IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28-08-2008 CORAM: THE HON'BLE MR.JUSTICE P.K.MISRA AND THE HON'BLE MR.JUSTICE K.KANNAN W.P.NO.29074 OF 2007 The Chairman, Bar Council of Tamil Nadu High Court Campus, Chennai 600 104. ...Petitioner Vs. 1.The State of Tamil Nadu represented by its Secretary to Government (Home Department) Secretariat, Chennai 600 009. 2.The Director General of Police, Tamil Nadu, Mylapore, Chennai 600 004. 3. The Superintendent of Police, Tirunelveli District. 4.Mayilvahanan-Deputy Superintendent of Police, Tenkasi, Tirunelveli District. 5.Kuppusamy-Inspector of Police, Courtalam Police Station, Courtalam. 6.Arumugasamy-Sub Inspector of Police, Courtalam Police Station, Courtalam. 7.Balasubramaniam,Sub-Inspector of Police, Tiruvengadam Police Station, Tirunelveli District. 8.Ganapathy, Sub Inspector of Police, Courtalam Police Station, Courtalam. 9. Chandrasekar, Inspector of Police, Tenkasi Police Station, Tirunelveli District,. 10.Rajan-Head Constables, Ervadi Police Station Tirunelveli. 11.Jayaraman-Head Constables Gr:I 914 Koodangulm Police Station,. https://hcservices.ecourts.gov.in/hcservices/ 12.Head Constable No.409, Koondangulam Police Station 13.Head Constable No.1410, Koodangulam Police Station, 14.Head Constable No.2015, Courtalam Police Station, 15.Head Constable Gr.I No.1224 Courtalam Police Station.,.Respondents Petition filed under Article 226 of the Constitution of India praying to issue a writ of Mandamus directing the respondents 1 and 2 to award compensation of Rs.5 lakhs each other to the four advocates viz. Ignatius, Poonkumar, Marx, Velusamy who were both physically and mentally tortured in police custody by misuse of power of respondents. For Petitioner:Mr.C.K.Chandrasekaran for M/s Row & Reddy. For Respondents :Mr.S.Ramasamy, Additional Advocate General Asst. by Mr.K.Elango Special Government Pleader O R D E R K.KANNAN,J Heard Mr. C.K.Chandrasekaran, learned counsel for the petitioner as well as Mr.S.Ramasamy, learned Additional Advocate General appearing for respondents. Nature of action: 2. This case depicts yet another sordid episode of an ugly spat between a section of lawyers and a handful of police personnel, with the resultant physical and mental assaults complained of as having been visited on the lawyers. A recurrent theme misses out no part of all too known story of assault followed by boycott of courts. Allegations and counter allegations galore have been exchanged and the writ petition seeks to unravel the truth. This writ petition has been filed by the Chairman, Bar Council of Tamil Nadu espousing the cause of four advocates viz.,M/s Ignatius, Pounkumar, Marx, Velusamy who were alleged to have been physically and mentally tortured in police custody by misuse of power by police viz., Respondents 4 to 15. Summary of facts-Petitioner's version: 3. The facts as narrated in the affidavit are that some advocates of Tuticorin Bar had gone on a pleasure trip to Courtalam on 26.7.2007. In the wee hours of the morning at about 2 a.m., seven https://hcservices.ecourts.gov.in/hcservices/ advocates including the four mentioned above had gone to take bath in the falls. At that time, respondents 7,9 to 13 all of them belonging to police force, were in an inebriated condition and started using indecent and vulgar language . The lawyers were also met with by a volley of verbal assaults and when they advised them to be polite, the police became agitated and went to the extent of brandishing lathis and beating up the advocates. The police did not only round up the four advocates, but arrived at the lodge where other advocates were staying, at about 3.10 a.m. and took away their belongings and the Ambassdar Car bearing Registration No.TSH 41. The lawyers were detained at the police station. The advocates of Tenkasi, Shengottah and Tuticorin who came to know about the confinement of the lawyers, rushed to the police station, but they were denied entry. The other advocates who could not rescue the four advocates from the custody of the police, sent telegrams to all higher officials including the petitioner Bar council. The police brought the advocates for remand before the Magistrate at about 11.30 a.m.. The advocates complained to the Magistrate about the physical assaults made on them and the Magistrate on seeing the injuries and on the basis of the application filed on behalf of the advocates ordered for medical examination. The advocates were however remanded to custody. When they were taken to shengottah Police Station, the D.S.P., threatened the advocates for having exposed him for the assaults made by him. When they were taken to Palayamkottai jail for remand at about 3.30 p.m, the jail authorities and the Doctor in the jail noticed the injuries sustained by the advocates. They were released on bail on the same day evening by the District Sessions Judge, Tirunelveli at about 6 pm.,and brought to the Palayamkottai Government Hospital at 6.30 p.m. 4. Before the Doctor,the advocates complained that they had been beaten up with sticks by fifteen known persons and the Doctor had noted the injuries on the persons. He had recorded the nature of injuries as simple in nature. The Civil Assistant Surgeon who drew up the accident register noted the impression of sticks on the body of the person of Mr.Velusamy and other visible injuries on other persons as well. The petitioner's contention is that the injuries inflicted on the four advocates were at the time when they were admittedly in the custody of the police. Therefore, the police have to take a full responsibility for the inhuman treatment meted out to them. The respondents' version: 5. Respondents, after denying all the allegations in the counter affidavit would turn the tables of the advocates and contend that the incident took place when the advocates themselves were in an inebriated state, picked up quarrel with a masseur and did not pay any money after obtaining his service. They began indulging in verbal assaults on him and the public came in support of the masseur and took umbrage at the advocates' behaviour and restrained their unruly https://hcservices.ecourts.gov.in/hcservices/ conduct by holding them physically. Before long, the public themselves went on a rampage in assaulting the advocates. The police have admitted the injuries that were caused to the advocates, but would say that they were caused by the scuffle that the advocates had with the local public who were assembled there. They would specifically deny everyone of the allegations that were attributed against them and would also refer to the fact that on the same day, a criminal complaint had been lodged by the victim-masseur and a sub inspector of Police at the out post. The respondents would also rely on the RDO's report sent on 6.9.2007 referring to his finding that advocates had indulged in rioting and they were caught by the tourists and cases were registered by the police for their unruly conduct. Appraisal of respective contentions: 6. A close survey of facts becomes necessary to identify the degree of divergence with regard to the contentions, by both the parties. If the truth of the contentions could be vouched one way or other with reference to documents and conduct. we will not have to traverse into disputed questions, but will arrive at the destination speaking through unimpeachable evidence. 7. The learned Additional Advocate General has given a minute by minute account about what transpired from 1.30 a.m. on 26.7.2007 till the evening hour on the next day i.e. 27.7.2008. The congruent facts that overlap amidst the divergent contentions are that there was a scuffle involving four lawyers and some persons who were at the venue of the falls. Four of the advocates had been injured and they were under the custody of police till they were brought to the Magistrate at 11.30 a.m. 8. The injuries could not have been occasioned subsequent to 11.30 a.m. because this had been the subject of telephonic message to all the higher authorities. Even in the petitions to several persons that emanated on the same date, there had been a reference to the injuries on the persons of the advocates. The wound certificates on examination of the advocates revealed the fact that the advocates have been visited with physical assaults and there were visible injuries on the body. The areas of difference are who started the trouble, whether it was the advocates or police or some other members of the public. The other points of contentions are who inflicted the injuries, whether the members of the public who were allegedly irked by the conduct of the advocates or the police on the spot or during their custody. There have been complaints and rival complaints and criminal complaints have been registered and still they are pending. https://hcservices.ecourts.gov.in/hcservices/ 9. The learned counsel for the petitioner states at the forefront of his arguments that a writ petition or a petition for quashing any complaints of one against the other have not been filed and it may go through usual course of enquiry through the Court proceedings for getting at the truth. This case, according to him, falls to be decided on unimpeachable evidence that could be brought out through documents,the actual injuries found on the lawyers and the normal course of conduct that could be attributed to the factious parties. The petitioner pointed out to five circumstances that clinch the issue: (1) The First Information Report launched by the Masseur Madasamy and complaint registered by the Inspector make no reference to the fact that public assaulted any of the advocates by using sticks or rods. (2) The "161 statements" alleged to have been recorded on the same date were not dispatched immediately to the Magistrate, but they were despatched only after a long delay where the public beating have been first referred. (3) The wound certificates contained to have clear evidence of the fact that sticks have been used and some of the injuries bear stick marks. (4) Even the so called statement of Madasamy,viz., the masseur did not refer to any member of the public as having used sticks or rods. 5. The statement of the lawyers at the earliest time when produced in the Court before the Magistrate was that they were beaten by the police, even the requisitions had been made for being sent for medical examination for immediate recording of the injuries. 10. We find that the circumstances shown by the petitioner's counsel to be weighty enough and not to reject them. Otherwise, as contended by the learned Additional Advocate General, we would have either called for independent report for collecting evidence on commission or let go without further probe by refusing to exercise our jurisdiction on the ground that they are some disputed questions of fact. Learned Additional Advocate General urged before us that there were already criminal cases before the Magistrate and therefore the trial would decide the truth of the respective contentions between the parties. Learned Advocate General would also show to us certain portions of statement given by the advocates that https://hcservices.ecourts.gov.in/hcservices/ they were beaten at the site of the falls itself and they have not said that they were beaten at the Police station. The disputed facts as they exist relate only to the denial of the contentions made on behalf of the advocates that they were beaten at the Police Station, but they were beaten only by some other members of the public in the vicinity of the falls. Criminal complaints themselves would decide on the guilt and those who were the cause for scuffle and the misbehaviour. According to him, the admissions by the advocates themselves would be a pointer to the fact that the members of the public would have also joined in inflicting the assaults. 11. But none of these circumstances detract from the fact that the injuries that the advocates have borne on their bodies are not mere contusion that could come about by fist fights, but there are cane injuries on their backs, contusion on the ventral aspect of the foot and injuries on the body which could not have been inflicted in a melee or with few persons having bound the alleged unruly advocates by their hands and hit them on their bodies. The location of injuries and the nature of injuries bear testimony to the fact that only canes could have been used. It is common knowledge that the police wield lathis and they are part of their regular armory. The members of the public could have also used sticks or rods but it was nobody's case that any member of public had used such weapons for attack. One thing becomes certain which we can discern without much ado that between 1.45 a.m and 11.30 a.m. from the time when the incident is said to have taken place till when they were produced before the Magistrate, they were in the immediate company of the police. If there are injuries on persons, it is for the police to explain. But the explanation which the police gives that the public inflicted the injuries, do not explain the nature of injuries that find mentioned in the wound certificates. The inference is obvious. It is the police who were responsible for the injuries on lawyers. 12. It has been held in the decision in Sube Singh Vs.State of Haryana and others reported in AIR 2006 SC 1117 that when injuries exist when a person is in the custody of police, it is for the police to explain and if such explanation is not forthcoming, it would lead to an inference that the injuries themselves are the result of custodial violence practised to that person by the police. In yet another decision of a Division Bench of this Court in Union Territory of Pondicherry Vs. M.Latchumanan and another reported in 2007 4 MLJ 274,it has been laid down that the burden of disproving custodial violence is on the police, if it is established that the injuries were sustained while in the custody of police. The decision is also an authority for the position that the availability of alternative remedy under the ordinary law is no bar for the High Court to exercise its power and to grant compensation in appropriate cases. Still later, a decision of the Division Bench of this Court in Coimbatore Bar Association and another Vs. State of Tamil Nadu and others reported in (2008) 4 MLJ 753, addressed itself to an action https://hcservices.ecourts.gov.in/hcservices/ claiming damages on behalf of a practising advocate by the Coimbatore Bar Association through a writ of Mandamus directing the State of Tamil Nadu for compensation of Rs.10 lakhs for the insult, assault and for violation of Human Rights committed by certain police officials and others and for appropriate action against erring officials The said decision also reiterates the position that the Court has the power under Article 226 of the Constitution of India to award monetary compensation by way of exemplary costs or otherwise, and the award of compensation by the High Court is a remedy available in public law. 13. The stand-off between the lawyers and the police have been persistent that excites the concern of every person who expects orderly conduct of responsible citizens as the ground norm. It all started in 1979 when an advocate by name V.Ayyathurai and Deputy Inspector by name K.Rajagopal were locked in horns. The former was a person that advocated what the laws were. The latter was an enforcer of laws. There could have been no occasion for a conflict between the person who seeks for enforcement of law and a person who enforces the law. In Madras High Court Advocates Association represented by its President, High Court Campus, Chennai Vs. State of Tamil Nadu rep. by the Chief Secretary, Fort St.George, Chennai and others (2007) (2) MLJ 1 the Division Bench of this Court sets out the genesis of this problems of lawyers vs. police rivalry and expounds measures to nip such incidents in bud. Any friction between the fraternity of lawyers and police carry dangerous portents of escalation beyond a point of easy containment . The Division Bench did not leave the issues before recommending the setting up of the State Level Cooperative Committee to keep constant watch, to act on immediate complaints or information relating to assault or ill-treatment on any advocate at the hands of the police officials in the State etc., The recommendations of the Bench for the constitution of the Committee ought to bear ample fruit, but we have right now the problem at hand where some lawyers have been again the victims of physical assaults by the mindless conduct of some of the police officials. We have the sentinels of law breaching it; the lathi that ought to quell violence perpetrates it; If the lawyers and police would not heed to the mechanism for sorting out the difference as laid down by the decisions of the High Court, who will? 14. The Supreme Court has held in SHAKILA ABDUL GAFAR KHAN VS. VASANTH RAGHUNATH DHOBLE AND ANOTHER reported in AIR 2003 Supreme Court 4567 that the torture and violence by men in 'Khaki'/State /or its functionaries cannot be permitted to defy constitutional right. Their brotherhood ties permit other police witnesses to feign ignorance about whole matter whenever complaints against police violence is made and the insistence of establishment of proof beyond reasonable doubt would thus result in miscarriage of justice. The Supreme Court proposed to take stern action to check the malady and https://hcservices.ecourts.gov.in/hcservices/ said that cases should be dealt with in realistic manner. Conclusion: 15. We have no doubt in our mind that this is a fitting case where the action of the police officials in causing brutal attacks on the lawyers, shall be met with directives for payment of compensation by resort to public law remedy. The State Government itself will have to bear vicarious liability for the action of the police officials. The writ petition is therefore allowed and we direct the respondents to pay a compensation of Rs.40,000/-(each Rs.10,000/- for the benefit of four advocates M/s Ignatius, Pounkumar, Mark and Velusamy. We part with the case with a hope that such types of incidents no longer occur and we shall have no occasion to enter upon such painful instances of conflict between lawyers and police as it has been happening. Between hope and reality there is always a hiatus. In hope we fix our life's expectation; in reality, we meet out expectations fulfilled or unfulfilled. Lawyers and police are sufficiently responsible to recognize each other's worth as partners in realising orderly conduct of the society within the bounds of rule of law. No costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar VJY To 1.The Secretary to Government (Home Department) Secretariat, Chennai 600 009. 2.The Director General of Police, Tamil Nadu, Mylapore, Chennai 600 004. 3. The Superintendent of Police, Tirunelveli District. +1 cc To M/s Row & Reddy., Advocate, SR.48289 1 cc To The Government Pleader, SR.48463 W.P.NO.29074 OF 2007 nm [co] gkg/4.9 https://hcservices.ecourts.gov.in/hcservices/