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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