IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 10-11-2009 Coram: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN H.C.P.No.1334 of 2009 Mrs.Vijaya ... Petitioner Versus 1.The State of Tamil Nadu, rep. by its Secretary to Government, Home Department, Secretariat, Chennai-600 009. 2.The Director General of Police, Mylapore, Chennai-600 004. 3.The Superintendent of Police, Salem District. 4.The Inspector of Police, Veeranam Police Station, Salem District. 5.The Superintendent of Police, Central Prison, Salem. ... Respondents Hapeaus Corpus Petition filed under Article 226 of Constitution of India praying for the issuance of Writ of Habeaus Corpus directing the respondents No.1 and 2 to take necessary departmental action against the erring police personnel attached with the 4th respondent and also to pay necessary and adequate compensation to the detenu E.Iyyanar, S/o.Elumalai aged about 39 years for the maltreatment of the 4th respondent during the custody period. For Petitioners :Mr.P.Vijendran For Respondents :Mr.V.R.Balsubramaniam Additional Public Prosecutor. https://hcservices.ecourts.gov.in/hcservices/ O R D E R N.KIRUBAKARAN,J. This Habeas Corpus petition has been filed by the wife of the detenu for the following relief: "Directing the respondents No.1 and 2 to take necessary departmental action against the erring police personnel attached to the 4th respondent and also directing the respondents to pay necessary and adequate compensation to the detenu E.Iyyanar, S/o.Elumalai aged about 39 years for the maltreatment of the 4th respondent during the custody period." 2. The case of the petitioner is that her husband E.Iyyappan, son of Elumalai was illegally tortured and detained under the fifth respondent. She states that her husband is a District Treasurer of the Human Rights Protection Centre (HRPC) and he has been continuously working for the people's right cause including against the atrocities committed by the police officials. 3. The petitioner contended that the fourth respondent had taken her husband to Ercuard Hill Station and where he was attacked indiscriminately and photographs were taken as if the detenu was distilling illicit liquor. The detenu was charged under Sections 4(1) (b), 4(1)(g), 4(1)(aaa) and 4(1-A) of the Tamil Nadu Prohibition Act and a case was registered in Crime No.318 of 2009. The petitioner was produced before the learned Judicial Magistrate III, Salem, who remanded him to judicial custody on 9.8.2009. It is further case of the petitioner that the detenu made a complaint against the police officials namely 1) Mr.Raja Ramaveerapandian, Inspector of Police, Attayampatti, 2) Ravikumar, Inspector of Police, Veeranam Police Station and 3) Vinayagam, Sub-Inspector of Police, Veeranam Police Station at the time of remand, and the Magistrate refused to register and take action on the complaint given by the detenu though the detenu was severely attacked and sustained fractured in his left forearm. 4. The petitioner contended that she made a complaint on 9.8.2009 to the Deputy Superintendent of Police, Salem and to the Chief Minister Grievance Cell and others and a representation was also sent to the District Collector on 10.8.2009. The C.M.P.No.3064 of 2009 filed by the petitioner before the Judicial Magistrate-IV, Salem seeking direction to provide medical treatment to the detnue was dismissed on 12.l8.2009. In nutshell the petitioner alleged that the detenu was illegally arrested and beaten severely by the fourth respondent. https://hcservices.ecourts.gov.in/hcservices/ 5. Aggrieved by the same, the writ petition has been filed. This court after hearing the learned counsel for the petitioner by an order dated 25.8.2009 directed the learned Judicial Magistrate No.IV, Salem to make arrangement for medical examination on the detenu and in the event if any injury was found on the body of the detenu, the medical officer should arrange for necessary treatment to be given to the detenu and the Judicial Magistrate should also collect necessary medical reports from the medical officer. 6. The learned Judicial Magistrate No.IV, Salem submitted his report stating that the detenu was sent to Mohan Kumaramangalam Medical College Hospital, Salem for medical examination and treatment. As directed by the Dean of the Medical College a committee was formed consisting of specialist and they examined the detenu and submitted a final report, which reads as follows: " Plaster of paris already applied was removed and reapplication with plaster of paris above elbow was done after reviewing in the X-rays. X-rays show communicated fracture of olecranon left ulna. Patient was treated with IV fluids antibiotics and pail killers. On examination of the patient by the board members on 27.8.2009, patients conscious, comfortably afebrele obese not jaundiced, not anaemic, not cyanosed, no gluvving and no lymphadenopathy. No external injuries. Patient is on above elbow plaster of pairs slab left upper limb. Cardio vascular and respiratory systems were normal abdomen was soft, no Organomegaly no free fluid. Central nervous systems and locomotor systems normal..." 7. The learned Judicial Magistrate No.IV, Salem by its report dated 27.8.2009 submitted that on 9.8.2009 the detenu was produced at 6 p.m. by the police; that the detenu did not make any complaint against the police when he was remanded to judicial custody and that the detenu did not send any application through the superintendent of police. It is seen from the said report that this court granted bail to the detenu in Crl.O.P.No.17194 of 2009 on 26.8.2009 and he was released. 8. Status report has been filed by the Public Prosecutor stating that on 9.8.2009 at 10.00 hours, when the police went for a raid, the detenu was distilling illicit arrack and was arrested. A confession statement was recorded in the presence of Village Administrative Officer, Veeranam and 200 liters of Fermented Wash of three barrels and 150 litres of illicit distilled arrack were recovered. A case was registered in Crime No.318 of 2009 under https://hcservices.ecourts.gov.in/hcservices/ Sections 4(1)(b), 4(1)(g), 4(1)(aaa) and 4(1-A) of the Tamil Nadu Prohibition Act. The status report further stated that the detenu met with an accident and sustained injuries on his left hand and he was taking treatment prior to judicial custody on 9.8.2009. 9. It is further stated that the detenu was involved in two other cases registered by the Prohibition and Enforcement Wing and he was convicted by an order dated 22.9.2003 in STR No.2248 of 2003 on the file of the Judicial Magistrate Court, Salem. The status report further states that the detenu's wife namely the petitioner herein and his father were also offenders under Prohibition Act. In the additional status report dated 30.9.2009, it is mentioned that the petitioner in her complaint dated 14.9.2009 addressed to the Tamil Nadu Human Rights Commission admitted that the injuries was already sustained by the detenu on his left hand. In paragraph 5 of the additional status report, it is stated that the detenu was involved in four other cases filed by the Veeranam Police Station and four other cases in Crime No.308/05,226/2006,658/2008 and 836 of 2008 on the file of the Steel Plant Prohibition Enforcement Wings, Salem. The petitioner was also involved in three other cases in Crime No.827/02,1131/2002 and Crime No.212 of 2005 under Prohibition Act. 10. To put in nutshell, the prosecution submitted that the detenu as well as the petitioner are habitual offenders and manufacturing illicit liquor and the detenu was arrested during the prohibition raid and he was not illegally arrested or tortured as alleged. 11. Learned counsel for the petitioner submitted that no doubt, the detenu was a bootlegger, but he is not, now, carrying on any illicit arrack business as alleged by the police, that the police illegally arrested and tortured him and that is the reason why the petitioner approached this Hon'ble court praying for a writ of habeas corpus directing the respondents to have a departmental action against the erring police personnel attached to the fourth respondent and give adequate compensation to the detenu for the illegal torture given by the fourth respondent to the detenu during the custody period. 12. The learned counsel for the petitioner relied upon a judgement of the Supreme Court in the case of Common Cause, a Registered Society vs. Union of India and others reported in (1999) 6 SCC 667 and would contend that where the public functions are involved and the matter relates to violation of fundamental rights or enforcement of public duty etc. at the option of the petitioner under the public law notwithstanding damages may be claimed in those proceedings. In particular he relied upon paragraph 65 of the aforesaid judgement and stated that the court can award damages against the public authorities to compensate for the loss or injury https://hcservices.ecourts.gov.in/hcservices/ caused to the petitioner, provided the case involves, in this country, the of violation of fundamental rights by the Government or other public authorities or that their action was wholly arbitrary or oppressive in violation of Article 14 of the Constitution of India. Reference was also made by the learned counsel for the petitioner to the case of Ramanuj Pandey vs. State of Mathya Pradesh and others reported in (2009) 7 SCC 248. In that case, a Head Constable was charged for wrongly detaining a public servant under lunacy Act. The authority removed the said constable from service for the said act. While dealing with the aforesaid matter, the Hon'ble Supreme Court held in its judgement in paragraph 10, which is as follows: "10. In the present matter the appellant, while discharging his duties apprehended Laxmi Narain and registered him under the Lunacy Act without any sufficient reasons. This act of his had indisputably caused harassment to Laxmi Narain and was detrimental to the image of the Police Department, but the same was also not grave enough to punish him with removal from services. The appellant as a Head Constable was bestowed with official duties and while discharging them he went outside its purview, which definitely warrants that his services must be terminated, but as a warning to others and not as a vengeance." 13. Relying upon the the said judgements, learned counsel for the petitioner submitted that in this case also the detenu was wrongly detained and tortured and hence the erring police officials were to be proceeded with departmental action and the detenu has to be compensated. 14. On the other hand Mr.V.R.Balasubramaniam,learned Public Prosecutor submitted that the petitioner was arrested and remanded to judicial custody as pear law. Apart from that he submitted that there was a fracture in left forearm of the detenu even before the said alleged incident and it was suppressed in the writ petition. Moreover the said fact was already admitted by the detenu's wife, in her representation given to the Human Rights Commission. 15. A perusal of the affidavit as well as the status report would show that the detenu as well as the petitioner are involved in a number of prohibition cases. In some of the cases also they were convicted. It is not as if the police registered the case against the detenu for the first time and arrested him under prohibition Act. It is seen from paragraph 5 of the affidavit it is alleged that the detenu was severely attacked and sustained fracture in his left forearm, whereas in the representation dated 10.8.2009 given to the District Collector, the petitioner stated as follows: https://hcservices.ecourts.gov.in/hcservices/ "vdJ fzth; ma;adhh; th';f kWf;f nkw;go nghyPrhh;fs; moj;J Jd;g[Wj;jp fhak; glhkYk; Vw;fdnt Kwpe;J nghd if nkYk; btspf;fha';fs; Vw;glhky; moj;J fl;lhag; gLj;jp miHj;Jr; brd;W vdJ fzth; ma;adhhplk; fl;lhag; gLj;jp xg;g[jy; thf;FK:yk; th';fp vdJ fzth; kPJ rhuha tHf;F jhf;fy; bra;J ifJ bra;J rpiwapy; milj;J cs;shh;@ 16. The fact that the detenu had already sustained fracture in his left hand is also found place in paragraph 3 of the affidavit filed in support of the petition in C.M.P.No.3064 of 2009 before the Judicial Magistrate No.IV seeking medical aid to the detenu. 17. Therefore it is very clear that the detenu had already sustained fracture even before his arrest as admitted by the petitioner herself, whereas in the affidavit the said fact has been suppressed and it is alleged as if the respondent police had caused fracture on the detenu's left hand during/after arrest. 18. Medical report submitted pursuant to the orders of this court speaks about swelling in left L.Bow and the report reads as follows: " As per the history given by the patient by 4 known persons took him to a place near a hill station at Karikadu and beaten him with sticks on 9.8.2009 at around 8 a.m. nd he was taken to Veeranam Police Station at 1.30 p.m. Since the patient had a swelling over the left elbow — Mavukattu was applied by an unknown persons in the police station at Veeranam. Ice application was also given to the swelling in the both gluteal region." 19. The petitioner gave a complaint to the Tamil Nadu Human Rights Commission on 12.8.2009 in which she stated that detenu's hand was already fractured even before the arrest. The medical report also shows that there was a fracture in the left forearm. A conjoint reading of the petitioner's representation dated 12.8.2009 and the medical report shows that the fracture is not due to the police action/torture as alleged by the petitioner. 20. With regard to the allegations of the petitioner that the detenu was severely attacked by the police officials namely: 1) Mr.Raja Ramaveerapandian, Inspector of Police, Attayampatti, 2) Ravikumar, Inspector of Police, Veeranam Police Station and 3) Vinayagam, Sub-Inspector of Police, Veeranam Police Station. The aforesaid details are only given for the first time in paragraph 5 of the writ petition. In the complaint given to the Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Human Rights Commission on 12.8.2009, the petitioner did not give the names of the police officials against whom the allegations are made in the writ petition. The Medical Board's report reads as follows: "As per history given by the patient by 4 known persons took him to a place near a hill station at Karikadu and beaten him with sticks on 9.8.2009 at around 8 a.m. nd he was taken to Veeranam Police Station at 1.30 p.m." 21. The detenu did not mention the names of the alleged known persons to the medical board. Apart from that if the police officials attacked him he would have definitely informed the medical board, which examined him, and it would have been reflected in the report. However, counsel for the petitioner complained that the medical board's report did not give correct details. It is to be noted that the Medical Board was constituted pursuant to the orders of this court and this court has to believe the medical report and no motive could be attributed against the Doctors who consisted the medical board. 22. It is curious to note the contents of the telegram given on 10.8.2009 to the Chief Minister Grievance Cell complaining about detenu's arrest. The following is extracted from the said telegram. " on 1.8.2009 when my husband was attacked and injured by some rowdy elements, he gone to police station to file a police complaint, but they refused to receive the complaint and insulted my husband as to go to court to get remedy." The aforesaid statement made in the telegram given by the petitioner (detenu's wife) would show that the detenu was attacked and injured by some rowdy elements on 1.8.2009. Learned Judicial Magistrate No.IV, Salem in his report dated 27.8.2009 stated that when the detenu was produced before him on 9.8.2009 at 6 p.m. and the detenu did not make any complaint against the police officials. 23. The above facts of the case would reveal the following: 1) The detenu was arrested on 9.8.2009 by the respondent police as admitted by the petitioner herself in her complaint dated 10.8.2009 to the Deputy Superintendent of Police and in the telegram dated 9.8.2009 and he was produced before the learned Judicial Magistrate No.IV, Salem at 6 P.M. on 9.8.2009, as revealed in the report dated 27.8.2009 filed by the Judicial Magistrate No.IV, Salem. 2) The arrest was made for the offence under Section 4(1) (b) 4(1)(G) 4(1) (aaa) 4(1)(8) of the Tamil Nadu Prohibition Act and a case was registered in crime No.519 of 2009. https://hcservices.ecourts.gov.in/hcservices/ 3) The allegation of unlawful arrest of the detenue is without any substance as he was arrested for the aforesaid offences. 4) With regard to the allegation of torture by the named police officials, it is made for the first time in the writ petition and there is no evidence on the side of the petitioner to prove the same. 24. Mr.Vijayendran, learned counsel for the petitioner submitted that it is a fact that the detenu was attacked by the police officials. Secondly he submitted that even though the detenu complained to the Medical Board that he was attacked by the police officials, the Medical Board did not record the names of the police officials. Thirdly he submitted that since the detenu was injured by the police, he has to be compensated suitably and departmental action has to be taken against the erring police personnel attached to Veeranam Police Station. 25. In the absence of any materials to substantiate the claim of the petitioner that the police officials illegally arrested and tortured the detenu, it is very difficult for this court to believe the version of the petitioner as this writ petition is to be decided on the basis of the affidavit and the records produced by the prosecution. 26. Before this court, it is not proved that the names of police officials mentioned in paragraph 5 of the affidavit filed in support of the writ petition have been reflected any where in the complaint given by the petitioner nor in the Medical Board report. Hence this court has to come to the conclusion that the said allegations are not proved as per the evidence available before this court. 27. Regarding the compensation as rightly pointed out by the learned counsel for the petitioner this court has got jurisdiction and power under Article 226 of the Constitution of India to award compensation for violation of fundamental rights quaranteed under Article 21 of the Constitution of India. No doubt, this court has power and jurisdiction to award compensation, if violation of fundamental rights of the citizen were infringed. In Rudul Shah versus State of Bihar reported in AIR 1983 SC 1086 the Hon'ble Supreme Court awarded compensation in exercise of Writ Jurisdiction. Similarly in Sepestian Hongray v. Union of India reported in AIR 1984 SC 571 and Bhim Singh v. State of Jammu & Kasmir reported in 1986 SC 494 compensation was awarded. This court awarded compensation for a sum of Rs.50,000/- to a lady who was illegally detained in the case Veera vs. State of Tamil Nadu reported in 1991 Crl.L.J. 2395. https://hcservices.ecourts.gov.in/hcservices/ 28. However, what has to be seen whether any fundamental rights of the detenu was infringed? It has been held in Consumer Education and Research Centre vs. Union of India reported in AIR 1995 SC 922 that public law remedy for the purpose of grant of compensation can be resorted to only when the fundamental rights of a citizen under Article 21 of the Constitution is violated and not otherwise. In this case no materials are produced by the petitioner in this case to prove illegal detention and torture, it is very difficult to award compensation for the alleged injuries sustained by the detenu. The detenu was arrested as per law and hence the detention cannot be called illegal detention. As long as the injuries are not proved to be caused by the police officials, this court is not inclined to award compensation. 29. In the affidavit filed by the detenu dated 3.10.2009 filed before the court on 12.10.2009 action was sought against Mr.Ravikumar, Police personnel attached to the fourth respondent and sought a direction to the third respondent to initiate departmental action against the erring police officials attached to the fourth respondent. The prayer cannot be granted as all the police personal attached to the fourth respondent are not impleaded before this court and this writ petition is bad for non-jointer of parties. 30. Counsel for the petitioner strenuously argued and created an impression that the detenu was illegally detained and tortured. The impression is not enough for this court to award compensation unless there is proof for illegal detention and torture. 31. In these circumstances this court cannot issue direction as prayed for by the petitioner. However the order of this court will not stand in the way of the petitioner or the detenu to seek appropriate remedy against the concerned persons by approaching the competent court jurisdiction for remedy. 32. In the result, the writ petition is dismissed with the above observation. However, there will be no order as to costs. Consequently the connected M.P.No.1 of 2009 is also dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Secretary to Government, State of Tamil Nadu, Home Department, Secretariat, Chennai-600 009. 2.The Director General of Police, Mylapore, Chennai-600 004. 3.The Superintendent of Police, Salem District. 4.The Inspector of Police, Veeranam Police Station, Salem District. 5.The Superintendent of Police, Central Prison, Salem. 6. The Public Prosecutor, High Court, Madras. + 1 cc to Mr.P.Vijendran, Advocate, SR No.60316 ORDER IN H.C.P.1334 of 2009 AKR (CO) RH (7.12.09) https://hcservices.ecourts.gov.in/hcservices/