Karnataka High Court
Smt.Soubhagya vs Chief Secy.State Of Karnataka on 19 March, 2010
$3.';
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11 & 14TH DAY OF AUGUST 2000
BEFORE
THE HON'BLE MR.:rus'rIcE V.GOPALA eowo_e.._""»V.':"§";~
Between
8mt.$oubhagya, ,
w/o. Late Sri Nanjunda,
R/at. Premnagar adjacent
to Kamalanagar, »_~ ~_
Bangalorew560079. _;.P9titioner
(By Sri C.M.Monnapra and~,'A', a
sri M.Mahadevaiah; Advocates); H'.
A n d , A*V ;"""~"
1. The Chief Sgcretary, "W
State of Karnatakafi *
Vidhana $¢udha;'_'*f«
Dr,AmbedkargyQedh1,"
Bahgalorem " ' "»'
2. Thé Home Minister/1 "_
Home Secretary; '__"*
The Government o¥,Karnataka,
Vidhana*$oudha;k "
43ahgaloré»_
HV 3;_ "ThéHCohmissioner of Police,
_"gInfamtry*Road,
',.BafiQ§lor3a;.
4.'HHK.B.B$£tégowda,
VTha Circle Inspector of Police,
Mahalakshmi Layout
Police Station,
* +_Bahgalore.
5. K.P;Gopal, _
The 8ub~Inspector 9f Police,
Mahalakshmi Layout
Police Station,
Banalore. ..Respondents
(By Sri $.N.Aewathanarayana
AGA for R1 to R3,
Sri N.$ambha Murthy
for R4 & 5)
w o 0 o
w.P. is filed under Aftielee 2226lnot:theVn
Constitution of India prayingV_te_ direct ' thed
respondents and *the State: to 'pay cempeneation
amount of Re.5,00,000/~ together with 'intereet" at
18%»p.a. from the date of custodial death pf Sri
Nanjunda and further direct,the-_$tate "to" give a
suitable job to the petitioner far having lost her
husband in the custodial_deeth case 'at "her Young
age and etc. T 1p'£ '.*u'n
This w.P.4ed,comin§"oh fer dieteting the order
this day, the Court dictated°theFfoL1owing:
D E. ii'
TH18 13 a pathetla caee wEere.an young wldow
_ aged. ahdut £2. years has filed this writ petition
7, seeking :fora issuance of a writ of mandamus
Adirectinea the Preepondente to pay compensation of
Rs;$ Iakhedtoeether with interest at 18% p.a, from
hxthe date of custodial death of sri Nanjunda the
H' _;L ~. _ ' émqakifiau
«hueband of the pet1t1oner and furtherAdirecumtfieE
fitstate to give a suitable job to the petitioner for
K
h =haQing lost her husband $ri Nanjunda in the
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.,;-3.
'izfsi
custodial death cake at her young age. Further they
petitioner has sought for issuance of an
appropriate direction to the first and second
respondents to take appropriate action againeta the
erred police personnel and officere "w5¢.fege_
responsible for causing custodial .deethVeof_ hem,"
husband late Nanjunda at mana1akenm:%taygunlpoxlce
Station. Bangalore (hereinafter reterred to: ¢§11§e_
Station in shof?) and f9ttber dife0F tfiéfi to hold"?
an enquiry against all the ,Police *Pereennel who
'have been arrayed "as; eccueed"apereone in the
Criminal caseVc.<.:.Ne_.V_1l'e45fi_21f99e~..vbe.i%o_x¥7e the Addl.CMM
Court Bangalore ey §an:'indemendent agency and
prosecute" them}fl urging 'earloue facts and legal
contentlenellh
2;_ The petltlener is a legally wedded wife of
late_Nan3findalwg0dtV6¥ their lawful wedlock, she
get one male enild who wee aged 4 years at the time
' e$_f1;ing, this writ petition. It is etated that,
".£ne«§e£;t;epé+ and her late husband were leading a
heppy marital life. Petitioner's late husband was
A/30K '}
V"~AworKingAln a Power Loom Factory at Bangalore, he
r \n/
M4».
was earning Rs.1,500/w to Rs.2,00O/W p.m. and was
maintaining his family including his aged mother
$mt.Gangamma and his father Sri N.Rudrappa.
3. 1:1: is alleged by the petitioner.§t.h'a't«l.;;'on-'.____"'_
13.2.1993 at about 8 p.m., the 5th resp.o.n4d'snVt'-i.:'Srill"
Gopal. Subwlnsvtctor of 1d Polioeg V--CCrime)g h
G.R.Hanumaiah, Head Constable (Metélfi Nol2¢50); and "
Sri P.Ravikumar 8/o.Sri fiurushotham,'o?athe"aboue4 "i
said police_ station ficame _toh the house V§r the
Petitioner and foroihly itosk "the husband of the
petitioner Sri VNanjunde,_tolithejifislioe Station
without assigfiihg. afiyilteasonlmhetsoever and kept
him under illegal f§ustody_ Without registering a
case against" Bie5__:t";e her further case that the
petitioner_ws§ Visiting the fPolice' Station every
day eversinoe from the date of her late husband was
illegally arrested and she has been making repeated
"~requestsl to the concerned Police Personnel of the
i_Polioe Station to release her husband from illegal
ouetody: eifhe" police personnel by one way or the
V other.w6fe demanding money from her for his release
u"aiwithout.registering a case and he was subjected to
'torture by using third degree methods and caused
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external injuries on his vital parts and kept him
in the police custody without producing him before
the Court.
Ȣ. It is the case of the petitioner that; eheire
has been regularly visiting Police Station evefydey"
for giving breakfast and food. 1" On .euery lugeitg
whenever she fivieited the Poliee"l8tefiion'Vrorf5i
supplying food to her late ghuebeno,V the {PQliee
_> * . Ju'i¢vm'V.">V%.v
personnel ueed to collecp.Re.2O to 50kpo_enabLe her
.to provide food to her husbdndi' it is allegeo that
on account of attrooitieel5ano*i©orfiure, late
Nanjunda was mieerabl?"léufFering Vreefi pain and
shock due no internal end external injuries caused
in the Polioe eeeiior b; fine boiiee Personnelgb by
name: i Hi i fill ;lQi_ ow"
1) k,fifBette§ondeg Circle Inepector.
o%ip§i:¢ier.i ' ii
"an eopel,RSubjinepector of Police (Crime),
"-Hé) éifiihanumaiah, Head Constable
.2050 ),
A,el Nareeimhaiah, Police Constable
~ tee 4205),
\ML,//'
lstation i.e.
....6.....
5) P.Ravikumar, 8/o,Purushotham(PC 6082),
6) Maregowda,Police Constable (PC 2602),
7) Srinath, Police Conetable (PC 6671).
5. Itizhe further grievance of the petitlonerir.
that, she AA/3:3/ubmitted a complaint M
Aeet.Commiaeioner of Police, Malleewarahmlbieielon, "
Bangalore against the aboveeald:fiolicegpereonnel7f
narrating the illegal detention uand the ctortnel
meted out by her husband in the hande of the Rolice
Personnel of the aboVeeaidfi"Pelieeo Station] The
eaid Aest.Commissioner of Police lnatead ofv taking
action against" the; said" belicel,oereonnel hae
allowed them to eauee further grevioue injuries kgo
kher late hqeeand 'who lceneeqdently died in the
'L.ock»~up"' iVn"t.he statien on 22/23.3.1993
night due .to .grevioqé,d;njuriee caused by the
policeP€V5VWW'L' .
v. v-":V m "'~N/ ****
'«_ 6" ' It" ie afise further alleged by the
eetifiloner "that. whenever she visited the Police
Station ffifieeekfig her late husband who was in the
elllegal.xouetody, Police Constables of the Police
G.R.Hanumaiah, Naraeimhaiah,
lePLRavikumar, Maregowda' and Srinath have made
\mL/
"'7...
several attempts to cause eexual assault on her by
making her to believe that her hueband Nanjunda
will be releaeed,if she fulfills their deeire and
also demanded money for the release of her huebendjo
M/ ~
Under the eeéfi pretext of release, Naraeimheiah[heet['
taken Re.2,5OO/W from the petitioner which amount"
was borrowed by her from her neighbourel
18/
7.3R#urther case of the petitioner ie that, on
22.3.1993 at about 4.30 p.m. b* when eheh met her
hueband Nanjunda in the flret"€loor of the Police
Station where Nanjunda lehowed5 her jthe injuries
caused on hie. body: by :the"Policeyln the Police
uetation, further he was not ih:g.poeition to walk
or to take food as he wee eeuerely torutured by the
Police applying, third 'degree methods. It is the
case of the petitioner that; on account of grevioue
injuriee caused by the eeid police to her huebend,
«he ediedl in "*theH,Police custody iteelf, and
bathereefter_they have created a false document by
making entries in the eaid Police Station at
the instance or K.B.Bettegowda, Circle Inspector of
i', Police "and Gopal the $ub~inepector of Police
=.: (grime), the 4th and 5th reepondente herein to the
-- effect that the deceaeed Nanjunda and one Kumar
N/
....8....
were arrested on 22.3.1993 in Crime No.43 of 1993--
and they were kept in the lock~up in -the Police
Station and on 22/23.3.1993 said Nanjunda committed
euicide by hanging himself in the lockwup where heyu
was lodged along with one Kumar and thereafter-theyfii
'\l/
regitered a case _against the Dead pereonvfsrii
Nanjunda in Cr.No.120 of 1993 under-Sec}3Q§ of lPC2
by Achutha Rao, HC'No.227 and filed the Fia in 'the *1
Court of VII Addl.CMM, eanga1ore_ City "as _9er
Annexureee.
8. It is further alleged }bY_ the jeetitioner
that, though her husband died in §he'lock~up of the
Police Station. on ;the_ date-referred to above on
account of Police tottureif the :Police personnel£"'
with a edeliberate§'anda:mala fide intention to
protect themeelveerfrom,&proeeoution have created
falee documents 'by imating false entries in the
looliceirecorde ito_ destroy the evidence of the
nflcuetodialii death case and further they have
committed various' offences punishable under the
z'*vprovi$ione.o¥tlPC with a common intention to escape
d*_ from their criminal liability of proeecution.
«. Hence; the erred police pereonnelfl are liable to be
_proeecQted for the various offences committed by
M\/
fiil
;25.3_19§3,%d Kannada Prabha dated
....9.....
them, in the custodial death case and are liable to
pay compensation to the petitioner and 'her minor
eon. The petitioner claims that her hueband
Nanjunda died in the Police custody due vtarl
attrocitiee and grevioue injuries caueed by thedfnb
wolice personnel of the Policen Station Ijfrenhi
13.2.1993 1:111 hie last breath«..~i»n._thelhvséitic-l.['ce.4.'_f_
cuetcdy for which the State ie liable to anewet FcE3_ i"
each' and every illegal act- committed byf;w;tej'V
servants and as euch the $tate,ie_reebeneible for
the untimely death of thez9etitidner;e,hueband"late
Nunjunda in the aboveeaid ficlice $tatidn{-- when he
was in their cuetcdy and thefefefe it ge contented
that they are liable to»ba;=come¢neaticn_ae«claimed
by the petitidnergf_
9. it ie etated that; the custodial death of
the petitionefje husband has been widely published
in all: the dailev newspapers 'E Sanje' dated
26.3.1993,
pragapaax dated 2j;3.1992, E Sanje dated 28.3.1993,
.W,,prajaQ3hi dated 30.3.1993, E Sanje dated 30.3.1993,
l¢_PfaJavani. dated 1.4.1993 and Kannada Prabha dated
_i3;9.I993uvide Annexuree B to L bringing teu the
"F: netice "cf the public at latge and the State about
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the ghostly incident that had occured in the above
said police Station on account of highwhanded and
illegal acts of police pereonnelffflai gfi/WM
10. After the death of her h§ebefid;'+'
petitioner filed a private complaint }in¥:PCR
No.461/93 in the Court of 8th AddliCHM;n eafieaigfet 7
against the Police personnel reQueeting'the.CoUut;i
to take cognizance of the offences committed by the
cpolice personnel wherein the_eaid xCouft~_vide? its
order dated 24.4.1993 fefefreé the case to the COD
for investigation. The _ondé% _iévipfeduced at
AnnexurewM. tin f.th§ €e&idi"iceee§d the Police
Constables cfiethe3_eaidi»_Poli¢9_' Station vide
K.S.Eshwarapneni:Eoiice'{Conetahie (PC 4631) and
R.a.Shantharaiaieh "(PC i5?83J have filed their
application "_anddV§affidavite dated 5.4.1993 in
Cr.No.12Q of 1993 in the" Court of VII Addl.CMM,
'"Bangaicre City etating as follows:
V .V ,*»F0n>22/23.3.1993 at about 2.45
'__a,m;t- when they went to answer the
" call of nature one of the prisoner
was fcqnd hanging with bedeheet piece
Won the iron rod of the lockwup door".
W
3*!
3"
.....11...
The said affidavite dated 5.4.1993 along' with
application filed +in »Cr.No.12O of 1993 in the
Court of the' VII »Addl.CMM, .Banga1ore City _are
produced in the petition vide Annexuree N and 0,"a
11. Thei petitioner has filed this "'
petition seeking for grant of compeneetion=oyelthe_
State and the police personnel who erejreeponsibliM,_f
for the custodial. death ot.herlhuebend.ifiShe'heel
etated that, on account of illegal ecticniforfi the
police ipereonnel, she. had. not Vonly hlostfi her
husband but herself ,pnd iher; §ounog eon were
deprived of their liuelfhoodil Goth es them were
completely depending. upont the? earning of late
Nanjunda. iThere%orei"Htheirl fundamental rights
guaranteed to them under erticiee 14, 19 and 21 of
the. Conetitutionf of "tndia5 are infringed and
therefore athey *u}§e rthie: Court for grant of
reliefe~ee prefied~ror in this petition.
i=._19} "i The 'learned counsel for the
petitioner-- heel placed reliance upon theevarioue
.Judgmente of Apex Court, Delhi High Court, Bombay
u"3iVHiah_ Court and this Court in support of the ceee
"oofh*the petitioner for grant of compensation
l\wL/
..... _,,,
amounting to Re.5 lakhs 'ae~ the $tate/gaafinot
entitled_ for sovereign ~immunit9 V under the
, wx
Constitution of' India forfimfillegal actions. The
petitioner's couneel Mr.Mahadevaiah has placeg)
reliance on the follewing Judgments:
1. 2000 Crl.L.J 1809 in the case of'--tg"5'tc
AJAB 8INGH'& ANOTHER w Vs « _H_f». -*
STATE OF UTTAR PRADE$H%>' "v"
(Paragraphs 8 & 9)
2. AIR 1997 SC 1538 ,
3. 1995 1 SCALE 77 HV1. *_ -,.
4. 2000 AC3 109 Paragraphs 5*& 60W-av
5. AIR 1997 sc s1o';'* '~ . L *~*~
D.K.BA$U 9 Vs « «,*»
STATE 0F"wE$TJBENGAu -
6. AIR 1999 sc.1522.""-j' ~_
7. AIR 1995 ILR KAN 2424.e_'z
8. 1993 AC3 393' -'2 3. 'Q9
9. 1990 AC3 804
1
o. 1989.ACJ e55"«'-
The relienceg9'i$_V please, upgn the abovesaid
Judgements by the learned eauhsel on behalf of the
petitionef for the fireboeition that, if a pereon
diesst in the. .':so,1V1ce'~--._ éuetody, the State and the 9
:Pplice5;pefs9nneI"»are' not entitled to seek
"eowetejgn gimmunity for payment of damages by way
of eempeneetiony furthef the dependente of such
'9 decea$edvj*pe?eon are entitled to claim the
"-aeempensatien from the State and the persons who
"'_afeVVteeponeible for making such person to die
47, =duting their custody.
. W/
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AM;Wfi&w
'.
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W13...
13. In thie caee, on 2.8.1995 Rule Niei
was issued and the Government Pleader was directed
to take notice on behalf of reepondente. _wf¢@*.
22.8.1995, on various hearing datee the caee"5hee:;'*
been adjourned at the request of the GP fOf\fiiiin9
etatement of counter. An aphiicati@n:I.§.IViei
. "V
filed by the 4th reepondent eeekingfiveceting, g¥;V*
interim order dated 20.9.1995 gassed by_thie Court
and Lfurther eought for ieeuing a direction to the
II Addl.CMM' Court, n@engaioreh~not*_to proceed
further with the enquiry in the ceee regietered
egainet them Qureuent to HCRuNo.4e1/93h where the
cob had .Van_--..___iinueietiigetion and filed
charge sheet edainet concerned dhclice pereonnel.
Thie Court. hon go 9;i995 peeeed an interim order
which reede as ufiaér§"."
_ "The petitioner ie the wife of
Late. $ri'*Nanjunda, who is said to
have died while he was in custody of
r the Mehalakehmi Layout Police Station
V'5n , <the*._ intervening night of
'V22/23.311995. According to the
_'petitiener;the death is due to
Agrevioue_Hinjuriee caused by the
police. A The petitioner claims
compensation of Re.five lakhe. In
. the, counter filed on behalf of the
*:reepondente, it was alleged that Late
9 Sri Nenjunda committed suicide and
V*the death was due to asphyxia. as a
} reeult of hanging. It was ~further
\(\«.\\/
.....14....
stated 'that the investigation by the
Corps of Detectives was stayed inv a
pending proceeding.
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"lu
Metropolitan Magistrates to conduct"~g
an enquiry into the causes leading1to_._v
the death of Late Sri Nanjunda on the'_*
intervening night of 22/23.3,I995;.'_
while' he was in custody 'of7. thef;
Mahalakshmi Layout Police Station;_ A
VThe records shall be transmitted to;
the Learned Chief Metropolitan
Magistrate. The, reportj*.of_ the»
enquiry will be_ submitted ito.this
Court within three »monthsf from vthe
date of receipt of the records 2 The
report to Abe submitted , will" {be
without prejudice to*the"ca$e'of the
prosecution.Zu _ _ AV_ .i-
Despatoh" the fotdef awand the
records ute.§the 'Chief« Metropolitan
Magistrate.imaediately."*w~
1_In the light of the judgment of
thisV Court 'dated "14a7.1995 in NP
11574 of 1989, the Etate may consider
payment of- interimu compensation to
the» petitioner ' (widow of Late
Nenjunda) and _the minor child,
, 'without« prejudice to the contents
.'.raised in this writ petition, as an
; interim measure.
A lcaabah copy to be furnished to
both,parties."
n'14, On 16.2.1996, while considering I.A.I,
'y_ _this Court passed an order referring to various
:dfacts and legal contentions urged on behalf of the~
WV
32'-+
Wdirecting the
'w 15 ~
parties wherein ~it rwas contended by the learned
counsel for the 4th respondent that the defence of
respondents 4 and 5 will be seriously affected with m
regard to the investigation sis allowed _to" be :5'
conducted by the COD which aspect of the matter was
brought to the notice of firet.reepondent¢Stateaendr
State 'Government. passed an order dad l?i2,199$".n
compeneation.as has been grantedmingeverya case} of
custodial death. The relevant portion of the order
dated 16.2.1996 reeds thusfi_
"In view of the submission made
by the learned icouneel 'for the
petitioner and 4th respondent, till
this: applicationgfiisapfinally heard
after'the'QbJeotions" are} filed by
the " ,petitioner;- the learned
"Magistrate ie directed to stay the
further proeeedingsg In view of the
Government ',0rder . dated 2.2.1996
referred to eabove, the State ie
directed'toVpay a sum of Rs;25,000/~
;ae_compensation to the petitioner in
V"%respect, of "the death of one Sri
'= Nanjunda. bThe claim »of the
. petitioner for higher compensation
'"willUbe_considered on the next date
-_eofchearing.
'=ca11~pn£27.2.1996."
nin15. l"%urther, on 27.2.1996, this Court passed
'an ,orderd having regard to the claim of the
payment l_ofz Rei25,05Q/ded_ae
*l*petitioner, the .relevant portion 'of which reade
vil=_'thus=
My
'"Therefore. I am of the View that it
is 'just and proper to direct the State
Government to' pay some reaeonab1e'hi}
compensation ,to the petitioner and her<,k '
minor son.
a so far was the quantum. of,V"i
compensation is concerned it" cannot gbe f:
disputed' that late Nanjunda was a young'.
man.« This Court has also taken judicial ,
notice of the~fact that young man .would fa
normally earn not less than_Re.40£«"to
Re.50/~'per day even if he .worke ;aeA.a
labourer. The fact, aleo remainegthat*rfi
the petitioner and .mev_ minor ueonf are
deprived of the Company of late Nenjunda
at 'an early Vage,_rin'.addition to the
financial loss gthey; have fineurred on
account of the-death_of eaiduNanjunda.
without prejudoie to the rights ,of the
petitioner Vto claim higher compensation
vat'a'later,$tage of 'proceedifiée or eby
Ainetituting", ,any. other - appropriate
proceedings; 1 think it is just, proper
and _equitabiey"xto"~direotr the State
Gouernment* to _pay «-another" sum of
.9.'s.1,'ooir;.ooo;:~;g _i'nu'additVi'on to Rs.25',OOO/
already direoted_to be paid by meane of_
order dated ,'16;2.i996. The State
Government_ie*di:eCted to deposit the
eaidgjeum of.'Re;1,00,000/w in a Fixed
iQeposItVin_a 'Nationalieed Sank 'for a
_§period "of three years in the joint name
'<of_the petitioner and her minor eon, and
the FD Receipt to be handed over to the»
V", petitioner. The petitioner is
V, =reetrained from withdrawing the eaid
' gamount kept in deposit or taking loan on
the Veaid amount without the ordere of
this Court. The concerned Bank shall be
intimated by the first respondent that
petitioner ie not entitled to withdraw
d§the principal amount. However, the
'interest accruing to the eaid Aamount'
ehall be paid to the petitioner ae per
the Banking practice by the Bank. The
sum of Re.25,000/* directed to be paid
without the» ordered of this Court, the'
by means of order dated i9.2.1996 passed
by thie Court ehall be paid to the
petitioner and for the said purpose, the
7 State Government is directed to-deposit
'~ 17 W":
the same before the Registrar General of
this Court within three weeks from
today. So far as the sum iof
Rs.1,00,000/~ directed to be deposited
in Fixed Deposit is concerned, the saidw --
ideposit shall be made as indicated above "
within eight weeks from today." =;'
16. 'Further this Court in the $éid$\oid¢rd;
observed that the said order is made purely,as_ahM'
interim measure.
that it is open for the petitioner to mode this
Court for further 'eoheidenationfi»_afterH" the
investigation of the case br the COQ is concluded.
This order was« challended be respondents 1 to 3
herein in the abpeal{whi§hhoame to be dismissed by
the Division aeficH§ qr ithie'i§ouit on 19.9.199é
holding that there is no merit.
>17. i"Whis_]Court5ivide its order dated
v,2e.3.2oeo,i _dire¢tedm» the' VII Addl.CMM, [Court
fiangeloreu'cu§x, produce. the original papers
pertaining *tofflCrime No.120/93 'along with the
l°Aooident fiegister of K.C.General Hospital which
~ih«are said to have been produced in CC.No.16457/98,
"' for _£h§ reason that the Vlearned AGA Mr.S.N.
d>,_eswathanarayana submitted that he was unable to
idet"the certified copies of documents as directed
d"bQ this Court 22~3~2000. The case was listed on
°' 3.4.2000 for producing the said documents. on
Further, lthis Court. observed:
1
fi4;412OOO5 the 'learned oAGA produced the Accident
Regieter of the Hospital and he was further
directed ito
Cr.No.120/93.
complied with by the learned AGA as per theafi5t;fig?'l"
made in the order sheet of thie_ caee""dateddx
13.4.2000.
18. On 29.6.2000, the government" p1¢2¢¢+
produced the file in Cr.No,120/93 Containing the
xerox copies. The learned. oouneel_i&for the
Lpetitioner was directed to~oo through the same and
make'eubmiesion§
to make a 'dote iwith éresardm to 'two dooumente
produced "b%"=tEe uiearhed- eddigea on 23.3 2000
namely the 'DPD:i$h9etdhNo}$985 of' K.C.General
Hospital againS?_thelCo1mh.History it reade thus:
"Found. hanggde himgelf in Police Station
~. a;oynd_3 a.m."*onM"3.3.1993. 'Patient is
"'9§§Qifigé Vonly iaw movements cygnogeg, T
'.~ Qglee.' feeble. BP not recordgple,
'_ cardiggmgffled so = e t
1 e %"ng3 a*&b1
3
is'
V 1 '~ ila e
1'ature mark around the neck."
"i§.Vl?rom'the said documents it is noticed
_ Vthat,» the" deceased Nanjunda wee; taken to the
imospstai on 23.3.1993 at 3.30 a.m. by
7R"ChikRaboraiah, .A8I of Mahalakshmi Police $tation
My
produce the file pertaining ted; "
This «direction has not _p¢§fit3.\
u*_t_is3neoeeeeryuTor this Courtr
..
and there is a further note in the case sheet that the patient 'was found 'hanging in the Policev station on-23w3~1993 at 3.a.ma with a Bed Sheetierr
20. I have perused the FIR in respeetvfot'h Crime NO.120/93_ where a case has been registered 2 against the Dead Person. The statements' oF'esohe*hfil persons are recorded. -One Kumsr who was the other} person arrested along" with Vlatel Nanjonoavjhas narrated the condition offi late =Nanjunda Hinx the Police Station on 23.3;i§?3.h»5' i 21. ',fhe§§figtement.of»Qbjeetions filed on 421wO8~19§5Ab#,the§learnee;Go§t}Asyv on behalf of 'the res9ondents_ 1§3,_ have .denied the various allegatiohs made.against them. It is stated in the oounterv statement Jthat, the case registered lagainsfi Manjundav in Crime No.120/93' punishable "?underiaSettiong_309 IPC alleging that he made an attempt to eommit~suioide, the said case was under
i v.investisatieng'the same could not yet concluded in ".__oi¢w ot.the stay order granted by this Court inh D"§r~1;+*=;..r§{o.vi'13o/93 on 8.7.1993. .It is further :stated"that deceased' Nanjunda was arrested Vin ':crise No;43/93 punishable under Sections 457 and uem,$8O IPC and was detained in the Police lock~up;
\W\»/ w 20 ~ It is alleged, while he wee in the lockwup, he has attempted» to commit' suicide "by hanging himself cwith the help of bed sheet at about 3.a.m. on theiilr intervening night of 22/23.3.1993 while the 8entryJ@t?yl Police Constable had been to attend the Wnaturéel call. Immediately after seeing "the act §%f£h§' deceaeed, the Station House 3,ofifi¢e£;."_§s:»>«"""
Chikkaboraiah and. the comblainant.xD,AchhqthaW§ brought down the body and he* was removed lto K.C.General Hospital for treatmentxl it ie fdrther etated ithat; deceased Nanfiunda»dae_br@V¢ht to the Police Station alone with one Kdmard on; 22.3.i993 V at 3 p.m. .by He aoeo and the Crime staff who took him to cuetodyV§nearuiarratkfiehofi in JC Nagar at about 2 p.m. The P$lVeo§al (Crime) arrested the accused/and interroceted~in Criminal caee No.43/93 punishable under; $ec}$5? and 380iIPC wherein_the eaid Naniunda wee euepected, some of the etolen properties there, recovered by the said police at the inetanceko¥ the deceaeedwNanjunda on the same "vday afia_ wee. detained in Police lockwup. It is jygfdrther eteted that, on the complaint given by the 'eoetitioneriNACP, Malleewaram has also investigated l"LLthe caee and further stated that ae~ per the PM Vlreport, therev are no indications of violence on l1: the body of the deceased except ligature mark over W/ w.
the front and eide of-the neoke and 'the' Medical Officer who 'has conducted PM of the dead body of late Nanjunda has clearly opined that hie d¢a£h_*_ ewes due to asphyxia as a result of hanging,3 It ie :"V further eteted that, the allegatione~.of,"theA petitioner are yet to be investigated ey_ the:KgQ§d and in the absence of' the report, it ie notd possible for this Court either to aeree' with Wthe contentions of the_ petitionerix or "to Veeard compensation to the petitioner as eleimed.
22. It'i.«eL.'s-taited :~i=t '*«.;§éi%_ag.r_eVi5h.5 of the [counter etetement" that;_ the Keontention of the petitioner that death of deeeaeed Nanjunda was due to torture.in the loek* up_ was' denied by them. However, hit is contended by them stating that the First Informetien Hebert and the Medical Officer'e "report would_cleerly ehow that deceeeed Nanjunda ldied".by; committing euicide in the police lockup and.heg died 'due to asphyxia' as a result of l_hangihg.,°'C¢D has not yet completed the inveeti *«.fiV"V"<._§getio'n..and filed chargeeheet. Therefore, it is vx=xnot._broper and fair for this Court to come to the 'i>_"eonelusion that cause-of death of Nanjunda was on "ueeoount of torture by the Police personnel using uxthird degree methods as alleged by the petitioner WV M22...
and in -the absence of investigation 'report. Therefore, the respondents 1*to 3 contend 'that,' the petitioner _is _not compensation much less the amount claimed bygwhetiifii and thereby they have prayed for dismissal of thel'l writ petition.
23. After condideringa the pleadings of f the petitioner and the respondents and hearing the rival contentions appeeringi on* behalf of Vthe parties at length, this: Court has proceeded to answer the rival contentions of the_parties after considering relevant: documents Hproduced in this case assigning thefl following "reasons. I have perused the §M*§epott end FIR filed by the Police in "Crime lNoi12C/§3fl the mebove referred police» registered a case dnders$ec.309 IPC against a dead vperson on the alieged ground that he has attempted to commit, suicide. Except, registering FIR, the said Police heve not made further investigation in x*"the matteri. Neither the respondents 1~3 nor the .if_respondents; 4 and 5 have given proper explanation « in ~the, counter statement filed onv behalf. of inp respondents 1 to 3 stating, as to what happened tot the- criminal case registered against dead person My ,entitled_ for ....23....
regarding alleged attempt to commit suicide by the deceased Nanjunda. t On the'*baeie' of a privatet complaint of the petitioner, the learned Jurisdictional Additional Metropolitian Magistrate 2 has referred the matter for investigation te_cdbrji* under $ec.156(3) of Cr.P.C. The $tate Governmentih in exercise of its power U/e.197*0f-Cr.?.Ci" read ; with $ec.170 of the Karnataka:":.&Pcf_1'i<iVe liirecreg granted epermission on 25~3w1998 «to prceeebte 9E police personnel including reependente A and 5 who have been arrayed as the aocdeed pereene tori the various alleged offences aeaidfirtfidenave been committed by them under §e¢;3§8cfead-with'$ec.109, 465, 114, 348, 46$? gee and variobe other offencee against different;ecoueeel5§f3bne§as shown in the charge sn§é£;uf§_rfi;§ fléaee heel been regietered before the eddl.fiMmtinméC{me.l6457/98,no progress could be made in the caee for the reason that one tor the other accused 'have come up before thie 'g¢¢gVti'eeék:fig_ for quaehing the charge sheet on varioue'grounde,f~ The fact remains that, the "V< Criminal case registered against 9 accueed police bx 'personnel is still pending for trial. lm/ W24."
24. as already stated that this' is a pathetic case where the petitioner, being helpless young lady has'_been made to run from pillar to Post crying For justice with regard to the inhumanV behaviour or the concerned police personnel mfllthfitfik herd deceased» husband against whom she' has " "
elaborately stated in her statement_jrecordedrlbtax the Investigating Officer of c.d,o,,a§:£o_k¢w.herola-T deceased husband' was treated bygdlthe t3policel.
personnel in the custody of the Police*$tationg ll shave read 18 pages atatement trecorded "by the Dy.$uperintendent of Cdbfl . _ she vfhasi vividly narrated in her. statement as to H¢g*he} husband was illegally, onlawfullyigfrested and detained in the police lcustody *and show; he" was inhumanly treated by """ "theC'Poliee*soersonnel. No doubt theff said statement remained as "mere allegations for the reason'that the Criminal case is at the trial stade. ffhe undisouted fact is that her husband ddied "during Hthe custody of police of Mahalakshmi Layout Police Station. The Professor and Head of .i".e the KDeoartment7 of Forensic Medicine, Victoria Hospital,*Banoalore, who had conducted Postwmortem i" of deceased Nanjunda has given a report with lre9ard_ to various conditions of the dead body of
3. .
\_f\/ .....25....
the petitioners husband. The opinion of the Doctor who has conducted PM of the dead body reads thuez "I am of the opinion that f"*t death was due to Aephyxia as ei, reeult of'Hanging."
25. From the eaid PM report,' itiiiefWnot§ clear whether the lips of the deceeeed ggreon were opened or not, any vfractured of hyoid bone was there or not, was there en? oontentgore protruding tongue, patenoy of traohee is not mentioned, what was the condition §f meihqvrghgnue, bgght and left bronchue,'weevthene_anfkoomptéesibn in the region medulla aoblgente end whether alvoli'wae collapsed or patenttnormel),lMEurtheruin reepect of ligature mark, compoeitiong oof;7 ligature, width and umg1tip;§¢ity of"x1igeture found in the body which twee alleged to have been tied at the time of alleged veommittel of euicide by the deceased, the V*weight of the body euepended and the degree of ig_euepeneion; the tightness of encircling ligature, =.:thei length of time, the body was suspended,
--poeition wet .the knot and elipping of ligature 'W xi ".26"
marks during suspension are not forthcoming.
« Theee vital aspects have not been mentioned in the poetic mortem' report by~ the doctor which are required to be mentioned as per the book writtenfl by Dr.Ki$.Narayane'Reddy titled as "Eeeential$l§relK_t Foreneic Medicine and Toxicology" (15th Ednl t;jfi"lfi therefore it creates the doubt_,regerdifig=:the"
correctness of the PM report in the mindp ofp this fiR'~~ Court. However,' this Court proceede"to examine the case" on' the basis of the vdocumente fmedem available to it and records age findings on rival contentions of the partiee and eeeigne ite_reaeone' in support of its conolueione}
26. It ie alleeeo by 'thefl petitioner in, her 18 pagee"'etaj§igme'nf't"'re'¢o1'deo'._'"b'yVthe 1.0 of coo, wherein sfig 'heel eteteolathet} dead body of her husband was not giuen to*her4 eventhough she had requeeteg to. the" geiici. It is further alleged thet"theepoIice;oid not allow her to bury the dead body of her husband as per the prevailing custom '", of their religion, which has been practised by 7_them. xfhexh concerned ' police personnel at Lfiariehaohandra Ghat- Cremetorium have allowed to VV "the dead body of her hueband to burn contrary to My
--._ _..---...-- 4..._. . --\«.----< .....27.....
her desire. The manner in which the petitioner's husband died «when he was in police custody, |V/ ~wv"s:Qmwwe%n«~ehe~apei&eewepeesewna§ have taken defence that it is an attempt to commit .suicide on thee part of the husband of the petitioner, attetfdk registering the 'case againstv deceased. ,d7 whaivi"
further investigation was made by the Mahalakshmiu "'Lnflaqwfi¥w#wt¢4€¢**.
Layout Police or other agencyAis[ not }forthcoming_w _ in this case, despite a ;casei¥was registered against the dead person U/s:3Q9 lo? iIPC,aT "Ne satisfactory explainationi is- offered ain- these proceedings by the resnondents as to"what was the investigation made by the said police and outcome of such investigationi .Thetefore;"it is also one more circumstance; which ¢+a§zé§ suspicion in the mind of this.éodrt against athe dconcerned police personneli of .thef:Policew Station regarding the reasons assiened by them*for the' death of late Nanjunda;_ the petitioner has specifically stated 4 before the C:Q.D. "in her statement as referred to 'above etatino that her husband died due to third deer§éw'methcdsi used by the police when he was in their custody in the above said police station. d"idThe_QvOiD:¢ after investigation of the complaint i"refefred to it by the Learned ACMM U/s.156(3) of 'W .....28.....
Cr.P.C. on ether privatevi complaint of the petitioner, hae filed chargesheet before him in C.C.No.16457/1998 chargeeheeting against the nine police pereonnel on various» offences under the "
provieione of the I.P.C.
Act. The first reepondent in exerciee of "itg*f="
w~r*. #34.
powers has accorded its approval_for5PVosech£ingV the accused police personnel in that caee[*,h.ThieWy_'~A Court keeping in 'view the law 1514 down er the Supreme Court and other High Courte in icetenaihcrfl caeee regarding custodial deaths ane ghe power of thie Court for awarding icompeneatien®tQp@n which reliance ie placed;hy the"petitioner?§ficouneel in the cases referred fie eupra in thie '3ud9ment and having regarc to the un§}g?ggea nglevant facts of. thie case as hagggtéé epoue, thie is a proper band fit "case _ for fiithjeaflVceurt to exercise its extrawordinary jurisdiction for the reason that it tie an undisputed. racti that the death of the ipetitionerie Rhuebano was in the police custody of .the Poiice Station in connection with a criminal 'iV,,caee.crecietered? againet him and another by the igpabove said Roiice Station. The police personnel ijc¥;:that Wolice Station contrary to the well ' eetabliched norms and principlea of law as laid My and Karnataka PoiiceKeRh* .....29.....
down by Supreme Court and other High Courts with regard to the the' treatment given to accused 'ix persons in the police lockupghave very badly and m.
inhumanly treated the deceased persons whentheiwafiell arrested and detained in the lock upsin connection ,; -
with a criminal case registered against th£@{ &ed"'R wgsexser.
chargesheet filed by the C.O.D. in :theV cf1minaif.'*~ ease registered« against the-polioe oersonnel at E the instance of the petitioner3 which bwerei made evilable to this Court} the same mere perused by this Court in detail to tind out es to nhether the 'allegations made py,;ha:§ét1£;§n¢}g ere ltrue and Vcorrect for ithe Eiimited iourbose of finding out whether her husband has been treated ag§@umanfi%ag in the lockun of the oolioe station by the police _' ',..gQ .z¢t[e.9 e,'a{..§»'\f»£&_\t .p¢~i;rfi.'ov\w, 'L/ personnel or _ not,§k 'Further to find out the deceased person died in their custody on account of the illegal and unlemful acts committed by them lunder_ theh guise §%W police power and sovereign immunity;_lQur Country is one of the signatories V",,;o the UNO Qoneehtion of Humar Rights Declaration *l_e¢:, 194a.7t VIf an accused person is arrested and _ kept in the police lockup for investigation of a criminal: case registered against him his M\/ By reading the relevant sepers from théq7 ~30"
fundamental rights guaranteed to him under and '21 of the Constitution of India cannot be deprived as the same will not be euepended by the ground that he/she is an accused person ;in.dai.t WI criminal case and they cannot cladMLecuereignh"
AYt.14- ~State or its agencies including the Police on theV immunity for their illegal and unlawfullimectioneiha In my coneidered view, thie lie a fit caee For '~~ grant of compensation in favour of the petitioner m/ I 'V"}ca'.V§d'rt.S .
and her eon for their livelihood$v$ fl+"ffi""i"?
28. The Apek 'Court} in =the'_caee of Chairman, 'Railway Boardt dandi uothere W Ve M/e .Chandr ima :;1;y»r¢gpo_}teé3_ in _,_'{frr. v'25oo""( 1 ) ac 426 after coneidering 'the dentire flcaee law on the question ae to whether thie Court can exercise ite vpower under érticle 226 Hot! the Cenetitution of India and "grant _the"_relief in a writ petition vunder.firt,22e or,§h¢ Conetitution of indie public 5elew¢remedy'can be granted in favour of the persona who"epfiroech~the High Court'hae held that the writ 'l=V, petition cant be entertained. The Apex Court has held that the law underwent a change by eubeequent u".decieione and it was noticed by the Apex Court ithat"~~even though the petition may relate \w/ 1* 31 * essentially to a contractual matter, it would still be amenable to the writ juriediction of the High Court under Art,226, and-- further held .that the Public law remedies haye also been extended toxj the realm of. tort. The Apex Court in the eaidfliyl judgment at Parae.1O and 11 hae laid down the 11a%Hf° which paragraph$ are extracted Where :undéf,%§rd consideration of this case and to finddont whether L L law laid down in that case applicable to the faotai.
of this caee and that the petitioner *ie* entitled for the reliefs as claimed in this writ petition.
"10. In easee' relating . to custodial deathe and those-relating to medicalg ne9ligenoe}T;thia« Court awarded }eompeneation',under~ Public Law_domaingin'jNILABATIv BEHERA vs. STATE OF ORISSAQJT 1993C23 SC 503(2) m(19e3)2&_scc_«74a~z_1993(2)scR5a1 m «AIR-1993 as 1950; srara or M.P. vs. ;sHY4M*auNpaR T1VEDI_JT 1995(4)ac 445 '$(1995)44SCC.262V*1995(3) $CALE 343:
PEOPLE'S UNION FORv CIVIL LIBERTIE$ V31} UNION OF INDIA JT 1997(2)SC 311 m(1997}3 'SOC 433 m AIR 1997 SC 1203 '"and KAU$HALYA*v$. STATE OF PUNJAB (1996) "?,_$omLE ($9) 13; SUPREME COURT LEGAL AID COMMITTEE vs. STATE H, _OF.BIHAR (1991) 3 SCC 482; DR.JACOB' "_ GEORGE V3. STATE OF KERALA JT ~1994(3) Sc 225 m (1994) 3 scc'43o m 1994(2U SCALE 563: PASCHIM BANGAL KHET}MAZDO0R SAMITY V3. STATE OF WEST BENGAL & ORS. ' JT A1996 SC 'n2426;§ and MR$.MANJU BHATIA V8. N.D.M.C. JT 1997 (5) SC 574 m (1995) 6 SCC 370 m AIR 1998 SC 223e(1997) 4 SCALE 350."
WV
-. _,.. ,. ._.. .. . ...._. A...-«, -__--,.\.~... .. :«.. WW '"11_- Having regard to what has been stated above, then contention that $mt.hanuffa Khatoon should have 'approached the civil court- for damages and the matter -shouldc not have been considered in a petition launder Article 226 of the Constitution, cannot be accepted. a where public functionaries are»».» involved and the matter relates tgfl the violation of Fundamental Rights or the enforcement of public dutiee,fl, the remedy would still be available"5 under the Public Law notwithstanding _ that a suit could be .filed 'for_ damages under Private Law;?' a *l' Keeping in view the law laid down in the 'aforeeaids case, this Court with reference to the undisputed fact of the custodial death lof; the} netitioner"s husband the claim_ of the petitioner tor awarding compensation has to; be flconeideredT and grant an appropriate combensation§i"inh lfavour of the petitioner and her sen, "V 29}_.i The"; Hon'ble lepex Court in another Judgment reperted in 3T'1999(5) 237, in the case of Common Cause; a.§egietered Society ~ Ve ~ Union of _ L $'E«'tt("\fi"'(' India and Ora hae succinetly_laid down the lawkthat vi3lthe Ape%=Ceurt"and this Court in exercise of powers " '5i.uAndé~.aA TA~rtv..:si2 and 226 of the Constitution of India, 1a judicial review is permissible and distinction has hbfbeenlfmade between the public law and private law NV ....33.....
I 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 p 'I/ regard law has been succinctly laid down by »the 5,h Apex Court at paragraphs 64, 78 and 83 which paras of the Judgment are extracted as hereunder=g ' "64. There is, therefore, not :muoh> of a difference between the powers of, 2 the court exercised here_in this~Country' under Articlel n32 or_"226 and .those , exercised in_ England¥ 'for judieialK Review. Public law "remedies" «are ; available in both the countries and then courts can award damages againstr public authorities to compensate for the loss or injury caused to the ,gp1aintiff/ petitioner,.lprovidedrthedcaselinvolves, in this 'country; the ._violation of fundamental tights. byi the "Govt. or other publictautheritiesfiorv that their action 1 was *.whelly=_>arbitrary or 4oppressive'ifi_violatien_of article 14 or in breach of statutory duty and is not a purely'private<matter directed against a private individual}? ~ ' "78,llThe 'entire case law was reviewed; 'by', R.Ma8ahai, j.~ in his illuminating judgment in NKNAGENDRR R90 8271, CO'. V8 . OF" A .P . JT 1994( 5) SC . E72ffiin" which the case of NEELABATI .'vBEHERA.,(supra) was followed and it was * observed; inter alia, as under:
"But there the immunity ends. No eivilised system can permit an executive te 'play with the people of its country ._ and claim that it is entitled to act' in _ x,any'manner as it is lsovereign. ' The '* cencept of public interest has changed 'W w34m 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 ldeprived of hisn property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of State as a ;"d juristic person, propounded in Ninettnth_r.
Century as sound sociological basis for $tate immunity the circle has gone round and the emphasis now is more-on'libertyy.'u equality and the rule of_ law. j Thej» modern social thinking of progressive_' societies and the judicial 'aPDroach3 is"
to do away with archaic State protectionx and place the State or the GoVernment=ata par with any other _3uristic Vlegalj"
entity. Any 'watertight';compartmentali* wsation of the functions of the State as "sovereign andzfz nonssovereign 'or"
"governmental or ,nonwgovernmental" is not sound. It is "contrary to modern ~vJurisprudential thinking} 'The, need-.of the State to have"eytraordinary powers cannot be_.doubted. ref But f,with the coneptualfi change] of statutory power being statutory duty for sake of society and the people the claim of'a common man or ordinary citizen cannot be thrown out »merely because it was done by an officer of the_$tate eUen"though it was against law and \'negligentiy;_ 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 V"g sovereigaity found it place either~ V"because=of the 'financial instability of _" the infant_american States rather than '_ tow "the v stability of the doctrine Atheoretical foundation,' or because of 'logicali and practical ground,' or that 'there could be_ no legal .right as against the State which made the law' i*.gradually gave way to the movement from 'State irresponsibility to State f"responsibility.' In welfare State, 'gfunctions of the' state are not only WV ea-
«.35....
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 land even marital. The demarcating line between sovereign-- and incn~sovereign;< powers for which no rationall basisp» survives,r has largely disappeared. w_»_ Therefore, barring functions such*,asg.V administration of, justice, maintenance="
of law and order and repression of crime etc. which are among rthe: primary iand* inallienable functions .¥"lof'g w a constitutional Government, _the State 2 cannot claim any immunity."
"83. 'Tort' has been *deriued *From_ the Latin word "tortus", which "means?
"twisted" or "crdokedlx In its: original and most generalf sense, "Ttort" is a wrong. JONITT'8 Dictionary, org English law defines Tort as"under5 ','»],"
"Tort signifies*an act, which: gives rise to_.a, right ,of =action,f being a wrongful act or injury consisting in the infringement~W;ofgL_aa 'right' created otherwise than by a contract; Torts are divisible 'into ,three classes according as they consist in the infringement of a jus in.rem£ 9¢_in the breach of a duty imposed 'byfl law_ on ya person towards another person, or in the breach of a duty 'imposed bv"law on a person towards the public«.5 :!The first class includes(a)torts to .V"the*'body* of a person, such as assault, ,'»or.tc,his reputation, such a libel, or 'V,to_", his_; liberty, such as false 'Zimprisonment;(b)torts to reall property, such "as? ouster, trespass, nuisance, Vwaste,¢' 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 h*--infringment of la patent, trade mark, copyright, etc; (d) slander of title;
\lw\/ W36"
(e)deprivation of service and consortium The second' claee includes deceit gndw, negligence 'in the diecharge of'a priate duty. \ l ' The third class includes those caeee in which special damage is caused to an individual 'by the nbreach of a duty to the public." . ' winfield'e classic I definition .d"i"
provides as under=w "Tortioue liability arieee"from the . breach of a duty Primarily fixed by2»the= law; auchc duty is towarde.'peregne_ _"l generally and its breach ie Vredreeekbiev by an action for unliquidated dama9¢$5"Hf"
30. The Apex Court in the ahbyeieaid caeei has further laid down the' law atter considering the caeeawof the Houee cf Lordeireoortad in the caee of ROOKE$ ve. BARNAR§1Ci9e§) at 11?? and other caeee, thekyariouemguideiinee_reduired to be followed for awarding: pecuniary zcomoeneation in favour of the claimants after it ieaeetabliehed that reepondent/ Stateo public Authoritiee have committed a wrongful v;act. _In this redard the Apex Court has succinctly laid »down',tn§, law at paragraphs 126 to 136, the eane_haa baén_ taken into consideration by this V°Court'g in>' this caee for awarding pecuniary ~ffl~compeneation in favour of the petitioner. My 1 ti' Q37"
r31. 'The'Apex Court in the aforesaid Judgmentfiw' has sucoinetly-laid=-down the law regarding the «principles and the criteria required to be followedm,,» by this Court for awarding damages in favour of thee victims and their dependants who wouid approach they g Apex Court and this Court by filing writ petitiohs»T*V claiming damages. In view of the iaw laid"doQniab¥_ the Apek Court in the case referred to supra, this"
Court has considered the relevanti tests 'of "thigh case namely the age of the deeeased husband of the petitioner was 27 years, ade of the petitioner, was 22 years as on the date of death 5f Nanjunda, hie minor son's age was 4 'years; hand dteliowing the guidelines laid degh be the Ape; Cedf£a this Court has proceeded to »§x$miné; thej eiaim and oawarded compensatien¢_TOn'aeeountzofteustedial death of the petitionerfs; hdsband;_ the 'marital --statue of the petitioner at her prime ag§"$f life is lost, she has also lost the eombanionship of her husband and fiehe_hae*tq Jive with"'aV """ stigma of widow in the Soeietya which» 13 a serious social evil in the society throughefit her life time is the reality of Vlife, she has bermanently lost her marital life and »,f statue, .in" addition to these important relevant x'aeeects of life she has also lost her dependency of we 'educational ._ respondent l%accueed persons ....38....
her livelihood and-her young son has also loet hie prospects ~~in addition to a his livelihood." Having regard to the relevant undieputed_ facts cof'"thie case there i$flI\ aboveeaid_ neither social status nor_economic gtatus for fboth_i3.u the petitioner and her son. These important andn relevant aepecte have been taken into ooneideraticn* 7'V by this Court keeping in View the :etatementd'efct_fii Facts as urged in this petition with regard to the.§ income of the deceased pereon, ae he was working as a weaver and was earning Re,1,SOQ/*.to"Re.2,0o0}per month as on the date of hieVdeath;l jhefgneriodical wage revision _would ; have ._been 'taken place considerably in that industry an' account offhfact. M/ '*1/a_u,{.,, £1-3r\{z[g\tg¢5 I.»-K4) are Hm<aCM3t§¢$ucl\Iv~4Lu/fiuf' _revieion of wagee--Cpy the State QovtA_ by ieeuing the notifieatione; if fieLw@f§ to he alive he would have been . earnih§flidm0f€ox than Re.6,OO0/W to Re.7,000/f ae on today and he could have given his $x4th mdnthlyV income _to hie family .for their livelihood and further he would have given good education "to hie eon which has been deprived of on x"accountgof arbitrary and unlawfull action of the treating late ML/ xv' if». .
....'39 ..
Nanjunda inhumanlf 'and on account of 'which undisputedly he< died while he owes in' police custody.-
32. Having regardo to thev age' of_wltheflffli petitioner, deceaeed~Nanjunda andv their séfi;.:$§i' respondents have denied the dependence Mo? htheig Petitioner and her son on account of a%bit:av§'§h§W <e illegal actions of the reepondentewpelice pereennelE'V and othere who are accused pereene in the_ Criminal case referred to eupraflg. Therefore, it would be proper and appropriate for_thielCpurta*t6.Vconeider the relevant materiel»undieputed7facte he naretted ,above and the ouetedie1.deeth off the °petitioner'e husband, petitiener'e eeeiel statue and economical statue as described above, it weuld be proper and appropriate_:.for_'dthied",¢eurt to award full compensation keeminQ.in view the law laid down by the Apefi Court and this Court and otler High Courte 'which_ were? dreferred to eupra in the earlier paraerephefief"thie»Judgment. :33; .. Va:_he Delhi High. Court in the case of ..TVef§Vg:."»THAce..4_.& VHANOTHER - Ve L.T.GOVE~ZRNOR AND OTHERS Vh.: reported in 2000 AC3 109 interpreting Artlzl of the W/ M40"
Constitution_ of "India with regarde to police custodial death where an young man of 22 years' was picked up by police personnel although there was no ~ allegation of hiee involvement in' any criminalo'o acitivity and his body was brought to the hospital 'f,b the next day with 51 injuries, death 1n'§§1ie§"
cuetodY tdmittedy an amount «of ReJS;50.OoOZ;flwae~dV awarded as compensation. e In the eaid case, nfi¢f.f*"
entire=caee law is laid down by the epey Court with.§ reference to Art.21, and_ the ,eame "hae'5 been extensively considered. dlhe releuentibaragrabhe of 'the aforeeaid Judgment atb oatae_!Sg6,and 8 are extracted in this lJudgmeqE"fforffthe geurpoee of proper appreciation of*facte'by this Court to findfl out whether law iaig_ down din "that ocaee can be appliedv to Hithe, tacte def. thie caee and the compensation amount ae claimed by the petitioner can be awardedtl V l u i "figy Such incidents etrike at the very . foundation of 'ru1e of law. Deprivation ,'of life without due proceee of law is »banned'land* barred under Article 21 of the Conetitution. Yet euch incidente "take plaoe; Those who think tht they can deteet_ and eradicate- crime by resorting to crime are in fact etoking w the fire which they want to extinguish. ' The "police can surely interrogate a person accused of an offence, but it _<oannot torture him to extract Axiniormation otherwise tyranny will \lW~/ _ ,. .4. _-,.4 _i V. _.. -_---,.....--.--_--e__m.--, -»_'~.-----~ '.-- ~ v-----<--x~«.~.:,~.>.~.*«'; -:»;»:r:>r"._-':= T -'=' ~' ,.'»J .... we replace law. Despite several judgements by the Apex Court including SAHELI, a women'e Reource Centre V.~ Commieeioner of Policegi Del"hie,r 19901403 345($C) and the High Court, the force is preferred to scientific methode to elicit information. This must stop. The State cannot claim sovereign immunity for the tortioue act of public servants leading""
to violation of Article 21 of the' Constitution. The Supreme Court in the, . path breaking case of D.K.Baeu V. State A of west Bengal JT 1997 (1)" 8C"«1;laid "
down several eafeguarde; for§ zthe' detainees. It also considered the»_:
question of claim in, public 'law for. «compensation --for 'unconetitutionalQ"~ deprivation of fundamental right to lie and liberty. In thie regard, it' was held as followe=. . Wm'*f* ', '"» "Thus to sum up; it is now a well accepted propoeitionr in meet of the jurisdictions; that: monetary or pecuniary ocompeneation ie an appropriate_ and is indeed lv an effective§4and=«eometimes'perhaps the «only ,euitable 'remedy for redreeeal. 'of " the geetabliehed infringement oft the rfundamental right to life cf'a citizen by the ipublic*peervanteaand the State is vicariouely_ liable for their acts; 'The; claim of the citizen is ébaeed' on gthe principle of etrictW liability to which the 1"defence_ofVeovereign immunity is "2 not available and the citizen muetfi receive the amount A of w. compensation from the State, "'_whiohyehall have the right to be . indemnified-by the wrongdoer. In the: aeeeeement of compensation, the_emphaeie has to be on the compeneatory and not on punitive "element. The objective is to l_ apply balm to the wounds and not "; to punish the tranegreeeor or the offender, as awarding appropriate punishment for the offence (irrespective. of compensation) W must be left to the criminal courts in which the offender is prosecuted, which the" State, in law, is\ duty boundi to do.The award _of compensation in the public law jurisdiction is aleo without prejudice to any other action like civil suit for damagee which is lawfully .
available-- to the victim or the 51 heirs of the deceased victim with "
respect to the eame matter for~.}. .theatortioue act committed by thevgi functionaries of the $tate.jThe'A quantum of compeneation"wiil;' of."
couree, depend upon the @eculiar_1d facts of each caee and no' etraitwjacket' formulae can the' evolved in that behalf. 'The' relief to redreee the wrong for-
the eetabliehedzinvaeionu of, the fundamental 'Nrighte;'3'of~ "the citizen, under ;thew*publicj,law 'jurisdiction ,Wie, HjuthU$,"f*ifi additionhv_tof the _ traditional remedies and not in derogation of themi*.Theuamount_of,compeneation »as awahded'by the Court and paid by the $tate to redreee the wrong ,done,*.may; in =a given caee, be gadjueted againet_any amount which 1ma¥'be awarded to the claimant by way.of damagee Inga civil suit." 22¢}. ln_Sudha7Rasheed V.Union of India, 1995*~(1)-"SCALE 77; the Supreme Ceurt~ granted Va compensation of Ra¢2i5o¢ooo/~'*to the relatives of an .',advocate"who had died in police custody. . Thie, court, in Naeiruddin v.$tate, H .Criminal writ No.585 of 1996; decided on =A1a;12;1a97, while relying on the decision 'of the Supreme Court inc D;K;Baeu v. State of west Bengal, JT 1997(2) SC 1,' granted monetary, x comheneation to the father of an accused 'who died in Tihar Jail as a result of = sixteen injuries which were found onhie hereon. In Bhajan Kaur v. Delhi i Administration through the Lt.Governor, WV )9?' ~ 43 we '1996 (38)'*DRJ 203, this court while determining the ecope "and width Article 21 of the Constitution held follows: ' ~ of as ~"Personalc liberty . .is-
fundamental=to the functioning of our democracy. The lofty purpose .of Article 21 would be defeated if thestate does not take adequate measures for eecuring compliance with the same. The State has to control and curb the maleficul propensities of those who threaten ' life and liberty of others. "« It must shape the society so that they , life' and liberty of an individual"
Vie safe .and is given 'supreme_dC importance and value,'; It is for' the State to ensure that. pereoneul live and behave; like, and are treated as human beings.."--article * 21 is a great landmark of.human.
liberty and it Should Eeervet its purpose of 'ensurind" the "human dignity, human survival and Vhuman development;_ ;Thei; State "must strive to give a 1new _vision "and peaceful._ future "to Site people where .jthey*» "can"ap cooperate, coordinateg and coeexist with each other so that full- protection of Article": ,2lV',ie_ .ensured and realised.'.Rrticle'*21 is not a mere " Platitude,'or" dead letter lying " V dormant}.' decomposed, dissipated ando Vinert. It ie {rather~*Aa' pulsating reality ~ throbbing vwith life and spirit of liberty, and it must be made to reach, aout to every individual i"'withinpthe country. It is the _.duty,_end" obligation of the State "to enforce law and obligation of the $tate to enforce law and order uland 'to maintain public order so that the fruits of democracy can be" enjoyed by all sections of the "gsociety irrespective of their xreligion, caste, creed, colour and language. Article, e21 is an \M/ .£"'>J .....
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. 1 article_ 38 g of the Constitution ,also' requires the State .to 'promote welfare of the peope'by securing*' and protecting, as effectively' as,"; it may, a social.order in which ' justicesocial, __ economic,'¢ and* political shalla finFormV",al1 institutions of the national life. These are the goals set' by {the Constitution and _Article "21"and other fundamental rights jare~ the means by whioh*those goals are to be atainedgj Therefore;--it becomes the responsibility and avowed duty of the $tate to ,adopt 'means and methods*.in? order, to realise the cherished_aimsl_'~ '..}The VconductV,ofi';any person or group of Wpersone,' has to -be controlled -by; the State for the Alofty purpose enshrined in Article .&2l of the"Constitution.."
A"7;g One is dismayed 'to find "~that* even though a telegram had .; been sent by the petitioners to
- ';the'7fl.Commiesioner of Police '_ regarding the illegal detention of "Sonu at Police fitation Sarojini Nagar, no action was taken. A timely intervention could have i'rgsaved his life."
W V45» *--."8; sIn lview 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 pickede up- by the police even though there was no allegation of a his involvement in any criminal , activity. It is not the oase_of».f; othe respondents that when*Whem was 4"
arrested he was having injuries on=,~. his person. V No explanation has_"_ been 'rendered for Fifty»one_§A injuries which were found on his' person as a result 'QF%_which_'he*:
died in police custody; It must' also be taken _into oconeiderationi that despite several judgments of the Supreme Court and this 'Court, the state has not abeen_ahle to prevent custodial deaths.' Torture is still_preferred* to gecientitic techniqueewg for gthe «purpose of eliciting information from accused and witnesses.Fqi_ --
34. i_The iDelhiV_Hiohg'Court in the case of Geetha and another referred to supra has considered at Paragraph.e§ the case 5% Sudha Rasheed V. Union got India 1395£l)SCetE 77 wherein the Supreme Court has granted compensation of Rs.7,5O,OO0/M in favour g.of the, relatives of the deceased Advocate victim who died in the police custody. Dealing with the .,l!./ '" [said case; the anew ourt has interpreted Art.21 of u/A '. - N/ lithe nconstitution, the eupoeme Court in Bhajan Kaur V*uv}Delhi Administration through the Lt.Governor, .hV*,A i§§oH (38) DRJ 203 has held that, personal liberty WV
-46..
of an individual who is a citizen of the Country is
-fundamental to the functioning of our democracy, the State rhae to control and curb the maleficg propensities of those who threaten life and liberty td= of others, it must ehape the society eo that{mthejHf* life and liberty of an individual is eafe end le, given supreme importance and_velue and fdrtheruheldd"j that, it ie for the $tate to eneure_ that mpereonegl who live and it must-behave breberlydend'they"mUetfi be treated as human.bein9e,
35. In the latest Jgddment df*the apex Court reported in 2oQo*cRI.L§J.;e69=ifi rhe gage of AJAB SINGH & ANR » we §,§ré;é*QEh<prrAé§ PRADESH & oes where" similar racte filth rederd td cuetodial death of late Riehipal; the $gpreme--Ceurt has considered the. law leid ld¢wfi°[15 tfihe case of D.K,BA8U ~ Vs STATE 0? wasr eENeeLf(i99?"eIR saw 233) referring tc" the fireeert or "enquiry, the Deputy Inepector General (Pr;eone5 in the eaid caee, the Apex Court haeluawerdeddjcombeneation amount of Rs.5 lakhe and Vdirected the -fitate Government to vpay the eemer "' within three months. Further, the Supreme Court in edtherd.seld case directed the State to take M'/-
~47...
disciplinary proceedings against the concerned who were responsible for the death of Rishipal in that' CEi$'8 ..
36. This Court keeping in View the law laid;_Tl.h down by the Apex Court and the observations made inah the said case and other cases referred'otot g§§%a,l'i having regard to the serious allegations made be lW'"n the young widow petitioner in 'this caae,V against .E the police personnel and after going thrgngh the xerox copies of the documented which; are lmade available to this Court, Ii am of the considered view that this is: a fit 'caseVfgfor1«'awarding compensation of»dRsf$D§Cfiue)zlakhs including R311 lakh already awarded_ by xthifiiitodlt by way of' interim relief :by7 an: ofdef dated 27,2.1996. The amount of compensation anatded has to be paid by the State Gouernment within three months from the date of receipt of this order to the petitioner and her sonauho la aged about 10 years. The State Government -shallfaiseue a cheque for a sum of Rs.3 iollakhs in" the_ name ~of the minor son of nthe .hpetitioner;o remaining amount shall be given to the {petitioner} The amount awarded in favour of minor Vll*soflf;shallA be kept in any of the Nationalised Bank \N\\L/ ~48 ..,...,l in a fixed deposit by the petitioner till her 'eon attains the wage of majority~ under_the relevant provision of the Act' The petitioner --ie entitlede to draw the interest amount that would be aocrueing,i; on such fixed deposit amount of her son, the gmogfitif7a ehall he incurred by her for his eduoationelliz purpose, food, clothing and. for ""euoh ;oother%f incidental purboeee in the welfare of her eon}._.."H V37. The petitioner ;haei*aleo flashed' ifor ieeuance of a writ of xmandafiugwjto, the Htiret respondent to take discielinar§ ,aetion; against reepondente 4 andtgfi, it ie meet unfortunate that state Government and_the_Commieeioner.of Polioewthe first and third reeeondent herein though the matter wae referred to COD b?_the\eompetent Jurisdictional criminal oourt for binveetigation against the fourth, _fiftho "respondents and other police nereonnei who are involved in the crime as alleged hy_:thefl petitioner and the COD after conducting investigation hae-Filed charge sheet against nine d"holiceo9ereonnel@ Therefore the above said
-d}reeeondente°ehould have initiated the dieoiplinary 5d*oro¢eedinge against them under the.KCS(CCA) Rules, dx_19$7 read with the provisions of Karnataka Police My ..
'Act and >the 'relevant rulee. " Admittedly 'no dieciplinary action has been taken against them who have been shown ae accused persons in the Crimina1_, case pending before the ACMM without any reason or Wpk rhyme. This inaction of the above said reepondenteltp"
would clearly indicate that the State Government .
and third respondent have been Jprotecting-- item "
'»police personnel ,referred to supra: féom Utheir" R arbitrary and illegal action. ,further,_nopteneb1ewfi explanation is forthcoming from_them in thie_Lcaee as to why dieciplinarya ection wee not initiated against the police personnel _thou§h=\thej Griminel Case has been reaietered ;eeainet<them)under the 1 y' _ _ _y. _ , ysneeuextiac; _..v. , 'x . .
relevant flu$£&1feferred 'to_>eupre;V_which is a mandatory in .... ti§w,f Qbrhefeforeytitfwould be proper and appropriate tor thie Coutt-in the expediency of Justice and Further to see that the rule of' law should prevail' in_ this t$tate, an appropriate directiohhhee ieAgiQen by this Court to 'the first and 'third ,reepondente to take immediate etepe for ;i initiating the dieciplinery proceedings against all Vidthe accueed police pereonnel againet whom criminal " case is regietered before the Addl. CMM, in {:CiCiNo,ie457/1998. The proceedinge L ehall be " finitieted within two weeks from the date of receipt NV ....50.....
of this order by the first and third respondent in accordance with the Relevant Service Rules referred to supra against the accused persons. The respondents 1~3 are further directed to report to:"
this Court the disciplinary action taken by _th¢mTlK.* against the said police personnel who are accused"'K in the criminal case. If they fail,tc,complrl"with.h this direction- the Registry or this Ccurt_has'tofg'*c place this Judgment before the .gontempt Benefit of g this Court afterx obtaining necessary orders from the Hon'ble Chief Justice for ginitiating contempt arproceedings against them.fld For the reaggng and the rindinos "recorded by this Court on {the 'ba§ié};¢r= the' records and' documents made auailaple to it as above and placing reliance upon the fiudgnents of the Apex Court and other High Courts 'féferfed to supra, I pass the following order: V l V "_Th uwrit Petition is allowed. Issue Rule and ' r;made absolute;¥ The following directions are issued i,to'the respondents:
WV .- ,-..-_\_ ...;__,. «..~._.4__..-_._..-i _......_ .,.... _,. » Z-w_fer competing Re.5~1akhe.
...~ 51 ..
(i) a writ of mandamus ie issued to the first reepondentw$tate to pay a sum of Re.5,00;O00/(five lakhe) as compensation to the petitioner and her minor son by name Master Vinod, this amountg includes the interim compensation of Reli51gkfi;H* which is already awarded.
(ii).Out of thie five laklhelfitiwo be given to the petitioner ¥rbm_which one and "half a lakh shall be kept in any Netionalieed bank for a period eof 5 years by her and three lakhe ehall be denoeited in the name of her minor eeh ifi any one of the Nationelieed Benkghli i V
(iii)£:iTheiaamodnt?lo§lyRei1,00,000/ already awardedK by.wayfief interim relief shall be deducted from the amount awefded;in"thie petition. If this one lekh is din ;the fixed deposit as directed by ~.;hie éourt, the betitioner is entitled to draw 'the VHeeme» from vthe_ bank with interest earned on euch amount; "7Relf5QOOO/ already .paid by the State W' Government ,ehou1d not be taken into coneideration V \w/ ~\v¢52'lB~
(iv). The=*petitionern ie at liberty to draw the intereet emount that would be accrued on the »amount that would be deposited in the name of her E minor son and the eame shall be incurred r¢}"*fiie;'»' educational purpose. including food and clothing and for hie welfare.
(V). Further, Reepondente l to 3_ arec hereby directed to take dieciplinerrvaetlon agalnet all the accused police penebnnel;oeentloned din Case No.16457/98 within two _weehe ifyen @the date of receipt of thie order and renortteemnllance of this Judgment to hh;ea_todrt;l5§therwlee,' the contempt proceedings Hehalle be linltietedi against them ae directediin_thie*Judement}l_-
(vile The'$tate"$overnment is further directed :fto_recober_the amount of--~compeneation awarded in Vthie caee from all the accused police personnel who arel résmahéipié" for the custodial death of the Vllpetiti'ener_v'eliueband after "Fixing their liability, * ffen the baele of the_powers and dutiee conferred and d".reduiredn to be discharged by them when the accused '"M_pereone were arrested, and kept in-cuetody' of the "police lockup. This Court has given this direction \nl/ ....,53....
and liberty to the first respondent for recovery of compeneation awarded in favour of the petitioner, 'eventhough some of the policed personnel are 'net parties to these proeeedinga, their liability at "n amount payable towards the compensation _a§$ta§aj'*' ehall have to be fixed by first reepondent[and"tnaA same shall have to be recovered Jfrem' than fgrpaf"
affording an opportunity to them;,dThi§ éénrt need further made it very clear tnatVethed findinge "and"
obeervations made in _thia _Jddgment fer awarding compensation shall net, come ;in"{wthe ,way of "I J. n ,n . at V considering flMd,deciding the Criminal Caee referred to' supra pending; againet~the belipe personnel by the Jurisdictienal Criminal lfiburt at the time of trial and the eame ehall be deeidéd on its merits.
(vii) The,Firet*reefiondent also can consider the claim ot"_thed netitioner for providing any ;feuitab1e jQb.in_an9 of the Departments keeping in Qiew the re1evant_facte as stated in this Judgment. a~1/- JUDGE d"-sk/Bert}