Madras High Court
Mrs.Malliga vs The Secretary To Government on 23 November, 2021
Author: T.Raja
Bench: T.Raja, V.Sivagnanam
W.A.No.2558 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 16.07.2021
DATE OF DECISION : 23.11.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
W.A.No.2558 of 2013
Mrs.Malliga
W/o Sivakumar .. Appellant
-vs-
1. The Secretary to Government
Home Department
Government of Tamil Nadu
Secretariat, Chennai
2. The District Collector
Cuddalore District, Cuddalore
3. The District Collector
Villupuram District, Cuddalore
4. The Superintendent of Police
Cuddalore District, Cuddalore
5. The Superintendent of Police
Villupuram District, Villupuram
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https://www.mhc.tn.gov.in/judis
W.A.No.2558 of 2013
6. Inspector of Police
Tindivanam Police Station
Tindivanam, Villupuram District
7. Inspector of Police
Panruti Police Station
Panruti, Cuddalore District .. Respondents
Appeal filed under Clause 15 of the Letters Patent against the order
dated 08.11.2012 made in W.P.No.20428 of 2011.
For Appellant :: Mr.N.Jothi
Amicus Curiae
For Respondents :: Mr.T.Arunkumar
Government Advocate
JUDGMENT
T.RAJA, J.
This writ appeal has been directed against the impugned order dated 8.11.2012 passed by the learned single Judge in Writ Petition No.20428 of 2011.
2. It is an admitted case of both parties that the appellant, Mrs.Malliga, W/o Sivakumar was mistakenly taken from her residence at Panruti to the sixth respondent-Tindivanam Police Station, instead of one Malliga, wife of the accused Vinayagam. This fact was also admitted by the 2/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 fifth respondent-Superintendent of Police, Villupuram District in his counter affidavit and at the Villupuram Police Station, the appellant Mrs.Malliga was shown to the accused Vinayagam, who told that the appellant was not his wife. Therefore, the appellant was brought back to Panruti and was dropped in her house without any torture. When the appellant made a complaint before the State Human Rights Commission on 7.2.2011, the same was numbered as SHRC No.893 of 2011. But after 5 months and 7 days, her complaint was dismissed in a cryptic manner by the State Commission on the footing that the complainant called absent, hence, the petition is dismissed for default. Aggrieved thereby, when the writ petition was filed, the fifth respondent-Superintendent of Police, Villupuram District filed a detailed counter affidavit admitting the fact that the appellant/Malliga was taken to the police station due to mistaken identity. In spite of the admission made by the fifth respondent that the appellant, being the mother of two female children and her husband being a coolie, was taken to the Tindivanam police station at about 4.00 P.M., on 26.1.2011, although the poor and innocent Malliga, the appellant herein asked the reason as to why they are taking her to the police station, one of the policemen abusing her 3/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 not to behave like a call girl, shouted at her saying that she knew the criminal nature of her husband. At Tindivanam, she was asked to get down from the bus and was made to travel as pillion in a two wheeler parked there and another policeman followed her vehicle. When she reached the police station, she was taken to a room inside the police station. After sometime, one of the policemen knocked at the door. When the door was opened, a policeman in uniform who tied a handkerchief on his face entered the room. After closing the door, three policemen whose names are not known were present in the room. One policeman sat in a chair, another policeman took a lathi and beat on her head. When she shouted in pain, the other policeman slapped on her cheek and said that as the appellant was a prostitute, cannot shout. She also alleged that one policeman who beat her with a lathi also molested her. When she cried in pain and shame, on hearing her cry, another policeman standing outside knocked at the door and asked the other policeman to do without making any sound. Finally when she cried and asked as to where is her husband and pleaded with them to show her husband, one policeman showed a photograph. On seeing the photograph, the appellant said that he was not her husband and further stated that he is 4/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 Vinayagam who is staying nearer to her house. On hearing this, the appellant was again beaten. When she cried out of pain and shame, three policemen took her to Tindivanam prison at 9.00 P.M. One of the policemen went inside the prison and came out after sometime. When the appellant was shown the accused Vinayagam, he told that the appellant was not his wife. Only thereafter, three policemen brought her back to Panruti and on the way, she was threatened by the policemen saying that if she disclosed the abuse to anyone, they would book her under the Immortal Traffic Act. Finally at 11.00 P.M., she was dropped at Panruti. When her relatives and residents standing there questioned the policemen as to how they can take a woman without informing anyone, they asked them to come to Panruti Police Station. Saying so all the three policemen pushed the people and escaped in the same auto in which the appellant was brought in. Thereafter, the appellant's relatives took her to Panruti Police Station and lodged a complaint. But the policemen in the police station stated that they cannot do anything and asked her to make a complaint before the Villupuram District Police . As she sustained severe pain, she was admitted in Panruti Government Hospital as an in-patient on 27.1.2011. On 7.2.2011, 5/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 she made a complaint before the State Human Rights Commission at Chennai setting out how the policemen under mistaken identity can take an innocent woman, mother of two female children to the police station, which is about 58 kms., away and subject her to severe physical and sexual abuse, against which she made a request for investigation and to initiate legal action against the policemen belonging to Tindivanam Police Station. But after 5 months and 7 days, the complaint was dismissed in a cryptic manner holding that the complainant was called absent, hence, the petition stands dismissed for default. Aggrieved thereby, when the writ petition was filed, the learned single Judge also, on seeing the admission made by the fifth respondent-Superintendent of Police, Villupuram that the appellant was taken to Tindivanam Police Station under mistaken identity, wrongly dismissed the writ petition on the ground that compensation has been claimed against different persons, but not against the particular persons who actually did wrong to her. Secondly, she failed to furnish the names of the policemen who did wrong to her. Therefore, the appellant has brought this appeal.
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3. Prima facie, we were bewildered to see how both the State Human Rights Commission and the learned single Judge can act against the salient features of the Protection of Human Rights Act, 1993, more particularly, paragraph-4(7) of the statement of objects and reasons of the Bill shows that the Commission may undertake research in the field of human rights and shall take measures to promote awareness of human rights among all sections of society and by virtue of Section 29 of the Protection of Human Rights Act, several provisions relating to the National Human Rights Commission are made applicable to the State Human Rights Commission. Therefore, considering the fact that when the controversy raised by the appellant that she being an innocent mother of two female children, was wrongly taken to the police station under mistaken identity, nonetheless, no action has been taken by the State Human Rights Commission and also the learned single Judge, we appointed Mr.N.Jothi, learned counsel to assist us as amicus curiae, as there was no appearance for the appellant, by our order dated 17.4.2021. Accordingly, learned amicus curiae has appeared before us and presented the written submissions along with 30 citations of the Supreme Court and the High Court in two volumes of paperbook. 7/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013
4. Mr.N.Jothi, learned amicus curiae has pleaded that one accused Vinayagam was taken into police custody, wherein he confessed that he entrusted the gold ingot to his wife Mrs.Malliga residing at Mandaveli, Panruti. In order to enquire his wife Malliga, the policemen went to Sathiayamurthy Street, Mandaveli, Panruti. As two women in the name of Malliga have been residing in Sathiamurthy Street, Mandaveli, Panruti, the appellant-Malliga being the wife of Sivakumar and another Malliga being the wife of the accused Vinayagam, two policemen in uniform, without verifying whether the appellant Malliga is the wife of the accused Vinayagam, took her in a bus bound for Chennai and at Tindivanam, she was asked to get down and was asked to travel as pillion on a two wheeler parked there and another policeman followed the vehicle. After reaching Tindivanam Police Station, the appellant was sexually harassed and was beaten up badly by using lathi. When she cried and asked where is her husband and pleaded them to show her husband, one policeman showed her a photograph and on seeing the photograph, the appellant stated that he is not her husband. After sometime, three policemen took her to Tindivanam prison in a two wheeler, where she was made to stand outside along with 8/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 two policemen and one policeman went inside the jail and brought the accused Vinayagam, who, after seeing the appellant, told the policemen that she is not his wife. Only thereafter, the policemen brought her back to Panruti. On the way, she was threatened not to disclose the abuse to anyone and if she did so, they would book her under the Immoral Traffic Act. However, when the appellant was brought back to Panruti at 11.30 P.M., she was taken to Sathiyamurthy Street in an auto, where her relatives and residents were searching her. On seeing her coming in an auto, they questioned the policemen as to how they can take the appellant without even making a basic enquiry whether she is the wife of the accused or not, but the policemen after dropping her escaped in the same auto in which the appellant was brought. Thereafter, the appellant went to Panruti Police Station and lodged a complaint. But the policemen expressed their inability to do anything and told her to make a complaint before the Villupuram District Police. Since the appellant sustained severe pain, she was admitted in Panruti Government Hospital as an inpatient on 27.1.2011. After taking treatment, she made a complaint before the State Human Rights Commission, Chennai on 7.2.2011.
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5. Learned amicus curiae further submitted that when the poor appellant made a complaint before the State Human Rights Commission on 7.2.2011 and the same was numbered as SHRC No.893 of 2011, making serious allegations that she being an innocent law abiding citizen was wrongly taken to the police station and molested by one of the policemen and then after the accused Vinayagam told the policemen that the appellant is not his wife, they brought her all the way from Tindivanam and left her at Panruti and went back. The custodial torture and violation of human rights have been clearly brought out in the complaint filed before the State Human Rights Commission explaining clearly about the need of women police officers to effect the arrest, if required, but contrary thereto, the appellant being an innocent mother of two female children was taken into custody by the policemen in a bus and two wheeler and was physically assaulted and sexually harassed. When such a serious allegation has been made out in the complaint, as per Section 29 of the Protection of Human Rights Act, 1993, the provisions of Sections 9, 10, 12, 13, 14, 15, 16, 17 and 18 of the National Human Rights Act are made applicable to the State Commissions, therefore, by virtue of Section 13, the State Commission ought to have 10/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 conducted enquiry on the complaint given by the appellant. Without making any enquiry, it has failed to discharge its statutory obligations in spite of the fact that it is invested with the facilities like investigation, assistance of public prosecutor, presenting officer. When a helpless poor woman approached the State Human Rights Commission with all shivering and nightmarish experience, learned amicus curiae pleaded that the truth or untruth of the averments made in the complaint should have been investigated by the Commission, because Regulation 25 states that the Commission should issue summons. Regulation 26 enumerates the power to order investigation and to get report. Regulation 19 deals with Presenting Officers, who should render assistance for consideration and disposal of the case. Without considering the grievance of the poor woman, who was ill- treated by the authorities, dismissing the case on the ground that the appellant was not present, amounts to shirking its responsibility. When various kinds of human rights violation such as handcuffing, physical and mental torture, blind woman being duped and impregnated on the false pretext of marriage, handicapped persons being ill-treated, awesome treatment of household maids, how S.144 cannot be pronounced on the 11/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 sleeping crowds in small hours like 2.00 A.M., have been widely discussed in Ramlila Maidan incident, in Re, which are all eye openings to take lead to give redressal to human sufferings, the State Commission has not appreciated these aspects. Adding fuel to fire, the learned single Judge also, he pleaded, has simply dismissed the writ petition, surprisingly, justifying the dismissal of the case by the Commission, for the reason that for non furnishing of the names of the policemen with their designation etc., no relief can be granted to her. When paragraph-14 of the counter affidavit filed by the fifth respondent brought the controversy to light that the appellant was wrongly brought to Tindivanam Police Station under mistaken identity believing that she is the wife of the accused Vinayagam and the serious allegation made by the appellant that she was harassed in the police station physically and sexually by the policemen subjecting her to molestation, without even verifying the basic facts, both the State Commission and the learned single Judge have committed a serious error in dismissing the complaint. Therefore, the matter needs to be relooked afresh by the State Human Rights Commission, he pleaded.
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6. Continuing his arguments, learned amicus curiae, after reading out the complaint to us, further pleaded that the cryptic dismissal order dated 14.7.2011 passed by the State Human Rights Commission and the approval of the said order in the writ petition, makes one to feel that the entire scheme of the Protection of Human Rights Act, 1993 had not been well appreciated by them. The justification given by the learned single Judge in his order that the appellant has not furnished the details about the erring policemen such as their names, designation, is totally contrary to the very purpose of the Act. Therefore the orders of both the State Commission and the learned single Judge are not in line with what the Hon'ble Supreme Court has time and again restated. When the State Commission has taken cognizance of the case in SHRC No.893 of 2011, it has simply chosen to dismiss the case after 5 months and 7 days on a lame excuse that the complainant was called absent, hence, the petition stands dismissed for default, which clearly indicates that the Commission has abdicated its responsibility putting the poor victim remediless. Therefore, the impugned order requires to be interfered with, he pleaded.
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7. Per contra, Mr.T.Arunkumar, learned Government Advocate appearing for the respondents, restating the stand taken in the counter affidavit filed by the fifth respondent before the learned single Judge, submitted that one Vinayagam along with other accused Saravanan, Maheshkumar got remanded to judicial custody in connection with the case in Palavanthangal Police Station in Crime No.404 of 2010 under Sections 341, 392 read with 397, 336, 427, 506(ii) of IPC and were kept at Puzhal Central Prison, Chennai. During the course of interrogation made in Madipakkam Police Station in Crime Nos.25 of 2011, 9 of 2011, 966 of 2010, 24 of 2010 under Section 392 of IPC, accused Kumar alias Karibatti Kumar was arrested on 6.1.2011 and his confession was recorded. Therefore, he was remanded to judicial custody and kept at Central Prison, Puzhal, Chennai. Since the confession recorded from the accused revealed that they had also committed the offences relating to Tindivanam Police Station Crime Nos.167 of 2010, 563 of 2010, 708 of 2010 under Section 457, 380 of IPC and Roshanai Police Station Crime Nos.267 of 2010, 270 of 2010 under Sections 457 & 380 of IPC, on the basis of the confession given by the accused Vinayagam in Tindivanam Police Station that in the month of 14/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 September, 2010 within the Roshanai Police Station limits at Gangaiamman Koil Street, broke open the door and committed theft of gold jewels, silver articles and cash of Rs.15,000/- and also confessed that he converted the jewels into ingot and entrusted the same to his wife Malliga residing at Mandaveli, Panruti, all these confession statements were recorded in the presence of the witnesses, Tirumurugan, S/o Venugopal, Tindivanam, Rajadurai, S/o Chinnakannu, Gidangal-II, Tindivanam. Thereafter, on the basis of the confession statement given by the accused Vinayagam, 35 grams of gold ingot were recovered and seized under a cover of mahazar from the accused Vinayagam's wife Malliga at Sathyamurthy Street, Mandaveli, Panruti on 28.1.2011 at about 15.00 hours. Based on the confession statement given by the accused Vinayagam, to enquire Malliga, the policemen went to Sathyamurthy Street, Mandaveli, Panruti. Later on, they came to know that in Sathyamurthy Street, Mandaveli, Panruti, there are two women in the name of Malliga, one Malliga is the wife of Sivakumar and another Malliga is the wife of the accused Vinayagam. Besides the appellant Malliga and the wife of the accused were always found together. When the policemen asked about the wife of the accused Malliga, 15/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 one Ranjitham, the mother in law of the accused pointed the appellant Malliga. Since she was found in the house of the accused Vinayagam, the appellant was brought to Tindivanam Police Station on mistaken identity. Only at Tindivanam Police Station, the appellant Malliga was shown to the accused Vinayagam, who told the policemen that the appellant Malliga was not his wife. Thereafter, the appellant Malliga was brought back to Panruti and was dropped in the house without any torture. When the appellant Malliga was enquired on the bona fide belief that she is the wife of the accused Vinayagam, the appellant's allegation against the policemen cannot be accepted, because there was no torture or misbehaviour. When she was dropped in her house on 26.1.2011, her case that she was admitted in the Panruti Government Hospital on 27.1.2011 shows that the theory of custodial violence is only an after thought. Concluding his arguments, learned Government Advocate submitted that when an enquiry on the basis of the complaint given by the appellant was made, a report was submitted. In the report, it has been concluded that the appellant was brought to Tindivanam Police Station under mistaken identity, therefore, the allegations of ill-treatment and sexual abuse alleged in the affidavit are untrue. 16/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013
8. But this Court is unable to find any substance in the submissions made by the learned Government Advocate for the respondents. Firstly, it is also the categorical case of the respondent police that the appellant Malliga is not the wife of the accused Vinayagam. The averments in paragraphs 7, 10 & 14 of the counter affidavit are repeatedly supporting the case of the appellant that she was brought to the Tindivanam Police Station under mistaken identity. Secondly, the appellant Malliga is residing at Mandaveli, Panruti, but she was taken to Tindivanam Police Station for enquiry. The distance between Mandaveli, Panruti and Tindivanam Police Station is about 58 kms. The appellant was unlawfully detained by the respondent police on 26.1.2011 at 4.00 P.M., and taken in a bus bound for Chennai. When she asked the policemen as to why they are taking her, she was told not to speak anything. When the appellant appears to be from a poor family, as her husband is a coolie, and also the mother of two female children, the two policemen in uniform told her to come with them, failing which she would have to face dire consequences. When the bus reached Tindivanam, she was again taken as pillion in a two wheeler to Tindivanam Police Station. When 17/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 the accused Vinayagam told the policemen that the appellant Malliga was not his wife, she was brought back to Panruti and was dropped in the house at 11.30 P.M. So the time taken from 4.00 P.M., till 11.30 P.M., on 26.1.2011 would clearly show that the appellant has been put to physical and mental torture. Moreover, when the counter affidavit filed by the fifth respondent clearly discloses that the appellant was mistakenly taken to Tindivanam Police Station on the bona fide belief that she was the wife of the accused Vinayagam, it is not known why the policemen who went to her house at Panruti did not make a summary enquiry to ascertain whether she was the wife of the accused Vinayagam or somebody else. Had they asked the appellant whether she was the wife of Vinayagam, she would have told that she is the wife of Sivakumar. When the appellant, admittedly, is the wife of one Sivakumar, it is the solemn responsibility of the policemen to verify whether they are taking the right person for interrogation or custody. In the present case, two policemen not accompanied with any woman police constable have physically and mentally tortured and paraded the appellant from Panruti to Tindivanam Police Station and when this fact has also been admitted by the fifth respondent in the counter affidavit filed before this 18/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 Court, there is no justification for putting an innocent person into untold humiliation in the eyes of the public. In such circumstances, the State Commission ought to have conducted an enquiry. But contrary thereto, it has wrongly dismissed the case on 14.7.2011 on the ground that the appellant was not present when the matter was taken up. If the Commission has no jurisdiction to deal with the complaint or part of the complaint or if the complaint is trivial, frivolous, vexatious or male fide or in other words, if the substance of the complaint has been properly dealt with in another proceeding, in which event the complaint can be dismissed citing proper reasons, or if the complaint appears to be plain and obvious that the complaint will not succeed for one or other reasons, as contemplated under Sections 17 & 18 of the Act, it can pass appropriate orders. But in the case on hand, the victim made the complaint on 7.2.2011 for the incident that took place on 26.1.2011 stating that at about 4.00 P.M., two policemen came to her house and took her by a bus to Tindivanam without even verifying whether she is Malliga, the wife of the accused Vinayagam. When the case registered in SHRC No.893 of 2011 was pending for 5 months and 7 days, it was dismissed in a cryptic manner by the State Commission on 19/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 14.7.2011 stating that “the complainant called absent. No intimation for her absence. In such circumstances, the petition is dismissed for default.” The detailed complaint of the appellant that two policemen forcibly removed her from her house and took her to Tindivanam through a bus and was brought back to Panruti, were all admitted in the counter affidavit filed before the learned single Judge. She also made a serious allegation that she was beaten up by the policemen with lathi and she was also molested by one of the policemen by calling her a prostitute. It may be mentioned at the outset that she is not Malliga, the wife of the accused Vinayagam. While this being the admitted position, had the policemen made an enquiry whether she is the wife of the accused Vinayagam, an innocent poor lady would not have been put to face humiliation affront in the eyes of the public. Therefore, when serious allegations are made, it is the duty of the State Commission to enquire into the matter.
9. Now let us consider the relevant provisions under the Protection of Human Rights Act, 1993 relating to the constitution of the State Human Rights Commissions and the functions and powers vested on them. Section 20/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 21 relates to the constitution of the State Human Rights Commission by the State Government. Under Section 29 of the Protection of Human Rights Act, 1993, certain provisions relating to National Human Rights Commission are made applicable to the State Commission and the said Section reads as follows:-
“S.29. Application of certain provisions relating to National Human Rights Commission to State Commissions.-The provisions of sections 9, 10, 12, 13, 14, 15, 16, 17 and 18 shall apply to a State Commission and shall have effect, subject to the following modifications, namely:—
(a) references to "Commission" shall be construed as references to "State Commission";
(b) in section 10, in sub-section (3), for the word "Secretary-General", the word "Secretary" shall be substituted;
(c) in section 12, clause (f) shall be omitted;
(d) in section 17, in clause (i), the words "Central Government or any" shall be omitted.”
10. A perusal of the above provision shows that the provisions of Sections 9, 10, 12, 13, 14, 15, 16, 17 and 18 of the National Commission 21/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 shall apply to the State Commission. Section 12 deals with the functions of the Commission, which reads thus:-
“12. Functions of the Commission.—The Commission shall perform all or any of the following functions, namely:—
(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf or on a direction or order of any Court, into complaint of—
(i) violation of human rights or abetment thereof; or
(ii) negligence in the prevention of such violation, by a public servant;
(b) intervene in any proceeding involving any allegation of violation of human rights pending before a Court with the approval of such Court;
(c) visit, notwithstanding anything contained in any other law for the time being in force, any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates thereof and make recommendations 22/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 thereon to the Government;
(d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;
(e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures;
(f) study treaties and other international
instruments on human rights and make
recommendations for their effective
implementation;
(g) undertake and promote research in the
field of human rights;
(h) spread human rights literacy among
various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;
(i) encourage the efforts of non-governmental organisations and institutions working in the field of human rights;
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(j) such other functions as it may consider necessary for the promotion of human rights.”
11. A perusal of the above provision shows that the Commission can enquire suo motu or on a petition presented to it by a victim or any person on his behalf into the complaint of violation of human rights, etc. Section 13 deals with the powers relating to enquiries, which is reproduced below:
“13. Powers relating to inquiries.—(1) The Commission shall, while inquiring into complaints under this Act, have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), and in particular in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of witnesses and examining them on oath;
(b) discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any Court or office;
(e) issuing commissions for the examination of witnesses or documents;
(f) any other matter which may be 24/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 prescribed.
(2) The Commission shall have power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject matter of the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of section 176 and section 177 of the Indian Penal Code (45 of 1860).
(3)...
to (7) ...”
12. A perusal of the above provision also shows that the Commission shall have all the powers of a civil Court trying a suit under the Code of Civil Procedure in respect of summoning and enforcing the attendance of witnesses and examining them on oath; discovery and production of any document; receiving evidence on affidavits, etc. When the Commission has got power to require any person to furnish information on such points or 25/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 matters as may be useful for or relevant to the subject matter of enquiry, it is not known why the State Commission has not initiated any enquiry on the appellant's complaint. Moreover, when the Commission has got the power to take suo motu action, merely for the reason that the complainant has not furnished the names of the policemen, designation, etc., taking note of the fact that she was forcibly taken by two policemen to Tindivanam Police Station; that she is noway connected to the alleged offence; that she is not a family member of the accused Vinayagam and more than that, taking her without application of mind to a far away police station by bus and two wheeler and then putting her to face physical and sexual assault is a matter of grave concern, it ought not to have dismissed the complaint without even conducting any enquiry as per the procedure established by law. In our considered view, in spite of the powers conferred on the Commission under Sections 12 & 13 to suo motu enquire into the allegation of custodial violence, the dismissal of the complaint indicates that the State Commission has completely abdicated its responsibility.
13. Coming to the order impugned, the High Court being the protector 26/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 of civil liberties of the citizens, in exercise of its jurisdiction under Article 226 of the Constitution of India, is entitled to grant relief to the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its Officers. The reason given by the learned single Judge for dismissing the complaint of the appellant shows that she has not furnished the names of the policemen. Whereas in the complaint, the appellant has mentioned that she has not included the names of the policemen, but she would be able to identify them. The counter affidavit filed before the learned single Judge supports the case of the appellant that she was forcibly removed from her house by two policemen under mistaken identity. When the transportation of the appellant from Panruti to Tindivanam by bus and her return journey to Panruti got completed between 4.00 P.M., and 11.30 P.M., are all the admitted facts in this case, the learned single Judge could have remanded the matter back to the State Commission to hold a thorough enquiry. Moreover, when the alleged custodial violence has also been admitted by the fifth respondent in the counter affidavit that the appellant was mistakenly taken by the policemen 27/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 from Panruti to Tindivanam and for more than seven hours the poor lady, mother of two female children, was put to alleged sexual and physical assault, without even holding any enquiry, the impugned order dismissing the writ petition is unsustainable in law. From the admitted portion of the counter affidavit filed by the fifth respondent, a man of ordinary prudence does not require any second thought that the appellant-victim has been subjected to custodial violence for no good reason. Further, when it is the admitted case of both parties that only Malliga, the wife of the accused Vinayagam should have been taken to the police station for interrogation, but on the contrary, the alleged unlawful act of the policemen in taking the appellant Malliga, the wife of one Sivakumar, without being guarded by a woman police constable, to a far away place ie.,Tindivanam Police Station from Mandaveli, Panruti by two means of transport viz., bus and two wheeler and detaining her for more than 7 hours coupled with physical and mental suffering, in our considered opinion, is a clear infringement of her indefeasible right to life and personal liberty guaranteed under Article 21 of the Constitution of India.
14. In this context, we will now refer to some of the judgments of the 28/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 Hon'ble Supreme Court on these issues. In the case of Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96, the Supreme Court has held that interrogation of females should be carried out only in the presence of female police Officers/Constables. While dealing with the infringement of personal liberty of citizens by the Police, the Supreme Court in the case of Bhim Singh, MLA v. State of J & K and others, (1985) 4 SCC 677, has observed as follows:-
“2....We can only say that the police officers acted in a most high-handed way. We do not wish to use stronger words to condemn the authoritarian acts of the police. If the personal liberty of a Member of the Legislative Assembly is to be played with in this fashion, one can only wonder what may happen to lesser mortals! Police officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to such bizarre acts of lawlessness. Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct. ”
15. In the case of P.Rathinam v. Union of India and others, 1989 29/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 Supp (2) SCC 716, while dealing with the complaint of the victim that she had undergone a lot of suffering – physical and mental, taking on file the affidavit filed by the State pursuant to the notice indicating therein that four of the police officers of different grades said to be involved in the incident of rape have since been suspended from service, taken into custody and are being proceeded against, the Apex Court has held that the victim has become entitled to reasonable compensation and accordingly, awarded an interim compensation of Rs.20,000/- to be paid by the State.
16. A three-Judge Bench of the Hon'ble Supreme Court in the case of Nilabati Behera (Smt) alias Lalita Behera (through the Supreme Court Legal Aid Committee) v. State of Orissa and others, 1993 (2) SCC 746, while dealing with the custodial death of a 22 year old boy in police custody, entertaining the writ petition filed by mother claiming compensation alleging violation of Article 21 for the death of her son in police custody, the Apex Court, holding that award of compensation in proceedings under Article 226 for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law, observed 30/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 as follows:-
“33. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the Courts too much as protector and guarantor of the indefeasible rights of the citizens. The Courts have the obligation to satisfy the social aspirations of the citizens because the Courts and the law are for the people and expected to respond to their aspirations.
34. The public law proceedings serve a different purpose than the private law proceedings.
The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. 31/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 Therefore, when the Court moulds the relief by granting "compensation" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a Court of competent jurisdiction or/and prosecute the offender under the penal law.
32/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013
35. This Court and the High Courts, 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 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India 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. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the Court in the facts and circumstances of the case, is possible. The decisions of this Court in the line of cases starting 33/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 with Rudul Sah v. State of Bihar and another, (1983) 4 SCC 141 granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 32 or 226 of the Constitution of India, notwithstanding the rights available under the civil law to the aggrieved party where the Courts found that grant of such relief was warranted. 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 rights of a citizen under Article 21 is concerned. Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the Courts 34/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 have to act firmly but with certain amount of circumspection and self restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law.”
17. Again quoting with approval the above observations, in the case of D.K.Basu v. State of West Bengal, 1997 Crl.L.J. 743, holding that any form of torture or cruel, inhuman or degrading treatment fall within inhibition of Article 21, whether it occurs during investigation, interrogation or otherwise, the Apex Court has observed as follows:-
“44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages of tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is remedy available in public law since 35/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrong doer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.
45. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the Courts too much, as the protector and custodian of the indefeasible rights of the citizens. The Courts have the obligation to satisfy the social aspirations of the citizens because the Court and the law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim 36/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013
- civil action for damage is a long drawn and cumber some judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the bread winner of the family.”
18. Again in the case of Mehmood Nayyar Azam v. State of Chhattisgarh and others, (2012) 8 SCC 1, explaining when the compensation can be awarded on the complaint of custodial humiliation and mental torture meted out to the appellant at the hands of insensible police officials, the Apex Court has held as follows:-
“40. As we perceive, from the admitted facts borne out on record, the appellant has been humiliated. Such treatment is basically inhuman and causes mental trauma. In Kaplan & Sadock’s Synopsis of Psychiatry, while dealing with torture, the learned authors have stated that intentional physical and psychological torture of one human by another can have emotionally damaging effects 37/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 comparable to, and possibly worse than, those seen with combat and other types of trauma. Any psychological torture inflicts immense mental pain. A mental suffering at any age in life can carry the brunt and may have nightmarish effect on the victim. The hurt develops a sense of insecurity, helplessness and his self-respect gets gradually atrophied. We have referred to such aspects only to highlight that in the case at hand, the police authorities possibly have some kind of sadistic pleasure or to “please someone” meted out the appellant with this kind of treatment.
41. It is not to be forgotten that when dignity is lost, the breath of life gets into oblivion. In a society governed by rule of law where humanity has to be a laser beam, as our compassionate Constitution has so emphasized, the police authorities cannot show the power or prowess to vivisect and dismember the same. When they pave such path, law cannot become a silent spectator.
As Pithily stated in Jennison v. Baker, (1972) 2 QB 52:
“The law should not be seen to sit by 38/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 limply, while those who defy if go free, and those who seek its protection lose hope.”
42. Presently, we shall advert to the aspect of grant of compensation. The learned counsel for the State, as has been indicated earlier, has submitted with immense vehemence that the appellant should sue for defamation. Our analysis would clearly show that the appellant was tortured while he was in custody. When there is contravention of human rights, the inherent concern as envisaged in Article 21 springs to life and enables the citizen to seek relief by taking recourse to public law remedy.
46. On a reflection of the facts of the case, it is luculent that the appellant had undergone mental torture at the hands of insensible police officials.
He might have agitated to ameliorate the cause of the poor and the downtrodden, but, the social humiliation that has been meted out to him is quite capable of destroying the heart of his philosophy. It has been said that philosophy has the power to 39/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 sustain a man’s courage. But courage is based on self-respect and when self-respect is dented, it is difficult even for a very strong minded person to maintain that courage. The initial invincible mind paves the path of corrosion. As is perceptible, the mindset of the protectors of law appears to cause torment and insult and tyrannize the man who is helpless in custody. There can be no trace of doubt that he is bound to develop stress disorder and anxiety which destroy the brightness and strength of the will power. It has been said that anxiety and stress are slow poisons. When torment is added, it creates commotion in the mind and the slow poisons get activated. The inhuman treatment can be well visualized when the appellant came out from custody and witnessed his photograph being circulated with the self-condemning words written on it. This withers away the very essence of life as enshrined under Article 21 of the Constitution. Regard being had to the various aspects which we have analysed and taking note of the totality of facts and circumstances, we are disposed to think that a sum of Rs.5.00 lacs (Rupees five lacs only) should be granted towards compensation to the 40/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 appellant and, accordingly, we so direct. The said amount shall be paid by the respondent State within a period of six weeks and be realized from the erring officers in equal proportions from their salary as thought appropriate by the competent authority of the State.”
19. In the light of the above dictum laid down by the Hon'ble Apex Court, in the case on hand, we are able to appreciate the following admitted facts, as pleaded by the parties:-
19.1. The poor appellant Malliga, who is the wife of one Sivakumar and the mother of two female children, under mistaken identity, without any bare verification, was forcibly taken from her house at Mandaveli, Panruti by two policemen in uniform on 26.1.2011 at 4.00 P.M., under the guise of interrogation to Tindivanam Police Station, a distance of 58 kms., without being guarded by a woman police officer/constable through two means of transport, namely, bus and two wheeler.
19.2. On reaching the police station at Tindivanam, the appellant was 41/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 locked inside a room informing that women police would enquire her.
19.3. After sometime, the door of the room was knocked by someone and when the door was opened, a policeman in uniform, who tied a handkerchief on his head, entered the room and the door was closed. The appellant has specifically stated that the three policemen can be identified by her, as their names are not known to her.
19.4. One of the policemen sat in a chair and asked another policeman to take a lathi. After taking the lathi, he beat the appellant on her head.
When she shouted in pain and shame, one another policeman slapped on her cheek and also abused her. The policeman who beat the appellant with lathi also molested her and she shouted in pain and shame.
19.5. When the appellant cried and pleaded with the policemen to show her husband, one policeman showed a photograph and on seeing it, the appellant stated that he is not her husband and he is Vinayagam, the accused who is staying near her house. The accused also came and after seeing the appellant told the police officers that she is not his wife.
19.6. Thereafter, the policemen took the appellant to Tindivanam jail in a two wheeler and was made to stand outside the jail along with two 42/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 policemen, as one of the policemen went inside the jail and returned after enquiry.
19.7. In the enquiry, when the accused Vinayagam admitted that the appellant Malliga is not his wife, the three policemen returned from Tindivanam and dropped her in her street at Mandaveli, Panruti at 11.30 P.M., through an auto. When the relatives and villagers questioned the policemen for their unlawful act, the three policemen pushed them and escaped in the same auto after informing them to come to Panruti Police Station.
19.8. When the relatives took the appellant to Panruti Police Station and lodged a complaint, the policemen in the station stated that they cannot do anything and asked the appellant to make the complaint before the Villupuram District Police.
19.9. Thereafter, the appellant was admitted in Panruti Government Hospital as an inpatient on 27.1.2011, as she was subjected to severe physical and alleged sexual abuse. The appellant lodged the complaint before the State Human Rights Commission on 7.2.2011, which was taken 43/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 on file in SHRC No.893 of 2011 by the Commission.
20. Further, the fifth respondent-Superintendent of Police, Villupuram has also admitted in the counter affidavit filed before the learned single Judge that the appellant Malliga was taken to Tindivanam Police Station, but on the lame excuse of mistaken identity. However, the Commission, after waiting for 5 months and 7 days, by a cryptic order dated 14.7.2011, has dismissed the complaint observing as follows:-
“Complainant called absent. No intimation for her absence. In the circumstance, petition is dismissed for default of the petitioner.”
21. When the said order was put to challenge in the writ petition, the learned single Judge, exercising jurisdiction under Article 226 of the Constitution, being the protector of civil liberties of the citizen, on the alleged complaint of infringement of her fundamental rights of right to life and personal liberty guaranteed under Article 21 of the Constitution, in order to find out the truth or otherwise of the complaint, without remanding 44/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 the matter to the State Commission to conduct an enquiry, as per the procedure established by law, has wrongly dismissed the case of the appellant on the ground that she has not furnished the names of the policemen who did wrong to her.
22. When the Hon'ble Supreme Court in D.K.Basu's case, Crl.L.J.743 (supra) has categorically held that the award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law, the purpose of public law is not only to civilise the public power, but also to assure the citizens that they live under a legal system ensuring the rule of law, wherein their rights and interests are being protected and preserved under Article 21 of the Constitution and the violation thereof would invoke the grant of compensation in the proceedings under Article 226 of the Constitution of India for penalising the wrong doer by fixing the liability under the public law jurisdiction for the public wrong on the State, which failed in the discharge of its public duty to protect the fundamental rights of the citizen, therefore, in the case on hand, we do not find any hesitation to remand the 45/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 matter back to the file of the State Human Rights Commission to enquire into the matter afresh with a direction to the respondent State to pay interim compensation to the appellant for the physical and mental torture meted out to her at the hands of the respondent police.
23. Recently, the Hon'ble Division Bench of this Court in the case of State of Tamil Nadu represented by its Secretary to Government, Home Department and others v. S.Anand and others, 2020 1 CWC 257, while dealing with the custodial torture, bodily injury and humiliation suffered by the writ petitioner therein, in the light of the ratio laid down by the Apex Court in the judgments cited supra, has also confirmed the order passed by the learned single Judge in awarding compensation of Rs.1,00,000/- to the writ petitioner therein.
24. For all the aforementioned reasons, having been prima facie satisfied with the complaint of custodial violence, for outraging the modesty of the appellant, being the mother of two female children, while setting aside the order passed in the writ petition as well as the order passed by the State 46/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 Human Rights Commission, we remand the matter back to the file of the State Human Rights Commission to enquire into the complaint of the appellant afresh and find out who are the officers who have illegally detained the appellant and committed custodial violence on 26.1.2011, as per the procedure established by law, within a period of five months from the date of receipt of a copy of this order. Considering the facts and circumstances of the case, we also direct the respondent State to pay a sum of Rs.3,00,000/- (Rupees three lakhs only) as interim compensation to the appellant within a period of four weeks from the date of receipt of a copy of this order, leaving it open to the State Human Rights Commission to do the needful on merits and in accordance with law.
25. Before parting with the case, we wish to place on record our appreciation for Mr.N.Jothi, learned counsel for his painstaking efforts and valuable assistance rendered by him as amicus curiae to this Court. Since Mr.N.Jothi, learned amicus curiae, on his own, has filed two voluminous paperbook containing 30 judgments of the Supreme Court and this Court dealing with custodial violence enlightening this Court, recognising his 47/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 assistance with gratitude, we direct the Tamil Nadu State Legal Services Authority to pay a sum of Rs.10,000/- (Rupees ten thousand only) to the learned amicus curiae.
26. With these observations, the writ appeal stands allowed. However, there is no order as to costs.
Speaking order (T.R.,J.) (V.S.G., J.)
Index : yes 23.11.2021
Issue on 3.12.21
ss
To
1. The Secretary to Government, Home Department, Secretariat, Chennai-9
2. The District Collector, Cuddalore District, Cuddalore
3. The District Collector, Villupuram District, Cuddalore
4. The Superintendent of Police, Cuddalore District, Cuddalore
5. The Superintendent of Police, Villupuram District, Villupuram
6. The Inspector of Police,Tindivanam Police Station, Villupuram District
7. The Inspector of Police, Panruti Police Station, Cuddalore District
8. The Member Secretary, TNSLA, Chennai 48/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 T.RAJA, J.
and V.SIVAGNANAM, J.
ss Judgment in W.A.No.2558 of 2013 23.11.2021 49/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 W.A.No.2558 of 2013 T.RAJA, J.
& V.SIVAGNANAM, J.
(Judgment of the Court was made by T.RAJA, J.) After the pronouncement of the judgment, Mr.N.Jothi, learned amicus curiae requested this Court that the direction to the Tamil Nadu State Legal Services Authority to pay him a sum of Rs.10,000/- may be rescinded, as he has assisted the Court in academic interest for disposal of the case.
2. Accepting his magnanimous request, the last sentence in paragraph-25 directing the Tamil Nadu State Legal Services Authority to pay a sum of Rs.10,000/- to the learned amicus curiae is hereby rescinded.
Speaking order (T.R.,J.) (V.S.G., J.)
Index : yes 23.11.2021
Issue on 3.12.21
ss
50/52
https://www.mhc.tn.gov.in/judis
W.A.No.2558 of 2013
To
1. The Secretary to Government, Home Department, Secretariat, Chennai-9
2. The District Collector, Cuddalore District, Cuddalore
3. The District Collector, Villupuram District, Cuddalore
4. The Superintendent of Police, Cuddalore District, Cuddalore
5. The Superintendent of Police, Villupuram District, Villupuram
6. The Inspector of Police,Tindivanam Police Station, Villupuram District
7. The Inspector of Police, Panruti Police Station, Cuddalore District
8. The Member Secretary, TNSLA, Chennai 51/52 https://www.mhc.tn.gov.in/judis W.A.No.2558 of 2013 T.RAJA, J.
and V.SIVAGNANAM, J.
ss W.A.No.2558 of 2013 23.11.2021 52/52 https://www.mhc.tn.gov.in/judis