Jehara Beevi Vs. State of Tamil Nadu - Court Judgment

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :

15. 04.2014 CORAM THE HON'BLE Ms. JUSTICE K.B.K.VASUKI Writ Petition No.33001 of 2002 1.Jehara Beevi 2.Sabiya Begum ... Petitioners vs. 1.State of Tamil Nadu represented by Secretary to Government, Home Department, Fort St. George, Chennai 600 009. 2.The Director General of Police, Mylapore, Chennai-4. 3.The Commissioner of Police, Madurai. 4.The Inspector of Police, H2 Surya Nagar Police Station, K.Pudur, Madurai. ... Respondents Writ Petition filed under Article 226 of The Constitution of India praying this Court to issue a writ of Mandamus, to direct the respondents to pay a compensation of Rs.5,00,000/- with interest @ 18% p.a from the date of death to the date of payment and take suitable action against the police personnel responsible for the death of the petitioner's son Mr.Noor Mohammed. For Petitioner : M/s.P.V.S.Giridhar Associates R.Srinivasan For Respondents : Mrs.M.E.Rani Selvam, AGP ORDER

The writ petition is filed, seeking compensation of Rs.5 lakhs with interest at 18% p.a. for the death of one Noor Mohammed, who is the son of the first petitioner and husband of the second petitioner, due to police excess, while he was in the police custody. 2.The petitioners claim for compensation on the ground that the said Noor Mohammed was arrested and brought to the police station and was without registering any case, illegally detained and in the course of such detention, harassed and tortured by the police personnel, resulting in serious multiple injuries. His arrest was not informed to the petitioners and was not given medical assistance after being beaten severely and he was handed over to his family members in unconscious state due to the injuries caused to him and he was taken to and admitted in the hospital and succumbed to the injuries sustained in the hospital at 11 pm on 20.9.2000. 3.It is the case of the petitioners that the police personnel treated Noor Mohammed in inhumane manner, which is in contravention of the directions issued by the Hon'ble Supreme Court in D.K.Basu's case and in violation of human rights and the complaint in this regard and the representation given to the higher officials were not met with due response and no action was taken against the police officials for such act. It is further stated by the petitioners that the petitioners were assisted by an Organisation People's Watch- Tamil Nadu, who helped them in lodging the complaint before the District collector and at the instance of the District Collector, RDO enquiry was held and medical report was obtained regarding cause and manner of death of Noor Mohammed. It is also their case that Noor Mohammed died leaving behind his mother, young widow, son and daughter and his entire family was depending on his earnings for their survival and his sudden death left them in grave financial distress without any means of sustenance. 4.Per contra, the learned Additional Government Pleader representing the respondents would seriously oppose the relief sought for herein by relying on the postmortem report to the effect that the death was caused due to Ethyl alcohol poisoning and not due to any act in the manner as stated above by the police personnel and no police personnel were responsible for the injuries sustained by him and the petitioner sustained injuries outside the police station, while he was indulging in quarrel with public in Pudur bus stand. 5.Heard the rival submissions made on both sides and perused the records. 6.Here is the case, wherein the compensation is claimed for police excess, resulting in death of bread winner of the family of the petitioners. As directed by this court, the learned Additional Government Pleader representing the respondents produced the copy of the report of RDO enquiry ordered at the instance of the District Collector, medical report containing post mortem certificate regarding the nature and number of injuries sustained by the deceased and the final opinion regarding the cause of death of the deceased and the report regarding departmental action initiated against the Inspector of Police by name R.Arivanandam, Sub Inspector of Police by name R.Natarajan, Head Constables by names Saminathan, Sikkandar Nurul Huck and Kalimuthu and Police Constable Rathinasamy and Sub Inspector of Police by name Selvakumar. 7.The reading of the records would reveal that as per the post mortem report, the deceased would appear to have died of Ethyl alcohol poisoning with associated head injury. The post mortem certificate reads as if the deceased sustained as many as 20 antemortem injuries on various parts of his body. In addition to the same, he appears to have contusion in front of chest 10cm x 4cm and subscalpal contusion in left temporal region 6cm x 3cm fresh. It further reveals left temporalis bruised and subdural hemorrhage over left tempero parietal lobes of brain. 8.The facts made available herein would reveal that the deceased Noor Mohammed at around 8am on 19.9.2000 indulged in wordy quarrel with another person and he was brought to Pudur Police Station by one Swaminathan, Head Constable and Rathinasamy Police Constable Grade I and he was received in the police station by one Natarajan, Sub Inspector of Police and he was, in the course of enquiry in the same police station, beaten and as instructed by the Inspector of Police, was handed over to the family members, who admitted him for treatment in the hospital, where he died of the injuries sustained. Though further action against other police personnel except Inspector of Police, Arivanandam and Sub Inspector of Police Natarajan, was dropped by accepting the findings of the Enquiry Officer, the same need not be given much importance at this point of time. 9.The RDO's report and the report regarding departmental action taken against the police personnel for the act of the Inspector and Sub Inspector of Police, if viewed in the light of the final medical opinion regarding cause of death, would undoubtedly show that the deceased was harassed and tortured by severely beaten in the police station and he was sent out with severe head injuries as well as in other parts of body and in unconscious state. At this juncture, it is relevant to refer the decision of the Hon'ble Apex Court reported in (1995) 4 SCC262(State of M.P. v. Shyamsundar Trivedi and others), wherein, the Hon'ble Supreme Court was of the view that the injury/death to a person in police custody allows the court to presume injury/death being caused by them and onus is on the police personnel to prove contrary. 10.Here is the case, wherein there are sufficient materials available to show that the police personnel were solely responsible for causing injuries, which are the major cause for the death of the deceased. Under such circumstances, the Hon'ble Apex court and Division Bench and single judge of our High Court in the following judgments held that end of justice would be met by directing the respondent to pay compensation to the petitioner for custodial death of the deceased: (i)AIR1993SC1960(Nilabati Behera @ Lalita Behera v. State of Orissa and others (ii)MANU/TN/8209/2007 (The Government of Tamil Nadu rep. by its Chief Secretary and others v. R.Dhanalakshmi) (iii)2008 Writ LR254(the State of Tamil Nadu v. Pulliammal (iv)2008 Crl.LJ2280(Rajammal v. State of Tamil Nadu and others) (v)MANU/TN/0205/2003 (Pandiammal v. the State of Tamil Nadu) (vi)MANU/TN/2373/2004 (S.Meena v. State of Tamil Nadu) and (vii)MANU/TN/0470/2013 (A.Selvi v. Government of Tamil Nadu). In all the cases, the Hon'ble Apex Court and the Division Bench have confirmed the order granting compensation awarded by the learned brother judges. 11.The Division Bench of this court in the authority reported in (2008) 3 MLJ167:

2008. Crl.LJ2280(Rajammal v. State of Tamil Nadu) (cited supra), relied on the four Apex Court judgments to bring home the point that in such cases of custodial deaths, the respondents are liable to pay the compensation. For better appreciation, paras 7 to 12 of the said decision are extracted hereunder: 7. The learned counsel for the appellant/petitioner would rely on the following judgments, to bring home the point that in such cases of custodial deaths, the respondents are liable to pay the compensation. 1.SAHELI, A WOMEN'S RESOURCES CENTRE vs. COMMISSIONER OF POLICE, DELHI AND OTHERS [AIR1990SC513, 2.STATE OF M.P. vs. SHYAMSUNDER TRIVEDI AND OTHERS [(1995) 4 SCC262, 3.D.K.BASU vs. STATE OF W.B. [(1997) 1 SCC416 and 4.D.RANGANAYAGI AND OTHERS vs. STATE OF TAMIL NADU AND ANOTHER [2000-1-L.W. (Crl.) 96]..

8. In the first judgment cited above, reported in AIR1990SC513 the Honourable Apex Court, while dealing with a case regarding police atrocities wherein a child of 9 years died, has directed the State Government to pay Rs.75,000/- as compensation to mother of the victim. The Honourable Apex Court has held in paragraph No.11 as follows: ".An action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death. In cases of assault, battery and false imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity, loss of liberty and death. As we have held hereinbefore that the son of Kamlesh Kumari aged 9 years died due to beating and assault by the S.H.O., Lal Singh and as such she is entitled to get the damages for the death of her son. It is well settled now that the State is responsible for the tortuous acts of its employees. The respondent No.2, Delhi Administration is liable for payment of compensation to Smt.Kamlesh Kumari for the death of her son due to beating by the S.H.O. of Anand Parbat Police Station, Shri Lal Singh.".

9. In the second judgment cited above reported in (1995) 4 SCC262 the Honourable Apex Court has held as follows: ".Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available. Generally speaking, it would be police officials alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues - and the present case is an apt illustration - as to how one after the other police witnesses feigned ignorance about the whole matter.". "..... Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the courts because it reinforces the belief in the mind of the police that no harm would come to them if an odd prisoner dies in the lock up because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilised society, governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in 'Khaki' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady, the foundations of the criminal justice delivery system would be shaken and the civilisation itself would risk the consequence of heading towards perishing. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may lose faith in the judiciary itself, which will be a sad day.".

10. In the third judgment cited above, reported in (1997) 1 SCC416 the Honourable Apex Court has held as follows: ".9. Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law-enforcing officers is a matter of deep concern in a free society. These petitions raise important issues concerning police powers, including whether monetary compensation should be awarded for established infringement of the Fundamental Rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental. ".

10. Torture has not been defined in the Constitution or in other penal laws. Torture of a human being by another human being is essentially an instrument to impose the will of the strong over the weak by suffering. The word torture today has become synonymous with the darker side of human civilisation.". ".22. Custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchanism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him?. Can the right to life of a citizen be put in abeyance on his arrest?. These questions touch the spinal cord of human rights' jurisprudence. The answer, indeed, has to be an emphatic No. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.".

11. In the fourth judgment cited above, reported in 2000-1-L.W.(Crl.) 96, a learned single Judge of this Court, while dealing with a case of custodial death of a person, has ordered payment of compensation of Rs.5 lakhs.

12. There is no quarrel regarding the propositions laid down in the above judgments. Article 21 of the Constitution guarantees protection of life and personal liberty. In the case on hand, serious allegations of custodial death are made against the guardians of law and as has been held by the Honourable Apex Court in D.K.Basu's case, supra, torture in custody flouts the basic rights of the citizens recognised by the Constitution and is an affront to human dignity. It is now a well settled law that the award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. But, as has already been adverted to supra, the findings rendered by the learned single Judge, holding the respondents liable to pay the compensation to the petitioner reached the finality and therefore, it is not necessary for this Court again to go into such aspects. Further more, as has been correctly observed and held by the learned single Judge, since a criminal case is pending regarding the death of the deceased, any opinion expressed in these proceedings regarding the cause of death is unwarranted. By applying the views of the Hon'ble Apex Court and Division Bench and Single Judges of this court to the facts of the present case, this court is of the view that this is a fit case, wherein, the petitioners are entitled to get compensation for the death of their bread winner Noor Mohammed, due to police excess. 12.Next comes the quantum of compensation. In all the judgments above cited, the compensation was determined by applying the multiplier formula. As per the averments raised in the affidavit filed in support of this writ petition, the deceased was aged about 42 years and was a Tailor and earning Rs.100/- to Rs.150/-pm and he died leaving behind his mother, wife, son and daughter. His mother died during the pendency of the writ petition. It is nobody's case that the wife and children are sufficiently placed to meet out themselves. The wife and children lost their bread winner and are suffering serious financial distress and mental agony, as such, considering the age of the deceased and the age of his family members, it is just and reasonable to award Rs.5,00,000/- as claimed in this writ petition, after deducting Rs.1,00,000/- already paid to the petitioners by the Government in G.O.Ms.No.1327 Public (Law & Order-A) Department dated 7.11.2003. 13.Hence, the respondents are directed to pay the remaining compensation of Rs.4,00,000/- to the wife and children of the deceased Noor Mohammed. The monetary compensation of Rs.4 lakhs shall be deposited in this Court to the credit of this writ petition and on such amount being deposited into this court, the same is directed to be invested in any one of the nationalised bank for three years in the name of the wife/Sabiya Begum and children by names Abdul Ajees and Ramzan Begam, who are entitled to receive Rs.2,00,000/- and Rs.1,00,000/- and Rs.1,00,000/- respectively. The wife and children, who are the legal heirs of the deceased are permitted to withdraw the K.B.K.VASUKI, J.

rk interest accrued in their respective deposit amounts once in three months from the bank and are also entitled to withdraw their respective deposit amounts after three years. 14.The writ petition is accordingly ordered. No costs. rk 15-4-2014 Index:Yes/No Internet:Yes/No To 1.The Secretary to Government, Home Department, Fort St. George, Chennai 600 009. 2.The Director General of Police, Mylapore, Chennai-4. 3.The Commissioner of Police, Madurai. 4.The Inspector of Police, H2 Surya Nagar Police Station, K.Pudur, Madurai. Writ Petition No.33001 of 2002