IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.2.2009 C O R A M : THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.Nos.120 to 122 of 2009 and M.P.Nos.1 and 2 of 2009 S.Lakshmanan .. Petitioner in W.P. No.120 of 2009 T.Pandiyan .. Petitioner in W.P. No.121 of 2009 D.Sathyamoorthy .. Petitioner in W.P. No.122 of 2009 -vs- 1.The Assistant Registrar (Law), State Human Rights Commission, Tamil Nadu. 2.C.Thilaivannan .. Respondents in all the W.Ps. PRAYER : Petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari calling for the entire records in respect of the order passed by the Human Rights Commission in SHRC.No.3799/2006 dated 16.5.2008 and set aside the same. For petitioners : Mr.D.Rajagopal For respondents : Mr.Raja Kalifulla, GP ***** O R D E R K. CHANDRU, J. The three petitioners have challenged the common order passed by https://hcservices.ecourts.gov.in/hcservices/ the State Human Rights Commission, Tamil Nadu (represented by the first respondent) made in SHRC Case No.3799 of 2006 dated 16.5.2008. By the aforesaid order, the Commission held that since the petitioners along with two others were responsible for violation of human rights of the second respondent, they are bound to pay a compensation of Rs.1000/- each (totalling a sum of Rs.5000/-). A further direction was given to the State of Tamil Nadu to pay the said amount to the second respondent and further directed to recover the said sums out of the salaries of the three petitioners along with two other policemen who were named in the said complaint. 2. It is seen from the records that the petitioner in W.P.No.120 of 2009 (S.Lakshmanan) was at the relevant time the Inspector of Police, Ambur Town Police Station, Vellore District. The petitioner in W.P.No.121 of 2009 (T.Pandian) was an Head Constable in Ambur Town Police Station and the petitioner in W.P.No.122 of 2009 (Sathiamurthy) was a special branch Head Constable. It was the case of the second respondent that the petitioners along with one Venkatesan, Sub-Inspector of Police, Ambur Village Police Station and Dharmalingam, Sub-Inspector of Police, Ambur Town Police Station entered and forcibly took him out of his house to the police station. When the father and mother of the second respondent intervened, the petitioner in W.P.No.120 of 2009 (Lakshmanan) drove them away. The second respondent was taken to Ambur Rural Police Station in a jeep and he was questioned whether he was responsible for the theft of a motor bike (Pulsor). 3. When the second respondent informed that he had purchased the vehicle with Registration No.TN-22 AD 9079 from a person at Tambaram, he was abused by the policemen and was compelled for admitting that he had committed a chain snatching. When he refused to succumb to their pressure, they forcibly took his fingerprints and also made to kneel in the police station between 3.30 a.m. to 9.30 p.m. (on 14.2.2006). Only thereafter he was driven out of the station. His vehicle was returned on the next day after his repeated requests. It was also the case of the second respondent that he belonged to dalit community and he was an educated person. The incident had caused mental agony apart from bringing disrepute in the eyes of the local community. The second respondent made a complaint to the Superintendent of Police, Vellore. The Superintendent of Police, Vellore in his report stated that he believed the version of the police officials who caused the deprivation of human right of the second respondent. It was thereafter he lodged a complaint with the State Human Rights Commission and his complaint was taken on file as SHRC Case No.37 of 1999 and notices were ordered to the petitioners as well as two other policemen. 4. It was the stand of the petitioners along with two other policemen that a case was registered in Ambur Town Police Station in https://hcservices.ecourts.gov.in/hcservices/ Crime Nos.335, 313 and 316 of 2006 respectively under section 379, IPC and during the enquiry it was found that theft of a chain was committed by the complainant. The persons who snatched the chain had come in a motor bike of Pulsor Model and the description of the accused given by the defacto complainant resembled that of the second respondent. Therefore the second respondent was called to the Ambur Police Station on 14.2.2006. After the proper enquiry he was sent out and no complaint was made by the said person. The Commission found that since the alleged theft had taken place within the jurisdiction of the Ambur Town Police Station, there was no reason for the second respondent to be taken to the Ambur Police Station which had no jurisdiction to enquire into the complaint. Their further contention that the second respondent was not taken to Ambur Taluk Police Station and since two of the accused police officers also belonged to the dalit community there was no chance of the second respondent being accused with caste names and his complaint to the Superintendent of Police was not immediate and it was lodged after a month. It was also pleaded that they were not in the place of occurrence at the time of the incident. 5. The State Human Rights Commission rejected the stand taken by the petitioners and held that their stand was at variance with the report sent by the Superintendent of Police, Vellore. The Commission also found that the police officers visited the house of the second respondent during midnight and took the second respondent in a jeep. The Commission also found that the story set up by the petitioner was a calculated attempt to escape from the arm of law and no credence can be attached to their stand. The petitioners' attempt to set up a plea of alibi was not proved. 6. In paragraph 17 the Commission recorded the following findings:- Para 17. The complainant has stated that he was made to stand between3.00 a.m. to 9.00 pm. On 14.6.2006 in the Ambur Taluk P.S. Pichandi, PW3, an independent witness who hails from the village of the complainant, P.W4 Rajamanikkam, neighbour and PW.5 Sivalingam, brother-in-law who is working as Head Constable in RPF Southern Railway who came to the police station on hearing the telephonic message from P.W.2, father of the complainant have clearly stated that the complainant was kept inside the Ambur Talulk PS. All of them have no axe to grind against the respondents. P.W.5 has stated that he got permission from the Dy.S.P. And met the complainant in the police station. Their evidence cannot be brushed aside easily. Neither the complainant nor the witnesses summoned on his side https://hcservices.ecourts.gov.in/hcservices/ have stated that the complainant was tortured by the respondents. The complainant alone has stated that the respondents made him to stand and also kneel inside the police station. The other witnesses have not stated so. However, in the circumstances of the case, the allegation of the complainant that the respondents had committed human rights violation by taking him in their custody by entering insider his house and also taking him to a different police station has been proved. Hence respondents 1 to 5 are liable for violation of human rights against the complainant Thillaivanan". It is in view of these findings, the Commission thought it fit to order compensation. 7. On the basis of the finding of fact recorded by the Commission, a question will arise as to whether the action of the petitioners was contrary to law. The petitioners had not claimed that they have arrested the second respondent in connection with any offence but they questioned him in connection with the complaint of theft. In such circumstances, pulling out a person from the house during midnight and forcibly taking him to another police station limit for the purpose of questioning is a clear transgression of civilized limits and is in gross violation of Articles 21 and 22 of the Constitution of India. 8. The Supreme Court in its judgment in D.K.Basu -vs- State of West Bengal reported in 1997 (1) SCC 416 had set out 11 guidelines (presently called as 11 commandments) to be followed by station house officers. In case of violation of such guidelines, the Supreme Court has also directed that action should be taken and the erring persons should be punished. The following passage found in paragraphs 37 and 38 may be extracted below:- ''Para 37. The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier. Para 38. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee." . https://hcservices.ecourts.gov.in/hcservices/ 9. The Supreme Court in its decision in National Human Rights Commission -vs- State of Arunachal pradesh and another reported in AIR 1996 SC 1234 : (1996) 1 SCC 742 emphasised the duty of the State in protecting the life and liberty of human being. The following passage found in paragraph 20 is usefully quoted: Para 20. ''We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty according to procedure established by law. Thus the State is bound to protect the life and liberty of every human being be he a citizen or otherwise." 10. As to the competency of granting compensation for any human right violation by courts, the Supreme Court had in more than one occasion dealt with the said issue. The Supreme Court in its decision in Nilabati Behera -vs- State of Orissa reported in AIR 1996 SC 1234 : (1993) 2 SCC 746 held that the award of compensation in a proceeding under Article 32 by the Supreme Court or under Article 226 by the High Court is a remedy available in public law based on strict liability for contravention of fundamental rights. It is held that the defence of sovereign immunity does not apply in such a case even though it may be available as a defence in private law in an action based on tort. It is held further that the award of damages by the Supreme Court or the High Court in a writ proceeding is distinct from and in addition to the remedy in private law for damages. It is one mode of enforcing the fundamental rights by this Court or High Court. Reliance is placed upon Article 9 (5) of the International Covenant on Civil and Political Rights, 1966 which says, any one who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. 11. Further, the Supreme Court in its decision in People's Union for Civil Liberties -vs- Union of India and another reported in AIR 1997 SC 1203 : (1997) 3 SCC 433 held as follows:- ''It is not clear whether our Parliament has approved the action of the Government of India ratifying the said 1996 Covenant. Indeed, it appears that at the time of ratification of the said Covenant in 1979, the Government of India had made a specific reservation to the effect that the Indian Legal System does not recognise a right to compensation for victims of unlawful arrest or detention. This reservation has, of course, been held to be a little relevance now in view of the decision in Nilabati Behera https://hcservices.ecourts.gov.in/hcservices/ and in D.K.Basu." 12. A Division Bench of this Court in T.Loganathan, Inspector of Police -vs- State Human Rights Commission reported in 2007 (7) MLJ 1067 had dealt with a similar question and upheld the order of the SHRC. 13. In the light of the above, the grievance projected by the writ petitioners has no substance and the writ petitions are liable to be dismissed and accordingly they are dismissed. However, there will be no order as to costs. 14. As the writ petitions are dismissed, there is no impediment for the State Government in implementing the order of the SHRC. Since the writ petitioners are under the services of the State, we direct the Government to implement the orders of the SHRC within a period of eight weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petitions will also stand dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar js To The Assistant Registrar (Law State Human Rights Commission, Tamil Nadu at Chennai. +2ccs to Govt. Pleader Sr 6416 & 6607 VSV (CO) km/4.3. W.P.Nos.120 to 122 of 2009 and M.P.Nos.1 and 2 of 2009 https://hcservices.ecourts.gov.in/hcservices/