P.Viswanathan v. Deputy Inspector General of Police, Vellore Range, Vellore & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 07.10.2009CORAM:THE HON’BLE MR.JUSTICE K.CHANDRUW.P.No.36278 of 2006(O.A.No.1416 of 1998)P.Viswanathan ...Petitioner Vs1.Deputy Inspector General of Police, Vellore Range, Vellore.

Superintendent of Police, Salem. ...RespondentsPrayer :Petition under Article 226 of the Constitution of Indiapraying for a Writ of certiorari, to quash the order passed by the2nd respondent in P.R.No.252/H2/96 dated 28/7/1997 as confirmed by the 1st respondent in his proceedings C.No.AP 97/97 dated 3/12/1997and promote the petitioner as Head constable from the date on which his junior was promoted with all consequential benefits. For Petitioner : Mr.S.Mani For Respondents: Mr.R.Neelakantan,G.A.

O R D E RThe petitioner was working as Police Constable Grade I in Edappadi Police Station. He filed O.A.No.1416 of 1998 before the Tamilnadu Administrative Tribunal, seeking to set aside the order of the second respondent dated 28.07.1997 made in PR.No.252/H2/96and confirmed by the first respondent dated 03.12.1997 and for aconsequential direction to promote him as Head Constable from the date on which he was promoted.2. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re-numbered as W.P.No.36278 of2006.

A complaint was made against the petitioner that he was responsible for bringing the three 8th standard students studying in Ayilapatty Government High School on 15.11.1994 to the policeStation. After stripping them naked tortured them. On hearing the news, the villagers went on a road roko which resulted in the Sub-Collector, Namakkal conducting an enquiry under PSO 145. The Sub- https://hcservices.ecourts.gov.in/hcservices/ Collector after conducting his enquiry including examining the Civil Assistant Surgeon, Government Hospital, Rasipuram forwarded his report dated 03.10.1995 to the District Collector. In thereport, he found prima facie the petitioner was guilty of stripping the three students and of beating them with a stick. He also examined the Doctor Dhanasekaran, who stated that three students were brought to the hospital. There were injuries on their person due to beating by stick. They were admitted to the hospital as inpatients on 15.11.1994 and were discharged on 18.11.1994. TheSub-Collector recommended disciplinary action against the petitioner vide his report forwarded to the District Collectordated 23.01.1985.

The petitioner was placed under suspension by an order dated 17.11.1994. In the enquiry, it transpired that the petitioner was serving in the Ayilpatty Police Station. On 15.11.1994 at about12.30 p.m., three students, namely, M/s.Sivalingam, Senthilkumarand Mohankumar were walking near the police station. At that time, the petitioner had asked those students to clean his TVS SuzukiMotor Cycle parked there. When they declined to do so, he took them to the station and beat them with a bamboo stick indiscriminately. He also stripped them naked and kicked them with his boots.

After the report of the Sub-Collector, departmental enquiry was ordered to be conducted by the DSP Rasipuram Sub-Division. TheEnquiry Officer recorded the statement of the witnesses. He held that some witnesses were not eye witnesses and the persons who deposed before the Sub-Collector had disowned their statements. Therefore, since no one had corroborated the earlier statements given before the Sub-Collector, there is no material to hold the petitioner guilty of the charges.

Upon the receipt of the said report dated 01.02.1997, the second respondent by an order dated 23.07.1997 disagreed with the enquiry report. He gave a show cause notice dated 26.05.1997 as to why he should not discard the findings of the Enquiry Officer. Thepetitioner gave his representation dated 02.06.1997. Upon which the punishment of reduction in pay by two stages for a period of two years with cumulative effect came to be passed against the petitioner by an order dated 28.07.1997.

As against the said penalty, the petitioner preferred an appeal dated 19.09.1997 to the first respondent. The appellate authority by an order dated 03.12.1997 had held that the impugned punishment was just and proper and therefore, he declined to interfere with the penalty. It is this penalty order which was challenged by the petitioner before the Tribunal.

On notice from the Tribunal, the first respondent had fileda reply affidavit dated 17.04.1998 justifying the penalty imposed on the petitioner. In paragraph 9 of the reply, it was averred as follows: https://hcservices.ecourts.gov.in/hcservices/ "9. ... It is submitted that the enquiry under PSO 145was conducted to find out the involvement of the applicant in the incident happened on 15.11.1994. TheRevenue Divisional Officer had examined the witnesses, analysed their evidences in detail and then sent areport to the Government. Having considered the report, the Government have ordered to deal with him on acharge. Based on the statements recorded by the RevenueDivisional Officer, Salem and report of RevenueDivisional Officer, Salem the departmental action was initiated against the applicant. The averments of the applicant reliance based on the report RevenueDivisional Office is without any jusitification and without application of mind are untenable, since the Revenue Division Officer had conducted the enquiry intently and sent an impartial report. Hence, there isno wrong in relying his report. "

Notwithstanding the reply, this Court by an order dated12.08.2009 directed the respondents to produce the original file including the report of the Sub-Collector, Namakkal. Accordingly, the file was circulated by the learned Government Advocate. Aperusal of the file clearly showed that after the charge memo was framed, the petitioner had won over the students and their parents. All of them like parrots stated such an incident never had taken place. They do not know the contents of the statements recorded by the Sub-Collector. The signatures were obtained in atyped paper without revealing its contents.

While re-examining the two student victims, gave same answers to the following two questions asked by the prosecution:-1. Q: On 29.11.1994, the Sub-Collector, Namakkal read over the statement and got your signature.A: Wrong2.Q: On 15.11.1994 you were stripped and beaten and got injured and such allegation was found in your statement and thereafter you had received treatment in Rasipuram hospital. How did you incur that injury?A:He did not beat me. It is an old injury.

The aforesaid statement did not tally with the original statements given before the Sub-Divisional Executive Magistrate cumAssistant Collector, Namakkal. He had taken the signature after reading out the contents and after the witness accepting the same got their signatures and they are found in each of the statement. Likewise P.W.6 A.Dhanapal (P.C.No.763) had agreed that the Sub-Collector took his statement in Ex.P7. Similarly, P.W.5. Annamalai, Grade I P.C. 1903 had stated that he was in charge of the police station on that day and he had recorded the incident in his GeneralDiary by himself. But however, he claimed that the Sub-Collector https://hcservices.ecourts.gov.in/hcservices/ had threatened him to put his signature. In reexamination it was stated by him that he did not send any complaint to the higher officers about the treatment handed out by the Sub-Collector. On afurther question in reexamination he had stated that since the students did not get injured, no Memo was sent to the Hospital. This fact was denied by Dr.Dhanasekaran, Assistant Surgeon, Government Hospital Rasipuram, who was examined as P.W.11. He had stated that along with the students a Police Memo in Ref.32/94signed by the Sub-Inspector was given. The students told him that they were beaten with a stick by an unknown person. The students were admitted as inpatients in the hospital. He gave the discharge summary in Exs.P15,P16,P17. In cross examination, his statement was not discredited.

Normally this Court will not embark upon going in to original evidence especially when the petitioner had the benefit ofa full fledged enquiry followed by a statutory appellate remedy. But in view of the assertion made by the counsel that there were no legal evidence against the petitioner and the punishment was unjustly imposed on him, the present exercise was undertaken by this Court. This Court is fully satisfied that the evidence recorded by the authorities are sufficient to hold the petitioner guilty. For the misconduct committed by the petitioner, the respondents have imposed the penalty which commensurate with his misconduct. The statement of the petitioner that the Sub-Collectorhad threatened and got statements from various persons is wholly uncharitable and was not borne out by any records found out in the file. If at all there was any enmity between the petitioner and the Sub-Collector that was not even pleaded either in his explanation or in his appeal memo filed before the appellate authority.

The Supreme Court while laying down its famous 11commandments for arrest of any person by the police vide its decision in D.K.Basu v. State of West Bengal reported in 1997 (1)SCC 416 has forewarned the need to keep the police force fully sensitised about the constitutional guarantee given to citizens against custodial torture. It will not be out of place to extract the following passages found in paras 9 and 22 for the judgment and they are as follows: "9. The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the citizens. Custodialviolence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should belimited by law.

In the light of the above, the writ petition will stand dismissed. However, there will be no order as to costs. svki Sd/- Asst. Registrar/True Copy/ Sub. Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.Deputy Inspector General of Police, Vellore Range, Vellore. 2. Superintendent of Police, Salem. + 1 cc to the Government Pleader High court Madras SR.52138+ 1 cc to Mr. S. Mani, Advocate, SR.51831Pre-Delivery Order inW.P.No.36278 of 2006(O.A.No.1416 of 1998)LA(CO)EU 14.10.2009.