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Judgment
K.K. Sasidharan, J.
INTRODUCTORY:
Alleging that the police officials have taken a decision to kill her husband in a fake encounter, the Petitioner filed this Writ Petition for
appropriate directions to the police.
BACKGROUND FACTS:
The Petitioner is the wife of Senu Chidambaram @ Kutti, a resident of Paliyur in the District of Thanjavur. Her husband was involved in various
crimes registered before the police stations in the district of Thanjavur. However, he changed his behaviour subsequent to the marriage. He was a
candidate for election to the Local Panchayat Union. The Office Bearer of ruling party turned against him and he was instrumental in registering
false cases against her husband. The cases were registered with an evil intention that her husband should not come up in life.
The Thanjavur East Police registered a case in Crime No. 744 of 2009 on 16.12.2009. Another case was registered by the Ammapet Police in
Crime No. 97 of 2010. The husband of the Petitioner (hereinafter referred to as ""accused"") was not in the State during the time of commission of
the alleged offences.
The police officials very frequently searched the residence of the Petitioner to arrest her husband. Therefore, the Petitioner submitted
representations before the Hon''ble Chief Minister, narrating the events. In the meantime, the Petitioner was informed that her husband would be
killed in a fake encounter. Therefore, the Petitioner was constrained to file the Writ Petition.
The Superintendent of Police, Thanjavur, in his counter-affidavit, contended that several cases were registered against the accused. He was
earlier detained under Tamil Nadu Act 14 of 1982, as per order dated 11.11.2002 on the file of the District Collector, Thanjavur. The accused
failed to appear before the learned Chief Judicial Magistrate, Thanjavur in S.C. No. 46 of 2008. Therefore, non-bailable warrant was issued by
the Court. It was only to execute the said non-bailable warrant, the police searched the premises of the Petitioner. Accordingly, the Superintendent
of Police justified the action taken by the police to arrest the accused.
I have heard the learned Counsel for the parties.
DISCUSSION:
At first blush, the prayer sought for by the Petitioner would appear to be too strange. The Petitioner wanted this Court to issue a Mandamus or
appropriate directions to restrain the Respondents from killing her husband in fake encounter.
The Media reports regarding the alleged extra-judicial killings by the police appears to have prompted the Petitioner to file this Writ Petition.
Therefore, the Petitioner cannot be blamed for filing a Writ Petition with a very strange prayer.
The recent incidents relating to the death of accused in police custody prompted me to consider the issue in a larger perspective.
The death in police custody have assumed alarming proportions in recent times. Such incidents were defended on the ground that the attempt
made by the prisoner to snatch the rifle and the act of attacking the police officials made them to open fire. The bona fides of such contentions are
matters to be decided by the Courts in appropriate proceedings.
When the protectors of law themselves indulge in breaking the law, it would be a death knell to the civilized society and the very democracy
would be at peril.
There are upright men and officers in our police force. The illegal and inhuman conduct of a microscopic minority gives bad name to the entire
disciplined force.
The police force requires a sea change in their mind set. They should not be under the impression that they are above the law. The law is
supreme. Law Enforcing Machinery should not become a law unto themselves.
The attempt of the police must be to enforce rule of law. The police powers should be used to maintain law and order and to reduce crime
rate. The police have no licence to kill the civilians.
The issue regarding police torture during custody came up before the Supreme Court on several occasions. The Supreme Court strongly
disapproved and rather deprecated the practice of police killing innocent persons while in custody.
THE CASE LAW:
The Supreme Court in Gauri Shanker Sharma etc. Vs. State of U.P. etc., observed that resort to third degree methods by police officers
resulting in death of person in police custody is an offence of a serious nature and the punishment awarded to the concerned police officers should
be deterrent. The observation reads thus:
...The High Court should have realised that cases are not unknown where police officer have given inaccurate accounts to secure a conviction
or to help out a colleague from a tight situation of his creation. The High Court should also have realised that it is generally difficult in cases of
deaths in police custody to secure evidence against the policemen responsible for resorting to third degree methods since they are in charge of
police station records which they do not find difficult to manipulate as in this case. It is only in a few cases, such as the present one, that some
direct evidence is available...
...
...
Death in police custody must be seriously viewed for otherwise we will help take a stride in the direction of police raj. It must be curbed with a
heavy hand. The punishment should be such as would deter others from indulging in such behaviour. There can be no room for leniency....
In Bhagwan Singh and another Vs. State of Punjab, , the Supreme Court deprecated the third degree treatment to arrested person by police.
The Supreme Court said:
...It may be a legitimate right of any police officer to interrogate or arrest any suspect on some credible material but it is needless to say that such
an arrest must be in accordance with the law and the interrogation does not mean inflicting injuries. It should be in its true sense and purposeful
namely to make the investigation effective. Torturing a person and using third degree methods are of medieval nature and they are barbaric and
contrary to law. The police would be accomplishing behind their closed doors precisely what the demands of our legal order forbid. In Dagdu v.
State of Maharashtra this Court observed as under: (SCC p.92, para 88)
...The police, with their wide powers, are apt to overstep their zeal to detect crimes and are tempted to use the strong arm against those who
happen to fall under their secluded jurisdiction. That tendency and that temptation must in the larger interest of justice be nipped in the bud.
It is a pity that some of the police officers, as it has happened in this case, have not shed such methods even in the modern age. They must adopt
some scientific methods than resorting to physical torture. If the custodians of law themselves indulge in committing crimes then no member of the
society is safe and secure. If police officers who have to provide security and protection to the citizens indulge in such methods they are creating a
sense of insecurity in the minds of the citizens. It is more heinous than a game-keeper becoming a poacher.
In Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, , the issue before the Supreme Court was regarding the claim for
award of compensation on account of custodial death. In His concurring judgment, His Lordship Mr. Justice A.S. Anand (as His Lordship then
was) considered the police powers and the liability of the State to compensate the victim. The relevant observation reads thus:
It is axiomatic that convicts, prisoners or under-trials are not denuded of their fundamental rights under Article 21 and it is only such
restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the
State, to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law while the citizen is in its
custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under-trials or other prisoners in
custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the
citizen in its custody is ""not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement
and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no
exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according
to the procedure established by law....
The Supreme Court in D.K. Basu Vs. State of West Bengal, clearly observed that the custodial violence infringes Article 21 as well as basic
human rights and strikes a blow at rule of law. The Supreme Court issued as many as 11 directions to the police to protect the right guaranteed
under Article 21 of the Constitution of India and to ensure fair investigation.
While issuing the directions, the Supreme Court in D.K. Basu''s case indicated that the precious right guaranteed under Articles 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. The observation reads thus:
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 of 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 card 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.
The Supreme Court in Dalbir Singh Vs. State of U.P. and Others, , after referring the earlier judgments relating to violation of Article 21 of the
Constitution of India at the instance of police, observed that the torture in custody flouts the basic rights of citizens recognized by the Indian
Constitution and is an affront to human dignity.
Article 21 of the Constitution of India guarantees life and personal liberty. The said valuable right can be deprived only in accordance with the
procedure established by law. The extra-judicial killings by the police cannot be termed as a procedure permitted by law. The right to life is a basic
human right, besides a constitutional right. Therefore, a Writ Petition of this nature will lie to forbear the police from depriving the life and liberty of
the person by way of fake encounter.
CONCLUDING REMARKS:
The Petitioner apprehends a fake encounter involving her husband. There is nothing to suggest mala fides in filing the Writ Petition. It is not
possible to accuse the police also, as there was no complaint of police torture by the accused on earlier occasions. The Superintendent of Police,
Thanjavur, in his affidavit, indicated that non-bailable warrant has already been issued by the learned Chief Judicial Magistrate in S.C. No. 46 of
2008. Therefore, it is for the learned Chief Judicial Magistrate to ensure that nothing happens to the accused as apprehended by the Petitioner.
In the light of all these points, I have no doubt that there is a substantial and very strong ground made out by the Petitioner to issue directions to
the concerned Magistrate and police to ensure the life and personal liberty of the accused, guaranteed by Article 21 of the Constitution of India.
DIRECTIONS:
(A) (1) It is open to the accused to surrender before the learned Chief Judicial Magistrate, Thanjavur in S.C. No. 46 of 2008.
(2) In case the police makes a request for custody in any of the cases pending against the accused, the learned Magistrate must impose
appropriate conditions to ensure the life of the accused.
(3) The learned Magistrate must obtain an affidavit from the police officer seeking custody, undertaking to produce the accused in the very same
condition, in which he was taken from judicial custody.
(4) The police officer must declare before the learned Magistrate the names, designation and roll number of the police men and officers, who
accompany the accused during custody and in transit. It would be the personal responsibility of those men and officers to produce the accused
back for judicial custody.
(5) Before giving custody, the accused should be subjected to medical examination. Similarly, after the police custody, accused should be
produced before the medical officer and the medical report should be produced before the learned Magistrate.
(6) The learned Magistrate should consider the option to permit the counsel for the accused to accompany the accused during police custody.
(7) It is open to the learned Magistrate to impose any other reasonable conditions to ensure that no bodily injury or death is caused to the accused
while in police custody.
(B) (1) In addition to the above directions, the police must scrupulously follow the eleven directions issued by the Supreme Court in D.K. Basu
Vs. State of West Bengal, . The directions read thus:
(i) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification
and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a
register.
(ii) That the police officer carrying out the arrest of arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by
at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is
made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(iii) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be
entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he
has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a
relative of the arrestee.
(iv) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee
lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically
within a period of 8 to 12 hours after the arrest.
(v) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or
is detained.
(vi) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next
friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(vii) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her
body, must be recorded at that time. The ""Inspection Memo"" must be signed both by the arrestee and the police officer effecting the arrest and its
copy provided to the arrestee.
(viii) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on
the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should
prepare such a panel for all tehsils and districts as well.
(ix) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(x) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(xi) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of
custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control
room it should be displayed on a conspicuous notice board.
The Director General of Police and the Superintendent of Police, Thanjavur are directed to issue appropriate directions to the concerned
Police not to resort to any kind of acts against the accused in violation of the universal declaration of human rights and the directions issued by the
Supreme Court in D.K. Basu Vs. State of West Bengal, .
CONCLUDING REMARKS:
The above directions were issued only with a view to protect the basic human rights. The judgments referred to above show the deep concern
of the Supreme Court in matters relating to custodial violence and the clear message to those who indulge in such inhuman and barbaric acts.
It is appropriate to quote the following observation of the Supreme Court in State of M.P. Vs. Shyamsunder Trivedi and Others, :
...Police excesses and the maltreatment of detainees/undertrial prisoners of 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 civilization 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.
The Writ Petition is disposed of with the above directions. No costs.