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Prisons' Right, Volume 2

Published by Human Rights Law Network(HRLN), a division of Socio Legal Information Centre(SLIC). For more details about our works, visit us at http://hrln.org

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  • 1. Volume II PRISONERS’ RIGHTS This Volume of Prisoners’ Rights comes after a decade and at a time when serious attempts are being made by governments to change the entire criminal justice system with the sole aim that every arrested person should be guilty. These changes in the criminal law are being brought on the pretext of fighting terrorism and to deliver justice to victims. Yet rules of free and fair trial and the basic time tested principles of criminal law are being tampered with and torturous procedures such as the Narco Analysis test and brain mapping are being resorted to without any scientific credibility to those tests. The system of video conferencing for the production of accused in court has been introduced in the various parts of the country. In some states even criminal trials are being conducted through video conferencing. Recently, the government has introduced the ‘Fast Track Court’ across the country for speedy disposal of criminal trials. Many times criminal trials have been completed in matter of days. This is a dangerous trend. The country has also witnessed media frenzy over criminal cases and has held trials almost through the electronic and the print media. Several bar association passed resolutions appealing to its members to defend the accused in the trial in certain cases. The constitutional right of an accused to be represented by an advocate is ignored. Justice for the victim does not mean the basic principles of criminal justice should be ignored. The thin dividing line between the media campaign and media trial is often breached in number of cases. Armed Forces Special Powers Act, one of the most draconian legislations, continues to imposed on the northeastern states of the country and citizens continue to be tortured and killed in the name of insurgency without any proper investigation or enquiry into this killings. The last decade also saw a huge increase in extra-judicial killings. The prisons in the country continue to be populated with mainly under trials who are poor, literate and also form minority or fringe groups. Nothing much has changed vis-à-vis the conditions of prisons and prisoners’ rights since the last Volume of the Prisoners’ Rights book. ISBN 81-89479-77-6 9 788189 479770 576, Masjid Road, Jangpura, New Delhi – 110014, India, Ph: +91-11-24379855/56, E-mail: publications@hrln.org PRISONERS’ RIGHTS Volume II
  • 2. PRISONERS' RIGHTS VOLUME II Human Rights Law Network New Delhi December 2011
  • 3. Human Rights Law Network Vision n  protect fundamental human rights, increase access to basic resources for the To marginalised communities, and eliminate discrimination. n  create a justice delivery system that is accessible, accountable, transparent, efficient To and affordable, and works for the underprivileged. Raise the level of pro bono legal expertise for the poor to make the work uniformly competent as well as compassionate. n  Professionally train a new generation of public interest lawyers and paralegals who are comfortable in the world of law as well as in social movements, and who learn from social movements to refine legal concepts and strategies. PRISONERS' RIGHTS VOLUME II December 2011 © Socio Legal Information Centre* ISBN: 81-89479-77-6 Compilation and text editing: Monica Sakhrani, Annie Fernandes, Sr Suma Jose SD, Ritu Kumar, Sukrit Kapoor Design: Birendra K Gupta Printed at: Shivam Sundaram, E-9, Green Park Extn. New Delhi Published by: Human Rights Law Network (HRLN) (A division of Socio Legal Information Centre) 576, Masjid Road, Jangpura, New Delhi – 110014, India Ph: +91-11-24379855/56 E-mail: publications@hrln.org Supported by: European Union Dan Church Aid Irish Aid Disclaimer T  he views and opinions expressed in this publication are not necessarily views of the HRLN. Every effort has been made to avoid errors, omissions, and inaccuracies. However, for inadvertent errors or discrepancies that may remain nonetheless, the HRLN takes the sole responsibility. * ny section of this volume may be reproduced without prior permission of the Human Rights A Law Network for public interest purposes with appropriate acknowledgement.
  • 4. Acknowledgements The Human Rights Law Network – HRLN would like to extend heartiest thanks to Sukrit Kapoor, a graduate of Gujarat National Law University for compilation, case summaries and for the Introduction and Conclusion of the chapters. The organisation would like to acknowledge Aviral Chauhan, Shreyasi Chakraborthy, Saksham Marwah, Sooraj and Anirudh Soman, students of Gujarat National Law University and Arpit Jain, ILS, Pune for the research on case laws. HRLN would also like to acknowledge Smriti Minocha for coordinating with the persons engaged in this book project and Advocate Ritu Kumar for doing the final text editing. The organisation would like to thank Monica Sakhrani and Annie Fernandes for compiling and editing parts of the volume.
  • 5. Contents Acknowledgements ...........................................................................................................iii General Introduction ........................................................................................................xv COMPENSATION Introduction....................................................................................................................... 2 Supreme Court AIR 1983 SC 1086 Rudul Sah vs State of Bihar and Another........................................................................... 7 Supreme Court AIR 1984 SC 1026 Sebastian M. Hongray vs Union of India and Others ....................................................... 12 Supreme Court of India AIR 1986 SC 494 Bhim Singh, MLA vs State of Jammu & Kashmir .............................................................. 16 Supreme Court of India AIR 1987 SC 355 Peoples’ Union of Democratic Rights vs State of Bihar ................................................... 24 Supreme Court of India 1989 (4) SCC 730 People's Union for Democratic Rights and Another vs Police Commissioner, Delhi Police and Another .............................................................. 27 Supreme Court of India AIR 1990 SC 513 Saheli, A Women’s Resource Centre, Through Ms. Nalini Bhanot and Others vs Commissioner of Police, Delhi and Others ...................................................................... 28 Delhi High Court 1992 Cri. LJ 128 P. V. Kapoor and another vs Union of India ..................................................................... 34 Supreme Court of India 1993 (2) SCC 746 Smt. Nilabati Behera alias Lalita Behera vs State of Orissa and Others ........................... 56
  • 6. vi PRISONERS' RIGHTS VOLUME II Supreme Court of India JT 1994 (6) SC 478 Arvinder Singh Bagga vs State of Uttar Pradesh and Others ........................................... 74 Andhra Pradesh High Court 1994 Cri. LJ 1469 Prof. S. Seshaiah vs State of Andhra Pradesh and Another ............................................. 77 Gauhati High Court 1995 Cri. LJ 347 Nagatangkhui vs State of Nagaland and Others .............................................................. 78 Supreme Court of India 1995 (SU4) SCC 450 In Re:death of Sawinder Singh Grover............................................................................. 84 Supreme Court of India 1995 Cri. LJ 2920 Smt. Kewal Pati vs State of Uttar Pradesh and Others ..................................................... 86 Supreme Court of India 1997 (7) SCC 725 Postsangbam Ningol Thokchom (Smt) and Another vs General Officer Commanding and Others ....................................................................... 88 Supreme Court of India 1998 (9) SCC 351 Malkiat Singh vs State of Uttar Pradesh .......................................................................... 90 Supreme Court of India 1999 (6) SCC 754 Kaushalya and Another vs State of Punjab and Others ................................................... 92 Jharkhand High Court 2001 Cri. LJ 3573 Mrs. Meena Singh, Petitioner vs State of Bihar and others, Respondents. ..................... 93 Bombay High Court 2004 ALL MR (Cri) 636 Prem Bangar Swamy vs State of Maharashtra & Others ................................................. 95 Supreme Court of India AIR, 2000 SC 2083 State of AP vs Challa Ramkrisha Reddy ......................................................................... 105 Supreme Court 1991 (2) SCC 373 State of Maharashtra and Others vs Ravikant S. Patil .................................................. 115 Conclusion ..................................................................................................................... 117 FAIR PROCEDURE Introduction................................................................................................................... 120 High Court of Karnataka 1975 Cri. LJ 335 Abdul Azeez vs The State of Mysore.............................................................................. 123
  • 7. CONTENTS Supreme Court of India AIR 1995 (SC) 980 Shivappa vs State of Karnataka ..................................................................................... 126 High Court of Bombay 1993 Mah. LJ 1529 Saraswati Mahadeo Jadyal vs State of Maharashtra ..................................................... 132 Bombay High Court 1993 Cri LJ 2984 State of Maharashtra vs Dr. B.K. Subbarao and another .............................................. 142 Supreme Court of India 2009 (7) SCC 104 (1) Jayendra Vishnu Thakur vs State of Maharahstra and Another .................................... 172 Supreme Court of India AIR 2000 SC 3203 Dadu @ Tulsidas vs State of Maharashtra ..................................................................... 175 Supreme Court of India AIR 2009 SC 628 Deepak Bajaj vs State of Maharashtra and Another...................................................... 181 Supreme Court of India 2009 (12) SCR 1093 Mohd. Farooq Abdul Gafur and Another vs State of Maharashtra AND State of Maharashtra vs Mohd. Zuber Kasam Sheikh and Others ................................. 186 Conclusion ..................................................................................................................... 194 HUMANE SENTENCING Introduction................................................................................................................... 196 Supreme Court of India 1977 (3) SCC 287 Mohammad Giasuddin vs State of Andhra Pradesh ...................................................... 202 Supreme Court of India AIR 1985 SC 1050 Bhagirath vs Delhi Administration ................................................................................. 211 Bombay High Court 1993 Mah. LJ 1425 Bhupesh Ramchandra More vs State of Maharashtra ................................................... 218 Supreme Court of India 1994 (3) SCC 430 Dr. Jacob George vs State of Kerala ............................................................................... 224 Supreme Court of India 1995 (6) SCC 593 Baldev Singh & Another vs State of Punjab .................................................................. 230 Supreme Court of India 1999 (7) SCC 355 State of Haryana vs Balwan ........................................................................................... 233 vii
  • 8. viii PRISONERS' RIGHTS VOLUME II Supreme Court of India 1999 (8) SCC 375 Union of India and Others vs Sadha Singh..................................................................... 236 Supreme Court of India 2001 Cri. LJ 2588 State of Maharastra vs Najakat alias Mubarak Ali ......................................................... 239 Supreme Court of India 2000 (7) SCC 626 Laxman Naskar (Life Convict) vs State of West Bengal and Another ............................. 243 Supreme Court of India 2001 (3) SCC 750 Zahid Hussein and Others vs State of West Bengal ....................................................... 247 Supreme Court of India 2003 (3) SCC 1 State of Madhya Pradesh and Another vs Bhola @ Bhairon Prasad Raghuvanshi ........ 251 Supreme Court of India 1976 (4) SCC 190 Santa Singh vs State of Punjab ...................................................................................... 258 Supreme Court of India 1980 (2) SCC 604 Bachan Singh vs State of Punjab.................................................................................... 263 Supreme Court of India AIR 1983 SC 473 Mithu Singh vs State of Punjab...................................................................................... 267 Supreme Court of India Rajendra Prasad vs State of Uttar Pradesh .................................................................... 282 Supreme Court Cases 1977 (4) SCC 44 Hiralal Mallick vs State of Bihar .................................................................................... 285 Supreme Court of India 1994 (3) SCC 394 P. Rathinam vs Union of India ........................................................................................ 292 Conclusion ..................................................................................................................... 323 JUVENILE PRISONERS Introduction................................................................................................................... 326 Supreme Court of India AIR 1988 SC 414 Sanjay Suri and Another vs Delhi Administration, Delhi and Another........................... 331 Patna High Court AIR 1989 Patna LJR 1024 Sanat Kumar Sinha vs State of Bihar and Others ........................................................... 337
  • 9. CONTENTS Patna High Court 1990 BBCJ 357 Sanat Kumar Sinha vs The State of Bihar through Chief Secretary and Others .. 340 Supreme Court of India AIR 1982 SC 1297 Jaya Mala vs Home Secretary, Government of Jammu and Kashmir and Others .......... 352 Kerala High Court 1993 (3) Cri. 57 Cri. Reference no. 3 of 1991 .......................................................................................... 356 Supreme Court of India 1997 (8) SCC 720 Bhola Bhagat and Another vs State of Bihar ................................................................. 363 Supreme Court of India 1998 (5) SCC 697 Santenu Mitra vs State of W.B. ...................................................................................... 366 Supreme Court of India 2000 (6) SCC 89 Umesh Singh and Another vs State of Bihar .................................................................. 368 Supreme Court of India 1982 (3) SCR 583 Umesh Chandra vs State of Rajasthan ........................................................................... 370 Supreme Court of India 2001 (7) SCC 657 Arnit Das vs State of Bihar ............................................................................................. 378 Supreme Court of India 2005 (3) SCC 551 Pratap Singh vs State of Jharkhnad and Another .......................................................... 380 Supreme Court of India 2002 (2) SCC 287 Rajinder Chandra vs State of Chhattisgarh and Another ............................................... 389 Supreme Court of India 2008 (13) SCALE 137 Babloo Pasi vs State of Jharkhand and Another ............................................................ 391 Supreme Court of India 2009 (6) SCALE 695 Hari Ram vs State of Rajasthan and Another ................................................................ 394 Conclusion ..................................................................................................................... 402 PAROLE AND FURLOUGH Introduction................................................................................................................... 404 Supreme Court 2000 (3) SCC 409 Sunil Fulchand Shah vs Union of India and Others ........................................................ 407 ix
  • 10. x PRISONERS' RIGHTS VOLUME II Supreme Court 2000 (3) SCC 394 State of Haryana vs Mohinder Singh ............................................................................. 409 Supreme Court 2002 (3) SCC 18 Avtar Singh vs State of Haryana and Another ............................................................... 415 Supreme Court 2000 (3) SCC 514 State of Haryana vs Nauratta Singh and Others ............................................................ 418 Supreme Court 2001 (8) SCC 306 Joginder Singh vs State of Punjab and Others ............................................................... 424 Bombay High Court 1989 Cri LJ 681 Sharad Keshav Mehta vs State of Maharashtra and Others .......................................... 429 Conclusion ..................................................................................................................... 431 PRESS Introduction................................................................................................................... 434 Supreme Court of India AIR 1982 SC 6 Smt. Prabha Dutt vs Union of India and Others............................................................. 435 Supreme Court of India 1988 (I) Bom. Cr 58 Sheela Barse vs State of Maharashtra..................................................................................................... 438 Supreme Court of India 1999 Cri. LJ 2273 State through Superintendent Central Jail, N. Delhi vs Charulata Joshi and Another ... 443 Conclusion ..................................................................................................................... 445 PRISON FACILITIES Introduction................................................................................................................... 448 Bombay High Court 1987 Mah. LJ 68 Madhukar Bhagwan Jambhale vs State of Maharashtra and Others ............................ 455 Madhya Pradesh High Court [1988 (16) Reports M.P. 147] Ranchod vs State of M.P. and Others ............................................................................ 465 Bombay High Court 1989 Mah LJ 77 Inacio Manuel Miranda and Others vs State ................................................................. 475
  • 11. CONTENTS High Court of Kerala AIR 1983 Ker 261 In the Matter of: Prison Reforms Enhancement of Wages of Prisoners O.P. Nos. 6566 and 7472 of 1982 Section D/- 13.4.1983............................................... 481 High Court of Himachal Pradesh AIR 1992 HP 70 Gurdev Singh and Others etc. vs State of Himachal Pradesh and Others ...................... 497 Supreme Court of India AIR 1966 SC 424 State of Maharashtra vs Prabhakar Pandurang Sangzgiri and Another ......................... 517 Kerala High Court AIR 1973 Ker 97 Kunnikkal Narayanan vs State of Kerala and Another ................................................... 521 Bombay High Court AIR 1967 SC 254 M.A. Khan vs State and Another ................................................................................... 525 Supreme Court of India AIR 1981 SC 746 Francis Coralie Mullin vs The Administrator, Union Territory of Delhi and Others ........ 534 Supreme Court of India AIR 2006 SC 1946 R.D. Upadhyay vs State of Andhra Pradesh and Others ................................................ 545 Supreme Court of India AIR 2004 SC 2223 State of Maharashtra and Others vs Asha Arun Gawali and Another ........................... 556 Mumbai High Court 2004 Cri LJ 4312 Asgar Yusuf Mukadam and Others vs State of Maharashtra and the Suprintendent of Prison .......................................................................................... 561 Supreme Court of India AIR 1997 SC 1739 Rama Murthy vs State of Karnataka .............................................................................. 565 Supreme Court of India AIR 1998 SC 3164 State of Gujarat and Another vs Hon’ble High Court of Gujarat ................................... 572 Conclusion ..................................................................................................................... 577 SECURITY LEGISLATION Introduction................................................................................................................... 580 Supreme Court of India 1987 (1) SCC 533 Balbir Singh vs State of Haryana .................................................................................... 591 xi
  • 12. xii PRISONERS' RIGHTS VOLUME II Bombay High Court 1994 Mah. LJ 1743 Anil Vasant Chitnis and Others vs Senior Inspector of Police Alibaug Police Station, Raigad and Others..................................................................... 596 Supreme Court of India 1994 (3) SCC 569 Kartar Singh vs State of Punjab ..................................................................................... 603 Supreme Court of India 1994 (4) SCC 602 Hitendra Vishnu Thakur vs State of Maharashtra .......................................................... 653 Supreme Court of India 1995 Cri LJ 477 Sanjay Dutt vs State Through C.B.I., Bombay ................................................................ 673 Supreme Court of India 1998 (4) SCC 492 Khudeswar Dutta vs State of Assam .............................................................................. 699 Supreme Court of India 2001 Cri. LJ 3294 Vijay Pal Singh vs State, N.C.T. of Delhi .......................................................................... 701 Supreme Court of India 1995 (6) SCC 447 Bonkya Alias Bharat Shivaji Mane and Others vs State of Maharashtra ........................ 704 Supreme Court of India 1999 (5) SCC 682 Balbir Singh and Another vs State of Uttar Pradesh ...................................................... 708 Supreme Court of India 1999 (2) SCC 45 Kishore Prabhakar Sawant and Others vs State of Maharashtra ................................... 709 Supreme Court of India 1997 (4) SCC 156 Paramjit Singh and Others vs State of Punjab and Others ............................................ 712 Supreme Court of India 2000 (4) SCC 454 Sagayam vs State of Karnataka ...................................................................................... 716 Supreme Court of India 2003 (4) SCALE 428 Yusuf @ Babu Khan vs State of Rajasthan ..................................................................... 719 Supreme Court of India 2003 (6) SCC 641 State vs Navjot Sandhu .................................................................................................. 721 Supreme Court of India 2003 (8) SCC 50 State of Gujarat vs Salimbhai Abdul Gaffar Shaikh and Others ..................................... 727
  • 13. CONTENTS Supreme Court of India 1995 (1) SCC 684 State of West Bengal and Another vs Mohammed Khalid and Others .......................... 732 Supreme Court of India AIR 1996 SC 2047 R.M. Tewari, Advocate vs State (NCT of Delhi) and Others AND Govt. of N.C.T., Delhi vs Judge, Designated Court II (TADA) AND Mohd. Mehfooz vs Chief Secretary and Another .......................................................... 744 Supreme Court of India 1997 (7) SCC 744 Rambhai Nathabhai Gadhvi and Others vs State of Gujarat.......................................... 749 Supreme Court of India 1996 Cri. LJ 1986 Writ Petn. (CRI.) No. 117 of 1995 D/- 27-2-1996 AND Shaheen Welfare Association vs Union of India and Others ......................................... 753 Supreme Court of India 2001 (3) SCC 221 Lal Singh vs State of Gujarat and Another ..................................................................... 760 Supreme Court of India 1999 (5) SCC 253 T. Suthenthiraraja, P. Ravichandran, Robert Payas & Others vs State by DSP, CBI, SIT, Chennai ...................................................................................... 772 Supreme Court of India 2000 ( 1 ) SCC 498 Gurdeep Singh Alias Deep vs State (Delhi Admn.)......................................................... 805 Supreme Court of India AIR 2002 SC 1661 Devender Pal Singh vs State, N.C.T of Delhi and Another .............................................. 809 Supreme Court of India 1997 (8) SCC 732 Kalpnath Rai vs State (Through CBI) .............................................................................. 822 Supreme Court of India 1997 (7) SCC 231 Sahib Singh vs State of Haryana .................................................................................... 830 Supreme Court of India 1998 (7) SCC 337 Suresh Budharmal Kalani Alias Pappu Kalani vs State of Maharashtra.......................... 836 Supreme Court of India 2000 (2) SCC 254 S.N. Dube vs N.B. Bhoir and Others............................................................................... 840 Supreme Court of India AIR 2004 SC 588 Jameel Ahmed & Another vs State of Rajasthan ........................................................... 854 xiii
  • 14. xiv PRISONERS' RIGHTS VOLUME II Supreme Court of India 2004 (9) SCC 580 People’s Union for Civil Liberties & Another vs Union of India ..................................... 863 Supreme Court of India 1998 (2) SCC 109 Naga People’s Movement of Human Rights and Others vs Union of India.................... 889 Conclusion ..................................................................................................................... 920 WOMEN Introduction................................................................................................................... 924 Supreme Court of India 1983 (2) SCC 96 Sheela Barse vs State of Maharashtra ........................................................................... 928 Supreme Court of India AIR 1990 SC 658 State of Maharashtra vs Chandraprakash Kewal Chand Jain AND Stree Atyachar Virodhi Parishad, Maharashtra State vs Chandraprakash Kewalchand Jain, Police Sub-Inspector, Nagpur and Another ............ 935 Bombay High Court 1995 (4) Bom. CR 263 Rekha M. Kholkar vs State of Goa and Others .............................................................. 951 Bombay High Court 1996 (1) Bom. CR 70 Christian Community Welfare Council of India (Regd.) vs Government of Maharashtra and Another ................................................................... 956 Supreme Court of India AIR 2006 SC 1946 R.D. Upadhyay vs State of A.P. and Others .................................................................... 970 Supreme Court of India 2003 (8) SCC 546 State of Maharashtra vs Christian Community Welfare Council of India and Another . 989 Andhra Pradesh High Court 2003 (1) ALT 221 The Legal Aid Committee, High Court of A.P. vs The Director General and Inspector General of Prisons and Others ............................. 993 High Court of Jammu and Kashmir AIR 2004 J&K 6 World Human Rights Protection vs Union of India (UOI) and Others .......................... 1001 Conclusion ................................................................................................................... 1010
  • 15. General Introduction The second edition of Prisoners Rights: a compilation of landmark judgements comes after a decade since its first edition and at a time when serious attempts are being made by governments to change the entire criminal justice system with the sole aim that every arrested person should be guilty. These changes in the criminal law are being brought on the pretext of fighting terrorism and to deliver justice to victims. Yet rules of free and fair trial and the basic time tested principles of criminal law are being tampered with and torturous procedures such as the Narco Analysis test and brain mapping are being resorted to without any scientific credibility to those tests. The system of video conferencing for the production of accused in court has been introduced in the various parts of the country. In some states even criminal trials are being conducted through video conferencing. The system of production and trial through video conferencing is full of flaws. The trial conducted not via video conferencing cannot be termed as a free and fair trial with prisoner being in jail where he can be deemed to be free to give instructions to his lawyer. Besides he might be under duress where he may not be able to communicate with the courts freely. The visits to the courts once a fortnight, or a month, are the only times a prisoner can meet his family members. Considering the faulty prison visitation system, the visit to the court by the prisoners is very important as it provides the only chance to meet his family members and speak to them. Recently the government has introduced the ‘Fast Track Court’ across the country for speedy disposal of criminal trials. Many times criminal trials have been completed in matter of days. This is a dangerous trend as from delayed trials at one point of time, the system is now moving towards ultra quick trial where the notion of justice may be forgotten for the sake of speed. The Bombay High Court while hearing an appeal from one of the ‘Fast Track Courts’ came down lightly on the functioning of these courts and stated that, ‘We are certainly of the view that though the ‘Fast Track Courts’ should act fast and justice should be delivered as quickly as possible, decision of a criminal trial cannot be speedily given at the cost of justice.
  • 16. xvi PRISONERS' RIGHTS VOLUME II In last couple of years the country has only witnessed media frenzy over criminal cases and has held trials almost through the electronic and the print media. Several bar associations passed resolutions appealing to its members to defend the accused in the trial in certain cases. The constitutional right of an accused to be represented by an advocate is ignored. Justice for the victim does not mean the basic principles of criminal justice should be ignored. The thin dividing line between the media campaign and media trial is often breached in number of cases. The Malimath Committee, which was formed for the reforms in the criminal justice system, tried its best to dismantle the minimum protection given to the accused during trials and tried to bring in draconian provisions in the mainstream criminal law. Though the Malimath Committee Report was rejected by the government, efforts are afoot to give it a backdoor entry through the committee formed to draft the criminal policy of the country. The attack on the Parliament ensured Terrorist and Disruptive Activities (Prevention) Act smooth passing of the Prevention of Terrorism Act (POTA). The draconian provision of the earlier TADA were not incorporated in POTA and but there have been reports of its widespread misuse across the country. The Act was ultimately repealed under sustained pressure from the groups fighting civil liberties and human rights but the amendment to the Unlawful Activities Act, resulted in incorporation of some of this provisions. Today almost every state in the country has its own anti terror law and the anti-organised crime act. All these acts have basically draconian provisions, enacted to strengthen the hands of the police and see that convictions happen on a very little, or flimsy evidence, or no evidence worth the name. Armed Forces Special Powers Act, one of the most draconian legislations, continues to be imposed on the north eastern states of the country and citizens continue to be tortured and killed in the name of insurgency without any proper investigation or enquiry into these killings. The last decade also saw a huge increase in extra judicial killings. Apart from a few convictions in the cases of custodial violence and the encounter killings many extra judicial killings went unnoticed and unquestioned. In the beginning of the decade courts were initiated across the country for the speedy delivery of justice and disposal of justice. The jail courts were mainly handing out convictions to the accused who were pleading guilty. Many times the accused understanding the
  • 17. GENERAL INTRODUCTION consequence of a conviction use to plead guilty only to avoid prolonged cases which took years to finish owing to non production of prisoners in courts. The prisons in the country continue to be populated with mainly under trials who are poor, illiterate and also form minority or fringe groups. These prisons around the country are over crowded with basic amenities like clean drinking water and essential medical facilities missing. The legal aid system remains in shambles resulting in the denial of the basic right of free and fair trial to the poor prisoners. The much hyped Criminal Law Amendment 2005, which the government authorities claimed will almost empty the prisons across the country, has not brought in any major changes vis-à-vis the prison population as was claimed by the Government. Lakhs of people continue to languish behind bars mainly because they are poor. Nothing much has changed vis-à-vis the conditions of prisons and prisoners rights since the last edition of the Prisoners Rights Book. There have been few landmark judgements but the implementation of the judgements seems to be a distant possibility. The Mulla Committee report on jail report came out in the early 1980’s but it has not been implemented until this day though over two decades have elapsed since the report was submitted to the government. The visitation rights of the prisoners leave much to be desired where the whims and fancies of the jail administration matter most. Prisoners continue to get food which can hardly be termed as fit for human consumption and they continue to live under most unhygienic or even hazardous conditions. On the other hand there are instances of prisoners who have stayed in prison for many years beyond their sentence period. The overall conditions of the prisons and the prisoners show that they are the most ignored section of people in this country. The need of the hour is to move towards a genuine reformative system. Changing the name of prisons as ‘Reformation Centres’ is not going to help as these are just superficial changes and do not in actual terms bring in any reform in the prison and the life of the prisoners. It is high time the voting rights and the conjugal rights of the prisoners in India are recognized. Though in prison it should not be forgotten the prisoner still has the right to live with dignity. This book is divided in two volumes where best efforts have been made to bring in under its covers all the landmark judgements regarding prisons and prisoners passed by courts until this day, or the year 2007, in the fervent hope that it serves as a resource material for lawyers, activists and conscientious citizens and civil society groups. xvii
  • 18. COMPENSATION
  • 19. 2 PRISONERS' RIGHTS VOLUME II Introduction The Supreme Court of India has advanced the Right to Compensation to prisoners by declaring it to be a fundamental right under Article 21 of the Constitution of India. Hence a prisoner can approach the Supreme Court under Article 32 and claim for compensation for the violation of his rights while in custody of the police or a prison setting. The aspect of compensation to prisoners was acknowledged and introduced world over by the International Covenant on Civil and Political Rights in 1976. The two principles laid down in the covenant are as follows: [I] Article 9, Clause 5 states: “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.” [II] Article 14, Clause 6 states: “When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.” The right to compensation further extends to a prisoner if he/she is subjected to unlawful treatment and abuse in any form in the prison. The right extends to undertrials, detainees and other prisoners in custody. The case-laws presented in this chapter highlight the circumstances under which prisoners have been and can be granted compensation. In Rudul Sah’s case (AIR 1983 SC 1086), the petitioner was released from Tihar jail 14 years after he was acquitted. The excuse was insanity. The Court noted that no data of any kind was produced to show that the prison authorities had a basis for either declaring the prisoner insane or for detaining him on that account. No measures were taken to cure him. Insanity was clearly alleged as an after thought. The Court observed that if a prisoner was at all insane, it must have been caused by the jail conditions itself. It was shocking that such a case should emerge after the Bhagalpur blinding case. The said case was widely reported all over the world and brought the entire prison system of Bihar into disrepute. It appears that such publicity had no effect on the criminals who run our prison systems.
  • 20. COMPENSATION The Supreme Court directed the High Court to call for statistical data from the Home Department in respect of the number of convicts who have been in jail for periods in excess of 10, 12, and 14 years respectively. The interesting part of the judgment relates to compensation. The Court granted compensation of Rs. 35,000/- as a palliative to the petitioner and specifically indicated that a suit for compensation over and above this amount would lie in an appropriate Court. Article 21 will be denuded of its significant content if the powers of the Court were limited to passing orders merely of release. One way in which due compliance with the mandate of Article 21 is secured is to mulct its violators in the payment of monetary compensation. It cannot be corrected by any other method. Interestingly for 14 years of illegal custody the poor prisoner was given compensation of only Rs. 35,000/. Why not 35 lacs? Would not the latter amount be more appropriate for such a violation of the Fundamental Rights of a citizen of India? Sebastian Hongray’s case (AIR 1984 SC 1026) was a habeas corpus petition. Sebastian was a Naga Priest who was a Head Master of a school. His school was visited by the army. There the army engaged in certain atrocities and took away certain persons including the petitioner. He was last seen alive in an army camp. A petition for habeas corpus was filed, but the State refused to obey. The Court asked “What is the appropriate mode of enforcing obedience to a writ of habeas corpus?”. Here there was a wilful disobedience of the writ by misleading the Court and by presenting a distorted version of facts. It was a case of civil contempt. In a landmark judgment the Court ordered that the State pay Rs. 1 lac each to the wives of the missing persons. Reiterating the principle laid down in the earlier decisions, the Supreme Court awarded compensation of Rs. 50,000/- in Bhim Singh’s case (AIR 1986 SC 494), for imprisonment with “mischievous or malicious intent”, where an MLA was kept in police custody and remand orders were obtained without his production before a magistrate. In Peoples’ Union of Democratic Rights vs. State of Bihar (AIR 1987 SC 355), the Supreme Court enhanced the amount of compensation from Rs. 10,000/- to Rs. 20,000/- to be paid to the 21 persons belonging to backward classes who died in indiscriminate firing by the police while holding a peaceful meeting in the District of Gaya, Bihar, and Rs. 5000/each to the persons injured. The Court held that payment of such compensation does not absolve the liability of the wrong-doer but such compensation is being paid as a working principle and for convenience and with a view to rehabilitating the dependants of the deceased. 3
  • 21. 4 PRISONERS' RIGHTS VOLUME II In Peoples’ Union of Democratic Rights and another vs. Police Commissioner, Delhi Police and another (1989 (4) SCC 730), the Supreme Court directed the payment of Rs. 50,000/to the family of the person killed by the police officers at the police station for demanding payment for their labour. A woman who was stripped was paid Rs. 500/- and Rs. 25/- to eight others. The amount was ordered to be recovered from the salaries of the officers found guilty after investigation and inquiry. In Saheli, A Women’s Resource Centre Vs. Commissioner of Police, Delhi (AIR 1990 SC 513), the Supreme Court directed that compensation be paid to the mother of a nine year old child who died because of beating and assault by a police officer. In P.V. Kapoor’s case (1992 Cri. LJ 128), the Delhi High Court, extending the principle laid down in Nilabati Behera’s case, awarded compensation to the victims of police firing on the illegal assemblies during the Mandal agitation. The law regarding strict liability of the State for violation of fundamental rights to which the defence of sovereign immunity is not applicable was laid down by the Supreme Court in Nilabati Behera’s case (JT 1993 (2) SC 503). In this case where compensation was awarded to the mother of a victim of custodial death, the Supreme Court expressed the need of the Court “to evolve ‘new tools’ to give relief in public law by moulding it accordingly to the situation with a view to preserve & protect the rule of law.” The Supreme Court in Arvinder Singh Bagga’s case (JT 1994 (6) SC 478), directed that the state pay compensation to persons illegally detained and directed prosecution of the concerned police officers for the “blatant abuse of law”. The Andhra Pradesh High Court also awarded compensation in case of illegal detention and quashed the prosecution pending against the detenu filed subsequently as being an abuse of the process of Court in S. Seshaiah vs. State of Andhra Pradesh (1994 Cri. LJ 1469). The Gauhati High Court awarded compensation to the father of deceased against whom no case had been registered in Nagantangkhui’s case (1995 Cri. LJ 347). In Re: death of Sawinder Singh Grover (1995 (SU4) SCC 450), the Supreme Court directed that a sum of Rs. two lakhs be paid as an interim measure by the Union of India/ Directorate of Enforcement to the widow of the deceased. This direction was based on the report of the Additional Sessions Judge which suggested a strong suspicion of some misfeasance including torture by the officers of the Directorate who had wrongfully confined the deceased. The Central Bureau of Investigation was asked to conduct the prosecution and further investigation in the matter.
  • 22. COMPENSATION In Smt. Kewal Pati’s case (1995 Cri LJ 2920), the Supreme Court held that the legal heirs of deceased are entitled to compensation from the State if a prisoner is killed in jail by a co-accused. The facts of the case in Postsangbam Ningol Thokchom (Smt) and another vs. General Officer Commanding and others (1997 (7) SCC 725) being similar to that of the Nilabati Behera’s case, the Supreme Court directed the Union of India to deposit an amount of Rs. 1,25,000 in the names of the mothers of the two boys who were not released from custody after being picked up for interrogation by the Army in Imphal, and were suspected to be killed. In another similar case, Kaushalya and another vs. State of Punjab and Others (1999 (6) SCC 754), the Supreme Court awarded a sum of Rs. 2 lakhs to the mother of the deceased Amrik Singh who was killed in police custody. In Malkiat Singh vs. State of Uttar Pradesh (1989 (9) SCC 351), the Supreme Court awarded a compensation of Rs. five lakhs to the father whose son was killed in an alleged encounter between the police and four sikh youths. The compensation was made based on a similar case, Writ Petition No. 632 of 1992, where the Supreme Court had awarded Rs. 5 lakhs as compensation. In Mrs. Meena Singh vs. State of Bihar and others (2001 Cri. LJ 3573), the High Court of Jharkhand awarded a compensation of Rs. 3 lakhs to the wife of an undertrial prisoner, noting that it was the prime duty of the jail authority to provide security and safety to the life of prisoners while in jail custody. The order was passed based on the principle expounded in Smt. Kewalpati’s case. In Prem Bangar Swamy vs. State of Maharashtra and Others (2004 ALL MR (Cri) 636), the High Court of Bombay awarded an amount of Rs. 2 lakhs as compensation for wrongful detention of the petitioner for 2 years 9 months inspite of her acquittal by the Special Court in Mumbai and that order being confirmed in appeal by the High Court. The High Court referred to the apex court judgements in Rudal Sah and D.K. Basu’s cases for illegal detention, while deciding the amount which was awarded as an interim measure noting that the same was not a punitive compensation. State of Andhra Pradesh vs. Challa Ramkrishna Reddy and Others (AIR 2000 SC 2083) was filed against the order of the High Court whereby a sum of Rs. 1,44,000/- was awarded to the son whose father died while in custody for the negligence of the authorities. The case was challenged on two grounds, as being barred due to limitation and that the State would not be liable in damages as it was immune from any legal action in respect of its 5
  • 23. 6 PRISONERS' RIGHTS VOLUME II sovereign acts. The Supreme Court held that the present case would invoke the provisions of Article 113 and not Article 72 of the Limitation Act, 1963 which prescribed a period of three years, as the action of the officers was wholly malafide, and thus the suit was within limitation. With regards to the second plea relating to the immunity of the State Government, the Court relied on various judgements on deciding the issue of a person being deprived of his personal liberty (Article 21) in accordance with the procedure established by law, and that the same must be reasonable, fair and just as laid down in Maneka Gandhi vs. Union of India (1978 (1) SCC 248), D. Bhuvan Mohan Patnaik vs. State of Andhra Pradesh (AIR 1074 SC 2092), Charles Sobhraj vs. Superintendent, Central Jail, Tihar (AIR 1978 SC 1514), Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi (1981 (1) SCC 608), Sunil Batra vs. Delhi Administration ( AIR 1980 SC 1579), N. Nagendra Rao & Co. vs. State of A.P. (AIR 1994 SC 2663), and Common Cause, A Registered Society vs. Union of India and Ors. (1999 (6) SCC 667). The Court rejected the plea of immunity and further held that in the instant case, two vital factors, namely police negligence as also the Sub-Inspector being in conspiracy were established as a fact, therefore the decisions in Nilabati Behera, In Re: Death of Sawinder Singh Grover, and D.K. Basu, would hold so far as fundamental rights and human rights or human dignity are concerned, and that the law has marched ahead like a Pegasus but the Government attitude continues to be conservative and it tries to defend its action or the tortious action of its officers by raising the plea of immunity for sovereign acts or acts of State, which must fail. In Ravikant Patil’s case [1991 (2) SCC 373], the Supreme Court rejected the appeal of the State against the decision of the Bombay High Court directing that compensation be paid to the undertrial prisoner for handcuffing and being taken through the streets as the police officers were guilty of violating a fundamental right under Article 21.
  • 24. Supreme Court AIR 1983 SC 1086 Rudul Sah vs State of Bihar and Another Y.V. Chandrachud, Amarendra Nath Sen, Ranganath Misra, JJ. 1. This writ petition discloses a sordid and disturbing state of affairs. Though the petitioner was acquitted by the Court of Session, Muzaffarpur, Bihar, on June 3, 1968 he was released from the jail on October 16,1982, that is to say, more than 14 years after he was acquitted. By this habeas corpus petition, the petitioner asks for his release on the ground that this detention in the jail is unlawful. He has also asked for certain ancillary reliefs like rehabilitation, reimbursement of expenses which he may incur for medical treatment and compensation for the illegal incarceration. 2. This petition came up before us on November 22, 1982 when we were informed by Shri. Goburdhun, counsel for the State of Bihar, that the petitioner was already released from the jail. The relief sought by the petitioner for his release thus became infructuous but despite that, we directed that a Notice to show cause be issued to the State of Bihar regarding prayers 2,3 and 4 of the petition. By prayer No. 2 the petitioner asks for medical treatment at Government expense, by prayer No. 3 he asks for an ex-gratia payment for his rehabilitation, while by prayer No. 4 he asks for compensation for his illegal detention in the jail for over 14 years. 3. We expected a prompt response to the Show Cause Notice from the Bihar Government at least at this late stage, but they offered no explanation for over four months. The writ petition was listed before us on March 31, 1983 when Shri. Goburdhun restated that the petitioner had been already released from the jail. We passed a specific order on that date to the effect that the release of the petitioner cannot be the end of the matter and we called upon the Government of Bihar to submit a written explanation supported by an affidavit as to why the petitioner was kept in the jail for over 4 years after his acquittal. On April 16, 1983, Shri. Alakh Deo Singh, Jailor, Muzaffarpur Central Jail, filed an affidavit in pursuance of that order. Shorn of its formal recitals, the affidavit reads thus:
  • 25. 8 PRISONERS' RIGHTS VOLUME II (2) That the petitioner was received on 25.3.67 from Hazaribaug Central Jail and was being produced regularly before the Additional Sessions Judge, Muzaffarpur and on 30.8.68 the learned Judge passed the following order: The accused is acquitted but he should be detained in prison til further order of the State Government and I.G. (Prisons), Bihar. (A true copy of the same is attached as Annexure I). (3) That accused Rudul Sah was of unsound mind at the time of passing the above order. This information was sent to the Law Department in letter No. 1838 dated 10.5.74 of the Superintendent, Central Jail, Muzaffarpur through District Magistrate, Muzaffarpur. (4) That the Civil Surgeon, Muzaffarpur, reported on 18.2.77 that accused Rudul Sah was normal and this information was communicated to the Law Department on 21.2.77. (5) That the petitioner, Rudul Sah was treated well in accordance with the rules in the Jail Manual, Bihar, during the period of his detention. (6) That the petitioner was released on 16.10.82 in compliance with the letter No. 11637 dated 14.10.82 of the Law Department.” 4. The writ petition came up before us on April 26, 1983 when we adjourned it to the first week of August 1983 since it was not clear either from the affidavit as Annexure I, as to what was the basis on which it was stated in the affidavit that the petitioner was of unsound mind or the reason why the learned Additional Sessions Judge directed the detention of the petitioner in jail, until further orders of the State Government and the Inspector General of Prisons. 5. The writ petition has come up for hearing once again before us today. If past experience is any guide, no useful purpose is likely to be served by adjourning the petition in the hope that the State authorities will place before us satisfactory material to explain the continued detention of the petitioner in jail after his acquittal. We apprehend that the present state of affairs, in which we are left to guess whether the petitioner was not released from the prison for the benign reasons that he was insane, is not likely to improve in the near future. 6. The jailor’s affidavit leaves much to be desired. It narrates with an air of candidness what is notorious, for example, that the petitioner was not released from the jail upon his acquittal and that he was reported to be insane. But it discloses no data on the basis of which he was adjudged insane, the specific measures taken to cure him of that affliction and, what is most important, whether it took 14 years to set right his mental imbalance. No medical opinion is produced in support of the diagnosis that he was
  • 26. COMPENSATION insane nor indeed is any jail record produced to show what kind of medical treatment was prescribed for and administered to him and for how long. The letter (No. 1838) dated May 10, 1974 which, according to paragraph 3 of the affidavit, was sent to the Law Department by the Superintendent of the Central Jail, Muzaffarpur, is not produced before us. There is nothing to show that the petitioner was found insane on the very date of his conviction. And, if he was insane when he was convicted, he could neither have been tried nor convicted, for the simple reason that an insane person cannot enter upon his defence. Under the Code of Criminal Procedure, insane persons have certain statutory rights in regard to the procedure governing their trial. According to paragraph 4 of the affidavit the Civil Surgeon, Muzaffarpur, reported on February 18, 1977 that the petitioner was normal and that this information was communicated to the Law Department on February 21, 1977. Why was the petitioner not released for over 5 1/2 years thereafter? It was on October 14, 1982 that the Law Department of the Government of Bihar directed that the petitioner should be released. Why was the Law Department so insensitive to justice? We are inclined to believe that the story of the petitioner’s insanity is an afterthought and is exaggerated out of proportion. If indeed he was insane, at least a skeletal medical record could have been produced to show that he was being treated for insanity. In these circumstances, we are driven to the conclusion that, if at all the petitioner was found insane at any point of time, the insanity must have supervened as a consequence of his unlawful detention in jail. A sense of helplessness and frustration can create despondency and persistent despondency can lead to a kind of mental imbalance. 7. The concerned Department of the Government of Bihar could have afforded to show a little more courtesy to this Court and to display a greater awareness of its responsibilities by asking one of its senior officers to file an affidavit in order to explain the callousness which pervades this case. Instead, the jailor has been made a scapegoat to own up vicariously the dereliction of duty on the part of the higher officers who ought to have known better. This is not an isolated case of its kind and we feel concerned that there is darkness all around in the prison administration of the State of Bihar. The Bhagalpur blindings should have opened the eyes of the Prison Administration of the State. But that bizarre episode has taught no lesson and has failed to evoke any response in the Augean Stables. Perhaps, a Hercules has to be found who will clean them by diverting two rivers through them, not to the breakdown of Prison Administration in the State and rectify the grave injustice which is being perpetrated on helpless persons. The High Court of Patna should itself examine this matter and call for statistical data from the Home Department of the Government of 9
  • 27. 10 PRISONERS' RIGHTS VOLUME II Bihar on the question of unlawful detentions in the State Jails. A tabular statement from each jail should be called for disclosing how many convicts have been in jail for more than 10 years, 12 years, 14 years and for over 16 years. The High Court will then be in a position to release prisoners who are in unlawful detention in the jails and to ask the State Government to take steps for their rehabilitation by payment of adequate compensation wherever necessary. 8. That takes us to the question as to how the grave injustice which has been perpetrated upon the petitioner can be rectified, in so far as it lies within our power to do in the exercise of our writ jurisdiction under Article 32 of the Constitution. That Article confers power on the Supreme Court to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever may be appropriate, for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of Courts, Civil and Criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a Court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right. The instant case is illustrative of such cases. The petitioner was detained illegally in the prison for over 14 years after his acquittal in a full-dressed trial. He filed a habeas corpus petition in this Court for his release from illegal detention. He obtained that relief, our finding being that his detention in the prison after his acquittal was wholly unjustified. He contends that he is entitled to be compensated for his illegal detention and that we ought to pass an appropriate order for the payment of compensation in this habeas corpus petition itself. 9. We cannot resist this argument. We see no effective answer to it save the stale and sterile objection that the petitioner may, if so advised, file a suit to recover damages from the State Government. Happily, the State’s counsel has not raised that objection. The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a Civil Court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages, would have to passed in that suit, though it is not possible to predicate in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner
  • 28. COMPENSATION will be doing mere lip-service to his fundamental right to life and liberty be denuded of its significant content if the power of this Court were limited to passing order of release from illegal detention of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner’s rights. It may have recourse against those officers. 10. Taking into consideration that great harm done to the petitioner by the Government of Bihar, we are of the opinion that, as an interim measure, the state must pay to the petitioner a further sum of Rs.30,000/- (Rupees thirty thousand) in addition to the sum of Rs.5,000/- (Rupees five thousand) already paid by it. The amount shall be paid within two weeks from today. The Government of Bihar agrees to make the payment though, we must clarify, our order is not based on their consent. 11. This order will not preclude the petitioner from bringing a suit to recover appropriate damages from the State and its erring officials. The order of compensation passed by us is, as we said above, in the nature of a palliative. We cannot leave the petitioner penniless until the end of his suit, the many appeals and the execution proceedings. A full-dressed debate on the nice points of fact and law which takes place leisurely in compensation suits will have to await the filing of such a suit by the poor Rudul Sah. The Leviathan will have liberty to raise those points in that suit. Until then, we hope, there will be no more Rudul Sah in Bihar or elsewhere. 11
  • 29. Supreme Court AIR 1984 SC 1026 Sebastian M. Hongray vs Union of India and Others D.A. DESAI, O. CHINNAPPA REDDY, JJ. 1. On Nov. 24, 1983, the Court by its Judgment and order directed that a writ of habeas corpus be issued. The operative portion of the order reads as under: “Accordingly, this petition is allowed and we direct that a writ of habeas corpus be issued to the respondents 1, 2 and 4 commanding them to produce C. Daniel, retired Naik Subedar of Manipur Rifles and Headmaster of the Junior High School of Huining Village and C. Paul, Assistant Pastor of Huining Baptist Church, who were taken to Phungrei Camp by the jawans of 21st Sikh Regiment on March 10, 1982 before this Court on Dec. 12, 1983 and file the return.” The Registry issued the writ and served the same upon first respondent-Union of India, second respondent- Secretary, Ministry of Home Affairs and 4th respondentCommandant, 21st Sikh Regiment, Phungrei Camp. Pursuant to the writ, it was obligatory upon respondents 1, 2 and 4 to file the return and to produce C. Daniel and C. Paul. A return on affidavit by one Ajai Vikram Singh, Director, Ministry of Defence dated December 9, 1983 was produced in the Court on December 12, 1983 stating therein “that with all the will and the best efforts, the respondents are unable to produce S/Shri C. Daniel and C. Paul for the reasons set out in the affidavit and crave for indulgence of the Hon’ble Court for their inability to produce the above- named individuals due to circumstances beyond their control.” It was reiterated that C. Daniel and C. Paul were not in the custody or control of respondents 1, 2, and 4. To this return several affidavits and messages were 547 annexed saying that the Army authorities conducted an extensive search for tracing C. Daniel and C. Paul but nothing fruitful has been achieved. One Surendra Kumar, Deputy Secretary, Ministry of Home Affairs had also filed the return stating that C. Daniel and C. Paul are neither in the custody or control of respondent No. 2. It was stated that Central Bureau of Investigation (CBI for short) have been directed to conduct enquiries to locate the aforementioned two persons and to intimate the result thereof. The matter was adjourned to enable the respondents to pursue their efforts. Nothing fruitful came up even though the
  • 30. COMPENSATION matter was twice adjourned at the request of learned Attorney General who entered appearance on behalf of respondents Nos. 1, 2 and 4. The writ petition was posted for further hearing and orders on April 19, 1984. On that day, a summary of enquiry made by CBI was submitted to the Court in which it was stated that ‘the field enquiries made by the CBI and the efforts made to locate the two persons have yielded no results and it has not been possible to locate Sri Daniel and Sri Paul’, The report was submitted by the Dy. Inspector General of Police (S). 2. It is now necessary to deal with the failure of respondents 1, 2 and 4 to file the return to the writ of habeas corpus. After a preliminary enquiry and after hearing the respondents and after negativing their contentions that Shri C. Daniel and Shri C. Paul were not seen last alive in the custody of the 4th respondent, the Court directed to issue a writ of habeas corpus. The writ of habeas corpus was issued and was served on respondents 1, 2 and 4. In compliance with the mandatory direction contained in the writ of habeas corpus, the person to whom it is directed is under a legal obligation to produce the body of person alleged to be unlawfully detained before the Court on the day specified and to make a formal return to the writ. (1) Such a writ has been issued and there has been failure to produce the missing persons in respect of whom writ is issued and to file the return as mandated by law. 3. The next question therefore, is: what is the appropriate mode of enforcing obedience to a writ of habeas corpus? 4. The Contempt of Courts Act, 1971 defines ‘contempt of court’ in Sec. 2(a) to mean ‘civil contempt or criminal contempt’. ‘Civil con 548 tempt’ is defined in Sec. 2(b) to mean wilful disobedience to any judgment decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court.’ Wilful disobedience to a writ issued by the Court constitutes civil contempt. The question is: whether this disobedience is wilful? Mere failure to obey the writ may not constitute civil contempt depending upon the facts and circumstances of the case. But wilful disobedience to a writ issued by a Court constitutes civil contempt. Again it is wellsettled that ‘the appropriate mode of enforcing obedience to a writ of habeas corpus is by committal for contempt. A committal order may be made against a person who intentionally makes a false return to a writ of habeas corpus, but an unintentional misrepresentation on a return is not a ground for committal.’(ibid para 1497) 5. The view of this Court as expressed in the main judgment clearly indicates that the assertion of respondents 1, 2 and 4 that C.Daniel and C.Paul left Phungrei Camp where 13
  • 31. 14 PRISONERS' RIGHTS VOLUME II 21st Sikh Regiment were stationed is not correct and that to avoid responsibility flowing from the mysterious disappearance of C.Daniel and C.Paul an attempt was made to suggest that they had left alive in the company of their compatriots. The Court has rejected this submission as untenable and uncorrected. On that conclusion one can say that there is a wilful disobedience to the writ of habeas corpus by misleading the court by presenting a distorted version of facts not borne out by the record. It is thus established that the respondents 1, 2 and 4 have committed civil contempt by their wilful disobedience to the writ. 6. Civil contempt is punishable with imprisonment as well as fine. In a given case, the court may also penalise the party in contempt by ordering him to pay the costs of the application. (Halsbury’s “Laws of England”, Fourth Edition, Vol.9, para 100 at p.61) A fine can also be imposed upon the contemnor. 7. Now in the facts and circumstances of the case, we do not propose to impose imprisonment nor any amount as and by way of fine but keeping in view the torture, the agony and the mental oppression through which Mrs. C. Thingkhuila, wife of Shri C. Daniel and Mrs. C. Vangamla, wife of Shri C. Paul had to pass and they being the proper applicants, the formal application being by Sebastian M. Hongray, we direct that as a measure of exemplary costs as is permissible in such cases, respondents Nos. 1 and 2 shall pay Rs 1 lac to each of the aforementioned two women within a period of four weeks from today. 8. A query was posed to the learned Attorney General about the further step to be taken. It was made clear that further adjourning the matter to enable the respondents to trace or locate the two missing persons is to shut the eyes to the reality and to pursue a mirage. As we are inclined to direct registration of an offence and an investigation, we express no opinion as to what fate has befallen to Shri C. Daniel and Shri C. Paul, the missing two persons in respect of whom the writ of habeas corpus was issued save and except saying that they have not met their tragic end in an encounter as is usually claimed and the only possible inference that can be drawn from circumstance already discussed is that both of them must have met an unnatural death. Prima facie, it would be an offence of murder. Who is individually or collectively the perpetrator of the crime or is responsible for their disappearance will have to be determined by a proper, thorough and responsible police investigation. It is not necessary to start casting a doubt on anyone or any particular person. But prima facie there is material on record to reach an affirmative conclusion that both Shri C. Daniel and Shri C. Paul are not alive and have met an unnatural death. And the Union of India cannot disown
  • 32. COMPENSATION the responsibility in this behalf. If this inference is permissible which we consider reasonable in the facts and circumstances of the case, we direct that the Registrar (Judicial) shall forward all the papers of the case accompanied by a writ of mandamus to the Superintendent of Police, Ukhrul, Manipur State to be treated as information of a cognizable offence and to commence investigation as prescribed by the relevant provisions of the Code of Criminal Procedure. S.R. Rule made absolute. 15
  • 33. Supreme Court of India AIR 1986 SC 494 Bhim Singh, MLA vs State of Jammu & Kashmir O. Chinnappa Reddy, V. Khaild, JJ. 1. Shri. Bhim Singh, a Member of the Legislative Assembly of Jammu & Kashmir, incurred the wrath of the powers that be. They were bent upon preventing him from attending the Session of the Legislative Assembly of Jammu & Kashmir, which was to meet on 11th September, 1985. That appears to be the only inference that we can draw from the circumstances of the case to which we shall now refer. On August 17, 1985, the opening day of the Budget Session of the Legislative Assembly. Shri. Bhim Singh was suspended from the Assembly. He questioned the suspension in the High Court of Jammu & Kashmir. The order of suspension was stayed by the High Court on 9th September, 1985. On the intervening night of 9th-10th September, 1985, he was proceeding from Jammu to Srinagar. En route, at about 3.00 A.M. (on 10th), he was arrested at a place called Qazi Kund about 70 kms from Srinagar. He was taken away by the police. As it was not known where he had been taken away and as the efforts to trace him proved futile, his wife Smt. Jayamala, acting on his behalf, filed the present application for the issue of a writ to direct the respondents to produce Shri. Bhim Singh before the Court, to declare his detention illegal and to set him at liberty. She impleaded the State of Jammu & Kashmir through the Chief Secretary as the first respondent, the Chief Minister, the Deputy Chief Minister and the Inspector General of Police, Jammu & Kashmir as respondents 2, 3 and 4. On Sept. 13, 1985, we directed notice to be issued to the respondents and we also directed the Inspector General of Police to inform Smt. Jayamala where Shri. Bhim Singh was kept in custody. On Sept, 16, 1985, Shri. Bhim Singh was released on bail by the learned Additional Sessions Judge of Jammu before whom he was produced. Shri. Bhim Singh filed a supplementary affidavit on 20th September, 1985 stating more facts in addition to what had already been stated by Smt. Jayamala in the petition. He categorically asserted that he was kept in police lockup from 10th to 14th and that he was produced before a Magistrate for the first time only on the 14th. Thereafter on 24th Sept. 1985, we issued notice to the Director General of Police, State of Jammu & Kashmir, Mr. Mir,
  • 34. COMPENSATION Superintendent of Police, Anantnag, Mohd. Shafi Rajguru, Inspector of Police, Amin Amjum, Deputy Superintendent of Police, Udhampur, Gupta, Deputy Superintendent of Police, Jhajar Kolli and the officer in charge of Police Station, Satwari. A counteraffidavit has been filed on behalf of the State of Jammu & Kashmir by Abdul Qadir Parrey. Affidavit have also been filed by M. M. Khajuria, Inspector General of Police, M. A. Mir, Superintendent of Police, Anantnag, Mohd. Shafi Laigroo, Inspector of Police, District Police Lines, Anantnag, Mohd. Amin Amjum, Deputy Superintendent of Police Headquarters, Udhampur and Rajinder Gupta, Probationary Deputy Superintendent of Police, Udhampur. Shri. Bhim Singh has also filed a rejoinder affidavit. 2. From the affidavits filed by the several police officers, it transpires that an FIR under Section 153A of the Ranbir Penal Code was registered against Shri. Bhim Singh on Sept. 9, 1985 at Police Station, Pacca Danga, Jammu on the allegation that he had delivered an inflammatory speech at a public meeting held near Parade Ground, Jammu at 7.00 P.M. on Sept. 8, 1985. The officer in charge of Police Station, Pacca Danga brought the matter to the notice of the Senior Superintendent of Police, Jammu, who in turn informed the Deputy Inspector General of Police of Jammu range. On 10th Sept. 1985, requisition for the arrest of Shri. Bhim Singh was sent to the Superintendent of Police, Anantnag through the Police Control Room, Srinagar. This fact is sworn to by Shri. M. M. Khajuria, Inspector General of Police, Jammu & Kashmir. Shri. M. A. Mir, Superintendent of Police, Anantnag has, however, stated in his affidavit that on Sept. 9, 1985 at about 11.30 P.M. he was informed by the Police Control Room, Srinagar that Shri. Bhim Singh, MLA was required to be apprehended as he was wanted in a case registered under Section 153A of Ranbir Penal Code. According to him, he immediately directed the officer in charge of Police Station, Qazi Kund that Shri. Bhim Singh may be apprehended as and when he reached his jurisdiction. He further instructed him that he should be brought to the District Headquarters, Anantnag after his arrest. These statements are obviously untrue in view of the affidavit of Shri. Khajuria, Inspector General of Police that the information to the Superintendent of Police, Anantnag was conveyed through the Police Control Room, Srinagar on 10th Sept., 1985. Shri. Mir has not chosen to explain why he expected Shri. Bhim Singh to pass through Qazi Kund that night. Quite obviously even before he had received any information from the Police Control Room about the alleged case registered against Shri. Bhim Singh, Shri. Mir had instructed the office in charge, Police Station, Qazi Kund to arrest Shri. Bhim Singh if he came within his jurisdiction. Whether he did it on his own and if so, for what reason or whether he did it on other instructions received by him is a matter which requires our consideration. At about 3.00 a.m., according to Shri. Mir, 17
  • 35. 18 PRISONERS' RIGHTS VOLUME II Shri. Bhim Singh was arrested at Qazi Kund by the officer in charge of Police Station, Qazi Kund and brought to the District Headquarters where it appears Shri. Bhim Singh was provided with facilities for rest, wash, breakfast, etc. It is necessary to mention here that no affidavit has been filed before us by the officer in charge of Police Station, Qazi Kund, the officer who arrested Shri. Bhim Singh. It appears that under the orders of the Superintendent of Police, Anantnag, Shri. Bhim Singh was taken from Anantnag by Shafi Laigroo, Inspector of Police, District Police Lines. Anantnag in a Matador at about 7.30 a.m. on 10th September, 1985. They reached, according to Mohd. Shafi Laigroo, Batota at 2.00 p.m. where Bhim Singh was provided with lunch. They reached Udhampur at 5.00 p.m. where Bhim Singh was provided with tea and finally they reached Jammu City Police Station at 7.30 p.m. There they learnt that Bhim Singh was wanted in connection with a case registered by the police of Pacca Danga Station. He was, therefore, taken to Pacca Danga Police Station and handed over to the officer in charge of Pacca Danga Police Station. Mohd. Amin Amjum, Deputy Superintendent of Police Headquarters, Udhampur and Shri. Rajender Gupta, Probationary Deputy Superintendent of Police, Udhampur were directed by the Senior Superintendent of Police, Udhampur to see to the safe passage of Bhim Singh through Udhampur District. They were informed that Bhim Singh was taken from Anantnag to Jammu in a matador. So they followed the matador in which Bhim Singh was being taken from Chenani Police Station to Jammu and thereafter returned to their respective stations. According to the Inspector General of Police, Shri. Bhim Singh was taken to Police Station Pacca Danga at about 9.30 P.M. On 11th Sept. 1985, a remand to police custody for two days was obtained from an Executive Magistrate First Class. A copy of the application for remand made in Urdu with the endorsement of the Executive Magistrate First Class has been filed as an annexure to the affidavit of Shri. Khazuria. The endorsement says, ‘Remanded for two days with effect from 11th instant.’ It is signed by the Magistrate and dated 11th Sept., 1985. Neither the application nor the endorsement shows that Shri. Bhim Singh was produced before the Magistrate when remand was sought. Shri. Bhim Singh expressly denied that he was produced before any Magistrate on 11th. With reference to the remand obtained on 11th Sept. 1985, Shri. Khajuria does not state in his affidavit that Shri. Bhim Singh was produced before the Executive Magistrate, First Class on 11th Sept., 1985. But in very careful and guarded language the says, ‘A remand to police custody for two days was obtained by Pacca Danga Police Station from Executive Magistrate, First Class on 11th Sept., 1985.’ The officer in charge Police Station, Pacca Danga has not filed any affidavit. It has to be mentioned here that Shri. Bhim Singh moved an application before the
  • 36. COMPENSATION Executive Magistrate on 24th Oct. 1985 to be informed as to the time when remand was obtained from the Magistrate. The Magistrate made the following endorsement on the application of Shri. Bhim Singh : Returned in original to the applicant with the remarks that the remand application was moved before me by the SHO Pacca Danga Jammu on 11th September, 1985 after office hours in the evening at my residence and the (illegible) remanded the applicant in police custody for a period of two days alone. 3. On the expiry of the remand of two days granted by the Executive Magistrate, a further remand was obtained for one day, this time, not from the Executive Magistrate, First Class, but, from the Sub-Judge. It was probably thought not wise to go before the same Magistrate and ask for a second remand. The application made in Urdu to the Sub-Judge with the endorsement of the Sub-Judge has also been filed as an annexure to the Affidavit of Shri. Khajuria. The endorsement of the Sub-Judge reads : Application for police remand has been moved by Shri. Bansi Lal (illegible), S. H. 0. P/S Pacca Danga with the submission that the accused Shri. Bhim Singh is sick (Medical Certificate attached) and he be removed to the police lockup as the investigation in the case is still in progress. Perused the police diaries with the SHO and also the medical (illegible) examination slip. The accused is authorised to be left in police lockup for one day. The accused be produced in the Court by tomorrow for further necessary remand orders. 4. The endorsement is signed by the Sub-Judge and is dated 13th Sept., 1985. We have again to mention here that Shri. Bhim Singh requested the Magistrate to give him a copy of the medical certificate purported to have been submitted by the S. H. O. Pacca Danga. On this application, the Sub-Judge made the following endorsement : Shri. Bhim Singh has moved an application requesting this Court to certify the time when the police remand application was moved before me by Police P/S Pacca Danga on 13.9.85. The application is also accompanied with a photostat copy of the remand order passed by me on 13.9.85 as a duty Magistrate. The application in original was forwarded to the I/C Police Station Pacca Danga for report and production of case diaries of the case for perusal, but it has been reported that the case diaries are with SHO who is out on law and order duty. From the perusal of the photostat copies of the remand order and from my recollection, it is certified that the remand application was moved before me at my residence after Court hours in the evening. 5. Shri. Bhim Singh swears in his rejoinder affidavit that he was not produced before the Sub-Judge on 13th nor was he examined at any time by any doctor. Shri. Khajuria in his 19
  • 37. 20 PRISONERS' RIGHTS VOLUME II affidavit again uses very careful language and says, ‘On the expiry of this remand, an application for further remand was submitted before the Sub-Judge (Judicial Magistrate First Class) on 13th Sept., 1985, who extended the remand by one day.’ Shri. Khajuria does not say a word about Shri. Bhim Singh having been examined by any doctor. He makes no reference to the production of any medical certificate before the Sub-Judge. As already mentioned, the officer in charge of the Pacca Danga Police Station has not filed any affidavit before us. Thereafter on 14th Sept., 1985, Shri. Bhim Singh was produced before the Sub-Judge and was remanded to judicial custody for two days with a direction to produce him before the Sessions Judge, Jammu on 16th Sept., 1985. He was accordingly taken to the Court of the Sessions Judge on 16th Sept., 1985, but as the Sessions Judge was absent, he was produced before the Additional Sessions Judge. He was released on bail on his personal bond by the Additional Sessions Judge. That he was produced before the Magistrate on 14th, remanded to judicial custody for two days, produced before the Additional Sessions Judge on 16th and released on bail are facts which are not disputed by Shri. Bhim Singh. In his affidavit when he refers to the events of 14th and 16th September, 1985, Shri. Khajuria takes good care to use the words ‘produced before the Sub-Judge’ and ‘produced before the Additional Sessions Judge’. As mentioned by us earlier, with reference to the events on 11th and 13th Sept., 1985, Shri. Khajuria very carefully refrained from using the word ‘produced’. He merely said ‘remand was obtained. Shri. Bhim Singh in his supplemental and rejoinder affidavits has stated certain facts relating to alleged further harassment by the police. We are not concerned with those further facts for the purposes of this case. We are only concerned with the detention of Shri. Bhim Singh from 3.00 a.m. on 10th Sept., 1985 until he was produced before the SubJudge on 14th Sept., 1985. The two remand orders said to have been made by the Executive Magistrate First Class and Sub-Judge on 11th and 13th Sept., 1985 respectively do not contain any statement that Shri. Bhim Singh was produced either before the Executive Magistrate First Class or before the Sub-Judge. The applications for remand also do not contain any statement that Shri. Bhim Singh was being produced before the Magistrate or the Sub-Judge. Shri Khajuria, the Inspector General of Police has very carefully chosen his words and stated in the affidavit that remand orders were obtained. He refrained from stating that Shri. Bhim Singh was produced before the Magistrate or the Sub-Judge on 11th and 13th. The Medical Certificate referred to in the application dated 13th Sept., 1985 has also not been produced and Shri. Khajuria makes no reference to it in his affidavit. In addition we have the important circumstance that no affidavit of the officer in charge of the Police Station
  • 38. COMPENSATION Pacca Danga has been filed before us. Nor has the affidavit of the officer, who arrested Shri. Bhim Singh has been filed before us. At the time of hearing the petition on 19th Nov. 1985, Shri. E. C. Aggarwal stated to us that the affidavit of the two police officers had been got ready but were mislaid. He tried to show us some photostat copies of the alleged affidavits and prayed that the case might be adjourned for filing the affidavits of the two police officers. We refused to accede to the request. There was ample time for the respondents to file the affidavits of the two police officers after we issued notice to the respondents. It is not disputed that right from the beginning, they were aware of the writ petition filed in this Court. The affidavits of Shri. Khajuria and others were filed as far back as 16th Oct., 1985 and there was no reason whatsoever for not filing the affidavits of the two police officers at that time. When the complaint was of illegal arrest and detention, the least one would expect the respondents to do is to file the affidavits of the officer who arrested the petitioner and the officer who produced him before the Magistrate for the purpose of obtaining orders of remand. Instead of filing their affidavits, several inconsequential affidavits were filed perhaps only to confuse the issue. Shri. Khajuria, the Inspector General of Police filed a lengthy affidavit containing statements of fact, most of which he could not be personally aware. However, he chose to use careful language, as pointed out by us, whenever he referred to the remand of Shri. Bhim Singh or his production before a Magistrate or Sub-Judge. We are convinced that the failure to file the affidavits of the officers, who arrested Shri. Bhim Singh and the Sub-Inspector, in charge of Pacca Danga Police Station was deliberate. They were to be kept back until there was dire necessity. We do not have the slightest hesitation in holding that Shri. Bhim Singh was not produced before the Executive Magistrate First Class on 11th and was not produced before the Sub-Judge on 13th. Orders of remand were obtained from the Executive Magistrate and the Sub-Judge on the applications of the police officers without the production of Shri. Bhim Singh before them. The manner in which the orders were obtained, i.e. at the residence of the Magistrate and the Sub-Judge after office hours, indicates the surreptitious nature of the conduct of the police. The Executive Magistrate and the Sub-Judge do not at all seem to have been concerned that the person whom they were remanding to custody had not been produced before them. They acted in a very casual way and we consider it a great pity that they acted without any sense of responsibility or genuine concern for the liberty of the subject. The police officers, of course, acted deliberately and malafide and the Magistrate and the Sub-Judge aided them either by colluding with them or by their casual attitude. We do not have any doubt that Shri. Bhim Singh was not produced either before the Magistrate on 11th or 21
  • 39. 22 PRISONERS' RIGHTS VOLUME II before the Sub-Judge on 13th, though he was arrested in the early hours of the morning of 10th. There certainly was a gross violation of Shri. Bhim Singh’s constitutional rights under Articles 21 and 22(2). Earlier we referred to the circumstance that though Shri. Khajuria, Inspector General of Police stated that information was sent to Superintendent of Police. Anantnag through the Police Control Room, Srinagar on 10th Sept., 1985, Shri. Mir, the Superintendent of Police, Anantnag stated that on 9th Sept., 1985 at 11.30 P.M., he was informed by the Police Control Room, Srinagar that Shri. Bhim Singh was required to be apprehended as he was wanted in a case registered under Section 153A of the Ranbir Penal Code. Nobody cared to explain why it was thought that Bhim Singh would pass through Qazi Kund in Anantnag District on the night of September 9-10. Nobody thought fit to explain how and why the Senior Superintendent of Police, Udhampur came to direct his officers to escort Bhim Singh. It has not been explained how and when the Senior Superintendent of Police, Udhampur came to know of the arrest of Bhim Singh and who required him to arrange for the ‘safe passage’ of Bhim Singh through Udhampur District. To our minds, it appears as if it was expected that Bhim Singh would proceed from Jammu to Srinagar on the intervening night of 9-10 September, 1985 as there was a meeting of the Assembly on 11th September and the police were alerted to arrest him when sighted en route to Srinagar and take him back to prevent him from proceeding to Srinagar to attend the Session of the Legislative Assembly. We can only say that the police officers acted in a most highhanded way. We do not wish to use stronger words to condemn the authoritarian acts of the police. If the personal liberty of a Member of the Legislative Assembly is to be played with in this fashion, one can only wonder what may happen to lesser mortals! police officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to such bizarre acts of lawlessness. Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct. 6. However the two police officers, the one who arrested him and the one who obtained the orders of remand, are but minions, in the lower rungs of the ladder. We do not have the slightest doubt that the responsibility lies elsewhere and with the higher echelons of the Government of Jammu and Kashmir but it is not possible to say precisely where and with whom, on the material now before us. We have no doubt that the constitutional rights of Shri Bhim Singh were violated with impunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but
  • 40. COMPENSATION suitably and adequately compensated, he must be. That we have the right to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of this Court in Rudul Sah vs. State of Bihar, (1983) 3 SCR 508: (AIR 1983 SC 1086) and Sebastian M. Hongray Vs. Union of India, AIR 1984 SC 1026. When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case. We direct the first respondent, the State of Jammu and Kashmir to pay to Shri Bhim Singh a sum of Rs. 50,000/- within two months from today. The amount will be deposited with the Registrar of this Court and paid to Shri. Bhim Singh. 7. Order accordingly. 23
  • 41. Supreme Court of India AIR 1987 SC 355 Peoples’ Union of Democratic Rights vs State of Bihar Ranganath Misra and M.M. Dutt, JJ. 1. Peoples’ Union for Democratic Rights, an organization said to be committed to the upholding of fundamental rights of citizens has filed this application under Article 32 of the Constitution. It is alleged that on 19th April,1986, 600 to 700 poor peasants and landless people mostly belonging to backward classes had collected for holding a peaceful meeting within the compound of Gandhi Library in Arwal, a place within the District of Gaya in the State of Bihar. Without any previous warning by the police or any provocation on the part of the people who had so collected, the Superintendent of Police, Respondent No.3 herein, reached the spot with police force, surrounded the gathering and opened fire as a result of which several people were injured and at least 21 persons including children died. The petitioner alleged that separate unofficial inquiries have been held into the atrocity and the reports indicated that the number of deaths was much more than 21 and there was no justification for the firing. It appears that there was a dispute relating to possession of 26 decimals of low lying land adjacent to the canal at Arwal and to such dispute members of a rich Rajak family on one side and members of nine poor families on the other were parties. Even though several people died and many more were injured by the ruthless and unwarranted firing resorted to by the police, to give a cover to the atrocities, the police started a false case being Arwal P.S. Case No.59 of 1986 and therein implicated several innocent people including even some of the people who had been killed in the firing. Three specific prayers were made in the writ petition, namely: (1) To issue an appropriate writ to make an order or direction in the matter of payment of full and proper compensation to the victims-relations of the dead and to the people who were injured by police firing; (2) For a direction to withdraw the police case referred to above; and (3) For a direction to the Respondent No.1 to settle the land in dispute within the nine poor families.
  • 42. COMPENSATION 2. During the hearing of the matter, an additional relief was pressed, namely this Court should gave a direction for instituting a judicial inquiry into the alleged atrocity. 3. It may be pointed out that during the pendency of this writ application the State Government in response to the growing demand for a judicial inquiry into the matter directed an inquiry therein by Shri Vinod Kumar, Member, Board of Revenue, Bihar. The said inquiry has been completed and the report has already been furnished to the Government. On the orders of the Court, the report has been produced before this Court with a claim to privilege against the disclosure thereof. 4. The incident drew a lot of publicity and attention both within the State as also outside. Coming to know about it, Shri B.D. Sharma, Assistant Commissioner for Scheduled Castes and Scheduled Tribes visited the locality and made a report. At the instance of the petitioner, that document was summoned and has been produced. In respect thereof the Union Government has also claimed privilege. 5. In the affidavits in opposition filed on behalf of the respondents the factual assertions raised in the writ petition have been disputed. It has also been brought to our notice that a writ petition has been filed before the Patna High Court prior to filing of this application under Article 32 before this Court and the writ petition in the High Court is still pending. Once this fact was brought to our notice, Mr. Mukati for the petitioner submitted that we should direct transfer of the writ petition pending in the High Court to this Court so that both the matters can be heard together. We are of the view that it would be appropriate that the matter is examined by the High Court. It would be convenient to the parties to produce material before the High Court on account of proximity; the High Court will be in a position to call the documents and, if necessary, affidavits of parties concerned as and when necessary while dealing with the matter; and without notice and without affording a reasonable opportunity to the parties to the writ petition before the High Court an order to transfer may not be appropriate. In these circumstances, we have not thought it proper to have the writ petition in the High Court transferred to this Court. On the other hand, we have considered it expedient and proper in the interest of justice to dispose of some aspects of the matter now and leave it open to the petitioner to canvass the other aspects by getting itself impleaded before the High Court in the pending writ petition or by the filing of an independent application. 6. There has been no dispute that as a result of police firing 21 people died and several others were injured. The heirs and relations of a few of the dead people had been 25
  • 43. 26 PRISONERS' RIGHTS VOLUME II compensated by the State to the tune of Rupees ten thousand as found from the record. No justification has been indicated as to why the said compensation has not been given in every case of death or injury. It is a normal feature of which judicial notice can be taken that when such unfortunate consequences emerge even in police firing, the State comes forward to give compensation. Mr. Jaya Narayan, for the State candidly stated before us that it is not the intention of the State to deprive the relatives of some of the victims who succumbed to the injuries sustained by police firing from benefit of compensation. Ordinarily in the case of death compensation of Rupees twenty thousand is paid and we see no reason as to why the quantum of compensation should be limited to rupees ten thousand. We may not be taken to suggest that in the case of death the liability of the wrong-doer is absolved when compensation of Rupees twenty thousand is paid. But as a working principle and for convenience and with a view to rehabilitating the dependants of the deceased such compensation is being paid. We direct that: (1) without prejudice to any just claim for compensation that may be advanced by the relations of the victims who have died or by the injured persons themselves, for every case of death compensation of Rupees twenty thousand and for every injured person compensation of Rupees five thousand shall be paid. Where some compensation has already been paid, the same maybe adjusted when the amount now directed is being paid. These payments be made within two months hence. (2) In case the petitioner gets impleaded in the pending writ petition before the High Court or files a separate writ petition and presses for disclosure of the report of Mr. Kumar, the High Court may examine the question as to whether the report will be made public and in the event of privilege being claimed, the question of privilege will also be examined by the High Court. (3) We have read the report furnished by the Assistant Commissioner of Scheduled Castes and Scheduled Tribes and since the report is not relevant to the point in issue, it is not necessary to ask the High Court to call for the report. We direct that the report be returned to the appropriate Ministry from where it has been brought. (4) The investigation of the pending police case shall be completed within three months from now. In case charge-sheet is submitted, it would be open to the petitioner or any other aggrieved party to challenge the maintainability of the charges in accordance with law.
  • 44. Supreme Court of India 1989 (4) SCC 730 People's Union for Democratic Rights and Another vs Police Commissioner, Delhi Police and Another G.L. Oza, K.N. Saikia, JJ …… 2. It is an unfortunate case where the police collected poor people and took them to the police station for doing some work. They were asked to work without labour charges. On demand they were beaten and it appears that one of them Ram Swaroop succumbed to the injuries and the body has also been disposed of. Petitioner 2 Patasi, as alleged, was also stropped of her clothes and was thrashed in the police station. The other eight persons namely (1) Dandwa (2) Ram Prasad (3) Jaipal (4) Mahavir (5) Kannu (6) Munsjia (7) Hukka and (8) Pratap were also beaten up rather than they should have been paid for the work they did at the police station. 3. We are happy and we record our appreciation that Mr. A.S. Khan, Deputy Commissioner of Police in his Affidavit has frankly accepted the atrocity committed by the Police Officers and it also appears some action has been taken and Station House. Officers has been arrested. The matter is being investigated for criminal prosecution. It is unfortunate that the Police to whom the citizen can approach for protection and help acted in such a manner. 4. Under the above circumstances we direct that the family of Ram Swaroop who is dead will be paid Rs.50,000 as compensation, which will be invested in some scheme under the Life Insurance Corporation, so that the destitute family may get some amount monthly and the money may also be kept secured. It is also directed that petitioner 2 Patasi who were stripped of her clothes at the Police Station, shall be paid Rs.500 as compensation and the 8 other persons namely (1) Dandwa (2) Ram Prasad (3) Jaipal (4) Mahavir (5) Kannu (6) Munsjia (7) Hukka and (8) Pratap, who were take in the police station without being paid for their work will be paid Rs.25 each. It is directed that after investigation and inquiry officers who are found guilty, the amount paid as compensation or part thereof may be recovered from these persons out of their salaries after giving them opportunity to show cause. 5. This order will not prevent any lawful action for compensation. But in case some compensation is ordered by a competent court, this will be given credit to.
  • 45. Supreme Court of India AIR 1990 SC 513 Saheli, A Women’s Resource Centre, Through Ms. Nalini Bhanot and Others vs Commissioner of Police, Delhi and Others B.C. Ray, S. Ratnavel Pandian, JJ. 1. These writ petitions have been filed by the Women’s and Civil Rights Organization known as SAHELI, a Women’s Resources Centre on behalf of two women Maya Devi and Kamiesh Kumari who have been residing in one room tenement each on the ground floor of house No. 408/5/AL Gali No. 29, Anand Parbat and were severely beaten up by the alleged landlord in collision with the S. H. O., Shri. Lal Singh and the police of Anand Prabat Police Station. The facts of the case giving rise to these writ petitions are as follows. 2. Kamlesh Kumari and her husband Inder Singh moved into the house No. 408/5/A L, Gali No. 29, Anand Parbat in 1974. They had three children Saroj 13 years old girl, Naresh 9 years old boy (now deceased) and Suresh 7 years old boy. They were living in one room on the ground floor of the said house which is a double storeyed. The other lady, Maya Devi has also been living in another room of the said house on the ground floor with her husband and children. The husbands of both Kamlesh Kumari and Maya Devi are truck drivers and they often remain away from their home. There is a dispute over the ownership of the house. In or about 1984, the old landlord, one Tajinder Singh left the house and one Manohar Lal claims to be the new landlord. At present one Puran Chand and his two sons Shambu Dayal and Prakash Chand claim to have bought the said property from Manohar Lal and they have been illegally evicting all the tenants from the said premises. In their attempt they succeeded in evicting all the tenants except the two tenants named Kamlesh kumari and Maya Devi. It is because of these illegal threats of eviction, Kamiesh Kumari obtained an order of stay from the Court against her forceful eviction and that said order is in force. Some time in October, 1987 the so-called landlords cut off the water and electricity supply to Kamlesh Kumari’s room and the same has not been restored till this day. On November, 2, 1987 the then S. H. O. of Anand Parbat Police Station, Lal Singh called for Kamlesh Kumari and told her to vacate the room. On November 4,1987, the said S. H. O. again
  • 46. COMPENSATION called for Kamlesh Kumari and when she arrived at the police station she found that the so-called landlords were already present there. In the presence of Shambu Dayal and others, Lal Singh told Kamlesh Kumari to take some money and leave the room whereon Kamlesh Kumari said that she should be given some time especially because her children are studying in schools. On Nov. 12, 1987, the said S.H.O. once again called Kamlesh Kumari and this time he threatened to lock her up if she refused to vacate the room. On November 13,1987, Kamlesh Kumari went to Tis Hazari Court to consult her lawyer. On coming back she found her children missing and Maya Devi was standing outside, all her belongings thrown out Maya Devi told Kamlesh Kumari that the Sub-Inspector of Police K. I. Nanda of Anand Parbat Police Station had come and had taken away her children and had thrown away Maya Devi from her room. Kamlesh Kumar immediately went to the police station and met the S. H. O. Lal Singh and asked him about her children. The S. H. O. said that her children had been kept locked up and she would not allowed to see her children unless she vacated the room. Kamlesh Kumari then went to Tis Hazari Court to see her lawyer. The lawyer phoned the police control room and rushed back to Anand Parbat Police Station. With great difficulty the lawyer got the three children released from the police station. 3. On the same day, i.e. November 13, 1987, after Kamlesh Kumari and her children had just taken their dinner, Shambu Dayal trespassed into her room and hit Kamlesh Kumari on the forehead with a brick. She rushed to the police station and reported the matter to the police. The police had her medically examined but refused to take any action against the assailants. 4. On November 14, 1987, Kamlesh Kumari was attacked by Shambu Dayal, his brother Prakash Chand accompanied by Lal Singh in civilian clothes and Sham Lal, Sub-Inspector in uniform accompanied by two others. They beat Kamlesh Kumari, tore her clothes and molested her. Her nine years old son clung to his mother to protect her when Lal Singh took him away and forcibly threw him on the floor. Lal Singh also asked Shambu Dayal to beat Naresh. Kamlesh Kumari was dragged away to the police station and a criminal case was imposed upon her of trespass. She was sent to Tihar Jail and her lawyer got her released on November 16, 1987. Kamlesh Kumari on her release came back and found that her child, Naresh was in a very bad condition. The children took shelter at a neighbour’s house and the neighbours had got local doctors to look after Naresh. On the advice of the doctors, Naresh was admitted to Ram Manohar Lohia Hospital on Nov. 18, 1987. However, no medical legal case was registered Kamlesh Kumari’s lawyer tried to get a medical legal case registered. At last medical legal case 29
  • 47. 30 PRISONERS' RIGHTS VOLUME II was registered on Nov. 23, 1987 by the ACP, Patel Nagar at 11.30 p.m. In the FIR No. 143/87 the said ACP had written that she had said that no policeman had beaten her son although she had specifically named Lal Singh and others. On Nov. 26, 1987, Naresh died in hospital and an inquest was carried out. This news was published in the Hindi newspapers. 5. On December 10, 1987, S. D. M. Vipul Mittra called Kamlesh Kumari to his office stating that he was conducting an enquiry into the facts and circumstances leading to Naresh’s death. On December 6, 1987 the Crime Branch filed its report in the Court opposing bail for Shambu Dayal. In the said report, it has been stated that the details of the D.D. entries mentioned in the bail application itself show conspiracy or connivance of the local police with the accused. This report was annexed as Annexure ‘C’ to these petitions. Kamlesh Kumari and her neighbours and lawyer on the day of Naresh’s death sat on dharna outside the residence of the Lt. Governor and demanded that a judicial enquiry be ordered into the death of Kamlesh’s son, Naresh. The report given by the fact-finding-team of the Peoples’s Union for Democratic Rights, into the death of Naresh was also published. The said report states that the representatives of the Peoples’ Union for Democratic Rights met the S.D.M. Vipul Mittra who told them that he would intimate them his findings, but subsequently when they contacted him they were told that it was a sensitive report and it can be made public only by the Lt. Governor. As such the instant writ petitions were moved before this Court praying amongst others the issuance of a writ for directions directing the respondents to pay Kamlesh Kumari exemplary damages for the death of her son, Naresh. 6. On June 13,1988, this Court directed to implead the Medical Superintendent, Ram Manohar Lohia Hospital, New Delhi as respondent No. 4 and also directed the Medical Superintendent to keep the record relating to Naresh, son of Kamlesh Kumari in a sealed cover and deposit the same with the Registrar of this Court within two weeks from the date of the order. By order dated August 22, 1988 the respondents were given two weeks time to file counter-affidavit and one week’s time thereafter was given to the petitioners to file rejoinder. 7. Kanwaljit Deol, Deputy Commissioner of Police, Headquarters (II), Delhi on behalf of Commissioner of Police affirmed an affidavit in counter wherein it has been stated that : On the basis of the aforesaid complaint ACP/Patel Nagar got registered case FIR No. 143 dated 24.11.1987 under Section 308/34 IPC, P. S. Anand Parbat, New Delhi and entrusted investigation to Inspector, Vigilance, Central Dist., who arrested accused
  • 48. COMPENSATION Shambu Dayal, son of Puran Chand on 24.11.1987. On 26.11.1987 Naresh expired in Ram Manohar Lohia Hospital and post-mortem was got conducted. The autopsy doctor opined that injuries were ante-mortem caused by blunt force impact/ possible injuries were not sufficient to cause death. Death was due to pneumonitis as diagnosed clinically. Offence was charged to Section 304/34, IPC. 8. It has also been stated therein that Maya Devi was residing in one room adjacent to room of Kamlesh Kumari for 6-7 months, the landlords did not issue any rent receipt. It was also stated that : On 13.11.1987 the landlord forcibly got vacated the room in possession of Maya Devi with the connivance of local police which is evident from the DD entry made by Asst. Sub-Inspector, Kishan Lal who visited the spot on the information of quarrel between Maya Devi and landlords’ men. 9. It has further been stated that : On 14.11.1987, Shambu Dayal got registered a false case under Section 448, IPC to get the above objective and the local police arrested Smt. Kamlesh Kumari the same day. She was not admitted to bail despite approach by her relatives. The S. H. O. himself took part in the beatings and the minor child (Naresh) of Smt. Kamlesh was also not spared, and was thrown away while he clunged to feet of his mother, while she was being beaten mercilessly. Naresh sustained severe injury in his left leg and could not be attended by the doctors in absence of his parents. On 16.11.1987 only Naresh was attended by his mother after release from jail and by then the child had suffered from old ailments. She took him to R. M. L. Hospital on the advice of the local doctors. The injuries inflicted to Naresh on 14.11.87 caused fever and pneumomitis and finally resulted in his death. Later on the nature of injury on left leg of the child was opined to be grievous one. 10. The relevant portion of the report dated 5.12.1987 submitted Puran Sing, Inspector, Crime Branch, Delhi is quoted hereunder : So far it seems that there is a high level conspiracy in getting the rooms of tenants vacated by the landlord if the accused is bailed out, it will be difficult to find out the truth. Smt. Shobha and the doctor are already under pressure. As the local police involved in all this episode so bailing out the accused will definitely affect the fate of the case. The accused should not be bailed out as it is clear case under Section 302/120B, IPC. The details of DD entries mentioned in the bail application itself show the conspiracy or connivance of the local police with the accused. Therefore the bail is opposed strongly. 11. The landlord, Shambu Dayal and Puran Prakash and Lal Singh, S. H. O. and Shyam Lal, Sub-Inspector have been impleaded as respondents by order dated September 20, 1988 in these writ petitions. They also filed counter-affidavits. 31
  • 49. 32 PRISONERS' RIGHTS VOLUME II 12. It is now apparent from the report dated 5.12.1987 of the Inspector of the crime Branch, Delhi as well as the counter-affidavit of the Deputy Commissioner of Police, Delhi on behalf of the Commissioner of Police, Delhi and also from thefact that the prosecution has been launched in connection with the death of Naresh, son of Kamlesh Kumari showing that Naresh was done to death on account of the beating and assault by the agency of the sovereign power acting in violation and excess of the power vested in such agency. The mother of the child, Kamlesh Kumari, in our considered opinion, is so entitled to get compensation for the death of her son from the respondent No. 2, Delhi Administration. 13. An action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death. In cases of assault, battery and false imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity, loss of liberty and death. As we have held hereinbefore that the son of Kamlesh Kumari aged 9 years died due to beating and assault by the S. H. O., Lal Singh and as such she is entitled to get the damages for the death of her son. It is well settled now that the State is responsible for the tortious acts of its employees. The respondent No. 2, Delhi Administration is liable for payment of compensation to Smt. Kamlesh Kumari for the death of her son due to beating by the S. H. O. of Anand Parbat Police Station, Shri. Lal Singh. 14. It is convenient to refer in this connection the decision in Joginder Kaur Vs. The Punjab State, 1968 Acc CJ 28 at p. 32: (1969) Lab IC 501 at p. 504) (Punj), wherein it has been observed that : In the matter of liability of the State for the torts committed by its employees, it is now the settled law that the State is liable for tortious acts committed by its employees in the course of their employment. 15. In State of Rajasthan Vs. Mst. Vidhyawati, 1962 Supp (2) SCR 989 at p. 1007 : (AIR 1962 SC 933 at p. 940) it has been held that : Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such as any other employer. The immunity of the Crown in the United Kingdom was based on the old feudalistic notions of justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could not be sued in his own courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the common law immunity never operated in India.....
  • 50. COMPENSATION 16. In Peoples Union for Democratic Rights through its Secretary and Anothers Vs. Police Commissioner, Delhi Police Headquarters and Anothers (writ petitions (Cri.) Nos. 401402 of 1986 orders in which were pronounced by this Court on January 13, 1989) one of the labourers who was taken to the police station for doing some work and on demand for wages was severely beaten and ultimately succumbed to the injuries. It was held that the State was liable to pay compensation and accordingly directed that the family of the aforesaid labourer will be paid Rs. 75,000/- as compensation. 17. On a conspectus of these decisions we deem just and proper to direct the Delhi Administration, respondent No. 2 to pay compensation to Kamlesh Kumari, mother of it deceased, Naresh a sum of Rs. 75,000/- within a period of four weeks from the date of this Judgement. The Delhi Administration may take appropriate steps for recovery of the amount paid as compensation or part thereof from the officers who will be found responsible, if they are so advised. As the police officers are not parties before us, we state that any observation made by us in justification of this order shall not have any bearing in any proceedings specially criminal prosecution pending against the police officials in connection with the death of Naresh. The writ petitions are disposed of accordingly. 18. Order accordingly. 33
  • 51. Delhi High Court 1992 Cri. LJ 128 P. V. Kapoor and another vs Union of India B.N. Kirpal, D.K. Jain, JJ. 1. Two lawyers of this Court have filed this writ petition, under Article 226 of the Constitution, in the nature of Public Interest Litigation, alleging that in the police firing on a crowd of unarmed students on 25th September, 1990 in or about INA Market, New Delhi, one Devinder Kumar Sharma was mercilessly and cold-bloodedly killed. The evidence for this occurrence is stated to be contained in a video film which was shot by M/s. Living Media House Limited and distributed in the October, 1990 issue of a video news magazine in the name and style of NEWS TRACK. 2. The petition is based on the aforesaid issue of NEWS TRACK. According to the averments in the petition, Devinder Kumar Sharma was shot at somewhere above the waist by the Delhi Police and thereafter he was dragged for a considerable distance by the very shattered arm which hung limp and twisted and he was thereafter lifted into a police jeep. It is further alleged that while he was being dragged in this manner, Devinder Kumar Sharma bled profusely, leaving a trail of his blood behind him and in fact he was also asked to get up but when he was unable to do so, he was again dragged for a considerable distance till he was put in the police jeep. It is further stated that no police vehicle was immediately made available for his being carried to the hospital and nor was any first aid or medical aid provided. 3. According to the petitioners, Devinder Kumar Sharma was participating in a protest against the Mandal Commission Report, which the Government had decided to implement. It is contended that the police resorted to shooting above the waist following an injury received by one of the police men as a result of stone throwing. According to the petitioners, full riot gear techniques and disproportionate force was utilised that what was demanded by the situation. It is further submitted that gross brutality has gone unnoticed and there has been violation of basic human rights. The prayer in the writ petition, inter alia, is that order should be passed directing compensation of Rs. 5 lakhs to the family of Devinder Kumar Sharma. It is also prayed
  • 52. COMPENSATION that direction be issued to the Union of India to initiate appropriate criminal action under the relevant and applicable provisions of the Indian Penal Code against such of the officers or constables of the Delhi Police who were responsible for causing death of Devinder Kumar Sharma and also for such other criminal and culpable action as seen in the said video film. 4. Vide order dated 26th October, 1990, Living Media was directed to be impleaded as one of the respondents. Medical records were sent for from the hospital to which the injured of the firing of 25th September, 1990 at the INA Market area had been taken. It also transpired that apart from NEWS TRACK, there were other video films which were being shot. Orders were then passed directing M/s Living Media to file in Court, with copies to the parties, the un-edited version of the story which had appeared in the NEWS TRACK of October, 1990. Pursuant to the directions issued by this Court, the Press Trust of India were also directed to file an un-edited version of what their video team had recorded at the INA Market. Both the Living Media as well as the Press Trust of India filed their cassettes. In addition thereto, the police also filed a cassette without disclosing as to who had shot the said video film. 5. During the course of the preliminary hearing of this petition it came to light that on 25th September, 1990, in an area adjoining the INA Market viz., at Sarojini Nagar, the police had also resorted to firing and one 15 year old boy Aditya Narain had been shot. The said Aditya Narain was removed to the hospital but after a few days, he expired. Shri. R. N. Sharma, the father of Aditya Narain, with leave of the Court, filed an affidavit narrating the incidents which, according to him, had taken place on that fateful day at the Sarojini Nagar area. 6. With the filing of the affidavit by Shri. R. N. Sharma, the scope of the writ petition was enlarged so as to encompass the incidents at Sarojini Nagar and INA Market because firing had been resorted to at both the places within a radius of 1 Km. The respondents have filed a detailed reply dealing with the incidents at INA Market and also at Sarojini Nagar area. 7. While the respondents have not denied that firing was resorted to as a result of which two persons died at INA Market and one boy viz. Aditya Narain died after a firing at Sarojini Nagar, the case of the respondents, however, on merits, is that there were riotous mobs at both the areas. The said mobs were armed and despite having used tear gas and lathis, the mob did not disperse and the respondents had no alternative but to resort to firing at INA Market. With regard to the firing at Sarojini Nagar, it is 35
  • 53. 36 PRISONERS' RIGHTS VOLUME II alleged that there were only two police men who were present who had to face a very large crowd who were throwing stones at the police officials and had also tried to snatch the rifle of a police constable. It is admitted that the police constable as well as the Sub-inspector fired one shot each but, according to the respondents, there was justification on the part of the police in resorting to firing at both the places. The respondents have also placed on record, entries of the case diaries and the log books in an effort to show that there was riotous mob which was present and the action of the police could, under no circumstances, be regarded as excessive. Apart from justifying the resort to firing, the respondents have also contended that this petition cannot be regarded or treated as a public interest litigation and that disputed questions of fact are involved. 8. The three video films which have been filed, were seen by us as well as by counsel for the parties. For the purpose of ascertaining the facts, therefore, we not only have before us the averments made in the pleadings, and the affidavits in support thereof, but we also have the advantage of viewing the video cassettes. At the outset we would like to observe that none of the parties has alleged that any of the three video cassettes which have been placed on the record, are ‘doctored’. In fact viewing of the three cassettes shows that they corroborate each other with regards to what has been recorded therein. 9. Before dealing with the question as to whether this petition can be regarded as PIL, we may dispose of the contention of the learned counsel for the respondents relating to the alleged availability of alternative remedy. In this connection it was also submitted that one of the persons who had died in the firing at INA Market was Pawan Sahni. His brother had filed a criminal complaint before the Magistrate but the said complaint had been rejected. The submission, therefore, was that as the alternative remedy had already been availed of, where the allegation was with regard to the firing at INA Market, this Court should not interfere under Article 226 of the Constitution. It was also submitted that because the crowd was indulging in rioting, the police itself had lodged FIRs in respect thereto and, therefore, because the Court had issued summons, it should be left to the Court to decide whether the firing was justified or not. It was contended that the investigation of the fact whether any unlawful activity was carried on by the rioters, will be gone into by the Court of competent jurisdiction and, therefore, the petition under Article 226 of the Constitution was not maintainable. 10. We, however, find that the complaint of the brother of Pawan Sahni was not rejected or dismissed on merits. Copy of the order of the Magistrate had been placed before us
  • 54. COMPENSATION which shows that the Magistrate was of the opinion that before seeking to prosecute the police officers, permission under Section 132 Criminal Procedure Code should have been obtained. As the complainant had not obtained the necessary sanction, the Magistrate rejected the complaint. In our opinion, the decision of the Magistrate to this effect cannot oust the jurisdiction of this Court which is called upon to decide inter alia whether the resort to firing by the police was justified or not and whether Devinder Kumar Sharma was or was not properly handled after he had been shot. The filing of the FIRs under Section 173 of the Cr. P. C. against the rioters is also of no consequence. Whereas in those proceedings action is sought to be taken against the rioters, in the present writ petition, it is the acts of the police which are sought to be impugned. The pendency of the cases against the rioters can, therefore, be no bar to the decision on the issues arising in the present petition. 11. With regard to the contention whether to entertain this petition and treat it as a Public Interest Litigation, it was submitted by learned counsel for the respondents that Devinder Kumar Sharma was not a student and he was a part of an unlawful assembly. According to the police, this unlawful assembly was armed with stones, sticks, petrol bombs, country made arms etc., and was indulging in various riotous acts. It was submitted, that the Supreme Court had exercised jurisdiction in public interest litigation only when there had been violation of fundamental rights. In the present case it was submitted, there has been no violation of fundamental rights and furthermore, the petitioners had no locus standi to file the present petition. 12. It is evident, therefore, that in public interest litigation, the normal rules of recording evidence are not adhered to and an effective and speedy course is adopted with a view to ascertain the correct facts. In the present case, we have not thought it necessary to appoint any commissioner of commission for ascertainment of facts. We have the advantage of three video cassettes. Two of these cassettes have been prepared by independent agencies viz., Living Media and the Press Trust of India. The third cassette has infact been placed on record by the police department. All the three cassettes are more or less similar and in modern age and times when audio visual reproduction of events with the help of electronic media is available, we see no reason as to why we should disregard the audio visual evidence, which is available, in preference for a traditional recording of oral evidence in a Court room, of witnesses trying to recreate the scene by testifying in Court. Such witnesses may not tell the whole truth, intentionally or unintentionally, specially in view of the fact that the testimony would be recorded long after the events have taken place. With the 37
  • 55. 38 PRISONERS' RIGHTS VOLUME II passage of time, the memory of the witness may become blurred. On the other hand we have with us the contemporaneous record of the events which had taken place on the 25th September, 1990, at or about the INA Market in the form of video cassettes. It is not suggested by any of the parties that these cassettes have been doctored or edited. They represent true recording of what was seen by the photographers. Each of the cassettes corroborates the other. Under these circumstances, we see no reason as to why facts should not be determined on the basis of what is recorded on the video cassettes. It is possible that each and every event which occurred at the INA Market was not shot by the photographers, nevertheless, for the view that we are taking on demonstratively evidenced facts which are recorded on the video cassettes, the correctness of which is not disputed, it is possible to decide this petition. 13. What do these video cassettes show? It is not necessary to graphically describe each and every event which is recorded on these cassettes. We propose, however, to refer to those portions of the cassettes which are relevant for our purpose, 14. All the three cassettes show the presence of a crowd which has been described as students by the petitioners. Perhaps all the members of the assembly were not students as is evident from the fact that Devinder Kumar Sharma was certainly not a student. The cassettes further show a large number of local residents also joining the assembly of persons. The heterogeneous assembly of course had one common object and that was to protest against the decision of the Government to implement the Mandal Commission report. The video cassettes record a lot of slogan shouting by the said assembly of persons. There is, however, no record of any violent act being performed by any part of the assembly, except the act of throwing stones at the police. The cassettes show that at a number of times, stones were thrown at the police by the gathered assembly. The police force was adequately clad and interestingly enough, cameras have recorded number of instances of the policemen picking up the stones and brick bats which had been thrown at them and their hurling them back at the students. At times it appears as if a new type of sport of throwing stones at each other was going on between the crowd and the polices. What is clear, however, is that the video cassettes do not show any lathis, acid bombs or any other weapon, lethal or otherwise, being used by the crowd against the police. 15. It was contended on behalf of the petitioners that there was no justification for resort to firing. There seems to be some justification in this submission. Viewing of the video cassettes shows that the mob was not so large as to be uncontrollable by the police without resort to firing. We find that the mob, initially had gathered in the
  • 56. COMPENSATION morning. The same was present throughout the day. In presence of the police, no act of arson appears to have been committed by the mob. The mob was being adequately controlled by use of tear gas shells and lathi charge. It is the case of the respondents itself that a large crowd had gathered at Safdarjung Hospital but no untoward incident had taken place there and even tear gas shells were not fired. Merely because a mob is present or does not disperse despite requests to that effect, cannot be a sufficient reason for resorting to firing. No property, moveable or immoveable can be more valuable or precious than the human life. It is no doubt true that, in law, the crowd could be regarded as an unlawful assembly but then there may be peaceful unlawful assemblies and violent unlawful assemblies. There cannot be a universal rule that under no circumstances should the police not resort to firing but we feel that where the crowd is peaceful or is incapable of resorting to large scale arson and violence, which will be a threat to the life and liberty of others, firing should not be resorted to. If the crowd can be contained or prevented from causing large scale damage to life and property by the use of tear gas shells and lathi charge, then there is no reason as to why firing should be ordered. The video cassettes show that the police was in a position to and did contain the crowd with the help of tear gas shells and lathi charge. Suddenly and without any apparent prior warning or notice, the police resorted to firing. There is no evidence of the situation having deteriorated with the presence of the crowd which could justify the use of such force. Had there been police force in large numbers, they would have no doubt been able to even dispurse the crowd which was present there. In this connection it will be useful to note the following passage from Shri. R. Deb’s book ‘Police and Law Enforcement’ Second Edition, page 247 concerning the use of minimum force : 8. Use of Minimum Force : It must, however, be said in this context that when the crowd has already turned into a voilent mob after going through the process of psychological milling, only a determined show of force can check its depredations. Members of such a riotous mob lose their individual capacity of thinking and act only on the suggestions of their ring leaders or other associates. With the loss of discriminating faculty of the individual mind, an appeal to reason is obviously meaningless. In such a situation an effective show or use of permissible force arouses the instinct of fright in the mob and it often disperses as a pack of animals in the face of gripping fear. And even when the use of force becomes inevitable, the police must use only the minimum force that is essential to preserve law and order. Whether they act in exercise of the right of private defence of body or property, or in exercise of their powers to disperse an unlawful assembly or an assembly of five or more persons likely to cause a disturbance of the public peace, the law enjoins on them to use no more force than is absolutely necessary for the protection of life and property, or for the maintenance of peace. 39
  • 57. 40 PRISONERS' RIGHTS VOLUME II Thus taking of life can only be justified by the extreme necessity of dispersing a riotous crowd which is dangerous unless dispersed, so if dispersal can be effected simply by a warning, there is no justification to use any kind of force at all; and if a tear-gas charge or failing it, a lathi charge can cause the dispersal of the crowd, there is no scope of having a recourse to firing unless the mob becomes so violent as to necessitate the opening of immediate fire for the protection of life and property. The Sixth Principle of the Code of Conduct for the British Police, therefore, very wisely lays down : To use physical force only when the exercise of persuasion, advice and warning is found to be insufficient to obtain public co-operation to an extent to restore order; and to use minimum degree of physical force which is necessary on any particular occasion for achieving a police objection. The fourth clause of the Police Code of Conduct for the Indian Police too runs to the same effect. In dealing with crowds and unlawful assemblies it should never be forgotten that the police go to disperse a riotous mob in order to correct a situation in the interest of the public peace and not to punish the wrong-doers. 16. The Inspector Generals of Police Conference of 1961 constituted a Committee of Police Officers which formulated principles of police conduct, which were circulated to all the States in India in 1963. One of the principles mentioned therein is that in securing the observance of law or in maintaining order, the police should use the method of persuasion, advice and warning. Should these fail, and application of force become inevitable, only the absolute minimum required in the circumstances should be used. Even in Punjab Police Rule 14.56 it is provided that : The degree of force used shall be the minimum which the responsible officer, with the exercise of due care and attention decides to be necessary for the effective dispersal of the crowd and the making of such arrests as may be desired. The degree and duration of the use of force shall be limited inasmuch as possible and the least deadly weapon which the circumstances permit shall be used. 17. Further instructions under the said Rule also provide that : The degree of force employed shall be regulated according to the circum-stances of each case. The object of the use of force is to quell a disturbance of the peace or to disperse an assembly which threatens such disturbance and has either refused to disperse or shows a determination not to disperse; no ulterior objects such as punitive or repressive effect shall be taken into consideration. 18. It was contended by learned counsel for the respondents that on the night of 24/25th September, 1990, the crowd of students which had occupied the road crossing intersection at the All India Institute of Medical Sciences had been cleared by the police force without any resistance being encountered by the police. He further stated that in the early hours of 25th September, 1990, one S. S. Chauhan, who had, prior
  • 58. COMPENSATION to that date, tried to immolate himself, had expired. In view of his death, the police expected trouble. S. S. Chauhan had died in the Safdarjung Hospital which is not even 1 Km. away from the INA Market. A lot of police force was, accordingly, deployed at the Safdarjung Hospital. From the documents on record, it is evident that a very large crowd had assembled at Safdarjung Hospital and some of the members of the crowd had even forced their way inside the hospital premises. Nevertheless no untoward incident occurred at the Safdarjung Hospital. The reason for this is obvious viz., that sufficient number of police was deployed at Safdarjung Hospital. 19. It has been admitted by the learned counsel for the respondents that at INA Market area, there was only about 60 police constables and officers who were present. It cannot be denied that the police force at this place was not adequate in number. The size of the crowd at INA Market is not exactly known. The estimates, as per the log book maintained by the police vary from time to time. Whereas at one time it is recorded that a few hundred students were present, but at the peak, the number of students alleged to be there was 6000 to 8000. It is clear that when a fairly large crowd is present and the situation is volatile, then adequate police force should have been deployed. If a strong police force could prevent any untoward incident at Safdarjung Hospital, where not even a single tear gas shell was fired or lathi charge resorted to, we see no reason as to why sufficiently large police force was not deployed at the INA Market. Had such a deployment taken place, perhaps even tear gas shells need not have been fired. It is an old saying that ‘there is safety in numbers’. Perhaps resort to firing by the police was nothing more than a panic reaction on its part by seeing a large crowd of students and miscreants which was throwing stones at the police. But over-reaction or excessive use of force is certainly not expected from a well trained or disciplined force which is the custodian of law and order in the city. Perhaps the authorities would be well advised to see whether adequate and proper training is being imparted to the police personnel in relation to the crowd or mob control. 20. At this juncture it will be pertinent to note that for some reason, which is not very clear, in the evening of 25th September, 1990 large number of policemen who were present at the INA Market, went to Safdarjung Hospital and got themselves medically examined. The police were examined between the time 7.15 p.m. and 11.30 p.m. The Medico-Legal Reports which have been placed on the record, do not show any injury on any of the police personnel who were so examined which was more serious than a simple hurt by a blunt weapon, possibly a stone. There certainly is no injury on any of the policemen which could have been caused by any lethal weapon or by 41
  • 59. 42 PRISONERS' RIGHTS VOLUME II a petrol or bottle bomb. We are reverting to this in some details because, as already noted, the respondents have stated in their affidavit in reply that the crowd at the INA Market was armed with stones, sticks, petrol bombs, country made arms etc. We do not find any evidence of any one of the crowd having used any sticks or petrol bombs or country made arms at the police. 21. During the course of hearing and even along with the affidavit in reply, relevant extracts of the log books maintained by the police stations concerned, were produced before us. In none of the log books is there any entry with regard to the students using any acid bulbs, fire arms or any other lethal weapons, even though there are entries to the effect that the students had been throwing stones and were burning vehicles. A reply to the writ petition dated 11th December, 1990 was filed on behalf of the Commissioner of Police, Delhi. This reply is supported by an affidavit of Dy. Commissioner of Police which has been prepared on the basis of the police records and documents furnished by the officers at the spot and the information alleged to have been conveyed by them to the Commissioner of Police. Along with this reply, a report has also been placed on the record which purports to contain a record of the incidents which happened on various dates between 24th August, 1990 and 27th September, 1990. With regard to the incident of 25th September, 1990, it is mentioned in this report that one S. S. Chauhan, who had tried to self-immolate on 24th September, 1990, had died on 25th September, 1990. Thereafter about 1,000 to 1500 agitated students and residents of Sarojini Nagar, Vinay Nagar and Laxmi Bai Nagar are stated to have gone on a rampage. It is further alleged in this report that the agitators set on fire DTC buses and a jeep and also indulged in heavy stoning, thereby causing damage to railway reservation counter at Sarojini Nagar. The report further states that to quell the rampaged mob and to disperse them, the police opened fire as a result of which a 16 year old boy Aditya Narain Sharma suffered head injuries and was rushed to the Safdarjung Hospital. 22. With regard to the INA Market area, this report mentions the presence of a mob of about 7,000/8,000 students and residents and it is further stated that this mob indulged in heavy brick batting on the police deployed there as well as arson. In order to disperse the crowd, the police resorted to firing. This report nowhere states that the students or the mob had any point of time used any weapons more lethal than stones. Of course it is alleged that vehicles were burnt it is nowhere stated in this report that the mob used country made weapons, acid bulbs. On 25th September, 1990, an FIR was also recorded at the instance of the police, the complainant being
  • 60. COMPENSATION the SHO, Police Station, Kotla Mubarakpur. In this, the incidents alleged to have taken place between 12 noon and 4.30 p.m. are set out. In this report it is mentioned that the crowd of boys was pelting stones and throwing bottles. At one place, in relation to an incident, it is also mentioned in the FIR that the crowd ‘pelted stones and bottles on police force with sarias, lathis in their hands.’ 23. In an effort to prove that the rioters were armed with lethal weapons, the respondents filed a number of photographs along with this reply. One of the photographs (C.30) shows a crowd armed with lathis, spears, rods etc. There was no indication as to who had taken the photographs. The respondents were accordingly required to file affidavits of the photographers giving more details with regard to these 57 photographs which have been filed. Affidavits of S/Shri. S. N. Sikka of Hindustan Times, N. D. Prabhu of PTI, J. C. Jain of Sunday Mail, PCM Tripathi of Indian Express were filed, wherein they identified the photographs which had been taken by their staff photographers. In addition thereto, affidavit of S. I. Anant Lakra was filed in which he stated that he had obtained six of the photographs from two of the Delhi newspapers. Shri. Surender Singh, In charge, Saket Police Station also filed an affidavit to the effect that he had taken 17 photographs. What is important to note is that none of these deponents has stated that anyone of them took the photograph C-30. There is no explanation on the record which would indicate as to from where did the police obtain the photograph showing a mob with lathis, spears etc. The perusal of the photograph itself does not show that it pertained to the area in question. There is no similarity, in the background of the photograph, to the other photographs which have been placed on the record. We are not satisfied that the said photograph was taken either at the INA Market area or at the Sarojini Nagar area. In fact there is nothing to indicate as to when and where that photograph was taken. It appears to us that the said photograph has been filed with a view to support the reply affidavit in which it is alleged that the members of the crowd were carrying lathis, spears and even country made fire arms. A large number of police officers trooped into the Safdarjung Hospital in the evening of 25th September, 1990 and got themselves medically examined. None of the police personnel, so examined, had any injuries on his person which could have been caused by acid bulbs, petrol bombs, iron rods or fire arms. There is no mention of the use of these lethal weapons either in the FIR or in the log books. In none of the video cassettes can these weapons be seen in the hands of the crowd. There is also no evidence of the crowd possessing any country made fire arms. We have no manner of doubt that the averment made in the reply filed on behalf of the police ‘that the police was attacked with Soda Water bottles, acid bulbs, petrol bombs, iron 43
  • 61. 44 PRISONERS' RIGHTS VOLUME II rods, even country made fire arms “katta” were fired upon at the police party’, is vastly exaggerated and incorrect. It is unfortunate that a false averment in this regard has been made in the reply affidavit filed on behalf of the Commissioner of Police. This averment has been made possibly in an effort to try and justify the firing which was resorted to by the police. It must have appeared to the police authorities that it may be difficult to justify resort to firing on a crowd which was armed only with sticks. 24. It is unfortunate that the allegation with regard to use of the fire arms against the police had also been made by Dr. Aditya Arya, Addl. Deputy Commissioner of Police (South) in his affidavit dated 13th March, 1991 filed before us. It has been averred in this affidavit that ‘police was fired upon with country made weapons capable of firing 12 bore cartridge’. As we have already observed, here is no injury caused to the police personnel with any weapon more lethal than a stick. In none of the log books is there any mention of any country made weapons being used against the police. It is further surprising that if any member of the mob was using such weapons, not a single weapon has been snatched by the police. The said averment of Dr. Arya is clearly an attempt to justify the resort to firing by the police. This averment is also an improvement on the report which was submitted by the said Dr. Arya on 7th January, 1991, to the Dy. Commissioner of Police (HQs) in reply to a Rajya Sabha Question No. 2937. In reply to an office memorandum of 4th January, 1991, pertaining to the said Rajya Sabha question regarding anti-reservation agitation, the Addl. DCP in his report, inter alia, mentioned that there were a large number of students who had gathered at Laxmi Bai Nagar (East), West Kidwai Nagar and INA Market. They set two police booths, DTC booth, an Ambassador car, a jeep, a motor cycle and a Post Office on fire in the area. To control the riotous mob, the police fired 168 tear gas shells and resorted to lathi charge several times. It was then stated that ‘when the unlawful assembly did not disperse, the police had to resort to firing. In the firing, the above two persons sustained bullet injuries and subsequently died in the hospital.’ This report does give in detail the property which was damaged by the mob but it nowhere mentions that any member of the mob resorted to any firing on the police. 25. After going through all the three cassettes, and the record of this case, it seems that, as already observed by us, there was an unlawful assembly present at the INA Market. Some miscreants in the said assembly were indulging in stone throwing at the police while some of the others did burn two or three vehicles in and around the area. Nevertheless the crowd was well under control of the police with the help of the police firing tear gas shells and, at times charging at the crowd. Unfortunately none of
  • 62. COMPENSATION the video cameras has recorded any prior warning having being given to the members of the assembly that if they did not disperse, then firing will be resorted to. There is nothing to show that the situation had become so volatile so as to have necessitated the police in resorting to firing. In the afternoon when the stone throwing had been intensified then again, suddenly and without prior warning, firing was resorted to and Devinder Kumar Sharma was shot. 26. There can be no denying of the fact that the policemen were faced with a law and order problem. The wrath of the assembly was against the police; it is the police personnel, who were the targets of the stones thrown by the assembly. While there can be no possible justification for the assembly resorting to stone throwing, we have no hesitation in coming to the conclusion that there was an excessive use of force by the police when it resorted to firing. 27. If there was an excessive use of force, can any individual police officer be blamed for it. On the facts of this case, the answer to this question must be in the negative. We do not find any mala fides on the part of the police in resorting to firing. It is clear that tension was prevailing in the area since the morning of 25th September, 1990. Adequate number of police force had not been deployed for which the blame cannot be fastened with the policemen who were present at the INA Market and the blame must lie elsewhere. The inadequate number of policemen which was present had been exchanging stones with the unlawful assembly and had also been firing tear gas shells and had resorted to lathi charge when ordered to do so. Firing was resorted to either because of misjudgement or by way of a panic reaction but certainly not due to any mala fide intention on the part of the police. With the promulgation of the Delhi Police Act, the powers of the Executive Magistrate have been conferred on the police officers of the rank of Sub-inspector and above. Under the provisions of Section 130, Cr. P. C. firing is resorted to if it is ordered by the Executive Magistrate or if the Executive Magistrate is not present and firing has to be resorted to, then under Section 131, Cr. P. C. he has to be informed about the same. With the promulgation of the Delhi Police Act, the decision making authority and the executing authority has now become one and the same viz., the police officer. We would not like, in this regard, to comment on the advisability of such a situation but the fact remains that it is the officers who were being subjected to stone throwing and who had not been able to disperse the crowd, despite firing of the tear gas shells, who decided that firing should be resorted to. Perhaps the officers felt that the only way to disperse the crowd was to resort to firing. It is a moot question whether dispersal of the crowd was so 45
  • 63. 46 PRISONERS' RIGHTS VOLUME II important that human beings had to be killed in order to do so and also whether the decision to resort to firing should not be taken by an officer e.g. Magistrate, who may himself not be involved in the struggle and can view the situation more objectively. 28. Coming to the question of the manner in which the injured must be treated, we find that an important instruction which has been issued under Punjab Police Rule 14.56 is that when fire arms are used against unlawful assembly, it should be the duty of the Magistrate present to make adequate arrangements for the care of the wounded persons and for their removal to the hospital. The Magistrate is also enjoined to draw up a full report in consultation with the senior police officers present, stating all the circumstances and noting the number of rounds of ammunition issued and expended. 29. In the present case, there were several companies of police present at the INA Market. Some of the police officers were armed with fire arms. The superior officers must have visualised the possible use of the fire arms on the crowd. Having deployed armed policemen at the INA Market, it was the duty of the police authorities to see that adequate arrangements were made to aid and assist the wounded if firing was to be resorted to. No such arrangements were made. All the video cassettes show, and this is also admitted by the Commissioner of Police, that D. K. Sharma was bodily lifted by four policemen after he had been shot and wounded. He was picked up from near the shops at the INA Market by four policemen. They lifted him by holding his arms and legs. He was lifted for a considerable distance. When the policemen got tired, he was placed on the road. After a few minutes he was picked up again and again the police officials walked while holding him like a sack of wheat till he was put into a police van. No attempt was made to take either an ambulance or a police van to the place where he was lying injured. He was lifted in an inhuman manner, carried over a long distance even though he was bleeding profusely, and without regard to human life or dignity was, in a most contemptuous manner, placed in the police van. It is incomprehensible as to why no arrangements had been made for providing adequate medical attention if firing was resorted to. There is no explanation forthcoming as to why the van or other vehicle did not drive up to the place where the wounded D. K. Sharma was lying. Till the time he was placed in the police van and till after he had reached the hospital he was alive. We are not sure to what extent the police’s indifference and callousness in the manner in which they handled him has been a contributory factor to his death. 30. Even the Commissioner of Police is reported to have taken notice of the manner in which the injured D. K. Sharma was lifted. The Delhi Police issued a press note dated 31st October, 1990, after the present writ petition had been filed and notices issued.
  • 64. COMPENSATION The relevant portion of the press release dealing with the handling of D. K. Sharma is as follows : The Commissioner of Police has taken a very serious note of the irresponsible manner in which some police personnel lifted the injured body of Devender Kumar Sharma on September 25, 1990 after the police firing, as depicted in the NEWSTRACK of October, 1990. A vigilance enquiry into the manner was ordered on October 21, 1990. The officers who lifted the injured person did so against all procedural requirements and cannons of human conduct. Though their intentions were may be not suspect as they kept on asking for a vehicle to carry the injured for medical aid, yet the manner of doing so was a total negation of what has been taught to them during their training. In fact, there are clear existing orders that those dead and injured in public disturbances should be carried on stretchers. In March this year, fresh orders were issued to all units concerned to carry stretchers and invariably use them in such situations. We very much regret that our efforts to take on a more human face have suffered a blow due to the incorrect handling of a handful of policemen who might have worked under strain but had no reason to display a conduct unbecoming of their profession and training. All efforts are being made to prevent the recurrence of such insensitiveness while dealing with the citizens. The training inputs are being revised and restructured and the lacunae in training are being explored. Efforts will be made to lay profound stress upon refinement of behaviour, especially under conditions of stress and to ensure, by very intensive training, that whatever the provocation, the police does not over react and indulge in excesses. Restraint, use of minimum force and help to injured persons should be hall-marks of the police action during riots. In fact, following the anti-reservation agitation, the Delhi Police recently started earnestly exploring softer methods of mob control and has even acquired a water cannons and has been conducting field trials in plastic bullets. 31. The said press release is a clear admission of the following things : i) There should be restraint in the police action during riots; ii) Minimum force should be used by the police; iii) The police should help the injured persons; iv) Softer methods of mob control are available; v) The Delhi Police is acquiring water cannons and conducting trials in plastic bullets for the purpose of mob control. 32. Had the police acted by keeping the aforesaid principles in mind on 25th September, 1990, human lives would not have been lost on that date. It is, however, heartening 47
  • 65. 48 PRISONERS' RIGHTS VOLUME II to note that the Commissioner of Police did become aware of the shortcomings in the manner in which the police acted on that date. What is, however, surprising is that the awarensess came about only after the Commissioner had seen the News Track of October, 1990. 33. It has been vehemently contended on behalf of the petitioner that D. K. Sharma died because of excessive use of force by the police. The submission is that compensation should be awarded to his next of kin and, further more, proceedings should be ordered to be taken against the police officers who were responsible for such excessive use of force and/or the manner in which D. K. Sharma was bodily lifted and then carried to the police jeep while he was bleeding profusely. 34. In the reply filed on behalf of the Commissioner of Police, it has been stated that the Commissioner leaves it to the discretion of this Court to pass appropriate orders with regard to the compensation to the injured persons. It is, however, submitted that this Court should take into consideration whether it is appropriate to grant compensation to rioters who committed large scale acts of violence including arson, attempt to assault police officers on duty, damage of public property and even endangering lives of the inhabitants by their acts after having armed themselves with deadly weapons or having joined groups carrying deadly weapons including country made weapons. It was submitted that it would be paying premium to the rioters and the Government would find it difficult to act in such a situation. Furthermore, like minded people would get encouraged by the grant of compensation to the rioters. 35. There is considerable force in the aforesaid contention. If any person is injured by police action and that person was a member of an unlawful assembly, which is indulging in acts of violence etc. and the said assembly is armed with deadly weapons then we have no doubt in our mind that in such cases, compensation for injury suffered by reason of the police action would rarely, if at all be awarded. We would, however, not like to express any final opinion on this matter because of two reasons, firstly we are not satisfied that in the present case, the crowd or a section thereof, was carrying deadly weapons, including country made weapons. Secondly, we feel that compensation should be awarded because of the inhuman manner in which the police personnel treated the injured body of D. K. Sharma. The action of the said police officers has been condemned by the Commissioner of Police himself and we need not add anything more to what has been stated in the aforesaid press release. 36. There is little doubt that at INA Market, an unlawful assembly was present. The crowd was not dispersing and was, on occasions, resorting to stone throwing. At the when D.
  • 66. COMPENSATION K. Sharma was shot, the crowd was in the vicinity of the shops in the INA Market. It is in that direction that the firing was resorted to and D. K. Sharma was injured. The very presence of D. K. Sharma amongst the crowd, on which firing was resorted to, seem to indicate that he was a part of that assembly. He was neither a resident of the area nor had he work in INA Market. He had obviously come there to join and participate with the other members of the crowd. The said assembly was unlawful though not very violent. The members of the assembly must have been aware of the fact that the police had fire arms with them. They could have expected that the police may resort to firing. Even while being aware of this, when individuals continued to remain a part of the unlawful assembly, would the Court be justified in directing compensation to be paid when a member of the unlawful assembly is injured or killed when the police resorts to firing in the discharge of its official duties, even though such use of force may be excessive or un-called for. 37. Firing was not resorted to, in the present case, due to any personal animosity on the part of any police official. There was perhaps an error of judgement in resorting to firing but we have reason to hold that the action of the police in resorting to firing was a deliberate and vindictive act on its part. D. K. Sharma took a risk in continuing to be a member of an unlawful assembly because there was always a possibility that the police, which was armed, could resort to firing. The crowd, of which D. K. Sharma must have been a part, was throwing stones and the police, in return, was firing tear gas shells and resorting to lathi charge, if at that time excessive force is used by the police and firing is resorted to, we do not feel that there would be any justification in awarding compensation to a member of an unlawful assembly who is hit by the bullets. One wrong-doer cannot ordinarily, benefit from the other party’s wrongful act, unless it can be shown that the use of force was so grossly disproportionable to the injured party’s wrongful act so as to lead one to believe that the use of excessive force was mala fide or vindictive. 38. While compensation ought not to be awarded because of the police resorting to firing at INA Market, which caused D. K. Sharma’s death, in our opinion compensation should, however, be awarded to the next of kin of D. K. Sharma because of the manner in which the police personnel handled him after he was injured. It was the responsibility of the police to take care of the wounded. There was no justification in the manner in which D. K. Sharma was treated by the police personnel after he had been lifted in an injured state. The manner in which he was carried was most shocking and this has even admitted by the Commissioner of Police. 49
  • 67. 50 PRISONERS' RIGHTS VOLUME II 39. Before dealing with the quantum of compensation which can and should be awarded to the legal heirs of D. K. Sharma, it would be appropriate to deal, at this stage, with the death of one Aditya Narain. Aditya Narain was, admittedly, a student of Class-X in a school and was only 15 years of age. He was the only son of his parents but he had two younger sisters. The family was a resident of Sarojini Nagar. On 25th September, 1990, near about noon time, he was shot while he was standing behind a water tanker in the colony itself with a school friend of his. In the affidavit of Shri. R. N. Sharma, the father of Aditya Narain, it is inter alia, stated that his son and a friend of his were standing behind a water tanker in the Sarojini Nagar area near Nav Yug School. This water tanker had been placed across a part of the road. It is further averred that certain anti-social elements had set fire to a Government 3-wheeler scooter in the area and some policemen armed with rifles, pistols and lathis, fired a few shots whereby residents who had assembled were dispersed. After the residents had re-assembled, the deponent heard a few shots being fired and some of the boys started throwing stones in the direction of the policemen and started shouting slogans. It is further stated in this affidavit that two policemen hid behind a tree and after sometime one of them came out from behind the shelter and he pulled out his revolver and aimed directly in the direction of the boys who had assembled at a traffic crossing. It is as a result of those that Aditya Narain was shot in the temple. It is further alleged that the shooting took place from a distance of about 50 feet. 40. In the reply to the said affidavit of Shri. R. N. Sharma, the respondents have set out their version of what had happened in the Sarojini Nagar area on that fateful day. The respondents have set out sequence of events in their reply, which is as follows : Information was then received at 9.55 a.m. regarding the damage of vehicles and setting them on fire behind Babu Market, Sarojini Nagar. At 10.05 a.m. an information was received regarding further damage to the vehicles on the main road ‘I’ Block. At 10. 15 a.m. a CPWD jeep was set on fire on the main road at ‘I’ Block, Sarojini Nagar. At 10.35 a.m. an information was received that the boys and girls of DG/G-1 Block are pelting stones. At 10.37 a.m. an information was received that near Deer Park Harsukhman Picket an attempt is being made to set fire to the Police Booth. At 11.00 a.m. an information was received that a tanker of charcoal and one water tanker had been over-turned near Safdarjung Hospital. At 11.04 a.m. an information was received that the buses at ‘I’ Avenue, Sarojini Nagar have been set on fire.
  • 68. COMPENSATION At 11.10 a.m. an information was received that the boys were pelting stones at ‘B’ Block, Safdarjung Enclave Main Road. Similar information was received with regard to the damage to the property by stones and by acts of arson continuously. The information so received of widespread violence covering vast areas within the jurisdiction of Police Station Vinay Nagar and around, showed that a grave situation had arisen suddenly on account of the death of Mr. Chauhan. 41. It is further the case of the respondents, in the said reply that one Inspector D. P. Singh was on emergency duty and he left the police station to attend an emergency call at 9.30 a.m. Shri. D. P. Singh is stated to have reached Sarojini Nagar Depot at 9.40 a.m. where he noticed that a private bus had been damaged with stones and tyres deflated. When he was returning to the police station he received another information that some students were causing damage to the property at Sarojini Nagar ‘I’ Block. When he reached there, he noticed that students were shouting anti-Mandal slogans and he also found that a police assistance booth had been set on fire. The crowd was stated to have moved towards a market where a jeep was alleged to have been set on fire and when the Sub-inspector tried to apprehend the culprits, the crowd resorted to pelting of stones. Thereupon the Sub-inspector retreated and crowd from two directions joined at a place known as ‘I’ Avenue 3rd Cross Road where the water tanker had been over-turned. It is further alleged that this crowd started throwing stones at the police party and when the Sub-Inspector tried to advise them not to indulge in stone throwing, they did not pay any heed. It is also averred that there was a crowd of about 1,000 people and the SI D. P. Singh directed the Constable to shoot in the air. The mob retreated and then regrouped and when the crowd is stated to have come closer to them, the Sub-inspector took shelter behind a tree and fired shots. In the said reply it is alleged that the shots were fired only in the air. 42. Reference is also made to an inquiry report of an Addl. DCP which was submitted after a report had been lodged by Aditya Narain’s father. This report gives interesting reasons. The Addl. DCP recorded the evidence of a number for witnesses and came to the conclusion that the bullet which entered the skull of Aditya Narain, was fired by SI D. P. Singh. In the FIR dated 25th September, 1990 which had been lodged at Vinay Nagar Police Station at the behest of the police. It had not been mentioned that the shot had been fired by the said Sub-Inspector. The Addl. DCP interrogated SI D. P. Singh who admitted that he himself had opened firing from his service revolver and it was due to a disturbed state of mind that it had been wrongly written in the FIR that SI D. P. Singh had ordered the Constable to fire. It is further stated that SI D. P. Singh was on a emergency duty and he left the police station without any vehicle, tear gas 51
  • 69. 52 PRISONERS' RIGHTS VOLUME II or wireless. The material part of the report relating to the injury which was sustained by Aditya Narain is as follows: In fact all the public witnesses have claimed that SI D. P. Singh made advances towards the crowd from behind the tree. Again it seems that SI D. P. Singh kept on imploring the crowd not to take law into their hands but seeing no other recourse to disperse the unlawful assembly. SI D. P. Singh to the best of his intentions did open fire from this service revolver presumably in the air (as stated by Mahender Singh.....). However, it is a sheer tragedy and most unfortunate that this bullet which was fired presumably in the air and in which no mala fide happened to trajectory and had hit Aditya Narain who was very much present at the inter-face of police and violent mob. Since the police party was heavily out-numbered by the angry crowd and there was no tear gas etc. with SI D. P. Singh, therefore, opening fire by the service weapon was only alternative left with police. After the bullet in its dying moments had hit Aditya, and crowd started dispersing. Due to the tanker which was occulting sight between SI D. P. Singh’s position and the spot, where Aditya Narain had fallen down on the ground, D. P. Singh could be believed that he did not see anybody getting injured from his bullet shot. 43. It is also concluded by the Addl. DCP that the SI had opened fire in the air but ‘as illluck would have been, the bullet in its dying moments happened to graze through skull of Aditya Narain who was a part of unlawful assembly near the overturned water tanker at Navyug School crossing.’ 44. It is not necessary for us to try and find out the discrepancy between the affidavit of Aditya Narain’s father on the one hand and the reply of the police and the report of the Addl. DCP on the other. What is apparent is that the Police Station at Vinay Nagar was receiving information about acts of arson since 9.30 a.m. It is also the case of the police that a large crowd had gathered. Only two police personnel viz., SI D. P. Singh and Constable Dharam Vir had been despatched to try and control the situation. Neither of them had any tear gas or lathis. SI D. P. Singh was armed with service revolver and the Constable had a .303 revolver. Neither of the two received any injury. According to the police, they saved themselves because they were wearing protective clothing and the stones did not hurt them. 45. What is clear from the averments made on behalf of the respondents in that apart from setting fire to one or two objects, the crowd is only alleged to have thrown stones. Aditya Narain was standing behind a water tanker along with a friend of his. Adequate police personnel had not been deployed. No attempt was made to disperse the crowd by firing tear gas shells or by lathi charge. The only measure which was resorted to by the two police personnel, who were present, was to fire. In our opinion there is absolutely no justification for resorting to firing as being the only means or
  • 70. COMPENSATION method of controlling the mob. We are also not satisfied that Aditya Narain was a member of an unlawful assembly. There is merely a surmise on the part of the Addl. DCP, who had, in our opinion, tried to cover up the actions of the policemen. No comment has been made by the Addl. DCP to the fact that an FIR was lodged by D. P. Singh at 1.30 p.m. after Aditya Narain has been shot taken to the police. There is no mention in this FIR that SI D. P. Singh, had fired the shot. There is also no mention that Aditya Narain had suffered an injury. By stating in the FIR that Constable Dharam Vir had fired under instructions of D. P. Singh, it is clear that D. P. Singh did not want to own the responsibility of firing the shot which had injured Aditya Narain. The finding of the Addl. DCP about the bullet taking awry trajectory and in its dying moments crossing through the skull, is difficult to accept as a plausible explanation. The bullet was fired from a revolver and it got embedded in the skull of Aditya Narain. It was, therefore, fired from not too distant a position. According to Aditya Narain’s father, the bullet was fired from a distance of about 50 feet and looking at the nature of the injury this is more probable. It could not be that a bullet was fired in the air and it took an awry trajectory and in its dying moments got embedded in Aditya Narain’s skull. The bullet, if it was falling down on the ground, as the Addl. DCP expects one to believe, could not have had sufficient force or momentum to pierce the skull of Aditya Narain and thereafter causing his death. 46. None of the witnesses of the colony has stated or mentioned that Aditya Narain took part in any stone throwing. There is no reason to believe that he was a member of an unlawful assembly. In fact the learned counsel for the respondents very frankly conceded that it was unfortunate that Aditya Narain had died and he was, in all probabilities, only a spectator and not a participant. Unlike D. K. Sharma, Aditya Narain was a resident of that colony and, out of curiosity, had come out of his house only to meet an unfortunate end. 47. The police was negligent in not sending sufficient force. It was the duty of the police to see that only minimum force is required to control the crowd. Firing is to be resorted to only if there is no other option. In the neighbourhood of Sarojini Nagar, since the morning, the police had been using tear gas shells. There is no explanation forthcoming as to why this was not done at Sarojini Nagar. The action of resorting to firing on the crowd which resulted in the death of Aditya Narain was clearly unwarranted. In asmuch as Aditya was not a member of the unlawful assembly as conceded to by the respondents’ counsel during the course of arguments, we feel that adequate compensation should be awarded to the next of kin of Aditya Narain. 53
  • 71. 54 PRISONERS' RIGHTS VOLUME II 48. From the aforesaid it is clear that the Supreme Court, dealing with the public interest litigation, thought it proper that the allegations against the police, in that case, should be examined by the High Court exercising jurisdiction under Article 226 of the Constitution. Another similarity with the present case is that the police had, relating to the said incident of firing, started cases against several persons, who took part in the said meeting. Notwithstanding the pendency of these cases, the Supreme Court directed that the matter be considered by the High Court under Art. 226 of the Constitution. In the present case also merely because FIRs have been lodged against some of the members of the alleged unlawful assembly, cannot be a ground for the Court not to exercise its jurisdiction under Article 226 of the Constitution. 49. People Union for Democratic Rights Vs. Police Commissioner (1989) 4 SCC 730 was an other case where, in exercise of its jurisdiction under Article 32 of the Constitution, compensation to victims of police atrocities was awarded. In that case the police had collected some people and taken them to the police station for doing work. When the workers demanded wages, they were beaten up by the police and one person succumbed to his injuries. Though the case was being examined for criminal prosecution of the police officers concerned, nevertheless the family of the deceased was directed to be paid Rs. 50,000/- as compensation. The other labourers were also directed to be paid different sums of money. 50. An important decision on the question with regard to award of compensation in such cases is that of Saheli Vs. Commr. of Police (1990) 1 SCC 422 : (AIR 1990 SC 513). The question of grant of compensation, in this case, arose because of the action of police officers who, at the behest of the landlord, beat a tenant Kamlesh Kumari and her son Naresh Kumar. Naresh subsequently succumbed to his injuries. Thereupon a news item about the incident appeared in the Hindi newspaper and a petition under Article 32 of the Constitution was filed wherein besides the landlord, two police officers were also impleaded as respondents. The Supreme Court held that the son of the tenant had been (p. 515 of AIR) : Done to death on account of the beating and assault by the agency of the sovereign power acting in violation and excess of the powers vested in such agency. The mother of the child Kamlesh Kumari, in our considered opinion, is so entitled to get compensation for the death of her son from respondent 2, Delhi Administration. 51. It was further observed that (p. 516 of AIR) : 11. An action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death. In case of assault, battery and false
  • 72. COMPENSATION imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity, loss of liberty and death. As we have held hereinbefore that the son of Kamlesh Kumari aged 9 years died due to beating and assault by the SHO, Lal Singh and as such she is entitled to get the damages for the death of her son. It is well settled now that the State is responsible for the tortious acts of its employees. Respondent 2, Delhi Administration is liable for payment of compensation to Smt. Kamlesh Kumari for the death of her son due to beating by the SHO of Anand Parbat Police Station, Shri. Lal Singh. 52. The Court ultimately awarded a sum of Rs. 75,000/- by way of compensation and further observed that the Delhi Administration may take appropriate steps for the recovery of the amount paid as compensation from the officers who were found responsible. 53. From Saheli’s case (AIR 1990 SC 513) (supra) it is clear that even when public interest litigation is commenced challenging the police action, like in the present case, and where there is loss of life and the action of the police is wholly unjustified and in excess of the power, then adequate and reasonable compensation can be awarded. 54. From the aforesaid discussion we come to the conclusion that with regard to the inhuman manner in which Devinder Kumar Sharma was handled after he had been wounded, compensation should be awarded. Compensation is also payable on account of the death of Aditya Narain because of the police firing. Unlike Devinder Kumar Sharma, Aditya Narain was not a member of the unlawful assembly. He was only 15 years old and was a school student having three younger sisters. 55. Keeping in view the quantum of damages and compensation which has been awarded by the Supreme Court, in the aforesaid cases, we issue a writ of mandamus directing the Delhi Administration, which has the administrative control over the Delhi Police, to pay a sum of Rs. 50,000/- to the next of kin of Devinder Kumar Sharma and a sum of Rs. 2,50,000/- to the next of kin of Aditya Narain. 56. Order accordingly. 55
  • 73. Supreme Court of India 1993 (2) SCC 746 Smt. Nilabati Behera alias Lalita Behera vs State of Orissa and Others J.S. VERMA, N. VENKATACHALIAH, DR. A.S. ANAND, JJ. 1. A letter dated 14.9.1988 sent to this Court by Smt. Nilabati Behera alias Lalit Behera, was treated as a writ petition under Article 32 of the Constitution for determining the claim of compensation made therein consequent upon the death of petitioner’s son Suman Behera, aged about 22 years, in police custody. The said Suman Behera was taken from his home in police custody at about 8 a.m. on 1.12.1987 by respondent No. 6, Sarat Chandra Barik, Assistant Sub-Inspector of Police of Jaraikela Police Outpost under Police Station Bisra, Distt. Sundergarh in Orissa, in connection with the investigation of an offence of theft and detained at the police outpost. At about 2 p.m. the next day on 2.12.1987, the petitioner came to know that the dead body of her son Suman Behera was found on the railway track near a bridge at some distance from the Jaraikela railway station. There were multiple injuries on the body of Suman Behera when it was found and obviously his death was unnatural, caused by those injuries. The allegation made is that it is a case of custodial death since Suman Behera died as a result of the multiple injuries inflicted to him while he was in police custody; and thereafter his dead body was thrown on the railway track. The prayer made in the petition is for award of compensation to the petitioner, the mother of Suman Behera, for contravention of the fundamental right to life guaranteed under Article 21 of the Constitution. 2. The State of Orissa and its police officers, including Sarat Chandra Barik, Assistant SubInspector of Police and Constable No. 127, Chhabil Kujur of Police Outpost Jeraikela, Police Station Bisra, are impleaded as respondents in this petition. The defence of the respondents is that Suman Behera managed to escape from police custody at about 3 a.m. on the night between the 1st and 2nd December, 1987 from the Police Outpost Jeraikela, where he was detained and guarded by Police Constable Chhabil Kujur; he could not be apprehended thereafter inspite of a search; and the dead body of Suman Behera was found on the railway track the next day with multiple injuries which indicated that he was run over by a passing train after he had escaped from
  • 74. COMPENSATION police custody. In short, on this basis the allegation of custodial death was denied and consequently the respondents responsibility for the unnatural death of Suman Behera. 3. In view of the controversy relating to the cause of death of Suman Behera, a direction was given by this Court on 4.3.1991 to the District Judge, Sundergarh in Orissa, to hold an inquiry into the matter and submit a report. The parties were directed to appear before the District Judge and lead the evidence on which they rely. Accordingly, evidence was led by the parties and the District Judge has submitted the Inquiry Report dated 4.9.1991 containing his finding based on that evidence that Suman Behera had died on account of multiple injuries inflicted to him while he was in police custody at the Police Outpost Jeraikela. The correctness of this finding and report of the District Judge, being disputed by the respondents, the matter was examined afresh by us in the light of the objections raised to the Inquiry Report. 4. The admitted facts are, that Suman Behera was taken in police custody on 1.12.1987 at 8 a.m. and he was found dead the next day on the railway track near the Police Outpost Jeraikela, without being released from custody, and his death was unnatural, caused by multiple injuries sustained by him. The burden is, therefore, clearly on the respondents to explain how Suman Behera sustained those injuries which caused his death. Unless a plausible explanation is given by the respondents which is consistent with their innocence, the obvious inference is that the fatal injuries were inflicted to Suman Behera in police custody resulting in his death, for which the respondents are responsible and liable. 5. To avoid this obvious and logical inference of custodial death, the learned Additional Solicitor General relied on the respondents defence that Suman Behera had managed to escape from police custody at about 3 a.m. on the night between the 1st and 2nd December, 1987 and it was likely that he was run over by a passing train when he sustained the fatal injuries. The evidence adduced by the respondents is relied on by the learned Additional Solicitor General to support this defence and to contend that the responsibility of the respondents for the safety of Suman Behera came to an end the moment Suman Behera escaped from police custody. The learned Additional Solicitor General, however, rightly does not dispute the liability of the State for payment of compensation in this proceeding for violation of the fundamental right to life under Article 21, in case it is found to be a custodial death. The argument is that the factual foundation for such a liability of the State is absent. Shri M.S. Ganesh, who appeared as amicus curiae for the petitioner, however, contended that the evidence 57
  • 75. 58 PRISONERS' RIGHTS VOLUME II adduced during the inquiry does not support the defence of respondents and there is no reason to reject the finding of the learned District Judge that Suman Behera died in police custody as a result of injuries inflicted to him. 6. The first question is : Whether it is a case of custodial death as alleged by the petitioner? The admitted facts are : Suman Behera was taken in police custody about 8 a.m. on 1.12.1987 by Sarat Chandra Barik, Asstt. Sub-Inspector of Police, during investigation of an offence of theft in the village and was detained at Police Outpost Jeraikela; Suman Behera and Mahi Sethi, another accused, were handcuffed, tied together and kept in custody at the police station; Suman Behera’s mother, the petitioner, and grandmother went to the Police Outpost at about 8 p.m. with food for Suman Behera which he ate and thereafter these women came away while Suman Behera continued to remain in Police custody; Police Constable Chhabil Kujur and some other persons were present at the Police Outpost that night; and the dead body of Suman Behera with a handcuff and multiple injuries was found lying on the railway track at kilometre No. 385/29 between Jeraikela and Bhalulata railway stations on the morning of 2.12.1987. It is significant that there is no cogent independent evidence of any search made by the police to apprehend Suman Behera, if the defence of his escape from police custody be true. On the contrary, after discovery of the dead body on the railway track in the morning by some railwaymen, it was much later in the day that the police reached the spot to take charge of the dead body. This conduct of the concerned police officers is also a significant circumstance to assess credibility of the defence version. 7. Before discussing the other evidence adduced by the parties during the inquiry, reference may be made to the injuries found on the dead body of Suman Behera during post-mortem. These injuries were the following : Exernal injuries : (i) Laceration over with margin of damaged face. (ii) Laceration of size – 3” x 2” over the left temporal region upon bone. (iii) Laceration 2” above mastoid process on the rightside of size 1 1/2” x 1/4” bone exposed. (iv) Laceration on the forehead left side of size 1 1/2” x 1/4” upto bone in the midline on the forehead 1/2” x 1/4” bone deep on the left lateral to it 1” x 1/4” bone exposed. (v) Laceration 1” x 1/2” on the anterior aspect of middle of left arm, fractured bone protruding.
  • 76. COMPENSATION (vi) Laceration 1” x 1/2” x 1/2” on the medical aspect of left thigh 4” above the knee joint. (vii) Laceration 1/2” x 1/2” x 1/2” over left knee joint. (viii) Laceration 1” x 1/2” x 1/2” on the medical aspect of right knee joint. (ix) Laceration 1” x 1/2” x 1/2” on the posterior aspect of left leg, 4” below knee joint. (x) Laceration 1” x 1/4” x 1/2” on the plantar aspect of 3rd and 4th toe of right side. (xi) Laceration of 1” x 1/4” x 1/2” on the dorsum of left foot. (xii) Injury on the neck : (i) Bruises of size 3” x 1” obliquely alongwith sternocleidomastoid muscle 1” above the clavical left side (2) lateral to this 2” x 1” bruise (3) and 1” x 1” above the clavicle left side (4) posterial aspect of the neck 1” x 1” obliquely placed right to mid line. Right Shoulder: (i) Bruise 2” x 2”, 1” above the right scapula. (ii) Bruise 1” x 1” on the tip of right shoulder. (iii) Bruise on the dorsum of right palm 2” x 1”. (iv) Bruise extenses surface of forearm left side 4” x 1”. (v) Bruise on right elbow 4” x 1”. (vi) Bruise on the dorsum of left palm 2” x 1” (vii) Bruise over left patella 2” x 1”. (viii) Bruise 1” above left patella 1” x 1”. (ix) Bruise on the right iliac spine 1” x 1/2” (x) Bruise over left scapula 4” x 1”. (xi) Bruise 1” below right scapula 5” x 1”. (xii) Bruise 3” medial to inferior angle of right scapula 2” x 1”. (xiii) Bruise 2” below left scapula of size 4” x 2”. (xiv) Bruise 2” x 6” below 12th rib left side. (xv) Bruise 4” x 2” on the left lumber region. (xvi) Bruise on the buttock of left side 3” x 2”. (xviii) On dissection found : (a) Fracture of skull on right side parietal and occipital bone 6” length. (b) Fracture of frontal bone below laceration 2” depressed fracture. (c) Fracture of left temporal bone 2” in length below exernal injury No. 2 i.e. laceration 2” above left mastoid process. 59
  • 77. 60 PRISONERS' RIGHTS VOLUME II (d) Membrane ruptured below depressed fracture, brain matter protruding through the membrane. (e) Intracraneal haemor-rhage present. (f) Brain lacerated below external injury No. 3, 1” x 1/2” x 1/2”. (g) Bone chips present on temporal surface of both sides. (h) Fracture of left humorous 3” above elbow. (i) Fracture of left femur 3” above knee joint. (j) Fracture of mandible at the angle mandible both sides. (k) Fracture of maxillary. The face was completely damaged, eye ball present, nose, lips, cheeks absent. Maxila and a portion of mandible absent. No injury was present on the front side of body trunk. There is rupture and laceration of brain. 8. The doctor deposed that all the injuries were caused by hard and blunt object; the injuries on the face and left temporal region were post-mortem while the rest were ante-mortem. The doctor excluded the possibility of the injuries resulting from dragging of the body by a running train and stated that all the ante-mortem injuries could be caused by lathi blows. It was further stated by the doctor that while all the injuries could not be caused in a train accident, it was possible to cause all the injuries by lathi blows. Thus, the medical evidence comprising the testimony of the doctor who conducted the post-mortem, excludes the possibility of all the injuries to Suman Behera being caused in a train accident while indicating that all of them could result from the merciless beating given to him. The learned Additional Solicitor General placed strong reliance on the written opinion of Dr. K. K. Mishra, Professor & Head of the Department of Forensic Medicine, Medical College, Cuttack, given on 15.2.1988 on a reference made to him wherein he stated on the basis of the documents that the injuries found on the dead body of Suman Behera could have been caused by rolling on the railway track in-between the rail and by coming into forceful contact with projecting part of the moving train/engine. While adding that it did not appear to be a case of suicide, he indicated that there was more likelihood of accidental fall on the railway track followed by the running engine/train. In our view, the opinion of Dr. K. K. Mishra, not examined as a witness, is not of much assistance and does not reduce the weight of the testimony of the doctor who conducted the post-mortem and deposed as a witness during the inquiry. The opinion of Dr. K. K. Mishra is cryptic, based on conjectures for which there is no basis, and says nothing about the injuries being both
  • 78. COMPENSATION ante-mortem and post-mortem. We have no hesitation in reaching this conclusion and preferring the testimony of the doctor who conducted the post-mortem. 9. We may also refer to the report dated 19.12.1988 containing the findings in a joint inquiry conducted by the Executive Magistrate and the Circle Inspector of Police. This report is stated to have been made under Section 176 Cr. P. C. and was strongly relied on by the learned Additional Solicitor General as a statutory report relating to the cause of death. In the first place, an inquiry under Section 176 Cr. P. C. is contemplated independently by a Magistrate and not jointly with a police officers itself is a matter of inquiry. The joint finding recorded is that Suman Behera escaped from police custody at about 3 a.m. on 2.12.1987 and died in a train accident as a result of injuries sustained therein. There was handcuff on the hands of the deceased when his body was found on the railway track with rope around it. It is significant that the report dated 11.3.1988 of the Regional Forensic Science Laboratory (Annexure ‘R- 8’, at p. 108 of the paperbook) mentions that the two cut ends of the two pieces of rope which were sent for examination do not match with each other in respect of physical appearance. This finding about the rope negatives the respondents’ suggestion that Suman Behera managed to escape from police custody by chewing off the rope with which he was tied. It is not necessary for us to refer to the other evidence including the oral evidence adduced during the inquiry, from which the learned District Judge reached the conclusion that it is a case of custodial death and Suman Behera died as a result of the injuries inflicted to him voluntarily while he was in police custody at the Police Outpost Jeraikela. We have reached the same conclusion on a reappraisal of the evidence adduced at the inquiry taking into account the circumstances, which also support that conclusion. This was done in view of the vehemence with which the learned Additional Solicitor General urged that it is not a case of custodial death but of death of Suman Behera caused by injuries sustained by him in a train accident, after he had managed to escape from Police Outpost. On this conclusion, the question now is of the liability of the respondents for compensation to Suman Behera’s mother, the petitioner, for Suman Behera’s custodial death. 10. In view of the decisions of this Court in Rudul Sah Vs. State of Bihar and Another, (1983) 3 SCR 508, Sebastian M. Hongray Vs. Union of India and Others, (1984) 1 SCR 904 and (1984) 3 SCR 544, Bhim Singh Vs. State of J & K 1984 (Supp) SCC 504 and (1985) 4 SCC 677, Saheli, A Women’s Resources Centre and Others Vs. Commissioner of Police, Delhi Police Headquarters and Others, (1990) 1 SCC 422 and State of Maharashtra and Others Vs. Ravikant S. Patil, (1991) 2 SCC 373, the liability of the State of Orissa 61
  • 79. 62 PRISONERS' RIGHTS VOLUME II in the present case to pay the compensation cannot be doubted and was rightly not disputed by the learned Additional Solicitor General. It would, however, be appropriate to spell out clearly the principle on which the liability of the State arises in such cases for payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in an action on tort. It may be mentioned straightaway that award of compensation is a proceeding under Article 32 by this Court or by the High Court under 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 in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings. We shall now refer to the earlier decisions of this Court as well as some other decisions before further discussion of this principle. 11. In Rudul Sah (supra), it was held that in a petition under Article 32 of the Constitution, this Court can grant compensation for deprivation of a fundamental right. That was a case of violation of the petitioner’s right to personal liberty under Article 21 of the Constitution. Chandrachud, C. J., dealing with this aspect, stated as under : It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of Courts, Civil and Criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a Court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right. The instant case is illustrative of such cases..... ..... The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil Court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders to release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights
  • 80. COMPENSATION cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner’s rights. It may have recourse against those officers.” (pp. 513-14) (emphasis supplied). 12. It does appear from the above extract that even though it was held that compensation could be awarded under Article 32 for contravention of a fundamental right, yet it was also stated that ‘the petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial’ and ‘Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes’. This observation may tend to raise a doubt that the remedy under Article 32 could be denied ‘if the claim to compensation was factually controversial’ and, therefore, optional, not being a distinct remedy available to the petitioner in addition to the ordinary processes. The later decisions of this Court proceed on the assumption that monetary compensation can be awarded for violation of constitutional rights under Article 32 or Article 226 of the Constitution, but this aspect has not been adverted to. It is, therefore, necessary to clear this doubt and to indicate the precise nature of this remedy which is distinct and in addition to the available ordinary processes, in case of violation of the fundamental rights. 13. Reference may also be made to the other decisions of this Court after Rudul Sah. In Sebastian M. Hongray Vs. Union of India and Others (1), (1984) 1 SCR 904, it was indicated that in a petition for writ of habeas corpus, the burden was obviously on the respondents to make good the positive stand of the respondents in response to the notice issued by the Court by offering proof of the stand taken, when it is shown that the person detained was last seen alive under the surveillance, control, and command of the detaining authority. In Sebastian M. Hongray Vs. Union of India & Others (II), (1984) 3 SCR 544, in such a writ petition, exemplary costs were awarded on failure of the detaining authority to produce the missing person, on the conclusion that they were not alive and had met and unnatural death. The award was made in Sebastian M. Hongray-II apparently following Rudul Sah, but without indicating anything more. In Bhim Singh Vs. State of J & K and Others, (1985) 4 SCC 677, illegal detention in police custody of the petitioner Bhim Singh was held to constitute violation of his rights under Articles 21 and 22(2) and this Court exercising its power to award compensation 63
  • 81. 64 PRISONERS' RIGHTS VOLUME II under Article 32 directed the State to pay monetary compensation to the petitioner for violation of his constitutional right by way of exemplary costs or otherwise, taking this power to be settled by the decisions in Rudul Sah and Sebastian M. Hongray. In Saheli, (1990) 1 SCC 422, the State was held liable to pay compensation payable to the mother of the deceased who died as a result of beating and assault by the police. However, the principle indicated therein was that the State is responsible for the tortious acts of its employees. In State of Maharashtra and Others Vs. Ravikant S. Patil, (1991) 2 SCC 373, the award of compensation by the High Court for violation of the fundamental right under Article 21 of an undertrial prisoner, who was handcuffed taken through the streets in a procession by the police during investigation, was upheld. However, in none of these cases, except Radul Sah, anything more was said. In Saheli, reference was made to the State’s liability for tortious acts of its servants without any reference being made to the decision of this Court in Kasturilal Ralia Ram Jain Vs. The State of Uttar Pradesh, (1965) 1 SCR 375, wherein sovereign immunity was upheld in the case of vicarious liability of the State for the tort of its employees. The decision in Saheli is, therefore, more in accord with the principle indicated in Rudul Sah. 14. In this context, it is sufficient to say that the decision of this court in Kasturilal upholding the State’s plea of sovereign immunity for tortious acts of its servants is confined to the sphere of liability in tort, which is distinct from the State’s liability for contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the constitutional scheme, and is no defence to the constitutional remedy under Articles 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights, when the only practicable mode of enforcement of the fundamental rights can be the award of compensation. The decisions of this Court in Rudul Sah and others in that line relate to award of compensation for contravention of fundamental rights, in the constitutional remedy under Articles 32 and 226 of the Constitution. On the other hand, Kasturilal related to value of goods seized and not returned to the owner due to the fault of Government servants, the claim being of damages for the tort of conversion under the ordinary process, and not a claim for compensation for violation of fundamental rights. Kasturilal is, therefore, in-applicable in this context and distinguishable. 15. The decision of Privy Council in Maharaj Vs. Attorney-General of Trinidad and Tobago (No. 2), (1978) 3 All ER 670, is useful in this context. That case related to Section 6 of the Constitution of Trinidad and Tobago 1962, in the chapter pertaining to human rights and fundamental freedoms, wherein Section 6 provided for an application to
  • 82. COMPENSATION the High Court for redress. The question was, whether the provision permitted an order for monetary compensation. The contention of the Attorney-General therein, that an order for payment of compensation did not amount to the enforcement of the rights that had been contravened, was expressly rejected. It was held, that an order for payment of compensation, when a right protected had been contravened, is clearly a form of ‘redress’ which a person is entitled to claim under Section 6, and may well be the ‘only practicable form of redress’. Lord Diplock who delivered the majority opinion, at page 679, stated : It was argued on behalf of the Attorney-General that section 6(2) does not permit of an order for monetary compensation despite the fact that this kind of redress was ordered in Jaundoo Vs. Attorney-General of Guyana [1971] SC 972. Reliance was placed on the reference in the sub-section to ‘enforcing, or securing the enforcement of, any of the provisions of the said foregoing Sections’ as the purpose for which orders etc could be made. An order for payment of compensation, it was submitted, did not amount to the enforcement of the rights that had been contravened, In their Lordships’ view an order for payment of compensation when a right protected under Section 1 ‘has been’ contravened is clearly a form of ‘redress’ which a person is entitled to claim under Section 6(1) and may well be the only practicable form of redress, as by now it is in the instant case. The jurisdiction to make such an order is conferred on the High Court by para (a) of Section 6(2), viz jurisdiction to hear and determine any application made by any person in pursuance of sub-section (1) of this Section’. The very wide powers to make orders, issue writs and give directions are ancillary to this. 16. Lord Diplock further stated at page 680, 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..... (emphasis supplied). 17. Lord Hailsham while dissenting from the majority regarding the liability for compensation in that case, concurred with the majority opinion of this principle and stated at page 687, thus : ….. I am simply saying that, on the view I take, the expression ‘redress’ in sub-section (1) of Section 6 and the expression ‘enforcement’ in sub-section (2), although capable of embracing damages where damages are available as part of the legal consequences of contravention, do not confer and are not in the context capable of being construed so as to confer a right of damages where they have not hitherto been available, in this case against the state for the judicial errors of a judge..... 65
  • 83. 66 PRISONERS' RIGHTS VOLUME II 18. Thus, on this principle, the view was unanimous, that enforcement of the constitutional right and grant of redress embrace award of compensation as part of the legal consequences of its contravention. 19. It follows that ‘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. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights. 20. A useful discussion on this topic which brings out the distinction between the remedy in public law based on strict liability for violation of a fundamental right enabling award of compensation, to which the defence of sovereign immunity is inapplicable, and the private law remedy, wherein vicarious liability of the State in tort may arise, is to be found in Ratanlal & Dhirajlal’s ‘Law of Torts’, 22nd Edition, 1992, by Justice G. P. Singh, at pages 44 to 48. 21. This view finds support from the decisions of this Court in the Bhagalpur blinding cases : Khatri and Others (II) Vs. State of Bihar and Others, (1981) 1 SCC 627 and Khatri and Others (IV) Vs. State of Bihar and Others, (1981) 2 SCC 493, wherein it was said that the Court is not helpless to grant relief in a case of violation of the right to life and personal liberty, and it should be prepared to forge new tools and devise new remedies’ for the purpose of vindicating these precious fundamental rights. It was also indicated that the procedure suitable in the facts of the case must be adopted for conducting the inquiry, needed to ascertain the necessary facts, for granting the relief, as the relief, as the available mode of redress, for enforcement of the guaranteed
  • 84. COMPENSATION fundamental rights. More recently in Union Carbide Corporation and Others Vs. Union of India and Others, (1991) 4 SCC 584, Misra, C. J. stated that: We have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future....., there is no reason why we should hesitate to evolve such principle of liability..... To the same effect are the observations of Venkatachaliah, J. (as he then was), who rendered the leading judgement in the Bhopal gas case, with regard to the Court’s power to grant relief. 22. We respectfully concur with the view that the Court is not helpless and the wide powers given to this Court by Article 32, which itself is a fundamental right, imposes a constitutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available. The power available to this Court under Article 142 is also an enabling provision in this behalf.The contrary view would not merely render the Court powerless and the constitutional guarantee a mirage, but may, in certain situations, be an incentive to extinguish life, if for the extreme contravention the Court is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence, and recovery of damages under private law, by the ordinary process. It the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have-nots, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate. 23. We may also refer to Article 9(5) of the International Covenant on Civil and Political Rights, 1966 which indicates that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right. Article 9(5) reads as under: Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. 24. The above discussion indicates the principle on which the Court’s power under Articles 32 and 226 of the Constitution is exercised to award monetary compensation 67
  • 85. 68 PRISONERS' RIGHTS VOLUME II for contravention of a fundamental right. This was indicated in Rudul Sah and certain further observations therein adverted to earlier, which may tend to minimise the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of this Court in Rudul Sah and others in that line have to be understood and Kasturilal distinguished therefrom. We have considered this question at some length in view of the doubt raised, at times, about the propriety of awarding compensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is a clear case for award of compensation to the petitioner for the custodial death of her son. 25. The question now, is of the quantum of compensation. The deceased Suman Behera was aged about 22 years and had a monthly income between Rs.1200/- to Rs.1500/-. This is the finding based on evidence recorded by the District Judge, and there is no reason to doubt its correctness. In our opinion, a total amount of Rs.1,50,000/- would be appropriate as compensation, to be awarded to the petitioner in the present case. We may, however, observe that the award of compensation in this proceeding would be taken into account for adjustment, in the event of any other proceeding taken by the petitioner for recovery of compensation on the same ground, so that the amount to this extent is not recovered by the petitioner twice over. Apart from the fact that such an order is just, it is also in consonance with the statutory recognition of this principle of adjustment provided in Section 357(5) Cr. P. C. and Section 141(3) of the Motor Vehicles Act, 1988. 26. Accordingly, we direct the respondent State of Orissa to pay the sum of Rs. 1,50,000/to the petitioner and a further sum of Rs.10,000/- as costs to be paid to the Supreme Court Legal Aid Committee. The mode of payment of Rs.1,50,000/- to the petitioner would be, by making a term deposit of that amount in a scheduled bank in the petitioner’s name for a period of three years, during which she would receive only the interest payable thereon, the principal amount being payable to her on expiry of the term. The Collector of the District will take the necessary steps in this behalf, and report compliance to the Registrar (Judicial) of this Court within three months. 27. We clarify that the award of this compensation, apart from the direction for adjustment of the amount as indicated, will not affect any other liability of the respondents or any other person flowing from the custodial death of petitioner’s son Suman Behera. We also expect that the State of Orissa would take the necessary further action in this behalf, to ascertain and fix the responsibility of the individuals responsible for
  • 86. COMPENSATION the custodial death of Suman Behera, and also take all available appropriate actions against each of them including their prosecution for the offence committed thereby. 28. The writ petition is allowed in these terms. 29. Dr. Anand, J. (Concurring) The lucid and elaborate judgement recorded by my learned Brother Verma J. obviates the necessity of noticing facts or reviewing the case law referred to by him. I would, however, like to record a few observations of my own while concurring with His Lordship’s judgement. 30. This Court was bestirred by the unfortunate mother of deceased Suman Behera through a letter dated 14.9.1988, bringing to the notice of the Court the death of her son while in police custody. The letter was treated as a writ-petition under Article 32 of the Constitution. As noticed by Brother Verma J., an inquiry was got conducted by this Court through the District Judge Sundergarh who, after recording the evidence, submitted his inquiry report containing the finding that the deceased Suman Behera had died on account of multiple injuries inflicted on him while in police custody. Considering, that it was alleged to be a case of custodial death, at the hands of those who are supposed to protect the life and liberty of the citizen, and which if established was enough to lower the flag of civilization to fly half-mast, the report of the District Judge was scrutinized and analysed by us with the assistance of Mr. M. S. Ganesh, appearing amicus curiae for the Supreme Court Legal Aid Committee and Mr. Altaf Ahmad, the learned Additional Solicitor General carefully. 31. Verma J., while dealing with the first question i.e. whether it was a case of custodial death, has referred to the evidence and the circumstances of the case as also the stand taken by the State about the manner in which injuries were caused and has come to the conclusion that the case put up by the police of the alleged escape of Suman Behera from police custody and his sustaining the injuries in a train accident was not acceptable. I respectfully agree. A strenuous effort was made by the learned Additional Solicitor General by reference to the injuries on the head and the face of the deceased to urge that those injuries could not be possible by the alleged police torture and the finding recorded by the District Judge in his report to the contrary was erroneous. It was urged on behalf of the State that the medical evidence did establish that the injuries had been caused to the deceased by lathi blows but it was asserted that the nature of injuries on the face and left temporal region could not have been caused by the lathis and, therefore, the death had occurred in the manner suggested by the police in a train accident and that it was not caused by the police while the 69
  • 87. 70 PRISONERS' RIGHTS VOLUME II deceased was in their custody. In this connection, it would suffice to notice that the Doctor, who conducted the post-mortem examination, excluded the possibility of the injuries to Suman Behera being caused in a train accident. The injuries on the face and the left temporal region were found to be post-mortem injuries while the rest were ante-mortem. This aspect of the medical evidence would go to show that after inflicting other injuries, which resulted in the death of Suman Behera, the police with a view to cover up their crime threw the body on the rail-track and the injuries on the face and left temporal region were received by the deceased after he had died. This aspect further exposes not only the barbaric attitude of the police but also its crude attempt to fabricate false clues and create false evidence with a view to screen its offence. The falsity of the claim of escape stands also exposed by the report from the Regional Forensic Science Laboratory dated 11.3.1988 (Annexure R-8) which mentions that the two pieces of rope sent for examination to it, did not tally in respect of physical appearance, thereby belying the police case that the deceased escaped from the police custody by chewing the rope. The theory of escape has, thus, been rightly disbelieved and I agree with the view of Brother Verma J. that the death of Suman Behera was caused while he was in custody of the police by police torture. A custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. It is not our concern at this stage, however, to determine as to which police officer or officers were responsible for the torture and ultimately the death of Suman Behera. That is a matter which shall have to be decided by the competent Court. I respectfully agree with the directions given to the State by Brother Verma, J. in this behalf. 32. On basis of the above conclusion, we have now to examine whether to seek the right of redressal under Article 32 of the Constitution, which is without prejudice to any other action with respect to the same matter which may be lawfully available, extends merely to a declaration that there has been contravention and infringement of the guaranteed fundamental rights and rest content at that by relegating the party to seek relief through civil and criminal proceedings or can it go further and grant redress also by the only practicable form of redress-by awarding monetary damages for the infraction of the right to life. 33. 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 infringement of the
  • 88. COMPENSATION 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, 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. 34. Adverting to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortious act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the Courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve ‘new tools’ to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law. While concluding his first Hamlyn Lecture in 1949 under the title ‘Freedom under the Law’ Lord Denning in his own style warned : No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning freedom in the new age. They must be replaced by new and up to date machinery, by declarations, injunctions and actions for negligence..... This is not the task for Parliament.... the Courts must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare State; but abused they lead to a totalitarian State. None such must ever be allowed in this country. 71
  • 89. 72 PRISONERS' RIGHTS VOLUME II 35. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much as protector and guarantor of the indefeasible rights of the citizens. The Courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. 36. 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 this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution 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 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising 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 wrong doer 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. 37. 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 to the citizen, notwithstanding the rights of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may
  • 90. COMPENSATION be available to it against the wrongdoer in accordance with law – through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the Court in the facts and circumstances of the case, is possible. The decisions of this Court in the line of cases starting with Rudul Sah Vs. State of Bihar and Another (1983 (3) SCR 508) granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 32 or 226 of the Constitution of India, notwithstanding the rights available under the civil law to the aggrieved party where the Courts found that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in that spirit that the Courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the Courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental rights of a citizen under Article 21 is concerned. Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the courts have to act firmly but with certain amount of circumspection and self restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law. Some of those situations have been identified by this Court in the cases referred to by BrotherVerma, J. 38. In the facts of the present case on the findings already recorded, the mode of redress which commends appropriate is to make an order of monetary amend in favour of the petitioner for the custodial death of her son by ordering payment of compensation by way of exemplary damages. For the reasons recorded by Brother Verma, J., I agree that the State of Orissa should pay a sum of Rs. 1,50,000/- to the petitioner and a sum of Rs. 10000/- by way of costs to the Supreme Court Legal Aid Committee. I concur with the view expressed by Brother Verma, J, and the directions given by him in the judgement in all respects. 73
  • 91. Supreme Court of India JT 1994 (6) SC 478 Arvinder Singh Bagga vs State of Uttar Pradesh and Others S. Mohan, S.B. Majmudar, JJ. 1. Pursuant to our order dated November 16, 1993, the District Judge of Bareilly has submitted his report. Mr. R. S. Sodhi, learned counsel for the petitioner and Mr. A. S. Pundir, learned counsel for the State of Uttar Pradesh perused the reports. Mr. R. S. Sodhi would submit that the erring police officers should be prosecuted and compensation should be given to such of those who have been illegally detained and suffered humiliation at the hands of the police. 2. Learned counsel for the State, though was present on an earlier occasion, did not choose to appear in spite of the matter having been passed over twice. 3. We have carefully persued the report. We appreciate the good work done by the learned District Judge. He had held a thorough inquiry by examining several witnesses to arrive at the truth. In our considered opinion the report is a fair one and deserves to be accepted. It is accordingly accepted. 4. The report in no uncertain terms indicts the police. It inter alia states : On a careful consideration of all the evidence on record in the light of the surrounding circumstances I accept the claim of Nidhi that she was tortured by the police. On 24.7.93 she was pressurised by J.C. Upadhyay S.H.O., Sukhpal Singh, S.S.I. and Narendrapal Singh S.I. and threatened and commanded to implicate her husband and his family in a case of abduction and forcible marriage thereafter. She was threatened with physical violence to her husband and to herself in case of her default and when she refused her family members were brought in to pressurise her into implicating them. On 25th July 1993 she was jolted out of sleep by Sukhpal Singh S.S.I. and made to stand for a long time. She was abused and jostled and threatened by J. C. Upadhyay, Sukhpal Singh and Narendrapal Singh with injury to her body if she did not write down the dictated note. Sukhpal Singh SSI even assaulted h