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Devipriya Vs. State Of Kerala

Kerala High Court WP(C) NO. 25850 OF 2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

WEDNESDAY, THE 22

DAY OF DECEMBER 2021 / 1ST POUSHA, 1943

WP(C) NO. 25850 OF 2021

PETITIONER:

DEVIPRIYA (MINOR), AGED 8 YEARS, D/O. JAYACHANDRAN G.,

AGED 38, RESIDING AT KOTTARA HOUSE, NEAR SAIGRAMAM,

MANGATTU MOOLA, OORUPOYKA (P.O.), PUNNAIKUNNAMMURI,

TRIVANDRUM-695014, REPRESENTED IN THESE PROCEEDINGS

BY HER FATHER AND LEGAL GUARDIAN JAYACHANDRAN G.,

AGED 38, RESIDING AT KOTTARA HOUSE, NEAR SAIGRAMAM,

MANGATTU MOOLA, OORUPOYKA (P.O.), PUNNAIKUNNAMMURI,

TRIVANDRUM-695014.

BY ADV A.K.PREETHA

RESPONDENTS:

1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO

GOVERNMENT, HOME DEPARTMENT, ROOM NO.357(A) & 358, MAIN

BLOCK, SECRETARIAT, THIRUVANANTHAPURAM-695001.

2 DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS,

VAZHUTHACAUD, THIRUVANANTHAPURAM-695010.

3 DEPUTY SUPERINTENDENT OF POLICE, DYSP OFFICE, ATTINGAL,

THIRUVANANTHAPURAM-695101.

4 REJITHA, POLICE CONSTABLE ATTACHED TO PINK POLICE,

ATTINGAL POLICE STATION, ATTINGAL-695101.

5 KERALA STATE SCHEDULED CASTE SCHEDULED TRIBE COMMISSION,

AYYANKALI BHAVAN, KANAKA NAGAR, VELLAYAMBALAM,

THIRUVANANTHAPURAM-695003, REPRESENTED BY ITS CHAIRMAN.

BY ADVS.

S.RAJEEV

P.NARAYANAN

K.K.DHEERENDRAKRISHNAN

V.VINAY

M.S.ANEER

SARATH K.P.

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

22.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

Devipriya – the petitioner - is a radiant, cherubic little

girl of 8 years, with dreams of magical things, like stardust

glistening on fairies wings, as any girl of her age.

2. She must have heard of the huge leviathan machine

that started from Maharashtra a year ago to the Vikram

Sarabhai Space Centre (VSSC) at Thiruvananthapuram,

riding on a truck with 74 tyres, travelling a mere 5 kilometres

a day, through four States, with the help of 32 dedicated

personnel to guide its travel.

3. It certainly is a sight to see, with the machine - called

“Aerospace Autoclave,” weighing 70 tonnes, having a height

of about 7.5 metres and width of 6.65 metres – trudging

along with the speed of less than a tortoise; the power lines

and tree branches across the road being disconnected and

chopped to enable the truck to pass.

4. The little girl reached Attingal along with her father,

Sri.Jayachandran G., to see the truck passed by, but in a few

2021/KER/55001

WPC 25850/21

minutes thereafter, she found the fourth respondent, who is a

Police officer in uniform, confront her father to ask him if he

had stolen her mobile phone from the “Pink Patrol” police car

parked nearby. The pleadings show that the father

immediately said “no”, but that the police officer persisted

and demanded from the petitioner whether her father had

given the “stolen” phone to her.

5. Little Devipriya was caught unawares by the abrupt

turn of events and indubitably terrified by the accusation,

began to cry in helpless despair and fear – the pleadings say.

The scenario transpires to have continued with gusto and the

petitioner and her father apparently being stopped from

leaving and threatened to be taken to the police station by

the fourth respondent unless her “stolen” phone is returned;

when, fortunately, another police officer called into the phone

number of the said respondent, to hear its faint ring from

inside the patrol car itself.

6. This changed everything.

7. Citizens and onlookers gathered and began to

question the fourth respondent, who, it appears, continued to

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justify herself saying that the petitioner's father must have

thrown the “stolen phone” into the car when he became sure

to be caught.

8. As if by the hand of destiny, someone videographed

the whole incident in his mobile phone and this became

projected into the public attention and consciousness, though

social and mainstream media, which then spurred the

jurisdictional statutory Authorities to act almost immediately.

9. The materials on record would indicate that, finding

the fourth respondent to have acted not in conformity with

the requirements of a police officer, she was transferred from

the “Pink Patrol” Unit to the District Crime Records Bureau,

Kollam, based on an enquiry report dated 28.08.2021, settled

by a Deputy Superintendent of Police (Dy.S.P).

10. However, being extremely shaken and under rage of

being humiliated, the petitioner's father approached various

Authorities, including the Kerala State Commission for

Scheduled Castes and Scheduled Tribes; the Kerala State

Child Rights Commission and the Police Complaints

Authority. It transpires that the first among the afore two

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Commissions made specific recommendations against the

fourth respondent, including to remove her from active police

duty and to initiate action against her under the provisions of

Juvenile Justice (Care and Protection of Children) Act, 2015

(for short 'JJ Act'), through Exts.P5 and P6 reports.

11. The petitioner alleges that, however, no further

action has been taken against the fourth respondent and that

the pattern noticed would demonstrate that said respondent

is being supported by the Police Department and the other

official respondents.

12. It is in such scenario that Devipriya has approached

this Court seeking a direction to respondents 1 and 2, who

are State of Kerala and the State Police Chief respectively, to

take “exemplary action” against the fourth respondent for

violating her fundamental rights; and for a further direction

to the first respondent to pay an amount of Rs.50 lakhs under

the doctrine of “Public Law remedy”, for the tortious acts of

the said respondent. The petitioner, of course, also seeks

that this Court direct the second respondent - State Police

Chief, to take further action on the recommendations made

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by the Kerala State Child Rights Commission in Ext.P5.

13. I have heard Smt.A.K.Preetha, learned counsel for

the petitioner; Sri.S.Rajeev, learned counsel appearing for

the fourth respondent and Sri.P.Narayanan, learned

Additional Public Prosecutor appearing for respondents 1 to

14. This matter was considered by the Court on

19.11.2021 at the first instance, when Sri.P.Narayanan,

learned Additional Public Prosecutor, submitted that

necessary action had already been taken against the fourth

respondent and offered to place the details of the same by the

next date. I recorded this in the order of the said date as

under:

“The allegations in this writ petition - without meaning to

say that it is correct or otherwise at this stage – would certainly

bring angst to any right thinking person.

2. The learned Senior Government Pleader and Additional

Public Prosecutor – Sri.P.Narayanan, submitted that necessary

action has already been taken against the 4th respondent and

that he will place on record the details of the same by the next

posting date. He, however, added that the 4th respondent is

presently not serving in the address shown in the writ petition,

but that she is working in DCRB, Kollam City. He submitted that

if this Court is so inclined, summons to her can be served through

the 2nd respondent – State Police Chief.

3. Smt.A.K.Preetha – learned counsel for the petitioner,

vividly narrated certain incidents which she says that her client,

who is a little child of 8 years, had to endure in full public gaze.

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She added that the incident has left an indelible Psychiatric

imprint on her young mind and that she is now scared of “khaki

uniform”.

4. As I have said above, it is too early a stage for this Court

to conclude whether the allegations made in this writ petition are

right or wrong; but certainly, these are ones which should engage

the personal attention of the 2nd respondent – State Police Chief,

with all the seriousness it deserves. I, therefore, permit the

petitioner to take out notice to the 4th respondent through the

2nd respondent – State Police Chief; and adjourn this matter to be

called on 29.11.2021, within which time, the 2nd respondent will

file an affidavit before this Court explaining and detailing the

action taken against the 4th respondent.”

15. The petitioner's allegations and her requests afore

recorded were initially opposed by the second respondent -

Director General of Police by filing an affidavit dated

25.11.2021 – sworn to on his behalf by the Inspector General

of Police, South Zone - producing therewith Exts.R2(a) and

R2(b) report and statement respectively of the fourth

respondent; averring that her conduct was a “normal

reaction”, though she acted not in conformity with her

obligations as a police officer, because she had no deliberate

intention of intimidating or harassing the petitioner or her

father. The State Police Chief has gone on to aver in the said

affidavit that “the allegation that the petitioner started crying

after the intimidation of the fourth respondent is incorrect

and baseless” (sic.) and further that “crowd had gathered

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only after the phone was found from the car. Then the public

began to ridicule the fourth respondent and in that noisy

situation the petitioner started crying” (sic).

16. Presumably being alerted by the affidavit of the

State Police Chief, Smt.A.K.Preetha, learned counsel for the

petitioner, made available a Compact Disk (CD), containing

the visuals of the incident recorded by an onlooker, across

the Bar; and with the consent of Sri.P.Narayanan, learned

Additional Public Prosecutor and Sri.S.Rajeev, learned

counsel for the fourth respondent, it was played back in open

Court and examined by me closely. After watching the

visuals, Smt.A.K.Preetha submitted that her client had been

subjected to psychiatric treatment at the Government Mental

Centre, Thiruvananthapuram, to overcome her deep fear

psychosis triggered by the harrowing experience and

humiliation and I, therefore, issued the following order:

“Sri.S.Rajeev – learned counsel appearing for

respondent No.4 seeks time to file counter pleadings.

2. Smt.A.K. Preetha – learned counsel for the petitioner

handed over a Compact Disk (CD) containing the

visuals of the alleged incident and same was shared in

the Virtual Platform.

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3. Though I do not propose to say anything on the

visuals, prima facie, I am of the view that the 2nd

respondent - Director General of Police, who is also the

State Police Chief, will have to devote his attention to

the issue and file a report before this Court.

4. This is also because the learned counsel –

Smt.A.K.Preetha, submitted that until this time the

police have not taken the statement of the petitioner or

that of her father.

5. As I indicted in the earlier order dated 19/11/2021;

the petitioner is stated to be going through emotional

and psychiatric stress on account of the alleged

incident. The second respondent must also keep this in

mind while filing the report before this Court. I request

the learned counsel for the petitioner to place on

record the details of the treatment her client is

undergoing in a sealed cover so as to enable this Court

to understand the scenario better.

6. Since Sri.P.Narayanan - learned Additional Public

Prosecutor, says that 4th respondent has been

transferred on account of the alleged incidents, I am

certain that the orders with respect to the said

transfer, as also the reasons which impelled the

Authority to do so - including any report and such other

- must also be placed on record by the next posting

date. For the afore purpose, I adjourn this matter to be

called on 06/12/2021.”

17. As luculent from the afore extracted order, I thought

it better to call for a further report from the State Police

Chief because some of the averments in his affidavit did not

ring true to me.

18. In obedience to the order dated 29.11.2021, the

State Police Chief, thereafter, filed a Report before this

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Court, along with a memo of the learned Additional Public

Prosecutor dated 03.12.2021, producing therewith the

statements of the fourth respondent, the petitioner,

independent witnesses, as also the person who recorded the

video in question. The report, however, reiteratingly avers

that “crowd had gathered only after the phone was found

from the car. Then the public began to ridicule the fourth

respondent and in that noisy situation the petitioner started

crying.” The State Police Chief then went on to say that

“there was no intention or attempt on the part of the fourth

respondent to implicate, humiliate or intimidate the

petitioner and her father in public view or to use disparaging

– coloured remarks” (sic). Pertinently, thereafter, he admits

that “the enquiry report (meaning the one prepared by the

Dy.S.P) reveals that the fourth respondent had wrongly

suspected the person (referring to the petitioner's father) for

taking her mobile phone. It says that it was a genuine

mistake that would have happened to anyone” (sic); and that

“she had also apologized to the petitioner's father”. The

report concludes saying that no action is necessary on

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Exts.P5 and P6 recommendations of the statutory

Commissions because, even going by the incident and the

versions of the independent witnesses, as also that of the

fourth respondent, she cannot be seen to have made any

utterances against the petitioner or her father with reference

to their caste and that the concept of “cruelty” as available in

the umbra of Section 75 of the “JJ Act”, cannot apply because

the said respondent did not act with the intention to cause

any vexation to the petitioner or her father.

19. This Court evaluated the afore Report on

06.12.2021, on which day, very pertinently, the fourth

respondent brought on record an affidavit sworn to by her on

the same day, unconditionally taking full responsibility for the

incident and tendering her unqualified apologies to the

petitioner and her family, unambiguously averring as below:

“2. I most humbly submit before this Hon'ble Court that

I had never known peace of mind since 27.08.2021. I am

a housewife and also a mother of three school going

children. My husband is working abroad as a driver. My

mother in law was bed ridden and I was constantly

communicating with her regarding her health on that

fateful day. So, at that moment without any proper

application of mind or thinking, anxious of not finding

the phone, in an utter confusion, I acted and I never in

my dreams thought that it will turn out to be such a

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traumatic event for the beloved child.

3. Unfortunately, fearing a repercussion and adverse

response from the crowd, I could not console the child

and I feel extremely remorseful for the events happened

on that day. I am targeted by the public on every

occasion because of the widespread of the alleged video

in the social media. I am undergoing media and moral

trial by public on each and every single day.

4. I am also a mother and have a daughter aged 6 years

and have no reason to harass a child. I am not able to do

my duty properly due to the extreme mental pressure

and sleepless nights. I am not able to take proper care

of my 3 minor children and this has caused substantial

disruption in my family life as well as my career.

5. I have been transferred to an office almost 100

kilometers from my residential house at Neyyattinkara,

Thiruvananthapuram, causing much disruption in my

family and for my school going children.

6. I deeply regret my behavior on that particular day

and not a single day goes by without repenting my

behavior on that day. I tender my unconditional apology

to the petitioner and her father and crave to this

Hon'ble Court to pardon me for my behavior towards

the minor petitioner on that day. I deeply repent for not

able to have the presence of mind to caress and console

the child when she started crying. Unfortunately 1 could

not act in a way befitting that of a mother, than a public

servant

7. I realize that my unintentional act has caused much

pain and agony to the minor petitioner and her father. I

also repent my actions wholeheartedly and deeply

apologize to the minor petitioner and her family. I

assure the petitioner and this Hon'ble Court that I will

do my duty hereinafter with much care and devotion in

a more responsible manner.”

20. Since I did not find full favour with the Report of the

State Police Chief and because I thought it fit to allow some

2021/KER/55001

WPC 25850/21

time to the petitioner and her family to reflect upon the

apology of the fourth respondent, I indited the following

order on 06.12.2021:

“Read order dated 29.11.2021.

2. The report of the State Police Chief is on record,

produced by the learned Additional Public Prosecutor –

Sri.P.Narayanan, along with his memo dated

03.12.2021.

3. I have read the whole report, which has been

produced in a sealed cover – but to which, even the

learned Additional Public Prosecutor did not attach

confidentiality – and must say that many of the

averments therein are extremely generalized and made

with a subjective tenor. I do not intend to speak in

greater detail on the report but, after noticing the

details of the entire incident, the State Police Chief

says that no criminal action is required against the

officer concerned, specifically referring to Section 75 of

the Juvenile Justice (Care and protection of Children )

Act (“JJ Act' for short).

4. Apart from the question whether Section 75 of the JJ

Act would apply, and even if the State Police Chief has

found otherwise, then an axiomatic question would

arise whether any other provisions of law, including

under the Indian Penal Code, would be attracted.

5. However, this is completely silent in the report.

6. The State Police Chief then says that the 4

respondent – officer, has been transferred to Kollam

and that she is now asked to serve in a “non-

uniformed” post.

7. However, the report does not say that this was done

by way of punishment nor does it state which provision

of law was followed for doing this, except that she was

also asked to submit herself to a “behavioral training”.

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8. That said, the statements of various persons,

including the witnesses involved in this case, have

been produced along with the report.

9. The one deposition that has caught my singular

attention is that of the petitioner herself, wherein, in

the most innocent manner as one would ascribe to a

child of her age, she says that the officer – whom she

refers to as 'aunty' – asked her whether she had taken

the phone from her father. She says that she told her

she did not do so, but that the said Officer still accused

openly that she saw her father taking the phone from

the car.

10. Smt.A.K.Preetha, learned counsel for the petitioner,

has made available the records of the psychological

evaluation of the petitioner, conducted by the

Government Mental Health Centre. She informed me

that this was done under the aegis of the Child Rights

Commission.

11. I have examined the afore documents and it

certainly contains endorsements that the child was

'fearful' and it was reported that this was on account of

'stressful event' involved in this case.

12. It must, however, borne in mind that the incident in

question happened on 27.08.2021, while the

petitioner’s child was subjected to evaluation only on

04.09.2021 – which was nearly a week after it. No

doubt, by then, her condition may have improved, but

the report still indicates the level of impact that was

caused in her young impressionable mind.

13. Since the report of the Mental Health Centre is not

very legible, I am of the view that, when this case is

next called, Dr.Sreelal. A, clinical psychologist, who

saw the girl must be present online through

videoconferencing, so that this Court can obtain

necessary inputs from him. The competent officer of

the 1

respondent will arrange for this and ensure his

presence.

14. Pertinently, Sri.S.Rajeev, learned counsel

appearing for the 4

respondent, has presented an

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affidavit shown to by his client, wherein, she has

profoundly and profusely tendered an apology to the

child and to this Court for the ‘incident’ that happened

on the fateful day. He explained that the said officer is

also one who is coming from a rather disadvantaged

section and that she has three minor children of her

own. He added that her husband has lost his job in a

country outside India and is unable to return and that

she is also in charge of her aged mother-in-law. He

submitted that, his client is now a changed person, who

would never even dream of doing anything as has been

alleged against her, and that “she whole heartedly and

deeply apologize to the minor petitioner and her

family” (sic).

15. The first impressions of this case, when I had

considered it last time, certainly was one that evoked

extreme empathy for the petitioner, who is a young

innocent and angelic child. I am concerned about her

care and her wellbeing more than anything else and it

is this resolve which is reflected in the earlier orders.

16. Indubitably, a conduct akin to the one exhibited by

the 4

respondent cannot be allowed in future and this

Court is aware that, but for the accidental recording of

the same, none of this would have come to the public

gaze, as has been done now.

17. The State Police Chief, instead of trying to support

or justify the conduct of the 4

respondent, must

ensure, as has constantly been said by this Court, that

every Officer acts in the manner as is expected of

them, with empathy and responsibility to their fellow

citizens, who are in fact, their protectors, as per the

Constitutional imperatives of our Nation.

18. It is not when an incident is brought to light that

action should be taken, but every officer should be

sensitized, particularly in their dealings with women

and children.

19. I am therefore, of the undoubted view that the 1

respondent – State of kerala must now inform this

Court what they propose to do for the child to assuage

her scarred feelings and to restore her trust and belief

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in humanity and the Police Force.

20. As I have said above, she is a very young girl with

an impressionable mind and the scars at this age will

be carried by her throughout her life.

21. I, therefore, asked Sri.P.Narayanan, learned

Additional Public Prosecutor, as to what the State

proposes to do for the petitioner; to which he submitted

that a counter affidavit will be filed by the 1

respondent, detailing the measures for the afore

purpose. This is recorded.

22. The afore being indited, the apology now offered by

the 4

respondent to the child certainly is welcome, but

it is for her and her parents to decide whether it would

be sufficient. Smt.A.K.Preetha seeks time to confer

with her clients on this.

23. At this time, Sri.P.Narayanan – Additional Public

Prosecutor brought to my notice that the District Police

Chief, Thiruvananthapuram (Rural) has called for a

report from the jurisdictional Child Protection Officer,

after conducting apposite counseling for the petitioner.

If this be so, the said report shall also be made

available to this Court by the next posting date.”

21.Even though the afore order speaks for itself, I

deem it necessary to emphasis that this Court found it rather

strange that none of the official respondents had even

touched upon the mental trauma suffered by little Devipriya

and hence to summon Dr.Sreelal, the Psychologist attached

to the Mental Health Centre, for an online interaction

regarding her condition and also directed the State of Kerala

to inform this Court what they propose, as reparative

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measures, for the petitioner.

22.When I thereafter called this case on 15.12.2021,

the learned Additional Public Prosecutor invited my attention

to the memo dated 14.12.2021 filed by him, producing with it

the report of the Psychologist attached to the District Child

Protection Officer, Thiruvananthapuram, which has

unreservedly recorded that Devipriya suffered lack of sleep,

fear and incapacity to study, when she was examined

31.08.2021 (wrongly shown therein as 31.09.2021) and that

she was given assistance to reduce her “mental stress”. The

relevant portion of the said report is extracted below to

enable a full appreciation:

കൗൺസിലിങ് റി

പ്പോർട്ട്

ബഹു.ബ

ാലവകാശ സംരക്ഷണ കമ്മിഷനിൽ നിന്നും ലഭിച്ച

നിർ

ദേശാനുസരണം കേസിന് ആസ്പദമായ സംഭവം

നടന്നതി

ന്റെ അടുത്ത ദിവസം ശ്രീ ജയചന്ദ്രനെയും

കുടുംബ

ത്തെയും ബന്ധപെടുകയും അവർക്ക് മാനസിക

പ

ിന്തുണ നൽകുകയും തൊട്ടടുത്ത പ്രവൃത്തി ദിനമായ

31- 09 -

2021ന് ടി ക

ാര്യാലയത്തിലെ ജില്ലാ റീസോർസ് സെന്ററിൽ

ശിശു സൗഹ

ാർദ അന്തരീക്ഷത്തിൽ വച്ചു കുട്ടിക്ക്

സൈ

ക്കോളജിസ്റ്റ് കൗൺസിലിംഗ് ലഭ്യമാക്കകയും ചെയ്തു

ടികുട്ടിയു

ടെ ഉറക്ക കുറവ്

, ഭയം, പ

ഠിക്കാൻ താൽപര്യം ഇല്ലായ്മ

2021/KER/55001

WPC 25850/21

തുടങ്ങിയ

പരാതികൾക്ക് കൗൺസിലിംഗ് മുഖേന

പ

രിഹാരങ്ങൾ നിർദേശിക്കുകയും മാനസിക സമ്മർദം

കുറക്ക

ാനുള്ള സാഹചര്യം ഒരുക്കണമെന്നും തുടർന്നുള്ള എല്ലാ

സേ

വനങ്ങൾക്കും ടി കാര്യാലയവുമായി ബന്ധപ്പെടണമെന്ന്

അറിയിക്കുകയും

ചെയ്തു

തുടർന്ന്

27-11-2021

ന് ടീ കുട്ടിയുടെപിതാവായ

ശ്രീ ജയചന്ദ്ര

നെ

ഫോണിൽ ബന്ധപെടുകയും

ഇപ്പോഴത്തെ അവസ്ഥ

ചോദിച്ചറിയുകയും തുടർ

കൗൺസിലിങ്ങിനായി കുട്ടിഈ കാര്യാലയത്തിൽ

എത്തിക്കുവാൻ

അറിയിക്കുകയും

ഉണ്ടായി

ശേഷം

03-

12-2021

ന് ടി കുട്ടി പിതാവുമായി ജില്ലാ റിസോർസ്

സെൻറ്റിൽ എത്തുകയും

സൈക്കോളജിസ്റ്റിന്റെ

സേ

വനം

ലഭ്യമാക്കുകയുംചെയ്തിട്ടുണ്ട്

നിലവിൽ കുട്ടിക്ക്

മാനസിക പ്രയാസങ്ങൾ കുറഞ്ഞെന്നും കുട്ടി

സാധാരണ

ജീവിതത്തിലേക്ക് മടങ്ങിയതായും

കൗൺസിലിങ്ങിൽ നിന്ന് അറിയാൻ സാധിച്ചിട്ടുണ്ട്

23. In the afore background, I also interacted with the

afore named Dr.Sreelal – who had seen Devipriya a week or

so later and whose impressions were produced by

Smt.A.K.Preetha, along with the memo dated 06.12.2021 – as

mentioned above – through video conferencing. He reported

that little Devipriya is a highly intelligent girl, with an

impressionable mind and deep intellectual capacity and that

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mercifully, she is not carrying any hatred against the 4

respondent, in spite of the intense trauma suffered by her.

Certainly, this pleased this Court and made my heart lighter,

because the visuals I saw was of a young hapless girl crying

consolably.

24.During the hearing that went on after this,

Smt.A.K.Preetha insisted that State of Kerala be directed to

compensate her client under Public Law; and I, therefore,

thought it apposite to allow some time to Sri.P.Narayanan, at

his request, to inform this Court whether the State is willing

to accede to any figure, taking note of the unconditional

apology tendered by the 4

respondent. This was recorded in

my order dated 15.12.2021, which is to the following effect:

“I have heard the learned counsels on all sides today,

in great detail.

At the Bar, request is made by Smt.A.K.Preetha –

learned counsel for the petitioner, that her client's plea

for a Public Law reparation sought for by her be

granted, but I am of the view that I will require the

specific response of the Government in this matter,

including as to whether they are accede to willing any

figure.

I therefore, adjourn this matter to be called at 1:45 PM

on 20.12.2021.”

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25. There was an adscititious reason for this Court to

make the order dated 15.12.2021, which is that the State of

Kerala had placed their affidavit dated 14.12.2021 on record

without touching upon the prayer of the petitioner for

compensation but merely averring that the 4

respondent

had been transferred out of “Pink Petrol” and that “they will

seek support from the Women and Child Welfare Department

to assess the status of the child through their approved Child

Psychologist/ Counselor. After assessing the present situation

of the child through an expert, necessary counselling, or

other appropriate support system for improving the self-

confidence and self-esteem of the child will be provided in a

time bound manner” (sic).

26.The matter was thus listed on 20.12.2021, when

Sri.P.Narayanan, however, submitted that the facts, as

stated by the petitioner, are severely disputed and therefore,

that State of Kerala is not willing to compensate her in any

manner, under the Public Law Remedy Doctrine. He also

referred to the Government Order dated 18.12.2021,

enclosing a statement of the Additional Chief Secretary of the

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State of Kerala, along with memo dated 20.12.2021, wherein

the averments ut intra have been made:

“The Hon'ble High Court has specifically directed the

State to have a say in the matter of paying

compensation to the child. There is no denying that the

child was put into immeasurable agony following the

incident. And the Government have assured any

further steps to provide mental support through

counseling, if needed. The particular incident of

harassment by the Police as alleged, was happened on

account of the Pink Police Officer, not showing due

diligence in handling the situation. Government deeply

regrets the improper behavior shown by the Officer

who is duty bound to protect the rights of the common

man. However, the State Police Chief has ruled out the

chance of invoking provisions of SC/ST (PoA) Act and

the Juvenile Justice Act in the instant matter. There is

no willful or malafide intention on the part of the

Officer to defame or harass the child or her father. The

entire incident happened on account of a

misunderstanding by suspecting that her mobile phone

was stolen. Thereby the provisions of SC/ST (PoA) Act

which requires adequate compensation to the victims

cannot be invoked in the case. There is no chance that

the Police Officer would come to know the caste of the

petitioner she met by chance. Hence she can only be

held responsible for improper behavior.

In the circumstance, Government proposes to direct

the officer concerned in particular and the entire Police

Force in general to show utmost diligence while

discharging their official duties and dealing with the

General Public. Therefore, Government may not be

held liable for paying compensation to the petitioner as

such practice will only put the entire Force in poor

light and the General Public may further take Law and

Order into their hands. Government may be put into

further unnecessary or fabricated litigations on

extraneous reasons raised by people, if the State

accede to such demands. Hence Government will take

all necessary measures to prevent the occurrence of

such incidents and the State Police Chief will be

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directed to give a strict warning accordingly to the

entire Police Force dealing with Law and Order issues.

It may further be submitted that there occurred no

violation of fundamental rights of the citizens, and

there is no specific findings on the violation of Public

Laws. Hence this case warrants no monitory

compensation to the petitioner. If at all any

jurisdictional Court would find that there is any

violation of any of the laws has been committed by

the Pink Police Officer, the petitioner has every

right to avail the remedies available under the

Public Law.” (emphasis supplied)

27.Frankly, this amazed this Court to a great extent

because, Sri.P.Narayanan went on to further say that, without

the visuals being part of the record, this Court cannot take

cognizance of the same and consequently, I was left without

any other option but to order as below on that date:

“Though I wanted to dictate judgment today, the

learned Additional Public Prosecutor –

Sri.P.Narayanan, submitted that many of the facts as

stated by the petitioner are severely disputed. I then

asked him about the visuals of the incident shared by

the counsel for the petitioner online during the earlier

posting, to which he responded by saying that it

cannot be taken cognizance of since the same has not

been produced on record by her. He argued that in the

absence of the same, this Court is obligated to go by

the affidavits of the Police Officers and the Statements

of the witnesses recorded in the internal enquiry alone

– which will demonstrate that the facts, as stated by

the petitioner, are disputed, she is thus not deserving

of being granted any compensation under the doctrine

of Constitutional Tort.

2. However, I notice that in the affidavit sworn to by

the Inspector General of Police, dated 25.11.2021, she

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makes a reference to a ‘video’ which she had seen. The

specific averment of the said Police Authority is

available in paragraph 7 of the said affidavit to the

effect: ‘he voluntarily raised his shirt to prove his

innocence which is clear from the video that has been

circulated in the media’ (sic).

3. Any person will thus infer that the Inspector

General or some other Officer in charge of the internal

enquiry had seen this video and that it is part of the

said enquiry conducted by the Police Department.

However, for some reason, the same has not been

produced before this Court, though every other

statement of witnesses and such other, have been

made available. 4. Since the State now says that this

Court cannot take cognizance of the facts as stated by

the petitioner, in the absence of any material to prove

it, I am certain that the video which is referred to by

the Inspector General of Police in her affidavit afore,

must be placed before this Court, so that judgment can

be delivered after examining it.

I, therefore, adjourn this matter to be called on

22.12.2021 with a direction to the official respondents

to produce the ‘video’ referred to by the Inspector

General of Police in her affidavit dated 25.11.2021.”

28.It is in such factual scenario that this writ petition

has been now placed before me today and I record that a

Compact Disk (CD) has been produced on record by

Sri.P.Narayanan, along with his memo dated 22.12.2021,

containing the visuals of the incident dated 27.08.2021,

which has been seen by me in open Court, in the presence of

all learned counsel; and I must say that it is exactly the same

as was shown to this Court by Smt.A.K.Preetha as mentioned

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above.

29.However, in spite of all the above inputs,

Sri.P.Narayanan argued in defence of the 4

respondent,

justifying her conduct as being “natural” and “without malice

or deliberate intent to cause any vexation to the petitioner or

her father”. He made his submissions relying upon the Notes

of Arguments dated 20.12.2021 and 22.12.2021 filed by him

and pleaded that this writ petition be dismissed.

30.It is thus perspicuous that this Court is now called

upon by the official respondents and is thus enjoined to

consider every contentions of theirs on its merits; but I must

say prefatorily that when the 4

respondent unhesitatingly

admits the incident, though saying that what happened on

that day was not intentional and in the heat of the moment, I

would have normally expected the State of Kerala to feel for

Devipriya and to compensate her appositely, because it is

indubitable that the events of that day – be that intentional or

otherwise – has left an indelible psychiatric scar on her,

which is inescapable from the afore seen report of the “ORC

Psychologist” attached to the District Child Protection Unit,

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who has reported that she suffered lack of sleep, fear and

inability to study at least for a few days.

31.This Court justifiably expected the State to stand

with little Devipriya, under the celebrated Parens Patriae

Principles, but the arguments and subsequent pleadings

before this Court reflect to the contrary.

32.In fact, the entire line of defence put up by the

official respondents in all their affidavits, statements and

reports, is to the effect that little Devipriya never faced any

intimidation on account of the action of the 4

respondent

and therefore, that none of her fundamental rights have

been violated; though they, without hesitation, concede that

she went through “Psychological trauma on account of

the incident” (sic) (see paragraph 12 of Report dated

02.12.2021 of the State Police Chief).

33.Very pertinently, thereafter, in the statement of the

Additional Chief Secretary dated 20.12.2021, he says

unequivocally that, however, “if at all any jurisdictional Court

would find that there is any violation of any of the laws has

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been committed by the Pink Police Officer, the petitioner has

every right to avail the remedies available under the Public

Law” (sic). This, therefore, can only mean that State is willing

to compensate her if her constitutional or legal rights are

proved to be violated.

34.Therefore, the real question now is, in the

background of all the materials and visuals available, whether

this Court can affirmatively find that any of the fundamental

rights of little Devipriya has been violated on account of the

action of the 4

respondent; and if so, whether the State

would be vicariously liable on her behalf to compensate

adequately, under the Public Law Remedy Doctrine.

35.For this purpose, I will certainly have to go through

the materials on record, but I must also be greatly

circumspect because anything that I say here certainly can be

used against the 4

respondent.

36.I, therefore, record that every observation of this

Court to be presently made is only from the frame of

reference of the violation of any fundamental right of

Devipriya, on account of the conduct of the 4

respondent,

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thus leading to the assessment and grant of appropriate relief

to her.

37.As I have already indicated above, the germane

relevant materials on record, inter alia, are the report of the

enquiry conducted by the DYSP on 28.08.2021; the affidavit

of the State Police Chief before this Court – which is in fact

sworn to on his behalf by the Inspector General of Police –

dated 26.11.2021; the report of the State Police Chief dated

02.12.2021 and Exts.P5 and P6 recommendations made by

two Statutory Commissions.

38.The incident in question happened on 27.08.2021.

An enquiry was initiated – which the petitioner says was

consequent to the requisition by the Commission for Child

Rights, and which the official respondents say was at the

instance of the District Police Chief – in which the statements

of several witnesses have been recorded. These statements

are available on the files of this case, marked as Exts.R2(vii)

(a) to R2(vii)(i).

39.A close inspection of the afore statements of the 4

respondent and the witnesses disclose s certain very vital

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details, which are crucial to this case. I will, therefore, deal

with them in essential detail in the following few paragraphs.

(a) Ext.R2(vii)(a) is the statement of the 4

respondent, who admits that when she confronted

the petitioner’s father to return her phone, she

began to cry a “little”. She then says that when the

phone was located and crowds gathered, Devipriya

began to cry “more”. She, however, justified her

conduct saying that she acted as any other “normal

person”, when she found her phone to be missing

and because the petitioner’s father was “acting

suspiciously”. Of course, she has also said therein

that she had tendered her apology to the petitioner’s

father immediately thereafter.

(b)As far as Ext.R2(vii)(b) is concerned, it is

the statement of the petitioner, wherein, she has

narrated the incident from her perspective and has

very sweetly referred to the 4

respondent, without

any malice or spite, as “aunty”. She, however, has

stated that the 4

respondent accosted her father

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and demanded phone from him and then turned to

her, asking whether she had been given the same,

thus making it clear – from her perspective – that

she and her father had been detained by the said

respondent and that there was an unfair accusation

of theft made against both of them.

(c)Ext.R2(vii)(c) is the statement of the father

of the petitioner, with which I do not want to deal

with at the moment because it is not his perspective

which is relevant here.

(d)Coming to Exts.R2(vii)(d) and R2 (vii)(e),

they are the statements of the police officers who

were with the 4

respondent at the time of the

incident. The first among them – Smt.Preetha,

affirmed that there was an incident and that an

unfortunate accusation was made, but it is clear

from her further statement that she was not aware of

the details of the same, perhaps because she was

slightly away at that time. However, Ext.R2(vii)(e),

which is the statement of Smt.Reena – who is the

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police officer called to the number of the 4

respondent to finally locate the phone – establishes

beyond any doubt that even at the time when the 4

respondent asked the father of the petitioner for the

first time about her phone, she had begun to cry.

She, in fact, says that, thereafter, a crowd gathered

and therefore, that she called into the phone to

locate it, which led to the onlookers to accuse the 4

respondent for having harassed the petitioner and

her father. Pertinently, she says that she and

Smt.Preetha tried to console the petitioner – who

had by then been reduced to inconsolable tears – and

her father, but there is no reference to any such

attempt having been made by the 4

respondent

therein.

(e)Three independent witnesses were also

thereafter examined, whose statements are on

record as Exts.R2(vii)(f), R2(vii)(g) and R2(vii)(h). All

the three witnesses, namely Rajan, Asokan and Suni,

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spoke in unison with respect to the manner in which

the incident unfolded; and in fact, Sri.Rajan added

that the 4

respondent had even threatened to

search the petitioner for the phone and that she then

started crying. He also confirmed that the 4

respondent said that if her phone is not returned,

both Devipriya and her father will be searched and

taken to the police station. Sri.Suni, in his Ext.R2(vii)

(g) statement spoke on the same lines as Sri.Rajan,

supplemented it saying that the moment little

Devipriya was confronted by the 4

respondent, she

began to cry, which she continued for the entirety of

the incident, which was more than nearly 10

minutes.

(f) The final statement was taken from the

person who recorded the video clip, whose name is

Ziyad Rahman, and which has been marked as

Ext.R2(vii)(i). His version is also in tandem with that

of other witnesses and he has explained why and in

what manner, he recorded the visuals and handed it

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over to the Investigating Team when asked.

40.The above being so recorded, one important

additional input which this Court will need to advert to is

Ext.R2(a) – produced along with the affidavit of the State

Police Chief dated 25.11.2021 – which is the report submitted

by the 4

respondent immediately after the incident

happened. She unreservedly affirmed that she stopped

and detained the petitioner and her father under the

impression that they had stolen her phone and that

when they tried to leave, they were again stopped so as

to locate the phone or to be taken to the police station

for further action. She has justified her conduct in the said

report, saying that she believes that on the theft being

discovered, the petitioner’s father threw the phone back into

the patrol car and that it was thus found in the rear foot well

of the said vehicle. Pertinently, she has not even whisperingly

mentioned therein that she had apologized to the petitioner

or to her father immediately after the incident.

41.It is perspicuous – as is admitted - that the above

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are the statements noticed by the DYSP, while he prepared

the report dated 28.08.2021 and placed it before the

Inspector General of Police. When I go through this report,

which is available on record as Ext.R2(ii), I must say that one

can only be perturbed in the manner in which he has

interpreted the whole incident to say that the 4

respondent

has acted under a “justified impression” that her phone had

been stolen by the father of the petitioner and that her

reaction was only “natural”, but that no serious misconduct

can be attributed against her. This report appears to have

been accepted by the Inspector General of Police – as is also

conceded to by the State Police Chief in his affidavit and

Report – leading to an order, transferring the 4

respondent

to Kollam, recording that, it was sufficient punishment for

her.

42.In fact, Ext.R2(iv) proceedings of the Deputy

Inspector General of Police has also been placed on record,

along with the report of the State Police Chief dated

02.12.2021, wherein, it is recorded that “The enquiry report

submitted by the D.C.P, Thiruvananthapuram rural in

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connection with the incident that Moonnumukku Junction,

Attingal, on 27.08.2021 has revealed that Smt.Rajitha

WSCPO was found short of standard of behavior expected of

a police personnel deployed in Pink Patrol” (sic).

43.The consequential proceedings of the Inspector

General of Police, a copy of which is Ext.R2(v), then records

as under :

“There was allegation that while one Sri.Jayachandran

along with his 8 year old girl child, Devu was standing

near the pink vehicle at Moonnumukku, the driver of

the pink vehicle, WSCPO Rejitha questioned him in

public and insulted him suspecting him of stealing her

mobile phone from the pink vehicle.

I have carefully verified the report received from the

Dist.Police Chief,Thiruvananthapuram Rural. It is clear

that from the words of independent witnesses, that

Ms.Rajitha had wrongly suspected the person of taking

her mobile phone. This was a genuine mistake that

could have happened to anyone. However, she has not

used any derogatory language either to the child or the

father. In fact, there was no way that she would know

if the persons belonged to the SC/ST community at all.

The DIG, Tvpm range has already transferred her out of

the district.”

44.Therefore, it is apodictic that the stand of the

official respondents is that little Devipriya did not cry

because of the pressure brought up on her or her father by

the 4

respondent in her quest to find her own phone, but

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that she broke into tears when people gathered subsequently

thereafter.

45.It is also their unequivocal stand, after expressly

admitting that the petitioner was subjected to

psychological trauma , that nothing can be attributed

against the 4

respondent for having created the incident

and that her reaction was only ‘natural’, being under the

impression that her phone had been stolen by the petitioner’s

father.

46. In contradistinction to this are the averments of the

respondent in her counter affidavit extracted in paragraph

19 (supra), wherein she does not offer any justification, but

says that she had acted without discretion, in the heat of the

moment, when she saw that her phone was missing.

47. Incredulously, however, the attempt of the official

respondents, crystally clear from their pleadings filed much

later, is to somehow support the 4

respondent and deny the

petitioner her legitimate rights under the Public Law

Doctrine, asserting that the facts relating to the incident on

27.08.2021 are disputed, particularly as to the time when

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little Devipriya started crying.

48. However, I must remind the official respondents that

even if what they say is taken to be true, it is irrelevant at

what point of time the child started crying, but that she did -

which is unreservedly admitted – was solely because she was

terrorized on being confronted and detained by an Officer in

full Uniform and being accused of theft and of surreptitiously

hiding a mobile phone. The abject helplessness and

despondency that little Devipriya must have gone through at

that point of time can never be properly described; but it is

limpid - as is without contest - that she suffered extreme

upheaval and fear, being frightened and humiliated in full

public gaze, ironically, in the presence of a team of Police

Officers who were expected to offer her solace and to protect

her, being the ‘Pink Patrol Unit’.

49. Though the Additional Public Prosecutor –

Sri.P.Narayanan, says that the visuals now placed on record

by him cannot be looked into by this Court or trusted, I am

certainly of the view that the said contention deserves only to

be wholly repelled because it is expressly conceded by him

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that every enquiry done in the past by the Police and which

has been referred above, proceeded after seeing these

visuals; and this is absolutely vital because, in spite of

noticing little Devipriya being pushed to a corner in the said

visuals, the various Police Officers concluded that she was

not crying at the time when the 4

respondent accosted her

and her father, but only much later when the crowds

gathered.

50. Since this Court has seen the visuals, which was not

objected to by any counsel, I have no doubt that, prima facie,

little Devipriya was crying at the beginning of the incident

and her fear was palpable, with she sobbing uncontrollably

and clinging to her dear father, when they were being

illegally detained and subjected to an unsubstantiated

allegation of theft, which would gnaw at the soul of any self-

respecting and right thinking citizen of this nation.

51. The visuals further show that, throughout the

incident, until the phone was located, the 4

respondent was

trying to cover the petitioner and her father with her arms,

thus making them unable to leave and that even at the time

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when the petitioner’s father pulled up his shirt to show that

he was not hiding anything, little Devipriya was sobbing.

Throughout this time also - as the visuals would show - the 4

respondent had her arms in front of the petitioner, so as to

indicate to her that she cannot leave until the phone was

located, or it was handed over to her, either by her or her

father.

52. The scenes of the incident certainly would bring

anguish and agony to any right thinking person and

rightfully, therefore, the 4

respondent has, though

belatedly, apologized to little Devipriya, which I think is a

step in the right direction, because we cannot let our

daughters grow up in anger or harbouring spite for

another.

53. Little Devipriya is a wonderful child, who resides no

hatred for the 4

respondent, which is evident from the fact

that she calls her ‘aunty’ in all her statements and narrates,

with a childlike innocence - as is true of any child of her age -

the incident, but without accusing her in any manner,

whatsoever.

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54. Alas, this has never been noticed by the official

respondents, who have unfortunately tried to justify the

entire incident as being a ‘natural reaction’ from the 4

respondent, on account of the circumstantial situation; but

without, even for a moment, even peripherally being

concerned about the admitted trauma and terror caused to

the little girl, which would last perhaps for her life time,

unless immediate remedial steps are taken.

55. The incident being crystally clear and uncontested

even by the 4

respondent – she, in fact, admitting it in its

entirety and apologising for her conduct – the position of law

involved does not really have to be restated, because from

what little Devipriya went through, no one can dispute that

her fundamental rights under Article 21 of the Constitution of

India - to lead a dignified and full life – had been flagrantly

violated on account of this one unfortunate incident.

56. As I have already said above, I had expected the

State to rise in her defence because she is their daughter, as

much as she is ours; and to offer her some amount of

reparation, which certainly, this Court would have accepted –

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however small or large it was – but the stern refusal from the

part of the State to even recognize the child’s mental trauma

and terror that she went through – which is luculently

reflected in the report of the Psychologist attached to the

District Child Rights Protection Unit and which is admitted to

by the State Police Chief in his report dated 02.12.2021 –

would certainly require this Court to sit up and take notice.

57. In Nilabati Behera v. State of Orissa [AIR 1993

SC 960], the Honourable Supreme Court held unequivocally

that ‘a claim in public law for compensation for contravention

of human rights and fundamental freedoms, the protection of

which is guaranteed in the Constitution, is an acknowledged

remedy for enforcement and protection of such rights, and

such a claim based on strict liability made by resorting to a

constitutional remedy provided for the enforcement of a

fundamental right is distinct from and in addition to, the

remedy in private law for damages for the tort resulting

from the contravention of the fundamental right’.

58.This salutary principle has stood the march of time

and in Rudul Sah v. State of Bihar [(1983) 4 SCC 141],

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their Lordships further fortified it saying thus:

“Article 21 which guarantees the right to life and liberty

will be denuded of its significant content if the power of

this Court were limited to passing orders of release

from illegal detention. One of the telling ways in which

the violation of that right can reasonably be prevented

and due compliance with the mandate of Article 21

secured, is to mulct its violators in the payment of

monetary compensation. Administrative sclrosis leading

to flagrant infringements of fundamental rights cannot

be corrected by any other method open to the judiciary

to adopt. The right to compensation is some palliative

for the unlawful acts of instrumentalities which act in

the name of public interest and which present for their

protection the powers of the State as a shield. If

civilization is not to perish in this country as it has

perished in some others too well-known to suffer

mention, it is necessary to educate ourselves into

accepting that, respect for the rights of individuals is

the true bastion of democracy. Therefore, the State

must repair the damage done by its officers to the

petitioner’s rights. It may have recourse against those

officers.”

59. The Public Law Remedy Doctrine has evolved over

the years and in Mehmood Nayyar Azam v. State of

Chhattisgarh and others [(2012) 8 SCC (1)], the

Honourable Supreme Court made the following affirmations

without leaving any room for doubt:

“32.In Selvi v. State of Karnataka, while dealing with

the involuntary administration of certain scientific

techniques, namely, narcoanalysis, polygraph

examination and the brain electrical activation profile

test for the purpose of improving investigation efforts

in criminal cases, a three-Judge Bench opined that the

compulsory administration of the impugned techniques

constitutes ‘cruel, inhuman or degrading treatment’ in

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the context of Article 21. Thereafter, the Bench

adverted to what is the popular perception of torture

and proceeded to state as follows: (SCC p.376, para

244).

‘244. …. The popular perceptions of terms such as

‘torture’ and ‘cruel, inhuman or degrading treatment’

are associated with gory images of blood-letting and

broken bones. However, we must recognize that a

forcible intrusion into a person’s mental processes is

also an affront to human dignity and liberty, often with

grave and long-lasting consequences. [A similar

conclusion has been made in the following paper:

Marcy Strauss, ‘Criminal Defence in the Age of

Terrorism – Torture.]”

60.As is now well-known, the Honourable Supreme

Court granted benefit to Sri.S.Nambi Narayanan in the

celebrated judgment in his name, reported as S.Nambi

Narayanan v. Sibiy Mathews and Others [(2018) 10 SCC

804], on the very same principles, granting a compensation

as large as Rs.1 Crore.

61.The afore precedents ring doubly true in the facts

of this case because it is uncontested that, under a wrong

impression, the fourth respondent detained the petitioner

along with her father, initially accused the latter of having

stolen her phone and then turning towards the girl to ask

whether it was in her custody and further threatening both of

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them that if the phone is not located, then they would be

taken to the police station and even searched. It is here that

the afore extracted view of the Hon'ble Supreme Court in

Mehmood Nayyar Azam (supra) becomes acme because the

majesty of law must protect the dignity of a citizen and when

such are 'dashed against and pushed back' by those in power,

'there has to be rebound and when the rebound takes place,

Article 21 of the Constitution springs up to action as a

protector'. When dignity is lost, the breath of life gets into

oblivion.

62.Little Devipriya – as is unhesitatingly conceded by

the Government and the State Police Chief – suffered extreme

psychological stress on being illegally detained by the fourth

respondent and being subjected to humiliation, on an untrue

allegation of theft and this certainly eroded her dignity and

attacked her reputation, which, as profoundly stated by the

Hon'ble Supreme Court in Vishwanath Agrawal v. Sarla

Vishwanath Agrawal ((2012) 7 SCC 288), 'is not only the

salt of life but also of the purest treasure and the most

precious perfume of life. When the trauma suffered by little

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Devipriya is so admitted, this Court can never fathom how the

official respondents maintain that her fundamental rights had

not been violated. I can only see this to be in an

brinkmanship to avoid the inevitable liability to honour a

monetary compensation, which, in my strongest view, little

Devipriya deserves without question.

63.As I have said above, it is not in contest - and in

fact, admitted to even by Sri.P.Narayanan - that the events

unfolded on 27.08.2021 ha ve severely traumatized little

Devipriya. Therefore, it does not matter whether the 4

respondent acted vindictively or viciously or deliberately. The

fact that little Devipriya went through the harrowing

experience, which certainly has the potential to leave a scar

in her psychological development in future, would ipso facto

be sufficient for this Court to grant her reparatory relief

under Public Law, without having to push her to a Civil Court

for such purpose, though she certainly can seek civil

remedies in addition to this.

64. In fact, Smt.A.K.Preetha submitted that a Public Law

remedy in this case is inevitable because the reckless action

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of the 4

respondent, which can only be seen outrageous in

the circumstances, has caused an actual injury on little

Devipriya, which has led to a measurable psychological

distress in her, which continued for several days thereafter,

as is evident from the report of the Psychologist attached to

the District Child Welfare Protection Unit.

65. This Court is in complete affirmation with the afore

argument of Smt.A.K.Preetha and as I have already said

above, I am firm in my mind that the petitioner is entitled to

sufficient compensation for the purpose of remedying the

violation of her fundamental right to live with dignity under

our great Constitution, at the hands of the 4

respondent and

which has been unfortunately tried to be trivialized and even

justified by the official respondents through their pleadings in

this case, even when the 4

respondent has no such case,

while expressly admitting her ‘indiscretion’.

66. However, before I can do so, I must answer one

other assertion of Sri.P.Narayanan, who argued that even if

every allegation against the 4

respondent is found to be

true, she will be entitled to protection under Section 113 of

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the Kerala Police Act, 2011. Apart from recording that I am

completely taken aback to hear this from Sri.P.Narayanan,

since this is an argument which should have been impelled by

Sri.S.Rajeev more than anyone else, when one examines the

afore provision, it is ineluctable that only the action of a

Police Officer in his/her official duties will ever come under

its protectional umbra, which then keeps him/her insulated

from legal proceedings. However, in this case, it is conceded

even by Sri.P.Narayanan, that the 4

respondent was not

really acting as a Police Officer, though she was in uniform,

but that she was trying to locate her own phone and acting

virtually as ‘judge, jury and executioner’ in her own cause. I,

therefore, fail to understand how the official respondents can

even whisperingly assert that the 4

respondent is entitled to

protection under Section 113 of the afore Act. This can only

be seen to be in furtherance of their effort to shield her from

legal proceedings - be that Civil or Criminal - in future, to be

initiated by the petitioner or her father; and this Court can

only find the same to be without bonafides and being

actuated by reasons which are not discernible.

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67. Quad Hoc the reliefs in this case, I notice that the

only action taken against the 4

respondent is that she has

been transferred to Kollam, under the guise of ‘keeping her

away from active law and order duties’, which is explained by

Sri.P.Narayanan at the Bar to mean that she will be kept

away from interaction with the public.

68. The crucial question is whether this is sufficient,

particularly in view of the afore observations of this Court

and the binding precedents of the Honourable Supreme

Court.

69. I am of the considered view that, it is not so and that

a proper disciplinary action will have to be taken against the

respondent - of course, with full liberty being given to her

to defend the same in terms of law - because this is the least

the Supervisory Officers should have done, after having

found, without doubt, that she has acted contrary to the

essential requirements of her duties as a Police Officer, so as

to maintain the high standards and discipline required of the

Force.

70. Before I part, I must certainly say that, had the 4

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respondent exercised some discretion and understood her

position as a member of the ‘Pink Patrol Unit’, she would

have never detained or allowed little Devipriya to cry, after

being terrified on account of her own accusation. She is

stated to be a mother with three children, who are two or

more years younger than little Devipriya, and one slightly

older. She is also stated to be in charge of her mother-in-law,

who is not keeping well and that her husband lost

employment abroad, thus plunging the family to great

financial crisis. I, therefore, cannot, as a routine norm, direct

any action to remove her from employment or such other,

since what is now necessary for the petitioner is not be

unwittingly or otherwise drawn into ‘eye for an eye’ or ‘teeth

for teeth’ lex talionis revenge or retribution; but that she

obtains a closure to her trauma, which she unfortunately had

to go through.

71. The apology placed on record by the 4

respondent

certainly goes some way in the afore direction, though I am

aware that the petitioner and her father has decided not to

accept it, but to continue with legal remedies against the said

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Officer.

72. “Pink Police” is certainly a revolutionary concept,

intended for the support and protection of women and

children, particularly of the weaker strata; and had the 4

respondent been aware of this, as also the great

responsibility which she carried of being a member of such

Force, she would certainly have not acted in the manner she

had, at least with little Devipriya. I can only rue that she did

not weigh the consequences of her conduct on little

Devipriya, which could have been certainly avoided, had she

consoled her, putting an arm around her shoulder at that

time, saying a word as simple as ‘sorry’!

73. In the conspectus of what this Court has seen

and recorded above, the award of monetary compensation as

exemplary damages, becomes inviolably requisite, since in

the face of the uncontested infringement of the indefeasible

fundamental right of little Devipriya guaranteed under

Article 21 of the Constitution, such remedy - which is a well

recognised one in public law and edificed on the strict

liability of the State to guarantee the basic and fundamental

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rights of a citizen.

74. As succinctly stated by Justice Dr.A.S.Anand in

Nalabati Behera (supra), 'the purpose of public law is not

only to civilize public power but also to assure the citizen

that they live under a legal system which aims to protect

their interests and preserve their rights. Therefore, when the

court moulds the relief by granting 'compensation' in

proceedings under Articles 32 or 226 of the Constitution

seeking enforcement or protection of fundamental rights, it

does so under the public law by way of penalising the

wrongdoer and fixing the liability for the public wrong on the

State which has failed in its public duty to protect the

fundamental rights of the citizen. The payment of

compensation in such cases is not to be understood, as it is

generally understood in a civil action for damages under the

private law but in the broader sense of providing relief by an

order of making 'monetary amends' under the public law for

the wrong done due to breach of public duty, of not

protecting the fundamental rights of the citizen. The

compensation is in the nature of 'exemplary damages'

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awarded against the wrongdoer for the breach of its public

law duty and is independent of the rights available to the

aggrieved party to claim compensation under the private law

in an action based on tort, through a suit instituted in a court

of competent jurisdiction or/and prosecute the offender

under the penal law.'

75. In fact, as also seen above, the singular

manner in which the State has attempted to avoid their afore

responsibility is by maintaining that none of the fundamental

rights of little Devipriya has been violated on account of the

admitted incident. Apart from the fact that fourth respondent

has no such case and that she takes full responsibility,

through her affidavit dated 06.12.2021 (which has been

extracted in paragraph 19 of this judgment), it defies logic

how this could be ever said, especially when the factum of the

petitioner being detained; she being accosted by the fourth

respondent in full public view of being in possession of the

'stolen phone'; and being terrorized and humiliated in full

public view and guise, thus leading to severe psychological

scar on her impressionable mind - which is indubitable from

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the report of the Psychologist – is conceded.

76. Therefore, when that assertion of the State is

discounted as being nothing but a desperate defence, the

further averments in the affidavit dated 20.12.2021 filed by

them, sworn to by the Chief Secretary and which has been

extracted in paragraph 26 of the judgment – would render it

perspicuous that they also concede that little Devipriya has

every right to avail the remedies available under public law

'if any jurisdictional court would find that there is any

violation of any of the laws has been committed by the Pink

Police Officer' (sic). When the State makes such unreserved

asseverations, it can only mean that they are willing to abide

by their constitutional and Public Law obligations, should this

Court find the fundamental right of the petitioner to have

been violated. It is needless to say any further that the

incident unfolded on 27.09.2021 has not only violated the

dignity of little Devipriya, but also challenged her reputation

and exposed her to public ridicule and fear of being arrested

and removed to the police station, all because the Police

Officer in question acted without discretion and without any

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thought or concern for her inalienable fundamental right to

live a life of dignity, thus being psychologically scared, as

admitted by the Psychologist, whose report has been

extracted in paragraph 22 of this judgment.

Resultantly, I order this Writ Petition with the following

directions:

a)I direct the competent Supervisory Authority, be

that the District Police Chief or such other, to consider

initiation of necessary disciplinary action against the 4

respondent, after following due procedure and affording her

all necessary opportunity of being heard, as per the

applicable Statutes, Rules and Regulations.

b)Until such time as a decision on the afore is taken,

and if consequently, disciplinary action is initiated, then until

it is concluded, the 4

respondent will be kept away from

active law and order duties which will bring her in contact

with general public as part of her official functions and she

will also be given necessary training on interpersonal

relationship with public at large, keeping in mind the

imperative behavioral requirements of Police Officers dealing

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with public in a civilized manner, as has been reaffirmed by

this Court in several judgments in the past.

c)I leave full liberty to the petitioner and her father to

invoke and pursue any remedy which may be available to

them, against the 4

respondent, including under the aegis of

Exts.P5 and P6 recommendations of the Statutory

Corporations; for which purpose, all their contentions with

respect to the same are left open.

d)I direct the 1

respondent - State of Kerala to

compensate little Devipriya in the sum of Rs.1,50,000/-, along

with Rs.25,000/- as costs for these proceedings, within a

period of one month from the date of receipt of a copy of this

judgment.

That being so ordered, I am aware that the petitioner

has sought for Rs.50 lakhs in compensation, but I am of the

certain opinion that, taking the totality of the circumstances,

the afore sum would be commensurate because, the

petitioner is legally entitled to seek a larger compensation

under the Civil Law remedies, through a competent

Court/Forum.

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At this time, Smt.A.K.Preetha reiteratingly requested

that a larger amount be ordered in compensation. I am afraid

that this Court cannot accede to this, even while recognising

that the trauma suffered by little Devipriya is immeasurable;

because when it is to be estimated in pecuniary terms, this

Court will have to keep in mind certain basic parameters. I

am, therefore, of the view that the afore amount as

compensation under the Public Law Doctrine would subserve

justice substantially, if not fully.

Finally, it goes without saying that none of my

observations in this judgment will have any reflection on the

rights and remedies of the 4

respondent, either when she

defends the disciplinary action to be initiated against her or

any other proceeding that she may have to face in future,

thus leaving her liberty to pursue all of them in terms of law.

Sd/-

STU/SAS/RR DEVAN RAMACHANDRAN

JUDGE

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APPENDIX OF WP(C) 25850/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE CASTE CERTIFICATE OF THE

PETITIONER ISSUED BY THE

THIRUVANANTHAPURAM TALUK OFFICE DATED

1.6.2019.

Exhibit P2 TRUE COPY OF THE NEWSPAPER REPORT

REGARDING POLICE HARASSMENT PUBLISHED IN

MALAYALA MANORAMA DAILY 29.8.2021.

Exhibit P3 TRUE COPY OF THE FRONT PAGE OF THE

MEDICAL RECORD.

Exhibit P4 TRUE COPY OF THE COMPLAINT SUBMITTED BY

THE PETITIONER'S FATHER BEFORE THE 3RD

RESPONDENT.

Exhibit P5 TRUE COPY OF THE ORDER DATED 29.9.2021

PASSED BY THE KERALA STATE COMMISSION FOR

SCHEDULED CASTES AND SCHEDULED TRIBES.

Exhibit P6 TRUE COPY OF THE ORDER DATED 12.10.2021

PASSED BY THE KERALA STATE CHILD RIGHTS

COMMISSION.

RESPONDENT EXHIBITS

Exhibit R2(A) TRUE COPY OF THE REPORT DATED 27/08/2021

SUBMITTED BY THE 4TH RESPONDENT BEFORE

THE 3RD RESPONDENT.

Exhibit R2(B) TRUE COPY OF THE STATEMENT GIVEN BY THE

4TH RESPONDENT.

Exhibit R2(C) TRUE COPY OF THE ORDER NO.

A2(A)10052/2021/TR DATED 29/08/2021 OF

THE DEPUTY INSPECTOR GENERAL OF POLICE,

THIRUVANANTHAPURAM RANGE.

Exhibit R2(I) TRUE COPY OF THE REPORT DATED 27/08/2021

SUBMITTED BY THE 4TH RESPONDENT BEFORE

THE 3RD RESPONDENT.

Exhibit R2(II) TRUE COPY OF THE ENQUIRY REPORT

NO.2616/GL/2021/BSD DATED 28/08/2021

SUBMITTED BY DYSP, ATTINGAL TO THE

DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM

RURAL.

Exhibit R2(III)(A) TRUE COPY OF THE LETTER NO.

80/CONFDL/2021/T. DATED 29/08/2021 OF

DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM

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WPC 25850/21

RURAL IN ENGLISH.

Exhibit R2(III)(B) TRUE COPY OF THE LETTER NO.

80/CONFDL/2021/T DATED 29/08/2021 OF

DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM

RURAL IN MALAYALAM.

Exhibit R2(IV) TRUE COPY OF THE ORDER NO. A2(A)-

10052/2021/TR DATED 29/08/201 OF THE

DEPUTY INSPECTOR GENERAL OF POLICE,

THIRUVANANTHAPURAM RANGE.

Exhibit R2(V) TRUE COPY OF THE REPORT NO. D2-

6727/2021/SZ DATED 16/09/2021 OF THE

INSPECTOR GENERAL OF POLICE SOUTH ZONE.

Exhibit R2(Vi) TRUE COPY OF THE LETTER NO. B2-

11831/2021/TR DATED 26/10/2021 OF THE

DEPUTY INSPECTOR GENERAL OF POLICE,

THIRUVANANTHAPURAM RANGE.

Exhibit R2(VII)(A) TRUE COPY OF THE STATEMENT DATED

28/08/2021 OF THE 4TH RESPONDENT.

Exhibit R2(VII)(B) TRUE COPY OF THE STATEMENT DATED

28/08/2021 OF THE PETITIONER.

Exhibit R2(VII)(C) TRUE COPY OF THE STATEMENT DATED

28/08/2021 OF THE PETITIONER'S FATHER.

Exhibit R2(VII)(D) TRUE COPY OF THE STATEMENT DATED