Jammu & Kashmir High Court - Srinagar Bench
State Of Jammu And Kashmir Through vs Sajad Ahmad Dar S/O Ghulam Nabi Dar R/O on 30 July, 2015
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPAHC No. 36 of 2015 CMP No. 337 of 2014 State of Jammu and Kashmir through Principal Secretary to Government ( Home Department), J&K Government, Civil Secretariat, Srinagar/Jammu. District Magistrate, Baramulla. Superintendent of Police, Sopore. Superintendent, District Jail, Kupwara. Petitioners Sajad Ahmad Dar S/O Ghulam Nabi Dar R/O Sangrampora, Sopore District Baramulla Through Ghulam Nabi Dar (father). Respondents !Asif Ahmad Bhat, AAG., Advocate ^Mr. M. A. Qayoom, Advocate Honble Mr. Justice N. Paul Vasanthakumar, Chief Justice Honble Mr. Justice Hasnain Massodi, Judge Date: 30/07/2015 : J U D G M E N T :
N. Paul Vasanthakumar, CJ
1. This appeal is fied by the appellants against the order dated 03.12.2014 made in HCP No. 23/2012, granting a sum of Rs. 5 lacs as compensation to the father of the deceased detenue, noting the negligence on the part of the Jail authorities in giving the timely treatment to the detenue, to be paid by the State. The father of the detenue has challenged the detention order passed under the Jammu and Kashmir Public Safety Act, 1978 and during the pendency of the HCP the detenue died on 22.03.2012 at 12.30 PM due to Cardio Pulmonary Arrest.
2. The case projected by the respondent before the learned Single Judge was as follows:-
The respondents son, namely, Sajad Ahmad Dar, was arrested in the year 1996 and was later detained under the Public Safety Act. However, he was released in the year 1998. Again the 2nd appellant passed the detention order on 20.01.2012 whereby the son of the respondent was ordered to be lodged in District Jail Kupwara. The said detention order was challenged by the deceased detenue through his father by raising various grounds and respondent prayed set the detenue at liberty forthwith and also to pay compensation of Rs. 20 lacs to the detenue for his illegal and unconstitutional detention. The said HCP was filed on 11.02.2012.
3. During the pendency of the said HCP the detenue, namely. Sajad Ahmad Dar, died on 22.03.2012 at 122.30 PM due to Cardio Pulmonary Arrest, while in detention. Therefore the issue with regard to the payment of compensation only was argued at the time of hearing of the HCP by contending that the detenue was arrested by Sopore Police on 22.12.2011 in connection with FIR no. 331/2011 under Sections 420,467 RPC and 10 ULA, alleging that the detenue played a significant role in creating an atmosphere of fear and terror and contributed largely to subvert the peaceful situation and order under the Public Safety Act was passed in Order No. 53/DMB/PSA/2011 dated 20.01.2012. The detention order was approved by the Government on 23.01.2012 which was executed on 24.01.2012 and the detenue was lodged in District Jail Kupwara on 24.01.2012. The as per the Medical Certificate issued by the concerned police authorities the detenue was fit at the time of his lodgment. On 20.03.2012, as per the advise of the Medical Officer the detenue was sent to Sub District Hospital (SDH) Kupwara for ophthalmic check up. Again he was medically checked by Dr. Mukhter of SDH Kupwara in Jail on 21.03.2012 and treatment was prescribed by the visiting doctor. On the intervening night of 21st/22nd March, 2012 at 4 A.M the detenue was sent to SDH Kupwara for treatment wherefrom he was referred to SKIMS for future course of treatment under police escort. The Pharmacist of District Jail Kupwara accompanied the detenue who was admitted in SKIMS from 10.30 AM to 12.30 PM when he breathed his last. The said version is stated by the District Magistrate Baramulla in his status report submitted in terms of directions issued by this Court on 03.04.2012.
4. After the demise of the detenue a Magisterial inquiry was ordered by the Distrioct Magistrate Baramulla into the death of the detenue on 22.03.2012 and the inquiry was initiated on 24.03.2012. In the Magisterial inquiry it was found that the medical staff posted in District Jail Kupwara conducted medical check-ups of the deceased from time to time have not advised in writing the Jail authorities for proper check-up and hospitalization of the deceased at the required time which transpires the negligence of the medical staff. The verbal advise given by the medical staff to the Jail authorities were not cared and therefore there is negligence on the part of the Jail authorities. The Jail authorities have handed over the medical section to a non-technical person (Nursing Orderly) having no knowledge about the medicines and prescriptions thereof which shows the irresponsibility of the Jail authorities. At about 4 A.M the Jail authorities flashed a message to the District Police Lines (DPL) through police telecommunication which was passed on by the telecommunication personals to the DPL at 7 A.M which shows the negligence of the persons on duty. The DPL confirmed the reception of telephonic information at 5.45 AM but dispatched the escort at 6.30 AM. The Jail authorities having knowledge at 9.00 P.M on 21.03.2012 regarding the condition of the deceased waited for the whole night and at 4 AM on 22.03.2012preferred escort instead of survival of the human life. The inmates of the Jail are not provided proper medical treatment/check- up whenever required in the absence of regular Doctor/trained para- medical staff and ultimately it is opined that if the Jail authorities have taken the matter seriously and shifted the deceased to the hospital well in time a precious life could have been saved. The enquiry report was forwarded by the Inquiry Officer to the District Magistrate which was ultimately submitted to the Chief Secretary who in turn directed the Director General of Prisons to take appropriate action. The Director General of Prisons by order dated 02.08.2012, after conducting enquiry, initiated action against the Assistant Superintendent (who was in-charge District Jail Kupwara), holding that there was certain amount of carelessness, non-seriousness and lapse on his part which deserves a major penalty and punishment of withholding his annual increment and promotion for one year was imposed.
5. The learned Single Judge considered the said report of the Magisterial inquiry as well as the action taken against the Assistant Superintendent District Jail Kupwara by the Director General of Prisons and having noticed the undisputed facts, namely, that the detenue died during detention due to carelessness, non-seriousness and negligence in not extending the medical treatment, held that the father of the deceased detenue is entitled to compensation and calculated an amount of Rs. 5 lacs to be awarded to the father of the deceased and after payment the appellant/State was granted liberty to recover the same from the wrong doers who have exhibited negligence while handling the position of the detenue as pointed out by the inquiry officer.
6. This order is challenged by the State and its authorities by contending that the detenue having suffered with several ailments prior to his detention and having been examined by the Medical team before being admitted to Jail and he having been sent for treatment to SDH Kupwara from where he was referred to SKIMS for further treatment and the detenue having breathed his last in the reputed hospital due to Cardio Pulmonary Arrest, no negligence can be attributed against the Jail authorities and, therefore, the learned Single Judge was not right in ordering compensation to the father of the deceased detenue who died while in detention.
7. The learned counsel appearing for the respondent, namely, the father of the detenue has supported the findings given by the learned Single Judge and prayed for dismissing the appeal.
8. We have considered the rival submissions, facts pleaded, magisterial inquiry report, the order of the Director General of Prisons imposing punishment on the Jail Superintendent as well as the findings recorded by the learned Single Judge.
9. The facts, namely, arrest of the detenue, his detention in District Jail Kupwara under PSA and that on the date of his lodgment in jail his condition was normal and he died due to Cardio Pulmonary Arrest on 22.03.2012, are not in dispute. The District Magistrate ordered magisterial inquiry to find out the cause of death and any negligence on the part of the Jail authorities in not providing timely medical treatment. The Inquiry Officer opined that regular Doctor and trained Para-Medical staff is not being provided to give proper treatment/ check-ups to the inmates of the Jail. The Magisterial report is extracted below:-
Comments:
a. Notwithstanding the Medical Staff posted in the District Jail Kupwara conducted Medical Check- ups of the deceased from time to time have not advised in writing the Jail authorities for proper check-up and Hospitalization of the deceased at the required time, which transpires the negligence of the Medical Staff.
b. Although the Jail authorities were verbally advised by the Medical staff regarding the treatment of deceased but the Jail authorities have never cared of the same, which speaks negligence on the part of Jail Authorities. c. The Jail authorities has handed over the Medical Section to a non-technical person (Nursing Orderly) having no knowledge about the Medicines and the prescriptions thereof, which shows the irresponsibility of Jail authorities of their management.
d. The Jail authorities flashed the message to DPL through police telecommunication at 4.00 PM but the same was passed on by the telecommunication personals to DPL at 7.00 AM (delaying three hours) shows the negligence of persons on duty.
e. The DPL confirmed the reception of telephonic information at 5.45 AM, but, dispatched the escort at 6.30 AM delaying about 45 minutes which has added in delaying in the shifting of deceased to Hospital well in time.
f. The Jail authorities despite having knowledge at 9.00 PM on 21.3.2012 regarding the condition of the deceased, waited for the whole night and at 4.00 AM on 22.3.2012 preferred escort instead of survival of the Human life.
g. The inmates of the Jail in absence of a regular Doctor and trained Para-Medical Staff are not being provided proper Medical treatment/ check-
up whenever required.
Conclusion:
The deceased was physically unfit having some acute problems and needed special treatment was not provided sufficient treatment which led to his death.
The Jail authorities, even though they were advised by the concerned from time to time for hospitalization of the deceased prior to his death did not take sufficient measures for his treatment resulting his death.
That none among the Medical/Paramedical staff members was present on duty at the date of incident, which shows the negligence and carelessness of the jail authorities.
The postmortem report shows the cause of death due to Cordinguluminary Arrest along with fire Arm injury on right side of the Head, Epileptics with Asp Pneumonia. The later ones could have been avoided had the timely treatment being given to the deceased.
The Jail Authorities did not care for the life of the deceased and preferred escoprt that too very late at 4.30 AM ( 22.3.2012) even though they were aware about the condition of the deceased since 09.00 PM ( 21.3.2012), they waited for the whole night and preferred escort in the morning and left the jail at about 7.00 AM in the morning on 22.3.2012 delaying about 10 (Ten) hours, if they would have taken the matter serious and shifted the deceased to hospital well in time a precious life could have been saved.
10. The said report, as extracted above, clearly gave a finding that, no qualified Medical Officer was available in the Jail and a non-technical person ( Nursing Orderly) was given the charge of the medical section by the Jail authorities. Even the advise given by the medical staff was not cared by the Jail authorities which was a negligent act. The Jail authorities had the knowledge regarding the health condition of the deceased-detenue at 9 PM on 21.03.2012 and only at 4 AM on 22.03.2012 the message was flashed to DPL and at 7 AM they took the detenue to the hospital, delaying about ten hours, which means that the Golden Period has not been taken care of by the Jail authorities which caused the death of the detenue. The said report of the Inquiry Officer/ Additional District Magistrate Kupwara was submitted on 02.04.2012 i.e. within a weeks time. The In-charge Superintendent was also proceeded departmentally and a finding was recoded about his negligence and he was also punished. In such circumstances the death of the detenue has taken place only due to the total negligence on the part of the Jail authorities.
11. The entitlement of compensation due to death of a detenue/prisoner is a serious matter and the same was considered by Honble the Supreme Court in the decision reported in (1997) 1 SCC 416 ( D. K. Basu v. State of West Bengal) and it was observed as under:-
45The courts have obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim civil action for damages is a long-drawn and a cumbersome judicial process. Monetary compensation for Redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family.
12. Honble the Supreme Court in the decisions reported in (1983) 4 SCC 141 (Rudal Sah v. State of Bihar), (1993) 2 SCC 746 (Nilabati Behra v. State of Orissa) and (2002) 2 SCC 465 ( Chairman Railway Board and ors v. Chandrima Das) held that notwithstanding right to remedies under civil suits or criminal proceedings, High Court can grant compensation in exercise of jurisdiction under Article 226 of Constitution under public law to victims who suffered infringement of their right to life and personal liberty guaranteed under the Constitution and existence of alternate remedy would not bar jurisdiction of the High Court under Article 226 of the Constitution of India.
13. The prison authority who is under the State is to act as parens patriae as the movement of the detenue was restrained. If there is any laxity on the part of the prison authorities in not providing timely treatment and the negligence is established and the detenue dies for that reason, the State is bound to give compensation to the family of the detenue who died while in custody/detention. The Honble Supreme Court in the decision reported in AIR 2015 SC 2062 ( Gaurav Kumar Bansal v. Union of India and ors) has held that the State is a protector of life and liberty of the citizens as parens patriae particularly when the citizens are not in a position to protect themselves.
14. The detenue, after passing 10+2 passed Diploma in Information Technology, was a young person who died in his young age. Thus the learned Single Judge was justified in ordering compensation of Rs. 5 lacs to the father of the detenue. The order was passed by the learned Single Judge on 03.12.2014. The said amount ordered is not paid due to the pendency of this appeal and this Court having found that there is no merit in the appeal, the appellants are bound to pay 9% interest from the date of order of the order of the learned Single Judge till the date of payment of compensation amount. The interest payable up to the date of payment shall be calculated along with Rs. 5 lacs ordered and paid to the father of the detenue within four weeks from the date of receipt of this order.
15. The appeal is dismissed with above directions. No costs.
(Hasnain Massodi) (N. Paul Vasanthakumar)
Judge Chief Justice
SRINAGAR
30.07.2015
Anil Raina, Secy