RAJA ELANGO,J This petition has been filed on 10.07.2008 praying for production of petitioner's husband Suresh @ Baba Suresh from Central Prison, Puzhal,Chennai.
2. A perusal of the petition and the counter filed by the respondents reveals the fact that the husband of the petitioner Suresh @ Baba Suresh is involved in number of cases, which are as follows:-
1.PENDING TRIAL CASES Sl.No Police Station Cr.No.
Under Section
1.
Four non-bailable warrants are pending against the said person in the cases concerned in H-6, Dr.Radhakrishnan Nagar Police Station Viz., Sl.No Police Station Cr.No.
Under Section
1. H-6,Police Station 1018/2001 353, 336, 506(ii) IPC.
2. H-6,Police Station 552/2005 341,384,506(ii) IPC
3. H-6,Police Station 1873/2005 341,323,384,506(ii) IPC
4. H-6,Police Station 577/2007 341,323,385,506(ii) IPC Hence, the first respondent police are in search of the accused. On 20.06.2008, when the police personnel attached to the first respondent Police Station, on information tried to apprehend the accused in Crime No.377 of 2008, he attacked the police party and managed to avoid his arrest.
3. The said Suresh @ Baba Suresh moved an Anticipatory Bail in Crl.M.P.No.6374 of 2008, in connection with the said Crime No.377 of 2008 and the same was rejected by the learned Principal Sessions Judge, Chennai on 01.07.2008. Hence, the said Suresh @ Baba Suresh surrendered before the Judicial Magistrate, Ponneri on 02.07.2008 and the learned Judicial Magistrate, Ponneri remanded him to the Judicial Custody. On receipt of such information, the first respondent police has filed a petition for production of the accused in order to obtain police custody on 08.07.2008. The learned XVth Metropolitan Magistrate granted three days police custody from 09.07.2008 to 11.07.2008. Accordingly, the first respondent police took the custody of the said Suresh @ Baba Suresh on 09.07.2008 at 4.45 hours. At the time of production of the said person, he alleged that he was suffering from ailments and requested for treatment and the same was duly recorded by the learned Magistrate. Since, the said Suresh @ Baba Suresh requested for treatment, he was produced before the Causality Medical Officer, Government General Hospital. At that time, the hand-cuffs of the said Suresh @ Baba Suresh was removed to enable the Doctor to treat him. Taking advantage of the same, the said Suresh @ Baba Suresh in a fraction of second, escaped from the custody of the police.
4. In connection with the said incident, a complaint was lodged before the Government Hospital Police Station and a case was also registered in Crime No.19 of 2008 for the offence under
Section 224 of IPC. To secure the said Suresh @ Baba Suresh, three police teams were formed and they were deputed to search the concerned person and also Departmental action was initiated against Grade-I, Police Constables 15684, Thiru.Tamil Mani and 13931 Thiru. Sankaravadivel, who were responsible for the escape of the prisoner. The fact that the said prisoner escaped from police custody was informed to the petitioner herein and the respondents also enquired the petitioner in order to secure the prisoner.
5. During search operation conducted by the first respondent police, on information in wee hours of 11.07.2008 at about 01.17 a.m. i.e., on Friday, while trying to secure the prisoner who was hiding near old warf area within N-4, Fishing Harbour Police Station limits, at 2.15 a.m. when the police party was able to identify the prisoner and when the police tried to nab him, the prisoner threw a country made bomb on the police. However, it fell on the jeep and it burst into flames. Even after warning against the prisoner, he tried to attack the police personnel by throwing another powerful country made bomb, which fell on the police jeep and it exploded. When the first respondent warned the prisoner to surrender, the prisoner took a pistol and tried to shoot at the respondent police and as a last resort, the first respondent used the pistol and shot the accused on his leg and again, when the prisoner tried to shoot the first respondent with a country made gun, the first respondent had no other option except to shoot the prisoner in self defence in order to save himself and other police officers. Due to the injuries suffered, the prisoner was declared dead by the Stanley Medical Hospital Authorities.
6. When the above said petition was heard by the earlier Bench of this court on 11.07.2008 in the Lunch Session, the above said facts were informed to the Court and the learned counsel appearing for the petitioner expressed that he wanted to file two M.Ps. viz., M.P.Nos.1 & 2 of 2008. i) M.P.No.1 of 2008 has been filed praying for Judicial Enquiry by a Sessions Judge. ii) M.P.No.2 of 2008 has been filed praying for suitable compensation for the family members of Suresh @ Baba Suresh.
7. We have heard the arguments of the learned counsel on either side.
8. The learned counsel appearing for the petitioner would submit that the prisoner was killed by the first respondent in the name of encounter, which amounts to custodial death, for which the family members of the prisoner is entitled for compensation.
9. The learned counsel appearing for the petitioner further submitted that taking into consideration the serious allegations made by the petitioner, a judicial enquiry by a District Judge should be ordered.
10. The learned Additional Public Prosecutor filed a detailed counter affidavit and argued that it is not in dispute that the prisoner was killed during encounter. At the same time it cannot be termed as a custodial death. Since, the prisoner escaped from the police custody at the time of encounter, he was not under the custody of the police which fact can be substantiated by the fact that a case was registered regarding the same.
11. The learned Additional Public Prosecutor further submitted that there is no need to give compensation as requested by the petitioner, since it is not a custodial death. The learned Additional Public Prosecutor further adds that there is no necessity for Judicial enquiry, since already an enquiry was ordered by the Government as contemplated under the Police Standing Orders. The District Revenue Officer/Additional District Magistrate, Chennai District, conducted an enquiry, in which the petitioner was also examined. The Enquiry Officer also submitted his report on 26.08.2008. On the basis of the same, the Government has passed an order dated 27.01.2009, dropping further action against the police officials concerned.
12. We have also perused the records produced by both parties. As far as the production of the prisoner as prayed for in H.C.P.No.994 of 2008 is concerned, the fact that the prisoner was killed in an encounter, and the same has been informed to this Court on 11.07.2008 itself and nothing survives for consideration by this Court.
13. The question of compensation would arise only when there is an excess of police power, that too more particularly while a person was in the custody of police and the death is in a suspicious circumstances, for which the police is not in a position to explain the cause of death. Whereas in this case, the definite stand taken by the respondent police is that the prisoner was done to death while he attacked the respondent police with a country made bomb and pistol. The petitioner has also not substantiated that the death was in suspicious circumstances. The stand taken by the respondent police clearly reveal that the respondent acted in order to save their life and the action is also by way of self defence by the respondent Police. Hence, it is not necessary for this Court to pass an order of compensation to the family of the prisoner.
14. As far as the question of Judicial enquiry is concerned, it is evident from the records that a competent authority as contemplated under the Police Standing Orders has conducted a full fledged enquiry. During the enquiry the officer has relied on various materials produced by the parties and after receipt of affidavits from the persons, acquainted with the facts and circumstances of the incident, decided the issue. The Government has also accepted the said report and dropped further action. The procedure through which the allegations against the Police Officials are to be enquired into, the said procedures were duly followed in this case, there is no need for ordering judicial enquiry in this case. When the petitioner is not alleging any malafides on the part of the enquiry officer, either in the affidavit or during the arguments, there is no justification for ordering judicial enquiry in this case.
15. In the result, the Habeas Corpus Petition is dismissed. Consequently, connected M.Ps.are also dismissed.
rrg To:
1.The Inspector of Police, H-6,Dr.Radhakrishnan Nagar Police Station, Chennai-600 021,
2.The Commissioner of Police, Chennai City, Egmore, Chennai.
3.The Public Prosecutor High Court, Madras