Bombay High Court
Sheela S. Yerpude vs Home Department And Ors. on 27 January, 2005
Equivalent citations: 2005CRILJ2224
Author: J.N. Patel
Bench: J.N. Patel, S.T. Kharche
JUDGMENT J.N. Patel, J.
1. This petition under Articles 226 and 227 of the Constitution of India has been filed by Smt. Sheela widow of Sudhakar Yerpude claiming compensation in the sum of Rs. 10 lacs against the respondent-State and its officials on the ground of wrongful confinement, custodial torture and custodial death caused by the police officers of Police Stations Lakadganj and Glttikhadan situated within the jurisdiction of the Commissioner of Police, Nagpur.
2. Sudhakar son of Gangadhar Yerpude was a goldsmith carrying on business in purchase, sale and making of golden ornaments at Nagoba Lane, Chitar Oli, Nagpur. The petitioner is the widow of the said Sudhakar. In all three children were born out of the wedlock, that is two sons and one daughter. The children are minors and the petitioner and her children were totally dependent on the income of deceased Sudhakar for their livelihood and future.
3. It is the case of the petitioner that on 9-2-2002 deceased Sudhakar was picked up from his house by the officers of Police Station Lakadganj, Nagpur, and kept in wrong ful detention for three days without showing his arrest and producing him before the Magistrate within 24 hours from the time of his arrest, nor the petitioner and her relatives were informed of the reasons for his arrest and detention and though the petitioner tried to repeatedly contact the Authorities in the matter, it was only on the third day the officers of Lakadganj Police Station agreed to release deceased Sudhakar on their depositing 130 gms. of gold, 100 gms. of silver and an amount of Rs. 15,000/- by way of bribe. It is the case of the petitioner that during unlawful detention of her husband, the police officers of Lakadganj Police Station physically tortured him and pressurized him mentally and physically to part with the said gold, silver and a sum of Rs. 15,000/- for his release. The petitioner and her husband being placed in such a helpless situation that they were left no choice but to fulfill the unlawful demands of the police officers of Lakadganj Police Station and, therefore, they handed over 130 gms. of gold, 100 gms. of silver and a sum of Rs. 15,000/-. According to the petitioner, the police officers claimed that deceased Sudhakar had purchased 130 gms. of gold and 100 gms. of silver from a person, who had stolen it from some place, and that the amount of Rs. 15,000/- was demanded to settle the matter and to free her husband from their illegal custody. After their demand was fulfilled, police released him on 11-2-2002. It is the case of the petitioner that though her husband-deceased Sudhakar -- had pleaded with police that he was not concerned with the transaction and was totally innocent and had no nexus in any way with the said person or with the said ornaments, the police officers continued to inflict on him physical and mental torture, from which he escaped after giving the demanded quantity of gold, silver and cash. According to the petitioner, she suffered a shock and was unable to react muchless to take any action against the said police officers.
4. Thereafter on 27-2-2002, when deceased Sudhakar was sleeping in his house with his family members, between 11 and 11.30 p.m. in the night, two police personnel dressed in civil uniform came to their house and woke them up. They identified themselves as PSI Rathod and PC Tiwari of Gittikhadan Police Station. They started assaulting deceased Sudhakar in his own house. On this, the minor daughter of the petitioner caught hold of her father, taut the police personnel pushed her away. When the petitioner interfered and asked them as to why they were assaulting her husband, they informed her that they were taking the said Sudhakar in their custody and in the event the petitioner wants that they set her husband free immediately without taking him in their custody or without proceeding with the matter, the petitioner should hand over an amount of Rs. 50,000/- to them immediately.
5. It is the case of the petitioner that as she did not have sufficient means and was in distressed state of mind having witnessed the assault on her husband, she requested them that she be allowed to make a phone call to her relatives, but the police personnel did not allow her to make a phone call and dragged the said Sudhakar out of the house to their vehicle and from there he was taken away. According to the petitioner, she even pleaded with the police personnel that her husband is a heart patient and is required to take regular medicines as advised by the doctor, but the police personnel did not take cognizance of the same and told her that she is giving lame excuses and if at all he requires medical aid, they know how to deal with such situations.
6. The petitioner has also stated that because of this incident, the neighbours gathered and tried to stop the vehicle and questioned the police officers as to why they were treating Sudhakar in such an inhuman way and why he was being taken to police station, but the police officers did not reply to the queries and took him along with them to Gittikhadan Police Station.
7. It is the case of the petitioner that in spite of the fact that the petitioner along with her relatives and friends went to Gittikhadan Police Station and made enquiries to the concerned Police Station about his arrest and also insisted upon copy of the report on the basis of which he was taken in custody, but the police officers refused to supply the copy of FIR on the basis of which he was detained, nor they agreed to release him in spite of the repeated requests by the relatives and friends. On this, the relatives and friends of deceased Sudhakar left Gittikhadan Police Station at about 1.30 p.m. after midnight.
8. It is the case of the petitioner that at about 3 a.m. in the night, she received threatening phone call from Gittikhadan Police Station enquiring about whereabouts of younger brother of her husband and she informed them that she did not know his whereabouts. Thereafter, the petitioner did not receive any phone call from Gittikhadan Police Station and she was required to spend a sleepless and fearful night all the while, as she was concerned about the health of her husband. It was only in the morning at 6 a.m. that she received a phone call from Gittikhadan Police Station that the said Sudhakar has expired and that his body is lying in the Mayo Hospital and that she can collect his body from the hospital after post mortem. The petitioner suffered a shock and informed her relatives and friends about this. When the petitioner reached Mayo Hospital along with her relatives and friends, she did not find any police official nor she was able to gather any information as to where the body of her husband was lying and, therefore, the petitioner along with her relatives reached Gittikhadan Police Station at about 11 a.m. and made enquiries there. But the police officers did not give any information as to what happened in the night intervening between 27th and 28th February, 2002. After repeated enquiries from various quarters, the petitioner came to know that the case has been referred to State CID (Crime) and the Police Station Officer only gave vague answers to the petitioner that the investigation is in progress. In the circumstances, the petitioner lodged a written complaint and demanded the copy of the FIR and sought to know as to what action has been taken in the matter of death of her husband and informed that PSI Rathod and PC Tiwari had assaulted her husband and forcibly and unlawfully taken her husband with them to Gittikhadan Police Station in the night of 27-2-2002 along with other police personnel and that she also expressed that she is confident that the death of her husband is the direct result of inhuman physical torture meted out to her husband by the said police officers in the police custody, who had committed murder of her husband. The petitioner was finally informed by the Police Station Officer and the concerned Deputy Commissioner of Police, who was present at that time in Gittikhadan Police Station, that since the matter was taken over by the State CID (Crime) for investigation, they will not be able to look into her complaint.
9. It is the case of the petitioner that there was an attempt on the part of the police department to conceal and cover up the brutal murder of her husband committed by the police while he was in the custody of Gittikhadan Police Station. The petitioner, therefore, filed Criminal Writ Petition No. 114 of 2002 in this Court and sought the relief that this Court should direct fair, detail and thorough enquiry into the death (murder) of her husband, named Sudhakar S/o Gangadhar Yerpude, which occurred in the night intervening between 27th and 28th February, 2002 while he was in the custody of Gittikhadan Police Station. The petitioner also sought immediate arrest of the police officers, who were responsible for the death of her husband. She further sought, enquiry into the illegal detention of her husband for a period of three days at Lakadganj Police Station and punishment to all the concerned police officers and personnel responsible for such illegal confinement from 9-2-2002 to 11-2-2002 at Lakadganj Police Station. The petitioner also sought an action against the said officers and personnel, who refused to receive her complaint and hand over the copy of the FIR or give any details about the death of her husband. She further sought directions of this Court to the respondents to pay compensation to her in the sum of Rs. 10 lacs for the custodial death of her husband.
10. The said petition was contested by the respondents, who denied that they were responsible for illegal detention and custodial torture of petitioner's husband insofar as the grievance of the petitioner relating to the officers of Lakadganj Police Station is concerned in respect of the period from 9-2-2002 to 11-2-2002. It was their case that they had arrested certain suspects vide Crime No. 67 of 2002 of Police Station Lakadganj under Section 399 of IPC read with Sections 4 and 25 of the Arms Act and during the course of interrogation, one of the accused Rupesh Makode confessed that they had committed dacoity at the house of one Dr. Pradip Marpakwar at Anant Nagar, Nagpur, and so also at Saoner and the property, which was stolen from the house of Dr. Marpakwar, has been sold to Sudhakar Yerpude and it is in the course of investigation that the husband of the petitioner on 12-2-2002 at about 10.45 hours on his own came to the Police Station and produced the property in the offence of dacoity, i.e. 100 gms. of golden strip, 24 gms. of golden strip and 100 gms. of silver strip, which came to be seized by the police and that he was at no point of time detained in the Police Station. They have also denied having taken a sum of Rs. 15,000/-. So far as the allegations relating to custodial death of the petitioner is concerned, it is not disputed that the petitioner's husband was in the custody of Gittikhadan Police Station. It is submitted that the said Sudhakar Yerpude was required to be admitted in the hospital, as he was complaining pain in chest and he was taken to Mayo Hospital, where on examination of the said Sudhakar, the doctor declared him dead and thereafter immediately at 4.55 hours on 28-2-2002, Police Constable Shatrughna was immediately sent to inform regarding the death of Sudhakar Yerpude at his home. So also information was sent to the State CID (Crime), Nagpur, and A.D. was registered initially at 4.40 hours on the same day and the necessary steps were taken in the matter. It is submitted that the State CID (Crime) has registered offence vide Crime No. 76 of 2002 under Sections 302, 342 and 330 of I.P.C. against PSI S.D. Rathod and HC Rammurti Tiwari and the investigation was in progress and that the Police Department after preliminary enquiry had suspended four persons in this matter on 2-3-2002 including these two police officers. Considering this reply on affidavit filed by PI Laxman Tighare of State CID (Crime), Nagpur, in his capacity as an Investigating Officer in Crime No. 76 of 2002 registered against PSI Rathod. Head Police Constable Rammurti Tiwari and Police Constable Rajesh Mishra in the matter of death of Sudhakar Gangadhar Yerpude for having committed offences under Sections 330, 342 and 302 read with Section 34 of I.P.C. in which it is stated that the investigation is going on and there is satisfactory progress in the investigation and the same shall be completed in due course of time, this Court disposed of the aforesaid petition by order dated 3-4-2002 by observing as under :
"Shri Deopujari, APP made a statement that the matter is already handed over to the C.I.D. for investigation and is in progress. According to Shri Deopujari, APP, only the Chemical Analyser's report is yet to be received and thereafter immediately appropriate steps will be taken.
Shri Deopujari, APP, states that all the steps will be taken by the Department earliest possible.
In view of this, we do not find any substance in this petition and the grievance of the petitioner can be said to have been redressed. In view of this, petition stands disposed of."
11. Probably after the charge-sheet came to be filed, the petitioner has again approached this Court by filing this petition for the purposes of claiming compensation in the sum of Rs. 10 lacs, which prayer was not considered by the Court in the earlier petition filed by the petitioner.
12. In the present petition, the petitioner has also claimed that her husband was earning an amount of Rs. 7,500/- per month and was about 40 years old while he rnet with an untimely death at the hands of police in police custody. Therefore, his annual income comes to Rs. 90,000/-. It is submitted that the life expectancy of the deceased would definitely had been not less than 60 years in normal course. As such the petitioner had another 20 years to live. Therefore, on multiplication by the remaining life expectancy, the income comes to Rs. 18 lacs. It is further submitted that out of this amount of Rs. 18 lacs, if the amount of 25% is deducted towards the personal expenses of the deceased, then the amount which he would have given to his family would come to Rs. 13,50,000/-. Thus, the petitioner claims that she is entitled to receive the compensation of Rs. 13,50,000/-. It is contended by the petitioner that she has received a sum of Rs. 2 lacs from the State by way of interim compensation during the pendency of the petition and, therefore, she may be awarded the remaining compensation of Rs. 11,50,000/-.
13. In reply to the claim of the petitioner, an affidavit has been filed by one Madhukar S/o Narayanrao Jadhao, Assistant Commissioner of Police, Crime Branch, Nagpur, Authorised by Commissioner of Police, Nagpur, on behalf of respondent No. 2. The other respondents chose not to file any reply. It is the case of respondent No. 2 that the said Sudhakar was taken into custody by the officers of Gittikhadan Police Station in Crime No. 272 of 2001 and during interrogation, he made a complaint of chest pain; hence he was rushed to the hospital, where on examination he was declared dead by the doctor. It is further submitted that the investigation was conducted by the C.I.D. regarding custodial death of Sudhakar Gangadhar Yerpude and it was prima facie revealed that due to the beating given by the police officers, the death of the said Sudhakar was caused. Therefore, the C.I.D. has filed charge-sheet against those police officers under Sections 302 and 330 read with Section 34 of I.P.C. The case is pending trial before the Court. It is submitted that the Government of Maharashtra has paid a compensation of Rs. 2 Lacs to the legal representation of deceased Sudhakar Gangadhar Yerpude and the same has been paid as per the Government Decision dated 5-10-2002 and in view of this, the petition may kindly be disposed of.
14. At the time when the respondent-State deposited the sum of Rs. 2 lacs, the petitioner moved an application for withdrawal of the said amount, on which this Court observed as under :
"That we have considered the contentions canvassed by the learned respective counsel for the parties. In the instant case in view of submissions filed by the State, it is prima facie clear to us that this is a case of custodial death. Even the investigation carried out by the CID prima facie reveals that husband of the petitioner Sudhakar Yerpude died while he was in the custody due to beating given by the concerned Police Officials. It is really unfortunate that in spite of various directions given by the Apex Court to the Police in regard to custodial interrogation, the Police in utter disregard to such directions given by the Apex Court, is carrying out custodial interrogation, which reveals shocking state of affairs. We expect at least from the Police Department to adhere to the directions given by the Apex Court as well as this Court time and again regarding steps, which the Police Department is required to take while carrying out custodial interrogation. We must express that giving compensation in terms of money is not enough to recover the loss caused to the wife and children of the deceased. The loss caused to them due to death of Shri Sudhakar Yerpude is an irreparable loss and entire family goes through not only financial crisis, but it is also a psychological trauma to the entire family and it will take a long time for them to come out of the same."
This Court permitted the petitioner to withdraw the said amount treating it as an interim compensation and further observed that however, final quantum of compensation would be considered and decided at the time of final hearing of the criminal writ petition and disposed of Criminal Application No. 2590 of 2002 in the aforesaid terms.
15. This is a case where the respondent-State has not disputed the accusations made by the petitioner against the State and its officials, that is the police officers of Lakadganj Police Station and Gittikhadan Police Station. On the other hand, the State has itself offered to pay a sum of Rs. 2 lacs towards the compensation to the legal heirs of the victim, who admittedly died in police custody as a result of torture inflicted on him by the police officers of Gittikhadan Police Station.
16. In this background, the only question, which was to be examined by this Court, was the compensation, to which the petitioner and her children are entitled, for the custodial death of deceased Sudhakar Yerpude. In the course of hearing, this Court expressed that taking into consideration all the facts and circumstances, which are not disputed by the respondent-State, the compensation of Rs. 2 lacs was too meagre and it will be proper on the part of the State to offer reasonable compensation to the petitioner. The learned APP submitted that he would seek further instructions in the matter from the Home Department and make a statement before the Court, otherwise the matter stood closed for delivering the judgment.
17. As the matter was under active consideration of the Government, we granted one more opportunity to the respondent-State to offer reasonable compensation to the petitioner. It is on 7-1-2005 the respondent-State filed an affidavit of Shri P.T. Goud, Joint Secretary to the Government of Maharashtra, Home Department, in the matter. In spite of our specific order that Court will not entertain any affidavit-in-reply, still we have taken on record the said affidavit filed on behalf of the State. The stand taken by the respondent-State only indicates its hostile attitude towards the widow and children of the victim, who admittedly died in police custody. The State has tried to put up a plea that it has sent a report to the National Human Rights Commission, which also considers the compensation payable to the heirs of the deceased, and repeated the plea taken in the earlier petition so as to demonstrate that the police officers are not responsible for causing death of Sudhakar Yerpude. In para 5 of the affidavit-in-reply, it has been stated that the deceased was thereafter summoned by the Investigating Officer of Police Station Gittikhadan for interrogation in Crime No. 272 of 2002. While the deceased was being interrogated, he complained of chest pain and was shifted to Mayo Hospital immediately for treatment, where he was declared dead. On receipt of this information of death, further investigation was entrusted to State CID (Crime), Nagpur. After the investigation by the CID, an offence vide Crime No. 76 of 2002 under Sections 302, 330 and 342 read with Section 34 of I.P.C. has been registered at Police Station Gittikhadan against Police Sub-Inspector S.D. Rathod, Head Constable Tiwari, Head Constable Matin and Police Constable Mishra on 2-3-2002 and all the police officers were arrested on 11-4-2002. It is submitted in the affidavit that an appropriate action has, therefore, been taken in the matter of custodial death and it will be investigated and taken to its logical conclusion in accordance with law.
As regards grant of compensation, it has been stated that the State Government has decided to pay compensation to the heirs of the deceased and accordingly a compensation of Rs. 2 lacs has already been paid to the heirs of the deceased and justified the same on the ground that so far the maximum compensation paid in such case has not exceeded Rs. 2 Lacs.
In para 9 of the affidavit, a case has been tried to be made out that the offence has already been registered against the concerned police officers and they are being tried according to law. The accused are still not convicted. In cases of death due to torturous act, it is humbly submitted that, disputed question of fact arises and proper remedy will be to file a suit for recovery of compensation.
In the affidavit, it has been tried to be justified that though the State Government has already paid compensation of Rs. 2 lacs to the heirs of the deceased and it is on the suggestion made by this Court and in the facts and circumstances of the case, the State Government has further considered the matter and is inclined to pay additional compensation of Rs. 1 lac -- making the total compensation of Rs. 3 lacs in the matter of custodial death. It is specifically stated that it will not be just and proper to pay any more compensation on the count that it will untimely burden the State exchequer and will also set a precedent. It is submitted that particularly, in view of the fact that some stolen property was recovered from the deceased in this case and the case is pending trial, the compensation granted is just and reasonable and, therefore, this Court should dispose of the petition on the payment of compensation of Rs. 3 lacs and that a sum of Rs. 1 lac will be immediately paid to the heirs of the deceased after this Court passes an appropriate order in this matter.
18. This is a case where on two occasions the petitioner's husband Sudhakar Yerpude has been wrongfully detained in Police Station and subjected to torture. On the first occasion, he was detained for three days and suffered mental and physical torture at the hands of police and was released only when he coughed up the required quantity of gold, silver and cash of Rs. 15,000/- by way of bribe to the police officers, which fact is not denied by the respondent-State and there is no reason to disbelieve the petitioner on this Count. In our opinion, the first incident relating to detention of the husband of the petitioner by the officers of Lakadganj Police Station, that is from 9-2-2002 to 11-2-2002, and recovery of 130 gms. of gold, 100 gms. of silver and cash of Rs. 15,000/-by way of bribe, was an act of wrongful confinement and custodial torture punishable under Section 330 of I.P.C. and this was without any offence being registered against deceased Sudhakar Yerpude and was in total violation of the guidelines laid down by the Supreme Court in the decision rendered in the case of D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 : (1997 Cri LJ 743). These guidelines have been set out as preventive measures in para 35 of the aforesaid judgment, which read as under :
"(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as well as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subject to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Ilaqua Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the ar -rest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board."
Amongst the aforesaid preventive measures laid down in the case of D.K. Basu (1997 Cri LJ 610) cited (supra), there is an utter violation of all the aforesaid guidelines, viz. guideline Nos. (1) to (10). Therefore, we treat this as an independent incident for which, in the opinion of this Court, the victim's legal heirs will have to be compensated, as he is no more alive.
19. Another incident relates to custodial torture resulting in death of the victim, that is Sudhakar Yerpude, who was arrested by Gittikhadan Police Station on 27-2-2002 from his house at about 11 to 11.30 p.m. in the night and was unable to bear the torture at the hands of the police officers and succumbed to the injuries in the Police Station itself and when he was taken to Mayo Hospital, on being examined, the doctor declared him dead. While the victim was in Police Station, the police officers demanded a sum of Rs. 50,000/- for letting him go to home. As the petitioner was put in such a helpless condition, she could not fulfill their demand. Though she pleaded to the police officers that her husband is a heart patient and requires to carry with him certain medicines, that was also denied by the police. Even this arrest and detention of deceased Sudhakar, in our opinion, is contrary to all the guidelines laid down by the Supreme Court in the case of D.K. Basu (1997 Cri LJ 610) cited (supra).
20. We are really amused from the plea taken in the affidavit filed by Shri P.T. Goud, Joint Secretary to the Government of Maharashtra, Home Department, in which he has tried to explain and rather justified that in the case of second incident, the deceased was summoned to Police Station by the Investigating Officer for interrogation in Crime No. 272 of 2002 and while the deceased was being interrogated, he complained of chest pain and, therefore, he was shifted immediately to Mayo Hospital, where he was declared dead, which, after the State CID (Crime) concluded the investigation and filed the charge-sheet against the police officers, has proved to be false. The post mortem report belies the fact that the deceased did not die due to custodial torture. It was expected of such a senior officer of the State in the Home Department at least to have examined the details of the case before making such a claim in para 5 of the affidavit filed before this Court, which only shows that even the officer of the rank of Joint Secretary to the Government of Maharashtra, Home Department, has not hesitated to cover up the misdeeds of the police personnel, who have been found responsible for custodial death of Sudhakar Yerpude, who had met his fate, as he or his family was not in a position to pay the amount of Rs. 50,000/- to the police officers, who otherwise would have allowed him to go scot-free. Therefore, on facts, we do not find that there can be any doubt in the petitioner's claim that her husband was beaten in her house and dragged to the police jeep and taken to Gittikhadan Police Station and mercilessly beaten him there to death, which fact stands established even after the investigation came to be conducted by the State CID (Crime) and the concerned officers are facing trial for the offence of murder and other offences committed by them in the course of the said transaction. The medical evidence on record, that is the post mortem report, which reflects the case due to which the deceased died, as can be seen from the opinion of the doctor, who had conducted the post rnortem examination, reads as under :
"OPINION
(i) Probable time since death (keep all factors including observations at inquest) 12 to 24 Hours.
(ii) Cause and manner of death -- The cause of death to the best of my knowledge and belief is :--
(a) Immediate cause -- "Shock".
(b) Due to -- Retroperifoneal haemorrhage with contusion right kidney.
(c) Which of the injuries are ante mortem/ post mortem and duration if ante mortem? :
Ante mortem, fresh."
Therefore, according to us, it is not necessary for this Court to wait for the result of the criminal trial, which is pending against the police officers found responsible for causing custodial death of deceased, as is contended on behalf of the respondent-State in the affidavit filed by Shri P.T. Goud, Joint Secretary to the Government of Maharashtra, Home Department, in this Court on 7th January, 2005. The other plea raised by the State in para 9 of the said affidavit is that in cases of death due to torturous act, it is humbly submitted that, disputed question of fact arises and proper remedy will be to file a suit for recovery of compensation. We were rather harbouring an impression that considering the various pronouncements of the Supreme Court and our High Court, out of which we will refer to some of those pronouncements, the State should accept its liability to pay compensation to such victims and the compensation should be just and fair and commensurate with the wrong suffered. It is really surprising that in the affidavit filed by the Joint Secretary, it is stated that this being a case where disputed question of fact arises, the proper remedy will be to file a suit for recovery of compensation. We may remind the State of observations made by the Supreme Court in the case of D.K. Basu (1997 Cri LJ 743), cited above, wherein it has been observed by reiterating the principle Ubt jus, ibi re-medium as under :
"There is no wrong without a remedy. The law wills that in every case where a man is wronged and endamaged he must have a remedy. A mere declaration of invalidity of an action or finding of custodial violence or death in lock-up, does not by itself provide any meaningful remedy to a person whose fundamental right to life has been infringed. Much more needs to be done. There is indeed no express provision in the Constitution of India for grant of compensation for violation of a fundamental right to life, nonetheless, the Supreme Court has judicially evolved a right to compensation in cases of established unconstitutional deprivation of personal liberty or life.
Awarding appropriate punishment for the offence (irrespective 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 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."
In this case, there is no doubt about the fact that, the victim was on first occasion kept in illegal detention of three days and coerced to give to the police 130 grns. of gold, 100 gms. of silver and a bribe of Rs. 15,000/- to come out of their clutches and on the second occasion, he was tortured to death while in their custody and, therefore, the respondents have no choice but to pay the compensation to the widow and children of the deceased.
21. In Nilabati Behera (Smt.) alias Lalita Behera (Through The Supreme Court Legal Aid Committee) v. State of Orissa, (1993) 2 SCC 746 : (1993 Cri LJ 2899), the Supreme Court observed as under :--
"Enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention. Award of compensation in a proceeding under Article 32 by the Supreme Court or by the High Court under Article 226 is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, eventhough it may be available as a defence in private law irr an action based on tort. '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. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226, for contravention of fundamental rights. Certain further observations in Rudul Sah which may tend to minimise the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of the Supreme Court in Rudul Sah and others in that line have to be understood and Kasturilal distinguished therefrom.
The Court is not helpless and the wide powers given to the Supreme Court by Article 32, which itself is a fundamental right, imposes a constitutional obligation on the Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available. The power available to the Supreme Court under Article 142 is also an enabling provision in this behalf. The contrary view would not merely render the Court powerless and the constitutional guarantee a mirage, but may, in certain situations, be an incentive to extinguish life, if for the extreme contravention the Court is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence, and recovery of damages under private law, by the ordinary process. If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have-nots, who are not possessed of the wherewithal for enforcement of their rights in private law, eventhough its exercise is to be tempered by judicial restraint to avoid circumvention of private remedies, where more appropriate.
Article 9(5) of the International Covenant on Civil and Political Rights, 1966 (which reads : "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation".) also indicates that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right."
22. Thereafter while dealing with the cases of torture and custodial death, the Supreme Court in every strong words has deprecated the tendency on the part of police relating to the matters of custodial death and expressed its concern by observing as under : (See D.K. Basu v. State of W.B., (1997) 1 SCC 416 : (1997 Cri LJ 743)) "Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be deprived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law-enforcing officers is a matter of deep concern in a free society. These petitions raise important issues concerning police powers including whether monetary compensation should be awarded for established infringement of the fundamental rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental.
"Torture" of a human being by another human being is essentially an instrument to impose the will of the "strong" over the "weak" by suffering. The word torture today has become synonymous with the darker side of human civilisation. In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma a person experiences is beyond the purview of law. "Custodial torture" is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward -- flag of humanity must on each such occasion fly half-mast.
Custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. The expression "life or personal liberty" in Article 21 includes the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. The precious right guaranteed by Article 21 cannot be denied to convicts, under-trials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. It cannot be said that a citizen 'sheds off' his fundamental right to life the moment a policeman arrests him. Nor can it be said that the right to life of a citizen can be put in 'abeyance' on his arrest. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become lawbreakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchy. No civilised nation can permit that to happen. The Supreme Court as the custodian and protector of the fundamental and the basic human rights of the citizens cannot wish away the problem. The right to interrogate the detenus, culprits or arrestees in the interest of the nation, must take precedence over an individual's right to personal liberty. The Latin maxim salus popult suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the State is the supreme law) co-exist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be "right, just and fair". Using any form of torture for extracting any kind of information would neither be "right nor just nor fair" and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated -- indeed subjected to sustained and scientific interrogation - determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third-degree methods or eliminated with a view to elicit information, extract confession or derive knowledge about his accomplices, weapons etc. His constitutional right cannot be abridged to the manner permitted by law, though in the very nature of things there would be qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal. Challenge of terrorism must be met with innovative ideas and approach. State terrorism is no power to combat terrorism. State terrorism would only provide legitimacy to "terrorism". That would be bad for the State, the community and above all for the rule of law. The State must, therefore, ensure that various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves. That the terrorist has violated human rights of innocent citizens may render him liable to punishment but it cannot justify the violation of his human rights except in the manner permitted by law. Need, therefore, is to develop scientific methods of investigation and train the investigators properly to interrogate to meet the challenge.
Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but the law does not permit use of third-degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true sense purposeful to make the investigation effective. By torturing a person and using third-degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No society can permit it."
23. Again in a recent decision rendered by the Supreme Court in the case of Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble, (2003) 7 SCC 749 : (2003 Cri LJ 4548), the Supreme Court reiterated the principles which are required to be considered in such cases after referring to all the previous authorities in the matter and in the first eight paras, has highlighted the principle which should guide the Courts for considering the matter. We feel it necessary to reproduce the first eight paras of the said decision for the benefit of all, particularly the State of Maharashtra, so that the Home Department can mend its ways for dealing with such cases. The said paras read as under :
" "If you once forfeit the confidence of your fellow citizens you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time", said Abraham Lincoln. This Court in Raghubir Singh v. State of Haryana, 1980 (3) SCC 70 : (1980 Cri LJ 801), took note of these immortal observations (SCC p. 72, para 4) : (page 801. para 4 of Cri. L.J.) while deprecating custodial torture by the police.
2. Custodial violence, torture and abuse of police power are not peculiar to this country, but it is widespread. It has been the concern of the international community because the problem is universal and the challenge is almost global. The Universal Declaration of Human Rights in 1948 which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights stipulates in Article 5 that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Despite this pious declaration, the crime continues unabated, though every civilized nation shows its concern and makes efforts for its eradication.
3. If it is assuming alarming proportions, now-a-days, all around, it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from rooftops to be the defenders of democracy and protectors of people's rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace-loving puritans and saviours of citizens' rights.
4. Article 21 which is one of the luminary provisions in the Constitution of India, 1950 (in short "the Constitution") and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 (for short "the Code") deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is, therefore, difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system. The community rightly gets disturbed. The cry for justice becomes louder and warrants immediate remedial measures. This Court has in a large number of cases expressed concern at the atrocities perpetuated by the protectors of law. Justice Brandeis' observations which have become classic are in the following immortal words :
Government as the omnipotent and omnipresent teacher teaches the whole people by its example. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself. In Olmstead v. United States (1928 (277) US 438 at p. 485, quoted in Mapp v. Ohlo (1961 (367) US 643) at p. 659).
5. The diabolic recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new and unwarranted peril because the guardians of law destroy the human rights by custodial violence and torture, invariably resulting in death. The vulnerability of human rights assumes a traumatic torture when functionaries of the State whose paramount duty is to protect the citizens and not to commit gruesome offences against them, in reality perpetrate them. The concern which was shown in Raghbir Singh case more than two decades back seems to have fallen on deaf ears and the situation does not seem to be showing any noticeable change. The anguish expressed in Gauri Shanker Sharma v. State of U.P. (AIR 1990 SC 709); Bhagwan Singh v. State of Punjab (1992 Cri LJ 3144); Nilabati Behera v. State of Orissa (1993 Cri LJ 2899); Praful Kumar Sinha v. State of Bihar (1994 Supp (3) SCC 100); Kewal Pati v. State of U. P. (1995 Cri LJ 2920); Inder Singh v. State of Punjab (1995 Cri LJ 3235); State of M.P. v. Shyamsunder Trivedi 1995 AIR SCW 2793) and by now a celebrated decision in D.K. Basu v. State of W.B. (1997 Cri LJ 743) seems to have caused not even any softening attitude to the inhuman approach in dealing with persons in custody.
6. Rarely, in cases of police torture or custodial death is there direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not: even pervert the truth to save their colleagues -- and the present case is an apt illustration -- as to how one after the other police witnesses feigned ignorance about the whole matter.
7. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach at times of the Courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock-up because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The Courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/under-trial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in "khaki" to consider themselves to be above the law and sometimes even to become a law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and civilization itself would risk the consequence of heading towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The Courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common may tend to gradually lose faith in the efficacy of the system of the judiciary itself, which if it happens will be a sad day for anyone to reckon with.
8. Though Sections 330 and 331 of the Indian Penal Code, 1860 (for short "IPC") make punishable those persons who cause hurt for the purpose of extorting the confession by making the offence punishable with sentence up to 10 years of imprisonment, but the convictions, as experience shows from the track record have been very few compared to the considerable increase of such onslaught because the atrocities within the precincts of the police station are often left without much traces or any ocular or other direct evidence to prove as to who the offenders are. Disturbed by this situation the Law Commission in its 113th Report recommended amendments to the Indian Evidence Act, 1872 (in short "the Evidence Act") so as to provide that in the prosecution of a Police Officer for an alleged offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when the person was in the police custody, the Court may presume that the injury was caused by the Police Officer having the custody of that person during that period unless the Police Officer proves to the contrary. The onus to prove the contrary must be discharged by the police official concerned. Keeping in view the dehumanizing aspect of the crime, the flagrant violation of the fundamental rights of the victim of the crime and the growing rise in crimes of this type, where only a few come to light and others don't, the Government and the legislature must give serious thought to the recommendation of the Law Commission and bring about appropriate changes in the law not only to curb custodial crime but also to see that custodial crime does not go unpunished. The Courts are also required to have a change in their outlook, approach, appreciation and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime so that as far as possible within their powers, the truth is found and the guilty should not escape so that the victim of the crime has the satisfaction that ultimately the majesty of law has prevailed."
24. The only question, which now remains for our consideration, is as to how much compensation should be awarded in this case. On this count, the petitioner has claimed the compensation in the sum of Rs. 10 lacs in the present petition. She had also sought compensation of Rs. 10 lacs in the earlier petition filed by her. In the present petition, by way of amendment, she has claimed the compensation of Rs. 13,50,000/-. As the petitioner has received the amount of Rs. 2 lacs by way of interim compensation, she has restricted her claim to Rs. 11,50,000/-.
25. On the other hand, the respondent-State has examined the matter and it finds that a sum of Rs. 1 lac more can be given as an additional compensation by taking a plea that it will not be just and proper to pay any more compensation and has further pleaded that it will untimely burden the State exchequer and will also set a precedent and particularly, in view of that some stolen property was recovered from the deceased in this case and the case is pending trial, the compensation of Rs. 3 lacs is just and reasonable.
26. In our view, the stand taken by the respondent-State that some stolen property was recovered from the deceased in this case and the case is pending trial cannot be a reason to deny the compensation to the widow and children of the deceased for the simple reason that firstly because it is not the case of the respondent-State that the deceased was arrested in the said case as an accused and secondly the claim of the petitioner that her husband was wrongfully detained for three days and tortured in police custody so as to coerce him to part with 130 gms. of gold, 100 gms. of silver and cash of Rs. 15,000/- by way of bribe for letting him to go scot-free, is not challenged by filing any affidavit in the matter.
27. We have already referred to the aforesaid three landmark judgments of the Apex Court on this issue as to how the matters of wrongful detention and custodial torture and the cases relating to custodial death should be considered. The Apex Court has clearly expressed that it is not only violation of fundamental rights of a citizen, which are guaranteed under Articles 21 and 22 of the Constitution of India, but also violation of human rights of a citizen. Therefore, these types of cases cannot be considered and compared to cases where the State has awarded compensation to the victims of riot, accident and natural calamity. This is a case where there is a willful act on the part of the officials of the State in violating the fundamental rights of a citizen guaranteed under the Constitution of India and also human rights.
28. Therefore, after considering that the petitioner has already been paid a sum of Rs. 2 lacs by the respondent-State, which was treated as an interim compensation by this Court, we find that for first violation of the fundamental as well as human rights of deceased Sudhakar Yerpude, that is his wrongful detention in police custody by the Police Officers of Lakadganj Police Station for a three days and custodial torture and extortion of gold, silver and an amount of Rs. 15,000/- by way of bribe, a sum of Rs. 3 lacs would be just and reasonable and it would meet the ends of justice.
29. On the count of second incident, that is his wrongful detention and custodial torture, resulting in his death, an additional sum of Rs. 5 lacs would be just and reasonable after taking into account a sum of Rs. 2 lacs, which is already paid to the petitioner.
30. We have arrived at such a conclusion by taking into consideration not only the loss suffered by the petitioner and her children due to custodial death of deceased Sudhakar at the hands of the officers of the State, but also the anguish, mental torture, loneliness, welfare of children and loss of company and care.
31. The compensation awarded to the petitioner as above would be just and appropriate, as the deceased was merely 40 years old.
32. The Courts have time and again deprecated such conduct on the part of police, which is already spelt out in three decisions referred to above by this Court, and the compensation, which is to be awarded, should also have a deterrent effect on the State so that its officers should not be encouraged to indulge in such illegal acts to the extent of taking away human life, which is guaranteed as a fundamental right under the Constitution.
33. Taking into consideration that there are three children of victim Sudhakar, who are minors, we direct that the respondent-State to deposit the amount of compensation of rupees eight, lacs in this Court within four weeks from the date of pronouncement of this Judgment. On such deposit being made, the said amount shall be invested in a term deposit in any Nationalised Bank initially for a period of five years and thereafter, it shall be renewed from time to time. The petitioner would be entitled to withdraw quarterly interest from the said amount to meet day-to-day expenses. Thereafter, the amount shall be shared by the petitioner and her children equally, which the children would be able to withdraw after they attain majority.
34. The petitioner is at liberty to seek any order in the matter and the Court may permit withdrawal of amount by the petitioner and her children to meet any contingency.
35. It will be open for the respondent-State to recover the amount of compensation granted to the petitioner and her children from the officers of Lakadganj Police Station, who are found responsible for the wrongful confinement and custodial torture of deceased Sudhakar Yerpude, and the officers of Gittikhadan Police Station for the wrongful detention and custodial torture of the deceased, resulting in his death.
36. We also grant costs of this petition, which we quantify at rupees ten thousand to be deposited within four weeks in this Court.
37. The petitioner is permitted to withdraw the amount of costs on the same being deposited along with the compensation, as directed by this Court.
38. Rule is made absolute accordingly.
39. Certified copy expedited.