@JUDGMENTTAG-ORDER
Elipe Dharma Rao, J.@mdashThis case relate to the never ending issue of Police excesses against the citizens. To understand the case, the averments in the case are to be narrated in a nut shell. This petition has been filed by a practising Advocate of Chennai alleging that his sister and three other Advocates and a Driver were illegally detained by the respondents and prayed to set them at liberty further awarding a compensation of Rs. 5,00,000/= and to take action against the erring officials.
2. The case of the petitioner is that his sister Dr. Jayanthi is residing at B-2 Government Employees Quarters, Three Storied Buildings, Ganapathy, Coimbatore and that earlier she lodged a complaint dated 9.7.2008 before the Commissioner of Police, Coimbatore against the Secretary of the Association and his henchmen, who committed dacoity of 9 sovereigns of jewels in the presence of the Sub Inspector of Police, Kannian, B-9 Police Station. According to the petitioner, the said persons continuously tortured his sister Dr. Jayanthi along with women folk Viji, Kala, Papathi and Jayanthi, who is the wife of the above said Secretary of the Association and therefore, his sister requested him to come over to Coimbatore to sort out the issue and therefore, he went to Coimbatore on 9.7.2008 at 11.30 p.m. along with three other Advocates Manivannan, Chinnalagu, Shankar in a Tata Safari vehicle bearing registration No. TN-07 AS-9696, driven by one Ajmal. It is further averred by the petitioner that on 11.7.2008 at about 11.00 a.m., himself along with his sister and brother Advocates reached the office of the Commissioner of Police, Coimbatore and met the Commissioner at about 5.00 p.m. on 11.7.2008; that the Commissioner required them to meet the Assistant Commissioner Gopalasamy, who directed them to reach the spot immediately.
3. It is further submitted that at about 8.00 p.m., on 11.7.2008, the second respondent herein by name Charles, Inspector of Police, B-9 Police Station, Saravampettai came to the residential quarters and enquired the sister of the petitioner and other Advocates; that the above said Advocate and the driver Ajmal and the sister of the petitioner were detained in the residential quarters upto 11 p.m.; that the Assistant Commissioner of Police, Gopalsamy insisted to withdraw the complainant to leave the place safely and thereafter, the detenus Dr. Jayanthi, Manivannan-Advocate, Chinna Alagu-Advocate, Shankar-Advocate and Ajmal-Driver were taken to B-9 Police Station and they were detained there. Thereafter, the detenues were taken to Sandeep lodge and the detenu Dr. Jayanthi suffered giddiness and vomitting and she was taken to a far-off place Sakthi Nursing Home about 10 km. away from the Sandeep Lodge and she was treated there and on the next day, on 12.7.2008, the detenus were taken to B-9 Police Station for interrogation; that the Association Secretary and Kumaresan came to Police Station and the detenue Dr. Jayanthi was forced to withdraw her complaint and on her refusal, Mr. Charles, the Inspector, continued to torture the detenus particularly Dr. Jayanthi upto 5 p.m. on 12.7.2008 and thereafter, the detenus were shifted to an unknown destination and their whereabouts are not known.
4. The petitioner would further submit that he suspects danger to the lives of detenues and the telegram sent by him on 13.7.2008 was also of no use; that the Tata Safari car bearing Registration No. TN-07 AS-9696 is in the custody of the respondent police; that the act of the second and third respondents in detaining the detenues beyond 24 hours is unjust and illegal and the detenues whereabouts are not known. Therefore, he has come forward to file this H.C.P.
5. Even though subsequently, after the filing of this H.C.P., the detenues became free birds, either on their own or after being let out by the respondents, thus making the first part of the prayer infructuous, this matter cannot be closed or disposed on that ground, since it is alleged that the respondents have violated the fundamental rights enshrined and guaranteed under the Constitution by resorting to police excesses.
6. Considering all the facts and circumstances, on 16.7.2008, a contemporary Bench of this Court has directed the Commissioner of Police, Salem, to nominate two police officials, not below the rank of the Inspector of Police in order to enquire as to:
(i) whether Dr. Jayanthi was tortured by Mr. Charles, Inspector of Police, B-9, Saravananpettai Police Station, Coimbatore District on 11.7.2008 and 12.7.2008;
(ii) whether the detenues by name (1) Dr. Jayanthi, (2) Mr. Manivannan (Advocate), (3) Mr. Chinna Alagu (Advocate), (4) Mr. Shankar (Advocate) and (5) Mr. Ajmal (Driver) had stayed on their own in Sandeep Lodge and their behalf who booked the lodge and also the period of their stay in the said lodge;
(iii) whether rooms had been booked in Srii Aswini Deluxe, 6 & 7, Kalingarayan Street, Ramnagar, Coimbatore-641009 by one Tmt.V.Jayanthi on 12.7.2007 and if so who had occupied the rooms;
(iv) whether they had been detained illegally by the respondent police, more particularly, Mr. Charles, the Inspector of Police, B-9, Saravananpettai Police Station, the second respondent herein; and
(v) any other particulars with reference to the above.
It was directed to submit a report by 23.7.2008. Accordingly, the Assistant Commissioner of Police (Crime) North Range, Salem City, who was nominated by the Commissioner of Police, Salem City, has submitted his report through the Commissioner of Police, Salem City before this Court. which was commented as unfair and one-sided by the learned Counsel appearing for the petitioner and by Mr. R.C.Paul Kanagaraj, who advanced his arguments in the capacity of the President of Madras High Court Advocates Association.
7. A perusal of this report would show that the Police Officials nominated by the Commissioner of Police, Salem, have not enquired and recorded the statements of the victims, even after their release, as has been rightly pointed out by the learned Counsel for the petitioners. The specific allegation of the petitioners is that the detenus were taken into illegal custody on 11.7.2008 and their whereabouts were not known till 14.7.2008. Rarely in cases of police excesses, direct occular evidence of the complicity of the Police personnel would be available. Generally speaking, it would be police officials alone who can only explain the circumstances in which a person was taken into custody. In the case on hand, though pursuant to the direction of this Court, a report has been filed by the two police officials nominated by the Police Commissioner, Coimbatore, the report filed by them was found to be not true. Bound as they are by the ties of brotherhood, it is not unknown that the Police personnel try to prevent the truth to save their colleagues.
8. Considering the fact that the report submitted by the police officials nominated by the Commissioner of Police, Salem, consisting of one Assistant Commissioner of Police could not be trusted, this Court, by the order dated 23.7.2008, has appointed The Honourable Mr. Justice Malai Subramanian, a retired Judge of this Court, to enquire into the following issues, which were also indicated to the team consisting of the two police officials, and to submit a report:
9. Pursuant to the orders of this Court, the learned Judge, The Honourable Mr. Justice Malai Subramanian, has enquired into the matter on 10.8.2008 and 11.8.2008 at Circuit House, Coimbatore wherein on behalf of the petitioner, Mr. E.Gokulakrishnan, the petitioner in the HCP; Dr. Jayanthi, Mr. Shankar, Advocate, Mr. M.Baranikumar, Advocate, Mr. A.Manivanna, Advocate, Mr. P.Chinna Alagu, Advocate, Mr. S.Ajmal, Car Driver were examined by Mr. Shankara Subbu, Advocate and on the side of the respondents, the Sub Inspector of Police Mr. Kannaiyan, Mrs.Srikala, Mrs.Mahalakshmi, Mr. Kumaresan, Mrs.Vijayalakshmi, Mrs.Sheela, Mr. Gopalakrishnan, Mr. Senthilkumar, Mr. D.Murugadoss, Mr. A.Karthikeyan, Doctor Selvaraj, Doctor Rathinasamy, Mr. Charles Inspector of Police were examined by the Assistant Commissioner of Police, who also deposed as a witness.
10. The learned Judge, in his report, has summed up his findings, as could be seen from Page No. 19 of his report, which read as follows:
To sum up, there is no evidence of torture to either Dr. Jayanthi or the Advocates and the driver at any point of time; the presence of Inspector of Police and the Assistant Commissioner of Police at the residential quarters was only to make enquiry and to pacify the residents and to retrieve the detenues from the enraged mob and hence it cannot be said that the detenues were illegally detained at the residential quarters. The contention in the affidavit that after 5 p.m. On 12.7.2008, the detenues were shifted to an unknown destination has been given a goby (sic. go-bye) by the detenues themselves since they uniformly stated that they were kept in Sandeep Lodge till 4 p.m. on 14.7.2008, which fact has been disproved by documentary evidence as discussed supra. The only proved circumstances are that they were staying in the lodge under police surveillance on the night of 11.7.2008 which may amount to detention and that they were kept at the police station from 9 a.m. to 5 p.m. on 12.7.2008 for enquiry while their Advocate Mr. Baranikumar was not allowed entry by the constables and the other parties also came to the police station for enquiry.
11. In the case on hand, the firm allegation of Dr. Jayanthi is that the Association Secretary Mr. Narasiman, has demanded a sum of Rs. 2,500/= as contribution for the Association and since she refused to pay the money, he threatened her with dire consequences and on 7.7.2008, with the help of some police officials, water connection was disrupted to her house, by blocking the nasal and she removed the block, whereupon there was a wordy quarrel between the parties and complaints have been lodged before the Police.
12. From the conjoint reading of all the complaints lodged before the Police, it is clear that since the detenue Dr. Jayanthi has refused to pay the amount of Rs. 2,500/=, towards contribution for the Association, the Association Secretary Mr. Narasiman and others have resorted to the illegal method of disconnecting the basic amenities like water.
13. According to Hindu mythology, ''Panchabhutams'' - air, water, earth, sky and fire - are the creations of Lord Almighty and nobody can claim exclusive rights over the same, unless the law of the land permits such rights. No such exclusive rights are created insofar as water is concerned. With the advent of the Constitution, supply of water, including potable water, to the citizens has become one of the sovereign functions of the State. In the judgment pronounced on 6.2.2009 by the Division Bench of the Honourable Apex Court, consisting of His Lordships The Honourable Mr. Justice Altamas Kabir and The Honourable Mr. Justice Markandey Katju, regarding the Vamsadhara river water dispute between Andhra Pradesh and Orissa, it has been held that right to water is the right to life guaranteed under Article 21 of the Constitution. The Association Secretary, joining hands with his henchmen, has illegally and without any authority disconnected and disrupted water supply to the residence of the first detenue Dr. Jayanthi, for the simple reason that she refused to contribute the amount towards association, fee thus igniting the controversy. Since the Association Secretary and his henchmen have resorted to such coercive and illegal measures for collection of the association fee from the first detenue Dr. Jayanthi, the respondents, being the custodians of law, should have resolved the dispute in accordance with law, which dispute seems to have been erupted, purposely, by the Association Secretary and his henchmen, who are liable to be prosecuted in accordance with law for this offence committed by them.
14. The Scheme of Cr.P.C. is that an officer in-charge of a Police Station has to commence investigation as provided in Section 156 or 157 Cr.P.C. on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion u/s 169 or 170 Cr.P.C., as the case may be and forward his report to the Magistrate concerned u/s 173(2) Cr.P.C. The duty of the Police - the investigating of the State - is to act in accordance with the law of the land. The right of the police to investigate into a cognizable offence is statutory right over which the Court does not possess any supervisory jurisdiction under Cr.P.C. This plenary power of the police to investigate a cognizable offence is, however, not unlimited. It is subject to certain well-recognised limitations. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the Police to investigate a cognizable offence has to be struck by the Court. The sweeping power of investigation does not warrant subjecting a citizen to torture or cruelty.
15. Therefore, on receipts of the complaints, the Police are expected to follow the above mentioned procedure under Cr.P.C., which they are bound by. Since the issue involved is trivial and could be solved by counselling/mediation between the parties, instead of precipitating the things, the respondents 2 and 3 should have tried to resolve the dispute between the parties by counselling/mediation. Instead, under the name of ''enquiry'', the respondents 2 and 3 have made the detenues the scape-goats and as has been pointed out by the learned Enquiry Judge, all the detenues were detained illegally on the night of 11.7.2008 and that they were kept at the police station from 9 a.m. to 5.00 p.m. on 12.7.2008, which, definitely, amounts to their illegal detention.
16. In the FIR in Cr. No. 559/2008 registered against Dr. Jayanthi, her mother, her brother and others, it has been mentioned that the information was received at the Police Station on 12.7.2008 at 19.00 hours. When it has been proved beyond doubt that for the incident alleged to have taken place on 7.7.2008, the respondents 2 and 3 have taken custody of the detenues on the night of 11.7.2008 itself and kept them under illegal custody the whole night, making the detenues to stay in a lodge by force that too under police surveillance, an incorrect and utterly false information has been noted in the FIR, as if the information was received at the Police Station only on 12.7.2008 at 19.00 hours. Further, from this FIR it is also seen that the complainant therein K.Srikala has lodged the complaint on 9.7.2008 at 16.00 hours itself, and the Inspector T.Charles, has registered the case, only after conducting an ''enquiry''. If it is so, how can he show the information received at Police Station as 12.7.2008 at 19.00 hours? Does the ''enquiry'' meant by him on the complaint lodged by the complainant therein on 9.7.2008 at 16.00 hours itself, is what this case depicts i.e. the police excesses and the illegal detention of the detenus?
17. An adding factor is that Cr. No. 559/2008 has been registered as against Dr. Jayanthi and others on the complaint lodged by one K.Srikala for the offences under Sections 294(b) and 506(ii) IPC. In this case though the incidence is alleged to have taken place on 7.7.2008, the complaint was registered on 12.7.2008 at 19.00 hours. Likewise, Cr. No. 560/2008 was registered on the complaint lodged by one Ganesan for the offences under Sections 279 and 506(ii) IPC, for the incident alleged to have taken place on 11.7.2008 at 8.30 p.m. But, the complaint lodged by Dr. Jayanthi as against Kumaresan and others has been registered as Cr. No. 561/2008 for the offences under Sections 294(b), 506(i) and 380 IPC (Non Professional). Even to the naked eye and from the handwriting and the ink used therefor, it is established that all these FIRs are registered and recorded successively. To cover up the mistake, different timings of reporting before the Police Station have been artificially attributed and noted with a view to mislead the legal forums, while scrutinising the documents.
18. As has already been pointed supra, the FIRs. in Cr.Nos.559/2008, 560/2008 and 561/2008 are registered on the same day i.e. on 12.7.2008, while FIR. No. 559/2008 has been registered based on the complaint lodged on 9.7.2008, the other two FIRs. are registered on the complaints lodged on 11.7.2008. The other aspect to be pointed out is that while it is seen that the detenu Jeyanthi has lodged the complaint on 11.7.2008 at 22.00 hours, the other complaint in Cr. No. 560/2008 was lodged only at 23.30 hours. However, the complaint received at 23.30 hours was registered as Cr. No. 560/2008 and the complaint lodged by Dr. Jayanthi at 22.00 hours was registered as Cr. No. 561/2008 by the Inspector Charles. No explanation whatsoever is coming forth for this violation of mandatory principles of law, discussed supra. This undoubtedly establishes that the respondents 2 and 3 are acting indifferently towards detenu Jayanthi, for no legally sustainable reason whatsoever to be offered on their part.
19. The scrutiny of the entire materials placed on record would show that the detenues were in illegal detention from the night of 11.7.2008 and they were kept at the police station from 9 a.m. to 5 p.m. on 12.7.2008. It is more pathetic to note, even from the report of the learned Judge, that the Advocate Mr. Baranikumar was not allowed entry by the Constables. Had it been only the ''enquiry'' and nothing else, as has been submitted on the part of the respondents, the respondents 2 and 3 would not have restricted the entry of Mr. Baranikumar into the police Station, who came to assist and help the detenus. From the nature of the complaint made, we are unable to accept the defence advanced on the part of the respondents that the detenues were kept at the police station from 9 a.m. to 5 p.m. on 12.7.2008 for ''enquiry''. For such an incident reported, what enquiry does the respondents 2 and 3 are conducting for such long hours, that too denying access of the detenues to another Advocate Mr. Baranikumar.
20. It may be true that Dr. Jayanthi herself signed the register in the Lodge, but that does not mean that she did it voluntarily, without any force. Had they stayed voluntarily in the Lodge, then why should they live under the ''surveillance'' of Police? If at all their presence is required for any ''enquiry'', they need not have to be kept under ''surveillance'' by the Police. Instead, they should have been required by the Police to attend the so-called ''enquiry'' next day morning, particularly when it is not the case of ''surveillance'' so far as the accused in the complaint lodged by Dr. Jayanthi. This establishes the indifferent treatment meted out to the detenus by the respondent Police and a leaning attitude towards the opposite party, which is unwanted and unbecoming on the part of the respondents 2 and 3.
21. Surveillance will infringe the fundamental right to personal liberty guaranteed by Article 21 of the Constitution and the freedom of movement guaranteed by Article 19(1)(d). At this juncture, we feel it apt to quote a judgment of the Honourable Apex Court in
Section 23 of the Police Act prescribes it as the duty of police officers ''to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances''. In connection with these duties it will be necessary to keep discreet surveillance over reputed bad characters, habitual offenders and other potential offenders. Organised crime cannot be successfully fought without close watch of suspects. But surveillance may be intrusive and it may so seriously encroach on the privacy of a citizen as to infringe his fundamental right to personal liberty guaranteed by Article 21 of the Constitution and the freedom of movement guaranteed by Article 19(1)(d). That cannot be permitted. So long as surveillance is for the purpose of preventing crime and is confined to the limits prescribed by Rule 23.7 of the Punjab Police Rules a person whose name is included in the surveillance register cannot have a genuine cause for complaint. History sheets and surveillance registers have to be and are confidential documents. Neither the person whose name is entered in the register nor any other member of the public can have access to the surveillance register. The nature and character of the function involved in the making of an entry in the surveillance register is so utterly administrative and non-judicial, that it is difficult to conceive of the application of the rule of audi alteram partem. Such enquiry as may be made has necessarily to be confidential and it necessarily excludes the application of that principle. It would be contrary to the public interest to reveal the information in the history sheet particularly the source of information. However, surveillance of persons who do not fall within the categories mentioned in Rule 23.4 of the Punjab Police Rules or for reasons unconnected with the prevention of crime, or excessive surveillance falling beyond the limits prescribed by the rules, will entitle a citizen to the Court''s protection which the court will not hesitate to give. Surveillance, therefore, has to be unobstrusive and within bounds. While it may not be necessary to supply the grounds of belief to the persons whose names are entered in the surveillance register it may become necessary in some cases to satisfy the Court when an entry is challenged that there are grounds to entertain such reasonable belief.
22. In the case on hand, it is not the case of the respondents that the detenus are the history sheet holders or the habitual offenders, so as to justify their action in keeping them under ''surveillance''. When such is the condition and when, in the terms of the above judgment of the Honourable Apex Court, the surveillance will seriously encroach on the privacy of a citizen as to infringe his fundamental right to personal liberty guaranteed by Article 21 of the Constitution and the freedom of movement guaranteed by Article 19(1)(d), the illegal action of the respondents 2 and 3 in keeping the detenus under ''surveillance'', that too making them to stay in a Lodge, has to be viewed seriously, since it has affected the personal liberty and freedom of movement guaranteed by the Constitution. If, otherwise, the respondents felt the need to arrest the detenues, they should have done so and produced them before the Magistrate for remand after registering the case. Instead, the respondents 2 and 3 have acted in a high-handed manner and kept the detenues under illegal custody from 11.7.2008, for which no explanation, much less a satisfactory one, is coming forth from the respondents.
23. When the detenue Dr. Jayanthi has refused to pay Rs. 2,500/= towards Association fee, the Secretary of the Association by name Narsiman joining hands with others, has disconnected the water connection to the house of the detenue Dr. Jayanthi in the presence of police personnel. Since the basic amenity of water has been disconnected, the detenue herself has opened the nasal, whereupon the Secretary and his henchmen picked up quarrel with the detenue, leading to lodging of complaints. When there is clear evidence to establish that the Association Secretary has made demand of Association Fee, which cannot be a compulsory one, had there been proper enquiry and investigation by the respondents 2 and 3, they would have immediately resolved the dispute between the warring parties. Instead, they have proceeded against the detenue, as if she has committed a sin by lodging the complaint, in exercise of her legal right and made her to stay in the Lodge under the police surveillance and not only the detenue Dr. Jayanthi, but the other detenus who rushed to her rescue, were also kept under illegal custody, as has been observed by the learned Enquiry Judge and as is crystal clear from the materials placed on record. When all the detenus were in illegal detention and custody of the respondents 2 and 3, the entry of a fellow Advocate Mr. Baranikumar was denied. None of the procedures mandated under Cr.P.C. Regarding registration of complaint and investigation thereon, as has been discussed supra, have been followed by the respondents 2 and 3. All such acts wantonly done by respondents 2 and 3 have infringed the right to life and right to protection of life and personal liberty guaranteed under Article 21(1)(d) of the Constitution. At each and every stage, we found the scant regard for the established principles of law by the respondents 2 and 3.
24. In Joginder Kumar v. State of U.P. and Ors. 1994 SCC (Cri) 1172, the petitioner/a young advocate of 28 years was called by the SSP, Ghaziabad, U.P., in his office for making enquiries in some case. It was alleged that on 7.1.1994 at about 10 o" clock, he personally along with his brothers appeared before the SSP. At about 12.55 p.m., the brother of the petitioner sent a telegram to the Chief Minister of U.P. apprehending the petitioner''s false implication in some criminal case and his death in fake encounter. In the evening it came to be known that the petitioner was detained in the illegal custody of SHO/respondent No. 5 therein. Next day, the SHO, instead of producing the petitioner before a Magistrate, asked the relatives to approach the SSP. On 9.1.1994 in the evening, the relatives of the petitioner came to know that the petitioner had been taken to some undisclosed destination. Under these circumstances the writ petition under Article 32 was preferred for release of the petitioner and the Supreme Court on 11.1.1994 ordered notice to the State of U.P. as well as SSP, Ghaziabad. The SSP along with the petitioner appeared before the Court on 14.1.1994 and stated that the petitioner was not in detention at all and that his help was taken for detecting some cases relating to abduction and the petitioner was helpful in cooperating with the police and therefore, there was no question of detaining him. In such circumstances, a Three Judge Bench of the Honourable Apex Court has held as follows:
Though at this stage the relief in habeas corpus petition cannot be granted, yet the Supreme Court cannot put an end to the writ petition on this score. Where was the need to detain the petitioner for five days, if really the petitioner was not in detention, why was not the Court informed. If really, there was a detention for five days, for what reason was he detained? These matters require to be enquired into. Therefore, District Judge, Ghaziabad is directed to make a detailed enquiry and submit his report within four weeks from the date of receipt of this order.
It has further been held as follows:
The quality of a nation''s civilisation can be largely measured by the methods it uses in the enforcement of criminal law. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. The Court has been receiving complaints about violation of human rights because of indiscriminate arrests. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis, of deciding which comes first - the criminal or society, the law violator or the law abider.
No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person''s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the station without permission would do.
The right of the arrested person to have someone informed, upon request and to consult privately with a lawyer was recognised by Section 56(1) of the Police and Criminal Evidence Act, 1984 in England. These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognised and scrupulously protected. For effective enforcement of these fundamental rights, the following requirements are issued:
1.An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
2.The police officer shall inform the arrested person when he is brought to the police station of this right.
3.An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.
It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.
25. The facts in the case on hand are similar to the one in the above case before the Honourable Supreme Court. From the materials placed on record it is clear that all the detenus were kept in a Lodge under the Police Surveillance on the night of 11.7.2008 and they were kept at the police station from 9.00 a.m. to 5.00 p.m. on 12.7.2008 and when the detenus were in illegal custody of the respondents 2 and 3, they were denied assistance from Mr. Baranikumar, Advocate. The guidelines enunciated by the Honourable Apex Court in the above judgment, were given a simple go-bye by the respondents 2 and 3, further flouting and violating the right to protection against arrest and detention in certain cases guaranteed under Article 22(1) of the Constitution.
26. Custodians of law cannot act like destroyers of law and in spite of repeated observations by various forums of law, including the Honourable Apex Court, often the violations of fundamental rights by the Police themselves are being reported, which should be viewed seriously. Right to life enshrined and guaranteed under Article 21 of the Constitution cannot be permitted to be plucked away from the citizens of this great country by anybody. At this juncture, we feel it apt to quote the judgment of the Honourable Apex Court in
Police Officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to bizarre acts of lawlessness.
27. Police excesses tarnishes the image of any civilised nation and encourages the men in ''khaki'' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the same, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading towards perishing.
28. The right of personal liberty of a citizen is all too precious and no one can be permitted to interfere with it except in accordance with the procedure established by law. Whenever a question is raised regarding the illegal detention of a citizen in a writ of habeas corpus and the court issues the rule nisi, a duty is cast on the State, through its functionaries and particularly those who are arrayed as respondents to the writ petition, to satisfy the court that the detention of the citizen was legal and in conformity not only with the mandatory requirements of the law but also with the requirements implicit in Article 22(5) of the Constitution of India. No such requirements are proved before us by the respondents.
29. Fundamental rights are the means and Directive Principles are essential ends in a welfare State. 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. Though one of the main functions of the democratic Government is to safeguard liberty of the individual unless its exercise is subject to social control, it becomes anti-social or undermines the security of the State. The Indian democracy wedded to rule of law aims not only to protect the fundamental rights of its citizens but also to establish an egalitarian social order. The individual has to grow within the social confines preventing his unsocial or unbridled growth which could be done by reconciling individual liberty with social control. Liberty must be controlled in the interest of the society but the social interest must never be overbearing to justify total deprivation of individual liberty.
30. Whenever the Police resort to such excesses, particularly against the Robed community-the Advocates, to protest such excesses, they are resorting to boycotting the Courts, which, on the other hand costs the interests of the litigant public.
31. The police excesses alleged and proved in this case are shocking our conscious. Considering all the facts and circumstances of the case and in the light of our above discussion, we have no hesitation to hold that the respondents 2 and 3 have acted in a high-handed and partisan manner and under the name and garb of the so-called ''enquiry'', which they have resorted to even without registering the complaints, thus flouting the mandatory requirements of Cr.P.C., they have humiliated the detenus, besides detaining them illegally. If not checked and punished, such excesses on the part of the law implementing authorities, will shake the confidence of the people about the the law and its machinery.
32. To sum up:
1. There is an illegal demand of Association Fee by the Secretary from the first detenue Dr. Jayanthi and on her refusal, disconnection of the water connection to her residence, resulting in wordy quarrel between the parties and complaints and counter complaints between the parties. The respondents 2 and 3, being the responsible police officials, should have acted in a fair and unbiased manner to resolve the dispute between the parties in a free and fair manner. Instead, without even registering the case on the complaints, they have taken sides and made the detenus to stay in a Lodge on 11.7.2008 under their ''surveillance'', for no reason, thus infringing their fundamental right to personal liberty guaranteed by Article 21 and the freedom of movement guaranteed by Article 19(1)(d) of the Constitution.
2. The Association Secretary has no legal right to demand amounts that too by coercive methods and the action of the Association Secretary and his henchmen in disconnecting the water supply, one of the ''Panchabhutams'' and on which nobody can claim any exclusive right and since the right to water is the right to life, traceable to Article 21 of the Constitution, the Association Secretary and his henchmen, who have illegally disrupted water supply to the residence of the first detenue Dr. Jayanthi, are liable to be prosecuted, in accordance with law, for this offence committed by them.
3. The respondents 2 and 3 have kept the detenus under illegal detention from 9.00 a.m. to 5.00 p.m. on 12.7.2008 under the garb of ''enquiry'' and denied their access to Mr. Baranikumar, a practising Advocate who has rushed to the rescue of the detenues.
4. At each and every stage, we are able to see that the respondents 2 and 3 have flouted and given a simple go-bye to the procedure established under the Criminal Procedure Code regarding registration of a case and its investigation thereafter and have flouted the guidelines issued by the Honourable Apex Court in Joginder Kumar case (supra).
5. The first detenue Dr. Jayanthi is an Educationist and the detenus 2 to 4 viz. Manivannan, Chinna Alagu, and Shankar are practising Advocates, while the 5th detenu Ajmal is the Driver. Because of their illegal detention by the respondents 2 and 3, the reputation of the detenus in the Society is very badly affected and their image is tarnished by the respondents 2 and 3, for no better reason to be offered and appreciated on their part.
In the result,
(a) This Habeas Corpus Petition stands allowed.
(b)The State of Tamil Nadu, on which the vicarious liability is cast upon for the deeds and misdeeds committed by the respondents 2 and 3, is directed to deposit a sum of Rs. 4,50,000/= (Rupees Four Lakh Fifty Thousand Only) before the learned Chief Judicial Magistrate, Coimbatore, within four weeks from today, towards compensation to the detenus (1) Dr. Jayanthi, wife of Thirunavukarasu; (2) Manivannan, Advocate; (3) Chinna Alagu, Advocate; (4) Shankar, Advocate and (5) Ajmal, Driver. The Secretary to the Government of Tamil Nadu, Home Department, Fort St.George, Chennai is directed to take all steps to deposit the compensation amount within the above period specified, without any delay.
(c) On such deposit being made, the detenus (1) Dr. Jayanthi, wife of Thirunavukarasu; (2) Manivannan, Advocate; (3) Chinna Alagu, Advocate; (4) Shankar, Advocate are entitled to a compensation of Rs. 1,00,000/- each (Rupees One Lakh each) and the detenu Ajmal, Driver is entitled to the compensation of Rs. 50,000/= (Rupees Fifty Thousand Only).
(d) On such deposit being made, all the detenues can withdraw the amounts from the said Court, by providing sufficient proof in support of their identity. For this purpose, the learned Counsel for the petitioners is directed to furnish all the particulars, such as the full name of the detenues with their father/husband''s name, address and identity proof so as to enable the above said Court to identify the detenues and disburse the amounts, without any confusion.
(e) The Secretary to the Government of Tamil Nadu, Home Department, Fort St.George, Chennai and the Director General of Police, Tamil Nadu, Chennai are directed to initiate necessary disciplinary proceedings against the respondents 2 and 3, for their proved acts of illegally detaining the detenus infringing their fundamental rights guaranteed under the Constitution within four weeks from today and report compliance to this Court.
