In the High Court of Judicature at Madras Dated: 23.06.2009 Coram: The Honourable Mr.Justice P.K.MISRA and The Honourable Mr.Justice R.SUBBIAH Writ Appeal Nos.3120 and 3961 of 2003 and WAMP.Nos.6494 of 2003 and 2715 of 2004 W.A.No.3120 of 2003: 1. M.A.Meeran (died) 2. Ummal Bajiria 3. Aneesha 4. Ahamed Saleem 5. Mohammed Yousuf 6. Hasmath 7. Hasbia Appellants 2 to 7 are substituted as LRs.of the deceased sole appellant vide Order of Court dt.30.09.2008 made in WAMP.No.132/2008) ..Appellants ..vs.. 1. The Government of Tamil Nadu rep.by Secretary, Home Department, Fort St.George, Chennai-9. 2. The Director General of Police, Government of Tamil Nadu, Mylapore, Chennai-4. 3. The Superintendent of Police, Thanjavur District, Thanjavur. 4. The Inspector of Police, Athirampatnam Police Station, Thanjavur District. 5. John Britto, Sub Inspector of Police, Athirampatnam Police Station, Thanjavur District. https://hcservices.ecourts.gov.in/hcservices/ 6. Veerayyan, Sub Inspector of Police, Athirampatnam Police Station, Thanjavur District. ..Respondents W.A.No.3961 of 2003: 1. The Government of Tamil Nadu rep.by Secretary, Home Department, Fort St.George, Chennai-9. 2. Director General of Police, Government Estate, Chennai-2. 3. The Superintendent of Police, Thanjavur District, Thanjavur. 4. The Inspector of Police, Athirampatnam Police Station, Thanjavur District. ..Appellants ..vs.. 1. M.A.Meeran (died) 2. John Britto, Sub Inspector of Police, Athirampatnam Police Station, Thanjavur District. 3. Veerayyan, Sub Inspector of Police, Athirampatnam Police Station, Thanjavur District. 4. Ummal Bajiria 5. Aneesha 6. Ahamed Saleem 7. Mohammed Yousuf 8. Hasmath 9. Hasbia Respondents 4 to 9 are substituted as LRs.of the deceased 1st respondent vide Order of Court dt.30.09.2008 made in WAMP.No.133/2008) ..Respondents Writ Appeals filed under Clause 15 of Letters Patent, against the order of a learned single Judge dated 08.08.2003 made in W.P.No.6769 of 1995 is filed under Article 226 of the Constitution of https://hcservices.ecourts.gov.in/hcservices/ India to issue a writ of mandamus to direct the police officials for pay compensation for deprivation of my fundamental rights for detrining the 5th and 6th respondents and to return Rs.80,000/- which was seized from the house of the petitioner and deposited in court. For Appellants : Mr.Balasubramaniam, Spl.G.P., (W.A.3961/2003) For Respondents : Mr.K.M.Ramesh for R4 to R9 COMMON JUDGMENT (Judgment of the Court was delivered by R.SUBBIAH, J.,) These two appeals are directed against the order dated 08.08.2003 in W.P.No.6769 of 1995, whereby, the learned single Judge directed the State to pay a sum of Rs.3 lakhs as compensation to the 1st appellant in W.A.No.3120 of 2003, who was the writ petitioner (died during the pendency of this appeal) for his illegal detention by the Sub-Inspector of Police, Athirampatnam Police Station. 2. W.A.No.3120 of 2003 is filed by Meeran (writ petitioner) for enhancement of compensation and W.A.No.3961 of 2003 is filed by the State for reduction of compensation. Since both the appeals are filed against one order, they are disposed of by a common judgment. The parties are referred to as they are described in W.A.No.3120 of 2003 to avoid confusion. During the pendency of appeal, the said Meeran died and his legal representatives were brought on record as appellants. 3. It is the case of the appellants that on 27.11.1994 at about 7.30 PM, the deceased appellant was taken to Athirampatnam Police Stat6ion pursuant to a complaint lodged by one Tajudeen on the previous day i.e.26.11.1994 alleging that the deceased appellant and others waylaid him and decamped with a sum of Rs.70,000/-. Though the deceased was taken to the police station on 27.11.1994, till 3.12.1994, the arrest of the deceased appellant was not recorded. In between 27.11.1994 and 3.12.1994, the deceased appellant meted out severe physical torture at the hands of 5th and 6th respondents. In fact DINA MALAR Tamil daily published a news about the arrest of the appellant in the publication of its issue dated 30.11.1994. That apart, when one Palanivel, Advocate visited the police station on 02.12.1004 to take the deceased appellant on bail, on the instructions given by the mother of the deceased appellant; but the police officials disputed the arrest of him. But the said Advocate had seen the deceased appellant sitting near the window opposite to the Sub-Inspector's table. Thereafter, the Advocate reported the same to the mother of the deceased appellant. Subsequently, a lawyer's notice dated 02.12.1994 was sent by one Mr.V.Lakshmanan, Advocate to the respondents police for immediate release of the https://hcservices.ecourts.gov.in/hcservices/ deceased appellant. After realising that the matter was going out of their control, the 6th respondent produced the deceased appellant before the Judicial Magistrate on 03.12.1994 at 5.30 AM. On production, the Judicial Magistrate remanded the deceased appellant to judicial custody. Since the deceased appellant was inflicted with severe injuries, it was explained by the police before the Judicial Magistrate that when the arrest was sought to be made at 5.30 AM on 03.12.1994, the deceased appellant attempted to escape, fell down and sustained severe injuries and for which, he was given treatment. 4. But, the respondents had denied the case of the appellant that the deceased appellant was taken by the 6th respondent on 27.11.1994 at 7.30 PM. In other words, the respondent police totally denied the illegal detention in between the period 27.11.1994 and 03.12.1994 as stated by the appellants. But the deceased appellant had approached this Court by way of writ petition, namely, W.P.No.6769 of 1995, to punish all the police officials for illegally confining him for six days in different police stations and also direct the respondents to pay a sum of Rs.5 lakhs as compensation for deprivation of his fundamental rights, loss of dignity and injuries sustained while he was confined in the illegal custody. 5. After going through the documents including the affidavits filed by the Advocates and hospital records, the learned single Judge came to the conclusion that the 6th respondent has effected the custody of the deceased appellant and kept him under illegal custody from 27.11.1994 at 7.30 PM to 03.12.1994 and directed the 1st respondent to pay a sum of Rs.3 lakhs as compensation to the deceased appellant for the illegal detention by the 6th respondent. 6. The present appeals were filed only questioning the amount of Rs.3 lakhs awarded by the learned Judge. Since in both the appeals, only the quantum of compensation is questioned, now there is no need for us to go into the aspect of liability of respondents to pay the compensation. 7. The learned Additional Government Pleader submitted that as per G.O.Ms.No.1049 dated 04.11.2003, the appellant is eligible to get a sum of Rs.one lakh. Hence, the amount of Rs.3 lakhs awarded by the learned single Judge has to be reduced to Rs.one lakh in view of the said G.O. Per contra, the appellants prayed for enhancement of compensation. The short question involved in these appeals is, whether the amount of Rs.3 lakhs awarded as compensation is justifiable or it has to be reduced to a sum of Rs.one lakh on the line of G.O.Ms.No.1049. 8. It is not disputed by the respondents that the deceased appellant was in illegal custody from 27.11.1994 to 03.12.1994 i.e. more than a week and he was harassed by the 6th respondent. Therefore, now it is clear that there is a clear violation of https://hcservices.ecourts.gov.in/hcservices/ fundamental rights guaranteed under Article 21 of the Constitution of India. The learned single Judge, while dealing with the writ petition, by referring a judgment reported in the case of D.K.Basu vs.. State of West Bengal (1996(4) Crimes 233 SC), wherein the guidelines are stipulated for the police while making arrest, found that the 6th respondent had given a go-by to all the said guidelines and taken the deceased appellant to custody and tortured by keeping him under the illegal detention. 9. The facts would clearly show that the appellant and his family members would have undergone untold sufferings. Under such circumstances, it is doubtful whether the compensation could be quantified for the violation of constitutional rights by the Executive authorities of the State. In this regard, a useful reference could be placed upon the judgment reported in S.P.S.Rathore ..vs.. State of Haryana and others (2005)10 SCC 1), wherein the Hon'ble Apex Court, while dealing with the case of this nature, stated that the courts while exercising jurisdiction under Article 32 or 226 can award compensation for the violation of constitutional rights but such a power should not be lightly exercised. Further, in the said decision, a reference has been made to the earlier decision of the Supreme Court reported in Nilambati Behera ..vs.. State of Orissa ((1993) 2 SCC 746), as follows: "11. In Nilabati Behera v. State of Orissa ((1993) 2 SCC 746 a writ petition was filed under Article 32 of the Constitution for determining the claim of compensation consequent upon the death of the petitioner’s son in police custody. In view of the denial by the State that death was due to police harassment when the deceased was in police custody, this Court gave a direction to the District Judge, Sundergarh in Orissa, to hold an inquiry into the matter and submit a report. The District Judge reached the conclusion that it was a case of custodial death. In view of the dispute as to the correctness of the findings in the report of the District Judge, the matter was examined afresh by this Court in the light of the objections raised. This Court also reached the same conclusion on a reappraisal of the evidence adduced at the enquiry. On this conclusion, the question arose as to the liability of the State for payment of compensation for custodial death. The Court held that: (SCC p.762, para 17) “‘[A] claim in public law for compensation’ for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is ‘distinct from, and in addition to, the remedy https://hcservices.ecourts.gov.in/hcservices/ in private law for damages for the tort’ resulting from the contravention of the fundamental right.” The Court further observed that, “The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.” Justice A.S. Anand (as His Lordship then was) in concurring opinion observed that, “34. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilise public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting ‘compensation’ in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ‘monetary amends’ under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of ‘exemplary damages’ awarded against the wrongdoer for the breach of its public law duty and is https://hcservices.ecourts.gov.in/hcservices/ independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.” It was further observed that, “35. This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law — through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, is possible. … It is a sound policy to punish the wrongdoer and it is in that spirit that the courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned.” This legal position has been reiterated in D.K. Basu v. State of W.B". 10. Bearing the dictum laid down by the Hon'ble Supreme Court in mind, we are of the view that the purpose of awarding amount of compensation is not only to compensate the victim but also for penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. Hence, as stated supra, the amount https://hcservices.ecourts.gov.in/hcservices/ of compensation cannot be quantified for the violation of fundamental rights by the Officers of the State. When a victim approaches the High Court by way of Article 226 for compensation, especially based upon the necessary undisputed facts and supporting materials and also on the admitted liability by the respondent as in this case, the Court may assess the damage caused to the victim and award compensation accordingly. So far as this case is concerned, the learned Judge had deeply gone through the entire materials placed before him and awarded a sum of Rs.3 lakhs as compensation. Hence, we do not find any error in the compensation awarded by the learned single Judge. Taking into consideration the facts and circumstances of the case, we are not inclined to accept the submission made by the learned Special Government Pleader that the amount of Rs.3 lakhs awarded by the learned single Judge is highly excessive. Similarly, we do not find any ground for enhancing the compensation amount as prayed for by the legal heirs of the deceased appellant. Consequently, both the writ appeals are dismissed. 11. In view of the dismissal of both the writ appeals, the legal heirs of the deceased appellant in W.A.No.3120 of 2003 are entitled to get compensation amount along with interest, which is lying in deposit in Indian Bank, Esplanade Branch. Upon the receipt of the copy of this order, the appellants can approach the Registrar General of this Court to have the amount, already deposited, released in their favour. No costs. Consequently, connected WAMPs.are closed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar gl To 1. The Secretary to Government of Tamil Nadu Home Department, Fort St.George, Chennai-9. 2. The Director General of Police, Government of Tamil Nadu, Mylapore, Chennai-4. 3. The Superintendent of Police, Thanjavur District, Thanjavur. 4. The Inspector of Police, Athirampatnam Police Station, Thanjavur District. https://hcservices.ecourts.gov.in/hcservices/ 5.The Section Officer, Account Section, High Court, Madras. + 1 cc to Government Pleader,SR.25410 + 1 cc to Mr.K.M.Ramesh,Advocate,SR.25280 W.A.Nos.3120 and 3961 of 2003 KA(CO) EM/9.7.09 https://hcservices.ecourts.gov.in/hcservices/