IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 OP.No. 7859 of 2002(I) ---------------------- PETITIONER(S): --------------- SHOBHANA, W/O. LATE SASI, AGED 39 YEARS, VELAMPARAMBIL HOUSE, RAJAKKAD P.O., KANAKKUNNU KARA. BY ADV. SRI.A.X.VARGHESE RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REP. BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 3. SUPERINTENDENT OF POLICE, C.B.C.I.D., KOTTAYAM. 4. CIRCLE INSPECTOR, PHILIP, CRIME BRANCH CID, MOOLAMATTOM, THODUPUZHA. 5. SUB INSPECTOR OF POLICE, VELLATHUVAL POLICE STATION. PUBLIC PROSECUTOR SRI.C.K.SURESH THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/03/2008, THE COURT ON 15/01/2009 DELIVERED THE FOLLOWING: APPENDIX EXT.P1: PHOTOCOPY OF FIR. EXT.P2: PHOTOCOPY OF REMAND APPLICATION. EXT.P3: PHOTOCOPY OF REPRESENTATION DT. 21/9/92. EXT.P4: PHOTOCOPY OF DO. DT. 7/10/96. EXT.P5: PHOTOCOPY OF NEWS ITEM IN KERALA KAUMUDI DT. 24/7/96. EXT.P6: DO. DT. 25/7/1996. EXT.P7: DO. DT. 26/7/1996. EXT.P8: PHOTOCOPY OF ORDER BY JMFC ADIMALY DT. 15/12/1992. EXT.P9: PHOTOCOPY OF CERTIFICATE ISSUED BY DR.SAROJINI KUNJAMMA DT. 3/5/2006. EXT.P10: PHOTOCOPY OF RECEIPT . EXT.P11: PHOTOCOPY OF ACKNOWLEDGEMENT CARD. EXT.P12: PHOTOCOPY OF COMMUNICATION DT. 31/10/1996. A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P. No. 7859 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of January, 2009 JUDGMENT Petitioner and her late husband Sasi were arraigned as accused in crime No.84 of 1991 of Vellathooval Police Station for the offence punishable under Section 302 read with Section 34 IPC in connection with the death of one Joy, Son of John whose dead body was found in a pond near the residence of the petitioner in the morning of June 18, 1991. Petitioner and her husband were arrested in connection with the above crime and they were in judicial custody for some time. Later, both of them were released on bail. But ultimately the Police did not file charge sheet in the above crime since sufficient materials could not be collected to establish the involvement of the petitioner and her husband. The case was referred as undetected. In the meanwhile, petitioner's husband passed away in the year 1999. 2. This writ petition was filed in March 2002 praying for issue of a writ in the nature of mandamus directing respondent No.1 to pay a sum of Rs.10 lakhs to her “by way of public law remedy for continued illegal incarceration and the continuous dragging of the petitioner and her deceased husband after implicating in a false case”. There is a further prayer to issue a direction to respondent No.1 to institute an enquiry into the above episode of inhuman treatment meted out to the petitioner and her deceased husband at the instance of the Police Officers, to fix the responsibility of the culprits and to realise the amount of compensation to be awarded by respondent No.1 to the OP.No.7859/02. 2 petitioner from those officers. 3. As mentioned earlier, the dead body of one Joy was found in a small pool of water or pond (ole) at Koothupara in Idukki District in the morning of June 18, 1991 near the residence of the petitioner, who was living with her husband Sasi at the relevant point of time. Sri.Sasi reported the matter to Vellathoval Police at about 9.15 a.m. on that day. Initially the Police registered Crime No.84 of 1991 under the caption “un-natural death”. Later, Section 302 IPC was incorporated, on the basis of the post mortem report which indicated that late Joy was dumped in the pond while he was in an unconscious state. 4. The investigation conducted by the local police did not yield any result. Therefore the case was transferred to the crime Branch CID in November 1991. It is on record that petitioner and her husband Sasi were arrested by the CB CID on November 9, 1992 on the allegation that in the course of the investigation both of them had confessed to the crime and that the weapon used for the murder (an axle handle made of arecanut tree) had been recovered from near their residence under Section 27 of the Evidence Act. While petitioner was released on bail in December 1992 itself (about a month after her arrest), petitioner's husband was released from judicial custody only in March 1993 and that too since the Police had failed to file the charge sheet against the accused. 5. As has been noticed already, this writ petition was filed in OP.No.7859/02. 3 March 2002 alleging that the Police had brutally assaulted and tortured petitioner and her husband after taking them into custody for the purpose of investigation of the above crime. For instance, it is stated by the petitioner that on June 18, 1991 when the Circle Inspector of Police attached to Adimali Police Station had visited the scene of occurrence, he had directed petitioner's husband to report at the Police Station on the next day. Accordingly petitioner's husband had reported before the Circle Inspector and given a statement. On the next day, the Superintendent of Police and the Circle Inspector came to petitioner's residence and recorded her statement as well as that of her husband. Petitioner's husband was again summoned to the Police Station. On that day, according to the petitioner, her husband was “threatened and tortured” at the Police station. After about a week the Circle Inspector had summoned petitioner's husband once again and allegedly “tortured him brutally”. Petitioner further proceeds to state that her husband was thereafter frequently summoned to the Police Station and was “tortured for the next nine months”. According to the petitioner “next ten months passed like this”. After ten months, officers attached to Crime Branch office, Moolamattom summoned the petitioner and her husband. According to her, both of hem were brutally attacked at the Police Station and it was only then that she realised that the attempt of the Crime Branch was to implicate them in the murder. 6. Petitioner further states that on a day when petitioner's OP.No.7859/02. 4 husband was at the Crime Branch office, Moolamattom and was being tortured brutally, some persons were brought to the Police Station in a police jeep “who were suspected to be murderers”. But shortly thereafter, “a group of political leaders of the ruling party forcibly entered the Crime Branch office and got the “murderers” released. Thereafter the officers continued to torture petitioner's husband. But according to the petitioner, after the above incident, the Officers did not make any attempt to proceed against the real culprits. On the contrary, they summoned innocent and helpless locals to the station and began to torture them. She further alleges that one Arjunan who was also questioned by the Police in connection with the above crime had committed suicide. 7. Ultimately, after brutal torture of her husband for five days, he was released and one month thereafter some officers of the Crime Branch came to her residence and again took him into custody. Petitioner alleges that her husband was taken to Vellathooval Police Station by the Circle Inspector and four Police Constables. They removed his clothes and tied his hands in the upward position. He was beaten and kicked on his chest and lower abdomen. He was asked to lie down on the floor and one Police Constable stepped on his body and another constable rolled a roller over his legs. 8. It is further alleged that petitioner's husband began to vomit blood and when he asked for some water he was given urine and was made to drink it forcibly. The case of the petitioner is that this OP.No.7859/02. 5 prolonged inhuman treatment forced her husband to agree to make a confession that he and his wife (petitioner) had committed the above crime. 9. Petitioner has further alleged that she was also summoned to the Crime Branch office at Moolamattom and detained there while her husband was lying in the other room suffering the acts of torture. It is further alleged that she was also beaten after tying her hands and hanging from the ceiling beams in a naked condition. She was beaten and kicked on her chest and lower abdomen, her hair was pulled out and she was severely tortured. She was also made to drink urine. According to her, when she knew that her husband had confessed to the crime, she also followed suit, as she was on the brink of death. Her uterus ruptured resulting in severe bleeding. 10. According to the petitioner, on the next day she and her husband were taken to the office of the Superintendent of Police, Kottayam and asked to follow the directions of the officers in order to make recovery of the alleged weapon of the crime. To make a long story short, the petitioner states that she and her husband ultimately confessed to the crime before the Police. The weapon was recovered on the basis of the alleged information furnished by them. They were arrested and produced before the jurisdictional Magistrate. 11. I have referred to the averments and allegations made by the petitioner in the writ petition about the alleged acts of torture of not only the petitioner but also of her husband a little too elaborately, only OP.No.7859/02. 6 to have a clear picture of what the petitioner and her husband allegedly suffered at the hands of the Police. As mentioned earlier, petitioner was released from judicial custody after about a month of her arrest on December 15, 1992 as is revealed from Ext.P8. Petitioner's husband Sri.Sasi was of course in judicial custody for about four months. He was released only in March 1993. 12. It is true that petitioner has raised a contention that she and her husband had submitted Ext.P4 representation before the Chief Minister of Kerala on October 7, 1996 complaining against their false implication in the above crime. Significantly, there is not even a whisper in Ext.P4 representation about the alleged brutalities committed either by the local Police or the Crime Branch against the petitioner or her husband. 13. Petitioner has also invited my attention to the serialised reports (Exts.P5 to P7) published in one of the Malayalam newspapers, which, according to the petitioner had “candidly” reported about the inhuman torture by the Police inflicted on the petitioner and her husband. 14. Petitioner has also produced Ext.P9 medical certificate dated May 3, 2006 allegedly issued by a retired Ayurveda Doctor at Rajakkad. In the said certificate it is seen stated by the Medical officer that the petitioner had been under his treatment since November 1993 and that petitioner had informed him of her torture in police custody. It is further stated that petitioner had injuries on chest and other parts of OP.No.7859/02. 7 her body. The Medical Officer has further stated that the injuries referred to above could have been sustained due to police torture. 15. The same Medical Officer had issued Ext.P8 certificate regarding the treatment allegedly administered to the late husband of the petitioner since November 1993. According to the Doctor, petitioner's husband was suffering from “head ache, chest pain and blood vomiting”. It is further stated in the certificate that petitioner's husband had complained that he was tortured in police custody. It is further stated by the Doctor that the injuries mentioned above could have been sustained in the course of police torture. But it is significant to note that both these certificates are seen issued in 2006. 16. Apart from the documents referred to above, petitioner has not produced any material to show that either she or her husband had made any complaint before any authority about the alleged custodial torture perpetrated by the Police at the Police Station or at the Crime Branch office at Moolamattom between June 1991 till November 1992. Going by the nature of the alleged acts of torture as described in the writ petition, it cannot be assumed that either the petitioner or her husband would have kept quiet without approaching the Court or other appropriate authorities for about 9 years. It may also be noticed that the specific case of the petitioner is that her uterus had been ruptured resulting in bleeding because of the alleged ill treatment by the Police. 17. It is true that the Police had failed to collect sufficient pieces of evidence to charge sheet the petitioner and her husband in the above OP.No.7859/02. 8 crime. The case was ultimately referred as “undetected” in the year 1998. As mentioned earlier, petitioner's husband passed away in March 1999. Till his death he had not taken any action against the erring Police Officers, (some of whom have been named in this petition), even though it was known prior to his death that Police had referred the case as undetected. 18. Petitioner has chosen to file this Original Petition after inordinate and unexplained delay of more than nine years and that too on the basis of some bald and uncorroborated allegations of torture. In my view, petitioner cannot be granted any relief in this Original Petition on the strength of such uncorroborated and unsubstantiated allegations of torture. 19. Before parting with the case, it has to be mentioned that the investigation of the above crime was apparently conducted in a very slipshod and haphazard manner. In the course of hearing the learned Director General of Prosecution was requested to produce the C.D file since it was noticed that the officers in charge of investigation had come to different conclusions as regards sustainability of the charge against the accused. It is revealed from the files that the Officer who was initially in charge of the investigation had come to the conclusion that the petitioner and her husband were involved in the case. But his successor thought otherwise. 20. As stated earlier, the local Police had registered Crime No.84 of 1991 on June 18, 1991 under the caption “unnatural death”. Shortly OP.No.7859/02. 9 thereafter, the Police had incorporated Section 302 IPC since the postmortem report revealed that the victim had suffered 19 ante mortem injuries on his body and that he was dumped in the pond while he was in an unconscious condition. The CB CID took over investigation on November 28, 1991. The Officer in charge of the investigation came to the conclusion, allegedly on the basis of the confession statement made by the petitioner and her husband and also pursuant to the recovery of the weapon allegedly used for the murder, that petitioner and her husband were involved in the case. It is revealed from the CD file that on the basis of the factual report submitted by the Investigating Officer (Sri.Philip Joseph, Detective Inspector), the CB CID Headquarters by its order dated June 5, 1995 had accorded sanction to charge sheet the case. 21. But the files further reveal that the Officer who succeeded Sri.Philip Joseph apparently took the view that his predecessor had not conducted a proper investigation in the case. This view was tacitly approved by the superior officers. Therefore further investigation was conducted in the case ignoring the earlier sanction order issued by the CB CID Headquarters. Ultimately, the Investigating Agency came to the conclusion that involvement of the petitioner and her husband in the crime had not been established and accordingly final report was submitted by the then Superintendent of Police, CB CID Kottayam on March 5, 1998 stating that there was no clue as to who was responsible for the murder of Joy and also that there was no possibility OP.No.7859/02. 10 of making any break through in the case in the near future. The Officer therefore requested to treat the case as undetected. The said report is available in the CD file. 22. Sri.P.G.Thampi. learned Director General of Prosecution, on the face of the apparent contradictory stand taken by the same investigating agency in the crime had filed a statement in an attempt to cover up the embarassment of the entire Police machinery. It was informed by him that a departmental enquiry had been initiated against Sri.Philip Joseph. However the delinquent officer was not found guilty and he was exonerated. The file relating to the enquiry has also been made available for my perusal. I do not propose to deal with the contents of either the CD file or the enquiry file at this stage, since in my view, it may not serve any purpose at this distance of time. Reference has been made to the above aspects only to highlight the fact that the grievance projected by the petitioner may not be entirely baseless. 23. But this Court will not be justified in awarding damages in exercise of its extra ordinary discretionary jurisdiction under Article 226 of the Constitution of India, since the averments made by the petitioner are totally bald, sketchy and uncorroborated. It is true that in appropriate cases this Court can award compensation or damages in exercise of its extra ordinary jurisdiction under Article 226, if it is established with the aid of the materials available on record that any right guaranteed under the Constitution of India had been violated OP.No.7859/02. 11 resulting in injury. But these are only exceptions. Under normal circumstances the aggrieved party has to necessarily approach the civil court especially in cases where no clinching materials are available in support of the claim. More importantly, in this case, petitioner is guilty of laches. She had not chosen to approach the court with due diligence and promptitude that is normally expected in such situations. 24. The Apex Court in Sube Singh v. State of Haryana & Ors. (2006) 2 SCC (Cri) 54 had this to say: “45. Cases where violation of Article 21 involving custodial death or torture is established or is incontrovertible stand on a different footing when compared to cases where such violation is doubtful or not established. Where there is no independent evidence of custodial torture and where there is neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of human rights violation, by persons having criminal records in a routine manner for awarding compensation. That may open the OP.No.7859/02. 12 floodgates for false claims, either to mulct money from the State or as to prevent or thwart further investigation. The courts should, therefore, while zealously protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable the police to discharge their duties fearlessly and effectively. While custodial torture is not infrequent, it should be borne in mind that every arrest and detention does not lead to custodial torture” (emphasis supplied) Having carefully perused the entire materials available on record. I am not persuaded to issue any direction to respondent No.1 to pay compensation to the petitioner. The Original Petition fails and it is accordingly dismissed. A.K. Basheer an. Judge.