Smt. Lakshmi vs State of Tamil Nadu

V. Kanagaraj, J.—The Petitioner, an individual, has filed this writ petition against the State of Tamil Nadu, the District Collector, Chengalpattu District, the Deputy Superintendent of Police, Tambaram East Sub Division and the Inspector of Police, Pallavaram Police Station where in the National Human Rights Commission has also been impleaded as the intervener as per the orders of this Court dated 11.7.1996 made in W.M.P. No. 4590 of 1996.

Originally, the Petitioner has filed the writ petition against the aforementioned Respondents No. l to 4 praying to issue a writ of Mandamus or direction directing the Respondents to proceed with the criminal case launched against the guilty policemen for having caused the death of the Petitioner''s son Kannan on 31.12.1984 while under their custody and for payment of appropriate compensation to the Petitioner coupled with costs.

In the affidavit filed in support of the writ petition, the Petitioner would submit that she is the widow of one Nagappan and they were blessed with five children including the deceased Kannan, who was the third child in the row: that the other children, after marriage, are living separately; that the deceased Kannan was working as Assistant in a ration shop temporarily; that the said Kannan was taken into custody on 30.12.1984 by the fourth Respondent along with some other staff of the ration shop; that on 31.12.1984 around 10.00 a.m., the Petitioner was informed that her son Kannan had fallen into the well near the police station and died; that since the people around the Police Station got agitated and gathered demanding the true reason for the death of the deceased from the police, a tense situation prevailed, when the third Respondent assured a Revenue Divisional officer''s enquiry and appropriate action.

The Petitioner would further submit that the R.D. Os enquiry was held, who gave a finding that the suicide theory was not consistent through the medical and other reports, but nothing was revealed to the Petitioner till middle of 1992; that then on a detailed memorandum sent to The Honorable The Chief Justice of Madras High Court, the same was forwarded to the Legal Aid and Advisory Board, Madras, which nominated a Lawyer from whom she heard nothing in the matter, that the third Respondent also conducted an enquiry, in which the Petitioner and some others were examined on 16.10.1991 with no result of the same; that till date, the police have not given any convincing reason for their attitude and ultimately on 10.7.1992, the second Respondent informed through the Taluk Committee that the Government had directed to launch prosecution against the police personnel involved in the incident; that ultimately, The Legal Aid Board deputed a Lawyer who got in touch with the Sub-Collector, Saidapet and ultimately on 8.1.1993, he expressed his inability to get the information to the Legal Aid Board.

The Petitioner further expressing her pathetic plight running from post to pillar and her anguish over the delayed justice, would also cite the judgments of the Supreme [Court; reported in Saheli, A Women''s Resources center, Through Ms Nalini Bhanot and Others Vs. Commissioner of Police Delhi Police Headquarters and Others, wherein the pecuniary compensation in cases of custodial deaths has been made mandatory. The Petitioner would ultimately pray for the relief extracted supra.

In the counter affidavit filed on behalf of the Respondents, it would be submitted that the R.D.O''s enquiry was completed in 1985-86 and the report was sent to the Government through the second Respondent; that the Government in G.O.Ms. No. 1952 Public (Law and Order-A) Department, dated 17.10.1986 launched criminal prosecution and departmental enquiry against the police personnel involved in the matter.

It is further averred that two criminal cases have been registered against the suspected accused in Cr. No. 977/84 under Sections 457 and 380 of the Indian Penal Code and Cr. No. 981/84 under Sections 461 and 380 of the Indian Penal Code in C 1 Pallavaram Police Station and the suspected accused Kannan was brought to the Police Station on 31.12.1984 and that day at 12.15 p.m., the said accused jumped into the well situated in the Police Station itself and died at 1.05 ; p.m.; that though the R.D.O. sent his report on 15.5.1985, it is kept confidential and as per the directions of the Government, the Collector, in consultation with the Public Prosecutor, redirected the R.D.O. to give a clear finding regarding those who were involved; that ultimately on the findings of the R.D.O., the third Respondent issued the charge memo. In PR. Nos. 158/91, 160/91 and 161/981 under Rule 3 (b) of the Tamil Nadu Police Subordinate Service (Disciplinary & Appeals) Rules, 1955 to the Sub Inspector Loganathan, H.C.603 Siva, P.C.343 Chakravarthy and P.C.408 Ganesan respectively and following the procedures laid down under Police Standing Order 145, enquiries were held and ultimately against the delinquent policemen, a complaint was lodged in the Court of the Chief Judicial Magistrate, Chengalpattu on 6.4.1994 under Sections 348 and 306 of the Indian Penal Code and all such proceedings took place without any unnecessary delay; that the police officials were also dealt with departmentally under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Disciplinary and Appeal) Rules, 1955 on the basis of the report of the R.D.O. and the recommendations of the Collector, thus there is neither any delay nor failure of action on the part of the Department and the averments regarding the delay or non- action are all either false or invented and that the Petitioner has not substantiated her right with proper reasons for invoking Article 226 of the Constitution of India for any remedy before this Court and would ultimately pray for dismissing the petition with costs.

During arguments, the Learned Counsel, appearing on behalf of the Petitioner, relying on R.D.O.''s enquiry dated 9.4.1989, would point out para No. 11 wherein the R.D.O. while discussing about the evidence given by Dr. M. Maharajan, Assistant Civil Surgon, Government Hospital, Chrompet, who conducted the Post Mortem on the body of the deceased has observed that the said Doctor, admitted the following facts during cross-examination by the then R.D.O., Saidapet, which is extracted hereunder:

i. This is not a case of drowning and the deceased had been murdered and then dropped into the well.

ii. Only a negligible quantity of water (330 C.C.) was found in the stomach and Dr. Modi''s Jurisprudence makes it clear that this is possible only if the body is submerged after death.

iii. Left side of heart was empty and this is possible only if the body was thrown after death according to Dr. Modi''s Jurisprudence.

iv. There can be no injuries on the skull or less if a body is thrown in to the water after death and in the instant case there are no such injuries.

Relying on the above, the Learned Counsel for the Petitioner would strongly contend that it was a case of murder by the police concerned and not a case of suicide. 9. On the other hand, the learned Government Advocate would point out that though the R.D.O.''s report speaks of the opinion of the Post Mortem Doctor to the effect that it was not a death due to asphyxia by drowning but due to the body having been thrown into the well after the death, but the same Medical Officer, as per his Post Mortem Report has concluded that the deceased Kannan died only due to drowning and not due to any other external or internal injuries sustained and therefore the Post Mortem Certificate issued by the Doctor, who conducted the autopsy since being clear, no importance need be attached to the alleged opinion offered orally by the said Doctor during cross examination by the Revenue Divisional Officer at the time of his enquiry. 10. On the part of the Petitioner two judgments would be cited, the first one delivered in Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, wherein the Apex Court has held:

A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable made of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.

The other judgment cited by the Learned Counsel* for the Petitioner is an unreported judgment of a learned single Judge of this Court delivered in W.P. No. 1966 of 1992, dated 8.4.1999 wherein the learned single Judge, following the decision of the Apex Court in Malkiat Singh v. State of U.P. reported in 1988 SCC (Crl) 1034 and the earlier order passed by this Court in Crl.O.P. No. 17974 of 1997, dated 5.11.1998 by following the above said Apex Court judgment, has directed the first Respondent therein i.e. the State of Tamil Nadu represented by the. Secretary, Home Department, Fort St. George, Madras-9 to pay a compensation of Rs. 5,00,000/- for causing the death of one Durairaj while in the custody of the police. Citing the above judgment of the learned single Judge of this Court, the Learned Counsel for the Petitioner would pray for awarding a similar compensation to the Petitioner in the present case also.

On the other hand, the learned Government Advocate citing a judgment of the Apex Court delivered in Tamil Nadu Electricity Board v. Sumathi and Ors. reported in AIR 2000 S.C. 1603 wherein it has been held:

In cases of death due to tortious acts when disputed question of fact arises and there is clear denial of any tortious liability remedy under." Article 226 of the Constitution may not be proper. However, it cannot be understood as laying a law that in every case a tortious liability recourse must be had to a suit. When there is negligence on the face of it and infringement of Article 21 is there, it cannot be said that there will be any bar to proceed under Article 226 of the Constitution. Right of life is one of the basic human rights guaranteed under Article 21 of the Constitution.

would argue that if at all any remedy is there for the Petitioner, it must be in form of a civil suit and not under Article 226 of the Constitution of India and at this score itself the writ petition becomes liable to be dismissed.

In consideration of the pleadings by parties, having regard to the materials placed on record and upon hearing the Learned Counsel for both, what comes to be known is that the third son of the Petitioner viz. Kannan, who was at the relevant point of time working as an Assistant in a ration shop temporarily, was taken into custody by the 4th Respondent Police Officer a long with some other staff of the ration shop and was never to come back home, but at 10.00 a.m. on 31.12.1984, the Petitioner was given to understand that her son died falling into a well near the police station. The Petitioner''s contention is that her son was done to death by the Respondent police, who took him into their custody under pretext of interrogation and have thrown the body into the well in order to appear that it was not a murder by them but a suicide. In support of her contention she would point out paragraph No. 11 of the report submitted by the Revenue Divisional Officer, Saidapet, after conducting a full-fledged enquiry under order 145 of the Police Standing order.

It is also the grievance of the Petitioner that in spite of lapse of many years, there was no proper action or prosecution launched against those police officers, who were responsible for the death of her son nor anything made known to her and hence seeking actions, prosecutions and adequate compensation, the Petitioner has come forward to file the above writ petition before this Court seeking to issue a writ of Mandamus or direction to the said effect.

On the other hand, it is the contention of the Respondent that it was a death due to drowning; that only on 31.12.1984, the deceased was secured by the 4th Respondent in connection with two criminal cases registered in their Crime No. 977/84 under Sections 457 and 380 of I.P.C. and Crime No. 981/84 under Sections 461 and 380 of I.P.C. and that while he was kept in the police station, he jumped into the well located in the police station itself and died at 1.05 p.m. It is their further contention that there is absolutely no iota of evidence to the effect that either the said Kannan was tortured or died of any external or internal injuries and thereafter in order to conceal the offence, the body was thrown into the well as the story of the Petitioner regarding the death of the deceased goes; that hasty opinion had been offered on the part of the Medical Officer, who conducted the Post Mortem, during the cross-examination by the R.D.O. in the enquiry under 145 Police Standing order and the very same Doctor, in his Post Mortem Certificate has clearly certified that the deceased died of drowning and there was no external or internal injuries to suggest either torture or death due to torture to occur and thereafter for body to have been thrown into the well and therefore the Respondents are not in any manner responsible for the voluntary act of jumping into well committed on the part of the deceased Kannan.

It is but quite natural that any suspected accused to be brought to the police station either for interrogation or for arrest and to proceed further towards investigation and while so, if the accused volunteers to indulge in such acts as the deceased had chosen to jump into the well fearing consequences, the genuine interest of the police officers whose duty it is to maintain law and order by appropriately dealing with the accused in the cases registered on specific complaints lodged should not get jeopardized or hindered especially when it is obligatory on their part to carry out their duties and responsibilities as warranted'' by law. But while dealing with such situations, they are expected to be very careful especially in protecting the life and safety of the accused, while he is in their custody.

The contention of the Respondents is that those police officials who were responsible for their carelessness or negligence have been proceeded against both under the penal law and departmentally wherein an enquiry under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Disciplinary & Appeal) Rules, 1955 was held and a criminal case was registered against the four police personnel for offences punishable under Sections 348 and 306 of the I.P.C. and on a thorough enquiry and trial held in both these proceedings, ultimately, they got acquitted by the Court of Principal Sessions Judge, Chengalpattu as per his judgment dated 16.12.1998 and therefore on the part of the Respondents it would be submitted that all necessary actions and prosecutions were launched against those who were responsible and before law they have been acquitted and therefore the Respondents are not to be blamed either for inaction or negligence.

Since there are sufficient evidence in proof of actions and prosecutions having been initiated against the police personnel, who were in charge of the deceased at the time the incident occurred, in the proper manner, now the only issue that is to be solved is, whether the Petitioner, as the mother of the deceased, is entitled to any compensation and if so what is the quantum of the same?

So far as this issue is concerned, the Petitioner comes forward to say that even though she begot five children, all others got married and settled separately and it was the deceased, who, working as an Assistant in the ration shop temporarily, was helping her in her upkeep and maintenance and since this son also died in custody of the police, herself being a widow, there is none to take care of her welfare and well-being and moreover since the deceased died while in custody of the police, all the Respondents are jointly and severally liable to pay proper compensation.

Though on the part of the Respondents it is argued that they were not responsible for the death of the deceased Kannan, still, even presuming that he volunteered to jump into the well, which resulted in his death, there is no denying of the fact on the part of the Respondents that the 4th Respondent took him into custody in connection with two criminal cases registered in his P.S. Crime Nos. 977/84 and 981/84. On the part of the Petitioner, she would claim that her son Kannan was taken into custody by the fourth Respondent on 30.12.1984 and according to the Respondents, he was taken into custody only on 31.12.1984. However, the factum of the deceased Kannan having been secured in connection with the criminal cases registered in the above said Crime Numbers is an admitted fact and further there is also no denying of the fact that the said Kannan died falling into the well located inside the Police Station while in custody of the police and all these admitted facts needs no proof and hence, this Court has no hesitation to arrive at the conclusion that the deceased met with his death during his custody with the fourth Respondent and his subordinates attached to his police Station and therefore the other Respondents also being the magistrates of the state, the district and sub-division are jointly responsible to compensate the Petitioner for the loss of life of her son, while in police custody.

So far as the judgments cited on the part of the learned Government Advocate reported in A.l.R. 2000 S.C. 1603 is concerned, the Honourable Apex Court, in cases of death due to tortious act, held that where disputed question of fact arises and there is clear denial of any tortious liability, the remedy under Article 226 of the Constitution may not be proper. First, the case in hand is not one wherein death due to the same acts in the case cited has taken place. But, it is the case of death while in custody of police in a different manner. Anyhow, the Honourable Apex Court itself has clarified that" however, it cannot be understood as laying a law that in every case, a tortious liability recourse must be had to a suit. When there is negligence on the face of it and infringement of Article 21 is there, it cannot be said that there will be any bar to proceed under Article 226 of the Constitution". Since the answer is also given in the same judgment to the effect that there will be no bar to proceed under Article 226 of the Constitution, the case in hand being one falling under such category, institution of the above writ petition is perfectly justified.

Once the Respondents having been held responsible to compensate the loss of the Petitioner''s son, in the custodial death, in some form or other, as aforementioned, the next point that is to be determined is, the quantum of the compensation that the Petitioner becomes entitled to from the Respondents.

In the case cited on the part of the Learned Counsel for the Petitioner, which was delivered by a learned single Judge of this Court in W.P. No. 1966 of 1992, dated 8.4.1999, the learned single Judge has allowed a compensation of Rs. 5,00,000/-following the decision of the Apex Court wherein also a similar compensation of Rs. 5,00,000/- has been awarded to be the adequate compensation in that case. However, facts and circumstances differ from case to case.

So far as the case decided by the learned single Judge of this Court is concerned, there it was the husband of the Petitioner, who was said to have been done to death, while he was in the police custody. But, here, it is the unmarried son. In the other case cited, the Petitioner lost her consortium and all the protective coverage that she is entitled to from her husband whereas the same situation does not prevail in the case of a son. In the case cited, it was the head of the family who was lost and the entire burden of the family fell on the shoulders of the Petitioner therein on account of the death of her husband, the head of the family. On the contrary, in the case in hand, the deceased was one of the five children of the Petitioner and even though it is alleged that all other children have got married and settled separately, still, their duties and responsibilities towards the mother in her upkeep and maintenance cannot be denied of. Even for the deceased to get married and settled, had he not died, in a short while, cannot be ruled out and therefore in consideration of all these contingencies, the material expectation of the mother from one of her five children is not that much higher as it is the expectation of the wife from her husband wherein the loss of life partner is susceptible to prey heavily on her future and on her children, if any. Therefore, for the fixation and of the quantum of compensation, the case in hand, cannot, under any circumstances, be treated on par with the case cited by the Learned Counsel for the Petitioner and therefore the Petitioner herein would become entitled to only a lesser amount than the Petitioner in the case cited by the Learned Counsel for the Petitioner. There is no denying of the fact of the mother, the Petitioner herein having suffered mental agony and affliction on the sudden death of her son under suspicious circumstances, while in the police custody beside met with material loss in the death of her son. Therefore, in all probabilities, in consideration of various facts and circumstances encircling the case, this Court is of the firm view that a compensation of Rs. 2,00,000/- (Rupees Two Lakhs only) paid to the Petitioner by the first Respondent will serve the ends of justice and the same is hereby ordered to be paid by the first Respondent as the compensation for the loss of the life of her son Kannan, while in custody of the police.

It further comes to be known that in a writ Miscellaneous Petition filed in W.M.P. No. 5240 of 1993 by the Petitioner in the above writ petition seeking an interim compensation of Rs. 1,00,000/-, the learned single Judge of this Court, as per his order dated 16.8.1996 has directed the first Respondent to pay a sum of Rs. 30,000/- to the Petitioner as interim compensation, subject to the final order to be passed in the writ petition. Therefore, deducting the amount of Rs. 30,000/- (Rupees Thirty Thousand Only) paid as interim relief, as directed by this Court in W.M.P. No. 5240 of 1993 by the order dated 16.8.1996, the first Respondent is directed to pay the rest of the amount of Rs. 1,70,000/- ( Rupees One Lakh Seventy Thousand Only) in favour of the Petitioner.

In result, the above writ petition stands allowed on terms indicated in the preceding paragraphs.

The first Respondent is directed to pay a further sum of Rs. 1,70,000/- (Rupees One Lakh Seventy Thousand Only) as the remaining compensation to the Petitioner within two months from the date of receipt of this order or from the date when this order is placed before the first Respondent, whichever is earlier.

However, in the circumstances of the case there shall be no order as to costs.