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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK. WPCRL No.472 of 2013 An application under Article 226 and 227 of the Constitution of India. Aruna Kumar Swain and Others …… Petitioners -Versus- State of Odisha and Others …… Opposite Parties ---------------------------------------------------------------------------------- For Petitioners : Mr. U.K. Samal, Advocate For Opposite Parties: Ms. S. Patnaik, Addl. Government Advocate -------------------------------------------------------------------------------------------------------------------- CORAM: HONOURABLE MR. JUSTICE S.TALAPATRA HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 17th May, 2023 S.Talapatra, J. The Petitioners are the parents, brother and sister of Dandeswar Swain @ Kalia Swain who was admittedly murdered on 12.02.2013, when he was in the judicial custody in Bhanjanagar Special Sub-Jail, as an under trial prisoner (UTP). According to the Petitioners to commit the brutal murder, firearm was used by the assailants inside the Sub-Jail, Bhanjanagar. It is shrouded in 2 mystery how the firearms were brought inside the jail and was used in killing Dandeswar Swain @ Kalia Swain (the deceased). 2. It has been averred in the petition by the Petitioners that the Petitioner No.1 is the father of Dandeswar Swain @ Kalia Swain, who was working as a constable in the police. For the last two years, the Petitioner No.1 could not report to his duty, as he was ill on account of an accident that he suffered while in service. The Petitioner No.2 is the mother of Dandeswar Swain @ Kalia Swain (the deceased). The Petitioner No.3, the brother of Dandeswar Swain @ Kalia Swain is a student of M.A. in Linguistics, at Berhampur University. The Petitioner No.4, the brother of Dandeswar Swain @ Kalia Swain is a student of M.A. in Mass Communication at Berhampur University, whereas the Petitioner No.5, sister of Dandeswar Swain @ Kalia Swain is very young and has passed Higher Secondary (+2) Examination. But for financial stringency, she could not prosecute her higher study. It has been stated that Dandeswar Swain @ Kalia Swain was also a student of inter law of Lingaraj Law College under the Berhampur University.
Decision
It has been admitted by the writ petitioners that Dandeswar Swain @ Kalia Swain was a student-leader and associated with a Page 2 of 20 3 mainstream political party in the State. For his involvement in politics, he was allegedly arrested and implicated in a criminal case. As some politician of the locality did not take his rise in politics, it is apprehended that they with ease might have planned his arrest in association of a section of local police on false and fictitious allegations against him. The deceased was arrested in connection with G.R. Cases No.19/2012 and 314/2012. Thus, he had landed up in Bhanjanagar Special Sub-Jail. 3. On 05.02.2013, the Petitioner No.2, the mother of the deceased had been to Bhanjanagar, Special Sub-Jail to meet her son. While the Petitioner No.2 was waiting near the jail gate, Ajaya Barik, the IIC of Bhanjanagar Police Station came to the spot and misbehaved with the Petitioner No.2 and told her that her son would be murdered. On that plea, the Petitioner No.2 was prevented from meeting her son. It has been also alleged that on several occasions, Ajaya Barik, IIC Bhanjanagar Police Station used to harass and humiliate the Petitioners’ family. On 13.02.2013, the Petitioners came to know that the deceased was murdered in the jail custody by using a gun. After the postmortem examination, the dead body was handed over to the Petitioners. According to the Page 3 of 20 4 Petitioners, four bullets injuries were found on the body of the deceased on four vital parts and it has been clearly opined in the postmortem examination report that the deceased succumbed to those injuries. The local villagers demanded investigation by the Central Bureau of Investigation (C.B.I) to unearth the conspiracy behind the murder of the deceased. But the Petitioners were silenced by threat calls. The news of murder of the deceased was published in the news paper with opinion. According to the Petitioners, the Opposite Party No.5, Ajaya Barik, the then IIC Bhanjanagar Police Station was the kingpin behind the conspiracy to murder of the deceased. The Opposite Party No.5 was collaborated by some local politician, a section of the police administration and the jail authorities. The demand for investigation by the Central Bureau of Investigation did not find favour from the State. By means of this petition a sum of Rs.50 lakhs as compensation has been claimed for loss and pain that the Petitioners have suffered for death of Dandeswar Swain @ Kalia Swain. 4. The Opposite Parties No.1 to 4 filed their reply. Those opposite parties have admitted the murder of under trial prisoner, Page 4 of 20 5 Dandeswar Swain @ Kalia Swain in the Bhanjanagar Special Sub- Jail. It has been averred by those Opposite Parties that Dandeswar Swain @ Kalia Swain was lodged in the said Special Sub-Jail in connection with G.R. Cases No.19/2012 and 314/2012 registered under Sections 399/402 IPC read with Section 25(1-B)(a), Arms Act, Sections 4 & 5, E.S. Act and subsequently in G.R. Case No.795/12 under Sections 307/34 IPC read with Section 25(1- B)(a)/27 of the Arms Act, he was charge-sheeted and he was facing trial in S.T. Case No.189/2010 pending in the Court of the Sessions Judge, Berhampur. They have also admitted that Dandeswar Swain @ Kalia Swain was granted bail on 24.01.2013. Since he was detained in connection with G.R. Case No.795 of 2012 and S.T. Case No.189 of 2010, he was not released on bail, inasmuch as bail was granted in one case. It has been stated that on 27.01.2013, the Superintendent of the Special Sub-Jail, Bhanjanagar requested the S.D.J.M., Berhampur for directing necessary police escort and to issue production warrant of the deceased for producing him before the court. Page 5 of 20 6 5. As regards the custodial death of the under trial prisoner, Dandeswar Swain @ Kalia Swain the Opposite Parties No.1 to 4 have stated as follows: “the circumstances leading to death of the above Under Trial Prisoner of Special Sub-Jail, Bhanjanagar was duly enquired into by the Superintendent of Biju Patnaik Open Air Ashram, Jamujhari, Superintendent of Police, Ganjam and Superintendent (I/C) of Special Sub-Jail, Bhanjanagar. From the above enquiries, it revealed that, on 12.02.2013 at about 4.15 P.M., Under Trial Prisoner Manoj Pradhan @ Kuna, Under Trial Prisoner Bapi @ Debasis Bhoi and Under Trial Prisoner Dandeswar Swain @ Kalia were called to the jail gate for interview with their relatives such as Kuna Pradhan, Anil Pradhan and Bubuna Swain respectively. Their interview was conducted inside the interview room with proper key and lock. After completion of interview, they came to main gate from interview room and requested the gate warder Sri A. Satyanarayan Dora to receive their foods from their relatives. Accordingly, the gate warder had opened the outside small gate for the purpose and at that time all on a sudden Under Trial Prisoner Bapi @ Debasis Bhoi and Manoj Pradhan @ Kuna snatched the food bag supplied by their relatives such as Kuna Pradhan, Anil Pradhan and Bubuna Swain respectively from the gate warder forcibly and got two number of Mousers out of that bag and immediately started firing 3 to 4 rounds on the Under Trial Prisoner, Dandeswar Swain @ Kalia and then threatened the gate warder at the gun point and then kicked out the gate warder. Then Under Trial Prisoner Kuna @ Manoj Pradhan and Under Trial Prisoner Bapi @ Debasis Bhoi managed to escape from jail. Due to bullet injuries on head Under Trial Prisoner, Dandeswar Swain @ Kalia fell down at the jail gate and died on the spot. During the incident, the in-charge Jailor-cum- Superintendent, Sri Govind Chandra Sur was present in the Jail Office, who heard the firing sound and rushed to the spot immediately but by that time, Under Trial Prisoner, Kuna @ Manoj Pradhan and Under Trial Prisoner Bapi @ Debasis Bhoi had already escaped and the Under Trial Prisoner, Dandeswar Swain @ Kalia was found lying on the floor. Thereafter, the Pharmacist was called in absence of the Jail Doctor as the post of Doctor was lying vacant since long. The pharmacist examined him and declared him dead. On 12.02.2013 evening, the said two Under Trial Prisoners were recaptured by the police.” Page 6 of 20 7 It has been further stated by those Opposite Parties that a specific case was registered being Bhanjanagar P.S. Case No.30 of 2013 under Sections 302/34/120-B IPC read with Section 25/27 of the Arms Act. After postmortem examination was conducted, the cause of death was ascertained as haemorrhage and shock due to gunshot. The postmortem examination report has been enclosed with their reply as Annexure-C/1. The cause of death is not in dispute. But, in the said counter affidavit filed by the Opposite Parties No.1 to 4, they have denied that on 05.02.2013, any person approached for an interview with the deceased. In Paragraph-13 of the said counter affidavit, it has been stated that on completion of the investigation, the charge-sheet was filed by the IIC, Bhanjanagar on 20.06.2013 and as such, those Opposite Parties have not responded to the claim of the Petitioners for investigation by the Central Bureau of Investigation (CBI). 6. The Opposite Parties No.1, 3 and 4 filed another counter affidavit on 20.10.2022 to bring some additional facts relating to the custodial death of Dandeswar Swain @ Kalia Swain, who died in the said Special Jail on 12.02.2013. It has been revealed in the said counter affidavit that a magisterial enquiry into the custodial Page 7 of 20 8 death of the son of the Petitioner No.1 was carried out by the S.D.J.M., Bhanjanagar under Section 176(1)(A) of the Cr.P.C. In the said enquiry report dated 20.07.2013, Annexure-A/3 to the said counter affidavit, it has been observed that the death of under trial prisoner, namely, Dandeswar Swain @ Kalia Swain is homicidal in nature and it was caused due to the gunshot injury. 7. The occurrence clearly indicates to the serious lapses in the security system of the jail. The enquiry revealed that there was a separate room in which inmates used to meet their relative, but why the warders allowed three under trial prisoners to remain present near the main gate while receiving the food bag from the visitors, there is no explanation. It has been opined by the S.D.J.M., Bhanjanagar in the report that no articles should have been received in presence of the inmates. 8. We have heard Mr. U.K. Samal, learned counsel appearing for the Petitioners. At the outset, he submitted with adequate emphasis that for failure of the jail authorities in discharging their duties, the deceased could be murdered in a well-orchestrated plan. The firearm was brought inside the jail, as it is apparent that the warders were busy in receiving the food bags. They did not even Page 8 of 20 9 check the food bags. Two inmates managed to escape and snatched the food bag and brought out two guns. It cannot be denied that there was a complete security lapse or there was design to create such situation for murdering the deceased. It has been admitted in the counter affidavit filed by the Opposite Parties No.1, 3 and 4 that one Ex-Superintendent (I/c), one Ex-Head Warder and one Ex- Warder were departmentally proceeded for dereliction of duty. Those jail officials, namely, Sri Govinda Chandra Sur, Ex- Superintendent (I/c), Sri Nabin Sethy, Ex-Head Warder and Sri A. Satyananarayan Dora, Ex-Warder were found to have committed misconduct by not discharging their duties properly and they were awarded punishment. Mr. Samal, learned counsel has pointed out the observation made in the report dated 20.07.2013 submitted by the S.D.J.M., Bhanjanagar, where it has been clearly stated that there were serious lapses in the security system of jail. Mr. Samal, learned counsel has further submitted that since the charge-sheet has already been filed, the relief sought for investigation by C.B.I. will not be insisted by the Petitioners. But for the custodial death, the Petitioners are entitled to compensation. Mr. Samal, learned counsel has stated that it is the State’s responsibility to ensure that Page 9 of 20 10 the safety of inmates of the jail. Death of one prisoner inside the jail, for sheer lack of security, has exposed the failure of the State in protecting the life of a young person who was, above all, merely a under trial prisoner. The value of life cannot be assessed by money. The Petitioners, according to Mr. Samal, learned counsel has claimed a sum of Rs.50 lakhs on account of the death of Dandeswar Swain @ Kalia Swain inside the jail and there is no dispute about the custodial death. 9. In Re-Inhuman Conditions in 1382 Prisons vs. State of Assam: (2017) 10 SCC 658, the apex court had occasion to observe that, compensation for the custodial death has not been provided in the constitution, but the same can be inferred from Article 21. It has been established by a catena of judicial precedents that the principle of strict liability can be applied against the State. For purpose of reference, the following passages are reproduced from Re- Inhuman Conditions in 1382 Prisoners (supra): “41. One of the earliest cases where this Court granted compensation in a petition Under Article 32 of the Constitution is Rudul Sah v. State of Bihar. That case was not one of a custodial death but was a case of illegal detention even after acquittal in a full dress trial. Page 10 of 20 11 This Court held that the Petitioner was entitled to compensation for the illegal detention and it rejected the stale and sterile objection of the State Government that the Petitioner may if so advised file a suit to recover damages. This Court took the view that the refusal to pass an order of compensation would be doing mere lip service to the fundamental right of liberty of the Petitioner Under Article 21 of the Constitution which the State Government had so grossly violated. This Court observed that "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." 42. A little later, this Court dealt with Sebastian M. Hongray v. Union of India which concerned itself with the disappearance of some persons while in custody. This Court was convinced that enabling the Respondents to trace or locate the two missing persons at such a late stage would be to shut its eyes to reality and to pursue a mirage. It appeared to this Court that the two missing persons had actually met a tragic end in an encounter amounting to an unnatural death. This Court ordered the registration of an offence and an investigation and Page 11 of 20 12 also directed payment of compensation to the next of kin. 43. Nilabati Behera v. State of Orissa was a case where a person who was taken into police custody for investigation of a theft, was found dead near a railway track the next day. On the basis of injuries and handcuffs on his wrists, this Court concluded that it was a custodial death and compensation was awarded Under Article 32 of the Constitution. It was held that a public law remedy was certainly available to claim compensation for the contravention of human rights and fundamental rights which are protected as a guarantee by our Constitution. A reference was also made to Article 9(5) of the International Covenant on Civil and Political Rights, 1966 which reads: "9.(5) Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation." 44. An unnatural death in judicial custody where one person was killed by a co-prisoner was the subject matter of discussion in Kewal Pati v. State of Bihar. It was held that as a consequence of imprisonment, a prisoner does not cease to have constitutional rights, except to the extent he or she has been deprived of them in accordance with law. Therefore, even a prisoner is entitled to protection and if he is killed while in prison, Page 12 of 20 13 it results in a deprivation of his life contrary to the law, for which the next of kin are entitled to compensation. 45. In D.K. Basu v. State of West Bengal this Court recognized that at the time of ratification of the International Covenant on Civil and Political Rights, 1966 in 1979, the Government of India made a specific reservation to the effect that the Indian legal system does not recognize a right to compensation for victims of unlawful arrest or detention and only became a party to the covenant, subject to this reservation. It was noted however, that the reservation has lost its relevance in view of the law laid down by this Court in several cases wherein compensation has been awarded for the infringement of a fundamental right of a citizen. It was also noted that while there is no express provision in the Constitution for grant of compensation, this right has been judicially evolved in cases of established unconstitutional deprivation of personal liberty or life. This Court summed up the law in the following words: (SCC p.443, para54) “54.Thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy Page 13 of 20 14 for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of Page 14 of 20 15 compensation will, of course, depend upon the peculiar facts of each case and no strait- jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit. 46. Ajab Singh v. State of U.P., Murti Devi v. State (NCT of Delhi) and more recently Rohtash Kumar v. State of Haryana illustrate that custodial death is a clear violation of the prisoner's rights Under Article 21 of the Constitution and relief could be moulded by granting compensation to the next of kin of the deceased.” Un-natural death in judicial custody makes the authority liable to pay compensation. Here, one person had been murdered by co-prisoner which is a matter of great concern. In Kewal Pati vs. State of U.P. and others: (1995) 3 SCC 600, it has been clearly Page 15 of 20 16 held by the apex court that as consequence of the imprisonment, a prisoner does not cease to have constitutional rights with exception that he or she has been deprived of that right to free movement etc. in accordance with law. Even a prisoner is entitled to protection and if he is killed while in prison, it results in a serious deprivation of his life not in accordance with law, for which the next of kindred are entitled to compensation. In Kewal Pati (supra) that case was of a convict, but in this case, a young person was lodged in the said jail as an UTP, meaning that whether he had committed the crime, as alleged against him was yet to be established fallowing the procedure of law. 10. Mr. Samal, learned counsel has also relied the decision of the apex court in Dalbir Singh v. State of U.P. and others: AIR 2009 SC 1674, where the apex court had occasion to observe that exaggerated adherence to and insistence upon establishment of proof beyond every reasonable doubt, results in miscarriage of justice make the justice delivery system, where the apex court has spoken of an inbuilt guarantee against the torture or assault by the State or its functionaries. As such, the said decision cannot have direct bearing on this case as from the magisterial enquiry report it Page 16 of 20 17 has been established that there was a lapse in the security. There was no overt act by the jail warder or his superiors in the murder of the deceased–Dandeswar Swain @ Kalia Swain. 11. Mr. Samal, learned counsel has also referred to the case of Rudul Sah vs. State of Bihar and another: (1983) 4 SCC 14, where the apex court made the mandatory compensation for the illegal detention. The relevant part of the decision in Rudul Sah (supra) has been discussed in Inhuman Conditions in 1382 Prisons (supra). So no further reference is necessary. Finally, Mr. Samal, learned counsel has referred to a decision of Rohtash Kumar vs. State of Haryana: (2013) 14 SCC 290 in which case, death in a fake encounter was the centre question for consideration. In Rohtash Kumar (supra), the apex court had occasion to observe inter alia as follows: “…..merely because a person is a dreaded criminal or a proclaimed offender, he cannot be killed in cold blood. The police must make an effort to arrest such accused. In a given case if a dreaded criminal launches a murderous attack on the police to prevent them from doing their duty, the police may have to retaliate and, in that retaliation, such a criminal may get killed. That could be a case of genuine encounter.” In Rohtash Kumar, the apex court had directed monetary compensation to the extent of Rs.20 lakhs as compensation towards Page 17 of 20 18 pain and suffering undergone by the next kith and kin on account of death of the deceased. 12. Mr. Samal, learned counsel has referred to Kewal Pati (supra), which has been discussed in Re-Inhuman Conditions in 1382 Prisons (supra), hence, no further reference from the said decision is necessary. In Kewal Pati, the apex court observed that a prisoner does not cease to have his constitutional right, except to the extent that he has been deprived of it in accordance with law. Therefore, he is entitled to protection of life. 13. The deceased is survived by his wife and three children. His untimely death has deprived the wife and his children from the company and affection of the deceased. They have been plunged into extreme deprivation. The apex court has clearly laid down the law that the wife and the children are entitled to be compensated. Mr. Samal, learned counsel has referred a decision of this Court in Rajendra Behera vs. State of Odisha and others: 2022 (II) OLR - 471. In that case, it has been observed that, for determining the cause of death and mode of execution, pendency of the magisterial enquiry cannot be a defence by the State against the claim for compensation. In the present case, the report of the magisterial Page 18 of 20 19 enquiry has clearly stated that there was abject failure of the security system in the prison and as a result of which, the said murder could take place. 14. Ms. S. Patnaik, learned Additional Government Advocate appearing for the State has fairly submitted that the State has taken administrative action against the officers who were responsible for the said lapse. The criminal prosecution has been launched against the assailants. Ms. Patnaik, learned Additional Government Advocate has submitted that serious security lapse was located. For that lapse, the life of the said UTP could not be saved. 15. We appreciate the fairness and steadfastness of Ms. Patnaik, learned Additional Government Advocate. There is no controversy about the murder of Dandeswar Swain @ Kalia Swain inside the prison when the investigations were going on against him. There cannot be any amount of doubt that there was abject failure of the security system or the security system was compromised and as a result of which, the deceased could be murdered inside the jail. The Petitioners have suffered pain and loss of affection or consortium. They are entitled to get the compensation from the State, as the State for failure to discharge their duty in protecting the inmates Page 19 of 20 20 inside the jail. The murder of Dandeswar Swain @ Kalia Swain was a bolt from the blue. 16. Considering all aspects including the loss of love, and affection and for suffering of pain, we determine a sum of Rs.25,00,000/- (Rupees twenty five lakhs) to be paid, as compensation to the Petitioners under the public law jurisdiction. Each of the Petitioners shall be entitled to equal share of the said sum. The Opposite Parties No.1 to 4 are directed to pay the said sum within a period of 08 (eight) weeks from the date when the petitioners shall file the certified copy of this order to the opposite parties, else, the said amount shall carry interest @ 6% from the date of filing of the writ petition i.e. 20.02.2013. 17. Having observed and directed thus, this writ petition stands allowed to the extent as indicated above. 18. There shall be no orders as to costs. Savitri Ratho, J. I agree. Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Reason: Authentication Location: High Court of Orissa Cuttack Date: 27-Sep-2023 17:42:34 Orissa High Court, Cuttack. The 17th day of May, 2023. L. Murmu, Senior Stenographer. …………………………… ( S. Talapatra, J.) …………………………… (Savitri Ratho, J.) Page 20 of 20