IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.2.2009 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE S.TAMILVANAN Habeas Corpus Petition No.1006 of 2008 E.Gokulakrishnan ... Petitioner Vs. 1.The Commissioner of Police, Coimbatore City, Coimbatore District. 2.Charles, The Inspector of Police, B-9 Saravananpettai, Coimbatore District. 3.Gopalasamy, Assistant Commissioner, Singanallur, Coimbatore, Coimbatore District ... Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, directing the respondents to produce the detenues (1) Dr.Jayanthi, wife of Thirunavukkarasu (2) Manivannan, Advocate (3) Chinna Alagu, Advocate; (4) Shankar, Advocate and (5) Ajmal, Driver, now detained under the custody of the respondents before this Court and set them at liberty, award Rs.5,00,000/= as compensation and take action against erring officials. For petitioner : Mr.Prabhakar for Mr.P.Balamurugan For respondents : Mr.N.R.Elango, A.P.P. O R D E R ELIPE DHARMA RAO, J. This case relate to the never ending issue of Police excesses against the citizens. To understand the case, the averments in the case are to be narrated in a nut shell. This petition has been filed by a practising Advocate of Chennai alleging that his sister and three other https://hcservices.ecourts.gov.in/hcservices/ Advocates and a Driver were illegally detained by the respondents and prayed to set them at liberty further awarding a compensation of Rs.5,00,000/= and to take action against the erring officials. 2. The case of the petitioner is that his sister Dr.Jayanthi is residing at B-2 Government Employees Quarters, Three Storied Buildings, Ganapathy, Coimbatore and that earlier she lodged a complaint dated 9.7.2008 before the Commissioner of Police, Coimbatore against the Secretary of the Association and his henchmen, who committed dacoity of 9 sovereigns of jewels in the presence of the Sub Inspector of Police, Kannian, B-9 Police Station. According to the petitioner, the said persons continuously tortured his sister Dr.Jayanthi along with women folk Viji, Kala, Papathi and Jayanthi, who is the wife of the above said Secretary of the Association and therefore, his sister requested him to come over to Coimbatore to sort out the issue and therefore, he went to Coimbatore on 9.7.2008 at 11.30 p.m. along with three other Advocates Manivannan, Chinnalagu, Shankar in a Tata Safari vehicle bearing registration No.TN-07 AS-9696, driven by one Ajmal. It is further averred by the petitioner that on 11.7.2008 at about 11.00 a.m., himself along with his sister and brother Advocates reached the office of the Commissioner of Police, Coimbatore and met the Commissioner at about 5.00 p.m. on 11.7.2008; that the Commissioner required them to meet the Assistant Commissioner Gopalasamy, who directed them to reach the spot immediately. 3. It is further submitted that at about 8.00 p.m., on 11.7.2008, the second respondent herein by name Charles, Inspector of Police, B-9 Police Station, Saravampettai came to the residential quarters and enquired the sister of the petitioner and other Advocates; that the above said Advocate and the driver Ajmal and the sister of the petitioner were detained in the residential quarters upto 11 p.m.; that the Assistant Commissioner of Police, Gopalsamy insisted to withdraw the complainant to leave the place safely and thereafter, the detenus Dr.Jayanthi, Manivannan-Advocate, Chinna Alagu-Advocate, Shankar- Advocate and Ajmal-Driver were taken to B-9 Police Station and they were detained there. Thereafter, the detenues were taken to Sandeep lodge and the detenu Dr.Jayanthi suffered giddiness and vomitting and she was taken to a far-off place Sakthi Nursing Home about 10 km. away from the Sandeep Lodge and she was treated there and on the next day, on 12.7.2008, the detenus were taken to B-9 Police Station for interrogation; that the Association Secretary and Kumaresan came to Police Station and the detenue Dr.Jayanthi was forced to withdraw her complaint and on her refusal, Mr.Charles, the Inspector, continued to torture the detenus particularly Dr.Jayanthi upto 5 p.m. on 12.7.2008 and thereafter, the detenus were shifted to an unknown destination and their whereabouts are not known. 4. The petitioner would further submit that he suspects danger to the lives of detenues and the telegram sent by him on 13.7.2008 was also of no use; that the Tata Safari car bearing Registration No.TN-07 AS- https://hcservices.ecourts.gov.in/hcservices/ 9696 is in the custody of the respondent police; that the act of the second and third respondents in detaining the detenues beyond 24 hours is unjust and illegal and the detenues whereabouts are not known. Therefore, he has come forward to file this H.C.P. 5. Even though subsequently, after the filing of this H.C.P., the detenues became free birds, either on their own or after being let out by the respondents, thus making the first part of the prayer infructuous, this matter cannot be closed or disposed on that ground, since it is alleged that the respondents have violated the fundamental rights enshrined and guaranteed under the Constitution by resorting to police excesses. 6. Considering all the facts and circumstances, on 16.7.2008, a contemporary Bench of this Court has directed the Commissioner of Police, Salem, to nominate two police officials, not below the rank of the Inspector of Police in order to enquire as to: (i)whether Dr.Jayanthi was tortured by Mr.Charles, Inspector of Police, B-9, Saravananpettai Police Station, Coimbatore District on 11.7.2008 and 12.7.2008; (ii)whether the detenues by name (1) Dr.Jayanthi, (2) Mr.Manivannan (Advocate), (3) Mr.Chinna Alagu (Advocate), (4) Mr.Shankar (Advocate) and (5) Mr.Ajmal (Driver) had stayed on their own in Sandeep Lodge and their behalf who booked the lodge and also the period of their stay in the said lodge; (iii)whether rooms had been booked in Srii Aswini Deluxe, 6 & 7, Kalingarayan Street, Ramnagar, Coimbatore-641009 by one Tmt.V.Jayanthi on 12.7.2007 and if so who had occupied the rooms; (iv)whether they had been detained illegally by the respondent police, more particularly, Mr.Charles, the Inspector of Police, B-9, Saravananpettai Police Station, the second respondent herein; and (v)any other particulars with reference to the above. It was directed to submit a report by 23.7.2008. Accordingly, the Assistant Commissioner of Police (Crime) North Range, Salem City, who was nominated by the Commissioner of Police, Salem City, has submitted his report through the Commissioner of Police, Salem City before this Court. which was commented as unfair and one-sided by the learned counsel appearing for the petitioner and by Mr.R.C.Paul Kanagaraj, who advanced his arguments in the capacity of the President of Madras High Court Advocates Association. 7. A perusal of this report would show that the Police Officials nominated by the Commissioner of Police, Salem, have not enquired and recorded the statements of the victims, even after their release, as has https://hcservices.ecourts.gov.in/hcservices/ been rightly pointed out by the learned counsel for the petitioners. The specific allegation of the petitioners is that the detenus were taken into illegal custody on 11.7.2008 and their whereabouts were not known till 14.7.2008. Rarely in cases of police excesses, direct occular evidence of the complicity of the Police personnel would be available. Generally speaking, it would be police officials alone who can only explain the circumstances in which a person was taken into custody. In the case on hand, though pursuant to the direction of this Court, a report has been filed by the two police officials nominated by the Police Commissioner, Coimbatore, the report filed by them was found to be not true. Bound as they are by the ties of brotherhood, it is not unknown that the Police personnel try to prevent the truth to save their colleagues. 8. Considering the fact that the report submitted by the police officials nominated by the Commissioner of Police, Salem, consisting of one Assistant Commissioner of Police could not be trusted, this Court, by the order dated 23.7.2008, has appointed The Honourable Mr.Justice Malai Subramanian, a retired Judge of this Court, to enquire into the following issues, which were also indicated to the team consisting of the two police officials, and to submit a report: 9. Pursuant to the orders of this Court, the learned Judge, The Honourable Mr.Justice Malai Subramanian, has enquired into the matter on 10.8.2008 and 11.8.2008 at Circuit House, Coimbatore wherein on behalf of the petitioner, Mr.E.Gokulakrishnan, the petitioner in the HCP; Dr.Jayanthi, Mr.Shankar, Advocate, Mr.M.Baranikumar, Advocate, Mr.A.Manivanna, Advocate, Mr.P.Chinna Alagu, Advocate, Mr.S.Ajmal, Car Driver were examined by Mr.Shankara Subbu, Advocate and on the side of the respondents, the Sub Inspector of Police Mr.Kannaiyan, Mrs.Srikala, Mrs.Mahalakshmi, Mr.Kumaresan, Mrs.Vijayalakshmi, Mrs.Sheela, Mr.Gopalakrishnan, Mr.Senthilkumar, Mr.D.Murugadoss, Mr.A.Karthikeyan, Doctor Selvaraj, Doctor Rathinasamy, Mr.Charles Inspector of Police were examined by the Assistant Commissioner of Police, who also deposed as a witness. 10. The learned Judge, in his report, has summed up his findings, as could be seen from Page No.19 of his report, which read as follows: "To sum up, there is no evidence of torture to either Dr.Jayanthi or the Advocates and the driver at any point of time; the presence of Inspector of Police and the Assistant Commissioner of Police at the residential quarters was only to make enquiry and to pacify the residents and to retrieve the detenues from the enraged mob and hence it cannot be said that the detenues were illegally detained at the residential quarters. The contention in the affidavit that after 5 p.m. On 12.7.2008, the detenues were shifted to an unknown destination has been given a goby (sic. go-bye) by the detenues themselves since they uniformly stated that they were https://hcservices.ecourts.gov.in/hcservices/ kept in Sandeep Lodge till 4 p.m. on 14.7.2008, which fact has been disproved by documentary evidence as discussed supra. The only proved circumstances are that they were staying in the lodge under police surveillance on the night of 11.7.2008 which may amount to detention and that they were kept at the police station from 9 a.m. to 5 p.m. on 12.7.2008 for enquiry while their Advocate Mr.Baranikumar was not allowed entry by the constables and the other parties also came to the police station for enquiry." 11. In the case on hand, the firm allegation of Dr.Jayanthi is that the Association Secretary Mr.Narasiman, has demanded a sum of Rs.2,500/= as contribution for the Association and since she refused to pay the money, he threatened her with dire consequences and on 7.7.2008, with the help of some police officials, water connection was disrupted to her house, by blocking the nasal and she removed the block, whereupon there was a wordy quarrel between the parties and complaints have been lodged before the Police. 12. From the conjoint reading of all the complaints lodged before the Police, it is clear that since the detenue Dr.Jayanthi has refused to pay the amount of Rs.2,500/=, towards contribution for the Association, the Association Secretary Mr.Narasiman and others have resorted to the illegal method of disconnecting the basic amenities like water. 13. According to Hindu mythology, 'Panchabhutams' – air, water, earth, sky and fire - are the creations of Lord Almighty and nobody can claim exclusive rights over the same, unless the law of the land permits such rights. No such exclusive rights are created insofar as water is concerned. With the advent of the Constitution, supply of water, including potable water, to the citizens has become one of the sovereign functions of the State. In the judgment pronounced on 6.2.2009 by the Division Bench of the Honourable Apex Court, consisting of His Lordships The Honourable Mr.Justice Altamas Kabir and The Honourable Mr.Justice Markandey Katju, regarding the Vamsadhara river water dispute between Andhra Pradesh and Orissa, it has been held that right to water is the right to life guaranteed under Article 21 of the Constitution. The Association Secretary, joining hands with his henchmen, has illegally and without any authority disconnected and disrupted water supply to the residence of the first detenue Dr.Jayanthi, for the simple reason that she refused to contribute the amount towards association, fee thus igniting the controversy. Since the Association Secretary and his henchmen have resorted to such coercive and illegal measures for collection of the association fee from the first detenue Dr.Jayanthi, the respondents, being the custodians of law, should have resolved the dispute in accordance with law, which dispute seems to have been erupted, purposely, by the Association Secretary and his henchmen, who are liable to be prosecuted in accordance with law for this offence committed by them. https://hcservices.ecourts.gov.in/hcservices/ 14. The Scheme of Cr.P.C. is that an officer in-charge of a Police Station has to commence investigation as provided in Section 156 or 157 Cr.P.C. on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 Cr.P.C., as the case may be and forward his report to the Magistrate concerned under Section 173(2) Cr.P.C. The duty of the Police – the investigating of the State – is to act in accordance with the law of the land. The right of the police to investigate into a cognizable offence is statutory right over which the Court does not possess any supervisory jurisdiction under Cr.P.C. This plenary power of the police to investigate a cognizable offence is, however, not unlimited. It is subject to certain well-recognised limitations. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the Police to investigate a cognizable offence has to be struck by the Court. The sweeping power of investigation does not warrant subjecting a citizen to torture or cruelty. 15. Therefore, on receipts of the complaints, the Police are expected to follow the above mentioned procedure under Cr.P.C., which they are bound by. Since the issue involved is trivial and could be solved by counselling/mediation between the parties, instead of precipitating the things, the respondents 2 and 3 should have tried to resolve the dispute between the parties by counselling/mediation. Instead, under the name of 'enquiry', the respondents 2 and 3 have made the detenues the scape-goats and as has been pointed out by the learned Enquiry Judge, all the detenues were detained illegally on the night of 11.7.2008 and that they were kept at the police station from 9 a.m. to 5.00 p.m. on 12.7.2008, which, definitely, amounts to their illegal detention. 16. In the FIR in Cr.No.559/2008 registered against Dr.Jayanthi, her mother, her brother and others, it has been mentioned that the information was received at the Police Station on 12.7.2008 at 19.00 hours. When it has been proved beyond doubt that for the incident alleged to have taken place on 7.7.2008, the respondents 2 and 3 have taken custody of the detenues on the night of 11.7.2008 itself and kept them under illegal custody the whole night, making the detenues to stay in a lodge by force that too under police surveillance, an incorrect and utterly false information has been noted in the FIR, as if the information was received at the Police Station only on 12.7.2008 at 19.00 hours. Further, from this FIR it is also seen that the complainant therein K.Srikala has lodged the complaint on 9.7.2008 at 16.00 hours itself, and the Inspector T.Charles, has registered the case, only after conducting an 'enquiry'. If it is so, how can he show the information received at Police Station as 12.7.2008 at 19.00 hours? Does the 'enquiry' meant by him on the complaint lodged by the complainant therein on 9.7.2008 at 16.00 hours itself, is what this case depicts i.e. the police excesses and the illegal detention of the https://hcservices.ecourts.gov.in/hcservices/ detenus? 17. An adding factor is that Cr.No.559/2008 has been registered as against Dr.Jayanthi and others on the complaint lodged by one K.Srikala for the offences under Sections 294(b) and 506(ii) IPC. In this case though the incidence is alleged to have taken place on 7.7.2008, the complaint was registered on 12.7.2008 at 19.00 hours. Likewise, Cr.No.560/2008 was registered on the complaint lodged by one Ganesan for the offences under Sections 279 and 506(ii) IPC, for the incident alleged to have taken place on 11.7.2008 at 8.30 p.m. But, the complaint lodged by Dr.Jayanthi as against Kumaresan and others has been registered as Cr.No.561/2008 for the offences under Sections 294(b), 506 (i) and 380 IPC (Non Professional). Even to the naked eye and from the handwriting and the ink used therefor, it is established that all these FIRs are registered and recorded successively. To cover up the mistake, different timings of reporting before the Police Station have been artificially attributed and noted with a view to mislead the legal forums, while scrutinising the documents. 18. As has already been pointed supra, the FIRs. in Cr.Nos.559/2008, 560/2008 and 561/2008 are registered on the same day i.e. on 12.7.2008, while FIR.No.559/2008 has been registered based on the complaint lodged on 9.7.2008, the other two FIRs. are registered on the complaints lodged on 11.7.2008. The other aspect to be pointed out is that while it is seen that the detenu Jeyanthi has lodged the complaint on 11.7.2008 at 22.00 hours, the other complaint in Cr.No.560/2008 was lodged only at 23.30 hours. However, the complaint received at 23.30 hours was registered as Cr.No.560/2008 and the complaint lodged by Dr.Jayanthi at 22.00 hours was registered as Cr.No.561/2008 by the Inspector Charles. No explanation whatsoever is coming forth for this violation of mandatory principles of law, discussed supra. This undoubtedly establishes that the respondents 2 and 3 are acting indifferently towards detenu Jayanthi, for no legally sustainable reason whatsoever to be offered on their part. 19. The scrutiny of the entire materials placed on record would show that the detenues were in illegal detention from the night of 11.7.2008 and they were kept at the police station from 9 a.m. to 5 p.m. on 12.7.2008. It is more pathetic to note, even from the report of the learned Judge, that the Advocate Mr.Baranikumar was not allowed entry by the Constables. Had it been only the 'enquiry' and nothing else, as has been submitted on the part of the respondents, the respondents 2 and 3 would not have restricted the entry of Mr.Baranikumar into the police Station, who came to assist and help the detenus. From the nature of the complaint made, we are unable to accept the defence advanced on the part of the respondents that the detenues were kept at the police station from 9 a.m. to 5 p.m. on 12.7.2008 for 'enquiry'. For such an incident reported, what enquiry does the respondents 2 and 3 are conducting for such long hours, that too denying access of the detenues to another Advocate Mr.Baranikumar. https://hcservices.ecourts.gov.in/hcservices/ 20. It may be true that Dr.Jayanthi herself signed the register in the Lodge, but that does not mean that she did it voluntarily, without any force. Had they stayed voluntarily in the Lodge, then why should they live under the 'surveillance' of Police? If at all their presence is required for any 'enquiry', they need not have to be kept under 'surveillance' by the Police. Instead, they should have been required by the Police to attend the so-called 'enquiry' next day morning, particularly when it is not the case of 'surveillance' so far as the accused in the complaint lodged by Dr.Jayanthi. This establishes the indifferent treatment meted out to the detenus by the respondent Police and a leaning attitude towards the opposite party, which is unwanted and unbecoming on the part of the respondents 2 and 3. 21. Surveillance will infringe the fundamental right to personal liberty guaranteed by Article 21 of the Constitution and the freedom of movement guaranteed by Art.19(1)(d). At this juncture, we feel it apt to quote a judgment of the Honourable Apex Court in MALAK SINGH ETC. vs. STATE OF PUNJAB AND HARYANA AND OTHERS [AIR 1981 SC 760], wherein it has been held: "Section 23 of the Police Act prescribes it as the duty of police officers 'to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances'. In connection with these duties it will be necessary to keep discreet surveillance over reputed bad characters, habitual offenders and other potential offenders. Organised crime cannot be successfully fought without close watch of suspects. But surveillance may be intrusive and it may so seriously encroach on the privacy of a citizen as to infringe his fundamental right to personal liberty guaranteed by Art.21 of the Constitution and the freedom of movement guaranteed by Art.19(1)(d). That cannot be permitted. So long as surveillance is for the purpose of preventing crime and is confined to the limits prescribed by Rule 23.7 of the Punjab Police Rules a person whose name is included in the surveillance register cannot have a genuine cause for complaint. History sheets and surveillance registers have to be and are confidential documents. Neither the person whose name is entered in the register nor any other member of the public can have access to the surveillance register. The nature and character of the function involved in the making of an entry in the surveillance register is so utterly administrative and non-judicial, that it is difficult to conceive of the application of the rule of audi alteram partem. Such enquiry as may be made has necessarily to be confidential and it necessarily excludes the application of that principle. It would be contrary to the public interest to reveal the information in the history sheet particularly the source of information. However, surveillance of persons who do not fall within the categories mentioned in Rule 23.4 https://hcservices.ecourts.gov.in/hcservices/ of the Punjab Police Rules or for reasons unconnected with the prevention of crime, or excessive surveillance falling beyond the limits prescribed by the rules, will entitle a citizen to the Court's protection which the court will not hesitate to give. Surveillance, therefore, has to be unobstrusive and within bounds. While it may not be necessary to supply the grounds of belief to the persons whose names are entered in the surveillance register it may become necessary in some cases to satisfy the Court when an entry is challenged that there are grounds to entertain such reasonable belief." 22. In the case on hand, it is not the case of the respondents that the detenus are the history sheet holders or the habitual offenders, so as to justify their action in keeping them under 'surveillance'. When such is the condition and when, in the terms of the above judgment of the Honourable Apex Court, the surveillance will seriously encroach on the privacy of a citizen as to infringe his fundamental right to personal liberty guaranteed by Art.21 of the Constitution and the freedom of movement guaranteed by Art.19(1)(d), the illegal action of the respondents 2 and 3 in keeping the detenus under 'surveillance', that too making them to stay in a Lodge, has to be viewed seriously, since it has affected the personal liberty and freedom of movement guaranteed by the Constitution. If, otherwise, the respondents felt the need to arrest the detenues, they should have done so and produced them before the Magistrate for remand after registering the case. Instead, the respondents 2 and 3 have acted in a high-handed manner and kept the detenues under illegal custody from 11.7.2008, for which no explanation, much less a satisfactory one, is coming forth from the respondents. 23. When the detenue Dr.Jayanthi has refused to pay Rs.2,500/= towards Association fee, the Secretary of the Association by name Narsiman joining hands with others, has disconnected the water connection to the house of the detenue Dr.Jayanthi in the presence of police personnel. Since the basic amenity of water has been disconnected, the detenue herself has opened the nasal, whereupon the Secretary and his henchmen picked up quarrel with the detenue, leading to lodging of complaints. When there is clear evidence to establish that the Association Secretary has made demand of Association Fee, which cannot be a compulsory one, had there been proper enquiry and investigation by the respondents 2 and 3, they would have immediately resolved the dispute between the warring parties. Instead, they have proceeded against the