Calcutta High Court (Appellete Side)
Gita Rani Purkait & Anr vs The State Of West Bengal & Ors on 1 May, 2018
W.P. No. 15901 (W) of 2015
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Gita Rani Purkait & Anr.
Vs.
The State of West Bengal & Ors.
For the Petitioners : Mr. Jayanta Narayan Chatterjee, Advocate
Mr. Debashish Banerjee, Advocate
Mr. Apalok Basu, Advocate
Mr. Amit Biswas, Advocate
Mr. Supreem Naskar, Advocate
For the State : Mr. Subhabrata Datta, Advocate
Mr. Benazir Ahmed, Advocate
Hearing concluded on : January 11, 2018
Judgment on : May 1, 2018
DEBANGSU BASAK, J.:-
The petitioners seek an initiation of appropriate criminal
proceedings in respect of the custodial death of the son of the fist
petitioner, and compensation.
Learned Advocate for the petitioners submits that, the son of the
first petitioner was taken into custody on February 28, 2015 in
respect of a case of cheating. The first petitioner, who is the mother of
the detainee, was not informed about the detention immediately on
the arrest. The first petitioner was informed about the custody for the
first time only on March 4, 2015. She was informed that her son was
ill, and admitted to a primary health center. At around 10 P.M. in the
night, she had received a call from the police informing her that her
son was shifted to Chittaranjan Hospital at Park Circus as according
to the police, the medical condition of the son of the first petitioner
had deteriorated. The first petitioner had rushed to the hospital on
receipt of such information, and found her son in critical condition.
On March 5, 2015, the son of the first petitioner was declared dead.
The second petitioner submitted an application under the Right to
Information Act, 2005. The petitioners, thereafter, approached the
various authorities for justice.
Learned Advocate for the petitioners submits that, the death of
the son of the first petitioner having occurred in the custody of the
police authorities, it is for the police authorities to explain the causes
of such death, appropriately. The death of the son of the first
petitioner has not been explained by the police authorities even in the
affidavit filed. He relies upon All India Reporter 1997 Supreme
Court Cases page 610 (D.K. Basu v. State of West Bengal with
Ashok K. Johri v. State of U.P.) and submits that, the petitioners
are entitled to compensation for death of the accused in custody. He
relies upon 2013 Volume 14 Supreme Court Cases page 290
(Rohtash Kumar v. State of Haryana & Ors.) for the same
proposition.
Referring to the guidelines/procedures to be followed in case of
death caused in police action as circulated by the National Human
Rights Commission under cover of the letter dated May 12, 2010, he
submits that, whenever there is a specific complaint made against the
police alleging commission of a criminal act on their part, which
makes out a cognizable case of culpable homicide, a First Information
Report (FIR) to such effect, should be registered under appropriate
sections of Indian Penal Code (I.P.C.). Such FIR should be
investigated by a specialized investigation agency. He seeks
compensation for death in custody and investigation into the death.
Learned Advocate appearing for the respondents submits that,
every custodial death need not be investigated into. The facts of the present case do not warrant lodgement of a FIR for an investigation into the death. The accused was taken into custody in respect of a cheating case. In custody, the accused had fallen ill. The accused was afforded all medical assistance that was possible, and within the powers of the police authorities. The accused was initially removed to a primary health center. Upon the medical condition of the accused deteriorating, he was moved to a hospital in the District and then to Kolkata, where he succumbed to his medical conditions. No case of torture is made out. The death was enquired into at the judicial enquiry proceeding and in a Magisterial Inquest. Both the proceedings did not return any adverse finding. Both the proceedings returned a finding of death due to natural causes. Therefore, there is no requirement of a FIR to be lodged and an investigation to be conducted. In support of his contentions learned Advocate for the respondent relies upon 1983 Volume 4 Supreme Court Cases page 141 (Rudul Sah v. State of Bihar & Anr.), 1993 Volume 2 Supreme Court Cases page 746 (Nilabati Behera v. State of Orissa & Ors.), 1995 Supp. Volume 4 Supreme Court Cases page 450 (Death of Sawinder Singh Grover), 2005 Volume 10 Supreme Court Cases page 1 (S.P.S. Rathore v. State of Haryana & Ors.), 2006 Volume 3 Supreme Court Cases page 178 (Sube Singh v. State of Haryana & Ors.), 2009 Volume 11 Supreme Court Cases page 376 (Dalbir Singh v. State of Uttar Pradesh & Ors.), 2015 Volume 2 Supreme Court Cases page 227 (Suresh & Anr. v. State of Haryana) and 2015 Volume 8 Supreme Court Cases page 744 (D.K. Basu v. The State of West Bengal & Ors.) There are two parts to the claim of the petitioners. One part relates to a FIR being registered to investigate into the custodial death of the son of the first petitioner, and the other part is for compensation on account of custodial death and compensation in respect thereto.
Rudul Sah (supra) relates to a habeas corpus petition under Article 32 of the Constitution of India. A person was not released from custody for more than 14 years subsequent to his acquittal. This was considered as gross violation of fundamental rights guaranteed under Article 21 of the Constitution of India. An inference of unlawful detention was drawn in the facts and circumstances of that case. The State was directed to pay compensation assessed by the Supreme Court. It was a petition under Article 32 of the Constitution of India. It notes that, Article 32 cannot be used as a substitute for enforcement of rights and obligations which can be enforced efficaciously through the ordinary process of Courts. It also notes that, although the petitioner could be relegated to the ordinary remedy but since the Court has found that, the prolonged detention in the prison after his acquittal, was wholly unjustified and illegal, the Court can grant a relief of compensation.
Nilabati Behera (supra) is of the view that, Courts are competent to evolve new tools and mould the remedy to provide redressal in case of deprivation of fundamental rights especially of the economically underprivileged. It is of the following view:-
"17. It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. 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 of the Constitution. 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 of the Constitution, for contravention of fundamental rights."
"19. This view finds support from the, decisions of this Court in the Bhagalpur blinding 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 suitable 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 Corpn. 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 to 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."
"34. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting "compensation"
in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of exemplary damages' awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and persecute the offender under the penal law."
"35. This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law - through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, is possible. The decisions of this Court in the line of cases starting with Rudul Sah v. State of Bihar granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 32 or 226 of the Constitution of India, notwithstanding the rights available under the civil law to the aggrieved party where the courts found that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in that spirit that the Courts have molded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental rights of a citizen under Article 21 is concerned. Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply And the courts have to act firmly but with certain amount of circumspection and self restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law. Some of those situations have been identified by this Court in the cases referred to by Brother Verma, J."
In Sawinder Singh Grover (supra) the Supreme Court on consideration of a report furnished by the Additional District Judge disclosing a prima facie case for investigation and prosecution, directed the Central Bureau of Investigation to lodge a FIR and initiate criminal proceedings against the persons named in the report of the Additional District Judge and the persons who are accused as a result of the investigation.
S.P.S. Rathore (supra) is of the view that, although the Courts have power to award compensation, such power should be sparingly exercised. It considers Nilabati Behera (supra). It is of the following view:-
"19. The sparing exercise of power under Article 32 or Article 226 of Constitution of India for issue of directions to conduct enquiry to determine compensation in glaring and clear cases of rape by police officials, custodial death, illegal detention of poor and helpless cannot be resorted to in the case of present nature."
Sube Singh (supra) is of the view that, Courts can award compensation in cases where violation of Article 21 involving custodial death or torture is established or is incontrovertible. Where there is no custodial death or torture, then the Court ought not to enter into the arena of compensation. In the facts of that case, no compensation was directed. However, there was a direction for an investigation to be made by the Central Bureau of Investigation.
Dalbir Singh (supra) did not award any compensation as the custodial death was yet to be established. Suresh & Anr. (supra) deals with the power to award under Section 357A of the Criminal Procedure Code. There are two decisions of D.K. Basu (supra) referred to by the parties. D.K. Basu (supra) referred to by the learned Advocate for the respondents, deals with the failure of establishment of Human Rights Commission in few of the States. It issues directions with regard to establishment of such Human Rights Commission. D.K. Basu (supra) referred to by the petitioners lays down directions and guidelines in all cases of arrest and/or detention, till legal provisions are made. Rohtash Kumar (supra) relates to a death caused due to fake encounter. Finding that, with the passage of time, it would not be feasible to have an effective investigation, the Supreme Court proceeds to awards compensation without directing a FIR to be lodged, in that case.
A Court exercising jurisdiction under Article 226 of the Constitution of India, therefore, is clothed with sufficient powers to award compensation once the fundamental rights of a person is established to have been violated. In a given case, where there is a custodial torture or custodial death, the Court upon returning a finding as to violation of fundamental rights, particularly under Article 21 of the Constitution of India, can proceed to award compensation. Award of compensation is a palliative measure. It seeks to ameliorate the sufferings inflicted by the unlawful acts of the instrumentalities of the State. A defence of sovereign immunity is not available when breach of fundamental rights by instrumentalities of the State are established. However, such power to award compensation is required to be used sparingly. There must be incontrovertible evidence before the Court to establish violation of fundamental rights, particularly those protected under Article 21 of the Constitution of India, while proceeding to award compensation. Where such evidence is lacking, the Court should not use such power and leave the parties to avail of their remedies available in the normal course. Death in police custody, ipso facts, does not lead to grant of compensation by Writ Court or require the Writ Court to direct a FIR to be lodged to investigate into the causes of death.
In the facts of the present case, the deceased was arrested in connection with Mandir Bazar Police Station Case No. 536/14 dated November 16, 2014 under Sections 420/466/467/468 of the Indian Penal Code. The FIR was registered on November 16, 2014. The arrest was made on February 28, 2015. The mother of the deceased was informed regarding the arrest on the same day. The mother of the deceased is the first petitioner. The first petitioner claims to have received the intimation on March 4, 2014. There is a writing dated February 28, 2015 bearing the signature of the first petitioner annexed to the affidavit-in-opposition of the State showing that, the first petitioner received the intimation of arrest of her son on February 28, 2015. In the affidavit-in-reply, the first petitioner claims that, the police authority asked the petitioner to put her signature on several blank documents and that, one of such documents has been manipulated, to show the intimation of the arrest being given by the police, to the first petitioner, on February 28, 2015. The fact that, the signature of the first petitioner was obtained on blank documents by the police does not find place in the writ petition. This allegation is made in the affidavit in reply while explaining the contents of the affidavit-in-opposition enclosing written document showing that, the first petitioner received intimation of the arrest of her son, on the date of arrest itself. Excepting such statement in the affidavit in reply, there is nothing on record to discredit the written document. On the basis of the materials made available on record, therefore, the inference that, the first petitioner was aware of the arrest of her son from the date of the arrest itself, is plausible. Such an inference is drawn.
On March 21, 2015, the deceased complained of uneasiness due to acidity. He was taken to Naiyarat Block Primary Health Centre, where he was treated. The deceased was produced before the learned Additional Chief Judicial Magistrate, Diamond Harbour on the same day. A prayer for police remand was made, which was allowed for a period of 5 days. The accused was, thereafter, lodged with the Mandir Bazar Police Station. On March 4, 2015, the deceased reported that, he was feeling pain in his chest. He was again taken to the Naiyarat Block Primary Health Centre and was treated thereat. On March 3, 2015 at about 22.25 hours, the deceased was feeling sick and was medically checked up at the Naiyarat Block Primary Health Centre and was admitted there. The first petitioner was informed of such events on March 4, 2015. The intimation on this date is admitted by the petitioners. The deceased was referred to the Diamond Harbour District Hospital. He was taken to the Diamond Harbour District Hospital, and due to his deteriorating medical condition, he was further referred from Diamond Harbour District Hospital to Calcutta National Medical College at about 21.30 hours. He was taken to Kolkata as referred. The deceased was examined by the emergency medical officer at Calcutta National Medical College at about 1.10 hours and admitted to the hospital. On March 5, 2015, the deceased expired at the hospital. Documents of treatment are available in the affidavit-in-opposition of the State. Judicial enquiry was held subsequent to the death. The judicial enquiry reports that, the death was due to natural causes. A Magisterial Inquest was made on March 6, 2015. A post mortem examination was conducted on March 6, 2015. The Magisterial Inquest and the post mortem examination were sent to the National Human Rights Commission on April 21, 2015 for process. Documents sought for by the first petitioner under the Right to Information Act, 2005 were given to the first petitioner.
During the pendency of the writ petition, finding that, there were external injuries on the body of the deceased, appearing from the post mortem report, by an Order dated July 19, 2016, a direction was given to the State to file further affidavit explaining such injuries. The external injuries noted in the report of the judicial inquiry are as follows:-
"The postmortem over the dead body was performed by Dr. P. Kumar Dev of NRS hospital. According to him he had conducted postmortem over the dead body of deceased Kallol Purkait. The dead body of the deceased was identified to him by constable Kalyan Biswas of Beniapukur P.S. On examination over the dead body of the deceased he found ragor morties was present all over the body. P.M. stain were present over back, dried blood present inside oral cavity. IV needle puncture mark present over left wrist lateral aspect and over anterior aspect of elbow, soft issue swelling present over anterior chest wall. Bruises were present over left wrist anterior lateral aspect 2 inch x 1 inch and over front of elbow 2.5 inch x 1 inch. Sub scalp hematoma present over left oxi pital area 1.5 inch x 1 inch. Both lungs were edematous, peritoneal cavity contain purulent fluid, stomach contains about 100 ml of fluid, sub mew co cell hemorrhage present, pancreas was edematous and congested, perforation was present in first part of duodenum, Liver and kidney were congested. According to him cause of death was due to effects of deceased conditions of stomach and intestine - a natural cause."
Pursuant to such direction, the State has filed an affidavit. It appears from such affidavit that, the police authorities obtained a medical opinion with regard to the external injuries from the Head of the Department of Forensic Medicine, North Bengal Medical College. In the opinion of such Doctor, the external injuries did not cause the death. The relevant portions of the affidavit of the State filed pursuant to the Order dated July 19, 2016 are as follows:-
"2. It evident from the medical opinion and from the information given by the Investigating Officer that:-
a. The IV needle puncture mark present over left wrist lateral aspect and over anterior aspect of elbow" and the bruise present over left wrist anterior lateral aspect 2 inch x 1 inch and over front of elbow 2.5 inch x 1 inch" as mentioned in the postmortem report was cause by intravenous injection needles during his medical treatment at Naiyarat Rural Hospital, Diamond Harbour Hospital and Calcutta National Medical College & Hospital. The autopsy surgeon Dr. Prabir Kr. Deb, presently Head of the Department of Forensic Medicine, North Bengal Medical College, District: Darjeeling, in his further report has opined that such injury could be cause by intravenous injections.
b. "Sub scalp hematoma present over left occipital area 1.5 inch x 1 inch" as mentioned in the postmortem report was cause due to fall of the upper body of the deceased from sitting position on the stretcher, since during shifting from Diamond Harbour Hospital to Calcutta National Medical College & Hospital in ambulance on March 04, 2015 night the deceased Kallol Purkait due to paid in his abdomen sat up twice or thrice on the stretcher by himself on which he was lying and again fell back in lying condition and during this time the backside of his head hit the stretcher.
c. In his further report dated August 02, 2016, the autopsy surgeon Dr. Prabir Kumar Deb also opined that the said injury may be caused due to fall and such injury will not cause death. Moreover, when the deceased Kallol Purkait was shifted and admitted to Naiyarat Rural Hospital and later at Diamond Harbour Hospital and Calcutta National Medical College & Hospital, he did not complained anywhere about the said hematoma or any pain on his occipital area, nor any doctor of such hospitals could detect such hematoma in his occipital area during their medical treatment. The only complaint of the patient from the very beginning was respiratory distress and pain in abdomen.
d. "A soft tissue swelling present over anterior chest wall" as mentioned in the Magisterial Inquest Report, Judicial Enquiry Report and Postmortem Report is due to any pathological condition (tumor?) as further opined by the autopsy surgeon Dr. Prabir Kumar Deb. It is not an injury as opined by the autopsy surgeon. e. "Dried blood present inside the oral cavity" as mentioned in the postmortem report was due to the diseased condition of stomach, pancreas and intestine as already mentioned in the postmortem report as opined in his further report by Dr. Prabir Kumar Deb. It is also not an injury as opined by him." In the present case, therefore, there was a judicial enquiry, a Magisterial Inquest and a reference to the National Human Rights Commission. There is a subsequent medical opinion ruling out the external injuries as the cause of death. None of the proceedings have conclusively established custodial death due to torture or the death being homicidal in nature. The death of the deceased was due to natural causes.
In view of the death being due to natural causes, the claim for compensation should not be allowed in a writ jurisdiction. The materials produced on record and as noted above does allow an inference that, the police was negligent in extending proper medical assistance to the deceased on such score also, a case for award of compensation by a Writ Court is not made out. This, however, should not prevent the petitioners from availing their remedies, if they have any, before the appropriate forum, in accordance with law.
So far as the direction for lodging a FIR and carrying an investigation into the incident is concerned, it appears from the events as noted that, sufficient enquiries, at diverse levels, were made into the cause of death. Such enquiries did not throw up a case showing commission of an offence cognizable under the Indian Penal Code. It may be contended that, without a FIR being lodged and a proper investigation done, it is premature to return a finding of no compensation, and that, the death was not homicidal in nature, requiring a FIR to be lodged. The writing dated May 12, 2010 of the National Human Rights Commission relates to police encounter deaths. The present case does not fall in such category. In any event, there has to be a commission of a criminal act which makes out a cognizable case of culpable homicide. The present case does not have material on record to suggest, culpable homicide or commission of any cognizable offence, in the police dealing with the deceased, prior to his death. Therefore, in the given facts I am not minded to direct a FIR to be lodged as prayed for by the petitioners.
W.P. No. 15901 (W) of 2015 is dismissed. No order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
[DEBANGSU BASAK, J.]