Madras High Court
V. Lingasamy, S/O. Vairavan vs The Secretary To Government, Home ... on 31 December, 2004
Equivalent citations: 2005(1)CTC639
Author: P.K. Misra
Bench: P.K. Misra, F.M. Ibrahim Kalifulla
ORDER P.K. Misra, J.
1. Heard Mr. A. Rahul, learned counsel appearing for the petitioner and Mr. K. Chellapandian, Additional Public Prosecutor, appearing for Respondents 1 to 4.
2. This petition has been filed by the brother of a life convict, namely Balusamy, who was confined in Central Prison, Tiruchirappalli, at the relevant time.
The petitioner has prayed for providing adequate medical treatment to his brother by admitting him in the Government Hospital and to provide interview facilities for his family members and his advocate, etc. He has further prayed to prosecute the fourth respondent and other prison officers responsible for torturing and ill-treating petitioner's brother. He has also prayed for granting adequate compensation.
3. So far as the prayer relating to adequate medical treatment is concerned, it is now apparent that in the meantime, the brother of the petitioner has received treatment and has become normal. So far as the prayer to provide interview facilities to his family members is concerned, it now transpires that the brother of the petitioner has been transferred to Central Prison at Madurai and interview facilities are stated to have been restored. It is, therefore, not necessary for us to consider these aspects and we confine our attention to the latter prayers of the petitioner regarding prosecution of the persons responsible for torturing and also payment of adequate compensation.
4. Admittedly, the brother of the petitioner is a life convict. He was undergoing sentence in Palayamkottai Jail. Thereafter, he was transferred to Central Prison at Tiruchirappalli. It is alleged in the petition that the petitioner received a message that his brother was assaulted by the Jailor, namely, the present fourth respondent and had sustained grievous head injuries. It is further alleged that the petitioner and his friend had gone to Central Prison, Tiruchirappalli and had applied for permission to have interview with his brother on 7.10.2004, but he was refused such permission and even the Advocate was also similarly refused permission. It is further stated that on 8.10.2004, the petitioner sent a detailed telegram to the respondents and other authorities. After receipt of such telegram, it appears that an Advocate, at the request of the District Legal Services Authority, visited the prison and has submitted a report, dated 15.10.2004. In such report, the Advocate has reported that the prisoner was assaulted on 5.10.2004 and has sustained serious injuries and was recovering from such injuries on the date of visit, namely 15.10.2004. In the above report, it is indicated that he had seen injuries all over the body of the prisoner and the Advocate, in his report, recommended for transfer of the prisoner to some other Jail in view of the strained relationship. As already noticed, in the meantime, the prisoner has been shifted to Central Jail at Madurai.
5. In the counter filed by the third respondent in the form of report, it is indicated that because of the unruly behaviour of the prisoner, punishment was imposed shifting him to 20 person cell and further it was ordered that the prisoner should not be allowed to meet any person for a period of 30 days. Such punishment was imposed on 5.10.2004 on the basis of the complaint filed by the Jailor himself. In the complaint filed by the Jailor, which is filed on behalf of the respondents, it is indicated that at the time of inspection of the Jail Superintendent, the prisoner was found with a towel on his shoulder and when he was asked to remove the same, he had misbehaved and acted in an unruly manner and when the Jailor tried to remove it, the prisoner caught hold of the shirt of the Jailor and tried to assault him and a minimum force was used to control him. On the basis of such complaint, the Superintendent immediately passed the order on 5.10.2004 itself, depriving the prisoner the facility of meeting his relatives and also he was shifted to 20 person cell.
6. Along with the counter, in the typed set furnished by the third respondent, a medical certificate issued by the Civil Surgeon had been furnished, which indicates as if there was an abrasion injury over scalp. Such certificate was issued on 14.10.2004 by Dr. S. Arumugham, Civil Surgeon, wherein it is indicated that the injury is healed well with tablets, injection T.T., antibiotics, multivitamin, etc., and his health condition is normal.
7. The report of the Advocate to which we have already referred to indicates that there were several injuries all over the body of the prisoner. Subsequently, after this writ petition was entertained, the Principal District Judge, Tiruchirappalli, was directed to enquire into the matter. The District Judge visited the prison and recorded the statement of the prisoner. At that time, an injury report, signed by the very same Civil Surgeon, was produced before the District Judge, which has been filed by the District Judge as a part of her report. Such medical report indicates that the prisoner was taken for treatment on 5.10.2004 and there were multiple injuries all over the body, including on the head, shoulder, neck, chest, legs, hands, buttocks and inner parts of the thigh. Even though such certificate is dated 10.11.2004, this certificate is based on the examination made at 09.30 am. on 5.10.2004, when the prisoner was brought for treatment. In the complaint, which had been filed by the Jailor (4th respondent), a reference had been made to only one injury which was also stated to be self-inflicted by the prisoner himself. Further, there is no averment anywhere in the counter or in the complaint that other injuries which are now admittedly found were also self-inflicted. In the complaint filed by respondent No. 4, it was indicated as if minimum force was used for overpowering the prisoner, but the number and extent of injuries clearly indicate that several injuries were inflicted and in the absence of any explanation whatsoever on behalf of the respondents, it is apparent that such injuries were sustained on account of the assault made inside the jail.
8. In the background of the aforesaid factual matrix, the matter should be examined as to whether any compensation shall be paid to the prisoner and as to whether any action should be taken against the persons responsible for such assault.
9. Learned Additional Public Prosecutor appearing for the respondents vehemently contended that the prisoner, who was a life convict, had previously misbehaved and acted in an unruly manner in the Palayamkottai Jail and because of that reason he had been shifted to Tiruchirappalli Jail, where also he had acted in an unruly manner and therefore he had to be controlled with minimum force in order to maintain discipline. As we have already noticed from the material records, several injuries were inflicted which were not brought to the light by the authorities immediately and only when the District Judge made a visit for the purpose of enquiry, the factum of such injuries were disclosed.
10. A person undergoing jail sentence continues to be a human being and he is required to be treated in a manner in consonance with human dignity. Merely because somebody is undergoing jail sentence for having committed a heinous crime does not authorise the jail authorities to treat such a person with indignity or torture such person. It is of course true that the jail authorities are to maintain discipline among the prisoners and if necessary, minimum force can be used. But, it does not authorise them to exceed their limit by torturing a prisoner, even though such a prisoner may have a very atrocious past conduct.
11. In Sunil Batra v. Delhi Administration, , it was observed:
"31. ... Thus, it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through 'writ' aid. The Indian human has a constant companion the Court armed with the Constitution. The weapon is 'habeas' the power is Part III and the projectile is Batra .
No iron curtain can be drawn between the prisoner and the Constitution. It is, therefore, the Court's concern, implicit in the power to deprive the sentence of his personal liberty, to ensure that no more and no less than is warranted by the sentence happens. If the prisoner breaks down because of mental torture, psychic pressure or physical infliction beyond the licit limits of lawful imprisonment the Prison Administration shall be liable for the excess."
12. In Rudul Sah v. State of Bihar, , the Supreme Court recognised the power of the Supreme Court or the High Court under Articles 32 and 226 of the Constitution to award monetary compensation for contravention of a fundamental right.
13. In Smt. Nilabati Behera alias Lalita Behera v. State of Orissa and Ors., , such principle was reiterated and compensation was paid for the custodial death. Justice Anand, in his concurring judgment, observed :
"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. I agree with Brother Verma, J. that the defence of "sovereign immunity" in such cases is not available to the State and in fairness to Mr. Altaf Ahmed it may be recorded that he raised no such defence either."
14. Similar principle is also applicable to violation of human rights of a prisoner while he is in custody. It is no doubt true that in the present case, the prisoner had some what acted in an unruly manner, for which the jail authorities were obviously entitled to use minimum force for controlling. But, when they have caused several injuries all over the body, they cannot escape from the conclusion that the authorities concerned have exceeded the scope of their legitimate duty and ultimately the prisoner has been subjected to inhuman conduct and has been tortured and assaulted. In such view of the matter, we are of the opinion that the State Government has to pay compensation to such prisoner. In peculiar facts and circumstances of the case and in keeping view the number, extent and nature of injuries, we feel, awarding a sum of Rs. 5000 as compensation to the prisoner would meet the ends of justice. The aforesaid sum should be deposited by the State Government to the credit of the prisoner.
15. The next, question relating to the prayer of the petitioner for taking appropriate action against the person responsible. The learned Additional Public Prosecutor for the respondents submitted that there is no categorical material to come to a conclusion as to whether the respondent No. 4 was responsible and if so, whether he was alone responsible or whether other persons were responsible and such aspects cannot be finalised in such a writ petition. Whether respondent No. 4 is responsible or whether some other persons are also responsible can obviously be found out if there is a detailed enquiry regarding the matter by giving opportunity of hearing to all persons concerned, including the fourth respondent. If, ultimately, after such enquiry, any individual person is found responsible, it is for the Government to take appropriate action against such person in the form of any departmental proceedings or even if prosecution, depending upon the facts and circumstances of the case and it would not be appropriate for us to fix the responsibility on any particular individual in this writ petition.
16. Therefore, while directing payment of compensation, we direct the Government to hold an enquiry in the matter by a responsible senior officer, namely, Inspector General of Prisons and depending upon the conclusion in such an enquiry, it is for the Government to take any appropriate action by way of disciplinary proceedings or by launching prosecution, depending upon the facts and circumstances of the case. We make it clear that we have not fixed responsibility on any particular officer and the responsibility on any particular person has to be fixed in the manner indicated above.
17. By directing the Government to pay compensation to the prisoner in the peculiar facts and circumstances of the present case, we add that it does not mean that a licence is given to the prisoners to behave in an unruly manner, because, in the particular case, we have found that there has been violation of human rights of the concerned prisoner and he had been subjected to torture and a direction for compensation has been made. So that, in our view, all concerned, including the authorities responsible for maintaining discipline inside the jail, should act within the limits of their jurisdiction. It is no doubt true that the jail authorities, like the police personnel and members of armed force, have been vested with onerous task of maintaining discipline. Even though such task is arduous, such authorities are required to act within the limits of their jurisdiction with a sense of dedication of service and they are not to exceed the scope of their duty.
18. The writ petition is accordingly disposed of subject to aforesaid directions. A cost of Rs. 2500 is to be paid to the counsel for the petitioner. The direction to pay compensation and the costs shall be complied with, within a period of six weeks from the date of receipt of copy of this order.