Baggiam Doraiswamy vs State of Tamil Nadu

Mishra, J.—The instant petition has been filed by the mother of one Seeralan, a twenty-one year old young man, who it is alleged, was

beaten by the police while in custody without any remand and done to death. She has invoked this Court''s jurisdiction under Article 226 of the

Constitution of India and sought compensation in terms of money for the loss, at the hands of the police, of her bread earner. According to the

petitioner, her son was an automobile mechanic and had interest in various social activities. His involvement in providing assistance to the poor

villagers was resented to by the landlords, who, it is alleged, made some false complaints to the police and branded her son a naxalite and when

the petitioner and her husband learnt that the police was looking for her son, on 25.11.1976, they brought him before the police themselves.

Instead of interrogating him, however, the police assaulted him and not only him, the petitioner and her husband as well. They threatened,

according to the petitioner, that they could see only his corpse after a month. On 11.1.1977 at about noon, her son was killed by the police in

Nainathiyur village near Pudupet, Thirupathur Taluk, North Arcot district. According to the police, the petitioner has alleged, they had an

encounter with her son and only as a self-defence they used force which resulted in injuries to her son and on account of that he died. According to

the medical report, the petitioner has alleged, her son had been hit by a yoke, his spleen had been ruptured, and his testicles crushed. This,

according to the petitioner, is inconsistent with the case of the police that her son was hit in an encounter and sustained injuries which caused his

death. Sub-Collector of Thirupathur held inquest on 11.1.1977 and 12.1.1977 and reported on 6.2.1977 that the police had used excessive

violence on the petitioner''s son and, ""even though he was struggling for life with the wounds for over two hours, police did not take any steps to

give medical attention"". The then. Member of the Board of Revenue, however, was appointed to enquire into the whole matter in May, 1977. He

submitted a report to the effect that,

(1) the policemen after capturing Seeralan beat him brutally and killed him;

(2) important facts were concealed from the Sub Collector''s report by the police authorities;

(3) The police filed a false complaint in order to hide their crime;

(4) the body was burnt in order to hide the crime; and

(5) the first two witnesses, Jaya and Velu, were illegally detained in police station and tortured.

The enquiry report, according to the petitioner, revealed that the police version about the death of Seeralan was concocted and the policemen (1)

Kasinathan (2) Ramaswamy and (3) Sivalingam, deserved prosecution for committing the offence of culpable homicide and for filing false

complaints with Netrampalli police just in order to hide their crime. Member, Board of Revenue, further recommended that the Deputy

Superintendent of Police, Thirupathur, North Arcot District, Veerapandian, Inspector of Police, Janarthanam, Inspector of Police Kannan and ''Q''

Branch Inspector Henry Joseph were involved in fabricating false documents and they also deserved prosecution. Accordingly, the Government

ordered for launching Prosecution and the District Collector, North Arcot, launched a case which eventually was committed for trial to the Court

of Sessions. The Sessions Judge, however, held that the police only performed their duties and recorded that the accused were not guilty and

observed that the police might have used force as a self-defence and on account of that, Seeralan might have died. The Government preferred no

appeal against the order of acquittal. The petitioner and Jaya above named made a petition for revision of the judgment of acquittal, which was

eventually heard by a learned Judge of this court and by his judgment dated 133.1986, he found no ground to interfere with the judgment While die

proceeding to prosecute the culprits was pending in revision before this Court, the petitioner preferred the instant petition.

A counter affidavit has been filed in which it is stated that the connected file has been destroyed due to efflux of time and added as follows:

The son of the petitioner was concerned in Jolarpet R.P.F. Cr.No.33/74 u/s 3(a) RVP Act 66 and also in Mathur P.S. (Dharmapuri District)

Cr.No.699/76 under Ss.147, 148, 396, 302, 437 and 286 IPC. There is no evidence to show that the petitioner and her husband had produced

their son on 25.11.75 before police for interrogation and were beaten by the police. With regard to the incident relating to the death of the

petitioner''s son on 11.1.77, it is submitted that the Collector of North Arcot District has submitted an enquiry report conducted by the Assistant

Collector, Thirupathur under P.S.0.145 on the death of her son to the Government and that since this report was found to be inadequate and

incomplete in the interest of justice to have the matter thoroughly enquired into by a Senior Officer of the Government, the Government appointed

Thiru S.P.Srinivasan, I.A.S., Member, Board of Revenue and requested him to conduct an enquiry into the death of Seeralan. Vide G.O.

Ms.No.1386, Public, (Law and Order-A) Department, dated 15.6.77. He submitted his enquiry report to the Government on 25.8.77, which was

accepted by the Government. The Government have ordered that criminal action and departmental action may be initiated against police personnel

concerned. Accordingly, the Collector of North Arcot District has filed a complaint under S.302 read with 34,211,211 read with 34,109,201,201

read with 34,109 and 3481.P.C. against the police personnel concerned on 27.12,77. The case was taken on file in P.R.C. No. 1/77 by the Sub-

Divisional Magistrate, Thirupathur. The case was committed to Sessions Court, Vellore and tried in S.C.No.88/78. The case ended in acquittal on

14.3.79.

Further, it is submitted that only after getting the opinion of the legal authorities, it was decided by the Government that it was not necessary to file

an appeal against acquittal - vide G.O. Ms. No.2213, Home (Court-VIII) Department dated 8.6.79. As ordered by the Government,

departmental action against police personnel were taken as detailed below for the lapses mentioned against them:

(a) Thiru M.Damodaran, Deputy Superintendent of Police, He was awarded a censure.

(b) Thiru P.Batakrishnan, I.P.S. Superintendent of Police. After the consideration, the Government have dropped further action in G.O. Ms. No.

1120, Home (Police-I) Department, dated 20.5.1981

(c) Thiru U.C. Chandramouliswaran (Retired Superintendent of Police) a proved minute has been sent to Government on 2.2.87 for passing final

orders. But the case is kept pending, pending disposal of W.P.No.8109/86 filed by Thiru C.S.Munzhi, I.P.S. in the High Court, madras-Vide

Government letter No.144517/Service-A 90-2, dated 11.2.1990. These three officers were fully aware that the deceased was Seeralan. But, they

suppressed this information and did not furnish the same to the Assistant Collector; Thirupathur, who was conducting the enquiry.

(d) Thiru C.S.Munzhi, LP.S. Superintendent of Police -that he acted irresponsibly in leveling negations against Thiru M.Ramu, I.A.S. then

Assistant Collector, Thirupathur, without due verification arid unmindful of the consequences. He filed Writ Petition in No. 8109/86 in the High

Court, Madras and obtained a stay.

The finding recorded by the Member, Board of Revenue in the enquiry, are not denied. But, it is said that the petitioner is not entitled to

compensation based on the report of the Member, Board of Revenue, since it was only an enquiry and the final result was the judgment given by

the learned Sessions Judge, North Arcot and since the learned Sessions Judge had ultimately found that the officials were not guilty, ""the petitioner

is not entitled for any compensation.

Since there is no serious controversy as to facts, when I heard the matter at the first in-started, I felt that incase there was any miscarriage of

justice by the order of acquittal of the accused persons in the criminal case, this Court should exercise suo motu revisional power u/s 397 of the

Code of Criminal Procedure and accordingly, passed an order on 12.11.1993 for notice to the concerned persons. When the said order was

passed, there was no information about the filing of a petition in revision by the petitioner and Jaya above named. On the first hearing, however, of

the said revision petition, Mr.NXVanamamalai, learned Senior Advocate, who appeared Amicus Curiae for the informant and the learned

Government Advocate pointed out that the revision petition filed by the petitioner and Jaya has already been dismissed by this Court.

It is not possible in the instant case to review the order in revision passed by a learned single Judge and to entertain a second petition in revision

to hold that there is any mistake in the judgment of the learned Sessions Judge, in ordering for the acquittal of the accused persons. The scope of

the revisional power of the Court against a judgment of acquittal has been stated in several judgments of the Supreme Court. There is, however, no

restriction on the jurisdiction of the Court exercising the revisional power to re- appraise the evidence and come to independent findings and

interfere on such findings with the order of acquittal, if acquittal is ordered on consideration of any inadmissible piece of evidence, on any irrelevant

consideration or without taking into consideration any relevant material and/or for any other legal infirmity. Any detailed examination of this aspect

of the matter, however, is not necessary in the instant case because the acquittal has become final by the order of dismissal of the revision-petition,

by a learned Judge of this Court. In a catena of decisions, such as in the cases of Rudul Sah Vs. State of Bihar and Another, Sebastian M.

Hongray Vs. Union of India (UOI) and Others, Bhim Singh, MLA Vs. State of Jammu & Kashmir and Others, , Saheli, A Women''s Resources

center, Through Ms Nalini Bhanot and Others Vs. Commissioner of Police Delhi Police Headquarters and Others, , State of Maharashtra and

Others Vs. Ravikant S. Patil, and in the case of Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, it has been clearly

spelled out that the High Court in exercise of its power under Art.226 of the Constitution of India and the Supreme Court in exercise of its power

under Art.32 of the Constitution of India, can grant compensation for deprivation of a fundamental right. In the case of Padmini v. State of Tamil

Nadu ( 1993 L.W.(Crl.).487) and in the case of Parvathi v. State of Tamil Nadu (HCP.No.711 of 1993 - order dated 1.8.1994, this Court has

taken the view that when there is &prima facie case of custodial instance this Court can order for compensation to the victim of the heirs and legal

representatives of the victim and in the latter case in particular in which Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others,

was also relied upon, it has been pointed out that the convicts, prisoners or under trials are not deluded of their fundamental right under Art.21 of

the Constitution of India and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right

by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen in life, except in

accordance with law, While the citizen is in its custody. In the words of the Supreme Court, in Smt. Nilabati Behera alieas Lalita Behera Vs. State

of Orissa and others, .

The precious right guaranteed by Art.21 of the Constitution of India cannot be denied to convicts, under-trials or other prisoners in custody,

except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its

custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of its confinement and therefore

his interest in the limited liberty left to him is rather precious the duty of care on the part of the State is strict and admits of no exceptions. The

wrongdoer is accountable and the State is responsible of the person in custody of the police is deprived of his life except according to the

procedure established by law.

In the abovesaid case, the Supreme Court has also pointed out that the remedy under Article 32 of the Constitution of India and under Article 226

of the Constitution of India for monetary compensation for contravention of fundamental rights is a public law remedy and the Court has an

obligation to order for payment of compensation. The defence of sovereign immunity is not applicable to such a case and. is alien to the concept of

guaranteed fundamental right.

The common law remedy for compensation by resorting to a civil suit is not found adequate and efficacious in many cases. The victim of a

criminal act of another is entitled to compensation and he is entitled to compensation as a result of the trial of the guilty and such compensation is

ordered by the trial Court in appropriate cases. Even this, however, is not an appropriate remedy in many cases, particularly when those who claim

to represent the sovereign and thus, are responsible for protecting the life of the people, are found involved in criminal acts. The remedy under

Article 226 of the Constitution of India in many cases is an alternative remedy. But, incases where sovereign''s liability is required to be determined,

it is a proper and valued remedy for any person aggrieved and it is the Court''s duty in such cases to decide whether the sovereign on the facts as

before it is required to compensate the victim or not.

Learned counsel for the respondent has urged that in view of the order of acquittal and the findings recorded on facts, particularly the findings by

the Court of Session, it is not possible to hold that the petitioner''s son was a victim in a criminal act of the Police. He has submitted that the order

of acquittal has concluded without any inference on the basis of the evidence that the State has to discharge any liability for the acts of its officers

and servants. The force of the contention of the learned counsel for the respondent, however, is lost for the obvious reason that in a criminal trial,

the veracity of the testimony of a witness is judged on the touchstone of probabilities and even direct evidence sometimes is ignored when it lacks

corroboration. The accused in criminal trial are acquitted not for the reason that the Court is not satisfied with the truth of the allegation, but

because the prosecution has not been able to prove its case beyond a reasonable doubt. It is for this reason that the Courts do not accept the

decisions of the Criminal Courts as binding upon the civil Courts. The Supreme Court in the case of Karam Chand Ganga Prasad and Another Vs.

Union of India (UOI) and Others, was concerned with a judgment of the Delhi High Court in exercise-of its power under Art.226 of the

Constitution of India in a case for release of certain consignments of maize transported from the State of Haryana to Howrah in West Bengal. The

dispute before the Court was, whether the Movement Control Order issued under the Essential Commodities Act, 1955 was in force at the

relevant time. The Delhi High Court rejected the writ petition on the sole ground that in view of the pendency of the criminal proceedings before

some court in the State of West Bengal, it was inappropriate for the High Court to pronounce on the question in exercise of its jurisdiction in the

writ petition. The Supreme Court has:

observed.

In our opinion the High Court seriously erred incoming to this conclusion, if the appellant are able to establish their case that the ban on export of

maize from the State of Haryana had been validly lifted all the proceedings taken against those who exported the maize automatically fall to the

ground. Their maintainability depends on the assumption that the exports were made without the authority of law. It is a well established principle

of law that the decisions of the civil Courts are binding on the criminal Courts. The converse is not true. The High Court after entertaining the writ

petitions and hearing arguments on the merits of the case should not have dismissed the petitions merely because certain consequential proceedings

had been taken on the basis that the exports in question were illegal. For the decision of the controversy between the parties to the writ petitions,

neither the presence of the State of West Bengal nor the authorities who took penal action was necessary. The validity of the steps taken by them,

as mentioned earlier would depend upon the validity or otherwise of the export in question.

In view of the law settled by the Supreme Court that the decision of the Criminal Court is not binding on the Civil Court and the instant action of

the petitioner seeking compensation being in lieu of a common law action of a civil suit and the reasons as noticed by me above, I am inclined to

hold that I shall be failing in my duty, if I do not exercise my power to decide whether the petitioner is entitled to compensation unaffected by any

finding recorded by the criminal Court. The action for compensation has not arisen as a consequence of the conviction of the accused person. It

has arisen on account of death, which, it is alleged, was caused by the police and if it is so, the State has a liability to compensate the petitioner.

There is some attempt before me by the learned counsel for the State that this Court should decline to order any compensation for the reason that

petitioner has moved this Court after an inordinate delay. It is not contended, because such a contention is not available, that there is any period of

limitation prescribed for a petition under Art.226 of the Constitution of India. The Courts, however, have evolved a rule of discretion based on

equitable principle that a person who has not promptly invoked the court''s jurisdiction for the intended relief and allowed the respondent to alter

his position, should not be granted the relief, which will have, the effect of unsettling what has already crystallized ,/Ordinarily, however, the Courts

take notice of the delay, even in the cases of enforcement of a fundamental right, at the threshold and not after the notice is issued. This rule is

stated by the Supreme Court for the exercise of the power under Article 32 of the Constitution in the case of S.S. Moqhe v. Union of India (A.I.R.

1981 S.C. 1405) in these words:

A party seeking the intervention and aid of this Court under Art.32 of the Constitution for enforcement of his fundamental rights, should exercise

due diligence and approach this Court within a reasonable time after the cause of action arises and if there has been undue delay or laches on his

part, this Court has the undoubted discretion to deny him relief.

In a Full Bench judgment of the Patna High Court, of which I was a member, the rule of laches and delay is stated in these words; in the case of

Dr. Jagannath Mishra Vs. State of Bihar and Others, ;

Coring to the next point argued by the learned Additional Advocate General that the writ petition should be thrown out on account of laches, this

too has to be rejected as the Supreme Court in State of M.P. and Others Vs. Nandlal Jaiswal and Others, has laid down as follows:

....this rule of laches or delay is not a rigid rule which can be case in a straight jacket formula, for there may be cases whether despite delay and

creation of third party rights the High Court may still in the exercise of its discretion interference (sic.) and grant relief to the petitioner.

In Naraya Devi Khaitan v. State of Bihar C.A.No.140 of 1964 decided by the Supreme Court on 22.9.1964 (reported in 1964 S.C. (noted)

2S9), it was laid down that ""no hard and fast rule can be laid down as to when High Court should refuse to exercise its jurisdiction in favour of a

party who moves it after considerable delay and is otherwise guilty of laches.

In P.B. Roy Vs. Union of India (UOI), the Supreme Court itself had"" laid down that the ""delay in filing the petition under Article 226 may be

overlooked on the ground that, after the admission of a writ petition and hearing of arguments, the rule that delay may defeat the rights of a party is

relaxed and need not be applied if his case is ""positively good.

In my view that writ petition having been admitted, and the case of the petitioner being ""positively good"" as it is squarely covered by the decision of

the Supreme Court itself (Annexure 3) and the respondents being bound by that judgment ought to have given a notice to the petitioner, I

accordingly overrule the second contention of the learned Additional Advocate General also.

Since the rule of laches or delay is not a rigid rule which can be cast in a straight jacket formula, for, there may be cases where despite delay and

creation of third party rights, the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner, no hard and fast rule

can be laid down as to when High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is

otherwise guilty of laches, it will not be wrong if the law laid down by the Supreme Court in the case of P.B. Roy Vs. Union of India (UOI), is

applied that the delay may be overlooked on the ground that after the admission of a writ petition and hearing of arguments, the rule that delay may

defeat the rights of a party is relaxed and need not be applied if his case is positively good.

The petitioner has brought to the Court the fact that her son has been killed by the police. The police version that the petitioner''s son was killed

in an encounter was not accepted by the Deputy Collector who held the inquest and by the Member, Board of Revenue, who held the enquiry.

The nature of injuries also indicates that the encounter theory does not fit in with the assault upon the petitioner''s son. The assailants, it is

conceded, are policemen. That they assaulted the petitioner''s son in self-defence has been accepted by the Sessions Judge and this Court in

revision has declined to interfere with the acquittal of the accused persons. Yet, the assailants are identified and it cannot be said that the earliest

finding as to the aggressive acts of the police as recorded by the Member, board of Revenue is not such a finding which this Court should accept,

or that this Court must accept the finding in this behalf as recorded by the Court of Session. On an independent assessment of the facts as

aforementioned, which are not in controversy, I have no hesitation in holding that the petitioner has made out a positive case of assault upon her

son by the police and that policemen alone are responsible for this death. She has lost a bread earner and she, in my opinion, is entitled to

compensation. The Court shall be failing in its duty, as pointed out by the Supreme Court in the case of Smt. Nilabati Behera alieas Lalita Behera

Vs. State of Orissa and others, in not ordering any compensation to the petitioner. In the case of Padmini ( 1993 L.W. (Crl.) 487 supra and in

HCP.No.711 of 1993 (order dated 1.8.1994) Parvathi v. State of Tamil Nadu supra, (reported in this issue 1994 2 L.W. (Crl.) 680)this Court

has taken the view that adequate compensation for each month''s maintenance to a person who is deprived of her bread winner is preferable and

the lump sum compensation should be invested in such a way that interest per mensem is delivered to her. Following the said rule, I am inclined in

the instant case to order for a lump sum compensation of Rs. 1,00,000/- (Rupees one lakh) to the petitioner, who is a woman aged about 60

years, which money shall remain in the hands of the respondent, which shall invest the same in any such scheme under its control which shall fetch a

monetary income of not less than Rs. 1,000/- and deliver the said amount of interest to the petitioner each month. The compensation money so

awarded shall not be delivered to the petitioner. But, her heirs and legal representatives shall be entitled to succeed to the same in accordance with

law.

In the result, this petition is allowed. The respondent is directed to compensate the petitioner by a sum of Rs.1,00,000/- (Rupees one lakh only)

which amount the respondent shall retain in its hands and invest for the benefit of the petitioner in such a scheme under its control, which delivers

interest of an amount of not less than Rs. 1,000/-each month and pay the said amount of interest to the petitioner each month until her demise and

after her demise, such compensation amount of Rs.1,00,000/- shall demise in the successors- in-interest. On the facts of the case, there shall be no

order as to costs.