In the High Court of Judicature at Madras Dated: 04/03/2004 Coram The Hon'ble Mr. Justice K.P.SIVASUBRAMANIAM WRIT PETITION No.14879 of 1994 S.Meena .. Petitioner. -Vs- 1. The State of Tamil Nadu, represented by its Secretary, Home Department, Fort St. George, Madras - 600 009. 2. The Director General of Police, D.G.P.Office, Mylapore, Madras - 600 004. 3. The Collector of Madras, Chepauk, Madras-600 005. 4. The Personal Assistant (General) to the Collector of Madras, Chepauk, Madras-600 005. 5. The Commissioner of Police, Egmore, Madras-600 008. 6. The Inspector of Police, E-2, Royapettah Police Station, Madras-600 014. 7. Chandrasekaran 8. Nicholas 9. Chandran 10. Nagarajan 11. Ganesan 12. The Superintendent, Government Royapettah Hospital, Madras-600 014. .. Respondents. Petition filed under Article 226 of the Constitution of India praying for the issue of a writ of mandamus as stated therein. For petitioner : Mr.C.Vijayakumar. For respondents 1 to 6 : Mr.V.Raghupathy, Govt. Pleader. For respondents 7 to 11 : Mr.S.Manimaran :ORDER The petitioner, the mother of one Wilson who allegedly met with his death while in custody of the Police, seeks for the issue of a writ of mandamus to direct the first respondent to pay a sum of Rs.3,00,0 00/- as compensation for the custodial assault, torture and murder of Wilson and to direct respondents 1 to 5 to prosecute respondents 7 to 11 for the said offences and to direct respondents 1,2 and 5 to initiate proper disciplinary action against them and for further reliefs. 2. The petitioner contends that she is a Class IV employee in the Postal Department and her husband had died 11 years back. He had one daughter and the deceased son Wilson. Her son was doing screen printing and he was 24 years old at the time of his death. On 21.6.1993 when she asked her son to have his dinner,he told her that he would return soon and went out. But he failed to return till 10.00 P.M. The petitioner and her daughter went to sleep after keeping food for her son. Subsequently she was informed by one Nalini who is the sister of the landlord of the petitioner and whose house is situate at Gangai Amman Kovil Street, that on the night of 21.6.1993 on hearing some shouting in front of her house, she came out of the house and saw respondents 7 to 11 brutally attacking the petitioner's son Wilson. The said police officials surrounded Wilson and caught hold of him near the water tap situated at Gangai Amman lane and tied his hands with lungi. Wilson was attacked with long knife and grievous injuries were caused. The said Nalini and other residents nearby were direct eye-witnesses to the brutal attack. Wilson cried that he was innocent and he has not committed any mistake. Even after that police officials did not spare him and they continued attacking him all over his body causing grievous injuries. He was also abused in vulgar language and was continued to be attacked. While he was lying on the road the police officials kicked him with their boots on his chest and abdomen and then he became unconscious and was dragged on the road. The police officials caused cut injuries on the leg of Wilson as well as all over his body attacking him with the handle of the knife. This happened for about half-an-hour in the open street and after that he was taken to the Police Station. According to the petitioner, she was unaware of the incident as she and her daughter were sleeping. Her landlord's son Senthil knocked at the door on the night of 21.6.1993 and informed the petitioner of the brutal assault on her son. She was also informed about his having been taken to Royapettah Police Station. One Mohan, petitioner's son's friend also came to the house and told that he had seen the police dragging her son to the Police Station. 3. The petitioner thereupon requested Mohan to help her for taking her son on bail from Royapettah Police Station. He left immediately stating that he would go to the Police Station and return and inform her. But for a long time he did not herefore, she obtained the help of Dampachari, brother of the petitioner's landlord and went to Royapettah Police Station at 2.30 A.M. 22.6.1993. She waited outside while Dampachari went inside and enquired. He returned back and said that the police officials did not reveal anything and that he could not find the petitioner's son. Dampachari asked her to return to her house and assured that they would be able to get further information in the morning. Therefore, she had to return to the house. At about 4.00 A.M. on 22.6.1993 the said Mohan again came back and he told the petitioner that he saw Wilson at the Royapettah Police Station at 1.30 A.M. He was lying in one corner of the Police Station and that he saw cut injuries on both the legs and abrasions all over his body. He was also shouting for help and requested Mohan to take him to hospital. After a short while again he went to the Police Station. The Inspector of Thousand Lights Police Station, came there and when he saw the injured person, he shouted at the Constables and asked them to take Wilson to the hospital. At 2.00 A.M. Wilson was taken to Royapettah hospital in a Cycle-Rickshaw by two constables followed by Mohan. In the hospital, certain stitches were put on the cut injuries on both legs of Wilson. X-Ray was also taken and Wilson complained that he was experiencing acute pain on his private parts, abdomen and chest and he was unable to bear the pain. However, the police did not bother to give proper treatment or have any concern about the critical condition of Wilson. At 3.30 A.M. he was brought back to the Police Station in a Cycle-Rickshaw. Though Mohan followed Wilson to the Police Station, he was not allowed inside the Police Station and he saw the seventh respondent in Police Station. When Mohan had informed the petitioner of the said facts, the petitioner and her daughter cried and requested Mohan to help them to go to the Police Station. As they were informed by Mohan that Police will not allow them, they went only at 5.30 A.M. along with Dampachari. Dampachari informed that Wilson was lying like a snail with both legs and hands bandaged. He was unable to stretch his legs and hands and when Dampachari tried to make him sit, Wilson asked for water and Dampachari went out and brought Limca and they gave Limca to Wilson. The petitioner cried and the police personnel shouted at her and asked them to leave. They had to come out of the Police Station and they were not allowed to be with Wilson. Therefore, the petitioner and Dampachari returned to the house at 6.30 A.M. She requested Dampachari to go and see Wilson in the Police Station. She also went to her office to arrange for bail with the help of co-employee at about 8.30 A.M. But while she was in the office Senthil, Dilli and Sankar came to the office and informed her that her son had died in the Police Station at about 9.00 A.M. and that his body had been taken to the Royapettah Hospital. When she went to the hospital there was a huge crowd from her area. Dampachari was also present there. On 22.6.1993 at about 1.00 p.m. she sent a telegraphic complaint to the Hon'ble Chief Minister informing about the illegal torture and death of her son. She demanded a detailed probe and suspension of the policemen. The petitioner further stated that in view of the happenings, the public in the area gathered in front of the Police Station and demanded action against the guilty police officials. But to the shock and surprise of the petitioner till date, no worthwhile action had been taken against guilty persons. 4. The petitioner further states that after postmortem, Wilson's body was handed over at 7.00 p.m. on 22.6.1993. Several journalists came to the petitioner's house and took photographs and when the bandages were removed they saw several stitches on Wilson and on his private parts. There were abrasions all over his body and his abdomen was contused. The right leg thigh was fissured. It is further stated that Wilson's funeral took place on 23.6.1993 at about 4.00 p.m. The shops in the area were closed condemning the police atrocities and more than 1000 people participated in the funeral and more than 100 policemen were posted for bandobust. The petitioner states that several journals and papers published the news of death of Wilson and the police wantonly and falsely fed news to the press branding the petitioner's son as a rowdy in order to suppress the custodial death. The petitioner further states that her son had no previous bad antecedents. The petitioner further states that respondents 7 to 11 were the main culprits who had brutally attacked Wilson. It was a blatant violation of human rights and police authorities had totally suppressed the cause of death. When she approached the hospital authorities and requested for a certified copy of post-mortem certificate she was not given a proper reply. Therefore, she sent a registered letter on 11.10 .1993 to the Assistant Medical Officer to issue a certificate of post-mortem report. However, the authorities failed to issue the certificate. 5. The petitioner further submits that even though the fourth respondent, Personal Assistant to the Collector of Madras, conducted a enquiry under Section 176 Cr.P.C. and under Clause 145 of the Police Standing Order, till this date, the assailants have not been prosecuted. In spite of the petitioner having approached respondents 3 and 4 to know about the stage of the enquiry, she was not given any information. 6. The petitioner further submits that Wilson was her only son and her husband having died 10 years back, she and her daughter lost the only support and they were facing extreme mental and physical sufferings. Her son was doing screen printing work and was earning about Rs.2,000/- per month. Therefore, the Government was liable to pay compensation. None of her complaints and representations had been enquired into and there was absolutely no positive response from the respondents. Hence, the above writ petition. 7. In the counter filed by the Commissioner of Police, Greater Chennai, on behalf of respondents 1 to 7, it is contended that an enquiry was conducted under Clause 145 of the Police Standing Order by the fourth respondent and an enquiry report was submitted on 19.8.1994, directing to launch a criminal prosecution and also simultaneous departmental action against the five police officials who were involved in the case. The Government also sanctioned Rs.50,000/- to the petitioner as compensation. It is further stated that as per F.I.R. in Crime No.860 of 1993 on 21.6.1993 at 23.30 hours, the crew of P.T.C. bus gave a complaint to E.2 Royapettah Police Station stating that four persons armed with deadly weapons were creating disturbances near Ajantha hotel. Immediately constable Ganesan along with Sub-Inspector of Police, E.2 Police Station and party rushed to the spot. On seeing the Police party, the unruly elements ran towards Gangai Amman Kovil Street, one among them being Wilson. He jumped over some iron materials and sustained injuries. When the police went near him, Wilson attempted to assault them with a long 'Aruval' of 2-1/2 feet length which he had with him. In order to protect themselves, the police used minimum force to overpower him, seized the 'Aruval' and brought him to the Police Station at 01.00 hours. Ganesan registered a case in Crime No.860 of 1993. The accused was found to have sustained injuries and had also consumed alcohol. Therefore, he was sent to Royapettah Hospital for treatment and for obtaining drunkenness certificate. He was given treatment and a drunkenness certificate was also issued. Wilson was lodged in the lock up on 22.6.1993. At about 10.00 hours he complained giddiness and therefore, he was sent to the hospital through P.C.2715. On his arrival at the hospital he was pronounced as dead by the Medical Officer. 8. In terms of the report of the fourth respondent, the departmental action was initiated against the concerned police personnel and criminal prosecution was also initiated before X Metropolitan Magistrate, Saidapet. Therefore, the allegation that no action had been taken against the police officials, was not correct. The case was committed to the Sessions Court, Chennai, and on enquiry by the VI Additional Court, Chenai, by judgment dated 5.8.1998 the accused were acquitted of the charges. The Public Prosecutor of the High Court had opined that it was not a fit case for filing an appeal. Thus all the necessary actions have been taken properly. Therefore, the allegations to the contra were not admitted and there was no necessity to spread any false news against the petitioner's son. 9. It is further stated that departmental action was initiated against S.Chandrasekaran, S.Leavance, N.Chandran, s.Ganesan and M. Nagarajan. They were charged under Rule 3(b) of the Tamil Nadu Poice Subordinate Service (D & A)Rules for the criminal misconduct in having caused death of Wilson. The Sub Inspector and four others were awarded with the punishment of reduction in pay by two stages for two years with cumulative effect on 2.6.1999 by the Commissioner of Police. The punishment was given effect to and on the completion of the period of punishment promotion has also been awarded. 10. The said officials also filed O.A.Nos.3649, 3650, 3678, 4147 and 4150 of 1999 before the State Administrative Tribunal. The State Administrative Tribunal allowed all the applications on 4.10.2001 and set aside the impugned orders and remitted the same back to the Commissioner of Police for reviewing carefully in the light of the judgment of the Supreme court in M.PAUL ANTONY v. BHARAT GOLD MINES LTD. and in view of the acquittal given by the VI Additional Sessions Judge. The question of filing an appeal against the order of the Tribunal was examined by the Government and after due consideration it was felt that it was not a fit case for appeal. It is further stated that the Review Application Nos.31 to 35 were filed by the said officials and the Tribunal by its order dated 22.1.2002 modified the judgment cancelling earlier orders of remitting back to the Commissioner of Police for review. As such the orders of punishment which were earlier awarded departmentally, have been set aside. In consultation with the office of D.G.P. the punishments awarded earlier were cancelled and the reduction of pay already given effect to, to the said individuals were ordered to be restored in the position which prevailed at the time before implementing punishment. Hence, there were no merits in the writ petition and the same be dismissed. 11. S.Chandrasekaran, the seventh respondent has filed a counter on behalf of himself and respondents 8 to 11. According to him, the various allegations contained in the affidavit filed in support of the writ petition, were false. On 21.6.1993 at 11.45 p.m. while he himself and respondents 8 and 9 were ready to leave the Police Station, the 11th respondent informed him that the crew of P.T.C. bus had stopped the bus with passengers in front of the Police Station and had informed him about four or five unruly elements armed with 'patta' knives were terrorising the public and indulging in violence near Ajantha hotel. 11th respondent requested respondents 8 and 9 to assist him in controlling he violence in the public road and to apprehend the culprits. The Inspector of Police and the Sub Inspector attached to the law and order wing were not available in the Police Station. When they reached there they found four persons including Wilson armed with 'patta' knife and in a drunken mood were terrorising and indulging in violence near Ajantha hotel. As they tried to apprehend them, all the four persons ran towards different directions with their weapons. He stood at the scene and was pacifying the public who had gathered there complaining about atrocities of the rowdy elements. The Police could apprehend only one person viz., Wilson with his knife and brought him near Ajantha Hotel. He was informed by the other policemen, he ran into Gangai Amman Kovil Street and he fell on the old tin scrap materials and iron rods and sustained minor injuries. When the policemen went near him, he threatened the police to assault them. However, he was overpowered and caught. At about 1.00 a.m. all of them returned to the Police station. As he found some injuries on the legs and hands of Wilson, he asked the 11th respondent to send Wilson to the hospital. Thereafter, he and respondents 8 and 9 left the Station on duty. He again came back to the Royapettah Police Station and went to his house. He came to know from the 11th respondent that a case has been registered in Crime No.860 of 1993. 11th respondent had also sent the injured Wilson to the Government Royapettah hospital for treatment. He was treated by Dr.Khadri, C.M.O. and drunkenness certificate was issued by Dr.Thirunavukkarasu. At that time Wilson was in good condition and was speaking with the police officials. He also came to know that about 7.00 A.M., on the following day (22.6.19 93), Wilson was in good condition. At about 7.30 A.M. Anandraj, Sub-Inspector had enquired about the night incident. At about 8.00 A.M. Sivaraman, Inspector (L & O) also enquired Wilson pertaining to Crime No.860 of 1993 and also got the names of the other accused included in the night incident near Ajantha hotel. At about 9.30 a.m. one Dhambachari along with another Constable who were known to the petitioner came to the Police Station for the release of Wilson on bail. However, the Sub Inspector informed them that he has to send Wilson for remand and asked them to move for bail later. At about 10.00 a.m. Anandraj, Sub-Inspector informed Sivaraman that Wilson felt giddiness and Anandraj sent Wilson to the Government hospital for treatment. When Wilson arrived at the hospital, he was declared dead by the Doctor. The matter was informed to the higher officials by the Inspector of Police. Sivaraman also personally informed through a report to the fourth respondent for the purpose of conducting an enquiry under Clause 145 of P.S.O. 12. The deponent has denied the allegations in the affidavit that respondents 7 to 11 were involved in the custodial assault, torture and murder of petitioner' son. The deponent has also referred to the criminal proceedings which ended in acquittal and the departmental proceedings which also ended in their favour as already referred to in the counter filed by the Commissioner. The deponent contends that the entire allegations made by the petitioner in the affidavit were baseless and motivated. In the evidence before the Criminal Court the alleged presence of Nalini, Kumar, Rnganayaki, Maragatham and Gajendran were found to be false though they were examined as prosecution witnesses. They did not support the case of the petitioner. The deponent was not personally aware of the allegations stated in paragraph Nos.3 (f) and 3(g) in the affidavit. He had left the Police Station along with respondents 8 and 9 for apprehending another accused while the Law & Order Police took charge of the accused. The allegation that the victim had been brutally attacked with knife and was murdered by police officials was false and denied. The post-mortem certificate was clear to the effect that injuries found on the body of the petitioner' son were simple in nature and the same could not have caused the death. Respondents were not responsible for the death of the petitioner's son. The petitioner was making false and exaggerated allegations. 13. Learned counsel for the petitioner made elaborate submissions on the facts and circumstances which led to the death of the petitioner's son and contended that the facts stated in the affidavit relating to the arrest of the deceased and the happenings in the Police Station have not been effectively denied. Even going by the facts stated in the counter affidavit filed on behalf of the respondents 7 to 11, though the victim was said to have sustained some injuries by falling over scrap and iron materials while he was chased by the police even before he was brought to the Police Station, it is clearly stated that victim was in good condition and he was speaking with the police officials. Therefore, it was the responsibility of the respondents to explain as to how the victim had sustained fracture injuries met with his death. 14. Learned counsel further contends that though it is true that the individual respondents were acquitted by the Criminal Court and generally found not guilty in the departmental proceedings also, it was obvious that the witnesses have been won over by the respondents being police officials and the witnesses had been made to turn hostile. A perusal of the report of the P.A. to the Collector dated 28.1.1994 would reveal the correct facts relating to the incident. Learned counsel contends that the report had spelt very clearly the manner in which the deceased had met with his death due to the high-handed action of the party/respondents and how they had indulged even in manipulation of the records and obtained false medical certificates as though the victim was intoxicated. I am not referring to the submissions of learned counsel for the petitioner in the context of the said Report in order to avoid repetition and I will deal with the findings in the Report subsequently. Learned counsel further contended that the entire circumstances clearly establish that the victim had sustained fatal injuries as could be seen from the post-mortem report only due to man-handling, torture and violence while in police custody. The victim was the only son of the petitioner who herself is a widow with a daughter to look after. Thus the petitioner had lost her only hope for her future life and hence requires to be adequately compensated. Reliance was also placed on some of the rulings of the Supreme Court in support of maintainability of the claim for compensation in a writ proceeding. 15. Mr.V.Raghupathy, learned Government Pleader contends that the Government had done everything in a proper and impartial manner and had taken prompt follow-up action. On receipt of the report under Clause 145 of P.S.O., both departmental as well as Criminal proceedings were set in motion against the assailants. But the nature of evidence was such that the ultimate decision in both the proceedings went in favour of the alleged assailants. Even so, the petitioner was paid a sum of Rs.50,000/- as compensation. Learned Government Pleader also fairly stated that any fair compensatio n could be fixed by the Court and he would submit that even though strictly speaking the petitioner should be directed to go before the Civil Court, in his assessment, a further sum of Rs.50,000/- will be reasonable. 16. Learned counsel for respondents 7 to 11 after reiterating the factual submissions in the counter, submitted that the allegations of assault on the victim while in custody was totally false. The injuries sustained by the victim were only due to accidental fall on the metalic debris of building materials while he was running away when he was chased by the police. The medical evidence relating to the nature of the injuries clearly establishes the version of the respondents. The respondents were only discharging their lawful duty while apprehending the victim, who behaved like a rowdy in a public place creating law and order situation. Both the departmental proceedings and the prosecution before the Criminal Court had ended in their favour and they had been acquitted honourably. Hence the above writ petition has to be held as infructuous. The evidence of the Doctor shows that the victim suffered from adverse heart condition.