S Velankanni v Chitradevi & Ors

7/28/2019 S Velankanni v Chitradevi & Ors

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 10.04.2013

Coram

THE HON BLE MR. JUSTICE VINOD K.SHARMA

W.P.No.914 of 2006

S.Velankanni .. Petitioner

.. Vs ..

1.Chitradevi

Sub-Inspector of Police,

All Women Police Station, Dharmapuri.

2.Gunavathi

Judicial Magistrate I,

Dharmapuri.

3.Deputy Superintendent of Sub-Jail for Women,

Sub-Jail for Women, Dharmapuri.

4.State of Tamil Nadu,

Rep. By its Secretary,

Secretariat, Fort St.George,

Chennai. .. Respondents

Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the

issuance of a Writ of Mandamus, directing the respondents 1 to 4 to pay a compensation ofRs.5,00,000/- to the petitioner.

For Petitioner : Ms.Sudha Ramalingam

For Respondents : Mr.R.Ravichandran, AGP

for R1, R3 and R4


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Mr.V.R.Sivakumar for R2

O R D E R

The petitioner has approached this Court with a prayer for issuance of a writ in the

nature of mandamus, directing respondents 1 to 4 to pay compensation of Rs.5,00,000/- (Rupees

Five lakhs only) to the petitioner and grant such other remedies as this Hon'ble Court may deem

fit and proper in the circumstances of the case.

2. In support of the writ petition, it is averred that the petitioner is a resident of

S.Kollapatti Village belonging to Christian Dobhi Community. One John Kennedy son of

Swamikanu, belonging to Christian Vanniar Community, who is a permanent resident of

neighbouring village, Selliayampatti was in love with the petitioner, and he promised to marryher.

3. It is the case of the petitioner that it was on the false assurance of John Kennedy, she

developed intimacy with him, which resulted in her becoming pregnant. The petitioner asked

John Kennedy to marry her, but he refused to do so and instead, insulted her. He also tried to

bribe the petitioner to abort the pregnancy. This act of John Kennedy made her file a complaint

with the Police on 16.10.2000, which was registered as FIR 18 of 2000 under Sections 417, 493

and 506(ii) I.P.C and was taken on the file of the second respondent in P.R.C.No.41 of 2002.

4. It was stated that the Police after initial investigation arrested John Kennedy, and

remanded him to judicial custody on 16.10.2000. On 17.10.2000, the accused John Kennedy

was brought from Sub-jail and taken to the Government Hospital for medical check-up. The

petitioner was also taken to the hospital on the same day by the Police for medical check-up.

After medical check-up, the accused was taken back to sub-jail and the petitioner was produced

before Respondent No.2 (Ms.K.Gunavathi), the then Judicial Magistrate, Dharmapuri.

5. It was further stated that the Respondent No.2 (Judicial Magistrate), without enquiring

anything about the case, remanded the petitioner to judicial custody for 15 days. The petitioner

was taken to sub-jail for women in Dharmapuri by Respondent No.3 at 5.30 p.m. The petitioner

was not aware, as to why, she was remanded to judicial custody. She was not told any reason

about her arrest either by respondent- 1 Police or Respondent No.2.

6. It is further stated that besides harassment by John Kennedy, the petitioner had to

suffer physical and mental tortures by the act of the respondents, in mechanically remanding her

to judicial custody. The case of the petitioner, therefore is that she has been kept in illegal

confinement without any authority of law under the illegal order passed by the second

respondent.


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7. It is the case of the petitioner that she was ill-treated in the jail as she was not allowed

to change her dress and had to go without a bath for three days, and she was not even given

proper medical help. The petitioner, however, was released after three days on 21.10.2000 at

about 5.00 p.m due to an application moved by a legal aid lawyer, who had visited the sub-jailand to whom she had told her miserable plight.

8. The petitioner, thereafter, received a "summons to an accused person" under Section

61 of Code of Criminal Procedure for offences under Section 419, 376, 90 and 506 (ii) I.P.C as if

she was an accused.

9. The petitioner, thereafter, made a representation to the Chairman of the Tamil Nadu

State Women's Commission about her plight and requested to secure punishment for the accused

and to take action against the police for implicating her in the case and making the victim, an

accused. It was on the said complaint, DNA test was conducted and the paternity of her male

child was established to be that of John Kennedy, the accused.

10. On 03.07.2004, the Revenue Divisional officer, conducted an enquiry about the

incident pursuant to the petitioner's complaint to the Women's Commission. The petitioner

informed the facts of the case to the officer. It is her case, that no action has been taken on her

complaint.

11. It is the case of the petitioner that the case was committed to Sub-Court, Dharmapuri

and numbered as S.C.No.74 of 2004 in April 2004. After committal, though the petitioner was

asked to be present in the Court for deposing as a witness for every hearing, there was no

progress in the case. Neither the petitioner nor any other witness was examined in the casethough she attended the Court on several hearings.

12. On the pleadings referred to above, compensation is prayed for by the petitioner on

the ground that the action of the second respondent in remanding her to judicial custody

mechanically is against law and is violative of Article 21 of the Constitution of India as it

affected her right to liberty. In addition, the issuance of summons as an accused person by

respondent No.2 added insult to the injury, as firstly, the petitioner was kept in illegal custody

under the orders of the second respondent for two days.

13. It is also the contention of the petitioner that the guidelines laid down in D.K.Basu'scase was not adhered to while arresting and remanding her to judicial custody. Therefore, the

petitioner has claimed compensation for mental torture, agony and illegal detention amounting to

Rs.5,00,000/- (Rupees five lakhs only).

14. Respondent No.2, the Judicial Magistrate, has filed an affidavit, wherein, it is stated

that she has joined as Judicial Officer on 03.02.1998 and is discharging her duty in an

unblemished and appreciable way and manner. It is stated that she always discharges her duties


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in a dedicative, sacrifice and judicial way and manner in accordance with law, and throughout

her career, she has not committed any error of fact or law.

15. The averments of the petitioner that she was remanded to judicial custody by

respondent No.2 have been denied by pleading that the petitioner has not produced any iota of

evidence in support of the averment that Respondent No.2 had remanded the victim to the

judicial custody.

16. It is the further stand of respondent No.2 that the petitioner has filed the present writ

petition without verifying the identity of the Judicial Officer who had signed and issued

summons.

17. The stand of respondent No.2 is that the act of the petitioner amounts to scandalizing

or lowering the authority of the Court, which comes under the definition of Criminal Contempt

of Court under the Contempt of Courts Act, 1971.

18. It is the further stand of respondent No.2 that the writ petition is not maintainable in

law as the petitioner has suppressed the material facts from this Court and further the writ

petition suffers from delay and laches.

19. It is the also the stand of respondent No.2 that she has acted in a judicial and judicious

manner and has discharged her duties in good faith and her judicial acts were duly protected

under the Judicial Officers' Protection Act, 1850. It is also the stand of the second respondent

that there are no allegations that she acted with malafide intention.

20. Respondent No.2 has also taken a stand that on 17.10.2000, on the request of the first

respondent, the accused, John Kennedy and the petitioner herein were directed to undergo

medical checkup. The petitioner was admitted as inpatient at Government Hospital, Dharmapuri

till 21.10.2000 and she was discharged on that day which falls on Saturday, a non working day.

A stand has been taken that she did not remand the victim girl on 21.10.2000 and therefore, no

relief can be claimed against her. She has also denied having signed the summons dated

07.01.2003.

21. The stand taken by the learned Judicial Magistrate, in the affidavit, therefore is that

the writ petition has been falsely filed against her. She has taken a positive stand that she did not

remand the petitioner to jail and further more also taken a positive stand that it is a false writ

petition filed against her.

22. Respondent No.1 has also filed a counter affidavit, wherein the allegations in the writ

petition have been denied. The stand of S.Chitra Devi, the Sub-Inspector of Police is that she had

arrested the accused and produced her before Judicial Magistrate, I, Dharmapuri on 07.10.2000.

The positive stand of Respondent No.1 is that the victim was produced for medical check up


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through Head Constable 1664 and WPC 1655 at Government Head quarters hospital through

Judicial Magistrate, Dharmapuri and the accused was also produced for medical check up

through Judicial custody by Gr.I. P.C 106 Perumal at Government Hospital, Dharmapuri. After

medical checkup, the victim was produced before the Judicial Magistrate I. The JudicialMagistrate I Dharmapuri remanded the victim to judicial custody on 21.10.2000 and then the

victim was handed over to Sub-Jail, Dharmapuri. It is her positive stand that she had not made

any requisition to remand the petitioner. It was a suo motu decision taken by the Court, for

which she is not responsible.

23. It is the positive stand of respondent No.1 that she was surprised by the action of the

Judicial Magistrate I and she approached her and pointed out the mistake committed, who

thereafter, promptly issued a production warrant of the petitioner from the sub-jail. Accordingly,

the petitioner was produced before the Magistrate through the said Police Constables on

23.10.2000 and got released by the Court, otherwise she would not have been released and wouldhave been detained further. Thus the positive stand taken by respondent No.1 is that it was the

second respondent who remanded the petitioner to judicial custody without verifying any

records.

24. When the matter came up on the last date of hearing, the learned counsel representing

the second respondent took a positive stand that it was not Respondent No.2, who had remanded

the petitioner to judicial custody. This Court believing the statement to be correct, called for the

records from jail authorities, wherein, it was revealed that it was the Judicial Magistrate No.1,

Dharmapuri who had remanded the petitioner to Sub-Jail. Even at that stage, the stand of

respondent No.2 was that the order must have been passed by some other Judicial Magistrate.

25. Therefore, further records relating to the remand warrant were called for. The perusal

of these records showed that it was indeed Respondent No.2, who had remanded the petitioner to

judicial custody for offences under Sections 417, 493, 506(ii) IPC.

26. Though in normal circumstances, this Court in exercise of its writ jurisdiction does

not deal with cases for compensation, however, in view of the facts, which have come on record

of this case, interference is warranted.

27. In fact, the refusal to exercise the jurisdiction conferred upon this Court to protect the

fundamental rights of the citizens of this Court would amount to abdication of the duties castupon this Court.

28. In the instant case, Respondent No.2, had remanded the petitioner, who was a

complainant, to judicial custody. Thus, an innocent person, who in fact, claimed to be the

victim, was deprived for personal liberty protected under Article 21 of the Constitution of India.


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29. Further still, when this irresponsible and negligent act was brought to the notice of

Respondent No.2 on 23.10.2000, she did not try and correct her mistake. Instead of setting the

Petitioner free, Respondent No.2 in a completely irresponsible and negligent manner, without

verifying the facts, released the Petitioner only on bail bonds. Thus, Respondent No.2 againtreated the Petitioner as an accused. This shows the act of Respondent No.2 was not bonafide in

nature.

30. The contention of Respondent No.2 that her acts were protected under the Judicial

Officers Protection Act, 1850, is also not tenable. Section 1 of the Judicial Officers Protection

Act, 1850 reads as under:

"1.Non-Liability To Suit Of Officers Acting Judicially, For Official Acts Done In Good Faith

And Of Officers Executing Warrants And Orders.- No Judge, Magistrate, Justice Of The Peace,

Collector Or Other Person Acting Judicially Shall Be Liable To Be Sued In Any Civil Court For

Any Act Done Or Ordered To Be Done By Him In The Discharge Of His Judicial Duty, Whether

Or Not Within The Limits Of His Jurisdiction:

Provided that he at the time, in good faith, believed himself to have jurisdiction to do or

order the act complained of; and no officer of any Court or other person, bound to execute the

lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector or other

person acting judicially shall be liable to be sued in any Civil Court, for the execution of any

warrant or order, which he would be bound to execute, if within the jurisdiction of the person

issuing the same."

31. A perusal of the Judicial Officers Protection Act, 1850, would show that theimmunity granted therein to the Judicial Officers is only extended to the Civil Courts. The same

does not extend to the writ proceedings, which have been initiated for the violation of the

fundamental rights of the Petitioner enshrined in Article 21 of the Constitution of India. This

fact is further evident from Section 3(2) of the Judges (Protection) Act, 1985, which reads as

under :

"3. Additional protection to Judges.- (1)Notwithstanding anything contained in any other law for

the time being in force and subject to the provisions of sub-section (2), no Court shall entertain

or continue any civil or criminal proceedings against any person who is or was a Judge for any

act, thing or word committed, done or spoken by him when, or in the course of, acting orpurporting to act in the discharge of his official or judicial duty or function.

(2) Nothing in sub-section (1) shall debar or affect in any manner the power of the Central

Government or the State Government or the Supreme Court of India or any High Court or any

other authority under any law for the time being in force to take such action (whether by way of


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civil, criminal or departmental proceedings or otherwise) against any person who is or was a

Judge."

32. In any case, the acts of Respondent No.2 in the present case were not bona fide. As

stated above, after her negligence had been pointed out on 23.10.2000, Respondent No.2 chose

not to correct the same. Instead, she continued to treat the Petitioner as an accused and released

her only on bail bond. By her irresponsible act, Respondent No.2 deprived the Petitioner of her

liberty and hence, violated her fundamental right.

33. Though in the present case, no evidence or proof has been placed on record by the

petitioner to substantiate her prayer for the award of Rs.5,00,000/- (Rupees Five lakhs only) as

compensation, in my opinion, the interest of justice would be served if a sum of Rs.1,00,000/-

(Rupees One lakh only) is awarded as compensation to the Petitioner.

34. Accordingly, a sum of Rs.1,00,000/- (Rupees One lakh only) is awarded ascompensation to the Petitioner. The same shall immediately be paid by Respondent No.4, the

State of Tamil Nadu, to the petitioner and thereafter, the same shall be recovered by the State

from Respondent No.2 in accordance with law.

35. Additionally, in view of the fact that a false affidavit had been filed by a Judicial

Officer in this Court, this Court recommends that she should be proceeded against

departmentally for acting with extreme negligence and further notice should also be issued to her

to show cause why proceedings under Section 340 Cr.P.C should not be initiated against her.

36. The matter is therefore directed to be placed before this Court on its administrativeside for initiating action against Respondent No.2, as directed above.

37. The present writ petition is therefore allowed with costs, which are assessed as

Rs.10,000/- (Rupees ten thousand only). The same shall also be recovered from Respondent

No.2.

To

1.Chitradevi

Sub-Inspector of Police,

All Women Police Station, Dharmapuri.

2.Gunavathi

Judicial Magistrate I,

Dharmapuri.


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3.Deputy Superintendent of Sub-Jail for Women,

Sub-Jail for Women, Dharmapuri.

4.The Secretary,

State of Tamil Nadu,

Secretariat, Fort St.George,

Chennai

Documents

S Velankanni v Chitradevi & Ors