IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.3.2009 C O R A M : THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.11569 of 1999 M.Kalithai ... Petitioner vs. 1.State of Tamil Nadu rep.by its Secretary (Home), Fort St.George, Chennai. 2.The Collector, Collector's Office, Tirunelveli District. 3.The Inspector General of Police, I.G's office, Madras. 4.The Inspector of Police, Sankaran Koil Police Station, Tirunelveli District. ... Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing respondents 3 and 4 to compensate the petitioner by payment of Rs.10,00,000/- as damages caused by the untimely custodial death of the petitioner's husband caused by respondents 3 and 4 while he was in custody of the fourth respondent. For Petitioner :: Mr.A.Natarajan For Respondents :: Mr.M.Dhandapani, Spl.G.P. ***** https://hcservices.ecourts.gov.in/hcservices/ O R D E R K. CHANDRU, J. This writ petition came to be posted under the orders of the Honourable Acting Chief Justice, dated 06.1.2009. The matter originally came up before the learned Single Judge. By an order dated 22.10.2008, the matter was referred to be heard by a Division Bench. Hence, the writ petition stood posted before this Division Bench. 2. The petitioner is the wife of one Marisamy and a resident of Nelkattumseval, Vasudevanallur, Sivagiri Taluk, Tirunelveli District. She has filed the present writ petition seeking for a compensation of Rs.10 lakhs from the respondents as damages for having caused the death of her husband while he was in the custody of the fourth respondent. 3. The writ petition was admitted and notice was ordered on 07.7.1999. Subsequently, when the matter came up for final disposal on 06.9.2008, this Court directed the fourth respondent to be present with the concerned files relating to the death of the petitioner's husband Marisamy. 4. In the meanwhile, on behalf of the first respondent, a counter affidavit dated 22.9.2008 was filed. On behalf of the fourth respondent also, another counter affidavit has been filed with the same date. The respondents have also circulated the documents in the form of a typed set. 5. It is seen that an RDO enquiry was conducted against the death of the petitioner's husband under Police Standing Order No.145. The Revenue Divisional Officer, Tirunelveli by his report dated 12.3.1999 found that the death was due to suffocation and due to hanging as opined by the Medical Officer and not due to torture by the police personnel. This report was sent to the District Collector, Tirunelveli, who agreed with the report of the Revenue Divisional Officer and forwarded it to the State Government. 6. The Government, by its order in G.O.(Ms).No.204, Public (Law and Order-E) Department, dated 04.2.2000 found that six policemen, including the Inspector and Sub-Inspector were negligent. By a further letter dated 25.2.2002, the Government also informed the National Human Rights Commission that since the death was caused due to carelessness of the police personnel on duty, while the deceased was in the police custody, they have issued orders to take departmental action against the concerned police personnel. Subsequently, the policemen were proceeded with disciplinary action https://hcservices.ecourts.gov.in/hcservices/ and minor punishments were imposed on them. 7. The Government also took up the contention that while the Government Order in G.O.Ms.No.153, Public (Law and Order-B) Department, dated 31.1.1998 provided for compensation under certain circumstances, the present case was not covered by the said G.O. 8. It is an admitted case that the petitioner's husband had died in police lockup under suspicious circumstances. Therefore, whether the petitioner, being the wife of the deceased, is eligible for compensation, will have to be decided in this writ petition. 9. It is brought to the notice that a letter sent by the petitioner to the Hon'ble Chief Justice, which was received on 24.10.1998 was taken up as a Writ Petition. It came to be posted before a Division Bench registering it as W.P.No.19642 of 1998. After treating it as a writ petition, no notice was sent to the petitioner. However, an Advocate of this Court was appointed as an amicus curiae to assist the Court. Unfortunately, when the matter came up before the Division Bench on 13.6.2005, the said amicus curiae had not appeared. No further intimation was also sent to the petitioner. Further, the Division Bench was also not informed about the pendency of the writ petition having been filed by the petitioner herself in W.P.No.11569 of 1999 and prosecuted by an Advocate. In the absence of such information, the Division bench dismissed the writ petition for default vide its order dated 13.6.2005. 10. Before we take up the merits of this writ petition, it must be stated that the earlier Division Bench by its order dated 13.6.2005 dismissed the writ petition only for default. Though an amicus curiae was appointed, since she had not appeared, by normal practice, notice should have been issued to the petitioner in person. The dismissal was not on merits but only for default. Even at that time it was not brought to the notice of the Court about the pendency of the present writ petition. Hence, we do not think that the order passed by this Court dated 13.6.2005 will operate against the petitioner is prosecuting the present writ petition. The objection raised in this regard stands overruled. 11. Pursuant to the direction given by the learned Judge, the original records were also circulated for perusal by this Court. The Revenue Divisional Officer, Tirunelveli received an FIR forwarded by the Deputy Superintendent of Police, Sankarankoil for an enquiry under Police Standing Order 145, pursuant to which, the Revenue Divisional Officer, Tirunelveli conducted an enquiry. As per the FIR, the deceased Marisamy was arrested along with two other accused M/s.Ramar and Murugaiah by the Inspector of Police, Vasudevanallur https://hcservices.ecourts.gov.in/hcservices/ at Nelkattumseval on 16.9.1998 at 6.30 a.m. and brought to the police station at Sankarankoil at 9.30 a.m. After due search, he was locked up and the other two accused were kept in the Writer's room for interrogation. 12. It was further stated that when the Inspector of Police came back at 12 0' clock, he was told by the two police constables that the accused had gone to the toilet. When they later followed him to the toilet, they found that the accused had put a noose around his neck with a lungi and hanged by tying the other end of the lungi with the wire mesh of the window of the toilet and had attempted to commit suicide. Having found him struggling for life, the two constables lifted him and removed his lungi from his neck and took him to a local nursing home. The doctor there declared the said Marisamy dead. 13. The Revenue Divisional Officer by his report dated 12.3.1999 opined that due to the scolding by the deceased Marisamy's father, he must have committed suicide and his father's statement was also recorded. He disbelieved the evidence of the co-accused on the plea that they were the relatives of the deceased and were also accused in a murder case. He went by the post-mortem report and the final medical opinion to hold that there were no external or internal injuries on his body. After inspecting the police station, he opined that there was a possibility of hanging with a lungi tied to the window wire mesh. Therefore, he concluded that the death was due to suffocation and due to hanging and not due to the torture by the police. 14. This report was forwarded to the District Collector, Tirunelveli, who in turn, forwarded to the first respondent State with a covering letter dated 24.3.1999. He agreed with the findings of the Revenue Divisional Officer. The State Government issued G.O.Rt.No.204, Public (Law and Order) Department, dated 04.2.2000. In para 'C', the State Government fixed the responsibility on various police personnel. In para 'C-1' it was found that the Inspector Vijayaraghavan of Vasudevanallur Police Station who was in charge of the fourth respondent police station was found guilty of retaining the accused Marisamy without properly recording his arrest in the station register. He was also fixed the responsibility of having allowed him to stay inside with the lungi thereby facilitating his suicide. In the same way, the Sub-Inspector Kottaisamy, Head Constable Samuthiravel, P.C. Gr.I Venkatachalam, P.C.Gr.I Kasipandian and Assistant Station Writer Gr.I Constable Solaisamy were fixed the responsibility for both the events. 15. By the said G.O. the department was directed to take departmental action against the persons concerned. Thereafter it transpires that departmental action was taken and punishment was https://hcservices.ecourts.gov.in/hcservices/ imposed on four policemen. Action against Kasipandian Gr.I P.C. and Solaisamy Gr.I. Constable were dropped. In respect of the Inspector of Police, Sub-Inspector and Head Constable and also one other Grade I Constable, reduction in pay by two stages for one year without cumulative effect was given. This matter was brought to the notice of the Government and the Government accepted the punishment imposed on them by a letter dated 14.6.2004. 16. The counter affidavit more or less extracts these passages and prayed for dismissal of the writ petition on the ground that there was no necessity to grant any compensation as prayed for in the writ petition. 17. In paragraphs 12 and 13 of the counter affidavit, it has been averred as follows:- Para 12. With reference to the averments made in para 8 of the affidavit, it is submitted that as per the existing norms in G.O.Ms.No.153, Public (Law and Order-B) department, dated 31.1.1998, a financial relief of Rs.1,00,000/- (Rupees one lakh only) is being sanctioned by the Government in respect of the following categories. 1. (a) Death in caste/communal clashes (b) Death due to police torture (c) Death due to police firing (d) Rape by police. 2. Permanent incapacitation Para 13. It is submitted that in the instant case, as the deceased had died due to committing suicide, the sanction of exgratia was not considered by the Government". Therefore, the learned Special Government Pleader Mr.Dhandapani prayed for dismissal of the writ petition. 18. But, however, the learned counsel for the petitioner contended that the findings of the Revenue Divisional Officer in disregarding the evidence given by two under-trials as well as the petitioner were erroneous. Whatever may be the circumstances under which the petitioner's husband had committed suicide, the fact remains that when the police belonging to the fourth respondent police station took him into custody and they did not record his arrest in the station records. Contrary to standing procedure, he was allowed to wear a lungi inside the lockup. Responsibilities were fixed on the policemen and they were dealt by a departmental action. Penalty was imposed on them. Whether the penalty imposed on the policemen was commensurate with the misconducts committed by them or not, we are not called upon to decide the same in this writ https://hcservices.ecourts.gov.in/hcservices/ petition. 19. It is suffice to state that the finding that his arrest was not shown on records is enough to hold that the respondents were guilty of violating Article 22(1) of the Constitution of India as well as the 11 commandments (guidelines) issued by the Supreme Court in the judgment relating to D.K.Basu -vs- State of West Bengal reported in AIR 1997 SC 610. Therefore, we have no hesitation to reject the stand taken by the respondent State that D.K.Basu guidelines have been followed in the case of arrest of Late Marisamy. We also hold that this G.O. referred to by the respondent State, as extracted above, cannot be a 'be-all and end-all' in the matter of grant of compensation in case of human rights abuse in a police station. Therefore, the primary cause in the present case is that the accused Late Marisamy was taken to the police station and kept in custody without any record. 20. The subordinates of the respondent State have committed gross contempt of the orders of the Supreme Court rendered in D.K.Basu's case (cited supra). In the same judgment, the nature of action to be taken for violation of the order is set out in paragraphs 37 and 38, which is as follows:- ''37. 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. 38. 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." 21. 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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". 22. In this context, it is necessary to refer to a latest decision of the Supreme Court in Dalbir Singh v. State of U.P. and Others (Writ Petition (Crl.) No. 193 of 2006, decided on February 3, 2009). Paragraphs 6 to 11 are relevant and they may be usefully reproduced below:- ''Para 6. Custodial violence, torture and abuse of police power are not peculiar to this country, but it is widespread. It has been the concern of 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. Para 7. If it is assuming alarming proportions, now a days, all around it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from roof tops to be the defenders of democracy and protectors of peoples' 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. Para 8. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 rule of law and administration of 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 Brandies's observation which have become classic are in following immortal words: "Government as the omnipotent and omnipresent teacher teaches the whole people by its example, if the Government becomes a law breaker, it breeds contempt for law, it invites every man to become a law into himself". (in (1928) 277 U.S. 438, quoted in (1961) 367 U.S. 643 at 659). Para 9. 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 guardians of law destroy the human rights by custodial violence and torture and 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 Raghubir Singh's case (supra) more than two decades back seems to have fallen to deaf ears and the situation does not seem to https://hcservices.ecourts.gov.in/hcservices/ be showing any noticeable change. The anguish expressed in Gauri Shanker Sharma v. State of U.P. (AIR 1990 SC 709), Bhagwan Singh and Anr. v. State of Punjab (1992 (3) SCC 249), Smt. Nilabati Behera @Lalita Behera v. State of Orissa and Ors. (AIR 1993 SC 1960), Pratul Kumar Sinha v. State of Bihar and Anr. (1994 Supp. (3) SCC 100), Kewal Pati (Smt.) v. State of U.P. and Ors. (1995 (3) SCC 600), Inder Singh v. State of Punjab and Ors. (1995(3) SCC 702), State of M.P. v. Shyamsunder Trivedi and Ors. (1995 (4) SCC 262) and by now celebrated decision in Shri D.K. Basu v. State of West Bengal (JT 1997 (1) SC 1) seems to have caused not even any softening attitude to the inhuman approach in dealing with persons in custody. Para 10. Rarely in cases of police torture or custodial death, there is any 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. Para 11. 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 by 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 https://hcservices.ecourts.gov.in/hcservices/ citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/under- trial 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 of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the 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 judiciary itself, which, if it happens, will be a sad day, for any one to reckon with. " (Emphasis Added) 23. On the strength of the dictum laid down by the Supreme Court, the report of the Revenue Divisional Officer deserves to be discarded. But, however, the view which we have taken herein, we do not think that it is necessary to go into the validity of the finding rendered by the Revenue Divisional Officer, which is only a prima facie finding. 24. Therefore, we hold that the illegal arrest of Late Marisamy and lack of care in saving his life while in police custody are sufficiently proved and those findings established here are enough to order compensation by the State. The respondents are hereby directed to pay a sum of Rs.2 lakhs (Rupees two lakhs only) as compensation towards the death of the petitioner's husband (Late Marisamy) in lockup due to illegalities committed by the policemen. The writ petition will stand allowed to the extent indicated above. No costs. The respondent State is hereby directed to pay the compensation within a period of eight weeks from the date of receipt of a copy of the order of this Court and report compliance. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ js To 1.The Secretary (Home), State of Tamil Nadu, Fort St.George, Chennai-600 009. 2. The Collector, Collector's Office, Tirunelveli District. 3. The Inspector General of Police, I.G's office, Chennai-4. 4. The Inspector of Police, Sankaran Koil Police Station, Tirunelveli District. 5.The Section Officer, Writ Section,High Court,Madras. +1cc to Govt. Pleader Sr 7946 BVN(CO) km/19.3. W.P.No.11569 of 1999 https://hcservices.ecourts.gov.in/hcservices/