Delhi High Court
Kamla Devi And Another vs Govt. Of National Capital Territory Of ... on 11 October, 1999
Equivalent citations: 2000IIIAD(DELHI)474, 2000CRILJ4867, 84(2000)DLT348, 2000(53)DRJ101
Author: R.S. Sodhi
Bench: R.S. Sodhi
ORDER Anil Dev Singh, J.
1. This is a writ petition whereby the petitioners pray that suitable monetary compensation be awarded in favour of the first petitioner for the custodial death of her son Madan Lal. The facts giving rise to this petition are briefly stated as follows :-
2. Madan Lal, who was 21 years of age, was staying at Pandav Nagar, New Delhi, with the first petitioner, his mother. On November 29,1993 at about 9.00 A.M. three police constables, namely: Suresh Kumar, Devinder Singh and Surinder Singh came to his house while he was away. They enquired about him from his mother. His mother, the first petitioner, told them that he had gone out to ease himself. One of the constables searched the house. While leaving, the constables told the first petitioner that Madan Lal should be informed that the police was looking for him in connection with the investigation of a theft case and they would be waiting for him in the street. After some time when Madan Lal came to his house, the first petitioner informed him that the police had come looking for him. Thereafter, Madan Lal left for the house of his sister Gora Devi who lived nearby. After a few minutes Gora Devi, the sister of the deceased came to the first petitioner and told her that the police had taken away Madan Lal. She also stated that she had seen them beating him up. The first petitioner went to the Police Station Patel Nagar thrice, but was told that Madan Lal was not being detained by them. The first petitioner, however, learnt that Madan Lal was beaten to death in police custody but until the evening of November 29, 1993 Madan Lal's family did not know that he had died. On November 29, 1993 at about 7.00 P.M., the residents of the locality protested and set ablaze an alleged local hafta collection centre' of the police. On November 30, 1993 at about 11.30 A.M. autopsy of the deed body of Madan Lal was conducted by a Board of Doctors comprising of Dr. L.K. Barua and Dr. L.T. Ramani. The post mortem did not show any external injuries on the body. It was, however, opined that the death was due to poisoning. At the same time the report of the Central Forensic Science Laboratory showed that death was not due to consumption of common poison. On November 30, 1993, at about noon, the dead body of Madan Lal was cremated. The matter was suo motu taken up by the National Human Rights Commission. It appointed Shri R.C. Chopra, Additional Sessions Judge, Delhi, to investigate the matter and to submit a report. Accordingly, Shri R.C. Chopra held a detailed enquiry with the assistance of Shri Harbans Lal Maniktala, ACP (Narcotics). On April 22, 1994 Shri R.C. Chopra submitted a detailed and incisive report with regard to the incident of the death of Madan Lal. According to the report, Madan Lal's death was not due to poisoning, as suggested by the doctors, but was probably on account of injuries on his private parts. The learned Additional Sessions Judge on the basis of the facts and circumstances appearing in the enquiry, came to the conclusion that the deceased Madan Lal, died in Police custody at Police Station Patel Nagar due to a forceful blow on his private parts. The learned Additional Sessions Judge while absolving the S.H.O., Police Station Patel Nagar, held ASI Chaman Lal and three police constables, namely, Suresh Kumar, Devinder Singh and Surinder Singh, responsible for the death of Madan Lal. Learned Additional Sessions Judge was also of the opinion that not only were they responsible for the death of Madan Lal but they also appeared to have committed offences under sections 167/192193/201/203/340/304/341 read with section 120-B IPC. Besides the aforesaid enquiry, inquest proceedings were held by Mrs. D. Mukherjee, Sub-Divisional Magistrate, Patel Nagar. According to the inquest report there was a strong suspicion of Madan Lal's death resulting from foul play.
3. We have heard learned counsel for the parties.
4. Both the inquest report and the report of the learned Additional Sessions Judge record that Madan Lal was picked up by the police at about 9 A.M. on November 29, 1993. This position was admitted by the three constables, namely: Suresh Kumar, Devinder Singh and Surinder Singh, during the enquiry and the inquest proceedings. In this regard the inquest report states as follows :-
".... It is an incontrovertible and admitted fact that Sh. Madan Lal s/o Sohan Lal was picked up at about 9 a.m. for interrogation regarding involvement in a dacoity case. His presence at the Patel Nagar, Police Station in the morning at about 9.30 a.m. is established by the statements of his mother and sister as well as the three constables and ASI Chaman Lal.":
5. It is significant that within a short time after the deceased was picked up by the constables he died. His dead body was brought to the DDU. Hospital around 11.00 A.M. or 11.50 A.M. The learned Additional Sessions Judge after holding a detailed enquiry, as already seen, held ASI Chaman Lal and constables Suresh Kumar, Devinder Singh and Surinder Singh, responsible for the custodial death of Madan Lal. The statements recorded before the learned Additional Sessions Judge were suggestive of the fact that Madan Lal died in police custody at Police Station Patel Nagar due to a forceful blow on his private parts, since there was bleeding from the penis of the deceased. Besides, excretion of faecal matter was also noticed. At this stage it will be appropriate to refer to certain paragraphs of the report of the learned Additional Sessions Judge :-
".... According to A.W. 30 the constable ordered him to drive his scooter towards wrong side and made him take a U-turn from the red light of Satyam Cinema from where they went to DDU Hospital via Kirti Nagar. They reached DDU Hospital at about 11 a.m. The scooter was stopped at the gate of Emergency/Casualty and the sweeper brought a stretcher from inside. They put that body on the stretcher and took it inside Emergency. All the three came out of the hospital after about 5 minutes. When they had gone inside A.W. 30 also went inside the hospital to see the condition of that person. At that time he saw that some one was asking the constables as to from where they had brought that body to which the constables were replying that they had brought that man from the foot path opposite Shadipur Depot....."
xx xx xx "... A.W. 30 dropped them outside P.S. Patel Nagar when constable Davinder told him that he should not talk about this incident and in case he told this episode to anybody they would kill him. This witness explained his mental condition by saying that he had always cursed himself for helping the police as he came to know by the evening that Madan Lal of Pandav Nagar had been killed by the police in Police Station and realised that he had been taken to DDU Hospital in his scooter that morning. He also explained that he was confused as to whether he should narrate this incident to any body or not but after some day he told some of his friends at the scooter stand that the police had used his scooter for carrying the body of Madan Lal to Hospital. He was afraid of the police but his conscience always was cursing him.
21. The statements of the witnesses discussed above and the statement of A.W. 30 Hira Lal have left no room for doubt that on 29.11.93 after Madan Lal deceased had been brought to P.S. Patel Nagar he never came out alive as suggested by A.Ws. 2, 3, 9 and the police officials and in fact he had died in the custody of police at P.S. Patel Nagar, itself and the police constable Davinder Kumar, a sweeper and one another constable had removed Madan Lal deceased to DDU Hospital in the three wheeler scooter of A.W. 30. The time of death was not given in post mortem report. A.W. 1 Dr. Sumit Singh has deposed that Madan Lal had died 30-40 minutes before his arrival in DDU Hospital which means that at 10.20 a.m. or 10.30 a.m. the deceased Madan Lal had expired when he was in Police Station Patel Nagar itself. The entire story of Madan Lal having been found near the railway track and his removal to DDU Hospital by A.W. 2 was cooked up to establish that Madan Lal had left the police station within about 5 minutes of his arrival there and the police was not to be blamed for his death. The testimony of A.W. 30 establishes that in fact the police constables along with one sweeper of P.S. Patel Nagar had removed Madan Lal deceased to DDU Hospital and got him admitted there. This conclusion is further fortified by the writing encircled X in A.W. 27/B prepared under the signatures of the SDM. In this document which was prepared by the SDM and was sent to CFSL along with viscera and blood samples of the deceased, the facts of the case were mentioned as under :-
"Brief facts of the case are that on 29.11.93 one Madan Lal s/o Sh. Sohan Lal R/o B-114, Pandav Nagar was brought by police and found admitted in DDU Hospital as brought dead."
The aforesaid writing also demolishes the story that Harbhajan Singh and one Naresh Kumar had taken the deceased Madan Lal to DDU Hospital and supports the statement of A.W. 30 that in fact the police had brought Madan Lal to DDU Hospital and admitted him there as brought dead."
xx xx xx "23. The statement of A.W. 1 Dr. Sumit Singh shows that the deceased had died about 30-40 minutes prior to his examination by Dr. Sumit Singh at about 11 a.m. which means that the deceased had died between 10.20 to 10.3 a.m. This statement read with the statement of A.W. 30 Hira Lal clearly shows that the deceased Madan Lal had died in the police station itself and for that reason only he was being dragged out and was dumped in the three wheeler scooter of A.W. 30 in the space where the passengers keep their feet and after dumping him the two constables and the sweeper had kept their feet upon him so as to avoid being seen by any body. If the deceased Madan Lal had not already died such an inhuman treatment could not have been given to him and he would have been handled like a patient and not like a dead body...."
xx xx xx "..... It is not unusual that the privates parts of a dead body are some times not closely and minutely observed and as such a possibility remains that the injuries on the private parts of the deceased were not carefully observed by the SDM. A.W.14 Sunder Dass a neighbour of the deceased when examined by me had stated that some blood was there on the penis of the deceased. A.W. 15 Jagdish a brother-in-law of the deceased also stated that some blood was there on the penis of the deceased and the penis had been tied with string. A.W. 14 when examined on 2.12.93 by Inspector Ved Prabhakar of CID Crime had also stated that blood was coming out of the penis of deceased Madan Lal. A photo copy of this statement is A.W. 14/A. This statement was made by him at a very initial stage of investigations and within three days only of the death of the deceased. These statements of the witnesses suggest a strong possibility that the deceased Madan Lal was hit on his private parts forcefully as a result of which he collapsed in the Police Station itself and then he was removed to DDU Hospital. A.W. 19 Dr. L.K. Barua in answer to question by me admitted that if some one is hit upon his testicles and penis with force he may die and added that in that case there will be some bruise or contusion on that part and there will be blood clot against the contused area. He also admitted that if a strong blow is given the blood may come from penis. He also stated that the faecal matter may also come out if such a blow is given. The presence of faecal matter when the body of Madan Lal deceased was being dragged out of the police station as stated by A.W. 30 could be on account of such an inquiry (injury). A.W. 19 admitted that the rectum of the deceased was not opened and examined. He also admitted that in the post mortem report the condition of the testicles and the penis of the deceased had not been mentioned. It is not at all understandable as to why these aspects were not taken care of when the Doctors knew that in this case the allegations of death in police custody were there.
31. Why Dr. L.T. Ramani did not permit the photographer A.W. 18 Om Parkash to take photographs of the dead body in the Mortuary. It is also not understandable. A.W. 18 was not a photographer who had been engaged by any private party. He had been brought to the mortuary by A.W. 28 Sh. P.C. Chaturvedi SDM for the purpose of taking photographs of the body of the deceased. The Doctor ought to have allowed him to take the photographs under the supervision of the SDM and then those photographs should have been handed over to the SDM to be attached with inquest proceedings. To the contrary Dr. Ramani himself used the camera of A.W. 18 and retained the negatives as well as photographs and he produced the same before me when summoned as a witness. Dr. L.T. Ramani produced 19 photographs but after taking the negatives from him Sh. Harbans Lal ACP got the film exposed and some more photographs became available.
32. The aforesaid facts and circumstance clearly indicate that the death of the deceased Madan Lal in this case was not due to poisoning as suggested by the Doctors but was probably on account of some injury on his private parts. The post mortem examination which is conducted primarily with the object of clearing all doubts and finding out the real cause of death created confusion only. Even the time since death was not mentioned in post mortem report.
33. The statements of some of the family members of the deceased that some blue marks were present on the body of the deceased could have been discarded in view of the medical evidence but there is one circumstance on record which gives some credence to these statements. The said circumstance is that it has come on record in the testimony of A.W. 6 Mohan Lal brother of the deceased that at the mortuary some portions of the body of deceased Madan Lal were encircled with ink for photographs as some bluish marks were there. Not only A.W. 6 but A.W. 9 Daya Nand also, who is found to be supporting the police, admitted in his statement dt. 8.3.94 recorded by me that he was there putting ink marks on the body of deceased Madan Lal at the mortuary. He could not say as to why he was putting ink marks on the body of the deceased Madan Lal but the statement of A.W. 6 Mohan Lal shows that these ink marks were put around the portions of the body which were slightly blue. Again the fact that Dr. L.T. Ramani did not allow A.W. 18 Om Parkash photographer to takes the photographs and himself took photographs makes the thinks more confusing as a professional photographer could have produced more clear photographs. Under the circumstances and in view of the statements of the witnesses examined during investigations I am of the opinion that the deceased Madan Lal died in police custody at P.S. Patel Nagar itself due to some forceful blow on his private parts.
xx xx xx "
6. Thus, as per the enquiry report Madan Lal died in police custody in suspicious circumstances. In reply to the writ petition it is not denied that Madan Lal died in police custody. It is also not claimed that he died due to natural causes. In the circumstances, therefore, we have no manner of doubt that it is a case of custodial death.
7. In Nilabati Behera (Smt.) alias Lalita Behara (through the Supreme Court Legal Aid Committee) Vs. State of Orissa and others, , the Supreme Court held that the award of compensation in proceedings under Article 32 before the Supreme Court or under Article 226 before the High Court is a remedy available in public law based on strict liability for contravention of fundamental rights. It was, therefore, held that the award of damages by the Supreme Court or the High Court in writ proceedings is distinct to and in additional to the remedies in private law. The same view has been reiterated in D.K. Basu Vs. State of West Bengal, . In this decision the Supreme Court held that monetary or pecuniary compensation is an appropriate and indeed and effective and some times perhaps the only suitable remedy for redressal of the infringements of the established fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. It was pointed out that "the claim of the citizen is based on the principle of strict liability to which the defense of sovereign immunity is not available and the citizen must receive the compensation from the State, which shall have the right to be indemnified by the wrong doer." Therefore, the stand of the State that neither damages can be awarded nor the extent thereof determined by the High Court sitting in writ jurisdiction and the petitioners should be relegated to the remedy provided under civil law does not hold good. In Rudul Shah Vs. State of Bihar and another, , it was held that one of the telling ways in which the violation of Article 21 can reasonably by prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Similarly, this principle of award of compensation will apply with greater force when the life of a person is extinguished in violation of Article 21 of the Constitution. In such a case the person having already died the only relief which can be given is by directing payment of monetary compensation to his family for violation of his fundamental right to life. If such a direction is not given in a writ for enforcement of Article 21 of the Constitution, the right to life and liberty will be denuded of its significant content. The right to receive compensation by the parents, wife and children of a victim, whose life is snuffed out in custody due to unlawful act of a functionary of the State must be held to emanate from Article 21 of the Constitution. The High Court in writ jurisdiction can pass an order for payment of money to the relatives of the deceased as a natural consequence flowing from illegal deprivation of the fundamental right to life and liberty of a person. In Shyama Devi and others Vs. National Capital Territory of Delhi and others, 1999 (49) D.R.J. (DB) 86, Nasiruddin Vs. State and others, Criminal Writ Petition No. 585/96, decided on December 16, 1997, and Smt. Geeta and another Vs. Lt. Governor and others, CWP No. 3188/97 decided on September 18, 1998, similar view was taken by this Court.
8. In People's Union for Civil Liberties Vs. Union of India and another, , it was held that the award of compensation in public law jurisdiction is without prejudice to any other action like civil suit for damages which is lawfully available to the victim or his/her heirs with respect to the tortuous act committed by the functionaries of the State. Therefore, the victim and his family are not only entitled to file a civil suit for compensation for the tortious act of a functionary of the State infringing Article 21 of the Constitution but they are equally entitled to invoke Article 226 or Article 32 of the Constitution for monetary relief. A contractual remedy or any other special remedy cannot be in derogation of the jurisdiction of the court under Article 226 of the Constitution. In Lawyer's Forum for Human Rights, Calcutta Vs. State of West Bengal and others, 1997 (1) Calcutta Weekly Notes (101) 604, the Calcutta High Court in its writ jurisdiction directed the State to pay compensation to both the widows of the victim who died in custody of the police even though the Human Rights Commission had granted interim compensation of Rs. 25,000/- to the next of the kin of the deceased. Mere fact that the Human Rights Commission had already granted an interim compensation of Rs. 25,000/- did not deter the Calcutta High Court from awarding the compensation of Rs. 1 lakh in the writ jurisdiction. Therefore, the fact that the National Human Rights Commission, in the instant case, has already directed payment of Rs. 50,000/- as interim compensation to the mother of the deceased cannot affect the jurisdiction of this Court to award compensatory relief to her.
9. In Ganga Devi and others Vs. Commissioner of Police and others, , this Court while dealing with the question of payment of compensation to the heirs of the deceased victim, held as follows:-
".....At this stage it is not relevant to dilate on the question as to who administered the beating as criminal cases may be pending against various police officials and others. What is significant is that a man has lost his life in custody. Right to life is a very precious one and is constitutionally guaranteed in our country under Article 21 of the Constitution of India. In fact Article 21 of the Constitution outlaws and bans torture, degrading and inhuman treatment in Jail custody.
International Covenant on Civil and Political Rights of 1966 also recognises the right as inherent right to life. According to Article 7 of the said covenant no person can be subjected to torture or inhumane and degrading treatment or punishment.
On mere suspicion of being involved in a criminal case Jagan Nath was taken into custody. He did not deserve the treatment meted out to him. For no fault he has been snatched away from the family who have now to suffer the unending nightmares of torture and misery. In the circumstances of the case we are of the opinion that the family of the deceased must be given adequate compensation."
10. Use of third degree methods by the police, for extracting information from a suspect for working out a crime, amounts to negation of Article 21 of the Constitution. Article 21 bans the taking away of the life and liberty of an individual except in accordance with law. It is obligatory on the State and its functionaries to respect and protect life and liberty of an individual. The protectors cannot be allowed to become predators. Police is meant to enforce the law and not violate the same in the garb of bringing the culprits to book. It cannot be allowed to adopt extra legal methods in aid of investigation. Assault on body of a suspect by the functionaries of the State amounts to mounting an attack on the constitutionally guaranteed right to life. A comparison between a criminal and a policeman committing brutality will end where the latter violates the law of the land and tramples upon the human rights of a citizen. While no one can deny that interrogation is a necessary mechanism for solving a crime, the use of force against a suspect can not be permitted as a part of the interrogation. Sections 330 and 331 of the Indian Penal Code provide punishment for subjecting a person to torture for extracting information. These provisions are clear indicators of the fact that brutality in extracting confession or any information which may lead to the detection of an offence cannot be tolerated. The futility of using third degree methods is evident from the fact that over the years there has been a steep rise in the criminal activities. It must be understood that where an innocent person is tortured by the law enforcing agencies, he loses faith in the administration of justice. A citizen acquires disdain for law. It is a myth to suppose that crime can be solved if the police subjects the suspects to force. Interrogation on scientific lines can be more effective than subjecting & person to torture. By using third degree methods the police gets the information or statement from the person who suffers its brutality according to its liking. By adopting such methods an investigator cannot arrive at the truth of the matter.
11. Article 21 is the back bone of the constitutional system of this country. Any violation of Article 21 by a functionary of the State must be viewed seriously otherwise Article 21 of the Constitution will be rendered nugatory and the people will cease to have confidence in the system. The only effective remedy against infringement of the fundamental right to life and liberty of a victim by the functionary of the State is to hold the State vicariously liable and to direct the State to pay compensation.
12. It must be noted that when a suspect is subjected to third degree methods in a police station there would be no witnesses to the incident. This being the position there would be hardly any justification for delaying the grant of compensatory or ex gratia payment in a writ petition to the near relatives of a victim on the ground of the pendency of a criminal trial against the police personnel or the pendency of a civil suit against them and the State for seeking compensation. When a person dies in police custody and the dead body bears tell tale marks of violence or the circumstances are such that indicate foul play, the court acting under Article 226 of the Constitution will be justified in granting monetary relief to the relatives of the victim, who cannot be made to wait for months and years till culmination of criminal and civil proceedings. At least their immediate material needs must be taken care of expeditiously after the bread winner of the family dies due to custodial violence. In such a situation the affected family is entitled to invoke the extraordinary writ jurisdiction for a quicker and efficacious relief.
13. In the circumstances, therefore, we consider it just and appropriate to direct the Govt. of National Capital Territory of Delhi to make payment of Rs. 2 lakh to the first petitioner as compensation within four weeks. We order accordingly. The aforesaid amount shall be over and above the one which has been awarded by the National Human Rights Commission.
14. It is further clarified that the award of the above relief to the first petitioner by us in public law jurisdiction shall be without prejudice to any other action which may be lawfully available to the first petitioner. The aforesaid amount shall be liable to be adjusted against any amount which may be awarded to the first petitioner by way of damages in a private law remedy. Any observations made hereinabove shall not affect the decision of the courts in other proceedings arising from the registration of the FIR against ASI Chaman Lal and constables Suresh Kumar, Devinder Singh and Surinder Singh. They will be free to arrive at their own conclusion on the evidence which may come before them during the course of the proceedings. It will be open to the State to recover the above said amount from the persons who-are ultimately held responsible for the death of Madan Lal.
15. The petition is disposed off.