The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.31525 of 2022 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950) Purnima Bhoi State of Odisha & Ors. -versus- …. …. Petitioner(s) Opposite Party(s) Advocates appeared in this case through Hybrid Arrangement Mode: For Petitioner(s) For Opposite Party(s) : : Mr. Trilochan Panigrahi, Adv. Mr. Gyanaranjan Mohapatra, ASC CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-05.12.2023 DATE OF JUDGMENT: -22.12.2023 Dr. S.K. Panigrahi, J. 1. The Petitioner in the abovementioned Writ Petition seeks a direction from this Court for a compensation of Rs.20,00,000/- due to negligence of jail warders and other jail staff of Puri Jail in the death of Siba Prasad Bhoi, Petitioner’s husband, who died in prison custody on 29.09.2022, which is alleged to be a custodial death.
Facts
2. The relevant facts of the case are as follows: a. Siba Prasad Bhoi (“the deceased”) UTP NO. 89/2022 was Signature Not Verified admitted to Puri Jail in connection to involvement of G.R. Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 1 of 10 Case No. 41/2022 under Section 376(1) of I.P.C. against I/C warrant issued by SDJM, Puri. The deceased was facing trial before the Court of Additional Sessions Judge (Special Track Court) Puri in S.T. Case No. 197 of 2022. b. On the fateful day, it is alleged that Siba Prasad committed suicide by hanging himself from a mango tree at the back of the prison hospital unit with the use of a gamuchha. Following this he was immediately shifted to district Hospital Head quarter, Puri where the treating physician declared him as received dead on 29.09.2022 at 6.30 PM. c. An F.I.R. was lodged at Ramachandi P.S. reporting the sudden death of UTP dated 29.9.2022 and sent to Magistrate under Section 174 Cr.P.C. along with letter to Ramchandi police station by Superintendent of District jail Puri. Getting information from the deployed jail staff., a written report was submitted by the Superintendent of District Jail, Puri basing on which the instant U.D case vide Ramchandi PS UD case No.10 dated 29.09.2022 was registered and enquired into. d. During course of enquiry of the UD case the E.O. sent requisition for depuration of Scientific Team and videographer as well as deputation of Executive Magistrate to remain present during inquest and Post-mortem. Spot was visited promptly, and an inquest was conducted on 30.09.2022 at 2.00 PM to 3.00 PM over the dead body of the deceased in presence of family members, Executive Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 2 of 10
Legal Reasoning
"18. This view finds support from the decisions of this Court in the Bhagalpur binding cases : Khatri (II) v. State of Bihar and Khatri (IV) v. State of Bihar . Wherein it was said that the Court is not helpless to grant relief in a case of violation of the right to life and personal liberty, and it should be prepared to forge new tools and devise new remedies for the purpose of vindicating these precious fundamental rights. It was also indicated that the procedure situable in the facts of the case must be adopted for conducting the inquiry, needed to ascertain the necessary facts, for granting the relief, as the available mode of redress, for enforcement of the guaranteed fundamental rights. More recently in Union Carbide Corporation v. Union of India , Misra, C.J. stated that ’we have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future ..... there is no reason why we should hesitate evolve such principle of liability .....’. To the same effect are the observations of Venkatachaliah, J. (as he then was), who rendered the leading judgment in the Bhopal gas case, with regard to the Court’s power to grant relief.” Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 8 of 10 18. Similar view has been taken in People’s Union for Civil Liberties v. Union of India and another,4 wherein the ratio decided in Nilabati Behera’s case (supra) was relied upon and it was further held that in assessment of the compensation, the emphasis has to be on the compensatory and not on punitive manner. Moreover, a Division Bench of this Court in Ahalya Pradhan v. State of Orissa,5 wherein the custodial death was levelled as a suicide the Division Bench of this Court came to the conclusion that the legal heirs of the deceased are entitled to receive compensation. 19. It is duty of the jail authorities to ensure safety and security of the inmates of the jail. Only when there is negligence on their part, such an incident could take place. Though the authorities have termed the incident as a suicide, foul play cannot be ruled out at this stage. Irrespective, the police/prison authorities owe a duty of care to an arrested person and must take reasonable care to ensure that he does not suffer from any physical injury as a consequence of his own acts, or the acts of a third party. Therefore, this Court comes to the conclusion that it is a case of custodial death and the authorities are responsible for the same. The authorities being the employees of the State of Odisha, the State is vicariously liable for the death of the aforesaid deceased. 20. In light of the aforesaid discussion, it is pertinent to award compensation to the petitioner. However, in my opinion, the counsel for the Opp. parties has rightfully contended that a full Signature Not Verified 4 AIR 1997 SC 1203 5 2009 (I) OLR 526 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 9 of 10 compensation cannot be granted without the completion of inter alia the investigation of the death, departmental inquiry, etc. Ergo, it would be reasonable, at this stage, to award an interim compensation to take care of the necessary expenses of the petitioner and her family. 21. In the facts and circumstances of the case, I feel that it would be appropriate to order that State of Odisha to pay to the petitioner compensation of Rs. 3,00,000/- as an interim compensation. The said amount shall be deposited by the State in the bank account of the Petitioner within eight weeks from today. This direction to pay the compensation is without prejudice to the rights of the legal representatives to claim compensation in private law proceedings, if so entitled in law, against those found responsible for his death. 22. The State of Odisha is directed to take proactive measures to complete the investigation and the following trial as well as the disciplinary proceedings against those who are responsible for the
Arguments
Magistrate Sri Ramachandra Pattna’k, OAS, Deputy Collector, Puri and other witnesses. The corpse was then sent to ADMO, DHH, Puri for post-mortem examination with a request to conduct autopsy by a team of doctors. Accordingly, post- mortem was conducted by Dr. Amarend Nayak, Prof & HOD, Department of FMT and Dr. Priyambada Behera, Asst. Prof. Deptt of FMT, Sri Jagannath MC & H, Puri. The entire process of inquest and PM was videographed as per the guidelines of NHRC. After PM examination, the dead body of the deceased UTP 89/22 Siba Prasad Bhoi was handed over to his family members. The above U.D case is under enquiry. 3. Learned counsel for the Petitioner alleged that the deceased did not commit suicide, rather, he was murdered by the prison personnel. It is insinuated that it is a case of homicidal death and his murder was pre-planned following the atrocities of jail staff including warders. 4. 5. It was submitted that petitioner’s husband was the only bread earner of his family. The family, which includes a son and a daughter and ailing parents of the deceased, are facing grave financial trouble. Now, after facing death of Siba; the petitioner’s family is in a deplorable condition. It was submitted that the suicidal death of the deceased is directly attributable to the negligence of the prison personnel and as such a compensation of Rs.20,00,000/- is genuine to meet the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 3 of 10 6. 7. 8. 9. 10. requirements of the petitioner's maintenance/ her children’s education and maintenance of old ailing parents-in-law. Per contra, Learned counsel for the Opp. Party No. 4 submitted that no atrocity was committed against the deceased by the wardens and/or other jail staff of Puri Jail and therefore, the allegation of negligence and atrocity is false and fabricated It was also submitted that a Departmental Enquiry has already been initiated against the staff by the Senior Superintendent of Circle Jail, Berhampur and it is under process. It was further submitted that the deceased has clearly committed suicide and it was not a case of custodial death. Till the time the trial is pending, the liability of State, if any, cannot be determined. The claim of the petitioners, for the time being, should not be unconditionally accepted. It is contended that this Court cannot draw inferences but has to go by the record in the form of the statements recorded in the ongoing investigation. I have gone through the pleadings and heard learned counsels for the parties. In the context of Section 439 of the Code of Criminal Procedure, Supreme Court has provided the definition of “custody” in Niranjan Singh v. Prabhakar Rajaram Kharote1 wherein inter alia it was observed as under:- "When is a person in custody, within the meaning of Section 439, Cr.P.C.? When he is in duress either because he is held by the Investigating Officer or other police or allied authority or is under the Signature Not Verified 1 1980 Cri.L.J. 426 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 4 of 10 control of the Court having been remanded by Judicial order, or having offered himself to the Court‟s jurisdiction and submitted to its orders by lexical dexterity nor physical presence. No precedential profusion is needed to come to the realistic conclusion that he who is under the control of the Court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibbling and hide- and- seek niceties sometimes heard in Court that the police have taken a man into formal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubiotics are unfair evasions of the straightforwardness of the law.... Custody, in the context of Section 439 (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and orders of the Court." 11. Furthermore, in Lay Maung v. Emperor,2 the Court inter alia observed as under:- "As soon as an accused or suspected person comes into the hands of a police officer he is, in the absence of any clear and unmistakable evidence to the contrary, no longer at liberty and is therefore, in "custody" within the meaning of Sections 26 and 27 of Evidence Act" 12. It is the conceded position that the deceased died while in custody of the police on 29.09.2022. A perusal of contentions of the Opp. Parties shows that even though the identity of the persons guilty of negligence for the death of Siba Prasad is in dispute but the fact Signature Not Verified 2 AIR 1924 Rang 173 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 5 of 10 that he died in police custody due to negligence of officials is not in dispute. 13. This Court has given its anxious consideration to this unfortunate episode and it feels that in the circumstances of the case it is necessary for the police/prison personnel to show that there was no negligence on their part. After all when a prisoner is in custody, it is the duty of the police/prison personnel to keep him alive and well till judicial remand. 14. It is not known how the deceased was able to roam in the premises unsupervised and devised a setup for suicide without anyone interfering or at least witnessing the episode until it was too late. It is not stated why the prison premises was left unmanned by any person. It is impossible to believe that the prison premises would have been left empty without any prison personnel being present there. All these matters would be cleared after the completion of the investigation of this whole episode and medical/chemical examination of the dead body of the deceased. 15. When a person is taken into custody, it is the paramount duty of the state to keep him safely. If there is any dereliction of that duty, undoubtedly the onus will be on the prison staff and the personnel in-charge to show that there was no negligence on their part. Even assuming for a moment that the case before this Court is one of suicide, I would like to state that there is a duty on the part of the state to show that there was no negligence on the part of its staff. However, it cannot be ruled out that there may be Signature Not Verified some cases where in spite of best efforts by the prison staff and Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 6 of 10 security; a prisoner commits suicide by a method that is beyond the control of anyone. In those cases, if the prison personnel can show that they were not negligent, then it is possible that they may be absolved of the blame. Ultimately, it all depends on the facts of each case. 16. However, in all situations of custodial fatalities, whether by suicide or crimes committed by the police, the onus is unquestionably on the state to demonstrate that there was no carelessness on their side. I may at this stage refer to a decision of the Supreme Court reported in the case of Nilabati Behera v. State of Orissa.3 While dealing with this case the Apex Court has held as follows : "In this context, it is sufficient to say that the decision of this Court in Kasturilal upholding the State’s plea of sovereign immunity for tortious acts of its servants is confined to the sphere of liability in tort, which is distinct from the State’s liability for contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the constitutional scheme, and is no defence to the constitutional remedy under Arts. 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental the only practicable mode of rights, when enforcement of the fundamental rights can be the award of compensation. The decisions of this Court in Rudul Shah in that line relate to award of compensation for contravention of fundamental rights, in the constitutional remedy under Arts. 32 and 226 of the Constitution. On the other hand, Kasturilal related to value of goods seized and not Signature Not Verified 3 1993 SCR (2) 581 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 7 of 10 fault of returned to the owner due to the Government servants, the claim being of damages for the tort of conversion under the ordinary process, and not a claim for compensation for violation of fundamental rights. Kasturilal is, context and therefore, distinguishable." inapplicable this in 17. The Supreme Court while reiterating the powers of the Court in granting compensation further held that:
Decision
death of Siba Prasad and order accordingly. 23. With the aforesaid observations, the present Writ Petition stands disposed of. No order as to costs. Signature Not Verified Orissa High Court, Cuttack, Dated the 22nd Dec., 2023/ Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 (Dr. S.K. Panigrahi) Judge Page 10 of 10