S. Mohammed Sheriff Rowther vs The State of Tamilnadu

P.K. Misra, J.—Petitioner is the father of one Mohammed Basheer. It is stated that on 8.7.1989 the aforesaid son, who was aged about 24

at that time left for Mettupalayam. Since he did not return for three days, the petitioner went to Mettupalayam and enquired about the whereabouts

of his missing son. The complaint lodged about the missing son was registered as Crime No.361 of 1989. Under the direction of the Collector,

Coimbatore, an enquiry was held by the Sub- Collector. The Sub-Collector came to the conclusion that the petitioner''s son had been taken into

custody by the police and even tortured by the police. The Sub-Collector recommended that the task of tracing the missing son may be entrusted

to the Crime Branch and he also recommended for initiating proceedings in the administrative side against the errant officials. The aforesaid

recommendations were accepted by the Government which issued G.O.Ms.No.1613 dated 6.10.1989 to launch criminal prosecution and to

initiate departmental action. The petitioner in the meantime approached several authorities by way of representations including a representation

dated 2.8.1989 to the Hon''ble the Chief Justice of India. Subsequently he had also sent a representation to the Hon''ble the Chief Justice of

Madras High Court. After waiting for sometime, the petitioner filed petition No.55 of 1991 before the Justice Khalid Commission of Inquiry. The

Commission found that the petitioner''s son had been taken into custody and tortured in such police custody. However, the Commission did not

come to any conclusive opinion regarding the whereabouts of the petitioner''s son. It recommended that a sum of Rs.2 lakhs should be paid as

interim compensation and the petitioner may take appropriate steps claiming damages before the appropriate forum. Acting upon such report of

the Commissiion, a sum of Rs.2 lakhs has already been paid to the petitioner as interim compensation. Thereafter the present writ petition has been

filed in the year 1995 for issuing a writ of mandamus directing the State Government and the Director General of Police "" to conduct, continue and

give the results of the enquiry that has been conducted with regard to the missing of petitioner''s son, Mohammed Basheer, from 8.7.89 and award

appropriate compensation to the petitioner . . .

A counter affidavit has been filed on behalf of the State Government wherein it is indicated that whereabouts of Mohammed Basheer are yet to

be found out. It has been further stated that the order of suspension against the police officials have been quashed by the Tamil Nadu

Administrative Tribunal and even the criminal case ended in acquittal. The counter affidavit is non-committal about the allegation that the

petitioner''s son was taken into custody and was tortured while in such custody. It has been further stated that investigation has already been

completed and there is no necessity of further investigation and issuing a writ of mandamus would be a futile exercise.

Learned counsel for the State has submitted that the criminal case has ended in acquittal and in view of the conclusion of the criminal court, it

would not be proper to come to any different conclusion in the present proceeding. Law is well settled that in a criminal proceeding, the

prosecution is required to prove its case beyond all reasonable doubts. whereas the standard of proof in a civil case or other proceeding such as

departmental proceeding is different and such findings in a criminal case would not operate as res judicata.

The report of the Sub-Collector and the subsequent report of the Commission of Inquiry headed by Justice Khalid leave no room for doubt that

the petitioner''s son was taken into police custody. Both the reports make it equally clear that the petitioner''s son was subjected to torture while he

was in police custody. what had happened to the petitioner''s son thereafter remains a mystery. The police authorities appear to have maintained a

sphinx like silence in the matter.

The Sub-Collector in his report has pointed out that there are three possibilities, (1) the petitioner''s son died in police custody, obviously

because of the torture, (2) the petitioner''s son escaped from the police custody and (3) the petitioner''s son because of his ill-health might have

been kept by the police somewhere else and may be produced in a subsequent date. Even the Sub-Collector discounted the possibility of the

petitioner''s son having escaped from custody because of his ill-health as evident from the statement of the Doctor before such Sub-Collector.

Therefore, it would be most incongruous to come to a conclusion that the petitioner''s son had escaped from the police custody. If he would have

escaped from the police custody, keeping in view the subsequent events, including the hue and cry raised by all regarding the missing person,

undoubtedly the police would have been able to ferret him out. There is no material on record to show that the petitioner''s son has been heard of

by the persons close to him subsequently. By the time the writ petition was filed, more than 5 years had lapsed and by the time counter was filed

by the Superintendent of Police, more than 7 years had lapsed. Keeping in view the provisions contained in Section 108 of the Indian Evidence

Act, a presumption can be safely drawn about the death of the petitioner''s son as he has not been heard of for more than 7 years by the persons

who naturally would have heard of him if he had been alive. Even though more than a decade had passed in the meantime, the petitioner''s son has

not surfaced anywhere. In view of the aforesaid circumstances, it would be only natural to presume that the petitioner''s son had expired and

obviously in police custody as no other conclusion is possible.

Once the aforesaid conclusion is reached, stage is set for awarding suitable compensation to the petitioner, the unfortunate father. In course of

hearing it has been suggested by the counsel for the respondents that the petitioner''s son had a criminal record. Even assuming so, that did not give

license to the police to snuff out the life of a person. Criminal or saint, every citizen of India has right to live as guaranteed under Article 21 of the

Constitution.

The next question is the amount of compensation. It is not disputed that a sum of Rs.2 lakhs had already been paid pursuant to the direction of

the Justice Khalid''s Commission. In Malkiat Singh Vs. State of U.P., while considering the question of death of a person in an alleged encounter

with the police, the Supreme Court had directed payment of Rs.5 lakhs as compensation. Following the aforesaid decision, two learned single

Judges of this Court in two separate cases, namely W.P.No.1966 of 1992 disposed of on 8.4.1999 and in Crl.O.P.No.17974 of 1997 and

Crl.M.P.No.7484 of 1997 disposed of on 25.9.1998 have awarded a sum of Rs.5 lakhs in similar circumstances.

I do not see any reason to adopt a different standard so far as the quantum of compensation is concerned. Since a sum of Rs.2 lakhs has

already been paid, I direct the respondents 1 and 3 to pay a further sum of Rs.3 lakhs to the petitioner within a period of three months from the

date of communication of the order. The writ petition is accordingly allowed. No costs. Consequently, W.M.P. No. 2293 of 1995 is closed.