Madras High Court
People'S Watch vs The Government Of Tamil Nadu on 6 September, 2018
Bench: T.Raja, Krishnan Ramasamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.09.2018
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
W.P.(MD)No.2958 of 2009
People's Watch
represented by its Executive Director,
Henri Tiphagne,
having office at 6, Vallabai Road,
Chokkikulam,
Madurai District.
...
Petitioner
Vs.
1. The Government of Tamil Nadu
represented by its Secretary,
Home Department,
Secretariate,
Chennai ? 9.
2. The Director General of Police,
Kamarajar Salai,
Chennai District 600 004.
3. The District Collector,
O/o. The District Collector,
Marudhu Pandian Nagar,
Sivaganga District 630 562.
4. The District Collector,
O/o the District Collector,
Ramanathapuram District,
Ramanathapuram.
5. The District Collector,
O/o. The District Collector,
Thanjavur 631 001.
6. The District Collector,
O/o. The District Collector,
Pudukottai District,
Pudukottai.
7. The District Collector,
O/o. The District Collector,
Madurai Main Road,
Theni District 625 531.
8. The District Collector,
O/o. The District Collector,
Velunachiyar Valagam,
Collectorate Campus,
Dindigul 624 004.
9. The District Collector,
O/o. The District Collector,
Thoothukudi.
10. The District Collector,
O/o. The District Collector,
Trichy District,
Trichy.
11. The District Collector,
O/o. The District Collector,
Tirunelveli 627 002.
12. The District Collector,
O/o. The District Collector,
Nagercoil,
Kanyakumari District.
13. The District Collector,
O/o. The District Collector,
Karur District,
Karur.
14. The District Collector,
O/o. The District Collector,
Virudhunagar District,
Soolakkarai,
Virudhunagar 626 002.
15. The District Collector,
O/o. The District Collector,
Madurai District,
Madurai.
16. The District Collector,
O/o. The District Collector,
Perambalur District,
Perambalur.
17. The District Collector,
O/o. The District Collector,
Ariyalur District,
Ariyalur.
18. The Inspector General of Police,
O/o. The Inspector General of Police,
Central Zone,
Tiruchirapalli,
Tiruchirapalli District.
19. The Inspector General of Police,
O/o. The Inspector General of Police,
South Zone,
Madurai, Madurai District.
20. The Deputy Inspector General of Police,
O/o. The Deputy Inspector General of Police,
Trichy Range,
Trichy.
21. The Deputy Inspector General of Police,
O/o. The Deputy Inspector General of Police,
Thanjavur Range,
Thanjavur.
22. The Deputy Inspector General of Police,
O/o. The Deputy Inspector General of Police,
Dindigul Range,
Dindigul District.
23. The Deputy Inspector General of Police,
O/o. The Deputy Inspector General of Police,
Madurai Range,
Madurai District.
24. The Deputy Inspector General of Police,
O/o. The Deputy Inspector General of Police,
Ramanathapuram Range,
Ramanathapuram District.
25. The Deputy Inspector General of Police,
O/o. The Deputy Inspector General of Police,
Tirunelveli Range,
Tirunelveli District.
26. The Commissioner of Police,
Office of the Commissioner of Police,
Madurai City,
Madurai.
27. The Commissioner of Police,
Office of the Commissioner of Police,
Tirunelveli.
28. The Commissioner of Police,
Office of the Commissioner of Police,
Tiruchirapalli.
29. The Superintendent of Police,
O/o. The Superintendent of Police,
Marudhu Pandian Nagar,
Sivaganga District 630 562.
30. The Superintendent of Police,
Office of the Superintendent of Police,
Ramanathapuram District,
Ramanathapuram.
31. The Superintendent of Police,
Office of the Superintendent of Police,
Court Road,
New Collector Office,
Thanjavur 631 001.
32. The Superintendent of Police,
Office of the Superintendent of Police,
Pudukottai District,
Pudukottai.
33. The Superintendent of Police Office,
Madurai Main Road,
Theni District 625 531.
34. The Superintendent of Police,
District Police Office,
Veunachiyar Valagam,
Collectorate Campus,
Dindigul 624 004.
35. The Superintendent of Police,
District Police Office,
Korampallam Post,
Thoothukudi 628 101.
36. The Superintendent of Police,
District Police Office,
Subramaniyapuram,
Trichy 620 020.
37. The Superintendent of Police,
Samathuvapuram,
Tirunelveli 627 002.
38. The Superintendent of Police,
District Police Office,
Nagercoil,
Kanyakumari District.
39. The Superintendent of Police,
Superintendent of Police Office,
Thanthonimalai,
Karu District ? 5.
40. The Superintendent of Police,
Office of the Superintendent of Police,
Virudhunagar District,
Soolakkarai,
Virudhunagar 626 002.
41. The Superintendent of Police,
Office of the Superintendent of Police,
Madurai District,
Madurai.
42. The Superintendent of Police,
Office of the Superintendent of Police,
Perambalur District,
Perambalur.
43. The Superintendent of Police,
Office of the Superintendent of Police,
Ariyalur District,
Ariyalur.
... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India
to issue a Writ of Mandamus directing the respondents to scrupulously follow
the mandate of Section 176(1-A) of Criminal Procedure Code by ordering an
inquiry shall be held by the Judicial Magistrate or the Metropolitan
Magistrate, as the case may be, within whose local jurisdiction the offence
of any person dies or disappears, or rape is alleged to have been committed
on any woman, while such person or woman is in the custody of the police or
in any other custody authorised by the Magistrate or the Court, in addition
to the inquiry or investigation held by the police.
!For Petitioner : Mr.R.Karunanidhi
^For Respondents : Mr.VR.Shanmuganathan
Special Government Pleader
:ORDER
[Order of the Court was made by T.RAJA,J.] A People's Watch represented by its Executive Director filed the writ petition seeking a writ of Mandamus directing the respondents to scrupulously follow the mandate of Section 176 (1-A) of Criminal Procedure Code by ordering an enquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence of any person dies or disappears or rape is alleged to have been committed on any woman, while such person or woman is in the custody of the police or in any other custody authorised by the Magistrate or the Court, in addition to the enquiry or investigation held by the police.
2. The learned counsel appearing for the petitioner submitted that Section 176 of Cr.P.C., stipulates about Inquiry by Magistrate into cause of death. More particularly, when any person dies while in the custody of the police, the nearest Magistrate empowered to hold inquests shall hold an enquiry and in any other case mentioned in Sub-Section (1) of Section 174, any Magistrate so empowered shall hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the Police Officer; and if he does so, he shall have all the powers in conducting it.
3. Adding further, it is stated that when the Code of Criminal Procedure Amendment Act, 2005 (Act 25 of 2005) was introduced in the Parliament with effect from 23.06.2006, after making a change in Sub-Section (1), a new Sub-Section (1-A) was inserted. As per the amended provision, if a person or woman is in the custody of the police or in any other custody authorised by the Magistrate or the Court, under this Code, in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed. As this mandate has not been followed in many cases, the petitioner has given a representation under the Right to Information Act to all the Collectorates in Tamil Nadu to furnish the details of cases reported as death, disappearance or rape in the custody of police or in any other custody authorised by the Magistrate of the Court, the date and place of occurrence, whether R.D.O. enquiry conducted and if so conducted, the name of the R.D.O., whether an inquiry has been conducted under Section 176(1-A) of Cr.P.C. and if so, by which judicial Magistrate and so on. To the said query, the petitioner received replies only from few of the Districts including Tuticorin, Thanjavur and Tirunelveli. From the replies received by the petitioner, it was found that in some cases, they have not conducted inquiry as per Section 176 of Cr.P.C. Amendment Act, 2005. Only after receiving reply from the Superintendent of Police, Karur District, Karur, on 30.03.2009, the petitioner was advised to file the present writ petition seeking a writ of Mandamus to comply with the mandate of Section 176 of Cr.P.C. Amendment Act, 2005.
4. A detailed counter affidavit has been filed by Mr.VR.Shanmuganathan, learned Special Government Pleader along with the typed set of papers. 27 status reports have been filed by the respective Superintendent of Police and the Commissioner of Police, Madurai, Trichy and Tirunelveli stating that as per the new amended provision under Section 176 of Cr.P.C., Amendment Act, 2005, wherever any person dies or disappears or rape is alleged to have been committed on any woman, while such person or woman is in the custody of the police or in any other custody authorised by the Magistrate or the Court, under this Code, in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate. He would further submit that in the reply received by the petitioner it was found that in some cases, wherever any person dies in the custody of the police or any rape is alleged to have been committed on any woman, in addition to the police enquiry or investigation, an enquiry also have been held by the Judicial Magistrate. Since the respondents in the reply have not conducted the judicial enquiry by the Judicial Magistrate or the Metropolitan Magistrate, the petitioner was advised to approach this Court for seeking a Writ of Mandamus.
5. The learned Special Government Pleader further submitted that the writ petition was filed on 6th April 2009. On the other hand, since the amendment took place in Section 176 of Cr.P.C., they have been scrupulously following the mandatory conditions mentioned in Section 176 (1-A) of Cr.P.C., by ordering an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence of any person dies or disappears, or rape is alleged to have been committed on any woman, while such person or woman is in the custody of the police or in any other custody authorised by the Magistrate or the Court, in addition to the inquiry or investigation held by the police. This apart, as the petitioner has shown some apprehension that this mandate given in Section 176 of Cr.P.C., has not been uniformly followed, the Director General of Police also has issued a Circular bearing Rc.No.63093/Cr.IV(1)2009, dated 25.01.2010, directing all the Unit Officers will issue necessary instructions to their subordinates to comply with the newly amended Section 176 (1-A) of Cr.P.C. whenever the death or disappearance of person or rape of a women occurs, while in the police custody or in any other custody authorised by the Magistrate or the Court under this Code.
6. A perusal of Paragraph-4 of the Circular, dated 25.01.2010, issued by the Director General of Police giving specific instructions to all the Commissioner of Police in Cities, all the Superintendent of Police in Districts, marking copies to all Additional Director General of Police / Inspector General of Police in Special Units etc., vividly shows that the Circular has made it clear and in our considered opinion restated the mandatory conditions mentioned in Section 176 (1-A) of Cr.P.C. to be followed, in the case of death or disappearance of any person or rape committed on any woman in the custody of the police or in any other custody authorised by the Magistrate or the Court, under the Cr.P.C., in addition to the enquiry or investigation held by the Police, an enquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate.
7. One another Letter No.7073/L&O-A/2-18-1, dated 24.08.2018, issued by Deputy Secretary to Government (FAC) shows that after the present writ petition was filed by the People's Watch represented by its Executive Director Thiru. Henri Tiphagne, the respondents 3 to 20 were directed to file a status report i.e., to produce the details of custodial deaths from 23.06.2006 to till date and as to whether there were any enquiry by Judicial Magistrate in all those cases or there was only an enquiry by Revenue Divisional Officer or both before the Hon'ble Madurai Bench of Madras High Court, Madurai and also the circular / instructions issued by the Government vide letter No.1975/L&O-A/2009-3, Public (Law and Order-A) Department, dated 21.07.2010 and also to inform the action taken report to Government urgently.
8. In addition to the above mentioned Circular dated 21.07.2010, the Director General of Police also has issued repeated Circular Memorandum restating the earlier circular dated 25.01.2010, to be followed giving direction to all the Commissioner of Police in Cities and all the Superintendent of Police in Districts to instruct their subordinates to strictly adhere to the instructions, so as to comply with the newly amended Section 176 (1-A), wherever the death or disappearance of person or rape of women occurs, while in the police custody or in any other custody authorised as stated above. Therefore, when the Director General of Police has issued a Circular dated 25.01.2010, directing all the Heads of the Police Department viz., all the Commissioner of Police in Cities and all the Superintendent of Police in Districts to strictly follow the mandatory conditions in Section 176 (1-A) of Cr.P.C. and this has been again directed to be followed in another Circular dated 28.08.2018, we are able to see the prayer made by the petitioner has been duly accepted by the respondents. Therefore, the writ petition stands disposed of. No costs.
To
1. The Secretary to Government, the State of Tamil Nadu, Home Department, Secretariate, Chennai ? 9.
2. The Director General of Police, Kamarajar Salai, Chennai District 600 004.
3. The District Collector, O/o. The District Collector, Marudhu Pandian Nagar, Sivaganga District 630 562.
4. The District Collector, O/o the District Collector, Ramanathapuram District, Ramanathapuram.
5. The District Collector, O/o. The District Collector, Thanjavur 631 001.
6. The District Collector, O/o. The District Collector, Pudukottai District, Pudukottai.
7. The District Collector, O/o. The District Collector, Madurai Main Road, Theni District 625 531.
8. The District Collector, O/o. The District Collector, Velunachiyar Valagam, Collectorate Campus, Dindigul 624 004.
9. The District Collector, O/o. The District Collector, Thoothukudi.
10. The District Collector, O/o. The District Collector, Trichy District, Trichy.
11. The District Collector, O/o. The District Collector, Tirunelveli 627 002.
12. The District Collector, O/o. The District Collector, Nagercoil, Kanyakumari District.
13. The District Collector, O/o. The District Collector, Karur District, Karur.
14. The District Collector, O/o. The District Collector, Virudhunagar District, Soolakkarai, Virudhunagar 626 002.
15. The District Collector, O/o. The District Collector, Madurai District, Madurai.
16. The District Collector, O/o. The District Collector, Perambalur District, Perambalur.
17. The District Collector, O/o. The District Collector, Ariyalur District, Ariyalur.
18. The Inspector General of Police, O/o. The Inspector General of Police, Central Zone, Tiruchirapalli, Tiruchirapalli District.
19. The Inspector General of Police, O/o. The Inspector General of Police, South Zone, Madurai, Madurai District.
20. The Deputy Inspector General of Police, O/o. The Deputy Inspector General of Police, Trichy Range, Trichy.
21. The Deputy Inspector General of Police, O/o. The Deputy Inspector General of Police, Thanjavur Range, Thanjavur.
22. The Deputy Inspector General of Police, O/o. The Deputy Inspector General of Police, Dindigul Range, Dindigul District.
23. The Deputy Inspector General of Police, O/o. The Deputy Inspector General of Police, Madurai Range, Madurai District.
24. The Deputy Inspector General of Police, O/o. The Deputy Inspector General of Police, Ramanathapuram Range, Ramanathapuram District.
25. The Deputy Inspector General of Police, O/o. The Deputy Inspector General of Police, Tirunelveli Range, Tirunelveli District.
26. The Commissioner of Police, Office of the Commissioner of Police, Madurai City, Madurai.
27. The Commissioner of Police, Office of the Commissioner of Police, Tirunelveli.
28. The Commissioner of Police, Office of the Commissioner of Police, Tiruchirapalli.
29. The Superintendent of Police, O/o. The Superintendent of Police, Marudhu Pandian Nagar, Sivaganga District 630 562.
30. The Superintendent of Police, Office of the Superintendent of Police, Ramanathapuram District, Ramanathapuram.
31. The Superintendent of Police, Office of the Superintendent of Police, Court Road, New Collector Office, Thanjavur 631 001.
32. The Superintendent of Police, Office of the Superintendent of Police, Pudukottai District, Pudukottai.
33. The Superintendent of Police Office, Madurai Main Road, Theni District 625 531.
34. The Superintendent of Police, District Police Office, Veunachiyar Valagam, Collectorate Campus, Dindigul 624 004.
35. The Superintendent of Police, District Police Office, Korampallam Post, Thoothukudi 628 101.
36. The Superintendent of Police, District Police Office, Subramaniyapuram, Trichy 620 020.
37. The Superintendent of Police, Samathuvapuram, Tirunelveli 627 002.
38. The Superintendent of Police, District Police Office, Nagercoil, Kanyakumari District.
39. The Superintendent of Police, Superintendent of Police Office, Thanthonimalai, Karu District ? 5.
40. The Superintendent of Police, Office of the Superintendent of Police, Virudhunagar District, Soolakkarai, Virudhunagar 626 002.
41. The Superintendent of Police, Office of the Superintendent of Police, Madurai District, Madurai.
42. The Superintendent of Police, Office of the Superintendent of Police, Perambalur District, Perambalur.
43. The Superintendent of Police, Office of the Superintendent of Police, Ariyalur District, Ariyalur.
.