State (Govt. Of Nct Of Delhi) vs Smt. Iqbal Begum
2004 Latest Caselaw 522 Del

JUDGMENT

Dalveer Bhandari, J.

1. This is a case of custodial death. Learned Single Judge in the impugned judgment has observed that the State/its functionaries have caused the death of the husband of the respondent, Sayyed Masoom Ali, while he was in police custody. After recording clear finding of a custodial death, the learned Single Judge has granted an ex-gratia compensation of Rs. 3,50,000./- for the custodial death of respodnent's hsuband. The State has filed his appeal against the impugned judgment.

2. Brief facts of the ease are that at 5.00 p.m. on 27-8-1994 the respondent's husband was summoned to the Police Station, Seelampur. Suffice it to say that during interrogation, it appears that the respondent's husband met his end. In other words, Sayyed Masoom Ali died while he was in police custody. A Magistrate inquiry under Section 176 of the code of Criminal Procedure was held and the Magistrate in his report arrived at definite finding that the death of Sayyed Masoom Ali occurred when he was in the police custody.

3. Respondent's husband was taken into custody vide DD No. 608 of Police Sation Seelampur (on the basis of FIR No. 475/94} at 7.50 p.m. on 27-8-1994. He was taken to GTB Hospital at 11.30 p.m. on 27-8-1994 vide DD No. 758 in police custody. The MLC records of Sayycd Masoom Ali records were brought to the hospital by ASI Ratan Lal, Police Station Seelampur. According to the doctors, respondent's husband, Sayyed Masoom All was brought dead at 00.40 hrs. on 28-8-1994. Thus from the time Sayyed Masoom Ali was put inside the lock up at 7.50 p.m. on 27-8-1994 till the time he was declared dead i.e. 00.40 hrs. on 28-8-1994, he remained in the police custody. Therefore, the fact of Sayyed Masoom Ali being in custody of policy when he died is clearly established. The post mortem report revealed following injuries ante-mortem injuries on the person of the deceased :

"A reddish brown abrasion L shaped of size 2 x 0.7 cms. Present over right side forehead placed 1 cm. lateral to midline and 4.5 cms. below the right eyebrow.

A reddish abrasion almost triangular in shape size 1.5 x 1,0 cms. placed 1.5 cms. outer to outer angle of right eye and 4 cms. above and in front of right ragus in right orbital region.

A reddish abrasion of size 1.2 x 0.5 cms. irregular in shape present over Rt. outside in ear 1 cm. below the helix anteriorly.

An oval abrasion reddish in colour of size 0.7 x 0.4 ems. present over base of big toe on left side placed 7 cms. proximal to the tip of the nail on dorsal surface.

An oval reddish abrasion of size 0.7 x 0.4 cms. placed 4.5 cms. below the lower border of patella on right side leg.

An oval reddish abrasion placed on outer aspect left leg 6 cms. below the lower border of patella 0.6 x 0.3 cms. size.

A headed (sic) surgical paramedian scar in abdomen 8 cms. long.

A linear heald (sic) rear 2 cms. long in Rt. Hypochondria."

4. According to Dr. A. K. Tyagi, (Member, Board of Doctors), who had conducted the post mortem stated that the cause of external injury except old surgical scar i.e. detailed at No. 8 and No. 9, are all injuries by blunt force impact. The rest of seven injuries are abrasions which are superficial and have been caused by any rough and hard object. The internal examination reveals that there are evidences of earlier myocardial scars i.e. earlier heart attack. In presence of precipitating factors the condition of heart could prove fatal. The precipitating factors could be any trauma-psychological, physical, physiological, exercise, mental tension, increased blood pressure etc. The external injuries could be reason for having a precipitating factor in death of Sayyed Masoom Ali. With the kind of condition of heart Sayyed Masoom Ali had, it is possible that he succumbed to death due to the precipitating factors,"

5. Therefore, from the material on record it is clear that the death of the husband of the respondent, Sayyed Masoom Ali, can be clearly termed as 'custodial death' and even if the deceased was suffering from the heart problem, the brutality inflicted upon him only precipitated the condition which proved fatal.

6. It is proved beyond doubt that the respondent's husband died while he was in police custody. Ante-mortem injuries were found on the person of the deceased. The opinion of Dr. A.K. Tyagi leaves no manner of doubt that the respondent's husband succumbed to death due to the precipitating factors.

7. From the entire material on record it is clear that the death of the husband of the respondent can be clearly termed as 'custodial death' and even if the deceased was suffering from the heart problem, the brutality inflicted upon him only precipitated the condition which proved fatal.

8. The learned Single Judge in the impugned judgment has observed that erring officers are being prosecuted and, therefore, it would not be proper to him to dwell at length upon the individual act of the police men. Suffice it to say that prima facie, on the material placed before him, the State./ its functionaries have caused the death of Sayyed Masoom Ali (husband of the respondent) while he was in their custody in a manner that the law has deprecated time and again.

9. The learned Single Judge has taken note of the leading judgments of the Superme Court while awarding ex-gratia compensation of Rs. 3,50,000/- for the custodial death of respondent's husband. The State aggrieved by the said judgment has preferred this appeal. During the course of arguments, learned counsel appearing on behalf of the State submitted that the amount of compensation of Rs. 3,50,000/-as awarded by the learned Single Judge is excessive and the amount be reduced. In support of her submission she placed reliance on a Division Bench judgment of this Court passed in Govt. of NCT of Delhi v. Shri Nasiruddin (Father of Deceased Mohd. Yasin), reported as 2001 (1) JCC (Delhi) 57 : (2001 Cri LJ 4925). In the said judgment, the amount of compensation was reduced from Rs. 2.5 lakhs to Rs. 2 lakhs. The ratio of the said case has no application to the facts of the instant case. In the said case counsel for the State submitted that the deceased was a criminal and very violent person. Whereas, no such behavior is attributed to deceased, Sayyed Masoom Ali.

10. Their Lordships of the Apex Court had occasion to examine various facets of the custodial death in the case of D.K. Basu v. State of West Bengal, . While giving the detailed guidelines the Apex Court viewed cases of custodial death very seriously and observed as under (Para 9) :

"Custodial violence, including torture and death in the lockup, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four wall of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society. These petitions raise important issues concerning police powers, including whether monetary compensation should be awarded for established infringement of the fundamental right guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental.

11. The Apex Court in the said judgment of D.K. Basu (1997 Cri LJ 743) (supra) further observed regarding custodial torture. The relevant part of the judgment is reproduced as under (Paras 10 & 11) :

"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 what 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.

12. Their Lordships of the Supreme Court examined the various facets of the problem of the custodial death in the said D. K. Basu's case (1997 Cri LJ 743) and further observed as under (Para 22) :

"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 require 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 lawbreakers, 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.

13. The Apex Court also observed that police is no doubt under a legal duty and has legitimate right to arrest the criminal and to interrogate him during the investigation of an offence but the law does not permit use of third degree methods or torture of the accused during interrogation and investigation in view to solve the crime and ends cannot justify the means. Their Lordships of the Supreme Court gave a detailed guidelines but unfortunately those guidelines are not strictly complied with and similar unfortunate incidents of custodial deaths come to our notice time and again. In this case their Lordships of the Supreme Court observed that the liability of the State to pay compensation cannot be doubted. It is now well accepted position that monetary or pecuniary compensation is appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the Fundamental Rights of the citizen by the public servant and the State is vicariously liable for their Act.

14. In Rudul Sahv. State of Bihar, their Lordships of the Supreme Court observed that "In these circumstances, the refusal of this Court to pass an order of compensation in favor of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers."

15. In Saheli. A Women's Resources Centre v. Commr. of Police, Delhi their Lordships of the Supreme Court clearly laid down that it is now well settled that the State is responsible for tortious act committed by its agency. The Court directed that compensation be paid to the mother of the deceased, who was done to death, on account of beating and assault by the police.

16. In Peoples' Union for Democratic Rights v. Police Commissioner, Delhi Police Headquarters one of the labourers who was taken to the police station for doing some work and on demand for wages was severely beaten and ultimately succumbed to the injuries. It was held that the State was liable to pay compensation and accordingly directed that the family of the deceased labourer will be paid Rs. 75,000/-as compensation. This was the case when the death had taken place sometime in the year 1974.

17. In Bhim Singh, MLA v. State of Jammu & Kashmir, , Shri Bhim Singh, MLA was deliberately prevented from attending session of Legislative Assembly by arresting and illegally detaining him in police custody. The Court observed that the petitioner's Constitutional rights under Articles 21 and 22(2) were violated with impunity. The Court directed the State of Jammu & Kashmir to pay a sum of Rs. 50,000/- to the petitioner.

18. In State of Maharashtra v. Ravikant S. Patil an under-trial prisoner was handcuffed, and taken through the streets in a procession by police during investigation. The Court observed that the under trial prisoner's fundamental right under Article 21 was violated and directed the State of Maharashtra to pay compensation to the respondent, whose fundamental right under Article 21 was violated.

19. In another celebrated case Nilabati Behera v. State of Orissa, the Apex Court observed that the Supreme Court and the High Courts being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State of course, has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law. The Court held that on violation of citizen's fundamental rights the Court can grant compensation. In the said case the Court directed the State to pay compensation to the petitioner.

20. The quantum of compensation will, of course, depend on the peculiar facts of each case and no strait jacket formula can be evolved in that behalf. For brutality by the servant of the State, no amount of compensation for the loss of human life is adequate.

21. The learned Single Judge has taken a just, fair and a very reasonable view and granted ex-gratia compensation of Rs. 3,50,000/- for a custodial death, it is hardly appropriate for the State to appeal against such a judgment for reducing the amount of ex gratia compensation.

22. The State must learn to make distinction between case of custodial death with other cases of compensation. It is the duty and the obligation of the State Government to graciously accept the judgment in the matter of custodial death and implement the judgment in all seriousness, The attitude of rushing to Court for filing an appeal, particularly, when the learned Single Judge has granted very reasonable and fair compensation is hardly warranted.

23. We have carefully considered this matter. In our considered opinion no interference is called for. The appeal filed by the State being devoid of any merit is accordingly dismissed.