Madras High Court
M.Ranjani vs The Home Secretary on 15 April, 2013
Author: K.N.Basha
Bench: K.N.Basha, P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 15.04.2013 CORAM THE HONOURABLE MR. JUSTICE K.N.BASHA AND THE HONOURABLE MR. JUSTICE P.DEVADASS WP.No.1293/2011 & MP.Nos.1 TO 3/2011 AND HCP.No.43/2011 & MP.No.1/2011 WP.No.1293/2011 M.Ranjani .. Petitioner Versus 1.The Home Secretary, Government of Tamil Nadu, Secretariat, Chennai. 2.The Director General of Police, DGP Officer, Mylapore, Dr.Radhakrishnan Salai, Chennai-5. 3.The Superintendent of Police, Head Quarters, Thirunelveli District. 4.The Inspector of Police, Thisayan Vilai Police Station, Thirunelveli District. 5.The Inspector of Police, Nanguneri Police Station, Thirunelveli District. 6.The Inspector of Police, Sholavaram Police Station, Thiruvallur District. 7.The Dean The Government General Hospital, Chennai-3. .. Respondents Prayer:- Writ petition filed under Article 226 of the Constitution of India praying for a writ of mandamus directing the 1st and 2nd respondents to conduct enquiry regarding the death of petitioner's deceased son Vinoth @ Vinoth Kumar or to appoint any learned District Judge to conduct the enquiry regarding the death of petitioner's deceased son Vinoth @ Vinothkumar. HCP.No.43/2011:- M.Ranjani .. Petitioner Versus 1.The State represented by The Inspector of Police, Sholavaram Police Station, Sholavaram. 2.K.Rathinapandiyan .. Respondents Prayer:- Writ petition filed under Article 226 of the Constitution of India praying for a writ of Habeas corpus directing the first respondent to interrogate the same with the 2nd respondent and to produce Vinoth and Lakshmi before this Court and set them at liberty. For Petitioner in both the petitions : Mr.P.Vijendran For Respondents in both the petitions : Mr.A.N.Thambidurai Additional Public Prosecutor COMMON ORDER
K.N.BASHA, J., The petitioner who is the mother of the detenu / victim viz., the deceased Vinoth @ Vinoth Kumar, aged about 21 years, has come forward with the Habeas Corpus Petition in HCP.No.43/2011 seeking for the relief of directing the first respondent to interrogate the same with the 2nd respondent and to produce Vinoth and Lakshmi before this Court and set them at liberty and with the writ petition in WP.No.1293/2011 seeking for the relief of directing the respondents 1 and 2 to conduct enquiry regarding the death of petitioner's son, Vinoth @ Vinoth Kumar or to appoint any learned District Judge to conduct enquiry regarding the death of petitioner's son Vinoth @ Vinoth Kumar.
2.a. The petitioner has stated in her affidavit that one Lakshmi, daughter of one Rathinapandiyan, fell in love with her son, the victim and both of them left their respective houses on 14.08.2010. On the basis of the complaint of the father of the girl to the Puzhal Police Station, both the boy and the girl were secured by Melmaruvathur Police and handed over to Puzhal police. Thereafter, they were sent to their respective houses. The girl came to the house of the petitioner again on 30.08.2010 and the petitioner handed over the girl to the police who in turn, sent her to her parents house. At the instance of the girl, on 22.09.2010, both the victim Vinoth @ Vinoth Kumar and Lakshmi decided to marry. In the meanwhile, on 10.10.2010, the Puzhal police arrested the petitioners son and ultimately, he was released on bail by this Court in Crl.OP.No.25134/2010 by the order dated 29.10.2010.
2.b. The petitioner has further stated in her affidavit that the daughter of the said Rathinapandiyan is a minor and her parents have forcibly performed her marriage at Thisayanvilai. Since then, the petitioners son has not returned to his home and a complaint was given by the petitioner to the 6th respondent on 24.12.2010 for tracing her son. The father of the girl and her relatives threatened the family members of the petitioner that her son would be killed. Again, the petitioner lodged a complaint before the 6th respondent; but the 6th respondent refused to receive the complaint and she has sent the complaint through a registered post and filed HCP.No.43/2011 before this Court and the same was admitted and notice was ordered on 11.01.2011 and suddenly on 14.01.2011 at about 3.57 a.m. the petitioner received a phone call from the 4th respondent, viz., the Inspector of Police through his cellphone No.9442997188, stating that her son was arrested and he would be remanded immediately. Fifteen minutes later, the Head Constable attached to the 4th respondent police station, called the petitioner again and stated that her son had met with an accident. Again, at 7.30 a.m. the Inspector of police called the petitioner over phone and informed her that her son died due to an alleged accident. The petitioner suspected that her son was murdered at the hands of the police during his custody at the instigation of the 2nd respondent in HCP.No.43/2011.
2.c. Thereafter, the petitioner filed a complaint before the Puzhal Police Station as the parents of the said Lakshmi were residing within the jurisdiction of the said police station and a case was registered in FIR No.344/2011 for the offence u/s.366-A IPC. In the said FIR, it is revealed that the girl is aged about 16 years and she belongs to different community from that of the petitioner. It is further stated by the petitioner in her affidavit that her son was arrested and produced before the learned Judicial Magistrate, Nanguneri on 14.01.2011 and the learned Magistrate has remanded the victim and directed the 4th respondent to detain him under the control of the Superintendent of Borstal School, Nanguneri for 15 days. One Mr.G.Mahesh, Head Constable attached to the 4th respondent, lodged a complaint with the 5th respondent stating that the petitioners son, viz., the deceased and the girl were arrested and produced at about Nil time before the learned Magistrate, Ambasamudram, due to the non-availability of the learned Magistrate, Nanguneri and the girl was allowed to go with her parents; but the son of the petitioner was handcuffed and was ordered to be detained in the Borstal School, Nanguneri and it is further stated in the said complaint that the son of the petitioner has met with an accident at the national highway wherein he was dashed by a vehicle bearing Registration No.TN-33-PW-3408 belonging to Blue Dot Courier which was proceeding to Kanyakumari from Tirunelveli.
2.d. The petitioner was informed by the 4th respondent police to come and collect the body of her son after postmortem conducted at the Government Hospital, Tirunelveli and stated that in the event of failure to collect the body, the same would be handed over to the Municipality as Not Claimed. The petitioner filed MP.No1/2011 in hCP.No.43/2011 seeking for the relief of re-postmortem. A Division Bench of this Court has ordered notice returnable by 24.01.2011 and liberty was given to the petitioner to approach appropriate Forum for immediate relief and accordingly, the petitioner filed the present writ petition in WP.No.1293/2011 with the above said relief. The petitioner made similar averments in WP.No.1293/2011 except the omission of the alleged events of accident and postmortem etc.
3. Mr.P.Vijendran, learned counsel for the petitioner contended that the petitioner suspected that this is a case of honour killing. It is further contended that the claim of the respondent police to the effect that the son of the petitioner died due to an accident is unbelivable in view of the difference and variations between the two postmortem reports dated 15.01.2011 and 23.01.2011 respectively. It is also contended that as per the first postmortem report dated 15.01.2011, the doctor found ante-mortem injuries, viz., abrasions seen on the top of the right shoulder, back of right elbow, back of right upper chest, right lower abdomen, hip knee and top of the left shoulder etc., and muscle deep laceration on the outer aspect of left lower abdomen and back of left hip. There is no mention about any incised wound noticed in the said report. On the other hand, in the re-postmortem report, number of irregular abrasions are mentioned as external injuries and as ante-mortem injuries. It is contended that in the first postmortem report, it is opined that the deceased would appear to have died of multiple injuries and in the second postmortem report, it is opined that the deceased would appear to have died of asphyxia due to head and chest injuries. It is also opined that the manner of causation of the injuries could not be stated categorically. Learned counsel for the petitioner would contend that the exact cause of the death of the petitioner's son is not known even though the investigation was done first by the regular jurisdictional investigating agency and subsequently by the CBCID police and they are themselves not sure whether the deceased died due to an accidence or due to murder. He would place strong reliance on the status report submitted by the investigating officer, viz., the Deputy Superintendent of Police, Crime Branch CID and contended that the said investigating officer has clearly stated that the unfortunate death of the deceased has taken place due to the negligent and careless attitude of the escort police constables. It is also contended that even CBCID police has not conducted the investigation in a proper manner and in accordance with law and they have simply placed reliance on the materials collected by the earlier investigating agency and their intention is only to close the case as a "road accident" case. It is further contended that the version of the present investigating agency that the deceased jumped over the barricade and met with a vehicle accident is unbelievable. He would also submit that in the objection filed by the petitioner to the counter filed by the Deputy Superintendent of Police, CBCID, the petitioner has pointed out several inconsistencies and therefore, the petitioner is having serious apprehension that she may not get an unbiased and fair investigation at the hands of CBCID and that the matter may be entrusted to an independent agency for investigating into the matter in order to find out the truth and the cause of the death of her son as the victim was in the police custody. Learned counsel for the petitioner also contended that in view of the admitted statement made by the investigating officer in the Status Reports to the effect that the deceased died due to the careless and negligence act of the escort police officials, the petitioner is also entitled to claim compensation, more particularly, as the deceased died under suspicious circumstances while he was in the police custody.
3a. Learned counsel, in support of his contentions, also placed reliance on the following decisions:-
[a]NILABATI BEHERA [SMT] @ LALITA BEHERA [THROUGH THE SUPREME COURT LEGAL AID COMMITTEE] Vs. STATE OF ORISSA AND OTHERS reported in [1993] 2 SCC 746;
[b]AJAB SINGH AND ANOTHER Vs. STATE OF U.P. AND OTHERS reported in [2000] 3 SCC 521;
[c]RAJAMMAL Vs. STATE OF TAMIL NADU REP.BY ITS SECRETARY, HOME DEPARTMENT, CHENNAI AND OTHERS reported in [2008] 3 MLJ 167;
[d]ROHINI LINGAM Vs. STATE REP. BY THE SECRETARY TO GOVERNMENT, [DEPT. OF PRISONS], CHENNAI AND OTHERS reported in [2008] 5 MLJ 822;
[e]THE SECRETARY, HOME DEPARTMENT, FORT ST. GEORGE, CHENNAI AND OTHERS Vs. DAMAYANTHI AND OTHERS reported in 2011 [4] CTC 746;
[f]GANESAN AND ANOTHER Vs. THE STATE REP.BY THE HOME SECRETARY, ST GEORGE FORT, CHENNAI 600 009 AND OTHERS reported in 2012 [2] CTC 848.
4. Mr.A.N.Thambidurai, learned Additional Public Prosecutor would contend that the investigation is carried out by CBCID in a proper manner and in accordance with law. It is further contended that the progress of the investigation in respect of this case was brought to the notice of this Court by way of submission of Status Reports. The Deputy Superintendent of Police, CBCID has also filed a common counter affidavit in both the matters, viz., in WP.No.1293/2011 and HCP.No.43/2011 and denied the allegations made by the petitioner. It is contended that the daughter of the 2nd respondent in HCP.No.43/2011 fell in love with the victim boy, Vinoth @ Vinothkumar and she left her house with the victim boy on 14.08.2010 and thereafter, on a complaint given by her father, they were secured and again on 30.08.2010, the girl came to the house of the petitioner and the petitioner handed over the girl to the police who in turn handed over the girl to her parents. It is submitted that again on 22.09.2010, the girl and the victim boy left their respective houses and the Puzhal police arrested them on 10.10.2010 and the petitioner's son came out on bail in Crl.OP.No.25134/2010 as per the order of this Court dated 29.10.2010. It is submitted that as per the counter affidavit, the daughter of the 2nd respondent in HCP.No.43/2011, was married to one Logesh forcibly as arranged by her parents on 09.12.2010 and from that day onwards, the victim boy/petitioner's son was absconding which resulted in filing HCP.No.43/2011 before this Court. Learned Additional Public Prosecutor contended that the postmortem was conducted properly and as per the order of this Court, the re-postmortem was also conducted by a team of doctors at the Government Hospital attached to the Madras Medical College, Chennai. It is contended that the allegations levelled against the CBCID police are baseless. It is also submitted that on the date of occurrence, the victim was arrested and produced before the learned Judicial Magistrate, Ambasamudram and he was ordered to be detained in the Borstal School, Nanguneri, for judicial custody as the victim boy was juvenile and while he was taken in a taxi along with the police constables to the Borstal School, he was allowed to answer the nature's call and at that time, he met with an accident and died. It is further contended that the investigation is in progress and the final report would be filed at the earliest. It is submitted that there is no lapse on the part of the present investigating officer warranting for transfer of investigation. Learned Additional Public Prosecutor would also submit that the earlier investigating officer also verified from a team of three doctors including Captain Dr.B.Santhakumar, who has signed the second postmortem report in respect of the cause of irregular abrasions sustained by the victim boy and also ascertained the opinion to the effect that the nature of injuries, the sights, the pattern of injuries found on the dead body would indicate that they would have been sustained by a forceful fall on a hard rough surface as in a road traffic accident. It is contended that the said opinion supports the case of the prosecution.
5. We have given our careful and anxious consideration to the rival contentions put forward by either side and thoroughly scrutinised the entire materials available on record and perused the affidavit filed by the petitioner; common counter affidavit filed by the present investigating officer; Status Report filed by the investigating officer; the objections filed by the petititioner to the said Status Reports and the reply filed by the petitioner to the common counter affidavit filed by the 3rd respondent
6. This is a very unfortunate and pathetic case wherein Vinoth @ Vinoth Kumar, aged about 19 years died under suspicious circumstances and that too, while he was in the police custody. The undisputed fact remains that the daughter of the 2nd respondent in HCP.No.43/2011 fell in love with the victim boy and the girl left her house twice and joined with the victim boy and thereafter, the police secured and handed over them to their parents and during the second incident, the petitioner handed over the girl to the police and the police in turn handed over the girl to her parents. Lastly, both the girl and the boy left their respective houses and the police secured them on 14.01.2011 and a case was registered in Cr.No.344/2010 on the file of Thisayanvilai police station for the offence u/s.366-A IPC. The victim boy was arrested and produced before the learned Magistrate and the learned Magistrate sent the victim boy to Borstal School for judicial remand as he was a juvenile at that time. While he was taken to Borstal School in a Taxi along with escort police constables, it is claimed by the police that the victim boy was allowed to answer natures call and when tried to escape from the clutches of police and ran along the Nagercoil to Tirunelveli Highway, he met with an accident with a Courier Van and succumbed to the injuries on the spot. The initial investigation was carried on by the Nanguneri Police.
7. A Division Bench of this Court, by the order dated 02.03.2011 in the above petitions, has ordered for transfer of investigation to CBCID and the investigation was directed to be completed within a time frame of eight weeks from 02.03.2011. Considering the seriousness and gravity of the case, this Court directed the investigating agency, viz., CBCID, to submit the Status Report. Accordingly, two Status Reports were filed by the investigating officer, viz., the Deputy Superintendent of police, CBCID, Tirunelveli Range on 30.03.2011 and on 28.04.2011. In view of the alleged accident said to have taken place on 14.01.2011, a case was registered in Cr.No.11/2011 for the offences u/s.224 and 304[A] IPC and both the cases, viz., Cr.No.344/2010 and Cr.No.11/2011, were transferred to CBCID. In both the Status Reports it has been stated that the investigation is in progress.
8. At this juncture, it is relevant to refer the postmortem conducted on the dead body of the victim boy Vinoth @ Vinoth Kumar. It is seen that postmortem was conducted twice. In the first postmortem certificate dated 15.01.2011 conducted by the doctors attached to the Government Hospital, Tirunelveli, the following antemortem injuries have been noted:-
"ANTEMORTEM INJURIES:-
[1]Fresh abrasions seen on the following areas: 8x2 cm top of right shoulder, 7x2 cm back of right elbow, 6x3 cm back of right upper chest, 16x6 cm back of right lower abdomen, 18x8 cm back of right hip and right gluteal region, 2x1 cm outer aspect of right knee, 5x2 cm top of left shoulder, 1x1 cm back of left wrist and 3x1 cm from of left lower abdomen. [2]4x1 cmsxmuscle deep laceration seen on the outer aspect of left lower abdomen;
[3]3x1 cmxmuscle deep laceration seen on the back of left hip."
The opinion as per the first postmortem is to the effect that the deceased would appear to have died of multiple injuries. The second postmortem was conducted on 23.01.2011 as per the order of this Court and the following antemortem injuries, viz., external injuries were noted:-
"ANTEMORTEM INJURIES:-
EXTERNAL INJURIES:-
[1]Brown irregular abrasion 0.5x0.3 cm and on the left side of the forehead, 2cm above the inner end of the left eyebrow. [2]Brown irregular abrasion 6.3x2.5-1 cm on the outer aspect of right elbow.
[3]Brown irregular abrasion 0.8x0.3cm on the back of lower third of right forearm. [4]Brown irregular abrasion 2x0.5-0.2 cm on the back of right wrist.
[5]Brown irregular abrasion 2x1.5-1 cm on the back of the left wrist.
[6]Brown irregular abrasion6x2.3-0.5 cm on the upper aspect of left shoulder.
[7]Brown irregular abrasion 0.7x0.3 cm on the outer aspect of left side of the hip.
[8]Brown irregular abrasion 22.5x19-3 cm on the lower part of right side of the back and the adjoining outer aspect of right side of the hip. [9]Brown irregular abrasion 3x1-0.5 cm on the outer aspect of right ankle.
[10]Brown irregular abrasion 2x1-0.5 cm on the outer aspect of the right knee.
[11]Brown irregular abrasion 5.5x2-0.5 cm on the upper part of left shoulder.
[12]Brown irregular abrasion 2x0.5-0.3 cm on the back of middle third of left ear lobe. [13]Brown irregular abrasion 2x1-0.5 cm on the middle part of left side of the abdomen. [14]Brown irregular abrasions 1.5x0.5 cm on the middle part of left side of the abdomen. [15]Oblique linear brown abrasion 6.5x2-0.5 cm on the upper part of left lateral aspect of the abdomen. [16]Lacerated wound 0.5x0.3x0.2 cm on the upper end of left side of the upper lip, the mucosal surface of both the lips were pale. [17]Lacerated wound 2x1x0.8 cm on the lower part of left side of the back; on dissection the underlying bone was intact."
It is pertinent to note that in the first postmortem, only 3 antemortem injuries were mentioned whereas in the second postmortem report, nearly 17 injuries have been noted. Apart from two abrasions in the second postmortem certificate, there is also a mention about two lacerated wounds on left side of the upper hip and on the lower part of the left side of the back. It is to be stated that in the first postmortem certificate, the second injury is mentioned as 4x1 cm muscle deep laceration on the outer aspect of left lower abdomen" and the 3rd injury is mentioned as 3x1 muscle deep laceration seen on the back of left hip". In the second postmortem certificate, it is opined that the deceased would appear to have died of asphyxia due to head and chest injuries. It is further opined that the manner of causation of the injuries could not be stated categorically. It is pertinent to note that the earlier investigating officer made a feeble attempt to get an opinion from a team of three doctors, including the doctor who has conducted re-postmortem, viz., Captain Dr.B.Santhakumar, to the effect that the injuries found on the deceased would indicate that they would have been sustained by a forceful fall on a hard surface as in a road traffic accident. A perusal of the said communication dated 15.02.2011 from the team of three doctors to the Deputy Superintendent of Police, Nanguneri Sub-Division, Tirunelveli, discloses that the said team of doctors have also opined that the injuries found on the body of the victim boy would have even been caused due to attack and assault by rough surfaced hard objects. It is curious to note as to why the former investigating officer has obtained such a clarification in respect of the re-postmortem by putting certain questions. Such clarification is used to be made only during the course of full-fledged trial and that too, during the examination of the doctors. In our considered opinion, even the clarified view expressed by the team of three doctors does not support the prosecution theory as it is specifically stated that such injuries could have also been caused due to attack or assault with rough surfaced hard objects. Therefore, it is crystal clear, as per the opinion of the postmortem reports it cannot be concluded at present that the deceased succumbed to the injuries caused due to an accident.
9. We are constrained to state that the Status Reports filed by the investigating agency does not disclose the definite medical opinion regarding the cause of death. It is the duty of the investigating agency to find out whether the victim boy died due to an accident or due to the injuries sustained by the forcible attack with the weapon. Be it as it may, the fact remains that the victim boy Vinoth @ Vinoth Kumar died while he was in the polcie custody. The petitioner raised serious suspicion against the manner of investigation conducted by the ealrier investigating officer as well as by the present investigating officer from CBCID. It is pertinent to note that in the Status report dated 30.03.2011, the present Investigating Officer, viz., the Deputy Superintendent of Police, CBCID, Tirunelveli, has specifically stated as here under:-
"......
8........... So far the investigation made, has revealed the following facts:-
[a]............
[b]............
[c]............
[d]............
[e]............
[f]............
[g]...........
[h]...........
[i]When the escort party reached Nanguneri Borstal School, while allowing the accused Vinoth Kumar for attending the call of nature, the accused Vinoth Kumar utilized the negligent and careless attitude of the escort constables, escaped from their custody and let the said occurrence happened."
In the second status report filed by the very same investigating officer dated 28.04.2011, it is specifically stated as here under:-
"............
12.The accused Vinoth Kumar was taken to the Borstal School in a private vehicle arranged by the relatives of the victim girl and when they reached the Borstal school, Vinoth Kumar utilised the careless and lethargic attitude of the escort constables, escaped from them and while running along the Nagercoil Tirunelveli National Highway met with an accident with the courier van and succumbed to injuries on the spot. Departmental action has been initiated against the Police personnel who escorted the deceased Vinoth Kumar and whose careless and lethargic attitude resulted in the said occurrence."
10. Therefore, it is clearly and categorically admitted that the victim boy Vinoth @ Vinoth Kumar died while he was in the police custody and that too, due the the careless and lethargic attitude of the escort police officials. In view of the said admitted factor, we have no hesitation to hold that the victims family is entitled to claim compensation. It is to be stated that though in the petition, the petitioner has not claimed any compensation as one of the reliefs, in view of the specific and categorical admission made by the investigating agency to the effect that the victim died only in the police custody and that too, due to the negligence, careless, callous and lethargic attitude of the escort police officials. This Court can very well mould the remedy of awarding compensation.
11. The learned counsel for the petitioner has rightly placed reliance on the decision of the Honble Apex Court in NILABATI BEHERA [SMT] @ LALITHA V. STATE OF ORISSA AND OTHERS reported in [1993] 2 SCC 746. The Honble Apex Court, in the said decision, held that the Court can evolve new tools and mould remedy to provide redressal in case of deprivation of fundamental right guaranteed under Article 21 of the Constitution of India. It is also held by the Honble Apex Court in the said decision that award of compensation in proceedings for enforcement of fundamental rights under Articles 32 and 226 of the Constitution of India is a remedy available in public law. It is also held in the said decision that the State has strict duty to ensure that a citizen in the custody of police or prison is not deprived of his right under Article 21 of the Constitution of India except in accordance with law. The Honble Apex Court has held in the decision as here under:-
"The admitted facts are that the deceased was taken in police custody and he was found dead the next day on the railway track without being released from custody and his death was unnatura, caused by multiple injuries sustained by him. The burden is, therefore, clearly on the respondents to explain how the deceased sustained those injuries which caused his death. Unless a plausible explanation is given by the respondents which is consistent with their innocence, the obvious inference is that the fatal injuries were inflicted on the deceased in police custody resulting in his death, for which the respondents are responsible and liable."
In the same decision, concurring with the majority view, Dr. Justice Anand has also held as here under:-
"[1]It was a case of custodial death. The case put up by the police of the alleged escape of the deceased from police custody and his sustaining the fatal injuries in a train accident is not acceptable. A custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law.
[2]Convicts, prisoners or undertrials are not denuded for 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 procedure established by law, while the citizen is in custody, whether he be a suspect, undertrial or convict. 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. The defence of "sovereign immunity" in such cases is not available to the State."
The Hon'ble Apex Court has further held in the above decision that:-
"................
The Supreme Court and the High Court being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 to the victim or the heir of the victim whose fundamental rights under Article 21 are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings..............
..... It is a sound policy to punish the wrongdoer and it is in that spirit that the Courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the Courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned....."
12. The principles laid down by the Honble Apex Court in the decision cited supra, are squarely applicable to the facts of the instant case as in this case also, as we have already pointed out, admittedly the victim boy died while he was in police custody and it is also specifically and categorically admitted in the two Status Reports filed by the investigating officer that the victim died due to the lethargic, careless and callous attitude of the escort police officials. In view of the same, it is the sole responsibility of the police to provide safety and security to the life of the victim and if any untoward incident had taken place or if the victim died due to unnatural cause, the police official cannot absolve their liability and it is the utmost duty of the police to explain as to how the said victim sustained injuries and succumbed to the same and died. We have pointed out that there are variations in the first and second postmortem reports. We have also pointed out that the doctors have not given a definite opinion as to how and in what manner the deceased sustained and succumbed to the injuries. Therefore, the State is liable to compensate the untimely and unfortunate death of a young victim boy. We are of the considered view that the petitioner, being the mother, is entitled to get a reasonable compensation. The victim being the only boy to the petitioner, the parents could have had a desire and a dream that he would come up in his life and protect the entire family. The dreams and desire of the parents of the victim boy have been shattered due to the unfortunate and untimely death of of the victim boy under suspicious circumstances. Considering the above said factors, we are of the considered view that granting the relief of compensation to the tune of Rs.5 lakhs to the petitioner would meet the ends of justice.
13. Now, coming to the question whether the investigation is to be allowed to be continued at the hands of the present investigating officer, viz., CBCID, we have to take note of the same factors which are necessitated for granting the relief of compensation. At the risk of repetition, it is to be reiterated that till date, it is not made clear by the investigating agency as to how and in what manner the victim boy sustained injuries and succumbed to the same. Whether the victim boy died due to an accident or due to custodial torture or due to the act of others, is to be probed properly and effectively. The fact remains that the petitioner raised serious allegations against the police officials and the deceased admittedly died while he was in the custody of the local police. Therefore, it is desirable to entrust the investigation to some other independent agency with a view to ensure fair and unbiased investigation.
14. At this juncture, it is relevant to refer the following decisions:-
[a]In the decision in R.S.Sodhi v. State of U.P reported in AIR 1994 SC 38, the Hon'ble Apex Court has held as hereunder:
"2.... However, faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them. It is only with that in mind we having thought it both advisable and desirable as well as in the interest of justice entrust the investigation to the Central Bureau of Investigation forthwith and we so hope that it would complete the investigation at an early date so that those involved in the occurrence one way or the other may be brought to book. We direct accordingly. In so ordering we mean no reflection on the credibility of either the local police or the State Government but we have been guided by the larger requirements of justice."
[emphasis supplied by us] [b]It is also relevant to refer a Constitution Bench decision of the Hon'ble Apex Court in State of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and Others reported in (2010) 3 SCC 571. The Hon'ble Apex Court in the said decision has held as hereunder:
" The words "life" and "personal liberty" are used in Article 21 as compendious terms to include within themselves all the varieties of life which go to make up the personal liberties of a man and not merely the right to the continuance of a person's animal existence. All those aspects of life, which make a person live with human dignity are included within the meaning of the word "life". The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. Article 21 in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. In certain situations even a witness to the crime may seek for and shall be granted protection by the State. The right to life and personal liberty is paramount. Likewise, if Articles 14 and 19 are put out of operation, Article 32 will be drained of its life blood.
.......
Being the protectors of civil liberties of the citizens, the Supreme Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part II in general and under Article 21 of the Constitution in particular, zealously and vigilantly. Therefore, a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law.
......
However, despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where such an order may be necessary for doing complete justice and enforcing the fundamental rights.......... An order directing an enquiry by CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose prima facie case calling for an investigation by CBI or any other similar agency."
[emphasis supplied by us] [c]In yet another decision in Rubabbuddin Sheikh v. State of Gujarat and Others reported in (2010) 2 SCC (Cri) 1006, the Hon'ble Apex Court has held that, "It was necessary to ensure that investigation should not only be fair but should also seen to be fair, in order to instil confidence in the mind of victims' relatives and general public."
[emphasis supplied by us] The principles laid down by the Honble Apex Court in the decisions cited supra, are squarely applicable to the facts of the instant case in view of the reasons assigned by us earlier, more particularly, in view of the admitted fact that suspicion and allegations raised against the local police and more particularly, the victim boy died while he was in the local police custody.
15. For the foregoing reasons, we have come to the irresistible conclusion that in the interests of justice and in order to instil confidence in the minds of victim's family and to ensure effective, fair and unbiased investigation, it is necessary to entrust the investigation to an independent agency viz., Central Bureau of Investigation.
16. Accordingly, the writ petition and the habeas corpus petition are disposed of with the following directions:
[a] The State is directed to pay an amount of Rs.5,00,000/- [Rupees five lakhs only] to the petitioner towards compensation and the same shall be paid within a period of six weeks from the date of receipt of a copy of this order.
[b] The Deputy Superintendent of Police, CBCID, Tirunelveli viz., the present investigating officer shall hand-over the entire records connected with this cases in Cr.Nos.344/2010 and 11/2011 and other relevant documents to the Joint Director, Central Bureau of Investigation, Rajaji Bhavan, Besant Nagar, Chennai within 15 days from the date of receipt of a copy of this order. It is made clear that the Joint Director, CBI, in turn shall nominate a competent police official of CBI, not below the rank of Deputy Superintendent of Police with sufficient team of police officials to assist him and to investigate into this matter. It is further made clear that the State police shall give all co-operation and co-ordination to the CBI police in respect of the investigation to be carried out by the CBI in this matter. The CBI shall conduct the investigation as expeditiously as possible.
Consequently connected miscellaneous petitions are closed.
[K.N.B., J] [P.D.S., J.] 15.04.2013 INDEX : YES INTERNET : YES AP To 1.The Home Secretary, Government of Tamil Nadu, Secretariat, Chennai. 2.The Director General of Police, DGP Officer, Mylapore, Dr.Radhakrishnan Salai, Chennai-5. 3.The Superintendent of Police, Head Quarters, Thirunelveli District. 4.The Inspector of Police, Thisayan Vilai Police Station, Thirunelveli District. 5.The Inspector of Police, Nanguneri Police Station, Thirunelveli District. 6.The Inspector of Police, Sholavaram Police Station, Thiruvallur District. 7.The Dean The Government General Hospital, Chennai-3. 8.The Public Prosecutor, High Court, Madras. K.N.BASHA ,J AND P.DEVADASS, J. AP Pre Delivery Common Order in WP.No.1293/2011 & HCP.No.43/2011 15.04.2013