IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 25TH JANUARY 2008 / 5TH MAGHA 1929 OP.No. 10416 of 2000(M) ---------------------------------- PETITIONER: ------------------- GIJI, W/O. SREENIVASAN, PATTANAKATTIL HOUSE, ERUMATHALA, KEEZHMAD, ALUVA. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENTS: ----------------------- 1. STATE OF KERALA, REP.BY ITS CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, PLICE HEAD QUARTERS, THIRUVANANTHAPURAM. 3. SUB INSPECTOR OF POLICE, ALUVA. 4. KERALA STATE HUMAN RIGHT COMMISSION, REP.BY ITS SECRETARY, ARKANILAYAM M.P. PAPPAN, ROAD, VAZHUTHACAUD, TRIVANDRUM. BY GOVERNMENT PLEADER SRI.V.T.K.MOHANAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/01/2008, THE COURT ON 25/01/2008 DELIVERED THE FOLLOWING: OP.10416/2000 ORDER ON CMP. NO.17316/2000 IN OP. NO.10416/2000 DISMISSED 25.01.2008 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE FIR DT. 5/11/99 IN CRIME NO.854/99 OF ALUVA POLICE STATION. EXT.P2:- COPY OF THE INQUEST REPORT IN CRIME NO. 854/99 OF ALUVA POLICE STATION. EXT.P3:- COPY OF THE POSTMORTEM CERTIFICATE DT. 5.11.99. EXT.P4:- COPY OF THE REPORT OF THE VOLUNTARY NON-GOVERNMENTAL ORGANISATION MANUSHYAVAKASAVEDI. EXT.P5:- COPY OF THE REPRESENTATION DT. 18.11.99 SUBMITTED BY THE PETITIONER. /TRUE COPY/ P.A. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NO.10416 of 2000-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of January, 2008. JUDGMENT The original petition mainly concerns claim for compensation of Rs.5 lakhs to the petitioner who is the widow of one Sreenivasan who, according to the petitioner, died while he was in custody in a police lock up in the Aluva Police Station. 2. The incident leading to the matter occurred on 4.11.1999, when the deceased along with five others, were taken into custody from a rubber plantation in Kambikkad colony by the Sub Inspector of Aluva Police Station. According to the petitioner, he was cruelly manhandled by the police and consequently he succumbed to the torture on 5.11.1999. Consequently, the police registered a case of 'unnatural death', Ext.P1 being the F.I.R. in the above case. Ext.P2 is the inquest report and Ext.P3 is the postmortem certificate. According to the petitioner, there are certain ante mortem injuries which are evident from Ext.P3. The petitioner has relied upon various decisions of the Apex Court for claiming compensation from the respondents. 3. The third respondent has filed a counter affidavit wherein the OP 10416/2000 -2- allegations have been denied. It is stated that the petitioner's husband along with some others, were arrested while they were found engaged in gambling which is punishable under Sections 15 and 19 of the Kerala Gaming Act. After they were taken into custody, an F.I.R. was registered as Crime No.853/99 and they were kept in the T.V. Hall. At about 1 O' Clock the deceased showed symptoms of chest pain and suffocation. Immediate medical treatment was given by taking him to the Taluk Government Hospital. At 1.20 a.m. the duty doctor informed that he is no more. After registering a crime, the investigation of the case was conducted by Shri G. Laxmanan IPS, who was the then Sub Divisional Police Officer, Aluva. It is stated that in the investigation it was revealed that, the accused along with the deceased were gambling at Kulakkad in the quarry of Raphel on 4.11.1999 at 9.30 p.m. when the police party from Aluva arrested them. Even though they tried to escape from there, the police party managed to arrest after chasing them. They were brought to the police station and requested to remain in the hall where the TV was installed. When the accused were brought to the station, Shri George, Panchayat member concerned of Keezhmad Panchayat visited them and arranged food for them. After taking food some of the accused including the deceased requested for smoking, which was allowed by the police constable who was on sentry OP 10416/2000 -3- duty. Later, the deceased complained of chest pain and massaging was done by the co-accused, Shri James. The deceased demanded for saline water which was given to him and when the pain aggravated, he was taken to the Government Hospital, Aluva. 4. It is also averred in the counter affidavit that the postmortem examination was conducted at Medical College Hospital, Alappuzha by a team of Forensic Surgeons and four ante mortem injuries by way of simple abrasions, which are not sufficient to cause death, were noted. None of the co-accused have complained of any ill treatment at the hands of the police. The abrasions found on the deceased were caused when he fell into a quarry while trying to escape from arrest by the police. The deceased was not sent for medical examination for treatment as he “denied to go to the hospital, since the injuries were simple.” The postmortem findings and chemical analysis report on the viscera and other internal organs clearly stated that the death was caused due to “occlusive Coronary Artery Disease”. Therefore, the third respondent has taken a stand that there is no basis for the allegations raised in the original petition. 5. On 25.10.2007, this court passed an interim order directing the Kerala State Human Rights Commission to make available a copy of the report of enquiry conducted by them in respect of the incident. OP 10416/2000 -4- Subsequently, the report has also been produced before this court. The report reveals that the enquiry was taken suo motu by Kerala State Human Rights Commission on the basis of a report in the Indian Express dated 6.11.1999 that there was suspicion regarding the death of one Sreenivasan in Aluva Police Station on 4.11.1999. The findings in the report reveals that there is absolutely no evidence and not even a shred of paper for drawing an inference that the deceased was assaulted or manhandled while in police custody which resulted in his death. It is also stated that the other arrested persons also denied of having been subjected to any assault or manhandling. After quoting the statement of the Medical Officer that the deceased died due to “occlusive Coronary Artery Disease” it is stated in the report that no other evidence could be gathered to indicate a contrary view. Accordingly, the Superintendent of Police attached to the Kerala State Human Rights Commission did not recommend any further action in the matter which was accepted by the Commission. 6. Learned counsel for the petitioner submitted that, it is evident even from the counter affidavit that at the time of taking into custody, there were some injuries and as the police has not rendered any medical help to him, the above action is totally in violation of the directions of the Apex Court in D.K. Basu v. State of W.B. (AIR 1997 SC 610) and therefore it is evident OP 10416/2000 -5- and clear that the death was caused while in the lock up and hence the petitioner is entitled to be paid compensation. It is submitted that the death would have been caused only due to the torture executed by the police, as the deceased was only aged 38 years at the time of the incident and therefore, the version put forth by the respondents is not correct and this court in exercise of the jurisdiction under Article 226 of the Constitution, is empowered to award adequate compensation. 7. Learned counsel for the petitioner further relied upon the principles stated by the Apex Court in Smt. Nilabati Behera alias Lalitha Behera v. State of Orissa and others (AIR 1993 SC 1960) and Smt. Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble and another (2003 AIR SCW 5343), in support of the above contentions. In Nilabati Behera's case (AIR 1993 SC 1960), the issue considered was a claim for compensation due to custodial death. The Apex Court considered the question in the light of Articles 21, 32 and 226 of the Constitution of India and formulated various principles governing the grant of compensation in such cases. The facts of the case show that the enquiry report by the District Judge proved that fatal injuries were inflicted to the victim while in police custody resulting in his death and accordingly it was held that the OP 10416/2000 -6- respondents were liable. It is in these circumstances, the claim for compensation was considered favourably. In the subsequent decision, viz. D.K. Basu's case (AIR 1997 SC 610), it was held that any form of torture resulting in custodial death would fall within the definition of Article 21 of the Constitution, whether it occurs during investigation, interrogation, or otherwise. Their Lordships laid down various guidelines to be scrupulously followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures. Learned counsel for the petitioner submitted that one of the guidelines therein shows that the arrestee should be subjected to medical examination, if there are minor and major injuries present on his/her body, after recording the injuries at that time. It is therefore contended that there were ante mortem injuries and since no medical assistance were extended to the deceased at the time of his arrest, the same amounts to violation of the directions in the above judgment and hence the petitioner is entitled for compensation on that ground itself. The directions in the above judgment shows that item Nos.7 and 8 relate to the question of subjecting the arrestee for medical examination, if there are minor or major injuries present at the time of arrest. They are extracted below for convenience: “7. The arrestee should, where he so requests,be also examined at OP 10416/2000 -7- the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. the “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. 8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory Director, Health Services should prepare such a panel for all Tehsils and Districts as well.” Herein, the facts are different. The injuries which are described as ante mortem were only abrasions. In fact, the recording of those injuries would arise, as directed by the Supreme Court, if the arrestee requests to be examined the same at the time of arrest. In this case, the facts show that there was no such request by the deceased. Apart from that, the stand taken in the counter affidavit is that these abrasions were sustained by him when he fell into a quarry. Therefore, mere failure to record the injuries or to extend the service of a doctor, according to me, is not fatal as far as the issue herein is concerned. There is no evidence of any torture at the time of arrest or thereafter when he was brought into the police station. The report forwarded by the Human Rights Commission evidences that fact. The postmortem report shows that the four ante mortem injuries noted were simple abrasions which are not sufficient to cause death. The respondents have a case that none of the co-accused have complained of any ill treatment OP 10416/2000 -8- at the hands of the police. It is categorically stated in paragraph 6 of the counter affidavit that the deceased was not sent for medical examination for treatment, as he denied to go to the hospital telling that the injuries were simple. In the light of the above, I am of the view that the learned counsel is not right in forcing the plea that there is abject violation of the direction contained in AIR 1997 SC 610. Therefore, the said argument is rejected. 8. In the subsequent decision, viz. Smt. Shakila Abdul Gafar Khan's case (2003 AIR SCW 5343) also, even though it is stated that custodial death should invite compensation at the hands of the authorities, the Apex Court cautioned against false accusations of custodial torture and the necessity to examine carefully the allegations of custodial violence to find out whether they are genuine or sham attempt to gain undeserved benefits masquerading as victims of custodial violence. In view of the facts proved herein, there is no evidence that the deceased was subjected to any torture while in custody which resulted in his death. Medical assistance was given to him when he complained of chest pain. 9. Even though learned counsel for the petitioner vehemently pleaded for granting of compensation, I am afraid, in the light of the facts revealed as above, this is not a fit case for granting compensation in exercise of the power under Article 226 of the Constitution of India. OP 10416/2000 -9- Therefore, the Original Petition is dismissed, leaving open the right of the petitioner to prosecute the same if she is so advised, before the civil court or other forums. No costs. (T.R. Ramachandran Nair, Judge.) kav/ OP 10416/2000 -10- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No.10416 of 2000 - - - - - - - - - - - - - - - - - - - - - - JUDGMENT January, 2008.