IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.4.2010
CORAM:
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.No.17837 of 2008
Prabavathy .. Petitioner
Vs.
1. The State of Tamil Nadu
rep. by its Secretary to Government
Home Department, Secretariat
Chennai 600 009.
2. The Inspector of Police
Edamalaipattiputhur Police Station
Trichy District.
3. The Superintendent
Central Prison, Trichy. .. Respondents
Prayer: Petition under Article 226 of the Constitution of India for issue of writ of Mandamus to direct the respondents to pay compensation of Rs.5 Lakhs to the petitioner for the death in judicial custody of the petitioner's husband E.Nanjappan.
For Petitioner : Mr.J.Saravana Vel
For Respondents : Mr.R.Neelakandan
Government Advocate
ORDER
The petitioner has filed the present writ petition seeking for a direction to the respondents to pay compensation of Rs.5 Lakhs to the petitioner for the death of her husband E.Nanjappan in the judicial custody.
2. When the matter came up on 25.7.2008, this Court directed the learned Additional Government Pleader to take notice and subsequently, when the matter came up on 24.10.2008, this Court directed production of the case files in Crime Nos.12 of 2008, 903 of 2007 and 1316 of 2007 as well as the post mortem report conducted on the body of the petitioner’s husband and the report of the Revenue Divisional Officer, Trichy. Thereafter, after several adjournments, the documents directed to be produced were furnished to this Court.
3.1. The case of the petitioner was that her husband was a retired Fire Officer hailing from Krishnagiri District. On 4.1.2008, the second respondent arrested him on suspicion and he was taken to the police station along with motorcycle. On 4.1.2008 and 5.1.2008 her husband was illegally detained by the said police and was badly beaten by one Ambigabathy, Deputy Superintendent of Police (Vigilance) as well as other police personnel. The arrest of her husband was not intimated to anyone. On 6.1.2008, a FIR was registered in Crime No.12 of 2008 in the second respondent Police Station and he was also remanded to judicial custody by the learned Judicial Magistrate II, Trichy at 8 p.m.
3.2. On 12.1.2008, her husband’s health condition became serious and he was admitted to the Government General Hospital at Trichy. The sickness arose out of the brutal assault by the police personnel who beat him up with lathis by tying his hands behind. His chest as well as his hands were badly injured and blood clots were seen all over the body. On 19.1.2008, as his condition worsened, he was transferred to General Hospital at Thanjavur but was not given proper treatment and because of that he died on 22.1.2008 at around 2.30 a.m.
3.3. A FIR in Crime No.73 of 2008 was also registered on the file of the Tanjavur Medical College Hospital Police Station, Thanjavur. Even after the death of the petitioner’s husband, she and her relatives were harassed by the police as well as revenue department officials. An enquiry by the Revenue Divisional Officer was ordered under Police Standing Order 145. The petitioner was kept ignorant about the outcome of the enquiry conducted by the Revenue Divisional Officer. In fact, when his health condition got worsened, on 17.1.2008, the Dean of the Trichy General Hospital recorded her husband’s statement and informed the Trichy Town Police Station (B7) and one Inspector Jayaraman also recorded statement from her husband.
3.4. At the time of the arrest of the petitioner’s husband, he was in possession of one motorcycle (“Bullet” Make), 5 sovereign gold ring with letters “EN” embossed, gold plated wrist watch, silver bracelet, cellphone Nokia Model and cash of Rs.3,750/- and these articles were not returned. Therefore, it was asserted that the death of the petitioner’s husband in judicial custody was due to the assault in the second respondent Police Station lead by a group headed by Ambigapathy, Deputy Superintendent of Police (Vigilance). The post mortem report discloses the nature of injuries sustained by her husband to such assault. It is also stated that at the time of the arrest of her husband and subsequent remand by the learned Judicial Magistrate II, Trichy, the guidelines laid down in D.K.Basu v. State of West Bengal, [1997] 1 SCC 416 were not followed and therefore, the prayer was made as set out above.
4. On notice from this Court, the second respondent filed a counter affidavit dated 10.9.2008 and subsequently, on behalf of the first respondent, a counter affidavit dated 10.11.2008 was filed.
5.1. In the counter affidavit filed by the first respondent/State, it was claimed that the petitioner’s husband visited one Murugan Stores in his motorcycle posing himself as a Labour Officer. The owner of the Shop Sermandurai suspecting that the petitioner’s husband was a bogus person informed the shoe keeper on the opposite side to inform the Labour Office about the same. It was only when the petitioner’s husband made an attempt to escape in his motorcycle, the said Sermandurai and others caught hold of him and handed him over to the second respondent police station along with the motorcycle.
5.2. On the complaint made by Sermandurai, a criminal case was registered in Crime No.12 of 2008 on the file of Edamalaipattiputhur Police Station at 1145 hours on 6.1.2008. The Inspector of Police seized the bullet motorcycle with fake registration plate, fake identity card and cash of Rs.200/- from the person of the petitioner’s husband and the same was filled up in Form-95 and he was produced before the learned Judicial Magistrate II, Trichy on the same day along with a report under Section 173 of Code of Criminal Procedure seeking for his remand. The learned Magistrate recorded that the accused was produced before him at 7.45 p.m. and no complaint was made against the police and hence, he was remanded till 18.1.2008. Thereafter, the petitioner’s husband was remanded in Central Prison, Trichy on the same day at 9.15 p.m.
5.3. In terms of Rule 205 of the Tamil Nadu Prison Manual Volume-II, the Medical Officer attached to the prison examined the weight, age and state of health of the prisoner and in paragraph [4] of the counter affidavit it was averred as follows:
“4. …. Accordingly, the prisoner was examined physically at the time of admission and contusion was present in both hands. The Admission Officer recorded the same in the Admission Register and got signature of the escort Police along with Government Hospital O.P.Sheet No.207/2008, dated 06.01.2008.”
5.4. Thereafter, the petitioner’s husband, remand prisoner No.140, complained of chest pain and on the recommendation of the Medical Officer, he was admitted to the Headquarters Hospital at Trichy on 12.1.2008. For further treatment he was produced before the Thanjavur Government Medical College Hospital on 19.1.2008 and despite continuous treatment from 19.1.2008 to 22.1.2008, he died on 22.1.2008. The death message was given to the petitioner through phonogram. An inquest was held on the orders of the third respondent/Superintendent, Central Prison by the Revenue Divisional Officer, Thanjavur. The other allegations about harassment, etc. were rejected.
5.5. A team of doctors belonging to Thanjavur Medical College, who conducted post mortem, gave a certificate dated 23.1.2008 to the effect that there were no fresh injuries over the body both externally and internally and at the time of examination, there was no evidence of contusion. In the certificate they had said the death was due to natural cause.
5.6. It is stated that the Revenue Divisional Officer, Thanjavur in the presence of the petitioner and her son on 22.1.2008 recorded statements and there was no illegality committed by any officer. The Revenue Divisional Officer, Thanjavur in his report stated that since the petitioner did not appear before him, on the basis of the statement given by the Jail Department, Medical Department and individuals, it was found that the death of petitioner’s husband was due to natural cause and there was no excess committed by the police and there is no atrocity by the police department and the allegations levelled against Ambigabathy, Deputy Superintendent of Police (Vigilance) as well as the medical officers are baseless. It was further stated that the Magisterial enquiry report by the Revenue Divisional Officer, Trichy under Police Standing Order 151 was still under examination by the Government.
5.7. It was also noted that by G.O.Ms.No.153, Public (Law and Order-B) Department, dated 31.1.1998, a financial relief of Rs.1 Lakh could be sanctioned in respect of the following:
” 1. (a) Death in Caste/Communal clashes
(b) Death due to Police torture
(c) Death due to Police firing
(d) Rape by Police.
2. Permanent incapacitation.”
but since it is the case of the respondents that the death was due to natural cause, it was stated that the family members of the deceased are not entitled to any exgratia payment.
6. The counter affidavit filed by the second respondent was also on the similar lines.
7.1. The petitioner has filed a reply affidavit dated 26.9.2009. In the reply it is claimed that the stories set up by the second respondent and accepted by the first respondent in the counter affidavit are far from what was reported in the newspaper dated 23.1.2008. Though the learned Magistrate recorded that there was no complaint by the prisoner, the Jail Medical Officer has found that there was contusion in both the hands and it was the earliest record available and there was no explanation for the same in the subsequent enquiry also. There was no explanation about the appropriating the properties of the petitioner’s husband, including the gold jewellery, watch, cellphone and cash, by the police officers without recording the same in Form-95.
7.2. It is also found from the accident register that the petitioner’s husband had suffered injuries due to assault on 5.1.2008 at 1.00 p.m. by one person with wooden stick. It is also claimed that the petitioner’s husband never had history of any heart ailment. It is stated that the report by the Revenue Divisional Officer whitewashing the police torture was not reliable and one sided.
7.3. It is further claimed that the petitioner’s husband was kept in custody from 4.1.2008 till 6.1.2008 illegally and contrary to D.K.Basu case directives and also contrary to the directives issued by the National Human Rights Commission dated 11.2.1999. It is stated that the details of the prisoners were not recorded at the time of entry into the jail in the prescribed proforma and only because of torture in the lock-up her husband passed away.
8. Subsequent to the report sent by the Revenue Divisional Officer, Trichy, the Government, by a communication dated 20.1.2009, has informed the District Collector, Thanjavur that since the death of the petitioner’s husband was due to natural cause and there was no police excess as per the report, the Government has decided to give up further action on this matter.
9. Mr.J.Saravana Vel, learned counsel for the petitioner also produced a family ration card to show that the petitioner’s husband was residing at V.S.K.Nagar, Palacode Road and it was impossible for him to have driven the motorcycle to Trichy. The newspaper report as found in Dinakaran Tamil daily dated 23.1.2008 was also produced to show that the sons of Late Nanjappan refused to receive the body and stated that there must be a post mortem done on his body.
10. In the light of the above facts, the only question to be decided was whether the petitioner’s request for payment of compensation can be countenanced by this Court?
11. The history sheet of the petitioner’s husband maintained by the hospital at Trichy showed against the medical history that he had chest pain and history of blunt injuries on the chest one week before. The said document was dated 13.1.2008 viz., one week before the date on which the petitioner’s husband was arrested. Even the accident register showed that he has been assaulted.
12. Mr.J.Saravana Vel, learned counsel for the petitioner placed reliance upon a judgment of the Division Bench of this Court in A.Mahaboob Batcha v. Government of Tamil Nadu, [2006] 4 MLJ 242. He relied upon the following passage found in paragraph [9]:
“9. The officials of the Government, act in the name of and for and on behalf of the State. It is but just that the State is made liable for their acts and defaults. It is no answer to say that aggrieved person can proceed against the officials concerned, that is neither a practical nor efficacious remedy. The official does not act in his individual capacity but as an agent or representative of the State. Where the officials abuse their powers and act with gross negligence resulting in deprivation of right and liberty of the citizens, the State becomes liable for compensation. This Court can intervene in the prison administration when constitutional right or statutory prescriptions are transgressed to the injury of the prisoner. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority within the four walls of a prison, the victim being totally helpless. The protection of an individual from torture and abuse by the police officials is a matter of deep concern in a free society. The prisoners are still persons entitled to all constitutional rights unless their liberty has been constitutionally curtailed by the procedures that satisfy the requirements of due process. The custodial torture is held in naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality.”
13. He also referred to another Division Bench judgment in Union Territory of Pondicherry and others v. M.Latchumanan and another, [2007] 4 MLJ 274 with reference to the burden of proof on such accusation and the following passage found in paragraph [12] is as follows:
“12. The contention regarding alternative remedy of approaching the civil court does not merit acceptance at least in this case. It has been repeatedly held by the Courts that the burden of disproving custodial violence is on the police, if it is established that the injuries were sustained while in the custody of the police, that is, in this case, it is true that the petitioner sustained injuries while in custody. For all the various reasons stated, the attitude of the police in furnishing contradictory and conflicting statements of facts, is sufficient to hold that no useful purpose would be served in driving the victim to the civil court.”
14. The counsel also relies upon the judgment of the Division Bench in State of Tamil Nadu v. Pulliammal, 2008 WLR 254. The following passage found in paragraph [16] is as follows:
“16. Taking into account all the above said aspects including the attempt made by the police to show that the deceased Pancharaju was hale enough to be produced in the Court of the Judicial Magistrate, Periyakulam for remand extension on 23.10.1996 which could not be true for the reasons stated supra, this Court comes to the conclusion that the learned Single Judge has correctly held that the death was due to custodial violence and that concerted efforts were made by the jail authorities and police to project the death as a natural death due to pulmonary tuberculosis. There is no substance in the challenge made by the appellants to the above said finding of the learned Single Judge and we are of the considered view that the finding of the learned Single Judge regarding cause of death cannot be held infirm or defective warranting any interference by us in this writ appeal.”
15. The counsel also relied upon the judgment of the Division Bench in The Chairman, Bar Council of Tamil Nadu v. The State of Tamil Nadu and others, 2008 WLR 773. In paragraph [15], it was held as follows:
“15. We have no doubt in our mind that this is a fitting case where the action of the police officials in causing brutal attacks on the lawyers, shall be met with directives for payment of compensation by resort to public law remedy. The State Government itself will have to bear vicarious liability for the action of the police officials. The writ petition is therefore allowed and we direct the respondents to pay a compensation of Rs.40,000/-(each Rs.10,000/- for the benefit of four advocates M/s Ignatius, Pounkumar, Mark and Velusamy. We part with the case with a hope that such types of incidents no longer occur and we shall have no occasion to enter upon such painful instances of conflict between lawyers and police as it has been happening. Between hope and reality there is always a hiatus. In hope we fix our life’s expectation; in reality, we meet out expectations fulfilled or unfulfilled. Lawyers and police are sufficiently responsible to recognize each other’s worth as partners in realising orderly conduct of the society within the bounds of rule of law.”
16. In the lights of these precedents, it must be noted that the petitioner is eligible for compensation on account of the torture meted out to her husband and the subsequent death of her husband. This Court is of the view that the petitioner has made out a strong case regarding the illegal arrest of her husband and the subsequent torture in the police lock-up before the admission to Central Prison. Moreover, the petitioner’s husband was arrested without following the guidelines laid down in D.K.Basu case. The certificate given by the Jail Medical Officer holding that his hands were having contusion was not explained in the subsequent post mortem, perhaps because of the delay in doing the post mortem and lapse of sufficient number of days from the date of injury till the death. Apart from the above, the accident register and the history sheet in the hospital also show that there was an allegation that the petitioner’s husband was assaulted by the police and was injured by some stick. A cumulative effect of these factors would show that the petitioner’s husband has suffered injuries and though the final post mortem certificate shows that it was a natural death, but even for the illegal detention and torture in the lock-up, the petitioner is entitled to compensation.
In the light of the above, the writ petition stands allowed and the first respondent is directed to pay Rs.5 Lakhs to the petitioner within a period of eight weeks from the date of receipt of a copy of this order. Since the Government subsequent to the report of the Revenue Divisional Officer had decided not to take further action by the communication referred to above, this Court is not directing the recovery of the amount from the officers who were incharge of torturing the petitioner’s husband, which ultimately resulted in his death. No costs. Consequently, M.P.No.1 of 2008 is closed.
sasi
To:
1. The Secretary to Government
State of Tamil Nadu
Home Department, Secretariat
Chennai 600 009.
2. The Inspector of Police
Edamalaipattiputhur Police Station
Trichy District.
3. The Superintendent
Central Prison,
Trichy