Gauhati High Court
Shahar Banu vs The State Of Assam And 9 Ors on 23 March, 2023
Page No.# 1/12
GAHC010197152017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3363/2017
SHAHAR BANU
W/O- LATE IDRISH ALI, R/O- VILL- GORIABORI GAON, P.O- GORIABORI,
P.S- MOIRABARI, DIST- MORIGAON, ASSAM, PIN- 782126
VERSUS
THE STATE OF ASSAM and 9 ORS.
REP. BY THE CHIEF SECY. GOVT OF ASSAM, DISPUR, GUWAHATI-6
2:THE COMMISSIONER and SECRETARY
TO THE GOVT OF ASSAM
HOME DEPTT
DISPUR
GUWAHATI-6
3:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GUWAHATI-7
4:THE INSPECTOR GENERAL OF POLICESTF
ASSAM
ULUBARI
GUWAHATI-7
5:THE INSPECTOR GENERAL OF PRISONS
ASSAM
KHANAPARA
GUWAHATI-38
6:THE SUPERINTENDENT OF POLICE
NAGAON
Page No.# 2/12
P.O
P.S- NAGAON
DIST- NAGAON
ASSAM
PIN- 782001
7:THE JAIL SUPERINTENDENT
NAGAON CENTRAL JAIL
P.O and P.S- NAGAON
DIST- NAGAON
ASSAM
PIN- 782001
8:THE JAILOR
NAGAON CENTRAL JAIL
P.O and P.S- NAGAON
DIST- NAGAON
ASSAM
PIN- 782001
9:THE OFFICER-IN-CHARGE
DHING POLICE STATION
P.O and P.S- DHING
DIST- NAGAON
ASSAM
PIN- 782125
10:THE IN-CHARGE OFFICERSTF
JAKHALABANDHA
P.O and P.S- JAKHALABANDHA
DIST- NAGAON
ASSAM
PIN- 78213
Advocate for the Petitioner : MR.M K HUSSAIN
Advocate for the Respondent :
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BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE ROBIN PHUKAN
Date : 23-03-2023
JUDGMENT & ORDER (ORAL)
(A.M. Bujor Barua, J)
Heard Mr. MK Hussain, learned counsel for the petitioner and Mr. D Nath,
learned Senior Government Advocate for the respondents in the Government of
Assam.
2. The petitioner Shahar Banu has instituted this writ petition on the
premises that her deceased husband Idrish Ali was arrested by the police
personnel of Dhing Police station along with Special Task Force (in short STF),
Jakhalabandha in connection with Dhing Police Station Case No. 322/2016
under Sections 25(1)(A) of the Arms Act read with Section 51(1)(A) of the
Wildlife Protection Act, 1972. But, while he was in custody of the police
authorities, the husband of the petitioner died on 25.08.2016. In the
circumstance, this writ petition is instituted claiming for appropriate
compensation to the family members of the deceased by raising an allegation
that he died due to internal injuries inflicted upon him by the police personnel of
Dhing police station along with STF of Jakhalabandha and further as because of
negligence on the part of the jail authorities.
3. In response thereof, the respondents have filed an affidavit in opposition,
wherein a death report of the husband of the petitioner Md. Idrish Ali under the
signature of the Medical and Health Officer, Central Jail, Nagaon has been
annexed as Annexure-2. The death report is extracted as below:-
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"Death Report of Md Idrish Ali
Md Idrish Ali S/o Lt. Kitab Ali aged about 50 yes was admitted at Central Jail,
Nagaon on 23/08/16. I examined him on that day and given treatment.
O/E BP 124/76mm/Hg Pulse 72/mnts
1) Pain and swelling over both hips lega and body
Systematic examination: Chest clest
CNS-Normal, Abdomen pain with distended
CVS - Normal
Treatment: 1) Inj. Ceftrixone 1 gm
Sig. 1 vial IV daily ANST
2)Inj. Pantoprazole 40
1 vial-IV vial two times ANST
3)Inj. Diclofenac
1 mg once daily
4)Antacid Liquid
3 tsp three times daily
5)Diclofanac Gel
------------ daily
24/08/16- I examined him and given treatment as before. He is doing will
on 24/06/16.
25/08/16- I came to Central Jail, Nagaon at 5-35 a.m. I examined
Idrish Ali and given treatment and referred him to BP Civil Hospital Emergency
OPD immediately at 6-10 A.M.
O/E B.P. 106/70 mints Pulse 70/mint
1) Pain abdomen and distended
2) Chest Pain and respiratory difficult
3) Systematic Examination CNS - normal
4) Chest- crepitation +ve: legs and hands
Treatment:
1) R L IV fluids given slowly
2) Inj. Dexona I vial IV in drips
3) Inj. Deriphyllin 1 ample IV in drips
4) Inj. Pantoprazole 40
1 vial IV 5 times
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5) Antacid Liq
3 tsp thrice daily
Idrish Ali expired on the same day on 25/8/16 at 6-30 a.m. as reported by B.P.
Civil Hospital Authority. Post-mortem was done at B.P. Civil Hospital, Nagaon on
that day. Post mortem Report shows-
"The cause of death is due to Cardiomegaly that is a result of Myocardial
Infarction" (ML). post Mortem was done by Deputy Superintendent of B.P. Civil
Hospital, Nagaon, Assam.
S/d/- P. N. Bora
Medical & Health Officer
Central Jail, Nagaon"
4. In the affidavit in opposition, the post-mortem report of Md. Idrish Ali is
also annexed, wherein in respect of the 'pericar(dium), heart, vessels', the
following is provided:-
"A haemorrhagic slightly Blackish area of 3" x 2" over lateral aspect of left
ventricle and another area of 2" x 1" over Posterior aspect of right ventricle with
petechial haemorrhage in the wall of the affected heart wall."
5. In the post-mortem report, the opinion of the Assistant Surgeon/Sub
Assistant Surgeon as to the cause of death is provided as extracted:-
"In my opinion the cause of death is due to cardiogenic shock as a result of
myocardial infarction."
6. Based upon the death report provided by the medical authorities read
conjointly with the provisions of the post-mortem report, a stand is taken by the
respondent authorities that the death caused to the deceased husband of the
petitioner cannot be stated to be because of any excess or body pain being
inflicted by the police authorities while he was in custody
7. Mr. D Nath, learned Senior Government Advocate strenuously argued that
the medical report as well as the post-mortem report would indicate that it was
more of a case of natural death rather than a death caused due to any injuries
being inflicted on the person arrested by the police or by the jail authorities.
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8. A reading of the death report of the deceased would make it discernible
that on 23.08.2016, he was examined by the Medical and Health Officer, Central
Jail, Nagaon on the symptoms that prevailed that the deceased was having pain
and swelling over both hips, legs, as well as body. The chest was found to be
clear. But the medical authorities noticed certain 'abdominal pain with
distended'. Accordingly, the deceased was provided certain medications, a
reading of which shows that certain medications in the nature of antacids were
also provided. On 24.08.2016, the same medical authority again examined the
deceased husband of the petitioner and continued with the earlier treatment
with an observation that he was doing well on 24.08.2016. On 25.08.2016, the
medical authorities concerned of the Central Jail, Nagaon at about 5.35 A.M.
again examined the deceased husband of the petitioner and after giving some
treatment referred him to the B.P. Civil Hospital, Nagaon for emergency OPD at
6.10 A.M. The symptoms noticed amongst others were pain in abdomen,
distended chest pain, respiratory difficulty, systematic examination-CNS normal
and chest-crepitation. Upon being taken to the hospital, the deceased husband
of the petitioner died at 6.30 A.M. of 25.08.2016 in the B.P. Civil Hospital,
Nagaon.
9. In the process, a post-mortem examination was also done on the body of
the deceased husband of the petitioner. The Medical and Health Officer, Central
Jail, Nagaon in his death report provides that as per the post-mortem report,
the cause of death was due to Cardiomegaly i.e. a result of Myocardial
Infarction and further that the post-mortem was done by the Deputy
Superintendent of B.P Civil Hospital, Nagaon, Assam.
10. From the medical death report as provided by the Medical and Health
Officer, Central Jail, Nagaon as well as the post-mortem report, which remains
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uncontroverted by either of the parties in any manner, the death of the husband
of the petitioner apparently took place because of Cardiomegaly, which was a
result of Myocardial Infarction. Cardiomegaly in the medical terms is understood
to be a medical condition in which the heart becomes enlarged and is also
commonly referred as enlarged heart, where because of the underlying
conditions of the person, the heart is made to work harder. Cardiomegaly is also
in medical terms understood to be a serious condition which can result in
congestive heart failure. Some of the signs and symptoms associated with the
medical condition Cardiomegaly, as per the material produced before the Court
are - heart palpitations, severe shortness of breath, chest pain, coughing when
lying down, fatigue, leg swelling, increased abdominal girth, weight gain,
edema, fainting etc.
11. Out of the aforementioned signs and symptoms usually associated with
the medical condition Cardiomegaly, we have noticed that the deceased
husband of the petitioner was found to be having abdominal pain, which again
would have a thin line of difference from the condition with that of chest pain;
the husband of the petitioner on 23.08.2016 itself was found to be having pain
and swelling on his both hips, legs as well as body; and on 25.08.2016 when
the medical authorities examined the deceased husband of the petitioner at
5.35 A.M., the symptoms of chest pain and respiratory difficulty were noticed.
12. If the medical condition Cardiomegaly is associated with the aforesaid
symptoms and many such symptoms were noticed by the medical authorities to
be prevailing in respect of the deceased husband of the petitioner when he was
examined on 23.08.2016, 24.08.2016 and 25.08.2016, a question would
naturally arise as to why the medical authorities who had examined the
deceased husband of the petitioner could not apply its medical mind and arrive
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at some kind of diagnosis that there is a possibility of it being a case of
Cardiomegaly and accordingly immediately refer him for the specialized medical
treatment and diagnosis. If we have no materials on record that the medical
condition of the deceased husband of the petitioner was because of any beating
or application of any external force by the police authorities while he was in jail
custody, but he reported adverse medical condition and was being attended by
the medical authority of the jail, it is also reasonably expected that the medical
authority would give a more detail application of mind and if the medical
condition otherwise would appear to be a serious medical condition, which
requires specialized treatment, the law requires that such treatment should be
meted to the person.
13. The Hon'ble Supreme Court in its judgment rendered in Writ Petition
(Criminal) No. 307/2020 [Kerala Union of Working Journalists -vs- Union of
India and others] dated 28.04.2021 had provided as extracted:-
".....We state that the most precious fundamental 'right to life' unconditionally
embraces even an under-trial. ..."
14. The Hon'ble Supreme Court has provided that the right to life would also
unconditionally embrace even on an under-trial where a right to life would also
include the right to be provided with adequate and appropriate medical
treatment whenever it is so required.
15. The Hon'ble Supreme Court in its judgment rendered in Nilabati Behera
(SMT) Alias Lalita Behra (Through the Supreme Court Legal Aid Committee) -vs-
State of Orissa and others, reported in (1993) 2 SCC 746, in paragraph 31,
provided as extracted:-
"31. It is axiomatic that convicts, prisoners or undertrials 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
right by such persons. It is an obligation of the State to ensure that there is no
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infringement of the indefeasible rights of a citizen to life, except in accordance
with law, while the citizen is in its custody. The precious right guaranteed by
Article 21 of the Constitution of India cannot be denied to convicts, undertrials
or other prisoners in custody, except according to procedure established by law.
There is a great responsibility on the police or prison authorities to ensure that
the citizen in its custody is not deprived of his right to life. His liberty is in the
very nature of things circumscribed by the very fact of his confinement and
therefore his interest in the limited liberty left to him is rather precious. The
duty of care on the part of the State is strict and admits of no exceptions. The
wrongdoer is accountable and the State is responsible if the person in custody
of the police is deprived of his life except according to the procedure
established by law. I agree with Brother Verma, J. that the defence of
"sovereign immunity" in such cases is not available to the State and in fairness
to Mr Altaf Ahmed it may be recorded that he raised no such defence either."
16. The pronouncement of the Hon'ble Supreme Court in paragraph 31 of
Nilabati Behera (supra) makes it apparent that convicts, prisoners or undertrials
are not denuded of their fundamental rights under Article 21, which as per the
law laid down by the Hon'ble Supreme Court in some of the later judgments
also includes the right to receive adequate and appropriate medical treatment.
The Hon'ble Supreme Court is explicit in its proposition that the precious right
guaranteed under Article 21 of the Constitution of India cannot be denied to
convicts, prisoners or undertrials in custody, except according to the procedure
established by law. The pronouncement further provides that the wrong doer is
accountable and the State is responsible if the person in custody of police is
deprived of life except according to the procedure established by law.
17. By following the proposition laid down by the Hon'ble Supreme Court in its
judgment in Nilabati Behera (supra), in the instant case, it is noticed that the
fundamental right of the deceased husband of the petitioner i.e. right to life,
which also includes the right to receive and be provided with adequate and
appropriate medical treatment while he was in the custody of the jail
authorities, had been violated to the extent that although his underlying medical
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conditions indicated that he had certain symptoms which are also symptoms
applicable to the medical condition Cardiomegaly, it was an error of medical
judgment on the part of the medical authorities who had examined him on
23.08.2016, 24.08.2016 as well as on 25.08.2016 not to have detected the
medical condition of Cardiomegaly and immediately refer him for specialized
medical treatment for the medical condition.
18. It is in this respect we find that there was an aberration of the
fundamental right of the deceased husband of the petitioner.
19. In paragraph 35 of its pronouncement in Nilabati Behera (supra), the
Hon'ble Supreme Court had also provided that in the event there is any violation
of the fundamental right of a convict, prisoner or undertrial, it would be for the
State authorities to compensate for such violation of the fundamental right
notwithstanding the right of the citizen to a remedy by way of civil suit, criminal
proceeding etc. The relevant portion of paragraph 35 of Nilabati Behera (supra)
is also extracted below:-
"35. This 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. ......"
20. For the purpose of compensation, we have noticed that there is a
notification issued by the Revenue and Disaster Management Department, Relief
and Rehabilitation Branch, Government of Assam dated 15.11.2014, which
provides for an ex-gratia payment to the next of kin of persons killed due to
accident in public places or in public carriers other than killed by extremists,
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terrorists, miscreants and due to the firing of security forces, which had been
quantified to be Rs. 2, 00, 000/- (rupees two lakhs).
21. We have noticed that the amount of Rs. 2, 00, 000/- is provided by the
Government of Assam in case of any death that may happen in any accident in
any public place. The jail premise where the happening took place would
definitely have to be understood to be a public place although a question may
remain as to where the final death ultimately took place i.e. within the jail
premises or in the hospital. But, be that as it may, if we construe the death to
have taken place in the public place, the next of kin of the husband of the
petitioner in any view of the matter would be entitled to a compensation of Rs.
2, 00, 000/-.
22. By the same notification, it is provided that ex-gratia payment amounting
to Rs. 5, 00, 000/- (rupees five lakhs) is payable to the next of kin of such
persons who are killed by extremist, terrorist, miscreants, during communal/
ethnic/group clashes or due to the firing of security forces etc. We are not
proceeding in the manner that the death was caused due to any of the reasons
provided in the notification of 15.11.2014 as regards the ex-gratia payment of
Rs. 5, 00, 000/- for the acts on the part of either extremist, terrorist, miscreants
or communal, ethnic, group clashes or due to firing of security forces, but
merely refer to the said provisions for the purpose of arriving at the quantum of
compensation that may be payable.
23. Although the death may not have been caused because of any extremist,
terrorist or miscreants violence or because of communal, ethnic or group
clashes or because of any firing of security force or because of any acts
attributed to the police force, but the death can also be construed to have been
caused as because a timely appropriate and adequate medical facility could not
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been provided to the deceased husband of the petitioner because of an error of
judgment on the part of the medical authorities regarding his underlying
medical condition.
24. From such point of view, the respondents through the Home Department
of the Government of Assam is directed to pay an amount of Rs. 5, 00, 000/-
(rupees five lakhs) as compensation to the writ petitioner Shahar Banu, who is
admittedly the wife of the deceased Md. Idrish Ali and therefore, would have to
be understood to be the best qualified next of kin of the deceased person.
25. The payment of compensation be made within a period of two months
from the date of receipt of a certified copy of this order.
26. The writ petition is allowed to the extent as indicted above.
JUDGE JUDGE
Comparing Assistant
