BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/08/2010 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.5272 of 2006 and M.P.(MD)Nos.1 and 2 of 2006 Sangaiyya ... Petitioner Vs 1.The State of Tamil Nadu, rep. by its Chief Secretary, Fort St., George, Chennai -9. 2.The State of Tamil Nadu, rep.by its Home Secretary, Fort St., George, Chennai - 9. 3.The District Collector, Madurai District, Madurai. 4.The Revenue Divisional Office, Madurai, Madurai District. 5.The Director General of Police, Mylapore, Chennai -4. 6.The Additional Director General of Police, (Social Justice and Human Rights) Chennai. 7.The Inspector General of Police, South Zone, Madurai. 8.The Superintendent of Police, Madurai. ... Respondents PRAYER Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Mandamus, directing the respondents 1 to 8 to pay to the petitioner, compensation of a sum of Rs.5,00,000/- (Rupees five lakhs only) to prosecute the delinquent police officials on the basis of a fair an impartial investigation and to take disciplinary action against the police personnel and others responsible for the wrongful confinement, torture and the murder of the petitioner's son. !For Petitioner ... Mr.Henri Tiphange ^For Respondents ... Mrs.Chellammal, Additional Advocate General Assisted by Mr.So.Paramasivam, Government Advocate. :ORDER
A poor man who lost his son allegedly killed due to torture by the police officials of Keeraithurai police station, Madurai District has knocked at the doors of this Court for a Mandamus, directing the State and others to pay compensation of Rs.5 lakhs and also prayed for a direction to initiate both disciplinary and criminal prosecution against those responsible for the untimely death of his son.
2.The petitioner's son, aged about 26 years was running a meat shop at Anuppandi, for his livelihood. He was living with his wife, who was 7 month's pregnant, at the time of his death, daughter and two sons, aged 5 and 3 years respectively.
3.On 04.12.2004, Saturday, as usual, he returned from the meat shop. Around 7 p.m., when he was drinking liquor near TASMAC wine shop No.5276, Police Constables, Mr.Marimuthu and Mr.Karuppiah of Keeraithurai Police Station, came there in a motor cycle and questioned him for consuming liquor, in a residential area. On intimation, some other policemen also assembled and took him to Keeraithurai Police Station for enquiry. The same was witnessed by two people. As the petitioner's son did not return home, the petitioner was in search of his son. Around 9 p.m., a Police constable, Mr.Marimuthu of Keeraithurai Police Station informed the petitioner that his son was found drunk and for causing nuisance, he was kept in the police station. The said Police Constable took the petitioner to the police station. The belongings, including the key of his shop, kept in his hip were removed.
4.In the police station, the petitioner's son was lying on his back, without any movement. Water was sprinkled on his face. He slightly opened his eyes and immediately closed. There was no movement in his body. There were 8 policemen in the police station and the writer got the petitioner's left hand thumb impression on a blank paper. They told the petitioner that only a petty case had been registered and that he was instructed to come on the next day, along with his son, to pay the fine amount. Thereafter, when his son was taken to petitioner's house by 10 p.m., he found him motionless and came to know that he was brutally assaulted to by the police officials of Keeraithurai Police Station and died.
5.In this regard, a complaint was lodged with Avaniyapuram Police Station and they registered a case in Crime No.820 of 2004, dated 05.12.2004, under Section 174 Cr.P.C. The Sub Inspector of Avaniyapuram Police station came to the petitioner's house in a jeep, around 10.30 p.m and removed the clothes on the dead of the body of his son. There were external injuries on the body, blood clots and also injuries on the soles of both feet. Though an autopsy was conducted on 05.12.2004, Doctors have failed to videograph the same, as per the guidelines of NHRC.
6.It is the grievance of the petitioner that the Sub Inspector of Police, Avaniyapuram has failed to register a case, under appropriate sections of Indian Penal Code. In this regard, complaints were sent on 07.12.2004 to the Chief Secretary, Chennai, Director General of Police, Chennai, Additional Director General of Police, Chennai and other higher police officials. According to the petitioner, the police officials under the guise of an enquiry, have tortured his son, which resulted in his death. His son was handed over by the policemen in an unconscious condition, with injuries on his body and it is a clear case of unlawful confinement, torture, physical assault, illegal treatment, resulting in the death of his son. It is also the grievance of the petitioner that though the police personnel have committed serious offences under Sections 120(b), 166, 302, 307, 325, 329, 342, 347, 352 and 357 of IPC, no action was taken against the violators of law, despite the matter being brought to the notice of the respondents.
7.Placing reliance on the provisions of Protection of Human Rights Act, 1993, principles laid down by the Hon'ble Supreme Court in D.K.Basu v. State of West Bengal reported in AIR 1997 SCW 610 and the liability of the State to pay compensation for the death of the petitioner's son, as held by the Hon'ble Supreme Court in Nilabati Behera v. State of Orissa, reported in (1993) 2 SCC 746, the petitioner has sought for a Mandamus, directing the respondents to pay compensation of Rs.5 lakhs and to initiate departmental action and prosecution against the police officers and conduct an impartial investigation.
8.Material on record shows that on the intimation of the death of petitioner's son, Avaniyapuram Police Station has registered a case in Crime No.820 of 2004, dated 05.12.2004, under Section 174 Cr.P.C. Many representations have been sent by the petitioner to the Chief Secretary to the Government, Director General of Police, Chennai, Additional Director General of Police (Social Justice and Human Rights) Chennai, the Superintendent of Police, Madurai, the District Collector, Madurai District and the Human Rights Commission, Chennai, to take appropriate action against the policemen both under the penal laws and departmentally.
9.Though the writ petition is pending from 2006, no counter affidavit has been filed by the State and others, except, the Superintendent of Police, Madurai District, the eighth respondent herein. He has prayed for the dismissal of the writ petition, on the basis of the Post-Mortem report and the report issued by the Revenue Divisional Officer, Madurai District.
10.During the course of hearing, it was brought to the notice of this Court that the Revenue Divisional Officer, Madurai District, who conducted the enquiry under Police Standing Order has submitted a report to the District Collector recommending both prosecution and disciplinary action against seven police personnel including, the Inspector of Police, Keeraithurai Police Station. However, the District Collector, Madurai District, the third respondent herein, after obtaining certain clarifications from the Revenue Divisional Officer, Madurai, over the opinion offered by the medical officers, has submitted a report to the Government on 28.06.2007, recommending only disciplinary action. It is also brought to the notice of this Court that the Government, after considering the statement of the witnesses, reports of the Revenue Divisional Officer and the District Collector, Madurai District, found that the cause for the death of petitioner's son, was due to physical assault and torture and accordingly, issued orders in G.O.Ms.No.1094, Public (Law and Order-A) Department, dated 26.09.2008. In order to verify as to whether any recommendations have been made by the Revenue Divisional Officer for payment of compensation, Madurai District to the petitioner or legal heirs of the deceased, the learned Government Advocate was directed to produce the files of the Revenue Divisional Officer, Madurai District.
11.Perusal of the same revealed that the abovesaid G.O.Ms.No.1094, Public (Law and Order-A) Department, dated 26.09.2008 was under challenge before this Court, in W.P.No.13308 of 2009 by the erring police personnel, on the grounds inter alia, that when the District Collector, Madurai District, after due consideration of the evidence and material on record, submitted a report to the Government, recommending only departmental action against the police officials of Keeraithurai Police Station, the Government have no powers to disagree with the same and issue orders for prosecution and initiate departmental action, without obtaining specific orders from the Hon'ble Chief Minister, State of Tamil Nadu, as per Standing Order 4 of the Hon'ble Chief Minister of Tamil Nadu. Therefore, Registry was directed to tag W.P.No.13308 of 2009 along with the present writ petition for disposal.
12.Mrs.Chellammal, learned Additional Advocate General, State of Tamil Nadu, was requested to assist this Court. On instructions, from the Additional Secretary to the Government in Letter No.903/L&O.A/2010-A, dated 21.07.2010, learned Additional Advocate General submitted that the enquiry under the provisions of Police Standing Order is a preliminary fact finding enquiry and that the report is also only advisory in nature. She further submitted that though the District Collector, Madurai, has recommended only for departmental action, the Government being the ultimate and competent authority to take a final decision in the matter, have disagreed with the views of the District Collector and the Government, as per the Standing Order 4 of the Hon'ble Chief Minister, dated 26.07.2006 and after obtaining approval from the Hon'ble Chief Minister, have issued orders in G.O.Ms.No.1094, Public (Law and Order-A) Department, dated 26.09.2008.
13.In this context, the original file relating to the above said Government order was also perused. This Court after satisfying that only after obtaining sanction from the competent authority, the Government have passed the above said order, in compliance with the procedure stated supra, dismissed the writ petition in W.P.No.13308 of 2009 on 26.07.2010 and at the time of disposal of the above said writ petition, the learned counsel for the petitioners therein sought for a direction to the competent authorities to formulate specific charges and to conduct an enquiry, within a time frame to be fixed by this Court. As the petitioners therein themselves came forward to participate in the departmental enquiry, the writ petition, challenging G.O.Ms.No.1094, Public (Law and Order-A) Department, dated 26.09.2008, was dismissed, stating that there is no impediment, in proceeding against the petitioners, both departmentally and in a court of competent criminal jurisdiction. It was further directed that specific charges against the petitioners therein, may be formulated in accordance with law and proceeded, within a period of three months from the date of receipt of a copy of the order made in W.P.No.13308 of 2009, dated 26.07.2010 and after formulation of charges and upon service of charge memorandum to the petitioners therein, with statement of allegations, the competent authorities were directed to complete the enquiry, within a period of six months thereafter and the petitioners therein were also directed to co-operate with the enquiry, so as to enable the respondents therein, to pass appropriate orders, within the time frame fixed by this Court.
14. It is heartening to note that the Hon'ble Chief Minister, State of Tamil Nadu has examined the entire records and having regard to the violation of constitutional and fundamental rights guaranteed under Article 21 of the Constitution of India has disagreed with the report of the District Collector, Madurai District and ordered for prosecution and departmental action against the erring police officials who were responsible for the death of the petitioner's son.
15.The relevant portion of the said Government Order is extracted hereunder:
"3.tprhuiz kw;Wk; rhl;rpfspd; thf;F\y';;fs; Mfpatw;wpd; mog;gilapy;/ jpU.<!;tudpd; ,wg;g[ fPiuj;Jiw fhtyh;fs; jhf;fpajhy;jhd; mth; ,we;Js;shh; vd;Wk;/ ,k;kuzk; Vw;gl fhuzkhf gzpapypUe;j fPHf;;fhZk; fPiuj;Jiw fhty; mYtyh;fs; kPJ Fw;wtpay; eltof;ifa[k; kw;Wk; Jiw hPjpahd xG';F eltof;ifa[k; nkw;bfhs;syhk; vd;Wk;/ Fw;wtpay; eltof;if epiwt[ bgWk; tiu rk;gt ,lj;jpypUe;J bjhiy Jhuj;jpy; cs;s Ma[jg;gilg; gphptpw;F gzpaplkhWjy; bra;J/ ,f;fhty; mYtyh;fs; ,JfhWk; nkw;fz;l Fw;wk; rk;ge;jkhf jw;fhypf gzpePf;fk; bra;ag;glhkypUg;gpd; jFjp tha;e;j mYtyh;fs; \yk; clnd jw;fhypf gzpePf;fk; bra;at[k; murhy; Kot[ bra;J mt;thnw Mizfs; btspaplg;gLfpwJ. jpUthsh;fs;:
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7.g.nty;KUfd;/ ,uz;lhk; epiyf;fhtyh; vz;.2743/ Ma[jg;gil ,uz;lhk; gphpt[/ kJiu khefh;.
4. nkny gj;jp 3-y; cs;s Mizapd;go/ nkny Fwpg;gpl;Ls;s rk;ge;jg;gl;l fhty; mYtyh;fs; kPJ Jiw hPjpahd xG';F eltof;if nkw;bfhs;SkhWk; Fw;wtpay; eltof;if epiwt[ bgWk;tiu rk;gt nlj;jpypUe;J bjhiy Jhuj;jpy; cs;s Ma[jg;gilg; gphptpw;F gzpaplkhWjy; bra;J/ ,f;fhty; mYtyh;fs; ,JfhWk; nkw;fz;l Fw;wk; rk;ge;jkhf jw;fhypf gzpePf;fk; bra;ag;glhkypUg;gpd; jFjp tha;e;j mYtyh;fs; Kyk; cld jw;fhypf gzpePf;fk; bra;at[k; fhty; Jiw ,af;Feh; mth;fs; nfl;Lf; bfhs;sg;gLfpwhh;.
5. nkny gj;jp 3-y; cs;s Mizapd;go/ nkny Fwpg;gpl;Ls;s rk;ge;jg;gl;l fhty; mYtyh;fs; kPJ Fw;wtpay; eltof;if nkw;bfhs;SkhW kJiu khtl;l Ml;rpj;jiyth; mth;fs; nfl;Lf;bfhs;sg;gLfpwhh;. ,j;Jld; tprhuiz mwpf;if kw;Wk; bjhlh;g[ila Mtz';fspd; efy; fhty; Jiw ,af;FeUf;F ,izj;jDg;gLfpwJ."
16.In view of the decision of the Government, a portion of the relief sought for by the petitioner, regarding issuance of Mandamus for prosecution and to take departmental action, against the erring police officials, does not subsist in the present writ petition.
17.It is also brought to the notice of this Court that pursuant to the Government order stated supra, a Criminal complaint has been lodged by the Revenue Divisional Officer, Madurai District, against the police officials and it has been taken on file in PRC.No.1 of 2010 and adjourned to 31.08.2010.
18.The only question, which remains to be considered in this writ petition is as to whether, the petitioner is entitled to compensation for the death of his son. Prima facie, death is said to have been caused by seven police officials, whose names are stated supra. As regards compensation, the District Collector, Madurai District, in his proceedings in R.C.NO.2079/2010/C- 3, dated 21.07.2010, addressed to the learned Government Advocate has extracted paragraph 11 of the counter affidavit, filed by the Revenue Divisional Officer, wherein, it is stated that the question of payment of compensation would be considered, only after the orders are passed by the Government, on the enquiry report of the Revenue Divisional Officer, Madurai. The District Collector, Madurai District in the above letter, has further stated that though the Government have issued orders for departmental action as well as prosecution, there is no specific detail regarding payment of compensation.
19.On the question of payment of compensation to the victims of torture, physical assault, humiliation, rape, custodial death and where there is an infringement of constitutional right to life and liberty under Article 21 of the Constitution of India, the Hon'ble Supreme Court has ordered compensation in cases where investigation is pending and also in cases, after the conclusion of the proceedings, taken against the police officials involved.
20.In this context, this Court is deems it fit to extract few judgments of the Apex Court as well as this Court.
21.In Rudul Sah v. State of Bihar, reported in (1983) 4 SCC 141, the Apex Court held as follows:
"....But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others too well known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers.
22. In Sebastian M.Hongroy Vs. Union of India reported in AIR 1984 SC 1026 : (1984 Cri LJ 830), the Apex Court ordered payment of compensation to the wife of the victim who suffered torture, agony and mental oppression and in Bhim Singh Vs. State of Jammu & Kashmir [1985 (4) SCC 677], the Apex Court held as follows:
"We do not have the slightest hesitation in holding that Shri Bhim Singh was not produced before the Executive Magistrate First Class on llth and was not produced before the Sub-Judge on 13th. Orders of remand were obtained from the Executive Magistrate and the Sub-Judge on the applications of the police officers without the production of Shri Bhim Singh before them. The manner in which the orders were obtained i.e. at the residence of the Magistrate and the Sub-Judge after office hours, indicates the surreptitious nature of the conduct of the police. The Executive Magistrate and the Sub-Judge do not at all seem to have been concerned that the person whom they were remanding to custody had not been produced before them. They acted in a very casual way and we consider it a great pity that they acted without any sense of responsibility or genuine concern for the liberty of the subject. The police officers, of course, acted deliberately and mala fide and the Magistrate and the Sub-Judge aided them either by colluding with them or by their casual attitude. We do not have any doubt that Shri Bhim Singh was not produced either before the Magistrate on 11th or before the Sub-Judge on 13th, though he was arrested in the early hours of the morning of 10th. There certainly was a gross violation of Shri Bhim Singh's constitutional rights under Articles 21 and 22(2).
We can only say that the police officers acted in a most high- handed way. We do not wish to use stronger words to condemn the authoritarian acts of the police. If the personal liberty of a Member of the Legislative Assembly is to be played with in this fashion, one can only wonder what may happen to lesser mortals Police officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to such bizarre acts of lawlessness. Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct. However the two police officers, the one who arrested him and the one who obtained the orders of remand, are but minions, in the lower rungs of the ladder. We do not have the slightest doubt that the responsibility lies elsewhere and with the higher echelons of the Government of Jammu and Kashmir but it is not possible to say precisely where and with whom, on the material now before us. We have no doubt that the constitutional rights of Shri Bhim Singh were violated with impunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but suitably and adequately compensated, he must be. Any order to set him at liberty, but suitably and adequately compensated, he must be. That we have the right to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of this Court in Rudul Sah v. State of Bihar, reported in (1983) 4 SCC 141 and Sebastian M.Hongroy Vs. Union of India reported in AIR 1984 SC 1026 : (1984 Cri LJ 830). When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case. We direct the first respondent, the State of Jammu and Kashmir to pay to Shri Bhim Singh a sum of Rs 50,000 within two months from today. The amount will be deposited with the Registrar of this Court and paid to Shri Bhim Singh".
23.In M.C. Mehta v. Union of India reported in A.I.R. 1987, S.C. 1086, dealing with a writ petition filed for closure of certain units, the Supreme Court observed that when violations of fundamental right is brought to the notice of the Court, then hypertechnical approach should not be avoided, to meet the ends of justice. The Apex Court has observed as follows:
"Where during the pendency of a writ petition filed by Legal Aid and Advice Board and Bar Association for Closure of certain units of a company on ground of health hazard, there was leakage of oleum gas, the Supreme Court could entertain applications for compensation for damage even though the writ petition did not amend the writ petition to include the claim for compensation. The applications for compensation are for enforcement of the fundamental right to life enshrined in Art 21 of the Constitution and while dealing with such applications, a hyper-technical approach which would defeat the ends of justice could not be adopted. If the Court is prepared to accept a letter complaining of violation of the fundamental right of an individual or a class of individuals who cannot approach the Court for Justice, there is no reason why the applications for compensation which have been made for enforcement of the fundamental right of the persons affected by the oleum gas leak under Art. 21 should not be entertained. The Court while dealing with an application for enforcement of a fundamental right must look at the substance and not the form".
24.In People's Union for Democratic Rights v. Police Commr., reported in (1989) 4 SCC 730, there was report by the Deputy Commissioner, accepting the atrocities committed by the police officers and that the matter was investigated for criminal prosecution. In the above said circumstances, the Apex Court directed a sum of Rs.50,000/- to be paid to the family of the deceased, as compensation which would be invested in a proper manner so that the destitute's family might get some amount every month towards their expenses. The relevant paragraphs are extracted hereunder:
" 4.Under the above circumstances we direct that the family of Ram Swaroop who is dead will be paid Rs 50,000 as compensation, which will be invested in some scheme under the Life Insurance Corporation, so that the destitute family may get some amount monthly and the money may also be kept secured. It is also directed that Petitioner 2 Patasi who was stripped of her clothes at the police station, shall be paid Rs 500 as compensation and the 8 other persons namely (1) Dandwa (2) Ram Prasad (3) Jaipal (4) Mahavir (5) Kannu (6) Munsjia (7) Hukka and (8) Pratap, who were taken in the police station without being paid for their work, will be paid Rs 25 each. It is directed that after investigation and inquiry officers who are found guilty, the amount paid as compensation or part thereof may be recovered from these persons out of their salaries after giving them opportunity to show cause.
5.This order will not prevent any lawful action for compensation. But in case some compensation is ordered by a competent court, this will be given credit to.
25.In the above reported case, though the District Collector had recommended only department action against the erring officials namely, the Inspector of Police, the Sub Inspector of Police, the Government took a decision to prosecute the officials. As stated supra, though this Court has already dismissed the writ petition, challenging the Government Order in G.O.Ms.No.1094, Public (Law and Order-A) Department, dated 26.09.2008, the above reported judgment would fortify the views of this Court that the Government, the ultimate authority can disagree with the opinion/recommendation of the District Collector and order for prosecution in addition to departmental action.
26.In Saheli v. Commr. of Police, reported in (1990) 1 SCC 422, dealing with custodial death and compensation, the Hon'ble Supreme Court held as follows:
"10.It is now apparent from the report dated December 5, 1987 of the Inspector of the Crime Branch, Delhi as well as the counter-affidavit of the Deputy Commissioner of Police, Delhi on behalf of the Commissioner of Police, Delhi and also from the fact that the prosecution has been launched in connection with the death of Naresh, son of Kamlesh Kumari showing that Naresh was done to death on account of the beating and assault by the agency of the sovereign power acting in violation and excess of the power vested in such agency. The mother of the child, Kamlesh Kumari, in our considered opinion, is so entitled to get compensation for the death of her son from respondent 2, Delhi Administration.
11.An action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death. In case of assault, battery and false imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity, loss of liberty and death. As we have held hereinbefore that the son of Kamlesh Kumari aged 9 years died due to beating and assault by the SHO, Lal Singh and as such she is entitled to get the damages for the death of her son. It is well settled now that the State is responsible for the tortious acts of its employees. Respondent 2, Delhi Administration is liable for payment of compensation to Smt. Kamlesh Kumari for the death of her son due to beating by the SHO of Anand Parbat Police Station, Shri Lal Singh.
12.It is convenient to refer in this connection the decision in Joginder Kaur v. Punjab State reported in 1969 ACJ 28 (P & H) wherein it has been observed that:
"In the matter of liability of the State for the torts committed by its employees, it is now the settled law that the State is liable for tortious acts committed by its employees in the course of their employment."
13.In State of Rajasthan v. Vidhyawati reported in 1962 Supp (2) SCR 989, it has been held that:
"Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such as any other employer. The immunity of the Crown in the United Kingdom, was based on the old feudalistic notions of justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could not be sued in his own courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the Common Law immunity never operated in India."
14. In Peoples' Union for Democratic Rights v. Police Commissioner, Delhi Police Headquarters [1989 (4) SCC 730] one of the labourers who was taken to the police station for doing some work and on demand for wages was severely beaten and ultimately succumbed to the injuries. It was held that the State was liable to pay compensation and accordingly directed that the family of the deceased labourer will be paid Rs 75,000 as compensation.
15. On a conspectus of these decisions we deem it just and proper to direct the Delhi Administration, respondent 2 to pay compensation to Kamlesh Kumari, mother of the deceased, Naresh a sum of Rs 75,000 within a period of four weeks from the date of this judgment. The Delhi Administration may take appropriate steps for recovery of the amount paid as compensation or part thereof from the officers who will be found responsible, if they are so advised. As the police officers are not parties before us, we state that any observation made by us in justification of this order shall not have any bearing in any proceedings specially criminal prosecution pending against the police officials in connection with the death of Naresh. The writ petitions are disposed of accordingly.
27.In Re : Death of Sawinder Singh Grover, reported in 1992 (6) JT (SC) 271, the Supreme Court has ordered for compensation in a case where the facts and circumstances created a prima facie case for investigation and prosecution. In this case, the investigation was yet to be completed.
"It is not disputed that the matter has not as yet been finally investigated. The learned Attorney-General assisting us in this case states that he does not accept the findings of the report and he reserves his right to challenge the same at the appropriate stage. We are of the view that the facts and circumstances which have now come to light create a prima facie case for investigation and prosecution. We, therefore, direct that all the persons named in the report of the learned Additional District Judge and others who are accused as a result of the investigation, be prosecuted for the appropriate offences under the law by the Central Bureau of Investigation. We direct the CBI to ensure that an FIR is registered on the facts as emanate from our order and the report of the learned Additional District Judge. A copy of the report along with all the annexures be sent to the Central Bureau of Investigation. As an interim measure by way of ex gratia payment, we direct that a sum of Rs 2,00,000 (two lakhs) shall be paid by the Union of India/Directorate of Enforcement to the widow of the deceased-Sawinder Singh. In the event a suit being filed for compensation, appropriate compensation may be determined in accordance with law after hearing the parties. The contentions of the learned Attorney-General which he wishes to place before us at this stage, should be reserved by him for an appropriate stage. In the event a decree to be passed, the sum of Rs 2,00,000 to be paid ex gratia, shall not be taken into account. The payment of rupees two lakhs shall be made within three months from today. The amount shall be deposited in the Registry of this Court and the widow of deceased-Sawinder Singh shall be at liberty to withdraw the entire amount on the identification to the satisfaction of the Registrar (Admn.). Any observation made by us in this order will not affect the investigation, prosecution and the trial. Notice is disposed of by us".
28.In Nilabati Behera v. State of Orissa, reported in (1993) 2 SCC 746, regarding the powers of the Court to grant compensation for deprivation of fundamental right, the Hon'ble Supreme Court held as follows:
11.In Rudul Sah v. State of Bihar [(1983) 4 SCC 141], it was held that in a petition under Article 32 of the Constitution, this Court can grant compensation for deprivation of a fundamental right. That was a case of violation of the petitioner's right to personal liberty under Article 21 of the Constitution. Chandrachud, CJ., dealing with this aspect, stated as under: (paras 9 and 10) "It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of courts, civil and criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right. The instant case is illustrative of such cases .... ... The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders to release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others too well known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers."
15. The decision of Privy Council in Maharaj v. Attorney- General of Trinidad and Tobago (No. 2) [(1978) 2 All.ER 670] is useful in this context. That case related to Section 6 of the Constitution of Trinidad and Tobago 1962, in the chapter pertaining to human rights and fundamental freedoms, wherein Section 6 provided for an application to the High Court for redress. The question was, whether the provision permitted an order for monetary compensation. The contention of the Attorney General therein, that an order for payment of compensation did not amount to the enforcement of the rights that had been contravened, was expressly rejected. It was held, that an order for payment of compensation, when a right protected had been contravened, is clearly a form of 'redress' which a person is entitled to claim under Section 6, and may well be 'the only practicable form of redress'. Lord Diplock who delivered the majority opinion, at page 679, stated:
"It was argued on behalf of the Attorney General that Section 6(2) does not permit of an order for monetary compensation despite the fact that this kind of redress was ordered in Jaundoo v. Attorney General of Guyana [(1971) AC 972 : (1971) 3 WLR 13]. Reliance was placed on the reference in the sub-section to 'enforcing, or securing the enforcement of, any of the provisions of the said foregoing sections' as the purpose for which orders etc. could be made. An order for payment of compensation, it was submitted, did not amount to the enforcement of the rights that had been contravened. In their Lordships' view an order for payment of compensation when a right protected under Section 1 'has been' contravened is clearly a form of 'redress' which a person is entitled to claim under Section 6(1) and may well be the only practicable form of redress, as by now it is in the instant case. The jurisdiction to make such an order is conferred on the High Court by para (a) of Section 6(2), viz. jurisdiction 'to hear and determine any application made by any person in pursuance of sub- section (1) of this section'. The very wide powers to make orders, issue writs and give directions are ancillary to this."
Lord Diplock further stated at page 680, as under:
"Finally, their Lordships would say something about the measure of monetary compensation recoverable under Section 6 where the contravention of the claimant's constitutional rights consists of deprivation of liberty otherwise than by due process of law. The claim is not a claim in private law for damages for the tort of false imprisonment, under which the damages recoverable are at large and would include damages for loss of reputation. It is a claim in public law for compensation for deprivation of liberty alone."
20. We respectfully concur with the view that the court is not helpless and the wide powers given to this Court by Article 32, which itself is a fundamental right, imposes a constitutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available. The power available to this Court under Article 142 is also an enabling provision in this behalf. The contrary view would not merely render the court powerless and the constitutional guarantee a mirage, but may, in certain situations, be an incentive to extinguish life, if for the extreme contravention the court is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence, and recovery of damages under private law, by the ordinary process. If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have-nots, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate.
29.Verma, J., while dealing with the first question i.e. whether it was a case of custodial death, has referred to the evidence and the circumstances of the case as also the stand taken by the State about the manner in which injuries were caused and has come to the conclusion that the case put up by the police of the alleged escape of Suman Behera from police custody and his sustaining the injuries in a train accident was not acceptable. I respectfully agree. A strenuous effort was made by the learned Additional Solicitor General by reference to the injuries on the head and the face of the deceased to urge that those injuries could not be possible by the alleged police torture and the finding recorded by the District Judge in his report to the contrary was erroneous. It was urged on behalf of the State that the medical evidence did establish that the injuries had been caused to the deceased by lathi blows but it was asserted that the nature of injuries on the face and left temporal region could not have been caused by the lathis and, therefore, the death had occurred in the manner suggested by the police in a train accident and that it was not caused by the police while the deceased was in their custody. In this connection, it would suffice to notice that the doctor, who conducted the post-mortem examination, excluded the possibility of the injuries to Suman Behera being caused in a train accident. The injuries on the face and the left temporal region were found to be post-mortem injuries while the rest were ante- mortem. This aspect of the medical evidence would go to show that after inflicting other injuries, which resulted in the death of Suman Behera, the police with a view to cover up their crime threw the body on the rail-track and the injuries on the face and left temporal region were received by the deceased after he had died. This aspect further exposes not only the barbaric attitude of the police but also its crude attempt to fabricate false clues and create false evidence with a view to screen its offence. The falsity of the claim of escape stands also exposed by the report from the Regional Forensic Science Laboratory dated March 11, 1988 (Annexure R-8) which mentions that the two pieces of rope sent for examination to it, did not tally in respect of physical appearance, thereby belying the police case that the deceased escaped from the police custody by chewing the rope. The theory of escape has, thus, been rightly disbelieved and I agree with the view of Brother Verma, J. that the death of Suman Behera was caused while he was in custody of the police by police torture. A custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. It is not our concern at this stage, however, to determine as to which police officer or officers were responsible for the torture and ultimately the death of Suman Behera. That is a matter which shall have to be decided by the competent court. I respectfully agree with the directions given to the State by Brother Verma,J in this behalf.
30. On basis of the above conclusion, we have now to examine whether to seek the right of redressal under Article 32 of the Constitution, which is without prejudice to any other action with respect to the same matter which may be lawfully available, extends merely to a declaration that there has been contravention and infringement of the guaranteed fundamental rights and rest content at that by relegating the party to seek relief through civil and criminal proceedings or can it go further and grant redress also by the only practicable form of redress - by awarding monetary damages for the infraction of the right to life.
31.It is axiomatic that convicts, prisoners or undertrials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law. I agree with Brother Verma, J. that the defence of "sovereign immunity" in such cases is not available to the State and in fairness to Mr Altaf Ahmed it may be recorded that he raised no such defence either.
32.Adverting to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortious act of the State as that remedy in private law indeed is available to the aggrieved party. 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. While concluding his first Hamlyn Lecture in 1949 under the title "Freedom under the Law" Lord Denning in his own style warned:
"No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up-to date machinery, by declarations, injunctions and actions for negligence.... This is not the task for Parliament ... the courts must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare state; but abused they lead to a totalitarian state. None such must ever be allowed in this country."
33. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much as protector and guarantor 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.
34. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting "compensation" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.
35.This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law - through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, is possible. The decisions of this Court in the line of cases starting with Rudul Sah v. State of Bihar, reported in (1983) 4 SCC 141 granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 32 or 226 of the Constitution of India, notwithstanding the rights available under the civil law to the aggrieved party where the courts found that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in that spirit that the courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned. Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the courts have to act firmly but with certain amount of circumspection and self-restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law. Some of those situations have been identified by this Court in the cases referred to by Brother Verma, J".
29.In R.Parvathi, v. State of Tamil Nadu reported in (ILR. (1994) 3 Madras, 813), the petitioner therein sought for compensation of Rs.5 Lakhs for the death of her husband, at the hands of the Police. The Court at paragraph 17 held as follows:
"Petitioner herein has asked for compensation for herself in a sum of Rs. 5 Lakhs for what she has been made to suffer, the sufferings of her husband her two sons and her brother-in-law. Instead of the body of the petitioner's husband alive, brought before the Court, the information received is that he has been done to death by the fourth respondent and his men. In Padmini's case (1993) Writ L.R. 798) the Court has gone into the circumstances under which the Court exercises power under Article 226 of the Constitution and grants compensation subject to the right of the person aggrieved to seek further compensation in a properly constituted suit. After the Judgment in Padmini's Case, the Supreme Court has stated in the case of custodial death in Nilabati Behera v. State of Orissa (A.I.R. 1993 S.C. 1960) that when a claim for monetary compensation is made, the Court has an obligation to grant the relief and defence of sovereign immunity is not available to the State Agency. In the words of the Supreme Court, "A claim in public law for compensation for contravention of human rights and fundamental freedoms the protection of which is guaranteed in the Constitution is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a Constitutional remedy provided for the enforcement of a fundamental right is distinct from and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right".
The Power under Articles 32 and 226 is exercised not as a remedy available only in cases of damages that affect any individual but of damages which cause serious injury to the society and when policemen are found to have acted in contravention of law, their offence is more serious than that of any layman".
30.In Inder Singh Vs. State of Punjab and others reported in 1995 (3) SCC 702, the Supreme Court while considering the violation of human rights, abduction and elimination of seven persons, by a police party led by Deputy Superintendent of Police, held as follows:
"9.The Punjab Police would appear to have forgotten that it was a police force and that the primary duty of those in uniform is to uphold law and order and protect the citizen. If members of a police force resort to illegal abduction and assassination, if other members of that police force do not record and investigate complaints in this behalf for long periods of time, if those who had been abducted are found to have been unlawfully detained in police stations in the State concerned prior to their probable assassination, the case is not one of errant behaviour by a few members of that police force. We do not see that "constitutional culture" as Mr Tulsi put it, had percolated to the Punjab Police. On the contrary it betrays scant respect for the life and liberty of innocent citizens and exposes the willingness of others in uniform to lend a helping hand to one who wreaks private vengeance on mere suspicion.
10. This Court has in recent times come across far too many instances where the police have acted not to uphold the law and protect the citizen but in aid of a private cause and to oppress the citizen. It is a trend that bodes ill for the country and it must be promptly checked. We would expect the DGP, Punjab, to take a serious view in such cases if he is minded to protect the image of the police force which he is heading. He can ill-afford to shut his eyes to the nose-dive that it is taking with such ghastly incidents surfacing at regular intervals. Nor can the Home Department of the Central Government afford to appear to be a helpless silent spectator".
31. In State of M.P Vs. Shyamsunder Trivedi reported in 1995 (4) SCC 262, the Hon'ble Supreme Court considered the case of custodial death or police torture, the availability of direct ocular evidence of the complicity of the police personnel and the ground reality in such matters where the police personnel, would remain silent and more often than not even pervert the truth to save their colleagues and at paragraph Nos.16 and 17 observed as follows:
"16.Indeed, there is no evidence to show that after Ganniuddin, Respondent 5, who along with Rajaram, Respondent 4, had brought the deceased to the police station for interrogation, had at any time left the police station on the fateful night. In the face of the unimpeachable evidence of PW 4 and PW 8, we fail to understand how the learned Judges of the High Court could opine that there was no definite evidence to show the complicity of Ram Naresh Shukla, Respondent 3, Rajaram and Ganniuddin, Respondents 4 and 5 respectively in the crime along with SI Trivedi, Respondent 1. The observations of the High Court that the presence and participation of these respondents in the crime is doubtful are not borne out from the evidence on the record and appear to be an unrealistic over simplification of the tell-tale circumstances established by the prosecution. The following pieces of circumstantial evidence apart from the other evidence on record, viz., (i) that the deceased had been brought alive to the police station and was last seen alive there on 13-10-1981;
(ii) that the dead body of the deceased was taken out of the police station on 14-10-1981 at about 2 p.m. for being removed to the hospital; (iii) that the deceased had died as a result of the receipt of extensive injuries while he was at the police station; (iv) that SI Trivedi, Respondent 1, Ram Naresh Shukla, Respondent 3, Rajaram, Respondent 4 and Ganniuddin, Respondent 5 were present at the police station and had all joined hands to dispose of the dead body of Nathu Banjara; (v) that SI Trivedi, Respondent 1 created false evidence and fabricated false clues in the shape of documentary evidence with a view to screen the offence and for that matter, the offender; (vi) SI Trivedi - respondent in connivance with some of his subordinates, respondents herein had taken steps to cremate the dead body in hot haste describing the deceased as a 'lavaris'; (vii) Rajaram and Ganniuddin - respondents, had brought the deceased to the police station from his village, and (viii) that police record did not show that either Rajaram or Ganniuddin had left the police station, till the dead body was removed to the hospital in the jeep, unerringly point towards the guilt of the accused and the established circumstances coupled with the direct evidence of PWs 1, 3, 4, 8 and 18 are consistent only with the hypothesis of the guilt of the respondents and are inconsistent with their innocence. So far as Respondent 2, Ram Partap Mishra is concerned, however, no clinching or satisfactory evidence is available on the record to establish his presence at the police station when Nathu deceased was being subjected to extensive beating or of his participation in the commission of the crime. The High Court erroneously overlooked the ground reality that rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available, when it observed that 'direct' evidence about the complicity of these respondents was not available. Generally speaking, it would be police officials alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues, and the present case is an apt illustration, as to how one after the other police witnesses feigned ignorance about the whole matter.
17.From our independent analysis of the materials on the record, we are satisfied that Respondents 1 and 3 to 5 were definitely present at the police station and were directly or indirectly involved in the torture of Nathu Banjara and his subsequent death while in the police custody as also in making attempts to screen the offence to enable the guilty to escape punishment. The trial court and the High Court, if we may say so with respect, exhibited a total lack of sensitivity and a "could not care less" attitude in appreciating the evidence on the record and thereby condoning the barbarous third degree methods which are still being used at some police stations, despite being illegal. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact-situations and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system a suspect. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilised society, governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in 'Khaki' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading towards perishing. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may lose faith in the judiciary itself, which will be a sad day.
32.In P.Amaravathy Vs. The Government of Tamil Nadu & 10 others reported in 1996 (2) CTC 478, where the petitioner's husband died in police custody. She sought for a Mandamus directing the official respondents therein, to register a case against private respondents 5 to 10 and hand over the investigation to CBI and also for a direction to the first respondent therein, to pay a sum of Rs.20 lakhs, by way of compensation, for the custodial death of her husband. Taking note of the circumstances of the case, this Court ordered compensation of Rs.1,00,000/- by way of interim compensation to be adjusted at a later stage when regular compensation is claimed.
33.In the historical judgment of D.K.Basu v. State of West Bengal reported in AIR 1997 SCW 610, after enumerating the rights of an accused/detenue and on the aspect of dealing with custodial death, the Supreme Court, at paragraphs 22, 36, 37 and 39 has held as follows:
"22.Custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchanism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights' jurisprudence. The answer, indeed, has to be an emphatic "No". The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.
36.Failure to comply with the requirements hereinabove mentioned shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
37.The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.
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."
34.In Chairman, Rly. Board v. Chandrima Das, reported in (2000) 2 SCC 465, the Hon'ble Apex Court considered a Public Interest Litigation by an advocate seeking compensation to a foreigner who was gang raped by railway employees. While answering the maintainability of the writ petition seeking compensation and upholding that the right to life is available not only to every citizen of this country, but also to a person, who is not a citizen, the Hon'ble Supreme Court held as follows:
" 9.Various aspects of the public law field were considered. It was found that though initially a petition under Article 226 of the Constitution relating to contractual matters was held not to lie, the law underwent a change by subsequent decisions and it was noticed that even though the petition may relate essentially to a contractual matter, it would still be amenable to the writ jurisdiction of the High Court under Article 226. The public law remedies have also been extended to the realm of tort. This Court, in its various decisions, has entertained petitions under Article 32 of the Constitution on a number of occasions and has awarded compensation to the petitioners who had suffered personal injuries at the hands of the officers of the Government. The causing of injuries, which amounted to tortious act, was compensated by this Court in many of its decisions beginning from Rudul Sah v. State of Bihar [(1983) 4 SCC 141] (See also Bhim Singh v. State of J&K [1985 (4) SCC 577], Peoples' Union for Democratic Rights v. State of Bihar [1987 (1) SCC 265], Peoples' Union for Democratic Rights v. Police Commr., Delhi Police Headquarters [1989 (4) SCC 730], Saheli, A Women's Resources Centre v. Commr. of Police [1990 (1) SCC 422], Arvinder Singh Bagga v. State of U.P [1994 (6) SCC 565], P. Rathinam v. Union of India [1989 Supp. (2) SCC 716], Death of Sawinder Singh Grower In re [1995 Supp. (4) SCC 450], Inder Singh v. State of Punjab [1995 (3) SCC 702 and D.K. Basu v. State of W.B. [1997 (6) SCC 370])
10.In cases relating to custodial deaths and those relating to medical negligence, this Court awarded compensation under the public law domain in Nilabati Behera v. State of Orissa [1993 (2) SCC 746], State of M.P. v. Shyamsunder Trivedi [1995 (4) SCC 262], People's Union for Civil Liberties v. Union of India [1997 (3) SCC 433] and Kaushalya v. State of Punjab [1999 (6) SCC 754], Supreme Court Legal Aid Committee v. State of Bihar [1991 (3) SCC 482], Jacob George (Dr) v. State of Kerala[1994 (3) SCC 430], Paschim Banga Khet Mazdoor Samity v. State of W.B. [1996 (4) SCC 37] and Manju Bhatia v. New Delhi Municipal Council [1997 (6) SCC 370].
11.Having regard to what has been stated above, the contention that Smt Hanuffa Khatoon should have approached the civil court for damages and the matter should not have been considered in a petition under Article 226 of the Constitution, cannot be accepted. Where public functionaries are involved and the matter relates to the violation of 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 private law.
12.In the instant case, it is not a mere matter of violation of an ordinary right of a person but the violation of fundamental rights which is involved. Smt Hanuffa Khatoon was a victim of rape. This Court in Bodhisattwa Gautam v. Subhra Chakraborty [1996 (1) SCC 490] has held "rape" as an offence which is violative of the fundamental right of a person guaranteed under Article 21 of the Constitution. The Court observed as under: (SCC p. 500, para 10) Rape is a crime not only against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is violative of the victim's most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21".
35.In Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble reported in (2003) 7 SCC 749, the Hon'ble Supreme Court, while dealing with a case relating to custodial violence, torture and abuse of police power, in alarming proportions prevailing in this country, observed as follows:
"1."If you once forfeit the confidence of your fellow citizens you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time", said Abraham Lincoln. This Court in Raghbir Singh v. State of Haryana [1980 (3) SCC 70], took note of these immortal observations, while deprecating custodial torture by the police.
2. Custodial violence, torture and abuse of police power are not peculiar to this country, but it is widespread. It has been the concern of the international community because the problem is universal and the challenge is almost global. The Universal Declaration of Human Rights in 1948 which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights stipulates in Article 5 that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Despite this pious declaration, the crime continues unabated, though every civilized nation shows its concern and makes efforts for its eradication.
3. If it is assuming alarming proportions, nowadays, all around, it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from rooftops to be the defenders of democracy and protectors of people's rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace-loving puritans and saviours of citizens' rights.
4. Article 21 which is one of the luminary provisions in the Constitution of India, 1950 (in short "the Constitution") and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 (for short "the Code") deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is, therefore, difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system. The community rightly gets disturbed. The cry for justice becomes louder and warrants immediate remedial measures. This Court has in a large number of cases expressed concern at the atrocities perpetuated by the protectors of law. Justice Brandeis' observations which have become classic are in the following immortal words:
Government as the omnipotent and omnipresent teacher teaches the whole people by its example. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself. (In Olmstead v. United States [277 US 438 : 72 L ED 944 (1928), US at p.485, quoted in Mapp v. Ohio [367 US 643 : 6 L Ed 2d 1081 (1961), US at p.659.)"
5.The diabolic recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new and unwarranted peril because the guardians of law destroy the human rights by custodial violence and torture, invariably resulting in death. The vulnerability of human rights assumes a traumatic torture when functionaries of the State whose paramount duty is to protect the citizens and not to commit gruesome offences against them, in reality perpetrate them. The concern which was shown in Raghbir Singh v. State of Haryana [1980 (3) SCC 70] case more than two decades back seems to have fallen on deaf ears and the situation does not seem to be showing any noticeable change. The anguish expressed in Gauri Shanker Sharma v. State of U.P. [1990 Supp. SCC 656], Bhagwan Singh v. State of Punjab [1992 (3) SCC 249], Nilabati Behera v. State of Orissa [1993 (2) SCC 746], Pratul Kumar Sinha v. State of Bihar [1994 Supp. (3) SCC 100], Kewal Pati v. State of U.P. [1995 (3) SCC 600], Inder Singh v. State of Punjab [1995 (3) SCC 702], State of M.P. v. Shyamsunder Trivedi [1995 (4) SCC 262] and by now a celebrated decision in D.K. Basu v. State of W.B. [1997 (1) SCC 416] seems to have caused not even any softening attitude to the inhuman approach in dealing with persons in custody.
6.Rarely, in cases of police torture or custodial death is there direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues - and the present case is an apt illustration - as to how one after the other police witnesses feigned ignorance about the whole matter.
7.The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach at times of the courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock-up because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in "khaki" to consider themselves to be above the law and sometimes even to become a law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and civilization itself would risk the consequence of heading towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of the judiciary itself, which if it happens will be a sad day for anyone to reckon with.
8.Though Sections 330 and 331 of the Indian Penal Code, 1860 (for short "IPC") make punishable those persons who cause hurt for the purpose of extorting the confession by making the offence punishable with sentence up to 10 years of imprisonment, but the convictions, as experience shows from the track record have been very few compared to the considerable increase of such onslaught because the atrocities within the precincts of the police station are often left without much traces or any ocular or other direct evidence to prove as to who the offenders are. Disturbed by this situation the Law Commission in its 113th Report recommended amendments to the Indian Evidence Act, 1872 (in short "the Evidence Act") so as to provide that in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when the person was in the police custody, the court may presume that the injury was caused by the police officer having the custody of that person during that period unless the police officer proves to the contrary. The onus to prove the contrary must be discharged by the police official concerned. Keeping in view the dehumanizing aspect of the crime, the flagrant violation of the fundamental rights of the victim of the crime and the growing rise in crimes of this type, where only a few come to light and others don't, the Government and the legislature must give serious thought to the recommendation of the Law Commission and bring about appropriate changes in the law not only to curb custodial crime but also to see that custodial crime does not go unpunished. The courts are also required to have a change in their outlook, approach, appreciation and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime so that as far as possible within their powers, the truth is found and the guilty should not escape so that the victim of the crime has the satisfaction that ultimately the majesty of law has prevailed.
9.But at the same time there seems to be a disturbing trend of increase in cases where false accusations of custodial torture are made, trying to take advantage of the serious concern shown and the stern attitude reflected by the courts while dealing with custodial violence. It needs to be carefully examined whether the allegations of custodial violence are genuine or are sham attempts to gain undeserved benefit masquerading as victims of custodial violence. The case in hand is a unique case in the sense that the complainant filed a complaint alleging custodial torture while the accused alleged false implication because of oblique motives".
36. The views expressed in Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble reported in (2003) 7 SCC 749 [cited supra], were restated in Munshi Singh Gautam Vs. State of M.P., reported in 2005 (9) SCC 631.
37.In Shri Dino DG Dympep & Another Vs. State of Meghalaya & Ors reported in AIR 2007 Gauhati 155, the High Court held as follows:
"14.Having come to the conclusion that the deceased died due to custodial violence, the next question to be determined what is to be done by this Court on the facts and circumstances of the case. Since a case of breach of fundamental right to life guaranteed by Art.21 of the Constitution by the State and its instrumentality has been made out, the award of compensation against the State respondents can only be the appropriate and effective remedy. The relief of monetary compensation as exemplary damages, in a proceeding under Article 226 by the High Court for established infringement of the enforceable right guaranteed under Article 21 of the Constitution is undoubtedly a remedy available in public law and is based on strict liability for contravention of the guaranteed basic and indefeasible right of the citizen. To quote the Apex Court, the purpose of public law is not only to civilize public power but also to assure the citizen they live under a legal system which aims to protect their interests and preserve their rights. When therefore, the Court moulds the relief by granting compensation in proceeding under Article 226 of the Constitution seeking enforcement and protection of fundamental rights, it does so under the public law by way of penalizing the wrong doer and fixing the liability for the public wrong doer on the State which has failed in its duty to protect the fundamental right of the citizen. The payment of compensation in such a case is not to be understood, as it is generally understood general interest in a civil action for damages under the public law but in the brooder sense of providing relief by an order of making "monetary amends" under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of exemplary damages awarded against the wrongdoer for breach of public duty and is independent of the rights available to the aggrieved party to claim compensation under the prevalent law through a suit instituted in a court of competent jurisdiction. The quantum of compensation will, however, depend on the facts and circumstances of the case. In the instant case, the deceased was 27 years old at the time of his death, was a daily wage earner and is surviving by his wife and two minor children. Considering the condition of the deceased and the circumstances in which he died. I am of the view that a compensation of Rs.3 lacs will meet the ends of justice.
15.For what has been stated above, this writ petition is allowed. The State-respondents are directed to pay a compensation of Rs.3,00,000/- (Rupees three lacs) only to the petitioner No.2 within a period of two months from the date of receipt of this judgment. The State-respondents shall also hold an enquiry to find out the police personnel involved in the custodial death of the deceased. The amount of compensation paid to the petitioner No.2 may be realized by the State-respondents from the police personnel found to be involved in the custodial death of the deceased. It shall also be open to the petitioner to approach a civil Court for compensation/damage available under the law of tort.
38. In Henri Tiphagne Vs. State of Tamil Nadu, rep.by its Home Secretary, Secretariat, Fort St.George, Chennai 600 009 reported in 2008(2) MWN (Cr.) 313, this Court considered a pathetic case of unnatural death of a poor woman in police custody. After considering the principles laid down in D.K.Basu v. State of West Bengal reported in AIR 1997 SCW 610 and Nilabati Behera v. State of Orissa reported in (1993) 2 SCC 746, directed the State Government to pay compensation of Rs.3 lakhs, including Rs.1 lakh already awarded by the order of the State Government to the family of the victim.
39. In Rajammal v. State of T.N. & Ors., reported in 2010 CIJ 96 IPJ, the appellant's husband therein, aged 50 years, was suspected for receiving stolen jewels and taken to police station. Later, his body was found lying in reserve forest. The Government sanctioned prosecution of the police personnel, involved in the death. The appellant claimed compensation. A learned Single Judge, directed payment of Rs.3,00,000/-, as compensation and that same was not challenged by the Government. Seeking enhancement of the compensation, the appellant preferred an appeal, as her family was suffering from financial crunch. Considering the number of family members and the financial difficulties, the Division Bench enhanced the compensation to Rs.5,00,000/-.
39.Though there is no specific method in arriving at the quantum of compensation, in these type of matters, where vicarious liability is fixed on the State Government, for tortious acts committed by the officers of the Government and where there is a prima facie finding of their involvement for the cause of death or custodial violence, or case of rape, torture, physical assault, etc., this Court is inclined to apply the method followed, while computing the compensation, arising out of the Motor Vehicles Claims cases, where, the victim has to be awarded "just compensation".
40.In R.Dhanalakshmi v. Government of Tamil Nadu reported in 2004 WLR 346, a learned Single Judge in respect of custodial death and after taking note of age and income of the deceased, family circumstances, dependency etc., and by applying multiplier, as provided in Motor Vehicles Act, awarded compensation of Rs.9 Lakhs.
41.In Lakshmana Naidu v. State of T.N., reported in (2006) 4 CTC 225, legal heirs of three persons sought for a Mandamus, directing the respondents therein to pay a sum of Rs.5 lakhs each, as compensation for the loss and suffering caused by the officials of the Forest Department due to their torture, murder and burning of the said three persons. In this case, prosecution as well as departmental proceedings were initiated, following which, the officials of the Forest Department were dismissed from service. The Sessions Court, Salem also convicted some of the accused to undergo life imprisonment and acquitted others. Following the Division Bench decision of this Court in K.Kabali @ Kabaleeswaran Vs. State of Tamil Nadu and others, reported in 2006 (2) TLNJ 33, where the Division Bench, after referring to a number of judgments of the Hon'ble Supreme Court, as well as this Court held that, where public functionaries are involved and the matter relates to violation of fundamental rights or enforcement of public duties, the aggrieved person can very well approach this Court for necessary relief, including compensation under Article 226 of the Constitution of India and after considering the decision of the Hon'ble Supreme Court in Malkiat Singh Vs. State of U.P reported in 1998(9)SCC 351 and this Court in R.Dhanalakshmi Vs.Government of Tamil Nadu, reported in 2004 WLR 346, awarded compensation to the victims.
42.This Court in T.M.Kamalanathan Vs. Government of Tamil Nadu and others reported in 2009 (1) MLJ 634 and in B.Ammu Vs. State of Tamil Nadu reported in 2009 (1) MLJ 1090, while computing compensation to be paid to victims of torture, applied the principles followed in Motor Accident Claims cases.
43.Having regard to the method adopted by this Court in the decisions, stated supra, in applying the principles of "Just Compensation", as provided under Second Schedule to Section 163-A of Motor Vehicles Act, this Court proposes to quantify the compensation to be awarded in this case. The age of the deceased was 26 years, at the time of the death and survived by his wife, a daughter and sons, aged 5 and 3 years respectively. That apart, the widow was in advance stage of pregnancy. This Court is of the considered view that even a child in the womb is entitled to compensation. As per the second schedule to the Motor Vehicles Act, for the age group of persons, between 25 years and not exceeding 30 years, the appropriate multiplier for computation of loss, towards family contribution is '18'. Though at the time of death, the deceased was said to have been running a mutton stall and earned a sum of Rs.6,000/- per month, in the absence of any proof, this Court is not inclined to determine his monthly income at Rs.4,000/-. However, taking into consideration the number of members in the family, i.e., wife and two minor children besides a child in the womb, the deceased would have earned atleast a sum of Rs.4,000/- in the year 2004, to provide food, shelter, education and other basic needs to the members of his family.
44.Needless to say that the child in the womb and the other minor children have lost the love and affection of their father. The compensation computed should also include loss of consortium of her husband, particularly, when she was in the advanced stage of pregnancy. Taking the above aspects into consideration, even if a minimum multiplier of '15' is applied to the income of the deceased and after deducting 1/3rd towards his personal expenses, the loss of contribution to the family works out to Rs.5,40,000/-.
45.Though the father of the deceased is the only claimant in this writ petition, in the interest of justice and to mitigate the hardship faced by the widow who is now saddled with the responsibility to raise three children without any assistance from her husband, this Court, deems it fit to award compensation of Rs.5,00,000/- (Rupees five lakhs only) to be paid by the State Government to the legal heirs of the victim and that the said amount is further directed to be recovered from the salary of the police personnel, who were prima facie found by the government to be responsible for the death and against whom, the Government have ordered prosecution and departmental action.
46.Taking into consideration, the age of the minor children, wife and age of the father of the deceased, viz., the petitioner herein, this Court further deems it fit to direct the State Government to pay a sum of Rs.1,00,000/- to the petitioner, father of the deceased, and pay a sum of Rs.1,00,000/- to the wife of the deceased and the remaining compensation amount of Rs.3,00,000/- be deposited in the name of the minor children, in a fixed deposit for a period of three years, in a nationalised bank, proximate to the residence of the wife of the deceased. Like in Motor Transport Claims cases, she is also permitted to withdraw the accrued interest from the fixed deposit, till the minor children attain majority. The amount ordered by this Court shall be deposited within one month from the date of receipt of a copy of this order.
47.With the above directions, the writ petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed.
1.The State of Tamil Nadu, rep. by its Chief Secretary, Fort St., George, Chennai -9.
2.The State of Tamil Nadu, rep.by its Home Secretary, Fort St., George, Chennai - 9.
3.The District Collector, Madurai District, Madurai.
4.The Revenue Divisional Office, Madurai, Madurai District.
5.The Director General of Police, Mylapore, Chennai -4.
6.The Additional Director General of Police, (Social Justice and Human Rights) Chennai.
7.The Inspector General of Police, South Zone, Madurai.
8.The Superintendent of Police, Madurai.