IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.09.2009 CORAM THE HONOURABLE MR. JUSTICE D.MURUGESAN and THE HONOURABLE MR. JUSTICE M.JAICHANDREN W.P.No.18045 of 2009 P.Pugalenthi ..Petitioner Vs State of Tamil Nadu, rep. By the Secretary to Government, Home Department, Secretariat, Chennai. ..Respondent Petition filed under Article 226 of the Constitution of India praying for issue of Writ of Mandamus to direct the respondent to register a case under Section 302 IPC against all the police personnel involved in the custodial death of R.Rajan @ Shanmugasundaram of West Saidapet, Chennai, on 25 August 2009 in the early morning at Adyar Police Station, Chennai. For Petitioner : Mr.M.Radhakrishnan For Respondent : Mr.J.Raja Kalifulla, Government Pleader. O R D E R (Made by D.MURUGESAN, J.) The petitioner, by name, P.Pugalendhi, Director of Prisoners Right Forum, Chennai, has approached this Court by way of the present Public Interest Litigation seeking for a direction to the Secretary to Government, Home Department, to register a case against the police personnel under Section 302 IPC in connection with their involvement in the alleged murder of one R.Rajan @ Shanmugasundaram on 25.8.2009 in the early morning at Adyar Police Station, Chennai. 2.The grievance of the petitioner is that on 26.8.2009, almost all the newspapers in the State flashed the shocking news of the custodial death of the said Rajan @ Shanmugasundaram. According to the police, the said Rajan @ Shanmugasundaram was nabbed by local people at Neelangarai and handed over to Neelangarai police station https://hcservices.ecourts.gov.in/hcservices/ on the evening of 24.8.2009. It was also stated that after interrogation, he was taken to a private hospital and he was declared dead at about 3.00 a.m. on 25.8.2009. A Revenue Divisional Officer Enquiry was ordered as to his death. As it was a custodial death, the State cannot plead innocence and the officers-in-charge of the police station at the relevant point of time should be prosecuted by registering F.I.R. The petitioner has approached this Court on the basis of the reports carried on in the newspapers. 3.Mr.Radhakrishnan, learned counsel appearing for the petitioner, would submit that as against the normal criminal law jurisprudence of presumption of innocence of the accused, the said law cannot be made applicable in the case of the State, while such custodial deaths are reported in the police station and in such event, the State should owe the responsibility and immediately prosecute the police officers responsible for such custodial death. He would submit the only option available to the State is to immediately register the F.I.R. against all the police officers, who were in-charge of the police station at the relevant point of time. As the same has not been done, the petitioner has approached this Court. In support of the said submission, he would rely upon the two judgments of the Supreme Court made in Criminal Appeal No.1683 of 2008 dated 23.10.2008 and W.P.(Crl.)No.193 of 2006 dated 3.2.2009. He would also rely upon the letter addressed by the then Chair Person, National Human Rights Commission dated 29.3.1997 to all the Chief Ministers regarding the procedures to be followed in cases of deaths in police encounters. The learned counsel would submit that the life of an individual is invaluable and it cannot be dispensed with in the manner as has been done by the police. 4.Mr.Raja Kalifulla, the learned Government Pleader, would, on the other hand, bring to our notice that a case being registered on the file of Neelangarai police station in Crime No.610 of 2009 dated 24/25.8.2009 under Section 176 of the Code of Criminal Procedure (Cr.P.C.) and pursuant to the registration of the F.I.R., in terms of Section 176 Cr.P.C., a Revenue Divisional Officer enquiry has been ordered. This order of Revenue Divisional Officer's enquiry is also in consonance with clause 151 of the Police Standing Order. The learned Government Pleader would submit that as and when the report of the Revenue Divisional Officer is received, further action would be taken in accordance with law. He would also submit that it is premature at this stage for the petitioner to seek a direction to register the F.I.R. against all the police officers, who were in- charge of the police station while the said Rajan @ Shanmugasundaram said to have expired while he was in custody. He has also submitted that in fact the entire investigation has now been entrusted with the C.B.C.I.D. 5.In response to the above submission of the learned Government Pleader, Mr.Radhakrishnan, the learned counsel for the petitioner https://hcservices.ecourts.gov.in/hcservices/ would further submit that sub-section (3) of Section 176 Cr.P.C. contemplates that in case the Magistrate, who conducts the enquiry, considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the causes of his death, he may cause the body to be disinterred and examined. As the body has already been cremated, the compliance of sub-section (3) of Section 176 is a remote possibility and therefore, the enquiry by the Magistrate would be only a false. 6.In response to the above submission, Mr.Raja Kalifulla, the learned Government Pleader would submit that in fact the post-mortem was conducted at the request of the Sub Divisional Magistrate and Revenue Divisional Officer, Chengalpet, as could be seen from the post-mortem certificate indicating that the inquest was made in the presence of the Sub Divisional Magistrate and therefore, the submission as to the provision of sub-section (3) of Section 176 is not well-founded. 7.Mr.Radhakrishnan, the learned counsel for the petitioner, had elaborately argued as to the human rights and we cannot have a different opinion on the said aspect as the life of an individual is precious and it cannot be dealt with by any person and consequently dispense with the life except recognised by law. However, the question is as to whether solely on the ground that death had occurred while in police custody, the First Information Report should be registered against all the police officers, who were in-charge of the police station, immediately. In our opinion, though the police officers, in the event they are found to be the persons for such custodial death, must be proceeded with, it would be premature for the Court to direct the registration of the F.I.R. against all the police officers, who were in the police station at the time the alleged custodial death took place and implicate them as accused without waiting for the report of the Revenue Divisional Officer. 8.PSO 151 relates to the procedure in respect of charges of torture by the police or of death or grievous hurt caused by the police and sub-clause (6) of clause 151 is made applicable in case of such deaths occurred in any of the police station in the city of Chennai. Sub-clause 2 of PSO 151 relates to the procedure to be followed in such cases while the death occurs in Mufassil. Sub-clause 3(a) of PSO 151 says that a preliminary enquiry to the occurrence should be conducted by the Revenue Divisional Officer or such other officer as may be appointed for the purpose and the enquiry will be of non-judicial character and more in the nature of an investigation in order to fix the responsibility, if any, on individual police officers and to see whether there is a prima facie case for launching a criminal prosecution or other proceedings against any one concerned. https://hcservices.ecourts.gov.in/hcservices/ 9.In fact, the above Police Standing Order is in tune with the provisions of Section 176 Cr.P.C. Sub-section (1) of Section 176 contemplates that when any person dies while in the custody of the police, the nearest Magistrate is empowered to hold the inquest and he is also empowered to hold enquiry into the cause of death either instead of or in addition to the investigation held by the police officer. The registration of F.I.R. against the police officers concerned would be on the basis of the report of the Revenue Divisional Officer or the Magistrate as referred to in Section 176 Cr.P.C. In our opinion, that stage has not arisen as on today, as it would be premature to say either the police officers, who were on duty at the relevant time would be innocent or guilty or otherwise, as it all depends upon the report of the enquiry. 10.The Apex Court, in Criminal Appeal No.1683 of 2008 (between Indu Jain v. State of Madhya Pradesh & Ors.) was dealing with a case where an F.I.R. was filed; the accused were charge-sheeted and after trial, they were convicted and when the matter went to the Supreme Court, on facts, the observations were made making the impressions on the human rights. On the facts of the present case, we are not inclined to accept the submission of the learned counsel for the petitioner to apply the very same finding even at the stage when the Revenue Divisional Officer enquiry is still pending. Similarly, the judgment relied upon by the petitioner in W.P. (Crl.) No.193 of 2006 (between Dalbir Singh vs. State of U.P. & Ors.) also cannot be pressed into service on the facts of this case. As we have already pointed out, there cannot be any second opinion about the values of human rights even in case a person is an accused and in custody and nobody including the police officials have any right either to harass or torture resulting in the death of such person. But the question is whether even before the Revenue Divisional Officer enquiry is completed, the petitioner would be justified in seeking for a direction to register the case against all the police officers who were in-charge of the police station. 11.The learned counsel also referred to the letter of the former Chair Person of National Human Rights dated 29.3.1997. That letter came to be sent in respect of killing of some persons by firing allegedly on the ground that they were members of the outlawed People's War group. In that circumstances and also considering the case as one of encounter death, that letter came to be sent to all the Chief Ministers. As we are concerned with the relief of direction for registration of the case in a custodial death, the request made by the Commission to the Honourable Chief Ministers of respective States relating to the encounter deaths cannot be considered at this stage. 12.In our view, the writ petition is premature and though the petitioner may have a justified grievance, such grievance can be exposed in the event the Government failed to act in spite of an https://hcservices.ecourts.gov.in/hcservices/ adverse report against the police officers concerned. Hence, without expressing any opinion either on the averments made in the affidavit or the investigation so far carried on or the enquiry conducted by the Revenue Divisional Officer and except the observations made in this order for the purpose of disposal, we dismiss this writ petition as premature. However, we make it clear that the liberty of the petitioner to vindicate the grievance can be exposed only as and when it becomes necessary. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sra To The Secretary, Government of Tamil Nadu, Home Department, Secretariat, Chennai. + 1 c.c. to Mr. M.Radhakrishnan, Advocate. S.R.No.48136. + 1 c.c. to The Government Pleader. S.R.No.47220. W.P.No.18045 of 2009 RK (CO) GSK 17.09.2009. https://hcservices.ecourts.gov.in/hcservices/