Vijay Ananth vs State of Tamil Nadu and Others

K.K. Sasidharan, J.—The petitioner is the brother of one V.S. Vimal Ananth @ Vimal and the relative of one R.V. Santhanaraj @ Santhanam, accused in S.C. No. 17 of 2006 on the file of the learned District and Sessions Judge, Port Blair, Andaman. Those two accused are also involved in several cases registered in various Police Stations in the State of Tamil Nadu, which includes case in Crime Nos. 168 of 2002 and 294 of 2003 on the file of Thoothukudi Central Police Station, Crime No. 124 of 2006 on the file of Chatham Police Station and Crime No. 1286 of 2008 on the file of Thoothukudi South Police Station involving offences under Sections 302, 506(ii) and 109 IPC.

The Officer-in-charge of the Thoothukudi South Police Station has obtained a P.T. Warrant against Vimal Ananth in Crime Nos. 666 of 1996, 859 of 2009, 153 of 2000, 195 of 2000, 234 of 2002 and 294 of 2002. Similarly the Officer-in-charge of the Thoothukudi Central Police Station obtained a P.T. Warrant against Santhanaraj in Crime Nos. 294 of 2003. Another P.T. Warrant was obtained against Santhanaraj in Crime Nos. 148 of 1999, 886 of 2000, 921 of 1998 and 1153 of 1998. Similarly, warrant was also obtained against the very same accused Santhanaraj in Crime No. 245 of 2001 on the file of the Muthaiapuram Police Station.

According to the petitioner, the accused in Crime No. 124 of 2006 on the file of the Chatham Police Station, namely Jeyakumar and his friend Sudalai were murdered by a police team headed by Thoothukudi Town Deputy Superintendent of Police in a fake encounter in Chennai on 11.04.2008 at the instigation of the wife and daughter of Anthoniyappa victim of the offence in Crime No. 126 of 2006. Therefore, the petitioner apprehends that while executing the P.T. Warrant for the purpose of taking the accused to be produced before the various Courts in the State of Tamil Nadu, the respondent-Police Officials might kill the accused Vimal Ananth @ Vimal and Santhanaraj @ Santhanam under the guise of encounter death. Hence, he prays for a writ of mandamus directing the respondents to protect the life of the two accused and for a further direction to the respondents not to terminate the life of V.S.Vimal Ananth @ Vimal and Santhanaraj @ Santhanam in the name of encounter.

When the matter came up for admission on 11.03.2009, I have directed the learned Government Advocate to take instructions from the respondents and accordingly, the matter was adjourned to be posted today.

Mr. Mohammad Gouse Khan Gori, Deputy Superintendent of Police, Thoothukudi Town Range, Thoothukudi District, the fifth respondent in the writ petition, who is present in Court today, filed a counter-affidavit denying the various allegations made by the petitioner in the affidavit filed in support of the writ petition. According to the fifth respondent, the respondents were only interested in taking the accused to be produced before the various Courts in the State of Tamil Nadu, in connection with the criminal cases registered against them. The counter-affidavit would state that the accused are hardened criminals involved in various crimes registered in different Police Stations in the State of Tamil Nadu and more particularly, in the District of Thoothukudi. It was further averred that the other two accused involved in Crime No. 124 of 2006 attacked the Police Team during transit which resulted in their death as the officials who have accompanied the said accused were attacked and one Sub-Inspector and a Constable suffered serious injuries in the said attack. It was also averred by the fifth respondent that necessary police escort would be given for bringing the accused Vimal Ananth @ Vimal and R.V. Santhanaraj @ Santhanam from Andaman to Thoothukudi. In such circumstances, the fifth respondent has stated that there was no basis for the apprehension raised by the petitioner and prays for dismissal of the writ petition.

Heard the petitioner who appeared in person as well as Mr. D. Sasikumar, learned Government Advocate appearing on behalf of the respondents. The fifth respondent was also heard through the Government Advocate.

The writ petition has been preferred by the petitioner on the ground that two other accused involved in Crime No. 124 of 2006 on the file of the Chatham Police Station were killed in a fake encounter at Chennai on 11.04.2008 and the two accused, Vimal Ananth @ Vimal and R.V.Santhanaraj @ Santhanam who are also involved in Crime No. 124 of 2006 might be given the same treatment by the Police.

Article: 21 - Salutary Provision:

Protection of life and personal liberty of a person is guaranteed by the Constitution of India. Article 21 of the Constitution of India is one of the novel provisions of the Constitution and this Article occupies prime position in part-III of the Constitution. The scope of this Article has been widened over these years and the far-reaching decisions of the Supreme Court has attributed much to the development of law in the matter of personal liberty. The term "life" means a meaningful life and not just an animal existence.

The main object of the salutary provision of Article 21 is to ensure the personal liberty of persons and to see that life or liberty is not deprived except by way of a procedure known to law. Any such procedure which deprives a person of his life or personal liberty must be fair, just and reasonable. Strict adherence to the procedure is a must before causing injury to the personal liberty of a person. As observed by the Hon''ble Supreme Court in Munshi Singh Gautam (D) and Others Vs. State of M.P., , there is an inbuilt guarantee against torture or assault by the State or its functionaries.

The Hon''ble Supreme Court in Dalbir Singh Vs. State of U.P. and Others, in the context of custodial violence and the possible violation of Article 21 observed thus:

Article 21 which is one of the luminary provisions in the Constitution of India, 1950 (in short the ''Constitution'') and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The Article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 (for short the ''Code'') deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Article 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is therefore difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system. The community rightly gets disturbed. The cry for justice becomes louder and warrants immediate remedial measures. This Court has in a large number of cases expressed concern at the atrocities perpetuated by the protectors of law. Justice Brandies''s observation which have become classic are in following immortal words:

Government as the omnipotent and omnipresent teacher teaches the whole people by its example, if the Government becomes a law breaker, it breeds contempt for law, it invites every man to become a law into himself. (in (1928) 277 U.S.438, quoted in (1961) 367 U.S. 643 at 659).

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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 civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/under-trial 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.

There is nothing on record to show the alleged conspiracy hatched by the police officials to eliminate the two accused. However, it cannot also be said that the apprehension was without any reasonable cause or basis, as the petitioner was moved by the death of two other accused involved in the very same crime. According to the police, the two other accused were killed, as they attacked the police party when they were attempted to be taken into custody. The circumstances leading to the death of those two accused is not the subject matter of the present Writ Petition, except for the limited purpose of justifying the case of a reasonable apprehension in the mind of the petitioner for filing the present Writ Petition.

The fifth respondent in paragraph-7 of the counter-affidavit has stated that it was only on account of the attack made by the accused Jeyakumar and Sudalai, while the police were attempting to arrest them which made the police force to act in self-defence and which ultimately ended in the death of those two accused. In the present case, the question of the two accused possessing any weapon does not arise, as the police has to take them into custody from the prison at Protharpur, where the accused are stated to be detained at present. It was only for avoiding such attack by the accused that the fifth respondent has given an undertaking in the counter-affidavit that while escorting the accused from Protharpur to Tuticorin, sufficient number of police officers and men would be sent to Protharpur. Therefore, the fifth respondent in whose jurisdiction the accused had to be produced has fairly conceded that all the precautions would be taken to bring the accused to Tuticorin in a safe manner. When the police themselves have agreed for granting permission to the lawyers to accompany them during transfer from Protharpur to Tuticorin and to give adequate security to the accused, I have no reason to doubt their bona fides. However, in order to ensure that the accused does not carry any weapon with them, the fifth respondent is directed to conduct a personal search of the accused in the presence of a responsible official in the service of Andaman Administration and a copy of the mahassar shall be delivered to the learned Magistrate, who has issued the PT warrant. The fifth respondent shall also scrupulously follow the undertaking given in para-7 of the counter-affidavit by deputing sufficient number of police officers and men for the security of the accused during transit. The fifth respondent is further directed to produce the accused before the learned Magistrate where the First Information Report against the accused is pending and in respect of which, the PT warrant has been issued, within a reasonable time of arrival at Tuticorin. The fifth respondent shall also take earnest efforts for a safe landing of the accused in Tuticorion in the wake of the apprehension raised by the petitioner.

The writ petition is disposed of with the above direction. Consequently, M.P. (MD) No.1 of 2009 is closed. No costs.