High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.12.2007THE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMARW.A.No.1328 of 20011.The State of Tamil Nadu rep. by its Chief Secretary, Fort St. George, Chennai-9.2.The State of Tamil Nadu, rep. by its Secretary, Public (Law and Order) Department, Fort St. George, Chennai -9.3.The Superintendent, Central Prison, Madurai.4.The Revenue Divisional Officer, Madurai.... AppellantsVs.Pulliammal... RespondentWrit appeal filed under Clause 15 Letters Patent against the orderdated 08.12.2000 passed in W.P.No.11231 of 1997.Presented under Art.226 of constitution of India, praying to issue a writ of Mandamus,directing the 2nd respondent to pay Rs.3,00,000/- to the petitioner ascompensation for the custodial death of the petitioner's husband.For Appellants : Mr.A.Arumugam Additional Government PleaderFor Respondent:Mr.R.Malaichamy******* https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT(P.R.SHIVAKUMAR,J.)This writ appeal has been filed against the order of thelearned Single Judge dated 08.12.2000 passed in W.P.No.11231 of 1997directing payment of a sum of Rs.2,00,000/- as compensation to therespondent herein/writ petitioner for the death of her husband whilehe was in custody of the Jail Authorities.2. The respondent herein had filed the above said writpetition W.P.No.11231 of 1997 seeking a direction against theappellants herein to pay a sum of Rs.3,00,000/- as compensation forher husband's death on 02.11.1996 while he was in the custody of theJail Authorities after having been remanded for a prohibition offence.According to the writ petitioner, her husband was severely beaten upby the police after arresting him for an alleged prohibition offenceon 09.10.1996 and the injuries caused by the police later on proved tobe fatal.3. The writ petition was resisted by the appellants hereincontending that the death was due to natural cause and that there wasno custodial violence and hence, the respondent/writ petitioner wasnot entitled to any relief claimed in the writ petition. 4. After hearing both sides, the learned Single Judgeaccepted the case of the respondent herein/writ petitioner and issueda writ of mandamus directing the respondents therein to pay a sum ofRs.2,00,000/- as compensation to the respondent herein/writpetitioner. The correctness of the said order is put in issue beforeus in this writ appeal.5. We have heard the submissions made by Mr.A.Arumugam,learned Additional Government Pleader, appearing for the appellantsand also by Mr.R.Malaichamy, learned counsel appearing for therespondent.6. The facts leading to the filing of the writ appeal can bebriefly stated thus:The Sub-Inspector of Police, Periyakulam Police Stationregistered a case against Pancharaju, the husband of the respondentherein/writ petitioner on 09.10.1996 in Crime No.547 of 1996 on thefile of the Periyakulam Police Station for alleged offences punishableunder Section 4(1)(a) of Tamil Nadu Prohibition Act and Section 328 ofthe Indian Penal Code. It was alleged in the First Information Reportthat the deceased Pancharaju was found possessing 10 litres of I.D.arrack kept in a mud pot at about 09.00 a.m. on the said date and thepolice also suspected the presence of atropine in the said contrabandseized from him. On the same day, he was arrested and produced before https://hcservices.ecourts.gov.in/hcservices/ the learned Judicial Magistrate, Periyakulam who passed an order ofremand remanding him to to judicial custody for 15 days. Pursuant tothe said remand order, he was sent to the Central Jail, Madurai.While so, a letter dated 25.10.1996 addressed to the respondentherein/writ petitioner and another letter dated 28.10.1996 addressedto the brother's son of deceased Pancharaju came to be received by theabove said addressees. Both the letters, purportedly written byPancharaju, contained: (1) information as if Pancharaju was keepinggood health; and (2) a request to the addressees to take necessarysteps to get him released on bail. Meanwhile all on a sudden therespondent herein/writ petitioner received a telegram at about 12.20p.m. on 02.11.1996 from the prison authorities containing a messagethat her husband was being shifted to Government Rajaji GeneralHospital, Madurai as he was not feeling well and that she could havean interview with him in the hospital if she would come there at herown cost. However, to her shock and dismay, she received yet anothertelegram on the very same day at 07.00 p.m. containing a message thather husband had died and that she could receive the dead body afterautopsy. The respondent herein/writ petitioner later on came to knowfrom the Casualty Mortuary Card that her husband was brought dead tothe Government Rajaji General Hospital, Madurai at 08.35 A.M. on02.11.1996 by the third appellant/third respondent. As the death ofPancharaju occurred, while he was in custody, based on the complaintof the Superintendent of Central Prison, Madurai, a case wasregistered on the file of J-2 Police Station, Madurai in Crime No.870of 1996 on 02.11.1996 at 01.15 p.m. The Revenue Divisional Officer whoconducted an enquiry as directed by the District Collector, submitteda report as if the death was due to pulmonary tuberculosis, a naturalcause.7. Not satisfied with the Revenue Divisional Officer'sreport, the respondent herein/writ petitioner filed the above saidwrit petition praying for the issue of a writ of mandamus directingpayment of compensation. According to the respondent herein/writpetitioner, her husband Pancharaju was tortured inhumanly while he wasin the custody of police and the same led to his unfortunate death.Since all her efforts to get proper compensation form the authoritiesproved futile, she was constrained to approach this Court by invokingits writ jurisdiction, praying for the issue of a writ of mandamusdirecting the appellants 1 and 2/respondents 1 and 2 to pay a sum ofRs.3,00,000/- to her as compensation.8. The first appellant herein/first respondent filed acounter-affidavit on behalf of the appellants/respondents contendingthat Pancharaju on being remanded to judicial custody for 15 days on09.10.1996, was lodged in the Central Prison, Madurai; that since hewas unwell at the time of admission in the Central Prison, he wasreferred to the Government Rajaji General Hospital, Madurai by thePrison Medical Officer; that thereafter he was given treatment in thesaid Hospital as an inpatient upto 19.10.1996; that on 19.10.1996 hewas sent back to prison from the Government Rajaji General Hospital https://hcservices.ecourts.gov.in/hcservices/ and that on 02.11.1996 Pancharaju vomitted blood and hence, on areference made by the Prison Medical Officer, he was removed to theGovernment Rajaji General Hospital, Madurai but unfortunately he diedon his way to the hospital. It had also been contended that theenquiry conducted by the Revenue Divisional officer revealed absenceof signs of torture or inhuman treatment; that the death was due tonatural cause and that hence the respondent herein/writ petitioner wasnot entitled to any compensation or financial assistance from theGovernment.9. The learned Single Judge, after going through thematerials available on record, came to the conclusion that custodialviolence had led to the death of Pancharaju and hence, directed theappellants/respondents to pay a sum of RS.2,00,000/- as compensationto the respondent/writ petitioner. The appellants have questioned thecorrectness of the above said direction of the learned Single Judge.10. Advancing arguments on behalf of the appellants,Mr.A.Arumugam, learned Additional Government Pleader submitted thatthe learned Single Judge had failed to properly consider theimplications of the contents of the letters dated 25.10.1996 and28.10.1996 allegedly written by the deceased Pancharaju to his wife(respondent/writ petitioner) and his brother's son; that had they beenproperly considered in the light of the Revenue Divisional Officer'sreport, the learned Single Judge would have held that the death wasnot due to any custodial violence but due to natural cause and thathence, the order of the learned Single Judge should be set aside.According to the submissions made by the learned Additional GovernmentPleader, the letters dated 25.10.1996 and 28.10.1996 would give aclear indication that the deceased Pancharaju was undergoing some kindof ailment even prior to his arrest and detention and that is thereason why, he had chosen to write those letters informing his wifeand brother's son that he was keeping good health and requesting themto arrange for his release on bail. According to the contention of thelearned Additional Government Pleader, the contents of the lettersimply previous ill-health and the same provide corroboration to theopinion of the doctors. In this regard, we have also heard thearguments advanced by Mr.R.Malaichamy, learned counsel for therespondent and paid our anxious considerations to the same.11. It is a fact not in dispute that the deceased Pancharajuwas arrested on 09.10.1996 by the police and produced before theJudicial Magistrate, Periakulam for remand in Crime No.547 of 1996 foran alleged prohibition offence and was remanded for 15 days. However,he was taken to the Central Prison, Madurai on 10.10.1996. At the timeof admission into the Central Jail itself, he was found unwell andhence, the Prison Medical officer referred him to Government RajajiGeneral Hospital, Madurai. The referral O.P. chit contains thefollowing particulars noted by the Medical Officer: "Unable towalk" .... "alleged to have been assaulted by police people". The chitfor re-admission in the jail hospital contains the following https://hcservices.ecourts.gov.in/hcservices/ particulars: "Treated as an in-patient in our jail hospital from19.10.1996 to 30.10.1996." From 10.10.1996 to 19.10.1996 admittedlythe deceased Pancharaju was given treatment in Government RajajiGeneral Hospital, Madurai as an in-patient. It is also obvious that hehad not recovered at the time of his discharge from Government RajajiGeneral Hospital, Madurai on 19.10.1996. He was discharged with anobservation that the patient was “ambulant”, meaning capable of beingremoved. The same is obvious from a copy of the discharge summaryavailable in the typed-set of papers. Even after being removed fromthe Government Rajaji General Hospital, Madurai to the prisonhospital, he was treated there as an in-patient. Whether he wasdischarged on 30.10.1996 as inpatient of the jail hospital? What typeof treatment was given on 31.10.1996 and 01.11.1996? - theappellants/respondents have not explained. No document is available inthis regard. One undisputable fact emerging from the above saidmaterials is that prior to 30.10.1996 during which period Pancharajuis alleged to have written letters to his wife and brother's son, hewas taking treatment as an in-patient either in Government RajajiGeneral Hospital, Madurai or in the prison hospital. Therefore, it isquite unnatural and improbable that Pancharaju would have writtenthose letters.12. The learned counsel for the respondent, in this regard,contended that the deceased Pancharaju had been severely beaten up bythe police before he was taken to the central prison, Madurai; thathis condition continued to be unstable making the jail authorities tosuspect that he might succumb to the injuries and that the jailauthorities themselves could have written those letters with a view toprotect themselves and the police in case the prisoner would die.There is substance in the said contention raised on behalf of therespondent/writ petitioner that the cumulative effect of all the abovesaid factors would make unsustainable the submission of the learnedAdditional Government Pleader that the deceased was having ailmenteven prior to his arrest.13. The very contention raised on behalf of the appellantsthat there was no custodial violence and that the death was due tonatural cause has got to be discountenanced. The following facts alsocan be noticed in support of the above said view. After gettingPancharaju remanded for 15 days on 09.10.1996, he was not taken to thejail immediately. Throughout the night on 09.10.1996 he was kept inthe police station and was taken to the Central Jail, Madurai only on10.10.1996, that too, to be admitted and sent to the Government RajajiGeneral Hospital, Madurai for treatment immediately after admission inthe prison. Why the accused was kept in the police station for thewhole night when the Magistrate had not authorised police custody?.There is no answer forthcoming from the appellants. At the same time,the submission made by the learned counsel for the respondent/writpetitioner in this regard, seems to have substance in it. According tothe respondent, the accused (deceased Pancharaju) had been beaten upby the police and he was found with injuries and hence, the officer https://hcservices.ecourts.gov.in/hcservices/ in-charge of the local sub-jail refused to admit him in the sub-jailwhen the police took him to the sub-jail and demanded that he bereferred to the hospital and then brought to sub-jail with acertificate of Medical Officer. But the police instead of doing it,kept the accused under their custody in the police station for thewhole night and in the morning took him straight away to the centralprison, Madurai. The said contention of the respondent/writ petitionerseems to be quite probable in the light of the fact that no soonerPancharaju was admitted in the central prison, Madurai, then he wasreferred to the Government Rajaji General Hospital, Madurai where hewas admitted as inpatient on 10.10.1996 itself. As pointed out supra,the referral O.P. chit itself makes it patent that the accused was notable to walk and he alleged that he had been assaulted by police. Thesame gives a clear picture that the accused had been assaulted bypolice and the injuries caused to the internal organs had led to hisultimate death.14. Relying on the post-mortem certificate, final opinion ofthe doctors who conducted autopsy and the report of the RevenueDivisional Officer, it was contended on behalf of the appellants thatmedical evidence proved that the deceased had pulmonary tuberculosisand he died out of the said disease. We are unable to accept the saidcontention. It is true that the medical officers have certified ascontended on behalf of the appellants. But the following facts willmake the opinion of the doctors and report of the Revenue DivisionalOfficer questionable. Right from the date of admission in the CentralJail, Pancharaju was given treatment as in-patient. During the saidperiod (10.10.1996 to 30.10.1996), the respondent/writ petitioner wasnot informed. Only on 02.11.996 the jail authorities chose to send twosuccessive telegrams - one informing the writ petitioner thatPancharaju was being taken to Government Rajaji General Hospital,Madurai as he vomitted blood and the other informing her of the deathof her husband. It is obvious that Pancharaju was brought dead to theGovernment Rajaji General Hospital, Madurai. Despite the fact thatwrit petitioner had been informed by the telegram on 02.11.1996 itselfand that the writ petitioner was present in the hospital on03.11.1996, Revenue Divisional Officer did not conduct inquest till05.11.1996. As such, autopsy was conducted only on 06.11.1996 afterallowing the dead body to decompose.15. The accident register recorded by the Prison MedicalOfficer on 10.10.1996 contains the particulars that Pancharaju wasdiagnosed to have multiple injuries. It has also been noted that heinformed the Prison Medical Officer that he had been assaulted bypolice people. In the discharge sheet, it was observed that thedeceased had multiple injuries. However, in the accident registerprepared for admission in the jail hospital after he was sent backfrom the Government Rajajai General Hospital, Madurai, it has beensimply noted as if there was a contusion on the right knee. Thelearned counsel for the respondent would submit that the officer in-charge of the sub-jail, Periyakulam refused to admit Pancharaju in the https://hcservices.ecourts.gov.in/hcservices/ said sub-jail as he was found with injuries as he had been beaten upby the police. The said submission gains strength from the statementsof some of the police personnels recorded by the Revenue Officer.During inquest, they have clearly admitted that the in-charge officerof the Sub-jail, Periyakulam refused to admit him in the sub-jail ashe was having some ailment. As pointed out supra, Pancharaju was foundwith multiple injuries when he was taken to the Central Prison,Madurai on 10.10.1996. An explanation was sought to be offered for theexternal injuries sustained by Pancharaju that he sustained an injuryon the right knee as he slipped down from the steps of the bus whilehe was getting into the same on his way to the Central Prison, Maduraiescorted by the police. But curiously the said accident was neitherreported to the jail authorities nor any case was registered for thesaid accident. It shall be worth-mentioning that the deceasedPancharaju was found with multiple injuries and abdomen pain when hewas produced at the Central Prison, Madurai by the escort police andPancharaju also informed the Prison Medical Officer, as seen from therecord, that he was assaulted by police people. It is curious to notethat the police have set up a witness to a statement before theRevenue Divisional Officer to the effect that Pancharaju had beentaken to the Court of Judicial Magistrate, Periyakulam on 23.10.1996for remand extension. But the medical records are to the effect thatthe deceased Pancharaju was treated as in-patient in the GovernmentRajaji General Hospital, Madurai from 10.10.1996 to 19.10.1996 and,thereafter, in the jail hospital (here also as in-patient) from19.10.1996 till 30.10.1996. Therefore it is quite obvious that hecould not have been produced in the Court of the Judicial Magistrateon 23.10.1996 for remand extension. The appellants/respondents havenot chosen to produce the order of remand. In the light of the abovesaid circumstances, the non-production of the remand extension ordershall give rise to an adverse inference against theappellants/respondents in this regard.16. Taking into account all the above said aspects includingthe attempt made by the police to show that the deceased Pancharajuwas hale enough to be produced in the Court of the JudicialMagistrate, Periyakulam for remand extension on 23.10.1996 which couldnot be true for the reasons stated supra, this Court comes to theconclusion that the learned Single Judge has correctly held that thedeath was due to custodial violence and that concerted efforts weremade by the jail authorities and police to project the death as anatural death due to pulmonary tuberculosis. There is no substance inthe challenge made by the appellants to the above said finding of thelearned Single Judge and we are of the considered view that thefinding of the learned Single Judge regarding cause of death cannot beheld infirm or defective warranting any interference by us in thiswrit appeal.17. There are several cases in which the Courts haverepeatedly held that the State shall be liable to pay compensation incase of death due to custodial violence. It is unnecessary to refer to https://hcservices.ecourts.gov.in/hcservices/ those decisions. Further more, it is not disputed that the appellantsare liable to pay compensation if at all the death was the result ofcustodial violence. Therefore, the finding of the learned Single Judgeregarding the fixation of liability to pay compensation for the deathof Pancharaju due to custodial violence cannot be interfered with. 18. Regarding the quantum of compensation, the learnedSingle Judge has relied on the particulars found in the affidavitfiled in support of the writ petition to the effect that the deceasedPancharaju was aged about 44 years and was having a monthly income ofRs.1,800/- by doing coolie work and that the deceased had left behindhim the respondent/writ petitioner and three children aged below 8years (5 years, 3 years and just 8 month) as on the date of filing ofthe writ petition, namely 21.05.1997. The fact that respondent/writpetitioner was aged about 40 years at the time of filing of the writpetition has not disputed. Taking note of all these aspects andparticularly the fact that the respondent/writ petitioner had tomaintain her three children, the learned Single Judge has fixed thequantum of compensation at Rs.2,00,000/-. We are of the view that thesame is neither excessive nor unreasonable. We are also of the viewthat a sum of Rs.2,00,000/- awarded by the learned Single Judge isquite reasonable. Therefore, there is no scope for interference withthe order of the learned Single Judge regarding the quantum ofcompensation directed to be paid by the appellants/respondents.19. For all the reasons stated above, we do come to theconclusion that there is no merit in the writ appeal and the samedeserves to be dismissed. Accordingly, the Writ Appeal shall standdismissed. However, there shall be no order as to costs. During thecourse of argument, it was brought to the notice of the Court by thelearned counsel for the respondent/writ petitioner that, out of theamount awarded as compensation a sum of Rs.1,00,000/- was deposited bythe State (appellants) pursuant to a direction of this Court dated14.09.2001 while granting stay in C.M.P.No.11847 of 2001 and that thesaid amount was also withdrawn by the respondent/writ petitioner. Thesame is also confirmed on behalf of the appellants. Hence theappellant 1 and 2 are directed to deposit Rs.1,00,000/-, being thebalance amount of compensation awarded by the learned Single Judge andconfirmed by us in this writ appeal, within a month from the date ofreceipt of a copy of this judgment. We also direct that on deposit,the said amount shall be dealt with in accordance with the directionfound in the order of the learned Single Judge passed in the writpetition, in this regard.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Chief Secretary, Fort St. George, Chennai-9.2.The Secretary, Public (Law and Order) Department, Fort St. George, Chennai -9.3.The Superintendent, Central Prison, Madurai.4.The Revenue Divisional Officer, Madurai.+1cc to Mr.R.Malaichamy, Advocate Sr 75750KSJ (CO)km/3.1.W.A.No.1328 of 2001