IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.1.2009 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.6195 of 2000 and W.P.M.P.No.9269 of 2000 Krishnammal .. Petitioner -vs- 1.State of Tamil Nadu rep.by Secretary to Government, Home Department, Fort St.George,Chennai-9. 2.The Director General of Police, Chennai-600 004. 3.The Superintendent of Police, Thoothukudi. .. Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing the respondents to entrust investigation into the death of the petitioner's husband Mr.Vincent to a Special Investigation Team constituted under the provisions of Section 37 of the Protection of Human Rights Act,1993 or to the CB CID to take suitable disciplinary action against the police personnel responsible and to pay a compensation of Rs.8,00,000/- to the petitioner and her five children. For petitioner : Mr.R.Chandrasekar for M/s.P.V.S.Giridhar Associates For respondents : Mrs.Sneha, GA. ***** O R D E R
Heard both sides.
2. The writ petition is filed by the wife of late Vincent who was killed in police custody on 18.9.1999 by the policemen belonging to Thalamuthu Nagar Police Station, Thoothukudi District without any legal justification. She is seeking for an investigation into the death of her husband and also for grant of sufficient compensation from the State, as her husband was killed by the police.
3. The petitioner, who was a resident of West Alangarathattu village (Arokiapuram Post, Thoothukudi Taluk) states that she was married to Vincent during the year 1986. She had five minor children at the time of filing of the writ petition. She belonged to the Scheduled Caste community. Her husband was a ward member of the village panchayat and he owned a bullock cart for transporting construction material and was earning around Rs.150/- per day.
4. On 17.9.1999, when her husband went to attend a local temple festival in his bicycle, it was claimed that he was arrested by the policemen belonging to Thalamuthu Nagar Police Station. When the petitioner came to know about the arrest of her husband on the next day, i.e. 18.9.1999 around 7.00 a.m. she rushed to the police station and found that her husband was chained by his leg and was not able to speak properly. She was told that her husband was tortured by the policemen attached to the police station. She also saw that there were bleeding injuries in the feet of her husband. Unable to bear the pain her husband was seen crying. The petitioner pleaded before the Sub-Inspector of Police not to torture her husband. In turn she was told by him that her husband will be beaten to death and she may have to visit the police station in a white saree on the next day. This was to suggest that she will become a widow. She was also driven away from the place. Around 4.00 p.m. when she found many police vans were moving in that area, which was rather unusual, she rushed to the police station. But however, she was not allowed to enter the police station. Later when she heard from a local leader that her husband passed away she rushed to the Government General Hospital, Thoothukudi. She was told by the doctors that when her husband was brought to the hospital he was already found dead.
5. An FIR was registered in Crime No.170 of 1999 on 18.9.1999 and was sent to the Revenue Divisional Officer, Thoothukudi. The incident brought a severe law and order problem in that area and demonstrations were held demanding action against the policemen responsible for the death. The District Collector, Thoothukudi sent a memo dated 19.9.1999 directing the RDO, Thoothukudi to conduct an enquiry in terms of police standing order 145 and submit a report. Even before an enquiry, he granted Rs.1,00,000/- by his proceedings dated 20.9.1999 to the petitioner as compensation.
6. The RDO, Thoothukudi conducted an enquiry on 04.10.1999. He recorded the statement of 23 witnesses. The postmortem was conducted by Dr.A.J.Balakrishna Rao and Dr.S.Vellai Pandian. In the postmortem report, it was noted that there were 38 injuries on the body of late Vincent. The opinion for the death was due to the injuries and breathing problems.
7. The RDO in his report dated 09.4.2000, held that the late Vincent was arrested on the night of 17.9.1999 and was taken to the police station along with two other persons. He was severely beaten in the police station. After the life of Vincent entered into a critical stage, the body was taken from the police station in a police jeep to a private doctor and on his advice, he was taken to the Government Hospital. Therefore, he recommended action against all the policemen who were in the station on 17th and 18th September 1999 for causing the death of Vincent, by his report dated 09.4.2000. The said report was forwarded by the District Collector to the first respondent State with a covering letter dated 18.9.2000.
8. The Government upon receipt of the said report, agreed with the report and passed an order in G.O.Ms.No.1284, Public (Law & Order) Department, dated 20.9.2000, instructing the District Collector, Thoothukudi to direct the RDO, Thoothukudi to take immediate criminal prosecution. The second respondent DGP was directed to take disciplinary action against the responsible policemen. The operative portion of the Government Order reads as follows:-
”2. The enquiry officer after enquiry has given his findings that it is clearly proved that the deceased Thiru Vincent and two other persons Tvl.Muthu and Mariadass were arrested by the Thalamuthu Nagar Police on the night of 17.9.1999 and they were brutally tortured in Thalamuthu Nagar Police Station by the police personnel and as the condition of Thiru Vincent worsened due to excessive torture, he was sent out of the police station through one Thiru Rajendran. When he was brought to the Government Hospital, Thoothukudi, the doctor who examined him has declared that he was dead. The enquiry officer has come to the conclusion that the brutal attack and torture by all the police personnel who were on duty on 17.9.99 and 18.9.99 in Thalamuthu Nagar police station were responsible for causing injuries to Thiru Vincent which was also one of the reasons for his death and has recommended to initiate action against all the police personnel who were on duty on 17.9.99 and 18.9.99 in Thalamuthu Nagar Police Station. He has also recommended to initiate criminal proceedings against Tvl.Muthu and Mariadass for suppressing the facts about the torture meted out to Thiru Vincent and to them by the police personnel of Thalamuthu Nagar Police station at the time of enquiry as they are fully aware of the facts. The Collector of Thoothukudi on perusal of the enquiry report and in consultation with the Superintendent of Police, Thoothukudi has reported that the following police personnel were responsible for torturing Thiru Vincent and has recommended for both criminal prosecution and departmental action against them.
Tvl.
1.M.Somasundaram Sub Inspector
2.Jayasekaran Sub Inspector
3.Josephraj Gr.I PC-1059
4.Pichaiah Gr.I PC-2128
5.Chellathurai Gr.I PC-2209
6.Veerabagu Gr.I PC 1920
7.Sivasubramanian Gr.I PC 1997
8.Subbiah Gr.I PC-1123
9.Rathinasamy Gr.I.PC-1278
10.Balasubramanian Gr.I PC-1154
3. The Government after careful examination of the enquiry report and the recommendation of the Collector, Thoothukudi have decided to launch criminal prosecution and departmental action against the police personnel mentioned in para 2 above for causing injuries to Thiru Vincent which was also one of the reasons for his death on 18.9.1999. The Government have also decided to launch criminal prosecution against Tvl.Muthu and Mariadoss for having suppressed the facts before the PSO 145 enquiry officer as they were fully aware of the torture meted out to Thiru Vincent and to them by the police personnel of Thalamuthu Nagar Police Station.”
9. The petitioner made best efforts to get the copies of the documents. She also sent a letter dated 29.9.1999 seeking for proper action against the respondents and also for a just compensation. Since she was not successful in her efforts to get justice at the hands of the respondents she moved this court by way of the present writ petition.
10. Notice of motion was ordered on 06.4.2000. The writ petition was subsequently admitted on 11.10.2000. Her prayer for interim relief was rejected by this Court. Even though in WMP 9269 of 2000, she sought for the copies of the report of the RDO, the same was not given to her. This Court by an order dated 27.11.1008, directed the respondents to produce the copy of the RDO report as well as the GO dated 20.9.2000. The learned Government Advocate circulated those records. In the counter affidavit filed by the third respondent, no details were given as to the nature of action taken against the ten policemen who were named in the Government Order.
11. The prayer for compensation sought for by the petitioner is fully justified since facts were not in dispute.
12. This Court in more or less identical circumstances in the judgment in Baggiam Doraiswamy -vs- State of Tamil Nadu reported in 1994-2-L.W.(Crl) 687 had dealt with an issue regarding compensation ordered on the basis of the report of a Revenue Enquiry. In para 8 of the judgment, it was observed as follows:-
”8. The petitioner has brought to the Court the fact that her son has been killed by the police. The police version that the petitioner’s son was killed in an encounter was not accepted by the Deputy Collector who held the inquest and by the Member, Board of Revenue, who held the enquiry. The nature of injuries also indicates that the encounter theory does not fit in with the assault upon the petitioner’s son. The assailants, it is conceded, are policemen. That they assaulted the petitioner’s son in self-defence has been accepted by the Session Judge and this Court in revision has declined to interfere with the acquittal of he accused persons. Yet, the assailants are identified and it cannot be said that the earliest finding as to the aggressive acts of the police as recorded by the Member, board of Revenue is not such a finding which this Court should accept, or that this Court must accept the finding in this behalf as recorded by the Court of Session. On an independent assessment of the facts as aforementioned, which are not in controversy, I have no hesitation in holding that the petitioner has made out a positive case of assault upon her son by the police and that policemen alone are responsible for this death. She has lost a bread earner and she, in my opinion, is entitled to compensation. The Court shall be failing in its duty, as pointed out by the Supreme Court in the case of Neelabati Bahera (AIR 1993 SC 1960) supra in not ordering any compensation to the petitioner.”
13. Even though in that case, the question of compensation was restricted to Rs.1 lakh (which was the amount demanded by the petitioner), the same petitioner preferred a writ appeal in W.A.No.1929 of 2005. The said writ appeal came to be posted before a Division Bench, to which I am a party (K.Chandru, J.) and the Division Bench, by a judgment dated 11.8.2006 after confirming the order passed by the learned Judge enhanced the compensation by ordering interest to be paid from the date of demand of compensation till the date of its payment.
14. It will be out of place to mention that the citizens of this country cannot be left in the lurch without being granted relief in case of their fundamental right being deprived at the instance of the police personnel who are supposed to protect the person and property of the Indian citizens. If such acts are found uncontrolled by the State, the citizens of this country are not helpless and the long arm of Article 226 vests power on this court to order suitable compensation.
15. In this context, it is necessary to refer to the Full Bench judgment of this Court in P.P.M.Thangaiah Nadar Firm, rep.by its Partner T.P.Prakasam, Tuticorin and others -vs- Government of Tamil Nadu, rep.by its Chief Secretary, Chennai and others reported in (2007) 2 MLJ 685. The Full Bench presided by P.K.Misra, J. after referring to various cases of the Supreme Court in paragraph 38, held as follows:-
”38. Now, the inevitable end of the journey or may be beginning of another. In view of the various decisions noticed by us and many other decisions referred to in such decisions, the following conclusions can be reached. The State is not necessarily liable in every case where there is loss of life or damage to the property during rioting. Where, however, it is established that the officers of the State ordained with duty of maintaining law and order have failed to protect the life, liberty and property of person and such failure amounts to dereliction of duty, the State would be liable to pay compensation to the victim. Such liability can be enforced through Public Law remedy or Common Law remedy. Where, necessary facts to establish culpable negligence on the part of the officials are available, the High Court under Article 226 can issue appropriate direction.
16. Subsequently, a Division Bench of this Court in Coimbatore Bar Association and another -vs- State of T.N. and another reported in 2008 Writ L.R.662 also dealt with a situation where the member of the legal profession was assaulted by the police personnel that too in a public place. The question came up for consideration was whether the State was liable to compensate such injury to the members of the bar who was a victim of State violence. In paragraph No.9 of the said decision, the Division Bench presided by A.P.Shah, C.J. had observed as follows:
9. In the instant case, it is an undeniable fact that as a result of the assault, the second petitioner has sustained multiple injuries bruises, abrasions and contusions and his evidence implicating respondents 5, 6 and 7 is found to be acceptable. Though the incident was triggered off by the second petitioner dashing against the fifth respondent due to his low vision, there is no jurisdiction for the behaviour of the police personnel in having beaten him mercilessly, especially respondents 5, 6 and 7. The human rights of the second petitioner were violated with impunity and he is entitled to be suitably and adequately compensated. The power of the Court to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of the Supreme Court in Rudal Sah -vs- State of Bihar (AIR 1983 SC 1086); Sebestian M.Hongray -vs- Union of India, (AIR 1984 SC 1026); Bhim Singh -vs- State of Jammu & Kashmir (AIR 1986 SC 494); Saheli, A Women’s Resources Centre -vs- Commissioner of Police, Delhi Police Headquarters (AIR 1990 SC 513) and State of Maharashtra -vs- Ravikant S.Patil (1991) 2 SCC 373). In Smt.Nilabati Behera alias Lalita Behera -vs- State of Orissa and others (AIR 1993 SC 1960), the Supreme Court after examination of the earlier cases, clearly laid down that the award of compensation in a proceeding under Article 32 of the Constitution by the Supreme Court or under Article 226 by the High Court is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. The same view was reiterated in Consumer Education and Research Centre and others -vs- Union of India and others (AIR 1995 SC 922). In a recent judgment in Chairman, Railway Board & Others -vs- Mrs.Chandrima Das and Others ((2002) 2 SCC 465), the Supreme Court observed where public functionaries are involved and the matter relates to violation of Fundamental Rights or the enforcement of public duties, the remedy would still be available under the Public Law notwithstanding that a suit could be filed for damages under Private Law. In our opinion, the second petitioner has made a strong prima facie case for award of compensation and having regard to the inhuman way in which the second petitioner was mercilessly beaten, we feel that the ends of justice would be met, if we award Rs.50,000/- as compensation to the second petitioner. The second petitioner has incurred an expenditure of more than a sum of Rs.1,00,000/- (Rupees one lakh only) for his treatment and has also suffered mental agony. But on behalf of the respondents 5 to 7, the learned Government Pleader pleaded for some indulgence. Therefore, we fix the compensation at a sum of Rs.50,000/- taking into account the situation of the parties. It is needless to state that the State would be entitled to recover this amount of compensation from respondents 5 to 7, who were found to be involved in the assault on the second petitioner.”
Aggrieved by the quantum of compensation granted by this Court, the aggrieved Advocate had gone to the Supreme Court seeking for higher compensation and the matter is pending.
17. In Lucknow Development Authority -vs- N.K.Gupta reported in 1994 (1) SCC 243, the Supreme Court in paragraphs 8 and 10, observed as follows:-
”8. … State is liable to compensate for loss or injury suffered by a citizen due to arbitrary actions of its employees. Public authorities who are entrusted with statutory function cannot act negligently. No functionary in exercise of statutory power can claim immunity, except to the extent protected by the statute itself. Public authorities acting in violation of constitutional or statutory provision oppressively are accountable for their behaviour before authorities created under the statute like the commission or the Courts entrusted with responsibility of maintaining the rule of law. The authority empowered to function under the statute with exercising power discharges public duty. It has to act subserve general welfare and common good. In discharging this duty honestly and bona fide, loss may accrue to any person. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer cannot more claim to be under protective cover. In modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power then it has a statutory obligation to award the same if proved”.
”10. … The jurisdiction and power of the courts to indemnify a citizen for injury suffered due to abuse of power by public authority is founded on the principle that an award of exemplary damage can serve a useful purpose in indicating the strength of law. A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He is responsible for it; must suffer for it; compensation or damages may arise even when the officer discharges his duty honestly and bona fide. But when it arises due to arbitrary or capricious behaviour then it looses its individual character and assumes social significance. Award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil.”
18. In the present case, even the State itself had accepted that the deceased Vincent was taken to police custody without authority kept in custody for over two days violating the mandate of Article 22(1) of the Constitution and directly violating the mandatory guidelines given by the Supreme Court in D.K.Basu -vs- State of West Bengal reported in AIR 1997 SC 610. In the same judgment, the nature of action to be taken for violation of the order is set out in paragraphs 37 and 38, which is as follows:-
”37. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
38. The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.”
19. The petitioner lost her only breadwinner by the gruesome act committed by the policemen functioning under the control of the third respondent. At the time of filing of the writ petition, she had five minor children and she would have suffered to bring them up in life. Under these circumstances, the prayer of the petitioner merits acceptance.
20. The writ petition will stand allowed and the first respondent State is directed to pay a sum of Rs.8,00,000/- (Rupees eight lakhs only) to the petitioner within a period of four weeks from the date of receipt of a copy of this order and report compliance to this Court. Though the petitioner is also entitled to get interest on the compensation amount awarded by this Court, as the death of the petitioner’s husband had occurred 10 years before and the writ petition itself had been kept pending in this court for the last eight years, the same is not ordered in view of the fact that the petitioner had already been given Rs.1 lakh by the District Collector immediately after the death of her husband.
21. This Court is not able to directly take against all the policemen who were found guilty as they have not been made individually parties to this writ petition. But, however, the first respondent State is directed to proceed against those officers who were found guilty for violation of all constitutional safeguards given to the citizens after due notice to those persons. If necessary, recover the amounts from the personal salaries of those officers. This shall be given after due notice to those officers and by passing a speaking order. But on that ground, the payment of compensation to the petitioner cannot be stalled any further. The State shall adhere to the time schedule prescribed above. Consequently, the connected miscellaneous petition is closed. There will be no order as to costs.
js
To
1.The Secretary to Government,
Home Department,
Fort St.George,Chennai-9.
2.The Director General of Police,
Chennai-600 004.
3.The Superintendent of Police,
Thoothukudi