Smt. Sonabai S. Waghade vs State Of Maharashtra And Ors.
2006 Latest Caselaw 329 Bom

JUDGMENT

J.N. Patel, J.

1. Heard Shri Kakde, learned Counsel for the petitioner and Shri Jaiswal, learned APP for the respondents.

2. The petitioner has approached this Court invoking its extraordlnary jurisdiction under Articles 226 and 227 of Constitution of India, seeking a relief in the nature of writ or direction, that this Court should order an inquiry into the mailer of death of her son viz., Pandurang 3/0 Shivram Waghade, in the District Prison, Wardha and further direct Respondents No. 3 & 4 to register offences against the police personnel working in the Police Station, Ashti, District-Wardha and District Prison, Wardha, for causing arrest of her son and torturing him in custody as a result of which he died. The petitioner has also claimed a sum of Rs. Five lakhs by way of compensation for herself and her two grand sons who are minor.

3. It is the case of the petitioner that her son Pandurang came to be arrested by Police Station, Ashti, District-Wardha on 15,5.2002 and beaten by the police personnel mercilessly and ruthlessly at the time of his arrest and in the police station. On 23.5.2002 he was sent to District Prison, Wardha, where also he was tortured and beaten mercilessly. The petitioner's son was also exploited for the purposes of doing practice for the ensuing games of the police personnel. It is in the aforesaid circumstances that the petitioner's son died in District Prison, Wardha. It is the case of the petitioner that after the unnatural death of her son in the custody, the petitioner was called and her signature was obtained on blank paper and was assured that she will be paid compensation in the sum of Rs. 25,000/- which shall be paid after inquiry into the cause of death of her son is completed.

4. Time and again, the petitioner has added to her pleadings, additional affidavits and affidavits of persons, who were acquainted with the arrest, custody and death of her son. In reply to the petition, the respondents have initially filed return on affidavit of Shri S.J, Shinde, (Jailor Grade I) District Prison, Wardha. It is the case of the respondents that the petitioner's son was admitted to prison as an under-trial prisoner No. 1712 on 23.05.2002 in connection with a Special Case No. 14 of 1999 pending on the file of 2nd Additional Sessions Judge, Wardha, for an offence punishable under Section 3(1)(X) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989. At the time of admission, the prisoner was medically examined by Medical Officer Shri S. S. Gavali who found no Injury or that the deceased was suffering from any aliment. They have accepted that along with the deceased Wasudeo Ramji Sonone was also admitted at the District Prison, Wardha, in the same crime. It is not disputed that the deceased Pandurang was remanded to judicial custody and sent to District Prison, Wardha, but it is specifically denied that he was beaten by the jail authorities in the jail at the instance of police personnel at Ashti Police Station. It is the case of the respondents that the undertrial prisoner Pandurang was produced before the Sessions Court at Wardha on 3.6.2002 and also on 4,6.2002 but he did not make any complaint against the jail authorities nor co-accused Sudhakar and Wasudeo made any complaint as regards any ill-treatment. The co-accused Wasudeo was released by the Court on bail and therefore on the night of 4.6.2002, he was not in prison. It is specifically denied that the petitioner has met her son at the Court at Wardha and that he has complained to her about ill- treatment by the jail authorities because of which he has developed pain in his chest and stomach or that due to, fear Pandurang did not make any complaint to the Court. The allegations made by the petitioner that her son was mercilessly beaten by the Ashti Police and ill-treated and suffered torture at the hands of jail authorities is denied.

5. It is the case of the respondents that on 5.6.2002, the jail authorities found that the petitioner's son was serious and hence he was taken in a cycle rickshaw to General Hospital at Wardha, of which due intimation was given to the petitioner and while he was examined at the General Hospital by the Chief Medical Officer, he certified that he was brought dead to the hospital. Accordingly, Post mortem was conducted and the cause of death which was given by the Medical Officer, who conducted post mortem, clearly stated that the petitioner's son died due to "Coronary Artery disease" and that the cause of death is natural.

6. It is also the case of the respondents that the Magisterial Inquiry was conducted by Shri Ajay Ghulane, Sub-Divisional Magistrate, Wardha, in which the petitioner was also examined and her allegations that the deceased Pandurang was beaten in police custody and so also in Jail is not found to be justified and it is not corroborated by the post mortem report and therefore, it cannot be said that the death of prisoner was result of any torture in custody so as to mean custodial death. Therefore, in the facts and circumstances of the case, the death of undertrial prisoner Pandurang was natural. The petitioner is not entitled to any compensation.

7. Shri Kakde, learned Counsel for the petitioner submits that if the Court examines the Magisterial Inquiry Report and the communication made by the jail authorities by sending a wireless massage to the National Human Rights Commission, New Delhi and all concerned, one thing is obvious that in spite of petitioner's son complaining to jail authorities that he is having pain in chest, no timely and proper medical attention was paid to the prisoner. The concerned Doctor who was supposed to attend the prisoner did not go to the jail on the said day nor he was traceable. Secondly, it is contended that the jail authorities delayed in taking the petitioner's son to the General Hospital, Wardha, and for want of timely medical attention, the petitioner's son died in the jail itself as when he was taken to general Hospital, Wardha, he was declared dead before admission.

8. Shri Kakde, learned Counsel for the petitioner therefore, submitted that though the petitioner has made specific allegations that her son was tortured in police custody as well as in jail, except for her affidavit in support of contention, there is no material on record and therefore it is obligatory on the part of the respondent to explain the cause of his death and failure on their part to give prompt medical treatment to his son which could have saved his life. It is submitted that the respondents have suppressed material record from this Court particularly the record relating to the medical treatment given to the petitioner's son in jail. On the other hand, they have come up with a case that the petitioner's son was not suffering from any ailment. In the post mortem report, it has come on record that he was suffering from heart disease and on the fateful day, he died due to massive heart attack. It is submitted that failure on the part of jail authorities in giving proper medical treatment to the petitioner's son by itself is sufficient to saddle them with the liability to pay compensation to the petitioner for the loss of her son due to sheer negligence on the part of the jail authorities in providing the petitioner's son proper medical treatment.

9. Shri Kakde, learned Counsel for the petitioner further submitted that the Court can very well appreciate the position of the petitioner and her helplessness in having access to the record and seeking justice and she being an illiterate lady, true facts have not been revealed and she is only assured of compensation and mislead by officials. Shri Kakde submitted that the petitioner's son was agricultural labourer and on an average he used to earn Rs. 150-200 per day and after his death in custody, the prisoner's mother and minor children have lost sole bread earner of the family and therefore this Court should grant appropriate compensation to the petitioner by directing the State to pay the same along with cost.

10. Shri Jaiswal, learned Additional Public Prosecutor, appearing on behalf of the respondents-State and its officials has raised a preliminary issue as regards maintainability of the petition on the ground of delay and laches. It is the contention of Shri Jaiswal that the petitioner has approached this Court two years after the death of her son with a cooked up case that the petitioner's son was tortured in the custody both at police station and in jail which has not been found to be true in the Magisterial Inquiry conducted immediately after the death of the prisoner was reported and even the medical evidence in the form of post mortem report negates the contention of the petitioner and this Court should not entertain the petition which is made on false and vexatious grounds merely to exploit the situation and enrich herself just because her son died a natural death in prison. It is submitted that the State has not conducted itself in any negligent manner so as to deprive the petitioner's son proper medical attention. The jail authorities have promptly acted and prisoner was immediately rushed to Hospital but unfortunately he died in the General Hospital, Wardha and therefore, the petition deserves to be dismissed.

11. In our view, so far as facts are concerned, it is not disputed that the petitioner's son was arrested in the case by Ashti Police Station and remanded to magisterial custody in Special Case No. 14 of 1999 for having committed the offence punishable under Section 3(1)(X) of Atrocities Act, apart from other offences under Indian Penal Code and was an undertrial prisoner along with co-accused and till he died in the General Hospital, Wardha, he was in the custody of the jail authorities. The key issue which is required to be examined in the case is whether the petitioner is entitled for compensation on the ground of death of her son in the custody.

12. The petitioner's case is that her son died due to custodial torture and negligence on the part of authorities in giving him medical treatment, whereas according to the respondents, the petitioner's son suffered massive heart attack and before he could be provided with medical treatment, he died a natural death because of suffering massive heart attack and the cause of death is natural i.e. Coronary Artery Disease,

13. Insofar as the contention of respondents State that petition deserves to be dismissed on the ground of delay and laches is concerned, we find that this cannot be accepted as a ground for dismissing the petition as in the affidavit filed on behalf of the State which is sworn by the Under Secretary to the Government of Maharashtra, it is specifically contended that as per guidelines, the matter is referred to the National Human Rights Commission and the National Human Rights Commissioner is seized of the matter and the National Human Rights Commission so far did not find any fault with the prison administration. If the State is coming with such a stand, we do not find any reason as to why this Court should dislodge the petitioner from claiming compensation by invoking extra ordinary jurisdiction of this Court as she did not receive any compensation in spite of waiting for two years though she has been assured of it at the time when the Magisterial Inquiry was in the progress.

14. In order to find out whether the petitioner's son is a victim of custodial torture or negligence on the part of officials of the respondents - State, we have thoroughly gone through the record and proceedings of the Magisterial Inquiry and we find from the Magisterial Inquiry and particularly after going through the statement of co-prisoners that the petitioner's son had complained to the jail authorities as regards pain in chest and that he was not keeping well. He was visiting jail hospital since 2-3 days before he died on 5.6.2002. On 5.6.2002, he had been to the Jail Hospital in the morning and he was given some tablets. He came to the barracks and slept there but his health condition deteriorated and he started breathing heavily on which the co-prisoners informed the jail authorities on which he was taken to jail hospital on his complaining that he is having pain in his chest and subsequently they came to know that he was taken to General Hospital, Wardha, where he expired. In the statement of Head Constable Arun Gawande, Buckle No. 307, Police Station Wardha, who probably accompanied the prisoner while he was taken in a cycle rickshaw escorted by him and the clerk of the Jail, when the prisoner Pandurang was put in cycle rickshaw for carrying him to hospital, there was no movement and his eyes were closed. When he was taken out of the rickshaw for taking inside the General Hospital, he was not making any movements and therefore he along with one Chalkate and Waghmare lifted him and took him in the hospital and placed him on the bed and the medical officer after examining him declared him as dead.

15. The respondents do not dispute the fact that at the relevant time, Dr. Gavali was on leave and one Dr. Nagrale was on duty. At the time when prisoner Pandurang complained of pain in his right chest, the prison authority tried to contact Doctor Nagrale but were told that he has not come to the Jail hospital. When they tried to contact Dr. Nagrale, it was not possible to get him on line and were informed by the General Hospital that they will inform Doctor Nagrale. Though repeated messages were sent to Dr. Nagrale, he could not be contacted. In the meantime, the prison authorities received message from Circle that the undertrial prisoner was serious and it is thereafter that he was removed in a cycle rickshaw to General Hospital at Wardha. Dr. Suman Bodile, who attended the patient in the General Hospital has also stated in the Magisterial Inquiry that when the prisoner was brought in the hospital, she examined the prisoner and he was dead before being brought to the hospital and at that time i.e. on 5.6.2002 at 10.55 AM when he was brought to the hospital there was no relative accompanying him. Therefore, she reported the matter to the Civil Surgeon, Police Station for taking further action in the matter.

16. Before accepting what is found in the Magisterial Inquiry, we have no hesitation to arrive at a conclusion that the petitioner's son undertrial prisoner Pandurang may not have died due to custodial torture but definitely he is a victim of negligence on the part of jail authorities in giving him medical treatment in spite of the fact that 2-3 days prior to the incident, he has been complaining of chest pain and no proper medical attention was given to the prisoner. Even on the fateful day, on complaint of chest pain he was merely given some tablets in the prison dispensary and sent to the barrack. It is only when his health deteriorated and in all probability the prisoner died in the jail that he was removed to the General Hospital, Wardha.

17. Taking into consideration the post mortem report, we are satisfied that the death of undertrial prisoner Pandurang was natural and he died due to the Coronary Artery Disease but for want of necessary medical attention while he was an undertrial prisoner and in the custody of jail authorities i.e. the State.

18. In the aforesaid facts and circumstances, we find that the petitioner is entitled for being compensated for untimely death of her son undertrial prisoner Pandurang due to gross negligence on the part of the jail authorities in providing proper medical treatment in spite of his repeatedly complaining to the jail authorities that he is suffering from chest pain. The treatment given to undertrial prisoner Pandurang was casual in nature though it was given to him from 2-3 days prior to the day he suffered massive heart attack and passed away. It is really unfortunate that undertrial prisoner should be left to die for want of medical attention particularly when he is in the custody of State.

19. Right to life enshrined in Article 21 of Constitution of Indian has been liberally interpreted so as to mean something more than mere survival and mere existence or animal existence. It therefore includes all those aspects of life which go to make a man's life meaningful, complete and worth living.

20. In Nilabati Behera v. State of Orissa reported at , the Supreme Court has observed that "a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from and in addition to the remedy in private law for damages for the tort resulting from the contravention of the fundamental right."

21. The Supreme Court in its decision rendered in the case of Parmanand Katara v. Union of India reported at , while referring to a medico-legal case observed that right to medical care is also one of facets of right to life. The Supreme Court in the said case has specifically clarified that preservation of life is of paramount importance. Once life is lost, status quo ante cannot be restored. It is the duty of the doctors to preserve life whether the concerned person be a criminal or an innocent person. Article 21 casts on the State an obligation to preserve life. The court has made the following pithy observation in this connection:

A doctor at the government hospital positioned to meet this State obligation is, therefore, duty bound to extend medical assistance for preserving life. Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore give way ....

The Court has also observed:

Article 21 of the Constitution casts an obligation on the State to preserve life. The patient whether he be an innocent or be criminal liable to punishment under the laws of the society, it is the responsibility of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to be tantamount to be legal punishment. Every doctor whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life.

22. The present case with which we are dealing is an example of how the authorities of the State and particularly in the District Prison at Wardha have dealt with the case of the petitioner's son, who was craving for medical treatment - he being confined in prison, and failure of the jail authorities to provide timely medical treatment to the prisoner was in clear breach of his right to life guaranteed by Article 21 of Constitution of India. The petitioner's son whose autopsy report clearly indicates a critical state of heart problem which needed immediate medical attention, the jail authorities not only neglected to attend to the medical problem which he complained of but on the other hand on his admission, the jail doctor certified him to be in physically fit condition in which is our view was merely a formality complied to meet the requirement of law and Prison Rules. If the medical officer posted at Jail had attended to the complaint of the undertrial prisoner - Pandurang, there is no reason why he could not have detected the complaint of chesi. pain made by the undertrial prisoner as a symptom relating to heart ailment which deserved immediate medical attention. On the other hand, what we find is that not only he was denied treatment when he needed immediate medical attention but in all probability moved him to General Hospital, Wardha, when he was already dead.

23. It is now well accepted on the basis of various decisions that the Constitution envisages establishment of a welfare state, and in a welfare state, the primary duty of the Government is to provide adequate medical facilities for the people. The Government discharges this obligation by running hospitals and health centres to provide medical care to those who need them. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. Since the undertrial prisoner Pandurang's right under Article 21 was denied by the officials of the District Prison, including the Medical Officer attached to it, the State is liable to pay him compensation for breach of life guaranteed under Article 21 and as the undertrial prisoner Pandurang died while in custody of the State, his dependents viz., his minor children will be entitled for compensation. In so far as petitioner's mother is concerned, it has come on record that she is aged 85 years and there are other sons to take care of her but in so far as children of the deceased are concerned, they were solely dependent on him and rather they have become orphans as they have already lost their mother 12 years ago.

24. On the point of compensation, there is no challenge to the fact that the petitioner's son was earning Rs. 150-200 per day as an agricultural labourer. Even considering that the petitioner's son may not be gainfully employed round the year, in our view a sum of Rs. 1,50,000/-(Rs. One Lakh fifty thousand only) by way of compensation would be just and reasonable as this is the minimum compensation payable to the victim in the case of fatal accident under Motor Vehicles Act, even if he has no source of income.

25. We, therefore, direct the State to pay the sum of Rs. 1,50,000/- (One lakh fifty thousand only) to the petitioner's two grand children i.e. children of deceased undertrial prisoner Pandurang by depositing the same in this Court within a period of four weeks from the date of passing of this judgment with cost which we quantify at Rs. 5,000/-(Rs. Five thousand only).

26. It will be open for the State to recover the amount from the officials who are ultimately found responsible for not providing proper medical treatment to the undertrial prisoner Pandurang, which resulted in his death while he was in the jail, after holding necessary inquiry in the matter.

27. On depositing the compensation and cost, the Registrar (Administration) of this Court would transfer the amount to the District and Sessions Judge, Wardha, with a direction to invest, the amount in the nearest Post Office where they are residing in Post Office Monthly Income Deposit Scheme in the name of two children of deceased Pandurang for the minimum period provided under the Scheme which shall be renewed for one more term and the monthly interest received out of that shall be spent on the welfare of the children i.e. food, clothing and education. After completion of second term i.e. after the period of 10 years, two children of Pandurang will be entitled to withdraw the amount and share it equally after making an application to the District and Sessions Judge, Wardha. Rule is made absolute in aforesaid terms.