Madras High Court
C.Veera Thevar vs The Secretary To Government on 24 September, 2010
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24/09/2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)NO.5297 of 2009 W.P.(MD)NO. 9649 of 2009 and W.P.(MD)NO.9650 of 2009 and M.P.(MD)NOS.1,2 AND 2 OF 2009, 1,1,2 AND 2 OF 2010 C.Veera Thevar .. Petitioner in W.P.(MD)Nos.5297 and 9649 of 2009 M.Chinna Thevar .. Petitioner in W.P.(MD)No.9650 of 2009 Vs. 1.The Secretary to Government, (Public (Law & Order-A) Department, Government of Tamil Nadu, Fort St. George, Chennai-600 009. 2.The District Collector, Dindigul District, Dindigul. 3.The Deputy Superintendent of Police, District Crime Branch, Dindigul. 4.The Director General of Police, Chennai-600 004. .. Respondents in W.P.(MD)No.5297 of 2009 The Superintendent of Police, Dindigul District, Dindigul. .. Respondent in W.P.(MD)Nos.9649 and 9650 of 2009 W.P.(MD)No.5297 of 2009 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the impugned G.O.Ms.No.886 Public (Law & Order-A) Department, Government of Tamil Nadu, Chennai-600 009 issued by the first respondent, dated 31.8.2006 and to quash the same and consequently, to forbear the respondents from initiating any criminal prosecution/department action against the petitioner in respect of the subject matter of Crime No.7 of 2001 on the file of the third respondent. W.P.(MD)Nos.9649 and 9650 of 2009 have been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the charge memo Nos.Ta.Pa.No.42, 41/09 dated 30.6.2009 read with proceedings Nos.C.No.F1/PR 42, 41/2009, dated 11.09.2009 respectively issued by the respondent and to quash the same. !For Petitioners ... Mr.G.R.Swaminathan ^For Respondents ... Mr.R.Janakiramulu, Spl.G.P. - - - - :COMMON ORDER
W.P.(MD)Nos.5297 and 9649 of 2009 are filed by one and the same person. W.P.(MD)No.9650 of 2009 is filed by an another petitioner. In W.P.(MD)No.5297 of 2009, the petitioner challenged an order of the State Government made in G.O.Ms.No.886, Public (Law & Order) Department, dated 31.8.2006 and after setting aside the same, seeks to forbear the respondents from initiating any criminal prosecution /department action against the petitioner in respect of the subject matter of Crime No.7 of 2001. Notice of motion was ordered in the writ petition on 26.6.2009. On notice from this court, the third respondent Deputy Superintendent of Police, Dindigul Crime Branch has filed a counter affidavit, dated 11.7.2009.
2.During the pendency of W.P.(MD)No.5297 of 2009, the petitioner filed W.P.(MD)No.9649 of 2009 challenging the proceedings issued by the Superintendent of Police, Dindigul, dated 11.9.2009 asking the petitioner to attend an oral enquiry in respect of the charge memo framed under Rule 3(b) of the Tamil Nadu Police Subordinate Services Rules. Another petitioner, who was similarly placed has also filed W.P.(MD)No.9650 of 2009 on similar grounds and challenged the very same enquiry ordered against that petitioner. Both these writ petitions were admitted on 29.9.2009. Pending the writ petitions, in M.P.(MD)Nos.2 and 2 of 2009, an interim stay was granted on the ground that the charge memo related to the event that took place in the year 2001. Therefore, interim stay was initially granted for a limited period. Subsequently, it was extended from time to time.
3.Aggrieved by the same, the Superintendent of Police, Dindigul filed M.P.(MD)Nos.1,1,2 and 2 of 2010 to vacate the interim stay together with a supporting counter affidavit, dated 27.11.2009. Therefore, when the W.P.(MD)No.5297 of 2009 came up for hearing on 23.9.2010, this court directed all the three writ petitions to be listed together. Accordingly, all writ petitions were heard together and a common order is passed.
4.Heard the arguments of Mr.G.R.Swaminathan, learned counsel appearing for petitioners and Mr.R.Janakiramulu, learned Special Government Pleader appearing for the official respondents.
5.The facts leading to the filing of the writ petitions are as follows:
One Kousalya, wife of one Sakthivel was the member of All India Democratic Women Association (AIDWA). She was the resident of Sedapatti village, Dindigul District. Her husband was working in the Polimer Textiles as a worker. On 21.2.2001 around 1.30 AM (early hours in the morning), the said Kousalya and her husband Sakthivel were forcibly removed from the house of her father-in-law by the Inspector Rangasamy and seven constables of Sempatti police station in the name of making an enquiry. Many villagers were witnesses to the said incident.
Even though village people pleaded that since Kousalya is a woman and has a child she need not be taken to the station and if there was any enquiry, she will be brought to the police station during the day, but the policemen refused to heed to their request. After forcibly taken them to the police station, on 21.2.2001, the early hours in the morning, Kousalya was stripped and ravished by the policemen. Kousalya and her husband were detained in the police station and were assaulted. Since there were injuries on the body of Kousalya, she was sent out of the police station. Unable to bear the torture and also thoroughly depressed, she told her father-in-law and the villagers about the incident. Without any one noticing, she went to the Well near Malaiyandipuram village and jumped into the well in order to commit suicide. When she was struggling in the Well, she was saved by the persons nearby and was admitted to the Government Hospital, Dindigul.
6.These details came to the knowledge of public and to the office bearers of AIDWA. The incident that took place in the Sempatti police station was also widely published in the newspapers on 23.2.2001. Even while the said Kousalya was struggling for her life, one Devi, who is the District Secretary of AIDWA, Dindigul filed a complaint with the Chief Judicial Magistrate on 23.2.2001 for registering a case and also to record a dying declaration from Kousalya. The Additional District Judge-cum-Chief Judicial Magistrate, Dindigul acting under Section 156(3) of Cr.P.C. ordered for an investigation by the police officer not below the rank of Deputy Superintendent of Police and to send the investigating report to the Court.
7.In the meanwhile, Kousalya filed a criminal O.P.No.16689 of 2001 before the Principal Bench for ordering transfer of investigation from the file of the Deputy Superintendent of Police, Crime Branch, Dindigul to that of the Superintendent of Police, Crime Branch CID, Dindigul. At that time, the Public Prosecutor had informed the Court that a final report was filed on 3.10.2001 referring the matter as mistake of fact. Hence the petition for transfer of investigation was dismissed. The same fact was also recorded by the learned Chief Judicial Magistrate. An attempt to revive the case made by the District Secretary of the AIDWA (who was the original defacto complainant) to pursue the case was also rejected by the Chief Judicial Magistrate, Dindigul as a mistake of fact.
8.However, an investigation was conducted by the Revenue Divisional Officer, Dindigul under PSO 145 (New No.151) regarding the allegations of torture and sexual abuse on Kousalya, wife of Sakthivel by the police of the Sempatti police station. The RDO by his report recommended an action to be initiated against the Inspector of Police Rengasamy and two petitioners, who were Head Constables attached to Sempatti Police Station. The said report of the RDO was forwarded by the District Collector, Dindigul with his own recommendation on 29.6.2001 and 28.05.2003. The Government upon examining the recommendations made by the District Collector agreed with his recommendations and issued G.O.Ms.No.886, Public (Law & Order) Department, dated 31.8.2006 direction action against the three police officers with reference to the allegation that the Inspector of Police Rengasamy with the assistance of the two petitioners stripped off the clothes of Kousalya and harassed was proved. The Inspector of Police, Sempatti Police station had conducted an enquiry in the theft case without filing any FIR. Since the incident had gained public attention, he filed an FIR on the next day of the event as if it had been filed the previous day. To cover up the insertion of the FIR, he had tampered with the pages in the GD of the station. The Inspector of Police while going to Malayandipuram on the night of 20.2.2001 arrested Kousalya and Sakthivel. But no woman constable had accompanied the Inspector of Police. But to substantiate his illegal action, he had created false witnesses. In the light of these facts, the State Government directed the Director General of Police to take departmental action and to complete it within a specified time. They were also directed to inform the Government the result of the criminal as well as departmental action taken on the errant policemen. It is this Government Order which is under challenge in the first writ petition.
9.Subsequently, acting upon the direction of the State Government, a charge memo under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules was framed against the two petitioners. The charge against the two petitioners were three fold. The first charge was that without any registration of an FIR, the two petitioners accompanied with the Inspector of Police to the village and brought Kousalya and her husband Sakthivel to the police station and had tortured them and also sexually assaulted her which also led the Kousalya to attempt to commit suicide. They had also tampered with the registration of the FIR. The second charge was that they had brought a woman to the police station in the name of enquiry without a woman police constable accompanying them at 2.00 O'clock in the early morning to the police station and conducted enquiry throughout the night. It amounted to human rights violation. Inspite of the village people requesting that Kousalya may be let off, she was taken to the police station which led her attempting to commit suicide. Her husband also had attempted to commit suicide by taking poison. The two petitioners were brought disrepute to the department. The charge memos were supported by 29 documents including list of 28 witnesses as well as the reports of the RDO and the District Collector, dated 24.2.2001 and 04.04.2001. The Deputy Superintendent of Police, Vedasandur was directed to conduct an enquiry and the enquiry was to be completed within 30 days by a further notice, dated 11.9.2009. It is the enquiry notice and the charge memo under Rule 3(b) are under challenge in the other two writ petitions.
10.The contention of Mr.G.R.Swaminathan, learned counsel for the petitioners was that there was an inordinate delay in conducting enquiry. Therefore, long delay in the enquiry must enure to the benefit of the petitioners. Inasmuch as the incident had taken place in the year 2001, it is not open to the respondents to frame charge memo in the year 2009. In this context, the learned counsel placed reliance upon the judgment of the Supreme Court in P.V.Mahadevan Vs. Managing Director, Tamil Nadu Housing Board reported in 2005 (6) SCC 636 for the purpose of holding that there was an unexplained delay of 10 years in framing charge memo and hence the charge memo was set aside by the Supreme Court.
11.The learned counsel further referred to the judgment of the Supreme Court in M.V.Bijlani Vs. Union of India and others reported in 2006 (5) SCC 88, wherein the Supreme Court quashed the punishment order though a passing reference was made that disciplinary proceedings were initiated after five years and after the Government servant handed over the charge, the enquiry officer took seven years to complete the enquiry. That judgment was not based on grounds of delay. The Supreme Court had gone into the merits of the disciplinary proceedings and found that the charges were not proved and punishment was disproportionate. In any event, Bijlani's case was considered in a subsequent judgment of the Supreme Court in Govt. of A.P. Vs. V. Appala Swamy reported in (2007) 14 SCC 49 wherein it was held that Bijilani's case is not an authority for such proposition.
12.In the present case, from the beginning, the two petitioners and the Inspector of Police Rengasamy were derailing the investigation by creating false records as indicated in the report of the Collector to the Government which was found accepted. The incident in which petitioners were involved left the public outcry which made the RDO to initiate proceedings under PSO 145 (presently 151). He sent reports to the District Collector as early as in February and April, 2001. Thereafter, the District Collector had forwarded his recommendations to the State Government during June, 2001 and further letter in the month of May, 2003. The State Government on an analysis of these materials issued an order in G.O.Ms.No.886, Public (Law & Order) Department, dated 31.8.2006. When once the said order was communicated to the Director General of Police who in turn by a memo, dated 25.9.2006 directed departmental action to be initiated against the petitioners. Before that date, the Inspector of Police Rengasamy got superannuated on 31.8.2006. Therefore, an action was initiated against one C.Kanagaraj who was the dealing Assistant in the District Police Office, Dindigul. He was issued with a charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules for not initiating appropriating departmental action against Rengasamy in the year 2001 itself. The said Kanagaraj (presently the Superintendent of TSP XIV Batallion), is facing a charge memo. The said Rengasamy could not be proceeded with the enquiry in view of his retirement and that Rule 9 of the Tamil Nadu Pension Rules, 1978 prohibits any action regarding an incident which had taken place four years before the date of his retirement. Hence, the said Rengasamy could not be proceeded with.
13.Now taking advantage of the retirement of Rengasamy and he being let off, MR.G.R.Swaminathan, learned counsel for the petitioners contended that since the main culprit Rengasamy (the then Inspector of Police) was let off, the petitioners should also not be proceeded with as it will result in discrimination. This court is unable to accept both the contentions of the petitioners. The first contention that there was a delay in initiating departmental proceedings cannot be accepted. When the petitioners themselves had attempted to cover up several instances and derailed the investigation, certainly it requires some other body to intervene in this case. Revenue Department which has to oversee the functions of the police was quick enough to take action and sent a report to the State Government. The State Government had also directed the Director General of Police to take action. By the time the Director General of Police came, with the connivance of the dealing assistant at the District Police Office, files were kept pending, thereby allowing Rengasamy (the then Inspector of Police) to retire from service. One illegality will not lead to an another illegality. The plea of discrimination also cannot be accepted having regard to the fact of grave misconduct committed by the petitioners, especially when as per the report they had participated in the sexual assault against a hapless woman who was dragged to the police station in the early hours of the morning, thereby driving her to attempt to commit suicide and who later struggled for survival with grave injuries. Such incidents cannot be condoned. It requires deterrent punishment and the petitioners cannot escape from the consequences. This court is not inclined to set aside the impugned orders only on the alleged ground of delay. Even the cases cited by the petitioners resulted in charge sheet being set aside only on the ground of unexplained delay. In the present case, the charges levelled against the petitioners were serious and the delay had been explained. They cannot escape for having violated personal liberty of a citizen of this Country.
14.The Supreme Court in D.K. Basu v. State of W.B., reported in (1997) 1 SCC 416 has laid down 11 commandments for being followed by all authorities in this country. In paragraph 39, the Supreme Court had observed as follows:
"39.The requirements mentioned above shall be forwarded to the Director General of Police and the Home Secretary of every State/Union Territory and it shall be their obligation to circulate the same to every police station under their charge and get the same notified at every police station at a conspicuous place. It would also be useful and serve larger interest to broadcast the requirements on All India Radio besides being shown on the National Network of Doordarshan any by publishing and distributing pamphlets in the local language containing these requirements for information of the general public. Creating awareness about the rights of the arrestee would in our opinion be a step in the right direction to combat the evil of custodial crime and bring in transparency and accountability. It is hoped that these requirements would help to curb, if not totally eliminate, the use of questionable methods during interrogation and investigation leading to custodial commission of crimes."
15.Subsequently, while recommending punitive measures against officials who violate the rights of citizens, the Supreme Court had recommended severe action which was found reflected in paragraphs 40, 42,44,45 and 54 of the said judgment, which are as follows:
"40. Ubi jus, ibi remedium.-There is no wrong without a remedy. The law wills that in every case where a man is wronged and endamaged he must have a remedy. A mere declaration of invalidity of an action or finding of custodial violence or death in lock-up, does not by itself provide any meaningful remedy to a person whose fundamental right to life has been infringed. Much more needs to be done. ......
42.Article 9(5) of the International Covenant on Civil and Political Rights, 1966 (ICCPR) provides that "anyone who has been the victim of unlawful arrest or detention shall have enforceable right to compensation". Of course, the Government of India at the time of its ratification (of ICCPR) in 1979 and made a specific reservation to the effect that the Indian legal system does not recognise a right to compensation for victims of unlawful arrest or detention and thus did not become a party to the Covenant. That reservation, however, has now lost its relevance in view of the law laid down by this Court in a number of cases awarding compensation for the infringement of the fundamental right to life of a citizen. (See with advantage Rudul Sah v. State of Bihar7; Sebastian M. Hongray v. Union of India8; Bhim Singh v. State of J&K9; Saheli, A Women's Resources Centre v. Commr. of Police10.) There is indeed no express provision in the Constitution of India for grant of compensation for violation of a fundamental right to life, nonetheless, this Court has judicially evolved a right to compensation in cases of established unconstitutional deprivation of personal liberty or life. (See Nilabati Behera v. State2) ......
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 for 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 a remedy available in public law since 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 Article 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 wrongdoer 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 courts 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 - civil action for damages is a long drawn and a cumbersome 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 time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family.
.....
54.Thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit."
16.In the light of the above, there is no case made out to interdict the charge memo even before any trial. Hence there is no illegality in the Government ordering probe against the concerned police men. The fact that one Inspector has got away, thanks to the protectionism indulged by one of their officers, cannot help the petitioners to plead discrimination. Each of their action requires an independent trial and an appropriate punishment. Hence all the three writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.
vvk To
1.The Secretary to Government, (Public (Law & Order-A) Department, Government of Tamil Nadu, Fort St. George, Chennai-600 009.
2.The District Collector, Dindigul District, Dindigul.
3.The Deputy Superintendent of Police, District Crime Branch, Dindigul.
4.The Director General of Police, Chennai-600 004.
5.The Superintendent of Police, Dindigul District, Dindigul.