HIGH COURT OF ORISSA: CUTTACK
O.J.C. No.13732 of 1998
In the matter of an application under Articles 226 and 227 of the Constitution of India.
W/o. Late Maheswar Das,
Village : Ganja, P.O. /P.S. Rajkanika,
Dist: Kendrapada. ... Petitioner -Versus-
State of Orissa and others ... Opp. Parties For Petitioner : Mr. Dharanidhar Nayak For Opp. Parties : Government Advocate Rajesh Kumar Chhotray &
P R E S E N T:
THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of Judgement: 20.09.2011
B.N. Mahapatra, J. This writ petition has been filed by the widow of an under-trial prisoner namely, Maheswar Das, who died in jail custody, praying for a direction for investigation of the matter by the C.B.I. or any other independent investigating agency free from influence of the State machinery in order to unearth the facts in connection with the custodial death of her husband and for a further direction to the opposite parties to pay compensation to the tune of Rs.5,00,000/- to the bereaved family of the deceased.
2. Case of the petitioner in a nutshell is that late Maheswar Das was working as a driver in the Police Department at Panikoili Headquarters in the district of Jajpur. While he was serving as such, he was implicated in a murder case, convicted and sentenced for life imprisonment by the learned Additional Sessions Judge, Bhadrak. Against the impugned order of conviction and sentence, the deceased- Maheswar Das preferred Criminal Appeal No.216 of 1997 before this Court. Before conviction by the trial Court, he was made to suffer in Bhadrak Jail, thereafter he was shifted to Central Jail, Choudwar, Cuttack. During stay at Choudwar Jail, the deceased fell ill and he got admitted in SCB Medical College, Cuttack. The petitioner-wife after coming to know that her husband has been admitted in the S.C.B. Medical College & Hospital, Cuttack, came with her children, saw her husband and returned to village on 07.08.1998. Thereafter, on 11.08.1998 some police personnel came in a car to the village of the petitioner, met her and disclosed that her husband had escaped from the medical college while he was under treatment. On hearing such message, the petitioner requested the police personnel to intimate the whereabouts of her husband to her, in the event her husband would be traced out. Ten days thereafter, on 22.08.1998, Manguli Mallick, the Chowkidar of Rajkanika Police Station came to Ganja and intimated the petitioner that her husband had committed suicide. The said Chowkidar handed over a slip/chit, (Annexure-1) wherein the O.I.C., Rajakanika Police Station had written that her husband was dead. Further, it was also written that the dead body of her husband was kept in post-mortem room of S.C.B. 3
Medical College, Cuttack. The chit under Annexure-1 written by the O.I.C., Rajakanika Police Station bears no seal or signature of any authority of Rajakanika Police Station. By the time the chit was received by the petitioner, it was on 22.08.1998 at 7 P.M. Since there was no facility to come to Cuttack Medical at that particular time to see her husband, she came by bus in the next morning i.e. on 23.08.1998 to see her husband and reached at the Medical college wherefrom the petitioner came to know from the official sources of the post-mortem section that just by the time she reached, the jail authorities and the employees had taken away the dead body of her husband from the post-mortem section. The petitioner immediately telephoned to the Jail Authorities, who declined to intimate anything regarding the matter and thereafter the jailor on being asked told that the jail authorities have already cremated/ disposed of the dead body. Because of such hasty activities of the jail authorities, the family members of the deceased could not pay last visit to the deceased. The widow-petitioner sent an F.I.R. to the Mangalabag Police Station, Cuttack mentioning therein how and why the dead body of her husband was not handed over to her.
3. Mr. D.Nayak, learned counsel appearing for the petitioner submits that the petitioner has three minor children, one son of 11 years, two daughters of about 8 years and 4 years and 80 years old father in-law. Her husband was the only breadwinner of the family and after his death, the bereaved family members are starving. In a local daily 'The Sambad' dated 23.08.1998 a news item was published that deceased-Maheswar Das had been beaten to death whereas the Police 4
colourized the same to be a suicide. While the deceased was undergoing treatment he was untraced and later on Police could be able to find him out at Jajpur on 11.08.1998.
4. It is further argued that after the deceased was found out by the Police, he was meted out with persecution by the Police resulting in his death or he was made to die. Similarly, in other local dailies the cause of death was published to be suspicious one. The probable suspicion is that the Police, who arrested Maheswar from Jajpur and the jail authorities, are the authors of the custodial death of Maheswar Das. Annexure-1 shows the conduct and the manner of information regarding death of the convict-Maheswar that was intimated to the petitioner. From the post-mortem Section of S.C.B. Medical College & Hospital, Cuttack, the petitioner came to know that the dead body was hurriedly taken away and thereafter when telephone contact was made initially the jail authority declined to disclose anything regarding the death of the convict and thereafter intimated that the dead body had been cremated. The manner of cremation of the dead body and disposal of the same hurriedly makes it clear that the activities and conduct of the jail authorities and the concerned Police who caused arrest of the convict- Maheswar on 11.08.1998 made him to die. The jail authorities declined to disclose the matter and later only disclosed that the deceased-convict committed suicide and the dead body had already been disposed of. The jail authorities and the Police who are protectors of such convict have usurped their jurisdiction/limit. It is further clear from the mode of approach regarding disposal of the dead body in absence of any relations 5
of the victim deceased is nothing but the reign of anarchism and arbitrariness which otherwise could be said to be custodial torture. Right to life includes within itself a guarantee against torture and assault by the State and its functionaries. The right is guaranteed under Article 21 of the Constitution of India to the convict, under trial detenu and other prisoners in the custody. The State functionaries have hushed up the entire incident and thereby made abuse of their jurisdiction. Due to calculated assault and other torture the deceased victim succumbed to that. Therefore, suitable action should be taken against the jail authorities. The manner the State functionaries, the jail authorities and the Police dealt with deceased Maheswar Das and his family members and disposed of the dead body without intimating the same to the family members are quite unexpected in a democratic and civilized society governed by rule of law. Because of the arbitrary action of the State functionaries, the petitioner and his family members were deprived of their right to pay their last visit to the deceased victim.
5. Law is well settled that there is great responsibility on the Police and other concerned authorities to see that a citizen is not deprived of his right to life. No action has been taken by the opposite party-authorities on the basis of the FIR sent by the petitioner to opposite party No.6 and a copy whereof sent to opposite party No.3. In the peculiar circumstances, monetary and pecuniary benefit should be extended to the bereaved family members of the deceased for the wrong done by the functionaries of the State. The State is vicariously liable to pay compensation to the victim deceased. The State authorities should 6
pay compensation of Rs.5,00,000/- besides Rs.10,000/- towards funeral expenses.
6. Learned Government Advocate appearing for opposite parties 1 and 2 referring to counter submitted that the death of the deceased Maheswar Das is a clear case of suicidal death. The deceased was a psychiatric patient and was suffering from Plumonry Tuberculosis. Before his death, he had undergone psychiatric treatment. After death of Maheswar Das, the information was duly sent to different quarters including the Officer in-charge of Rajkanika Police Station wherein it had been stated to inform the death to the family members of deceased Maheswar Das, on the same day of occurrence, i.e., 22.08.1998 by VHF message so as to receive the dead body. Since the family members of deceased Maheswar Das did not turn up in time the jail authorities disposed of the dead body because there was every possibility of decomposition of the dead body. The convict Maheswar Das was initially admitted to Special Sub-Jail, Bhadrak on 06.02.1996 and during trial he was released on bail on 22.11.1997. Even after being convicted he was admitted to Special Sub Jail, Bhadrak as a life convict on 26.06.1997. Since his admission to the Special Sub Jail, Bhadrak on 06.02.1996 the deceased was given medical treatment regularly. On 09.02.1996, he was treated and was given medicines for anti-depression. He was sent to Mental Department of S.C.B. Medical College and Hospital, Cuttack on 12.03.1996 for medical check up. It was also ascertained that prior to his admission to the Jail the deceased was under treatment of Dr. P.Sarojini Das, Psychiatric Consultant. The death 7
of the deceased was due to suicidal hanging as is evident from the post mortem report. Thus, no mala fide can be attributed to the State functionaries due to the previous mental condition and health of the deceased convict.
7. Opposite parties, especially the jail authorities, have taken adequate steps for treatment of the deceased convict and suicidal death may be due to anti-depression of the deceased. The statements published in some daily newspapers are false and fabricated and without any reason. The deceased had never been tortured while in custody. Opposite parties 2 and 4 have not violated the guidelines of the Hon'ble Supreme Court of India and Article 21 of the Constitution. The death of the deceased was enquired into by the Executive Magistrate-cum- Tahasildar, Tangi-Choudwar, local Police of Choudwar Police Station and ultimately Human Rights Commission. There was no ill-treatment to the prisoner and there was also no negligence on the part of the jail authorities leading to suicidal death of the deceased. On 27.06.1998, the deceased Maheswar Das had tried to commit suicide inside the jail and could survive because of one convict Bijaya Kumar Rath, who had seen him attempting to commit suicide. Therefore, he was referred to Psychiatrist of the jail who examined him and diagnosed as an old case of Psychiatric patient and suggested to keep him in cell for his suicidal tendency. Therefore, the deceased was referred to S.C.B. Medical College and Hospital, Cuttack for treatment of P.T.B. He was admitted in the said hospital on 16.07.1998 as an indoor patient in the Department of T.B. Surgery and there the jail authority requested the family member of 8
the deceased Maheswar Das to attend him at S.C.B. Medical College and Hospital, Cuttack through the Officer in-charge, Rajkanika Police Station vide Office letter No.2720 dated 20.07.1998. During the course of his treatment in S.C.B. Medical College and Hospital, Cuttack the deceased convict tried to escape from police escort on 07.08.1998 and again the deceased convict was recaptured by the Police from one of his relations and was readmitted on 11.08.1998 in Circle Jail, Cuttack at Choudwar. Since the deceased convict was not taking medicine regularly for which one convict-Patia Gochhayat was engaged to give him medicine regularly and in time.
8. During the Course of his treatment, on 22.08.1998, he committed suicide in Cell No.2 of Block No.1 inside the jail by hanging himself by means of his own daily wearing. Immediately, thereafter the local Police and the Executive Magistrate-cum-Tahasildar, Tangi- Choudwar investigated into the matter and the dead body was sent to S.C.B. Medical College and Hospital, Cuttack for post mortem. After the post mortem was done, the jail authorities intimated for arrival of the family members of the deceased, but the family members of the deceased did not turn up nor any intimation was given to the jail to receive the dead body of the deceased-Maheswar Das. Finally, at 8 PM, the dead body was sent to Khannagar Crematorium at the government cost because there was every possibility of decomposition / putrefaction of the dead body. The jail authorities had taken proper steps for treatment of deceased Maheswar Das. Due to his mental imbalance condition with other diseases he committed suicide. The Government functionaries 9
cannot be attributed to falsehood. All the relevant documents in connection with suicidal death of deceased Maheswar Das were sent to the N.H.R.C., New Delhi through the Collector and District Magistrate, Cuttack, which included inquest report, post mortem report, and video clipping of post mortem report on medical treatment given to the deceased Maheswar Das.
9. On rival contentions of the parties, the only question that falls for consideration by this Court is as to whether due to negligence on the part of the functionaries of the State, deceased Maheswar Das died in jail custody.
10. It is not in dispute that the husband of the petitioner died while in jail custody. At the time of death, deceased Maheswar Das was 45 years of age as per Post-mortem report. According to the petitioner, the death of the deceased was caused due to ill treatment and mental torture meted out to her deceased husband which has been denied by the respondent-authorities. It is in their counter affidavit the respondent State authorities stated that the deceased Maheswar Das was a Psychiatric patient. It is further stated that on 27.06.1998 the deceased had tried to commit suicide inside the jail custody and survived because of one convict Bijay Kumar Rath, who saw him attempting to commit suicide. It is further stated that during the course of his treatment on 22.08.1998 he committed suicide in Cell No.2, Block No.1 inside the jail by hanging himself by means of his own daily wearing.
11. It is pertinent to note here that though respondent- authorities stated that they took some steps for treatment of the 10
deceased victim, they have not stated anything as to what special preventive measures were taken by them to prevent deceased Maheswar Das from committing suicide, who according to them, was a psychiatric patient and earlier on 27.06.1998 the deceased had tried to commit suicide in jail custody, but became unsuccessful. If proper attention had been given, deceased Maheswar Das could not have committed suicide inside the jail by hanging himself by means of his daily wearing materials. The Jail Authorities could have provided such daily wearing by means of which he could not have been able to commit suicide. Further, he could have been kept inside a cell where any attempt to commit suicide could have been noticed either by jail inmates or by jail employees. The carelessness of the opposite party-authorities is well evident from Annexure-1 by which the petitioner was intimated about the death of her husband. Annexure-1 through which intimation was given to the petitioner regarding death of her husband contains the following endorsement in Oriya which has been translated into English. Maheswar Das, son of Narahari Das, Village: Ganja Died today by committing suicide in Choudwar jail. His dead body is lying near PM room at CTC. Bada Hospital.
There was no date, no signature, no stamp or seal of any authority in Annexure-1. This shows casual attitude of the opposite party-authorities so far as the deceased is concerned. Petitioner's averment in the writ petition is that on 22.08.1998 the Choukidwar of Rajkanika PS came to Ganja and intimated the petitioner that her husband Maheswar committed suicide and had died and by the time the chit was received by 11
the petitioner it was evening 7 PM and there was no facility to come to Cuttack to reach S.C.B. Medical College & Hospital to see her husband for which on the next day morning she took up first earliest bus and reached Cuttack where she came to know from the officials of PM Section of SCB Medical College & Hospital that by the time she reached, the PM officials along with the jail authorities had taken away the dead body of her husband from post mortem section. When the jail authorities were contacted, they declined to intimate anything regarding the matter and thereafter the jailor on being asked told that the dead body of deceased Maheswar Das had already been cremated and disposed of. This averment made in the writ petition and also in Annexure-1 have not been denied by the jail authorities. Due to laches on the part of opposite party- authorities, the wife and other family members of the deceased convict failed to see the dead body for the last time before it was cremated. It is certainly heart-burning and very unfortunate.
12. Needless to say that the Hon'ble Supreme Court in several decisions has observed that the precious right guaranteed under Article 21 of the Constitution of India cannot be denied to the under trial or other prisoners in custody, except according to the procedure established by law. The prison authority has a great responsibility to ensure that a citizen in custody is not deprived of his right to life. He must be afforded with minimum necessities of life.
13. The apex Court in the case of D.K. Basu v. State of West Bengal, AIR 1997 SC 610 held as follows:
"Custodial death is perhaps one of the worst
crimes in a civilised society governed by the Rules of 12
Law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. Court cannot wish away the problem. 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 anarchism. No civilised 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 ? These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic 'No'. The precious right guaranteed by Article 21 of the Constitution of India 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."
14. The apex Court, in the case of Chameli Singh & others Vs. State of Uttar Pradesh and another, AIR 1996 SC 1051, held as follows:
"Right to life" means to live like a human being and it is not ensured by meeting only the animal needs of man. It includes the right to live in any civilised society implies the right to food, water, decent environment, education, medical care and shelter."
15. The term "life" used in Article 21 of the Constitution of India has a wide and far-reaching concept. It means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. (vide Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni, AIR 1983 SC 109; Olga Tellis & Ors. Vs. Bombay Municipal Corporation & Ors., AIR 1986 SC 180. 13
16. In the case at hand, we are not satisfied that the opposite party-authorities have taken adequate care of the deceased-Maheswar Das in providing proper medical treatment and preventive measures for which he died prematurely at the age of 45 years by committing suicide. Therefore, the widow-dependants of the deceased-Maheswar Das is entitled for compensation.
17. At this juncture, it is profitable to refer to some paragraphs from the decision of the apex Court in D.K.Basu (supra) wherein the apex Court held as under:
"42. Some punitive provisions are contained in the Indian Penal Code which seek to punish violation of right to life. Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a corrupt or malicious motive. Sections 330 and 331, provide for punishment of those who inflict injury or grievous hurt on a person to extort confession or information in regard to commission of an offence. Illustration (a) and (b) to Section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330, therefore, directly makes torture during interrogation and investigation punishable under the Indian Penal Code. These
statutory provisions are, however, inadequate to repair the wrong done to the citizen. Prosecution of the offender is an obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, not by way of damages as in a civil action but by way of
compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legal injury is compulsion of judicial conscience.
xxxx xxxx xxxx
55. Thus, to sum up, it is now a well accepted
proposition in most of the jurisdiction, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the Criminal Courts in which the offender is
prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit."
18. In the peculiar fact situation of the case, we feel no useful purpose would be served in directing for further investigation into the matter by any independent investigating agency and we consider it appropriate, keeping in mind the age of the deceased-Maheswar Das, to direct the opposite parties to pay a compensation of Rs.3,50,000/- (Rupees Three lakhs fifty thousand) to the petitioner and other legal 15
heirs of the deceased. Out of the total amount of compensation, Rs.3,00,000/- shall be equally divided among the legal heirs and be kept in fixed deposits in any Nationalized Bank in their names for a period of five years. The monthly interest accrued in case of widow and father of the petitioner shall be paid to them in every succeeding month on proper identification. The fixed deposits that would be made in the name of minor children shall be renewed from time to time till they attain majority. The balance Rs.50,000/- shall be paid equally to the widow and father of the deceased on proper identification. The full amount of compensation shall be paid within a period of four weeks from today. If the same is not paid, it shall carry interest at the rate of 9% from 25.09.1998 till its payment. If any amount out of the amount directed to be kept in fixed deposits is required to meet any pressing need or any development of the family, same may be withdrawn by filing an application before this Court for grant of such permission.
19. With the aforesaid directions, the writ petition is allowed to the extent indicated above.
V. Gopala Gowda, C. J. I agree. ...........................
Orissa High Court, Cuttack
Dated 20th September, 2011/ssd/sss/skj