@JUDGMENTTAG-ORDER
P.N. Prakash, J.@mdashThis Habeas Corpus Petition has been filed by the mother of the detenu Thamim Ansari, praying for issuance of a writ of Habeas Corpus, directing the respondents to produce the detenu, who is allegedly confined in the Global Hospital, Chennai and direct the Principal District and Sessions Judge, Chennai to conduct an enquiry into the arrest, detention and torture of the detenu by the police. The factual matrix of this case is as under: One Shanthi lodged a complaint with the J8 Neelankarai Police that someone had committed theft from the hundial in Periyapalayathaman Temple falling within the jurisdiction of the said police station. Based on the complaint, a case in J8 Neelankarai Police Station Cr. No. 19 of 2014 under Section 380 IPC was registered by Mr. Vargees, Sub Inspector of Police on 05.01.2014 at 20.00 hrs and investigation was taken up by him. On 06.01.2014, when Mr. Vargees and his party were on night rounds, they found Thamim Ansari [the detenu] in a suspicious circumstance with a plastic bag in his hand. He was apprehended and was brought to the police station around 5.40 hrs on 07.01.2014 for further enquiry. During the course of enquiry, he seems to have confessed to the police that he had stolen money from the hundial of Periyapalayathamman Temple and also from the hundial of Muthumariamman Temple in Vettuvankeni. Based on his confession statement, the police recovered the money stolen by him from the temples, from his old house at Mahathma Gandhi Nagar, II Cross Street, Vettuvankeni. The detenu was brought to J8 Neelankarai Police Station on 07.01.2014 at about 7.50 hrs and was kept there in custody. Thereafter, at about 8.00 hrs, one Muthu Kumar of Vettuvankeni lodged a complaint about the theft committed at Murthumariamman temple hundial on the night of 06.01.2014, about which the detenu himself had confessed to the police as stated above. While Mr. Vargees, the Sub Inspector of Police was preparing the Remand Report for sending the detenu to judicial custody, a bizarre incident took place in the J8 Neenlankarai Police Station. The incident as described by Mr. Pushparaj, the then Inspector of Police of J-8 Neelanakari Police Station, who is the third respondent herein, in his counter affidavit, is extracted verbatim:
"On that day, I had to meet the Deputy Commissioner of Police, Adyar who had instructed me to proceed to prepare the list of persons who were wanted in connection with long pending investigations. After preparing the list, I was to be accompanied by two other constables and was to secure one Saleem from Guduvancherry based on a source information received by me. Since Saleem was a notorious person, as a precautionary measure, I had sought for one 0.380 revolver. Therefore, I received a service 0.380 revolver with 3 bullets from Sentry PC 31421 Vikranth. I sat in the room which was adjacent to the place where this juvenile Tameem Ansari was sleeping, for cleaning the revolver, it is relevant to mention that the said revolver, an old model one has no safety lock. Therefore when the revolver was falling down unexpectedly and in the process of holding the revolver a bullet from the revolver hit the left side neck of Tameem Ansari who instantly woke up from lying position and sustained injury. In order to save his life, I alongwith Tameem Ansari rushed to Global Hospital by Police Jeep and admitted him at about 16.25 hrs in the ICU Ward. The doctors conducted surgery and saved his life."
2. This incident was flashed in the electronic and print media and attracted much attention, as the detenu was only 15 years of age. While the detenu was under treatment in Global Hospital, Chennai, his mother filed this HCP on 09.01.2014, for the reliefs stated above.
3. We ordered notice to the respondents in the HCP and we were informed by the learned Additional Public Prosecutor that the detenu is undergoing treatment as an inpatient in Global Hospital for the bullet injury sustained by him, while he was in the custody of the police. Therefore, by order dated 28.01.2014, we directed that the detenu should undergo complete treatment in the Global Hospital and the costs of that should be borne by the State. As directed by us, the detenu underwent treatment in the Global Hospital and we were monitoring the case periodically. We received the Medical Report given by Dr. G. Raja Shekar, Medical Director, Global Health City, Chennai-100, dated 11.02.2014, which read as follows:
"The patient is now in the ward for the past 31 days and is carrying on with his daily activities in a regular manner by having normal and regular diet. All the treating doctors including spine surgeon, head and neck surgeon and vascular surgeon had given clearance for discharge of the said patient. By taking into account of all the concerned investigation report and treating doctors'' recommendations, it is observed that the said patient is medically fit to get discharged and the patient can continue with his routine activities."
4. Pursuant to this Report, we passed an order on 13.02.2014, permitting the detenu to be discharged from the Global Hospital and directing the Government to settle the hospital bills.
5. With regard to the incident of firing, based on the complaint of Mr. Vargees, the Sub Inspector of Police, a case in J-8 Neelankarai Police Station Cr. No. 28 of 2014, under Section 338 IPC was registered against Mr. Pushparaj, the then Inspector of Police, J-8 Neelankarai Police Station. Apart from this, the Revenue Divisional Officer commenced enquiry under PSO 150(3) into the incident which is in progress. The Human Rights Commission had also taken cognizance of this incident and has initiated a suo motu enquiry into this.
6. On 08.01.2014, immediately after the incident, the Judicial Magistrate No. I, Kancheepuram and Juvenile Justice Board member Tmt. Rosilin Durai met the detenu at Global Hospital regarding this case and recorded the statement of the detenu. He was remanded to judicial custody while at the hospital for the case in Neelankarai Police Station Cr. Nos. 19 and 27 of 2014, namely, the thefts in Periyapalayathamman temple and Muthumariyamman temple respectively.
7. On 09.01.2014, Mrs. Nirmala and Mrs. Padmavathy, Juvenile Board members, and Mr. Chandran, the District Probationary Officer, met the detenu at the Global Hospital and submitted the details to the Judicial Magistrate No. I, Kancheepuram. The Hon''ble Chief Minister of Tamil Nadu gave a solatium of Rs. 1,00,000/- on 13.01.2014 to the detenu.
8. While so, Mr. Sankara Subbu, the learned counsel appearing for the petitioner submitted that the RDO enquiry under PSO 150(3) would not serve any purpose and that, to unveil the truth, this Court should appoint a Sessions Judge to conduct an enquiry in terms of PSO 152. PSO 152 reads as under:
"PSO 152. Commission to be appointed in special cases.-
(1) Where a Sessions Court, or the High Court, records its opinion that a special inquiry into the conduct of the Police is necessary, an inquiry will be publicly conducted by a Commission appointed by Government and consisting of two offers, of whom one has judicial experience and neither belongs to the Police Department. Should, however, sufficient evidence be available without the investigation of the special commission, to justify the institution of criminal proceedings forthwith, that course should at once be taken.
(2) The appointment of a Special Commission will not take the place of a departmental inquiry, which should be made in all cases where further evidence is required, but such departmental inquiry should be preliminary and ancillary to the special inquiry or the criminal prosecutions, and all evidence available, whether derived from the Police Officer''s inquiry or otherwise, should be laid before the Special Commission or the Criminal Court."
9. A bare reading of PSO 152 shows that, only when the Sessions Court or the High Court records opinion that a special enquiry is necessary, then the Government will appoint a commission consisting of two persons, of whom one should have judicial experience to probe into the matter. PSO 152 does not empower this Court to straightaway appoint a Sessions Judge to conduct a probe into this incident, especially in the light of the fact that the Revenue Divisional Officer has already commenced an enquiry under PSO 150(3). PSO 151 deals with the procedure in respect of charges of torture by the police or of death or grievous hurt caused by the police. PSO 150(3) casts a duty on the Collector of a District to order an enquiry by an Executive Magistrate in all cases, where there has been a use of firearms by the police. This particular case will fall both within the category of PSO 150(1), PSO 150(3) and 1 PSO 151(6 r/w 3).
10. We find that the Revenue Divisional Officer has issued summons to the detenu and his family members to appear before him on 24.01.2014 at 11.00 a.m. for enquiry. Since the detenu was under treatment in the Global Hospital, we are able to see that he would not have been in a position to attend the enquiry. Therefore, we feel that when the Revenue Divisional Officer, Human Rights Commission and the Juvenile Board have taken cognizance of this episode and are conducting enquiries, it may not be necessary to order an enquiry by a Sessions Judge as prayed for by the learned counsel for the petitioner.
11. The explanation offered by Mr. Pushparaj, the then Inspector of Police, that a bullet from his revolver had hit the detenu unexpectedly, does not cut ice with us. It sounds very incredible to us. Instead of recording the statement from the detenu in this regard and registering a case thereupon, the Neelankarai Police have obtained a statement from Mr. Vargees, the Sub Inspector of Police and have registered a case in Cr. No. 28 of 2014 under Section 338 IPC against Mr. Pushparaj and the investigation is being conducted by the Inspector of Police who succeeded Mr. Pushparaj, pursuant to the latter''s suspension from service. May be after the serious injury suffered by the detenu, he would not have been in a position to give any statement immediately for the purpose of registering a FIR which is quite understandable, but after the detenu became alright, no effort seems to have been taken to record his version of the incident. We are of the opinion that the investigation in Cr. No. 28 of 2014 should not be continued by the Inspector of Police of the same police station and instead, it will be desirable to transfer the investigation to the Crime Branch CID, for, we feel that the investigation should be conducted impartially by an independent agency so that it instills confidence in the mind of the victim. We have utmost confidence and faith in the impartiality of the CBCID.
In the result, we direct that the case in J8 Neelankarai Police Station Cr. No. 28 of 2014, be transferred to the file of the CBCID Metro, to be investigated by the Officer not below the rank of Deputy Superintendent of Police of CBCID. The Revenue Divisional Officer, Tambaram shall continue with the enquiry and the scope of enquiry should be both in terms of PSO 150(1), PSO 150(3) and PSO 151(6 r/w 3).
With the above directions, this Habeas Corpus Petition is closed.
