Court On Its Own Motion vs State & Another
2010 Latest Caselaw 2743 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                        Decided on 24th May, 2010

+      W.P.(CRL) 290/2010

       COURT ON ITS OWN MOTION                    ... Petitioner
                     Through Mr. Rajesh Mahajan, Amicus Curiae with
                     Ms. Satsheel Sheokand, Advocate

                               versus

       STATE & ANOTHER                           ..... Respondents

Through Mr. Pawan Sharma, Standing Counsel (Crl) with Ms. Laxmi Chauhan, Advocate

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MADAN B. LOKUR

1. Whether the Reporters of local papers may be allowed to see the judgment? yes

2. To be referred to Reporter or not? yes

3. Whether the judgment should be reported in the Digest? yes

DIPAK MISRA, CJ

Albert Schweitzer, accentuating on Glory of Life had uttered "reverence for

life offers me my fundamental principle on morality". One may understand the

aforesaid utterance to have an individualistic perception of a great personality but

understood in the complete sense, it really denotes, in its essentiality, and connotes,

in its very macrocosm, the basic perception of a thinker about the respect life

commands. It is easy to think that life is a spark of light or, for that matter, a „brief

candle‟ but everyone loves the said brief candle and would not like it to be

extinguished by the cruel hand of others. Not for nothing, it has been said „the

earth belongs to the living, not to the dead‟. Hence, some call life a bliss, some

name it a feeling of ecstasy and none wants that it should be nasalized or

fossilized. On one hand, no one has the right to take the life of another and on the

other, the authorities who are in charge of persons who have been found guilty in

law cannot allow things to happen as a consequence of which the man in custody

meets his end at the hands of others because of severe negligence or callousness.

2. We have commenced with the aforesaid prefatory note as in the case at

hand, we are required to deal with the factual scenario when a death occurs in the

jail premises whereby a life convict meets his end because of assault by inmates

for whatever reason, how it should be viewed in the public law remedy and what

the writ court should do while exercising jurisdiction under Article 226 of the

Constitution of India.

3. The factual score which has been gradually uncurtained in this writ petition

initiated on the basis of a letter is that one Sunder, who was in judicial custody in

Tihar Jail, was beaten to death. This Court on earlier occasion had called for a

report from the Metropolitan Magistrate who conducted an inquiry. After taking

appropriate steps, a final report of inquest proceedings has been submitted by the

Metropolitan Magistrate, Mahila Court, West Delhi. We think it apt to reproduce

the said report in entirety:

"On 13.2.10, an application u/s 176 Cr.PC was moved before the undersigned was officiating as Duty Magistrate on the said date. It was informed vide said application that a UTP namely Sunder S/o Baraf Chand had expired in Tihar Jail No.2. This person was lodged in Tihar Jail in case FIR No. 10/03, PS

Kalyan Puri. It was a holiday on 13.2.10 and I was the Duty Magistrate, hence, I marked the application to myself on behalf of Ld. CMM, Delhi.

Dead body of the UTP was lying at the Mortuary of DDU Hospital, Hari Nagar. I went to the Mortuary and examined the dead body of the UTP. An inquest report was prepared in form No. 25.35(I)(B). External injuries were found on the body of the UTP. There was plaster on the right and left hand of the deceased, big red and blue scars on right and left hand near shoulder, on the entire back as well as on the left leg and right thigh. It appeared that the deceased was beaten up with a blunt object. His dead body was identified by his real and cousin brothers whose statements were also recorded on the spot.

After examining the dead body, the same was forwarded to LNJP Hospital for conducting post mortem by a medical board consisting of minimum three doctors.

In the meantime, Court summoned the relatives of the deceased as well as the other UTPs lodged in the same barrack. Among the relatives, Court recorded the statement of Madan Kishore, Rajiv, Rajesh and Amarjeet who stated that they were told by their brother who is also lodged in the same jail that the deceased was beaten up by the jail officials. Accordingly, Jail Supdt of Central Jail no.2 was summoned and his statement was recorded on 16.2.10. He reported to the Court that the deceased was beaten up by two convicts namely Hansraj S/o Nathu and Akbar S/o Riyasat Ali who were the munshi and Nambardar respectively of ward no.2. This incident took place on 2.2.10. On 12.2.10, deceased complained of pain around popslap (plaster) and he was given requisite medication by the medical officer. Medical officer was also examined on the same day who filed the death summary of the deceased as well as his past medical record detailing about the injuries found on the body of the deceased. He reported that on 2.2.10, bruises were found on infrascapular region, right gluteal region and right knee joint. He also reported swelling over the left hand and left forearm. X-ray was advised to reveal fracture of 3rd, 4th and 5th metacarbon and right forearm. On 12.2.10, he again complained of pain in upper limbs and around popcast. He was examined by the doctor on duty but around 6.45 pm, he started frothing and therefore, he was rushed to DDU hospital where he

was declared brought dead.

Thereafter, Court recorded the statement of convict Manoj s/o Baraf Chand, who is the brother of deceased and was lodged in the same barrack. He reported that on 2.2.10, the convict deceased was beaten up with lathis and pipes by convict Akbar and Surendra Rana. Other convicts namely Ramesh S/o Leela Ram as well as Rakesh s/o Rajender were also summoned as they were lodged in the same barrack. They corroborated the story of convict Manoj.

Post mortem report was received in the Court on 4.3.10. No opinion on the cause of death was given in the P.M. report as heart of the deceased had been sent for histopathological examination and his viscera was sent to FSL. Report of histopathological examination of heard was received on 27.4.2010. Dr. Sreenivas M who was the head of Medical Board which conducted the postmortem of the convict was summoned for statement and giving opinion on the cause of death for 1.5.2010. His statement has been recorded separately.

As per medical opinion, death occurred due to heart failure. Heart failure was due to pre-existing coronary artery disease which was aggravated by the injuries inflicted upon the person of the deceased. Dr. Sreenivas M clearly deposed that the injuries suffered by the deceased rendered him susceptible to a heart attack due to pre-existing medical condition.

I have perused all the statements as well as the medical reports carefully. From the statements as well as report, it is prima facie established that the deceased did not expire in natural course. He was beaten up in the jail by two convicts namely Hansraj s/o Nathu (convict munshi of ward no.2) and Akbar S/o Riyasat Ali (convict numberdar of ward No.2) and by two jail officials namely Sardare and Surender Rana reported to be the head of some ward in the jail though ward numbers were not conveyed to the Court as the jail convicts deposing about it were not aware about the same. Due to the injuries received in the said beating, an already existing medical condition of heart aggravated and it caused the death of convict Sunder.

Having given prima facie opinion, let the original inquest papers along with final report be now forwarded to Ld. CMM,

Delhi for further action as per law. A copy be handed over to ASI Sudershan Lal. A copy further be sent immediately in a sealed cover to the Hon‟ble High Court of Delhi. Let the entire original proceedings after retaining a copy be sent to Ld. CMM, Delhi in a sealed cover."

4. On a scrutiny of the said report, it is clear as crystal that the death had

occurred while Sunder was in custody and certain persons were responsible for the

same. As advised at present, we shall not comment with regard to the persons who

were responsible in mercilessly assaulting the said Sunder to death but take note of

the fact that his life-spark got extinguished because of the said assault.

5. The question that emerges for consideration is when there is an unnatural

death of this nature of a person who has been awarded life sentence, what should

be the duty of the State. It has been submitted by Mr. Pawan Sharma, learned

counsel for the State, that the said Sunder was a life convict and due to hostility

and quarrel, assault ensued which resulted in his death and it was beyond the

knowledge of the authorities, but despite the same the State has decided to pay

compensation of Rs.1 lac which is insufficient in the obtaining circumstances.

6. Resisting the aforesaid proponement, Mr. Rajesh Malhotra, learned Amicus

Curiae, submitted that the concept of dignity of life and to live at peace with

oneself neither becomes extinguished nor gets paralyzed because of the walls of

the prison. Quintessentially, the submission of the learned friend of the Court is

that when the State has the sacrosanct duty to see that the people who are in

custody do not meet death of this nature, it cannot make a distinction that he was a

life convict and hence, the compensation awarded is adequate.

7. Long back, it was stated that life is a glorious gift of creative intelligence

and neglect of life is a curse on the fountain of life. It would not be out of place to

state that it is the primary duty of the State to see that every citizen lives in an

orderly society, properly housed, clothed, with food and dignity. The State cannot

oppose and choke the voice of a person solely on the ground that he was suffering

imprisonment. The effect-potentiality of such death is writ large when one thinks

of the magnitude of the law and order situation in jail. There may be unruly

elements in jail but they cannot be allowed to become unruly and granted licence

to kill another, may be out of vengeance or may be for reasons best known to

them. When the duty of the State comes into play, it amounts to violation of the

human rights. In this regard, we may fruitfully refer to Nilabati Behera v. State of

Orissa (1993) 2 SCC 746 wherein it has been held thus:

"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. 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 justifies award of monetary compensation for contravention of fundamental rights guaranteed 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 Articles 32 and 226 of the Constitution."

8. Dr.A.S. Anand J., (as his Lordship then was), in his concurring opinion,

expressed thus:

"...Convicts, prisoners or under-trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental rights by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody.

The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by the Supreme Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting 'compensation' in proceedings under Article 32 or 226 seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit

instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law."

9. In D.K. Basu v. State of Bengal AIR 1997 SC 610, the Apex Court

adverted to the question relating to grant of compensation when there is

infringement of fundamental rights guaranteed under Article 21 of the Constitution

and expressed the view thus:

"Custodial violence, including torture and death in the lock ups 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 walls 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.

Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, 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 civilized nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him ? Can the right to life of a citizen be put in abeyance on his arrest.... The answer, indeed, has to be an emphatic 'No'.

Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but it must be remembered that the law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true

sense purposeful to make the investigation effective. By torturing a person and using third degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No society can permit it."

10. In Sube Singh v. State of Haryana AIR 2006 SC 1117, a three-judge Bench

of the Apex Court, after referring to its earlier decisions, has opined as follows:

"It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under Section 357 of Code of Civil Procedure."

11. The aforesaid communication of law makes it clear as day that right to life

of a person cannot be crippled or clipped by the authorities when he is in custody.

When the life-spark of a person gets extinguished, every citizen feels that there is

possibility of a person becoming an unperson. Man, a masterpiece of creation, has

the right to achieve the accomplishments of life and has the expectation to live an

acceptably peaceful life. There are instances where the convicts have created

extremely good literature and sometimes associated themselves in different kinds

of inventions. When a death of this nature takes place, the collective cries with

incurable anguish raise voice against the City Halls. Such a cry cannot be stopped

by the prison walls. One may nourish the notion that an hour in jail is equivalent

to a year but that is simply a process of thought. In reality or law, it cannot be

given any kind of allowance. Where the jail authorities have not lived up to the

responsibility to maintain a peaceful atmosphere, violence gets writ large and death

occurs. The State has the duty and the person who is affected or the legal

representatives who have lost their kith and kin have their right in the public law

domain. Hence, compensation becomes awardable.

12. Thus, there has to be grant of compensation. The learned counsel for the

State has submitted that the State has taken a decision to grant a compensation of

Rs.1 lac. The man was 34 years of age. He would have served the whole term of

life as what the law relating to life imprisonment means or not is another matter.

He had the hope to live his span of life. It is difficult to say whatever was available

inside the prison cells was not acceptable to him. The notion that a day in prison is

equivalent to a year is not true in all cases. There are people who accept their fate.

That apart, life gives an opportunity to repent and the same has been taken away

prematurely. The offer of compensation by the State Government cannot be

regarded as adequate. We are of the considered opinion that the adequate

compensation should be Rs.3 lacs and we so determine.

13. In view of the aforesaid, we are of the view that the wife of the deceased be

compensated with an amount of Rs. 3 lacs within a period of three months, on

proper identification by the Metropolitan Magistrate concerned. The amount shall

be deposited in a fixed deposit account in a scheduled bank in the name of the wife

of the deceased for a period of three years and she shall be entitled to withdraw the

interest accrued on that amount.

14. The Director General (Prisons) shall act on the basis of the report and

proceed in accordance with law against the erring persons. He shall file a report in

the court about the action taken, within a period of eight weeks from today.

List the petition on 4th August, 2010, for further directions.

CHIEF JUSTICE

MADAN B. LOKUR, J MAY 24, 2010 "v/nm"