Karnataka High Court
Smt. Soubhagya vs The Chief Secretary, State Of Karnataka ... on 14 August, 2000
Equivalent citations: 2001CRILJ238, 2001 AIR - KANT. H. C. R. 36
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
ORDER V. Gopala Gowda, J.
1. This is a pathetic case of a young widow aged about 22 years has filed this writ petition seeking for issuance of a writ of mandamus directing the respondents to pay compensation of Rs. 5 lakhs together with interest at 18% p.a. from the date of custodial death of Sri Nanjunda the husband of the petitioner and further sought for direction to the State Govt. to give a suitable job to the petitioner for having lost her husband Sri Nanjunda in the custodial death case at her young age. Further the petitioner has sought for issuance of an appropriate direction to the first and second respondents to take appropriate action against the erred police personnel and officers who are responsible for causing custodial death of her husband late Nanjunda at Mahalakshmi Layout Police Station, Bangalore (hereinafter referred to Police Station in short) and further direct them to hold an enquiry against all the Police Personnel who have been arrayed as accused persons in the Criminal Case C.C. No. 16457/1998 before the Addl. CMM Court Bangalore by an independent agency and prosecute them, urging various facts and legal contentions.
2. The petitioner is a legally wedded wife of late Nanjunda. Out of their lawful wedlock, she got one male child who was aged 4 years at the time of filing this writ petition. It is stated that, the petitioner and her late husband were leading a happy marital life. Petitioner's late husband was working as a weaver in a Power Loom Factory at Bangalore, he was earning Rs. 1,500/- to Rs. 2,000/- p.m. and was maintaining his family including his aged mother Smt. Gangamma and his father Sri N. Rudrappa.
3. It is alleged by the petitioner that, on 13-2-1993 at about 8 p.m., the 5th respondent Sri Gopal, Sub-Inspector of Police (Crime), G.R. Hanumaiah, Head Constable (Metal No. 2050) and Sri P. Ravikumar S/o Sri Purushotham, of the above said police station came to the house of the petitioner and forcibly took the husband of the petitioner Sri Nanjunda to the Police Station without assigning any reason whatsoever and kept him under illegal custody without registering a case against him. It is her further case that the petitioner was visiting the Police Station every day eversince from the date of her late husband was illegally arrested and she has been making repeated requests to the concerned Police Personnel of the Police Station to release her husband from illegal custody. The Police personnel by one way or the other were demanding money from her for his release without registering a case and he was subjected to torture by using third degree methods and caused external injuries on his vital parts and kept him in the police custody without producing him before the Court.
4. It is the case of the petitioner that, she has been regularly visiting Police Station everyday for giving breakfast and food. On every visit, whenever she visited the Police Station for supplying food to her late husband, the police personnel used to collect Rs. 20 to 50 from her to enable her to provide food to her husband. It is alleged that on account of atrocities and torture, late Nanjunda was miserably suffering from pain and shock due to internal and external injuries caused in the Police Station by the Police Personnel by name :
1) K. B. Bettegowda, Circle Inspector of Police,
2) Gopal, Sub-Inspector of Police (Crime),
3) G.R. Hanumaiah, Head Constable (Metal No. 2050),
4) Narasimhaiah, Police Constable (PC 4205),
5) P. Ravikumar, S/o Purushotham (PC 6082),
6) Maregowda, Police Constable (PC 2602),
7) Srinath, Police Constable (PC 6671).
5. It is the further grievance of the petitioner that, she has submitted a complaint to the Asst. Commissioner of Police, Malleswaram Division, Bangalore against the abovesaid Police personnel narrating the illegal detention and the torture meted out by her husband in the hands of the Police Personnel of the abovesaid Police Station. The said Asst. Commissioner of Police instead of taking action against the said police personnel has allowed them to cause further grevious injuries upon the body of her late husband who consequently died in the 'Lock-up' in the Police Station on 22/23-3-1993 night due to grevious injuries caused by the police personnel.
6. It is further alleged by the petitioner that whenever she visited the Police Station to see her late husband who was in the illegal custody, Police Constables of the Police Station i.e. G. R. Hanumaiah, Narasimhaiah, P. Ravikumar, Maregowda and Srinath have made several attempts to cause sexual assault on her by making her to believe that her husband Nanjunda will be released, if she fulfils their desire and also demanded money for the release of her husband. Under the pretext of release, Narasimhaiah has taken Rs. 2,500/- from the petitioner which amount was borrowed by her from her neighbours.
7. The further case of the petitioner is that, on 22-3-1993 at about 4.30 p.m. when she met her husband Nanjunda in the first floor of the Police Station where Nanjunda showed her the injuries caused on his body by the Police in the Police station, further he was not in a position to walk or to take food as he was severally tortured by the Police applying third degree method. 11 is the case of the petitioner that, on account of grevious injuries caused by the said police to her husband, he died in the Police custody itself, and thereafter they have created a false document by making false entries in the said Police Station at the instance of K. B. Bettegowda, Circle Inspector of Police and Gopal the Sub-Inspector of Police (Crime), the 4th and 5th respondents herein to the effect that the deceased Nanjunda and one Kumar were arrested on 22-3-1993 in Crime No. 43 of 1993 and they were kept in the lock-up in the Police Station and on 22/23-3-1993 said Nanjunda committed suicide by hanging himself in the lock-up where he was lodged along with one Kumar and thereafter they registered a case against the Dead person Sri Nanjunda in Cr. No. 120 of 1993 under Section 309 of IPC by Achutha Rao, HC No. 227 and filed the FIR in the Court of VII Addl. CMM, Bangalore City as per Annexure-A.
8. It is further alleged by the petitioner that, though her husband died in the lockup of the Police Station on the date referred to above on account of Police torture, the Police personnel with a deliberate and mala fide intention to protect themselves from Criminal Prosecution have created false documents by making false entries in the police records to destroy the evidence of the custodial death case and further they have committed various offences punishable under the provisions of IPC with a common intention to escape from their criminal liability of prosecution. Hence, the erred police personnel are liable to be prosecuted for the various offences committed by them, in the custodial death case and are liable to pay compensation to the petitioner and her minor son. The petitioner claims that her husband Nanjunda died in the Police custody due to atrocities and grievous injuries caused by the police personnel of the Police Station from 13-2-1993 till his last breath in the police custody for which the State is liable to answer for each and every illegal act committed by its servants and as such the State is responsible for the untimely death of the petitioner's husband late Nanjunda in the abovesaid Police Station, when he was in their custody and therefore it is contended that they are liable to pay compensation as claimed by the petitioner.
9. It is stated that, the custodial death of the petitioner's husband has been widely published in all the daily newspapers 'E' Sanje' dated 25-3-1993, Kannada Prabha dated 26-3-1993, Prajavani dated 27-3-1992, E Sanje dated 28-3-1993, Prajavani dated 30-3-1993, E Sanje dated 30-3-1993, Prajvani dated 1-4-1993 and Kannada Prabha dated 3-9-1993 vide Annexure B to L bringing to the notice of the public at large and the State about the ghastly incident that had occurred in the abovesaid police station on account of high-handed and illegal acts of police personnel of the Police Station.
10. After the death of her husband, petitioner filed a private complaint in PCR No. 461/93 in the Court of 8th Addl. CMM, Bangalore against the Police personnel requesting the Court to take cognizance of the offences committed by the police personnel wherein the said Court vide its order dated 24-4-1993 referred the case to the COD for investigation. The order is produced at Annexure-M. In the said case, the Police Constables of the said Police Station vide K. S. Eshwarappa Police Constable (PC 4631) and R. A. Shantharajaiah (PC 5983) have filed their application and affidavits dated 5-4-1993 in Cr. No. 120 of 1993 in the Court of VII Addl. CMM, Bangalore City stating as follows :
On 22/23-3-1993 at about 2.45 a.m. when they went to answer the call of nature one of the prisoner was found hanging with bedsheet piece on the iron rod of the lock-up door.
The said affidavits dated 5-4-1993 along with application filed in Cr. No. 120 of 1993 in the Court of the VII Addl. CMM, Bangalore City are produced in the petition vide Annexures N and O.
11. The petitioner has filed this writ petition seeking for grant of compensation by the State and the police personnel who are responsible for the custodial death of her husband. She has stated that, on account of illegal action of the police personnel, she had not only lost her husband but herself and her young son were deprived of their livelihood. Both of them were completely depending upon the earning of late Nanjunda. Therefore, their fundamental rights guaranteed to them under Articles 14, 19 and 21 of the Constitution of India are infringed and therefore they urge this Court for grant of reliefs as prayed for in this petition.
12. The learned counsel for the petitioner has placed reliance upon the various judgments of apex Court, Delhi High Court, Bombay High Court and this Court in support of the case of the petitioner for grant of compensation amounting to Rs. 5 lakhs as the State and its officers are not entitled for sovereign immunity under the Constitution of India for their illegal actions. The petitioner's counsel Mr. Mahadevaiah has placed reliance on the following judgments :
1. 2000 Crl LJ 1809 (SC) in the case of Ajab Singh v. State of Uttar Pradesh (Paragraphs 8 and 9)
2. AIR 1997 SC 1538.
3. (1995) 1 Scale 77.
4. 2000 Acc CJ 109 (Delhi) Paragraphs 5 and 6
5. , D. K. Basu v. State of West Bengal
6. AIR 1999 SC 1522.
7. ILR 1995 Kant 2424.
8. 1993 Acc CJ 393 (Delhi).
9. .
10. 1989 Acc CJ 655 (Madras).
The reliance is placed upon the abovesaid judgments by the learned counsel on behalf of the petitioner for the proposition that, if a person dies in the police custody, the State and the Police personnel are not entitled to seek sovereign immunity for payment of damages by way of compensation, further the dependents of such deceased person are entitled to claim the compensation from the State and the persons who are responsible for making such person to die during their custody.
13. In this case, on 2-8-1995 Rule Nisi was issued and the Government Pleader was directed to take notice on behalf of respondents. From 22-8-1995, on various hearing dates the case has been adjourned at the request of the GP for filing statement of counter. An application I.A.I. is filed by the 4th respondent seeking for vacating the interim order dated 20-9-1995 passed by this Court and further sought for issuing a direction to the II Addl. CMM Court, Bangalore not to proceed further with the enquiry in the case registered against them pursuant to PCR No. 461/93 where the COD had conducted an investigation and filed charge sheet against concerned police personnel. This Court, on 20-9-1995 passed an interim order which reads as under :
The petitioner is the wife of Late Sri Nanjunda, who is said to have died while he was in custody of the Mahalakshmi Layout Police Station in the intervening night of 22/23-3-1995. According to the petitioner, the death is due to grievous injuries caused by the police. The petitioner claims compensation of Rs. five lakhs. In the counter filed on behalf of the respondents, it was alleged that Late Sri Nanjunda committed suicide and the death was due to asphyxia, as a result of hanging. It was further stated that the investigation by the Corps of Detectives was stayed in a pending proceedings.
In view of the fact that the investigation by the Corps of Detectives cannot proceed, it is necessary that an enquiry should be held by a judicial officer. The Chief Metropolitan Magistrate, Bangalore, will appoint one of the Metropolitan Magistrates to conduct an enquiry into the causes leading to the death of Late Sri Nanjunda on the intervening night of 22/23-3-1995, while he was in custody of the Mahalakshmi Layout Police Station. The records shall be transmitted to the learned Chief Metropolitan Magistrate. The report of the enquiry will be submitted to this Court within three months from the date of receipt of the records. The report to be submitted will be without prejudice to the case of the prosecution.
Despatch the order and the records to the Chief Metropolitan Magistrate immediately.
In the light of the judgment of this Court dated 14-7-1995 in WP 11574 of 1989 (1995 Cri LJ 4148), the State may consider payment of interim compensation to the petitioner (widow of Late Nanjunda) and the minor child, without prejudice to the contents raised in this writ petition, as an interim measure.
Carbon copy to be furnished to both parties.
14. On 16-2-1996, while considering I.A.I., this Court passed an order referring to various facts and legal contentions urged on behalf of the parties wherein it was contended by the learned counsel for the 4th respondent that the defence of respondents 4 and 5 will be seriously affected with regard to the investigation is allowed to be conducted by the COD which aspect of the matter was brought to the notice of first respondent State and State Government passed an order on 2-2-1996 directing the payment of Rs. 25,000/- as compensation as has been granted in every case of custodial death. The relevant portion of the order dated 16-2-1996 reads thus :
In view of the submission made by the learned counsel for the petitioner and 4th respondent, till this application is finally heard after the objections are filed by the petitioner, the learned Magistrate is directed to stay the further proceedings. In view of the Government Order dated 2-2-1996 referred to above, the State is directed to pay a sum of Rs. 25,000/- as compensation to the petitioner in respect of the death of one Sri Nanjunda. The claim of the petitioner for higher compensation will be considered on the next date of hearing.
Call on 27-2-1996.
15. Further, on 27-2-1996, this Court passed an order having regard to the claim of the petitioner, the relevant portion of which reads thus :
Therefore, I am of the view that it is just and proper to direct the State Government to pay some reasonable compensation to the petitioner and her minor son.
So far as the quantum of compensation is concerned it cannot be disputed that late Nanjunda was a young man. This Court has also taken judicial notice of the fact that young man would normally earn not less than Rs. 40/- to Rs. 50/- per day even if he works as a labourer. The fact also remains that the petitioner and her minor son are deprived of the Company of late Nanjunda at an early age, in addition to the financial loss they have incurred on account of the death of said Nanjunda. Without prejudice to the rights of the petitioner to claim higher compensation at a later stage of proceedings or by instituting any other appropriate proceedings, I think it is just, proper and equitable to direct the State Government to pay another sum of Rs. 1,00,000/- in addition to Rs. 25,000/- already directed to be paid by means of order dated 16-2-1996. The State Government is directed to deposit the said sum of Rs. 1,00,000/- in a Fixed Deposit in a Nationalised Bank for a period of three years in the joint name of the petitioner and her minor son, and the FD Receipt to the handed over to the petitioner. The petitioner is restrained from withdrawing the said amount kept in deposit or taking loan on the said amount without the orders of this Court. The concerned Bank shall be intimated by the first respondent that without the orders of this Court, the petitioner is not entitled to withdraw the principal amount. However, the interest accruing to the said amount shall be paid to the petitioner as per the Banking practice by the Bank. The sum of Rs. 25,000/- directed to be paid by means of order dated 19-2-1996 passed by this Court shall be paid to the petitioner and for the said purpose, the State Government is directed to deposit the same before the Registrar General of this Court within three weeks from today. So far as the sum of Rupees 1,00,000/- directed to be deposited in Fixed Deposit is concerned, the said deposit shall be made as indicated above within eight weeks from today.
16. Further this Court in the said order observed that the said order is made purely as a interim measure. Further, this Court observed that it is open for the petitioner to move this Court for further consideration after the investigation of the case by the COD is concluded. This order was challenged by respondents 1 to 3 herein in the appeal which came to be dismissed by the Division Bench of this Court on 19-9-1998 holding that there is no merit.
17. This Court vide its order dated 28-3-2000, directed the VII Addl. CMM, Court Bangalore to produce the original papers pertaining to Crime No. 120/93 along with the Accident. Register of K.C. General Hospital which are said to have been produced in CC. No. 16457/98, for the reason that the learned AGA Mr. S. N. Aswathanarayana submitted that he was unable to get the certified copies of documents as directed by this Court on 22-3-2000. The case was listed on 3-4-2000 for producing the said documents. On 4-4-2000, the learned AGA produced the Accident Register of the Hospital and he was further directed to produce the file pertaining to Cr. No. 120/93. This direction has not been complied with by the learned AGA as per the noting made in the order sheet of this case dated 13-4-2000.
18. On 29-6-2000, the Government Pleader produced the file in Cr. No. 120/93 containing the xerox copies. The learned counsel for the petitioner was directed to go through the same and make submission. It is necessary for this Court to make a note with regard to two documents produced by the learned Addl. G.A. on 23-3-2000 namely the OPD Sheet No. 3985 of K.C. General Hospital against the Colmn. History it reads thus :
Found hanged himself in Police Station around 3 a.m. on 23-3-1993. Patient is gasping, only jaw movements cyanosed, pulse feeble. BP not recordable, cardia-muffled sound lungs: breath sound not audible. pupils-dilated, there is a ligature mark around the neck.
19. From the said documents it is noticed that, the deceased Nanjunda was taken to the Hospital on 23-3-1993 at 3.30 a.m. by Chikkaboraiah, ASI of Mahalakshmi Police Station and there is a further note in the case sheet that the patient was found hanging in the Police Station on 23-3-1993 at 3 a.m. with a Bed Sheet.
20. I have perused the FIR in respect of Crime No. 120/93 where a case has been registered against the Dead Person. The statements of some persons are recorded. One Kumar who was the other person arrested along with late Nanjunda has narrated the condition of late Nanjunda in the Police Station on 23-3-1993.
21. The statement of objections filed on 21-8-1995 by the learned Govt. Advocate on behalf of the respondents 1-3, have denied the various allegations made against them. It is stated in the counter statement that, the case registered against Nanjunda in Crime No. 120/93 punishable under Section 309, IPC alleging that he made an attempt to commit suicide, the said case was under investigation, the same could not yet concluded in view of the stay order granted by this Court in Crl. P. No. 1130/93 on 8-7-1993. It is further stated that deceased Nanjunda was arrested in Crime No. 43/93 punishable under Sections 457 and 380 IPC and was detained in the Police lock-up. It is alleged, while he was in the lock-up, he has attempted to commit suicide by hanging himself with the help of bed sheet at about 3 a.m. on the intervening night of 22/23-3-1993 while the Sentry Police Constable had been to attend the nature call. Immediately after seeing the act of the deceased, the Station House Officer, ASI Chikkaboraiah and the complainant D. Achhutha brought down the body and he was removed to K. C. General Hospital for treatment. It is further stated that, deceased Nanjunda was brought to the Police Station along with one Kumar on 22-3-1993 at 3 p.m. by HC 2050 and the Crime staff who took him to custody near arrack shop in JC Nagar at about 2 p.m. The PSI Gopal (Crime) arrested the accused and interrogated in Criminal Case No. 43/93 punishable under Sections 457 and 380, IPC wherein the said Nanjunda was suspected, some of the stolen properties were recovered by the said police at the instance of the deceased-Nanjunda on the same day and was detained in Police lock-up. It is further stated that, on the complaint given by the petitioner, ACP, Malleswaram has also investigated the case and further stated that as per the PM report, there are no indications of violence on the body of the deceased except ligature mark over the front and side of the neck and the Medical Officer who has conducted PM of the dead body of late Nanjunda has clearly opined that his death was due to asphyxia as a result of hanging. It is further stated that, the allegations of the petitioner are yet to be investigated by the COD and in the absence of the report, it is not possible for this Court either to agree with the contentions of the petitioner, or to award compensation to the petitioner as claimed.
22. It is stated at paragraph 5 of the counter statement that, the contention of the petitioner that death of deceased Nanjunda was due to torture in the lock up was denied by them. However, it is contended by them stating that the First Information Report and the Medical Officer's report would clearly show that deceased Nanjunda died by committing suicide in the police lockup and he died due to asphyxia as a result of hanging. COD has not yet completed the investigation and filed chargesheet. Therefore, it is not proper and fair for this Court to come to the conclusion that cause of death of Nanjunda was on account of torture by the Police personnel using third degree methods as alleged by the petitioner and in the absence of investigation report. Therefore, the respondents 1 to 3 contend that, the petitioner is not entitled for any compensation much less the amount claimed by her and thereby they have prayed for dismissal of the writ petition.
23. After considering the pleadings of the petitioner and the respondents and hearing the rival contentions appearing on behalf of the parties at length, this Court has proceeded to answer the rival contentions of the parties after considering relevant documents produced in this case assigning the following reasons. I have perused the PM Report and FIR filed by the Police in Crime No. 120/93 the abovereferred police registered a case under Section 309, IPC against a dead person on the alleged ground that he has attempted to commit suicide. Except, registering FIR, the said Police have not made further investigation in the matter. Neither the respondents 1-3 nor the respondents 4 and 5 have given proper explanation in the counter statement filed on behalf of respondents 1 to 3 stating, as to what happened to the criminal case registered against dead person regarding alleged attempt to commit suicide by the deceased Nanjunda. On the basis of a private complaint of the petitioner, the learned Jurisdictional Additional Metropolitan Magistrate has referred the matter for investigation to COD under Section 156(3) of Cr. P.C. The State Government in exercise of its power under Section 197 of Cr.P.C. read with Section 170 of the Karnataka Police Act has granted permission on 25-3-1998 to prosecute 9 police personnel including respondents 4 and 5 who have been arrayed as the accused persons for the various alleged offences said to have been committed by them under Section 348 read with Sections, 109, 465, 114, 348, 465, 193 and various other offences against different accused persons as shown in the charge sheet. This case has been registered before the Addl. CMM in CC No. 16457/98, no progress could be made in the case for the reason that one or the other accused have come up before this Court seeking for quashing the charge sheet on various grounds. The fact remains that, the Criminal case registered against 9 accused police personnel is still pending for trial.
24. As already stated that this is a pathetic case where the petitioner, being helpless young lady has been made to run from pillar to post crying for justice with regard to the inhuman behaviour of the concerned police personnel with her deceased husband against whom she has elaborately stated in her statement recorded by the Investigating Officer of C.O.D., as to how her deceased husband was treated by the police personnel in the custody of the Police Station. I have read 18 pages statement recorded by the Dy. Superintendent of COD. She has vividly narrated in her statement as to how her husband was illegally, unlawfully arrested and detained in the police custody and how he was inhumanly treated by the Police personnel. No doubt the said statement remained as mere allegations for the reasons that the Criminal case is at the trial stage. The undisputed fact is that her husband died during the custody of police of Mahalakshmi Layout Police Station. The Professor and Head of the Department of Forensic Medicine, Victoria Hospital, Bangalore, who had conducted post-mortem of deceased Nanjunda has given a report with regard to various conditions of the dead body of the petitioners husband. The opinion of the Doctor who was conducted PM of the dead body reads thus :
I am of the opinion that death was due to Asphyxia as a result of Hanging.
25. From the said PM report, it is not clear whether the lips of the deceased person were opened or not, any fracture of hyoid bone was there or not, was there any content or protruding tongue, patency of trachea is not mentioned, what was the condition of main bronchus, right and left bronchus, was there any compression in the region medulla oblganta and whether alvoli was collapsed or patent (normal). Further in respect of ligature mark, composition of ligature, width and multiplicity of ligature found in the body which was alleged to have been tied at the time of alleged committal of suicide by the deceased, the weight of the body suspended and the degree of suspension, the tightness of encircling ligature, the length of time, the body was suspended, position of the knot and slipping of ligature marks during suspension are not forthcoming. These vital aspects have not been mentioned in the post-mortem report by the doctor which are required to be mentioned as per the book written by Dr. K.S. Narayana Reddy titled as "Essentials of Forensic Medicine and Toxicology" (15th Edn), therefore it creates the doubt regarding the correctness of the PM report in the mind of this Court. However, this Court proceeds to examine the case on the basis of the documents made available to it and records its findings on rival contentions of the parties and assigns its reasons in support of its conclusions.
26. It is alleged by the petitioner in her 18 pages statement recorded by the I.O. of COD, wherein she has stated that, dead body of her husband was not given to her eventhough she had requested to the police. It is further alleged that the police did not allow her to bury the dead body of her husband as per the prevailing custom of their religion, which has been practised by them. The concerned police personnel at Harishchandra Ghat Cremetorium have allowed to the dead body of her husband to burn contrary to her desire. The manner in which the petitioner's husband died when he was in police custody, wherein the police personnel have taken defence that it is an attempt to commit suicide on the part of the husband of the petitioner, after registering the case against deceased. What further investigation was made by the Mahalakshmi Layout Police or other agency with regard to that case is not forthcoming in this case, despite a case was registered against the dead person under Section 309 of IPC. No satisfactory explanation is offered in these proceedings by the respondents as to what was the investigation made by the said police and outcome of such investigation. Therefore, it is also one more circumstance, which creates suspicion in the mind of this Court against the concerned police personnel of the Police Station regarding the reasons assigned by them for the death of late Nanjunda. The petitioner has specifically stated before the C.O.D. in her statement as referred to above stating that her husband died due to third degree methods used by the police when he was in their custody in the above said police station. The C.O.D. after investigation of the complaint referred to it by the learned ACMM under Section 156(3) of Cr.P.C. on the private complaint of the petitioner, has filed chargesheet before him in C.C. No. 16457/1998 chargesheeting against the nine police personnel on various offences under the provisions of the I.P.C. and Karnataka Police Act. The first respondent in exercise of its powers has accorded its approval for prosecuting the accused police personnel in that case. This Court keeping in view the law laid down by the Supreme Court and other High Courts in catena of cases regarding custodial deaths and the power of this Court for awarding compensation upon which reliance is placed by the petitioner's counsel in the cases referred to supra in this judgment and having regard to the undisputed relevant facts of this case as narrated above, this is a proper and fit case for this Court to exercise its extra-ordinary jurisdiction for the reason that it is an undisputed fact that the death of the petitioner's husband was in the police custody of the Police Station in connection with a criminal case registered against him and another by the above said Police Station. The police personnel of that Police Station contrary to the well established norms and principles of law as laid down by Supreme Court and other High Courts with regard to the treatment given to the accused persons in the police lock-ups have very badly and inhumanly treated the deceased persons when they arrested and detained in the lock ups in connection with a criminal case registered against them. By reading the relevant papers from the chargesheet filed by the C.O.D. in the criminal case registered against the police personnel at the instance of the petitioner which were made available to this Court, the same were perused by this Court in detail to find out as to whether the allegations made by the petitioner are true and correct for the limited purpose of finding out whether her husband has been treated as inhumanity in the lockup of the police station by the police personnel or not as alleged by the petitioner. Further to find out the deceased person died in their custody on account of the illegal and unlawful acts committed by them under the guise of police power and sovereign immunity. Our Country is one of the signatories to the UNO Convention of Human Rights Declaration Act, 1948. If an accused person is arrested and kept in the police lockup for investigation of a criminal case registered against him his fundamental rights guaranteed to him under Articles 14 and 21 of the Constitution of India cannot be deprived as the same will not be suspended by the State or its agencies including the Police on the ground that he/she is an accused person in a criminal case and they cannot claim sovereign immunity for their illegal and unlawful actions. In my considered view, this is a fit case for grant of compensation in favour of the petitioner and her son for their livelihood for the following reasons.
27-28. The Apex Court in the case of Chairman, Railway Board v. M/s. Chandrima Das after considering the entire case law on the question as to whether this Court can exercise its power under Article 226 of the Constitution of India and grant the relief in a writ petition under Article 226 of the Constitution of India public law remedy can be granted in favour of the persons who approach the High Court, has held that the writ petition can be entertained. The Apex Court has held that the law underwent a change by subsequent decisions and it was noticed by the apex Court that even though the petition may relate essentially to a contractual matter, it would still be amenable to the writ jurisdiction of the High Court under Article 226, and further held that the public law remedies have also been extended to the realm of tort. The Apex Court in the said judgment at Paras 10 and 11 has laid down the law which paragraphs are extracted here under for consideration of this case and to find out whether law laid down in that case applicable to the facts of this case and that the petitioner is entitled for the reliefs as claimed in this writ petition.
10. In cases relating to custodial deaths and those relating to medical negligence, this Court awarded compensation under Public Law domain in Nilabati Behera v. State of Orissa, ; State of M.P. v. Shyam Sunder Trivedi, ; People's Union for Civil Liberties v. Union of India, and Kaushalya v. State of Punjab, (1996) 7 Scale (SP) 13; Supreme Court Legal Aid Committee v. State of Bihar, ; Dr. Jacob George v. State of Kerala, ; Paschim Bangal Khet Mazdoor Samity v. State of West Bengal, AIR 1996 SC 2426 and Mrs. Manju Bhatia v. N.D.M.C, .
11. Having regard to what has been stated above, the contention that Smt. Hanuffa Khatoon should have approached the civil Court for damages and the matter should not have been considered in a petition under Article 226 of the Constitution, cannot be accepted. Where public functionaries are involved and the matter relates to the violation of Fundamental Rights or the enforcement of public duties, the remedy would still be available under the Public Law notwithstanding that a suit could be filed for damages under Private Law.
Keeping in view the law laid down in the aforesaid case, this Court with reference to the undisputed fact of the custodial death of the petitioner's husband the claim of the petitioner for awarding compensation has to be considered and grant an appropriate compensation in favour of the petitioner and her son.
29. The Hon'ble Apex Court in another judgment , in the case of Common Cause, a Registered Society v. Union of India has succinctly laid down the law stating that the Apex Court and this Court in exercise of powers under Arts. 32 and 226 of the Constitution of India, judicial review is permissible and distinction has been made between the public law and private law remedies to tort and further held that Courts can award damages in favour of the claimants, but only when fundamental rights of a citizen are violated by Government or other public authorities, in this regard law has been succienctly laid down by the Apex Court at paragraphs 64, 78 and 83 which paras of the judgment are extracted as hereunder :-
64. There is, therefore, not much of a difference between the powers of the Court exercised here in this Country under Article 32 or 226 and those exercised in England for judicial Review. Public law remedies are available in both the countries and the Courts can award damages against public authorities to compensate for the loss or injury caused to the plaintiff/petitioner, provided the case involves, in this country, the violation of fundamental rights by the Govt. or other public authorities or that their action was wholly arbitrary or oppressive in violation of Article 14 or in breach of statutory duty and is not a purely private matter directed against a private individual
78. The entire case law was reviewed by R. M. Sahai, J. in his illuminating judgment in N. Nagendra Rao & Co. v. State of A.P., in which the case of Neelabati Behera (1993 Cri LJ 2899) (supra) was followed and it was observed, inter alia, as under :
But there the immunity ends. No civilised system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of State as a juristic person, propounded in Nineteenth Century as sound sociological basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government at par with any other juristic legal entity. Any watertight compartmentalisation of the functions of the State as "sovereign and non-sovereign or "governmental or non-governmental" is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for sake of society and the people the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State even though it was against law and negligently. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a welfare State is not shaken. Even in America where this doctrine of sovereignty found its place either because of the 'financial instability of the infant American States rather than to the stability of the doctrine theoretical foundation,' or because of 'logical and practical ground,' or that 'there could be no legal right as against the State which made the law' gradually gave way to the movement from 'State irresponsibility to State responsibility.' In welfare State, functions of the state are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non-sovereign powers for which no rational basis survives, has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity.
83. 'Tort' has been derived from the Latin word "tortus" which means "twisted" or "crooked". In its original and most general sense, "tort" is a wrong. JOWITT'S Dictionary of English law defines Tort as under :
Tort signifies an act which gives rise to a right of action, being a wrongful act or injury consisting in the infringement of a right created otherwise than by a contract. Torts are divisible into three classes according as they consist in the infringement of a just in rem, or in the breach of a duty imposed by law on a person towards another person, or in the breach of a duty imposed by law on a person towards the public.
The first class includes (a) torts to the body of a person, such as assault, or to his reputation, such a libel, or to his liberty, such as false imprisonment; (b) torts to real property, such as ouster, trespass, nuisance, waste, subtraction, disturbance; (c) torts to personal property, consisting (i) in the unlawful taking or detaining of or damage to corporeal personal property or chattels; or (ii) in the infringement of a patent, trade mark, copyright, etc; (d) slander of title; (e) deprivation of service and consortium the second class includes deceit and negligence in the discharge of a private duty.
The third class includes those cases in which special damage is caused to an individual by the breach of a duty to the public.
Winfield's classic definition provides as under :-
Tortious liability arises from the breach of a duty primarily fixed by the law; such duty is towards persons generally and its breach is redressable by an action for unliquidated damages.
30. The Apex Court in the abovesaid case has further laid down the law after considering the case of the House of Lords reported in the case of Rookes v. Barnard, (1964) AC 1129 and other cases, and laid down various guidelines required to be followed for awarding pecuniary compensation in favour of the claimants after it is established that respondent/State public Authorities have committed a wrongful act. In this regard the apex Court has succinctly laid down the law at paragraphs 126 to 136, the same has been taken into consideration by this Court in this case for awarding pecuniary compensation in favour of the petitioner.
31. The Apex Court in the aforesaid judgment has succienctly laid down the law regarding the principles and the criteria required to be followed by this Court for awarding damages in favour of the victims and their dependants who would approach the apex Court and this Court by filing writ petitions claiming damages. In view of the law laid down by the Apex Court in the case referred to supra, this Court has considered the relevant facts of this case namely the age of the deceased husband of the petitioner was 27 years, age of the petitioner was 22 years as on the date of death of Nanjunda, his minor son's age was 4 years, and following the guidelines laid down by the Apex Court, this Court has proceeded to examine the claim and awarded compensation. On account of custodial death of the petitioner's husband, the marital status of the petitioner at her prime age of life is lost, she has also lost the companionship of her husband and she has to live with a stigma of widow in the Society which is a serious social evil in the society throughout her life time is the reality of life, she has permanently lost her marital life and status, in addition to these important relevant aspects of life she has also lost her dependency of her livelihood and her young son has also lost his educational prospects in addition to his livelihood. Having regard to the abovesaid relevant undisputed facts of this case there is neither social status nor economic status for both the petitioner and her son. These important and relevant aspects have been taken into consideration by this Court keeping in view the statement of facts as urged in this petition with regard to the income of the deceased person, as he was working as a weaver and was earning Rs. 1,500/- to Rs. 2,000/- per month as on the date of his death. The periodical wage revision would have been taken place considerably in that industry an account of the fact revision of wages by the State Govt. in respect of the employees who are working in such Industry by issuing the notifications, if he were to be alive he would have been earning more than Rs. 6,000/- to Rs. 7,000/- as on today and he could have given his 3/4th monthly income to his family for their livelihood and further he would have given good education to his son which has been deprived of on account of arbitrary and unlawful action of the respondent-accused persons treating late Nanjunda inhumanly and on account of which undisputedly he died while he was in police custody.
32. Having regard to the age of the petitioner, deceased-Nanjunda and their son, the respondents have denied the dependency of the petitioner and her son on account of arbitrary and illegal actions of the respondents-police personnel and others who are accused persons in the Criminal Case referred to supra. Therefore, it would be proper and appropriate for this Court to consider the relevant material undisputed facts as naratted above and the custodial death of the petitioner's husband, petitioner's social status and economical status as described above, it would be proper and appropriate for this Court to award full compensation keeping in view the law laid down by the Apex Court and this Court and other High Courts which are referred to supra in the earlier paragraph of this judgment.
33. The Delhi High Court in the case of Geeta v. Lt. Governor, reported in 2000 Acc CJ 109 interpreting Article 21 of the Constitution of India with regard to police custodial death where an young man of 22 years was picked up by police personnel although there was no allegation of his involvement in any criminal activity and his body was brought to the hospital the next day with 51 injuries, death in police custody admitted, an amount of Rs. 5,50,000/- was awarded as compensation. In the said case, the entire case is laid down by the apex Court with reference to Article 21, and the same has been extensively considered. The relevant paragraphs of the aforesaid judgment at paras 5, 6 and 8 are extracted in this judgment for the purpose of proper appreciation of facts by this Court to find out whether law laid down in that case can be applied to the facts of this case and the compensation amount as claimed by the petitioner can be awarded :
5. Such incidents strike at the very foundation of rule of law. Deprivation of life without due process of law is banned and barred under Article 21 of the Constitution. Yet such incidents take place. Those who think that they can detect and eradicate crime by resorting to crime are in fact stoking the fire which they want to extinguish. The police can surely interrogate a person accused of an offence, but it cannot torture him to extract information otherwise tyranny will replace law. Despite several judgments by the Apex Court including SAHELI, a Women's Resource Centre v. Commissioner of Police, Delhi, and the High Court, the force is preferred to scientific methods to elicit information. This must stop. The State cannot claim sovereign immunity for the tortious act of public servants leading to violation of Article 21 of the Constitution. The Supreme Court in the path breaking case of D. K. Basu v. State of West Bengal, , laid down several safeguards for the detainees. It also considered the question of claim in public law for compensation for unconstitutional deprivation of fundamental right to lie and liberty. In this regard, it was held as follows :
Thus to sum up, it is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on 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 Courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no straitjacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.
6. In Sudha Rasheed v. Union of India, (1995) 1 Scale 77, the Supreme Court granted a compensation of Rs. 7,50,000/- to the relatives of an advocate who had died in police custody. This Court in Nasiruddin v. State, Criminal Writ No. 585 of 1996; decided on 16-12-1997, while relying on the decision of the Supreme Court in D. K. Basu v. State of West Bengal, JT ( 1997) UT(SC) 1, granted monetary compensation to the father of an accused who died in Tihar Jail as a result of sixteen injuries which were found on his person. In Bhajan Kaur v. Delhi Administration through the Ltd. Governor, , this Court while determining the scope and width of Article 21 of the Constitution held as follows :
Personal liberty is fundamental to the functioning of our democracy. The lofty purpose of Article 21 would be defeated if the State does not take adequate measures for securing compliance with the same. The State has to control and curb the malefic propensities of those who threaten life and liberty of others. It must shape the society so that the life and liberty of an individual is safe and is given supreme importance and value. It is for the State to ensure that persons live and behave like and are treated as human beings. Article 21 is a great landmark of human liberty and it should serve its purpose of ensuring the human dignity, human survival and human development. The State must strive to give a new vision and peaceful future to its people where they can co-operate, coordinate and co-exist with each other so that full protection of Article 21 is ensured and realised. Article 21 is not a mere platitude or dead letter lying dormant, decomposed, dissipated and inert. It is rather a pulsating reality throbbing with life and spirit of liberty, and it must be made to reach out to every individual within the country. It is the duty and obligation of the State to enforce law and obligation of the State to enforce law and order and to maintain public order so that the fruits of democracy can be enjoyed by all sections of the society irrespective of their religion, caste, creed, colour and language. Article 21 is an instrument and a device to attain the goal of freedom of an individual from deprivation and oppression and its violation cannot and must not be tolerated or condoned. Preamble to the Constitution clearly indicates that justice, liberty and equality must be secured to all citizens. Besides, it mandates the State to promote fraternity among the people, ensuring the dignity of the individual and the unity and integrity of the nation. Article 38 of the Constitution also requires the State to promote welfare of the people by securing and protecting, as effectively as it may, a social order in which justice social, economic and political shall inform all institutions of the national life. These are the goals set by the Constitution and Article 21 and other fundamental rights are the means by which those goals are to be attained. Therefore, it becomes the responsibility and avowed duty of the State to adopt means and methods in order to realise the cherished aims.
...The conduct of any person or group of persons has to be controlled by the State for the lofty purpose enshrined in Article 21 of the Constitution.
7. One is dismayed to find that even though a telegram had been sent by the petitioners to the Commissioner of Police regarding the illegal detention of Sonu at Police Station Sarojini Nagar, no action was taken. A timely intervention could have saved his life.
8. In view of the above discussion I consider it to be an eminently fit case for grant of compensation to the petitioners. While granting compensation it must be kept in view that Sonu, a young man of 22 years of age, was picked up by the police even though there was no allegation of his involvement in any criminal activity. It is not the case of the respondents that when he was arrested he was having injuries on his person. No explanation has been rendered for fifty-one injuries which were found on his person as a result of which he died in police custody. It must also be taken into consideration that despite several judgments of the Supreme Court and this Court, the State has not been able to prevent custodial deaths. Torture is still preferred to scientific techniques for the purpose of eliciting information from accused and witnesses.
34. The Delhi High Court in the case of Geetha and another referred to supra has considered at Paragraph 6, the case of Sudha Rasheed v. Union of India, (1995) 1 Scale 77 wherein the Supreme Court has granted compensation of Rs. 7,50,000/- in favour of the relatives of the deceased Advocate victim who died in the police custody. Dealing with the said case, the Delhi High Court has interpreted Article 21 of the Constitution, the said High Court in Bhajan Kaur v. Delhi Administration through the Lt. Governor, has held that, personal liberty of an individual who is a citizen of the country is fundamental to the functioning of our democracy, the State has to control and curb the malefic propensities of those who threaten life and liberty of others, it must shape the society so that the life and liberty of an individual is safe and is given supreme importance and value and further held that, it is for the State to ensure that persons who live and it must behave properly and they must be treated as human beings.
35. In the latest Judgment of the Apex Court reported in 2000 Cri LJ 1809 in the case of Ajab Singh v. State of Uttar Pradesh where similar facts with regard to custodial death of late Rishipal, the Supreme Court has considered the law laid down in the case of D. K. Basu v. State of West Bengal, 1997 AIR SCW 233 : (1997 Cri LJ 743) referring to the report of enquiry, the Deputy Inspector General (Prisons) in the said case, the Apex Court has awarded compensation amount of Rs. 5 lakhs and directed the State Government to pay the same within three months. Further, the Supreme Court in the said case directed the State to take disciplinary proceedings against the concerned who were responsible for the death of Rishipal in that case.
36. This Court keeping in view the law laid down by the Apex Court and the observations made in the said case and other cases referred to supra, having regard to the serious allegations made by the young widow petitioner in this case, against the police personnel and after going through the xerox copies of the documents which are made available to this Court, I am of the considered view that this is a fit case for awarding compensation of Rs. 5 (five) lakhs including Rs. 1 lakh already awarded by this Court by way of interim relief by an order dated 27-2-1996. The amount of compensation awarded has to be paid by the State Government within three months from the date of receipt of this order to the petitioner and her son who is aged about 10 years. The State Government shall issue a cheque for a sum of Rs. 3 lakhs in the name of the minor son of the petitioner, remaining amount shall be given to the petitioner. The amount awarded in favour of minor son shall be kept in any of the Nationalised Bank in a fixed, deposit by the petitioner till her son attains the age of majority under the relevant provision of the Act. The petitioner is entitled to draw the interest amount that would be accruing on such fixed deposit amount of her son, the amount shall be incurred by her for his educational purpose, food, clothing and for such other incidental purposes in the welfare of her son.
37. The petitioner has also asked for issuance of a writ of mandamus to the first respondent to take disciplinary action against respondents 4 and 5. It is most unfortunate that State Government and the Commissioner of Police the first and third respondent herein though the matter was referred to COD by the competent Jurisdictional criminal Court for investigation against the fourth, fifth respondents and other police personnel who are involved in the crime as alleged by the petitioner and the COD after conducting investigation has filed charge sheet against nine police personnel. Therefore the above said respondents should have initiated the disciplinary proceedings against them under the KCS(CCA) Rules, 1957 read with the provisions of Karnataka Police Act and the relevant rules. Admittedly no disciplinary action has been taken against them who have been shown as accused persons in the Criminal case pending before the ACMM without any reason or rhyme. This inaction of the above said respondents would clearly indicate that the State Government and third respondent have been protecting its police personnel referred to supra from their arbitrary and illegal action. Further, no tenable explanation is forthcoming from them in this case as to why disciplinary action was not initiated against the police personnel though the Criminal Case has been registered against them, under the relevant Rules referred to supra, which is a mandatory in law. Therefore, it would be proper an appropriate for this Court in the expediency of Justice and further to see that the rule of law should prevail in this State, an appropriate direction has to be given by this Court to the first and third respondents to take immediate steps for initiating the disciplinary proceedings against all the accused police personnel against whom criminal case is registered before the Addl. CMM, in C.C.No. 16457/1998. The proceedings shall be initiated within two weeks from the date of receipt of this order by the first and third respondent in accordance with the Relevant Service Rules referred to supra against the accused persons. The respondents 1-3 are further directed to report to this Court the disciplinary action taken by them against the said police personnel who are accused in the criminal case. If they fail to comply with this direction the Registry of this Court has to place this judgment before the Contempt Bench of this Court after obtaining necessary orders from the Hon'ble Chief justice for initiating contempt proceedings against them.
For the reasons and the findings recorded by this Court on the basis of the records and documents made available to it as above and placing reliance upon the judgments of the Apex Court and other High Courts referred to supra, I pass the following order :
The writ petition is allowed. Issue Rule and made absolute. The following directions are issued to the respondents :
(i) a writ of mandamus is issued to the first respondent-State to pay a sum of Rs. 5,00,000/- (five lakhs) as compensation to the petitioner and her minor son by name Master Vinod, this amount includes the interim compensation of Rs. 1 lakh which is already awarded.
(ii) Out of this five lakhs, two lakhs shall be given to the petitioner from which one and half a lakh shall be kept in any Nationalised Bank for a period of 5 years by her and three lakhs shall be deposited in the name of her minor son in any one of the Nationalised Bank.
(iii) The amount of Rs. 1,00,000/- already awarded by way of interim relief shall be deducted from the amount awarded in this petition. If this one lakh is in the fixed deposit as directed by this Court, the petitioner is entitled to draw the same from the bank with interest earned on such amount. Rupees 25,000/- already paid by the State Government should not be taken into consideration for computing Rs. 5 lakhs.
(iv) The petitioner is at liberty to draw the interest amount that would be accrued on the amount that would be deposited in the name of her minor son and the same shall be incurred for his educational purpose, including food and clothing and for his welfare.
(v) Further, Respondents 1 to 3 are hereby directed to take disciplinary action against all the accused police personnel mentioned in case No. 16457/98 within two weeks from the date of receipt of this order and report compliance of this judgment to this Court, otherwise, the contempt proceedings shall be initiated against them as directed in this judgment.
(vi) The State Government is further directed to recover the amount of compensation awarded in this case from all the accused police personnel who are responsible for the custodial death of the petitioner's husband after fixing their liability, on the basis of the powers and duties conferred and required to be discharged by them when the accused persons were arrested, and kept in custody of the police lockup. This Court has given this direction and liberty to the first respondent for recovery of compensation awarded in favour of the petitioner, eventhough some of the police personnel are not parties to these proceedings, their liability of amount payable towards the compensation awarded shall have to be fixed by first respondent and the same shall have to be recovered from them after affording an opportunity to them. This Court has further made it very clear that the findings and observations made in this judgment for awarding compensation shall not come in the way of considering and deciding the Criminal Case referred to supra pending against the police personnel by the Jurisdiction Criminal Court at the time of trial and the same shall be decided on its merits.
(vii) The First respondent also can consider the claim of the petitioner for providing any suitable job in any of the Departments keeping in view the relevant facts as stated in this judgment.