IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :
10. 04.2013 Coram THE HONBLE MR. JUSTICE VINOD K.SHARMA W.P.No.914 of 2006 S.Velankanni .. Petitioner .. Vs .. 1.Chitradevi Sub-Inspector of Police, All Women Police Station, Dharmapuri. 2.Gunavathi Judicial Magistrate I, Dharmapuri. 3.Deputy Superintendent of Sub-Jail for Women, Sub-Jail for Women, Dharmapuri. 4.State of Tamil Nadu, Rep. By its Secretary, Secretariat, Fort St.George, Chennai. .. Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, directing the respondents 1 to 4 to pay a compensation of Rs.5,00,000/- to the petitioner. For Petitioner : Ms.Sudha Ramalingam For Respondents : Mr.R.Ravichandran, AGP for R1, R3 and R4 Mr.V.R.Sivakumar for R2 O R D E R The petitioner has approached this Court with a prayer for issuance of a writ in the nature of mandamus, directing respondents 1 to 4 to pay compensation of Rs.5,00,000/- (Rupees Five lakhs only) to the petitioner and grant such other remedies as this Hon'ble Court may deem fit and proper in the circumstances of the case.
2. In support of the writ petition, it is averred that the petitioner is a resident of S.Kollapatti Village belonging to Christian Dobhi Community. One John Kennedy son of Swamikanu, belonging to Christian Vanniar Community, who is a permanent resident of neighbouring village, Selliayampatti was in love with the petitioner, and he promised to marry her.
3. It is the case of the petitioner that it was on the false assurance of John Kennedy, she developed intimacy with him, which resulted in her becoming pregnant. The petitioner asked John Kennedy to marry her, but he refused to do so and instead, insulted her. He also tried to bribe the petitioner to abort the pregnancy. This act of John Kennedy made her file a complaint with the Police on 16.10.2000, which was registered as FIR 1.of 2000 under Sections 417, 493 and 506(ii) I.P.C and was taken on the file of the second respondent in P.R.C.No.41 of 2002.
4. It was stated that the Police after initial investigation arrested John Kennedy, and remanded him to judicial custody on 16.10.2000. On 17.10.2000, the accused John Kennedy was brought from Sub-jail and taken to the Government Hospital for medical check-up. The petitioner was also taken to the hospital on the same day by the Police for medical check-up. After medical check-up, the accused was taken back to sub-jail and the petitioner was produced before Respondent No.2 (Ms.K.Gunavathi), the then Judicial Magistrate, Dharmapuri.
5. It was further stated that the Respondent No.2 (Judicial Magistrate), without enquiring anything about the case, remanded the petitioner to judicial custody for 15 days. The petitioner was taken to sub-jail for women in Dharmapuri by Respondent No.3 at 5.30 p.m. The petitioner was not aware, as to why, she was remanded to judicial custody. She was not told any reason about her arrest either by respondent- 1 Police or Respondent No.2.
6. It is further stated that besides harassment by John Kennedy, the petitioner had to suffer physical and mental tortures by the act of the respondents, in mechanically remanding her to judicial custody. The case of the petitioner, therefore is that she has been kept in illegal confinement without any authority of law under the illegal order passed by the second respondent.
7. It is the case of the petitioner that she was ill-treated in the jail as she was not allowed to change her dress and had to go without a bath for three days, and she was not even given proper medical help. The petitioner, however, was released after three days on 21.10.2000 at about 5.00 p.m due to an application moved by a legal aid lawyer, who had visited the sub-jail and to whom she had told her miserable plight.
8. The petitioner, thereafter, received a "summons to an accused person" under Section 61 of Code of Criminal Procedure for offences under Section 419, 376, 90 and 506 (ii) I.P.C as if she was an accused.
9. The petitioner, thereafter, made a representation to the Chairman of the Tamil Nadu State Women's Commission about her plight and requested to secure punishment for the accused and to take action against the police for implicating her in the case and making the victim, an accused. It was on the said complaint, DNA test was conducted and the paternity of her male child was established to be that of John Kennedy, the accused.
10. On 03.07.2004, the Revenue Divisional officer, conducted an enquiry about the incident pursuant to the petitioner's complaint to the Women's Commission. The petitioner informed the facts of the case to the officer. It is her case, that no action has been taken on her complaint.
11. It is the case of the petitioner that the case was committed to Sub-Court, Dharmapuri and numbered as S.C.No.74 of 2004 in April 2004. After committal, though the petitioner was asked to be present in the Court for deposing as a witness for every hearing, there was no progress in the case. Neither the petitioner nor any other witness was examined in the case though she attended the Court on several hearings.
12. On the pleadings referred to above, compensation is prayed for by the petitioner on the ground that the action of the second respondent in remanding her to judicial custody mechanically is against law and is violative of Article 21 of the Constitution of India as it affected her right to liberty. In addition, the issuance of summons as an accused person by respondent No.2 added insult to the injury, as firstly, the petitioner was kept in illegal custody under the orders of the second respondent for two days.
13. It is also the contention of the petitioner that the guidelines laid down in D.K.Basu's case was not adhered to while arresting and remanding her to judicial custody. Therefore, the petitioner has claimed compensation for mental torture, agony and illegal detention amounting to Rs.5,00,000/- (Rupees five lakhs only).
14. Respondent No.2, the Judicial Magistrate, has filed an affidavit, wherein, it is stated that she has joined as Judicial Officer on 03.02.1998 and is discharging her duty in an unblemished and appreciable way and manner. It is stated that she always discharges her duties in a dedicative, sacrifice and judicial way and manner in accordance with law, and throughout her career, she has not committed any error of fact or law.
15. The averments of the petitioner that she was remanded to judicial custody by respondent No.2 have been denied by pleading that the petitioner has not produced any iota of evidence in support of the averment that Respondent No.2 had remanded the victim to the judicial custody.
16. It is the further stand of respondent No.2 that the petitioner has filed the present writ petition without verifying the identity of the Judicial Officer who had signed and issued summons.
17. The stand of respondent No.2 is that the act of the petitioner amounts to scandalizing or lowering the authority of the Court, which comes under the definition of Criminal Contempt of Court under the Contempt of Courts Act, 1971.
18. It is the further stand of respondent No.2 that the writ petition is not maintainable in law as the petitioner has suppressed the material facts from this Court and further the writ petition suffers from delay and laches.
19. It is the also the stand of respondent No.2 that she has acted in a judicial and judicious manner and has discharged her duties in good faith and her judicial acts were duly protected under the Judicial Officers' Protection Act, 1850. It is also the stand of the second respondent that there are no allegations that she acted with malafide intention.
20. Respondent No.2 has also taken a stand that on 17.10.2000, on the request of the first respondent, the accused, John Kennedy and the petitioner herein were directed to undergo medical checkup. The petitioner was admitted as inpatient at Government Hospital, Dharmapuri till 21.10.2000 and she was discharged on that day which falls on Saturday, a non working day. A stand has been taken that she did not remand the victim girl on 21.10.2000 and therefore, no relief can be claimed against her. She has also denied having signed the summons dated 07.01.2003.
21. The stand taken by the learned Judicial Magistrate, in the affidavit, therefore is that the writ petition has been falsely filed against her. She has taken a positive stand that she did not remand the petitioner to jail and further more also taken a positive stand that it is a false writ petition filed against her.
22. Respondent No.1 has also filed a counter affidavit, wherein the allegations in the writ petition have been denied. The stand of S.Chitra Devi, the Sub-Inspector of Police is that she had arrested the accused and produced her before Judicial Magistrate, I, Dharmapuri on 07.10.2000. The positive stand of Respondent No.1 is that the victim was produced for medical check up through Head Constable 1664 and WPC 165.at Government Head quarters hospital through Judicial Magistrate, Dharmapuri and the accused was also produced for medical check up through Judicial custody by Gr.I. P.C 10.Perumal at Government Hospital, Dharmapuri. After medical checkup, the victim was produced before the Judicial Magistrate I. The Judicial Magistrate I Dharmapuri remanded the victim to judicial custody on 21.10.2000 and then the victim was handed over to Sub-Jail, Dharmapuri. It is her positive stand that she had not made any requisition to remand the petitioner. It was a suo motu decision taken by the Court, for which she is not responsible.
23. It is the positive stand of respondent No.1 that she was surprised by the action of the Judicial Magistrate I and she approached her and pointed out the mistake committed, who thereafter, promptly issued a production warrant of the petitioner from the sub-jail. Accordingly, the petitioner was produced before the Magistrate through the said Police Constables on 23.10.2000 and got released by the Court, otherwise she would not have been released and would have been detained further. Thus the positive stand taken by respondent No.1 is that it was the second respondent who remanded the petitioner to judicial custody without verifying any records.
24. When the matter came up on the last date of hearing, the learned counsel representing the second respondent took a positive stand that it was not Respondent No.2, who had remanded the petitioner to judicial custody. This Court believing the statement to be correct, called for the records from jail authorities, wherein, it was revealed that it was the Judicial Magistrate No.1, Dharmapuri who had remanded the petitioner to Sub-Jail. Even at that stage, the stand of respondent No.2 was that the order must have been passed by some other Judicial Magistrate.
25. Therefore, further records relating to the remand warrant were called for. The perusal of these records showed that it was indeed Respondent No.2, who had remanded the petitioner to judicial custody for offences under Sections 417, 493, 506(ii) IPC.
26. Though in normal circumstances, this Court in exercise of its writ jurisdiction does not deal with cases for compensation, however, in view of the facts, which have come on record of this case, interference is warranted.
27. In fact, the refusal to exercise the jurisdiction conferred upon this Court to protect the fundamental rights of the citizens of this Court would amount to abdication of the duties cast upon this Court.
28. In the instant case, Respondent No.2, had remanded the petitioner, who was a complainant, to judicial custody. Thus, an innocent person, who in fact, claimed to be the victim, was deprived for personal liberty protected under Article 21 of the Constitution of India.
29. Further still, when this irresponsible and negligent act was brought to the notice of Respondent No.2 on 23.10.2000, she did not try and correct her mistake. Instead of setting the Petitioner free, Respondent No.2 in a completely irresponsible and negligent manner, without verifying the facts, released the Petitioner only on bail bonds. Thus, Respondent No.2 again treated the Petitioner as an accused. This shows the act of Respondent No.2 was not bonafide in nature.
30. The contention of Respondent No.2 that her acts were protected under the Judicial Officers Protection Act, 1850, is also not tenable. Section 1 of the Judicial Officers Protection Act, 1850 reads as under: "1.Non-Liability To Suit Of Officers Acting Judicially, For Official Acts Done In Good Faith And Of Officers Executing Warrants And Orders.- No Judge, Magistrate, Justice Of The Peace, Collector Or Other Person Acting Judicially Shall Be Liable To Be Sued In Any Civil Court For Any Act Done Or Ordered To Be Done By Him In The Discharge Of His Judicial Duty, Whether Or Not Within The Limits Of His Jurisdiction: Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any Court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same." 31. A perusal of the Judicial Officers Protection Act, 1850, would show that the immunity granted therein to the Judicial Officers is only extended to the Civil Courts. The same does not extend to the writ proceedings, which have been initiated for the violation of the fundamental rights of the Petitioner enshrined in Article 21 of the Constitution of India. This fact is further evident from Section 3(2) of the Judges (Protection) Act, 1985, which reads as under : "3. Additional protection to Judges.- (1)Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-section (2), no Court shall entertain or continue any civil or criminal proceedings against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. (2) Nothing in sub-section (1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal or departmental proceedings or otherwise) against any person who is or was a Judge." 32. In any case, the acts of Respondent No.2 in the present case were not bona fide. As stated above, after her negligence had been pointed out on 23.10.2000, Respondent No.2 chose not to correct the same. Instead, she continued to treat the Petitioner as an accused and released her only on bail bond. By her irresponsible act, Respondent No.2 deprived the Petitioner of her liberty and hence, violated her fundamental right.
33. Though in the present case, no evidence or proof has been placed on record by the petitioner to substantiate her prayer for the award of Rs.5,00,000/- (Rupees Five lakhs only) as compensation, in my opinion, the interest of justice would be served if a sum of Rs.1,00,000/- (Rupees One lakh only) is awarded as compensation to the Petitioner.
34. Accordingly, a sum of Rs.1,00,000/- (Rupees One lakh only) is awarded as compensation to the Petitioner. The same shall immediately be paid by Respondent No.4, the State of Tamil Nadu, to the petitioner and thereafter, the same shall be recovered by the State from Respondent No.2 in accordance with law.
35. Additionally, in view of the fact that a false affidavit had been filed by a Judicial Officer in this Court, this Court recommends that she should be proceeded against departmentally for acting with extreme negligence and further notice should also be issued to her to show cause why proceedings under Section 340 Cr.P.C should not be initiated against her.
36. The matter is therefore directed to be placed before this Court on its administrative side for initiating action against Respondent No.2, as directed above.
37. The present writ petition is therefore allowed with costs, which are assessed as Rs.10,000/- (Rupees ten thousand only). The same shall also be recovered from Respondent No.2. svki To 1.Chitradevi Sub-Inspector of Police, All Women Police Station, Dharmapuri. 2.Gunavathi Judicial Magistrate I, Dharmapuri. 3.Deputy Superintendent of Sub-Jail for Women, Sub-Jail for Women, Dharmapuri. 4.The Secretary, State of Tamil Nadu, Secretariat, Fort St.George, Chennai