IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29/10/2004 CORAM: THE HONOURABLE MR.JUSTICE K.P.SIVASUBRAMANIAM W.P.No.4716 of 1997 M.Latchumanan .. Petitioner -vs- 1. The Union Territory of Pondicherry rep. by the Chief Secretary Government of Pondicherry Pondicherry. 2. The Inspector General of Police Police Headquarters Pondicherry-605 001. 3. The Superintendent of Police (South) Natesan Nagar Pondicherry. 4. The Station House Officer Thirukkanur Police Station Thirukkanur Pondicherry-605 501. 5. The Deputy Inspector General Central Bureau of Investigation Haddows Road Chennai-600 006. .. Respondents PRAYER: Writ petition filed filed under Article 226 of the Constitution of India for the issue of a writ of Mandamus directing the second respondent to file a First Information Report on the basis of the complaint made by the petitioner on 3.11.199 hand over the investigation of the same to the Central Bureau of Investigation, the fifth respondent herein; directing the fifth respondent to take over the investigation of the case and proceed as per law; directing the first respondent herein to provid e all assistance to the fifth respondent in this respect; directing respondents-1 to 4 to provide all documents pertaining to the case free of cost to the petitioner to facilitate him to assist and cooperate with the investigation by the fifth respondent ; directing the first respondent to pay to the petitioner a just and reasonable amount as compensation and to award costs. For petitioner : Mr.P.Rathinam For respondents-1 to 4 : Mr.Vijay Anand for Govt. Pleader (Pondicherry) For 5th respondent : Miss V.Velumani Addl. Government Pleader :ORDER The petitioner has prayed for a direction to the second respondent to hand over the investigation of the complaint to the petitioner dated 3.11.1996 to the Central Bureau of Investigation and to direct the C.B.I. to take over the investigation and pro ceed as per law. The petitioner has further prayed for a direction to the first respondent to pay to the petitioner, just and reasonable amount as compensation. 2. The petitioner, claiming to be an M.Sc. (Agriculture) graduate, states that he had worked as Scale-I Officer in the UCO Bank between 1 979 and 1987. Thereafter, he wanted to serve the public and therefore, he resigned his job and settled in his villa ge. In 1984, he started to run a cinema theatre and also started a Middle School, namely, Sudha English School in 1990. In 1993, he also started an Institute by name Indira Gandhi Industrial Training Institute. As a result of his activities in the are a, he was widely known in Thirukkanur and also at Pondicherry. He claims to be a law abiding citizen, hailing from a family of good economic background and he has never been violating law under any circumstances. He would further state that during Augu st, 1995, he placed orders with one Techno Science Industries in Chennai for the purchase of certain machinery and tools for the students in the training institute. The total cost of machinery was Rs.3.80 lakhs and he has paid Rs.2.70 lakhs in cash. Fo r the balance of Rs.1.10 lakhs, he issued a post-dated cheque dated 2 4.10.1995. However, after receiving the cash, the supplier had supplied machinery only in part and even the partly delivered machineries were found to be with serious defects. They we re also of poor quality. Therefore, he immediately sent a telegram to the industry informing that they should supply the shortage and rectify the defects. On 6.1.1996, he sent a registered letter pointing out the defects and advised them not to present the post-dated cheque. He also indicated his mind to initiate proceedings under the Consumer Protection Act and filed C.C.No.113 of 1996 on the file of the District Consumer Disputes Redressal Forum, Pondicherry. While the same was pending and negotia tion was going on between himself and the supplier, the supplier clandestinely presented the post dated cheque during April, 1996, despite the petitioner's advise against the presentation of the cheque. Thereafter, the supplier chose to file a private c omplaint against the petitioner for an alleged offence under Section 138 of the Negotiable Instruments Act before the VII Metropolitan Magistrate, Chennai. On receipt of the summons, the petitioner duly appeared in the case and also engaged a counsel by name Mr.Chemmal, an Advocate practising at Pondicherry. They were appearing from time to time before the Magistrate. However, on 10.10.1996, he was unable to appear, as he had to attend a funeral ceremony of his close relative and the counsel, who was also his relative, had to attend the funeral ceremony. Therefore, the petitioner had sent a telegram to the Magistrate's Court, praying condonation of the absence and requesting adjournment. 3. On 29.10.1996, when the petitioner was proceeding towards the school via Thirukkanur police station, Mr.Arumugam, Sub Inspector of Police, came running from the police station towards the petitioner and requested him to accompany him to the police st ation. The petitioner was asked to sit and was offered tea. The petitioner was further informed that a warrant has been issued by the Chennai Court and they were required to execute it. The petitioner was further advised that he should take steps to r ecall the warrant, as otherwise, he would be compelled to arrest him and produce him before the Court at Chennai. The Sub Inspector of Police also stated that he and his Inspector may be paid a sum of Rs.5,000/- for settling the matter. As the petition er did not agree, the Sub Inspector called the Head Constable and told him that he had arrested the petitioner and that the petitioner should be put in the lock-up. The petitioner was put in the lock-up by the Constable. The news of the arrest spread an d his Advocate Chemmal came rushing to the police station. After the petitioner apprised him of the incident, the Advocate talked to the Inspector Rameshkanthan and Arumugam, the Sub Inspector. The Advocate was angrily informed that he could do what he can do in the Court. The Advocate advised the petitioner not to pay any money to the police and that he would move the Court for bail. Around 2.00 p.m., the petitioner was offered meals brought from the hotel, which he had refused. He also refused to take the tea which was offered in the evening. 4. The petitioner further states that at about midnight, he was asked to come out of the lock-up and the Inspector threatened the petitioner. He had directed the police personnel present there to beat the petitioner. The Sub Inspector also instigated others to beat the petitioner. Immediately, the Head Constable started to beat the petitioner with lathi indiscriminately all over the body. Even though he cried for help, he was severely beaten up by the policemen. As a result, he swooned. At about 4.00 a.m., when he was woken up, he found himself in the lock-up with bleeding injuries all over the body. His shirt and dhothi were fully drenched in blood due to the injuries. The petitioner was made to undress and removed the Khadi shirt and dhothi which was worn by him with blood stains. The petitioner was offered colour shirt and white dhothi and before putting them on, his bleeding injuries were washed with water. 5. From Thirukkanur, he was taken to Villupuram by the police jeep and from Villupuram to Chennai by Transport Corporation bus. The petitioner further submits that on 30.10.1996, he was produced before the Magistrate and the petitioner claims that he h ad shown the injuries sustained by him the previous night at the hands of the police personnel. The Magistrate directed the police to take the petitioner to the Government Stanley Hospital. There he was medically examined and found to have sustained si x injuries and the Chief Medical Officer, who conducted the medical examination, directed admitting the petitioner as in-patient. On 1.11 .1996 at 2.00 p.m., he was discharged. The petitioner states that for sometime, he was undergoing treatment for the injuries of fracture sustained by him. He went to Thirukkanur at 7.30 a.m. and on coming to know of the brutal police attack, the villagers were disturbed and started agitation of road roko demanding stern action and punishment of the policemen. Shopkeepers also voluntarily participated in the agitation. This made the senior Police and the Revenue Officials to respond to the situation and the Sub Divisional Magistrate and the Superintendent of Police visited the place and pacified the agitated publ ic after assuring that an enquiry will be conducted by the Sub Divisional Magistrate. He, along with few village elders, met the Senior Superintendent of Police and apprised him of the facts and the said officer assured to take appropriate action. 6. The petitioner further states that on 3.11.1996, the Sub Divisional Magistrate held an enquiry and recorded the evidence of the petitioner, his Advocate and other witnesses. After the enquiry was over, the petitioner preferred a complaint to the fou rth respondent. On 5.11.1996 also, he sent a letter by Registered Post to the fourth respondent to take action in accordance with law. This was followed by another representation dated 6.11.1996. As there was no proper follow-up action, another reminde r was sent to the third respondent on 30.12.1996 and in view of the inaction even to register the First Information Report, he sent a detailed representation on 25.1.1997 addressed to the Chief Minister of Pondicherry and the Home Minister, seeking their intervention. In spite of repeated representations, there has been no positive response from the respondents and hence, the writ petition. 7. In the counter affidavit filed by the respondents, while denying the various allegations, the third respondent, who has filed the counter affidavit, has stated that the petitioner has projected a false version of the incident. The very statement of the petitioner himself before the Sub Divisional Magistrate would disprove the contention of the petitioner. Before the Magistrate, he had given a different version regarding the occurrence. The learned Sub Divisional Magistrate, who enquired into the i ncident, has given a categorical finding to the effect that neither the Sub Inspector nor the Circle Inspector were present at the time of the assault on the petitioner. The present writ petition has been filed only with a view to cover up the misdeeds of the petitioner himself. 8. The respondents state that they were only discharging their lawful functions enjoined on them in executing the non-bailable warrant issued by the VII Metropolitan Magistrate, Chennai, in C.C.No.3630 of 1 996. The Non-Bailable Warrant has been issued as a result of the failure of the petitioner to attend the Court on the date of enquiry on 10.10.1996. The fact of receipt of tapal from the Circle Inspector enclosing the Non-Bailable Warrant was recorded in the General Diary at 11.10 hours on 29.10.19 96. The fourth respondent took up further legal action to execute the judicial order in accordance with law. The fourth respondent arrested the petitioner at 11.30 hours at Tiruvannamalai Road just at a distance of about 200 metres from the police stat ion. Soon after the arrest, the petitioner was apprised about the grounds on which he was arrested. Also, with a view to inform the arrest to his close relative, the fourth respondent took steps by sending P.C.1492 at 13.30 hours to the address given b y the petitioner. The Police Constable went to the address and the fourth respondent was informed by wireless that the petitioner's wife was not found in the house. However, the Advocate was available and he was informed. Subsequently, the Constable a lso informed the wife of the petitioner about the arrest of the petitioner. These facts have been recorded in the General Diary at 20.20 hours on 29.10.1996. Therefore, the arrest of the petitioner was in order. 9. It is further stated that the Advocate requested the release of the petitioner on bail, which was, however, not possible, in view of the orders of Court. Granting bail would have amounted to disobeying the judicial order and the fourth respondent di d not have the power to issue such a bail and therefore, the fourth respondent expressed his refusal to enlarge the petitioner on bail. However, the Advocate got wild without any justification and threatened the fourth respondent stating that he would t ake legal action against him and other police officials. The Advocate was not even prepared to listen to the proper reply given by the fourth respondent. The petitioner levelled false allegations against the fourth respondent, only in order to cover up his own misdeeds. The allegations made against the fourth respondent are totally false and incorrect. The statement made before the Sub Divisional Magistrate would disprove the claims of the petitioner. In the statement before the Sub Divisional Magis trate, the petitioner has stated that he had asked the Headmaster of the petitioner school to get some money from the cashier of the theatre and that the Headmaster came to the police station along with a cash of Rs.1,000/-, out of which, the petitioner had given a sum of Rs.200/- to the Head Constable. The petitioner had further stated that his Manager of the Institute also came to the police station. The various other particulars narrated in the statement by the petitioner before the Sub Divisional Magistrate disclose that there was no truth in the various allegations now stated in the affidavit in support of the writ petition. 10. The third respondent further states that the petitioner was involved in various other criminal complaints as accused. For instance, in Crime No.11 of 1986, registered under Section 353, I.P.C. and Crime No.6 of 1992 under Sections 341, 323 and 506, I.P.C. He had also badly behaved with various other authorities in the Government of Pondicherry regarding the running of the Theatre and the Institute. The respondent further submits that as regards the alleged incident, the petitioner had already mad e a complaint to the VII Metropolitan Magistrate, Chennai, who was seized of the matter and it was for that judicial forum to go into the correctness of the complaint given by the petitioner. 11. The allegation that a sum of Rs.5,000/- was demanded as gratification is also denied. It is further stated that the petitioner attempted to escape from the custody of the fourth respondent police station in the absence of the fourth respondent and hence, the Constables who were in charge of the station, used minimum force to apprehend the petitioner. The petitioner also man-handled the police constables Narayanan and Balakrishnan. Neither the fourth respondent nor any police constable attached t o the police station had caused injuries or assaulted the petitioner. When the petitioner was taken to Madras, at Villupuram, they had to board the Corporation bus proceeding to Madras. But, before boarding into the bus, the petitioner again attempted t o escape from the custody and as a result, some force have been used by the police escort people. It is only in that background, the petitioner sustained injuries and treatment was given at the nearest private hospital at Villupuram for want of time. T he various contentions regarding the alleged treatment given to the petitioner were also denied and the allegation that he was handcuffed was also denied. The petitioner was treated politely. The Advocate, who was the relative of the petitioner, did no t behave properly with the police. He was demanding the release of the petitioner immediately knowing fully well that the fourth respondent has no authority to do so when the Non-Bailable Warrant is pending. Regarding the demand for compensation, the respondents state that the petitioner wants to make a fortune out of the proceedings before this Court and that he was not entitled to any such relief. 12. A reply affidavit has been filed by the petitioner, refuting the contentions raised in the counter affidavit. The petitioner states that in order to protect the erring police, whenever allegations of violation of human rights were made, the police resorted to resisting the allegations terming them as false. Though it is true that he made a statement before the Sub Divisional Magistrate, the other contentions regarding the statement as made by the respondent, were not borne out by records. The al leged statement enclosed in the typed set, which was attributed to the petitioner, was false. The enquiry before the Sub Divisional Magistrate was conducted on 3.11.1996 around late in the evening and it was 9 O' Clock when the petitioner was enquired a nd the statement was made only orally. He was answering the Sub Divisional Magistrate also whenever he had put specific questions. The entire statement was handwritten by some other person attached to the Sub Divisional Magistrate and after completion of the statement, he was asked to sign the statement. However, in view of the fact that his right hand index finger was fractured, he could not sign and therefore, he put up his thumb impression, which was obtained hurriedly. Though he requested for a copy of the statement, the same was not furnished to him. He also wanted to give a complaint to the Sub Divisional Magistrate to file it as a First Information Report. To his dictation, one G.Sukumaran wrote out the complaint and he put his thumb impre ssion and the complaint was submitted to the Sub Divisional Magistrate there itself. His complaint was acknowledged. The petitioner was directed to present the statement to the fourth respondent to be filed as First Information Report. The petitioner f urther states that the facts regarding his arrest were twisted only to show that the Non-Bailable Warrant was being executed. The statement regarding the alleged information to the close relatives of the petitioner were also false. A supporting affidav it of the Advocate Chemmal was also being filed. As regards the two previous cases to which reference has been made, relating to the occurrences on 14.2.1986 and 17.1.1992, the petitioner states that they have ended in acquittal. The statement that he attempted to escape from custody was only a ruse created to suit the statement of the police. No treatment was given in a private hospital at Villupuram. 13. Mr.P.Rathinam, learned counsel for the petitioner, restricted his submissions only to the relief of giving directions to the first respondent to pay a just and reasonable amount as compensation and he has not pressed for the other reliefs for entrus tment of the investigation to the Central Bureau of Investigation, considering the passage of time. 14. Learned counsel contends that the custodial violence in this case was totally inhuman and it is not as though the complaint against him was of any grave criminal misbehaviour. The arrest was only a sequel to a complaint under Section 138 of Negotia ble Instruments Act and the warrant issued by the Magistrate at Chennai. But the manner in which the petitioner was arrested and dealt with by the police has been very positively stated in the Sub Divisional Magistrate's enquiry itself and in fact, the Sub Divisional Magistrate has given findings that the respondents were guilty of custodial violence. The previous cases in which the petitioner was stated to be involved had, in fact, ended in acquittal, which has been suppressed by the respondents in t he counter affidavit. The statement thus made in the counter affidavit regarding the past conduct of the petitioner was intended only to prejudice the mind of the Court. There was absolutely no denial of the fact that the petitioner had sustained sever al injuries while in custody and there is no justification why the petitioner was not taken to the Government Hospital and instead, taken to the to a private Doctor. It was only to suppress the real nature of the injuries sustained by the petitioner. L earned counsel also produced a series of photographs showing the injuries sustained by the petitioner. According to the learned counsel, admittedly, the petitioner was very well known in the area and he was a social worker. The conduct of the responden ts has resulted in not only causing injuries to the body of the petitioner, but also to his reputation. Therefore, he would plead for adequate and just compensation. 15. Learned Government Pleader (Pondicherry) appearing for respondents-1 to 4 contends that the antecedents of the petitioner of being involved in few cases would expose the petitioner as a violent and desperate character. The police was only executing the Non-Bailable Warrant which they were bound to comply with. While doing so, the petitioner resorted to violent and abusive behaviour, and even so, the police had used only permissible minimum force to bring him under control and to take him into cus tody. The petitioner had resorted to man-handling the police personnel and therefore, had to be brought under control. In Villupuram, he was sent to a private Doctor, as the police personnel were hard pressed for time, as the arrested person had to be produced before the Magistrate at Madras. Learned Government Pleader further contends that the trend of recent judgments of the Supreme Court was in favour of directing the parties claiming damages or compensation for alleged custodial violence or cases of electrocution due to bad management of electrical lines, to go before the civil Court instead of invoking Article 226, bearing in mind that several factual and evidentiary issues have to be determined. 16. In reply to the issue of alternative remedy, learned counsel for the petitioner contends that the need to go before the civil Court would arise only when facts and evidence are not available before the Court. In this case, the statements of the wit nesses and the report of the Sub Divisional Magistrate were very much available. Even in a recent judgment relating to a rape victim by railway employees, the Supreme Court held that a writ petition was maintainable notwithstanding the availability of a lternative remedy before the civil Court vide CHAIRMAN, RAILWAY BOARD V. CHANDRIMA DAS (AIR 2000 SC 988). 17. I have considered the submissions of both sides. 18. The reason for the arrest of the petitioner is undoubtedly justifiable in this case, in view of the Non-Bailable Warrant by the Court and hence, this is not a case of illegal detention or wrongful confinement. The issue which arises for considerati on is whether there was custodial violence and whether the admitted injuries on the body of the petitioner justify the claim of the respondents that they had to use mild force to bring him under control, as he turned violent at the police station and sub sequently tried to escape at Villupuram. Injuries while in the custody is admitted in the counter affidavit. Two occasions have been mentioned when the police is alleged to have used mild force. The first instance is at the time when he was apprehende d and brought to the police station and as he tried to resist, minimum force was alleged to have been used and he is stated to have manhandled the police constables Narayanan and Balakrishnan. The second incident is at Villupuram when the petitioner is stated to have attempted to escape. 19. The report of the Sub Divisional Magistrate discloses that the statement of the respondents are at variance in several aspects. This Court need not be guided by the findings in the report, but it would be useful to extract the entire report, as it contains the gist of the statements of all witnesses, which would justify the ultimate findings of the Sub Divisional Magistrate. The full text of the report is as follows: " The Hon'ble VII Metropolitan Magistrate of George Town, Madras has issued a Non-Bailable Warrant against Thiru M.Lakshmanan, Correspondent, Indira Gandhi I.T.I. Of Thirukkanur in a case No.3630/96 under Section 138 of Negotiable Instruments Act. The w arrant with necessary endorsement was duly forwarded to the Station House Officer of Thirukkanur for necessary action. 2. Accordingly the Station House Officer of Thirukkanur and Head Constable Chandrasekaran have arrested the said Thiru Lakshmanan on