High Court
Case Details
WP(C) 6862/2010 BEFORE HON’BLE MR. JUSTICE I A ANSARI HON’BLE MR JUSTICE P K MUSAHARY JUDGMENT & ORDER (cav) Musahary,J: (cid:28)There’s none can comfort mother, Now that her boy is dead. ................... (cid:29) Lord Denning quoted in his work (cid:28)The Family Story (cid:29) from ’Pathetic Song ’ to describe the deep sorrow of a mother, whose son died a martyr in the war fi eld at the age of 23. Here is a case unlike the one, which Lord Denning refers to. The petitioner, as a mother has lost her young son in jail custody. No matt er, his was not a martyr’s death, yet all mothers carry sorrow alike on the deat h of their sons. None can, probably, comfort this UTP’s mother too. This grief stricken 65 years old widow, rustic, illiterate and poor mother is before us to bring to our notice thus:
Legal Reasoning
There was an FIR lodged by one Smti Konmai Buragohain on 22.5.20 10 with the Officer-In-Charge, Sadiya Police Station, alleging that on 20.5.2010 , petitioner’s deceased son Mandil Buragohain @ Borgohain forcefully kidnapped h er minor daughter, aged about 14 years, Miss Boby Buragohain. The police registe red a case, being Sadiya P.S.Case No.31 o f 2010, under Section 366A IPC against the petitioner’s son. The police arrested and produced him before the court of SDJM, Sadiya on 23.5.2010. The I O of the case made a prayer to remand Mandil to jail custody so as to enable him to complete the investigation. Accordingly, th e learned SDJM, vide his order dated 25.5.2010 rejected the bail petition moved for Mandil and remanded him to jail custody. On 30.7.2010 the petitioner’s son Mandil Buragohain @ Borgohain died in the district jail at Sapakhowa under myste rious circumstances. Initially, in regard to the said incident, Sadiya Police St ation UD Case No.19/10 was registered and an inquest was held over the dead body of UTP Mandil Buragohain @ Borgohain. Post mortem examination over the dead bod y was also conducted in the Assam Medical College and Hospital (AMCH), at Dibru garh on 31.7.2010. The doctor concerned opined that the cause of death was asphy xia as a result of manual strangulation and the injuries described were ante mor tem caused by blunt weapons. 3. The petitioner has alleged that her son died in jail custody due to t he fault of the State Government and as such, the State of Assam is vicariously liable for violation of fundamental rights guaranteed under Article 21 of the Co nstitution of India. The State is also liable to pay adequate compensation for the death of her son. 4. This Court, vide order dated 23.12.2010, issued notice upon the respo ndents making it returnable by 27.1.2011. In reply to the notice, the Inspector General of Prisons, Assam filed an affidavit on 10.3.2011 stating inter alia, th at the UTP Mandil Buragohain @ Borgohain died in Sadiya district jail on 30.7.20 10 and the post mortem was conducted over the dead body. On receipt of the post mortem report, the Superintendent, District Jail lodged an FIR on 30.8.2010 whic h was registered as Sadiya Police Station Case No. 52/2010 under section 302 IP C. An affidavit was also filed by the Superintendent of Police, Tinsukia on 10. 3.2011 confirming the statements of the IG, Prisons about registration of the af oresaid Sadiya P.S.Case and also initiation of investigation by the Officer-In -Charge of Sadiya Police Station. 5. On receipt of the said affidavit, this court, vide order dated 7.4.20 11, as an interim measure, directed the State of Assam to pay an amount of rupee s one lakh as compensation to the petitioner for unnatural death of her son, wi thin a period of four weeks from the date of order. In compliance of the said or der an amount of Rs.1 lakh has been paid to the petitioner as reflected from or der dated 19.5.11.
Legal Reasoning
6. The matter was posted for hearing on 21.12.2012 but none appeared on behalf of the petitioner. In the interest of justice, Mr. D.Chakraborty,learned counsel was appointed as Amicus Curiae to assist this court and the matter was directed to be listed on 11.1.2013. At the time of hearing Mr. P. Sen Deka, lear ned Addl.Senior Govt. Advocate has produced a status report in regard to investi gation in the Sadiya P.S.Case No.52 of 2010. 7. we have heard Mr. D. Chakraborty, learned Amicus Curiae for the petition er, Mr. P.S. Deka learned Senior Govt. Advocate and Mr. D. Das, learned Addl. Pu blic Prosecutor for the state Respondents. 8. We have also perused the up-to-date status report dated 5.1.2013 prepared and submitted by the Sub-Divisional Police Officer (SDPO), Sadiya. It is state d in the status report that after receipt of the post mortem report, the UD case was returned in FR on 1.9.2010 and an Ejahar was lodged by ASI Lakhinath Sonowa l, which was registered as Sadiya P.S. Case No.52/10 under Section 302 IPC. Duri ng investigation the Investigating Officer examined the informant ASI, Lakhinath Sonowal and visited the district jail, Sadiya. The IO also recorded the stateme nts of some UTPs including one Netra Bahadur Chetri and some jail staff but fail ed to collect substantive evidence. The IO then engaged some UTPs as source to f ind out the culprit. On 7.9.2010 the IO again visited the district jail at Sadiy a where he examined and recorded the statements of four UTPs. Based on source in put the IO re-examined the said UTP Netra Bahadur Chetri and found sufficient ev idence against him regarding his involvement in the case. The said UTP Netra Bah adur Chetri was accordingly brought for three days police remand and after due i nterrogation he was arrested and forwarded to judicial custody on 8.9.2010, in c onnection with the said case. 9. As per status report, during investigation, it was found that no enmity prevailed between the victim late Mandil Buragohain and the arrested acc used Netra Bahadur Chetri. The IO intended to interrogate the victim girl Miss B oby Buragohain in connection with Sadiya P.S. Case No.31/10 under Section 366A I PC but it could not be done so as all her family members had already left the vi llage after the alleged occurrence and villagers could not furnish the whereabou t of the family members of Boby Buragohain. Similarly the IO visited the village of Netra Bahadur Chetri on 7.6.2011 but none of the family members could be fou nd as the family had already shifted to some unknown place. However, the IO exam ined some neighbours of the deceased Mandil Buragohain @ Borgohain and accused N etra Bahadur Chetri and from their statements the IO found that there was no enm ity or dispute between the above deceased and the accused. 10. In the aforesaid status report the SDPO recorded his supervisory notes with certain suggestions on further actions to be taken in the investigat ion of the said case, which are as follows- (cid:28)1.The sketch map of the P.O. Shows that at the time of death of late Mondil Bur agohain there were 9(nine) other convicts/ UTPs inside the ward. It is not possi ble to murder a person without the knowledge of the other inmates inside a close d ward. Therefore the I/O strictly instructed to re examine the other inmates. 2.The statement of UTP Pradip Basumatary is yet to be recorded. 3.The I/O is also asked to find the names of the inmates of the adjacent ward f rom the Sadiya Jail authorities. The I/O is to ascertain if they have heard any noise of struggle from the neighbouring ward and if so at what time. 4.He is to find out the guard duty from the jail authorities between 8.00 P.M. t o 4.30 AM of the fateful night. This is not the duties of the inmates but the du ty of any constable detailed by the jail authorities. 5. He is to also ascertain if late Mondil Buragohain was physically or mentally abused by the jail authorities. 6.The accused Sri Netra Bh.Chetry in his statement U/S 161 Cr.P.C. has said that he strangulated the deceased at 1.00 AM to 1.30 AM when rest of the inmates wer e sleeping. But the statement of Paresh Tiware shows that he was on ward duty be tween 12.00 AM to 2.00 AM thereby contradicting the statement of Netra Bh.Chetry . Therefore, the I/O is instructed to re-examine the statement of Paresh Tiware. (cid:29) 11. From the above status report, there is no doubt, rather it stand s as an admitted position, that the UTP Mondil Buragohain @ Borgohain died in th e Sadiya District Jail on 30.7.2010. In the affidavit filed on 10.3.2011 on beh alf of IG Prisons, Assam (paragraph-2) it is clearly stated that (cid:28)body of the UT P, Mandil Buragohain who died in the Sadiya District Jail on 30.7.2010 a post mortem was conducted and the post mortem report revealed that the UTP died of st rangulation (cid:29). In another affidavit filed on 10.3.2011 by the S.P.Tinsukia (para graph-5) it is stated that (cid:28)the Executive Magistrate Sri Monujyoti Kutum, ACS h eld the inquest over the dead body of Mondil Buragohain who was found lying dead on the cell of District Jail, Sadiya... (cid:29) In paragraph 10 of the said affidavit it has also been stated that IO obtained the post mortem report from Assam Medic al College, Dibrugarh who opined that (cid:28)Death was due to Asphyxia as a result of manual strangulation. All injuries described are ante-mortem and caused by blun t weapon. Homicidal in nature (cid:29). Further it is stated in the said affidavit that as the death of the victim was homicidal, ASI Lakhinath lodged an FIR at Sadiya Police Station which was registered as Sadiya Police Station Case No.52/10 unde r Section 302 IPC and SI Uma Raj Konwar, Officer-In-Charge, Sadiya Police Statio n took up the investigation. 12. The above status report as well as the affidavit filed by the au thorities concerned clearly establish the fact that the deceased Mandil Buragoh ain was killed on 30.7.2010 while he was in jail custody as an UTP in connection with Sadiya P.S.Case No. 31/10 under Section 366A IPC corresponding to GR case No.45/10. 13. The respondents, going by the averments made in their counter a ffidavits and the informations furnished in the status report, cannot deny that the UTP Mandil Buragohain died in the district jail. His death was in the custod y of the district jail authorities. The State may be hesitant to admit it as a c ase of custodial death, inasmuch, as the respondent authorities had shown a ten dency to say that although the UTP died in jail, no fault or liability could be attributed to them for his death as, according to them, the UTP was killed by a co-UTP inside the jail. Going by their stand, if it is to be accepted that the UTP was killed by a co-UTP, it must also be accepted that the State failed to p rotect the life of the UTP inside the jail while he was in custody of the State. Can there be a denial of right to life to a citizen of India simply because he has been put behind the bars for a impending trial or serving sentence after tri al and on being convicted ? The answer must be an emphatic ’no’, yet we would l ike to get ourselves enlightened from the observations of Hon’ble Mr. Justice A. S.Anand (as His Lordship was then), while delivering a concurring judgment in Ni labati Behera -vs-State of Orissa;(1993) 2 SCC 746, which is reproduced hereunde r: (cid:28)(2) Convicts, prisoners or undertrials are not denuded of their fundamental rig hts under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with procedure es tablished by law, while the citizen is in its custody, whether he be a suspect, undertrial or convict. His liberty is in the very nature of things circumscribed by very fact of his confinement and therefore his interest in the limited liber ty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State i s responsible if the person in custody of the police is deprived of his life exc ept according to the procedure established by law. The defence of (cid:28)sovereign imm unity’’ in such cases is not available to the State. (cid:29) 14. Following the aforesaid observations, the Apex Court in the said case, held in clear and specific terms, as quoted hereunder:
Decision
(cid:28)31.It is axiomatic that convicts, prisoners or undertrials are not denuded of t heir fundamental rights under Article 21 and it is also such restrictions, as ar e permitted by law, which can be imposed on the enjoyment of the fundamental rig ht by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accorda nce with law, while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undert rials or other prisoners in custody, except according to procedure established b y law. There is a great responsibility on the police or prison authorities to en sure that the citizen in its custody is not deprived of his right to life. His l iberty is in the very nature of things circumscribed by the very fact of his co nfinement and therefore his interest in the limited liberty left to him is rathe r precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the pe rson in custody of the police is deprived of his life except according to the pr ocedure established by law........ (cid:29) 15. In view of the above settled position of law, we are bound to ho ld that respondent-State and its authorities are liable for their failure in pro tecting the life and liberty of the UTP Mandil Buragohain. 16. Having found that the deceased died in jail custody we would now turn to petitioner’s claim for payment of compensation due to death of her son. Normally a party who demands compensation for custodial death has to go for ac tion under the private law. But this is not so is all the cases. The judicial ac tivism has evolved the public law remedy. Consistently it is viewed that custodial death is one of the wor 17. st crimes in a society governed by the rule of law. The recurrence of custodial death is prevailing in our country. The question of payment of compensation to t he next of kin of the deceased have been considered on several occasions by the Apex Court as well as by various High Courts in exercise of powers vested unde r Article 226 of the Constitution of India. The case of Rudul Sah -vs- State of Bihar;AIR 1983 SC 1086 is one of the leading cases in this respect. It was a c ase where the petitioner was acquitted in a criminal case but he was released fr om jail after more than 14 years. The State tried to justify his detention by fi ling an affidavit that the petitioner was suffering from insanity but it failed to produce any medical proof in support of the diagnosis that he was insane. It was rather confirmed by the civil surgeon of Muzaffarpur, who filed an affidavit , that the petitioner was normal. A great injustice was done to the said petitio ner and the Apex Court, therefore, took the view that the State must repair the damage done by its officers to the petitioner’s right. Taking into account that the petitioner in the said case was detained illegally in prison for over 14 ye ars after his acquittal it was held that the petitioner was entitled to payment of money under the public law in the nature of compensation consequential upon d eprivation of a fundamental right to life and liberty of a petitioner. In the sa id case, as an interim measure the state was directed to pay a sum Rs.30,000/- i n addition to sum of Rs.5000/- already paid by it to the petitioner. The above c ompensation was ordered in the public law proceedings. There is no more dispute in law that interim compensation in the matter of custodial death could be awar ded under the public law proceedings with liberty granted to the claimant to mov e the civil court for damages for the tortious act of the State. It may be note d that while ordering payment of above amount as compensation under public law p roceeding, it was provided that the said order would not preclude the petitioner from bringing a suit to recover appropriate damages from a State and its erring officials. Further it was made clear that the said order of compensation was pa ssed in the nature of palliative inasmuch as a penniless victim could not be lef t helpless until the end of his suit under private law. 18. In this regard, we would like to refer ourselves to the observat ions and law settled in Nilabati Behera’s case (supra) which we consider apt to quote hereunder for better appreciation: (cid:28)34.The public law proceedings serve a different purpose than the private law pr oceedings. The relief of monetary compensation, as exemplary damages, in proceed ings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the stri ct liability for contravention of the guaranteed basic and indefeasible rights o f the citizen. The purpose of public law is not only to civilize public power bu t also to assure the citizen that they live under a legal system which aims to p rotect their interests and preserve their rights. Therefore, when the court moul ds the relief by granting (cid:28)compensation (cid:29) in proceedings under Article 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 l iability for the public wrong on the State which has failed in its public duty t o 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 act ion for damages under the private law but in the broader sense of providing reli ef by an order of making ’monetary amends’ under the public law for the wrong do ne due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of ’exemplary damages’ awarded again st the wrongdoer for the breach of its public law and is independent of the righ ts 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 ju risdiction or/and prosecute the offender under the penal law. (cid:29) 19. What we have been made to understand, better say directed by the Apex Court, is that in the process of judicial activism, a writ court, in a pro ved case of custodial death, should, under the public law remedy direct the Stat e to pay ’just’ compensation to the victim or his next of kins by way of ’moneta ry amends’ and redressal without affecting the party’s right under the private l aw remedy. Now, what should be the ’just’ compensation in this case? Nothing has been stated in this petition about the occupation, source of income or monthly income of the victim. The petitioner has simply presented her victim son as a yo ung man of about 23 years. In the post mortem report, the doctor concerned recor ded his age as 25 years. Such a young man at his age between 23 and 25 years, un less shown or proved suffering from physical or other disability or serious ailm ent, is accepted to secure suitable job or employ himself gainfully in near futu re or could have earned his livelihood by engaging himself in manual work as dai ly wage earner to feed himself and his old widowed mother. Conservatively assess ed, the victim might have earned at least Rs.3000/- per month and he would have continued to earn so or more for at least 30 years till his death, say at the ag e of 55, the minimum average longevity of a person in the present days. We have no business to sit down and calculate the exact income of the victim for awardin g compensation under the public law remedy, which is purely palliative in nature not being a final award with further scope for taking up the claim in appropria te forum under the private tort law action. 20. A Division Bench of this court in Rajen Gogoi -vs- Union of Indi a & ors; 1995(2)GLT 384 awarded compensation of Rs.2,50,000/- with cost of Rs.30 00/- to be paid by the Union of India. In the said case detenu was arrested by a rmy and he was not produced before any magistrate or handed over to police. We d o not want to cite more of like cases where the courts in our country have grant ed monetary or pecuniary compensation in established cases of custodial torture and death. In the light of consideration and decision taken by this court in the aforesaid case (Rajen Gogoi), and considering the rapid escalation of price in essential commodities and cost of living that has taken place in the last 17 yea rs since 1995, we consider that in the present case the ’just’ amount of compens ation could be quantified at Rs.3 lakhs in addition to the earlier amount of Rs. 1 lakh, which has been paid already, to the petitioner. We, accordingly direct t hat the respondent-State of Assam shall pay an amount of Rs.3 lakhs (three lakhs ) in addition to Rs.1 lakh, ordered to be paid earlier, as compensation plus lit igation cost of Rs.10,000/- to the petitioner, as the mother of victim Mandil Bu ragohain @ Borgohain within a period of six months from the date of receipt of a copy of this order. 21. We make it clear that the award of this compensation will not af fect any other liability of the respondent or other person emanating from the cu stodial death of the said victim. 22. Before parting with the records, we regretfully express our angu ish and dis-satisfaction over the manner in which the police has taken up the in vestigation with no serious concern and its failure to submit the charge-sheet a gainst the culprit although a period of more than 2 years has elapsed and no act ion has been taken to fix the responsibility on the officials/staff for whose ne gligence and laxity in their duties, the victim could be killed inside the jail. The jail authority, or for that matter, the State Police Department must be abl e to find out how an UTP could be killed inside the jail. The lapse of the State and its officials cannot be excused. We direct the respondent No.2, Home Secret ary to the Government of Assam, to hand over the Sadiya Police Station Case No.5 2/10 to the CID for effective investigation and fixing the responsibility on the defaulting officials/staff concerned and taking appropriate action against the guilty officials/staff of the district jail. The Respondent No.2 shall submit a compliance report on handing over of case to CID within a period of 21 days from today. He is also directed to submit a detailed report to the Registrar General of this court on the action taken after completion of investigation by the CID. 23. s allowed and disposed of. With a aforesaid observations and directions this petition stand 24. r the legal service rendered by him. Let the learned Amicus Curiae be paid Rs. 5000/- as legal fee fo 25. Let a true copy of this order be sent to Respondent No. 2, Home Secretary, Respondent No. 3, Director General of Police and respondent No. 4, Di rector General of Prisons immediately for their needful.