Orissa High Court
Radhakanta Majhi And Others vs State Of Orissa And Others on 21 August, 2014
Equivalent citations: AIR 2014 ORISSA 206, (2015) 3 ACC 502, (2015) 146 ALLINDCAS 561 (ORI), (2014) 2 ORISSA LR 769, (2014) 118 CUT LT 719, (2015) 2 ACJ 1171
Author: Amitava Roy
Bench: Amitava Roy
ORISSA HIGH COURT: CUTTACK
WRIT PETITION (CIVIL) No. 11979 of 2004
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Radhakanta Majhi and others ......... Petitioners
-versus-
State of Orissa and others ......... Opp.Parties
For petitioners : M/s. D.P.Dhal, B.B.Mishra, S.K.Tripathy &
A.Tripathy
For Opp.Parties: Mr.R.K.Mohapatra, Govt. Advocate
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE SHRI AMITAVA ROY
AND
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing & Judgment: 21.08.2014
Amitava Roy, C.J. The instant petition seeks to invoke the extra-ordinary
jurisdiction of this Court for grant of compensation for the custodial
death of Dhaneswar Pradhan, son of petitioner nos.3 and 4 while lodged
in Nayagarh Jail in connection with Ranpur P.S. Case No.136/2004
under Section 376, I.P.C.
2. We have heard Mr. D.P. Dhal, learned counsel for the
petitioners and Mr. R.K. Mohapatra, learned Government Advocate for
opposite party.
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3. The facts, in brief, necessary for present adjudication, are
that the deceased arrested in the above case, while in custody,
contacted high fever in the evening of 06.10.2004 and eventually after
going into delirium, collapsed on 08.10.2004. The sensational incident
received wide coverage in local media. Be that as it may, U.D. Case
No.26 of 2004 was registered on this episode. Parallelly, a Magisterial
enquiry was also ordered to unearth the correct state of affairs. The
Sub Divisional Magistrate, Nayagarh after conducting a fact finding
enquiry, submitted his report on 11.10.2004 in which he recorded his
conclusion as herein below:
"From my enquiry as well as from the statements recorded
as per enclosures separately attached, it leads to believe
that there was slackness on the part of the Jail
Administration and above all the negligence on the part of
Pharmacist as well as Jail Medical Officer was the cause of
death of the U.T.P. The matter was taken very casually
without having any due care and personal attention. As the
matter has been reported to the I.I.C. Nayagarh P.S. and
Inquest as well as Post mortem has already been made on
08.10.2004, the exact cause of death is awaited."
4. A perusal of the said report, clearly indicates that medical treatment that ought to have been administered to the deceased, was not provided resulting in his untimely death. According to the inquiry officer, the statement of the attending doctor revealed that though the deteriorating health condition was brought to the knowledge of the Pharmacist, at 12.30 P.M of that fateful day, he was casual in the matter and did not attach the required importance thus demonstrating callous and negligent attitude. Be that as it may, in the above factual backdrop of the matter, the instant petition has been filed seeking 3 appropriate writ or direction for conduct of an enquiry into the incident by the C.B.I. and also to compute and release adequate amount of compensation for the death of the young son of the petitioner Nos.3 and 4.
5. In the counter affidavits filed by opposite party nos.3 and 5, neither the factum of the illness of the deceased nor the death of the detenu while in judicial custody has been denied. In substance, the stand of the aforementioned opposite party is that after he complained of fever accompanied by vomiting, as per the advice of the jail Medical Officer and Pharmacist, he was given proper medical attention. For the said reason, his blood sample was also collected to investigate as to whether it contained Malaria Parasite, but the investigation could not be pursued as it was late in the evening. According to them, as the condition of the detenu deteriorated after midnight whereafter he was rushed to District Headquarter Hospital, Nayagarh where he was declared dead. They denied of any torture or assault on the deceased. According to them, the viscera that was sent for forensic examination also did not disclose that he consumed poison or toxic food resulting in his death.
6. Mr. Dhal has argued that as the facts unmistakably reveal that the son of petitioner Nos.3 and 4 had died an unnatural death while in judicial custody, they are entitled to adequate compensation. Learned counsel for the petitioners has not insisted for direction to the C.B.I. for enquiry into the incident.
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7. Mr. R.K. Mohapatra, learned Government Advocate in reply while reiterating the pleaded stand of opposite party has also referred to the opinion of the State Forensic Science Laboratory, Rasulgarh at Bhubaneswar that the death of Dhaneswar Pradhan had been caused due to natural disease process most likely due to Malaria. He however submitted that there being absence of any torture or assault or deliberate poisoning on the deceased, no criminal liability can be attached to the Jail authorities.
8. Upon hearing learned counsel for the parties and on consideration of the pleaded facts and documents on record and more particularly the detailed enquiry report submitted by the Sub-Divisional Magistrate, we are of the considered opinion that the death of Dhaneswar Pradhan while in judicial custody had been due to callousness and negligence on the part of the jail authorities, more particularly, the attending doctor. True it is, that the enquiry did not disclose any sign or mark of assault on him and the report of Forensic Science Laboratory, Bhubaneswar also did not indicate death due to poisoning, but it cannot be concluded that the death of Dhaneswar Pradhan had been natural. It is more than apparent that at the relevant point of time, the deceased had high fever calling for necessary medical attention, which the jail authorities failed to provide. Having regard to the purport and expanse of Article 21 of the Constitution of India, there cannot be any manner of doubt that the deceased, though a detenu, was entitled to be provided with due care and attention during his 5 illness. As the same was not provided to him resulting in his death, we are constrained to hold that the State Government is vicariously liable for the custodial death of the son of petitioner nos.3 and 4, resulting in violation of the fundamental right to life to pay adequate compensation.
9. In course of arguments, on a query being made by us, it has been submitted at the Bar that at the time of death of Dhaneswar Pradhan he was aged about 20 years. Learned counsel for the petitioners has submitted that at the relevant time he did earn his livelihood being engaged as labourer. His family comprises of old ailing parents who were depending on the deceased for their sustenance. The untimely death of Dhaneswar Pradhan definitely has caused a serious setback in their lives apart from mental agony and sufferings consequent upon such tragedy.
10. Compensation in a writ proceeding can never be a substitute for loss of life and normally is by way of palliative and token in the nature. This, by no means, as has been held by the apex Court in a catena of decisions, is a bar for a person to pursue his other remedies available in law. The amount of compensation is only on a public law remedy for violation of Article 21 of the Constitution of India.
11. Be that as it may, on a cumulative consideration of all factors, we are of the considered opinion that on a modest estimate, the petitioner Nos.3 and 4 are entitled to an amount of Rs.3,00,000/- (Rupees three lakhs) by way of compensation payable by the State and 6 its functionaries within a period of four weeks herefrom. Ordered accordingly.
12. As because the case is of the year 2004 and a decade has passed in between, we request Mr. R.K. Mohapatra, learned Government Advocate to take cognizance of this order and move the State machinery for early release of the amount of compensation. A copy of this judgment and order also be furnished to Mr. R.K. Mohapatra, learned Government Advocate so as to enable him to follow up the process.
13. The petition is allowed in the above terms.
.......................................... Amitava Roy, C.J.
................................
Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 21st August, 2014/PKSahoo