BAGGIAM DORAISWAMY Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE instant petition has been filed by the mother of one Seeralan, a twenty-one year old young man, who it is alleged, was beaten by the police while in custody without any remand and done to death. She has invoked this Court's jurisdiction under Article 226 of the Constitution of India and sought compensation in terms of money for the loss, at the hands of the police, of her bread earner. According to the petitioner, her son was an automobile mechanic and had interest in various social activities. His involvement in providing assistance to the poor villagers was resented to by the landlords, who, it is alleged, made some false complaints to the police and branded her son a naxalite and when the petitioner and her husband learnt that the police was looking for her son, on 25.11.1976, they brought him before the police themselves. Instead of interrogating him, however, the police assaulted him and not only him, the petitioner and her husband as well. THEy threatened, according to the petitioner, that they could see only his corpse after a month. On 11.1.1977 at about noon, her son was killed by the police in Nainathiyur village near Pudupet, Thirupathur Taluk, North Arcot district. According to the police, the petitioner has alleged, they had an encounter with her son and only as a self-defence they used force which resulted in injuries to her son and on account of that he died. According to the medical report, the petitioner has alleged, her son had been hit by a yoke, his spleen had been ruptured, and his testicles crushed. This, according to the petitioner, is inconsistent with the case of the police that her son was hit in an encounter and sustained injuries which caused his death. Sub-Collector of Thirupathur held inquest on 11.1.1977 and 12.1.1977 and reported on 6.2.1977 that the police had used excessive violence on the petitioner's son and, 'even though he was struggling for life with the wounds for over two hours, police did not take any steps to give medical attention'. THE then Member of the Board of Revenue, however, was appointed to enquire into the whole matter in May, 1977. He submitted a report to the effect that, (1) the policemen after capturing Seeralan beat him brutally and killed him(2) important facts were concealed from the Sub Collector's report by the police authorities(3) THE police filed a false complaint in order to hide their crime(4) the body was burnt in order to hide the crime and(5) the first two witnesses, Jaya and Velu, were illegally detained in police station and tortured.THE enquiry report, according to the petitioner, revealed that the police version about the death of Seeralan was concocted and the policemen (1) Kasinathan (2) Ramaswamy and (3) Sivalingam, deserved prosecution for committing the offence of culpable bomicide and for filing false complaints with Netrampalli police just in order to hide their crime. Member, Board of Revenue, further recommended that the Deputy Superintendent of Police, Thirupathur, North Arcot District, Veerapandian, Inspector of Police, Janarthanam, Inspector of Police Kannan and 'Q'Branch Inspector Henry Joseph were involved in fabricating false documents and they also deserved prosecution. Accordingly, the Government ordered for launching Prosecution and the District Collector, North Arcot, launched a case which eventually was committed for trial to the Court of Sessions. THE Sessions Judge, however, held that the police only performed their duties and recorded that the accused were not guilty and observed that the police might have used force as a self-defence and on account of that, Seeralan might have died. THE Government preferred no appeal against the order of acquittal. THE petitioner and Jaya above named made a petition for revision of the judgment of acquittal, which was eventually heard by a learned Judge of this court and by his judgment dated 13.8.1986, he found no ground to interfere with the judgment. While the proceeding to prosecute the culprits was pending in revision before this Court, the petitioner preferred the instant petition.

(2.) A counter affidavit has been filed in which it is stated that the connected file has been destroyed due to efflux of time and added as follows:'The son of the petitioner was concerned in Jolarpet R.P.F. Cr.No.33/74 under Section 3(a) RVP Act 66 and also in Mathur P.S. (Dharmapuri District) Cr.No.699/76 under Ss.147, 148, 396, 302, 437 and 286 IPC. There is no evidence to show that the petitioner and her husband had produced their son on 25.11.75 before police for interrogation and were beaten by the police. With regard to the incident relating to the death of the petitioner's son on 11.1.77, it is submitted that the Collector of North Arcot District has submitted an enquiry report conducted by the Assistant Collector, Thirupathur under P.S.O.145 on the death of her son to the Government and that since this report was found to be inadequate and incomplete in the interest of justice to have the matter thoroughly enquired into by a Senior Officer of the Government, the Government appointed Thiru S.P. Srinivasan, I.A.S., Member, Board of Revenue and requested him to conduct an enquiry into the death of Seeralan. Vide G.O. Ms.No.1386, Public, (Law and Order-A) Department, dated 15.6.77. He submitted his enquiry report to the Government on 25.8.77, which was accepted by the Government. The Government have ordered that criminal action and departmental action may be initiated against police personnel concerned. Accordingly, the Collector of North Arcot District has filed a complaint under S.302 read with 34, 211, 211 read with 34, 109, 201, 201 read with 34, 109 and 348 I.P.C. against the police personnel concerned on 27.12.77. The case was taken on file in P.R.C. No.1/77 by the Sub-Divisional Magistrate, Thirupathur. The case was committed to Sessions Court, Vellore and tried in S.C.No.88/78. The case ended in acquittal on 14.3.79'.'Further, it is submitted that only after getting the opinion of the legal authorities, it was decided by the Government that it was not necessary to file an appeal against acquittal 'vide G.O. Ms. No.2213, Home (Court-VIII) Department dated 8.6.79. AS ordered by the Government, departmental action against police personnel were taken as detailed below for the lapses mentioned against them:(a) Thiru M. Damodaran, Deputy Superintendent of Police, He was awarded a censure.(b) Thiru P. Balakrishnan, I.P.S. Superintendent of Police. After the consideration, the Government have dropped further action in G.O.Ms.No.1120, Home (Police-I) Department, dated 20.5.1981.(c) Thiru U.C. Chandramouliswaran (Retired Superintendent of Police) a proved minute has been sent to Government on 2.2.87 for passing final orders. But the case is kept pending, pending disposal of W.P.No.8109/86 filed by Thiru C.S. Munzhi, I.P.S. in the High Court, madras-Vide Government letter No.144517/Service-A 90-2, dated 11.2.1990.(These three officers were fully aware that the deceased was Seeralan. But, they suppressed this information and did not furnish the same to the Assistant Collector Thirupathur, who was conducting the enquiry.)(d) Thiru C.S. Munzhi, I.P.S. Superintendent of Police-that he acted irresponsibly in leveling allegations against Thiru M. Ramu, I.A.S. then Assistant Collector, Thirupathur, without due verification and unmindful of the consequences. He filed Writ Petition in No.8109/86 in the High Court, Madras and obtained a stay'.The finding recorded by the Member, Board of Revenue in the enquiry, are not denied. But, it is said that the petitioner is not entitled to compensation based on the report of the Member, Board of Revenue, since it was only an enquiry and the final result was the judgment given by the learned Sessions Judge, North Arcot and since the learned Sessions Judge had ultimately found that the officials were not guilty, 'the petitioner is not entitled for any compensation.'.

(3.) IN view of the law settled by the Supreme Court that the decision of the Criminal Court is not binding on the Civil Court and the instant action of the petitioner seeking compensation being in lieu of a common law action of a civil suit and the reasons as noticed by me above, I am inclined to hold that I shall be failing in my duty, if I do not exercise my power to decide whether the petitioner is entitled to compensation unaffected by any finding recorded by the criminal Court. The action for compensation has not arisen as a consequence of the conviction of the accused person. It has arisen on account of death, which, it is alleged, was caused by the police and if it is so, the State has a liability to compensate the petitioner. There is some attempt before me by the learned counsel for the State that this Court should decline to order any compensation for the reason that petitioner has moved this Court after an inordinate delay. It is not contended, because such a contention is not available, that there is any period of limitation prescribed for a petition under Art.226 of the Constitution of INdia. The Courts, however, have evolved a rule of discretion based on equitable principle that a person who has not promptly invoked the court's jurisdiction for the intended relief and allowed the respondent to alter his position, should not be granted the relief, which will have the effect of unsettling what has already crystalised. Ordinarily, however, the Courts take notice of the delay, even in the cases of enforcement of a fundamental right, at the threshold and not after the notice is issued. This rule is stated by the Supreme Court for the exercise of the power under Article 32 of the Constitution in the case of S.S. Moqhe v. Union of INdia (A.I.R. 1981 S.C. 1405) in these words:'A party seeking the intervention and aid of this Court under Art.32 of the Constitution for enforcement of his fundamental rights, should exercise due diligence and approach this Court within a reasonable time after the cause of action arises and if there has been undue delay or laches on his part, this Court has the undoubted discretion to deny him relief.'IN a Full Bench judgment of the Patna High Court, of which I was a member, the rule of laches and delay is stated in these words in the case of Jagannath Mishra v. State (A.I.R. 1990 Patna 11)'Coming to the next point argued by the learned Additional Advocate General that the writ petition should be thrown out on account of laches, this too has to be rejected as the Supreme Court in State of M.P. v. Nandlal Jaishwal (A.I.R. 1987 S.C. 251) has laid down as follows:''.this rule of laches or delay is not a rigid rule which can be case in a straight jacket formula, for there may be cases whether despite delay and creation of third party rights the High Court may still in the exercise of its discretion interference (sic.) and grant relief to the petitioner.''IN Naraya Devei Khaitan v. State of Bihar C.A.No.140 of 1964 decided by the Supreme Court on 22.9.1964 (reported in 1964 S.C. (noted) 259), it was laid down that 'no hard and fast rule can be laid down as to when High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches'.'IN P.B. Roy v. Union of INdia AIR 1972 SC 908 the Supreme Court itself had'laid down that the 'delay in filing the petition under Article 226 may be overlooked on the ground that, after the admission of a writ petition and hearing of arguments, the rule that delay may defeat the rights of a party is relaxed and need not be applied if his case is 'positively good'.'IN my view that writ petition having been admitted, and the case of the petitioner being 'positively good'as it is squarely covered by the decision of the Supreme Court itself (Annexure 3) and the respondents being bound by that judgment ought to have given a notice to the petitioner, I accordingly overrule the second contention of the learned Additional Advocate General also.'Since the rule of laches or delay is not a rigid rule which can be cast in a straight jacket formula, for, there may be cases where despite delay and creation of third party rights, the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner, no hard and fast rule can be laid down as to when High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches, it will not be wrong if the law laid down by the Supreme Court in the case of P.B. Roy v. Union of INdia (AIR 1972 SC 908) is applied that the delay may be overlooked on the ground that after the admission of a writ petition and hearing of arguments, the rule that delay may defeat the rights of a party is relaxed and need not be applied if his case is positively good.