IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 7859 of 2002(I)
1. SHOBHANA, W/O. LATE SASI,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY CHIEF
... Respondent
2. DIRECTOR GENERAL OF POLICE,
3. SUPERINTENDENT OF POLICE,
4. CIRCLE INSPECTOR, PHILIP,
5. SUB INSPECTOR OF POLICE,
For Petitioner :SRI.A.X.VARGHESE
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice A.K.BASHEER
Dated :15/01/2009
O R D E R
A.K. Basheer, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - -
O.P. No. 7859 of 2002
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 15th day of January, 2009
JUDGMENT
Petitioner and her late husband Sasi were arraigned as accused in
crime No.84 of 1991 of Vellathooval Police Station for the offence
punishable under Section 302 read with Section 34 IPC in connection
with the death of one Joy, Son of John whose dead body was found in a
pond near the residence of the petitioner in the morning of June 18,
1991. Petitioner and her husband were arrested in connection with the
above crime and they were in judicial custody for some time. Later,
both of them were released on bail. But ultimately the Police did not
file charge sheet in the above crime since sufficient materials could not
be collected to establish the involvement of the petitioner and her
husband. The case was referred as undetected. In the meanwhile,
petitioner’s husband passed away in the year 1999.
2. This writ petition was filed in March 2002 praying for issue of
a writ in the nature of mandamus directing respondent No.1 to pay a
sum of Rs.10 lakhs to her “by way of public law remedy for continued
illegal incarceration and the continuous dragging of the petitioner and
her deceased husband after implicating in a false case”. There is a
further prayer to issue a direction to respondent No.1 to institute an
enquiry into the above episode of inhuman treatment meted out to the
petitioner and her deceased husband at the instance of the Police
Officers, to fix the responsibility of the culprits and to realise the
amount of compensation to be awarded by respondent No.1 to the
OP.No.7859/02. 2
petitioner from those officers.
3. As mentioned earlier, the dead body of one Joy was found in
a small pool of water or pond (ole) at Koothupara in Idukki District
in the morning of June 18, 1991 near the residence of the petitioner,
who was living with her husband Sasi at the relevant point of time.
Sri.Sasi reported the matter to Vellathoval Police at about 9.15 a.m.
on that day. Initially the Police registered Crime No.84 of 1991 under
the caption “un-natural death”. Later, Section 302 IPC was
incorporated, on the basis of the post mortem report which indicated
that late Joy was dumped in the pond while he was in an unconscious
state.
4. The investigation conducted by the local police did not yield
any result. Therefore the case was transferred to the crime Branch CID
in November 1991. It is on record that petitioner and her husband Sasi
were arrested by the CB CID on November 9, 1992 on the allegation
that in the course of the investigation both of them had confessed to the
crime and that the weapon used for the murder (an axle handle made of
arecanut tree) had been recovered from near their residence under
Section 27 of the Evidence Act. While petitioner was released on bail
in December 1992 itself (about a month after her arrest), petitioner’s
husband was released from judicial custody only in March 1993 and
that too since the Police had failed to file the charge sheet against the
accused.
5. As has been noticed already, this writ petition was filed in
OP.No.7859/02. 3
March 2002 alleging that the Police had brutally assaulted and tortured
petitioner and her husband after taking them into custody for the
purpose of investigation of the above crime. For instance, it is stated by
the petitioner that on June 18, 1991 when the Circle Inspector of Police
attached to Adimali Police Station had visited the scene of occurrence,
he had directed petitioner’s husband to report at the Police Station on
the next day. Accordingly petitioner’s husband had reported before the
Circle Inspector and given a statement. On the next day, the
Superintendent of Police and the Circle Inspector came to petitioner’s
residence and recorded her statement as well as that of her husband.
Petitioner’s husband was again summoned to the Police Station. On
that day, according to the petitioner, her husband was “threatened and
tortured” at the Police station. After about a week the Circle Inspector
had summoned petitioner’s husband once again and allegedly
“tortured him brutally”. Petitioner further proceeds to state that her
husband was thereafter frequently summoned to the Police Station and
was “tortured for the next nine months”. According to the petitioner
“next ten months passed like this”. After ten months, officers
attached to Crime Branch office, Moolamattom summoned the
petitioner and her husband. According to her, both of hem were
brutally attacked at the Police Station and it was only then that she
realised that the attempt of the Crime Branch was to implicate them in
the murder.
6. Petitioner further states that on a day when petitioner’s
OP.No.7859/02. 4
husband was at the Crime Branch office, Moolamattom and was being
tortured brutally, some persons were brought to the Police Station in a
police jeep “who were suspected to be murderers”. But shortly
thereafter, “a group of political leaders of the ruling party forcibly
entered the Crime Branch office and got the “murderers” released.
Thereafter the officers continued to torture petitioner’s husband. But
according to the petitioner, after the above incident, the Officers did
not make any attempt to proceed against the real culprits. On the
contrary, they summoned innocent and helpless locals to the station
and began to torture them. She further alleges that one Arjunan who
was also questioned by the Police in connection with the above crime
had committed suicide.
7. Ultimately, after brutal torture of her husband for five
days, he was released and one month thereafter some officers of the
Crime Branch came to her residence and again took him into custody.
Petitioner alleges that her husband was taken to Vellathooval Police
Station by the Circle Inspector and four Police Constables. They
removed his clothes and tied his hands in the upward position. He was
beaten and kicked on his chest and lower abdomen. He was asked to
lie down on the floor and one Police Constable stepped on his body and
another constable rolled a roller over his legs.
8. It is further alleged that petitioner’s husband began to vomit
blood and when he asked for some water he was given urine and was
made to drink it forcibly. The case of the petitioner is that this
OP.No.7859/02. 5
prolonged inhuman treatment forced her husband to agree to make a
confession that he and his wife (petitioner) had committed the above
crime.
9. Petitioner has further alleged that she was also summoned to
the Crime Branch office at Moolamattom and detained there while her
husband was lying in the other room suffering the acts of torture. It is
further alleged that she was also beaten after tying her hands and
hanging from the ceiling beams in a naked condition. She was
beaten and kicked on her chest and lower abdomen, her hair was pulled
out and she was severely tortured. She was also made to drink urine.
According to her, when she knew that her husband had confessed to
the crime, she also followed suit, as she was on the brink of death.
Her uterus ruptured resulting in severe bleeding.
10. According to the petitioner, on the next day she and her
husband were taken to the office of the Superintendent of Police,
Kottayam and asked to follow the directions of the officers in order to
make recovery of the alleged weapon of the crime. To make a long
story short, the petitioner states that she and her husband ultimately
confessed to the crime before the Police. The weapon was recovered
on the basis of the alleged information furnished by them. They were
arrested and produced before the jurisdictional Magistrate.
11. I have referred to the averments and allegations made by the
petitioner in the writ petition about the alleged acts of torture of not
only the petitioner but also of her husband a little too elaborately, only
OP.No.7859/02. 6
to have a clear picture of what the petitioner and her husband allegedly
suffered at the hands of the Police. As mentioned earlier, petitioner was
released from judicial custody after about a month of her arrest on
December 15, 1992 as is revealed from Ext.P8. Petitioner’s husband
Sri.Sasi was of course in judicial custody for about four months. He
was released only in March 1993.
12. It is true that petitioner has raised a contention that she and
her husband had submitted Ext.P4 representation before the Chief
Minister of Kerala on October 7, 1996 complaining against their false
implication in the above crime. Significantly, there is not even a
whisper in Ext.P4 representation about the alleged brutalities
committed either by the local Police or the Crime Branch against the
petitioner or her husband.
13. Petitioner has also invited my attention to the serialised
reports (Exts.P5 to P7) published in one of the Malayalam newspapers,
which, according to the petitioner had “candidly” reported about the
inhuman torture by the Police inflicted on the petitioner and her
husband.
14. Petitioner has also produced Ext.P9 medical certificate dated
May 3, 2006 allegedly issued by a retired Ayurveda Doctor at
Rajakkad. In the said certificate it is seen stated by the Medical officer
that the petitioner had been under his treatment since November 1993
and that petitioner had informed him of her torture in police custody. It
is further stated that petitioner had injuries on chest and other parts of
OP.No.7859/02. 7
her body. The Medical Officer has further stated that the injuries
referred to above could have been sustained due to police torture.
15. The same Medical Officer had issued Ext.P8 certificate
regarding the treatment allegedly administered to the late husband of
the petitioner since November 1993. According to the Doctor,
petitioner’s husband was suffering from “head ache, chest pain and
blood vomiting”. It is further stated in the certificate that petitioner’s
husband had complained that he was tortured in police custody. It is
further stated by the Doctor that the injuries mentioned above could
have been sustained in the course of police torture. But it is significant
to note that both these certificates are seen issued in 2006.
16. Apart from the documents referred to above, petitioner has
not produced any material to show that either she or her husband had
made any complaint before any authority about the alleged custodial
torture perpetrated by the Police at the Police Station or at the Crime
Branch office at Moolamattom between June 1991 till November 1992.
Going by the nature of the alleged acts of torture as described in the
writ petition, it cannot be assumed that either the petitioner or her
husband would have kept quiet without approaching the Court or other
appropriate authorities for about 9 years. It may also be noticed that
the specific case of the petitioner is that her uterus had been ruptured
resulting in bleeding because of the alleged ill treatment by the Police.
17. It is true that the Police had failed to collect sufficient pieces
of evidence to charge sheet the petitioner and her husband in the above
OP.No.7859/02. 8
crime. The case was ultimately referred as “undetected” in the year
1998. As mentioned earlier, petitioner’s husband passed away in
March 1999. Till his death he had not taken any action against the
erring Police Officers, (some of whom have been named in this
petition), even though it was known prior to his death that Police had
referred the case as undetected.
18. Petitioner has chosen to file this Original Petition after
inordinate and unexplained delay of more than nine years and that too
on the basis of some bald and uncorroborated allegations of torture. In
my view, petitioner cannot be granted any relief in this Original
Petition on the strength of such uncorroborated and unsubstantiated
allegations of torture.
19. Before parting with the case, it has to be mentioned that the
investigation of the above crime was apparently conducted in a very
slipshod and haphazard manner. In the course of hearing the learned
Director General of Prosecution was requested to produce the C.D file
since it was noticed that the officers in charge of investigation had
come to different conclusions as regards sustainability of the charge
against the accused. It is revealed from the files that the Officer who
was initially in charge of the investigation had come to the conclusion
that the petitioner and her husband were involved in the case. But his
successor thought otherwise.
20. As stated earlier, the local Police had registered Crime No.84
of 1991 on June 18, 1991 under the caption “unnatural death”. Shortly
OP.No.7859/02. 9
thereafter, the Police had incorporated Section 302 IPC since the
postmortem report revealed that the victim had suffered 19 ante
mortem injuries on his body and that he was dumped in the pond while
he was in an unconscious condition. The CB CID took over
investigation on November 28, 1991. The Officer in charge of the
investigation came to the conclusion, allegedly on the basis of the
confession statement made by the petitioner and her husband and also
pursuant to the recovery of the weapon allegedly used for the murder,
that petitioner and her husband were involved in the case. It is revealed
from the CD file that on the basis of the factual report submitted by the
Investigating Officer (Sri.Philip Joseph, Detective Inspector), the CB
CID Headquarters by its order dated June 5, 1995 had accorded
sanction to charge sheet the case.
21. But the files further reveal that the Officer who succeeded
Sri.Philip Joseph apparently took the view that his predecessor had not
conducted a proper investigation in the case. This view was tacitly
approved by the superior officers. Therefore further investigation was
conducted in the case ignoring the earlier sanction order issued by the
CB CID Headquarters. Ultimately, the Investigating Agency came to
the conclusion that involvement of the petitioner and her husband in
the crime had not been established and accordingly final report was
submitted by the then Superintendent of Police, CB CID Kottayam on
March 5, 1998 stating that there was no clue as to who was
responsible for the murder of Joy and also that there was no possibility
OP.No.7859/02. 10
of making any break through in the case in the near future. The
Officer therefore requested to treat the case as undetected. The said
report is available in the CD file.
22. Sri.P.G.Thampi. learned Director General of Prosecution,
on the face of the apparent contradictory stand taken by the same
investigating agency in the crime had filed a statement in an attempt to
cover up the embarassment of the entire Police machinery. It was
informed by him that a departmental enquiry had been initiated against
Sri.Philip Joseph. However the delinquent officer was not found guilty
and he was exonerated. The file relating to the enquiry has also been
made available for my perusal. I do not propose to deal with the
contents of either the CD file or the enquiry file at this stage, since in
my view, it may not serve any purpose at this distance of time.
Reference has been made to the above aspects only to highlight the
fact that the grievance projected by the petitioner may not be entirely
baseless.
23. But this Court will not be justified in awarding damages in
exercise of its extra ordinary discretionary jurisdiction under Article
226 of the Constitution of India, since the averments made by the
petitioner are totally bald, sketchy and uncorroborated. It is true that in
appropriate cases this Court can award compensation or damages in
exercise of its extra ordinary jurisdiction under Article 226, if it is
established with the aid of the materials available on record that any
right guaranteed under the Constitution of India had been violated
OP.No.7859/02. 11
resulting in injury. But these are only exceptions. Under normal
circumstances the aggrieved party has to necessarily approach the civil
court especially in cases where no clinching materials are available in
support of the claim. More importantly, in this case, petitioner is
guilty of laches. She had not chosen to approach the court with due
diligence and promptitude that is normally expected in such
situations.
24. The Apex Court in Sube Singh v. State of Haryana & Ors.
(2006) 2 SCC (Cri) 54 had this to say:
“45. Cases where violation of Article
21 involving custodial death or torture is
established or is incontrovertible stand
on a different footing when compared to
cases where such violation is doubtful or
not established. Where there is no
independent evidence of custodial torture
and where there is neither medical
evidence about any injury or disability,
resulting from custodial torture, nor any
mark/scar, it may not be prudent to
accept claims of human rights violation,
by persons having criminal records in a
routine manner for awarding
compensation. That may open the
OP.No.7859/02. 12
floodgates for false claims, either to
mulct money from the State or as to
prevent or thwart further investigation.
The courts should, therefore, while
zealously protecting the fundamental
rights of those who are illegally detained
or subjected to custodial violence, should
also stand guard against false, motivated
and frivolous claims in the interests of
the society and to enable the police to
discharge their duties fearlessly and
effectively. While custodial torture is not
infrequent, it should be borne in mind
that every arrest and detention does not
lead to custodial torture”
(emphasis supplied)
Having carefully perused the entire materials available on record. I am
not persuaded to issue any direction to respondent No.1 to pay
compensation to the petitioner.
The Original Petition fails and it is accordingly dismissed.
A.K. Basheer
an. Judge.