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UNION TERRITORY OF PONDICHERRY versus M.LATUCHUMANAN

High Court of Madras

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Union territory of Pondicherry v. M.Latuchumanan - W.A. No.80 of 2005 [2007] RD-TN 1828 (7 June 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



Dated: 07.06.2007

Coram

The Honourable Mr. Justice DHARMA RAO ELIPE

and

The Honourable Mr. Justice S. PALANIVELU

W.A. No.80 of 2005

and

W.A.M.P. No.133 of 2005

1. The Union territory of Pondicherry,

rep. by Chief Secretary,

Government of Pondicherry,

Pondicherry.

2. The Inspector General of Police,

Police Head Quarters,

Pondicherry.

3. The Superintendent of Police (South),

Natesa Nagar,

Pondicherry.

4. The Station House Officer,

Thirukkanur Police Station,

Pondicherry 501. ... Appellants Vs

1. M. Latuchumanan

2. The Deputy Inspector General,

Central Bureau of Investigations,

Chennai 6. ... Respondents Appeal to set aside the order dated 29.10.2004 passed in W.P. No.4716 of 1997 on the file of this Court. For Appellant : Mr. K.K. Sasidharan, Govt. Pleader (Pondicherry) For Respondents : Mr. S. Gajendran for R1 N.A. for R2

JUDGMENT



(Judgment was delivered by DHARMA RAO ELIPE, J.) This writ appeal has been preferred against the order dated 29.10.2004 passed in W.P. No.4716 of 1997 on the file of this Court.

2. The case of the writ petitioner is that on 29.10.1996, when he was proceedings towards the school via Thirukkanur police station, Mr. Arumugam, the Sub Inspector of Police arrested him. On the same day in the mid night, the petitioner was directed to come out of the lock-up and the Inspector threatened the petitioner. He had directed the police personnel present there to beat the petitioner. The Sub Inspector also instigated others to beat the petitioner. Immediately the Head Constable started beating the petitioner with lathi indiscriminately all over the body, as a result of which, he swooned. At about 4.00 a.m., when he was woken up, he found himself in the lock-up with bleeding injuries all over the body. His shirt and dhothi were fully drenched in blood due to the injuries. Thereafter, the petitioner was offered colour shirt and white dhothi and before putting them on, his bleeding injuries were washed with water.

3. The further case of the writ petitioner is that on 30.10.1996, when he was produced before the Magistrate, the petitioner had shown the injuries sustained by him the previous night at the hands of the police personnel. The Magistrate directed the police to take the petitioner to the Government Stanley Hospital, where he was medically examined and found that he has sustained six injuries and the Chief Medical Officer, who conducted the medical examination, directed to admit the petitioner as in-patient. On 1.11.1996 at 2.00 p.m., he was discharged.

4. The further case of the writ petitioner is that on 3.11.1996, the Sub Divisional Magistrate held an enquiry and recorded the evidence of the petitioner, his advocate and other witnesses. After the enquiry was over, the petitioner preferred a complaint to the fourth respondent therein/fourth appellant herein and also sent a letter by registered post to the fourth respondent to take action in accordance with law. This was followed by another representation dated 6.11.1996. As there was no proper follow-up action, another reminder was sent to the third respondent therein/third appellant herein on 30.12.1996. In view of the inaction even to register the First Information Report, he sent a detailed representation on 25.1.1997 addressed to the Chief Minister of Pondicherry and the Home Minister, seeking their intervention. In spite of repeated representations, there has been no positive response from the respondents.

5. The further case of the writ petitioner is that he filed W.P. No.4716 of 1997, seeking to issue a writ of mandamus, directing the second respondent to file a First Information Report on the basis of the complaint made by the writ petitioner on 3.11.1996 and hand over the investigation of the same to the Central Bureau of Investigation, the second respondent herein and also direct the second respondent herein to take over the investigation of the case and proceed as per law and also direct the first appellant herein to provide all assistance to the second respondent herein in this respect and also direct the appellants herein to provide all documents pertaining to the case free of cost to the writ petitioner to facilitate him to assist and co-operate with the investigation by the second respondent herein and also direct the first appellant herein to pay to the writ petitioner a just and reasonable amount as compensation and to award costs.

6. In the counter affidavit filed by the respondents therein, while denying the various allegations, the third respondent therein has stated that in execution of Non Bailable Warrant issued by the learned VII Metropolitan Magistrate, Chennai in C.C. No.3630 of 1996, the fourth respondent therein arrested the writ petitioner on 29.10.1996 at 11.30 hours at Thiruvannamalai Road just at a distance of about 200 meters from the police station. With a view to inform the arrest to his close relative, the fourth respondent therein took steps by sending P.C.1492 at 13.30 hours to the address given by the petitioner. The fourth respondent therein was informed by wireless that the petitioner's wife was not found in the house and hence his advocate was informed. Thereafter, the advocate requested the release of the petitioner on bail, which was, however, not possible, in view of the orders of the Court.

7. The third respondent has further stated in the counter affidavit that the petitioner was involved in various other criminal complaints as accused viz. In Crime No.11 of 1986 registered under Section 353 I.P.C. and Crime No.6 of 1992 under Sections 341, 323 and 506 I.P.C. As regards the alleged incident, the petitioner had already made a complaint to the VII Metropolitan Magistrate, Chennai, who was seized of the matter and it was for that judicial Forum to go into the correctness of the complaint given by the writ petitioner. The writ petitioner attempted to escape from the custody of the fourth respondent therein and hence the Constables, who were in charge of the station, used minimum force to apprehend the petitioner. Again when the petitioner was taken to Madras, at Villupuram, the petitioner again attempted to escape from the custody and as a result, some force has been used by the police-escort people. In that background only, the petitioner sustained injuries and treatment was given at the nearest private Hospital at Villupuram for want of time. Hence the allegations made by the writ petitioner are false and the third respondent therein prays for dismissal of the writ petition.

8. After hearing the learned counsel appearing for the writ petitioner and the respondents, learned Single Judge allowed the writ petition. As against the said order, the appellants have preferred the present writ appeal.

9. Heard the learned counsel appearing for the appellants and the respondent.

10. The stand of the respondents therein/police before the Sub Divisional Magistrate is completely different from the stand taken in the counter affidavit regarding the first incident. The first incident in the police station, as pleaded in the counter affidavit, is totally absent in the evidence before the Sub Divisional Magistrate, namely, that the writ petitioner had resisted the arrest and therefore, mild force had to be used against him and that he had assaulted two police constables. On the other hand, the stand of the police before the Sub Divisional Magistrate is that the Station House Officer was unaware of the injuries on the writ petitioner and that he had not seen the naked body of the petitioner at the time of leaving for Madras. The Sub Divisional Magistrate had been informed only about the second incident when mild force is alleged to have been used against the writ petitioner at Villupuram when he is stated to have attempted to escape. Therefore, the statement made in the counter affidavit that the petitioner had man-handled two Constables at the time when he was taken to the police station and therefore minimum force had to be used against him is totally belied.

11. As regards the injuries found on the body of the writ petitioner, who was treated as inpatient and discharged from the hospital on 1.11.1996 at 2.00 p.m., the following is the extract from the accident register of the Casualty Department of Government Stanley Hospital, Chennai: " (1) Multiple Abrasions and Lathi Marks overbakc; (2) Multiple Abrasions Bleeding left thigh Left Clutael region; (3) Pain Rt index finger & Swelling;

(4) 1/2 cm punctured wound left leg and abrasions; (5) Abrasions and Lathi marks;

(b) Abrasions Rt Leg."

The above injuries clearly establish that such grievous injuries, fractures, multiple abrasions have been sustained only due to custodial violence and not due to the victim falling on the ground, as contended by the police witnesses, which is nothing but a farcical and ludicrous excuse, having regard to the type of injuries and the accident report.

12. The contention regarding alternative remedy of approaching the civil court does not merit acceptance at least in this case. It has been repeatedly held by the Courts that the burden of disproving custodial violence is on the police, if it is established that the injuries were sustained while in the custody of the police, that is, in this case, it is true that the petitioner sustained injuries while in custody. For all the various reasons stated, the attitude of the police in furnishing contradictory and conflicting statements of facts, is sufficient to hold that no useful purpose would be served in driving the victim to the civil court. The availability of alternative remedy under ordinary law is no bar for the High Court to exercise its power and to grant compensation in appropriate cases vide CHAIRMAN, RAILWAY BOARD v. CHANDRIMA DAS (AIR 2000 SC 988), more so in a case of this type in which the available materials clearly indicate that the action of the respondents is culpable.

13. With regard to compensation, the same would be awarded only against the Officials, who had actually been the cause for the violence. But, in this case, as the Superintendent of Police had chosen to file a counter affidavit justifying their conduct, there is no other alternative except to direct the State to pay the compensation. Hence, the compensation of Rs.60,000/- awarded by the learned Single Judge is perfectly justified.

14. With regard to maintainability of writ petition and quantum of compensation, in a decision reported in the case of SUBE SINGH v. STATE OF HARYANA ((2006) 3 S.C.C. 178), the Supreme Court held as follows:- " 31. Though illegal detention and custodial torture were recognised as violations of the fundamental rights of life and liberty guaranteed under Article 21, to begin with, only the following reliefs were being granted in the writ petitions under Article 32 or 226: (a) direction to set at liberty the person detained, if the complaint was one of illegal detention. (b) direction to the Government concerned to hold an inquiry and take action against the officers responsible for the violation. (c) if the enquiry or action taken by the department concerned was found to be not satisfactory, to direct an inquiry by an independent agency, usually the Central Bureau of Investigation. Award of compensation as a public law remedy for violation of the fundamental rights enshrined in Article 21 of the Constitution, in addition to the private law remedy under the law of torts, was evolved in the last two-and-a-half decades.

38. It is thus now well settled that the award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in the enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under Section 357 of the code of Criminal Procedure.

49. Custodial violence requires to be tackled from two ends, that is, by taking measures that are remedial and preventive. Award of compensation is one of the remedial measures after the event. Effort should be made to remove the very causes, which lead to custodial violence, so as to prevent such occurrences. Following steps, if taken, may prove to be effective preventive measures: (a) Police training should be reoriented, to bring in a change in the mindset and attitude of the police personnel in regard to investigations, so that they will recognise and respect human rights, and adopt thorough and scientific investigation methods. (b) The functioning of lower level police officers should be continuously monitored and supervised to prevent custodial violence and ensure adherence to lawful standard methods of investigation. (c) Compliance with the eleven requirements enumerated in D.K. BASU should be ensured in all cases of arrest and detention. (d) Simple and foolproof procedures should be introduced for prompt registration of first information reports relating to all crimes. (e) Computerisation, video-recording and modern methods of record maintenance should be introduced to avoid manipulations, insertions, substitutions and antedating in regard to FIRs, mahazars, inquest proceedings, post-mortem reports and statements of witnesses, etc. and to bring in transparency in action. (f) An independent investigating agency (preferably the respective Human Rights Commissions or CBI) may be entrusted with adequate power, to investigate complaints of custodial violence against police personnel and take stern and speedy action followed by prosecution, wherever necessary. The endeavour should be to achieve a balanced level of functioning, where police respect human rights, adhere to law, and take confidence-building measures (CBMs), and at the same time, firmly deal with organised crime terrorism, white-collared crime, deteriorating law and order situation, etc."

15. In view of the above, considering the facts and circumstances of the case, we see no reason to interfere with the order passed by the learned Single Judge. Hence the writ appeal fails and the same is dismissed. Consequently, the connected W.A.M.P. is also dismissed. No costs. ssa.

To

The Deputy Inspector General

Central Bureau of Investigations

Chennai 6.

[PRV/10648]


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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