Calcutta High Court (Appellete Side)
6.09.17 vs Ml-80 The State Of West Bengal & Ors on 6 September, 2017
Author: Debangsu Basak
Bench: Debangsu Basak
1
W.P. No.16457 (W) of 2015
Reba Bibi
06.09.17v.
ML-80 The State of West Bengal & Ors.
Ct-13
(S.R.) Mr. Ashimes Goswami
Ms. Priyanka Dutta
Ms. Paulomi Banerjee ... for the petitioner.
Mr. Ashim Kr. Ganguly
Mr. Gobinda Bandopadhya
Mrs. Shukla Das Chandra ... for the State.
The prayers in the writ petition at the final hearing stage is limited to a claim for compensation for custodial death.
Relying upon (1993) 2 SCC 746 (Nilabati Behera (Smt) Alias Lalita Behera v. State of Orissa & Ors.) learned advocate for the petitioner submits that, since the death of the accused, who was the husband of the petitioner had occurred in the custody of the police, the State ought to grant compensation for such custodial death keeping aside the fact that the death may have occurred by self destruction or otherwise. He submits that, the issue of the cause of death is pending in an appropriate criminal proceeding, the Writ Court need not enter into that arena. However, since death of the accused had occurred in the 2 custody of the police, he submits that, appropriate compensation should be granted. On the question as to the quantum of compensation, he submits that, the writ petitioner is the widow of the accused. The accused has left behind two children apart from the petitioner. These factors need be taken into consideration by the Court while deciding the quantum of compensation to be paid for the custodial death.
Learned advocate for the State refers to the affidavit-in-opposition and submits that, the accused was taken into custody on February 15, 2015. He draws the attention of the Court to the various paragraphs of the affidavit-in-opposition and submits that, the affidavit-in- opposition gives detailed narration of the incidents happening after the accused was taken into custody. He submits that, the accused was found at the toilet of the male lockup in a partially hanging position. He refers to (2009) 11 SCC 376 (Dalbir Singh v. State of Uttar Pradesh & Ors.) and submits that, since the criminal proceeding with regard to the death of the accused is pending consideration, the Court should not consider the prayer for compensation at this stage by way of a writ petition. 3
I have considered the rival contentions of the parties and the materials made available on record.
As noted above, the claim in the writ petition is limited to compensation for custodial death. The affidavit-in-opposition establishes that, the accused was taken into custody on February 15, 2014. The death occurred at the time when the accused was admittedly in the custody of the police on such date. The explanation and justification of the cause of death are issues, which are to be considered in the appropriate criminal proceeding. The fact that one of the police officers has been proceeded against also will not denude the right of the petitioner to receive compensation for custodial death of her husband.
Nilabati Behera (supra) is of the view that, in the event, the State violating any fundamental right of a citizen, the Court can direct the State to pay compensation to the victim or his heir by way of money. It goes on to say that where custodial death is established, the Court should take into consideration the age of the deceased and the monthly income of the deceased and direct suitable compensation to be paid by 4 the State. This compensation would be besides the right of the petitioner to claim compensation in other proceedings where the quantum of compensation that may be awarded can be looked at.
Dalbir Singh (supra) is a case where the Supreme Court in the facts finds that, the question whether the accused was in custody or not at the material point of time of the death was an issue, which was required to be looked at and which was being looked at in a pending criminal proceeding. Since such fact was yet to be conclusively astonished, their Lordships had refused to grant any compensation for the death. In the facts of the present case, the custody of the accused at the time of death is established. In fact, the death is claimed to have occurred on February 15, 2014 at about 19.40 hrs. while the accused was taken into custody on 15.15 hrs. on February 15, 2014. The averments in the affidavit-in- opposition does not demonstrate that, the accused had gone out of the concerned police station at any point of time. In fact, it is the case in the affidavit-in-opposition that, after the accused was taken into custody and brought to the police station, he was processed under the 5 appropriate law, offered a bail, which he was not in a position to accept and then put into the male lockup. It is in the latrine of the male lockup of the concerned police station that the petitioner was found to be "partially hanging".
The custody of the accused at the point of time of the death of such accused being established, the question now comes up is the quantum of compensation to be payable. There is nothing placed on record to suggest the monthly income of the accused at the material point. The age of the accused appearing from the post-mortem report is 18 years. It is claimed that, the accused was an agricultural labourer. A citizen of India is guaranteed 100 days of work at a government fixed daily rate. Taking such rate to be Rs.150/- and assuming that the petitioner as an agricultural labourer and daily wage earner would have obtained 200 days of work, the yearly income of the accused would have been Rs.30,000/-. Considering that, the accused has left behind the petitioner as the widow and two children, it would be appropriate to direct the State to pay a compensation of Rs.3,00,000/- to the petitioner within a period of six weeks from date. This 6 order will not prevent the petitioner or any other heir or legal representative of the accused to claim further compensation, in accordance with law before the appropriate forum.
W.P. No.16457 (W) of 2015 is disposed of.
There shall be 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.)