Kerala High Court
Unknown vs By Senior Government Pleader Sri.P. ... on 31 July, 2018
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 31ST DAY OF JULY 2018 / 9TH SRAVANA, 1940
WP(C).No. 21305 of 2009
PETITIONER
THE GOVERNMENT OF KERALA, REP.
BY THE CHIEF SECRETARY,GOVERNMENT, SECRETARIAT,
THIRUVANANTHAPURAM.
BY SENIOR GOVERNMENT PLEADER SRI.P. NARAYANAN
RESPONDENTS
1. NATIONAL HUMAN RIGHTS COMMISSION,
REP.THROUGH ITS SECRETARY-GENERAL,, FARIDKOT HOUSE,
COPERNICUS MARG,, NEW DELHI-110001.
2. THE SUPERINTENDENT OF SUB JAIL,
KOTTARAKKARA, KOLLAM DISTRICT,KERALA.
R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 31-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 21305 of 2009
APPENDIX
PETITIONER'S EXHIBITS
EXHIBIT-P1- TRUE COPY OF THE POSTMORTEM CERTIFICATE ISSUED BY THE POLICE
SURGEON, DEPARTMENT OF FORENSIC MEDICINES, MEDICAL COLLEGE,
THIRUVANANTHAPURAM.
EXHIBIT-P2-TRUE COPY OF THE CERTIFICATE OF CHEMICAL ANALYSIS
EXHIBIT-P3-TRUE COPY OF THE MAGISTERIAL ENQUIRY REPORT
EXHIBIT-P4-TRUE COPY OF THE SHOW CAUSE NOTICE
EXHIBIT-P5-TRUE COPY OF THE LETTER SENT BY DGP (PRISONS) TO
ADDITIONAL CHIEF SECRETARY.
EXHIBIT-P6-TRUE COPY OF THE LETTER SENT BY THE ADDITIONAL CHIEF SECRETARY
TO THE REGISTRAR, NATIONAL HUMAN RIGHTS COMMISSION, NEW DELHI.
EXHIBIT-P7-TRUE COPY OF THE NOTICE ISSUED BY THE REGISTRAR, NATIONAL HUMAN
RIGHTS COMMISSION TO CHIEF SECRETARY.
EXHIBIT-P8-TRUE COPY OF THE NOTICE ISSUED BY THE IST RESONDENT COMMISSION
EXHIBIT-P9-TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 1ST RESPONDENT
COMMISSION
EXHIBIT-P10-TRUE COPY OF THE PROCEEDINGS (ORDER) OF THE 1ST
RESPONDENT COMMISSION.
RESPONDENTS EXHIBITS
NIL
/TRUE COPY/
P.A. TO JUDGE
mks
04/08/2018
C.R.
DEVAN RAMACHANDRAN, J.
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WP(C) No.21305 of 2009
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Dated this the 31st day of July, 2018
JUDGMENT
The death of an under-trial prisoner invariab ly and inexorably will throw up serious questions on the role of the prison officials and the obligation of the State to answer charges of human rights violation, as also the consequential reparatory measures adopted by it.
2. This case calls focus into these issues on account of the intervention of the National Human Rights Commission, which took cognizance of the death of an under-trial lodged in one of the jails in Kerala. The immediate cause for this writ petition are certain orders issued by the National Human Rights Commission against the State of Kerala, reiterating the need for urgent compensatory relief to the next of kin and dependents of the deceased.
WP(C) No.21305 of 2009 2
3. The State of Kerala and its functionaries have filed this writ petition impugning Exhibits P4,P7,P8 & P9 proceedings of the National Human Rights Commission on the asserted grounds that the findings and recommendations therein are contrary to law and have been made without affording proper opportunity of being heard to them.
4. From a reading of the impugned orders, it becomes ineluctable that proceedings were initiated by the National Human Rights Commission [hereinafter the 'Commission' for ease] on the basis of a complaint regarding the death of an under-trial prisoner by name Sri.Joy in the Sub Jail Kottarakkara in Kollam. It is recorded in Ext.P9 that the magisterial enquiry did not find any foul play in the death of the prisoner and that the enquiry Magistrate has concluded that his death was on account of oedema of lungs and hemorrhage.
5. The learned Commission, however, noticed that the post mortem report has recorded thirty eight ante-mortem abrasions/ contusions on the body of the deceased, though, which are not WP(C) No.21305 of 2009 3 sufficient to cause death. It appears that the Commission, after considering all these materials, indited a proceedings, dated 30.05.2008, which has been placed in record on Ext.P5, entering a prima facie suspicion that the deceased was subjected to torture in custody.
6. It transpires that a notice under Section 18(a)(i) of the Protection of Human Rights Act [for brevity, the Act] was thereupon ordered to be issued to the Chief Secretary of the Government of Kerala, but since there was no response to it, the Commission again by Ext.P7 notice, recommended to the Government of Kerala that a compensation of Rs.1,50,000/- be paid to the next kin of the deceased and the Chief Secretary was further directed to submit the compliance report, along with proof of payment, within six weeks thereafter.
7. The Commission thereafter has recorded that no compliance report was filed by the Chief Secretary of the Government of Kerala but that a response dated 16.09.2008, a copy of which is on record as Ext.P6, was offered by the said WP(C) No.21305 of 2009 4 Officer to the Commission, which was received by it only on 24.09.2008, being much after the Commission had recommended payment of compensation as afore.
8. The Commission, therefore, found that the resistance of grant of compensation by the Government of Kerala is untenable, particularly because a charge sheet under Section 304 IPC had been concededly filed against the Jail Wardens, which, at least prima facie indicate, that even the Government of Kerala harboured some suspicion about the violation of human rights of the deceased prisoner.
9. In the afore circumstances, the learned Commission again directed the Government of Kerala, through Ext.P9 order, to submit a compliance report along with the proof of payment within six weeks, failing which, it is clearly mentioned therein that the personal appearance of the Chief Secretary may be ordered.
10. On an examination of Ext.P9 order it is clear that the learned Commission has entered into a prima facie conclusion WP(C) No.21305 of 2009 5 regarding the chance of the prisoner having been subjected to torture but had recommended the payment of compensation, not because the factum of torture had been established beyond proof, but because it was virtually conceded that the prisoner died while he was in custody as an under-trial detenue. The Commission also took note of the fact that six Jail Wardens, who are in charge of the prison at the relevant time, had been proceeded against under Section 304 IPC and that a charge sheet had been preferred against them. Obviously, it was being cognizant of all these inputs that the Commission entered a recommendation for an amount of Rs.1,50,000/- be paid by the Government, by way of compensation, to the kith and kin of the deceased.
11. From a reading of Ext.P9, it becomes apparent that the intention of the Commission, in asking the Government of Kerala to make payment of the afore amount as compensation, was not because the factum of torture has been conclusively proved but because the prisoner had concededly died while in custody. Add WP(C) No.21305 of 2009 6 to this, the fact that six Jail Wardens are being proceeded against was also enough for the Commission to be persuaded to the view that the State was obligated to pay the said amount as compensation for the simiplicitor fact that the prisoner died while in custody.
12. Viewed from that perspective, I fail to understand why the Government of Kerala should be concerned about the orders impugned therein, since what has been done by the Commission is only to recommend an amount as compensation for the singular reason that the prisoner died while in custody, taking note of the established principles of law that while a prisoner, especially an under-trial, is in custody, the State and its competent agencies are in charge of his life and hence his death would obviously make it incumbent upon the State to compensate his kith and kin, notwithstanding whether the death was caused on account of any confutative or illegal action.
13. The learned Government Pleader, appearing on behalf of the petitioners, submits the State has been impelled to file this WP(C) No.21305 of 2009 7 writ petition because the learned Commission has directed it to pay the compensation merely on the basis of a prima facie finding that the prisoner has been subjected to torture. The learned Government Pleader asserts that nothing on record would show that there was any such torture and according to him, in the face of the magisterial enquiry, which found no evidence of such torture, the findings of the learned Commission, entered in the orders impugned herein, are completely impermissible and improper. He further says that there is a jurisdictional error in the orders issued by the learned Commission, since proceedings have been initiated by it contrary to Section 36(2) of the Act, which makes it incumbent that any such action could have been taken only within a particular time frame as specified therein.
14. When I hear the learned Government Pleader as afore, it becomes apparent that the apprehension of the Government of Kerala is that the learned Commission has entered into a finding of torture of the prisoner, allegedly without hearing them and without affording them sufficient opportunity. However, as I have WP(C) No.21305 of 2009 8 already indicated above, the liability to pay compensation by the Government of Kerala does not arise merely if a prisoner had died after being subjected to torture; it can arise simplicitor on the fact that he had died in custody even without any culpability being fastened on a concerned Officer.
15. That being said, however, in this case six Jail Wardens had been concededly proceeded against under Section 304 IPC and charge sheets have been filed. Therefore, I cannot find fault with in the Commission in having entered into a prima facie finding, based on the material on record, to indicate chances of fault in the system. I notice that even the Commission has not entered to a final view in this matter but that it has made the recommendation only on a prima facie view.
16. In the conspectus of the above, it becomes obvious that the stage is still not mature for this Court to intervene in the proceedings. The learned Commission is still seized off the matter and through Ext.P19, it has only required the Government of Kerala to either file a compliance report or to face further WP(C) No.21305 of 2009 9 proceedings as per the provisions of the Act.
17. Evidently, therefore, if the Government of Kerala decides not to file a compliance report, the learned Commission may pursue further proceedings, including by seeking the appearance of the Chief Secretary before it, personally or through counsel, or to obtain explanation as to why such compliance report has not been filed. This is the scheme which is sanctioned under the Act for pursuing the processes initiated under it and, I, therefore, find no reason to interdict or intervene at this stage, when the learned Commission is still to take a final call on the issues.
18. In the result, I dispose of this writ petition without entering into the merits of any of the orders that are impugned herein but directing the petitioners to approach the Commission with appropriate and apposite objections/petitions in response to its orders and to explain before it why no further action be taken.
I make it clear that the petitioners herein will be entitled to raise all contentions, including the contention in law under WP(C) No.21305 of 2009 10 Section 36(2) of the Act as aforementioned, and to appropriately answer the directions of the Commission ordering payment of compensation and establish before it why such an order is not tenable in law. It is only after the learned Commission completes the proceedings as per law, will the petitioners obtain the locus to challenge its final orders and recommendations and as I have said above, the time is not still right for them to approach this Court in this manner.
This writ petition is thus ordered.
Sd/-
DEVAN RAMACHANDRAN, JUDGE.
//True Copy// P.A. To Judge sp/01/08/18