courts from time to time in connectionwith the safeguarding of the rights and dignityof the arrestee." . https://hcservices.ecourts.gov.in/hcservices/

9. The Supreme Court in its decision in National Human RightsCommission -vs- State of Arunachal pradesh and another reported inAIR 1996 SC 1234 : (1996) 1 SCC 742 emphasised the duty of the Statein protecting the life and liberty of human being. The followingpassage found in paragraph 20 is usefully quoted:Para 20. ''We are a country governed by the Rule of Law. OurConstitution confers certain rights on every humanbeing and certain other rights on citizens.Every person is entitled to equality before thelaw and equal protection of the laws. So also, noperson can be deprived of his life or personalliberty according to procedure established by law.Thus the State is bound to protect the life andliberty of every human being be he a citizen orotherwise."10. As to the competency of granting compensation for any humanright violation by courts, the Supreme Court had in more than oneoccasion dealt with the said issue. The Supreme Court in its decisionin Nilabati Behera -vs- State of Orissa reported in AIR 1996 SC 1234: (1993) 2 SCC 746 held that the award of compensation in aproceeding under Article 32 by the Supreme Court or under Article 226by the High Court is a remedy available in public law based on strictliability for contravention of fundamental rights.It is held thatthe defence of sovereign immunity does not apply in such a case eventhough it may be available as a defence in private law in an actionbased on tort. It is held further that the award of damages by theSupreme Court or the High Court in a writ proceeding is distinct fromand in addition to the remedy in private law for damages. It is onemode of enforcing the fundamental rights by this Court or High Court.Reliance is placed upon Article 9 (5) of the International Covenanton Civil and Political Rights, 1966 which says, any one who has beenthe victim of unlawful arrest or detention shall have an enforceableright to compensation.11. Further, the Supreme Court in its decision in People's Unionfor Civil Liberties -vs- Union of India and another reported in AIR1997 SC 1203 : (1997) 3 SCC 433 held as follows:-''It is not clear whether our Parliament has approved theaction of the Government of India ratifying the said 1996Covenant. Indeed, it appears that at the time ofratification of the said Covenant in 1979, the Governmentof India had made a specific reservation to the effectthat the Indian Legal System does not recognise a right tocompensation for victims of unlawful arrest or detention.This reservation has, of course, been held to be a littlerelevance now in view of the decision in Nilabati Behera https://hcservices.ecourts.gov.in/hcservices/ and in D.K.Basu." 12. A Division Bench of this Court in T.Loganathan, Inspector ofPolice -vs- State Human Rights Commission reported in 2007 (7) MLJ1067 had dealt with a similar question and upheld the order of theSHRC.13. In the light of the above, the grievance projected by thewrit petitioners has no substance and the writ petitions are liableto be dismissed and accordingly they are dismissed. However, therewill be no order as to costs.14. As the writ petitions are dismissed, there is no impedimentfor the State Government in implementing the order of the SHRC. Sincethe writ petitioners are under the services of the State, we directthe Government to implement the orders of the SHRC within a periodof eight weeks from the date of receipt of a copy of this order.Consequently, connected miscellaneous petitions will also standdismissed. Sd/Asst.Registrar/true copy/Sub Asst.Registrar jsToThe Assistant Registrar (LawState Human Rights Commission,Tamil Nadu at Chennai.+2ccs to Govt. Pleader Sr 6416 & 6607VSV (CO)km/4.3. W.P.Nos.120 to 122 of 2009 andM.P.Nos.1 and 2 of 2009