IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.04.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.14781 of 2004 Alarmelu Mangai .. Petitioner Vs. 1.The Secretary to the Government of Tamil Nadu, Public Department, Fort St. George, Chennai-9. 2.The Director General of Police, C.R.P.F., C.G.O Complex, Lodhi Road, New Delhi-110 003. 3.The Additional Deputy Inspector General of Police, G.C., C.R.P.F., Avadi, Chennai-65. 4.The Superintendent of Police, Chengai East District, Chennai-16. 5.Mr.S.K.Dey (Subethar Major) Inspector of Police, Type III, Quarters No.324, GC, CRPF Avadi. Chennai-65. 6.Mr.Thangadurai, Inspector of Police, Muthapudhupet, Incharge, F2 Tank Factory Police Station, Avadi, Chennai-65. 7.Mr.Suresh, Head Constable Muthapudhupet, Incharge, F2 Tank Factory Police Station, Avadi, Chennai-65. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents to pay compensation of Rs.50 lakhs in favour of the petitioner for the wrongs committed on her by them. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.V.Vaithiyalingam for Mr.M.Gnanalingam For Respondents : Mr.R.Neelakandan, GA for R1 Mr.Gopi Krishnan for RR2 and 3 Mr.V.Lakshmi Narayanan, Amicus curiae ORDER Heard the arguments of Mr.V.Vaithiyalingam, learned counsel for Mr.M.Gnanalingam, learned counsel appearing for the petitioner, Mr.R.Neelakandan, learned Government Advocate for first respondent, Mr.Gopi Krishnan, learned Standing Counsel appearing for respondents 2 and 3 and Mr.V.Lakshmi Narayanan, Amicus curiae counsel for the court. 2.The petitioner has filed the present writ petition, seeking for a direction to the respondents to pay compensation of Rs.50 lakhs for the wrongs committed by the respondents. Pending the writ petition, she has also sought for restraining the third respondent and his men from forcibly evicting her from quarters No.1124, Special E Block, Type 1, GC, CRPF, Avadi, Chennai. The writ petition was admitted on 26.5.2004. In the application regarding quarters, an interim injunction was granted. Subsequently, by an order, dated 11.3.2005, the injunction application was dismissed on the ground that the petitioner has no locus standi for the quarters as it was allotted only to her husband. On notice from this court, on behalf of the respondents, a counter affidavit, dated Nil (September, 2004) was filed. 3.The case of the petitioner was that the petitioner is a Post Graduate in Mathematics. She is married to N.Govindasamy, who is a CRPF Constable posted at Tripura. They had three children, i.e. Lakshmi, who was nine years old, Karthik aged 6 years and the third child is Kishore, who was 4 years old at that time. They are studying at the Kendriya Vidyalaya School, CRPF, Avadi. She was staying alone with her three children in the quarters No.1124, Type 1, Special E Block, GC, CRPF, Avadi for more than three years. Since her husband was posted to the North Eastern sector, she tried her best to bring back her husband to a posting in Tamil Nadu. But that did not succeed. She was taking tuition to her children as well as the children of neighbourhood. She knew one Bagawan, who is a relative of her husband and was serving in the CRPF. 4.The said Bagawan invited her to participate in the birthday celebration of his youngest daughter by name Jugee on 23.1.2004. She had also participated in the said function along with her three children. They were all in a jubilant mood and were having dinner. Half way through the function, there was a knock on the door of Bagawan's quarters. A team of the local police personnel led by the 6th respondent (Inspector of Police) and some CRPF personnel led by the 5th respondent (S.K.Dey, Subethar Major) entered that house. On seeing the petitioner, the sixth respondent abused and charged her as https://hcservices.ecourts.gov.in/hcservices/ if she was having illicit intimacy with Bagawan. When Bagawan requested them to behave decently, the seventh respondent, an Head Constable attached to Tank Factory Police Station, pushed him aside using filthy words and the 6th respondent assaulted him. The petitioner was forced to get into the jeep along with her children. When she resisted from being taken forcibly, the 6th respondent outraged her modesty and dragging her to the Jeep by holding on to her lock. 5.Bagawan along with his three female children and the petitioner along with her children were taken to F2 Tank Factory Police Station at midnight in the guise of conducting an enquiry. All were kept in the police station upto 2.00 a.m on 24.1.2004. Thereafter, they were set free without conducting an enquiry. It was later the petitioner came to know that the raid was conducted only on the instruction of third respondent, i.e. Additional Deputy Inspector General of Police., GC, CRPF, Avadi. The said incident was published in all the leading daily newspapers and weeklies including the New Indian express, Daily Thanthi, Junior Vikatan, Malai Murasu and India Today. The incident brought disrepute to her character and her Right to Privacy and liberty were infringed because of the callous and rude attitude of the respondents 3 to 7. Ever since the incident, she was made to undergo untold humiliation and to face disgrace in the society. She was unable to face her neighbours in general and her relatives in particular. The mental agony, insults and disgrace can never be compensated. After this incident, her husband also abandoned her. The petitioner at one point of time decided to end her life, but considering the future of her three minor children, changed her mind to face the realities of life. Therefore, she has come forward to file the present writ petition. 6.Though the respondents were served, only respondents 2,3,5 and 7 have filed a common counter affidavit. The other respondents have not filed any counter affidavit. The counter affidavit was sworn to by one George C.Francis, who was the Additional DIGP, GC CRPF, Avadi. According to the third respondent, the petitioner's husband was allotted quarters who was at the relevant time was serving the 42nd Batallion at Tripura. They received a written complaint from one Constable Murugan of the 142nd Battalion on 23.1.2004. It also contained signature of 7 women residing in the campus, complaining that the petitioner was visiting quarters No.1261 occupied by Bagawan, who was a widower. She was found staying at odd hours in the night. On receipt of the said complaint, the third respondent being the Estate Officer-cum-Chief Metropolitan Magistrate ordered the Deputy Commandant (Administration) to carryout a surprise check in the quarters in which Bagawan was staying with his children in order to decide as to whether cognizance was to be taken under Section 10 (n) of the CRPF Act. The Deputy Commandant (Administration) in turn informed Mr.Thangadurai, Inspector of F2 Tank Factory Police Station (sixth respondent) having local jurisdiction to accompany them during the surprise check. https://hcservices.ecourts.gov.in/hcservices/ 7.Thereafter, the Deputy Commandant (Administration), Subedar major, Battalion Havildar Major, Company Havildar Major, one Head Constble (Mahila) of CRPF and the sixth respondent (Thangadurai) and one Constable (Mahila) of local police station carried out a surprise check in quarters No.1261 at 11.05 p.m. On knocking the door, Constable Bagawan opened the door. He was asked about the presence of the petitioner. Constable Bagawan stated that no woman was present in his quarters. The Deputy Commandant (Administration) and Inspector Thangadurai ordered Mahila Head Constable Alagammal of GC, CRPF and the mahila Constable of local police station to go inside the flat and check up the rooms. They found the petitioner hiding in the bedroom and she was brought outside. Bagawan informed the search party that she came to take tuition for his children. Both Bagawan and the petitioner entered into a wordy altercation with Inspector Thangadurai. The sixth respondent felt that they should be further questioned. Hence Bagawan was taken to F2 Tank Factory Police station and the petitioner was taken to the All Women Police station along with Head Constable Mahila Alagammal of CRPF and a Constable Mahila of local police. After about 30 minutes questioning, the State police felt that the relationship between both the parties involved is by mutual consent and it is a trivial matter from the legal point of view. Hence no case was registered against them and they were allowed to come back to the camp in the same vehicle. 8.It is claimed that during surprise check, there was no abuse or harassment either by the State police or by the CRPF to the petitioner. The raid was made on the basis of a complaint. Since the matter was of a trivial nature, the third respondent decided that the prosecution under Section 11(n) of CRPF Act was not called for and no cognizance was taken. A preliminary enquiry was conducted into the habit of the petitioner. It was found that she was regularly visiting Bagawan at odd hours and was indulging in activities detrimental to the good order and discipline in the residential quarters of the CRPF. Initially when she was questioned, she stated that she came to the quarters for giving tuition. In her representation and in the writ petition, she claimed that she went for the birthday celebration of Bagawan's daughter. Therefore, her statement was false. It was also claimed that since there was a complaint from the residents about the inappropriate relationship of the petitioner with the Constable Bagawan, who is a widower, it had become necessary to verify the veracity of the complaint. Hence a surprise check was ordered. 9.It was also claimed that the petitioner's residence was found locked. Only thereafter, Bagawan's quarters was checked, during which time the petitioner was found hiding in his bedroom. It was also claimed that the news item published in the magazines and news papers had emanated due to the petitioner's statement and not by the CRPF. It was further claimed that Govindasamy posted at Tripura came to Avadi on leave with effect from 7.4.2004 to 5.6.2004 and their marital bond was not snapped. The said Govindasamy has been reposted to GC Avadi and he is residing in the same quarters. They are living together in the quarters with effect from 13.8.2004. It was further https://hcservices.ecourts.gov.in/hcservices/ claimed that the petitioner's indulging inappropriate relationship in the CRPF quarters with scant respect for well established social and moral conduct required in a Government residential colony was violative of provisions of Section 8(c) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. It was also claimed that there was no trace of any birthday celebration found on 23.1.2004. Since there was a statutory duty to keep discipline inside the quarters and in order to see that there is no illegal acts or wrong is done, the inspection was carried out. Hence, there was no question of payment of any compensation by them. 10.It is not clear as to why the other respondents, i.e. 4th and 6th respondents never filed any counter affidavit, explaining their role in the episode. When this case came up on 12.10.2009, this court appointed Mr.V.Lakshmi Narayanan, Advocate as amicus curiae to help this court. The learned counsel also readily agreed to discharge his duties as amicus curiae. 11.On the pleadings and counter pleadings, it is clear that the incident as narrated above had taken place and it was done at the instance of the third respondent's order. Though the third respondent kept himself away from being present, the other respondents have barged into the private quarters of Bagawan. They not only insulted Bagawan, but also misbehaved with the petitioner. She was also dragged along with the children of Bagawan as well as her children and was taken to the police station in the middle of the night. She was kept in the police station for half an hour for questioning. The fact that the three children of the petitioner were also taken to the police station was not denied in the counter affidavit filed by the third respondent. Therefore, it can be safely presumed that in the same flat, their children were also present at the relevant time. Therefore, the question of neighbours getting suspicion and on account of their suspicion, the third respondent being informed and his ordering for the inspection of quarters during 11.00 p.m. in the night cannot be a spontaneous event. When the three children of Bagawan and the three children of the petitioner were found in the house at the time of inspection, they could have safely left the house rather than abusing and insulting not only Bagawan, but also assaulting the petitioner. She was dragged by holding her hair by the sixth respondent. The allegations found in paragraphs 3 and 4 in the affidavit were not even denied by the sixth respondent. The fourth and sixth respondents have been served with notices in this regard. 12.Though the third respondent claims to have sky high powers over the quarters allotted to the men in the force, his power to supervise the quarters can be made only under Section 8 of the Public Premises (Eviction of Unauthorised Occuapnts) Act, 1971. Under the said provisions, the Estate Officer has been given power of a civil court for summoning and enforcing attendance of any person requiring the discovery and production of documents. The power was conferred on a Estate Officer only for the purpose of evicting an unauthorised occupants of Government quarters. The petitioner residing in the quarters of her husband is not unauthorised. The Act nowhere contemplates such power to enter into the residential quarters just https://hcservices.ecourts.gov.in/hcservices/ before midnight and to harass any home maker and to further give a false statement and dragging her to a local police station for a so- called questioning. 13.The stand of the third respondent himself is that no case was registered as it was a trivial incident. The very attempt by the respondents to give huge adverse publicity and unnecessary harassment over trivial issue calls for strong condemnation. In the incident in question, no provision of CRPF Act was attracted. It is a matter coming within the jurisdiction of the State police. Respondents 4 and 6 must be aware of the provisions of Code of Criminal Procedure under which they exercised their powers. Hence it is necessary to refer to Section 160 of Cr.P.C., which reads as follows: "160.Police officer's power to require attendance of witnesses.- (1)Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required: Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides." (Emphasis added) 14.In this context, it is necessary to refer the following passage found in para 19 of the judgment relating to Nandini Satpathy v. P.L. Dani reported in (1978) 2 SCC 424. "19. Before discussing the core issues, we wish to note our regret, in this case, at a higher level police officer, ignorantly insisting on a woman appearing at the police station, in flagrant contravention of the wholesome proviso to Section 160(1) of the CrPC. Such deviance must be visited with prompt punishment since policemen may not be a law unto themselves expecting others to obey the law. The wages of indifference is reprimand, of intransigence disciplinary action. If the alibi is that the Sessions Court had directed the accused to appear at the police station, that is no absolution for a police officer from disobedience of the law. There is public policy, not complimentary to the police personnel, behind this legislative proscription which keeps juveniles and females away from police company except at the former’s safe residence. May be, in later years, community confidence and consciousness will regard the police force as entitled to better trust and soften the https://hcservices.ecourts.gov.in/hcservices/ stigmatising or suspicious provisions now writ across the Code." (Emphasis added) 15.Therefore, the action of the respondents is infringement of Section 160 of Cr.P.C. Further, there is no provision under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 by which an Estate Officer in the absence of an unauthorised occupant holding on to a Government quarters can barge into the residential quarters and conduct an enquiry, which is not contemplated under law. 16.Mr.V.Lakshmi Narayanan, Amicus curiae brought to the notice of the court certain decisions which may have bearing on the present case. He submitted that even under the cases registered under the Suppression of Immoral Traffic in Women and Girls Act (Cenral Act 104 of 1956) (presently Prevention of Immoral Traffic Act), the courts have emphasised the power of the police officer under Section 15(1) of the Act and held that a search made without record is illegal. It was held in State of Rajasthan v. Rehman reported in (1960) 1 SCR 991 = AIR 1960 SC 210 that the law requires reasons should be recorded in writing and search made without such record is illegal. Even in case of prosecution under the Act, such record should be produced during trial and cannot be left to the officer to assert that reasons were recorded. 17.The learned counsel referred to the judgment of this court in Ratnamala Vs. State of Tamil Nadu reported in AIR 1962 Mad 31, wherein it has been held that even a prostitute is entitled to protection of her person. It was emphasised that she is as much entitled to protection as the most respectable woman and intrusion of privacy of woman with an intention to insult her modesty is an offence. The learned counsel brought to the notice of this court the following passage found in paragraph 14, where this court expressed its anguish over an officer using such techniques while implementing an order under the Immoral Trafficing Act, which reads as follows: "14....No doubt, as the learned Public Prosecutor argues, in S.15(6) of the Central Act 104 of 1956, the special police officer is exempted from liability in any civil or criminal proceeding, in respect of anything lawfully done for the purpose of the search. But I am quite unable to agree that this exemption could be utilised to conduct a search in disregard of elementary decencies, even if they be decencies relating to a prostitute, in the manner disclosed, and most unfortunately disclosed by the record in this case. Here, we have an instance of the officer, accompanied by witnesses, proceeding into the bedroom of a young girl and pushing open a closed door without even the civility of a knock of the warning to her to prepare for the intrusion. Such conduct would be quite inexcusable, unless the officer thereby hopes to gather the evidence which is essential for proof of any charge. But, since prostitution is not an offence, I am really quite https://hcservices.ecourts.gov.in/hcservices/ unable to see how the officer and party were justified in thus bursting into the bedroom of a girl and surprising P.W.1 and the third accused together in a state of undress. There can be no doubt that such conduct implies an outrage on the modesty of the girl; and I must reiterate that the modesty of a prostitute is entitled to equal protection, with that of any other woman. The technique of such raids must be totally altered; otherwise, grave abuses of the law might enter into the very attempt to enforce the law. I put it to the learned Public Prosecutor whether the officer would similarly think himself justified, in proceeding into a bathroom, where an young girl suspected to be a prostitute was having a bath, in the hope of finding incriminating evidence; the learned Public Prosecutor was compelled to concede that, as raids were conducted at present, such an incident could conceivably occur. The implementation of this Act will hence become an evil, unless it is not merely accompanied by tact and delicacy, but regard is also paid to the true spirit of the legislation, and the technique of the implementation is revolutionized, giving a very subordinate part, if part need be given to it at all, to the unfortunate practice of designing traps and using decoy witnesses...." 18.Thereafter on the question of claiming Right to Privacy, the counsel placed reliance upon the judgment of the Supreme Court in Gobind v. State of M.P. reported in (1975) 2 SCC 148. In that case, the Supreme Court had considered the question as to whether the domiciliary visits of police intrudes into the right of privacy guaranteed under Article 21 of the Constitution. While deciding such a matter, the Supreme Court in paragraph 13 had observed as follows: "13. In Kharak Singh v. State of U.P.1 the majority said that “personal liberty” in Article 21 is comprehensive to include all varieties of rights which go to make up the personal liberty of a man other than those dealt with in Article 19(l)(d). According to the Court, while Article 19(1)(d) deals with the particular types of personal freedom, Article 21 takes in and deals with the residue. The Court said: “We have already extracted a passage from the judgment of Field, J. in Munn v. Illinois2 where the learned Judge pointed out that ‘life’ in the 5th and 14th Amendments of the U.S. Constitution corresponding to Article 21 means not merely the right to the continuance of a person’s animal existence, but a right to the possession of each of his organs — his arms and legs etc. We do not entertain any https://hcservices.ecourts.gov.in/hcservices/ doubt that the word ‘life’ in Article 21 bears the same signification. Is then the word ‘personal liberty’ to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man’s home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal? It might not be inappropriate to refer here to the words of the preamble to the Constitution that it is designed to ‘assure the dignity of the individual’ and therefore of those cherished human values as the means of ensuring his full development and evolution. We are referring to these objectives of the framers merely to draw attention to the concepts underlying the Constitution which would point to such vital words as ‘personal liberty’ having to be construed in a reasonable manner and to be attributed that sense which would promote and achieve those objectives and by no means to stretch the meaning of the phrase to square with any pre-conceived notions or doctrinaire constitutional theories.” The Court then quoted a passage from the judgment of Frankfurter, J. in Wolf v. Colorado3 to the effect that the security of one’s privacy against arbitrary intrusion by the police is basic to a free society and that the knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples. The Court then said that at Common Law every man’s house is his castle and that embodies an abiding principle transcending mere protection of property rights and expounds a concept of “personal liberty” which does not rest upon any element of feudalism or any theory of freedom which has ceased to exist. The Court ultimately came to the conclusion that Regulation 236(b) which authorised domiciliary visits was violative of Article 21 and “as there is no ‘law’ on the basis of which the same could be justified, it must be struck down as unconstitutional”. The Court was of the view that the other provisions in Regulation 236 were not bad as no right of privacy has been guaranteed by the Constitution. https://hcservices.ecourts.gov.in/hcservices/ 19.In paragraphs 16 and 22 of the very same judgment, the