Jharkhand High Court
Anita Devi vs State Of Jharkhand on 18 November, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A No. 187 of 2015
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Anita Devi, wife of Late Basudeo Yadav, permanent resident of
Village Ratabhiar , P.O. & P.S. Gande, District Giridih.
.... ...Appellant
Versus
1. State of Jharkhand.
2. Principal Secretary, Department of Home, P.O & P.S. Dhurwa,
Government of Jharkhand, District Ranchi.
3. Deputy Commissioner, Bokaro, P.O & P.S. Bokaro, District-
Bokaro.
4. Superintendent of Police Bokaro, P.O & P.S. Bokaro, District-
Bokaro. ... ... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner : Mrs. Leena Mukherjee, Adv.
For the Respondents : Mr. Shubham Mishra, AC to SC
(Mines ) I
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CAV on:- 03.10.2024 Pronounced on:-18 /11/2024
Per- Deepak Roshan, J.
This intra court appeal has been preferred by the
appellant/petitioner against the judgment dated
13.02.2015 passed in W.P.(C) No.3966 of 2013 by the
learned Writ Court rejecting the claim of exemplary
compensation.
The writ petition was filed by the petitioner (appellant
herein) for following reliefs:
i) An appropriate writ, order or direction, holding the
concerned respondents authorities guilty as due to their
negligence and having violated the right to life, dignity
and equality which ultimately led to death in judicial
custody of late Basudeo Yadav;
(ii) An appropriate writ, order or direction commanding
upon the respondents to take suitable action against the
negligent officials/employees of the respondents due to
which late Basudeo Yadav lost his life.
(iii) A further writ, order or direction, commanding upon
the respondents to pay exemplary compensation to the
petitioner taking into consideration the fact that the
husband while in custody of the respondents had lost
his life.
(iv) Any other appropriate writ(s) be issued, order(s) be
passed or direction(s) be made as may be deemed fit
and proper for doing conscionable justice to the
petitioner.
2. The brief facts of the case as incorporated in the
impugned order is that the husband of the petitioner
(appellant herein) namely, late Basudeo Yadav was
appointed as constable in the Jharkhand police in the
month of April, 2005. While on duty, the husband of the
petitioner was arrested on 26.12.2011 and was sent to
judicial custody in connection with Bokaro Steel City PS.
Case No. 492 of 2011 registered under Section 392 of the
Indian Penal Code and he was placed under suspension
vide order dated 01.02.2012.
The fact further reveals that the husband of the
petitioner was implicated in several other cases registered
for various offences including offences under Sections 419,
420, 379, 392 etc. of the Indian Penal Code. While in
judicial custody, the husband of the petitioner suffered
depression on account of his false implication in criminal
cases and at the request of the jail authorities, he was sent
for treatment and he was admitted in RINPAS, Ranchi on
17.04.2012 where two constables namely, Dinanath Pandey
and Sanjay Kumar Singh were deputed for custody of the
husband of the petitioner.
On 29.06.2012, when both the constables were
absent from duty, the husband of the petitioner allegedly
escaped from hospital and Kanke PS. Case No. 108 of 2012
was registered under Section 224 of the Indian Penal Code
on 29.06.2012 in this connection. Finally, the dead body of
the husband of the petitioner was found on the railway
track at Bokaro on 29.06.2012 and an U.D. Case No. 06 of
2012 was also registered on 30.06.2012.
3. It has been submitted by the learned counsel for the
appellant that on account of negligence of the aforesaid
police constables who were deputed for keeping eye upon
the appellant's husband were negligent; her Husband
probably went outside RINPAS and his dead body was
found.
She further submits that though one of the prayers
was with regard to taking action against those two negligent
constables, they were finally placed under suspension vide
order dated 05.07.2012; however, no exemplary
compensation has been awarded by the respondents. She
further submits that after the death of her husband the
appellant found it very difficult to maintain herself and her
two children.
Learned counsel lastly submits that admittedly the
husband of the appellant was in judicial custody and due
to negligence on the part of the two constables namely,
Dinanath Pandey and Sanjay Kumar Singh he was found
dead and thus, it requires no further proof that the
respondent-State has failed to protect the life of the
husband of the appellant; and accordingly learned counsel
prays for reversal of the Writ Court order and consequently
prays for a direction upon the respondent State to pay
compensation amount of Rs.10,00,000/- (Ten Lakh) to the
appellant who is widow of the deceased, who died in
police/judicial custody.
4. Before the Writ Court the State has taken a
preliminary objection that the matter involves disputed
question of fact which cannot be adjudicated in the writ
proceeding. Learned counsel for the respondent-State
before us has contended that the petitioner was suffering
from mental disease and it is not found as to whether on
account of the negligence on the part of the constables, his
death occurred for which the State would be liable to pay
compensation or not, and the same is matter which can be
adjudicated in a proper proceeding. Accordingly, there is no
error in the order passed by the learned Writ Court and the
appeal is liable to be dismissed in limine.
5. Having heard learned counsel for the parties and after
perusing the impugned order passed by the learned Writ
Court, it appears that the learned Writ Court had
distinguished the judgment relied upon by the
appellant/petitioner namely Jahira Nessa Bewa case and
Munni Devi by observing that the husband of Jahira Nessa
Bewa died in police lock-up due to police torture and in
Munni Devi case the accused Arbind Singh was suffering
from hyper tension, renal failure and in that case on
account of negligence on the part of the authority the
accused was neither shifted nor any step was taken for his
treatment which resulted in his death (refer para-8). On
these reasoning the learned Writ Court rejected the
contention of the appellant/petitioner.
The learned Writ Court further distinguished the
judgment passed in Nilabati Behera (Smt.) @ Lalita
Behera Vs. State of Orissa and others reported in (1993)
2 SCC 746 by observing that in the said case the Hon'ble
Apex Court finally concluded that it was a custodial death,
however the present case is not a case of custodial death;
and there is no judicial finding that the husband of the
petitioner died due to negligence on the part of the two
constables named above (refer para-11).
6. This finding of the learned Writ Court is factually
incorrect, inasmuch as, admittedly while the husband of
the appellant was in judicial custody he suffered acute
depression and at the request of jail authorities he was sent
for treatment to RINPAS, Ranchi and was admitted on
17.04.2012 where two constables namely, Dinanath Pandey
and Sanjay Kumar Singh were deputed for custody of the
husband of the appellant. It is also an admitted fact that on
29.06.2012 when both the constables were absent from
duty, the husband of the appellant/petitioner escaped from
hospital and Kanke P.S. Case No.108 of 2012 was
registered under Section 224 of the IPC on 29.06.2012 and
finally the dead body of the husband of the
appellant/petitioner was found on the railway track at
Bokaro on 29.06.2012 and pursuant thereto U.D. Case
No.06 of 2012 was also registered on 30.06.2012.
It is also found from record that on account of
negligence of the two constables named above they were
placed under suspension vide order dated 05.07.2012.
Thus, from the facts narrated herein above, it is
crystal clear that due to the negligence of the two
constables who were deputed for custody of the husband of
the petitioner, who was suffering from "Psychotic
Depression", the appellant's husband escaped and finally
his dead body was found. Therefore, we disagree with the
finding of the learned Writ Court that husband of the
petitioner did not die due to negligence on the part of two
constables named above.
From record it also appears that the learned Writ
Court had observed that in the synopsis there was some
mismatch with the averments made in the main petition
and the learned Writ Court has given a detail observation in
paragraph-14 of its judgment.
7. It is a well settled principle that it is a constitutional
obligation of the respondent-State to protect life and liberty
of every citizen including inmate in prison. It is also well
settled that it is not necessary that compensation can be
awarded in case of custodial death only; rather once it is
found that death has occurred in custody either police or
judicial and whether the death is suicidal or homicidal, the
State is liable to pay compensation to the family of the
victim.
8. As stated herein above, the deceased died while he
was in RINPAS under the watch of the two above named
constables, who were deputed as the deceased was referred
to RINPAS due to his "Psychotic Depression", while he was
in judicial custody. As such, once a person is taken in
custody and he dies the burden is always on the State to
explain how he died and what is the cause of his death.
Enforcement of constitutional right and grant of
redress embraces award of compensation as part of legal
consequences of its contravention. Award under
compensation under Article 32 and Article 226 of the
Constitution is a remedy available in public law based on
strict liability for contravention of fundamental rights to
which the principle of sovereign immunity does not apply,
even though it may be available as a defence in private law
on an action based on tort.
9. At this stage it is necessary to opine that under public
law proceedings Court can evolve new tools and mould
remedy to provide redressal in case of deprivation of
fundamental rights like the right under Article 21 of the
Constitution of India. The Public law proceedings are
different from private law proceedings and award of
compensation in proceedings for enforcement of
fundamental rights under Article 32 and 226 of the
Constitution of India is a remedy available in public law.
10. Similar issue arose and was decided
in Maharaj v. Attorney General of Trinidad and
Tobago [(1978) 2 All E.R. 670.] This case related to Section 6
of the Constitution of Trinidad and Tobago, 1962, in
Chapter pertaining to human rights and fundamental
freedoms. Section 6 provided for an application to the High
Court for redress. The question was whether the provision
permitted an order of monetary compensation. A contention
was raised that an order for payment of compensation did
not amount to enforcement of right that had been
contravened. This was expressly rejected. It was held that
an order of payment of compensation, when a right
protected has been contravened is clearly a form of redress,
which a person was entitled to claim under Section 6 and
may well be the only practicable form of redress. Lord
Diplock, delivering the majority judgements, held that the
jurisdiction to make such an order is conferred on the High
Court, viz jurisdiction to hear and determine any
application made by any person in pursuance of sub-
section (1) of Section 6 and that the very wide power to
make orders, issue writs and give directions are ancillary to
this. Lord Diplock further spoke as under:--
"Finally, their Lordships would say something about the measure
of monetary compensation recoverable under Section 6 where
the contravention of the claimant's constitutional rights consists
of deprivation of liberty otherwise than by due process of law.
The claim is not a claim in private law for damages for the tort of
false imprisonment, under which the damages recoverable are at
large and would include damages for loss of reputation. It is a
claim in public law for compensation for deprivation of liberty
alone."
11. The aforesaid approach also finds support from the
decision of Hon'ble Apex Court in the case of Bhagalpur
Blinding cases: Khatri (II) v. State of Bihar reported in
(1981) 1 SCC 627 wherein the Hon'ble Apex Court has
observed that it would not be helpless to grant relief in
cases of violation of right to life and personal liberty and it
should be prepared to new tools and device new remedies
for purpose of vindicating these precious fundamental
rights.
12. Having regard to the aforesaid discussion and the
observations rendered by the judicial authorities, we are
having no hesitation in holding that the
appellant/petitioner is entitled for compensation which is to
be borne by the State as admittedly the appellant's
husband was initially remanded in the judicial custody
from where he was transferred to RINPAS due to his
suffering from "Psychotic Depression" and two of the
constables were deputed for his custody and the husband
of the appellant escaped and his dead body was found. As
such, the observation of the learned Writ Court that it will
not be deemed to be a judicial custody does not appear to
be correct.
13. As a result, the order dated 13.02.2015 passed in
W.P.(C) No.3966 of 2013 is hereby quashed and set aside.
The State is directed to pay Rs.4,00,000/- (Four Lakh) to
the appellant/petitioner within a period of 12 weeks from
the date of receipt/production of a copy of this order.
14. Consequently, the instant LPA stands allowed.
Pending application(s), if any, also closed.
(M.S. RamachandraRao, C.J.)
(Deepak Roshan, J.)
Fahim/
AFR/NAFR
