P. M. Manoj v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 16TH DAY OF JUNE 2016/26TH JYAISHTA, 1938** **RP.No. 431 of 2016 (G) IN WP(C).15863/2015** **--------------------------------------------------------------AGAINST THE ORDER/JUDGMENT IN WP(C) 15863/2015 of HIGH COURT OF KERALA DATED 19-05-2016** ## **REVIEW PETITIONER(S)/PETITIONER:** **-----------------------------------------------------P.M. MANOJ, AGED 41 YEARS, S/O KUNHIRAMA KURUP, PAZHAYAMADATHIL, MUYIPTH P.O, KOILANDY TALUK, KOZHIKODE DISTRICT.** ## **BY ADVS.SRI.G.HARIHARAN** **SRI.PRAVEEN.H. SRI.PRASUN.S SMT.A.ANJANA SMT.K.S.SMITHA SMT.T.T.SHANIBA** ## **RESPONDENT(S)/WRIT PETITIONER/RESPONDENTS:** **----------------------------------------------------------------------------** **1. O PRABHAKARAN,** **AGED 68 YEARS, SON OF NARAYANAN ADIYODI, KUNIYIL HOUSE, PONMERIPARAMBIL P.O., VILLIAPPILLY VIA, KOZHIKODE DISTRICT - 673 542.** **2. STATE OF KERALA, REPRESENTED BY SECRETARY, HOME DEPARTMENT, SECRETAIRAT, THIRUVANANTHAPURAM - 695 001.** **3. INSPECTOR GENERAL OF POLICE, RANGE OFFICE, KANNUR - 670 001.** **4. THE DISTRICT POLICE CHIEF, KOZHIKODE RURAL, KOZHIKODE - 673 001.** **5. DEPUTY SUPERINTENDENT OF POLICE, CRME DETACHEMENT, KOZHIKKODE RURAL, KOZHKKODE - 673 001.** **6. DEPUTY SUPERINTENDENT OF POLICE, ADMINISTRATION, KOHIKKODE RURAL, KOZHIKKODE - 673 001.** **R1 BY ADV. SRI.M.A.ABDUL HAKHIM R2 TO R6 BY SRI.P.P.PADMALAYAN, GOVERNMENT PLEADER** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 16-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **DG** ## **RP.No. 431 of 2016 (G)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1: COPY OF THE JUDGMENT DATED 19/05/2016 PASSED IN W.P.C.NO.15863/2015.** **ANNEXURE A2:** **COPY OF THE NEWS ITEM PUBLISHED IN THE KOZHIKKODE EDITION OF MALAYALA MANORAMA DATED 21/05/2016.** **ANNEXURE A3: COPY OF THE NEWS ITEM PUBLISHED IN THE ERNAKULAM EDITION OF MALAYALA MANORAMA DATED 21/05/2016.** **ANNEXURE A4: COPY OF THE SUMMONS ISSUED BY THE KERALA HUMAN RIGHTS COMMISSION IN HRMP NO.2643/2012.** **ANNEXURE A5: COPY OF THE SUMMONS ISSUED BY THE KERALA HUMAN RIGHTS COMMISSION IN HRMP NO.2493/2012.** - **ANNEXURE A6: COPY OF THE ARREST MEMO EVIDENCING COMPLIANCE OF THE GUIDELINES IN DK BABU'S 9.CASE BY THE REVIEW PETITIONER IN THE MATTER OF ARRESTING THE WRIT PETITIONER.** **ANNEXURE A7: COPY OF THE OP TICKET EVIDENCING THE WRIT PETITITIONER HAVING AFFORDED WITH MEDICAL EXAMINATION IMMEDIATELY AFTER THE ARREST.** **ANNEXURE A8: COPY OF THE REPLY STATEMENT FILED BY THE WRIT PETITITIONER BEFORE THE 1ST RESPONDENT.** ## **RESPONDENT'S EXHIBTS:** ## **NIL** ## **/TRUE COPY/** ## **P.A.TO JUDGE** ## **A.MUHAMED MUSTAQUE, J.** ------------------------------------------------------------------ R.P.No.431 of 2016 in W.P.(C).No.15863 of 2015 ------------------------------------------------------------------Dated this the 16[th] day of June, 2016 ## **O R D E R** The 6[th] respondent in the writ petition has come up with review on two grounds. Firstly he was not heard in the matter and he could not raise his pleadings before this Court. Secondly, based on the judgment of Honourable Supreme Court in **Rajender Singh Pathania and Ors. v. State of N.C.T. of Delhi and Ors. [(2011) 13 SCC 329]** and **Sube Singh v. State of Haryana and Ors. [AIR 2006 SC 1117],** he raised a ground that this Court could not have awarded compensation alleging custodial violence/torture. 2. There is no dispute to the fact that review petitioner was served with notice. He has not chosen to appear before this Court. It appears that review petitioner approached the office of the Advocate General to submit his written instructions. He projects that the Government Pleader accepted the written instruction and ensured him that pleadings would be completed on his behalf in the writ petition. It has to be noted that he was **2** _RP.No.431/2016_ arrayed in the writ petition in a private capacity and not in official capacity. Looking in that angle, the Government Pleader cannot be engaged for him. Whatever be the reason for non appearance, this Court is of the view that when the writ petition is disposed with available pleadings, this Court cannot reopen or review the judgment to let parties to raise their pleadings. The review jurisdiction cannot be extended or enlarged to entertain such course by one of the parties. Therefore, on this ground this Court is of the view that the petitioner cannot be permitted to raise his pleadings in the writ petition. 3. The next point is whether there is an error apparent in the judgment of this Court by overlooking the precedent stated as above on behalf of the review petitioner. In **Sube Sings** case, the Honourable Supreme Court had occasion to consider the issue whether compensation should be awarded for every violation of Article 21. Supreme Court held as follows: “The infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh or oppressive on account of **3** _RP.No.431/2016_ their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue act in the civil courts. Ordinarily, of course, a petition under Article 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of civil court. It is only in exceptional cases of the nature indicated by us above, that compensation may be awarded in a petition under Article 32.... If we make a fact analysis of the cases where compensation has been awarded by this Court, we will find that in all the cases, the fact of infringement was patent and incontrovertible, the violation was gross and its magnitude was such as to shock the conscience of the court and it would have been gravely unjust to the person whose fundamental right was violated, to require him to go to the civil court for claiming compensation.” 3. The dictum as above would show that the court cannot substitute proceedings under Article 226 of the Constitution of India as of a civil remedy available in private law. Judgment in **Rajendar Singh Pathania's case** reiterated the stand that High Court exercising the jurisdiction under Article 226 cannot **4** _RP.No.431/2016_ award compensation for violation as a substitution of enforcement of rights and obligations through ordinary process. It is held as follows: “The issue of award of compensation in case of violation of fundamental rights of a person has been considered by this Court time and again and it has consistently been held that though the High Courts and this Court in exercise of their jurisdictions under Articles 226 and 32 can award compensation for such violations but such a power should not be lightly exercised. These Articles cannot be used as a substitute for the enforcement of rights and obligations which could be enforced efficaciously through the ordinary process of courts. Before awarding any compensation there must be a proper enquiry on the question of facts alleged in the complaint. The court may examine the report and determine the issue after giving opportunity of filing objections to rebut the same and hearing to the other side. Awarding of compensation is permissible in case the court reaches the same conclusion on a re-appreciation of the evidence adduced at the enquiry. Award of monetary compensation in such an eventuality is permissible “when that is the only practicable mode of redress available for the contravention **5** _RP.No.431/2016_ made by the State or its servants in the purported exercise of their powers.” 4. The facts of the case in hand clearly indicate that the 6[th] respondent/the police officer has been indicted for custodial torture by order of the Government produced as Ext.P4. To find so, medical report issued from the hospital also have been referred by the Government. It was found that custody of the writ petitioner was in violation of guidelines of the judgment of the Honourable Supreme Court in **D.K.Basu v.State of West Bengal [AIR 1997 SC 610]** . In fact, court relegated writ petitioner to work out his remedy before civil court for compensation. This Court did not award any compensation to the writ petitioner, on the other hand this Court only awarded exemplary damages which is of penal nature taking note of the fact that Police officer misconducted himself against a senior citizen. Exemplary damages is based on the principle relating to the strict liability wherein onus is on the offender to establish that the injury suffered by a victim or infringement of any of the right of the victim not owing to any action on his part. Therefore, there was no difficulty for this Court to hold that review petitioner/6[th] respondent was responsible for the injuries **6** _RP.No.431/2016_ and torture suffered by the writ petitioner in the light of finding in Ext.P14. As rightly pointed out by the review petitioner, this Court could not have awarded any compensation as the same has to be worked out in a civil remedy. The dictum as above clearly give the guidelines in this regard. Since this Court had not overlooked those precedents, this Court need not review the judgment. Accordingly, review petition is dismissed in limine. Sd/- **(A.MUHAMED MUSTAQUE, JUDGE)** /TRUE COPY/ P.A.TO JUDGE DG