Madras High Court
Jeevapriya vs The Home Secretary To Government Of ... on 28 September, 2012
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28/09/2012
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
W.P.(MD).No.8979 of 2007
and
M.P.Nos.1 and 2 of 2007
Jeevapriya ... Petitioner
Vs.
1.The Home Secretary to Government of Tamil Nadu,
Secretariat, Fort St.George,
Chennai.
2.The Director General of Police,
State of Tamil Nadu,
DGP Office, Chennai.
3.The District Collector,
Tiruchirapplli District.
4.The Commissioner of Police,
Tiruchirapplli City,
Mannarpuram, Tiruchirappalli.
5.The Inspector of Police,
Srirengam Police Station,
Srirengam, Tiruchirappalli District.
6.T.Sundaramoorthy,
Inspector of Police,
Airport Police Station,
Airport, Trichy City.
7.Shanmugavel,
Sub Inspector of Police,
CBCID Police Station,
Trichy City.
8.Govindaraj,
Inspector of Police,
Ramanathapuram Police Station,
Ramanathapuram District.
9.Dr.Prabu Kumar, M.B.B.S., D.N.B,
Physician,
Kaveri Medical Centre Hospital (K.M.C),
No.1, K.C.Road,
Tennur, Trichy 17. ... Respondents
PRAYER
Writ Petition is filed under Article 226 of the Constitution of India
for the issue of a Writ of Mandamus directing the respondents to pay a sum of
Rs.10,00,000/- as compensation to the petitioner or any other amount.
!For Petitioner ... Mr.R.Karunanidhi
^For Respondents 1to5 ... Mr.S.Kumar
Additional Government Pleader
For Respondents 6to8 ... Mr.V.Ilanchezian
For Respondent 9 ... Mr.T.Senthilkumar
:ORDER
*********** Petitioner, wife of one Mr.Saravanan, has sought for a Mandamus directing the respondents to pay a sum of Rs.10,00,000/-, as compensation, alleging torture by respondents 6 and 7 herein, which resulted in his death.
2. According to the petitioner, her husband was a Building Contractor and one of the Partners in Anja Builders. One Abhirami, Srirengam, Trichy, was also one of the partners of Anja Builders. One Mr.Sivakumar @ Kumar, Srirangam, Trichy District, Trichy, related to the said Abhirami, Srirengam, Trichy, was found missing from 15.11.2005 onwards. He was subsequently found dead on 18.11.2005, near Manachanallur, Trichy. On the said date, respondents 6 and 7 came to the house of the petitioner and in a forceful manner, took away her husband. According to the petitioner, her husband was kept in illegal custody in connection with the investigation of the death of the aforesaid Mr.Sivakumar @ Kumar, Srirangam, Trichy District, Trichy. On 19.11.2005, a rumour was spread by respondents 6 and 7 that her husband consumed poison. Treatment summary dated 22.11.2005, stating that her husband consumed poison, was also created. A case in Crime No.1026 of 2005, under Section 309 of the Indian Penal Code was registered on the file of Srirengam Police Station, on 19.11.2005, wherein, one Mr.C.Mahendran, S/o.Chinnathambi, was cited as the complainant.
3. Petitioner has further contended that an autopsy was conducted on 23.11.2005 by the Police Surgeon and Professor Doctor A.Karthikeyan, who gave his opinion that the deceased died out of respiratory pathology. The said report does not state anything about poison. Chemical and Analysis Report given by Mr.M.Nawab John, Scientific Assistant Grade I, (SG) of the Assistant Director and Assistant Chemical Examiner of Government Regional Forensic Science Laboratory, Trichy, was not taken note of by the Police Surgeon. According to the petitioner, Chemical and Analysis Report and the Postmortem Certificate issued by the experts falsify the contention of respondents 6 to 9 that her husband died due to consumption of poison.
4.The petitioner also contended that her husband died purely due to the torture meted out by him during illegal custody by the police. Seeking compensation, she has caused legal notice on 25.07.2007. As there was no response from the respondents, left with no other option, petitioner has filed the present Writ Petition for the relief, as stated supra.
5. On the above averments and inviting attention of this Court to the Postmortem Certificate, issued by the Police Surgeon and Professor Doctor A.Karthikeyan, Chemical and Analysis Report and also final report submitted by the Inspector of Police, Srirengam Police Station, Srirengam, Trichy, the fifth respondent in this Writ Petition, Mr.R.Karunanithi, learned counsel for the petitioner submitted that even before the receipt of Chemical and Analysis Report from the Competent Authority, the Police Officer, in order to cover up the issue of illegal custody and torture meted out by her husband, submitted a report on 22.09.2006, to the Tahsildar concerned, dropping further action. According to the learned counsel for the petitioner, even before the receipt of report from the Scientific Assistant Grade I, (SG) of the Assistant Director and Assistant Chemical Examiner of Government Regional Forensic Science Laboratory, Trichy, it should not have been concluded that her husband died due to consumption of poison. It is his contention that everything has been done hurriedly so as to cover up the illegal custody and torture meted out by her husband. According to him, the cause of death was purely torture and hence, for the violation of Article 21 of the Constitution of India, he prayed for appropriate orders.
6. Mr.K.Shanmugavel, S/o.Kumaraiah, who was then working as Sub - Inspector of Police, CBCID Police Station, Tiruchirappali, who has been arrayed in his personal capacity, has filed a detailed counter affidavit, wherein, he has contended that a case in Crime No.1026 of 2005, under caption "Man Missing"
was registered and the police was in search of the individual. Lateron he was reportedly found dead on 18.11.2005 near Manachanallur, Trichy. In this connection, Manachanallur Police registered a case in Crime No.383 of 2005 under Section 174 of the Code of Criminal Procedure. The seventh respondent has denied the averments made in the affidavit filed in support of the Writ Petition alleging that both the Inspector of Police and Sub - Inspector of Police went to the house of the petitioner and took her husband in a forcible manner. He has also denied the illegal detention of the husband of the petitioner. He has further submitted that the deceased - Saravanan, the husband of the petitioner, who consumed poison, was taken to the Government Hospital, Srirengam, by the said C.Mahendran, on 19.11.2005 and was treated by the Duty Doctor. Thereafter, the said C.Mahendran came to Srirengam Police Station and lodged a complaint with the seventh respondent. On the basis of the complaint, a case in Crime No.1026 of 2005 under Section 309 of the Indian Penal code was registered on 19.11.2005 and that a copy of First Information Report was also forwarded to the learned Judicial Magistrate, No.III, Tiruchirappalli.
7. The seventh respondent has further contended that the Duty Doctor, who treated the deceased - Saravanan, in the Accident Register, had noted the symptoms of consumption of poison and also other symptoms of the physical conditions of the deceased - Saravanan. He has further contended that for better treatment, the deceased - Saravanan was referred to the Government General Hospital, Tiruchirappalli. But, instead of taking him to the said Government General Hospital, petitioner had taken her husband to K.M.C.Hospital, Tiruchirappalli, which is a private hospital and admitted him as an inpatient. The seventh respondent has further contended that the deceased - Saravanan died on 22.11.2005 at 19.30 hours. As per the case sheet available in the said K.M.C.Hospital, the deceased had consumed "Ensosalfan Poisoning and Cardiac Respiratory Arrest".
8. He has further submitted that the above allegations have been foisted against the police for the purpose of making a claim for compensation. He has also submitted that after registering a case in Crime No.1026 of 2005, under Section 309 of the Indian Penal Code, he has recorded the statements of C.Mahendran, S/o.Chinnathambi, C.Veeramuthu, S/o.Chinnathambi, M.Velmurugan, S/o.Mahamuni, C.Sellathurai, S/o.Chinnaian, R.Saravanan, S/o.Ramu and none of the witnesses has stated anything about police torture. All the statements recorded from the said persons were also sent to the learned Judicial Magistrate, No.III, Trichirappalli.
9. In addition to the above averments, the seventh respondent has submitted that though the petitioner has alleged that her husband was abducted on 18.11.2005, she has not chosen to send any petition or telegram to the Higher Officials and nearly after lapse of two years, she has caused legal notice on 25.07.2007 containing false accusations. In the counter affidavit, the seventh respondent has also extracted the opinion given by Dr.Karthikeyan the police surgeon.
10. Mr.A.K.Govindaraj, S/o.Kumarasamy, arrayed in his personal capacity, has filed a detailed counter affidavit, contending inter alia that after taking over charge from the sixth respondent, he has joined as Inspector of Police, Ramanathapuram Police Station. According to him, on 22.04.2006, he has recorded the statement of Dr.Karthikeyan and he had also received information regarding delay in receipt of the Chemical and Analysis Report. He was also informed by the doctor that the report would be given only as per seniority. Since the said criminal case registered against the husband of the petitioner was pending for a long time, he sent a report to the Tahsildar/Executive Magistrate to drop further proceedings. According to the Inspector of Police, Srirengam Police Station, the deceased died due to consumption of poison and that the allegations levelled against the Police Officers are liable to be rejected.
11. Dr.M.Prabu Kumar, Physicial, Kaveri Medical Centre Hospital, (K.M.C), No.1, K.C.Road, Tennur, Trichy, who has been impleaded as ninth respondent in this Writ Petition, in his counter affidavit, has stated that the husband of the petitioner was treated at Srirengam Government Hospital, and thereafter, he was referred to for further treatment to K.A.P.Viswanathan, Government Hospital, Trichy, on 19.11.2005. In the slip issued by the Medical Officer, Srirengam, it was categorically mentioned that it was a case of insecticide poisoning. The said Mr.C.Mahendran, co-worker of the husband of the petitioner, brought him to Kaveri Medical Centre Hospital and on 19.11.2005, he was admitted. During admission, it was reported by the petitioner that her husband consumed poison and he was in an unconscious state with generalized tonic-clonic seizures. He had shallow respiration he was intubated and ventilated, for which consent was also obtained from the petitioner. She had also signed the statement on 19.11.2005 in the hospital that her husband consumed poison. On clinical examination of the husband of the petitioner, it was found that he consumed insecticide poisoning and CT Scan of the brain was taken on 19.11.2005, which revealed the old calcified gramulamatious lesion in left posterior region CT Scan was also taken to rule out the other possibilities for generalized tonic- clonic seizures like intracereberal bleeding. Chest X-Ray was taken on 19.11.2005, which revealed that there were no bone injuries and there was no abnormality in lung paranchym. Endotrecheal tube and right internoual jucgular venars cather was put in place. Blood investigation done revealed mild elevation of renal panametre.
12. It is the further case of the ninth respondent that the husband of the petitioner was treated with stomach wash, charocoal and anti-epiloptic, anti- cereberal edema measures, instropes and mechanical ventilatory support. Repeated stomach wash was given to the husband of the petitioner in the hospital for insecticide poisoning. Expert doctors, likeneurophysician, nero surgeon, critical care anesthetist and senior physician also attended him and that they also opined that the line of diagnosis and management were correct. However, in spite of treatment given to him, husband of the petitioner died on 22.11.2005, at 07.30 PM. Thereafter, body of the husband of the petitioner was handed over to conduct postmortem at Government Hospital, Trichy. It is the case of the ninth respondent that he had nothing to state about the illegal detention and torture meted out by her husband. According to him, he was totally an unnecessary party to this writ petition. For the aforesaid reasons, the respondents prayed for the dismissal of the Writ Petition.
13.Heard the learned counsel for the parties and perused the materials available on record.
14.Though the learned counsel for the petitioner submitted that the death was caused by the policemen due to torture meted out to her husband during illegal custody by the police from 15.11.2005 onwards, the date on which Mr.Sivakumar was found missing and subsequently, found dead on 18.11.2005 near Manachanallur, no complaint seemed to have been registered with the police regarding custody and torture. Though reliance was placed on the report of the Inspector of Police submitted to the Tahsildar and post mortem certificate, learned counsel for the petitioner to contend that the Inspector of Police, Trichy and that respondents 6 and 7 have spread false rumors to the effect that the petitioner died due to consumption of poison even before the receipt of the chemical analysis report, the 7th respondent and duty doctor who treated the deceased Saravanan in the private hospital, had categorically noted the symptoms of consumption of poison in the Accident Register. It is also noted noticed that Mr.K. Shanmugavel, was the then Sub Inspector CBCID Police Station, Tiruchirapalli City, has filed counter affidavit to the effect that a case in crime No.1026 of 2005, a case has been registered under the caption 'man missing' and during search, the body of Mr.Sivakumar, was found dead on 18.11.2005, near Manachanallur, Trichy. In this regard, a case in Crime No.383 of 2005 under Section 174 of the Criminal Procedure Code was registered on the file of the Manachanallur Police Station. According to the Sub Inspector of Police, one Mr.C.Mahendran, who had accompanied the husband of the petitioner to the hospital, came to Srirangam Police Station, and lodged a complaint with the police. As per the version of the Doctor Mr.M.Prabu Kumar, the 9th respondent, husband of the petitioner was treated at Srirangam Government Hospital, and thereafter, referred to K.A.P.Viswanathan Government Hospital, Trichy, on 19.11.2005 but he was treated in the private hospital. In the slip issued by the Medical Officer, it has been categorically mentioned that the petitioner's husband had consumed poison and that he was in an unconscious state with generalized tonic-clonic seizures. He had shallow respiration and he was incubated and ventilated. According to the Doctor, the petitioner has admitted her husband on 19.11.2005 in the said hospital and that her husband consumed poison. On clinical examination of the husband of the petitioner, it was found that he had consumed insecticide poisoning and CT Scan of the brain was also taken on 19.11.2005, which revealed the old calcified gramulamatious lesion in left posterior region and CT scan was also taken to rule out the other possibilities for generalized seizures like intracereberal bleeding.
15.The Doctor in the private hospital has also stated that the husband of the petitioner was treated with stomach wash, charocoal and anti-epiloptic, anticerberal edema measures, instropes and mechanical ventilatory support. Expert doctors, like neurophysician, nero surgeon, critical care anesthetist and senior physician also had attended him and that they also opined that the line of diagnosis and management were correct. In spite of the treatment, he died on 22.11.2005 at 7.30 p.m and after conducting post mortem had body has been handed over to the petitioner.
16.The affidavit of Dr.Prabu Kumar, impleaded as as 9th respodnent in this writ petition cannot be ignored. The averments made in the counter affidavit gives a clear picture of the physical condition of the husband of the petitioner and the details of treatment given to the deceased. Though the death has occurred on 22.11.2005, notice has been issued to the respondents on 25.07.2007 after one year and 8 months. Assuming that the husband of the petitioner was taken to the police station and tortured, it would be the normal and immediate reaction of the kith and kin to approach the higher officials seeking for an enquriy. In the case on hand, for nearly one year and 8 months, absolutely no complaint has been made and no material has been filed in the typed set of papers to support the allegations of torture resulting in death.
17.The opinion of Dr.A.Karthikeyan is extracted hereunder:
"1.If an individual consumes poison in appreciable doses, if it is eliminated in natural process, i.e, by vomiting, defecation and urination and effective treatment is offered by way of stomach wash immediately and administration of detoxifying agents. The odour of poison may not be appreciated during autopsy examination. In these circumstances, the detection of toxic substances cannot be expected in visceral analysis. In such cases, the death due to poisoning and its complications could not be ruled out.
2.Again if proper treatment is offered, i.e starting from stomach wash, administration of detoxifying agents and forced diuresis in proper time and if the detoxifying mechanism in the body, i.e the Hepatic system and excretory mechanism, i.e.Renal system are functioning normally the toxic substances will be eliminated from the body. So, the tixic substances may not be detected from the viscera.
3.If the patient is alive for 3 days and if the proper treatment offered in time and if the Hepatic and renal systems are functioning normally the toxic substances will be eliminated from the body. Moreover, the half life period of most of the poison except the heavy metal poison is roughly at about 72 hrs (i.e seventy two hours) 3days.
4.After consumption of poison, if the individual is hospitalized in an unconscious state and if he is immboilized for a long time then the functions of vital systems will be hampered and especially the central nervous system and respiratory system. The disfunctioning of the respiratory system is also a recognized complication of organo-phosporous compound poisoning".
18.After the registration of the Crime No.1026 of 2005 on 19.11.2005 under Section 309 IPC, at the instance of co-employee, the Sub Inspector of Police has recorded the statement of following persons namely,
a)Mahendran, S/o.Chinnathambi, 37, North Gate, Srirangam
b)Veeramuthu, S/o.Chinnathambi, 65, Kaliammankovil Lane, North Gate, Srirangam
c)Velmurugan, S/o.Mahamuni No.22, North Gate, Srirangam
d)Sellathurai, S/o.Chinnaian, Manalmedu, Srirangam
e)Saravanan, S/o.Ramu, 22/6, Railway Station, Srirangam
19.The contention of the Sub inspector of police, 7th respondent herein that all the witnesses examined in Crime No.1026 of 2005 have not stated anything about the police torture and that all statements of witness were sent to the learned Judicial Magistrate, has not been disputed by the petitioner.
20.As rightly contended by the learned counsel for the State that between 2005 and till the date of filing of the present writ petition, the petitioner has not filed any petition against the police officials about the alleged torture and based on mere legal notice dated 25.07.2007 she has filed the present writ petition claiming compensation. To invoke a remedy under Article 226 of the Constitution of India and to claim compensation for the detention or torture, it is incumbent on the claimant to adduce concrete evidence and substantiate the same in the manner known to law.
22.In the light of the above discussion, this Court is not inclined to accept the contention of the petitioner and that she has not made out a case for issuance of mandamus. Hence, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
NB To
1.The Home Secretary to Government of Tamil Nadu, Secretariat, Fort St.George, Chennai.
2.The Director General of Police, State of Tamil Nadu, DGP Office, Chennai.
3.The District Collector, Tiruchirapplli District.
4.The Commissioner of Police, Tiruchirapplli City, Mannarpuram, Tiruchirappalli.
5.The Inspector of Police, Srirengam Police Station, Srirengam, Tiruchirappalli District.