State Of Sikkim vs National Human Rights Commission
2021 Latest Caselaw 79 Sikkim

        THE HIGH COURT OF SIKKIM: GANGTOK
                   (CIVIL EXTRA ORDINARY JURISDICTION)
------------------------------------------------------------------------------------------
Single Bench: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
------------------------------------------------------------------------------------------

                           W.P.(C) No. 46 of 2021

      State of Sikkim,
      Through the Chief Secretary,
      Government of Sikkim,
      Gangtok,
      East Sikkim.                                            ....    Petitioner

                                   Versus
      National Human Rights Commission,
      Through the Secretary General,
      National Human Rights Commission,
      Manav Adhikar Bhawan,
      Block-C, GPO Complex,
      INA, New Delhi - 110023.                                 ....   Respondent

          Petition under Article 226 of the Constitution of India
      ----------------------------------------------------------------------------
      Appearance:
      Mr. Hissey Gyaltsen, Assistant Government Advocate for the
      petitioner.
      -----------------------------------------------------------------------------
                       J U D G M E N T (ORAL)

( 03.12.2021)

Bhaskar Raj Pradhan, J.

1. Heard Mr. Hissey Gyaltsen, learned Assistant Government

Advocate.

2. The State of Sikkim has preferred this writ petition under

Article 226 of the Constitution of India seeking a writ for setting aside

the show cause notice dated 13.01.2021 and orders dated 9.6.2021

and 14.9.2021, passed by the National Human Rights Commission

(NHRC) in NHRC Case No. 1/21/3/2020-jcd relating to the suicide of

W.P.(C) No. 46 of 2021 State of Sikkim vs. National Human Rights Commission

an under trial prisoner (UTP) Roshan Chettri in District Jail, Namchi,

as being arbitrary and illegal.

3. On 13.01.2021, the NHRC issued a show cause notice to

the Chief Secretary of the petitioner stating, inter alia, that the

Commission had received intimation on 06.05.2020 from the Jailor,

District Jail, Namchi, Sikkim, regarding suicide by the UTP Roshan

Chettri (aged about 27 years), son of Shri Dilip Chettri in the prison on

04.04.2020. The show cause notice also records that the Investigation

Division of NHRC after collecting/analyzing relevant reports/records

has submitted that the deceased UTP was a covid-19 positive patient

and was in quarantine along with another UTP. On 04.04.2020, at 11

a.m., the deceased made an attempt to commit suicide by hanging

on the door of his cell with the help of cloth of the blanket

provided to him but that act was noticed by his cell mate who

caught hold his body and called out for help. Subsequently, jail

authorities arrived and brought him down by cutting the blanket

cloth. He was immediately shifted to hospital wherein he died

during the treatment. The inquest and the Post Mortem

Examination (PME) revealed no injury on the body of the

deceased other than ligature marks, the cause of death was

asphyxia due to hanging. The Magisterial Enquiry Report (MER)

conducted by the learned Judicial Magistrate, South Sikkim,

Namchi, concluded that no medical negligence and foul play was

found in the death of the deceased and that he committed

suicide by hanging.

W.P.(C) No. 46 of 2021 State of Sikkim vs. National Human Rights Commission

4. The show cause notice further recorded that vide

direction dated 11.12.2020, the Commission after considering

the relevant reports had considered and directed as under:-

"Prima facie, the deceased committed suicide in day time i.e. at 11:10 AM. Ensuring the safety and security of inmates who are under care and custody of the prison is one of the prime duties of the authorities concerned in which it failed. Had the prison authorities been vigilant enough, this incident could have been avoided and the precious life would have been saved. Hence, the State is vicariously liable to compensate the next of kin of the deceased under trial prisoner."

5. The show cause notice thereafter required the

petitioner to show cause as to why monetary compensation of

Rs.3,75,000/- should not be recommended under section 18(a)(i)

of the Protection of Human Rights Act, 1993, to be paid to the

next of kin of the deceased Roshan Chettri.

6. On 05.03.2021, the petitioner responded to the show

cause notice stating that no case of negligence on the part of jail

administration was found during the judicial enquiry by the

learned Judicial Magistrate, South Sikkim at Namchi. The

petitioner also forwarded the following documents to the NHRC:-

"(i) The detailed report of DIGP, State Central Prison, Rongyek received vide letter dated No. 463/GOS/PRISON/2021 dated 25/02/2021;

                        (ii)    Letter to the Ld. CJM, South District by the
                                Jailer,    Sub   Jail,    Namchi  regarding
                                commission of suicide by UTP Roshan
                                Chhetri;

(iii) final enquiry report of Ld. JM, Namchi u/s 176 of Cr.PC. 1973;

(iv) Warrant of Commitment to Judicial Custody;

(v) Report submitted to the Sikkim Human Rights Commission;

                        (vi)    First Information Report;

                             W.P.(C) No. 46 of 2021

State of Sikkim vs. National Human Rights Commission

(vii) Inquest Form u/s 174 of Cr.PC of Namchi Police Station;

(viii) Inquest Report u/s 176 of Cr.PC of Judicial Magistrate, Namchi;

(ix) Post Mortem Report of the deceased Roshan Chettri;

(x) Statement of witnesses taken by the Police;

(xi) Final Report of a reported case of unnatural dead (sic „death‟) u/s 174 of Cr.PC. 1973."

7. In the meanwhile, Dilip Chettri, father of the deceased

Roshan Chettri, filed a Writ Petition (Civil) No. 02 of 2021 (Dilip

Chettri vs. State of Sikkim & Others) under Article 226 of the

Constitution of India. The writ petition prayed for a direction

upon the state respondents to pay compensation to the tune of

Rs.20,00,000/- as well as for an independent investigation of the

incident of the alleged suicide by a retired judge or a government

officer or any other person as deemed fit. The writ petition was

taken up on 12.03.2021 by the learned Single Bench of this

court and the following order was passed:-

"After hearing Learned Counsel for the Petitioner and duly considering the matter, this Writ Petition deserves to be and is dismissed in limine."

8. Thereafter, the NHRC vide communication dated

09.06.2021 addressed to the Chief Secretary of the petitioner,

informed that the Commission on 09.06.2021 had directed as

follows:-

".................... In the instant case, the Commission had received an intimation on 06.05.2020 from Jailor Dist. Jail Namchi, Sikkim regarding suicide by under trial prisoner Roshan Chhetari (aged about 27 year), S/o Dilip Chhetrari in the prison on 04.04.2020.

Vide proceeding dated 24.04.2021, the Commission observed and directed as under-

W.P.(C) No. 46 of 2021 State of Sikkim vs. National Human Rights Commission

"Pursuant to the directions of the Commission, letter dated 05.03.2021 has been submitted by the Joint Director (Confdl.), Home Department, Govt. of Sikkim who has submitted the detailed report, Letter to Ld. CJM, South District, final enquiry report, warrant of commitment to judicial custody, report submitted to Sikkim Human Rights Commission, First Information Report, Inquest form and report, post mortem report of the deceased, statement of witnesses, final report of a reported case of unnatural death U/sec. 174 Cr.P.C. As per the attached detailed report of the DIGP, State Central Prison dated 25.02.2021, the authority has relied upon the judicial enquiry and the final report filed by the P.S. Namchi, which does not establish any negligence on the part of the jail administration, district prison, Namchi.

The Commission has taken note of the contents of the reports/reply to the show cause notice submitted by the authorities and has also considered the facts and circumstances of the case. Admittedly the prisoner was in the care and custody of the State and it was the bounden duty of the State to ensure his safety. It is also an admitted fact that he had committed suicide in day time i.e. at 11:10 AM so had the prison authorities been vigilant enough, this incident could have been avoided and a precious life would have been saved. Hence, the Commission is not inclined to review its order of payment of monetary compensation of Rs.3,75,000/- (Rs. Three Lakhs Seventy Five Thousand only) to the NoK of the aforesaid deceased UTP and hence confirms its recommendation.

The Chief Secretary, Govt. of Sikkim is directed to submit the proof of payment of monetary compensation of Rs.3,75,000/- (Rupees Three Lakhs Seventy-Five Thousand only) to the NoK of the deceased UTP within six weeks failing which the Commission will be constrained to invoke its coercive power u/s 13 of the PHR Act, 1993 calling for the personal appearance of the authority concerned before the Commission."

The Commission observes that the requisite reports from aforesaid authority is still awaited.

In normal circumstances, such non responsive attitude towards direction of the Commission would have invited issuance of summons u/s 13 of the PHR Act, 1993 calling for his personal appearance before the Commission, but in view of the pandemic situation in the country, last opportunity is being given to the Chief Secretary, Govt. of Sikkim for submission of requisite compliance report along with proof of payment within four weeks failing

W.P.(C) No. 46 of 2021 State of Sikkim vs. National Human Rights Commission

which the Commission would be constrained to invoke its coercive power u/s 13 of the PHR Act, 1993 calling for the personal appearance of the authority concerned before the Commission.............................."

9. On 16.07.2021, the petitioner wrote to the NHRC

informing them, inter alia, that a Writ Petition (Civil) No. 02 of

2021 (supra) was filed by the father of the deceased before this

court on 09.03.2021 praying for compensation which came up

for hearing on 12.03.2021 and this court after hearing the

learned counsel for the petitioner dismissed it in limine "on merit

of the case and duly considering the matter". The petitioner thus

urged the NHRC that the petitioner may be exempted from

payment of compensation as the proceeding before the NHRC

was barred by the principle of res judicata.

10. On 14.09.2021, the NHRC made another

communication to the Chief Secretary of the petitioner stating

that on that day the Commission directed as follows:-

"The present matter pertains to intimation regarding death of UTP Roshan of District Jail Namchi, Sikkim.

In continuation of earlier proceedings vide proceedings dated 26.07.2021 this Commission has observed/directed as under:-

"In the instant case, the Commission had received an intimation on 06.05.2020 from Jailor Dist. Jail Namchi, Sikkim regarding suicide by under trial prisoner Roshan Chhetari (aged about 27 year), S/o Sh. Dilip Chhetari in the prison on 04.04.2020.

The Commission observes that the matter is pending for want of compliance report along with proof of payment of monetary compensation of Rs.3,75,000/- (Rupees Three Lakhs Seventy-Five Thousand only) to be paid to the NOK of the

W.P.(C) No. 46 of 2021 State of Sikkim vs. National Human Rights Commission

deceased UTP Roshan Chhetari (aged about 27 year), S/o Sh. Dilip Chhetari who committed suicide in the prison on 04.04.2020.

Registry is directed to issue final reminder to the Chief Secretary, Govt. of Sikkim for submission of compliance report along with the proof of payment within four weeks failing which the Commission shall be constrained to invoke its coercive power u/s 13 of the PHR Act, 1993 calling for the personal appearance of the authority concerned before the Commission."

Thus this Commission has sought the compliance report regarding the payment of monetary compensation of Rs.3,75,000/- to the NOK of deceased UTP. Pursuant to same a report dated 16.07.2021 is received from Joint Director (Home Department), Sikkim vide which he has submitted that since the writ petition of the victim‟s father has already been dismissed by Hon‟ble Sikkim High Court, the Commission shall review its order and State Govt. be exempted from the payment of compensation as directed by the NHRC. It is pertinent to observe here that vide proceedings dated 09.06.2021 this Commission has categorically declined the request of review of concerned State Government. This Commission has observed that:-

"The Commission has taken note of the contents of the reports/reply to the sow cause notice submitted by the authorities and has also considered the facts and circumstances of the case. Admittedly, the prisoner was in the care and custody of the State and it was the bounden duty of the State to ensure his safety. It is also an admitted fact that he had committed suicide in day time i.e. at 11.10 AM so had the prison authorities been vigilant enough, this incident could have been avoided and a precious life would have been saved. Hence, the Commission is not inclined to review its order of payment of monetary compensation of Rs.3,75,000/- (Rs. Three Lakhs Seventy Five Thousand only) to the NOK of the aforesaid deceased UTP and hence confirms its recommendation."

Thus this plea of the concerned authority has already been declined. In view of same the Chief Secretary, Govt. of Sikkim is recommended to pay the compensation to the NOK of deceased of Rs.3,75,000/- and submit a report in this regard within eight weeks."

W.P.(C) No. 46 of 2021 State of Sikkim vs. National Human Rights Commission

11. The NHRC vide the above communication requested

that the additional/compete report as directed by the

Commission in the matter be sent latest by 19.11.2021 for

further consideration by the Commission.

12. The petitioner aggrieved by the issuance of the show

cause notice and the impugned orders dated 09.06.2021 and

14.09.2021 has approached this court on eleven grounds.

13. On perusal of the grounds and hearing the learned

counsel, it is clear that the petitioner is primarily aggrieved on

five counts. The petitioner is aggrieved that inspite of the

dismissal of W.P.(C) No. 02 of 2021 (supra) by this court, the

NHRC has passed the impugned orders which was barred by the

principle of res judicata; that the show cause notice and the

impugned orders did not disclose the commission of violation of

human rights by the police authorities or the negligence of the

police authorities in prevention of violation of human rights; that

the NHRC could not have entertained the complaint under

Regulation 9(xi) and 9(xii) of the National Human Rights

Commission (Procedure) Regulations, 1994; and that the NHRC

did not consider the final inquiry report dated 20.05.2021 of the

learned Judicial Magistrate and the final report of the Namchi

Police Station. It is further argued that merely because suicide

took place during the day, it does not in any manner corroborate

or substantiate that there was any negligence on the part of the

W.P.(C) No. 46 of 2021 State of Sikkim vs. National Human Rights Commission

police authorities. Each of these grounds shall be considered

separately.

14. The admitted facts are that show cause notice was

issued on 13.1.2021; the father of the deceased UTP Roshan

Chettri filed W.P.(C) No. 02 of 2021 (supra) on 09.03.2021 which

was dismissed in limine on 12.03.2021. The impugned orders

were thereafter passed by the NHRC.

15. In Dario and others vs. State of Uttar Pradesh1, the

Supreme Court held as under:-

"19. We must now proceed to state our conclusion on the preliminary objection raised by the respondents. We hold that if a writ petition filed by a party under Art. 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Art. 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Art. 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Art. 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Art. 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. If the petition is

1 AIR 1961 SC 1457

W.P.(C) No. 46 of 2021 State of Sikkim vs. National Human Rights Commission

dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Art. 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other. .................................................................."

16. Thus, it is clear that if the petition is dismissed in

limine without passing a speaking order then such dismissal

cannot be treated as creating a bar of res judicata and although,

prima facie, dismissal in limine even without passing a speaking

order in that behalf may strongly suggest that the court took the

view that there was no substance in the petition at all, but in the

absence of the speaking order it would not be easy to decide what

factors weighed in the mind of the court and that makes it

difficult and unsafe to hold that such a summary dismissal is a

dismissal on merits and as such constitutes a bar of res judicata.

In the present case, this court is of the opinion that there is no

such issue. The order passed by the learned Single Bench on

12/03/2021 clearly records that it was dismissed, in fact, in

limine. The pronouncement of the learned Single Bench was

absolutely clear. It was a dismissal in limine. In view of the clear

W.P.(C) No. 46 of 2021 State of Sikkim vs. National Human Rights Commission

pronouncement of the Supreme Court, the dismissal of the writ

petition in limine does not act as res judicata against the

proceedings before the NHRC.

17. The next point urged by the learned counsel is the show

cause notice as well as the impugned orders not disclosing the

commission of violation of human rights by the police authorities or

the negligence of the police authorities in prevention of violation

of human rights. It is quite evident that the Commission was of the

firm view on both facts and law. The fact that the UTP committed

suicide during the day at 11:10 a.m. in the jail is not disputed by the

petitioner. The NHRC records that "ensuring the safety and security of

the inmates who are under care and custody of the prison is one of the

prime duties of the authorities concerned". This cannot be disputed. It

is quite obvious that had the jail authorities been vigilant enough, as

observed by the NHRC, this incident could have been avoided and the

precious life would have been saved. The State is vicariously liable to

compensate the next of kin of the deceased UTP. It is not the case of

the petitioner that the jail was not under its control when the incident

happened in the manner described and admittedly inside the jail.

There cannot be any doubt that the responsibility of ensuring the

safety of the inmates during the day or in the night as long as they are

in the prison is upon the said authorities. It may not have been at the

instance of any of the jail officers that the suicide was committed but

the fact that the incident has happened inside the jail makes the

petitioner vicariously liable.

W.P.(C) No. 46 of 2021 State of Sikkim vs. National Human Rights Commission

18. The National Human Rights Commission (Procedure)

Regulations, 1994 as amended, provides in Regulation 9 that in

certain cases complaints are not ordinarily entertainable. It provides

that the Commission may dismiss in limini complaints of various

nature as enumerated below:-

"(i) illegible;

(ii) vague, anonymous or pseudonymous;

(iii) trivial or frivolous;

(iv) barred under section 36(1) of the Act;

(v) barred under section 36(2) of the Act;

(vi) allegation is not against any public servant;

(vii) the issue raised relates to civil dispute, such as property rights, contractual obligations and the like;

(viii) the issue raised relates to service matters;

(ix) the issue raised relates to labour/industrial disputes;

(x) allegations do not make out any specific violation of human rights;

(xi) matter is sub judice before a Court/Tribunal;

(xii) matter is covered by a judicial verdict/decision of the Commission;

(xiii) where it is only a copy of the complaint addressed to some other authority;

(xiv) the matter is outside the purview of the Commission on any other ground."

19. Regulation 9(xi) relates to matter which are sub judice

before the court or tribunal. The admitted facts as pleaded do not

reflect that the NHRC entertained the complaint when the matter

was sub judice before this court. Regulation 9(xii) relates to

matter which is covered by the judicial verdict or decision of the

Commission. The arguments made by the learned counsel for the

petitioner relates to the dismissal of the writ petition in limine

which has already been discussed in detail above. Therefore,

even this ground does not help the petitioner's case.

W.P.(C) No. 46 of 2021 State of Sikkim vs. National Human Rights Commission

20. The final inquiry report passed by the learned

Judicial Magistrate, South Sikkim, Namchi, relates to the

procedure under section 176 of the Cr.P.C. and the final report of

the Namchi Police Station relates to the procedure under section

174 Cr.P.C. Both did not deal with the issue before the NHRC.

Consequently, this ground is also devoid of merits.

21. Having examined each of the grounds raised by the

petitioner, this court is of the considered view that the present

writ petition is misconceived and is liable to be dismissed.

22. It is accordingly ordered.

23. Pending interlocutory application also stands

disposed of.

                                            ( Bhaskar Raj Pradhan )
                                                   Judge




     Approved for reporting : Yes/No
     Internet              : Yes/No
bp