IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 WP(C).No. 21126 of 2007(M) --------------------------------------- PETITIONER(S): ------------------------ T.PURUSHOTHAMAN, S/O.KUNHAMBU, AGED 46 YEARS, THAYAMBATH HOUSE, KELOTHU, PAYYANNUR, KANNUR. BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 2. SHRI.P.T.VASU, CIRCLE INSPECTOR OF POLICE, PARAPPANANGADI CIRCLE, THRISSUR. R1 BY GOVT. PLEADER SRI.M.A.ASIF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.21126/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RELEVANT PAGE OF THE MALAYALA MANORAMA DTD. 22.10.044. P2:- RELEVANT PAGE OF THE ARTICLE OF PUBLISHED IN MALAYALAM MAGAZINE DTD. 23.3.07. P3:- COPY OF THE ENQUIRY REPORT DTD. NIL CONDUCTED BY THE ASST. COLLECTOR. P4:- COPY OF THE STATEMENT FILED BY THE DISTRICT COLLECTOR KANNUR IN WPC. 22698/05. P5:- COPY OF THE DISCHARGE CARD DTD. NIL ISSUED BY THE PARIYARM MEDICAL COLLEGE. P6:- COPY OF THE ORAL EVIDENCE TAKEN BY THE ASST. COLLECTOR KANNUR DTD. 6.12.04 OF KUNHABDULLA C.P. THE CIVIL SURGEON GOVERNMENT HOSPITAL PAYYANNUR. P7:- COPY OF THE ORAL EVIDENCE OF DR. BHASKARAN VICE PRINCIPAL DTD. 8.12.04. TRUE COPY P.A.TO JUDGE tss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.21126 of 2007 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of August, 2010 J U D G M E N T The petitioner claims to be a social worker engaged in helping people who are victimized by money lending lobby and antisocial elements for extracting money, with support of police in the area of Payyannur. The petitioner and others have formed an association called 'Janavedi'. Petitioner's grievance in this writ petition is that, on 21.10.2004, the 2nd respondent, the then Sub Inspector of Police, Payyannur Police Station arrested and manhandled the petitioner, while he was engaged in a compromise talk to settle a dispute between two parties. In that manhandling, the petitioner was seriously injured and was admitted to hospital for several days. The petitioner submits that, in respect of that incident the District Collector, conducted an enquiry and submitted Ext.P3 report, wherein it has been specifically found that the W.P.(C)No.21126 of 2007 -2- 2nd respondent is guilty of police excesses in Payyannur area against the activists of Janavedi in which the petitioner and another were injured. The petitioner therefore submits that, the fact that, the 2nd respondent has indulged in unlawful police excesses has been proved beyond any doubt insofar as Ext.P3 has not been challenged by the 2nd respondent at any time despite being aware of the same. The petitioner is entitled to payment of adequate compensation for the violation of his human rights. He seeks a direction to the 1st respondent to pay an amount of Rs.50,000/- to the petitioner towards compensation. 2. No counter affidavit has been filed by the respondents. But the learned Government Pleader would vehemently oppose the prayer. He would contend that, the writ petition is not the remedy for claiming damages and the petitioner ought to have filed a suit for the same, insofar as the damage and the amount of compensation has to be decided on the basis of evidence to be adduced by the petitioner and this court cannot without such evidence W.P.(C)No.21126 of 2007 -3- direct payment of compensation of either Rs.50,000/- or any other amount to the petitioner. There is no representation even for the 2nd respondent. 3. I have considered the rival contentions in detail. As far as the legal question as to whether compensation can be awarded to a victim of police excess has been concluded in the affirmative by many decisions of the Supreme Court and this High Court. 4. The relevant portion of Ext.P3 report of the District Collector reads as follows: “6] W1 states that on 21-10-04 while he was settling a matter between Sugunan (W9) and C.K. Narayan [W8] at Chaitram hotel, he was arrested along with Prakashan and taken into the custody by the SI and constables of Payyanur police station. At about 7 p.m., SI along with constables Suresh, Stanley and Joseph started to torture W1. He was hit with the base of the rifle on the chest and side of ears. He fell unconscious and was subsequently taken to the govt. hospital, Payyanur by some journalists and then to Pariyaram medical college where he was admitted till 26-10-04 as In Patient. Later he was admitted to Parassinikadavu Ayurveda hospital for further treatment. W1 further states that there was no case registered initially against him and he had no injuries at the time of arrest at the Chaitram hotel. The statement of W1 has been supported by W4 and alleges that he was also tortured in the police station. W5 who is a scene witness also supports W1 and states that he has stood as surety for W1 while being granted bail. W7 is a witness to the incident of arrest at Chaitram hotel and states that W1 was in a healthy condition at the time of arrest. W10 submitted that he saw W1 lying on the floor from the closed grills and could hear his cries. The statements of the witnesses help the case of W.P.(C)No.21126 of 2007 -4- W1. The M.O.I. reveals that the gages of the police station were closed, public had gathered outside the gate. There was commotion and W1 was lying down on the floor crying out in pain. The C.D. adds substantial evidence to the case of the petitioners. The arrest of W1 and W4 was at 6.30pm on 21-10-04; the alleged torturing was at around 7pm. At about 7.30 p.m. civil surgeon of govt. hospital of Payyanur submits that he examined W1 whose condition was serious as he had high B.P., was unconscious and poorly responding to external stimulation. W1 had contusion and abrasion on the neck, diffuse contusion on left side of forehead and these injuries could be caused as alleged and not by a fall. Subsequently W1 was shifted to Pariyaram medical college at 8.24 p.m. on 21-10-04 and the wound certificate mentions that the injuries could be caused as alleged. After the discharge W1 was treated at Parassinikadavu ayurvedic hospital for pain and the doctors of this institution state that the injuries could be caused as alleged and are unlikely due to a fall on a hard surface. The medical evidence is positive, corroborates the statement of witnesses and also creates a strong chain of events. D2 [S.I. of Police] submitted that after the police received information that Sugunan is being confined by W1, he went to Chaitaram hotel and arrested W1 and W4. W1 resisted arrest and there was exchange of blows. They fell down the stairs leading to minor injuries to both. At about 9 p.m. Sugunan who had escaped appeared in the police station and lodged a complaint. He further submitted that W1 was in a healthy condition when he left the police station and they have not tortured any one. D2 also stated that W1 has a criminal record and there was no delay in registration of the case. The records also have been placed before the First class Magistrate of Payyanur. D1 and D3 support the statement of D2. W9 states that he was compelled to sign by force and agrees that he lodged a complaint on 21-10-04. The medical evidence and visual evidence shows that the injuries on W1 have been caused due to an assault and not due to a fall and this disputes the statement of D2. The video clipping in the C.D. shows that there was commotion outside the station and W1 was lying on the floor contrary to statements of D2, D1 and D3. There is also no reliable independent witness to support the submission of D2. There is strong corroborative evidence to show that the two healthy activists who had been taken to custody by the Payyanur police were ill treated and police excesses were committed on them on 21-10-04. Since there is no evidence to link C.I. of police, Payyanur to the incident I find him not guilty of the W.P.(C)No.21126 of 2007 -5- offence. There is also ambiguity and lack of evidence against the constables of the Payyanur police station hence they can be exonerated of the charges giving benefit of doubt. Since the case is filed before the First Class Judicial Magistrate, point no.1 is not considered and is outside the scope of the enquiry. Based on sufficient positive and corroborative evidence as well as a strong chain of events, I find Shri. Vasu P.T., S.I. of Police, Payyanur police station guilty of the alleged police excesses in Payyanur area against the activists of Janavedi.” The same is eloquent enough to lead to the unambiguous conclusion that the petitioner who is W1 referred to therein, and another were manhandled by the 2nd respondent illegally in excesses of the powers vested with him. It is also abundantly clear from the materials produced that, the petitioner had suffered injuries in such attack. I have no doubt in my mind that, the petitioner was subjected to not only psychical but also mental torture. Because of the same, his human rights have been clearly violated by the action of the 2nd respondent. The petitioner is entitled to be adequately compensated for the same. I am of opinion that Rs.50,000/- is too small an amount for the same taking into account the facts and circumstances. Since the 2nd respondent was acting in the course of his W.P.(C)No.21126 of 2007 -6- duties, the 1st respondent is vicariously liable for payment of that compensation. Accordingly the writ petition is disposed of with the following directions: The 1st respondent shall pay to the petitioner an amount of Rs.50,000/- towards compensation for the physical and mental torture caused to him by the 2nd respondent within one month from the date of receipt of a copy of this judgment. The said amount shall be recovered from the salary of the 2nd respondent if he is still in service. Even if he is not the 1st respondent shall recover the same from the 2nd respondent by revenue recovery proceedings. This is without prejudice to the right of the petitioner to file a suit for further damages if he has a case that he has suffered more damages than what has been awarded as above. S. SIRI JAGAN JUDGE shg/