Madras High Court
Shenbagavalli … vs The Assistant Registrar (Law) on 2 August, 2024
Author: S.S.Sundar
Bench: S.S.Sundar
W.P.Nos.17542 & 27164 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.08.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR. JUSTICE N.SENTHILKUMAR
W.P.No.17542 & 27164 of 2021
and WMP.Nos.18465, 18647, 28655 & 28658 of 2021
Shenbagavalli …Petitioner in W.P.No.17542/2021
T.Vivekanandan ...Petitioner in W.P.No.27164/2021
Vs.
1.The Assistant Registrar (Law)
The Honourable National Human Rights Commission,
Manav Adhikar Bhavan "C" Block
GPO Complex, New Delhi.
2.The Joint Registrar (Law),
The Honourable National Human Rights Commission,
Manav Adhikar Bhavan "C" Block
GPO Complex, New Delhi.
3.The Additional Chief Secretary,
Home (Citizenship-II) Department,
Government of Tamil Nadu,
Chennai-09.
4.The Secretary,
The Public (HR) Department,
Government of Tamil Nadu,
Chennai-09.
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5.The Additional Chief Secretary
Home Prohibition & Excise Department,
Chennai - 09.
6.The Secretary,
Finance Department,
Government of Tamil Nadu,
Chennai-09.
7.The Accountant General,
Chennai.
8.The Pay and Accounts Officer,
Chennai.
9.The Director General of Police
Police Head Quarters,
Government of Tamil Nadu,
Chennai.
10.The Commissioner of Police
Greater Chennai City,
Vepery, Chennai- 07.
11.The Joint Commissioner of Police
South Zone, Greater Chennai Police,
Chennai - 600 016.
12.S.Sundaravadivelu …Respondents in both WPs
Common Prayer :
Writ Petition is filed under Article 226 of the Constitution of India, for
issuance of Writ of Certiorari to call for the records relating to the
impugned order passed by the 1st respondent in National Human Rights
Commission Case No.969/22/13/2017/OC dated 05.09.2019 and
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consequent Government Order in G.O.(D) No.1057 issued by Home
(Citizenship II) Department/ 3rd respondent dated 15.09.2020 and to quash
the same.
For Petitioner in both WPs : Mr.M.Purushothaman
For Respondents in both WPs : Mrs.M.P.Jaisha for R1 & R2
Mr.M.R.Gokul Krishnan
for R3 to R6, R9 to R11
: Mr.T.Ravi Kumar for R7
: R12 - No appearance
COMMON ORDER
N. SENTHILKUMAR, J
Both the writ petitions arise out of the common order passed in
NHRC.No.969/22/13/2017/OC dated 05.09.2019.
2. These writ petitions are filed challenging the order passed by the
first respondent/National Human Rights Commission in Case
No.969/22/13/2017/OC dated 05.09.2019 and consequential Government
Order in G.O.(D) No.1057 issued by Home (Citizenship II)
Department/3rd respondent dated 15.09.2020.
3. Ms Shenbagavalli is the petitioner in W.P.No.17542/2021, who is
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the Sub-Inspector of Police, J12, Kanathur Police Station and Mr T.
Vivekanandan is the petitioner in W.P.No.27164/2021, who is the Inspector
of Police, R6 – Kumaran Nagar Police Station.
4. The brief facts are as follows:
4a. The complainant, one Mr. Sundaravelu, had preferred a
complaint dated 14.03.2017 against the petitioners before the National
Human Rights Commission/1st respondent herein. The allegation levelled
against the petitioners is that on 13.01.2017, a few rowdy persons armed
with knives, alleging that they were from the Police Department, threatened
the complainant. At the instance of Ilayaraja and Jayaraman, the
complainant was taken to the Police Station in an Indica car belonging to
them. His further allegation is that the said persons had taken Rs.3,500/-,
the complainant’s Credit Card, Aadhar Card and also snatched Rs.45,000/-
cash, which was kept in a travel bag. Articles worth Rs.1 lakh were also
nicked from the complainant. The complainant stated that a case in Crime
No.102 of 2017 for an offence under Section 294(b) IPC read with Section
4 of TNPWH Act was registered against him by Kannagi Nagar J11, Police
Station at the instance of false complaint given by the said Ilayaraja.
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Consequently the complainant alleged that he was beaten up, forced to
drink his urine and eat his faecal particles.
4b. As per the complaint, the Police informed the complainant that
he had forwarded certain messages via SMS to Mobile numbers
9840983832 and 9500099100 between the dates 25.12.2016 to
31.01.2017, stating that the said Ilayaraja was selling illicit arrack and his
wife had indulged in prostitution. The complainant futher alledged that the
Inspector T.Vivekanandan, i.e., the petitioner in W.P.No.27164 of 2021,
had stated that since Ilayaraja and Jayaraman had bribed the Police
Officers, no action could be taken against them and also went on to inform
the complainant that he was willing to send his wife for prostitution and
was interested in knowing what the complainant would pay as
consideration for such activities.
4c. The complainant stated that Sub Inspector Shenbagavalli, i.e., the
petitioner in W.P.No.17542 of 2021, had threatened that the complainant
would be subjected to third degree treatment if he resists indulging in the
promiscuous activities and as CCTVs were all fixed in front side of the
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Police Station, none of these activities will be recorded.
4d. Based on the said Ilayaraja’s false complaint, the petitioner in
W.P.No.27164 of 2021 had handcuffed the complainant, beaten him up
with pipe rods and the complainant was subjected to serious violations of
human rights. He further made allegations against few others, namely,
Udaya, Shajahan, Allaudin, Iyer, and Vinoth, who were constables and sub-
inspectors in the said Police Station. He has also stated that these incidents
were witnessed by others namely, Rathika, Arulmoris, Leenamon,
Udayakumar, and Velu, who were Police Constables attached to the very
same Police Station.
5. The report of the Assistant Commissioner of Police attached to
Thoraipakkam Range, dated 19.06.2017, is also enclosed in the typed set
of papers filed by the petitioners. It is an enquiry report on the complaint
filed before the Commission/first respondent by the complainant against
Ilayaraja and the petitioners herein. An Enquiry Officer, Mr.J.Aiyyappan,
was appointed to conduct enquiry on the complaint and submit a report.
The relevant portion of the aforesaid enquiry report is extracted hereunder:
Enquiry Report:
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According to the station records 1.FIR,
2.PSR, 3.Sentry relief book, 4. Arrest intimation,
reveals that the petitioner was arrested at
Karapakkam bus stop and brought to J11PS at
14.00hrs on 13.01.17, after making PSR, he was
entrusted with station sentry Wpc 42752
Sivaranjini at 15.00hrs. And then he was taken
to JM Alandhur by Escort Pcs at 18.00hrs.
During this time between 15.00hrs and 18.00hrs
non is assaulted in the PS as stated by the
petitioner and his arrest intimation was also duly
conveyed to his brother-in-law Tr.Ravi on
13.01.17 at 14.00hrs.
In this connection statements were
recorded from the CPs 1 to 3. From the
statements of CPs 1 to 3 and the connected
station records are reveals that the accused
Sundravelu was arrested only on the complaint
of CP 1 and he was arrested by CP 3
Tmt.Senbagavalli, SI of police L&O of J11
Kannagi nagar PS and taken all procedures till
his remand on 13.01.17 and there is no illegal
detention as alleged by the petitioner and also
no personal belongings recovered at the time of
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prisoner search, similarly none is assaulted him
in the police station, more over no one is forced
to drink and eat the human wastage like urine
and human wastage and there is no violations
committed by police personnel against human
rights.
No further action is need in this matter.
6. The enquiry report includes the statement of Rajasekaran,
Ilayaraja, the complaint of Sundaravelu filed before the SHRC and two
CSRs viz., C.S.R.No.12 of 2017 and C.S.R.No.172 of 2017. The crude and
vulgar messages by the complainant dated 01.07.2017 and 09.01.2017
were also enclosed in the report. This court feels, it may not be appropriate
to reproduce the distasteful messages sent by the complainant. The
complaint given by Srividhya, which was treated as C.S.R.No.172 of 2017,
would disclose that she is working as the Head of Human Resources in a
private company which engaged the services of ‘Ilayabharatham Cabs’ for
the transportation of their staff members. The complainant happened to be
the cab driver, and thereby having access to her mobile number, began
sending crude, indecent and vulgar messages to her. This harassment stood
for consideration before the Police.
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7. Similarly, the complaint of the said Ilayaraja, which was treated as
C.S.R.No.12 of 2017, would disclose that he was running the small tourist
cab company in the name and style of ‘Ilayabharatham’, and the
complainant was working as a driver, and had often misbehaved with
clients. As the complainant was removed from service, he abused Ilayaraja
and his wife by sending vulgar messages to his wife's mobile number.
Under this pretext, a case was registered by Kannagi Nagar Police in Crime
No.102 of 2017 for the offences under Section 294 (b) IPC read with
Section 4 of the TNPWH Act.
8. The statement of the Police Officers enclosed in the report dated
19.06.2017 shows that the complainant was arrested and he was produced
before the Judicial Magistrate. The complainant has not made any
complaint before the learned Judicial Magistrate at the time of arrest and
remand. Thereafter, he was produced before the Prison Authorities at
Puzhal Central Prison. The statement of the Police Constable Vinothkumar,
who took the complainant to Chrompet Government Hospital shows that
the complainant was given a fit certificate for his health condition and
when the complainant was produced before the Government Royapettah
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Hospital, he informed the doctor that he had some knee pain. Based on his
request, an X-ray was done. The doctor enquired if he was willing to
receive treatment at Government Royapettah Hospital, for which the
complainant informed that he would receive treatment within the prison.
9. The statement of Police Constable Vairamuthu shows that when
the complainant was produced before the learned Judicial Magistrate, the
learned Judicial Magistrate posed three questions to him: (i) Was the
accused aware of the allegations made against him? (ii) Did the Police
commit torture? and (iii) Were there any injuries sustained by the
complainant at the hands of the Police? After recording the negative
statement from the accused, the learned Judicial Magistrate remanded the
accused for 15 days.
10. The statement of Police Constable, Rathika, shows that when the
complainant was brought to the Police Station, he was physically
examined, and food was provided to him.
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11. It is seen from the records that the Police had also filed a charge
sheet against the complainant Sundaravelu for offences under Section 294
(b) IPC read with Section 4 of the TNPWH Act. The Assistant
Commissioner of Police, Thoraipakkam Range submitted the aforesaid
report to the Commission/first respondent on 19.06.2017 for consideration.
12. The Commission/first respondent called for the report of the
Commissioner of Police vide proceedings dated 05.06.2018 as a final
reminder. On 17.07.2018, the Commissioner of Police submitted his report
to the Commission/first respondent stating that there was no custodial
torture in the present case and the allegations of the complainant are false
and baseless.
13. In a proceeding dated 26.10.2018, the first respondent took note
of the allegations in the complaint and directed the Commissioner of Police
to furnish a copy of his report to the complainant and called for his reply.
The Commission/first respondent, in its proceedings dated 11.04.2019, has
considered the complainant's reply, which states that the report is faulty
and evasive. In the said proceedings, the Commission has observed as
follows:
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...
“Let the file be sent to Investigation
Division for analysis and to do the spot enquiry
if required & submit the report within six weeks.”
14. On 12.05.2019, the Inspector of Police attached to Kannagi
Nagar, J11 Police Station, submitted a report to the Commission/ first
respondent detailing the spot enquiry made by the Investigation Division of
NHRC, which is extracted hereunder:
NHRC Team Spot Enquiry:
On 06.05.2019 at 09.00hrs, a team of
officials from the National Human Rights
Commission (New Delhi) arrived chennai
airport, we arranged transport and the team
went by roadways to PeriaKalakatoor Village,
Thirutani Taluk, Thiruvallur District for
conducting spot inquiry of Petitioner Tr.
S.Sundaravelu s/o. Tr.C.Subramani. And the
next day, on 07.05.2019 in chennai, the NHRC
team verified the Station Records like 1) FIR, 2)
PSR, 3) Sentry Relief Book, 4) GD entry and 5)
Arrest Intimation in connection with case
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registered in J-11 Kannagi Nagar P.S
Cr.No.102/2017 u/s 294(b) IPC r/w 4 of TNPWH
ACT and also making inquiries with the
complainant of Victim's husband Tr.Elayaraja
A/47, S/O Shanmugam, who residing in No.1/355
Indira Gandhi Street, Karapakkam, Chennai –
600 097. Then, the third day and the fourth day,
on 08.05.2019 and 09.05.2019, the NHRC team
inquired with the Jail Superintendent of Central
Prison, Puzhal, Government Royapettah Hospital
Doctors, Police Officers who registered an FIR,
Tr.Vivekanandan now working as an Inspector of
Police in R1 Mambalam P.S (L&O), Tmt.
Shenbagavalli, WSI of Police in J10
Semmenchery P.S (L&O) and the Enquiry officer
of Thuraipakkam Range, Retired Assistant
Commissioner of Police Tr. Iyappan, special
teams of J11 Kannagi Nagar P.S and Escort Team
who taken the petitioner to Central Prison,
Puzhal. On 10.05.2019, the NHRC team
completed his spot inquiries and went back to his
Commission New Delhi.
15. The Investigation Division analysed the relevant records and
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submitted a report to the Commission/first respondent. In the proceedings
dated 08.08.2019, the Commission/first respondent issued the following
order:
The Commission has considered the
report. Prima facie, the complainant was
arrested by police on 13.1.2017 but no GD entry
regarding his arrest, movement to hospital or to
the jail was made in police record. Admittedly,
there was no injury was found on the body of the
victim at the time of arrest, the doctor of
Chrompet Hospital had advised orthopedic
examination but was not undertaken by police,
the record of Royapettah Hospital as well as jail
hospital reveal fracture on both knees of the
complainant.
Let the Investigation Division conduct a
spot enquiry and submit report within 10 weeks.
16. The Investigation Division had submitted an enquiry report
dated 03.07.2019 before the Commission/first respondent. The adverse
findings made against the petitioners in the report of the Investigation
Division are extracted hereunder:
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Analysis of the GD entries reveals that
there was no entry regarding arrest of
complainant Sundaravelu, movement of police
personnel while arresting or sending him to
hospital/court etc.
...
2E. The medical papers dated 13.01.2017
& 14.01.2017 of Chrompet hospital and
Royapettah hospital:- This reveals that there
was swelling & pain on both knees and fracture
of both patellas.
2F. The initial health screening report of
UTP S. Sundaravelu at Central Prison Puzhal:-
This reveals that while admission in jail, victim
S. Sundaravelu was found to be having injury
over both knee and fracture both patellas.
Apart from the above adverse findings against the petitioners, the
Investigation Division received reports on other under-trial prisoners
admitted with fractures. The observations of Investigation Division are
extracted hereinunder:
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3.The copy of initial health screening
report of 91 prisoners (P 184-274):- The
document of Central Prison Puzhal has
been collected from jailer and the jail
doctor. The report reveals that the under
trial prisoners who has been admitted in
Central Jail, Puzhal-2 suffered
injuries/fracture on knees elbows etc at the
time of admission in the jail due to police
atrocities. The details of the initial health
screening report of the 91 prisoners are as under:-
S. Name Injury Page
No. No.
3 Asith Kumar @ Sharma Fracture at lateral mellealus 140
5 Vellai @ Tamilarasan Fracture at BB of left leg 142
6 Naveen Kumar Fracture of left megelani sinus 143
lateral wall of let orbit
8 Raj Kumar @ Ranjith Fracture at left radius 145
9 Ajith Kumar @ Etta Ajith Belalleloar fracture right ankle 145A
11 Madhan @ Madkumar Fracture of BB right forearm 147
12 Vicky @ kallarai Viely Fracture of BB right forearm 148
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S. Name Injury Page
No. No.
13 Udaya @ Uday Kumar Fracture of BB right forearm 148A
14 Arun Fracture of right 1st proximal filling 149
17 Arun Kumar @ Arun Fracture at Left clavicle 152
18 Guna @ Vasanthavel Fracture at right forearm 153
22 Suresh @ Arcot Suresh Fracture at left fibula 157
23 Sanjeev Kumar Injury and fracture at right radius 158
24 Syed Sarparas Navas Fracture at BB right leg 159
25 Ajai @ Ajith @ Ajith Fracture at BB right forearm 160
kumar
28 Abdhul Khadhar Fracture neck of right metacarpal 163
and proximal filling of 5th toe
30 Karthik Viral karthik Fracture on right forearm 165
33 Aribabu @ Babu Fracture left leg right hand with 168
active bleeding over left leg
34 Mutta @ Shiv Kumar Fracture right forearm 169
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S. Name Injury Page
No. No.
36 Dhayalan Fracture right forearm with swelling 171
both legs
38 Pendu vikki @ Viknesh Fracture M3 with right radius 173
42 Sathish @ S. Kumar Fracture right forearm 177
44 Moorthi @ Moosa Fracture BB right forearm 179
45 Sathish Kumar Fracture BB D3 right forearm 180
46 Rajesh Fracture proximal filling right toe 181
47 Kuppa @ Kuppusamy Fracture over right leg 182
48 Ranjith Kumar Fracture with BB right forearm 183
52 Palvadi Murugan Fracture left thumb & with 2nd distal 187
filling
53 Prabhakaran @ Appu Fracture with right forearm 188
54 Janaki raman @ Mani Fracture with Right forearm right 189
radius
55 Thirunavukkarsu Fracture on right radius 190
56 Rajesh @ Sankili Rajesh Fracture left shift of valua 191
57 Ramapwan Suresh Fracture on left forearm 192
58 Rajesh Fracture on right forearm and legs 193
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S. Name Injury Page
No. No.
63 Suresh @ Sacchi Fracture isolated right radius 198
68 Pascal Pasha Fracture of forearm & right tibia 203
73 Pharrib Fracture 1st metacarpal and left 208
hand
76 Kishore Kumar Fracture of BB left leg and fracture 211
of BB right forearm
78 Jayakumar Fracture and dislocation of left 213
great toe
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S. Name Injury Page
No. No.
82 Raja @ R @ Raja Bai Fracture of BB right forearm 217
joint dislocation
88 Prakash Fracture of H3 radium left forearm 223
90 Ganesh Fracture of middle finger & 225
proximal filling of left hand
91 Sudhardran Fracture PPX base of left index 226
finger
The Investigation Division has given its findings, conclusion and
recommendations to the Commission/first respondent in the aforesaid
report.
17. The proceedings of the Commission/first respondent dated
30.08.2019 is enclosed as Annexure R7 in the typed set of papers filed by
the Commission/first respondent. In the said proceedings, the
Commission/first respondent considered the report of the Investigation
Division and directed as follows:
...The Commission got the matter examined
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and analyzed through its Investigation Division.
The Investigation Division of the Commission
also conducted a spot inquiry in order to verify
the facts and allegations in the complaint and to
find out truth in the matter.
The spot inquiry by the Investigation Team
found holes in the story put forth by the State
Police. It was found that GD entries regarding
the movement of Police to arrest Sundaravelu,
his arrest and accidental fall of Sundaravelu, his
movement to the hospital or to the jail were not
made. At the time of his arrest, no injury was
found on the body of the complainant. However,
after the arrest when he was taken to doctor at
Chrompet Hospital for examination on 13.1.2017
– the day of arrest, the doctor found swelling on
both the knees and advised orthopedic
examination. But the police did not take him for
any such examination. Sundaravelu was
produced before the concerned Magistrate, who
allegedly ignore the complainant's version of
custodial torture and remanded him to police
custody. When the police took him to the Central
Jail, Puzhal, the Jail Authorities refused to
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accept Sundaravelu as he was having injuries
and directed to re-examine him in the
Royapettah Govt. Hospital. The medical
treatment at Royapettah Hospital dated 13-
14/1.2017 reveals fracture on both the knees of
Sundaravelu. He was then again taken to the
Central Jail, Puzhal on the night of 13/14.1.2017
where he was treated and was released on bail
on 5.2.2017. The Jail Doctor stated before the
NHRC Investigation team that the victim,
Sundaravelu was diagnosed with fracture and
this type of fracture might be due to torture
during police interrogation. The x-ray produced
by Sundaravelu also confirms fracture on the
knee.
From the above, it is crystal clear that
when the complainant, Sundaravelu was arrested
on 13.1.2017, he was not having any injury, but
after about four hours when he was produced
before the doctor at Chrompet Hospital, he was
having pain and swelling over both the knees,
which were later confirmed to be fracture at
Royapettah Hospital on the same day. Thus,
there is no iota of doubt Sundaravelu's torture
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by the police in custody to the extent that they
caused fracture on both his legs.
During the spot enquiry, the Commission's
Investigation Team also came to know that there
are 91 other under-trial prisoners in Puzhal
Central Jail with fracture on different parts of
the body such as forehand, forearm, knees etc. at
the time of their admission in the jail. The
Investigation Team has procured the Health
Screening Reports of these 91 under-trial
prisoners at the time of their entry into prison.
These Health Screening Reports reinforce the
reasonable suspicion that the kind of torture
causing fracture on the limbs of the prisoners is
rampant, which is extremely worrisome to say the
least.
The Commission therefore, without any
hesitation, -
(a) directs issuance of notice under
Section 18 of the Protection of Human Rights Act
to Government of Tamil Nadu through its Chief
Secretary to show cause as to why the
Commission should not recommend payment of
compensation of Rs..............lakhs to be paid to
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the complainant/victim Sundaravelu for the
custodial torture that he was subjected to in
violation of his human rights.
(b) recommends that Director General of
Police, Tamil Nadu ensures that criminal case is
registered against the police officials, who are
alleged to have caused above custodial torture
and to take necessary action as per law.
(c) directs the Director General of Police,
Tamil Nadu to procure the initial Health
Screening Reports of the prisoners in other
Central Jails in the State of Tamil Nadu, which
indicate “fracture” along with the list of such
prisoners.
The matter will be taken up at the CAMP
SITTING/OPEN HEARING of the Commission at
Chennai on 12th September, 2019 and the
Director General of Police is directed to remain
present along with the information sought as
above.
The Chief Secretary and the Director
General of Police, Tamil Nadu shall be present
along with the above reports.
18. The first respondent, vide letter dated 05.09.2019, had forwarded
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a proceeding to the Director General of Police and requested for an
additional/complete report for the commission's consideration during the
camp sitting at Chennai.
19. The Commission/first respondent vide proceedings dated
05.09.2019 had given three directions:
a) Directing issuance of notice under Section 18 of the Protection of
Human Rights Act to the Government of Tamil Nadu through its Chief
Secretary, to show cause, as to why the Commission should not
recommend payment of compensation of Rs.3 lakhs to the
complainant/victim Sundaravelu for being subjected to custodial torture
that resulted in human rights violations.
b) Recommends that Director General of Police, Tamil Nadu to
ensure that criminal case is registered against the Police Officials, who are
alleged to have caused the above custodial torture that he was subjected to
in violation of human rights.
c) Direct the Director General of Police, Tamil Nadu to procure the
initial Health Screening Reports of the prisoners in other Central Jails in the
State of Tamil Nadu, which indicate 'fracture' along with the list of such
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prisoners.
20. On 12.09.2019, during camp sitting/Open hearing, the
Commission/first respondent recommended for payment of compensation
of Rs.3 lakhs to the complainant. According to the directions of the
Commission/first respondent, the Government passed G.O.(D)No.1057
Home (Citizenship-II) Department dated 15.09.2020. Challenging the
proceedings dated 05.09.2019 and the Government Order dated
15.09.2020, the present writ petitions are filed.
21. It is also seen from the proceedings dated 08.01.2020 that the
Chief Secretary, Government of Tamil Nadu, and the Director General of
Police, Tamil Nadu were directed to appear before the Commission for
submission of proof of compensation paid to the complainant. The
aforesaid proceedings resulted in the issuance of consequential orders of
Respondents 9 to 11 on payment of compensation and recovery of the same
from the petitioners.
22. Learned counsel for the petitioners contended that at no point
in time, the petitioners were issued a show cause notice by the
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Commission/first respondent or by the Government. The next contention is
that the enquiry report of the Investigation Division was not furnished to
the petitioners enabling them to make their objection with regard to
veracity of the findings, conclusion and recommendations. The
Commission/first respondent and the Government have not provided an
opportunity to the petitioners to submit their explanation or an opportunity
to be heard before passing orders for payment of compensation of Rs.3
lakhs to the complainant and recovery of the same from the petitioners.
23. The petitioners had no knowledge about the proceedings of the
first respondent. According to the petitioners, they were in shock &
surprise to see the Government Order in G.O.(D)No.1057 Home
(Citizenship-II) Department dated 15.09.2020 issued pursuant to the
recommendation of the Commission/first respondent. The petitioners came
to know about the entire proceedings only when the aforesaid Government
Order was passed which came as a sudden and an unexpected turn of
events.
24. Learned counsel appearing for the first respondent submitted
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that the Commission has followed all the procedures at the time of enquiry
and relied upon Section 18 of the Protection of Human Rights Act, 1993.
For better understanding, Section 18 is extracted hereunder:
18.Steps during and after inquiry.-
The Commission may take any of the
following steps during or upon the completion of an
inquiry held under this Act, namely:-
(a) where the inquiry discloses the
commission of violation of human rights or
negligence in the prevention of violation of human
rights or abetment thereof by a public servant, it
may recommend to the concerned Government or
authority-
(i) to make payment of compensation
or damages to the complainant or to the victim
or the members of his family as the Commission
may consider necessary;
(ii) to initiate proceedings for
prosecution or such other suitable action as
the Commission may deem fit against the
concerned person or persons;
(iii)to take such further action as it
may think fit;
25. The learned counsel for the first respondent submitted that the
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Commission/first respondent has jurisdiction to conduct an enquiry as
contemplated as per Section 16 (b) of the Act. For better understanding,
Section 16 (b) is extracted hereunder:
16.Persons likely to be prejudicially affected
to be heard.-
...
(b) is of the opinion that the reputation of any
person is likely to be prejudicially affected by the
inquiry,
it shall give to that person a reasonable
opportunity of being heard in the inquiry and to
produce evidence in his defence:
Provided that nothing in this section shall
apply where the credit of a witness is being
impeached.
26. It is pertinent to note the veracity of the complaint given by the
complainant. The complainant stated that he was subjected to torture at the
instance of a false complaint given by the said Ilayaraja. However, the
complainant had not produced a semblance of material to show that he was
harassed by the petitioners.
27. A plain reading of Section 16 (b) would clearly show that in the
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opinion of the Commission, if a person is likely to be prejudicially affected
when a finding is made against him, then the first respondent has to issue a
notice or a show cause notice to the concerned person asking for a reply on
the allegations made against the said person.
28. Section 16 (b) is a mandatory provision for the Commission/first
respondent to hold an enquiry. Before concluding the enquiry, it is
incumbent on the first respondent to adhere to the procedures. While we
concur with the powers of the Commission/first respondent in holding an
enquiry as per Section 18, we also hold that any violation of Section 16(b)
which would affect the reputation of a person against whom allegations are
made is not only a violation of Section 16(b) but also a violation of
principles of natural justice.
29. It is pertinent to note that the National Human Rights
Commission had never issued any summons to the writ petitioners. The
Commission/first respondent has made recommendation based on the
enquiry report of the Investigation Division. The said enquiry report was
not furnished to the petitioners before making the recommendation to the
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Government of Tamil Nadu.
30. The typed set filed by the first respondent, though running to
several pages with several proceedings, lacks material suggesting that the
Investigation Division at the instance of the Commission/first respondent
has followed necessary procedures in conducting the enquiry. There is no
evidence to show that the petitioners were properly examined, allowed to
mark documents and cross examine the witnesses. In the absence of any
material produced before this Court to substantiate that the enquiry was
conducted by following necessary procedures, this Court is unable to infer
anything in concurrence with the findings rendered by the Commission/first
respondent.
31. In violation of statutory provisions and principles of natural
justice, the Commission/first respondent has made the recommendation for
payment of compensation and the third respondent has passed an order for
payment of compensation to the complainant. As a consequential order, the
respondents 9 to 11 have passed an order to recover a sum of Rs.1,50,000/-
from the petitioners, respectively.
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32. The Commission/first respondent ought to have considered the
fact that the allegations made against the petitioners are serious in nature
and there could be no orders passed behind the back of the petitioners. If,
as contemplated by the statute, a show cause notice was issued to the
petitioners, it would have accorded an opportunity to defend their case
before the Commission/first respondent.
33. Conducting a roving enquiry without an opportunity to the
persons against whom the recommendations are made would only show
that the first respondent had flouted the principles of natural justice and not
furnishing the enquiry report on the basis of which the recommendations
were made, has resulted in serious prejudice against the petitioners.
34. The entire proceedings is vitiated as per the dictum of the Hon'ble
Supreme Court in Union of India and Others vs. Mohd. Ramzan Khan
reported in (1991) 1 SCC 588. The principle laid down in this case was
affirmed by a Constitution Bench of the Hon'ble Supreme Court in
Managing Director, ECIL, Hyderabad vs. B. Karunakar and Others
reported in (1993) 4 SCC 727. The rationale behind the right to receive the
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report of the enquiry officer was explained by the Hon'ble Supreme Court
in the following terms:
26. The reason why the right to receive the
report of the enquiry officer is considered an
essential part of the reasonable opportunity at the
first stage and also a principle of natural justice is
that the findings recorded by the enquiry officer form
an important material before the disciplinary
authority which along with the evidence is taken into
consideration by it to come to its conclusions. It is
difficult to say in advance, to what extent the said
findings including the punishment, if any,
recommended in the report would influence the
disciplinary authority while drawing its conclusions.
The findings further might have been recorded
without considering the relevant evidence on record,
or by misconstruing it or unsupported by it. If such a
finding is to be one of the documents to be considered
by the disciplinary authority, the principles of natural
justice require that the employee should have a fair
opportunity to meet, explain and controvert it before
he is condemned. It is negation of the tenets of justice
and a denial of fair opportunity to the employee to
consider the findings recorded by a third party like
the enquiry officer without giving the employee an
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opportunity to reply to it. Although it is true that the
disciplinary authority is supposed to arrive at its own
findings on the basis of the evidence recorded in the
inquiry, it is also equally true that the disciplinary
authority takes into consideration the findings
recorded by the enquiry officer along with the
evidence on record. In the circumstances, the findings
of the enquiry officer do constitute an important
material before the disciplinary authority which is
likely to influence its conclusions. If the enquiry
officer were only to record the evidence and forward
the same to the disciplinary authority, that would not
constitute any additional material before the
disciplinary authority of which the delinquent
employee has no knowledge. However, when the
enquiry officer goes further and records his findings,
as stated above, which may or may not be based on
the evidence on record or are contrary to the same or
in ignorance of it, such findings are an additional
material unknown to the employee but are taken into
consideration by the disciplinary authority while
arriving at its conclusions. Both the dictates of the
reasonable opportunity as well as the principles of
natural justice, therefore, require that before the
disciplinary authority comes to its own conclusions,
the delinquent employee should have an opportunity
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to reply to the enquiry officer's findings. The
disciplinary authority is then required to consider the
evidence, the report of the enquiry officer and the
representation of the employee against it.
Following the aforesaid judgments, the Hon'ble Supreme Court in Takano
vs. Securities and Exchange Board of India and Ors. reported in 2022 8
SCC 162, held that non-furnishing of enquiry report to the delinquent is a
violation of principles of natural justice.
35. Apart from the above recommendations made against the
petitioners herein, the Commission/first respondent also directed the Police
Department to submit initial Health Screening Report of the prisoners in
other prisons of the State which indicate fracture. It is relevant to extract
Annexure R14, a letter addressed to the Additional Registrar (Law) NHRC,
New Delhi, by the Director General of Police, Chennai, dated 31.07.2020.
...
2) As instructed a list of 329 prisoners
admitted with fracture in Central Prisons were
obtained from the Additional Director General of
Police/Inspector General of Prisons, Chennai and a
SIT (Special Investigation Team) was constituted
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comprising of 13 members to conduct an enquiry
into each case of suspected fracture.
3) Hence, as per this office memorandum in
even no dated: 07.10.2019 in the references 2nd cited,
13 Independent Officers in the rank of SP & DSsP
were nominated in the Special Investigation Team
formed under the Deputy Inspector General of
Police, Social Justice & Human Rights headed by
Additional Director General of Police, Social Justice
& Human Rights, to enquire into the reasons for the
suspected fractures of 329 convicts/prisoners in the
Central Prison of Tamil Nadu.
4) In the list of 329 Prisoners with suspected
fractures given for enquiry it was found that
(i) Sl.No.6 & 7 of the list of Central Prison,
Trichy, who were remanded in Trichy Central Prison
and later transferred to Central Prison, Salem had
been repeated as Sl.No.13 & 16 in the list of Central
Prison, Salem.
(ii) And in, the list of Central Prison, Salem, it
was found that the names of prisoners in Sl.No.8 and
9 was repeated once again in Sl.No.29 and 30.
Hence, the total number of 329 convicts/prisoners
with suspected fracture to be enquired came down to
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325 (329-4=325).
5) Hence, a detailed enquiry was conducted by
an independent 13 member SIT formed as per the
memorandum of Director General of Police in the
reference 2nd cited for 325 Remand Prisoners noticed
with suspected fractures. The reports submitted by
them have been categorized as shown below:
Sl. Name of SIT enquiry Total Cases Cases
No. officer & his Unit/District Cases without with
assigned any allegation
allegations s
CCB-I, Chennai City
DCB, Vellore
IUCAW/CWC, Villupuram
DCB, Cuddalore
Salem City, i/c-CCB
DCB, Salem Dist.
CWC, Coimbatore Dist.
ALGSC, i/c-DCB,
Pudukkottai
ALGSC, Trihcy City
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Sl. Name of SIT enquiry Total Cases Cases
No. officer & his Unit/District Cases without with
assigned any allegation
allegations s
CCB, Coimbatore City
ALGSC, i/c-CCB,
Tirunelveli City
ACP,
CCB, Madurai City
CCB, Tirunelveli, Dist.
The enquiry officers during the course of enquiry
came across 67 allegations against the police which is
furnished in column 5 of the above mentioned table by
examining witnesses and documents such as the
Magistrates Remand order, Accident Register in Govt.,
Hospitals, Prisoner's admission record, Prison Hospital
record and Prisoner's present statement, when enquired.
36. Based on the enquiry reports on the said 67 cases, the Special
Investigation Team has come to the conclusion that only in three cases
allegations are proved, out of which, one case is pending before the Judicial
Magistrate-II, Cuddalore, another before the State Human Rights
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Commission and the third case was recommended for initiation of
departmental action against the erring Police Officer, by the Special
Investigation Team. Based on the above recommendations of the Special
Investigation Team, the Commission/first respondent recommended for
payment of compensation of Rs.7.5 lakhs to the victim and the said
recommendation was quashed by this Court by an order dated 14.03.2024
in W.P.No.12451 of 2023.
37. The recommendation made by the 1st respondent for payment of
compensation to the complainant/12th respondent herein, is hereby set
aside, and the consequential directions for initiating criminal proceedings
and disciplinary proceedings against the petitioners are also set aside.
38. This Court is of the view that the following two grounds of
digressions have embodied the soul of the violations of principles of natural
justice and of mandatory statutory requirements, in the present case.
(i) Failure to issue show cause notice to the petitioners, has caused
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prejudice and damage to both, the persons and their service records.
(ii) Non-furnishing of enquiry report is detrimental to the writ
petitioners, which also stands antithetical to the mandate of the principles
laid down by the Hon’ble Supreme Court, in the precedents cited supra.
39. With the above observations, the Writ Petitions are allowed on
the following terms:
(a) The impugned order passed by the first respondent/National
Human Rights Commission (NHRC) in case No.969/22/13/2017/OC dated
05.09.2019 is quashed.
(b) The consequential Government Order in G.O. (D) No.1057
issued by Home (Citizenship II) Department/third respondent dated
15.09.2020 is also quashed.
(c) The Government shall return the compensation amount recovered
from the petitioners within a period of 4 weeks.
(d) The Government is at liberty to recover the compensation amount
paid to the complainant by following due process of law. No costs.
Consequently, connected miscellaneous petitions are closed.
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[S.S.S.R., J] [N.S., J]
02.08.2024
Index : Yes/No
Speaking Order : Yes/No
Neutral Citation : Yes/No
pam
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To
1.The Assistant Registrar (Law)
The Honourable National Human Rights Commission,
Manav Adhikar Bhavan "C" Block
GPO Complex, New Delhi.
2.The Joint Registrar (Law),
The Honourable National Human Rights Commission,
Manav Adhikar Bhavan "C" Block
GPO Complex, New Delhi.
3.The Additional Chief Secretary,
Home (Citizenship-II) Department,
Government of Tamil Nadu,
Chennai-09.
4.The Secretary,
The Public (HR) Department,
Government of Tamil Nadu,
Chennai-09.
5.The Additional Chief Secretary
Home Prohibition & Excise Department,
Chennai - 09.
6.The Secretary,
Finance Department,
Government of Tamil Nadu,
Chennai-09.
7.The Accountant General,
Chennai.
8.The Pay and Accounts Officer,
Chennai.
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9.The Director General of Police
Police Head Quarters,
Government of Tamil Nadu,
Chennai.
10.The Commissioner of Police
Greater Chennai City,
Vepery, Chennai- 07.
11.The Joint Commissioner of Police
South Zone, Greater Chennai Police,
Chennai - 600 016.
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S.S.SUNDAR, J
and
N. SENTHILKUMAR, J
pam
W.P.Nos.17542 & 27164 of 2021
02.08.2024
https://www.mhc.tn.gov.in/judis
