BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23/10/2007 CORAM: THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA and THE HONOURABLE MR.JUSTICE S.PALANIVELU WRIT APPEAL (MD) No.542 of 2007 WRIT APPEAL (MD) Nos.543 of 2007 Siva, S/o.Ramasamy ... Appellant in W.A.542 of 2007 Makudeeswaran, S/o.Shunmugam ... Appellant in W.A.543 of 2007 vs. 1.The State of Tamil Nadu, rep.by its Secretary, Public Department, Fort St.George, Chennai-9. 2.The State of Tamil Nadu, rep.by its Secretary, Department of Health and Family Welfare, Fort St.George, Chennai-9. 3.The Director, Directorate of Medical Services, DMS Campus, Anna Salai, Chennai-600 002. 4.The Chief Medical Officer, District Head Quarters Hospital, Dindigul. 5.The Resident Medical Officer, Govt.Rajaji Hospital, Madurai. 6.The Director General of Police, Chennai. 7.The Superintendent of Police, Dindigul. 8.Inspector of Police, Chathirapatty Police Station, Dindigul District. 9.Sub-Inspector of Police, Ambilikkai Police Station, Dindigul District. ... Respondents in both the W.As. Writ Appeals under Clause 15 of Letters Patent against the order of the learned Single Judge, dated 12.06.2007, made in W.P.(MD)Nos.3455 and 3456 of 2007. !For Appellants ... Mr.T.Lajapathi Roy ^ :JUDGMENT
(Judgment of the Court was delivered by F.M.IBRAHIM KALIFULLA,J)
The appellants are aggrieved against the order of the learned
single Judge, dated 12.06.2007, passed in W.P.(MD)Nos.3455 and 3456 of 2007.
The issue relates to the alleged torture by the concerned police, who have been
arrayed as respondents in the writ petitions, inside the police station between
06.01.2007 and 09.01.2007 in which the appellants are stated to have been
handcuffed and kept under illegal custody. Based on the said allegation, the
appellants prayed for a direction for payment of compensation to an extent of
Rs.2,00,000/- and to prosecute the delinquent police officials on the basis of
fair and impartial investigation apart from necessary disciplinary action
against them for wrongful confinement and torture.
2.According to the appellants, there was a tussle between them
and their neighbour, that in respect of the said occurrence a false case was
registered against them in Crime No.269/2006 under Section 379 IPC on
09.12.2006, that on the same day they were arrested and remanded to judicial
custody. It is stated that they came out on bail on 28.12.2006 and 21.12.2006
respectively, subject to the condition that they should appear before the 9th
respondent daily at 10.00 a.m. It is further stated that when on 24.12.2006 the
appellant in W.A.No.543/2007 went to the Ambilikai Police Station to comply with
the bail condition, there was a demand of bribe and when he refused, he was
tortured. It is further claimed that the illegal action of the concerned police
was reported to the Superintendent of Police, Dindigul, by way of a telegram.
It is further stated that subsequently also there was torture by the officials
of Ambilikai Police Station and that on 07.01.2007 around 9.30 a.m. they
were taken into illegal custody and thereafter taken to Chathirapatty Police
Station, where they were tortured by handcuffing and also by mercilessly beating
them. It is also stated that by tying their hands behind with dhotis they were
kept in hanging position from the roof top while simultaneously they were beaten
up with baton and thereby causing severe injuries.
It is further stated that subsequently, after two days, the police
registered another false case in Crime No.11 of 2007 against them and produced
them before the Judicial Magistrate and thereafter they were remanded to
judicial custody. It is stated that due to torture meted out to them inside the
police station, they suffered grievous injuries, for which they were treated
both in the Government Rajaji Hospital as well as Meenakshi Mission Hospital,
Madurai for more than a month.
3.It is on the above said basis, the appellants came forward
with the writ petitions seeking for the relief of payment of compensation to be
payable by the contesting police officials as well as the State. The learned
Single Judge took the view that the discharge summary of the Meenakshi Mission
Hospital dated 06.02.2007 did not disclose any evidence of serious injury as
claimed by the appellants and that there was no case made out for torture or
wrongful confinement by the police concerned. The learned Single Judge,
therefore, held that no relief as prayed for by the appellants can be granted by
this Court under Article 226 of the Constitution of India.
4.Assailing the order of the learned single Judge,
Mr.T.Lajapathi Roy, learned counsel appearing for the appellants, would
vehemently contend that the medical certificates issued by the Meenakshi Mission
Hospital, on a careful consideration, would disclose the grievous injuries
sustained by the appellants, that the further fact that they were in a position
to sign when they affixed their signature on an earlier occasion before the
Magistrate, while only thumb impression was obtained on a subsequent occasion
before the very same Magistrate, there should have been proper enquiry by the
Magistrate to ascertain as to whether or not the appellants were kept under
wrongful confinement falling under Article 21 of the Constitution of India.
Learned counsel therefore contended that the conduct of the concerned police
officials, coupled along with the medical certificates and the manner in which
the appellants were produced before the Magistrate Court, would sufficiently
establish the allegation of torture alleged against the police officers and
therefore appropriate relief should have been granted in the writ petitions.
5.After hearing the learned counsel for the appellants, we
also perused the relevant provisions contained in PSO 151 of the Tamil Nadu
Police Standing Orders, which specifically provides the procedure in respect of
charges of torture by the police or of death or grievous hurt caused by the
police. A detailed reference to the said PSO 151 discloses that a regulated
procedure has been prescribed for enquiring into such allegations of torture
which results either in death or grievous hurt caused by the police, which can
be enquired into by an officer in the rank of Deputy Superintendent of Police to
whom a complaint of such an offence is made or to approach the Executive
Magistrate in the rank of Revenue Divisional Officer to hold an enquiry as
stated in paragraph 3(a) of the very same PSO. De hors PSO 151, there is every
right to the aggrieved person to approach the concerned Judicial Magistrate by
preferring a private complaint to enquire into the allegation of torture or
other bodily injuries caused inside the police station.
6.Therefore, when such a procedure for redressal of such
allegations has been specifically set out in the Tamil Nadu Police Standing
Orders, where a detailed enquiry can be held in order to ascertain whether or
not the allegation of torture is proved, we are of the view that before
approaching this Court for any direction for payment of compensation, the
appellants should exhaust their remedy by invoking PSO 151 of the Tamil Nadu
Police Standing Orders.
7.In the event of any report forthcoming, either in the
enquiry held by the Revenue Divisional Officer in his capacity as an Executive
Magistrate or in a private complaint to be preferred by the appellants before
the concerned judicial Magistrate, disclosing that the allegation of torture by
the concerned police officials is established, thereafter the appellants can
always seek for appropriate monetary relief in the form of damages or
compensation by approaching the concerned authorities. If, inspite of any such
concrete report having been made by the concerned Executive Magistrate submitted
to the Government through the District Collector or in the Judicial Enquiry held
by a Judicial Magistrate, it turns out that the allegations of torture was made
out and the concerned authorities were not inclined to consider the claim for
payment of compensation, the appellants can always seek for redressal of their
grievance by approaching this Court by invoking the extraordinary jurisdiction
under Article 226 of the Constitution. Therefore, it is highly improper, at
this stage, based on mere averments contained in the affidavit filed in support
of the writ petition or the denial of such averments in the form of counter
affidavit, to reach any definite conclusion as regards the truthfulness or
otherwise of the alleged torture and consequential injuries sustained by the
appellants and based on that granting any relief in the form of payment of
compensation.
8.In fact, though the Deputy Superintendent of Police is
stated to have conducted an enquiry and reported that the allegation of torture
was not established, in the light of the provisions contained in PSO 151, we
make it clear that the appellants can still prefer a complaint in person to the
Executive Magistrate, namely the Revenue Divisional Officer having jurisdiction
over the area, or to such other officer as may be appointed for that purpose; or
prefer a private complaint before the concerned Judicial Magistrate. In either
case, we make it clear that in the event of any such complaint being preferred
by the appellants, the concerned authorities shall hold the enquiry
dispassionately and submit a report concluding the proceedings expeditiously,
preferably within three months from the date of filing of such complaint. In
the event of any report being forwarded by the Executive Magistrate/Revenue
Divisional Officer to the Government through the District Collector, it is open
to the appellants to seek for appropriate relief depending upon the outcome of
the conclusions reported by the concerned Executive Magistrate or on a decision
rendered by the concerned Judicial Magistrate. We also make it clear, in order
to enable the concerned Executive Magistrate/Revenue Divisional Officer or the
Judicial Magistrate, such enquiry shall be held dispassionately and
independently uninfluenced by whatever stated in the report of the Deputy
Superintendent of Police or any of the observations contained in the order of
the learned Single Judge. The appellants are at liberty to work out their other
remedies, after the conclusion of the proceedings under PSO 151, in the manner
known to law. It goes without saying that the appellants are always at liberty
to work out their remedy by invoking the extraordinary jurisdiction of this
Court under Article 226 of the Constitution of India, if the same is warranted.
9.The writ appeals stand disposed of with the above
observations and directions.
gb.
To:
1.The Secretary to Government,
Public Department,
Fort St.George, Chennai-9.
2.The Secretary to Government,
Department of Health and Family Welfare,
Fort St.George, Chennai-9.
3.The Director,
Directorate of Medical Services,
DMS Campus, Anna Salai,
Chennai-600 002.
4.The Chief Medical Officer,
District Head Quarters Hospital,
Dindigul.
5.The Resident Medical Officer,
Govt.Rajaji Hospital, Madurai.
6.The Director General of Police,
Chennai.
7.The Superintendent of Police,
Dindigul.
8.Inspector of Police,
Chathirapatty Police Station,
Dindigul District.
9.Sub-Inspector of Police,
Ambilikkai Police Station,
Dindigul District.