Rajammal vs State of Tamil Nadu and Others

Elipe Dharma Rao, J.—The appellant herein has filed W.P. No. 22366 of 1993 graying to issue a Writ of Mandamus, directing die

respondents to take appropriate action against the culprits involved in her husband Natarajan Chettiar''s custodial death and jointly or severally to

pay fair and adequate damages and compensation of Rs. 5 lakhs to the family of the deceased.

The case of the petitioner is that her husband Natarajan Chettiar was a pawn broker dealing with buying and selling of artificial diamonds and

jewels on commission basis and the month of August, 1993, one Kullah Achary alias Subramani, who was also in the same business, had given

some jewels to her husband for selling and on 11.9.1993, the 5th respondent with a police party came to Vaniyambadi and enquired her husband

and others about the jewels and only at that point of time, her husband came to know that the jewels were stolen ones; that .he 5th respondent

required her husband and others to come with him to Tiruvannamalai Police Station and demanded huge amount as bribe; that on receiving the

information about the arrest of her husband she sent her elder son Sridhar and thereafter her another son Anandhan to Tiruvannamalai Police

Station and at last she came to know that her husband died on 11.9.1993 because of the police excesses and the dead body was thrown in

Thachambattu Reserve Forest. She further submitted that she is a poor widow having a large family insisting of three daughters and three sons.

The respondents 4 and 5 filed separate counter affidavits, denying the allegations made in the writ petition. The 5th respondent would further

submit that based on the complaint lodged by one Pandurangan, advocate about the loss of a gold chain weighting 7.5 sovereigns, he registered a

case in Cr. No. 417 of 1993 for the offences under Sections 457 and 380 IPC and based on the secret information that the deceased Natarajan

Chettiar was involved in dealing with stolen ornaments, he brought him for the purpose of interrogation at Tiruvarnamalai and during interrogation,

the said Natarajan Chettiar informed him that he had only sold the gold chain weighing about 30 gms. For a sum of Rs. 5,000/= to one Vilasu and

pleaded ignorance about having received any gold chain weighing 7.5 sovereigns, at which point of time, the complainant Advocate was also

present.

The 5th respondent further submitted that while he was conducting investigation, he received a telegram that his mother sustained a fracture and

hence he asked Natarajan Chettiar to come back the following week with information about the gold chain and he left Tiruvannamalai after seeking

permission and returned orb on 14.9.1993. He would further state that in the enquiry conducted u/s 145 of the Police Standing Orders by the

RDO, Tiruvannamalai, the statements of Mr. Pandurangan, Advocate, who is the complainant and Dr. Thirugnanasambandam who conducted the

post-mortem were recorded and the said Pandurangan deposed that no bird degree methods were use and the post-mortem doctor deposed that

the colour changes noticed or the body of the deceased was due to puterification changes and not due to any homicidal violence and after

completion of the enquiry, the RDO sent a report dated 10.6.1994 holding that the Police Department was not responsible for the death of Mr.

Natarajan Chettiar. However, a further enquiry was conducted by another RDO of Tiruvannamalai and after a cursory examination of materials

and without examining anyone, he has forwarded a reported the Government, holding that the Police Department was responsible for the death of

Mr. Natarajan Chettiar. He would further state that he do net know as to how Mr. Natarajan Chettiar died and that the writ petitioner is trying to

make a fortune out of misfortune and is trying to pre-judge the defence, which is open to him during trial.

During the pendancy of the writ petition, the Government has issued G.O.Ms. No. 741 Public (Law and Order-A) Department, dated

8.7.1996, ordering to launch criminal prosecution against the Police Officers. From the materials placed on record it is seen that a case in C.C.

No. 1514 of 2000 was pending before the Judicial Magistrate, Tiruvannamdai as against the 5th respondent and others. Considering all these

aspects and further since a criminal case is pending against the 5th respondent and others for cha alleged custodial death of the deceased the

learned single Judge, has correctly restrained himself from entering into the discussion regarding the factual matrix of the case and further held that

from the G.O.Ms. No. 741 Public (Law and Order-A) Department, dated 8.7.1996, steps were taken for prosecuting the police personnel, and

thus from the said G.O. it is char that the husband of the petitioner died due to the torture by the police personnel of Veraiyur Police Station and

the said conclusion of the Government is sufficient for awarding compensation. Thereupon the learned single Judge, assessing the case of the

petitioner regarding compensation, has ordered the respondents to pay a sum of Rs. 3 lakhs as compensation.

Aggrieved, the petitioner has come forward to file this appeal for enhancement of the compensation amount. The other findings of the learned

single Judge, holding the respondents responsible to pay the compensation, reached finally since none of them has preferred any appeal. Therefore,

this Court is not called upon to enter into the other findings of the learned single Judge, but concerned only with the quantum of compensation

awarded in favour of the petitioner and whether she is entitled for enhancement of the compensation.

The learned Counsel for the appellant/petitioner would rely or the following judgments, to bring home the point that in such cases of custodial

deaths, the respondents are liable to pay the compensation.

Saheli, A Women''s Resources center, Through Ms Nalini Bhanot and Others Vs. Commissioner of Police Delhi Police Headquarters and

Others, .

State of M.P. Vs. Shyamsunder Trivedi and Others, ,

D.K. Basu Vs. State of West Bengal, and

D. Ranganayagi and Ors. v. State of Tamil Nadu and Anr. 200 1 L.W. (Crl.) 96.

In the first judgment cited above, reported in Saheli, A Women''s Resources center, Through Ms Nalini Bhanot and Others Vs. Commissioner

of Police Delhi Police Headquarters and Others, the Honourable Apex Court, while dealing with a case regarding pc 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. 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 aid 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 herein before 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 �e damages for the death of her son. It is well settled now that he 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.

In he second judgment cited above reported in State of M.P. Vs. Shyamsunder Trivedi and Others, , 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 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 ail unrealistic approach of the court, because

it reinforces the belief in the mind of the police the no harm would come to them fan odd prisoner dies in the lock up because there would hardly

be any evidence available to tie 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 n an orderly

civilised society. Torture in custody flouts the bash rights of the citizens recognised by the Indian Constitution end 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.

In the third judgment cited above, reported in D.K. Basu Vs. State of West Bengal, , the Honourable Apex Court has held as follows:

Custodial violence including torture and death in the lockups, 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 (sic) and abuse by the

police and other lawenforcing 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 Tights guaranteed by

Articles 21 and 22 of the Constitution of India. The issues are fundamental.

Torture"" has rot been defined in the Constitution or in other penal laws. ""Torture"" of a himan 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 had become synonymous with the darker side of

himan civilization.

Custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. Tie 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 civilized 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 citizen be put in abeyance on his

arrest? These questions touch the spinal cord of himan 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 reasobalble restrictions as are permitted by law.

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 cases of

custodial death of a person, has ordered payment of compensation of Rs. 5 lakhs.

There is no quarrel regard no the propositions laid down 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, to lure 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 tie respondents liable to pay the compensation on to the petitioner reached the finality and

therefore, it is no; 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 un warrantee.

Now, therefore, this Court is tailed upon only to examine the quantum of compensation entitled by the petitioner.

While according to the post-mortem report, the deceased is aged 55 years at the time of his death, the appellant would dispute the sane and

submit that the deceased was only 50 years at the time of his death. However, the undisputed fact is that the deceased left behind him three sons

and three daughters besides his widow, the appellant herein. The learned single Judge has pointed out in die order that there is no specific

information about the status of the children of the deceased and further taking into consideration the age of the petitioner as 50 years, has granted a

compensation of Rs. 3 lakhs. Now, in the appeal memorandum, the appellant has submitted that her first son and his wife committed suicide on

26.3.1999, leaving behind their son Thulasidevan, aged about 10 years now and she has to take care and bring him up. The appellant has also

furnished, the details regarding her children as follows:

Banumathi - daughter - married to a clerk in a provision store.

Chandrika - daughter - married to a tailor in a village near Tiruttani

Anand - son - working as painter

Jothilakshmi � daughter - to be married

Jothi Ramalingam � son � working as helper in a photo studio.

It is also seen from the grounds of the memorandum of appeal that the appellant''s sons were aged 23, 20 and 15 years and daughters were

aged 22, 18 and 17 years at the time of death of her husband. These particulars furnished by in appellant regarding her children were not disputed

by the respondent n any way. Thus, it is clear that the family of the deceased is crunching under financial difficulties, presumably because of the

sudden loss of the head of the family prematurely, that too in unusual circumstances, which are attributed to the police excesses. From the above

particulars famished by the appellant which remain unchallenged, it is further clear that the appellant has to give in marriage a daughter and also two

sons, besides looking, after her grand-son, whose parents committed suicide.

Considering all these facts and circumstances of the case, we consider it appropriate to enhance the compensation ordered by the learned

single Judge from Rs. 3 lakhs to Rs. 5 lakhs as has been prayed for by the petitioner in the writ petition. This writ appeal is allowed accordingly.

No costs.