Judgment:
(Prayer: Writ Petition is filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, directing the Respondents No.1 to 3 to prosecute the delinquent police officials on the basis of a fair impartial investigation and to take criminal and departmental action against the Respondents No.4 to 6 consequentially to pay to the petitioner, compensation of a sum of Rs.5,00,000/- (Rupees Five Lakhs only).)
1. This Writ Petition is filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, directing the Respondents No-1 to 3 to prosecute the delinquent police officials on the basis of a fair impartial investigation and to take criminal and departmental action against the Respondents No-4 to 6 consequentially to pay to the petitioner, compensation of a sum of Rs.5,00,000/- (Rupees Five Lakhs only) as compensation.
2. The case of the Petitioner is that the Petitioner in this writ petition is the mother of one Selvaraj who suffered with severe injuries prior to his judicial custody. It is case of the writ petition that her 5th son named Selvaraj who is said to have victim was taken to house of the 7th Respondent who is an advocate on 20.04.2010 morning hours. According to the Petitioner the 7th Respondent joined with other Respondents 8 to 11 ruthlessly beaten the Petitioner s son on his back and shoulder with leather belts and hit on chest with foot wear clad leg. Further it was stated by the Petitioner that the 7th Respondent and his five other men accompanied petitioner s son in the white ambassador car to his village Avarampatty by tying his hands from the behind and slapped on his face by asking to reveal the whereabouts of the stolen properties.
3. The Petitioner further contented in support of her case that on 20.04.2008 at 07.00 P.M the 7th Respondent and others took her son to Poothalur Police station and upon his arrival there, two policemen at the entrance started to slap on his face without enquiring her son. Further the case of the Petitioner is that one the then Sub inspector of Police, Mr.Abdul Latheef, who is the 4th Respondent, compelled the petitioner to accept the theft and hit him on his hand with iron edged baton. The Petitioner blamed that the police officers unrobed the victim s cloth and made her son to stand with his underwear and tied his legs and hand with handcuff and beat him with baton on his back and further the petitioner specifically alleged that her son was repeatedly beaten by the 4th respondent on his sole of feet repeatedly.
4. The learned Counsel Mr.R.Karunanidhi argued that the petitioner s son sustained severe head injuries. The police took Victim to nearby private hospital at 10.00 P.M and eight stitches made on his head injury and other medical treatment was given to the victim. The Petitioner s counsel stated that the police subsequently registered a false theft case against the petitioner s son in Crime Number 80 of 2008 on the file of Poothalur Police Station for the offence under Section 380 of IPC. Thereafter a case was registered against 7th respondent and others in Crime Number 81 of 2008 for offences under section 294(b), 323 of IPC by the 4th Respondent. The Petitioner s counsel further stated that the victim was produced before the then Judicial Magistrate, Thiruvaiyar and the petitioner s son was also given medical treatment inside the prison. Subsequently on 09.05.2008 the petitioner s son was released on bail. While so, because of the injuries on head, the petitioner s son under went pain and took treatment he was admitted as an in patient at Thanjavur Medical college hospital and there they shifted him to Psychiatric ward and he continues took treatment. The learned petitioner s counsel relied on the medical document records given by the Thanjavur Medical college hospital and Meenakshi Mission Hospital and research centre, Madurai. Further the Petitioner s counsel argued that the victim is still taking treatment for the physical and mental injuries. Subsequently the Petitioner s son has sent a representation on 27.06.2008 to the Respondents No,1 to 3 and others for seeking action against the perpetrators and compensation from the State. The Petitioner s counsel further stated that though the representations were acknowledged by the Respondents No.1 to 3 but there was no action from the Government.
5. The Respondents No.1 to 3 as well as Respondent No.4 filed counter in the writ petition. The Respondents No.5 to 11 did not file any counter in the writ petition nonetheless the writ petition is pending since 2010. Further the notice was served to all the Respondents and the Petitioner s counsel also filed affidavit of proof of service of private notice. The Respondents No.1 to 4 denied the allegations raised by the petitioner. The Respondent No.5 produced a copy of transfer order by relying the same her counsel contented that she was not working in the Poothalur Police Station on the date of alleged occurrence. The Respondents No- 7 to 11 did not file any counter though they entered appearance through the Counsel namely J.Arunachalam and R.Murugan. The Respondent No.6 after receiving notice he neither filed any counter nor appeared before this Court.
6. It is further countered that the respondents 1 to 3 as well as Respondent No. 4 raised a question with regard to maintainability of this writ petition since the mother filed writ petition for his own son. The Respondents No.4 specifically stated in his counter that the 7th Respondent appeared along with the writ petitioner s son on 21.04.2008 at about 11.00 a.m. and 7th Respondent made a theft complaint against the petitioner s son. The 4th Respondent registered a case against the Petitioner s son in Crime No.80 of 2008 under Section 380 of IPC. The 4th Respondent himself recorded the injuries of the petitioner s son in the remand report, arrest card and medical memo in 16/Medical/08 and referred the petitioner s son to the Thirukkattupillai Government Hospital. The 4th Respondent further stated in his counter that after receiving a complaint from the petitioner s son he registered a case against the 7th Respondent and others in Crime No: 81 of 2008 under Sections 294(B) and 323 of IPC.
7. I have heard the learned counsel for the petitioner Mr.R.Karunanidhi, learned Government Pleader Mr.K.Guru appeared for the Respondents No.1 to 3, learned counsel MrM.Saravana Kumar appeared for Respondent No.4 and the learned counsel Mr.M.Karunanidhi appeared for Respondent No.5 and also perused all the records. This Court found through the counter of Respondent No.4 and perusal of medical records that is admitted fact that the petitioner s son was sustained injuries on his body prior to the judicial custody. I perused the medical records of Government hospital, Thanjavur as well as Meenakshi Mission Hospital, Madurai which are attached in the typedset of papers. Since the petitioner s son is said to be suffered from bipolar mood disorder, head ache and haematemesis, he was admitted as inpatient at Meenaskhi Mission Hospital and Research Centre, Madurai on 09.06.2010 and after treatment discharged on 11.06.2010.
8. The Respondents 1 to 3 as well as Respondent No.4 raised a question with regard to maintainability of this writ petition since the mother filed writ petition for her own son. Further they denied the allegation made by the Petitioner through their counters. In the light of the above, the questions that arise for consideration are:-
(i) Whether the Petitioner is having locus standi to file writ petition under Article 226 of the Constitution of India for seeking compensation to the injuries suffered by her own son?
(ii) Whether the petitioner's son is entitled to get compensation?
9. The petitioner s counsel Mr.R.Karunanidhi in his persuasive arguments submitted that the Petitioner is mother to the victim and she only takes care of the victim and more particularly all along from the date of physical and mental torture committed by the police and 7th respondent. The Petitioner s counsel quoted the Hon ble Supreme Court decision in Chairman, Railway Board, and others Vs Chandrima Das reported in 2002 (2) SCC Page 465 wherein an advocate filed writ petition under article 226 of Constitution of India for seeking compensation to a victim of rape committed by Railway Employees. The Calcutta High Court granted relief of Rs. 10 lakhs compensation and same was confirmed by the Supreme Court. The counsel for the petitioner has drawn attention to this Court in a judgment rendered in P. Rajakumari Vs the Additional Director General of Police and another (CDJ 2014 MHC 3992) wherein the petitioner s mother was subjected to custodial torture the same was entertained this Court granted interim relief of Rs. 2,00,000/- Compensation and further this Court ordered C.B.I. Investigation. Hence the petitioner who is the mother victim is entitled to seek compensation and other relief for the mental and physical injuries caused by police officials to her son. Hence I am of the view that the Petitioner is entitled to file writ petition for her son. Accordingly first question is answered.
10. The Petitioner s son injuries were not disputed by the Respondents No.1 to 3 as well as Respondents No.4 and 5. The contention of the Respondents No.1 to 5 is the victim who is the petitioner s son was having injury prior to reaching the Poothalur Police Station. The learned counsel for the Petitioner referred the medical records issued by the Government Hospital, Thanjavur as well as Meenakshi Mission Hospital, Madurai. It divulges that the Petitioner s son was sustained injuries and specifically noted that the victim suffered head injuries as well as mental illness viz, Headache, Giddiness, Aggressive behaviour, depression and other problems. Further this Court found that the Poothalur Police Station Officers filed charge sheet in Crime No.80 of 2008 whereas the police closed the case in Crime No.81 of 2008 without any further proper investigation which is the victim s complaint. Though the Petitioner s son sustained injuries and the same was not investigated in a proper manner. It undoubtedly disclose that the then Station House Officer of the Poothalur Police Station hand in glove with the perpetrators and with an intention to hide the truth. This Court has a reason to believe that the involvement of the Respondents No.4 to 11 in the assault of the Petitioner s son for the manner of investigation done in Crime No.81 of 2008 on the file of the Poothalur Police Station despite the fact that the victim suffered injuries. The Hon ble Supreme Court held in Sube singh Vs State of Hariyana reported in 2006 (3) SCC Page 178 Para No-46, In the cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, the courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the Court will have to pose to itself the following questions: (a) whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death or whether custodial torture is supported by medical report or visible marks or scars or disability. Where there is no evidence of custodial torture of a person except his own statement, and where such allegation is not supported by any medical report or other corroborative evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, the courts may not award compensation as a public law remedy under Article 32 or 226, but relegate the aggrieved party to the traditional remedies by way of appropriate civil/criminal action." In the present case there is clear medical records and Respondent No.4 also did not deny the injuries through his counter.
11. The Hon'ble Supreme Court awarded damages against the Stare to the mother of a young man beaten to death in police custody in the verdict of Nilabati Bahera V. State of Orissa (1993 (2) SCC 746). The Hon'ble Supreme Court held that its power of enforcement imposed a duty to "forge new tools", of which compensation was an appropriate on where that was the only mode of redress available. This was not a remedy in tort, but one in public law based on strict liability for the contravention of fundamental rights to which the principle of sovereign immunity does not apply. Further in the historical judgment of D.K. Basu vs State of West Bengal reported in AIR 1997 SCW 610, The Hon ble Supreme Court pointed out that the obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, nor by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen.
12. It is further submission of the petitioner s counsel is that the Petitioner s son was acquitted by the learned Judicial Magistrate, Thiruvaiyaru on 17.11.2015 in the alleged theft case in C.C.No.76 of 2014 in connected to the Crime No.80 of 2008 on the file of Poothalur Police Station. The learned counsel specifically quoted the Section 357(A) of Criminal Procedure Code which stipulates that the State has to provide compensation to the victim who have suffered loss or injuries as a result of crime and who required rehabilitation. Particularly the provision articulates where the offender is not traced or identified but the victim is identified and where no trail takes place the victim is entitled to get compensation. The petitioner s counsel also urged this Court, Petitioner s case also should be considered in the light of Section 357(A) of Criminal Procedure Code. Further the counsel also relied on the judgment in Suresh and Another Versus State of Haryana reported in 2015 (2) SCC 227, wherein the Hon'ble Supreme Court of India directed the State of Haryana to pay compensation to the family of the deceased and determined the interim compensation as Rs. 10 lakhs, without prejudice to any other rights or remedies of the victim family in any other proceedings. The Division Bench of this Court in M.Somappa vs The Superintendent Of Police (H.C.P.No.911 of 2016 order dated 28.07.2016) granted compensation under Victim Compensation Scheme and clarified that injury does not indicate only physical injury alone as it includes injury of the mind also. This Court further directed the Superintendent of Police, Krishnagiri, to pay Rupees Fifty Thousand as compensation to the petitioner under the Tamil Nadu Victim Compensation Scheme.
13. The power of the Court to award compensation, is available as a public law remedy, especially in cases of deprivation of fundamental rights, is well settled for a long time. The principles laid down in Rudul Sah vs. State of Bihar (1983 (4) SCC 141), were followed in Sebastian M. Hongray vs. Union of India (1984 (3) SCC 82), Bhim Singh vs. State of J and K (1985 (4) SCC 677), People's Union for Democratic Rights vs. Police Commissioner (1989 (4) SCC 730), State of Maharashtra vs. Ravikant S. Patil (1991 (2) SCC 373) and so on and so forth. Even in D.K.Basu, the Supreme Court held that compensation can be awarded for violation of fundamental Rights in public law domain. Coming to the present case, serious allegations are made in the affidavit by the petitioner against the Respondent No.4 who is the servant to the State of Tamil Nadu and also the Respondents No.7 to 11. The parameters laid down as above in Sube Singh case, are satisfied in the present case. Therefore, if this is not a fit case, I do not think there could be any other case. In Alarmelu Mangai vs. Secretary to the Government of Tamil Nadu (2010 (8) MLJ 647), this Court granted compensation of Rs.5 lakhs for the illegal detention in police lock-up for one night.
14. Further the learned counsel for the Petitioner relied on a recent judgment Dr. Rini Johar-Vs-State of M.P. reported in 2016(3) MLJ (Crl )501 SC. It was held that the constitutional courts taking note of suffering and humiliation are entitled to grant compensation. That has been regarded as a redeeming feature. In the case at hand, taking into consideration the totality of facts and circumstances, we think it appropriate to grant a sum of Rs.5,00,000/- (rupees five lakhs only) towards compensation to each of the petitioners to be paid by the State of M.P. within three months hence. It will be open to the State to proceed against the erring officials, if so advised.
15. The offenders who assaulted the petitioner s son were not prosecuted by the State since the State did not investigate the case properly in Crime Number: 81 of 2008 on the file of the Poothalur Police Station. The Respondent No-4 had given much attention to the Crime No.80 of 2008 and swiftly prepared Form-91, Exhibits No.6 and 7, examined Prosecution witnesses further also he deposed as P.W-9 in C.C.No.76 of 2014 on the file of the learned Judicial Magistrate Court, Thiruvayaryu. But the Respondent No.4 purposely omitted his duty and did not collect any evidence in Crime No.81 of 2008 wherein the petitioner s son was sustained injuries, Further it is very pathetic to note that the two First Information Reports in Crime Nos.80 of 2008 and 81 of 2008 were registered on the same day. Similarly the Respondents No.1 to 3 also failed to render justice to the petitioner s son. The Respondents No.1 to 4 failed in their duty to provide justice to the Petitioner s son though the victim was suffered with injuries and the same complaint was registered in Crime No.81 of 2008 on the file of the Poothalur Police Station. The right to life and right to get justice is fundamental rights to the citizen of this country under Article 21 of the Constitution of India. Keeping the above distinction in mind, if we look at the facts of the present case, it will be clear that the petitioner's son was seriously injured and hence the Petitioner is entitled to get the compensation from the state as vicarious liability. Further the petitioner s son became victim of crime and he is entitled for getting compensation also under the Victim Compensation Scheme stipulated under the Section 357-A of Cr.P.C. Therefore, This Court comes to conclusion that State is liable for payment of compensation to the Petitioner s son. Accordingly, the second question is answered.
16. In an yet another reported case in T.Sekaran v. State of Tamil Nadu and others 2010 (1) CWC 455), dated 09.02.2010, this court had an occasion to consider the claim for compensation to the bereaved family of one Mr.Canicious Fernando, a Sri Lankan National, who was shot dead, without any provocation, by the security warder of the Madurai Central Prison on 05.10.2007. Though objections were raised relating to the maintainability of the writ petition, following the principles of law adopted in arriving at a just and reasonable compensation under the Motor Vehicles Act, this Court awarded a compensation of Rs.10,07,000/- and after deducting a sum of Rs.1,00,000/-, which was already granted by the Government as ex-gratia, directed the respondents therein, to pay a sum of Rs.9,07,000/- with interest of 6% per annum. Following the well settled principles laid down by the Supreme Court, in the case on hand, the victim is entitled to a just and reasonable compensation. At the time of filing of the writ petition, the petitioner s son was aged about 26 years and the victim was aged about 36 years. According to the petitioner, he was engaged in daily wage Mason work.
17. In view of the above stated reasons, the writ petition is allowed and the Respondents No-1 to 3 are directed to provide compensation a sum of Rs.3 lakhs to the petitioner's son named Selvaraj with interest at the rate of 6% per annum from 19.07.2010, within a period of 6 weeks from the date of receipt of copy of this order. The Writ Petition is disposed of accordingly. Consequently, connected Miscellaneous Petitions are closed. There is no order as to cost.