IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.7.2009 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE C.T.SELVAM Habeas Corpus Petition No.49 of 2009 P.Pugalenthi ... Petitioner Vs. 1.The State of Tamilnadu rep.by the Secretary, Home Department, Secretariat, Chennai-600009. 2.The Director General of Prisons, Gandhi Irvin Salai, Egmore, Chennai-600008. 3.The Superintendent, Special Prison for Women, Vellore. ... Respondents * * * Habeas Corpus Petition filed under Article 226 of the Constitution of India, praying to direct the respondents to produce the body and person of Ms.Saradha, aged 55, R.P.No.7340, now confined in Special Women Prison, Vellore, to provide her proper medical treatment for the injuries suffered by her at the prison, to take disciplinary action against all those responsible for the ill- treatment meted out to the said Ms.Saradha at the said prison and further directing the respondents to pay appropriate compensation to the said Ms.Saradha. * * * For petitioner : Mr.Radhakrishnan For respondents : Mr.N.R.Elango, Addl.P.P. * * * https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner is a practising Advocate in this Court and he has filed this Habeas Corpus Petition praying to produce the body and person of Mrs.Saradha, aged 55, R.P.No.7340, now confined in Special Women Prison, Vellore, to provide her proper medical treatment for the injuries suffered by her at the prison; to take disciplinary action against all those responsible for the ill-treatment meted out to the said Ms.Saradha at the said prison and further directing the respondents to pay appropriate compensation to the said Ms.Saradha. 2. In the affidavit filed in support of this petition, the petitioner has submitted that besides being a practising Advocate, he is also the Director of Prisoners Rights Forum, established to create law awareness among the prisoners to help them enforce their human rights, constitutional rights and legal rights and is also the Joint Secretary of Thamizhaga Makkal Urimai Kazhagam (Tamil Nadu Peoples' Rights Forum), a human rights organization. He has submitted in his affidavit that on 5.1.2009, he went to the Vellore Women Prison and met his client S.Nalini, who informed him that one Saradha was brought to Special Prison for Women, Vellore as a remand prisoner having been remanded by the Judicial Magistrate Court No.4, Vellore on 31.12.2008 and was lodged in the said prison and she was allotted R.P.No.7340; that while she was taken inside her cell by the officials, she is said to have clandestinely taken with her a sum of Rs.5,000/= without the knowledge of prison officials; that fearing detection of her act by the prison officials, she had handed over the said amount to a prison inmate on 31.12.2008 itself; that on 2.1.2009, the said Saradha demanded the said inmate to return the money, who refused to give back the amount; that on such refusal, Saradha was understandably told the inmate that she would report to the Jailor against her and started proceeding towards the office of the Jailor and when she was so proceeding, three convict warders by name Kasthuri, Muneeswari and Dhanam along with the said inmate assaulted Saradha and made her suffer untold misery; that the assault was so shocking that no human being could ever have thought of such an assault on a helpless woman remand prisoner. 3. The petitioner would further submit that he was told by his client Nalini that Saradha was surrounded by all the said four women, and she was undressed totally and dragged nude for quite a some time till they reached the entrance of her cell and was put in solitary confinement and she was never given back her clothes and no official in the prison bothered about her; that she suffered serious bleeding injuries all over her body and she was crying for help the whole night, but in vain. The petitioner would further submit that the https://hcservices.ecourts.gov.in/hcservices/ detenue is yet to get the attention of the prison officials for her medical treatment and in spite of lapse of a week's time till the time of filing of this petition, the respondents or the officials working under them have not extended their helping hand to Ms.Saradha, even to get back her clothes and therefore, he had sent a telegram on 5.1.2009 demanding the respondent to give immediate medical treatment to her and also to take necessary action against the persons responsible for the above incident and it appears that the respondents have not cared to look into the telegram and discharge their duties and the condition of Saradha remains as it has been and would pray for the relief prayed for. 4. When the matter was taken up for hearing, a strong objection has been raised on the part of the learned Additional Public Prosecutor appearing on behalf of the respondents regarding the very maintainability of this petition on the ground that the petitioner being a practising Advocate and not being a friend or relative of the detenu, cannot invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, that too in the absence of any complaint lodged or made by the detenue herself about the alleged attack made on her. In support of his contentions, the learned Additional Public Prosecutor has relied upon a judgment of this Court in S.SENGKODI vs. STATE OF TAMIL NADU AND FOUR OTHERS [2009 (3) CTC 6], wherein when a practising Advocate of this Court has filed the Habeas Corpus Petition seeking a direction to the respondents therein to produce the body and person of her client, this Court, after analysing and discussing the entire legal aspect on the issue and analysing various provisions in the Advocates Act, 1961 and the Bar Council of India Rules, has held that an Advocate cannot enter into the shoes of his client. 5. No doubt, in the case on hand also, the petitioner is a practising Advocate, but he has not filed this petition for any relief in favour of his client, entering into the shoes of his client. Instead, he has filed this petition in the capacity of a social activist being the Director of 'Prisoners Rights Forum' which has been formed by him to create law awareness among the prisoners and to help them enforce their human rights, constitutional rights and legal rights. The said Forum was created by the petitioner under a registered Instrument of Trust on 8.12.2008, a copy of which has been submitted before us. 6. Further more, in S.Sengkodi's case, whereupon much reliance has been placed on the part of the learned Additional Public Prosecutor, the detenu was a literate person and though he is having all the avenues to champaign his own cause either by himself or through his friends or relatives, he kept silent with no appreciable https://hcservices.ecourts.gov.in/hcservices/ reason offered and his advocate has come forward to file the Habeas Corpus Petition, steeping into the shoes of her client. It is not the situation with regard to the case on hand. The detenu is an illiterate woman, as could be seen from the affidavit filed by her before this Court as she has affixed her thumb impression. The petitioner is championing the cause of such prisoners by establishing a forum under the name and style of Prisoners Rights Forum. No motives can be attributed to the petitioner in filing this habeas corpus petition. Therefore, the above judgment of this Court in S.Sengkodi's case has no application to the case on hand, since the case on hand stands entirely on a different footing and requires consideration on different parameters. Answering this question of maintainability accordingly in favour of the petitioner, we shall now proceed to discuss the other aspects of the case. 7. From the averments made in the petition and the subsequent supporting affidavit filed by the detenue, it is seen that the detenu was attacked by three convict warders Kasthuri, Muniswari and Dhanam brutally and in a barbaric manner by making the detenu nude. 8. Rule 344 of the Tamil Nadu Prison Rules, 1983 (hereinafter referred to as the 'Rules') permits employment of convict officers and Rule 349 mandates gradation of the convict officers into three grades viz. (1) convict night-watchman, (2) convict overseers and (3) convict warders. The above said Kasthuri, Muniswari and Dhanam, who are alleged to have attacked the detenue are the convict warders appointed by the prison authorities and Rule 354 of the Rules codified the duties of convict warders as follows: (1)to perform such duties in the matter of guarding and the like as may, at any time, be assigned to them; (2)to report all infringements of the prison rules and take all lawful measures to prevent them; and (3)to render all necessary assistance to the officials in authority over him in the daily routine and in all emergencies and unforeseen situations." 9. Except to do such supervisory works as has been classified in Rule 354 of the Rules, they have not been entrusted with the duties of punishing any other prisoner. Rule 359 confers certain privileges on such convict warders and the method of appointment of Convict Officers has been provided for in Rule 343 as follows: "The Classification Committee in each prison shall select prisoners to work as prison officers on the basis of their https://hcservices.ecourts.gov.in/hcservices/ previous crime record, special background, institutional behaviour, efforts for self improvement and desire for rendering service to prisoners if they are otherwise eligible. Care shall be taken to ensure that demoralised or undesirable prisoners are not selected." 10. The composition of the Classification Committee in each Central Prison and in the State Prison for Women, Vellore has been described in Rule 210 of the Rules as follows: (a) Chairman .. Superintendent (b) Members .. (1) Jailor (2) Senior Assistant Surgeon (3) Psychologist (wherever there is one) (4) Social Worker (wherever there is one) (5) Welfare Officer (c) Member Secretary .. Assistant Jailor (Interview). 11. Therefore, every care has been provided for under the Rules as to how a Convict Officer shall be appointed and how unscrupulous persons shall be kept away from such duties and responsibilities. But, in the case on hand, from the manner in which the incident has occurred, we have to take a judicial note of the fact that the manner and the measures provides for in the appointment of such convict officers has not been given strict adherence by the jail authorities, particularly by the Classification Committee of the Special Prison for Women, Vellore, leading to commotion and the barbaric act of attack on the detenue, that too making her nude and tying her tuft to the window and keeping her nude for two days. We are quite disturbed as to what the prison authorities are doing when the alleged incident has taken place in the broad day light at around 2.00 p.m. within the prison itself. The prison authorities cannot shirk their responsibility of securing peace inside the premises, without any interference or disturbance from any quarter. Just for the reason that the assailants are the convict warders, appointed by the jail authorities themselves, they cannot take it for granted that they could behave in the manner they wish. The jail authorities cannot plead ignorance of the incident, since they would have heard the screaming of the victim. Just because the victim has failed to report the matter to the Jailor or any other superior officer, probably fearing further attack from the assailants as they are the convict warders having some nexus or proximity with the officials, the jail authorities should not have allowed such barbaric incidents to take place within the prison premises. https://hcservices.ecourts.gov.in/hcservices/ 12. Taking serious note of the matter as there appeared to be gross violation of human rights in the third respondent prison, by the order dated 17.1.2009, we have directed the learned Principal District Judge, Vellore, to inspect the Jail along with the Dean, Christian Medical College and enquire into the matter and submit a report. Accordingly, the learned Principal District Judge, Vellore along with the Principal of the C.M.C.Hospital, Vellore have visited the prison on 3.2.2009 and recorded the statements of the victim Mrs.Saradha and the witnesses Mrs.Nalini; Mrs.Banu, Mrs.Malarkodi Head Constable-Grade I; Ms.Soundaram, a Junior Grade Constable and Mrs.Reena Raj, Warder Grade-II. 13. In her statement before the learned Principal District Judge, Vellore, the victim Mrs.Saradha has clearly narrated the trauma undergone by her at the hands of the three Convict Warders at the behest of the prisoner Chinnapapa, to whom the detenue is said to have handed over Rs.5,000/= at the time of her admission into the prison. Her version was materially corroborated by the statement of Mrs.Nalini, at whose behest this legal proceeding has been initiated by the petitioner. Though one more prisoner by name Banu was examined, she did not reveal anything and her statement is of no use. The other official witnesses viz. Mrs.Malarkodi, Head Constable Grade-I and Mrs.Reena Raj, Grade II Warder, tried to create a picture that the detenue Saradha is a mentally disordered woman. 14. Even in the counter, the respondents have tried to maintain the same picture as if the detenue is a mentally retarded person. But, from the very counter it is seen that the detenue Saradha was examined by the Doctor at the time of admission into the prison and found to be normal. It has also been submitted that Saradha never complained about any loss of money. 15. But, it is the specific admission of the detenue herself that she has taken into the cell with her a sum of Rs.5,000/= by concealing and fearing search, she has given it to Chinnapapa, a co- prisoner and when she demanded return of her amount, only a sum of Rs.1,000/= was returned to her and when she insisted for the balance amount, the said lady prisoner Chinnapapa has denied her liability and only then she has replied that she would report the matter to the warder and so saying when she was about to be moved, the co-prisoners attacked her. Thus, when there is a specific admission on the part of the detenue herself that she has clandestinely carried with her a sum of Rs.5,000/= and that she never complained about the incident to any authority, since even before she was proceeding to complain, she was attacked by the co-prisoners, the above statement of the Superintendent, Special Prison for women cannot be believed and has no relevance at all. Moreover, from the evidence available on https://hcservices.ecourts.gov.in/hcservices/ record, a picture is sought to be created on the part of the official witnesses examined before the learned Principal District Judge, Vellore as if the detenue was suffering from some mental disorder, even though from the very counter of the Superintendent, Special Prison for Women, Vellore, it is seen that the Medical Officer of the Prison had examined the detenue as per the NHRC norms and found her normal at the time of admission. When such is the position, how could a person would become a mentally disorder, soon after the incident was brought to the notice of this Court? 16. Further more, from the medical report filed by the Medical Superintendent, no need of any psycho medication for the detenue has been suggested and no abnormality, in any form, has been found. Even at the time of recording the statement of the detenue, the Principal, Christian Medical College, Vellore has certified that she was fully conscious throughout the time of recording the statement and she was in fit state of mind. From the report filed by the Medical Superintendent, Vellore, it is also seen that the detenue was found to have a bruise in her left wrist. When the medical evidence available on record suggests nothing abnormal with the mental condition of the detenue, the contentions of the respondents, that the detenue is a mentally challenged person, cannot be accepted and the said contention is strongly rejected. 17. On 15.4.2009, the victim Smt.Saradha appeared before us and explained the entire incident and has also admitted that she had clandestinely taken a sum of Rs.5,000/= into the prison and owing to dispute regarding such sum, some of the inmates had set upon her, her hair was tied to the window, her hands were tied behind her back, water was thrown upon her and she was beaten indiscriminately and she suffered injuries on her hands and feet. She also complained that she finds difficulty in walking and expressed her distress that she had been stripped off her clothes and left naked for a whole day in the prison. She further asserted that but for the intervention of Nalini, she would have lost her life. She also informed that she was taken to one Pakiyam Hospital and Vellore CMC Hospital on the pretext that she was mentally ill. She further submitted that she had not preferred any complaint about the incident nor had she authorised anybody either by vakalat or otherwise to represent her and she became aware of the present HCP proceedings before this Court only upon she was enquired by the Principal District Judge, Vellore, who conducted such enquiry as ordered by this Court. She also showed us the injuries received by her at the hands and feet. We found nothing to doubt the tenor of the victim. 18. On a thorough analysis of the entire materials placed on record, we could see that the victim was brutally and in a barbaric https://hcservices.ecourts.gov.in/hcservices/ manner attacked by three convict prisoners and the entire incident was tried to be diluted by the respondents particularly the third respondent as if no such incident had ever occurred. 19. Had the guidelines prescribed by the Rules in appointing such convict warders been scrupulously followed by the Classification Committee of the third respondent prison, unscrupulous persons like the convict warders in the case on hand who had indulged in the barbaric act of attack and insult on the victim, would not have found place in such appointments. 20. Under Section 23 of the Prisons Act, 'the prisoners who have been appointed as officers of prisons shall be deemed to be public servants within the meaning of the Indian Penal Code.' Therefore, for the deeds and misdeeds committed by such convict officers, the State is vicariously liable. Therefore, considering the manner in which the incident had taken place and the insult meted out to her and the trauma undergone by the detenue, we feel it appropriate to direct the respondents to pay a compensation of Rs.50,000/= (Rupees Fifty Thousand Only) to the detenue within eight weeks from today. 21. We place on record our patting for the petitioner, for bringing to light such a ghastly incident and fighting for the cause of a poor and illiterate woman prisoner. 22. Since we could see gross dereliction of duty of the officials who are at the helm of affairs regarding the safety and security of the inmates of the prison, leading to the incident in question to occur within the jail premises putting at stake the dignity of a woman prisoner besides outraging her modesty, we direct the respondents 1 and 2 to find out the officials at the helm of affairs during the time of occurrence in the third respondent Jail and whose negligence and dereliction in duty has resulted in this ghastly incident of violation of human rights of a helpless lady prisoner in the prison and initiate necessary disciplinary proceedings against them. The respondents 1 to 3 are also directed to proceed against the above named three convict warders and the said Chinnapapa for committing prison offences contemplated in Section 45 of the Prison Act, 1894 and Rule 297 of the Rules and deal with them in accordance with law. https://hcservices.ecourts.gov.in/hcservices/ This Habeas Corpus Petition is allowed in the above terms. Rao Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1.The Secretary to the Govt.of Tamil Nadu, Home Department, Secretariat, Chennai-600009. 2.The Director General of Prisons, Gandhi Irvin Salai, Egmore, Chennai-600008. 3.The Superintendent, Special Prison for Women, Vellore. 4. The Joint Secretary to Government, (Public Law & order) Fort.ST. George, Chennai.9 5. The Public Prosecutor, High Court, Madras. + 1 cc to Mr. M. Radhakrishnan, advocate (CC SR.No.32368) + 1 cc to Government Pleader (CC SR.32034) Pre-delivery Order in H.C.P.No.49 of 2009 GV(CO) EU 27.7.2009. https://hcservices.ecourts.gov.in/hcservices/