Gauhati High Court
Xxx Xxx Xxx vs In Re :- The State Of Assam & 2 Ors on 29 March, 2017
Author: Manojit Bhuyan
Bench: Manojit Bhuyan
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WRIT PETITION (CRL.) (TAKEN UP) NO.8 OF 2016
In Re-
1. State of Assam
Represented by the Commissioner and Secretary,
Home and Political Department, Government of Assam,
Assam Government Secretariat, Dispur, Guwahati-781 006
2. Inspector General of Prisons, Assam,
Khanapara, Guwahati-781 002
3. Superintendent of Jail,
Central Jail, Silchar, Cachar
BEFORE
HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH
HON'BLE MR. JUSTICE MANOJIT BHUYAN
For the petitioner : Mr.TJ Mahanta,
learned Amicus Curiae,
assisted by Ms.P Bhattacharya,
learned counsel
For the respondents : Mr. D Saikia, learned Senior Additional
Advocate General, Assam, assisted by
Mr.BN Sarma, learned senior
Government Advocate, Assam
Date of hearing & judgment: 29.03.2017
JUDGMENT AND ORDER
(Ajit Singh, C.J.)
The Assam Human Rights Commission (in short "Commission") by
its judgment and order dated 31.12.2015 passed in AHRC Case No.778-
2-13-14 has referred the matter to the High Court under Section 18(b) of
the Protection of Human Rights Act,1993 for appropriate directions.
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2. Badal Roy, whose son Bappon Roy died in judicial custody, was
the complainant before the Commission and since he was not assisted by
any lawyer, we thought it proper to appoint Shri TJ Mahanta, learned
senior counsel as Amicus Curiae, who willingly agreed to provide all
possible legal assistance in the matter. I.A.(Criminal) No.373/2016 has
also been filed for a direction against the State Government to pay him
compensation for the death of Bappon Roy in judicial custody.
3. Facts in short are these. Bappon Roy was married to Babby Roy
on 30.9.2012. At that time, he was a young man aged about 32 years
and was also serving as Science Teacher in a Private English Medium
School at Silchar. His trouble started from 11.6.2013 when wife Bobby
Roy lodged a report against him at Lakhipur Police Station for an offence
under Section 498-A of the Indian Penal Code. On 11.6.2013 itself, the
Investigating Officer of the case Assistant Sub-Inspector of Police -
Biman Deb arrested Bappon Roy from his house and brought him to
Lakhipur Police Station. He was then remanded to judicial custody on
12.6.2013 and sent to Central Jail, Silchar. And from Jail, he was taken
to Silchar Medical College Hospital on 13.6.2013, where he was declared
'brought dead' by the doctors. The dead body of Bappon Roy was
handed over to Badal Roy on 14.6.2013 after it was subjected to post
mortem examination. According to the post mortem examination report
dated 15.6.2013, his cause of death was due to organo-phosphorus
insecticide poison.
4. Badal Roy lodged First Information Report at Lakhipur Police
Station vide case No.186/2013 in connection with death of Bappon Roy,
but the police after investigation submitted closure report vide FR
No.74/2015 dated 16.8.2015. Undeterred, he made a complaint to the
Commission alleging foul play in Jail, which led to the death of Bappon
Roy on 13.6.2013. In the result, an enquiry was conducted by the then
Additional District Magistrate, Cachar, Silchar, who, in his report, made
the following important observations:
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"(i) Timely treatment and sending the patient to Silchar
Medical College Hospital, Ghungoor may had some hope
for survival of the patient.
(ii) The treatment of the patient in the Jail was done by
Pharmacist on the advice of doctor over phone, this is a
gross-irregularity on the part of medical treatment to the
patient in the Jail.
(iii) No frequent visit of doctors was made in the Central Jail,
Silchar.
(iv) Though evidence could not be collected in respect of
torture to Lt. Bapon Roy, but black mark on the both
wrist and one leg indicates some reasonable doubt
regarding cause of injuries on the body of Lt. Bapon Roy
as a result of some external force applied on the body.
(v) The actual cause of death can be ascertained after
receipt of chemical examination of viscera etc.
(vi) In this connection, a high level enquiry may be
conducted if authority deem fit and proper to ascertain
the actual facts leading to the death of Lt. Bapon Roy
and to unearth the culprit, if any."
5. Thereafter, the Commission directed the State Government to
have an enquiry done by a Committee headed by the Commissioner,
Hills and Barak Valley Division. The State Government, therefore,
constituted an Enquiry Committee headed by the Divisional
Commissioner, Hills and Barak Valley Division. During enquiry, the
Committee recorded the statement of one life convict, namely, Bidyut
Kumar Paul in Central Jail, who claimed that Bappon Roy was beaten
mercilessly by other jail inmates and also by the Head Warder Mahsin Ali
Laskar. The relevant extract of the report dated 2.6.2015 of the
Committee reads as under:
"6. During the course of the enquiry a number of officials and others
concerned were heard in person and all available documents were
examined and perused. The lists are already enclosed as cited at paras
2 and 3 above.
7. From the report of the doctor (Dr.Toufique Z.R. Barbhuyan)
given to the O/c In-charge of Ghungoor Outpost, it is clear that Bappon
Roy was found to be "brought dead" to the Silchar Medical College
Hospital. This report, dated 13.06.2013, is enclosed as ANNEXURE-III.
8. The Directorate of Forensic Science, Assam to which the viscera
of the deceased was sent also mentions in its report that the viscera
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gave "positive test for Organo-phosphorus Insecticide". This report
dated 27.08.2013 is enclosed as ANNEXURE-IV.
9. The report from the O/o the Prof. and Head, Department of
Forensic and State Medicine, Silchar Medical College, signed by Dr. N.N.
Kakoti and forwarded by Dr.Gunojit Das, Associate Professor of the
Department also states that the cause of death of Bappon Roy was "due
to Organo-Phosphorus insecticide poison". This report dated 14.11.2013
is enclosed as ANNEXURE-V.
10. From both of these reports, it emerges that Bappon Roy must
have died either at the jail itself, or, while he was transported from the
jail to the hospital on 13.06.2013.
11. Sri Pranjit Deb Choudhury, Pharmacist, Central Jail, Silchar was
the person who had attended to Bappon Roy while at the jail. Deb
Choudhury was interrogated both on 27th as well as on 28th May, 2015
by me. The Pharmacist had admitted that, in absence of the doctor (Dr.
Anjan Dey) at the time when Bappon Roy was brought to jail on
12.06.2013, he had examined him. Bappon Roy was found to be
restless and tense. When asked to raise his hands, they were found to
be shaking. He was also talking irrelevantly. On the advice of Dr. Dey
over phone, the Pharmacist gave him a 0.25 mg of "Clonazepam" and
sent him to Ward No.3 for the night. The next morning (13.06.2013),
Bappon Roy was again found to be restless and talking irrelevantly. He
was refusing to be photographed as all new inmates are photographed.
The jail doctor, Anjan Dey (who is also holding other official
responsibilities) checked on Bappon Roy inside the jail around 10.30 AM
and gave him another 0.25 mg tablet of "Clonazepam". The doctor, in
his statement, has stated that around this time his BP was found to be
normal (120/80). However, surprisingly, around 3-30 PM in the
afternoon the same day, the condition of Bappon Roy is reported to
have deteriorated. When the Pharmacist checked him again around 3-
30 PM, both his BP and pulse-rate was found to be low. Dr. Anjan Dey,
again over phone, directed the Pharmacist to administer one 'Decadron'
injection around 4-00 PM. When his condition did not improve, another
'Decadron' injection was administered on the advice of Dr.Dey who had
by then arrived at the jail. Bappon Roy was then taken to the Silchar
Medical College Hospital in an auto-rickshow and the doctors at the
Silchar Medical College Hospital declared him as 'brought dead'. Sri
Tarun Chandra Talukdar (Now posted as Assistant Inspector General of
Prisons at Headquarters) was the Superintendent of the Silchar Cental
Jail then.
12. Everyone connected with the Silchar Central Jail have denied
that Bappon Roy was put to any physical torture while at the Jail. On
13.6.2013, Bappon Roy was shifted from Ward No.3 to Ward No.10. Sri
G.S.Panesar,ACS, in his report, had made certain observations which
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have been noted by the learned AHRC in its order. The same
observations are reiterated by this enquiry also, although physical
torture, or, administering of any poison could not be clinically proven.
13. Matters took a very different turn later on the day of enquiry on
th
27 May, 2015. One Shri Bidyut Kumar Paul, presently an employee of
the State Bank of India, Udharbond Branch and previously a life-convict
of Central Jail, Silchar from 13.01.2006 to 29.05.2014 met me in person
at the Circuit House in the evening of 27.5.2015 and submitted a
statement in writing that he has evidence with him which could
establish that Bappon Roy was tortured on 12.06.2013 at Ward No.3.
The sensational statement of Shri Bidyut Kumar Paul is enclosed as
ANNEXURE-VI.
As stated by Sri Paul, he was lodged in Ward No.11 during the
period of Bappon Roy's detention at the Silchar Central Jail. As again
stated by him, on 13.06.2013, one UTP named Kamrul Hussain
Barbhuyan came and met him (Shri Paul) at Ward No.11 and reported
that Bappon Roy was "beaten mercilessly" by some convicts, namely,
(1) Dilwar Hussain (now released on grounds of juvenility), (2) Subrata
Das, (3) Sushanta Das and Ward Mate of Ward No.3 Shri Sona Kumar
Baishnab. As per his statement, Kamrul Hussain Barbhuyan also
reported that the Head-Warder of Central Jail,Silchar on duty on
12.06.2013 and 13.06.2016, Shri Mohsin Ali Laskar also beat up Bappon
Roy with his baton. Shri Paul also claims to be an eye-witness to this
beating by Mohsin Ali Laskar on 13-06-2013.
14. I had asked Shri Bidyut Kumar Paul to appear before me on 28-
05-2015 at the Circuit House, Silchar which he complied with. He
reiterated everything that was stated in his written statement.
15. I called for the list of prisoners/inmates lodged in Ward No.3 and
10 of Central Jail, Silchar on 12-06-2013 and 13-06-2013. This may be
seen enclosed as ANNEXURE-VII. It is a fact that Shri Kamrul Hussain
Barbhuyan was inside the jail on 12-06-2013 and 13-06-2013. He could
not be interviewed as he was out of jail on days of the enquiry. Head-
Warder Shri Mohsin Ali Laskar was questioned on 28-05-2015 at Circuit
House, who, however denied the charges made by Shri Bidyut Kumar
Paul.
16. The picture gets murkier with the allegations brought by Shri
Bidyut Kumar Paul. The truth may come out only after a professional
cross-examination of all concerned and specially of those present in
Silchar Jail on 12-06-2013 and 13-06-2013 is conducted by professional
Judicial experts. This enquiry, therefore, considers it appropriate to
recommend a high level judicial enquiry, or, an enquiry by a competent
criminal investigating agency into the entire matter. An administrative
enquiry is not likely to unravel the complications that have surfaced. A
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police case on the same matter is also on, which is still under
investigation and is yet to draw to a close."
6. From the above quoted report, it is clear that death of Bappon
Roy in jail was unnatural and shrouded in mystery which the Committee
could not unravel. The Committee, therefore, recommended a high level
judicial enquiry or an investigation by some competent investigating
agency so that truth may come out. It is in this background, the
Commission has referred the matter to the High Court for a judicial
enquiry by a Senior Judicial Officer so that wrong-doers are identified
and brought to justice.
7. There is, however, no dispute in this case nor there is any doubt
that the Bappon Roy died between 12.6.2013 and 13.6.2013 while he
was in judicial custody. Under what circumstances Bappon Roy died and
who were responsible for his death is a matter of enquiry which we will
order hereinafter. But the fact remains that he died an unnatural death
while he was in judicial custody. The question, therefore, which calls for
our consideration is what relief Badal Roy can be granted in the fact
situation of the case.
8. The liability of the State to pay compensation for deprivation of
the fundamental right of life and personal liberty is a new liability in
public law created by the Constitution and not vicarious liability or a
liability in tort. For this reason, this new liability is not hedged in by the
limitations, including the doctrine of sovereign immunity, which ordinarily
apply to State's liability in tort. This view is strongly supported by the
decision of the Privy Council in Maharaj v. Attorney-General of Trinidad
and Tobago (1978) 2 All ER 670. Section 1 of the Constitution of
Trinidad and Tobago recognizes amongst other "the right of the
individual of life, liberty, security of person and the right not to be
deprived thereof except by due process of law". Any person alleging
contravention of this right and other human rights and freedoms
recognised under sections 1 and 2 can apply under section 6 for redress
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to the High Court which is empowered to issue appropriate orders, writs
and directions for enforcement or securing the protection of provisions of
the aforesaid sections. The appellant in the case was a barrister and was
committed to seven days imprisonment by a judge of the High Court
which committal was set aside by the Privy Council in appeal on the
ground that particulars of the specific nature of the contempt were not
told to the appellant and the judge had thereby failed to observe a
fundamental rule of natural justice. The appellant had in the meantime
applied for redress under section 6 on the ground that he was deprived
of his liberty without due process of law. This application was dismissed
by the High Court, but appellant again came up in appeal, to the Privy
Council. The Privy Council held that section 6 of the Constitution
impliedly allowed the High Court to award compensation as that may be
the only practicable form of redress in some cases. The Privy Council
also held that as the appellant's committal was in violation of the rules of
natural justice, he was deprived of his liberty without due process of law
in contravention of section 1 of the Constitution and was entitled to
claim compensation from the State under section 6 thereof. In meeting
the argument that a judge cannot be made personally liable for anything
done or purporting to be done in the exercise or purported exercise of
his judicial functions, Lord Diplock speaking for the majority observed:
"The claim for redress under section 6(1) for what has been done by a
judge is a claim against the State for what has been done in the exercise
of judicial power of the State. This is not vicarious liability: it is liability of
the State itself. It is not a liability in tort at all: it is a liability in public law
of the State, not of the judge, which has been created by sections 6(1)
and (2) of the Constitution." As to the measure of compensation LORD
DIPLOCK said: "The claim is not a claim in private law for damages for
the tort of false imprisonment under which the damages recoverable are
at large and would include damages for loss of reputation. It is a claim in
public law for compensation for deprivation of liberty alone. Such
compensation would include any loss of earnings consequent on the
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imprisonment and recompense for the inconvenience and distress
suffered by the appellant during his incarceration."
9. The above view was accepted by the Supreme Court in Nilabati
Behra v. State of Orissa, AIR 1993 SC 1960. In that case the petitioner's
son died as a result of injuries inflicted on him while he was in police
custody. A letter sent by the petitioner to the Supreme Court was treated
as a petition under Article 32 of the Constitution. The Supreme Court
directed the State of Orissa to pay Rs. 1,50,000 as compensation to the
petitioner. In directing so J.S. Verma, J. observed: "Award of
compensation in a proceeding under Article 32 by this Court or by the
High Court under Article 226 of the Constitution 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, even
though it may be available as a defence in private law in an action based
on tort. This is a distinction between the two remedies." Verma, J.
further explained that the State's plea of sovereign immunity for tortuous 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 Articles 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights when the only practicable mode of enforcement of the fundamental rights can be the award of compensation. Concurring with Verma, J. Dr. A. S. Anand, J. in the same case observed: "The purpose of the 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 - This court and the High Court 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 32 of the Constitution of India are Page 8 of 12 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 citizens, notwithstanding the right of the citizen to the remedy by way of a 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." Dr. Anand, J. also observed: "There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his rights to life."
10. The case of Nilbati Behra (supra) was followed in D. K. Basu v. State of West Bengal, AIR 1997 SC 610 which lays down general principles relating to custodial death cases. The judgment in this case was delivered by Dr. Anand, J., who reviewed the earlier authorities. It was reiterated that the relief of compensation against the state based "on the principles of strict liability" under the public law is one to which the defence of sovereign immunity does not apply and that this relief is in addition to the traditional remedies and the compensation awarded in a given case is adjusted against any amount awarded to the claimant by way of damages in civil suit. It was also held that in the assessment of compensation under Article 32 or 226 "the emphasis has to be on the compensatory and not on the punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal court in which the offender is prosecuted, which the state in law is duty bound to do.
11. Although the cases of Nilbati Behra and D. K. Basu discussed above which laid the basis for the concept of public law wrong, related to violation of Article 21, the observations in them are general that violation of fundamental rights will be public law wrong redressable under Article 226 and 32. A three judge bench of the Supreme Court, however, in Hindustan Papers Corporation v. Ananta Bhattarcharjee Page 9 of 12 (2004) 6 SCC 213 has held that "the public law remedy for the purpose of grant of compensation can be resorted to only when the fundamental right of a citizen under Article 21 is violated and not otherwise". The court further said that "it is not every violation of the provisions of the constitution or a statute which would enable the court to direct grant of compensation."
12. Earlier also, in the case of Rudul Shah v. State of Bihar, AIR 1983 SC 1086 which arose on a petition under Article 32 of the Constitution complaining prolonged detention of the petitioner even after his acquittal, the Supreme Court directed the State to pay Rs. 30,000 as interim measure without precluding the petitioner from bringing a suit to recover further damages. The court while overruling the objection that the petitioner should be left entirely to the remedy of a suit and no damages or compensation should be allowed even as an interim measure observed: "The petitioner can be relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But where the court has already found, as in the present case, that the petitioner's prolonged detention in prison after his acquittal was wholly unjustified and illegal, there can be no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit." Similarly, in Bhim Singh v. State of J. & K., AIR 1986 SC 494, which was again a case under Article 32 of the Constitution, the Supreme Court directed the State of Jammu and Kashmir to pay Rs. 50,000 as compensation to the petitioner who was an M.L.A. and was illegally arrested and detained to prevent him from attending the assembly session.
13. A survey of the cases referred above goes to show that it is now well settled that the defence of sovereign immunity is not available when the State or its officers, acting in the course of employment, infringe a person's fundamental right of life and personal liberty as guaranteed by Page 10 of 12 Article 21 of the Constitution and the State can be directed in a writ jurisdiction under Articles 32 and 226 to repair the damage done to the victim by paying appropriate compensation. In the case at hand, as mentioned above, Bappon Roy was aged about 32 years and was newly married. He was arrested on 11.6.2013 for a minor offence under Section 498A of the Indian Penal Code by the police of Police Station Lakhipur whereafter he was sent to Jail on 12.6.2013 and in Jail he died an unnatural death between 12.6.2013 and 13.6.2013. We, therefore, considering these facts, direct the State Government to pay his complainant father Badal Roy compensation of Rs. 5,00,000/- (Rupees Five lac) within 2(two) months from today. We have awarded this amount as compensation feeling that the amount is just and proper. While doing so, as held by the Supreme Court in the case of D. K. Basu (Supra), we have not taken into account the punitive element as the objective is to apply balm to the wounds of victim's father and not to punish the transgressor. We, however, make it clear that if the father Badal Roy feels dissatisfied with the amount awarded, he will be at liberty to resort to traditional remedies and the compensation awarded in the present case will be adjusted against any amount awarded to him by way of damages in civil suit.
14. In order to unravel the truth regarding unnatural mysterious death of Bappon Roy in jail and also to prevent similar victimisation of prisoners, we direct the District Judge, Cachar, Silchar to hold an enquiry into the matter and submit a report within 3 (months) to the Registrar General for information. The District Judge, Cachar, Silchar shall also submit a copy of report to the Principal Secretary, Government of Assam, Home & Political Department, for information and taking appropriate action.
15. Before parting, we wish to acknowledge the assistance rendered by Shri TJ Mahanta as he put all the relevant considerations before us. We also acknowledge the valuable assistance received from the Page 11 of 12 discussion on the topic of Public Law Wrongs in the Law of Torts (25th Edition) edited by Justice G. P. Singh.
16. In the result, with our directions made in paragraphs 13 and 14 of the order, the petition is finally disposed of. No order as to costs.
JUDGE CHIEF JUSTICE
skd
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