Madras High Court
Mrs.S.Pramila vs The Director General Of Police on 1 March, 2011
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/03/2011 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.(MD)No.5876 of 2010 Mrs.S.Pramila ... Petitioner Vs. 1.The Director General of Police, Office of the DGP, Mylapore, Chennai-600 004. 2.The State of Tamil Nadu represented by its Secretary to Government, Fort St. George, Chennai-600 009. 3.The District Collector, Thanjavur. 4.The Superintendent of Police, Thanjavur. ... Respondents Prayer Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus, forbearing the respondents from committing encounter of the petitioner's husband Senu Chidambaram @ Kutti, against false case registered by the fourth respondent's police jurisdiction. !For Petitioner ... Mr.S.Chandrasekaran ^For Respondents ... Mr.S.Shanmugavel Additional Government Pleader ******** :ORDER
****** INTRODUCTORY:
Alleging that the police officials have taken a decision to kill her husband in a fake encounter, the petitioner filed this Writ Petition for appropriate directions to the police.
BACKGROUND FACTS:
2. The petitioner is the wife of Senu Chidambaram @ Kutti, a resident of Paliyur in the District of Thanjavur. Her husband was involved in various crimes registered before the police stations in the district of Thanjavur. However, he changed his behaviour subsequent to the marriage. He was a candidate for election to the Local Panchayat Union. The Office Bearer of ruling party turned against him and he was instrumental in registering false cases against her husband. The cases were registered with an evil intention that her husband should not come up in life.
3. The Thanjavur East Police registered a case in Crime No.744 of 2009 on 16.12.2009. Another case was registered by the Ammapet Police in Crime No.97 of 2010. The husband of the petitioner (hereinafter referred to as "accused") was not in the State during the time of commission of the alleged offences.
4. The police officials very frequently searched the residence of the petitioner to arrest her husband. Therefore, the petitioner submitted representations before the Hon'ble Chief Minister, narrating the events. In the meantime, the petitioner was informed that her husband would be killed in a fake encounter. Therefore, the petitioner was constrained to file the Writ Petition.
5. The Superintendent of Police, Thanjavur, in his counter-
affidavit, contended that several cases were registered against the accused. He was earlier detained under Tamil Nadu Act 14 of 1982, as per order dated 11.11.2002 on the file of the District Collector, Thanjavur. The accused failed to appear before the learned Chief Judicial Magistrate, Thanjavur in S.C.No.46 of 2008. Therefore, non-bailable warrant was issued by the Court. It was only to execute the said non-bailable warrant, the police searched the premises of the petitioner. Accordingly, the Superintendent of Police justified the action taken by the police to arrest the accused.
6. I have heard the learned counsel for the parties.
DISCUSSION:
7. At first blush, the prayer sought for by the petitioner would appear to be too strange. The petitioner wanted this Court to issue a Mandamus or appropriate directions to restrain the respondents from killing her husband in fake encounter.
8. The Media reports regarding the alleged extra-judicial killings by the police appears to have prompted the petitioner to file this Writ Petition. Therefore, the petitioner cannot be blamed for filing a Writ Petition with a very strange prayer.
9. The recent incidents relating to the death of accused in police custody prompted me to consider the issue in a larger perspective.
10. The death in police custody have assumed alarming proportions in recent times. Such incidents were defended on the ground that the attempt made by the prisoner to snatch the rifle and the act of attacking the police officials made them to open fire. The bona fides of such contentions are matters to be decided by the Courts in appropriate proceedings.
11. When the protectors of law themselves indulge in breaking the law, it would be a death knell to the civilized society and the very democracy would be at peril.
12. There are upright men and officers in our police force. The illegal and inhuman conduct of a microscopic minority gives bad name to the entire disciplined force.
13. The police force requires a sea change in their mind set. They should not be under the impression that they are above the law. The law is supreme. Law Enforcing Machinery should not become a law unto themselves.
14. The attempt of the police must be to enforce rule of law. The police powers should be used to maintain law and order and to reduce crime rate. The police have no licence to kill the civilians.
15. The issue regarding police torture during custody came up before the Supreme Court on several occasions. The Supreme Court strongly disapproved and rather deprecated the practice of police killing innocent persons while in custody.
THE CASE LAW:
16. The Supreme Court in Gauri Shanker Sharma v. State of U.P. [AIR 1990 SC 709] observed that resort to third degree methods by police officers resulting in death of person in police custody is an offence of a serious nature and the punishment awarded to the concerned police officers should be deterrent. The observation reads thus:
"14................................................................... The High Court should have realised that cases are not unknown where police officer have given inaccurate accounts to secure a conviction or to help out a colleague from a tight situation of his creation. The High Court should also have realised that it is generally difficult in cases of deaths in police custody to secure evidence against the policemen responsible for resorting to third degree methods since they are in charge of police station records which they do not find difficult to manipulate as in this case. It is only in a few cases, such as the present one, that some direct evidence is available.......................
15.......................
16.................................................... Death in police custody must be seriously viewed for otherwise we will help take a stride in the direction of police raj. It must be curbed with a heavy hand. The punishment should be such as would deter others from indulging in such behaviour. There can be no room for leniency..........................."
17. In Bhagwan Singh v. State of Punjab [1992(3) SCC 249], the Supreme Court deprecated the third degree treatment to arrested person by police. The Supreme Court said:
"7. .................................. It may be a legitimate right of any police officer to interrogate or arrest any suspect on some credible material but it is needless to say that such an arrest must be in accordance with the law and the interrogation does not mean inflicting injuries. It should be in its true sense and purposeful namely to make the investigation effective. Torturing a person and using third degree methods are of medieval nature and they are barbaric and contrary to law. The police would be accomplishing behind their closed doors precisely what the demands of our legal order forbid. In Dagdu v. State of Maharashtra this Court observed as under: (SCC p.92, para 88) "......... The police, with their wide powers, are apt to overstep their zeal to detect crimes and are tempted to use the strong arm against those who happen to fall under their secluded jurisdiction. That tendency and that temptation must in the larger interest of justice be nipped in the bud."
8. It is a pity that some of the police officers, as it has happened in this case, have not shed such methods even in the modern age. They must adopt some scientific methods than resorting to physical torture. If the custodians of law themselves indulge in committing crimes then no member of the society is safe and secure. If police officers who have to provide security and protection to the citizens indulge in such methods they are creating a sense of insecurity in the minds of the citizens. It is more heinous than a game-keeper becoming a poacher."
18. In Nilabati Behera v. State of Orissa [AIR 1993 SC 1960], the issue before the Supreme Court was regarding the claim for award of compensation on account of custodial death. In His concurring judgment, His Lordship Mr.Justice A.S.Anand (as His Lordship then was) considered the police powers and the liability of the State to compensate the victim. The relevant observation reads thus:
"30. It is axiomatic that convicts, prisoners or under-trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State, to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under-trials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is "not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law..............................."
19. The Supreme Court in D.K.Basu v. State of W.B. [1997(1) SCC 416] clearly observed that the custodial violence infringes Article 21 as well as basic human rights and strikes a blow at rule of law. The Supreme Court issued as many as 11 directions to the police to protect the right guaranteed under Article 21 of the Constitution of India and to ensure fair investigation.
20. While issuing the directions, the Supreme Court in D.K.Basu's case indicated that the precious right guaranteed under Articles 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. The observation reads thus:
"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 of 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 card 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."
21. The Supreme Court in Dalbir Singh v. State of U.P. [2009(11) SCC 376], after referring the earlier judgments relating to violation of Article 21 of the Constitution of India at the instance of police, observed that the torture in custody flouts the basic rights of citizens recognized by the Indian Constitution and is an affront to human dignity.
22. Article 21 of the Constitution of India guarantees life and personal liberty. The said valuable right can be deprived only in accordance with the procedure established by law. The extra-judicial killings by the police cannot be termed as a procedure permitted by law. The right to life is a basic human right, besides a constitutional right. Therefore, a Writ Petition of this nature will lie to forbear the police from depriving the life and liberty of the person by way of fake encounter.
CONCLUDING REMARKS:
23. The petitioner apprehends a fake encounter involving her husband. There is nothing to suggest mala fides in filing the Writ Petition. It is not possible to accuse the police also, as there was no complaint of police torture by the accused on earlier occasions. The Superintendent of Police, Thanjavur, in his affidavit, indicated that non-bailable warrant has already been issued by the learned Chief Judicial Magistrate in S.C.No.46 of 2008. Therefore, it is for the learned Chief Judicial Magistrate to ensure that nothing happens to the accused as apprehended by the petitioner.
24. In the light of all these points, I have no doubt that there is a substantial and very strong ground made out by the petitioner to issue directions to the concerned Magistrate and police to ensure the life and personal liberty of the accused, guaranteed by Article 21 of the Constitution of India.
DIRECTIONS:
(A) (1) It is open to the accused to surrender before the learned Chief Judicial Magistrate, Thanjavur in S.C.No.46 of 2008.
(2) In case the police makes a request for custody in any of the cases pending against the accused, the learned Magistrate must impose appropriate conditions to ensure the life of the accused. (3) The learned Magistrate must obtain an affidavit from the police officer seeking custody, undertaking to produce the accused in the very same condition, in which he was taken from judicial custody. (4) The police officer must declare before the learned Magistrate the names, designation and roll number of the police men and officers, who accompany the accused during custody and in transit. It would be the personal responsibility of those men and officers to produce the accused back for judicial custody.
(5) Before giving custody, the accused should be subjected to medical examination. Similarly, after the police custody, accused should be produced before the medical officer and the medical report should be produced before the learned Magistrate.
(6) The learned Magistrate should consider the option to permit the counsel for the accused to accompany the accused during police custody.
(7) It is open to the learned Magistrate to impose any other reasonable conditions to ensure that no bodily injury or death is caused to the accused while in police custody.
(B) (1) In addition to the above directions, the police must scrupulously follow the eleven directions issued by the Supreme Court in D.K.Basu v. State of W.B. [1997(1) SCC 416]. The directions read thus:
(i) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(ii) That the police officer carrying out the arrest of arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(iii) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(iv) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(v) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(vi) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(vii) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(viii) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(ix) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(x) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(xi) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
25. The Director General of Police and the Superintendent of Police, Thanjavur are directed to issue appropriate directions to the concerned Police not to resort to any kind of acts against the accused in violation of the universal declaration of human rights and the directions issued by the Supreme Court in D.K.Basu v. State of W.B. [1997(1) SCC 416].
CONCLUDING REMARKS:
26. The above directions were issued only with a view to protect the basic human rights. The judgments referred to above show the deep concern of the Supreme Court in matters relating to custodial violence and the clear message to those who indulge in such inhuman and barbaric acts.
27. It is appropriate to quote the following observation of the Supreme Court in State of M.P. v. Shyamsunder Trivedi [1995(4) SCC 262]:
"17.......................................... Police excesses and the maltreatment of detainees/undertrial prisoners of suspects tarnishes the image of any civilised nation and encourages the men in 'Khaki' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading towards perishing. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may lose faith in the judiciary itself, which will be a sad day."
28. The Writ Petition is disposed of with the above directions. No costs.
SML To
1.The Director General of Police, Office of the DGP, Mylapore, Chennai-600 004.
2.The Secretary to Government, Fort St. George, Chennai-600 009.
3.The District Collector, Thanjavur.
4.The Superintendent of Police, Thanjavur.