Madras High Court
Mrs.Hasan Ammal vs State Represented By Its Secretary on 1 July, 2011
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01/07/2011
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
Writ Petition (MD).No.8138 of 2008
&
M.P.(MD).No.1 of 2008
Mrs.Hasan Ammal
W/o.Mohammed Masud . . Petitioner
Vs.
1.State Represented by its Secretary
Home Department
Secretariat,
Fort St.George, Chennai.
2.The Director General of Police
Directorate,
Beach Road, Chennai.
3.The Superintendent of Police,
Kanyakumari District.
4.The Superintendent of Police,
C.B.C.I.D., Tirunelveli.
5.Eswaran
Deputy Superintendent of Police
Nagerkoil Town, Nagerkoil
Kanyakumari District.
6.Pratap Singh,
Deputy Superintendent of Police,
District Crime Branch,
Nagarkoil, Kanyakumari District.
7.Chandrapaul
Inspector of Police,
Vadaseri Police Station
Nagerkoil, Kanyakumari District.
8.P.K.Ravi
The Inspector of Police,
Kadayanallur Police Station,
Tirunelveli District.
9.Michael Chandran
Head Constable No.1691
Aralvoimozhi Police Station
Nagerkoil, Kanyakumari District.
10.Baskaran
Head Constable No.1726
Aralvoimozhi Police Station
Nagarkoil, Kanyakumari District.
11.Stephen
Head Constable No.1726
Aralvoimozhi Police Station
Nagerkoil, Kanyakumari District.
12.Muthu
Head Constable No.1568
Aralvoimozhi Police Station
Nagarkoil, Kanyakumari District.
13.Rathinasamy
Head Constable No.542
Aralvoimozhi Police Station,
Nagerkoil, Kanyakumari District. .. Respondents
PRAYER
Writ petition is filed under Article 226 of the Constitution of India to
issue a writ of Mandamus directing the respondent No.1 to provide adequate
compensation to the petitioner.
!For Petitioner ... Mr.T.Lajapathi Roy
^For Respondents ... Mr.D.Muruganandam for R1 to R4
Additional Government Pleader
Mr.C.Emalias for R5, R7, R11 & R12
:ORDER
This writ petition is filed seeking compensation for the death of the husband of the petitioner in the police custody.
2.The facts as averred in the affidavit filed in support of the writ petition are as follows:
The petitioner and her husband Mohammed Masud were the resident of Kadiyanallur, Thenkasi Taluk, Tirunelveli District. The Kadiyanallur police officials took the husband of the petitioner on 28.11.2005 at 04.00 p.m. from his residence. He was handed over by the Kadiyanallur Police to the Aralvoimozhi Police officials. The Kadayanallur Police officials also took in custody her brother and her sisters's husband at 12 O' clock midnight on the same day. Later, they were sent to Aralvoimozhi Police Station. The Inspector of Aralvoimozhi Police Station obtained a statement forcibly by threatening them. The petitioner was not aware of the contents of the statements. On 29.11.2005 at about 9.00 p.m. they were sent back to home. But, they did show the husband of the petitioner. When the petitioner asked about her husband, they informed that they would send him back safely. But her husband did not reach home after he was taken by the Kadayanallur Police at 4.00 p.m. on 28.11.2005.
3.Since there was no response from the police officials about the whereabouts of her husband, the petitioner filed H.C.P.(MD).No.223 of 2006 before this Court seeking for a direction for production of her husband. Based on the submission made by the Public Prosecutor that a man missing case was registered in Cr.No.391 of 2006 on the file of the Kadayanallur Police Station relating to the husband of the petitioner, the HCP was disposed of on 09.08.2006 with a direction to the Inspector of Police, Kadayanallur Police Station to trace the husband of the petitioner and to proceed with the investigation in accordance with law as expeditiously as possible. That was the fate for about 9 months after he was taken in custody on 28.11.2005 at 4.00 p.m. from the residence of the petitioner.
4.In view of the representation made by the petitioner to higher officials about the illegal custody of the husband of the petitioner and nothing fruitful came out from the investigation in Cr.No.391 of 2006, the Director General of Police, Chennai transferred the case in Cr.No.391 of 2006 to CBCID for investigation. There was a breakthrough in the investigation conducted by the CBCID. They enquired lot of witnesses and they filed a report before the Court of Judicial Magistrate, Thenkasi seeking alteration of First Information Report in Cr.No.391 of 2006 from man missing to one under Sections 342, 344, 193, 218 302, 506(ii), 201 IPC r/w. 34 IPC.
5.The First Information Report was altered from man missing to one of murder. Thereafter, no further progress took place. Hence, the petitioner filed Crl.O.P.(MD).No.12376 of 2007 before this Court to transfer the investigation from CBCID to CBI. This Court disposed the said criminal original petition on 12.12.2007 by directing the Revenue Divisional Officer, Padmanabhapuram, Kanyakumari to conduct an enquiry and submit a report before this Court on 02.01.2008. Accordingly, the Revenue Divisional Officer conducted enquiry and gave a report dated 12.03.2008 finding that 11 police officials belonging to different police stations involved in illegal detention, wrongful confinement and beating of the husband of the petitioner. The Revenue Divisional Officer also found that the police personnel were responsible for illegal detention and torture meted out to the husband of the petitioner. He also found that he was missing and whereabouts of the individual was not known. The District Collector of Kanyakumari agreed with the findings of the Revenue Divisional Officer and recommended the Government to take appropriate action against the police officials involved in the matter.
6.While so, the petitioner filed the present writ petition praying for issuance of Writ of Mandamus directing the respondents 1 to 4 to provide adequate compensation to her as her husband died in the custody of the respondent police officials and he was tortured to death.
7.The third respondent filed counter affidavit admitting that the petitioner was taken in custody by Kadayanallur Police Station on 28.11.2005 and was handed over to Aralvoimozhi Police Station to enquire him in a case in Cr.No.482 of 2005 on the file of Aralvoizmozhi Police Station registered under Sections 395, 497 and 427 of IPC. It is stated that in the meantime, the husband of the petitioner was missing and therefore a case in Cr.No.391 of 2006 was registered on the file of Kadayanallur Police Station on 25.07.2006. The investigation in Cr.No.391 of 2006 was transferred to CBCID as per the orders of the Director General of Police, Chennai. Pursuant to the investigation made by the Deputy Superintendent of Police, CBCID, Tirunelveli, man missing case in Cr.No.391 of 2006 was altered to one under Sections 342, 344, 193, 218, 302, 506(ii) and 201 r/w 34 IPC. It is also stated that when the 13th respondent filed Crl.O.P.No.11684 of 2007 before this Court seeking transfer of investigation in Crime No.391 of 2006 of Kadayanalloor Police Station, from CBCID to CBI, this Court on 26.11.2007 directed the Revenue Divisional Officer, Padmanabhapuram to conduct an enquiry under the PSO 151 and submit a report. The Revenue Divisional Officer submitted a report dated 12.03.2008 to the Collector and also to this Court. The said report was forwarded to the Government with remarks of the District Collector. It is stated that they are waiting for appropriate orders from the Government based on the report of the Revenue Divisional Officer and the recommendations of the Collector. In these circumstances, Since the matter is pending with the Government, they were not able to state the present stage of the matter. They sought for dismissal of the writ petition.
8.The fifth respondent filed a counter affidavit stating that the Revenue Divisional Officer, Padmanabhapuram gave a report dated 12.03.2008 holding that there was no police torture on Mohamed Masood, the husband of the petitioner and the Government issued G.O.Ms.No.1322, Public Law and Order(E) department, dated 27.11.2008 based on the report of the Revenue Divisional Officer, wherein no action was recommended against the respondents, who are police officials arrayed as parties in this case.
9.From the materials on record, it is seen that based on the report of the Revenue Divisional Officer, Padmanabhapuram, and the recommendations of the District Collector, Kanyakumari District, the Government issued G.O.Ms.No.1322 Public Law and Order (E) Department, dated 27.11.2008, wherein it is stated that 11 police officials mentioned therein are responsible for beating, illegal detention and wrongful confinement of the husband of the petitioner. It is also stated that the Revenue Divisional Officer found that the police personnels were responsible for the illegal detention and torture meted out to the husband of the petitioner and the District Collector, Kanyakumari agreed with the findings of the Revenue Divisional Officer, and recommended appropriate action against the 11 police personnel mentioned in the Government Order. It is stated that the Government have decided to take both Criminal and departmental action against the 11 police personnel mentioned in the Government Order for illegal detention, wrongful confinement and torture meted out to the husband of the petitioner. It is also noted in the Government Order that the husband of the petitioner was taken by the Kadayanallur Police on 28.11.2005 and handed over to Aralvaimozhi Police station and thereafter, whereabouts of the husband of the petitioner are not known.
10.Heard both sides.
11.The following facts emerge from the counter affidavit of the third respondent and G.O.Ms.No.1322 Public law and Order (E) Department, dated 27.11.2008:-
i)A case in Cr.No.482 of 2005 was registered on 27.11.2005 on the file of Aralvaimozhi Police station for the offences under Sections 395, 397 and 427 IPC based on a complaint presented by one P.R.Krishnamoorthy of Virudhunagar regarding a dacoity of Rs.3,96,000/- and a cell phone worth Rs.3,000/- stated to have been committed by five persons at 12.00 O' Clock midnight on 27.11.2005 on the National Highway at Thovalaiputhoor, Thovalai, Kanyakumari District.
ii)The investigation in Cr.No.482 of 2005 revealed that the above noted 5 culprits are the associates of Mohamed Masood, the husband of the petitioner.
iii)The husband of the petitioner was arrested by one Thiru Garudakone, Special Sub Inspector and Thiru Shanmugaperumal HC 1252 of Kadayanallur Police Station at Kadayanallur on 28.11.2005 and he was handed over to Lakshmanaraj, Inspector of Police, Aralvaimozhi Police Station on the same day i.e. 28.11.2005.
iv)The husband of the petitioner was brought to Keeriparai Police station along with other accused persons for interrogation in Cr.No.482 of 2005 of Aralvaimozhi Police Station.
v)It is stated in G.O.Ms.No.1322, Public Law and Order (E) Department, dated 27.11.2005 that the arrest of the husband of the petitioner by Kadayanallur Police officials and Aralvaimozhi police officials has been proved beyond doubt.
vi)As per the G.O., the husband of the petitioner was brought to Keeriparai Police Station has also been proved beyond doubt.
vii)The husband of the petitioner was kept in illegal custody in Keeripari Police Station from 28.11.2005 to 30.11.2005 midnight and he was tortured by the police under the guise of interrogation and thereupon, he was missing and whereabouts of him is not known. This is categorically stated in G.O.Ms.No.1322, Public Law and Order-E Department, dated 27.11.2005.
viii)The petitioner complained that her husband did not return home after he was taken in custody by the police officials on 28.11.2005. She moved HCP No.223 of 2006 before this Court. The said HCP was disposed of on 09.08.2006. When it was stated before this Court that on 25.07.2006, a man missing case relating to the husband of the petitioner was registered in Cr.No.391 of 2006 on the file of the Kadayanallur Police station, this Court directed the Inspector of Police, Kadayanallur to trace the husband of the petitioner and proceed with the investigation in accordance with law as expeditiously as possible.
ix)While the husband of the petitioner was taken by Kadayanallur Police officials on 28.11.2005 and handed over to the Aralvaimozhi police officials on the same day, the Kadayanallur Police registered a case after 8 months that the petitioner's husband was missing in Cr.No.391 of 2006.
x)Since there was no progress in the investigation in Cr.No.391 of 2006, the petitioner made representations to the higher officials and the Director General of Police, Chennai transferred the investigation of the case case in Cr.No.391 of 2006 to CBCID.
xi)In the CBCID report, it is stated that 9 police personnel tortured and beat the husband of the petitioner with hands and lathis to get information by using force with third degree method that caused his death on 30.11.2005 at 11.00 p.m. the dead body was disposed in order to escape from the offence of murder.
xii)The CBCID report sought to alter the man missing case in Cr.No.391 of 2006 into one under Sections 342, 344, 193, 218, 302, 506(ii), 201 IPC r/w 34 IPC. Since it is most relevant, the concluding portion of the CBCID report is extracted hereunder:-
"It is further submitted that Mohammed Masood, Krishnamoorthy, Kalyani @ Kalyana Sundaram were brought on the night of 28.11.2005 to Keeriparai P.S. and wrongfully confined at Keeriparai P.S. upto 30.11.2005 and enquired by T.Eswaran, D.S.P. Nagercoil Town 2.T.R.Pratap Singh D.S.P. District Crime Branch, Nagercoil 3.Tr.Chandra Paul, Inspector of Police, Vadaseri P.S. 4. Tr.Micheal Chandran H.C.1691 5. Tr.Baskaran H.C.1863 6.Tr.Stephen H.C.1762
7.Tr.Muthur, H.C.1568 and 8. Tr.Rathinasamy HC 452, in connection with the investigation of the case in Aralvoimozhy P.S. Cr.No.482 of 2005 U/s. 395, 397, 427 IPC. The above mentioned Police personnel tortured and beat with hands and lathies on Masood of Kadayanallur to get information by using force with third degree method which caused his death on 30.11.2005 at about 23.00 hrs. The dead body of Masood was disposed of in order to escape from the offence of murder.
xiii)Though on investigation, the CBCID came to the conclusion that the husband of the petitioner was done to death by the police by using 3rd degree method on 30.11.2005 at 11.00 p.m. and the body was disposed in order to escape the offence of murder, no further progress was made in the investigation relating to the murder of the husband of the petitioner. Hence, the petitioner filed Crl.O.P.No.12376 of 2007 before this Court for transfer of investigation from CBCID to CBI. This Court passed an order on 12.12.2007 directing the Revenue Divisional Officer, Padmanabhapuram to enquire into the matter and give a report on 02.01.2008.
xiv)The Revenue Divisional Officer, Padmanabhapuram gave a report dated 12.03.2008 after examining many persons and conducting enquiry. In the report he found that 11 police personnel involved in the illegal detention, beating and torture of the husband of the petitioner. The Revenue Divisional Officer also found that it was proved beyond doubt that the husband of the petitioner was taken custody by Kadayanallur Police and later by Aralvaimozhi Police, his whereabouts were not known thereafter. The District collector, Kanayakumar agreed with the findings of the Revenue Divisional Officer and recommended for taking appropriate action against those persons by the Government.
xv)Based on the report dated 12.03.2008 of the Revenue Divisional Officer and the recommendations of the District Collector, the Government issued G.O.Ms.No.1322, Public Law and Order-E department, dated 27.11.2008, wherein it is stated that the Government have proceeded to launch both criminal and departmental action against the police personnel mentioned in the Government Order for the torture and illegal custody of the husband of the petitioner. It is also mentioned that the petitioner's husband was missing and his whereabouts are not known, after he was kept in illegal custody in the Aralvaimozhi Police Station and in Keeriparai Police Station from 28.11.2005 to 30.11.2005.
Paragraphs 2, to 6 of the aforesaid G.O.Ms.No.1322, Public (Law and Order-E) Department, dated 27.11.2008 are extracted hereunder.
"2. The Revenue Divisional Officer, Padmanabapuram in his report has concluded the followings;
a. Thiru Mohammed Masood was arrested by one Thiru.Garudakone, Special Sub Inspector and Thiru Shanmugaperumal HC 1252 on 28.11.2005 at 2.30 hrs at Kadayanallur and he as handed over to the Kanniyakumari police team on 28.11.2005 at 7.30 p.m. and was finally handed over to Thiru Lakshmanaraj, Inspector of Police, Aralvoimozhy Police Station on 28.11.2005 at 11.00 p.m. Hence, the arrest of Thiru.Mohammed Masood by the Kadayanallur and Aralvoimozhy police has been proved beyond doubt.
b.Thiru.Mohammed Masood was brought to the Keeriparai Police Station along with other accused persons for interrogation in connection with Cr.No.482/2005 of Aralvoimozhy Police Station and was kept in illegal custody in Keeriparai Police Station from 28.11.2005 to 30.11.2005 midnight and he was tortured by the police under the guise of interrogation and thereupon he was missing and whereabouts of the individual is still not known. The Revenue Divisional Officer has, therefore, concluded that the police personnel were responsible for the illegal detention and torture meted out to Thiru Mohammed Masood. The Collector of Kanyakumari has agreed with the findings of the Revenue Divisional Officer and recommended appropriate action against the following police officials involved in the matter.
Sl.No. Name of the delinquent police personnel Presently working place Offences committed by the erred police personnel
1. Mr.Retnasamy, HC, 542 S/o.Thanga Nadar, previously working as HC Aralvaimozhi P.S. Now working as HC Central Room, Nagercoil
2. Mr.Baskaran,HC 1836 Central Crime Branch, Nagercoil. Now working in Central Crime Station, Nagercoil.
3. Mr.Paramasivam, HC 1042 Kottar Central P.S. Now working in Central Crime Station,Nagercoil
4. Mr.Michael Chandran, HC 1691 Kottar P.S. Now working as HC Kottar Police Station
5. Mr.Muthu, HC 1568 Boothapandi P.S. Now working as HC Boothapandi PS.
6. Mr.Stephan, HC, 1726 Vadaseri P.S. Now working in Traffic Investigation Wing, Nagercoil Beaten Mohammed Masood
7. Mr.Sathiyaraj, S.I. Rajakamangalam P.S. Sub Inspector Rajakamangalam Police Station
8. Mr.Madasamy, S.I. Retired Sub-Inspector, Economic Offences
9. Mr.Murugan IP Pudur P.S. Inspector of Police, Pudur Police Station Beaten Mohammed Masood
10. Mr.Lakshmanaraj, IP Retired Seevalaperi P.S. Inspector of Police, Seevalaperi Police Station Illegal detention wrongful confinement. Beaten Mohammed Masood and misappropriated Rs.15,000/-
11. Mr.Pratap Singh, DSP Madurai, District Crime Archives ADSP Manimutharu Battalian, (now under suspension) Illegal detention. Beaten Mohammed Masood.
3. The Government, after careful examination of the enquiry report of Revenue Divisional Officer, Padmanabhapuram along with the recommendation of the Collector, Kaniyakumari District have decided to launch both criminal and departmental action against the above mentioned police personnel as mentioned in para 2 above.
4. Accordingly, in pursuance of the decision in para 3 above, the Collector of Kanniyakumari District is directed to take necessary action to file a criminal complaint before the competent Court of jurisdiction against the above mentioned police personnel immediately. Similarly the Director General of Police is also directed to initiate departmental action against the above mentioned police personnel immediately.
5. While taking departmental action against the above Police personnel, the instructions issued in Government letter Ms.No.1118/Per.N/87 Personnel and Administrative Reforms Department, Dated 22.12.1987 should be followed scrupulously. The disciplinary proceedings should be completed within the time limit prescribed.
6. The Collector of Kanniyakumari District and the Director General of Police should intimate the result of the criminal /departmental action respectively to Government in due course. The District Collector, Kanniyakumari is also requested to send a copy of the enquiry report to the Director General of Police, Chennai for pursuing departmental action."
xvi)A charge sheet was also filed by CBCID in PRC No.58 of 2009 before the Judicial Magistrate, Thenkasi against 12 persons, who are the respondents 5 to 13 and four more persons namely Durai Lakshmana Raj, M.Sathiaraj, S.Murugan and P.Madasamy, who are police officials.
12.The aforesaid narration of facts makes it very clear that the husband of the petitioner was arrested by the Kadayanallur Police on 28.11.2005 and he was handed over to Aralvaimozhi Police Station on the same day. Thereafter, he was tortured by the Aralvaimozhi police. Thereafter, he was taken to Keeriparai Police Station, where he was kept in illegal custody from 28.11.2005 to 30.11.2005 and he was tortured under the guise of interrogation and the third degree method was used.
13.As stated above, the CBCID came to the conclusion that the husband of the petitioner was tortured, beaten with hands and lathies to get information by using force with 3rd degree method that caused the death of the husband of the petitioner on 30.11.2005 at 11.00 p.m. and the dead body was disposed to escape from the offence of murder. On the completion of investigation, CBCID also filed chargesheet in PRC No.58 of 2009 before the learned Judicial Magistrate, Thenkasi under Sections 342, 344, 193, 218, 32, 506(ii), 201 IPC r/w 34 IPC against 12 persons including respondents 5 to 13 and other police personnels namely Durai Lakshmana Raj, M.Sathiaraj, S.Murugan and P.Madasamy.
14.The records also make it clear that the Revenue Divisional Officer has found that the husband of the petitioner was tortured and kept in illegal custody in Keeriparai Police Station from 28.11.2005 to 30.11.2005 and thereafter, his whereabouts are not known. The said finding of the Revenue Divisional Officer was accepted by the District Collector, Kanyakumari and he recommended for taking appropriate action to the Government. The Government accepted the recommendations of the Collector and agreed with the findings of the Revenue Divisional officer and issued order in G.O.Ms.No.1322, Public Law and Order-E Department, dated 27.11.2008. The Government have decided to take both criminal and departmental action against the police personnel mentioned in the G.O..
15.It is true that when the counter affidavit was filed by the third respondent, the Government did not issue the aforesaid Government Order in G.O.Ms.No.1322.
16.In view of the aforesaid materials, I am of the considered view that the petitioner is entitled to compensation, particularly when the investigation by CBCID revealed that the husband of the petitioner was done to death on 30.11.2005. When the husband of the petitioner was taken in custody on 28.11.2005, a man missing case was registered on 25.07.2006 after 9 months and thereafter, the CBCID unraveled the truth only on 12.02.2007 after 2 years that the husband of the petitioner was done to death. The Government also issued a Government Order in G.O.Ms.No.1322, Public (Law & Order-E), Department, dated 27.11.2008 stating that there was torture and illegal detention of the husband of the petitioner by Keeriparai Police Station from 28.11.2005 to 30.11.2005 and the husband of the petitioner was arrested by the Kadayanallur Police on 28.11.2005 and handed over to Aralvaimozhi Police Station on 28.11.2005. In these circumstances, I have no hesitation to hold that human rights and fundamental rights of the husband of the petitioner was grossly violated. The police kept the husband of the petitioner in illegal custody. While he was in custody, his whereabouts are not known and therefore it could be presumed that he died in the custody of the police as per the decision of the Hon'ble Apex Court decision reported in (1984) 1 SCC 339 (SEBASTIAN M.HONGRAY V. UNION OF INDIA). The relevant passage from the said judgment is extracted hereunder:-
"28.In reaching the conclusion that the respondents have failed to discharge the burden heavily lying on them to affirmatively establish, once having admitted taking them to army camp on March 10, 1982 that C. Daniel and C. Paul left Phungrei camp on March 11, 1982 around 10 a.m., we have completely overlooked and not taken into consideration the affidavits of Mrs Thingkhuila, wife of Shri C. Daniel and Mrs Vangamla, wife of Shri C. Paul that they had seen C. Daniel and C. Paul being led away by army personnel on March 15, 1982, as contended by Mr Bhagat.
29. Once we unerringly reach the conclusion that C. Daniel and C. Paul were taken to Phungrei camp by officers and jawans of 21st Sikh Regiment on March 10, 1982 and they never left the army camp as canvassed on behalf of the respondents on March 11, 1982, it is obligatory upon the respondents to produce C. Daniel and C. Paul and to explain their whereabouts, more so because respondents claim the power to arrest and question anyone under the provisions of Armed Forces (Special Powers) Act, 1958.
30.We may now examine some technical contentions raised on behalf of the respondents.
31.Mr Bhagat for the respondents contended that once the respondents have adopted a position that C. Daniel and C. Paul had come to the army camp at the request of the army authority, but they left that place on their own in company of their friends, a writ of habeas corpus cannot be issued, and the respondents cannot be called upon to file a return to the writ. When a petition for a writ of habeas corpus under Article 32 of the Constitution is moved before the Court, ordinarily the Court would not issue ex parte a writ of habeas corpus unless the urgency of the situation so demands or issuing of a notice of motion was likely to result in defeat of justice. Further the Court will be reluctant to issue a writ of habeas corpus ex parte where the fact of detention may be controverted and it may become necessary to investigate the facts. The normal practice is that when a petition for a writ of habeas corpus is moved, the Court would direct a notice to be served upon the respondents with a view to affording the respondents to file evidence in reply. If the facts alleged in the petition are controverted by the respondents appearing in response to the notice by filing its evidence, the Court would proceed to investigate the facts to determine whether there is substance in the petition for a writ of habeas corpus. (See Halsbury's Laws of England, Fourth Edition, Vol. II, para 1482.) If on investigation of facts, the Court rejects the contention of the respondent and is satisfied that the respondent was responsible for unauthorised and illegal detention of the person or persons in respect of whom the writ is sought, the Court would issue a writ of habeas corpus which would make it obligatory for the respondents to file a return. It is in this sense that in Thomas John Barnardo v. Mary Ford1, the House of Lords held that even if upon a notice of motion, it is contended by the person against whom the writ is sought that the person alleged to be in the custody of the respondents has long since left the custody, a writ can be issued and return insisted upon. A few facts of that case will render some assistance in ascertaining the ratio of the case. One Harry Gossage was put at the instance of a clergyman in an institute comprising homes for destitute children and of which appellant Thomas John Barnardo was the founder and director. Mother of Harry Gossage desired that her son Harry Gossage be transferred to St. Vincent's Home, Harrow Road, a Catholic home and a request to that effect was made to the appellant. After some correspondence was exchanged between the parties, a petition was moved in the Queen's Bench Division, whereupon a summons was served upon the appellant to attend the Court to show cause why a writ of habeas corpus commanding him to produce the body of the said Harry Gossage should not be issued. The appellant filed several affidavits inter alia contending that the boy Harry Gossage, was adopted by one Mr Norton of Canada on November 16, 1888 long before the respondent mother conveyed a desire to transfer the boy to the Catholic home. It was further contended on behalf of the appellant that Harry Gossage was not with him since November 16, 1888 when he transferred him into the care of Mr Norton and at the time of the service of the summons, he was not in his custody or power. In a proceeding before Mathew, J. after cross-examination of the appellant the learned Judge refused to order the writ to be issued. In the mean time, the case in Reg.v. Barnardo Tye was decided by the Court of Appeal in which it was laid down that it was not an excuse for non-compliance with a writ that the defendant had parted with the custody of the child to another person if he had done so wrongfully, and accordingly a fresh application was made for a writ of habeas corpus. After hearing the arguments, the Judges of the Queen's Bench Division made absolute the order for the issue of the writ. The appellant approached the House of Lords. It is in this context that the Court held that the respondent was entitled to a return of the writ. To some extent, the position before us is identical, if not wholly similar. When the petition in the present case was moved before this Court, rule nisi was issued calling upon the respondents to submit their version about the detention of C. Daniel and C. Paul. The Respondents 1, 2 and 4 in their various affidavits adopted a positive stand that C. Daniel and C. Paul were taken by the army jawans on March 10, 1982, though not under arrest, to the army camp for the purpose of identifying Rashing and that they spent the night at the army camp and that they left the army camp on March 11, 1982 in company of H.L. Machihan and C. Shangnam. The petitioner and those filing affidavits in support including H.L. Machihan, C. Shangnam and Smt Thingkhuila, wife of C. Daniel and Smt Vangamla, wife of Shri C. Paul denied that C. Daniel and C. Paul left army camp on March 11, 1982 and returned to the village, therefore an issue squarely arose to ascertain whether the positive stand of the respondents was borne out by the facts alleged and proof offered. The burden obviously was on the respondents to make good the defence. Now that the facts are clearly established which led to the rejection of the contention of the respondents that C. Daniel and C. Paul ever left the army camp on March 11, 1982 around 10 a.m., the necessary corollary being that they were last seen alive under the surveillance, control and command of the army authority at Phungrei camp, it would be necessary not only to issue a writ of habeas corpus thereby calling upon the Respondents 1, 2 and 4 to file the return. In this context, it may be pointed out that the petitioner has prayed for issuing of a writ of habeas corpus directing the respondents to produce C. Daniel, retired Naib Subedar of Manipur Rifles and Headmaster of the Junior High School of Huining village and C. Paul, Assistant Pastor of Huining Baptist Church, the writ must be issued and the petition must succeed to that extent.
32.It may be mentioned that the Manipur State Authorities Respondent 3 had received numerous complaints about the behaviour of the army personnel. The search in village Huining was taken by the jawans of 21st Sikh Regiment on March 6, 1982. On March 7, 1982, Mr Joshi had to visit the village when he received complaints of torture and ill-treatment of village inhabitants at the hands of the personnel of the security forces. Thereafter certain enquiries were made by the Chief Secretary, Manipur State which we have already dealt with. In the course of hearing, a request was made by Mr Vaidyanathan, learned counsel for the petitioner and at a later date by Miss Haksar that the Manipur State Government be called upon to produce: (i) Report of the Superintendent of Police, (ii) Report of the Deputy Commissioner and (iii) Statement of Yangya Anei Tangkhul alias Maluganai Tangkhul. A copy of the third document is already produced. As far as reports mentioned at (i) and (ii), privilege was claimed on behalf of E. Kunjeshwar Singh, Secretary (Home), Manipur. In the affidavit claiming privilege, it is stated that the aforementioned two reports dated April 28, 1982 and May 31, 1982 were with regard to the incident that occurred on March 10, 1982. Before adjudicating upon the claim of privilege, we called upon Mr V.C. Mahajan, learned counsel for the State of Manipur to produce the reports for our perusal. We read the reports. We are not inclined to examine the question of privilege for the obvious reason that these reports are hardly helpful in any manner in the disposal of this petition, and further the three relevant documents, namely, the telex message sent by the Deputy Commissioner to Superintendent of Police, the report made by the Superintendent of Police to the Deputy Commissioner and the short report submitted by the Deputy Commissioner to the Chief Secretary, Manipur State have been disclosed in the proceedings. Therefore, we do not propose merely to add to the length of the judgment by examining the question of the privilege claimed in respect of the two reports' first dated April 28, 1982 by the Superintendent of Police and another dated May 31, 1982 by the Deputy Commissioner.
33. Accordingly, this petition is allowed and we direct that a writ of habeas corpus be issued to the Respondents 1, 2 and 4 commanding them to produce C. Daniel, retired Naik Subedar of Manipur Rifles and Headmaster of the Junior High School of Huining village and C. Paul, Assistant Pastor of Huining Baptist Church, who were taken to Phungrei camp by the jawans of 21st Sikh Regiment on March 10, 1982 before this Court on December 12, 1983 and file the return."
17.In view of the enormous materials available before this Court to come to a conclusion that husband of the petitioner was kept in illegal custody and he was tortured and that his whereabouts are not known while he was in illegal custody under the police, the first respondent Government is liable to pay compensation to the petitioner. As stated above, the police department have filed a charge sheet alleging that the police personnels have killed the husband of the petitioner on 30.11.2005 and disposed his body to escape from the offence of murder. The said fact was dealt in detail. Hence, it is a fit case, wherein the first respondent is bound to pay compensation to the petitioner for the death of her husband for the gross violation of human rights committed against the husband of the petitioner.
18.The petitioner has sought adequate compensation. To arrive at just compensation, it has to be ascertained, the age of the victim at the time when he was taken to custody by the police i.e. 28.11.2005. The learned counsel for the petitioner has produced the Identity Card issued by the Election Commission of India. As per the same, he was aged about 25 years as on 01.01.1995.
19.In the affidavit filed in support of the writ petition, the petitioner has stated that her husband age is 30 on the date of filing of the writ petition. Further in the first information report registered in Cr.No.391 of 2006 relating to man missing, on the file of Kadayanallur Police Station, the age of the husband of the petitioner was shown as 30 in the year 2006. Therefore, the age of the husband of the petitioner as on 01.01.1995 is taken as 25 years. As on 28.11.2005, the date of which he was taken illegal custody by police the age of the husband of the petitioner was 35 years. It is stated that he is involved in real estate business. Prior to his involvement in the real estate business, it is stated that he was doing chit fund. But, there is no concrete evidence about his earnings. Therefore Rs.3000/- could be taken as the monthly income of the husband of the petitioner after deducting 1/3rd towards his personal expenses as per the decision reported in 2007(1) TNMAC 1 (SC) (NEW INDIA ASSURANCE CO. LTD. V. SMT.KALPANA & ORS (SC). At the time of death, the husband of the petitioner left behind him the petitioner, one male child and one female child aged 4 and 6 years respectively, as his legal-heirs. In the case reported in 2010 WLR 851 (T.SEKARAN V. THE STATE OF TAMIL NADU & ORS) compensation was ordered using multiplier method to arrive just compensation.
20.The annual loss due to the death of the victim was Rs.36,000/- The age of the victim was 35 years. Therefore, the proper multiplier as per the II schedule of the Motor Vehicles Act, is 16. Therefore, the loss of income is Rs.36,000 X 16 = Rs.5,76,000/-. In addition to that I am inclined to award Rs.10,000/- towards loss of consortium. Therefore, the compensation comes to Rs.5,86,000/- payable to the petitioner by the first respondent for the death caused by the police officials of the first respondent.
21.The multiplier method that is adopted in the Motor Accident Claims table, is herein used to arrive at just compensation. In the motor accident cases, there was no torture and illegal detention. Apart from causing the death, the husband of the petitioner was tortured by beating with hands and lathies and third degree method was used. It is admitted by the Government and the Agency of the Government that the husband of the petitioner was kept in illegal custody. There is a gross violation of human rights and the fundamental rights of the husband of the petitioner for which the petitioner is entitled to compensation from the first respondent, besides the compensation for causing death of her husband. In this regard it is useful to extract the paragraphs 22 and 54 of the decision reported in (1997) 1 SCC 416 (D.K.BASU V. STATE OF W.B) "22.Custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We 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 shed 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 emphatic "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.
54.Thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit."
22.In view of the above, I am of the view that the petitioner is also entitled to compensation of Rs.2,00,000/- (Rupees Two Lakhs Only) besides the compensation that is arrived at by using the multiplier method. Hence, I am of the view that for custodial torture and for using 3rd degree method and for illegal detention, the petitioner is entitled Rs.2,00,000/- as compensation in addition to the compensation arrived at by using multiplier method.
23.The petitioner sought interim compensation in M.P.No.1 of 2008 in W.P.(MD).No.8138 of 2008. The learned Additional Government Pleader stated that interim compensation of Rs.1,00,000/- was granted by the Government. However, he was not able to produce the order granting interim compensation. Recording the same the interim application M.P.(MD).No.1 of 2008 was closed.
24.It is stated by the learned counsel for the petitioner that till date the petitioner has not paid any compensation. The learned counsel for the petitioner states that so far the amount has not been disbursed to the petitioner. In these circumstances, I am of the view that the petitioner has to be paid a sum of Rs.7,86,000/- as compensation and if Rs.1,00,000/- is not paid to the petitioner and if Rs.1,00,000/- is paid in the meantime, the same could be deducted and a sum of Rs.6,86,000/- has to be paid as compensation to the petitioner. It is also directed that the first respondent should pay interest at the rate of 6% from 23.11.2009, the date on which the CBCID filed the report before the Judicial Magistrate, Thenkasi to the effect that the husband of the petitioner was murdered on 30.11.2005 at 11 p.m. at Keeriparai Police Station by using of force with 3rd degree method and his body was disposed to escape from the offence of murder.
25.In the result, the petitioner has to be paid a sum of Rs.7,86,000/- as compensation in toto by the first respondent if Rs.1,00,000/- is not paid to the petitioner and if Rs.1,00,000/- is paid in the meantime, the same could be deducted and a sum of Rs.6,86,000/- has to be given as compensation to the petitioner by the first respondent. It is also directed that the first respondent should pay interest at the rate of 6% from 23.11.2009, the date on which the CBCID filed the report before the Judicial Magistrate, Thenkasi to the effect that the husband of the petitioner was murdered on 30.11.2005 at 11 p.m. at Keeriparai Police Station by using of force with 3rd degree method and his body was disposed to escape from the offence of murder. The first respondent is directed to pay the amount as ordered, within a period of 8 weeks from the date of receipt of a copy of this order. The writ petition is disposed of in the above terms. No costs. Consequently, connected miscellaneous petition is closed.
jikr/TK To
1.The Secretary Government of Tamil Nadu Home Department, Secretariat, Fort St.George, Chennai.
2.The Director General of Police Directorate, Beach Road, Chennai.
3.The Superintendent of Police, Kanyakumari District.
4.The Superintendent of Police, C.B.C.I.D., Tirunelveli.