Madras High Court
Tamil Sakthi vs The State Of Tamil Nadu on 18 December, 2009
Author: D.Murugesan
Bench: D.Murugesan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18/12/2009
CORAM
THE HONOURABLE MR.JUSTICE D.MURUGESAN
W.P(MD)No.5145 of 2005
and
W.P.M.P(MD)No.5581 of 2005
Tamil Sakthi .. Petitioner
vs
1. The State of Tamil Nadu
represented by District Collector
Tirunelveli
2. The Superintendent of Police
Tirunelveli Disttrict
Tirunelveli
3. K.Kandasamy
Inpectorof Police
Valliyoor
Tirunelveli District
4. A.Maria Grace
Inspector of Police
All Women Police Station
Valliyoor
Tirunelveli District .. Respondents
PRAYER
Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Mandamus directing the first respondent to pay a sum
of Rs.1,00,000/-(Rupeesone lakh only) as compensation to the petitioners for
pain, suffering and mental agony and for violation caused to her and dignity
and recover the same from the salary ofthe respondents 3 and 4 for their
dereliction of duty.
!For Petitioner ... Mr.T.S.R.Venkataramana
^For Respondents ... Mr.D.Sasikumar
1 and 2 Government Advocate
For Respondents ... No appearance
3 and 4
:ORDER
The petitioner hails from a middle class family and is a resident of Koodankulam, a small village, in Tirunelveli District. She has approached this Court with the following grievance:
One Manikandan, S/o Vaithiyalingam of the same village, used to follow her for more than one-and-half years and made her to believe that he was in love with her. Without realising his evil designs, she also fell in love with him. The said Manikandan induced her to have a sexual intercourse on the promise that he will marry her. Believing the said promise, she went along with him on 3.2.2005, who took her to the banks of Uppiliyapattukulam Tank and had sexual intercourse with her. Thereafter, he left the place leaving her alone and going back on his promise.
2. She went back to her house and informed the incident to her parents. She and her parents went to the house of Manikandan and requested him to marry her. However, the family members of Manikandan demanded Rs.1,00,000/- and 100 sovereigns of gold as dowry. Thereafter, she realised that she was cheated and deceived. She was in physical and mental pain and agony due to the rape committed on her. The incident became known to the villagers aggravating her mental agony.
3. Her father went to Valliyoor Police Station on 4.2.2005 and presented a complaint to the Inspector of Police of that police station, namely, the third respondent by name K.Kandasamy. The complaint alleged the commission of offence punishable under Sections 417, 376, 366 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. The third respondent, the Inspector of Police did not take any action on the complaint presented by her father, apparently, due to the influence of the family members of the said Manikandan. The complaint was not even treated as a petition and the accused Manikandan and his family members were not even called and interrrogated for the next two full days. Only due to the repeated persuasion, the Inspector of Police, Valliyoor Police Station directed the father of the petitioner to meet the Inspector of Police of All Women Police Station, namely, the fourth respondent and made an endorsement on 6.2.2005 on the back of the complaint presented by her father. The fourth respondent, the Inspector of Police, All Women Police Station, Valliyoor also did not register any complaint and acted ungracefully, again apparently influenced by the family members of Manikandan. As the complaint was not registered, she sent representations to the higher authorities including the District Collector, Tirunelveli and the Superintendent of Police, Tiruneveli District. Even then, there was no response either from the Inspector of Police, All Women Police Station, Valliyoor or from other higher authorities. In the meantime, the news of rape and the refusal to marry spread like a wild fire in the village and the petitioner became an object of public ridicule and a subject of talk. She had to undergo public humiliation.
4. Under these circumstances, she filed Crl.O.P.(MD) No.2619 of 2005 before the Madurai Bench of the Madras High court under Section 482 of the Criminal Procedure Code seeking for damages in a sum of Rs.1,00,000/- from the said Manikandan and for a direction to the respondent police to register the complaint against the said Manikandan under Sections 366, 375(4), 376 and 417 of the Indian Penal Code. She also prayed for an independent agency to investigate the complaint. When the matter was taken up on 29.3.2005, the fourth respondent informed the Court that the case was registered on 17.3.2005 under Sections 417 & 376 of the Indian Penal Code. Nevertheless, this Court found that there was dereliction of duty on the part of the third and fourth respondents. This Court also directed the respondents to register the case also under Section 366 and Section 4 of the Dowry Prohibition Act, as there was prima facie case made out. Considering the seriousness of the case, this Court also directed the Superintendent of Police, Tirunelveli to look into the matter immediately and monitor the investigation. As far as the relief of compensation is concerned, this Court directed the petitioner to work out her remedy becore the appropriate forum. Under these circumstances, the petitioner is constrained to approach this Court by way of the present writ petition seeking for compensation in a sum of Rs.1,00,000/- from the respondents and also for a direction to take suitable action against the respondents 3 & 4 for dereliction of duty.
5. Though the third respondent has been served and the name has been shown in the cause list, neither he appeared before the Court nor was represented by counsel. The fourth respondent was also served and she has filed a counter affidavit through the Government Pleader. In the counter affidavit she has stated that the father of the victim had preferred a complaint before her as stated and she did not register the same, as it was only a hearsay. The victim girl also did not appear before her. Only on 9.2.2005 the victim appeared before her and presented another complaint. In the meantime, summons were issued to the petitioner and her family members to appear and they did not appear. Therefore only, she could not register the complaint till 17.3.2005, on which date the FIR was registered in Crime No.6 of 2005 under Sections 417 and 376 of the Indian Penal Code. The delay in registering the complaint is due to the non-cooperation of the petitioner. The said Manikandan was arrested on 24.3.2005 and was remanded to judicial custody. Pursuant to the orders of this Court in Crl.O.P.(MD) No.2619 of 2005 dated 29.3.2005, the complaint was altered into one under Section 366 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. After completion of investigation, the charge sheet was filed on 27.7.2005.
6. The first respondent, the District Collector, Tiruneveli has also filed a counter affidavit broadly stating the facts as put forth by the fourth respondent. There is no explanation as to the action taken by the respondent police in not taking the case on file immediately.
7. The second respondent, the Superintendent of Police, Tirunelveli District has not filed any counter affidavit.
8. Heard the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents 1, 2 and 4.
9. Before I delve upon the grievance of the petitioner, I am inclined to refer to the provisions of the Indian Penal Code under which the complaint was lodged considering the seriousness of the same. Section 366 of the Indian Penal Code relates to kidnapping, abducting or inducing woman to compel her marriage. Section 375 of the Indian Penal Code relates to the commission of the offence of rape and Section 376 deals with the punishment for rape. Section 417 of the Indian Penal Code relates to the punishment for cheating by personation. For the disposal of this petition, it would not be within the jurisdiction of this Court to consider the question as to whether the offences are made out or not. However, it will be relevant to discuss as to whether when a complaint is lodged alleging the commission of the above offence, particularly serious offences like rape, etc., the police officers in charge of the police station could refuse to entertain a complaint and refrain from registering the same when the complaint discloses the commission of such offence.
10. In terms of sub-section (1) of Section 154 of the Criminal Procedure Code, every information relating to the commission of a cognizable offence, if given orally to an officer in charge of the police station, shall be reduced to writing and be read over to the informant and every such information shall be signed by the person giving it and the substance thereof shall be entered into in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. By that section, if the information is given orally, it should be reduced by the officer in charge of the police station or under his direction, by other officer. In any case, the information should be reduced to writing. Apart from the above, the substance thereof shall also be entered in the book to be kept by such officer. Sub-section (2) of Section 154 requires that officer to furnish forthwith a copy of the information as recorded under sub-section (1) of Section 154 to the informant free of cost. The above provisions are mandatory in nature for an officer in charge of the police station to perform while he receives every information which relates to the commission of a cognizable offence. That provision does not require that the information should be given only by the person affected and the provision speaks only of information.
11. In fact, even if the informant did not have the personal knowledge of the incident, the officer cannot refuse to register the case, as has been held by the Apex Court in Hallu v. State of M.P., (1974) 4 SCC 300. By that provision, it is manifestly clear that if any information disclosing a cognizable offence is laid before an officer incharge of the police station satisfying the requirements of Section 154(1) of the Criminal Procedure Code, the said police officer has no other option except to enter the substance thereof in the prescribed form and register the same on the basis of such information. The police officer also cannot embark upon an enquiry as to whether the information laid by the informant is reliable and genuine or otherwise and refuse to register the case on the ground that the information is not reliable or credible.
12. The above law has been laid down by the Apex Court long back in the judgment in State of Haryana v. C.S.Bhajan Lal, AIR 1982 SC 604, where the Apex Court has held that if any information relating to cognizable offence is laid before the police officer concerned satisfying the requirements of Section 154(1), the said police officer has no option except to act in terms of Section 154 (1) & (2) of the Criminal Procedure Code. In fact, the Apex Court went to the extent of observing in State of Andhra Pradesh v. Punati Ramulu and others, AIR 1993 SC 2644 that the "refusal to record the FIR on the ground that the place of crime does not fall within the territorial jurisdiction of the police station amounts to dereliction of duty." As the offences referred to in the complaint are all cognizable, especially when the presentation of the complaint has been admitted by the third respondent, he has no other option except to register the same, which he had failed. Not only he had failed to register the case, but also had delayed any action at least for three days from 4.2.2005, when he referred the father of the petitioner to approach the fourth respondent, namely, the Inspector of Police, All Women Police Station, Valliyoor on 6.2.2005.
13. Similarly, the fourth respondent, though had admitted that such a complaint was referred to her with an endorsement by the third respondent on 6.2.2005, she had not registered the complaint on the ground that the victim girl had met her only on 9.2.2005 and thereafter she did not meet her and also she did not cooperate for investigation till 16.2.2005. The above contention of the fourth respondent is totally unacceptable. When once it is admitted that a complaint was referred to the fourth respondent by the third respondent with an endorsement on 6.2.2005, she should have immediately registered the complaint. She cannot refuse to register the complaint on the ground that she issued summons to the complainant and the complainant did not turn up thereafter, as the provision of Section 154(1) of the Criminal Procedure Code does not require the presence of the complainant after the complaint was lodged for the purpose of registering the case. Even otherwise, it is the admitted case of the fourth respondent that the victim girl, the petitioner, appeared before her on 9.2.2005 and even then she did not register the case till 17.3.2005. That apart, the case was registered only for the offence under Sections 417 and 376 of the Indian Penal Code and that the complaint was not registered under Section 366 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. Only after this Court had directed on 29.3.2005, the above sections were added in the complaint. The above act of both the third and fourth respondents would certainly amount to dereliction of duty, namely, the non-compliance of the provisions of Section 154(1) & (2) of the Criminal Procedure Code. It appears to me that in the years to come no other crime will be treated more poorly by the criminal justice system other than rape. Reports of sexual abuses are increasing as each day passes by. Sexual abuse may cause depression, sleep disturbances, nightmares, physical complaints, self destructive behaviour, hostility or aggression and in some cases tendency to commit suicide. Such an offence cannot be treated casually by the law enforcing machineries even to take the complaint on file.
14. It is the specific case of the petitioner that she was forced to have a sexual intercourse by the said Manikandan only on the false promise that he will marry her. But for such promise, she would not have accepted for such sexual intercourse. Therefore, she has lodged a complaint for cheating by personation under Section 417 of the Indian Penal Code and thereby the said Manikandan had sexual intercourse, which ultimately amounted to rape when he refused to marry the victim. In the event a man had dishonestly intended to exploit a woman sexually by a deceptive and false representation, which he intended never to fulfil, leading the woman to loss of reputation or damage and then such an act would come within the purview of Section 417 of the Indian Penal Code. It is also normally known that the sexual harassment and rape are two sides of the same coin and both of them show the power of man to dominate a woman. Both sexual harassment and rape have the same object to undermine the integrity of the victim physically as well as mentally.
15. In the words of Justice V.R.Krishna Iyer in Rafiq v. State of U.P., (1980) 4 SCC 262, "when a woman is ravished, what is inflicted is not mere physical injury, but the deep sense of some deathless shame....judicial response to human rights cannot be blunted by legal bigotry." In the words of Justice Arijit Pasayat in the judgment in Dinesh v. State of Rajasthan, (2006) 3 SCC 771, "while a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female." In the judgment in Bodhisatwa v. Ms.Subdhra Chakroborty, (1996) 1 SCC 490, the Apex Court has held that 'rape' as an offence which is violative of the fundamental right of a person guaranteed under Article 21 of the Constitution. The Apex Court further held that rape is a crime not only against the person of a woman, it is a crime against the entire society. It destroys the entire physical of a woman and pushes her into deep emotional cries. Rape is, therefore, the most hated crime. It is a crime against the basic human rights and is a violation of the victim's most cherished right, namely, the right to life which includes the right to live with human dignity contained in Article 21."
16. While considering the duties imposed on the public functionaries, the gravity of the consequences due to the failure to perform such duties would add further importance. On the given facts and circumstances of the case, the grievance of a girl aged around 27 years at the time of commission of the offence is that she was bodily abused by the said Manikandan on the false promise. Every individual has his/her fundamental right guaranteed under the Constitution to live with dignity.
17. While the case relating to rape and the compensation that could be awarded was considered by the Apex Court in the judgment in The Chairman, Railway Board v. Chandrima Das, 2000 (2) SCC 465, the Apex Court had observed that "where the public functionaries are involved and the matter relates to violation of the fundamental rights or the enforcement of public duties, the remedy would still be available under the public law notwithstanding that a suit could be filed for damages under the private law." I hasten to add that the award of compensation is not a matter of course in all cases of dereliction of duty. The dereliction of duty by a public functionary may generally arise on two occasions. That is the dereliction of duty relating to ministerial functions, which are otherwise mandatory in nature and failure to perform such duty will result in severe damage to the complainant/victim. In such circumstances, compensation can be considered by the Court depending upon the nature of the case. The other occasion of dereliction of duty is administerial in nature like failure to make necessary entries in the case diary, general diary, etc., which may be a procedural lapse, though sometimes it may have also serious consequences. In such circumstances, the Court may not award compensation for failure of the public functionaries to discharge their administerial functions.
18. Human rights are derived from dignity and are inherent in human beings. Human rights are natural rights which come by birth as human beings which are basic, indivisible, inalienable and inherent with which a person is born. Broadly speaking, human rights may be regarded as those fundamental rights which are possessed by every human being. Such rights by their free nature constitute the minimum that is necessary for an individual to live in civil and political society as a free person with dignity and respect. Reputation of a woman in the society is one of the foremost rights which should be preserved for a woman.
19. In the given facts and circumstances of the case, when the offence complained is such a serious in nature, the police officers, namely, the third and fourth respondents, had miserably failed in their duty which had resulted not only in mental agony to the victim concerned, but also to her entire family. Hence the dereliction of duty is of great concern in a serious complaint like this. Failure of law reflects the failure of society to protect and serve humanity. Failure to register the case despite merit is not only a serious dereliction of duty, but also a serious intrude with human rights. In these circumstances, the failure on the part of the respondents would certainly entitle the victim for adequate compensation for her mental agony and torture for the period from 3.2.2005 at least till the case was registered on 17.3.2005. In fact she was made to approach the Court on 10.3.2005 seeking for a direction to register the case. Hence the grievance of the petitioner seeking for compensation from the respondents for their dereliction of duty must be accepted. For the moment, I am not suggesting that in all cases the delay in registering the FIR ipso facto entitles the complainant or the victim for compensation. It depends upon the facts of each case.
20. This takes me to the next question as to the power of the Court to award adequate compensation. The award of compensation to which the victim in this case is held to be entitled is on the peculiar facts and circumstances of this case. It has been now well settled that under Article 226 of the Constitution of India, this Court is empowered to award compensation in deserving cases, especially when there is no dispute on factual aspects. The general principles in awarding the compensation are traceable to public law. They may be broadly categorised as the violation of Article 21 of the Constitution of India and the violation is gross and shock the conscience of the Court. That apart, the violation is patent and incontrovertible.
21. In Nilabati Behra v. State of Orissa, AIR 1993 SC 1960, the Apex Court has held that "in a case of violation of fundamental rights by the State in its instrumentalities or servants, the Court can direct the State to pay monetary or pecuniary compensation to the victim. The Apex Court further held that the citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the Courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the Courts have, therefore, to evolve 'new tools' to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law." Long ago, in the judgment in Bhagapur Blindings Cases:Khatri (II) v. State of Bihar, (1981) 1 SCC 627, the Apex Court has held that "the principle of sovereign immunity was inapplicable in these type of cases and a proceeding under Articles 32 or 226 of the Constitution for award of compensation is a public law remedy as distinct from private law remedy; and the aggrieved party cannot be relegated to a civil court."
22. In the judgment in Lucknow Development Authority v. M.K.Gupta, AIR 1994 SC 787, the Apex Court has held as follows:-
"In a modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result. The culture of window clearance appears to be totally dead. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match the inaction in public oriented departments gets frustrated and it erodes the credibility in the system. Public administration, no doubt involves a vast amount of administrative discretion which shields the action of administrative authority. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under protective cover. When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power and the National Commission finds it duly proved, then it has a statutory obligation to award the same. It was never more necessary than today when even social obligations are regulated by grant of statutory powers. The test of permissive form of grant are over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. When the Court directs payment of damages or compensation against the State, the ultimate sufferer is the common man. It is the tax payers' money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with aw. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries."
23. In view of all the above, the writ petition is allowed and the first respondent/District Collector, Tirunelveli is directed to pay the amount of Rs.1,00,000/- (Rupees one lakh only) to the petitioner within a period of one month from the date of receipt of a copy of this order or on production of the same by the petitioner. I make it clear that the said amount of Rs.1,00,000/- should also be recovered by the Government from the third and fourth respondents in equal proportion. Consequently, connected Miscellaneous Petition is closed. No costs.
24. There is one more aspect in this matter. Though the petitioner has earlier prayed for a direction to take action against the third and fourth respondents, it appears that the said relief has been deleted subsequently. Nevertheless, this Court, in exercise of powers under Article 226 of the Constitution of India, is entitled to mould the prayer to do substantial justice. Both the third and fourth respondents have failed in their duty in not entertaining and registering the complaint immediately. The explanation offered is totally unacceptable and therefore, the Director General of Police, Chennai is directed to take appropriate departmental action against both the officials. The petitioner is entitled to forward a copy of this order to the Director General of Police, Chennai. The Registry is also directed to communicate a copy of this order to the Director General of Police, Chennai, who is expected to take appropriate departmental action against those two officers, which warrants on the facts and circumstances of this case.
vsn/ss To
1. The District Collector Tirunelveli District at Nagercoil
2. The Director General of Police Chennai 600 004
3. The Superintendent of Police Tirunelveli District Tirunelveli