IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 WA.No. 1824 of 2010 --------------------- AGAINST THE JUDGEMENT IN WPC.21126/2007 Dated 20/08/2010 .................... APPELLANT/2ND RESPONDENT: ---------------------------------- VASUDEVAN.P.T., AGED 45 YEARS, S/O.KILIYAN, CIRCLE INSPECTOR OF POLICE, BALUSSERY, KOZHIKODE RURAL, KOZHIKODE DISTRICT, RESIDING AT PADINJARATHRYIL (H), ARIYALLOOR.P.O., MALAPPURAM DISTRICT-676 312. BY ADV. SRI.M.T.BALAN SRI.B.JAYABAL RESPONDENTS/PETITIONER/IST RESPONDENT: ---------------------------------------------------- 1. PURUSHOTHAMAN, S/O.KUNHAMBU, AGED 46 YEARS, THAYAMBATH (H), KELOTHU, PAYYANNUR, KANNUR. 2. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. R2 BY SENIOR GOVERNMENT PLEADER, SMT. K.MEERA. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.No. 1824 of 2010 APPENDIX APPELLANT'S EXHIBITS: ANNEXURE - 1: TRUE COPY OF THE KERALA GAZETTE NOTIFICATION NO.26 DATED 27/06/06. /TRUE COPY/ PA TO JUDGE J. CHELAMESWAR, C.J & P.R.RAMACHANDRA MENON, J. ---------------------------------------------- W.A.No. 1824 of 2010 ---------------------------------------------- Dated this the 29rd day of September, 2011 JUDGMENT Ramachandra Menon,J This appeal arises from the verdict passed by the learned Single Judge in W.P(C).No. 21126 of 2007, whereby the appellant has been mulcted with the liability to satisfy a sum of Rs.50,000/- as compensation payable to the writ petitioner, in respect of an alleged 'police excess', based on the finding arrived at by the Asst. Collector in the enquiry conducted by him, as revealed from Exhibit P3 report. The relevant portion of the report has been extracted in the judgment under appeal in paragraph 4, which reads as follows: “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 W.A.No.1824/10 2 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 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. W.A.No.1824/10 3 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 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.” W.A.No.1824/10 4 2. After going through the materials on record, it was observed by the learned Judge that the atrocities alleged against the officer concerned stood very much vindicated and that the State was responsible to meet the claim for compensation, to the specified extent and the rest was left to be proceeded before the appropriate civil court, if the writ petitioner was so advised in that regard. It was also made clear that the State would be at liberty to get the amount recovered from the concerned officer i.e. the appellant. It is against the said verdict, that the present Writ Appeal has been filed. 3. The case of the appellant is that his 'name and address' as given in the cause title of the Writ Petition is not correct and that his name, which originally stood as 'P.T.Vasu' was subsequently changed as Vasudevan P.T., by virtue of the notification published in the gazette dated 27.6.2006 as can be seen from Annexure-1 produced in the Writ Appeal. It is also stated that the appellant was working elsewhere at the relevant time and that the verdict was passed without giving an effective opportunity of hearing, which is sought to be interfered. W.A.No.1824/10 5 4. In view of the nature of the contentions raised, we called for the records, pertaining to W.P(C).No.21126 of 2007 and also another Writ Petition bearing No. W.P(C). No. 18890 of 2007 preferred by the very same writ petitioner seeking for appropriate disciplinary action to be taken and finalised against the appellant herein. It is seen that the name of the appellant is described as 'P.T.Vasu' itself in the Writ Petition (W.P.(C) No. 18890 of 2007), though the address differs. It is also seen that the notice issued in the said name and address was served and the appellant entered appearance and has filed a detailed counter affidavit dated 4.7.2007. 5. On going through the materials with regard to the matter of service of notice in W.P(C)No. 21126 of 2007, it is seen that notice was ordered by this Court by 'Speed Post' and the acknowledgment card has been returned bearing his signature dated 24.07.2007. The learned counsel for the appellant submits that the signature borne on the acknowledgment card does not belong to the appellant and the appellant was working as the Circle Inspector of Police in the above said address. W.A.No.1824/10 6 6. After hearing the learned counsel at length, this Court finds that, if the averments raised by the appellant in the memorandum of appeal are correct, it is a matter for him to have brought it to the notice of the learned Single Judge at the first instance. In the said circumstances, we do not find it as a fit case to examine the merits in appeal. Interference is declined and the appeal is dismissed, however, without prejudice to the rights and liberties of the appellant to pursue other appropriate remedy, if so advised. J.CHELAMESWAR, CHIEF JUSTICE P.R.RAMACHANDRA MENON, JUDGE ttb