Praying to register fir under section 302 IPC, change of investigation agency to CBI and further prayer for direction of appropriate compensation
Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the respondent-State of Tamil Nadu to register a case under Section 302 of IPC against the respondent No.6 and all other police personnel responsible for the death of the petitioner’s son Nithya @ Nithyaraj and to hand over the investigation of the case in Cr.No.2 of 2017 on the file of the respondent No.8 to the Central Bureau of Investigation and further directing the respondent – State to award appropriate compensation to the petitioner for the death of her son.
Crux of the prosecution
5. The petitioner’s son was arrested on 13.01.2012 in pursuant to the Crime No.24 of 2012 registered for the offences under Section 420 r/w 392 of IPC. The said case was registered on receipt of the complaint from one Dinesh, alleging that on 13.01.2012, the said Dinesh and his lover were threatened by the deceased by stating that he is the member of “friend of police” and snatched his cell phone. Immediately, within 24 hours, the deceased was produced before the learned Magistrate for his remand.
6. In fact, before the learned Magistrate no complaint was made by the deceased and no injury was found on him. Further in the prison, he informed about his shoulder pain. Therefore, immediately he was taken to jail hospital and make an entry in the prison records. However, the Doctor refused to admit him inside the prison and referred the deceased to the Government Royapettah Hospital for orthopedic opinion. Thereafter he was admitted by the ICF police personal in the Government Royapettah Hospital, Chennai. After examination, the Orthopedic Surgeon suspected nerve injury and referred the deceased for CT-brain scan at Rajiv Gandhi Government General Hospital, Chennai.
Deceased was brought dead to government hospital and injuries found as antemortem in nature 3 to 4 days prior to the death
7. The Neuro Surgeon opined that no abnormality detected, nil active intervention needed. Therefore, the deceased was discharged from the hospital and referred to Government Royapettah Hospital for further treatment. In fact on 15.01.2012, again the deceased was taken to MRI scan on his spine. Thereafter he was again taken to prison and admitted in the prison hospital. On 16.01.2012, he had difficulty in breathing and therefore, again he was referred to the Government Royapettah Hospital, for further treatment. However it was reported that the prisoner was brought dead The post mortem report also revealed that all the injuries are antemortem in nature viz., 3 to 4 days prior to death. The injury No.9 is sufficient to cause death in the ordinary course of nature.
Second opined from Professor of forensic department as cause of impact over the head
9. However, the second opinion was sought from the Professor and Head of the Department, Department of Forensic Medicine and Toxicology that how could the dark red contusion measuring 8X6Xscalp deep in the right temperol occipital region of the scalp as mentioned in the injury No.9 of the post mortem be caused? The said Professor answered that this could be caused due to the impact of the head over the blunt surface, object, during fall or impact of any object or weapon over that part of the head.
Responsibility of the police while the citizen in the custody
10. The said alteration report also filed before the learned Judicial Magistrate-I, Tiruvallur. Thus, it is clear that the deceased was taken to the police station on 11.01.2012 during the night hours and he was produced before the learned Magistrate only on 14.01.2012. The police personnel at K7 ICF Police Station alone are responsible for the injuries sustained by the deceased. The deceased was brutally beaten by the accused persons and due to which he sustained grievous injuries and died.
State is responsible if the person in custody of police is deprived of his life
11. There is great responsibility on the police authority 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 wrong doer 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.
As per the Hon’ble Supreme court’s direction if the death takes place inside the police station the accused persons should be punished for the offence under section 302 IPC
12. In the case on hand, the deceased was tortured and subjected to third degree treatment due to which he died. The Hon’ble Supreme Court of India repeatedly held that when the death taken place inside the police station, the accused persons should be punished for the offence under Section 302 of IPC. When the eighth respondent found that there are materials to attract the major offence under Section 304(ii) of IPC, what is the reason why the eighth respondent failed to alter the offence under Section 302 of IPC? The injuries sustained by the deceased are very clear and from the Post Mortem report, the cause of death clearly shows that the police personnel had beaten the deceased and had given third degree treatment. Therefore, it cannot be said that the accused persons had no intention to murder the deceased.
13. The Hon’ble Supreme Court of India held in the case Rudul Sah Vs. State of Bihar & anr reported in AIR 1983 SC 1086 that, one of telling ways in which the violation of that right can reasonable be prevented and due compliance with the mandate of Atricle 21 secured is to mulct its violators in the payment of monetary compensation. The right of compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others, too well known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the right of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner’s right. It may have recourse against those officers.
Hon’ble Madras High court finds that the accused shall be punished under section 302 IPC and dependents of deceased are entitled for interim compensation as per section 357A Cr.P.C on the conclusion of trial
14. In the case on hand, poor young man aged about 22 years is killed and his mother, young wife and his 8 years old child are the dependents of the deceased. Therefore, it is clear case of murder and all the accused persons shall be punished for the offence under Section 302 of IPC. The dependents of the deceased are entitled atleast for interim compensation, since the provision under Section 357 A of Cr.P.C. Accordingly, the compensation can be paid only on the conclusion of trial. However, the dependents are entitled for interim compensation when the prima facie case made out. Therefore, this Court has no hesitation to award interim compensation payable by the State Government to the dependents of the deceased.
Direction
15. Accordingly, this Court is inclined to pass the following orders :-
(i) The eighth respondent is directed to alter the offence into 302 of IPC as against the accused persons and proceed against them in accordance with law and file final report within a period of eight weeks from the date of receipt of a copy of this Order.
(ii) The Government of Tamil Nadu is directed to pay a sum of Rs.5,00,000/- (Rupess five lakhs only) as interim compensation to the dependents of the deceased within a period of four weeks from the date of receipt of a copy of this Order.
(iii) The said compensation shall be recovered from the accused persons in the manner known to law.
Conclusion
16. With the above directions, the Writ Petition stands allowed. Consequently, connected miscellaneous petitions are closed. There shall be no order as to costs
Party
S.Pongulali …Petitioner vs1. The State of Tamil Nadu, rep by the Secretary to Government, Home Department, Secretariat, Chennai 600 009. 2. The Director General of Police, Mylapore, Chennai – 600 004. 3. The Commissioner of Police, Chennai City, Egmore, Chennai – 600 008. 4. The Deputy Commissioner of Police, Mylapore District, Chennai. 5. The Superintendent of Prison, Central Prison-2, Puzhal, Chennai – 600 066. 6. Ramalingam, Inspector of Police (Crime) K-7, ICF Police Station, Chennai. 7. Kathiravan Medical Officer, Central Prison-2, Puzhal, Chennai – 66. 8. The Inspector of Police, CB-CID, Egmore, Chennai – 600 008 … Respondents – Dated on 18th July 2022 – W.P.No.10249 of 2020 and W.M.P.Nos.12462 of 2020 & 21089 of 2021 – High Court Of Madras – The Honourable Mr. Justice G.K.Ilanthiraiyan
https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/672156
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