Madras High Court
Mrs.Malliga vs The Secretary To Government on 23 November, 2021
W.A.No.2558 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 16.07.2021
DATE OF DECISION : 23.11.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
W.A.No.2558 of 2013
Mrs.Malliga
W/o Sivakumar .. Appellant
-vs-
1. The Secretary to Government
Home Department
Government of Tamil Nadu
Secretariat, Chennai
2. The District Collector
Cuddalore District, Cuddalore
3. The District Collector
Villupuram District, Cuddalore
4. The Superintendent of Police
Cuddalore District, Cuddalore
5. The Superintendent of Police
Villupuram District, Villupuram
1/52
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6. Inspector of Police
Tindivanam Police Station
Tindivanam, Villupuram District
7. Inspector of Police
Panruti Police Station
Panruti, Cuddalore District .. Respondents
Appeal filed under Clause 15 of the Letters Patent against the order
dated 08.11.2012 made in W.P.No.20428 of 2011.
For Appellant :: Mr.N.Jothi
Amicus Curiae
For Respondents :: Mr.T.Arunkumar
Government Advocate
JUDGMENT
T.RAJA, J.
This writ appeal has been directed against the impugned order dated
8.11.2012 passed by the learned single Judge in Writ Petition No.20428 of
2011.
2. It is an admitted case of both parties that the appellant,
Mrs.Malliga, W/o Sivakumar was mistakenly taken from her residence at
Panruti to the sixth respondent-Tindivanam Police Station, instead of one
Malliga, wife of the accused Vinayagam. This fact was also admitted by the
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fifth respondent-Superintendent of Police, Villupuram District in his counter
affidavit and at the Villupuram Police Station, the appellant Mrs.Malliga
was shown to the accused Vinayagam, who told that the appellant was not
his wife. Therefore, the appellant was brought back to Panruti and was
dropped in her house without any torture. When the appellant made a
complaint before the State Human Rights Commission on 7.2.2011, the
same was numbered as SHRC No.893 of 2011. But after 5 months and 7
days, her complaint was dismissed in a cryptic manner by the State
Commission on the footing that the complainant called absent, hence, the
petition is dismissed for default. Aggrieved thereby, when the writ petition
was filed, the fifth respondent-Superintendent of Police, Villupuram District
filed a detailed counter affidavit admitting the fact that the appellant/Malliga
was taken to the police station due to mistaken identity. In spite of the
admission made by the fifth respondent that the appellant, being the mother
of two female children and her husband being a coolie, was taken to the
Tindivanam police station at about 4.00 P.M., on 26.1.2011, although the
poor and innocent Malliga, the appellant herein asked the reason as to why
they are taking her to the police station, one of the policemen abusing her
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not to behave like a call girl, shouted at her saying that she knew the
criminal nature of her husband. At Tindivanam, she was asked to get down
from the bus and was made to travel as pillion in a two wheeler parked there
and another policeman followed her vehicle. When she reached the police
station, she was taken to a room inside the police station. After sometime,
one of the policemen knocked at the door. When the door was opened, a
policeman in uniform who tied a handkerchief on his face entered the room.
After closing the door, three policemen whose names are not known were
present in the room. One policeman sat in a chair, another policeman took a
lathi and beat on her head. When she shouted in pain, the other policeman
slapped on her cheek and said that as the appellant was a prostitute, cannot
shout. She also alleged that one policeman who beat her with a lathi also
molested her. When she cried in pain and shame, on hearing her cry, another
policeman standing outside knocked at the door and asked the other
policeman to do without making any sound. Finally when she cried and
asked as to where is her husband and pleaded with them to show her
husband, one policeman showed a photograph. On seeing the photograph,
the appellant said that he was not her husband and further stated that he is
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Vinayagam who is staying nearer to her house. On hearing this, the
appellant was again beaten. When she cried out of pain and shame, three
policemen took her to Tindivanam prison at 9.00 P.M. One of the policemen
went inside the prison and came out after sometime. When the appellant was
shown the accused Vinayagam, he told that the appellant was not his wife.
Only thereafter, three policemen brought her back to Panruti and on the
way, she was threatened by the policemen saying that if she disclosed the
abuse to anyone, they would book her under the Immortal Traffic Act.
Finally at 11.00 P.M., she was dropped at Panruti. When her relatives
and residents standing there questioned the policemen as to how they can
take a woman without informing anyone, they asked them to come to
Panruti Police Station. Saying so all the three policemen pushed the people
and escaped in the same auto in which the appellant was brought in.
Thereafter, the appellant's relatives took her to Panruti Police Station and
lodged a complaint. But the policemen in the police station stated that they
cannot do anything and asked her to make a complaint before the
Villupuram District Police . As she sustained severe pain, she was admitted
in Panruti Government Hospital as an in-patient on 27.1.2011. On 7.2.2011,
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she made a complaint before the State Human Rights Commission at
Chennai setting out how the policemen under mistaken identity can take an
innocent woman, mother of two female children to the police station, which
is about 58 kms., away and subject her to severe physical and sexual abuse,
against which she made a request for investigation and to initiate legal action
against the policemen belonging to Tindivanam Police Station. But after 5
months and 7 days, the complaint was dismissed in a cryptic manner
holding that the complainant was called absent, hence, the petition stands
dismissed for default. Aggrieved thereby, when the writ petition was filed,
the learned single Judge also, on seeing the admission made by the fifth
respondent-Superintendent of Police, Villupuram that the appellant was
taken to Tindivanam Police Station under mistaken identity, wrongly
dismissed the writ petition on the ground that compensation has been
claimed against different persons, but not against the particular persons who
actually did wrong to her. Secondly, she failed to furnish the names of the
policemen who did wrong to her. Therefore, the appellant has brought this
appeal.
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3. Prima facie, we were bewildered to see how both the State Human
Rights Commission and the learned single Judge can act against the salient
features of the Protection of Human Rights Act, 1993, more particularly,
paragraph-4(7) of the statement of objects and reasons of the Bill shows that
the Commission may undertake research in the field of human rights and
shall take measures to promote awareness of human rights among all
sections of society and by virtue of Section 29 of the Protection of Human
Rights Act, several provisions relating to the National Human Rights
Commission are made applicable to the State Human Rights Commission.
Therefore, considering the fact that when the controversy raised by the
appellant that she being an innocent mother of two female children, was
wrongly taken to the police station under mistaken identity, nonetheless, no
action has been taken by the State Human Rights Commission and also the
learned single Judge, we appointed Mr.N.Jothi, learned counsel to assist us
as amicus curiae, as there was no appearance for the appellant, by our order
dated 17.4.2021. Accordingly, learned amicus curiae has appeared before us
and presented the written submissions along with 30 citations of the
Supreme Court and the High Court in two volumes of paperbook.
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4. Mr.N.Jothi, learned amicus curiae has pleaded that one accused
Vinayagam was taken into police custody, wherein he confessed that he
entrusted the gold ingot to his wife Mrs.Malliga residing at Mandaveli,
Panruti. In order to enquire his wife Malliga, the policemen went to
Sathiayamurthy Street, Mandaveli, Panruti. As two women in the name of
Malliga have been residing in Sathiamurthy Street, Mandaveli, Panruti, the
appellant-Malliga being the wife of Sivakumar and another Malliga being
the wife of the accused Vinayagam, two policemen in uniform, without
verifying whether the appellant Malliga is the wife of the accused
Vinayagam, took her in a bus bound for Chennai and at Tindivanam, she
was asked to get down and was asked to travel as pillion on a two wheeler
parked there and another policeman followed the vehicle. After reaching
Tindivanam Police Station, the appellant was sexually harassed and was
beaten up badly by using lathi. When she cried and asked where is her
husband and pleaded them to show her husband, one policeman showed her
a photograph and on seeing the photograph, the appellant stated that he is
not her husband. After sometime, three policemen took her to Tindivanam
prison in a two wheeler, where she was made to stand outside along with
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two policemen and one policeman went inside the jail and brought the
accused Vinayagam, who, after seeing the appellant, told the policemen that
she is not his wife. Only thereafter, the policemen brought her back to
Panruti. On the way, she was threatened not to disclose the abuse to anyone
and if she did so, they would book her under the Immoral Traffic Act.
However, when the appellant was brought back to Panruti at 11.30 P.M.,
she was taken to Sathiyamurthy Street in an auto, where her relatives and
residents were searching her. On seeing her coming in an auto, they
questioned the policemen as to how they can take the appellant without even
making a basic enquiry whether she is the wife of the accused or not, but the
policemen after dropping her escaped in the same auto in which the
appellant was brought. Thereafter, the appellant went to Panruti Police
Station and lodged a complaint. But the policemen expressed their inability
to do anything and told her to make a complaint before the Villupuram
District Police. Since the appellant sustained severe pain, she was admitted
in Panruti Government Hospital as an inpatient on 27.1.2011. After taking
treatment, she made a complaint before the State Human Rights
Commission, Chennai on 7.2.2011.
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5. Learned amicus curiae further submitted that when the poor
appellant made a complaint before the State Human Rights Commission on
7.2.2011 and the same was numbered as SHRC No.893 of 2011, making
serious allegations that she being an innocent law abiding citizen was
wrongly taken to the police station and molested by one of the policemen
and then after the accused Vinayagam told the policemen that the appellant
is not his wife, they brought her all the way from Tindivanam and left her at
Panruti and went back. The custodial torture and violation of human rights
have been clearly brought out in the complaint filed before the State Human
Rights Commission explaining clearly about the need of women police
officers to effect the arrest, if required, but contrary thereto, the appellant
being an innocent mother of two female children was taken into custody by
the policemen in a bus and two wheeler and was physically assaulted and
sexually harassed. When such a serious allegation has been made out in the
complaint, as per Section 29 of the Protection of Human Rights Act, 1993,
the provisions of Sections 9, 10, 12, 13, 14, 15, 16, 17 and 18 of the
National Human Rights Act are made applicable to the State Commissions,
therefore, by virtue of Section 13, the State Commission ought to have
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conducted enquiry on the complaint given by the appellant. Without making
any enquiry, it has failed to discharge its statutory obligations in spite of the
fact that it is invested with the facilities like investigation, assistance of
public prosecutor, presenting officer. When a helpless poor woman
approached the State Human Rights Commission with all shivering and
nightmarish experience, learned amicus curiae pleaded that the truth or
untruth of the averments made in the complaint should have been
investigated by the Commission, because Regulation 25 states that the
Commission should issue summons. Regulation 26 enumerates the power to
order investigation and to get report. Regulation 19 deals with Presenting
Officers, who should render assistance for consideration and disposal of the
case. Without considering the grievance of the poor woman, who was ill-
treated by the authorities, dismissing the case on the ground that the
appellant was not present, amounts to shirking its responsibility. When
various kinds of human rights violation such as handcuffing, physical and
mental torture, blind woman being duped and impregnated on the false
pretext of marriage, handicapped persons being ill-treated, awesome
treatment of household maids, how S.144 cannot be pronounced on the
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sleeping crowds in small hours like 2.00 A.M., have been widely discussed
in Ramlila Maidan incident, in Re, which are all eye openings to take lead to
give redressal to human sufferings, the State Commission has not
appreciated these aspects. Adding fuel to fire, the learned single Judge also,
he pleaded, has simply dismissed the writ petition, surprisingly, justifying
the dismissal of the case by the Commission, for the reason that for non
furnishing of the names of the policemen with their designation etc., no relief
can be granted to her. When paragraph-14 of the counter affidavit filed by
the fifth respondent brought the controversy to light that the appellant was
wrongly brought to Tindivanam Police Station under mistaken identity
believing that she is the wife of the accused Vinayagam and the serious
allegation made by the appellant that she was harassed in the police station
physically and sexually by the policemen subjecting her to molestation,
without even verifying the basic facts, both the State Commission and the
learned single Judge have committed a serious error in dismissing the
complaint. Therefore, the matter needs to be relooked afresh by the State
Human Rights Commission, he pleaded.
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6. Continuing his arguments, learned amicus curiae, after reading out
the complaint to us, further pleaded that the cryptic dismissal order dated
14.7.2011 passed by the State Human Rights Commission and the approval
of the said order in the writ petition, makes one to feel that the entire scheme
of the Protection of Human Rights Act, 1993 had not been well appreciated
by them. The justification given by the learned single Judge in his order that
the appellant has not furnished the details about the erring policemen such
as their names, designation, is totally contrary to the very purpose of the Act.
Therefore the orders of both the State Commission and the learned single
Judge are not in line with what the Hon'ble Supreme Court has time and
again restated. When the State Commission has taken cognizance of the
case in SHRC No.893 of 2011, it has simply chosen to dismiss the case after
5 months and 7 days on a lame excuse that the complainant was called
absent, hence, the petition stands dismissed for default, which clearly
indicates that the Commission has abdicated its responsibility putting the
poor victim remediless. Therefore, the impugned order requires to be
interfered with, he pleaded.
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7. Per contra, Mr.T.Arunkumar, learned Government Advocate
appearing for the respondents, restating the stand taken in the counter
affidavit filed by the fifth respondent before the learned single Judge,
submitted that one Vinayagam along with other accused Saravanan,
Maheshkumar got remanded to judicial custody in connection with the case
in Palavanthangal Police Station in Crime No.404 of 2010 under Sections
341, 392 read with 397, 336, 427, 506(ii) of IPC and were kept at Puzhal
Central Prison, Chennai. During the course of interrogation made in
Madipakkam Police Station in Crime Nos.25 of 2011, 9 of 2011, 966 of
2010, 24 of 2010 under Section 392 of IPC, accused Kumar alias Karibatti
Kumar was arrested on 6.1.2011 and his confession was recorded.
Therefore, he was remanded to judicial custody and kept at Central Prison,
Puzhal, Chennai. Since the confession recorded from the accused revealed
that they had also committed the offences relating to Tindivanam Police
Station Crime Nos.167 of 2010, 563 of 2010, 708 of 2010 under Section
457, 380 of IPC and Roshanai Police Station Crime Nos.267 of 2010, 270 of
2010 under Sections 457 & 380 of IPC, on the basis of the confession given
by the accused Vinayagam in Tindivanam Police Station that in the month of
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September, 2010 within the Roshanai Police Station limits at Gangaiamman
Koil Street, broke open the door and committed theft of gold jewels, silver
articles and cash of Rs.15,000/- and also confessed that he converted the
jewels into ingot and entrusted the same to his wife Malliga residing at
Mandaveli, Panruti, all these confession statements were recorded in the
presence of the witnesses, Tirumurugan, S/o Venugopal, Tindivanam,
Rajadurai, S/o Chinnakannu, Gidangal-II, Tindivanam. Thereafter, on the
basis of the confession statement given by the accused Vinayagam, 35
grams of gold ingot were recovered and seized under a cover of mahazar
from the accused Vinayagam's wife Malliga at Sathyamurthy Street,
Mandaveli, Panruti on 28.1.2011 at about 15.00 hours. Based on the
confession statement given by the accused Vinayagam, to enquire Malliga,
the policemen went to Sathyamurthy Street, Mandaveli, Panruti. Later on,
they came to know that in Sathyamurthy Street, Mandaveli, Panruti, there
are two women in the name of Malliga, one Malliga is the wife of
Sivakumar and another Malliga is the wife of the accused Vinayagam.
Besides the appellant Malliga and the wife of the accused were always found
together. When the policemen asked about the wife of the accused Malliga,
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one Ranjitham, the mother in law of the accused pointed the appellant
Malliga. Since she was found in the house of the accused Vinayagam, the
appellant was brought to Tindivanam Police Station on mistaken identity.
Only at Tindivanam Police Station, the appellant Malliga was shown to the
accused Vinayagam, who told the policemen that the appellant Malliga was
not his wife. Thereafter, the appellant Malliga was brought back to Panruti
and was dropped in the house without any torture. When the appellant
Malliga was enquired on the bona fide belief that she is the wife of the
accused Vinayagam, the appellant's allegation against the policemen cannot
be accepted, because there was no torture or misbehaviour. When she was
dropped in her house on 26.1.2011, her case that she was admitted in the
Panruti Government Hospital on 27.1.2011 shows that the theory of
custodial violence is only an after thought. Concluding his arguments,
learned Government Advocate submitted that when an enquiry on the basis
of the complaint given by the appellant was made, a report was submitted.
In the report, it has been concluded that the appellant was brought to
Tindivanam Police Station under mistaken identity, therefore, the allegations
of ill-treatment and sexual abuse alleged in the affidavit are untrue.
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8. But this Court is unable to find any substance in the submissions
made by the learned Government Advocate for the respondents. Firstly, it is
also the categorical case of the respondent police that the appellant Malliga
is not the wife of the accused Vinayagam. The averments in paragraphs 7,
10 & 14 of the counter affidavit are repeatedly supporting the case of the
appellant that she was brought to the Tindivanam Police Station under
mistaken identity. Secondly, the appellant Malliga is residing at Mandaveli,
Panruti, but she was taken to Tindivanam Police Station for enquiry. The
distance between Mandaveli, Panruti and Tindivanam Police Station is about
58 kms. The appellant was unlawfully detained by the respondent police on
26.1.2011 at 4.00 P.M., and taken in a bus bound for Chennai. When she
asked the policemen as to why they are taking her, she was told not to speak
anything. When the appellant appears to be from a poor family, as her
husband is a coolie, and also the mother of two female children, the two
policemen in uniform told her to come with them, failing which she would
have to face dire consequences. When the bus reached Tindivanam, she was
again taken as pillion in a two wheeler to Tindivanam Police Station. When
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the accused Vinayagam told the policemen that the appellant Malliga was
not his wife, she was brought back to Panruti and was dropped in the house
at 11.30 P.M. So the time taken from 4.00 P.M., till 11.30 P.M., on
26.1.2011 would clearly show that the appellant has been put to physical
and mental torture. Moreover, when the counter affidavit filed by the fifth
respondent clearly discloses that the appellant was mistakenly taken to
Tindivanam Police Station on the bona fide belief that she was the wife of
the accused Vinayagam, it is not known why the policemen who went to her
house at Panruti did not make a summary enquiry to ascertain whether she
was the wife of the accused Vinayagam or somebody else. Had they asked
the appellant whether she was the wife of Vinayagam, she would have told
that she is the wife of Sivakumar. When the appellant, admittedly, is the
wife of one Sivakumar, it is the solemn responsibility of the policemen to
verify whether they are taking the right person for interrogation or custody.
In the present case, two policemen not accompanied with any woman police
constable have physically and mentally tortured and paraded the appellant
from Panruti to Tindivanam Police Station and when this fact has also been
admitted by the fifth respondent in the counter affidavit filed before this
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Court, there is no justification for putting an innocent person into untold
humiliation in the eyes of the public. In such circumstances, the State
Commission ought to have conducted an enquiry. But contrary thereto, it
has wrongly dismissed the case on 14.7.2011 on the ground that the
appellant was not present when the matter was taken up. If the Commission
has no jurisdiction to deal with the complaint or part of the complaint or if
the complaint is trivial, frivolous, vexatious or male fide or in other words, if
the substance of the complaint has been properly dealt with in another
proceeding, in which event the complaint can be dismissed citing proper
reasons, or if the complaint appears to be plain and obvious that the
complaint will not succeed for one or other reasons, as contemplated under
Sections 17 & 18 of the Act, it can pass appropriate orders. But in the case
on hand, the victim made the complaint on 7.2.2011 for the incident that
took place on 26.1.2011 stating that at about 4.00 P.M., two policemen
came to her house and took her by a bus to Tindivanam without even
verifying whether she is Malliga, the wife of the accused Vinayagam. When
the case registered in SHRC No.893 of 2011 was pending for 5 months and
7 days, it was dismissed in a cryptic manner by the State Commission on
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14.7.2011 stating that “the complainant called absent. No intimation for her
absence. In such circumstances, the petition is dismissed for default.” The
detailed complaint of the appellant that two policemen forcibly removed her
from her house and took her to Tindivanam through a bus and was brought
back to Panruti, were all admitted in the counter affidavit filed before the
learned single Judge. She also made a serious allegation that she was beaten
up by the policemen with lathi and she was also molested by one of the
policemen by calling her a prostitute. It may be mentioned at the outset that
she is not Malliga, the wife of the accused Vinayagam. While this being the
admitted position, had the policemen made an enquiry whether she is the
wife of the accused Vinayagam, an innocent poor lady would not have been
put to face humiliation affront in the eyes of the public. Therefore, when
serious allegations are made, it is the duty of the State Commission to
enquire into the matter.
9. Now let us consider the relevant provisions under the Protection of
Human Rights Act, 1993 relating to the constitution of the State Human
Rights Commissions and the functions and powers vested on them. Section
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21 relates to the constitution of the State Human Rights Commission by the
State Government. Under Section 29 of the Protection of Human Rights Act,
1993, certain provisions relating to National Human Rights Commission are
made applicable to the State Commission and the said Section reads as
follows:-
“S.29. Application of certain provisions relating to
National Human Rights Commission to State
Commissions.-The provisions of sections 9, 10, 12,
13, 14, 15, 16, 17 and 18 shall apply to a State
Commission and shall have effect, subject to the
following modifications, namely:—
(a) references to "Commission" shall be
construed as references to "State Commission";
(b) in section 10, in sub-section (3), for the
word "Secretary-General", the word "Secretary"
shall be substituted;
(c) in section 12, clause (f) shall be omitted;
(d) in section 17, in clause (i), the words
"Central Government or any" shall be omitted.”
10. A perusal of the above provision shows that the provisions of
Sections 9, 10, 12, 13, 14, 15, 16, 17 and 18 of the National Commission
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shall apply to the State Commission. Section 12 deals with the functions of
the Commission, which reads thus:-
“12. Functions of the Commission.—The
Commission shall perform all or any of the
following functions, namely:—
(a) inquire, suo motu or on a petition
presented to it by a victim or any person on his
behalf or on a direction or order of any Court, into
complaint of—
(i) violation of human rights or
abetment thereof; or
(ii) negligence in the prevention of such
violation, by a public servant;
(b) intervene in any proceeding involving any
allegation of violation of human rights pending
before a Court with the approval of such Court;
(c) visit, notwithstanding anything contained
in any other law for the time being in force, any jail
or other institution under the control of the State
Government, where persons are detained or lodged
for purposes of treatment, reformation or
protection, for the study of the living conditions of
the inmates thereof and make recommendations
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thereon to the Government;
(d) review the safeguards provided by or
under the Constitution or any law for the time
being in force for the protection of human rights
and recommend measures for their effective
implementation;
(e) review the factors, including acts of
terrorism, that inhibit the enjoyment of human
rights and recommend appropriate remedial
measures;
(f) study treaties and other international
instruments on human rights and make
recommendations for their effective
implementation;
(g) undertake and promote research in the
field of human rights;
(h) spread human rights literacy among
various sections of society and promote awareness
of the safeguards available for the protection of
these rights through publications, the media,
seminars and other available means;
(i) encourage the efforts of non-governmental
organisations and institutions working in the field
of human rights;
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(j) such other functions as it may consider
necessary for the promotion of human rights.”
11. A perusal of the above provision shows that the Commission can
enquire suo motu or on a petition presented to it by a victim or any person
on his behalf into the complaint of violation of human rights, etc. Section 13
deals with the powers relating to enquiries, which is reproduced below:
“13. Powers relating to inquiries.—(1) The
Commission shall, while inquiring into complaints
under this Act, have all the powers of a civil court
trying a suit under the Code of Civil Procedure,
1908 (5 of 1908), and in particular in respect of the
following matters, namely:—
(a) summoning and enforcing the attendance
of witnesses and examining them on oath;
(b) discovery and production of any
document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy
thereof from any Court or office;
(e) issuing commissions for the examination
of witnesses or documents;
(f) any other matter which may be
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prescribed.
(2) The Commission shall have power to require
any person, subject to any privilege which may be
claimed by that person under any law for the time
being in force, to furnish information on such
points or matters as, in the opinion of the
Commission, may be useful for, or relevant to, the
subject matter of the inquiry and any person so
required shall be deemed to be legally bound to
furnish such information within the meaning of
section 176 and section 177 of the Indian Penal
Code (45 of 1860).
(3)...
to
(7) ...”
12. A perusal of the above provision also shows that the Commission
shall have all the powers of a civil Court trying a suit under the Code of Civil
Procedure in respect of summoning and enforcing the attendance of
witnesses and examining them on oath; discovery and production of any
document; receiving evidence on affidavits, etc. When the Commission has
got power to require any person to furnish information on such points or
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matters as may be useful for or relevant to the subject matter of enquiry, it is
not known why the State Commission has not initiated any enquiry on the
appellant's complaint. Moreover, when the Commission has got the power to
take suo motu action, merely for the reason that the complainant has not
furnished the names of the policemen, designation, etc., taking note of the
fact that she was forcibly taken by two policemen to Tindivanam Police
Station; that she is noway connected to the alleged offence; that she is not a
family member of the accused Vinayagam and more than that, taking her
without application of mind to a far away police station by bus and two
wheeler and then putting her to face physical and sexual assault is a matter
of grave concern, it ought not to have dismissed the complaint without even
conducting any enquiry as per the procedure established by law. In our
considered view, in spite of the powers conferred on the Commission under
Sections 12 & 13 to suo motu enquire into the allegation of custodial
violence, the dismissal of the complaint indicates that the State Commission
has completely abdicated its responsibility.
13. Coming to the order impugned, the High Court being the protector
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of civil liberties of the citizens, in exercise of its jurisdiction under Article
226 of the Constitution of India, is entitled to grant relief to the victim whose
fundamental rights under Article 21 of the Constitution of India are
established to have been flagrantly infringed by calling upon the State to
repair the damage done by its Officers. The reason given by the learned
single Judge for dismissing the complaint of the appellant shows that she has
not furnished the names of the policemen. Whereas in the complaint, the
appellant has mentioned that she has not included the names of the
policemen, but she would be able to identify them. The counter affidavit
filed before the learned single Judge supports the case of the appellant that
she was forcibly removed from her house by two policemen under mistaken
identity. When the transportation of the appellant from Panruti to
Tindivanam by bus and her return journey to Panruti got completed between
4.00 P.M., and 11.30 P.M., are all the admitted facts in this case, the
learned single Judge could have remanded the matter back to the State
Commission to hold a thorough enquiry. Moreover, when the alleged
custodial violence has also been admitted by the fifth respondent in the
counter affidavit that the appellant was mistakenly taken by the policemen
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from Panruti to Tindivanam and for more than seven hours the poor lady,
mother of two female children, was put to alleged sexual and physical
assault, without even holding any enquiry, the impugned order dismissing
the writ petition is unsustainable in law. From the admitted portion of the
counter affidavit filed by the fifth respondent, a man of ordinary prudence
does not require any second thought that the appellant-victim has been
subjected to custodial violence for no good reason. Further, when it is the
admitted case of both parties that only Malliga, the wife of the accused
Vinayagam should have been taken to the police station for interrogation,
but on the contrary, the alleged unlawful act of the policemen in taking the
appellant Malliga, the wife of one Sivakumar, without being guarded by a
woman police constable, to a far away place ie.,Tindivanam Police Station
from Mandaveli, Panruti by two means of transport viz., bus and two
wheeler and detaining her for more than 7 hours coupled with physical and
mental suffering, in our considered opinion, is a clear infringement of her
indefeasible right to life and personal liberty guaranteed under Article 21 of
the Constitution of India.
14. In this context, we will now refer to some of the judgments of the
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Hon'ble Supreme Court on these issues. In the case of Sheela Barse v. State
of Maharashtra, (1983) 2 SCC 96, the Supreme Court has held that
interrogation of females should be carried out only in the presence of female
police Officers/Constables. While dealing with the infringement of personal
liberty of citizens by the Police, the Supreme Court in the case of Bhim
Singh, MLA v. State of J & K and others, (1985) 4 SCC 677, has observed
as follows:-
“2....We can only say that the police officers acted in
a most high-handed way. We do not wish to use
stronger words to condemn the authoritarian acts of
the police. If the personal liberty of a Member of the
Legislative Assembly is to be played with in this
fashion, one can only wonder what may happen to
lesser mortals! Police officers who are the custodians
of law and order should have the greatest respect for
the personal liberty of citizens and should not flout
the laws by stooping to such bizarre acts of
lawlessness. Custodians of law and order should not
become depredators of civil liberties. Their duty is to
protect and not to abduct. ”
15. In the case of P.Rathinam v. Union of India and others, 1989
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Supp (2) SCC 716, while dealing with the complaint of the victim that she
had undergone a lot of suffering – physical and mental, taking on file the
affidavit filed by the State pursuant to the notice indicating therein that four
of the police officers of different grades said to be involved in the incident of
rape have since been suspended from service, taken into custody and are
being proceeded against, the Apex Court has held that the victim has
become entitled to reasonable compensation and accordingly, awarded an
interim compensation of Rs.20,000/- to be paid by the State.
16. A three-Judge Bench of the Hon'ble Supreme Court in the case of
Nilabati Behera (Smt) alias Lalita Behera (through the Supreme Court
Legal Aid Committee) v. State of Orissa and others, 1993 (2) SCC 746,
while dealing with the custodial death of a 22 year old boy in police custody,
entertaining the writ petition filed by mother claiming compensation alleging
violation of Article 21 for the death of her son in police custody, the Apex
Court, holding that award of compensation in proceedings under Article 226
for established infringement of the indefeasible right guaranteed under
Article 21 of the Constitution is a remedy available in public law, observed
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as follows:-
“33. The old doctrine of only relegating the
aggrieved to the remedies available in civil law
limits the role of the Courts too much as protector
and guarantor of the indefeasible rights of the
citizens. The Courts have the obligation to satisfy
the social aspirations of the citizens because the
Courts and the law are for the people and expected
to respond to their aspirations.
34. The public law proceedings serve a
different purpose than the private law proceedings.
The relief of monetary compensation, as exemplary
damages, in proceedings under Article 32 by this
Court or under Article 226 by the High Courts, for
established infringement of the indefeasible right
guaranteed under Article 21 of the Constitution is
a remedy available in public law and is based on
the strict liability for contravention of the
guaranteed basic and indefeasible rights of the
citizen. The purpose of public law is not only to
civilize public power but also to assure the citizen
that they live under a legal system which aims to
protect their interests and preserve their rights.
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Therefore, when the Court moulds the relief by
granting "compensation" in proceedings under
Article 32 or 226 of the Constitution seeking
enforcement or protection of fundamental rights, it
does so under the public law by way of penalising
the wrongdoer and fixing the liability for the public
wrong on the State which has failed in its public
duty to protect the fundamental rights of the
citizen. The payment of compensation in such
cases is not to be understood, as it is generally
understood in a civil action for damages under the
private law but in the broader sense of providing
relief by an order of making 'monetary amends'
under the public law for the wrong done due to
breach of public duty, of not protecting the
fundamental rights of the citizen. The
compensation is in the nature of 'exemplary
damages' awarded against the wrong doer for the
breach of its public law duty and is independent of
the rights available to the aggrieved party to claim
compensation under the private law in an action
based on tort, through a suit instituted in a Court
of competent jurisdiction or/and prosecute the
offender under the penal law.
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35. This Court and the High Courts, being
the protectors of the civil liberties of the citizen,
have not only the power and jurisdiction but also
an obligation to grant relief in exercise of its
jurisdiction under Articles 32 and 226 of the
Constitution to the victim or the heir of the victim
whose fundamental rights under Article 21 of the
Constitution of India are established to have been
flagrantly infringed by calling upon the State to
repair the damage done by its officers to the
fundamental rights of the citizen, notwithstanding
the right of the citizen to the remedy by way of a
civil suit or criminal proceedings. The State, of
course has the right to be indemnified by and take
such action as may be available to it against the
wrongdoer in accordance with law through
appropriate proceedings. Of course, relief in
exercise of the power under Article 32 or 226
would be granted only once it is established that
there has been an infringement of the fundamental
rights of the citizen and no other form of
appropriate redressal by the Court in the facts and
circumstances of the case, is possible. The
decisions of this Court in the line of cases starting
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with Rudul Sah v. State of Bihar and another,
(1983) 4 SCC 141 granted monetary relief to the
victims for deprivation of their fundamental rights
in proceedings through petitions filed under Article
32 or 226 of the Constitution of India,
notwithstanding the rights available under the civil
law to the aggrieved party where the Courts found
that grant of such relief was warranted. It is a
sound policy to punish the wrongdoer and it is in
that spirit that the Courts have moulded the relief
by granting compensation to the victims in exercise
of their writ jurisdiction. In doing so the Courts
take into account not only the interest of the
applicant and the respondent but also the interests
of the public as a whole with a view to ensure that
public bodies or officials do not act unlawfully and
do perform their public duties properly particularly
where the fundamental rights of a citizen under
Article 21 is concerned. Law is in the process of
development and the process necessitates
developing separate public law procedures as also
public law principles. It may be necessary to
identify the situations to which separate
proceedings and principles apply and the Courts
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have to act firmly but with certain amount of
circumspection and self restraint, lest proceedings
under Article 32 or 226 are misused as a disguised
substitute for civil action in private law.”
17. Again quoting with approval the above observations, in the case of
D.K.Basu v. State of West Bengal, 1997 Crl.L.J. 743, holding that any form
of torture or cruel, inhuman or degrading treatment fall within inhibition of
Article 21, whether it occurs during investigation, interrogation or otherwise,
the Apex Court has observed as follows:-
“44. The claim in public law for
compensation for unconstitutional deprivation of
fundamental right to life and liberty, the protection
of which is guaranteed under the Constitution, is a
claim based on strict liability and is in addition to
the claim available in private law for damages of
tortious acts of the public servants. Public law
proceedings serve a different purpose than the
private law proceedings. Award of compensation
for established infringement of the indefeasible
rights guaranteed under Article 21 of the
Constitution is remedy available in public law since
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the purpose of public law is not only to civilise
public power but also to assure the citizens that
they live under a legal system wherein their rights
and interests shall be protected and preserved.
Grant of compensation in proceedings under
Article 32 or 226 of the Constitution of India for
the established violation of the fundamental rights
guaranteed under Article 21, is an exercise of the
Courts under the public law jurisdiction for
penalising the wrong doer and fixing the liability
for the public wrong on the State which failed in
the discharge of its public duty to protect the
fundamental rights of the citizen.
45. The old doctrine of only relegating the
aggrieved to the remedies available in civil law
limits the role of the Courts too much, as the
protector and custodian of the indefeasible rights of
the citizens. The Courts have the obligation to
satisfy the social aspirations of the citizens because
the Court and the law are for the people and
expected to respond to their aspirations. A Court of
law cannot close its consciousness and aliveness to
stark realities. Mere punishment of the offender
cannot give much solace to the family of the victim
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- civil action for damage is a long drawn and
cumber some judicial process. Monetary
compensation for redressal by the Court finding the
infringement of the indefeasible right to life of the
citizen is, therefore, useful and at times perhaps the
only effective remedy to apply balm to the wounds
of the family members of the deceased victim, who
may have been the bread winner of the family.”
18. Again in the case of Mehmood Nayyar Azam v. State of
Chhattisgarh and others, (2012) 8 SCC 1, explaining when the
compensation can be awarded on the complaint of custodial humiliation and
mental torture meted out to the appellant at the hands of insensible police
officials, the Apex Court has held as follows:-
“40. As we perceive, from the admitted facts
borne out on record, the appellant has been
humiliated. Such treatment is basically inhuman
and causes mental trauma. In Kaplan & Sadock’s
Synopsis of Psychiatry, while dealing with torture,
the learned authors have stated that intentional
physical and psychological torture of one human
by another can have emotionally damaging effects
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comparable to, and possibly worse than, those seen
with combat and other types of trauma. Any
psychological torture inflicts immense mental pain.
A mental suffering at any age in life can carry the
brunt and may have nightmarish effect on the
victim. The hurt develops a sense of insecurity,
helplessness and his self-respect gets gradually
atrophied. We have referred to such aspects only to
highlight that in the case at hand, the police
authorities possibly have some kind of sadistic
pleasure or to “please someone” meted out the
appellant with this kind of treatment.
41. It is not to be forgotten that when dignity
is lost, the breath of life gets into oblivion. In a
society governed by rule of law where humanity
has to be a laser beam, as our compassionate
Constitution has so emphasized, the police
authorities cannot show the power or prowess to
vivisect and dismember the same. When they pave
such path, law cannot become a silent spectator.
As Pithily stated in Jennison v. Baker, (1972) 2
QB 52:
“The law should not be seen to sit by
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limply, while those who defy if go
free, and those who seek its protection
lose hope.”
42. Presently, we shall advert to the aspect
of grant of compensation. The learned counsel for
the State, as has been indicated earlier, has
submitted with immense vehemence that the
appellant should sue for defamation. Our analysis
would clearly show that the appellant was tortured
while he was in custody. When there is
contravention of human rights, the inherent
concern as envisaged in Article 21 springs to life
and enables the citizen to seek relief by taking
recourse to public law remedy.
46. On a reflection of the facts of the case, it
is luculent that the appellant had undergone mental
torture at the hands of insensible police officials.
He might have agitated to ameliorate the cause of
the poor and the downtrodden, but, the social
humiliation that has been meted out to him is quite
capable of destroying the heart of his philosophy. It
has been said that philosophy has the power to
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sustain a man’s courage. But courage is based on
self-respect and when self-respect is dented, it is
difficult even for a very strong minded person to
maintain that courage. The initial invincible mind
paves the path of corrosion. As is perceptible, the
mindset of the protectors of law appears to cause
torment and insult and tyrannize the man who is
helpless in custody. There can be no trace of doubt
that he is bound to develop stress disorder and
anxiety which destroy the brightness and strength
of the will power. It has been said that anxiety and
stress are slow poisons. When torment is added, it
creates commotion in the mind and the slow
poisons get activated. The inhuman treatment can
be well visualized when the appellant came out
from custody and witnessed his photograph being
circulated with the self-condemning words written
on it. This withers away the very essence of life as
enshrined under Article 21 of the Constitution.
Regard being had to the various aspects which we
have analysed and taking note of the totality of
facts and circumstances, we are disposed to think
that a sum of Rs.5.00 lacs (Rupees five lacs only)
should be granted towards compensation to the
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appellant and, accordingly, we so direct. The said
amount shall be paid by the respondent State
within a period of six weeks and be realized from
the erring officers in equal proportions from their
salary as thought appropriate by the competent
authority of the State.”
19. In the light of the above dictum laid down by the Hon'ble Apex
Court, in the case on hand, we are able to appreciate the following admitted
facts, as pleaded by the parties:-
19.1. The poor appellant Malliga, who is the wife of one Sivakumar
and the mother of two female children, under mistaken identity, without any
bare verification, was forcibly taken from her house at Mandaveli, Panruti
by two policemen in uniform on 26.1.2011 at 4.00 P.M., under the guise of
interrogation to Tindivanam Police Station, a distance of 58 kms., without
being guarded by a woman police officer/constable through two means of
transport, namely, bus and two wheeler.
19.2. On reaching the police station at Tindivanam, the appellant was
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locked inside a room informing that women police would enquire her.
19.3. After sometime, the door of the room was knocked by someone
and when the door was opened, a policeman in uniform, who tied a
handkerchief on his head, entered the room and the door was closed. The
appellant has specifically stated that the three policemen can be identified by
her, as their names are not known to her.
19.4. One of the policemen sat in a chair and asked another policeman
to take a lathi. After taking the lathi, he beat the appellant on her head.
When she shouted in pain and shame, one another policeman slapped on her
cheek and also abused her. The policeman who beat the appellant with lathi
also molested her and she shouted in pain and shame.
19.5. When the appellant cried and pleaded with the policemen to
show her husband, one policeman showed a photograph and on seeing it,
the appellant stated that he is not her husband and he is Vinayagam, the
accused who is staying near her house. The accused also came and after
seeing the appellant told the police officers that she is not his wife.
19.6. Thereafter, the policemen took the appellant to Tindivanam jail
in a two wheeler and was made to stand outside the jail along with two
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policemen, as one of the policemen went inside the jail and returned after
enquiry.
19.7. In the enquiry, when the accused Vinayagam admitted that the
appellant Malliga is not his wife, the three policemen returned from
Tindivanam and dropped her in her street at Mandaveli, Panruti at 11.30
P.M., through an auto. When the relatives and villagers questioned the
policemen for their unlawful act, the three policemen pushed them and
escaped in the same auto after informing them to come to Panruti Police
Station.
19.8. When the relatives took the appellant to Panruti Police Station
and lodged a complaint, the policemen in the station stated that they cannot
do anything and asked the appellant to make the complaint before the
Villupuram District Police.
19.9. Thereafter, the appellant was admitted in Panruti Government
Hospital as an inpatient on 27.1.2011, as she was subjected to severe
physical and alleged sexual abuse. The appellant lodged the complaint
before the State Human Rights Commission on 7.2.2011, which was taken
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on file in SHRC No.893 of 2011 by the Commission.
20. Further, the fifth respondent-Superintendent of Police, Villupuram
has also admitted in the counter affidavit filed before the learned single
Judge that the appellant Malliga was taken to Tindivanam Police Station, but
on the lame excuse of mistaken identity. However, the Commission, after
waiting for 5 months and 7 days, by a cryptic order dated 14.7.2011, has
dismissed the complaint observing as follows:-
“Complainant called absent. No intimation for her
absence. In the circumstance, petition is dismissed
for default of the petitioner.”
21. When the said order was put to challenge in the writ petition, the
learned single Judge, exercising jurisdiction under Article 226 of the
Constitution, being the protector of civil liberties of the citizen, on the
alleged complaint of infringement of her fundamental rights of right to life
and personal liberty guaranteed under Article 21 of the Constitution, in
order to find out the truth or otherwise of the complaint, without remanding
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the matter to the State Commission to conduct an enquiry, as per the
procedure established by law, has wrongly dismissed the case of the
appellant on the ground that she has not furnished the names of the
policemen who did wrong to her.
22. When the Hon'ble Supreme Court in D.K.Basu's case, Crl.L.J.743
(supra) has categorically held that the award of compensation for established
infringement of the indefeasible rights guaranteed under Article 21 of the
Constitution is a remedy available in public law, the purpose of public law is
not only to civilise the public power, but also to assure the citizens that they
live under a legal system ensuring the rule of law, wherein their rights and
interests are being protected and preserved under Article 21 of the
Constitution and the violation thereof would invoke the grant of
compensation in the proceedings under Article 226 of the Constitution of
India for penalising the wrong doer by fixing the liability under the public
law jurisdiction for the public wrong on the State, which failed in the
discharge of its public duty to protect the fundamental rights of the citizen,
therefore, in the case on hand, we do not find any hesitation to remand the
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matter back to the file of the State Human Rights Commission to enquire
into the matter afresh with a direction to the respondent State to pay interim
compensation to the appellant for the physical and mental torture meted out
to her at the hands of the respondent police.
23. Recently, the Hon'ble Division Bench of this Court in the case of
State of Tamil Nadu represented by its Secretary to Government, Home
Department and others v. S.Anand and others, 2020 1 CWC 257, while
dealing with the custodial torture, bodily injury and humiliation suffered by
the writ petitioner therein, in the light of the ratio laid down by the Apex
Court in the judgments cited supra, has also confirmed the order passed by
the learned single Judge in awarding compensation of Rs.1,00,000/- to the
writ petitioner therein.
24. For all the aforementioned reasons, having been prima facie
satisfied with the complaint of custodial violence, for outraging the modesty
of the appellant, being the mother of two female children, while setting aside
the order passed in the writ petition as well as the order passed by the State
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Human Rights Commission, we remand the matter back to the file of the
State Human Rights Commission to enquire into the complaint of the
appellant afresh and find out who are the officers who have illegally
detained the appellant and committed custodial violence on 26.1.2011, as
per the procedure established by law, within a period of five months from
the date of receipt of a copy of this order. Considering the facts and
circumstances of the case, we also direct the respondent State to pay a sum
of Rs.3,00,000/- (Rupees three lakhs only) as interim compensation to the
appellant within a period of four weeks from the date of receipt of a copy of
this order, leaving it open to the State Human Rights Commission to do the
needful on merits and in accordance with law.
25. Before parting with the case, we wish to place on record our
appreciation for Mr.N.Jothi, learned counsel for his painstaking efforts and
valuable assistance rendered by him as amicus curiae to this Court. Since
Mr.N.Jothi, learned amicus curiae, on his own, has filed two voluminous
paperbook containing 30 judgments of the Supreme Court and this Court
dealing with custodial violence enlightening this Court, recognising his
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assistance with gratitude, we direct the Tamil Nadu State Legal Services
Authority to pay a sum of Rs.10,000/- (Rupees ten thousand only) to the
learned amicus curiae.
26. With these observations, the writ appeal stands allowed.
However, there is no order as to costs.
Speaking order (T.R.,J.) (V.S.G., J.)
Index : yes 23.11.2021
Issue on 3.12.21
ss
To
1. The Secretary to Government, Home Department, Secretariat, Chennai-9
2. The District Collector, Cuddalore District, Cuddalore
3. The District Collector, Villupuram District, Cuddalore
4. The Superintendent of Police, Cuddalore District, Cuddalore
5. The Superintendent of Police, Villupuram District, Villupuram
6. The Inspector of Police,Tindivanam Police Station, Villupuram District
7. The Inspector of Police, Panruti Police Station, Cuddalore District
8. The Member Secretary, TNSLA, Chennai
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W.A.No.2558 of 2013
T.RAJA, J.
and
V.SIVAGNANAM, J.
ss
Judgment in
W.A.No.2558 of 2013
23.11.2021
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W.A.No.2558 of 2013
T.RAJA, J.
&
V.SIVAGNANAM, J.
(Judgment of the Court was made by T.RAJA, J.)
After the pronouncement of the judgment, Mr.N.Jothi, learned amicus
curiae requested this Court that the direction to the Tamil Nadu State Legal
Services Authority to pay him a sum of Rs.10,000/- may be rescinded, as he
has assisted the Court in academic interest for disposal of the case.
2. Accepting his magnanimous request, the last sentence in
paragraph-25 directing the Tamil Nadu State Legal Services Authority to
pay a sum of Rs.10,000/- to the learned amicus curiae is hereby rescinded.
Speaking order (T.R.,J.) (V.S.G., J.)
Index : yes 23.11.2021
Issue on 3.12.21
ss
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W.A.No.2558 of 2013
To
1. The Secretary to Government, Home Department, Secretariat, Chennai-9
2. The District Collector, Cuddalore District, Cuddalore
3. The District Collector, Villupuram District, Cuddalore
4. The Superintendent of Police, Cuddalore District, Cuddalore
5. The Superintendent of Police, Villupuram District, Villupuram
6. The Inspector of Police,Tindivanam Police Station, Villupuram District
7. The Inspector of Police, Panruti Police Station, Cuddalore District
8. The Member Secretary, TNSLA, Chennai
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T.RAJA, J.
and
V.SIVAGNANAM, J.
ss
W.A.No.2558 of 2013
23.11.2021
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