IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.11.2008 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.15229 of 1999 Mrs.R.Rajamani .. Petitioner -vs- 1. State of Tamil Nadu, rep.by Secretary to Government, Home Department, Fort St.George, Chennai-9. 2. The District Collector, Kancheepuram District, Kancheepuram. 3. The Revenue Divisional Officer, Saidapet, Chennai-15. 4. The Station House Officer, Pallavaram Police Station, Chennai-43. .. Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus to direct the respondents to pay a just and reasonable sum as compensation to the husband for the custodial death of her husband at the 4th respondent's Police Station on 23.6.1993 and award costs. For Petitioner : Mr. Vetriselvan for Mr.Sathiachandran For Respondents : Mr. A.Arumugam, Spl.G.P O R D E R The petitioner, who belongs to a dalit family and an unfortunate wife of one Rajaram, who was killed by the respondent police in the Pallavaram Police Station, is seeking for a just and reasonable compensation for the custodial death of her husband on 23.6.1993. https://hcservices.ecourts.gov.in/hcservices/ 2. The grievance of the petitioner was that her husband was working as a Mason who was looking after her, her two sons (Vijayakumar and Janakiraman) and a daughter (Kanchana). Her husband was taken to police custody on 20.6.1993 allegedly in connection with selling of illicit liquor. The petitioner attempted to meet her husband during the night of 20.6.1993 and during the day of 21.6.1993 but was not fruitful. Later she had heard stories about her husband being tortured to death by the police personnel attached to Pallavaram Police Station at Chennai. 3. The death of the petitioner's husband gave rise to a commotion in the area, which finally forced the State Government to order an enquiry under 145 of the Police Standing Orders by the Revenue Divisional Officer, Saidapet, the third respondent herein. The third respondent in order to avoid the law and order problem, convinced the petitioner to take return of the dead body and got it buried at the instance of the revenue and police officials on 23.6.1993. The third respondent conducted 145 PSO proceedings and examined 14 witnesses including the doctor S.R.Sakunthala, Assistant Professor of Medicine, Government Hospital, Madras. After recording the statements of those persons including the doctor, who had conducted the post-mortem. 4. The third respondent reproduced the post-mortem opinion. Under the caption ''External Injuries", it was noted multiple abrasions of varying size over right iliac and right lunar area; multiple abrasions of varying size seen all over back of right elbow. The opinion of the post-mortem doctor was also recorded under the caption ''final opinion" which is as follows:- ''The deceased would appear to have died of shock and haemorrhage due to injuries sustained". 5. The third respondent Revenue Divisional Officer even questioned the then trainee Additional Superintendent of Police Thiru Sankar Jiwal, IPS and found out that his conduct was not above board in this incident. In his final report he had observed as follows:- ''Further the Sub-Inspector Natarajan,Police Constables Vijayaragavan (2352), Sekar (989), Gandhi (PC 2150), Venkatesan (818) noted with excess behaviour by detaining the deceased unlawfully and torturing him. From the enquiries conducted in the above matter, I am to conclude that there was a lot of indiscipline and indifferent attitude of the police personnel working in this station. There were not checked properly and the erring official allowed to continue on their own accord. Though the death of Rajaram is an attempted suicide, the following personnel are primarily responsible for this as the alleged crime by the deceased accused is too small. https://hcservices.ecourts.gov.in/hcservices/ 1. Thiru Sankar Jiwal, IPS, ASP, Pallavaram 2. Thiru Natarajan, SI, Pallavaram 3. Thiru Vijayaraghavan, PC 2352 4. Thiru Gandhi, PC 2150 5. Thiru Sekar, PC 989 6. Thiru Venkatesan, PC 818 In the above circumstances, I am of opinion that this is a fit case to reprimand the above police personnel for their excess behaviour which lead the accused to commit suicide who was detained unlawfully". 6. The said report was forwarded by the third respondent District Collector, Kancheepuram District (the second respondent herein) with a covering letter dated 27.1.1994. The second respondent agreed with the conclusion reached by the Revenue Divisional Officer and in his report dated 02.3.1994, he opined as follows:- ''The Revenue Divisional Officer, Saidapet has stated that the Sub-Inspector of Police, Thiru Natarajan, P.Cs.Vijayaraghavan (2352), Sekar (989), Gandhi (2150), Venkatesan (818) acted with excessive behaviour by detaining the deceased unlawfully and torturing him. The Revenue Divisional Officer has concluded that there was lot of indiscipline and indifferent attitude of the police personnel working in Pallavaram Police Station and they were not checked properly and the erring official allowed to continue on their own accord. Though the death of Rajaram is an alleged attempt to commit suicide, the following Police Personnel are primarily responsible for this as the alleged crime by the deceased-accused is too small. 1. Thiru Sankar Jiwal, IPS, Additional Superintendent of Police, Pallavaram. 2. Thiru Natarajan, Sub-Inspector of Police, Pallavaram. 3. Thiru Vijayaraghavan, P.C.2352 4. Thiru Gandhi, P.C.2150 5. Thiru Sekar, P.C. 989 6. Thiru Venkatesan, P.C.818 The Revenue Divisional Officer, Saidapet has opined that this is a fit case to reprimand the above police https://hcservices.ecourts.gov.in/hcservices/ personnel for their excess behaviour which led the accused to commit suicide. I accept the findings of the Revenue Divisional Officer, Saidapet and recommend that the above police personnel may be reprimanded for their excess behaviour which led the accused to commit suicide. The report of the Revenue Divisional Officer, Saidapet with enquiry records is sent herewith." 7. He forwarded the report of the Revenue Divisional Officer along with his opinion to the first respondent State with a covering letter dated 02.3.1994. The State Government accepted the report of respondents 2 and 3 and issued an order in G.O.No.1604, Public (Law and Order) Department, dated 18.12.1997. The order in Tamil if freely translated, will read as follows:- ''Government of Tamil Nadu Public (Law and Order I) Department G.O.Ms.No. 1604 Dated 18. 12. 1997 Read: Letter M.1/ 8579/96 from the District Collector Kancheepuram dated 30.6.1997. Order: The report of the Revenue Divisional Officer, Chengalpattu regarding the enquiry conducted under the police standing order 145 regarding the dead body of Mr. Rajaram found near Pallavaram Police Station, Kancheepuram District on 23.6.1993 stated to have died by falling into the well in the police station was examined by the government. 2. It was stated in the report that the deceased Rajaram was brought to the police station on 20.6.1993 for having sold illicit liquor and he was kept under illegal custody till 26.6.1993. He was subjected to torture by the official of the police department. On 23.6.1993, he was taken along with fellow prisoners for completing morning ablutions under the supervision of police constables M/s.Gandhi, Sekar and Venkatesan. Suddenly Rajaram pushed the fellow prisoners and ran towards the well on the northern side of the police station and jumped into the well. The constables in the para duty brought Rajaram out of the well with the help of Station stationery worker Gunasekaran. While he was being taken to Chrompet Hospital he died on the way. But, however, in the enquiry done on the basis of post https://hcservices.ecourts.gov.in/hcservices/ mortem report, it was informed that Rajaram died due to police torture and the injuries found on his body. Since his viscera was not filled up with water, the death did not take place due to drowning. 3. It was brought to light from the post mortem report that the under trial prisoner Rajaram died while in custody due to bodily injuries, shock and excessive blood discharge and not due to drowning into the water. Further the then Sub-Inspector Tambaram Police Station V.Natarajan did not produce the accused/ deceased Rajaram though he was arrested on 20.6.1993 before the court according to the law. The Station House Officer did not inform during the enquiry about the real cause of death and the Sub-Inspector suddenly released several remand prisoners after sending Rajaram outside hospital in a critical condition. 4. Mr.Gandhi (2150) who was on Sentry duty on that day failed to oversee the prisoners who were taken to complete their morning ablutions. The Enquiry Officer ie. Revenue Divisional Officer, Chengalpattu highlighted the above reason and the Police Sub-Inspector Natarajan and Constable Gandhi (2150) are fully responsible for the death of Rajaram. Therefore, the government have decided to take severe departmental action against these two persons. Till such time the departmental proceedings are over, the Government decided these two to be kept under suspension for keeping Rajaram in illegal custody for three days and also for torturing him and beating him. For being responsible for the death of Rajaram, disciplinary action has to be taken against the duty Constables Vijayaraghavan (2352), Sekar (963), Venkatesan (818). (Paragraphs 5,6,7, are omitted from the government order). sd/- Secretary to Government 8. Therefore, the stand of the respondent State is not that the deceased Rajaram died due to drowning by jumping into the well and it was a suicide. But, on the contrary, he had died out of the third degree torture inflicted on him by the police personnel on guard duty in the police station. The State Government found that the deceased Rajaram was illegally arrested and kept in the police lockout without any records and was detained beyond three days contrary to the constitutional mandate. His death was not due to https://hcservices.ecourts.gov.in/hcservices/ drowning in the water but because of the torture and the bodily injuries suffered by the said deceased Rajaram. 9. Even though action was directed to be taken against the Sub- Inspector of Police V.Natarajan and Gandhi, PC (2150) for being responsible for the death of Rajaram and also action to be initiated against constables Vijayaraghavan (2252), Sekar (989) and Venkatesan (818) were subjected to departmental action by the Director General of Police by the Government Order, dated 18.12.1997, subsequently on 28.3.2000 it was modified and for reasons best known to the first respondent State, it reduced the punishment given to the accused police constables. It was stated that the Sub-Inspector of Police Natarajan will get two year increments cut with cumulative effect and other three policemen M/s.Venkatesan, Sekar and Gandhi will be given one year increment cut with cumulative effect. 10. Whatever may be the motive of the State Government to go back on the punishment inflicted on the accused police. However, they have not cared to give any succour or relief to the family of the deceased Rajaram. The poor widow the petitioner herein had been made to run from pillar to post claiming compensation. She had approached the District Collector, Kancheepuram, the second respondent, who forwarded the demand of the petitioner to provide relief from the Chief Minister's Relief Fund. However, as nothing tangible was forthcoming, she had also approached the Legal Aid Services Authority, Chengalpet District. As no tangible results were forthcoming, she had moved this court by filing this writ petition with the help of a public spirited advocate. 11. The writ petition was admitted on 14.9.1999. It is only when this Court directed the respondents to produce the original file relating to the RDO enquiry conducted under section 145 PSO, a belated counter affidavit was filed by the first respondent. The counter filed by the first respondent far from setting out the stand of the Government really trying to side track the issue. The entire attempt in the counter affidavit dated 14.10.2008 was to evade the responsibility for compensating the death of the deceased Rajaram, who died at the hands of the police. Though in the report of the RDO it was mentioned that the death was due to suicide, there is no elaboration regarding the Government's Order in G.O.Ms.No.1604, Public (Law & Order) department, dated 18.12.1997. There is an attempt to suppress the vital truth recorded in the Government Order which confirmed that the death was due to the third degree torture meted out to the deceased Rajaram and not due to drowning. 12. On the contrary, the Additional Secretary to Government, who had sworn to the affidavit, had made a passing reference to the GO and suppressed the vital portion from the GO only to get over the obligation of the State to pay compensation. It is a crude attempt on the part of the first respondent, more particularly the deponent https://hcservices.ecourts.gov.in/hcservices/ to the affidavit, who even avoids responsibility for making payment of compensation as per the standing instructions of the Government made in G.O.Ms.No.153, Public (Law and Order) Department, dated 31.1.1998 which grants Rs.1 lakh as monetary relief in case of persons who died due to police torture. In paragraph 10 of the counter affidavit, without any factual or documentary basis, the deponent to the affidavit had stated that the deceased had died due to suicide and, therefore, his family was not covered by the G.O. This is in direct conflict with the G.O.issued by the Government referred to already. When once it was factually proved by the orders of the Government itself that the deceased Rajaram had suffered torture at the hands of the police personnel and also suffered illegal detention and injuries which finally resulted in his death, the only question that remains to be answered is to what amount of compensation, the petitioner and her family will be entitled to. 13. This Court in more or less identical circumstances in the judgment in Baggiam Doraiswamy -vs- State of Tamil Nadu reported in 1994-2-L.W.(Crl) 687 had dealt with an issue regarding compensation ordered on the basis of the report of a Revenue Enquiry. In para 8 of the judgment, it was observed as follows:- ''8. The petitioner has brought to the Court the fact that her son has been killed by the police. The police version that the petitioner's son was killed in an encounter was not accepted by the Deputy Collector who held the inquest and by the Member, Board of Revenue, who held the enquiry. The nature of injuries also indicates that the encounter theory does not fit in with the assault upon the petitioner's son. The assailants, it is conceded, are policemen. That they assaulted the petitioner's son in self-defence has been accepted by the Session Judge and this Court in revision has declined to interfere with the acquittal of he accused persons. Yet, the assailants are identified and it cannot be said that the earliest finding as to the aggressive acts of the police as recorded by the Member, board of Revenue is not such a finding which this Court should accept, or that this Court must accept the finding in this behalf as recorded by the Court of Session. On an independent assessment of the facts as aforementioned, which are not in controversy, I have no hesitation in holding that the petitioner has made out a positive case of assault upon her son by the police and that policemen alone are responsible for this death. She has lost a bread earner and she, in my opinion, is entitled to compensation. The Court shall be failing in its duty, as pointed out by the Supreme Court in the case of Neelabati Bahera (AIR 1993 SC 1960) supra in not ordering any compensation to the petitioner." https://hcservices.ecourts.gov.in/hcservices/ 14. Even though in that case, the question of compensation was restricted to Rs.1 lakh (which was the amount demanded by the petitioner), the same petitioner preferred a writ appeal in W.A.No.1929 of 2005. The said writ appeal came to be posted before a Division Bench, to which I am a party (K.Chandru, J.) and the Division Bench, by a judgment dated 11.8.2006 after confirming the order passed by the learned Judge enhanced the compensation by ordering interest to be paid from the date of demand of compensation till the date of its payment. 15. It will be out of place to mention that the citizens of this country cannot be left in the lurch without being granted relief in case of their fundamental right being deprived at the instance of the police personnel who are supposed to protect the person and property of the Indian citizens. If such acts are found uncontrolled by the State, the citizens of this country are not helpless and the long arm of Article 226 vests power on this court to order suitable compensation. 16. In this context, it is necessary to refer to the Full Bench judgment of this Court in P.P.M.Thangaiah Nadar Firm, rep.by its Partner T.P.Prakasam, Tuticorin and others -vs- Government of Tamil Nadu, rep.by its Chief Secretary, Chennai and others reported in (2007) 2 MLJ 685. The Full Bench presided by P.K.Misra, J. after referring to various cases of the Supreme Court in paragraph 38, held as follows:- ''38. Now, the inevitable end of the journey or may be beginning of another. In view of the various decisions noticed by us and many other decisions referred to in such decisions, the following conclusions can be reached. The State is not necessarily liable in every case where there is loss of life or damage to the property during rioting. Where, however, it is established that the officers of the State ordained with duty of maintaining law and order have failed to protect the life, liberty and property of person and such failure amounts to dereliction of duty, the State would be liable to pay compensation to the victim. Such liability can be enforced through Public Law remedy or Common Law remedy. Where, necessary facts to establish culpable negligence on the part of the officials are available, the High Court under Article 226 can issue appropriate direction. 17. Subsequently, a Division Bench of this Court in Coimbatore Bar Association and another -vs- State of T.N. and another reported in 2008 Writ L.R.662 also dealt with a situation where the member of https://hcservices.ecourts.gov.in/hcservices/ the legal profession was assaulted by the police personnel that too in a public place. The question came up for consideration was whether the State was liable to compensate such injury to the members of the bar who was a victim of State violence. In paragraph No.9 of the said decision, the Division Bench presided by A.P.Shah, C.J. had observed as follows: 9. In the instant case, it is an undeniable fact that as a result of the assault, the second petitioner has sustained multiple injuries – bruises, abrasions and contusions and his evidence implicating respondents 5, 6 and 7 is found to be acceptable. Though the incident was triggered off by the second petitioner dashing against the fifth respondent due to his low vision, there is no jurisdiction for the behaviour of the police personnel in having beaten him mercilessly, especially respondents 5, 6 and 7. The human rights of the second petitioner were violated with impunity and he is entitled to be suitably and adequately compensated. The power of the Court to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of the Supreme Court in Rudal Sah -vs- State of Bihar (AIR 1983 SC 1086); Sebestian M.Hongray -vs- Union of India, (AIR 1984 SC 1026); Bhim Singh -vs- State of Jammu & Kashmir (AIR 1986 SC 494); Saheli, A Women's Resources Centre -vs- Commissioner of Police, Delhi Police Headquarters (AIR 1990 SC 513) and State of Maharashtra -vs- Ravikant S.Patil (1991) 2 SCC 373). In Smt.Nilabati Behera alias Lalita Behera -vs- State of Orissa and others (AIR 1993 SC 1960), the Supreme Court after examination of the earlier cases, clearly laid down that the award of compensation in a proceeding under Article 32 of the Constitution by the Supreme Court or under Article 226 by the High Court is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. The same view was reiterated in Consumer Education and Research Centre and others -vs- Union of India and others (AIR 1995 SC 922). In a recent judgment in Chairman, Railway Board & Others -vs- Mrs.Chandrima Das and Others ((2002) 2 SCC 465), the Supreme Court observed where public functionaries are involved and the matter relates https://hcservices.ecourts.gov.in/hcservices/ to 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. In our opinion, the second petitioner has made a strong prima facie case for award of compensation and having regard to the inhuman way in which the second petitioner was mercilessly beaten, we feel that the ends of justice would be met, if we award Rs.50,000/- as compensation to the second petitioner. The second petitioner has incurred an expenditure of more than a sum of Rs.1,00,000/- (Rupees one lakh only) for his treatment and has also suffered mental agony. But on behalf of the respondents 5 to 7, the learned Government Pleader pleaded for some indulgence. Therefore, we fix the compensation at a sum of Rs.50,000/- taking into account the situation of the parties. It is needless to state that the State would be entitled to recover this amount of compensation from respondents 5 to 7, who were found to be involved in the assault on the second petitioner." 18. In Lucknow Development Authority -vs- N.K.Gupta reported in 1994 (1) SCC 243, the Supreme Court in paragraphs 8 and 10, observed as follows:- ''8. ... State is liable to compensate for loss or injury suffered by a citizen due to arbitrary actions of its employees. Public authorities who are entrusted with statutory function cannot act negligently. No functionary in exercise of statutory power can claim immunity, except to the extent protected by the statute itself. Public authorities acting in violation of constitutional or statutory provision oppressively are accountable for their behaviour before authorities created under the statute like the commission or the Courts entrusted with responsibility of maintaining the rule of law. The authority empowered to function under the statute with exercising power discharges public duty. It has to act subserve general welfare and common good. In discharging this duty honestly and bona fide, loss may accrue to any person. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer cannot more claim to be under protective cover. In modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. When a citizen seeks to recover compensation from a public https://hcservices.ecourts.gov.in/hcservices/ authority in respect of injuries suffered by him for capricious exercise of power then it has a statutory obligation to award the same if proved". ''10. ... The jurisdiction and power of the courts to indemnify a citizen for injury suffered due to abuse of power by public authority is founded on the principle that an award of exemplary damage can serve a useful purpose in indicating the strength of law. A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He is responsible for it; must suffer for it; compensation or damages may arise even when the officer discharges his duty honestly and bona fide. But when it arises due to arbitrary or capricious behaviour then it looses its individual character and assumes social significance. Award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil." 19. In the present case, even the State itself had accepted that the deceased Rajaram was taken to police custody without authority kept in custody for over three days violating the mandate of Article