Bombay High Court
Sanjeevani Begya Pawar And Others vs The State Of Maharashtra And ... on 23 February, 2021
Bench: T.V. Nalawade, M. G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 422 OF 2013
1. Smt. Sanjeevani wd/o Begya Pawar
age 24 years, occ. Nil
R/o Vadhona, Tq. Sengaon
Dist. Hingoli
2. Kalabai w/o Nainu Pawar
age 50 years, occ. Household
r/o Vadhona, Tq. Sengaon
Dist.Hingoli
3. Nainu s/o Faislya Pawar
age 60 years, occ. Agril.,
R/o Vadhona, Tq. Sengaon
Dist. Hingoli Petitioners
Versus
1. The State of Maharashtra
Through Secretary
Home Department,
Mantralaya, Mumbai 32.
2. The District Collector, Hingoli
Dist. Hingoli
3. The Police Station, Risod
Tq. Risod, Dist. Washim
4. The Deputy Superintendent of Police
C.I.D. Branch, Washim
Dist. Washim
5. Prakash s/o Hiralal Taram
age 44 years, occ. Service as
Police Head Constable B.No. 335
R/o Police Station, Risod
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Dist. Washim
6. Panjab s/o Manikrao Patkar
age 42 years, occ. Service as
Police Constable B.No. 382
r/o Police Station, Risod
Dist. Washim
7. Nagorao S/o Bhagwanrao Khandke
age 41 years, occ. Service as
Police Constable B.No.819
R/o Police Station Risod
Dist. Washim
8. Shivaji Namdeo Khillari
age 43 years, occ. Service as
Driver Police Constable B.No. 365
R/o Police Station Risod
Dist. Washim
9. Vasant Kaniram Jadhav
age 40 years, occ. Service as
Naik Police Constable B.No. 627
R/o Police Station Risod,
Dist. Washim
10. Madhav Manikrao Dhande
age 45 years, occ. Service as
Police Inspector
r/o Police Station Risod
Dist. Washim
11. Ashok Nivruti Vaidya
age 43 years, occ. Service as
Police Head Constable B.No. 343
R/o Police Station Risod
Dist. Washim
12. Madan Keshav Pawar
age 42 years, occ. Service as
Police Constable B.No. 1173
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r/o Police Station Risod
Dist. Washim
13. Ramesh Sitaram Pawar
age 41 years, occ. Service as
Police Constable B.No 1145
R/o Police Station Risod
Dist. Washim Respondents
Mr. P.N. Kalani, Advocate for the petitioners.
Mr. G.O, Wattamwar, APP for respondent Nos. 1 to 4.
Mr. H.V. Patil, Advocate for respondent Nos. 5 to 13.
CORAM : T.V. Nalawade &
M.G. Sewlikar, JJ.
RESERVED ON : 3rd February, 2021
PRONOUNCED ON : 23rd February, 2021
JUDGMENT : ( Per M.G. Sewlikar, J.)
1. By this petition, petitioners are claiming ex-gratia
compensation for the custodial death of deceased Begya Pawar.
Factual matrix in nutshell is as under :-
The deceased Begya Pawar was the husband of petitioner
No. 1 and son of petitioners No. 2 and 3. Petitioners have alleged
that on 09.05.2011, respondent No. 10 - Police Inspector of police
station, Risod, went to the house of the deceased. Respondent No. 10
was accompanied by respondents No. 5 to 9 and 11 to 13. All of
them forcefully dragged the deceased Begya Pawar from his house
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and also picked up one Raju Pawar from his feld. Both Begya Pawar
and Raju Pawar were subjected to merciless beating by respondents
No. 5 to 13 to obtain confession from them. The deceased Begya
Pawar sustained 44 injuries in the custodial torture inficted by
respondents No. 5 to 13. On 10.05.2011 in the morning, Begya
Pawar died due to the injuries inficted by respondents No. 5 to 13.
He was declared dead on arrival in the hospital.
2. It is further alleged that on the very day, respondent No.
10 registered Crime No. 88/2011 against deceased Begya Pawar and
Raju Pawar. The allegations in the said First Information Report were
that both Begya Pawar and Raju Pawar were in preparation of
committing dacoity and, on the same day, AD No. 17/2011 came to be
registered on account of custodial death of Begya Pawar.
3. In the autopsy conducted on the dead body of Begya
Pawar on 11.05.2011, 44 injuries were noticed by the Medical Offcer.
The cause of death was shock and haemorrhage following multiple
contusions all over body with multiple fractures.
4. On 12.05.2011, petitioner No. 3 i.e. the father of deceased
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Begya Pawar lodged a complaint alleging therein that Begya Pawar
was brutally killed by respondents No. 5 to 10. This complaint was
lodged with the Deputy Superintendent of Police, Washim on the
basis of which, Crime No. 108/2011 came to be registered with Police
Station, Washim.
5. The said Crime No. 108/2011 was investigated into by
Anwar Mehboob Shaikh, the Deputy Superintendent of Police. In the
investigation, it transpired that Begya Pawar died due to the custodial
torture inficted by respondents No.5 to 13. Accordingly, charge-sheet
also came to be fled. It is not in dispute that the deceased Begya
Pawar was picked up from Hingoli. The petitioners are claiming
compensation to the tune of Rs. 25,00,000/- on account of death of
Begya Pawar due to custodial torture.
6. Heard Shri Kalani, learned counsel for the petitioners,
Shri Wattamwar, learned APP for respondents No. 1 to 4 and Shri
H.V. Patil, learned counsel for respondents No. 5 to 13.
7. Learned counsel Shri Kalani submitted that Begya Pawar
was picked up from his residence at Hingoli and he was detained by
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respondents No. 5 to 13. He submitted that after the death of Begya
Pawar, Crime No. 88/2011 came to be registered mysteriously and
deceased Begya Pawar and one Raju Pawar were shown to be arrested
in that crime. He further submitted that B summary in that crime
was fled by Washim police station in respect of another accused Raju
Pawar. The said B Summary was sanctioned by the learned Judicial
Magistrate First Class having jurisdiction. He argued that this shows
that just to cover up the death of Begya Pawar, Crime No. 88/2011
came to be registered. He further submitted that upon the complaint
of petitioner No. 3, the father of deceased Begya Pawar, Crime No.
108/2011 came to be registered in which charge-sheet has been fled
against respondents No. 5 to 13 under Section 302 of Indian Penal
Code and other sections for custodial death of the deceased Begya
Pawar on account of torture inficted by respondents No.5 to 13.
8. Learned APP Shri Nerlikar submitted that the
Department of Social Welfare has paid the petitioners an amount of
Rs. 1,50,000/- in lumpsum and, petitioners have been paid
Rs.1,000/- per month during the period from 01.06.2011 to
31.12.2013 and Rs. 3,000/- per month from 01.01.2014 till further
orders. According to him, the total amount of compensation received
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by the petitioners is more than Rs. 4,35,000/-.
9. Shri Patil, learned counsel for respondents No. 5 to 13
submitted that the conviction is still not recorded and, therefore, at
this stage, it cannot be said that respondents No. 5 to 13 were
responsible for the death of the deceased Begya Pawar. Therefore,
respondents No. 5 to 13, at this stage, cannot be fastened with
liability of paying compensation.
10. It is not in dispute that autopsy was conducted on
11.05.2011 between 10.00 hours to 13.00 hours. Inquest
panchanama was drawn on 10.05.2011 between 16.45 hours to 17.10
hours. The dead body was brought by Washim police station. The
deceased Begya Pawar had 44 injuries on his body and the cause of
death was shock and haemorrhage following multiple contusions all
over body with multiple fractures.
11. The investigation conducted by Anwar Mehboob Shaikh,
the Deputy Superintendent of Police shows that the deceased died on
account of the custodial torture. Charge-sheet has also been
presented against respondents No. 5 to 13. Therefore, necessary
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concomitant of these events is that the deceased died due to
custodial torture. The attempt of respondents No. 5 to 13 to show
that the deceased was apprehended in Crime No. 88/2011 did not
yield any result due to the subsequent event i.e. fling of B summary
report in respect of another accused Raju Pawar.
12. Now the question that falls for consideration is whether
the petitioners are entitled to the compensation. This issue is no
more res integra. In the case of Nilabti Behera Alias Lauta Behera
Vs. State of Orissa reported in 1993 AIR (SC) 1960, it has been held
as under :-
16 It follows 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 an
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. The
defence of sovereign immunity being
inapplicable, and alien to the concept of
guarantee of fundamental rights, there can be no
question of such a defence being available in the
constitutional remedy. It is this principle which
justifes award of monetary compensation for
contravention of fundamental rights guaranteed
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by the Constitution, when that is the only
practicable mode of redress available for the
contravention made by the State or its servants
in the purported exercise of their powers, and
enforcement of the fundamental right is claimed
by resort to the remedy in public law under the
Constitution by recourse to Arts. 32 and 226 of
the Constitution. This is what was indicated in
Rudul Sah (AIR 1983 SC 1086) and is the basis
of the subsequent decisions in which
compensation was awarded under Arts. 32 and
226 of the Constitution, for contravention of
fundamental rights.
17. A useful discussion on this topic which
brings out the distinction between the remedy in
public law based on strict liability for violation of
a fundamental right enabling award of
compensation, to which the defence of sovereign
immunity is inapplicable, and the private law
remedy, wherein vicarious liability in the State in
tort may arise is to be found in Ratanlal &
Dhirajlal's Law of Torts, 22nd Edition, 1992 by
Justice G.P. Singh, at pages 44 to 48.
18. This view fnds support from the
decisions of this Court in the Bhagalpur blinding
cases : Khatri (II) v. State of Bihar (1981) 1 SCC
627 : (AIR 1981 SC 928) and Khatri (IV) v. State
of Bihar (1981) 2 SCC 493: (AIR 1981 SC 1068),
wherein it was said that the court is not helpless
to grant relief in a case of violation of the right to
life and personal liberty, and it should be
prepared 'to forge new tools and devise new
remedies' for the purpose of vindicating these
precious fundamental rights. It was also
indicated that the procedure suitable in the facts
of the case must be adopted for conducting the
inquiry, needed to ascertain the necessary facts,
for granting the relief, as the available mode of
redress, for enforcement of the guaranteed
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fundamental rights. More recently in Union
Carbide Corporation v. Union of India (1991) 4
SCC 584 : (AIR 1992 SC 248), Misra, C.J. stated
that 'we have to develop our own law and if we
fnd that it is necessary to construct a new
principle of liability to deal with an unusual
situation which has arisen and which is likely to
arise in future.........., there is no reason why we
should hesitate to evolve such principle of
liability........'. To the same effect are the
observations of Venkatachaliah, J. (as he then
was), who rendered the leading judgment in the
Bhopal gas case, with regard to the court's power
to grant relief.
19. We respectfully concur with the view that
the court is not helpless and the wide powers
given to this Court by Art. 32, which itself is a
fundamental right, imposes a constitutional
obligation on this Court to forge such new tools,
which may be necessary for doing complete
justice and enforcing the fundamental rights
guaranteed in the Constitution, which enables
the award of monetary compensation in
appropriate cases, where that is the only mode of
redress available. The power available to this
Court under Art. 142 is also an enabling
provision in this behalf. The contrary view would
not merely render the court powerless and the
constitutional guarantee a mirage, but may, in
certain situations, be an incentive to extinguish
life, if for the extreme contravention the court is
powerless to grant any relief against the State,
except by punishment of the wrongdoer for the
resulting offence, and recovery of damages under
private law, by the ordinary process. If the
guarantee that deprivation of life and personal
liberty cannot be made except in accordance with
law is to be real, the enforcement of the right in
case of every contravention must also be possible
in the constitutional scheme, the mode of redress
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being that which is appropriate in the fats of
each case. This remedy in public law has to be
more readily available when invoked by the
havenots, who are not possessed of the
wherewithal for enforcement of their rights in
private law, even though its exercise is to be
tempered by judicial restraint to avoid
circumvention of private law remedies were more
appropriate.
13. This issue again came up for consideration before the
Honourable Apex Court in the case of D.K. Basu Vs. State of West
Bengal reported in AIR 1997 Supreme Court 610(1) wherein it has
been held thus :-
55. Thus, to sum up, it is now a well accepted
proposition in most of the jurisdiction, that
monetary or pecuniary compensation is an
appropriate and indeed an effective and
sometimes perhaps the only suitable remedy for
redressal of the established infringement of the
fundamental right to life of a citizen by the public
servants and the Sate is vicariously liable for
their acts. The claim of the citizen is based on
the principle of strict liability to which the
defence of sovereign immunity is not available
and the citizen must receive the amount of
compensation from the State, which shall have
the right to be idemnifed by the wrong doer. In
the assessment of compensation, the emphasis
has to be on the compensatory and not on
punitive element. The objective is to apply balm
to the wounds and not to punish the transgressor
or the offender, as awarding appropriate
punishment for the offence (irrespective of
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compensation) must be left to the Criminal
Courts in which the offender is prosecuted, which
the State in law, is duly bound to do. The award
of compensation in the public law jurisdiction is
also without prejudice to any other action like
civil suit for damages which is lawfully available
to the victim or the heirs of the deceased victim
with respect to the same matter for the tortious
act committed by the functionaries of the State.
The quantum of compensation will, of course,
depend upon the peculiar facts of each case and
no strait-jacket formula can be evolved in that
behalf. The relief to redress the wrong for the
established invasion of the fundamental rights of
the citizens, under the public law jurisdiction is,
thus, in addition to the traditional remedies and
not in derogation of them. The amount of
compensation as awarded by the Court and paid
by the State to redress the wrong done, may in a
given case, be adjusted against any amount
which may be awarded to the claimant by way of
damages in a civil suit.
14. The factual matrix narrated above clearly indicates that
the action of respondents No. 5 to 13 was in clear violation of Article
21 of the Constitution of India. Article 21 provides that no person
shall be deprived of his life and personal liberty without due process
of law. In the case at hand, the deceased Begya Pawar was arrested
in blatant violation of the provisions of Article 21 of the Constitution
of India. Therefore, his fundamental right to life and personal liberty
was taken away without due process of law. The subsequent event
shows that B summary was fled and it was sanctioned by the
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Magistrate having jurisdiction. This clearly shows that the
petitioners are entitled to compensation.
15. Admittedly, the deceased was 18 years of age at the time
of the incident. Post Mortem report shows the age of the deceased as
18 years. Income of the deceased is not on record. Therefore,
notional income of Rs. 4,000/- per month can be considered for
calculating the amount of compensation. After deducting 1/4th
expenditure for himself, the total amount payable for compensation is
Rs. 3,000/- per month. The multiplier to be applied would be 17 as
per the guidelines framed by the Honourable Supreme Court in the
case of Sarla Verma and others Vs. Delhi Transport Corporation and
another reported in (2009) 6 Supreme Court Cases 121. Having
regard to the age of the deceased and his notional income per year,
the amount of compensation can be calculated as under :-
Age Multiplier Income per year Total amount
18 17 Rs. 36,000/- Rs. 6,12,000/-
years
Loss of love and affection Rs. 20,000/-
------------------
Total Rs. 6,32,000/-
------------------
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Thus, the total amount of ex-gratia compensation comes
to Rs. 6,32,000/-.
16. Learned counsel Shri Patil placed reliance on the
judgment in the case of Amol Vitthalrao Kadu Vs. State of
Maharashtra & others reported in 2019 ALL MR (Cri.) 1266 (S.C.) for
the preposition that the liability is still not fxed so far as respondents
No. 5 to 13 are concerned. Therefore, at this stage, the State may not
direct to recover the amount of compensation from respondents No. 5
to 13. It has been held in the aforesaid case as under :-
6. In a case Delhi Airtech Services Private
Limited and Anr. Vs. State of Uttar Pradesh
and Anr. (2011)9 SCC 354 dealing with default
on part of the offcials in depositing the
amount in terms of the Land Acquisition Act,
Swatanter Kumar, J. had observed :
"(iv) In this case, the claimants would be
entitled to the costs of Rs.1,00,000 (Rupees
one lakh only) which shall be deposited at the
frst instance by the State Government of
Uttar Pradesh and then would be recovered
from the salaries of the defaulting/erring
offcers/offcials in accordance with law. The
inquiry shall be completed within a period of
six months from today and a report shall be
submitted to the Secretary General of this
Court on the administrative side immediately
thereafter."
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17. Having regard to the above reasons and discussion, we
arrive at a conclusion that it is a case of custodial death at the hands
of respondents No. 5 to 13. The prayer of ex-gratia compensation
needs to be granted to the petitioners. In the light of above, we
proceed to pass the following order :
ORDER
(i) Criminal Writ Petition is allowed.
(ii) Respondent No. 1 / State shall deposit an
amount of Rs. 6,32,000/- within six
months from today.
(iii) Respondent No. 1 /State is at liberty to
recover compensation from the erring
offcers i.e. Respondents No. 5 to 13 as and
when responsibility is fxed on them.
(iv) Rule made absolute in above terms.
( M. G. SEWLIKAR ) ( T.V. NALAWADE )
Judge Judge
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