Madras High Court
Shenbagavalli … vs The Assistant Registrar (Law) on 2 August, 2024
Author: S.S.Sundar
Bench: S.S.Sundar
W.P.Nos.17542 & 27164 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.08.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR. JUSTICE N.SENTHILKUMAR
W.P.No.17542 & 27164 of 2021
and WMP.Nos.18465, 18647, 28655 & 28658 of 2021
Shenbagavalli …Petitioner in W.P.No.17542/2021
T.Vivekanandan ...Petitioner in W.P.No.27164/2021
Vs.
1.The Assistant Registrar (Law)
The Honourable National Human Rights Commission,
Manav Adhikar Bhavan "C" Block
GPO Complex, New Delhi.
2.The Joint Registrar (Law),
The Honourable National Human Rights Commission,
Manav Adhikar Bhavan "C" Block
GPO Complex, New Delhi.
3.The Additional Chief Secretary,
Home (Citizenship-II) Department,
Government of Tamil Nadu,
Chennai-09.
4.The Secretary,
The Public (HR) Department,
Government of Tamil Nadu,
Chennai-09.
1/44
https://www.mhc.tn.gov.in/judis
W.P.Nos.17542 & 27164 of 2021
5.The Additional Chief Secretary
Home Prohibition & Excise Department,
Chennai - 09.
6.The Secretary,
Finance Department,
Government of Tamil Nadu,
Chennai-09.
7.The Accountant General,
Chennai.
8.The Pay and Accounts Officer,
Chennai.
9.The Director General of Police
Police Head Quarters,
Government of Tamil Nadu,
Chennai.
10.The Commissioner of Police
Greater Chennai City,
Vepery, Chennai- 07.
11.The Joint Commissioner of Police
South Zone, Greater Chennai Police,
Chennai - 600 016.
12.S.Sundaravadivelu …Respondents in both WPs
Common Prayer :
Writ Petition is filed under Article 226 of the Constitution of India, for
issuance of Writ of Certiorari to call for the records relating to the
impugned order passed by the 1st respondent in National Human Rights
Commission Case No.969/22/13/2017/OC dated 05.09.2019 and
2/44
https://www.mhc.tn.gov.in/judis
W.P.Nos.17542 & 27164 of 2021
consequent Government Order in G.O.(D) No.1057 issued by Home
(Citizenship II) Department/ 3rd respondent dated 15.09.2020 and to quash
the same.
For Petitioner in both WPs : Mr.M.Purushothaman
For Respondents in both WPs : Mrs.M.P.Jaisha for R1 & R2
Mr.M.R.Gokul Krishnan
for R3 to R6, R9 to R11
: Mr.T.Ravi Kumar for R7
: R12 - No appearance
COMMON ORDER
N. SENTHILKUMAR, J Both the writ petitions arise out of the common order passed in NHRC.No.969/22/13/2017/OC dated 05.09.2019.
2. These writ petitions are filed challenging the order passed by the first respondent/National Human Rights Commission in Case No.969/22/13/2017/OC dated 05.09.2019 and consequential Government Order in G.O.(D) No.1057 issued by Home (Citizenship II) Department/3rd respondent dated 15.09.2020.
3. Ms Shenbagavalli is the petitioner in W.P.No.17542/2021, who is 3/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 the Sub-Inspector of Police, J12, Kanathur Police Station and Mr T. Vivekanandan is the petitioner in W.P.No.27164/2021, who is the Inspector of Police, R6 – Kumaran Nagar Police Station.
4. The brief facts are as follows:
4a. The complainant, one Mr. Sundaravelu, had preferred a complaint dated 14.03.2017 against the petitioners before the National Human Rights Commission/1st respondent herein. The allegation levelled against the petitioners is that on 13.01.2017, a few rowdy persons armed with knives, alleging that they were from the Police Department, threatened the complainant. At the instance of Ilayaraja and Jayaraman, the complainant was taken to the Police Station in an Indica car belonging to them. His further allegation is that the said persons had taken Rs.3,500/-, the complainant’s Credit Card, Aadhar Card and also snatched Rs.45,000/-
cash, which was kept in a travel bag. Articles worth Rs.1 lakh were also nicked from the complainant. The complainant stated that a case in Crime No.102 of 2017 for an offence under Section 294(b) IPC read with Section 4 of TNPWH Act was registered against him by Kannagi Nagar J11, Police Station at the instance of false complaint given by the said Ilayaraja.4/44
https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 Consequently the complainant alleged that he was beaten up, forced to drink his urine and eat his faecal particles.
4b. As per the complaint, the Police informed the complainant that he had forwarded certain messages via SMS to Mobile numbers 9840983832 and 9500099100 between the dates 25.12.2016 to 31.01.2017, stating that the said Ilayaraja was selling illicit arrack and his wife had indulged in prostitution. The complainant futher alledged that the Inspector T.Vivekanandan, i.e., the petitioner in W.P.No.27164 of 2021, had stated that since Ilayaraja and Jayaraman had bribed the Police Officers, no action could be taken against them and also went on to inform the complainant that he was willing to send his wife for prostitution and was interested in knowing what the complainant would pay as consideration for such activities.
4c. The complainant stated that Sub Inspector Shenbagavalli, i.e., the petitioner in W.P.No.17542 of 2021, had threatened that the complainant would be subjected to third degree treatment if he resists indulging in the promiscuous activities and as CCTVs were all fixed in front side of the 5/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 Police Station, none of these activities will be recorded.
4d. Based on the said Ilayaraja’s false complaint, the petitioner in W.P.No.27164 of 2021 had handcuffed the complainant, beaten him up with pipe rods and the complainant was subjected to serious violations of human rights. He further made allegations against few others, namely, Udaya, Shajahan, Allaudin, Iyer, and Vinoth, who were constables and sub- inspectors in the said Police Station. He has also stated that these incidents were witnessed by others namely, Rathika, Arulmoris, Leenamon, Udayakumar, and Velu, who were Police Constables attached to the very same Police Station.
5. The report of the Assistant Commissioner of Police attached to Thoraipakkam Range, dated 19.06.2017, is also enclosed in the typed set of papers filed by the petitioners. It is an enquiry report on the complaint filed before the Commission/first respondent by the complainant against Ilayaraja and the petitioners herein. An Enquiry Officer, Mr.J.Aiyyappan, was appointed to conduct enquiry on the complaint and submit a report. The relevant portion of the aforesaid enquiry report is extracted hereunder:
Enquiry Report:6/44
https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 According to the station records 1.FIR,
2.PSR, 3.Sentry relief book, 4. Arrest intimation, reveals that the petitioner was arrested at Karapakkam bus stop and brought to J11PS at 14.00hrs on 13.01.17, after making PSR, he was entrusted with station sentry Wpc 42752 Sivaranjini at 15.00hrs. And then he was taken to JM Alandhur by Escort Pcs at 18.00hrs.
During this time between 15.00hrs and 18.00hrs non is assaulted in the PS as stated by the petitioner and his arrest intimation was also duly conveyed to his brother-in-law Tr.Ravi on 13.01.17 at 14.00hrs.
In this connection statements were recorded from the CPs 1 to 3. From the statements of CPs 1 to 3 and the connected station records are reveals that the accused Sundravelu was arrested only on the complaint of CP 1 and he was arrested by CP 3 Tmt.Senbagavalli, SI of police L&O of J11 Kannagi nagar PS and taken all procedures till his remand on 13.01.17 and there is no illegal detention as alleged by the petitioner and also no personal belongings recovered at the time of 7/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 prisoner search, similarly none is assaulted him in the police station, more over no one is forced to drink and eat the human wastage like urine and human wastage and there is no violations committed by police personnel against human rights.
No further action is need in this matter.
6. The enquiry report includes the statement of Rajasekaran, Ilayaraja, the complaint of Sundaravelu filed before the SHRC and two CSRs viz., C.S.R.No.12 of 2017 and C.S.R.No.172 of 2017. The crude and vulgar messages by the complainant dated 01.07.2017 and 09.01.2017 were also enclosed in the report. This court feels, it may not be appropriate to reproduce the distasteful messages sent by the complainant. The complaint given by Srividhya, which was treated as C.S.R.No.172 of 2017, would disclose that she is working as the Head of Human Resources in a private company which engaged the services of ‘Ilayabharatham Cabs’ for the transportation of their staff members. The complainant happened to be the cab driver, and thereby having access to her mobile number, began sending crude, indecent and vulgar messages to her. This harassment stood for consideration before the Police.
8/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021
7. Similarly, the complaint of the said Ilayaraja, which was treated as C.S.R.No.12 of 2017, would disclose that he was running the small tourist cab company in the name and style of ‘Ilayabharatham’, and the complainant was working as a driver, and had often misbehaved with clients. As the complainant was removed from service, he abused Ilayaraja and his wife by sending vulgar messages to his wife's mobile number. Under this pretext, a case was registered by Kannagi Nagar Police in Crime No.102 of 2017 for the offences under Section 294 (b) IPC read with Section 4 of the TNPWH Act.
8. The statement of the Police Officers enclosed in the report dated 19.06.2017 shows that the complainant was arrested and he was produced before the Judicial Magistrate. The complainant has not made any complaint before the learned Judicial Magistrate at the time of arrest and remand. Thereafter, he was produced before the Prison Authorities at Puzhal Central Prison. The statement of the Police Constable Vinothkumar, who took the complainant to Chrompet Government Hospital shows that the complainant was given a fit certificate for his health condition and when the complainant was produced before the Government Royapettah 9/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 Hospital, he informed the doctor that he had some knee pain. Based on his request, an X-ray was done. The doctor enquired if he was willing to receive treatment at Government Royapettah Hospital, for which the complainant informed that he would receive treatment within the prison.
9. The statement of Police Constable Vairamuthu shows that when the complainant was produced before the learned Judicial Magistrate, the learned Judicial Magistrate posed three questions to him: (i) Was the accused aware of the allegations made against him? (ii) Did the Police commit torture? and (iii) Were there any injuries sustained by the complainant at the hands of the Police? After recording the negative statement from the accused, the learned Judicial Magistrate remanded the accused for 15 days.
10. The statement of Police Constable, Rathika, shows that when the complainant was brought to the Police Station, he was physically examined, and food was provided to him.
10/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021
11. It is seen from the records that the Police had also filed a charge sheet against the complainant Sundaravelu for offences under Section 294
(b) IPC read with Section 4 of the TNPWH Act. The Assistant Commissioner of Police, Thoraipakkam Range submitted the aforesaid report to the Commission/first respondent on 19.06.2017 for consideration.
12. The Commission/first respondent called for the report of the Commissioner of Police vide proceedings dated 05.06.2018 as a final reminder. On 17.07.2018, the Commissioner of Police submitted his report to the Commission/first respondent stating that there was no custodial torture in the present case and the allegations of the complainant are false and baseless.
13. In a proceeding dated 26.10.2018, the first respondent took note of the allegations in the complaint and directed the Commissioner of Police to furnish a copy of his report to the complainant and called for his reply. The Commission/first respondent, in its proceedings dated 11.04.2019, has considered the complainant's reply, which states that the report is faulty and evasive. In the said proceedings, the Commission has observed as follows:
11/44
https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 ...
“Let the file be sent to Investigation Division for analysis and to do the spot enquiry if required & submit the report within six weeks.”
14. On 12.05.2019, the Inspector of Police attached to Kannagi Nagar, J11 Police Station, submitted a report to the Commission/ first respondent detailing the spot enquiry made by the Investigation Division of NHRC, which is extracted hereunder:
NHRC Team Spot Enquiry:
On 06.05.2019 at 09.00hrs, a team of officials from the National Human Rights Commission (New Delhi) arrived chennai airport, we arranged transport and the team went by roadways to PeriaKalakatoor Village, Thirutani Taluk, Thiruvallur District for conducting spot inquiry of Petitioner Tr. S.Sundaravelu s/o. Tr.C.Subramani. And the next day, on 07.05.2019 in chennai, the NHRC team verified the Station Records like 1) FIR, 2) PSR, 3) Sentry Relief Book, 4) GD entry and 5) Arrest Intimation in connection with case 12/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 registered in J-11 Kannagi Nagar P.S Cr.No.102/2017 u/s 294(b) IPC r/w 4 of TNPWH ACT and also making inquiries with the complainant of Victim's husband Tr.Elayaraja A/47, S/O Shanmugam, who residing in No.1/355 Indira Gandhi Street, Karapakkam, Chennai – 600 097. Then, the third day and the fourth day, on 08.05.2019 and 09.05.2019, the NHRC team inquired with the Jail Superintendent of Central Prison, Puzhal, Government Royapettah Hospital Doctors, Police Officers who registered an FIR, Tr.Vivekanandan now working as an Inspector of Police in R1 Mambalam P.S (L&O), Tmt.
Shenbagavalli, WSI of Police in J10 Semmenchery P.S (L&O) and the Enquiry officer of Thuraipakkam Range, Retired Assistant Commissioner of Police Tr. Iyappan, special teams of J11 Kannagi Nagar P.S and Escort Team who taken the petitioner to Central Prison, Puzhal. On 10.05.2019, the NHRC team completed his spot inquiries and went back to his Commission New Delhi.
15. The Investigation Division analysed the relevant records and 13/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 submitted a report to the Commission/first respondent. In the proceedings dated 08.08.2019, the Commission/first respondent issued the following order:
The Commission has considered the
report. Prima facie, the complainant was
arrested by police on 13.1.2017 but no GD entry regarding his arrest, movement to hospital or to the jail was made in police record. Admittedly, there was no injury was found on the body of the victim at the time of arrest, the doctor of Chrompet Hospital had advised orthopedic examination but was not undertaken by police, the record of Royapettah Hospital as well as jail hospital reveal fracture on both knees of the complainant.
Let the Investigation Division conduct a spot enquiry and submit report within 10 weeks.
16. The Investigation Division had submitted an enquiry report dated 03.07.2019 before the Commission/first respondent. The adverse findings made against the petitioners in the report of the Investigation Division are extracted hereunder:
14/44
https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 Analysis of the GD entries reveals that there was no entry regarding arrest of complainant Sundaravelu, movement of police personnel while arresting or sending him to hospital/court etc. ...
2E. The medical papers dated 13.01.2017 & 14.01.2017 of Chrompet hospital and Royapettah hospital:- This reveals that there was swelling & pain on both knees and fracture of both patellas.
2F. The initial health screening report of UTP S. Sundaravelu at Central Prison Puzhal:-
This reveals that while admission in jail, victim S. Sundaravelu was found to be having injury over both knee and fracture both patellas. Apart from the above adverse findings against the petitioners, the Investigation Division received reports on other under-trial prisoners admitted with fractures. The observations of Investigation Division are extracted hereinunder:15/44
https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021
3.The copy of initial health screening report of 91 prisoners (P 184-274):- The document of Central Prison Puzhal has been collected from jailer and the jail doctor. The report reveals that the under trial prisoners who has been admitted in Central Jail, Puzhal-2 suffered injuries/fracture on knees elbows etc at the time of admission in the jail due to police atrocities. The details of the initial health screening report of the 91 prisoners are as under:-
S. Name Injury Page
No. No.
1 Selvamani Fracture at right Ulna 138
2 Naresh Fracture at left 5th metacarpal 139
3 Asith Kumar @ Sharma Fracture at lateral mellealus 140
4 Ramachandran Fracture at left forearm 141
5 Vellai @ Tamilarasan Fracture at BB of left leg 142
6 Naveen Kumar Fracture of left megelani sinus 143
lateral wall of let orbit
7 Vijay @ Thalapathy Fracture at left Tibia 144
8 Raj Kumar @ Ranjith Fracture at left radius 145
9 Ajith Kumar @ Etta Ajith Belalleloar fracture right ankle 145A
10 Vedamai Fracture right leg 146
11 Madhan @ Madkumar Fracture of BB right forearm 147
12 Vicky @ kallarai Viely Fracture of BB right forearm 148
16/44
https://www.mhc.tn.gov.in/judis
W.P.Nos.17542 & 27164 of 2021
S. Name Injury Page
No. No.
13 Udaya @ Uday Kumar Fracture of BB right forearm 148A
14 Arun Fracture of right 1st proximal filling 149
15 Dilli Ganesh Fracture right metacarpal 150
16 Sudhakar Fracture right 2nd metacarpal 151
17 Arun Kumar @ Arun Fracture at Left clavicle 152
18 Guna @ Vasanthavel Fracture at right forearm 153
19 Arvind kumar Fracture at right leg 154
20 Balaji Fracture at left leg 155
21 Karthikeyan Fracture at 5th metacarpal 156
22 Suresh @ Arcot Suresh Fracture at left fibula 157
23 Sanjeev Kumar Injury and fracture at right radius 158
24 Syed Sarparas Navas Fracture at BB right leg 159
25 Ajai @ Ajith @ Ajith Fracture at BB right forearm 160
kumar
26 Muthuvel Fracture at right forearm 161
27 Vijay Kumar Fracture at D3 right Radius 162
28 Abdhul Khadhar Fracture neck of right metacarpal 163
and proximal filling of 5th toe
29 Suman Raj Fracture at BB of right foot 164
30 Karthik Viral karthik Fracture on right forearm 165
31 Nijamathulla Fracture on right forearm 166
32 Raise Raja Fracture BB left forearm 167
33 Aribabu @ Babu Fracture left leg right hand with 168
active bleeding over left leg
34 Mutta @ Shiv Kumar Fracture right forearm 169
35 Jaheer Fracture right forearm 170
17/44
https://www.mhc.tn.gov.in/judis
W.P.Nos.17542 & 27164 of 2021
S. Name Injury Page
No. No.
36 Dhayalan Fracture right forearm with swelling 171
both legs
37 AD Andhoni Raj Fracture right radius 172
38 Pendu vikki @ Viknesh Fracture M3 with right radius 173
39 Jamaluddin Fracture at BB right forearm 174
40 Rasaiya Fracture right subtroachanmet 175
41 Vinathraj Fracture right hand 176
42 Sathish @ S. Kumar Fracture right forearm 177
43 Muniyan Fracture right forearm 178
44 Moorthi @ Moosa Fracture BB right forearm 179
45 Sathish Kumar Fracture BB D3 right forearm 180
46 Rajesh Fracture proximal filling right toe 181
47 Kuppa @ Kuppusamy Fracture over right leg 182
48 Ranjith Kumar Fracture with BB right forearm 183
49 Oova @ Vetrivel Fracture right forearm 184
50 Manikandan Fracture right forearm 185
51 Shanmugam Fracture right hand 186
52 Palvadi Murugan Fracture left thumb & with 2nd distal 187
filling
53 Prabhakaran @ Appu Fracture with right forearm 188
54 Janaki raman @ Mani Fracture with Right forearm right 189
radius
55 Thirunavukkarsu Fracture on right radius 190
56 Rajesh @ Sankili Rajesh Fracture left shift of valua 191
57 Ramapwan Suresh Fracture on left forearm 192
58 Rajesh Fracture on right forearm and legs 193
18/44
https://www.mhc.tn.gov.in/judis
W.P.Nos.17542 & 27164 of 2021
S. Name Injury Page
No. No.
59 Victor Fracture over BB right forearm 194
60 Sadtham Hussain Fracture right forearm 195
61 Rayasudeen Fracture right forearm 196
62 Prabhakaran Fracture right forearm 197
63 Suresh @ Sacchi Fracture isolated right radius 198
64 Anand Fracture BB left forearm 199
65 Santosh Kumar Fracture at right forearm 200
66 Mohd. Ismail Fracture BB Right forearm 201
67 Kannat Fracture of forearm 202
68 Pascal Pasha Fracture of forearm & right tibia 203
69 Karthik Fracture of BB right forearm 204
70 Baharatham Fracture of left leg 205
71 Dinesh Fracture of left leg 206
72 Shivraman Fracture of left hand 207
73 Pharrib Fracture 1st metacarpal and left 208
hand
74 Vellai Prakash Fracture of right Ulna 209
75 Chella Fracture of BB left forearm 210
76 Kishore Kumar Fracture of BB left leg and fracture 211
of BB right forearm
77 City Babu Fracture of both forearms 212
78 Jayakumar Fracture and dislocation of left 213
great toe
79 Kamal raj Fracture of right forearm 214
80 Dinesh kumar Fracture of left forearm 215
81 Surya raja Fracture of BB right forearm 216
19/44
https://www.mhc.tn.gov.in/judis
W.P.Nos.17542 & 27164 of 2021
S. Name Injury Page
No. No.
82 Raja @ R @ Raja Bai Fracture of BB right forearm 217
83 Pradeep Kulli Fracture of right forearm 218
84 Shiva Fracture of right radius & wrist 219
joint dislocation
85 Netaji Fracture of BB left forearm 220
86 Moses Sharak Fracture of right forearm 221
87 Ahishek Fracture in left leg 222
88 Prakash Fracture of H3 radium left forearm 223
89 Michael Fracture of shaft left radium 224
90 Ganesh Fracture of middle finger & 225
proximal filling of left hand
91 Sudhardran Fracture PPX base of left index 226
finger
The Investigation Division has given its findings, conclusion and recommendations to the Commission/first respondent in the aforesaid report.
17. The proceedings of the Commission/first respondent dated 30.08.2019 is enclosed as Annexure R7 in the typed set of papers filed by the Commission/first respondent. In the said proceedings, the Commission/first respondent considered the report of the Investigation Division and directed as follows:
...The Commission got the matter examined 20/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 and analyzed through its Investigation Division. The Investigation Division of the Commission also conducted a spot inquiry in order to verify the facts and allegations in the complaint and to find out truth in the matter.
The spot inquiry by the Investigation Team found holes in the story put forth by the State Police. It was found that GD entries regarding the movement of Police to arrest Sundaravelu, his arrest and accidental fall of Sundaravelu, his movement to the hospital or to the jail were not made. At the time of his arrest, no injury was found on the body of the complainant. However, after the arrest when he was taken to doctor at Chrompet Hospital for examination on 13.1.2017 – the day of arrest, the doctor found swelling on both the knees and advised orthopedic examination. But the police did not take him for any such examination. Sundaravelu was produced before the concerned Magistrate, who allegedly ignore the complainant's version of custodial torture and remanded him to police custody. When the police took him to the Central Jail, Puzhal, the Jail Authorities refused to 21/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 accept Sundaravelu as he was having injuries and directed to re-examine him in the Royapettah Govt. Hospital. The medical treatment at Royapettah Hospital dated 13- 14/1.2017 reveals fracture on both the knees of Sundaravelu. He was then again taken to the Central Jail, Puzhal on the night of 13/14.1.2017 where he was treated and was released on bail on 5.2.2017. The Jail Doctor stated before the NHRC Investigation team that the victim, Sundaravelu was diagnosed with fracture and this type of fracture might be due to torture during police interrogation. The x-ray produced by Sundaravelu also confirms fracture on the knee.
From the above, it is crystal clear that when the complainant, Sundaravelu was arrested on 13.1.2017, he was not having any injury, but after about four hours when he was produced before the doctor at Chrompet Hospital, he was having pain and swelling over both the knees, which were later confirmed to be fracture at Royapettah Hospital on the same day. Thus, there is no iota of doubt Sundaravelu's torture 22/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 by the police in custody to the extent that they caused fracture on both his legs.
During the spot enquiry, the Commission's Investigation Team also came to know that there are 91 other under-trial prisoners in Puzhal Central Jail with fracture on different parts of the body such as forehand, forearm, knees etc. at the time of their admission in the jail. The Investigation Team has procured the Health Screening Reports of these 91 under-trial prisoners at the time of their entry into prison. These Health Screening Reports reinforce the reasonable suspicion that the kind of torture causing fracture on the limbs of the prisoners is rampant, which is extremely worrisome to say the least.
The Commission therefore, without any hesitation, -
(a) directs issuance of notice under Section 18 of the Protection of Human Rights Act to Government of Tamil Nadu through its Chief Secretary to show cause as to why the Commission should not recommend payment of compensation of Rs..............lakhs to be paid to 23/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 the complainant/victim Sundaravelu for the custodial torture that he was subjected to in violation of his human rights.
(b) recommends that Director General of Police, Tamil Nadu ensures that criminal case is registered against the police officials, who are alleged to have caused above custodial torture and to take necessary action as per law.
(c) directs the Director General of Police, Tamil Nadu to procure the initial Health Screening Reports of the prisoners in other Central Jails in the State of Tamil Nadu, which indicate “fracture” along with the list of such prisoners.
The matter will be taken up at the CAMP SITTING/OPEN HEARING of the Commission at Chennai on 12th September, 2019 and the Director General of Police is directed to remain present along with the information sought as above.
The Chief Secretary and the Director General of Police, Tamil Nadu shall be present along with the above reports.
18. The first respondent, vide letter dated 05.09.2019, had forwarded 24/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 a proceeding to the Director General of Police and requested for an additional/complete report for the commission's consideration during the camp sitting at Chennai.
19. The Commission/first respondent vide proceedings dated 05.09.2019 had given three directions:
a) Directing issuance of notice under Section 18 of the Protection of Human Rights Act to the Government of Tamil Nadu through its Chief Secretary, to show cause, as to why the Commission should not recommend payment of compensation of Rs.3 lakhs to the complainant/victim Sundaravelu for being subjected to custodial torture that resulted in human rights violations.
b) Recommends that Director General of Police, Tamil Nadu to ensure that criminal case is registered against the Police Officials, who are alleged to have caused the above custodial torture that he was subjected to in violation of human rights.
c) Direct the Director General of Police, Tamil Nadu to procure the initial Health Screening Reports of the prisoners in other Central Jails in the State of Tamil Nadu, which indicate 'fracture' along with the list of such 25/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 prisoners.
20. On 12.09.2019, during camp sitting/Open hearing, the Commission/first respondent recommended for payment of compensation of Rs.3 lakhs to the complainant. According to the directions of the Commission/first respondent, the Government passed G.O.(D)No.1057 Home (Citizenship-II) Department dated 15.09.2020. Challenging the proceedings dated 05.09.2019 and the Government Order dated 15.09.2020, the present writ petitions are filed.
21. It is also seen from the proceedings dated 08.01.2020 that the Chief Secretary, Government of Tamil Nadu, and the Director General of Police, Tamil Nadu were directed to appear before the Commission for submission of proof of compensation paid to the complainant. The aforesaid proceedings resulted in the issuance of consequential orders of Respondents 9 to 11 on payment of compensation and recovery of the same from the petitioners.
22. Learned counsel for the petitioners contended that at no point in time, the petitioners were issued a show cause notice by the 26/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 Commission/first respondent or by the Government. The next contention is that the enquiry report of the Investigation Division was not furnished to the petitioners enabling them to make their objection with regard to veracity of the findings, conclusion and recommendations. The Commission/first respondent and the Government have not provided an opportunity to the petitioners to submit their explanation or an opportunity to be heard before passing orders for payment of compensation of Rs.3 lakhs to the complainant and recovery of the same from the petitioners.
23. The petitioners had no knowledge about the proceedings of the first respondent. According to the petitioners, they were in shock & surprise to see the Government Order in G.O.(D)No.1057 Home (Citizenship-II) Department dated 15.09.2020 issued pursuant to the recommendation of the Commission/first respondent. The petitioners came to know about the entire proceedings only when the aforesaid Government Order was passed which came as a sudden and an unexpected turn of events.
24. Learned counsel appearing for the first respondent submitted 27/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 that the Commission has followed all the procedures at the time of enquiry and relied upon Section 18 of the Protection of Human Rights Act, 1993. For better understanding, Section 18 is extracted hereunder:
18.Steps during and after inquiry.-
The Commission may take any of the following steps during or upon the completion of an inquiry held under this Act, namely:-
(a) where the inquiry discloses the commission of violation of human rights or negligence in the prevention of violation of human rights or abetment thereof by a public servant, it may recommend to the concerned Government or authority-
(i) to make payment of compensation or damages to the complainant or to the victim or the members of his family as the Commission may consider necessary;
(ii) to initiate proceedings for prosecution or such other suitable action as the Commission may deem fit against the concerned person or persons;
(iii)to take such further action as it may think fit;
25. The learned counsel for the first respondent submitted that the 28/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 Commission/first respondent has jurisdiction to conduct an enquiry as contemplated as per Section 16 (b) of the Act. For better understanding, Section 16 (b) is extracted hereunder:
16.Persons likely to be prejudicially affected to be heard.-
...
(b) is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, it shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence:
Provided that nothing in this section shall apply where the credit of a witness is being impeached.
26. It is pertinent to note the veracity of the complaint given by the complainant. The complainant stated that he was subjected to torture at the instance of a false complaint given by the said Ilayaraja. However, the complainant had not produced a semblance of material to show that he was harassed by the petitioners.
27. A plain reading of Section 16 (b) would clearly show that in the 29/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 opinion of the Commission, if a person is likely to be prejudicially affected when a finding is made against him, then the first respondent has to issue a notice or a show cause notice to the concerned person asking for a reply on the allegations made against the said person.
28. Section 16 (b) is a mandatory provision for the Commission/first respondent to hold an enquiry. Before concluding the enquiry, it is incumbent on the first respondent to adhere to the procedures. While we concur with the powers of the Commission/first respondent in holding an enquiry as per Section 18, we also hold that any violation of Section 16(b) which would affect the reputation of a person against whom allegations are made is not only a violation of Section 16(b) but also a violation of principles of natural justice.
29. It is pertinent to note that the National Human Rights Commission had never issued any summons to the writ petitioners. The Commission/first respondent has made recommendation based on the enquiry report of the Investigation Division. The said enquiry report was not furnished to the petitioners before making the recommendation to the 30/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 Government of Tamil Nadu.
30. The typed set filed by the first respondent, though running to several pages with several proceedings, lacks material suggesting that the Investigation Division at the instance of the Commission/first respondent has followed necessary procedures in conducting the enquiry. There is no evidence to show that the petitioners were properly examined, allowed to mark documents and cross examine the witnesses. In the absence of any material produced before this Court to substantiate that the enquiry was conducted by following necessary procedures, this Court is unable to infer anything in concurrence with the findings rendered by the Commission/first respondent.
31. In violation of statutory provisions and principles of natural justice, the Commission/first respondent has made the recommendation for payment of compensation and the third respondent has passed an order for payment of compensation to the complainant. As a consequential order, the respondents 9 to 11 have passed an order to recover a sum of Rs.1,50,000/- from the petitioners, respectively.
31/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021
32. The Commission/first respondent ought to have considered the fact that the allegations made against the petitioners are serious in nature and there could be no orders passed behind the back of the petitioners. If, as contemplated by the statute, a show cause notice was issued to the petitioners, it would have accorded an opportunity to defend their case before the Commission/first respondent.
33. Conducting a roving enquiry without an opportunity to the persons against whom the recommendations are made would only show that the first respondent had flouted the principles of natural justice and not furnishing the enquiry report on the basis of which the recommendations were made, has resulted in serious prejudice against the petitioners.
34. The entire proceedings is vitiated as per the dictum of the Hon'ble Supreme Court in Union of India and Others vs. Mohd. Ramzan Khan reported in (1991) 1 SCC 588. The principle laid down in this case was affirmed by a Constitution Bench of the Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad vs. B. Karunakar and Others reported in (1993) 4 SCC 727. The rationale behind the right to receive the 32/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 report of the enquiry officer was explained by the Hon'ble Supreme Court in the following terms:
26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions.
The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an 33/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity 34/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it. Following the aforesaid judgments, the Hon'ble Supreme Court in Takano vs. Securities and Exchange Board of India and Ors. reported in 2022 8 SCC 162, held that non-furnishing of enquiry report to the delinquent is a violation of principles of natural justice.
35. Apart from the above recommendations made against the petitioners herein, the Commission/first respondent also directed the Police Department to submit initial Health Screening Report of the prisoners in other prisons of the State which indicate fracture. It is relevant to extract Annexure R14, a letter addressed to the Additional Registrar (Law) NHRC, New Delhi, by the Director General of Police, Chennai, dated 31.07.2020.
...
2) As instructed a list of 329 prisoners admitted with fracture in Central Prisons were obtained from the Additional Director General of Police/Inspector General of Prisons, Chennai and a SIT (Special Investigation Team) was constituted 35/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 comprising of 13 members to conduct an enquiry into each case of suspected fracture.
3) Hence, as per this office memorandum in even no dated: 07.10.2019 in the references 2nd cited, 13 Independent Officers in the rank of SP & DSsP were nominated in the Special Investigation Team formed under the Deputy Inspector General of Police, Social Justice & Human Rights headed by Additional Director General of Police, Social Justice & Human Rights, to enquire into the reasons for the suspected fractures of 329 convicts/prisoners in the Central Prison of Tamil Nadu.
4) In the list of 329 Prisoners with suspected fractures given for enquiry it was found that
(i) Sl.No.6 & 7 of the list of Central Prison, Trichy, who were remanded in Trichy Central Prison and later transferred to Central Prison, Salem had been repeated as Sl.No.13 & 16 in the list of Central Prison, Salem.
(ii) And in, the list of Central Prison, Salem, it was found that the names of prisoners in Sl.No.8 and 9 was repeated once again in Sl.No.29 and 30. Hence, the total number of 329 convicts/prisoners with suspected fracture to be enquired came down to 36/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 325 (329-4=325).
5) Hence, a detailed enquiry was conducted by an independent 13 member SIT formed as per the memorandum of Director General of Police in the reference 2nd cited for 325 Remand Prisoners noticed with suspected fractures. The reports submitted by them have been categorized as shown below:
Sl. Name of SIT enquiry Total Cases Cases No. officer & his Unit/District Cases without with assigned any allegation allegations s 1 Tmt.G.Nagajothi, DCP, 13 13 0 CCB-I, Chennai City 2 Tr.Palaniselvam, DSP, 37 36 1 DCB, Vellore 3 Tr.Rajan, DSP, 30 25 5 IUCAW/CWC, Villupuram 4 Tr.R.Sundaram, DSP, 30 23 7 DCB, Cuddalore 5 Tr.Saravanan, ACP, 30 30 0 Salem City, i/c-CCB 6 Tr.Ravichandran, DSP 28 23 5 DCB, Salem Dist.7 Tmt.Anitha, ADSP, 25 12 13
CWC, Coimbatore Dist.8 Tr.Dinesh Kumar, DSP, 13 6 7
ALGSC, i/c-DCB,
Pudukkottai
9 Tr.P.Chandran, ACP, 16 12 4
ALGSC, Trihcy City
37/44
https://www.mhc.tn.gov.in/judis
W.P.Nos.17542 & 27164 of 2021
Sl. Name of SIT enquiry Total Cases Cases
No. officer & his Unit/District Cases without with
assigned any allegation
allegations s
10 Tr.R.Soundararajan, ACP, 24 11 13
CCB, Coimbatore City
11 Tr.V.K.Dheepu, ACP, 29 29 0
ALGSC, i/c-CCB,
Tirunelveli City
12 Tr.Justin Prabhakaran 24 18 6
ACP,
CCB, Madurai City
13 Tr.Rajkumar, DSP 26 20 6
CCB, Tirunelveli, Dist.
TOTAL 325 258 67
The enquiry officers during the course of enquiry came across 67 allegations against the police which is furnished in column 5 of the above mentioned table by examining witnesses and documents such as the Magistrates Remand order, Accident Register in Govt., Hospitals, Prisoner's admission record, Prison Hospital record and Prisoner's present statement, when enquired.
36. Based on the enquiry reports on the said 67 cases, the Special Investigation Team has come to the conclusion that only in three cases allegations are proved, out of which, one case is pending before the Judicial Magistrate-II, Cuddalore, another before the State Human Rights 38/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 Commission and the third case was recommended for initiation of departmental action against the erring Police Officer, by the Special Investigation Team. Based on the above recommendations of the Special Investigation Team, the Commission/first respondent recommended for payment of compensation of Rs.7.5 lakhs to the victim and the said recommendation was quashed by this Court by an order dated 14.03.2024 in W.P.No.12451 of 2023.
37. The recommendation made by the 1st respondent for payment of compensation to the complainant/12th respondent herein, is hereby set aside, and the consequential directions for initiating criminal proceedings and disciplinary proceedings against the petitioners are also set aside.
38. This Court is of the view that the following two grounds of digressions have embodied the soul of the violations of principles of natural justice and of mandatory statutory requirements, in the present case.
(i) Failure to issue show cause notice to the petitioners, has caused 39/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 prejudice and damage to both, the persons and their service records.
(ii) Non-furnishing of enquiry report is detrimental to the writ petitioners, which also stands antithetical to the mandate of the principles laid down by the Hon’ble Supreme Court, in the precedents cited supra.
39. With the above observations, the Writ Petitions are allowed on the following terms:
(a) The impugned order passed by the first respondent/National Human Rights Commission (NHRC) in case No.969/22/13/2017/OC dated 05.09.2019 is quashed.
(b) The consequential Government Order in G.O. (D) No.1057 issued by Home (Citizenship II) Department/third respondent dated 15.09.2020 is also quashed.
(c) The Government shall return the compensation amount recovered from the petitioners within a period of 4 weeks.
(d) The Government is at liberty to recover the compensation amount paid to the complainant by following due process of law. No costs. Consequently, connected miscellaneous petitions are closed. 40/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 [S.S.S.R., J] [N.S., J] 02.08.2024 Index : Yes/No Speaking Order : Yes/No Neutral Citation : Yes/No pam 41/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 To
1.The Assistant Registrar (Law) The Honourable National Human Rights Commission, Manav Adhikar Bhavan "C" Block GPO Complex, New Delhi.
2.The Joint Registrar (Law), The Honourable National Human Rights Commission, Manav Adhikar Bhavan "C" Block GPO Complex, New Delhi.
3.The Additional Chief Secretary, Home (Citizenship-II) Department, Government of Tamil Nadu, Chennai-09.
4.The Secretary, The Public (HR) Department, Government of Tamil Nadu, Chennai-09.
5.The Additional Chief Secretary Home Prohibition & Excise Department, Chennai - 09.
6.The Secretary, Finance Department, Government of Tamil Nadu, Chennai-09.
7.The Accountant General, Chennai.
8.The Pay and Accounts Officer, Chennai.
42/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021
9.The Director General of Police Police Head Quarters, Government of Tamil Nadu, Chennai.
10.The Commissioner of Police Greater Chennai City, Vepery, Chennai- 07.
11.The Joint Commissioner of Police South Zone, Greater Chennai Police, Chennai - 600 016.
43/44 https://www.mhc.tn.gov.in/judis W.P.Nos.17542 & 27164 of 2021 S.S.SUNDAR, J and N. SENTHILKUMAR, J pam W.P.Nos.17542 & 27164 of 2021 02.08.2024 44/44 https://www.mhc.tn.gov.in/judis