TMI Blog2002 (4) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with the facts of the present case of the petitioner, an young college girl, who tapped the doors of this High Court, seeking for the justice with full of tears in both her eyes for having suffered due to the acts of molestation, obscene violation and teasing, at the hands of Police Personnel of Chennai. 3. Let us now hear her plight in her own words spoken in her affidavit: On 22.10.2001, that day was an unforgettable day in my life time. I had never come across such a miserable moment in my life. I was left alone in the P4 Basin Bridge Police Station in the night time. At that time, taking liberty of my loneliness, the police personnel in the P4 Police Station started misbehaving with me in the name of 'Enquiry'. On seeing this, my terrified father came to my rescue. My father made a request to the Inspector of Police, P4 Police Station to shift me to some women police station. But the Inspector of Police, P4 Police Station never accepted the prayer of my father. Instead he called me and started abusing me in a filthy language. On 23.10.2001 when the woman Sub Inspector of Police Ms.Rajeswari @ Mercy came to the P4 Police Station, I reported her about the indece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rizwan Sait. (c) On 20.10.2001, the P1 Police came again and took the petitioner and her sisters Ms.Nithya and Ms.Quieta to the police station. In the evening, Miss Joy Immaculate and Ms.Nithya were taken to P4 Basin Bridge Police Station and they were interrogated. After interrogation, both the petitioner and her sister Quieta were detained in the P4 Police Station in the night. Her father Raman also was allowed to stay in the police station. (d) On 21.10.2001 also, they were detained for whole day. On that day, her father came out of the police station and gave a telegram to the Chief Justice, High Court, intimating the illegal custody of the petitioner and others in the P4 Police Station. On that night also, they were detained in the police station. (e) On 21.10.2001 mid night, the Inspector of Police, took the petitioner Miss Joy Immaculate in a Jeep to various places and asked her to identify the houses of the relatives of Sathish to search for him. (f) On 22.10.2001, the P4 Inspector of Police released her sister Quieta, but detained the petitioner. On 22.10.2001 also, her father sent a telegram to the Chief Justice of High Court about the illegal custody of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sufferings at the hands of the police in the man missing case . The said petition was entertained and consequently, she was sent to judicial custody. (k) On 2.11.2001, the P1 Police filed a petition for police custody. The petitioner filed an objection giving the clear details of the harassment by the policemen at the P4 Police Station. She gave a sworn statement before the Magistrate on 5.11.2001 about her sufferings. She produced the copies of telegrams sent to the Chief Justice of High Court. She expressed her unwillingness to go into police custody, on the apprehension of outrage of modesty. (l) Despite that, on 6.11.2001, one day custody was granted by the Magistrate. On 7.11.2001 she was produced back before the Magistrate. On her production, she gave the statement, which was reduced into writing, that no one spoke to her and she was not taken to anywhere. (m) However, the documents were filed by P1 Police as if she gave a voluntary confession, which led to the recovery of some incriminating articles. These documents are false documents. Hence, the petitioner approached this Court praying for cancelling the order of police custody and requesting the transfer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation disclosed that Nithya borrowed Rs.65,000/- from Rizwan Sait, petitioner borrowed Rs.55,000/-and Sathish Kumar borrowed Rs.25,000/-. There was a quarrel in the shop of Nithya on 4.10.2001. Sathish Kumar promised to pay the amount on 7.10.2001 on behalf of others. On 5.10.2001, the conspiracy was hatched by them. Consequently, murder took place. The petitioner was interrogated on 18.10.2001. On coming to know that Devaraj was arrested, the petitioner surrendered on 24.10.2001. On 6.11.2001, police custody was granted and on 7.11.2001, confession was recorded and incriminating articles were seized. P1 Police alone investigated the matter. P.4 Police did not investigate this case and has nothing to do with the investigation in this case. 9. The counter affidavit filed by the P4 Inspector of Police, second respondent would give the following facts:- The Assistant Commissioner of Police, due to the filing of the Habeas Corpus Petition by the brother of Rizwan Sait, directed the Sub-Divisional Inspectors including the P4 Inspector of Police to collect intelligence to trace the missing person. Therefore, the P4 Inspector and P1 Police were deployed to trace the missing per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent is not only contradictory to the affidavit of the P4 Inspector of Police, but also not consistent with the records summoned from the lower Court and the Case Diary and as such, this Court is constrained to come to the sad conclusion that the respondents police have not come to this Court with clean hands. 14. On a careful perusal of the entire records, it is manifestly clear that not only the investigation which was done by the respondent police with regard to the involvement of the petitioner is faulty, but also the respondents after creating the false records produced the same before the lower Court to implicate the petitioner as A3 in this case. 15. More pity is that the learned Magistrate without considering the reasons mentioned in the surrender petition and the contents of the objection petition for police custody filed by the petitioner and without verifying about the genuineness of the telegrams sent to the Hon'ble Chief Justice of this High Court regarding her illegal custody from 20.10.2001 onwards, has hastened to pass an order granting custody to the police which has no sanction of law. On going through the records, it is obvious that the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in his affidavit that on 21.10.2001 at about 8.15 A.M., the petitioner and her father N.M.T.Raman came to the police station and disclosed the close association of Sathish and Deva with the missing person and gave useful clues and since the P1 Inspector of Police had a break through on 22.10.2001 by arresting Deva, the P4 Police stopped the enquiry to track down the missing person. The above things would disclose that both these officers, viz., P1 and P4 Inspectors have taken different stand without knowing the stand taken by the other. But, the fact remains from the perusal of the affidavits of these respondents, they admitted that on 17.10.2001, P1 police interrogated the petitioner and others at her house and they were interrogated by P1 police on 18.10.2001 at the police station. Similarly, P4 Inspector of Police also admitted that Nithya was interrogated at Spencer Plaza by P4 police on 20.10.2001 and the petitioner and others in their house and next day, i.e. 21.10.2001, they were interrogated at P4 Police Station. From their admission, it is clear that the stand taken by the respondent police is that the petitioner and others in their family whenever they were wanted at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner. Therefore, on that day, the P1 police did not choose to implicate the petitioner as accused, even though there is a reference about the conspiracy by Sathish Kumar and Joy Immaculate in the confession of Devaraj. But, in the Case Diary dated 22.10.2001 and 23.10.2001, it is mentioned that the petitioner (A3) was absconding. The reading of the relevant papers dated 22.10.2001 and 23.10.2001 would show that the name of the petitioner as A3 (absconding) was added subsequently. If the name of the petitioner found place in the Case Diary dated 22.10.2001 and 23.10.2001, the P1 Inspector of Police would have mentioned the name of the petitioner as one of the accused in the remand report as well as in the Express F.I.R. dated 23.10.2001. Therefore, this Court strongly believes that the name of the petitioner was mentioned as A3 (absconding) was purposely shown in the Case Diary in order to mislead the Court. (3) The petition and affidavit filed on 2.11.2001 by the P1 police for granting custody before the Court would not show that Joy Immaculate was arrayed as accused on the basis of the confession of Devaraj and on the other hand, it was stated that she was to be interrogated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered on 24.10.2001, the police wanted to make her as an accused in order to cover up their mistakes, especially when she stated in the surrender petition that she was illegally detained in the police station. (5) On 24.10.2001, the petitioner Joy Immaculate surrendered before Court. On 2.11.2001, the P1 police filed an affidavit requesting for police custody. On the same day, a detailed objection was filed by the petitioner for grant of police custody. It is specifically stated in the objection that she was illegally detained by P1 and P4 police for four days and teased and so, the police custody should not be granted. When she was directly produced on 6.11.2001 before the Court, she further stated in the sworn statement before the Magistrate that from 20.10.2001 to 24.10.2001 she was illegally detained at the police station and she was taken to several places by the police and tortured and on 21st, 22nd and 23rd she spent sleepless nights in the police station and there was an attempt to outrage her modesty and therefore, she was not inclined to go into police custody. After the said statement, the matter was argued at length by the counsel for the petitioner before the conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers of the judiciary, ie. the learned Magistrate thought it fit to hand over the young girl to the very same hands in the name of police custody. It is clear on principle, on the specific language of Section 167 of the Code, that a Magistrate exercising jurisdiction under Section 167 performs essentially a judicial function and not merely an executive one. For the exercise of jurisdiction under Section 167, the Magistrate is obliged to apply his mind to the materials produced before him, hear the accused either in person or through his/her counsel as also the prosecution and then determine the significant question whether the accused should be detained at all. (6) There is yet another aspect of the matter. On 6.11.2001, when the P1 Inspector of Police gave a statement to the Court, he stated that Sathish Kumar who was interrogated in the police custody from 1.11.2001 to 3.11.2001 gave a confession stating that some of the incriminating articles were handed over to the petitioner. But, the perusal of the confession of Sathish Kumar found in the Court records would make it clear that the said statement made by P1 Inspector of Police before the Court is factually wrong. Sathish K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n she was interrogated. The confession shows that it was recorded on 7.11.2001 in the women police station and nylon rope stated to have been recovered at 11.00 A.M. at the terrace of the petitioner's house. In both the confession as well as the Form 95, there is no reference about the presence of the Woman Inspector and no Woman Inspector signed the same to certify that she was interrogated in the presence of the Woman Inspector. Furthermore, the reading of the confession dated 7.11.2001 of the petitioner is quite contradictory to the confession given by Sathish Kumar between 1.11.2001 and 3.11.2001. (8) One more feature to be noticed is quite interesting. In the confession, two names of the witnesses have been mentioned as attesting mahazar witnesses. The address of those persons by name Ganesan and Ramanathan also have been mentioned. In the signature column, two names were written as Ganesan and Ramanathan. It does not look like signature. That apart, the letters found in the confession and the letters found in the name of Ganesan would indicate that it must be written by one and the same person. Furthermore, it is specifically stated by the petitioner in the additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;ble Chief Justice of the Madras High Court. On 24.10.2001 when she suffered monthly period, she had to request the Inspector of Police to allow her to go to her house to take bath. Accordingly, she was allowed to go to her house in the morning on the condition that she should come back at 11.30 A.M. along with her father to P4 Police Station. At that stage, she had to decide to surrender before the Court, since she was unable to bear the illegal acts of the police personnel trying to dishonour her modesty. She was afraid of the nights in the days to come. Hence, she felt that it would be better to be detained in the judicial custody in the jail than to be faced with the acts of molestation in the police station. This stand taken by the petitioner in a way is supported by the other materials. As a matter of fact, some of the facts given by the petitioner have been admitted by the P1 Inspector of Policed and P4 Inspector of Inspector themselves in their affidavits. P1 Inspector of Police in his affidavit admitted that she was interrogated by the Sub Inspector of Police on 17.10.2001 at her house and on 18.10.2001 at the police station. The P4 Inspector of Police admitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a copy of the Kumudham Reporter wherein a publication has been made showing that both the second respondent Senthil Kumar, P4 Inspector and the third respondent Rajeswari alias Mercy, P4 Woman Sub Inspector gave interview to the Reporter stating that they had investigated the matter and found out the involvement of the three accused including the petitioner in the murder of Rizwan Sait. But, in the affidavit filed before this Court, P4 Inspector of Police stated that he did not investigate the matter. This shows that he has filed false affidavit before this Court. 21. In fact, it is specifically stated by the petitioner in her affidavits filed on various dates that when she complained about her having undergone molestation, obscene violation and teasing at the hands of the police personnel of P4 Police Station, the Woman Sub Inspector of Police Mercy alias Rajeswari, third respondent, never cared about their illegal acts, but on the other hand, she warned her to keep quiet and reported her complaint to the Inspector of Police. 22. Though it was totally denied by the third respondent Woman Sub Inspector of Police through her affidavit, she did not file any rejoinder for the af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elves expecting others to obey the law. The wages of indifference is reprimand, of intransigence disciplinary action. If the alibi is that the Sessions Court had directed the accused to appear at the police station, that is no absolution for a police officer from disobedience of the law. There is public policy, not complimentary to the police personnel, behind this legislative proscription, which keeps juveniles and females away from police company except at the former's safe residence. May be, in later years, community confidence and consciousness will regard the police force as entitled to better trust and soften the stigmatising or suspicious provisions now writ across the Code. 28. The Supreme Court in D.K.BASU v. STATE OF WEST BENGAL 1997 SCC (Cri) 920 said that custodial torture is perhaps one of the worst crimes in a civilised society governed by the rule of law. The rights inherent under Articles 21 and 22(1) of the Constitution of India required to be scrupulously protected. 29. In this case, the procedures to be followed as per Sections 160 and 51 of Cr.P.C. and the rights conferred on the person under Articles 20 and 21 of the Constitution have been given a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Police to continue the investigation in this case, in the light of the observations made in the above paragraphs. 35. This Court has given a clear finding that the petitioner was detained at the P4 Police Station illegally and she was subjected to various acts like molestation and attempt to outrage her modesty and human violation and as such, this Court is of the view that the police personnel of P1 and P4 Police Station who were responsible for the above acts are liable to be proceeded with. Under those circumstances, the Commissioner of Police is directed to take immediate departmental action against the P1 Inspector of Police and P4 Inspector of Police and other police personnel who were responsible for the illegal detention and other obscene acts committed on the petitioner. 36. This Court in various decisions would recognise the powers of this Court to grant compensation to the victim who suffered at the hands of the police, while in police custody. It is settled law that the State is responsible for the tortuous acts committed by its employees and that for police atrocities the State should pay compensation to the victim. In the assessment of compensation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s regards the petitioner is mala fide. Since it reposes confidence on the honesty and ability of Mr.Vijayakumar, the Commissioner of Police, Chennai, the suitable direction could be issued to his for continuing the investigation. (f) Accordingly, the Commissioner of Police is directed to constitute a special team of the investigating agency headed by an Assistant Commissioner of Police under the direction supervision of the Commissioner of Police to continue the investigation of the case. P1 and P4 police should not be in the said team. (g) The Commissioner of Police is also directed to take immediate departmental action against the P1 Inspector of Police, P4 Inspector of Police and other police personnel who were responsible for the illegal detention and other obscene acts committed on the petitioner at P4 Police Station. (h) The Home Secretary to the Government of Tamil Nadu is directed to pay a compensation of Rs.1,00,000/- to the petitioner, the victim for her illegal detention in the P4 Police Station by the police personnel who committed the acts of molestation, obscene violation and teasing on the petitioner, within one month from the date of receipt of this order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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