Bombay High Court
Rekha M. Kholkar, R/O Mastimol vs State Of Goa And Ors. on 7 November, 1994
Equivalent citations: 1995(4)BOMCR263
Author: A.P. Shah
Bench: A.P. Shah
JUDGMENT E.S. Da Silva, J.
1. Rule, by consent, made returnable forthwith.
2. The petitioner filed this petition under Articles 226 and 227 of the Constitution alleging that the respondents had violated her fundamental rights under Article 21 by torturing her, damaging her person, abusing her womanly dignity and causing her enormous trauma and, as a result of such acts, her reputation has also been gravely harmed and her employment has been severely curtailed. It was further alleged that the respondents also violated the petitioner's rights under Articles 14 and 22 when they detained her without authority of law and without any complaint being filed against her. More particularly, the petitioner has stated that the respondents violated the provisions of section 160(1) of the Criminal Procedure Code, which prohibits the Police from requiring women to present themselves for enquiry or interrogation at any place other than the place at which the woman may reside. It was further alleged that the petitioner was a victim of high-handed and arbitrary action of the Police officials, who have not only brutally assaulted the petitioner, but subjected her to all types of indignities not countenanced by any civilised form of society and to mental torture. She therefore prays that by an appropriate writ, direction or order, respondent No. 5 should conduct full departmental enquiry into the incident and direct appropriate punishment of all the officers concerned. A further writ has been sought that a direction or order to the respondents No. 1 to 5 be made to pay jointly and severally to the petitioner a sum of Rs. 1,00,000/- as compensation for the assault and damage caused to her person. An additional prayer was sought for by the petitioner for a general direction to the respondent No. 7 to allow requests for copies of medical reports to detenus, undertrials and prisoners and persons affected in case of Police violence, and lastly, a general direction was sought also to the respondent No. 5 that he should instruct his officers in writing that the provisions of section 160(1) of the Criminal Procedure Code should be strictly followed in all cases involving interrogation of women.
3. The case of the petitioner is that she had been employed as a part-time domestic helper in the house of respondents Nos. 3 and 4, for the past eight or nine years and her job included sweeping the house, washing utensils and other domestic chores. The petitioner used to work daily at the house of respondents No. 3 and 4 for about an hour from about 7.30 a.m. to 8.30 a.m. On the morning of 18th November, 1993, petitioner went to the house of respondents No. 3 and 4 and worked as usual. Around noon of the same day, the petitioner was called to the house of respondents No. 3 and 4 by their daughter. She immediately went to the house, where she was met by respondent No. 4 who enquired with her whether she had taken some money and a licence from the pant pocket while she was cleaning the room that day. The petitioner denied knowledge of the same, after which she returned home. Thereupon the daughter of the respondents No. 3 and 4 and a relative accompanied her where they searched her house but found nothing. Sometime later, on the same day, respondent No. 3 accompanied by policeman came to the house of the petitioner. The policeman told the petitioner that she was wanted in the police station in connection with a theft that had taken place at the house of respondent No. 3. The petitioner accompanied by her mother, went immediately alongwith the policeman and respondent No. 3 to the police station, around 4 p.m. There she was taken into a room where there were two women police. The room was shut and the petitioner's mother was kept outside. The petitioner was repeatedly questioned about the alleged theft and she told the police that she had not taken the money or licence. Inspite of that she was slapped, beaten and abused several times by both the male and female police. They put handcuffs on her and threatened to parade her in the Canacona Market place. The petitioner was told several times by the police that she should confess to the alleged crime and only then they would stop. The police also threatened to undress her. In this respect, the women police removed the petitioner's skirt and threw it in a corner of the room. When this happened, male police were present in the room. It is the case of the petitioner that this was deliberately done in an attempt to shame and humiliate her and force her to confess that she had stolen the money. After sometime, her garment was returned. Then the police personnel put a rope round under the shoulders of the petitioner and hung her from the ceiling. The petitioner remained hanging in that position for a long while, during which time the police personnel continued to beat her. Finally, she was let down from the hanging trauma and pushed out of the room, where she fainted at the door. It was also stated that when she was released in a state of shock and bruised all over, her face was swollen and her head was throbbing and she was bleeding at the mouth and her earring was broken. She was taken in this condition by her parents and some neighbours to the nearby Health Centre where she was admitted and kept in the ladies ward for about five days. During this time, the petitioner was examined by the doctors of the primary Health Centre and was given tablets and medicines. She continued to complain of pain on the head specially the area of the temple and abdomen and upper back and after five days she was referred to the Hospicio Hospital, where she was taken by ambulance on 23rd November, 1993. She was admitted in the hospital and medically treated. The petitioner remained in the Hospicio Hospital for about two days. Thereupon she was discharged at her own request. It was stated that as it was financially difficult for her parents to attend her at the hospital, the petitioner's parents requested that she be discharged eventhough she had not fully recovered. Subsequently, the petitioner visited the primary Health Centre of Canacona on two occasions for pain in the abdomen and she was treated as an out patient and given medication. The petitioner's health continued to deteriorate, but as she was the only earning member of the household she was forced to resume work as soon as possible. It is further her case that since then her health continued to be poor. Ever since the incident she feels faint very easily and cannot work for long. She also suffers from neck and back pain and occasionally from abdomen pain, but more than the physical stress are the traumas of what she has gone through. Petitioner suffers nightmares and wakes up at night. She feels humiliated and frightened.
4. On behalf of the respondent No. 5, Inspector General of Police, Mr. D.A. Prabhudessai, District Superintendent of Police, South Goa, has filed an affidavit wherein he has stated that after he learnt about the incident, the preliminary enquiry was directed to be conducted by the P. I. Tony Fernandes and on the strength whereof Dy. S.P. Moraes has been appointed as Enquiry Officer and has conducted Departmental Enquiry. A report of the Enquiry Officer has been placed on record, as well as the report of the reviewing officer the Superintendent of Police Shri Prabhudessai, wherein the officers found one A.S.I. Naik, who, at the relevant time was in charge of Canacona Police Station, in the absence of P.S.I. Dias, alongwith some police constables, P.C. 3455 Dilkush Dessai and lady police constables 3863 Veena Naik and 4001 Keshranti Dessai guilty of the charges framed against them, namely with regard to the failure of the officers to make the necessary entry in the Station Diary while reducing to writing the oral complaint alleged against the petitioner by the respondents No. 3 and 4, and the fact of the said A.S.I. having illegally secured the presence of the petitioner at the Police Station for interrogation by allowing his subordinates to manhandle her and to subject her to physical and mental torture. Similarly, the other charges of the assault committed by the said constables, coupled with the physical and mental torture on the petitioner so much so that the petitioner claimed that they forced her to undress and hung her with a chain to the hook of the ceiling of the Police Station, were also found to be established. In his turn, respondent No. 2. P.S.I. Serafin Dias, has also filed an affidavit wherein he has stated on oath that on the day and time of the incident he was not personally present at the Canacona Police Station and was not even informed of the incident later on when he returned from Panaji by 9.30 p.m. on that very day, after which he came to know about the same only from the newspapers reports on 16th December, 1993. He has said that he immediately apprised, his superior officers of the fact and when he enquired from his subordinates about the incident, he was told that the petitioner was orally summoned to the Police Station on 18th January, 1993 during his absence. On that day S.I. Naik was in charge and acting as S.H.O. at the Canacona Police Station. On the basis of the said reports of the Enquiry officer and Reviewing Officer, Mr. Bhobe, learned Public Prosecutor, has stated that show cause notices had been given to the concerned police officers for the purpose of taking action against them and the replies and action thereon would take some time. He further stated that in all probability that would take about four weeks to finalise whatever action the Disciplinary Authority proposed to take in its turn. In view of this statement, we feel that the first prayer made by the petitioner with regard to the issuance of an appropriate writ, direction or order to the respondent No. 5 to conduct a full departmental enquiry be admitted and appropriate punishment be given to all the concerned officers, is to be deemed as satisfied. Mrs. Alvares, learned Counsel appearing for the petitioner, agrees that in view of the statement made by Mr. Bhobe, no further directions/orders are required to be passed by this Court.
5. This leaves us to the question of the second prayer made by the petitioner, with regard to the compensation of Rs. 1,00,000/-. Mrs. Alvares forcefully argued in this regard that the petitioner has been given physical ill-treatment at the hands of the police after having been illegally taken to the Police Station in clear violation of section 160(1) and its proviso of the Criminal Procedure Code, wherein she was subjected to all kinds of indignities and tortures. She has also stated that this has caused to the petitioner a great physical and mental trauma, she being a member of the weaker section of Society. On account of this ill-treatment she had to be hospitalized and receive medical treatment, as a result whereof she was deprived from carrying on her normal activities for the purpose of her maintenance and the maintenance of her family. It was urged that the petitioner was the only earning member of the family although her mother was also attending occassionally to outside work in order to provide for the support of the entire family. She therefore prayed that suitable compensation should be granted to the petitioner in order to make good not only the material loss she had sustained, but also to compensate her for the trauma and the physical injuries she had been inflicted on account of the ill-treatment given to her. Mrs. Alvares has also pointed out that while illegally summoning the petitioner to the Police Station for the purpose of intimidating her and forcing her to confess a crime in respect whereof not even a written complaint was lodged, there was a clear violation of her fundamental rights enshrined in the constitution and for which she ought to be compensated.
6. Mr. Bhobe has fairly conceded that the action taken by the police cannot be justified in the eye of law although he had made a feeble attempt to explain the background of the case and the circumstances under which the police has tried to get the petitioner to the Police Station in order to enquire into the alleged complaint made by the respondents No. 3 and 4 with regard to the theft of money and some documents which were in the house wherein the petitioner was working as an attendant. The learned Counsel, however, agreed that some compensation could be granted to the petitioner in view of the clear violation on the part of the concerned police officers, who were otherwise found guilty in the departmental enquiry conducted by the Disciplinary Authority.
7. Mr. Kantak, learned Counsel appearing for the respondents No. 3 and 4, has submitted that in view of the facts of the case, it was not proper to make the said respondents liable to pay any compensation, although in his view also, the action of the police could not be found to be justified and once it was established that they were guilty, granting of compensation to the petitioner would follow, which compensation, according to him, should be normally borne out and paid by the respondents No. 1 and 5 only.
8. We have gone through the facts of this case and in our view we are satisfied that there is nothing on record to suggest that the respondents No. 3 and 4 are to be held as guilty of any act which would entitle the petitioner to seek the payment of any compensation on account of ill-treatment and illegal action taken by the police against the petitioner, although this appears to be the outcome of the oral complaint lodged by the respondents No. 3 and 4, at Canacona Police Station, with regard to a case of theft of money and documents from their residence wherein the petitioner was shown as suspect. This being the position, in our view, the said respondents No. 3 and 4 need not be made jointly and severally responsible for the payment of any compensation in respect whereof we have no doubt that the petitioner is entitled for the illegal action and consequences which arose to the petitioner on account of the physical assault, mental trauma and torture to which the petitioner was subjected at the hands of the police officers at the Canacona Police Station. In this regard we are also satisfied that as far as the respondent No. 2 P.S.I. Dias is concerned, the affidavit sworn by him was not rebutted by the petitioner, which shows that he was not present at the Police Station on the day and at the time this incident occurred and that as soon as he came to know about that he reported the matter to his superiors on the strength whereof action was taken against the responsible officers. This by itself is enough to spare the respondent No. 2 from any responsibility or liability in this whole affair.
9. Now, with regard to the prayer for compensation, we have given an anxious thought on the case sought to be made by the petitioner. We have gone also through the medical report of the petitioner's treatment by the doctor of the Primary Health Centre of Canacona wherein she was examined, which suggests that she had sustained simple injuries only like echymosis or bruises and swelling of upper lip besides pain in the left thigh. There is no material to point out that the petitioner appears to have been injured in the region of her ear or stomach and has suffered any serious beating or assault which might have caused her pain and impaired vital organs of her body. In such circumstances, we are satisfied that in the facts and circumstances available to us from the record, a compensation of Rs. 30,000/- appears to be quite a commensurate amount of money which would meet the ends of justice in this case, irrespective of the petitioner's right to approach the competent forum in order to lay down her claim to be indemnified for a higher amount, in case she succeeds in establishing the nature of the injuries or damages to her health caused by the ill-treatment inflicted to her by the concerned police officers.
10. So far the prayer made by the petitioner to issue general directions to the respondent No. 7 to directly allow request for copies of medical reports to the detenus, undertrials and prisoners in prison in cases of police violence, we feel no difficulty in allowing such prayer and we accordingly direct that not only respondent No. 7, but all Superintendents of Government Hospitals should issue such copies of medical reports in similar circumstances.
11. Lastly, the prayer for a general direction to respondent No. 5 that he should instruct his officers in writing that the provisions of section 160(1) of the Criminal Procedure Code should be strictly followed in cases of interrogation of criminals the same is to be allowed and needless to say that such direction was not even required to be given, bearing in mind that the police force is always expected to comply strictly with the mandatory provisions of law, namely, of the Criminal Procedure Code, in the matter of investigation of criminal offences.
12. We, therefore, direct the respondent No. 5, to see to it that all his officers strictly comply with the mandatory provisions of section 160(1) of the Criminal Procedure Code in all cases involving interrogation of women.
13. In the result, the petitioner is bound to succeed and the respondents No. 1 and 5 are hereby directed to pay to the petitioner within eight weeks the amount of Rs. 30,000/- (thirty thousand only) towards compensation for the physical injuries and mental and moral trauma caused to the petitioner on account of the illegal action of the concerned police officers of Canacona police station. We further direct respondent No. 7 and all other Superintendents of the Government Hospitals to supply to the detenus, undertrials and prisoners affected in cases of police violence, copies of medical reports when they are so requested. A further direction is also given to respondent No. 5 to instruct all his officers in writing to strictly comply with the provisions of section 160(1) of the Criminal Procedure Code in all cases involving interrogation of women. Copies of this judgment to be sent to the Chief Secretary and Inspector General of Police for necessary action. Rule accordingly made absolute, with however, no order as to costs.