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TMI Blog1993 (3) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The State of Orissa and its police officers, including Sarat Chandra Barik, Assistant Sub-Inspector 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied 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 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. 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 at about 8 a.m. on 1.12.1987 by Sarat Chandra Barik, Asstt. Sub-Inspector of Police, during investigation of an offence of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow knee joint. (10) Laceration 1"' x 1/4" x 1/2" on the plantar aspect of 3rd and 4th toe of right side. (11) Laceration of 1" x 1/4" x 1/2" on the dorsum of left foot. Injury on the neck (1) 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 clavial left side (4) posterial aspect of the neck 1" x 1' obliquely placed right to mid line. Right shoulder (a) Bruise 2" x 2", 1" above the right scapula. (b) Bruise 1" x 1' on the tip of right shoulder. (c) Bruise on the dorsum of right palm 2" x 1". (d) Bruise extenses surface of forearm left side (e) Bruise on right elbow 4" x 1" (f) Bruise on the dorsum of left palm 2" x 1". (g) Bruise over left patela 2" x 1". (h) Bruise 1" above left patel 1" x 1". (i) Bruise on the right illiac spine 1" x 1/2". (j) Bruise over left scapula 4" x 1". (k) Bruise 1" below right scapula 5" x 1". (l) Bruise 3" medial to inferior angle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 postmortem 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 anti-mortem and post- mortem. We have no hesitation in reaching this conclusion and preferring the testimony of the doctor who conducted the postmortem. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces Centre and Others v. Commissioner of Police, Delhi Police Headquarters and Others, [1990] 1 S.C.C. 422 and State of Maharashtra and Others v. Ravikant S.Patil, [1991] 2 S.C.C. 373, the liability of the State of Orissa 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 in 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 proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opt. 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 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 in- dividuals 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) 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'. These observation may tend to raise a doubt that the remedy und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees. In State of Maharashtra and Others v. Ravikant S. Patil, [1991] 2 S.C.C. 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 and taken through the streets in a procession by the police during investigation, was upheld. However, in none of these cases, except Rudul 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 fain v. The State of Uttar Pradesh, [1965] 1 S.C.R. 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. 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 immun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the enforcement of the rights that had been contravened. In their Lordships' view an order for payment of compensation when a right protected under s.1 'has been' contravened is dearly a form of 'redress' which a person is entitled to claim under s. 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 s.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 to this.' Lord Diplock further stated at page 680, as under:- "Finally, their Lordships would say something about the measure of monetary compensation recoverable under s.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 would include damages for loss of reputation. It is a claim in public law for compen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. This view finds support from the, decisions of this Court in the Bhagalpur blinding cases: Kharti and Others (II) v. State of Bihar and Others, [1981] 1 S.C.C. 627 and Kharti and Other (TV) v. State of Bihar and Others, [1981] 2 S.C.C. 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 available mode of redress, for enforcement of the guaranteed fundamental rights. Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncept 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." The above discussion indicates the principles on which the Court's power under Articles 32 and 226 of the Constitution is exercised to award monetary compensation 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. The question now, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 judgment. 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 lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceased 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. 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 way 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in public law by molding 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 of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers.to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may 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 v. State of Bihar and Anr., [1983] 3 SCR 508 granted monetary relief to the victims for deprivation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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