Madras High Court
G. Barathi vs The State Of Tamil Nadu on 20 September, 2013
Author: N. Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20-9-2013 CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.16352 of 2012 G. Barathi .. Petitioner Vs. 1. The State of Tamil Nadu, rep.by the Secretary to Government, Home Department, Secretariat, Chennai 600 009. 2. The Director General of Police, Mylapore, Chennai 600 004. 3. The Superintendent of Police, Thiruvallur District, Thiruvallur. 4. The Superintendent, Sub-Jail, Saidapet, Chennai 600 034. 5. Venkatesan, Inspector of Police, Ponneri Police Station, Thiruvallur District. 6. Kumar, Sub Inspector of Police, Minjur Police Station, Thiruvallur District. 7. S. Bashkar, Sub Inspector of Police, Sholavaram Police Station, Thiruvallur District. 8. Maruthu Pandiyan, Sub-Inspector of Police, Sholavaram Police Station, Thiruvallur District. .. Respondents PRAYER : This writ petition is filed under Article 226 of the Constitution of India with a prayer to issue a Writ of Mandamus directing the 4th respondent to provide proper medical treatment to the petitioner's son G.Arun and further directing respondents 1 to 3 to initiate appropriate proceedings against respondents 5 to 8 for illegal arrest, torture and fabricating a false case registered against the petitioner's son and further direct the 1st respondent State of Tamil Nadu to award appropriate compensation to the petitioner's son and also ordering judicial enquiry into the attack on the petitioner's son. For Petitioner : Mr.M.Radhakrishnan for Mr.P.Pugalenthi For Respondents : Mr.V. Shanmughavelayutham, Public Prosecutor O R D E R
This writ petition is filed by the petitioner, who is mother of one G.Arun, praying for issuance of a writ of mandamus directing 4th respondent to provide proper medical treatment to her son viz., G.Arun and further direct respondents 1 to 3 to initiate appropriate proceedings against respondents 5 to 8 for the illegal arrest, torture and fabricating a false case against the said G.Arun and for a direction to the State Government to award appropriate compensation to petitioner's son as well as to order judicial enquiry for the said attack.
2. The brief facts necessary for disposal of the writ petition are as follows:
(a) On 16.6.2012 at about 2.30 a.m., respondents 7 and 8 with four other policemen, came in a Tata Sumo Police vehicle, entered into the house and ransacked the house and assaulted the petitioner's son G.Arun with lathis and boot legs and took her son in the Police vehicle.
(b) The whereabouts of the petitioner's son having not been known, petitioner sent telegrams to the second respondent on 19.6.2012 and also representations to respondents 1 to 3 requesting to release her son G.Arun.
(c) On 20.6.2012 petitioner came to know that her son was remanded by the Judicial Magistrate Court No.II, Ponneri, and went to Ponneri and saw her son with injuries all over his body. He was remanded to judicial custody in connection with Cr.No.313 of 2012 on the file of Sholavaram Police Station.
(d) On 21.6.2012 petitioner visited the Sub-Jail, Saidapet and enquired about his injuries. He told that he was hung on a rope by the respondents 5 and 6 and was beaten mercilessly with lathi and respondents 5 and 6 had burnt his flesh on the back.
(e) On 21.6.2012 itself petitioner sent representations to respondents 1 to 4 for giving medical treatment to her son and also to initiate appropriate action against respondents 5 to 8. As no medical treatment was given, the petitioner filed this writ petition before this Court on 26.6.2012 and prayed for issuing a writ of mandamus directing the 4th respondent to provide appropriate medical treatment to her son and for further direction to respondents 1 to 3 to initiate appropriate proceedings against respondents 5 to 8 for arrest, torture and fabricating false case, with further direction to first respondent for awarding compensation to petitioner's son and also to order judicial enquiry regarding the attack on petitioner's son G.Arun.
3. On 28.6.2012 learned Special Government Pleader took notice for respondents and sought time to get instructions. The matter was posted on 4.7.2012 and again adjourned to 5.7.2012. On that date, learned Advocate General agreed to produce petitioner's son G.Arun before this Court on 6.7.2012.
4. On 6.7.2012 petitioner's son was produced before this Court to verify as to whether the petitioner's son was subjected to any third degree treatment and whether he required any further medical treatment. After seeing petitioner's son, this Court passed the following order;
"3. Even before this Court, the petitioner's son was limping and was not in a normal health condition and when asked about the nature of injuries sustained, he mentioned the names of the respondents, who were responsible for the injuries. He also submitted that his health condition requires further treatment.
4. Though the learned Judicial Magistrate, Ponneri has been periodically recommending the extension of the accused for remand, it is seen that when the matter was taken up yesterday by the learned Judicial Magistrate, Ponneri, the detenu was produced before him. The learned Magistrate has made a noting dated 5.7.2012 that the police are directed to produce the accused before the hospital for adequate treatment.
5. This Court is not pleased with the conduct of the Police or the remand Magistrate. Therefore, a direction is issued to the respondents to admit the detenu, who is now detained in Sub Jail, Saidapet, as an inpatient in Government Royapettah Hospital immediately. It is also made clear that if there is any complaint about the further ill treatment to the petitioner's son, the same will not be tolerated by this Court."
Petitioner's son also filed an affidavit before this Court on 25.7.2012 wherein he has explained the alleged hand-cuffing, beating and inhumen treatments.
5. Pursuant to the order of this Court dated 6.7.2012, petitioner was given treatment and a medical report was also called for. In the medical report dated 17.7.2012 submitted by Dr.Princess Beulah, Assistant Professor, Convict Ward, Government Royapettah Hospital, Chennai, it is stated that the petitioner's son was admitted in the hospital on 6.7.2012 in convict ward, who was seen by Dr.S.Maniselvi on 6.7.2012 with alleged history of assault by five known persons (males) using pipe, heated iron rod, wooden stick, lighted match stick about 20 days ago all over the body at Thirupuram Police Station and has sustained multiple injuries. On examination of petitioner's son's body totally 33 injuries/scars were found. Of the 33 injuries/scars, Injury No.5 Right arm lateral aspect 4 x 2 cm; Injury No.27 Right great toe bluish discolouration of nail; and Injury No.32 Left lower limb anterior aspect of foot multiple scars extending into the foot, etc., were also noticed. Under the heading 'Surgery (15.7.2012)' it is stated that Right great toe nail avulsed and nail bed found congested with blood clots; nail removed and sterile dressing applied. Other injuries are noted as scars. When the petitioner's son was admitted in the prison on 20.6.2012, no injury was noticed and only identification marks were noticed and copy of the same was also furnished before this Court by the learned Public Prosecutor.
6. The third respondent has filed counter affidavit stating that on 19.6.2012 a telegram was received from the petitioner, which has no significance as the petitioner's son was not in custody, who was arrested only on 20.6.2012 and was produced before the learned Judicial Magistrate No.II, Ponneri, for remand and no complaint was made before the learned Magistrate against the police. It is also stated that petitioner's son is involved in cases in Crime Nos.219/2011, 222/2011, 571/2011, 636/2011, 313/2012, 314/2012, 325/2012 on the file of Cholavaram Police Station and one case in Kavarapettai Police Station for offence under section 379 IPC. Petitioner's son was not ill-treated by respondents 5 to 8.
7. The 5th respondent has also filed a counter affidavit and denied the alleged custodial violence.
8. Having regard to the dispute raised by the parties, this Court by interim order dated 7.11.2012, thought fit to direct the learned Principal District Judge, Thiruvallur, to enquire into the alleged illegal detention of the petitioner's son G.Arun, and the alleged torture and injuries inflicted on him by respondents 5 to 8 and submit a report before this Court.
9. Pursuant to the said direction issued, enquiry was conducted by the learned Principal District Judge, Thiruvallur, by issuing notice to the petitioner and his son G. Arun to appear on 28.1.2013 at 10.00 a.m. Accordingly they appeared on the said date with their counsel and gave statements. On 19.2.2013, the learned Principal District Judge, Thiruvallur visited the Thirupalaivanam Police Station along with the jurisdiction Magistrate and verified all the registers maintained in the said Police Station in the presence of the Station House Officer. He also inspected the lock-up room as well as the duty roaster for the dates from 16.6.2012 to 19.6.2012 and found that the following persons were on duty,
1. Peter, Special Sub-Inspector
2. Chandran, Special Sub-Inspector
3. Simon, Special Sub-Inspector
4. Rajendran, Inspector
5. T. Thangaraj, Sub-Inspector (Law & Order)
6. V. Sekar, Special Sub-Inspector
7. Selvaraj, Special Sub-Inspector Thereafter, the learned Principal District Judge went to E5 Sholavaram Police Station, Thiruvallur District, at 5.30 p.m. and verified all the registers pertaining to the detenu viz., G.Arun and noted that he was brought to E5 Sholavaram Police Station on 20.6.2012 at 11.00 a.m. as per G.D. Entry made by the Inspector of Police Ahmed Abdul Kadar; Sub-Inspector Baskar; Special Sub-Inspector Durai; and Grade-I Police Constable Vijayan. Thereafter the detenu was brought to Court by Special Sub-Inspector Durai and Gr-I Police Constable Vijayan at 13.15 hours on 20.6.2012. The learned Principal District Judge also verified the PSR Register, wherein there is no entry regarding the injuries already sustained by the detenu before arrest. He also verified the antecedence of the detenu against, whom some cases were registered under section 379 IPC. During inspection, the learned Principal District Judge was informed that Venkatesan, Special Sub-Inspector of Police was transferred to Tirunelveli; Kumar, Sub-Inspector of Police was transferred to Thiruppur; and Marudupandian, Special Sub-Inspector of Police applied medical leave from 30.5.2012 to 23.6.2012.
10. The Resident Medical Officer, Government Royapettah Hospital was addressed on 27.3.2013 and 2.4.2013 for convenience to appear on 2.4.2013, who expressed inconvenience due to pre-occupation. Finally, the learned Principal District Judge went to Government Royapettah Hospital and enquired Dr.Maniselvi, Assistant Professor and Dr.R.Rosy Adhaline Selvi and Dr.Princess Beulah, Assistant Professors on 8.4.2013 and verified the medical reports and obtained their statements. They have noted 33 injuries including scars found on the injured and stated about the treatment given between 6.7.2012 to 22.7.2012 and that he was discharged in good condition.
11. The learned Judicial Magistrate No.II, Ponneri, who is the jurisdictional Magistrate of Sholavaram P.S. submitted a report stating that the detenu was produced before him on 20.6.2012 at 6.00 p.m. and remanded to judicial custody till 4.7.2012 in connection with Cr.Nos.591/2011, 313/2012, 314/2012 and 325/2012. When the detenu was produced for remand extension the said detenu has stated as follows (translated version):
"For about four days, i.e., 17 to 20th, Baskar, S.I.; Marudhupandian, S.I., Chozhavaram; Venkatesan, Inspector of Police, Ponneri; and Kumar, S.I., Minjur; illegally detained and assaulted me in the Thirupalaivanam P.S., by hanging me upside down, beat me and tortured me and cauterized me with a hot iron rod. Later, on 20th, when I was to be produced before the Judicial Magistrate Court NO.2, Ponneri, they threatened by saying that if I disclose the matter before Court, they would murder me by running over a Tata Sumo Car on me, while taking to the prison. Since the aforesaid police personnel have beat me, I have sustained wounds and burn injuries all over my body. No proper treatment was given. I request you to provide me treatment immediately."
12. According to the report of the learned Principal District Judge, Thiruvallur, there was no eye witness, except the oral testimony of the detenu regarding the alleged assault and ill-treatment in police custody and that four police personnel assaulted him and ill-treated him. The learned Principal District Judge, in his report D.No.1741/A/23, dated22.4.2013, addressed to the Registrar General of this Court, observed as follows:
"The Police ought to have specified the injuries and scars found on the detenu in P.S.R. and in the remand report. But no such entries were found in the P.S.R. and not stated in the requisition for judicial custody.
In the above circumstances, I submit that there is reasons to believe that the detenu exaggerated the events with intention to make allegations against the police officials and made certain falsehood before me.
Considering the overall circumstances, statements of the detenue and his mother/writ petitioner Bharathi and Medical treatment records, I submit that the Police officials has used force against the detenu Arun at the time of interrogation and investigation."
(Emphasis Supplied)
13. The learned counsel appearing for the petitioner, relying upon the above said report as well as the findings recorded by this Court on 6.7.2012 after seeing the detenu in person, submitted that the petitioner's son has been assaulted and ill-treated in police custody by Police Personnel, for which the petitioner is entitled to get compensation and judicial enquiry is to be ordered to find out the aggressors and they are bound to be prosecuted for committing custodial violence.
14. The learned Public Prosecutor on the other hand, relying on the counter affidavits filed by the respective respondents submitted that the police have not assaulted the detenu and the injuries/scars available on the body of the detenu were already there prior to the arrest and admission in jail, and that the detenu has not given any complaint to the police or before the learned Magistrate at the first instance, and during production of the accused/detenu for remand extension false allegations were made.
15. I have considered the submissions made by the learned counsel for the petitioner as well as learned Public Prosecutor, and perused the interim order passed by this Court dated 6.7.2012; the form of remand warrant dated 20.6.2012; the order passed by the learned Judicial Magistrate No.II, Ponneri, dated 5.7.2012 giving direction to give adequate treatment; the injuries noted by the Duty Medical Officer, Government Hospital, Ponneri, dated 5.7.2012; as well as the report submitted to the Registrar General of this Court, by the learned Principal District Judge, Tiruvallur, dated 22.4.2013 and the documents annexed with the report.
16. In the form of remand warrant dated 20.6.2012 submitted to the learned Judicial Magistrate and the Sub-Jail, Saidapet, no injury/scar was noted on the body of the detenu. It is not in dispute that from 20.6.2012, the detenu was a remand prisoner and on 5.7.2012 when the detenu was produced before the learned Judicial Magistrate No.II, Ponneri, for remand extension, he has stated that he was assaulted by the Police personnel. The learned Judicial Magistrate ordered to give adequate medical treatment through her letter No.703/2012 dated 5.7.2012. The Duty Medical Officer, Government Hospital, Ponneri noted the following injuries;
(1) contusion 3 x 3 cm at back side of left thigh, (2) contusion on left great toe 2= x 2= cm, and (3) multiple scars all over the body, and opined that the contusions noted in the first page needs medical attention as the other noted injuries are well healed as scars.
17. In the order passed by this Court on 6.7.2012 it is stated that petitioner's son was limbing and was not in normal health condition, and he requires immediate treatment. The learned Principal District Judge in his report dated 22.4.2013 clearly stated that the injuries on the detenu has not been stated in the remand report and also gave a finding that the Police used force against the detenu at the time of interrogation and investigation. It is not the case of the respondents that the detenu retaliated arrest, and threatened or attacked the police, either during arrest or during interrogation. Hence, I am of the firm view that the petitioner's son viz., G.Arun was ill-treated and assaulted in police custody and sustained injuries at the time of interrogation and investigation.
18. The Hon'ble Supreme Court in the decision reported in AIR 1997 SC 610 (D.K.Basu v. State of West Bengal) held that any form of torture or cruel, inhuman or degrading treatment to the person in custody would fall within the inhibition of Article 21 of the Constitution of India, whether it occurs during investigation, interrogation or otherwise. To prevent such custodial violence, the Supreme Court framed guidelines to be followed when a person is arrested, which is stated in detail in paragraph 36. Clause (7) and (8) of the said guidelines reads as follows:
"(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained Doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well."
In paragraph 37 the Supreme Court further held that, "Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter."
Sections 330 and 331 of IPC provide for punishment of those who inflict injury or grievous hurt on a person to extort confession or information in regard to commission of an offence. The Supreme Court in the above cited decision held that prosecution of an offender is an obligation of the State in case of every crime, but the victim of crime needs to be compensated monetarily also.
19. Now, the issue to be decided is whether a person sustained injuries in Police custody due to assault, is entitled to get compensation, and whether departmental enquiry/judicial enquiry can be ordered against the persons, who ill-treated/assaulted the detenu.
20. The Honourable Supreme Court in the decision reported in AIR 2012 SC 2573 : (2012) 8 SCC 1 (Mehmood Nayyar Azam v. State of Chhattisgarh) held that right to life guaranteed under Article 21 of the Constitution of India includes the right to live with human dignity and even an accused, who is in custody cannot be comatosed. In paragraphs 25, 26 and 38 (in SCC) the Supreme Court held thus, "25. It needs no special emphasis to state that when an accused is in custody, his fundamental rights are not abrogated in toto. His dignity cannot be allowed to be comatosed. The right to life is enshrined in Article 21 of the Constitution and a fortiori, it includes the right to live with human dignity and all that goes along with it. It has been so stated in Francis Coralie Mullin v. UT of Delhi ((1981) 1 SCC 608 : AIR 1981 SC 746) and D.K. Basu (AIR 1997 SC 610).
26. In Kharak Singh v. State of U.P. (AIR 1963 SC 1295 : (1964) 1 SCR 332) this Court approved the observations of Field, J. in Munn v. Illinois ((1876) 94 US 113):
15. By the term life as here [Article 21] used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. (L Ed p. 90)
38. It is imperative to state that it is the sacrosanct duty of the police authorities to remember that a citizen while in custody is not denuded of his fundamental right under Article 21 of the Constitution. The restrictions imposed have the sanction of law by which his enjoyment of fundamental right is curtailed but his basic human rights are not crippled so that the police officers can treat him in an inhuman manner. On the contrary, they are under obligation to protect his human rights and prevent all forms of atrocities. We may hasten to add that a balance has to be struck and, in this context, we may fruitfully quote a passage from D.K. Basu (AIR 1997 SC 610):
33. There can be no gainsaying that freedom of an individual must yield to the security of the State. The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statutes has been upheld by the courts. The right to interrogate the detenus, culprits or arrestees in the interest of the nation, must take precedence over an individuals right to personal liberty. The action of the State, however, must be right, just and fair. Using any form of torture for extracting any kind of information would neither be right nor just nor fair and, therefore, would be impermissible, being offensive to Article 21. Such a crime suspect must be interrogated indeed subjected to sustained and scientific interrogation determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third-degree methods or eliminated with a view to elicit information, extract confession or derive knowledge about his accomplices, weapons, etc. His constitutional right cannot be abridged [except] in the manner permitted by law, though in the very nature of things there would be qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal. (Emphasis Supplied) In the said judgment, after noticing the human rights violation, the Hon'ble Supreme Court awarded a sum of Rs.5 lakhs as compensation to the victimised person in police custody, with liberty to the State to proceed against the erring officials and recover the same in equal proportion from their salary, as thought proper by the competent authority of the State.
21. The Division Bench of this Court in 2008 (2) LW (Crl) 860 (Coimbatore Bar Association & Another v. State of Tamil Nadu & Others), based on a report submitted by the Commissioner, appointed by this Court (Hon'ble retired Judge of this Court), after noticing the human rights violations, directed the State Government to pay a sum of Rs.50,000/- to the victim, for violations of human rights by the police officials, and granted liberty to the State for recovery from the erring officials.
22. Thus, it is beyond doubt that once human rights violations are established to a person, who is in police custody, the victim is entitled to get compensation as a matter of right.
23. Considering the overall aspects in this case, I am of the view that the son of the petitioner viz., G.Arun, who was assaulted and ill-treated in police custody, due to which he sustained injuries, for which he took treatment in custody from 6.7.2012 to 22.7.2012 as per the report of the Duty Assistant Surgeon, annexed along with the report of the Principal District Judge, is entitled to get compensation of Rs.50,000/- from the State Government, viz., first respondent. The first respondent is further directed to conduct departmental enquiry and fix liability on persons, who were in charge at the relevant time of arrest and interrogation, and recover the said amount proportionally from the erring officials. The said amount of compensation is directed to be paid to the said G.Arun by the State Government, within four weeks from the date of receipt of copy of this order. As judicial enquiry is already over in this matter, no further judicial enquiry need be ordered. The Registry is directed to preserve the report of the learned Principal District Judge, Thiruvallur, dated 22.4.2013, along with the case papers.
The writ petition is ordered with the above directions. No costs.
Index : Yes/No 20-9-2013
Internet : Yes/No
vr
To
1. The Secretary to Government, Home Department,
State of Tamil Nadu, Secretariat, Chennai 600 009.
2. The Director General of Police, Mylapore, Chennai 600 004.
3. The Superintendent of Police, Thiruvallur District, Thiruvallur.
4. The Superintendent, Sub-Jail, Saidapet, Chennai 600 034.
N. PAUL VASANTHAKUMAR, J.
vr
Pre-Delivery Order in
W.P.No.16352 of 2012
20-9-2013