The State Of Maharashtra vs Saheba S/O Gajanan Kale And Anr
2021 Latest Caselaw 11462 Bom

                                              1

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                  CRIMINAL APPLICATION NO.1365 OF 2021
                                   IN
                 CRIMINAL WRIT PETITION NO.363 OF 2008

  The State of Maharashtra                                         - APPLICANT

             VERSUS

  1)       Saheba s/o Gajanan Kale & Anr.                         - RESPONDENTS

                                            *****
  Mr.MM Nerlikar, APP for Applicant-State
                          -----
                                CORAM : SMT.VIBHA KANKANWADI &
                                        M.G.SEWLIKAR,JJ.

DATE : 21st August, 2021.

COURT'S ORDER (PER:- SMT.VIBHA KANKANWADI,J.)

1. Present Criminal Application has been filed

for re-calling of order passed by this Court on 13th

January, 2021 in Criminal Writ Petition No.363 of

2008 and the companion matter. The Judgment was

pronounced by the Division Bench of this Court

(Coram: T.V.Nalawade & M.G.Sewlikar, JJ.) and one of

the Judges (Justice T.V.Nalawade, J.) demitted his

office on 7.3.2021.

2. It will not be out of place to mention here

that the Criminal Application restricts only in so

far as compensation of Rs.5,00,000/- (Rupees five

lacs), which has been directed by this Court to be

paid to legal representatives of deceased Suman.

3. Heard learned APP Mr.Nerlikar for the

applicant-State. It is not even necessary to issue

notice to the respondents for the reasons stated

later on in this order.

4. In nut-shell, one lady by name Suman Kale,

aged about 50, belonging to Pardhi - tribal

community, died while in police custody. Criminal

Writ Petition and the companion matter were relating

to her death. This Court, after hearing all the

persons concerned, including the State, who was well

represented by learned APP, allowed the writ

petitions partly and certain directions were given to

the Trial Court regarding framing of charge and then

after coming to the conclusion that Suman died in the

police custody; though the fact was denied by the

State authority that she died in the police custody,

this Court held that, sufficient material has been

produced to come to the conclusion and thereafter

taking help of the ratio laid down in the case of

D.K.Basu Vs. State of West Bengal - (1997) 1 SCC 416

and Ashok Kondaji Rokade Vs. The State of Maharashtra

and Ors. (Writ Petition No. 1548 of 2016 decided on

26.11.2020 by the Division bench of this Court ),

compensation of Rs.5,00,000/- was awarded to the

legal representatives of deceased Suman in respect of

her death.

5. The applicant-State is now coming with a

case that when the death of Suman was reported,

National Human Rights Commission had taken cognizance

and directed the State Government to pay compensation

of Rs.5,00,000/- to husband of deceased Suman by

order dated 11th June, 2012. The Government had

sanctioned and disbursed the said amount to Gajanan

Haribhau Kale, who is husband of deceased Suman by

cheque. The cheque was handed over to him on

12.12.2013. A copy of the receipt has been produced.

6. Learned APP submits that in view of the said

fact, which was not brought to the notice of this

Court when the judgment was delivered in this case on

13th January, 2021; the said order, directing the

amount of Rs.5,00,000/- to be paid as compensation to

the legal representatives of deceased Suman, needs to

be re-called.

7. It will not be out of place to mention here

that Justice T.V.Nalawade, who was author of the

judgment, has demitted his Office on 7.3.2021. No

application was filed by the State for re-call of the

said order till he was holding the office. Such

action of waiting till demitting the office of a

Judge of this Court, and then file an application for

re-call or review, is required to be deprecated. We

may take help of the decision in the case of Vedanta

Ltd (Formerly known as M/s Sesa Sterlite Ltd) Vs.

The Goa Foundation and Ors. (Review Petition (Civil)

Diary No.18447 of 2020 decided by the Hon'ble Supreme

Court on 9th July, 2021, wherein, it has been

observed, in view of the fact that two of the Hon'ble

Judges of the Supreme Court, who had retired and who

were part of the Bench earlier, and then Review

Petition was filed, thus, -

"2. In accordance with Rule 2 of Order XLVII of the Supreme Court Rules, 2013, an application for review of a judgment has to be filed within thirty days of the date of the judgment or order that is sought to be reviewed. No cogent grounds have been furnished for the delay between 20 and 26 months by

the two parties in filing their applications for review. The judges comprising the two-judge bench in Goa Foundation II, Justices Madan B Lokur and Deepak Gupta, retired from this Court on 30 December 2018 and 6 May 2020, respectively. The State of Goa preferred its four review petitions in the month of November 2019, after Justice Madan B Lokur's retirement, while Vedanta Limited preferred its four review petitions in the month of August 2020, right after Justice Deepak Gupta's retirement. Such practice must be firmly disapproved to preserve the institutional sanctity of the decision making of this Court. The review petitioners were aware of the decision of this Court."

8. Now, as regards the contention, raised

by the State-applicant that since the Human

Rights Commission has directed the State

Government to pay compensation amounting to

Rs.5,00,000/-, which has been paid, the order in

so far as it directs payment of compensation

granted by this Court, should be re-called, we do

not find any justification. The first and

foremost fact is that Writ Petition No.363/2008

was pending since 2008 and thereafter it appears

that another Writ Petition bearing WP No.900 of

2011 was filed in 2011 and third Writ Petition,

being WP No.1658/2015 was also filed. However,

all of them have been considered and disposed of

on 13.1.2021. It was not pointed out, when the

submissions were made on behalf of the parties,

especially the State Government, that any such

compensation was directed to be paid by Human

Rights Commission and accordingly it is paid.

If the State Government had paid that amount in

2013, there was no hurdle for the concerned

Department of the State Government to give

instructions to the learned APP, who was

conducting the case on behalf of the State before

this Court. The said payment cannot be taken as

a subsequent event and when that was paid

earlier; yet without bringing that fact on

record, and when the Government had clear

knowledge that the petitioners are claiming the

compensation, then at least those instructions

ought to have been given and submissions ought to

have been made to that effect. On this count

also, we do not find any merit in the present

application.

9. Even if we try to take the things in

alternative; it can be seen that as per Section

18(3) of Protection of Human Rights Act, 1993;

the Commission has power to make recommendation

for payment of compensation. Now along with this

application, the applicant has not produced a

copy of the order passed by the Commission.

Therefore, we are unable to get as to how the

said amount computed by the Commission. We do not

want to enter into debate as to whether the

Commission has power to make such order or not

since that order has been already implemented by

the applicant-State.

10. This Court, while arriving at the

quantum, has in para 28 of the order, given as

to how it has calculated it. It is stated that

the deceased was aged 50. The multiplier that was

applied was 10 and it was considered or presumed

that the income of the deceased would have been

at least Rs.3,000/- per month. Further, taking

into consideration that amount, it was held that

the amount of compensation only in respect of

loss of income and dependency can be around Rs.

2,50,000/- and thereafter further an amount of

Rs.2,50,000/- was given for the torture and the

harassment of the relatives of the deceased.

Now, taking advantage of the present application,

it can be put in more particular way. It can be

seen that the multiplier that was applied taking

into consideration the age of the deceased, was

not as per the decision in the case of Smt. Sarla

Verma and Ors. Vs. Delhi Transport Corporation

and Anr - (2009) 6 SCC 121. So also the decision

in the case of National Insurance Company Ltd.

Vs. Pranay Sethi and Ors - (2017) 16 SCC 680 and

Kirti and Anr. Etc. Vs. Oriental Insurance

Company Ltd. - (2021) 2 SCC 166, were not

considered. Therefore, we may say that we take an

opportunity to re-calculate it. The best way to

compute compensation where there is no criterion

laid down is, that it should be equivalent to or

the procedure that is adopted while computing the

compensation in any Motor Accident claim. The

incident had taken place in the year 2007 when

the notional income in any case under the Motor

accident claim was taken at Rs.6,000/- per month.

However, taking into consideration the fact that

the deceased might be the house-wife, it can be

taken at Rs.4,500/- per month. Further, in view

of the decisions in the cases of Pranay Sethi and

Kirti and Anr. (supra), 15% of the said amount is

required to be added towards future income. It

comes to Rs.6,75,000/-. Therefore, the income

would be Rs.5,175/- per month and yearly it would

be Rs.62,100/-. Even if we deduct 1/3rd for the

personal expenses, i.e. Rs.20,700/-, the

dependency would be at Rs.41,400/-. Here we

would like to say that we are unable to get as to

how many legal representatives were left by

deceased Suman and, therefore, we are deducting

1/3rd. Further, taking into consideration the

age of the deceased, i.e. 50 years, and the

decision in the case of Sarla Verma (supra), the

multiplier would be 13 and, therefore, loss of

income would be to the tune of Rs.5,38,200/-.

This Court had not earlier quantified the amount

towards love and affection and the harassment

specifically; but it was in lump sum given and,

therefore, taking into consideration the facts

and circumstances, which are specifically

narrated and the agonies that the legal

representatives of the deceased have undergone,

then amount of Rs.2,00,000/- can be awarded

towards loss of love and affection as also

consortium and further amount of Rs.3,00,000/-

towards the harassment. In D.K.Basu (supra) it

has been observed in respect of the custodial

torture in para Nos.10 and 11 as follows, -

"Torture' of a human being by another human being is essentially an instrument to impose the will of the 'strong' over the 'weak' by suffering. The word `torture' today has become synonymous with the darker side of human civilisation. In all custodial crimes that is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma a person experiences is beyond the purview of law. "Custodial torture" is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual

personality. IT is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward-flag of humanity must on each such occasion fly half-mast."

                   .           ........................

                   .    "Custodial death is perhaps one of

the worst crimes in a civilised society governed by the Rule of Law. The rights inherent in Articles 21 and 22(1) of the Constitution required to be jealously and scrupulously protected. The expression "life or personal liberty" in Article 21 includes the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. The precious right guaranteed by Article 21 cannot be denied to convicts, under-trials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. It cannot be said that a citizen `sheds off' his fundamental right to life the moment a policeman arrests him. Nor can it be said that the right to life of a citizen can be put in `abeyance' on his arrest. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchy. No civilised nation can permit that to happen."

Why we want to give more amount under the head

'torture' is that deceased Suman was illegally

picked up on 12.5.2007 from her residence at

12.30 pm. She was illegally detained in the

places like Kotwali police station; LCB office,

situated in the building of office of District

Superintendent of Police, Ahmednagar; Government

Rest House, Jamkhed, Tehsil Jamkhed and also in

Deepak Hospital, Ahmednagar, till 16.5.2007.

Suman died in Deepak Hospital on 16.5.2007. On

the basis of these allegations, the relevant

circumstances were quoted by this Court in its

earlier judgment and even how the Chemical

Analyser's report needs to be discarded, has been

elaborated. Suman was not suffering from any

diseases. She was active in social life and the

cause of death, of which opinion was sought from

three doctors of JJ Hospital, Mumbai dated

19.1.2009 was, - "Septic shock with pneumonia and

Pancreatitis in case of poisoning (the most

likely poison being organophosphorous compound),

associated with multiple contusions as a

contributor factor". Further, in respect of head

injury and injury to brain, those doctors had

given an opinion that those injuries are

unnatural and non-accidental. Under those

circumstances, this Court opined that the police

officers, in order to screen themselves, had

created the evidence and, therefore, though the

charge-sheet did not disclose further charges

under different offences; yet this Court given a

word of caution to the Trial Court for

consideration of framing charge for the offences

punishable under Sections 302, 201 read with 120B

of IPC. When this brutality is said to have been

committed, it requires more compensation to be

awarded for the harassment undergone. Further,

it is to be noted that there was no such evidence

produced before this Court to show that the

deceased was a hardened criminal and further this

kind of treatment is given to the deceased who

was a lady.

11. Therefore, it was the bounden duty of

this Court, dealing with the petitions under

Article 226 of the Constitution of India, to

grant compensation in the matter. Accordingly,

this Court has awarded it. Thus, as per the fresh

computation given in aforesaid Para No.10, it

would come to around Rs.10,38,200/-, even if we

deduct the amount granted by the Human Rights

Commission. Under that circumstance, the amount,

which has been awarded by this Court, would be in

addition to the amount ordered by the Human

Rights Commission.

12. We do not find any reason to re-call the

order sought for. Under such circumstance, the

Criminal Application stands dismissed.

           (M.G.SEWLIKAR)                         (SMT.VIBHA KANKANWADI)
               JUDGE                                      JUDGE


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