IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.3.2012
CORAM:
THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
Writ Appeal No.1023 of 2001
Mrs.Nirmala ... Appellant
Vs.
1.State of Tamil Nadu,
rep.by its Secretary to Government,
Home Department,
Fort St.George,
Chennai-600009.
2.The District Superintendent of Police,
Dharmapuri District at Dharmapuri.
3.The Deputy Inspector General of Police,
Special Task Force,
O/o.Director General of Police,
Kamarajar Salai,
Chennai-600009.
4.The Deputy Superintendent of Police,
'Q' Branch CID.,
Dharmapuri Range,
Thirupattur,
Vellore District.
5.The Inspector of Police,
Marandahalli Police Station,
Dharmapuri District.
6.The Revenue Divisional Officer,
Krishnagiri,
Dharmapuri District.
7.The Central Bureau of Investigation,
Shastri Bhavan,
Chennai-600006. ... Respondents
* * *
Writ Appeal preferred under clause 15 of the Letters Patent, as against the Order of the learned single Judge dated 9.6.2000, made in W.P.No.1886 of 2000.
* * *
For appellant : Mr.R.Sankarasubbu
For R1 to R6 : Mr.LSM Hassan Fizal,
Govt.Advocate
For R.7 : No representation
* * *
JUDGMENT
ELIPE DHARMA RAO, J.
The appellant, an Assistant Professor in Law at Andhra University, Visakhapatnam, is the wife of K.Ravinder, who, according to her, was done to death in a fake encounter on 10.1.2000 by the Tamil Nadu Police.
Therefore, alleging brutality and messing up things by the police and other higher officials, with an intention to screen the offenders in killing of her husband and further pleading utter violation of human rights, the appellant has filed W.P.No.1885 of 2000 before this Court, praying to award her a compensation of Rs.10 lakhs for the death of her husband and for the illegal detention, torture etc.
She has also filed W.P.No.1886 of 2000, praying to register a case under Section 302 IPC against all the police officers and policemen, including 'Q' Branch CID, Dharmapuri, Special Task Force, who participated in the search operation that led to the death of her husband K.Ravinder and handover the investigation to Central Bureau of Investigation, as laid down in the recommendations of the National Human Rights Commission, vide their letter dated 22.3.1997, addressed to all the Chief Ministers.
2. Both the above said writ petitions were dismissed by a learned single Judge of this Court, by a common order dated 9.6.2000.
Aggrieved against the decision of the learned single Judge, in rejecting her prayer in W.P.No.1886 of 2000 (with regard to registration of case against the police officials and transfer of investigation to CBI), the appellant has come forward to file the present writ appeal. And, as against the dismissal of W.P.No.1885 of 2000 (with regard to grant of compensation),
the appellant had filed W.A.No.1024 of 2001. However, the said W.A.No.1024 of 2001 was dismissed by the First Bench of this Court, by the judgment dated 16.7.2001, observing as follows:
"5. We have heard the learned counsel appearing for the appellant and perused the materials on record. No doubt in an appropriate case, in the matter of custodial death, this Court can consider to grant compensation to the aggrieved. But in the instant case, the learned single Judge had found that this is not a case of custodial death. No clinching evidence had been placed on record. Therefore, we do not find any good ground to interfere with the order of the learned single Judge. The writ appeal is dismissed. No costs. However, after getting the report of the Central Bureau of Investigation pertaining to this matter, the appellant is free to approach the appropriate forum to seek remedy in accordance with law...."
3. The case of the appellant, in the affidavit filed before the learned single Judge, is that her husband Ravinder was working as Junior Engineer in the Department of Telecommunications since 1982 and his honest service and fighting nature against corruption and nepotism, has gained him the wrath of corrupt officials and some politicians, as a result, ultimately, he resigned his services on 5.4.1997 and proceeded to work for the toiling poor.
4. She further submitted that her husband involved in exposing the police excesses in Dharmapuri District and participated in the enquiry conducted by 'Peoples' Union of Civil Liberties (PUCL)' regarding police excesses during the year 1994 in Dharmapuri District; that on 25.1.1994, her husband went to Hosur Judicial Magistrate Court No.2 in order to get the release of some innocent persons who were falsely implicated by Police in a criminal case and while her husband was going near the said Court, one Muthamil Muthalvan, the Sub Inspector of Police, Hosur arrested him and kept him in illegal custody for more than six days and finally on 1.2.1994, at about 11 am, her husband was produced before the Court and he complained to the Magistrate about his illegal detention and torture by the Police and the same was recorded by the Magistrate in the remand report dated 1.2.1994. She further submitted that H.C.P.No.212 of 1994 was filed before this Court by a friend of her husband, seeking to produce the said Ravinder before the Court, citing the said Muthamil Muthalvan as the third respondent; that in spite of notice, the said Sub Inspector did not appear before the Court and this court, by the order dated 2.8.1994 has directed that the said Sub Inspector shall be taken into custody and produced before Additional Chief Judicial Magistrate Chennai.
5. The appellant/petitioner further stated that her husband had also sought for a direction from this Court for a judicial enquiry into his illegal detention and for punishing the concerned police officials; that he had also filed H.C.P.No.704 of 1994 before this Court, seeking for a judicial enquiry into the conditions of the inmates lodged in the Salem Central Jail and in particular the treatments meted out to one M.Palanisamy (C.No.4448), G.Iyyappan (C.No.4299); Perumal, Balamurugan and Dakshinamoorthy, further seeking suitable compensation for the ill-treatment meted out to the above persons at the Salem Central Jail.
6. The appellant/petitioner further submitted that since her husband was very active in exposing the police excesses, the 'Q' Branch CID Police, had been continuously trying to stifle his voice and there had been serious threats to his life; that after submitting his letter of resignation to his Government service, her husband associated himself with the agricultural workers, poor students and labourers of Dharmapuri District and was working within the framework of the Constitution of India and never indulged in any activity prejudicial to the maintenance of law and order or public order; that her husband was an activist of 'Uzhavar Uzhaipalar Mamandram', a mass organisation aimed at organising poor peasants and thus took up their cause for five years preceding his death; that he has been organising the peasants in a peaceful manner educating about their rights; that while so, 'Uzhavar Uzhaipalar Mamandram' and its activists in Dharmapuri District had taken a month long propaganda against price rise, globalization, reduction of subsidies to peasants etc. and as a part of the said propaganda, the husband of the appellant along with one S.Siva @ Parthiban, Kumar and Ramachandran of Pallam village, Dharmapuri District conducted a cultural programme in the village and also addressed a meeting.
7. The appellant further submitted that on the request made by the village elders, her husband and other activists of the Mamandram stayed in the said village on the night of 6.1.2000; that on 7.1.2000, the 'Oor Gounder' (community leader) of the village invited them to his hut, which is situated half-a-kilometer away from the village; that her husband and others had their breakfast in the morning and at about 11.30 am, when they were about to leave the said hut, policemen belonging to Special Task Force, numbering about 25, encircled her husband and the three other activists and the Police were able to capture her husband and one Siva @ Parthiban; that the police continuously kicked her husband and the said Siva, by abusing them in a most filthy language; that their hands and eyes were tied and they were taken to an unknown destination; that her husband and his colleague Mr.Siva were kept in illegal custody for two days from the evening of 7.1.2000 to 9.1.2000; that the 'Q' branch CID Police, Dharmapuri District adopted all kinds of third degree methods to obtain some information from her husband; that her husband and his associate Siva @ Parthipan were beaten black and blue and they were treated in a most inhuman manner; that subsequently, on 10.1.2000, at about 11.30 am, her husband and the said Siva @ Parthipan were again brought to the hut of 'Oor Gounder' at Perunkadu village and her husband was fired at close range in the presence of the said Siva @ Parthiban; that at about 7.00 pm, on 10.1.2000, the body of her husband was brought to Marandahalli Police Station along with the said Siva @ Parthiban and the police in Dharmapuri put up a false story that her husband who was arrested on 7.1.2000 (Friday) in connection with the burning down of a transport bus was shot dead, while he was attempting to escape from their custody.
8. The appellant further stated that the same police came out with another story that her husband was shot dead as a retaliatory measure against two rounds of firing by him when he was attempted to be taken into custody in the bus burning case; that the versions of Police, as reported in Press, were contradictory to each other and gives scope for suspicion about the claims of Police regarding the death of her husband; that one version, as reported in the evening daily 'Malai Murasu', dated 11.1.2000 reveals that her husband was arrested on 7.1.2000, but was shot dead while attempting to escape from the custody, whereas, another version says that her husband initially fired two rounds at the police and as a retaliatory measure, the police shot him dead; that the leading Tamil daily newspaper 'Dinamalar' stated that her husband was arrested in a search operation and was shot dead; that the Inspector General of Special Task Force Mr.Balachander reported that her husband was equipped with modern arms and ammunitions and he was a military trained person, whereas the newspaper 'Hindu' dated 11.1.2000 carried a statement of the Superintendent of Police, Dharmapuri Mr.P.Kandasamy that her husband was shot dead while he was surrounded by the police in full view of and with the support of the local people. The appellant would submit that all these versions carry the contention of the police that her husband was shot dead in retaliation and hit from the back, whereas the first port-mortem report, as reported in the press reveals that a bullet pierced into his chest and came out through his back and it was also revealed that he was shot dead at point blank range. The appellant would submit that Dharmapuri district police were motivated to kill her husband as he was engaged in exposing police excesses.
9. The appellant further submitted that a joint fact finding team of various human rights organisations led by Peoples' Union for Civil Liberties, consisting of various eminent personalities visited the place of occurrence and other areas where her husband was working and the said team has also met various officers of the District, including the second respondent herein and the said team, in its report, dated 25.1.2000 has found that the version of police that Ravinder was killed in exchange of fire is an unadulterated lie and they have demanded that the police party which participated in the alleged encounter must, immediately, be booked under Section 302 of IPC and brought to trial; that the fact finding team has further found that there are number of contradictions in the police records.
10. The appellant further submitted that Sections 96, 97 and in particular 100 of IPC allow for the causing of death in self-defence and Section 46 of the Cr.P.C. allows the police to use force during arrest, provided the accused forcibly resists arrest, but Section 46(3) Cr.P.C. clearly states that 'nothing in this section gives right to cause death of a person who is not accused of offence punishable with death or imprisonment for life' and hence the Police cannot decide for itself that the right to self-defence is justified; that however, in the instant case, the report of the police states that her husband was shot dead in self-defence against two rounds of firing by him and the Inspector of Marandahalli Police Station accepts the Police version and concludes that no offence was committed by the Police, he has however registered an FIR against her deceased husband K.Ravinder, Siva @ Parthiban and two others who are said to have escaped, for the offences punishable under Section 332 and 307 IPC r/w.25(1)(a) of the Arms Act and Section 3 of the Explosive Substances Act and Section 10 of PODA r/w.174 Cr.P.C. and in every case of death at the hands of Police, Magisterial enquiry under Section 176 Cr.P.C., ought to have been conducted and the relative of the deceased and other persons who have knowledge about the cause of the death must have been enquired, but in the instant case, no such enquiry was conducted, which makes it evident that the police of Dharmapuri district sits on judgment of their own action.
11. Placing reliance on the recommendations of the National Human Rights commission, in their letter dated 19.3.1997, the appellant further stated that Mr.Siva @ Parthiban was also tortured in a most inhuman manner by respondents 2 to 5 in order to obtain a statement from him to the effect that deceased K.Ravinder was killed in an encounter and that her husband was brutally tortured by the police, which is evident from the photographs taken by her before cremating his body.
12. The respondents have filed a detailed counter affidavit, both before the learned single Judge and also before us in this writ appeal. The respondents, while denying all the allegations of the petitioner/appellant, would contend that originally, the appellant's husband Ravinder was working as Junior Engineer in the Telecommunication Department, and he started to participate in Union activities and then attracted by communist revolutionary ideas, was irregular in attending the official work and then from 4.8.1994 absented himself without applying for any leave or submitting any resignation letter; that while he was serving at Mysore, he was not having good rapport either with the officers in the department or with the contractors who were executing the Telecom Department work; that from the year 1994 or so, he shifted his place of operation to Dharmapuri district and in the beginning he joined as a member in the organisation called Radical Youth League, subsequently, after developing contacts with the naxalites in Andhra Pradesh, under the name of Peoples War Group, he became an extremist; that under the guise of fighting for the cause of poor and exposing the administration/Government, he started mobilising innocent villagers to join him, to form an extremist group and he had succeeded in creating a second line of leaders, like Boothipati Ramachandran, Siva @ Partheeban, Kumar, Palanisamy, Kalidoss, Chinnathambi and many others in different villages, namely, Pennagaram, Hogenakkal, Boothipatti, Kullatharampatti, Naickenkottai, Natham colony and in the hill areas like Balluhalli, Parungadu, Kotturmalai, Erimalai in Dharmapuri district.
13. They would further state that the said Ravinder, after getting training in use of arms like country made pistols and in making bombs, in turn, was giving training to his second line leaders of the extremist group to use arms, to make bombs and to use weapons; that first he started threatening the villagers intervened in the civil disputes arising between the farmers and the land owners and doing 'katta panchayat' (kangaroo courts) and created a sense of terror in the minds of the land owners and in such unlawful activities, five cases were registered against him and his associates and except in one case, he was not arrested in the other cases; that to strengthen his extremist activities, he and his associates have illegally obtained country made pistols (arms and ammunition possessed them) without any licence and used them while committing the offences for which cases were registered earlier.
14. It has further been stated in the counter that the said Ravinder used to conduct meetings in the villages and force them to join his extremist group to revolt against the Government by giving provocative and instigating speeches and used to distribute leaflets to the villagers inciting the people to indulge in violence; that the killing of Shiyam, Mahesh and Murali, the members of Peoples War Group in Andhra Pradesh, in police encounter on 20.12.1999 was the main cause for the Ravinder Group to organise some protest in Dharmapuri, Pennagaram area , so that the presence of his extremist group would be felt by Tamil Nadu also and hence Ravinder and his associates hatched a conspiracy to burn buses belonging to Tamil Nadu Government; that in pursuance of the said conspiracy, Ravinder @ Sakthivel with his associates Ramachandran, Palanisamy, Siva @ Partheeban and others set fire to Tamil Nadu State Transport Corporation Bus bearing No.TN-29N-809 at 7.00 pm on 26.12.1999 by pouring petrol and oil and based on the complaint of the conductor, a case in Cr.No.235/1999 was registered by Hogenakkal Police; that on the same day i.e. on 26.12.1999 at about 10 p.m., Ravinder's associates Kalidoss, Chinnathambi and others, armed with Koduval, gun, petrol and oil cane, boarded the bus bearing No.TN-29N-0771 at about 10.45 pm. at Ariaakulam and threatened the passengers, driver and conductor and then set fire to the said bus with petrol and kerosene, regarding which a case in Cr.No.1370/1999 was registered on the file of Mathikonpalayam Police Station; that all the said extremists have been continuously changing their hideouts in the hilly forest areas and evaded arrest by the police party; that a special party was formed by the second respondent to nab the said Ravinder and his associates and the police party have set up informants in different villages to know about the hideouts and the movements of Ravinder and his associates.
15. The further case of the respondents is that on information, on 10.1.2000, the police party came to know that Ravinder and his three associates had visited Perunkaddu village on 9.1.2000 and were taking shelter in a hut, half km. away from the village; that the police party had also received reliable information that the said Ravinder and his three associates were in possession of weapons and bombs and therefore, the police party along with the informant and few villagers went towards the said hut cautiously to arrest the said Ravinder and his three associates; that at about 10.30 a.m., when the police party neared the hut, a dog barked and so Siva @ Partheeban came out of the hut and on seeing the police party coming towards them in different directions, Ravinder and his three associates came out of the hut and in spite of the warning given by the police party to surrender, Siva @ Partheeban opened fire towards the police party, but the members of the police party tactfully avoided the gun shot and a constable pounced upon Siva @ Partheeban and snatched the country made pistol, but the other associate who was captured by the same constable, somehow escaped from his clutches, ran and stood along with Ravinder and immediately Ravinder, armed with a shot gun, opened one round of 12 bore (65 mm) catridge towards the Inspector Rajendran and others, which was avoided by Rajendran by rolling down and at that time, the other accused who was standing near Ravinder, armed with a country pistol, fired one round against police party and it did not hit anybody; that the said Ravinder again tried to shoot the public and the police party and again trying to load the gun and to make a shoot of his gun and on seeing this second attempt by Ravinder, immediately the Special Task Force constables who were positioned in different directions realised the situation and by way of self-defence, to save the life of other members of the special party and the public nearby and since the act of the accused, Ravinder aiming to shot the police party caused reasonable apprehension in the minds of three constables that the act of the accused will result in death of either member of the police party or the public nearby, opened fire of 14 rounds in A.K.47 and SLR and killed Ravinder @ Sakthivel; that the entry wound was on the left back of the said Ravinder @ Sakthivel and exit wound on the right chest and immediately the other two persons ran away and vanished into the hill and hence a case in Cr.No.27/2000 under Sections 332, 307 IPC and section 25(1)(a) of the Arms Act, Section 3 of the Explosive Substances Act, Section 10 of PODA Act and and Section 174 Cr.P.C. was registered on the file of Marandahally Police Station, based on the complaint of Rajendran, Inspector of Denkanikottai and since death of an accused person is caused in police action, as per Police Standing Order 145, an inquiry was ordered by the Collector of Dharmapuri District and so the Executive First Class Magistrate/Revenue Divisional Officer, Krishnagiri started his enquiry immediately. On such grounds, the respondents would say that it is not at all a fake encounter as is being branded on the part of the appellant and justifying the order of the learned single Judge on more than one front, they would pray to dismiss this writ appeal.
16. Elaborate arguments have been advanced on either side before us, re-affirming the contents of the affidavit and counter affidavit, as the case may be.
17. Mr.R.Sankarasubbu, the learned counsel appearing for the appellant would argue that it is nothing but a cold blooded murder of a rights activist by the Police, concocting a story of extremism and violent attack by the deceased. The learned counsel would argue that not only the deceased, but also Siva @ Partheeban were kept in illegal custody by the police and after continuous ill-human treatment and torture meted out to them, Ravinder was done to death by Police from a point blank range, for which Siva @ Partheeban was the eye-witness, who has submitted a sworn-affidavit to this Court, a copy of which is available in the typed set of papers. He further submitted that subsequently, even the above said Siva @ Partheeban was shot dead, in another fake encounter by the Anti Naxalite Squad headed by Mr.Ekanathan, Inspector of Police, 'Q' Branch, Dharmapuri on 24.11.2002 at 1.30 pm in Slaijohipatti village of Dharmapuri District, in order to suppress the truth.
18. The learned counsel would further argue that even in the RDO enquiry conducted as per Police Standing Order 145, the statement of the above said Siva @ Partheeban was not taken into consideration. The learned counsel would submit that the enquiry conducted and report submitted under PSO 145 does not have any evidentiary value as the said provision is only directory in nature. The learned counsel would submit that if this type of fake encounters are encouraged and the culprits of the offence are left unpunished, the very roots of the democracy will be ruined. In support of his arguments, the learned counsel would rely on the following judgments:
1. THE STATE OF ANDHRA PRADESH vs. N.VENUGOPAL AND OTHERS [(1964) 3 SCR 742 = AIR 1964 SC 33];
2. R.S.SODHI vs. STATE OF U.P. AND OTHERS [1994 SUPP.(1) SCC 143];
3. RUBABBUDDIN SHEIKH vs. STATE OF GUJARAT AND OTHERS [(2010) 2 SCC (Cri) 1006];
4. THE STATE OF MAHARASHTRA vs. FAROOK MOHAMMED KASIM MAPKAR AND OTHERS [2010 (6) SUPREME 95] and
5. K.G.KANNABIRAN vs. CHIEF SECRETARY, GOVT.OF A.P. AND OTHERS [1997 (4) ALT 541].
19. In the first judgment cited above, a Three Judge Bench of the Honourable Apex Court, dealing with the point of legal validity of the enquiry under Police Standing Order 145, has held as follows:
"It is contended that the provisions of the Code of Criminal Procedure for investigation of crime are superseded by this Standing Order and so the investigation by the Inspector, CID, was illegal. In our opinion, there is no substance in this argument. It appears to us that this Standing Order is nothing more than administrative instructions by the Government of Madras and has not the force of law. It is worth noticing in this connection that in the Madras Police Standing Orders as published by the Government of Madras it is mentioned in the prefatory note that the orders marked with asterisk were issued by the Inspector-General of Police under Section 9 of the Madras District Police Act. The Standing Order 145 is not marked with asterisk and it could be safely held that it was not issued under Section 9 of the Madras District Police Act. The marginal note against the order as printed shows that it was issued by a Government Order of the Home Department dated October 12, 1955. It does not appear that this was done under any statutory authority. There can be no doubt that quite apart from the fact that the Government may and often should issue instructions to its officers, including police officers, such instructions have not however the authority of law. We are not satisfied therefore that the Standing Order 145 had the force of law.
24. We are further of opinion that, in any case, the requirement of this order was merely directory and not mandatory. Non-compliance with the provisions of this Order therefore does not make the investigation of the case illegal."
20. In the second judgment cited above, reported in 1994 Supp.(1) SCC 143, dealing with a case pertaining to an incident which had taken place at Pilibhit on September 12/13, 1991 in which ten persons were reported to have been killed in what were described as 'encounters' between the Punjab Militants and the local police, wherein investigation by an independent agency was requested by the kin of the deceased and the State Government objected to such course in view of its action in handing over the investigation to an officer of IG level and transferring the suspected local police officers for unhindered inquiry and further claiming that the investigation to be within its exclusive domain, the Honourable Apex Court has held as follows:
"We have examined the facts and circumstances leading to the filing of the petition and the events that have taken place after the so-called encounters. Whether the loss of lives was on account of a genuine or a fake encounter is a matter which has to be inquired into and investigated closely. We, however, refrain from making any observation in that behalf; we should, therefore, not be understood even remotely to be expressing any view thereon one way or the other. We have perused the events that have taken place since the incidents but we are refraining from entering upon the details thereof lest it may prejudice any party but we think that since the accusations are directed against the local police personnel it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. However faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them. It is only with that in mind that we having thought it both advisable and desirable as well as in the interest of justice to entrust the investigation to the Central Bureau of Investigation forthwith and we do hope that it would complete the investigation at an early date so that those involved in the occurrences, one way or the other, may be brought to book. We direct accordingly. In so ordering we mean no reflection on the credibility of either the local police or the State Government but we have been guided by the larger requirements of justice. The writ petition and the review petition stand disposed of by this order"
21. In the third judgment cited above, reported in (2010) 2 SCC (Cri) 1006, in an alleged case of fake encounter of one Sohrabuddin by officials of Gujarat Police and the disappearance of his wife Kausarbi, under mysterious circumstances, at the hands of the Anti Terrorist Squad, Gujarat Police and Rajasthan Special Task Force, on a petition filed by the brother of the deceased apprehending that fair and impartial investigation was not conducted because high officials of Gujarat Police were involved in this case and prayed that the case should be transferred to Central Bureau of Investigation and the respondent State submitted eight action taken reports which were reviewed by the Supreme Court, the Honourable Apex Court, considering two issues, (i) whether investigation could be transferred to CBI authorities after charge-sheet had been submitted and trial was going on and (ii) whether facts and circumstances of the case warrant transfer of the case to CBI because investigation had not been conducted properly by State police authorities, has held that case could be transferred to CBI even at the stage when the charge sheet had been filed, since high officials of State Police were themselves involved and investigation had not been conducted properly by State Police.
The Honourable Apex Court's observations are as follows:
"It is not possible to accept that investigation at this stage cannot be handed over to CBI Authorities or any other independent agency. The accusations are directed against local police personnel in which high police officials of the State of Gujarat have been made the accused. It is proper for the writ petitioner or even the public to come forward to say that if the investigation carried out by police personnel of the State of Gujarat is done, the writ petitioner and their family members would be highly prejudiced and the investigation would also not come to an end with proper finding, and if investigation is allowed to be carried out by local police authorities, all concerned including relatives of the deceased may feel that investigation was not proper, and in those circumstances, it would be fit and proper that the writ petitioner and relatives of the deceased should be assured that an independent agency should look into the matter, and that would lend the final outcome of the investigation credibility, however faithfully the local police may carry out the investigation, particularly when gross allegations have been made against high police officials of the State of Gujarat, and for which some high police officials have already been taken into custody. In an appropriate case when the Court feels that investigation by police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the Court to hand over investigation to independent agency like CBI. In an appropriate case, the court is empowered to hand over investigation to an independent agency like CBI even when charge-sheet has been submitted."
"The scope of this order is not to deal with the power of the Supreme Court to monitor investigation but to make sure that justice is not only done but is also seen to be done. Considering involvement of State police authorities and particularly eight officials of State of Gujarat, the Supreme Court is compelled to direct CBI Authorities to investigate into the matter even after the charge-sheet has been filed. Since high officials of the State are involved and some of them are already in custody, it would not be sufficient to instil confidence in the minds of victims as well as public that still the State police authorities would be allowed to continue with investigation when allegations and offences are mostly against them."
"The Court cannot shut its eyes and allow State Police authorities to continue with the investigation and charge-sheet. For proper and fair investigation, CBI is directed to take up investigation and submit a report to the Supreme Court within six months...."
22. In the fourth judgment cited above, reported in 2010(6) Supreme 95, the Honourable Apex Court, has upheld the direction issued by the Bombay High Court ordering CBI investigation into an offence committed on 10.1.1993 near Hari Masjid, Mumbai, holding that investigation by the STF being partisan and one-sided, High Court was justified in ordering investigation by CBI.
23. In the fifth judgment cited above, a Division Bench of the Andhra Pradesh High Court, while dealing with the case of encounter of one T.Madhusudanraj Yadav, Secretary of an organisation-not banned, by police as a Naxalite, has held that 'if death is caused while apprehending an accused by firing at him, it amounts to commission of offence of culpable homicide within the definition of Section 299 IPC. In such cases, even if the action of the police is excusable and justifiable for any reasons, a case has to be registered for the said offence and investigation be made in accordance with law by competent authorities.' It has further been held:
"The guarantee under Article 21 of the Constitution of India and also the words 'procedure established by law' are not ineffective and lifeless but are expressions of the faith of the people who have sanctioned interference with the life of a person only by a procedure which is reasonable, fair and just."
"It is difficult even to imagine that Police Officers who used fire-arm to hit at the body of Madhusudan Raj Yadav were not aware that by such act they were likely to cause his death. Of course, what they did had a justification or not and, although falling within the definition of an offence, the act by them is excusable or not are matters which shall be dealt with but only when the truth or otherwise of their plea is tested in accordance with law. It will neither be correct nor proper at the outset to ignore altogether the act of the commission of the offence and not to register a case at all of a homicide at the hands of the police personnel who allegedly fired at Madhusudanraj Yadav. There are good reasons to hold at this stage that on the statement of the same very police personnel who have alleged that Madhusudanraj Yadav fired at them but caused no injury by the fire-arm, and that they fired at him and as a result, Madhusudanraj Yadav got fatal injuries, a case should have been registered and investigated in accordance with law by the competent authorities. Court is not impressed, however, by the demand of the petitioner for appointment of a Commission of Inquiry nor is the Court impressed by the appointment of a Commission by the Government of the State of Andhra Pradesh. There can hardly be a proper recording of evidence or proper approach to the problem if witnesses and the persons who know about the occurrence are left at their will to report to the Commission and give evidence. Any Commission of Inquiry is never a proper and adequate substitute for a fair and impartial investigation of the offence and a charge brought to the Court by a competent agency so that Court has all informations available and the court is in a position to judge about the truth or otherwise of the allegations of the prosecution as well as the defence. Court does share the concern, however, of the petitioner that it is high time that Section 30 of the Protection of Human Rights Act is invoked in the State of Andhra Pradesh as well as steps are taken for appointment of a State Commission so that the people may have some forum where they can go with their reports and grievances of violation of Human Rights as defined under the said Act and there is some mechanism of redressal which is independent and fair operating in the State. Before, however, Sessions Judges are empowered to act as Human Rights Courts and before however, other steps are taken to introduce in the State an independent system for the protection of human rights, the normal law must take its course and if nothing else is possible to do, a case is registered and is investigated by an independent and impartial agency."
"No person in authority who discharges his duties honestly and fairly should ever have any apprehension in placing all that is true about his activities before any other authority. A person, who acts fairly and honestly, can have no fear of being indicted by another fair and honest authority. There is no reason to call the State police unfair or dishonest. But there are good reasons to order that the case of assault by the police personnel upon Madhusudanraj Yadav should be registered and investigated by some independent agency and not by any person connected with the Andhra Pradesh Police...."
24. It is to be noted that after pronouncement of the above judgment by the Division Bench, the Government of Andhra Pradesh, in exercise of its powers conferred by Section 30 of the Protection of Human Rights Act, 1993, has issued G.O.Ms.No.46, Home (General-C) Department, dated 1.2.1996, specifying the Courts of Chief Judicial Magistrates in all Districts and Courts of Chief Metropolitan Magistrates as Human Rights Courts in Andhra Pradesh.
25. It will not be out of place for this Court to mention that even in Tamil Nadu, Human Rights Courts were designated, pursuant to an Order issued by the Government, in exercise of its powers under Section 30 of the Protection of Human Rights Act.
26. In reply to the arguments of the learned counsel for the appellant/petitioner, on the part of the respondents 1 to 6, the learned Government Advocate would argue that the deceased is a notorious criminal and absconding the process of law and himself along with his colleagues involved in number of criminal cases and a special team was formed to apprehend them and in the operation, while the deceased Ravinder opened fire with 12 bore (65mm) gun towards the police party, the police by way of self-defence and also to protect the life of other villagers, had to open fire towards the accused in A.K.47 and SLR, which resulted in the death of only one accused and the police party was able to arrest only one co-accused and two other accused persons escaped, which reveals the fact that the police party have acted in a restrained manner, without violating the human rights and used the police power only to the extent which was required at that time.
27. It has further been submitted on the part of the respondents 1 to 6 that the Revenue Divisional Officer, Krishnagiri who conducted the enquiry into the police encounter has concluded that the police firing was justified which was endorsed by the District Collector, Dharmapuri and the Government has accepted the enquiry report and dropped further action in the matter. It has further been submitted that it is well proven case of extremist activity related encounter which has caused the death of the deceased Ravinder and the incident is legitimate and encounter firing is well justified. The learned Government Advocate would further argue that the learned single Judge has properly analysed all the facts and circumstances of the case and has arrived at an unerroneous conclusion of rejecting the plea of the appellant/petitioner and hence, no interference is needed into the said order of the learned single Judge.
28. Though there is no representation before us on the part of the seventh respondent/CBI, as could be seen from the order of the learned single Judge (in Para No.10), their only objection to the prayer of the appellant/petitioner is that their agency is already over-burdened and the State machinery is more suited with the expertise knowledge on the subject and that their agency will not be in a position to undertake any investigation.
29. We have given our careful and anxious consideration to all the points urged on either side.
30. The fact that the deceased Ravinder was dead in police firing is not in dispute, but the manner in which he met the Mentor is in peak of dispute. While the police claim that the deceased, an accused in several cases, opened fire, when the police party attempted to nab him, it has been strenuously argued on the part of the appellant/petitioner that the entire episode narrated by the police is nothing but a cock and bull story, invented solely with a view to screen the offence and protect the offenders, who have killed the deceased in a fake encounter.
31. In this scenario, the respondents 1 to 6 have drawn support from the report of the Revenue Divisional Officer, who conducted an enquiry under PSO 145 and submitted his report, which was ultimately accepted by the Government. Therefore, at this juncture, the legal question that would arise for consideration is about the extent of validity of Police Standing Order 145.
32. No doubt, in the case on hand, Revenue Divisional Officer has conducted an enquiry and submitted a report, a copy of which has been made available before us by the respondent. In the report, the Revenue Divisional Officer has concluded that the gun shot took place accidentally, that the police officers did not act with prejudice and if the police officers had not fired in that manner, heavy loss of life would have occasioned through the bombs which the accused possessed and has, thus, justified the action of the police. The very report and the manner of enquiry conducted by the Revenue Divisional Officer, are termed as 'biased' by the appellant/petitioner, besides arguing that such an enquiry and the report cannot have any legal force and hence neither binding nor reliable, for this Court to accept the prayer of the petitioner/appellant.
33. The Three Judge Bench of the Honourable Apex Court, in State of Andhra Pradesh vs. N.Venugopal and others [(1963) 3 SCR 742], has dealt with the issue of extent of validity of Police Standing Order 145 and we have already extracted the observations of the Honourable Apex Court supra. From this judgment of the Honourable Apex Court, it is clear that the procedure followed and the report submitted by the Revenue Divisional Officer, in terms of PSO 145, are only in the nature of administrative instructions, and, is, thus, a weak piece of evidence to nullify the doubts raised on the part of the appellant. Therefore, we cannot attach much importance to the report of the RDO at this stage, particularly to deny the prayer of the appellant/petitioner.
34. The learned single Judge has given much credence to the report of the Revenue Divisional Officer, to dismiss the claim of the petitioner. But, when the law, as declared by the Honourable Apex Court, is specific to the effect that such an enquiry and the report are only in the nature of administrative instructions, we cannot appreciate the observations made and the findings arrived at by the learned single Judge on the contra. The other aspect to be pointed out is that no Magisterial enquiry, as contemplated under Section 176 Cr.P.C. is conducted in this case. In the absence of such an enquiry, the learned single Judge ought not to have placed reliance on the report of the RDO under PSO 145.
35. With regard to the manner of incident in question, heated arguments have been exchanged on either side. While on the part of the appellant/petitioner it is argued that it is a fake encounter, on the part of the respondents, it has been maintained that it is a well proven case of extremist activity related encounter and the encounter is the result of self-defence and the swift action taken by the Police to protect the people gathered there.
36. As could be seen from the records, while it is the case of the appellant/petitioner that her husband was taken into illegal custody along with one Siva @ Partheeban and was subsequently done to death, the respondents denied the same, sticking to their own version that there was no illegal custody and the firing on the part of the police was necessitated as the deceased himself has opened the fire.
37. An affidavit of Siva @ Partheeban has been filed into this Court, which supports the case of the appellant/petitioner. The disturbing feature in this case is that even the said Siva @ Partheeban was dead in a police encounter, on 24.11.2002 at 1.30 pm. in Salaijohipatti village, Dharmapuri District, which the appellant/petitioner say as 'in the same manner as Ravinder was done to death by the police'.
38. The other disturbing feature is that after the death of the deceased, a post mortem was conducted on his corpse. This report noted the following injuries:
"1. A penetrating injury of 1/2 cm. x 1/4 cm semicircular contusion at the lower part of the wound over the L. back 7 cm away from midline in the 7th intercostal space-depth on probing communicating with the Thoracic cavity.
2. A lacerated wound of 4 x 2 cm over the 3rd and 4th intercoastal space (right) 10 cm from the midlone exposing the muscles, ribs.
3. Injury No.(1) is surrounded by 0.2 cm charring."
39. The cause and manner of death was noted as 'due to shock and haemorrhage due to blunt force injury (fire arm) to the chest under the influence of Ethyl Alchohol and death could have occurred instantaneously after sustaining injury'.
40. After this post-mortem, the petitioner/appellant has filed Crl.O.P.No.874 of 2000 before this Court, raking up doubts about the manner in which the post-mortem was conducted and praying to order re-post mortem. This Court, by the order dated 12.1.2000 has directed re-post mortem. Accordingly, second post mortem was conducted on 14.1.2000 on the body of the deceased Ravinder, which has brought to light some more injuries, as detailed below:
"1. Irregular abrasion 2.5 x 1 cm over the inner aspect of left knee.
2. Irregular abrasion 1 x 0.5 cm over the upper and outer aspect of left knee.
3. Multiple small irregular abrasions over an area of 4 x 3 cm with intervening intact skin over the inner lower aspect of left knee.
4. Irregular abrasion 5 x 4 cm over front of lower part of right knee with intervening intact skin.
5. Multiple small irregular abrasions over an area of 10 x 6 cm over the inner aspect of upper and lower part of front of right knee. Peeled epithelium seen over the inner and outer aspects. Swab taken for detection of sand particulars.
6. Laceration 1 x 0.5 cm. skin deep over right side of forehead 1 cm below the hair line.
7. Laceration 1.5 x 0.5 cm skin deep over the right side of forehead 1 cm above the right eye brow, 2 cm below the previous injury 3.5 cm away from the midline.
8. Slightly oval shaped punctured wound 0.7 x 0.5 cm over the back of left side of chest 8 cm away from midline 13 cm from the left heel, 22 cm from the middle of the shoulder 6 cm from the lower end of the left scapula 26 cm above the posterior superior illiac crest.
9. Oblique sutured wound 4 cm long on front of right side of anterior chest wall 8 cm away from midline and 8 cm below the mid clavicular point.
41. The doctors opined that 'the deceased would appear to have died of gun shot injury to the heart and lungs under the influence of Ethyl Alchohol.'
42. The injuries to both the knees of the deceased and the glaring differences between both the post-mortem reports would make us to raise our eye-brows, since no explanation, worth considering, emanated from the respondents, thus, leaving us totally unconvinced about the narration of events by the respondents, as the injuries to both the knees, probablises the version of the appellant/petitioner that the deceased might have been kneeled down before he was shot dead.
43. Further more, a complete reading of the voluminous material on record, instead of giving any clarity, would draw gloomy clouds to the story of the respondents 1 to 6 as there are many grey areas in this case - the version of each party being disputed by the other. For example:
(a) What is the true background of the police action?
(b) Whether any general public accompanied the police party. If so, why the general public accompanied the police party, who are heading for an 'operation' on a tip-off?
(c) Who is the aggressor?
(d) Who first opened the fire - whether police or the deceased or anyone else?
(e) Whether a single police constable was able to catch hold of two accused persons, that too when accused is armed with a pistol and already opened fire, according to the version of the respondents?
(f) Whether the principles of 'self-defence' are applicable to the case on hand?
(g) Whether the story of the respondents, that they have acted in self-defence and to protect the lives of many people gathered there, is true?
(h) Whether there was any illegal detention of the deceased and his accomplices, as is being alleged on the part of the appellant/petitioner, prior to the death of Ravinder?
(i) Why there are un-explained variations in the two post-mortem reports?
(j) Why no Magisterial enquiry under Section 176 Cr.P.C. was conducted?
These are only some of many other doubts hovering in our mind, about the veracity or otherwise of the version of either party.
44. When, admittedly, in the case on hand, serious accusations of killing a citizen are levelled against the Police party and when there are serious disputed questions about the version of the police, in our considered view, the learned single Judge is not right in dismissing the claim of the petitioner/appellant.
45. This Court firmly believes that the judiciary holds the centre stage in promoting and strengthening democracy, human rights and the rule of law.
46. There cannot be any doubt that the culprit should not be left unpunished. But, does it mean that the Police - the protectors - could presume and assume unto themselves the punishing power in a cruel and ghastly manner? This Court firmly believes that crossing of the 'Lakshman Rekha' by any authority, particularly in the manner of shaking the confidence of the people in the entire system of democracy, should be dealt with iron hands.
47. In recent days, there is quite impatience and unrest among some sections of the society, seeking 'instant or on the spot justice', thus provoking and prompting authorities, particularly the law protectors, to cross this 'Lakshman Rekha', and violate the laws, assuming powers unto themselves (which are not at all conferred on them), to become over-night heroes of their times, leaving their 'operations' in the wake of allegations of excesses and brutalities. While human rights activists have been purveying all kinds of figures, showing the number of incidents affecting a wide spectrum of human rights, the official agencies, as usual, deny them, as exaggerated. Therefore, it is high time that a check is exercised on the allegation of violation of human rights in our country to ensure that such violations do not become rampant, wanton or deep-rooted.
48. The sacred document of the country- the Constitution of India, has separated the powers of each organ of the State, avoiding conflict between their functions. While that being the case, how the protectors themselves turn as violators and assume unto themselves the punishing power, thus plucking away the judicial process of punishment of the so-called culprit, without submitting the suspects to the process of trial by a Court of law, when there is ample scope of doing so?
49. The principle of 'proof beyond all reasonable doubts', enunciated and strictly followed by criminal jurisprudence, gets eroded, if the practice of delivering 'instant justice' by any person or authority assuming unto himself the power not at all conferred on him, is encouraged, as it will lead the country to an undesired and unwarranted 'jungle raj' from its destined destination of more civilised, secular and democratic society.
50. The evolution of the State from Police State to a Welfare State is the ultimate measure and accepted standard of democratic society, which is an avowed constitutional mandate. The Indian democracy, wedded to rule of law, aims not only to protect the fundamental rights of its citizens but also to establish the egalitarian social order. Police excesses is the worst form of cruelty, the protectors themselves turning as violators and perpetrators of crime and assuming punishing power unto them, as if such an assumed power of punishment is a rule of thumb. This type of 'an eye for an eye and a tooth for a tooth' retaliatory actions of the law protectors, should not be encouraged, as it would shake the democratic pillars of the nation. Mere suspicion, however strong it may be, will not take the place of truth, more particularly the conclusive proof and truth, warranted under criminal law justice system, to punish an accused person. The protectors of law should not be under the impression that this type of 'instant or on the spot justice' will alone curb the crimes, in whatever form they may be. On the contrary, such acts of the police would lead to a bizarre state of affairs making mockery of the entire justice delivery system and throwing the democracy to murky waters, shaking the pillars of democracy and confidence of the people in the entire democratic form of society.
51. We, pained at the prima facie evidence available before us to show that there is violation of law by the protectors of law themselves, are remembered, at this stage, of the wordings of Sri Rabindranath Tagore, from His unmatched and ever acclaimed 'Gitanjali'
"Where the mind is without fear and the head is held high;
Where knowledge is free;
Where the world has not been broken up
into fragments by narrow domestic walls;
Where words come out from the depth of truth;
Where tireless striving stretches its arms towards perfection;
Where the clear stream of reason
has not lost its way into the dreary desert sand of dead habit;
Where the mind is led forward by thee into ever-widening thought and action---
Into that heaven of freedom, my Father, let my country awake"
We are afraid that if this type of serious human rights violations persist and allowed to exist, can we ever see the wish of Gurudev, (as Rabindranath Tagore is fondly called), the first non-European to win the Nobel Prize in Literature, fulfilling?
52. It is to be pointed out that a Constitution Bench of the Honourable Apex Court in STATE OF WEST BENGAL AND OTHERS vs. COMMITTEE FOR PROTECTION OF DEMOCRATIC RIGHTS, WEST BENGAL AND OTHERS [(2010) 3 SCC 571], while dealing with a question regarding a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence, alleged to have been committed within the territory of a State without the consent of that State, has held that such a direction issued by the High Court will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. The Honourable Apex Court has further held that:
"Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly."
In view of the above judgment of the Honourable Apex Court, it goes without saying that the consent of the State Government is not mandatory to order CBI investigation, as it is not violating the doctrine of separation of powers.
53. We are quite aware that by now a 'pushkaram' time (12 years) is lapsed from the date of death of the deceased Ravinder. But, that, by itself, will not, in any way, deter us from ordering the investigation by CBI since no delay could be attributed to the petitioner/appellant. To explain, after the death of the deceased on 10.1.2000, the petitioner/appellant came forward to initiate the present writ proceedings on 31.1.2000. She also knocked the doors of National Human Rights Commission with a complaint dated 23.2.2000, praying to order independent investigation by the officers attached to the Commission. But, the National Human Rights Commission, New Delhi, by the order 27.12.2000, has closed the complaint on the ground that the High Court is seized of the matter and hence no action is called for by the Commission.
Further, at the cost of repetition, we must say that if this type of serious allegations of human rights violations, particularly by the law protectors themselves, are left without proper investigation, it will shake the confidence of the public in the entire justice delivery system in particular and the democracy as a whole.
54. Therefore, for all the above discussions held and further since justice not only to be done, but also seen to be done, we allow the prayer of the appellant/petitioner, thus setting aside the order of the learned single Judge.
In result,
(i) this Writ Appeal is allowed. No costs.
(ii) The investigation in Cr.No.27/2000 on the file of Marandahally Police Station is transferred to the seventh respondent/CBI.
(iii) The respondents 1 to 5 are directed to immediately hand over the investigation of the case to the seventh respondent/CBI, by ensuring smooth transition of all the records and materials of the case, if any, to the seventh respondent.
(iv) The respondents 1 to 5 are granted a time of one month from today, for handing over the investigation of the case with all the records and materials, if any, to the seventh respondent/CBI.
(v) The seventh respondent is directed to take up the investigation of the case and complete the same in accordance with law and file the final report before the Court concerned within six months from the date of receipt of the entire case records and materials, if any.
(vi) Though a prayer has been made on the part of the appellant/petitioner to direct the seventh respondent/CBI to register the case of murder under Section 302 IPC, we refrain from issuing any such direction, since it is for the investigating agency to decide, in accordance with law, as to against whom the case should be registered and under what section of law.
(vii) Likewise, we also restrain ourselves from going into the request of the appellant to treat the statement of Siva @ Parthiban as a dying declaration, as it will not be proper to go into this aspect of the case at this point of time, when we have ordered investigation by CBI.
It is made clear that any observation made in this order is only for the limited purpose of deciding the issue, whether investigation is to be handed over to CBI or not and shall not be construed as expression of opinion on the merits of the case by this Court. At the cost of repetition, it is to be mentioned that by ordering CBI enquiry in this matter, we are not casting any aspersion on the honesty and integrity of the State police force, as such an enquiry is necessitated in view of the prima facie material available on record to doubt the version of the respondents 1 to 6 and to suspect foul-play by some police personnel in the case of death of the husband of the appellant.
Rao
To
1.State of Tamil Nadu,
rep.by its Secretary to Government,
Home Department,
Fort St.George,
Chennai-600009.
2.The District Superintendent of Police,
Dharmapuri District
at Dharmapuri.
3.The Deputy Inspector General of Police,
Special Task Force,
O/o.Director General of Police,
Kamarajar Salai,
Chennai-600009.
4.The Deputy Superintendent of Police,
'Q' Branch CID.,
Dharmapuri Range,
Thirupattur,
Vellore District.
5.The Inspector of Police,
Marandahalli Police Station,
Dharmapuri District.
6.The Revenue Divisional Officer,
Krishnagiri,
Dharmapuri District.
7.The Central Bureau of Investigation,
Shastri Bhavan,
Chennai 600006
