P.Pugalenthi v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 15.09.2009CORAMTHE HONOURABLE MR. JUSTICE D.MURUGESANand THE HONOURABLE MR. JUSTICE M.JAICHANDRENW.P.No.18045 of 2009P.Pugalenthi ..PetitionerVsState of Tamil Nadu,rep. By the Secretary to Government,Home Department, Secretariat,Chennai. ..RespondentPetition filed under Article 226 of the Constitution of Indiapraying for issue of Writ of Mandamus to direct the respondent toregister a case under Section 302 IPC against all the policepersonnel involved in the custodial death of R.Rajan @Shanmugasundaram of West Saidapet, Chennai, on 25 August 2009 in theearly morning at Adyar Police Station, Chennai.For Petitioner: Mr.M.RadhakrishnanFor Respondent: Mr.J.Raja Kalifulla, Government Pleader.O R D E R(Made by D.MURUGESAN, J.)The petitioner, by name, P.Pugalendhi, Director of PrisonersRight Forum, Chennai, has approached this Court by way of the presentPublic Interest Litigation seeking for a direction to the Secretaryto Government, Home Department, to register a case against the policepersonnel under Section 302 IPC in connection with their involvementin the alleged murder of one R.Rajan @ Shanmugasundaram on 25.8.2009in the early morning at Adyar Police Station, Chennai.2.The grievance of the petitioner is that on 26.8.2009, almostall the newspapers in the State flashed the shocking news of thecustodial death of the said Rajan @ Shanmugasundaram. According tothe police, the said Rajan @ Shanmugasundaram was nabbed by localpeople at Neelangarai and handed over to Neelangarai police station https://hcservices.ecourts.gov.in/hcservices/ on the evening of 24.8.2009. It was also stated that afterinterrogation, he was taken to a private hospital and he was declareddead at about 3.00 a.m. on 25.8.2009. A Revenue Divisional OfficerEnquiry was ordered as to his death. As it was a custodial death,the State cannot plead innocence and the officers-in-charge of thepolice station at the relevant point of time should be prosecuted byregistering F.I.R. The petitioner has approached this Court on thebasis of the reports carried on in the newspapers.3.Mr.Radhakrishnan, learned counsel appearing for thepetitioner, would submit that as against the normal criminal lawjurisprudence of presumption of innocence of the accused, the saidlaw cannot be made applicable in the case of the State, while suchcustodial deaths are reported in the police station and in suchevent, the State should owe the responsibility and immediatelyprosecute the police officers responsible for such custodial death.He would submit the only option available to the State is toimmediately register the F.I.R. against all the police officers, whowere in-charge of the police station at the relevant point of time.As the same has not been done, the petitioner has approached thisCourt. In support of the said submission, he would rely upon the twojudgments of the Supreme Court made in Criminal Appeal No.1683 of2008 dated 23.10.2008 and W.P.(Crl.)No.193 of 2006 dated 3.2.2009.He would also rely upon the letter addressed by the then ChairPerson, National Human Rights Commission dated 29.3.1997 to all theChief Ministers regarding the procedures to be followed in cases ofdeaths in police encounters. The learned counsel would submit thatthe life of an individual is invaluable and it cannot be dispensedwith in the manner as has been done by the police.4.Mr.Raja Kalifulla, the learned Government Pleader, would, onthe other hand, bring to our notice that a case being registered onthe file of Neelangarai police station in Crime No.610 of 2009 dated24/25.8.2009 under Section 176 of the Code of Criminal Procedure(Cr.P.C.) and pursuant to the registration of the F.I.R., in terms ofSection 176 Cr.P.C., a Revenue Divisional Officer enquiry has beenordered. This order of Revenue Divisional Officer's enquiry is alsoin consonance with clause 151 of the Police Standing Order. Thelearned Government Pleader would submit that as and when the reportof the Revenue Divisional Officer is received, further action wouldbe taken in accordance with law. He would also submit that it ispremature at this stage for the petitioner to seek a direction toregister the F.I.R. against all the police officers, who were in-charge of the police station while the said Rajan @ Shanmugasundaramsaid to have expired while he was in custody. He has also submittedthat in fact the entire investigation has now been entrusted with theC.B.C.I.D.5.In response to the above submission of the learned GovernmentPleader, Mr.Radhakrishnan, the learned counsel for the petitioner https://hcservices.ecourts.gov.in/hcservices/ would further submit that sub-section (3) of Section 176 Cr.P.C.contemplates that in case the Magistrate, who conducts the enquiry,considers it expedient to make an examination of the dead body of anyperson who has been already interred, in order to discover the causesof his death, he may cause the body to be disinterred and examined.As the body has already been cremated, the compliance of sub-section(3) of Section 176 is a remote possibility and therefore, the enquiryby the Magistrate would be only a false. 6.In response to the above submission, Mr.Raja Kalifulla, thelearned Government Pleader would submit that in fact the post-mortemwas conducted at the request of the Sub Divisional Magistrate andRevenue Divisional Officer, Chengalpet, as could be seen from thepost-mortem certificate indicating that the inquest was made in thepresence of the Sub Divisional Magistrate and therefore, thesubmission as to the provision of sub-section (3) of Section 176 isnot well-founded.7.Mr.Radhakrishnan, the learned counsel for the petitioner, hadelaborately argued as to the human rights and we cannot have adifferent opinion on the said aspect as the life of an individual isprecious and it cannot be dealt with by any person and consequentlydispense with the life except recognised by law. However, thequestion is as to whether solely on the ground that death hadoccurred while in police custody, the First Information Report shouldbe registered against all the police officers, who were in-charge ofthe police station, immediately. In our opinion, though the policeofficers, in the event they are found to be the persons for suchcustodial death, must be proceeded with, it would be premature forthe Court to direct the registration of the F.I.R. against all thepolice officers, who were in the police station at the time thealleged custodial death took place and implicate them as accusedwithout waiting for the report of the Revenue Divisional Officer. 8.PSO 151 relates to the procedure in respect of charges oftorture by the police or of death or grievous hurt caused by thepolice and sub-clause (6) of clause 151 is made applicable in case ofsuch deaths occurred in any of the police station in the city ofChennai. Sub-clause 2 of PSO 151 relates to the procedure to befollowed in such cases while the death occurs in Mufassil. Sub-clause3(a) of PSO 151 says that a preliminary enquiry to the occurrenceshould be conducted by the Revenue Divisional Officer or such otherofficer as may be appointed for the purpose and the enquiry will beof non-judicial character and more in the nature of an investigationin order to fix the responsibility, if any, on individual policeofficers and to see whether there is a prima facie case for launchinga criminal prosecution or other proceedings against any oneconcerned. https://hcservices.ecourts.gov.in/hcservices/

9.In fact, the above Police Standing Order is in tune with theprovisions of Section 176 Cr.P.C. Sub-section (1) of Section 176contemplates that when any person dies while in the custody of thepolice, the nearest Magistrate is empowered to hold the inquest andhe is also empowered to hold enquiry into the cause of death eitherinstead of or in addition to the investigation held by the policeofficer. The registration of F.I.R. against the police officersconcerned would be on the basis of the report of the RevenueDivisional Officer or the Magistrate as referred to in Section 176Cr.P.C. In our opinion, that stage has not arisen as on today, as itwould be premature to say either the police officers, who were onduty at the relevant time would be innocent or guilty or otherwise,as it all depends upon the report of the enquiry.10.The Apex Court, in Criminal Appeal No.1683 of 2008 (betweenIndu Jain v. State of Madhya Pradesh & Ors.) was dealing with a casewhere an F.I.R. was filed; the accused were charge-sheeted and aftertrial, they were convicted and when the matter went to the SupremeCourt, on facts, the observations were made making the impressions onthe human rights. On the facts of the present case, we are notinclined to accept the submission of the learned counsel for thepetitioner to apply the very same finding even at the stage when theRevenue Divisional Officer enquiry is still pending. Similarly, thejudgment relied upon by the petitioner in W.P. (Crl.) No.193 of 2006(between Dalbir Singh vs. State of U.P. & Ors.) also cannot bepressed into service on the facts of this case. As we have alreadypointed out, there cannot be any second opinion about the values ofhuman rights even in case a person is an accused and in custody andnobody including the police officials have any right either to harassor torture resulting in the death of such person. But the questionis whether even before the Revenue Divisional Officer enquiry iscompleted, the petitioner would be justified in seeking for adirection to register the case against all the police officers whowere in-charge of the police station.11.The learned counsel also referred to the letter of the formerChair Person of National Human Rights dated 29.3.1997. That lettercame to be sent in respect of killing of some persons by firingallegedly on the ground that they were members of the outlawedPeople's War group. In that circumstances and also considering thecase as one of encounter death, that letter came to be sent to allthe Chief Ministers. As we are concerned with the relief ofdirection for registration of the case in a custodial death, therequest made by the Commission to the Honourable Chief Ministers ofrespective States relating to the encounter deaths cannot beconsidered at this stage.12.In our view, the writ petition is premature and though thepetitioner may have a justified grievance, such grievance can beexposed in the event the Government failed to act in spite of an https://hcservices.ecourts.gov.in/hcservices/ adverse report against the police officers concerned. Hence, withoutexpressing any opinion either on the averments made in the affidavitor the investigation so far carried on or the enquiry conducted bythe Revenue Divisional Officer and except the observations made inthis order for the purpose of disposal, we dismiss this writ petitionas premature. However, we make it clear that the liberty of thepetitioner to vindicate the grievance can be exposed only as and whenit becomes necessary. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsraTo The Secretary, Government of Tamil Nadu, Home Department, Secretariat, Chennai.+ 1 c.c. to Mr. M.Radhakrishnan, Advocate. S.R.No.48136.+ 1 c.c. to The Government Pleader. S.R.No.47220. W.P.No.18045 of 2009RK (CO)GSK 17.09.2009.