Mariyappan Vs. State of Tamil Nadu and ors. - Court Judgment

Excerpt:
- securitisation & reconstruction of financial assets & enforcement of security interest act, 2002 [c.a. no. 54/2002]section 17; power of tribunal to impose condition relating to deposit for grant of stay of auction held, there is no specific provision made under section 17 of securitisation act or under any other provisions of the said act empowering the tribunal to pass any interim order. but under sub-section (12) of section 19 of the recovery of debts due to banks and financial institutions act, 1993, the tribunal has been empowered to pass various interim orders. if sub-section (7) of section 17 of securitisation act is read along with sub-section (12) of section 19 of recovery of debts due to bank is and financial institutions act, it would be clear that the tribunal also has jurisdiction to pass interim orders under section 17 of the securitisation act in appropriate cases. the tribunal is empowered to grant interim stay subject to such conditions as may be deemed proper including condition of deposit. even under section 69 of the transfer of property act, the only remedy of the borrower whose mortgage has invoked section 69 of the transfer of property act, is to file a civil suit and in such suit the court has power to grant injunction and to impose condition for the grant thereof--section 17; [a.p. shah c.j., f.m. ibrahim kalifulla & v. ramasubramanian, jj] proceedings under section 17 power of the tribunal to pass any interim order held, once the possession of the secured asset is taken, there would be no occasion for the tribunal to order redelivery of possession till final determination of the issue. in other words, it is only when the tribunal comes to the conclusion that any of the measures, referred to in section 13 (4) taken by the secured creditor are not in accordance with the provisions of the act and the rules made thereunder, then only the tribunal can restore possession of such secured assets to the borrower. by virtue of sub-section (7) of section 17 of the securitisation act read with section 19 (12) of the recovery of debts due to banks and financial institutions act the tribunal undoubtedly possess ancillary power to pass interim orders subject to the conditions as it may deems fit and proper to impose, but it does not in any way override the special provisions contained in section 17(3) of the securitisation act. the statutory scheme of the securitisation act is such that the borrower could take recourse to application under section 17 only if one or other measure is taken by the secured creditor, and the tribunal can restore the status quo ante only if it comes to the conclusion that any of the measure taken by the secured creditor is not in accordance with the provisions of the act. the scheme cannot be bypassed by issuing a mandatory order for redelivery of the possession before conclusion of the proceedings under section 17--sections 17, 13 (4); [a.p.shah, c.j., f.m. ibrahim kalifulia &v. ramasubramanian, jj] scope of enquiry under section 17 held, the main purpose of the securitisation act, and in particular section 13 thereof, is to enable and empower the secured creditors to take possession of their securities and to deal with them without the intervention of the court. therefore, in an application under section 17, the tribunal is concerned only with the validity of the acts of the secured creditor in taking possession of the securities and dealing with the same under section 13. all such grounds, which would render the action of the bank/financial institution illegal, can be raised before the tribunal in the proceedings under section 17. it is for the tribunal to decide in each case whether the action of the bank was in accordance with the provisions of the act and legally sustainable. however, while considering the question of validity of the action of the bank, it is not necessary for the tribunal to adjudicate the exact amount due to the secured creditors. in other words, the purpose of an application under section 17 is not the determination of the quantum of claim per se as the tribunal is concerned with the issue of the validity of the measures taken by the banks/financial institutions under section 13(4)--sections 17(4), 13(4) ; [a.p. shan c.j.,f.m.ibrahim kalifulla & v. ramasubramanian, jj] appeal right of bank held, the right of the bank is not automatically suspended upon filing of an appeal by borrower under section 17 of the securitisation act and the bank as secured creditor can proceed to auction secured asset where no stay is granted by the tribunal. there is nothing in section 17 of the securitisation act which would indicate that the legislature intended that there would be automatic stay of recovery proceedings by bank under section 13(4) on filing an appeal by borrower under section 17. use of the expressions if and then under section 17 would not mean that the bank can take one or more measures laid down under section 13(4) only if the tribunal declares that the action taken already is in accordance with the provisions of the securitisation act and the rules made thereunder. use of the word if does not connote a condition precedent. it is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they harmonized with the object of the statute and which effectuate the object of the legislature. the provisions of section 17 must, therefore, receive such construction at the hands of the court as would advance the object and at any event not thwart it. in other words, the principle of purposive interpretation should be applied while construing the said provisions. the securitisation act is enacted to provide a speedy and summary remedy for recovery of thousands of crores which were due to the banks and financial institutions. ordery. venkatahalam, j.1. invoking article 226 of the constitution of india, the petitioner herein has filed the present writ petition, seeking for a writ of mandamus seeking to issue directions to the respondents to (i) launch criminal and departmental action against the policeman responsible for the killing of tmt. mariammal on 22-11-1990, (2) to pay a sum of rs. 5,00,000/- as compensation for killing of tmt. mariammal.2. in support of the writ petition, the petitioner herein has filed an affidavit wherein he has narrated all the facts and circumstances that forced him to file the present writ petition and requested this court to allow this writ petition as prayed for. per contra, on behalf of the respondents a counter-affidavit has been filed rebutting all the material allegations levelled against them one after the other and ultimately they have requested this court to dismiss the writ petition for want of merits.3. heard the arguments advanced by the learned counsel appearing for the parties. i have perused the contents of the affidavit and the counter-affidavit together with all other relevant material documents available on record in the form of typed set papers. i have also taken into consideration the various points raised by the learned counsel appearing for the respective parties during the course of their arguments. i have also considered the several decisions relied on by the petitioner in support of his claim made in this case.4. in the above facts and circumstances of the case on hand, the following is the only point that arises for consideration herein :as to whether there are any valid grounds to allow this writ petition or not? 5. the brief facts of the case of the petitioner as seen from the affidavit are as follows: the petitioner herein is the husband of one mariyammal. he has filed the present writ petition praying this court to direct the respondents to investigate into the killing of his wife the said mariyammal on 22-11 -1990 and to take appropriate action against the concerned policemen and also for payment of compensation for the death of his wife. according to the petitioner herein on 22-11 -1990 some policemen including one jayaraman p. c. 902 came to their area burmah colony, for conducting prohibition raid wherein the petitioner's family is residing. they started to beat people found at sight and began to drag some men into the police van for filing prohibition cases. at that time one selvam son of his sister-in-law who was working in the government mid-day meal centre was sent by the petitioner's wife to buy medicine for the ailing grand-daughter. the said selvam was caught hold off by the said p.c. jayaraman and was being dragged to the police van. hearing his cries, the wife of the petitioner herein ran to the police pleading with them not to apprehend him since he was sent to the pharmacy for buying medicine. the said police immediately turned rudely on her and assaulted her and pushed her down with force. the said mariyammal fell down on the ground thereby sustaining grevious injuries and as a result of which she died. it is also the case of the petitioner herein that the police who were the cause of the whole tragic incident did not even bother to find out as to what had happened to the injured, but left the place with some of the men apprehended. the injured succumbed to injuries on the spot. a complaint was lodged with the south town police station which was registered as cr. no. 716 of 1990. as per orders 605 and 145 of police standing orders, police officer having received the complaint is statutorily bound to proceed to the place of occurrence and shall make investigation into the cause of death and should send the report to the revenue divisional officer. the revenue divisional officer should enquire into the matter and should send the body to government hospital for conducting postmortem. but, in this case even after the receipt of complaint by the south police station, no effort was taken to investigate the death as per the aforesaid provisions. thereafter, after patiently waiting for hours for investigating machinery to move, the residents resorted to direct action by themselves taking the body in a cycle rickshaw to the residence of deputy superintendent of police seeking action as per law. the d.s.p. directed the people to approach the sub collector since the complaint was against the police and that therefore the people were forced to proceed with the body in a procession to the residence of sub collector. there they were informed by the security men that the sub collector was sleeping and that therefore they could come only the next day. this only added insult to injury to him and his family members since they were taking the dead body seeking justice from one officer to another. in the said circumstances, the people had no other go than to stage a dharna in the public road against the inaction and insensitive attitudes of respondents herein. only then, the dsp, the sub collector and other officials carne to the spot along with the dig, of the said region mr. saravana perumal. they made arrangements to send the body for postmortem in the government medical college hospital. thereafter an identification parade was conducted to identify the police constable who was responsible for the killing of the petitioner's wife. selvam was called for the said purpose and identified the accused police constable. thereafter finding no response from the respondents after waiting for nearly six months, the petitioner herein caused an advocate notice dated 9-5-91 to be issued to the r.d.o. and the s. p. with a request to intimate him as to the action taken against the accused police and also for providing him the result of the investigation/enquiry conducted by the rdo and a copy of the post-mortem report. the sub collector's office by their proceedings dated 17-5-1991 sent a reply stating that the enquiry was conducted under pso 145 and the orders of the government are awaited and that he would be informed only after receipt of the said order. after waiting nearly 3 months he caused another advocate notice dated 20-8-1991 to the rdo and the s. p. once again making the same request. again the sub collector's office by their proceedings dated 25-8-1991 informed that the government order was still awaited. but thereafter, finding no response from the rdo, he submitted a memorandum to the collector on 2-12-1991 on the public grievance day detailing the tragedy that took place and his long wait for justice at the hands of the respondents. though acknowledgement was given by the collector's office with a note that he would be informed of the result of the memorandum by 2-1-1992 nothing had happened till date. it is the case of the petitioner herein that he has four sons and 2 daughters through his wife the deceased and having lost his wife under unfortunate circumstances, the entire family is still under enormous mental shock. what is more unfortunate is the casual and insensitive inaction of the respondents in not even proceeding in accordance with law by taking action against the guilty person. it is now several years lapsed since the unfortunate killing had occurred and they are left with no relief due to the said attitude of the respondents, which creates doubts that the respondents are deliberately indulging in delaying tactics to bury the case without any remedy to them. it is his strong case that if this is allowed to continue, people would lose faith in the administration. further according to the petitioner all over the country and especially in this state, the law enforcement agency are exposed to much criticism due to the increasing violence by them against the poorer and weakers section, and also that a large number of cases are being filed in the courts against police torture and deaths and in most of the cases the courts are granting relief in favour of the victims. it is also his case that he is not aware as to whether the rdo completed enquiry under 145 pso and submitted his report to the government for further action even though 2 years had elapsed. the said pso clearly contemplates that the rdo should give finding whether a prima facie case has been made out to launch criminal prosecution against the guilty policemen. to his knowledge, till date no criminal prosecution has been launced would establish that the respondents have failed to discharge their duty. it is also contended by him that the supreme court under the circumstances of these nature has awarded monetary compensation to the relatives of the victims as a palliative measure and also as a measure of accountability of the institutions to the people and that the supreme court in the cases reported in (i) : (1989)4scc730 and (ii) : air1990sc513 awarded compensation payable by the state to the families of the victims for the tortuous acts of the servants of the state. therefore it is contended by the petitioner herein that in the present case, the first respondent is liable to pay compensation to him for the wrong committed by the police. hence this writ petition.6. per contra, in the counter-affidavit filed by the respondents, inter alia it is contended by them that the sub collector, during his enquiry could not arrive at a conclusion as to who pushed the lady to death. hence he requested orders whether the case may be handed over to the crime branch cid for fixing the responsibility. the government were addressed on 6-9-91 requesting whether the case may be handed over to special branch for further investigation. it is also stated by the respondents that the government have passed order fixing up the responsibility on one jayaraman, pc 902 as the constable who pushed the lady down. the government have also asked the director general of police to take departmental action against the police constable concerned. the action is being taken by the director general of police. further according to the respondents the sub collector. thanjavur commenced an enquiry as contemplated under order 145 of the police standing order since the enquiry had been done by the fourth respondent and thus since the 4th respondent had commenced and completed his investigation regarding the death of mariyammal which took place on 22-11-90, there is no further necessity of any order to be issued by this court in the writ petition filed by this petitioner. further according to the respondents, on the report submitted by the respondent no. 4 through respondent no. 2, the government had ordered departmental enquiry against police constable jayaraman no. 902 in their lr. no. 3025/92-2 dated 27-1-1993. according to the respondents the post-mortem certificate disclosed that the death was due to the natural cause, and hence there was no finding that the death of the said mariyammal was due to the push effected by the said police constable 902 jayaraman, and that the enquiry revealed that the lady had a heart problem and her death might be due to mental shock of the police securing her nephew selvam and also might be due to physical agitation caused by her fall due to tripping and the fall on the ground by the pushing and also that there is no external or internal injuries to the concerned lady. therefore it is contended on behalf of the respondents that in the said circumstances there is no need to pay compensation to the writ petitioner as the death was not the result of any tortious of the acts of the servants of the state as arrived at in the supreme court cases relied on by the petitioner herein. the respondents also deny that on 23-11-1990, the police personnel beat people found at site while conducting prohibition ride and also that there was no complaint against the police as alleged and the enquiry also did not reveal any such act by the police. it is also the case of the respondents that when the said selvam was apprehended by police constable no. 902 jayaraman and was taken to the police van, where the additional superintendent of police was sitting, and that the evidence disclosed that the said lady was running towards the police personnel crying and beating her chest requesting them to leave the said selvam, that though she rushed to the police van she was barred from approaching it at a distance of 10 to 15 feet from it and that one version is that she tripped and fell down and that it is also stated that she was pushed from approaching the police van and that she fell down. it is also contended by the respondents that pushing and hitting are different and that in the case of a push there could not be and would not be any hurt or pain to the victim and hence it could not be stated that there was any assault on the said individual and also that the post-mortem certificate and the evidence of the doctor who conducted autopsy is clear that there was no external or internal injuries and that therefore the allegation of the petitioner that she sustained grevious injuries and died as a result of the same is beyond any presumption and the same is not true. it is also the case of the respondents that only when injury was caused by the act of the police, then they are bound to accord treatment and since there was no such incident in this case the police force had left the spot. further according to them, the witness selvam identified police constable 902 jayaraman as the person who pushed her aunt down, whereas witness marudhamuthu did not point out the said police constable 902 and he pointed out three police personnels and then one sankaran, police constable no. 505. but the said police constable 505 was on leave on the said date of occurrence. therefore it is their case that it has to be presumed that either selvam was correct or that the entire version was incorrect based on the evidence of witness of selvam and marudhamuthu. therefore according to them in the above said circumstances it was presumed that p. c. 902 was the person who had pushed the lady. it is also their categoric case that prompt action had been taken by respondent nos. 4 and 2 and they were waiting for the final orders from the government of tamil nadu. it is also contended by the respondents that the government had instructed the director general of police, madras to take appropriate departmental action against the delinquent police constable 902 jayaraman who was found responsible only for the pushing of the said lady and except for a push which would not cause the death of the individual it is not just and proper to claim any compensation. the death was not the direct result of the said push, since she was already suffering from heart disease and the death was considered to be a natural cause by the doctor who conducted autopsy on the body of the said mariyammal and hence the claim of the petitioner for a compensation of rs. 5,00,000/- is not just and proper and the claim has to be dismissed in limini.7. having seen the entire material available on record and from the facts and circumstances on this case and also from the claims and counter-claims made by the rival parties, the following are the admitted facts in this case. the petitioner herein along with this wife (deceased mariyammal) and children has been living in the area 'burmah colony'. on 22-11-90 some policemen visited that area for prohibition raid. they caught some people and dragged them to the police van nearby for filing prohibition cases. one of such persons was one selvam son of the petitioner's sister-in-law who was going to the medical shop to purchase some medicine as per the request of the petitioner's wife. as he was caught by the police and taken to the police van, he cried and on hearing the same the petitioner's wife came to the police and pleaded to them to leave the said selvam as he was going only to purchase medicine on her request. without hearing her version the police constable no. 902 pushed her down with force. the said mariyammal fell down on the ground and as a result of which she died. that being so without noticing as to what happened to that women who was pushed down, the police party left the place. that being so, the residents of the area sought justice in the hands of the authorities. but from the facts of this case it is very clear that even to meet the concerned authorities, they have undergone herculian task and only after they entered into a dharna in the public road with the dead body along with them, ultimately the authorities rushed to the spot and arranged for sending the body for postmortem. thereafter an identification parade was conducted to identify the police constable who was responsible for the said incident. the abovesaid selvam was called for the said purpose identified the accused police constable. with this there was no further progress. thereafter the petitioner was made to issue an advocate notice dated 9-5-91 to be issued to the rdo, and the s. p. with request to intimate him as to the action taken against the accused police and also for providing him the result of the investigation/enquiry conducted by the rdo and a copy of the post-mortem report. on 17-5-91 it was simply replied that enquiry was conducted under pso 145 and the orders of the government are awaited and that he would be informed only after receipt of the said order. after awaiting for nearly 3 more months the petitioner caused another advocate notice dated 20-8-91 to the rdo s. p. once again making the same request. again he received the same reply. thereafter he made a memorandum to the 2nd respondent district collector, but nothing happened till the filing of this writ petition. aggrieved by the casual and insensitive inaction of the respondents in not even proceeding in accordance with law by taking action against the guilty person, the petitioner herein has come forward with the present writ petition. in this writ petition seeking for a direction to the respondents to take appropriate action against the concerned p. c. and to award compensation, the petitioner herein expresses his grievance that it is about 9 years since the unfortunate killing had occurred and they are left with no relief due to the said attitude of the respondents, which creates doubts that the respondents are deliberately indulging in delaying tactics to bury the case without any remedy to them and also that if this is allowed to continue people would loose faith in the administration. in the facts and circumstances of the case i see every force in the above contentions of the petitioner herein for the following reasons.8. admittedly in this case on the complaint given by the petitioner's behalf proceedings were initiated by the authorities under pso 145. that being so, it is the duty of the authorities to intimate the complainant about the result or progress of the same. but in this case even after approaching the authorities concerned several time and that too, by way of advocate notice, the petitioner herein could not get any information about the fate of the enquiry's fate. even in the counter the respondents are not able to say the said particulars in detail. they have simply stated that the government have passed orders fixing up the responsibility on one jayaraman, pc 902 as the constable who pushed the lady down, that the government have also asked the director general of police to take departmental action against the police constable concerned and that the action is being taken by the director general of police. but it is not known even now what is the fate of such action initiated by the dgp. that being so, now it is contended by the respondents that the post-mortem certificate disclosed that the death was due to the natural cause, and hence there was no finding that the death of the said mariyammal was due to the push effected by the said police constable 902 jayaraman and that the enquiry revealed that the lady had a heart problem and her death might be due to mental shock of the police securing her nephew selvam and might be due to physical agitation caused by her fall due to tripping and the fall on the ground by the pushing. it is also their case that there is no external or internal injuries to the concerned lady that therefore in the said circumstances there is no need to pay compensation to the writ petitioner as the death was not the result of any tortious acts of the servants of the state. such contention of the respondents herein cannot at all be accepted. because the so called post-mortem certificate has not been produced even before this court and the copy of the same has been denied even to the petitioner, by saying that the enquiry report and post-mortem certificate are confidential records and it will not be divulge to the public till the departmental enquiry is over by the police department against the alleged police constable. that cannot at all be accepted in the interest of justice. as an aggrieved party the petitioner herein is entitled to get the copy of the enquiry report and also copy of the postmortem certificate. further it is contended by the respondents that the death was not the direct result of the said push, since she was already suffering from heart decease and the death was considered to be a natural cause by the doctor who conducted autopsy on the body of the said mariyammal and hence the claim for a compensation of rs. 5,00,000/- is not just and proper. this contention of the respondents also cannot at all be accepted. in this case it is admitted that because of the rude push made by the said p.c. the lady fell to the ground. that being so, whether such a push caused her death or not can be decided only in a trial held before a criminal proceedings and that cannot be decided by any other enquiry as contended by the respondents. therefore it is a clear case wherein the body of the deceased was taken from pillar to post seeking justice and even after all these years the petitioner could not even get the copy of post-mortem certificate and unable to know as to what action has been taken against the police constable who rudely pushed a womanfolk with all force to the ground which ended in her death. as rightly contended by the petitioner herein it is all because of the casual and insentive inaction of the respondents in not even proceeding in accordance with law by taking action against the guilty person. further in this case it is significant to note that the deceased unfortunate lady was not an accused or even suspected in any case to receive such a inhuman behaviour in the hands of a police. it is also not the case of the respondents that even the said selvam was accused of any offence or that the lady prevented or obstructed the police to take the said selvam. the only in (sic) committed by the unfortunate lady is to plead the police not to apprehend him as she only has sent him to bring medicines for the child. in such circumstances, the police constable has no manner of right even to touch a lady at that odd hours. but in this unfortunate case, the concerned police constable has pushed her down to the ground with all his force. that apart even after several years, the authorities are dragging on this matter for the reasons best known to them. therefore in the above circumstances it is rightly contended by the petitioner herein that the respondents are deliberately indulging in delaying tactics to bury the case without any remedy to them. therefore in these circumstances it is rightly contended by the petitioner herein that the respondents are deliberately indulging in delaying tactics to bury the case without any remedy to them. therefore in these circumstances of this case having lost his wife under unfortunate circumstances the entire family would be still under enormous mental shock and hence as rightly contended by them the petitioner is entitled to receive compensation for the tortuous acts of the servants of the state.9. in support of his claim for compensation, the petitioner herein relies on the following decisions :1. peoples' union for democratic rights v. police commissioner, delhi police h.q. : (1989)4scc730 wherein it has been held that directions to be made for payment of compensation to victims and family of deceased on the ground of police atrocities. it has also been observed therein that it is unfortunate that the police to whom the citizen can approach for protection and help acted in such manner.2. seheli v. commissioner of police : air1990sc513 , wherein it has been held as follows :an action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death.in case of assault, battery the false imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity, loss of liberty and death. the state is responsible for the tortious acts of its employees. on a conspectus of various decisions of the court, it is deemed just and proper to direct the state to pay compensation to the mother of the deceased child a sum of rs. 75,000/- within four weeks. the delhi administration may take appropriate steps for recovery of the amount paid as compensation or part thereof from the officers who will be found responsible, if they are so advised.3. nilabathi behera v. state of orissa : 1993crilj2899 wherein it has been held thus :'this court and the high courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction under articles 32 and 226 of the constitution to the victim or the heir of the victim whose fundamental rights under article 21 of the constitution of india are established to have been flagrantly infringed by calling upon the state to repair the damage done by its officers to the fundamental rights of the citizens not withstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. the state, of course has the right to be indemnified by and take such action as may be available to it against the wrong doer in accordance with law through appropriate proceedings. of course, relief in exercise of the power under article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case is possible.that being so, in the above facts and circumstances of the case, the above decisions squarely apply to the present case and they also justify the award of compensation to the family of the victim deceased.10. therefore, for all the aforesaid reasons and in the facts and circumstances of this case and also in view of my above discussions with regard to the various aspects of this case and also in the light of the above decisions referred, i am of the clear view that the petitioner herein has clearly made out a case in his favour warranting award of compensation in his favour and also to expedite the departmental enquiry pending against the police constable concerned and also to initiate a criminal proceeding against him for his rude behaviour with the lady deceased in this case. thus the writ petition succeeds and has to be allowed.11. in the result, the writ petition is allowed in part. no costs. consequently the respondents herein are directed to initiate forthwith criminal proceedings against the police constable concerned for his rude behaviour in his pushing her to ground which subsequently ended in her death apart from expediting the departmental enquiry pending against him. the 1st respondent is also directed to pay a compensation of rs. 2,00,000/- (rupees two lakhs only...) to the petitioner and his family within 3 months, from the date of receipt of copy of this order. however, the respondents have the right to be indemnified by and take such action as may be available to them against the wrong doer in accordance with law through appropriate proceedings.

Judgment:
ORDER

Y. Venkatahalam, J.

1. Invoking Article 226 of the Constitution of India, the petitioner herein has filed the present writ petition, seeking for a writ of mandamus seeking to issue directions to the respondents to (i) launch criminal and departmental action against the policeman responsible for the killing of Tmt. Mariammal on 22-11-1990, (2) to pay a sum of Rs. 5,00,000/- as compensation for killing of Tmt. Mariammal.

2. In support of the writ petition, the petitioner herein has filed an affidavit wherein he has narrated all the facts and circumstances that forced him to file the present writ petition and requested this court to allow this writ petition as prayed for. Per contra, on behalf of the respondents a counter-affidavit has been filed rebutting all the material allegations levelled against them one after the other and ultimately they have requested this Court to dismiss the writ petition for want of merits.

3. Heard the arguments advanced by the learned Counsel appearing for the parties. I have perused the contents of the affidavit and the counter-affidavit together with all other relevant material documents available on record in the form of typed set papers. I have also taken into consideration the various points raised by the learned Counsel appearing for the respective parties during the course of their arguments. I have also considered the several decisions relied on by the petitioner in support of his claim made in this case.

4. In the above facts and circumstances of the case on hand, the following is the only point that arises for consideration herein :

As to whether there are any valid grounds to allow this writ petition or not?

5. The brief facts of the case of the petitioner as seen from the affidavit are as follows: The petitioner herein is the husband of one Mariyammal. He has filed the present writ petition praying this Court to direct the respondents to investigate into the killing of his wife the said Mariyammal on 22-11 -1990 and to take appropriate action against the concerned policemen and also for payment of compensation for the death of his wife. According to the petitioner herein on 22-11 -1990 some policemen including one Jayaraman P. C. 902 came to their area Burmah colony, for conducting prohibition raid wherein the petitioner's family is residing. They started to beat people found at sight and began to drag some men into the police van for filing prohibition cases. At that time one Selvam son of his sister-in-law who was working in the Government Mid-Day Meal Centre was sent by the petitioner's wife to buy medicine for the ailing grand-daughter. The said Selvam was caught hold off by the said P.C. Jayaraman and was being dragged to the police van. Hearing his cries, the wife of the petitioner herein ran to the police pleading with them not to apprehend him since he was sent to the Pharmacy for buying medicine. The said police immediately turned rudely on her and assaulted her and pushed her down with force. The said Mariyammal fell down on the ground thereby sustaining grevious injuries and as a result of which she died. It is also the case of the petitioner herein that the police who were the cause of the whole tragic incident did not even bother to find out as to what had happened to the injured, but left the place with some of the men apprehended. The injured succumbed to injuries on the spot. A complaint was lodged with the South Town police station which was registered as Cr. No. 716 of 1990. As per orders 605 and 145 of Police Standing Orders, police officer having received the complaint is statutorily bound to proceed to the place of occurrence and shall make investigation into the cause of death and should send the report to the Revenue Divisional Officer. The Revenue Divisional Officer should enquire into the matter and should send the body to Government Hospital for conducting postmortem. But, in this case even after the receipt of complaint by the South Police Station, no effort was taken to investigate the death as per the aforesaid provisions. Thereafter, after patiently waiting for hours for investigating machinery to move, the residents resorted to direct action by themselves taking the body in a cycle rickshaw to the residence of Deputy Superintendent of Police seeking action as per law. The D.S.P. directed the people to approach the Sub Collector since the complaint was against the police and that therefore the people were forced to proceed with the body in a procession to the residence of Sub Collector. There they were informed by the security men that the Sub Collector was sleeping and that therefore they could come only the next day. This only added insult to injury to him and his family members since they were taking the dead body seeking justice from one officer to another. In the said circumstances, the people had no other go than to stage a dharna in the public road against the inaction and insensitive attitudes of respondents herein. Only then, the DSP, the Sub Collector and other officials carne to the spot along with the DIG, of the said region Mr. Saravana Perumal. They made arrangements to send the body for postmortem in the Government Medical College Hospital. Thereafter an identification parade was conducted to identify the police constable who was responsible for the killing of the petitioner's wife. Selvam was called for the said purpose and identified the accused police constable. Thereafter finding no response from the respondents after waiting for nearly six months, the petitioner herein caused an Advocate notice dated 9-5-91 to be issued to the R.D.O. and the S. P. with a request to intimate him as to the action taken against the accused police and also for providing him the result of the investigation/enquiry conducted by the RDO and a copy of the post-mortem report. The Sub Collector's Office by their proceedings dated 17-5-1991 sent a reply stating that the enquiry was conducted under PSO 145 and the orders of the Government are awaited and that he would be informed only after receipt of the said order. After waiting nearly 3 months he caused another advocate notice dated 20-8-1991 to the RDO and the S. P. once again making the same request. Again the Sub Collector's office by their proceedings dated 25-8-1991 informed that the Government Order was still awaited. But thereafter, finding no response from the RDO, he submitted a memorandum to the Collector on 2-12-1991 on the public grievance day detailing the tragedy that took place and his long wait for justice at the hands of the respondents. Though acknowledgement was given by the Collector's office with a note that he would be informed of the result of the memorandum by 2-1-1992 nothing had happened till date. It is the case of the petitioner herein that he has four sons and 2 daughters through his wife the deceased and having lost his wife under unfortunate circumstances, the entire family is still under enormous mental shock. What is more unfortunate is the casual and insensitive inaction of the respondents in not even proceeding in accordance with law by taking action against the guilty person. It is now several years lapsed since the unfortunate killing had occurred and they are left with no relief due to the said attitude of the respondents, which creates doubts that the respondents are deliberately indulging in delaying tactics to bury the case without any remedy to them. It is his strong case that if this is allowed to continue, people would lose faith in the administration. Further according to the petitioner all over the country and especially in this state, the law enforcement agency are exposed to much criticism due to the increasing violence by them against the poorer and weakers section, and also that a large number of cases are being filed in the Courts against police torture and deaths and in most of the cases the Courts are granting relief in favour of the victims. It is also his case that he is not aware as to whether the RDO completed enquiry under 145 PSO and submitted his report to the Government for further action even though 2 years had elapsed. The said PSO clearly contemplates that the RDO should give finding whether a prima facie case has been made out to launch criminal prosecution against the guilty policemen. To his knowledge, till date no criminal prosecution has been launced would establish that the respondents have failed to discharge their duty. It is also contended by him that the Supreme Court under the circumstances of these nature has awarded monetary compensation to the relatives of the victims as a palliative measure and also as a measure of accountability of the institutions to the people and that the Supreme Court in the cases reported in (i) : (1989)4SCC730 and (ii) : AIR1990SC513 awarded compensation payable by the State to the families of the victims for the tortuous acts of the servants of the State. Therefore it is contended by the petitioner herein that in the present case, the first respondent is liable to pay compensation to him for the wrong committed by the police. Hence this writ petition.

6. Per contra, in the counter-affidavit filed by the respondents, inter alia it is contended by them that the Sub Collector, during his enquiry could not arrive at a conclusion as to who pushed the lady to death. Hence he requested orders whether the case may be handed over to the Crime Branch CID for fixing the responsibility. The Government were addressed on 6-9-91 requesting whether the case may be handed over to Special Branch for further investigation. It is also stated by the respondents that the Government have passed order fixing up the responsibility on one Jayaraman, PC 902 as the constable who pushed the lady down. The Government have also asked the Director General of Police to take departmental action against the police constable concerned. The action is being taken by the Director General of Police. Further according to the respondents the Sub Collector. Thanjavur commenced an enquiry as contemplated under Order 145 of the police standing order since the enquiry had been done by the fourth respondent and thus since the 4th respondent had commenced and completed his investigation regarding the death of Mariyammal which took place on 22-11-90, there is no further necessity of any order to be issued by this Court in the writ petition filed by this petitioner. Further according to the respondents, on the report submitted by the respondent No. 4 through respondent No. 2, the Government had ordered departmental enquiry against Police constable Jayaraman No. 902 in their LR. No. 3025/92-2 dated 27-1-1993. According to the respondents the post-mortem certificate disclosed that the death was due to the natural cause, and hence there was no finding that the death of the said Mariyammal was due to the push effected by the said police constable 902 Jayaraman, and that the enquiry revealed that the lady had a heart problem and her death might be due to mental shock of the police securing her nephew Selvam and also might be due to physical agitation caused by her fall due to tripping and the fall on the ground by the pushing and also that there is no external or internal injuries to the concerned lady. Therefore it is contended on behalf of the respondents that in the said circumstances there is no need to pay compensation to the writ petitioner as the death was not the result of any tortious of the acts of the servants of the State as arrived at in the Supreme Court cases relied on by the petitioner herein. The respondents also deny that on 23-11-1990, the police personnel beat people found at site while conducting prohibition ride and also that there was no complaint against the police as alleged and the enquiry also did not reveal any such act by the police. It is also the case of the respondents that when the said Selvam was apprehended by police constable No. 902 Jayaraman and was taken to the police van, where the additional Superintendent of Police was sitting, and that the evidence disclosed that the said lady was running towards the police personnel crying and beating her chest requesting them to leave the said Selvam, that though she rushed to the police van she was barred from approaching it at a distance of 10 to 15 feet from it and that one version is that she tripped and fell down and that it is also stated that she was pushed from approaching the police van and that she fell down. It is also contended by the respondents that pushing and hitting are different and that in the case of a push there could not be and would not be any hurt or pain to the victim and hence it could not be stated that there was any assault on the said individual and also that the post-mortem certificate and the evidence of the doctor who conducted autopsy is clear that there was no external or internal injuries and that therefore the allegation of the petitioner that she sustained grevious injuries and died as a result of the same is beyond any presumption and the same is not true. It is also the case of the respondents that only when injury was caused by the act of the police, then they are bound to accord treatment and since there was no such incident in this case the police force had left the spot. Further according to them, the witness Selvam identified police constable 902 Jayaraman as the person who pushed her aunt down, whereas witness Marudhamuthu did not point out the said police constable 902 and he pointed out three police personnels and then one Sankaran, police constable No. 505. But the said police constable 505 was on leave on the said date of occurrence. Therefore it is their case that it has to be presumed that either Selvam was correct or that the entire version was incorrect based on the evidence of witness of Selvam and Marudhamuthu. Therefore according to them in the above said circumstances it was presumed that P. C. 902 was the person who had pushed the lady. It is also their categoric case that prompt action had been taken by respondent Nos. 4 and 2 and they were waiting for the final orders from the Government of Tamil Nadu. It is also contended by the respondents that the Government had instructed the Director General of Police, Madras to take appropriate departmental action against the delinquent police constable 902 Jayaraman who was found responsible only for the pushing of the said lady and except for a push which would not cause the death of the individual it is not just and proper to claim any compensation. The death was not the direct result of the said push, since she was already suffering from heart disease and the death was considered to be a natural cause by the doctor who conducted autopsy on the body of the said Mariyammal and hence the claim of the petitioner for a compensation of Rs. 5,00,000/- is not just and proper and the claim has to be dismissed in limini.

7. Having seen the entire material available on record and from the facts and circumstances on this case and also from the claims and counter-claims made by the rival parties, the following are the admitted facts in this case. The petitioner herein along with this wife (deceased Mariyammal) and children has been living in the area 'Burmah Colony'. On 22-11-90 some policemen visited that area for prohibition raid. They caught some people and dragged them to the police van nearby for filing prohibition cases. One of such persons was one Selvam son of the petitioner's sister-in-law who was going to the medical shop to purchase some medicine as per the request of the petitioner's wife. As he was caught by the police and taken to the police van, he cried and on hearing the same the petitioner's wife came to the police and pleaded to them to leave the said Selvam as he was going only to purchase medicine on her request. Without hearing her version the police constable No. 902 pushed her down with force. The said Mariyammal fell down on the ground and as a result of which she died. That being so without noticing as to what happened to that women who was pushed down, the police party left the place. That being so, the residents of the area sought justice in the hands of the authorities. But from the facts of this case it is very clear that even to meet the concerned authorities, they have undergone herculian task and only after they entered into a Dharna in the public road with the dead body along with them, ultimately the authorities rushed to the spot and arranged for sending the body for postmortem. Thereafter an identification parade was conducted to identify the police constable who was responsible for the said incident. The abovesaid Selvam was called for the said purpose identified the accused police constable. With this there was no further progress. Thereafter the petitioner was made to issue an Advocate notice dated 9-5-91 to be issued to the RDO, and the S. P. with request to intimate him as to the action taken against the accused police and also for providing him the result of the investigation/enquiry conducted by the RDO and a copy of the post-mortem report. On 17-5-91 it was simply replied that enquiry was conducted under PSO 145 and the orders of the Government are awaited and that he would be informed only after receipt of the said order. After awaiting for nearly 3 more months the petitioner caused another advocate notice dated 20-8-91 to the RDO S. P. once again making the same request. Again he received the same reply. Thereafter he made a memorandum to the 2nd respondent District Collector, but nothing happened till the filing of this writ petition. Aggrieved by the casual and insensitive inaction of the respondents in not even proceeding in accordance with law by taking action against the guilty person, the petitioner herein has come forward with the present writ petition. In this writ petition seeking for a direction to the respondents to take appropriate action against the concerned P. C. and to award compensation, the petitioner herein expresses his grievance that it is about 9 years since the unfortunate killing had occurred and they are left with no relief due to the said attitude of the respondents, which creates doubts that the respondents are deliberately indulging in delaying tactics to bury the case without any remedy to them and also that if this is allowed to continue people would loose faith in the administration. In the facts and circumstances of the case I see every force in the above contentions of the petitioner herein for the following reasons.

8. Admittedly in this case on the complaint given by the petitioner's behalf proceedings were initiated by the authorities under PSO 145. That being so, it is the duty of the authorities to intimate the complainant about the result or progress of the same. But in this case even after approaching the authorities concerned several time and that too, by way of Advocate notice, the petitioner herein could not get any information about the fate of the enquiry's fate. Even in the counter the respondents are not able to say the said particulars in detail. They have simply stated that the Government have passed orders fixing up the responsibility on one Jayaraman, PC 902 as the constable who pushed the lady down, that the Government have also asked the Director General of Police to take departmental action against the police constable concerned and that the action is being taken by the Director General of Police. But it is not known even now what is the fate of such action initiated by the DGP. That being so, now it is contended by the respondents that the post-mortem certificate disclosed that the death was due to the natural cause, and hence there was no finding that the death of the said Mariyammal was due to the push effected by the said police constable 902 Jayaraman and that the enquiry revealed that the lady had a heart problem and her death might be due to mental shock of the police securing her nephew Selvam and might be due to physical agitation caused by her fall due to tripping and the fall on the ground by the pushing. It is also their case that there is no external or internal injuries to the concerned lady that therefore in the said circumstances there is no need to pay compensation to the writ petitioner as the death was not the result of any tortious acts of the servants of the State. Such contention of the respondents herein cannot at all be accepted. Because the so called post-mortem certificate has not been produced even before this Court and the copy of the same has been denied even to the petitioner, by saying that the enquiry report and post-mortem certificate are confidential records and it will not be divulge to the public till the departmental enquiry is over by the police department against the alleged police constable. That cannot at all be accepted in the interest of justice. As an aggrieved party the petitioner herein is entitled to get the copy of the enquiry report and also copy of the postmortem certificate. Further it is contended by the respondents that the death was not the direct result of the said push, since she was already suffering from heart decease and the death was considered to be a natural cause by the doctor who conducted autopsy on the body of the said Mariyammal and hence the claim for a compensation of Rs. 5,00,000/- is not just and proper. This contention of the respondents also cannot at all be accepted. In this case it is admitted that because of the rude push made by the said P.C. the lady fell to the ground. That being so, whether such a push caused her death or not can be decided only in a trial held before a criminal proceedings and that cannot be decided by any other enquiry as contended by the respondents. Therefore it is a clear case wherein the body of the deceased was taken from pillar to post seeking justice and even after all these years the petitioner could not even get the copy of post-mortem certificate and unable to know as to what action has been taken against the police constable who rudely pushed a womanfolk with all force to the ground which ended in her death. As rightly contended by the petitioner herein it is all because of the casual and insentive inaction of the respondents in not even proceeding in accordance with law by taking action against the guilty person. Further in this case it is significant to note that the deceased unfortunate lady was not an accused or even suspected in any case to receive such a inhuman behaviour in the hands of a police. It is also not the case of the respondents that even the said Selvam was accused of any offence or that the lady prevented or obstructed the police to take the said Selvam. The only in (sic) committed by the unfortunate lady is to plead the police not to apprehend him as she only has sent him to bring medicines for the child. In such circumstances, the police constable has no manner of right even to touch a lady at that odd hours. But in this unfortunate case, the concerned police constable has pushed her down to the ground with all his force. That apart even after several years, the authorities are dragging on this matter for the reasons best known to them. Therefore in the above circumstances it is rightly contended by the petitioner herein that the respondents are deliberately indulging in delaying tactics to bury the case without any remedy to them. Therefore in these circumstances it is rightly contended by the petitioner herein that the respondents are deliberately indulging in delaying tactics to bury the case without any remedy to them. Therefore in these circumstances of this case having lost his wife under unfortunate circumstances the entire family would be still under enormous mental shock and hence as rightly contended by them the petitioner is entitled to receive compensation for the tortuous acts of the servants of the State.

9. In support of his claim for compensation, the petitioner herein relies on the following decisions :

1. Peoples' Union for Democratic Rights v. Police Commissioner, Delhi Police H.Q. : (1989)4SCC730 wherein it has been held that directions to be made for payment of compensation to victims and family of deceased on the ground of police atrocities. It has also been observed therein that it is unfortunate that the police to whom the citizen can approach for protection and help acted in such manner.

2. Seheli v. Commissioner of Police : AIR1990SC513 , wherein it has been held as follows :

An action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death.

In case of assault, battery the false imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity, loss of liberty and death. The State is responsible for the tortious acts of its employees. On a conspectus of various decisions of the Court, it is deemed just and proper to direct the State to pay compensation to the mother of the deceased child a sum of Rs. 75,000/- within four weeks. The Delhi Administration may take appropriate steps for recovery of the amount paid as compensation or part thereof from the officers who will be found responsible, if they are so advised.

3. Nilabathi Behera v. State of Orissa : 1993CriLJ2899 wherein it has been held thus :'This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizens not withstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrong doer in accordance with law through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the Court in the facts and circumstances of the case is possible.

That being so, in the above facts and circumstances of the case, the above decisions squarely apply to the present case and they also justify the award of compensation to the family of the victim deceased.

10. Therefore, for all the aforesaid reasons and in the facts and circumstances of this case and also in view of my above discussions with regard to the various aspects of this case and also in the light of the above decisions referred, I am of the clear view that the petitioner herein has clearly made out a case in his favour warranting award of compensation in his favour and also to expedite the departmental enquiry pending against the police constable concerned and also to initiate a criminal proceeding against him for his rude behaviour with the lady deceased in this case. Thus the writ petition succeeds and has to be allowed.

11. In the result, the writ petition is allowed in part. No costs. Consequently the respondents herein are directed to initiate forthwith criminal proceedings against the police constable concerned for his rude behaviour in his pushing her to ground which subsequently ended in her death apart from expediting the departmental enquiry pending against him. The 1st respondent is also directed to pay a compensation of Rs. 2,00,000/- (Rupees Two Lakhs only...) to the petitioner and his family within 3 months, from the date of receipt of copy of this order. However, the respondents have the right to be indemnified by and take such action as may be available to them against the wrong doer in accordance with law through appropriate proceedings.