IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 5.2.2008 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU Writ Appeal No.1018 of 2006 Rajammal ... Appellant Vs. 1.State of Tamil Nadu, rep.by its Secretary, Home Department, Fort St.George, Chennai-600009. 2.The District Collector, Tiruvannamalai Semburvarayar District, Tiruvannamalai. 3.The District Collector, Vellore District, Vellore. 4.The Superintendent of Police, Tiruvannamalai Semburvarayar District, Tiruvannamalai. 5.Mr.Thayagaraj ... Respondents * * * Writ Appeal preferred under Clause 15 of the Letters Patent as against the order of the learned single Judge, dated 12.10.2001 made in W.P.No.22366 of 1993. Presented under Article 226 of the Constitution of India to issue a writ of mandamus directing the respondents to take appropriate action against the culprits involved in Natarajan Chettiar custodial death and jointly or severally to pay fair and adequate damages and compensation of Rs. Five lakhs to the family of the murdered Natarajan Chettiar. https://hcservices.ecourts.gov.in/hcservices/ * * * For appellant : Mr.J.Saravanavel For R.1 to R.4 : Mr.P.Subramaniam, G.A. For R.5 : Mr.V.Karthik for M/s.T.S.Gopalan & Co. * * * JUDGMENT ELIPE DHARM A RAO, J. The appellant herein has filed W.P.No.22366 of 1993 praying to issue a Writ of Mandamus, directing the respondents to take appropriate action against the culprits involved in her husband Natarajan Chettiar's custodial death and jointly or severally to pay fair and adequate damages and compensation of Rs.5 lakhs to the family of the deceased. 2. The case of the petitioner is that her husband Natarajan Chettiar was a pawn broker dealing with buying and selling of artificial diamonds and jewels on commission basis and in the month of August, 1993, one Kullah Achary alias Subramani, who was also in the same business, had given some jewels to her husband for selling and on 11.9.1993, the 5th respondent with a police party came to Vaniyambadi and enquired her husband and others about the jewels and only at that point of time, her husband came to know that the jewels were stolen ones; that the 5th respondent required her husband and others to come with him to Tiruvannamalai Police Station and demanded huge amount as bribe; that on receiving the information about the arrest of her husband, she sent her elder son Sridhar and thereafter her another son Anandhan to Tiruvannamalai Police Station and at last she came to know that her husband died on 11.9.1993 because of the police excesses and the dead body was thrown in Thachambattu Reserve Forest. She further submitted that she is a poor widow having a large family consisting of three daughters and three sons. 3. The respondents 4 and 5 filed separate counter affidavits, denying the allegations made in the writ petition. The 5th respondent would further submit that based on the complaint lodged by one Pandurangan, advocate about the loss of a gold chain weighting 7.5 sovereigns, he registered a case in Cr.No.417 of 1993 for the offences under Sections 457 and 380 IPC and based on the secret information that the deceased Natarajan Chettiar was involved in dealing with stolen ornaments, he brought him for the purpose of interrogation at Tiruvannamalai and during interrogation, the said Natarajan Chettiar informed him that he had only sold the gold chain https://hcservices.ecourts.gov.in/hcservices/ weighing about 30 gms. for a sum of Rs.5,000/= to one Vilasu and pleaded ignorance about having received any gold chain weighing 7.5 sovereigns, at which point of time, the complainant Advocate was also present. 4. The 5th respondent further submitted that while he was conducting investigation, he received a telegram that his mother sustained a fracture and hence he asked Natarajan Chettiar to come back the following week with information about the gold chain and he left Tiruvannamalai after seeking permission and returned only on 14.9.1993. He would further state that in the enquiry conducted under Section 145 of the Police Standing Orders by the RDO, Tiruvannamalai, the statements of Mr.Pandurangan, Advocate, who is the complainant and Dr.Thirugnanasambandam who conducted the post- mortem were recorded and the said Pandurangan deposed that no third degree methods were used and the post-mortem doctor deposed that the colour changes noticed on the body of the deceased was due to puterification changes and not due to any homicidal violence and after completion of the enquiry, the RDO sent a report dated 10.6.1994 holding that the Police Department was not responsible for the death of Mr.Natarajan Chettiar. However, a further enquiry was conducted by another RDO of Tiruvannamalai and after a cursory examination of materials and without examining anyone, he has forwarded a report to the Government, holding that the Police Department was responsible for the death of Mr.Natarajan Chettiar. He would further state that he do not know as to how Mr.Natarajan Chettiar died and that the writ petitioner is trying to make a fortune out of misfortune and is trying to pre-judge the defence, which is open to him during trial. 5. During the pendency of the writ petition, the Government has issued G.O.Ms.No.741 Public (Law and Order-A) Department, dated 8.7.1996, ordering to launch criminal prosecution against the Police Officers. From the materials placed on record it is seen that a case in C.C.No.1514 of 2000 was pending before the Judicial Magistrate, Tiruvannamalai as against the 5th respondent and others. Considering all these aspects and further since a criminal case is pending against the 5th respondent and others for the alleged custodial death of the deceased, the learned single Judge, has correctly restrained himself from entering into the discussion regarding the factual matrix of the case and further held that from the G.O.Ms.No.741 Public (Law and Order-A) Department, dated 8.7.1996, steps were taken for prosecuting the police personnel, and thus from the said G.O. it is clear that the husband of the petitioner died due to the torture by the police personnel of Veraiyur Police Station and the said conclusion of the Government is sufficient for awarding compensation. Thereupon, the learned single Judge, assessing the case of the petitioner regarding compensation, has ordered the respondents to pay a sum of Rs.3 lakhs as compensation. https://hcservices.ecourts.gov.in/hcservices/ 6. Aggrieved, the petitioner has come forward to file this appeal for enhancement of the compensation amount. The other findings of the learned single Judge, holding the respondents responsible to pay the compensation, reached finality since none of them has preferred any appeal. Therefore, this Court is not called upon to enter into the other findings of the learned single Judge, but concerned only with the quantum of compensation awarded in favour of the petitioner and whether she is entitled for enhancement of the compensation. 7. The learned counsel for the appellant/petitioner would rely on the following judgments, to bring home the point that in such cases of custodial deaths, the respondents are liable to pay the compensation. 1.SAHELI, A WOMEN'S RESOURCES CENTRE vs. COMMISSIONER OF POLICE, DELHI AND OTHERS [AIR 1990 SC 513], 2.STATE OF M.P. vs. SHYAMSUNDER TRIVEDI AND OTHERS [(1995) 4 SCC 262], 3.D.K.BASU vs. STATE OF W.B. [(1997) 1 SCC 416] and 4.D.RANGANAYAGI AND OTHERS vs. STATE OF TAMIL NADU AND ANOTHER [2000- 1-L.W. (Crl.) 96]. 8. In the first judgment cited above, reported in AIR 1990 SC 513, the Honourable Apex Court, while dealing with a case regarding police atrocities wherein a child of 9 years died, has directed the State Government to pay Rs.75,000/= as compensation to mother of the victim. The Honourable Apex Court has held in paragraph No.11 as follows: "An action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death. In cases of assault, battery and false imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity, loss of liberty and death. As we have held hereinbefore that the son of Kamlesh Kumari aged 9 years died due to beating and assault by the S.H.O., Lal Singh and as such she is entitled to get the damages for the death of her son. It is well settled now that the State is responsible for the tortuous acts of its employees. The respondent No.2, Delhi Administration is liable for payment of compensation to Smt.Kamlesh Kumari for the death of her son due to beating by the S.H.O. of Anand Parbat Police Station, Shri Lal Singh." 9. In the second judgment cited above reported in (1995) 4 SCC 262, the Honourable Apex Court has held as follows: "Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police https://hcservices.ecourts.gov.in/hcservices/ personnel would be available. Generally speaking, it would be police officials 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." ".... Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the courts because it reinforces the belief in the mind of the police that no harm would come to them if an odd 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 civilised society, governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial 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, the foundations of the criminal justice delivery system would be shaken and the civilisation itself would risk the consequence of heading towards perishing. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may lose faith in the judiciary itself, which will be a sad day." 10. In the third judgment cited above, reported in (1997) 1 SCC 416, the Honourable Apex Court has held as follows: "9. Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law-enforcing https://hcservices.ecourts.gov.in/hcservices/ officers is a matter of deep concern in a free society. These petitions raise important issues concerning police powers, including whether monetary compensation should be awarded for established infringement of the Fundamental Rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental. " “10. Torture” has not been defined in the Constitution or in other penal laws. “Torture” of a human being by another human being is essentially an instrument to impose the will of the “strong” over the “weak” by suffering. The word torture today has become synonymous with the darker side of human civilisation." "22. Custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchanism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights’ jurisprudence. The answer, indeed, has to be an emphatic “No”. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law." 11. In the fourth judgment cited above, reported in 2000-1-L.W. (Crl.) 96, a learned single Judge of this Court, while dealing with a case of custodial death of a person, has ordered payment of compensation of Rs.5 lakhs. 12. There is no quarrel regarding the propositions laid down in the above judgments. Article 21 of the Constitution guarantees protection of life and personal liberty. In the case on hand, serious allegations of custodial death are made against the guardians of law and as has been held by the Honourable Apex Court in D.K.Basu's case, supra, torture in custody flouts the basic rights of the citizens recognised by the Constitution and is an affront to https://hcservices.ecourts.gov.in/hcservices/ human dignity. It is now a well settled law that the award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. But, as has already been adverted to supra, the findings rendered by the learned single Judge, holding the respondents liable to pay the compensation to the petitioner reached the finality and therefore, it is not necessary for this Court again to go into such aspects. Further more, as has been correctly observed and held by the learned single Judge, since a criminal case is pending regarding the death of the deceased, any opinion expressed in these proceedings regarding the cause of death is unwarranted. 13. Now, therefore, this Court is called upon only to examine the quantum of compensation entitled by the petitioner. 14. While according to the post-mortem report, the deceased is aged 55 years at the time of his death, the appellant would dispute the same and submit that the deceased was only 50 years at the time of his death. However, the undisputed fact is that the deceased left behind him three sons and three daughters besides his widow, the appellant herein. The learned single Judge has pointed out in the order that there is no specific information about the status of the children of the deceased and further taking into consideration the age of the petitioner as 50 years, has granted a compensation of Rs.3 lakhs. Now, in the appeal memorandum, the appellant has submitted that her first son and his wife committed suicide on 26.3.1999, leaving behind their son Thulasidevan, aged about 10 years now and she has to take care and bring him up. The appellant has also furnished the details regarding her children as follows: 1.Banumathi – daughter – married to a clerk in a provision store. 2.Chandrika – daughter – married to a tailor in a village near Tiruttani 3.Anand – son – working as painter 4.Jothilakshmi – daughter – to be married 5.Jothi Ramalingam – son – working as helper in a photo studio. 15. It is also seen from the grounds of the memorandum of appeal that the appellant's sons were aged 23,20 and 15 years and daughters were aged 22, 18 and 17 years at the time of death of her husband. These particulars furnished by the appellant regarding her children were not disputed by the respondents in any way. Thus, it is clear that the family of the deceased is crunching under financial difficulties, presumably because of the sudden loss of the head of the family prematurely, that too in unusual circumstances, which are attributed to the police excesses. From the above particulars furnished by the appellant, which remain unchallenged, it is further clear that the appellant has to give in marriage a daughter and also two sons, besides looking after her grand-son, whose parents https://hcservices.ecourts.gov.in/hcservices/ committed suicide. Considering all these facts and circumstances of the case, we consider it appropriate to enhance the compensation ordered by the learned single Judge from Rs.3 lakhs to Rs.5 lakhs as has been prayed for by the petitioner in the writ petition. This writ appeal is allowed accordingly. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. Rao To 1.The Secretary to the Government of Tamil Nadu, Home Department, Fort St.George, Chennai-600009. 2.The District Collector, Tiruvannamalai Semburvarayar District, Tiruvannamalai. 3.The District Collector, Vellore District, Vellore. 4.The Superintendent of Police, Tiruvannamalai Semburvarayar District, Tiruvannamalai. + one cc to Mr. J. Saravana vel, Advocate, SR.5358 + one cc to Mr. T.S. Gopalan & Co, SR.5709 MRD(CO) RP 05.03.08 WA.No.1018/2006 https://hcservices.ecourts.gov.in/hcservices/