IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 06.09.2008 CORAM THE HONOURABLE MR. JUSTICE K.N.BASHA Crl.O.P.No.3715/2004 Mr.Henri Tiphagne .. Petitioner -Vs- 1.State of Tamilnadu rep.by its Home Secretary Secretariat, Fort St.George Chennai 600 009. 2.The Inspector of Police Paramakudi Police Station Ramnad District. 3.The Superintendent of Police Ramnad District, Ramnathapuram. 4.The Joint Director [South] Central Bureau of Investigation [CBI] 3rd Floor EVK Sampath Building, College Road, Nungambakkam, Chennai 600 006. 5.The Sub Collector Ramnad District, Ramanathapuram. .. Respondents [5th respondent impleaded as per the order dated 09.3.2004 in Crl.M.P.No.2826/04] Petition filed under section 482 Cr.P.C., seeking to transfer the investigation in Cr.No.475/2002 on the file of the 2nd respondent, Inspector, Paramakudi Police Station to the 4th respondent, Joint Director of Police, Central Bureau of Investigation, Chennai 600 006, and consequentially to expedite the completion of investigation and submission of the final report within the time framed fixed by this Court. For Petitioner : Mrs.Sudha Ramalingam For RR 1 to 3&5 : Mr.M.Babu Muthu Meeran,APP For R4 : Mr.N.Chandrasekaran,Spl.PP [CBI] ORDER
The petitioner who is said to be the Executive Director of People’s Watch, Tamilnadu, has come forward with this petition seeking for the relief of directing the transfer of investigation which was pending in Cr.No.475/2002 on the file of the 2nd respondent, Inspector of Police, Paramakudi Police Station, to the 4th respondent, the Joint Director of Police, CBI, Chennai and for further direction to expedite the investigation and file the final report within the time frame fixed by this Court and pass such other or further orders as may be necessary in the facts and circumstances of the case.
2.Mrs.Sudha Ramalingam, learned counsel for the petitioner submitted that this is a serious case of custodial violence which resulted in the death of a woman by name Karuppee while she was in the custody of the 2nd respondent police. It is submitted that in view of the gravity of the offence alleged against the accused persons who are none else than the police officials, the petitioner who is representing an organisation fighting for human rights has come forward with this petition seeking for the above said relief. It is submitted that the pathetic story of the fate of the said Karuppee came to light during the Public Hearing held jointly by National Women’s Commission and Tamilnadu State Women’s Commission on 28.10.2003 at Madurai and as such, the petitioner has thought it fit to bring it to the notice of this Court with a view to get fair investigation in this matter of custodial violence resulting in the death of the said Karuppee.
3.It is submitted by the learned counsel for the petitioner that the said deceased Karuppee was working as a domestic servant in the household of one Prema, W/o.Samraj, who is a teacher living in Kattu Paramakudi since 1999. It is submitted that on 25.11.2002, the master of the deceased Karuppee, viz., Prema, found some jewels and money were missing from her house and as such, she has preferred a complaint before the 2nd respondent police and the same was registered in Cr.No.455/2002 for the offence under sections 454 and 380 IPC. It is submitted that on the same day, the said Karuppee was taken into custody by the 2nd respondent police for enquiry in respect of the above said registration of the FIR. The 2nd respondent police also taken one Arumugam, W/o.Christudoss, who is the sister-in-law of the said karuppee into custody and thereafter, both the deceased Karuppee and Arumugam were taken to the house of the said Prema, the complainant in that case. It is also submitted that from the statement of Arumugam, the deceased was tortured physically and she was forced to confess that it was she who committed the theft. It is further submitted that once again on 26.11.2002, both the said Arumugam and the deceased were taken to the 2nd respondent police and on that day, one Anitha, D/o.Arumugam was brought to the Police Station and both of them were taken to Arumugam’s husband’s place for search and again, they were brought back to the Police Station. It is submitted that even the said Christudoss was tortured inhumanly by the 2nd respondent police.
4.It is submitted by the learned counsel for the petitioner that on 28.11.2002, the 2nd respondent police once again, enquried the said Karuppee and also forced Arumugam to advise the deceased to admit that she was responsible for the theft. It is submitted that thereafter, the other relatives of the said Arumugam were also summoned and they were also treated inhumanly and tortured by the 2nd respondent police. It is submitted that from the statements of the said witnesses, it was revealed that the deceased was tortured and the police officials alleged to have pulled her hair and also assaulted. It is further submitted that when the said Arumugam along with her daughter Anitha went to the police station on 29.11.2002, the said Karuppee, the deceased cried and told them that she was assaulted and tortured by the police officials. It is submitted that on 01.12.2002 around 10.00 a.m., the said Christudoss was informed by a fish seller that a woman died in the police station and when the said Christudoss went to the police station, the Sub-Inspector of that station told him that the Karuppee had died.
5.The learned counsel for the petitioner submitted that there are enough materials available to establish that the said deceased died not due to natural cause, but only due to custodial torture. It is submitted that the Post-mortem Certificate also disclosed a number of ante-mortem injuries and as such, it is very clear that the death is only due to homicide and that too, due to custodial torture of the police officials of the said police station. Therefore, it is contended that in view of the police officials have been implicated in this case as accused persons, the petitioner apprehends that there may not be any fair investigation. As such, it is submitted that in the interest of justice, the investigation is to be transferred to some other competent police official for ensuring fair and effective investigation in this case. It is further contended by the learned counsel for the petitioner that the Tamilnadu State Commission for Women also found a prima facie case of custodial violence in this matter and opined that as the local police were the accused, investigation must be handed over to the CBI to bring out the truth in the interest of justice and further prayed for direction to the Government to pay an immediate compensation of Rs.2 lakhs to be paid to the family of Karuppee, the deceased. It is further submitted that the petitioner understands that the Government also passed an order of interim compensation of Rs.1 lakh and that amount also not yet paid to the family of the said Karuppee. Therefore, it is contended that it is a fit case to award reasonable amount as compensation to the family of the said Karuppee. The learned counsel further contended that in view of the threat caused to the other family members of Karuppee even during her illegal detention by the 2nd respondent police, that during the course of investigation by some other investigating agency, the witnesses also should be given sufficient protection to their life to give their version freely without any fear or threat.
6.The learned Additional Public Prosecutor on the other hand, submitted that there is no illegality in the investigation conducted by the 2nd respondent police. It is submitted that the Deputy Superintendent of Police, Paramakudi, also filed a counter to the petition dated 05.03.2008. The learned Additional Public Prosecutor submitted that the deceased Karuppee was taken to police station on 30.11.2002 for interrogation in connection with the case registered in Cr.No.455/2002 for the offence under sections 454 and 380 IPC and on the next day, i.e., 01.12.2002 at about 6.30 a.m., she was found hanging at the Wireless Tower at the backside of the police station. It is submitted that a case was registered in Cr.No.475/2002 for the offence under section 174 Cr.P.C.,on 01.12.2002 by the then Inspector of Police and the inquest was conducted. It is further submitted that the Sub-Collector of Paramakudi also conducted a detailed enquiry under section 151 of the Police Standing Orders and sent a report to the Government through the District Collector of Ramanathapuram. It is submitted that on the basis of the report, the Government directed to take criminal action by order dated 12.01.2006 and thereafter, the Revenue Divisional Officer, Paramakudi, has filed a criminal complaint against the Inspector of Police and the then Sub-Inspector of Police under sections 190[1][a] and 200 Cr.P.C., before the learned Chief Judicial Magistrate, Ramanathapuram on 13.09.2006 for the offence under Section 306 IPC. After a preliminary enquiry, the case was taken on file in PRC.No.1/2007 for the offence under section 306 IPC and now, the case has been transferred to the learned Additional Sessions Judge, Fast Track Court, Ramanathapuram and the same is pending in SC.No.105/2007. Learned Additional Public Prosecutor also submitted that the Government had already initiated action against the police officials said to have been involved in the case.
7.I have carefully considered the rival contentions put forward by either side and also perused the materials available on record including the petition and the counter filed by the respondent police through the Deputy Superintendent of Police, Paramakudi and other materials available on record including the Postmortem Certificate.
8.It is a pathetic case of unnatural death of a poor woman, viz., Karuppee while she was in the police custody. It is seen from the materials available on record that as per the version of the petitioner that the said victim was taken to the police custody as early as on 25.11.2002. But the version of the respondent police through the counter is to the effect that the said Karuppee was taken into custody by the 2nd respondent police on 30.11.2002. But the undisputed fact remains that the victim Karuppee died while she was in the police custody.
9.The materials available on record discloses that the said Karuppee was working as a servant maid under one Prema and the said Prema gave a report for the offence of theft as certain jewelleries and cash were missing in her house. Admittedly, the deceased was taken into custody by the 2nd respondent police for interrogation. Therefore, it is to be seen that there is absolutely no dispute about the taking of the victim under the police custody, be it as it may, whether on 25.11.2002 or on 30.11.2002 and it is for the investigating agency to find out correctly the exact date on which the deceased was taken into custody by the 2nd respondent police.
10.The categorical version of the petitioner is to the effect that it is a clear case of custodial torture and the deceased Karuppee died due to custodial torture and violation. On the other hand, it is claimed by the prosecution to the effect that it is a case of suicide and the police officials have been implicated for the offence under section 306 IPC pursuant to the enquiry conducted by the Revenue Divisional Officer, Paramakudi and thereafter, a private complaint was filed against the police officials and the same was taken on file by the learned Chief Judicial Magistrate, Ramanathapuram, in PRC.No.1/2007 and thereafter, transferred to learned Additional Sessions Judge, [Fast Track Court], Ramanathapuram in SC.No.105/2007 and the same is pending as on date.
11.The sequence of events in respect of this case and the perusal of the medical evidence, viz., the Postmortem Certificate reveals the tell-tale of the custodial violence committed on the poor victim. The fact remains as already stated, the Revenue Divisional Officer also found fault with the police officials, but strangely proceeded on the basis that the police officials have only abetted the victim to commit suicide. There is absolutely no explanation from the 2nd respondent police or from the Revenue Divisional Officer as to what prevented them to investigate into the matter involving grave and serious charge of custodial violence. This Court is also constrained to state that the Revenue Divisional Officer instead of requesting the police to conduct independent investigation considering the seriousness and gravity of the offence, proceeded to file a private complaint as per the Government order in GO.Ms.No.65 Public [Law & Order ‘E’] Department dated 12.01.2006 only for the offence under Section 306 IPC. It is also pertinent to be noted that the scope of the enquiry under the Police Standing Orders is only to find out the cause of death. It is pertinent to be noted that in the counter filed by the Deputy Superintendent of Police, Paramakudi, this case was regarded as custodial death of the victim Karuppee. In view of the prima facie materials available on record, disclosing custodial violence, the Government could have very well nominated a competent police official to investigate into the matter. This Court is also constrained to express its displeasure in the manner the case on hand, viz., the custodial death was dealt with by the authorities concerned. It is pertinent to be noted that the pathetic and tragic episode of the fate of the victim in this case could not have been come to the light if the same was not disclosed during the public hearing held jointly by National Women’s Commission and the Tamilnadu State Women’s Commission on 28.10.2003 at Madurai. It is seen that the family members of the victim are illiterate and poor people and as such, they were not able to report to the concerned authorities against the atrocities and inhuman conduct of the police officials subjecting the victim for custodial torture. But for the timely intervention of the petitioner who is representing a Social Organization which is fighting for human rights, this serious case could not have been brought to the notice of this Court.
12.The yet another disturbing feature in this case is that the perusal of the Postmortem Certificate clearly discloses number of ante-mortem injuries. A perusal of the Postmortem Certificate produced by the learned Additional Public Prosecutor containing the final opinion discloses that the deceased died due to hanging as the doctors who have conducted Postmortem have given their final opinion which reads hereunder:-
“THE DECEASED WOULD APPEAR TO HAVE DIED OF ASPHYXIA DUE TO HANGIGN 12 TO 18 HOURS PRIOR TO POSTMORTEM.”
It is pertinent to be noted that in the Postmortem Certificate as already pointed out, there were number of ante-mortem injuries. The doctor himself described the injuries as ante-mortem. It is further pertinent to be noted that even as per the final opinion of the doctors, the death of the deceased is due to hanging and the authorities concerned have not raised their little finger to get further opinion from the doctor to the effect whether the hanging is suicidal or homicidal.
13.In Chapter V, under clause 5.10 of the Police Standing Orders, it is clearly stated that in a case of hanging during the police custody, the medical evidence is of paramount importance and it should disclose whether the hanging was ante-mortem or post-mortem and whether the death was due to the injuries sustained or due to hanging alone. It is specifically stated under that provision that if it is a case of ante-mortem, the persons responsible are liable for being charged with culpable homicide amounting to murder. Therefore, the medical evidence in this case assumes much importance and there is absolutely no investigation in order to find out whether the hanging is suicidal one or homicidal one. This Court is also constrained to express its displeasure about the counter filed by the respondent as there is no whisper about the medical evidence and there is no reference about any Postmortem Certificate and the opinion of the doctor in spite of the specific allegations of custodial violence alleged by the petitioner herein.
14.The yet another aspect which could not be ignored by this Court is that the victim was found hanging as per the version of the police just backside of the Police Station from the wireless tower. There is absolutely no explanation whatsoever as to how the victim climbed up to the wireless tower. It is more serious to note that even as per the admitted case of the police during the time of the victim found hanging, she was under the illegal detention of the police as she was admittedly taken to the Police Station for interrogation in respect of the case of theft registered on the basis of the complaint preferred by one Prema under whom the victim was working as a servant maid. Therefore, it is the responsibility of the police to explain all the circumstances as to how the victim has committed the suicide by hanging herself while she was in police custody. The mode of committing suicide by hanging from the wireless tower itself raises serious doubt about the veracity of the version of the police. A perusal of the enquiry report of the Sub-Collector, Paramkudi discloses that the body of the Karuppee was found hanging by a nylon cord of green colour from the wireless tower at a distance of about 10 metres of backside of Town Police Station, Paramakudi. It is pertinent to be noted that the body was found in a partial hanging position by nylon rope facing west. A perusal of the enquiry report further reveals marks of violence on the body of the deceased. The enquiry officer is of the opinion that the police officials resorted to beating the victim. It is seen from the report that there were contusions on the thighs and arms of the deceased. Such injuries were also found as per the perusal the Post-mortem Certificate. It is painful to note that there is even a contusion over right frontal area 2×2 cms reddish in colour, brain cut sections [c/s] congested. Therefore, it is crystal clear that the victim was subjected to inhuman torture, humiliation and physical violence by the police officials. In view of such overwhelming materials available on record, this court is of the considered view that in order to find out whether the victim Karuppee died due to suicide or homicide, a thorough investigation by independent agency is very much essential more particularly in view of the accused involved in this case are the police officials.
15.As such, this court is constrained to direct the Additional Director General of Police, CBCID, to nominate a competent police official in the rank of Deputy Superintendent of Police, assisted by a team of police officials to investigate into the matter and the Deputy Superintendent of Police, Paramakudi, who has filed the counter before this Court claiming that he is having acquaintance with the facts and circumstances of the case is hereby directed to collect all the records available in respect of this case and to hand over the same to the officer nominated by the Additional Director General of Police, CBCID, Chennai. The police official who has been nominated by the Additional Director General of Police, CBCID, Chennai shall conduct investigation as expeditiously as possible and to file the final report within a period of six months from the date of receipt of a copy of this order.
16.It is pertinent to be pointed out that under section 210 Cr.P.c., a case instituted otherwise than on a police report is to be stayed pending investigation by the police in respect of the same occurrence. As this Court has taken the above said view of entrusting the investigation to an independent investigating agency, this Court is constrained to stay all further proceedings in respect of the private complaint filed against the police officials pending in SC.No.105/2007 on the file of the learned Additional Sessions Judge [Fast Track Court], Ramanathapuram.
17.The learned counsel for the petitioner also prayed for directing the Government to pay the compensation to the victim’s family. The Hon’ble Apex Court in D.K.BASU VS. STATE OF WEST BENGAL reported in AIR 1997 SUPREME Court 610 has held that:-
“Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rules of law. The rights inherent in Articles 21 and 22[1] of the Constitution require to be jealously and scrupulously protected. Court cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs, during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchanism. No civilised nation can permit that to happen. Does a citizen she off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an empahtic “No”. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.”
In the very same decision, the Hon’ble Apex Court had further held that:-
“…Section 330 of Penal Code, directly makes torture during interrogation and investigation punishable under the Indian Penal Code. It is however, inadequate to repair the wrong done to the citizen. Prosecution of the offender is a obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is estblished, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief not by way of damages as in a civil action but by way of compensation under the public law jurisdiction for wrong done, due to breach of public duty by the State of not protection the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience.”
18.The Hon’ble Apex Court in an earlier decision reported in NILABATI BEHERA VS. STATE OF ORISSA reported in 1993 [2] SCC 746 has held that:-
“15…….Convicts, prisoners or under-trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions as are permitted by law, which can be imposed on the enjoyment of the fundamental rights by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody.
The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation as exemplary damages, in proceedings under Article 32 by the Supreme Court or under Article 226 by the High courts, for established infringement of the indefeasible right guaranteed under Article 21 is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the Court moulds the relief by granting ‘compensation’ in proceedings under Article 32 or 226 seeking enforcement or protection of fundamental rights. It does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ‘monetary amends’ under the public law for the wrong done due to breach of public duty of not protecting the fundamental rights of the citizen. The compensation is in the nature of ‘exemplary damages’ awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a Court of competent jurisdiction or/and prosecute the offender under the penal law.”
19.Therefore it is well settled that award of compensation against the State as an appropriate and effective remedy for redress of an established infringement of fundamental right under Article 21 by a public servant and the said award of compensation by the High Court or Supreme Court is a remedy available in public law.
20.In the instant case, the petitioner has filed the petition under section 482 Crl.P.C., and this Court is of the considered view that there is no legal bar for directing the Government to pay compensation in a petition filed under section 482 Cr.P.C. The Hon’ble Apex Court in PEPSI FOODS LTD., AND ANOTHER Vs. SPECIAL JUDICIAL MAGISTRATE AND OTHERS reported in 1998 SCC [CRI.] 1400 has held that:-
“22.It is settled that the High Court can exercise its power of judicial review in criminal matters. In State of Haryana v. Bhajan Lal, this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. While laying down certain guidelines where the Court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
……
The power under section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or section 482 of the Code, it may not always be necessary to invoke the provisions of Article 226…….”
21.Therefore, in view of the above settled principle of law laid down by the Hon’ble Apex Court, this court is also entitled to direct the Government to pay a reasonable compensation to the family of the victim Karuppee in a petition filed under section 482 Cr.P.C.
22.This court is constrained to state that there are overwhelming prima facie materials available on record to indicate that the victim Karuppee has suffered custodial torture and violence at the hands of the police officials. It is pertinent to be noted that even the Tamilnadu State Commission for Women also having found a prima facie case of custodial violence recommended for immediate compensation of Rs.2 lakhs to the family of the victim Karuppee. The learned Additional Public Prosecutor brought to the notice of this court that the Government passed an order of awarding compensation of Rs.1 lakh by order dated 01.03.2006 in ROC.No.C2/13493/2006.
23.It is stated by the learned counsel for the petitioner that amount of Rs.1 lakh is not yet paid to the family of the victim. It is seen that as per the materials available on record that victim Karuppee was working as a servant maid and earning a monthly income and the husband of the victim, one Sonai is making his livelihood as a cobbler and they were running their family with the income earned by both the victim and her husband. The daughter of the victim was already given in marriage with one Sonaimuthu and she is also suffering from poverty.
24.Therefore, this court is of the considered view that the payment of an amount of Rs.2 lakhs in addition to the amount of compensation already ordered by the State government to the tune of Rs.1 lakh to the family of the victim would meet the ends of justice.
25.To sum up, the conclusions of this court are as follows:-
[1]The Additional Director General of Police, CBCID, is directed to nominate a competent police official in the rank of Deputy Superintendent of Police, assisted by a team of police officials to investigate into the matter and the Deputy Superintendent of Police, Paramakudi, who has filed the counter before this Court is hereby directed to collect all the records available in respect of this case and to hand over the same to the officer nominated by the Additional Director General of Police, CBCID, Chennai. The police official who has been nominated by the Additional Director General of Police, CBCID, Chennai shall conduct investigation as expeditiously as possible and to file the final report within a period of six months from the date of receipt of a copy of this order.
[2] All further proceedings pending in S.C.NO.105/2007 on the file of the learned Additional Sessions Judge, Fast Track Court, Ramanathapuram, is hereby stayed pending investigation by the Deputy Superintendent of Police, C.B.C.I.D., Chennai.
[3] The State Government is directed to pay an amount of Rs.3 lakhs including Rs.1 lakh already awarded by the order of the State Government dated 1.03.2006 to the family of the victim. It is further directed that out of Rs.3 lakhs, Rs.2 lakhs should be paid to Sonai, the husband of the victim Karuppee and Rs.1 lakh to Balammal, the daughter of the victim who is the wife of Sonaimuthu, who are residing at Kattuparamakudi Village, Paramakudi Taluk, Ramanathapuram District within a period of four weeks from the date of receipt of a copy of this order.
26.With the above directions, the petition is hereby disposed of.
ap
To
1.The Additional Sessions Judge,
Fast Track Court, Ramanathapuram.
2.The Chief Judicial Magistrate
Paramakudi.
3.The Home Secretary
Secretariat, Fort St.George
Chennai 600 009.
4.The Inspector of Police
Paramakudi Police Station
Ramnad District.
5.The Superintendent of Police
Ramnad District, Ramnathapuram.
6.The Joint Director [South]
Central Bureau of Investigation [CBI]
3rd Floor EVK Sampath Building,
College Road, Nungambakkam,
Chennai 600 006.
7.The Sub Collector
Ramnad District, Ramanathapuram.
8.The Public Prosecutor
High Court,
Madras