V.D. Gyani, Actg. C.J.
1. Basic facts of this case are substantially admitted. The only difference is in the nature of defence set up by the respondents, otherwise it is an admitted position that the father of petitioner Nos. 2 to 4 and the husband of petitioner No. 1 was picked up by the army on 13.9.1997.
2. While the writ petitioners' claim is that on 13.9.1997 at about 4.00 p.m. a group of army personnel came to the tea stall while Bhupen Choudhury, their father was engaged in his own tea stall, he was asked to go with them to their camp. Handing over the charge of his tea stall to one of his sons, he went with the army personnel. At the same time another person by name Krishna Sarmah was also picked up, who was the manager of another nearby tea stall. When he did not return by night, the petitioners with four other local persons went to Khairabari Army Camp around 9 a.m. They reached at the gate of the army camp and requested the sentry on duty to allow them to meet the Major. An army personnel wrote the names of the petitioners and other persons on a slip of paper and went inside. After a while the person came back with a few others and started scolding them and did not allow them to meet the Major, refusing entry to the camp. The petitioners thereafter went to the office of the Deputy Commissioner, Darrang, Mangaldoi to meet him. It was there that they came to know that husband/father of the petitioner(s) had died in army custody.
3. On 15.9.1997 his dead body was handed over to the Khairabari P.S. It was sent to Mangaldoi Civil Hospital where the post-mortem examination was done. The inquest report was also prepared by a Magistrate. The petitioners on receiving the copy of inquest report and the postmortem examination report, Annexures 4 and 5, it was confirmed beyond doubt that Bhupen Choudhury had died due to brutal torture at the hands of the army personnel, while in their custody. It was further contended that Bhupen Choudhury was subjected to brutal and inhuman torture by the army personnel in the name of interrogation about the hide-outs of N.D.F.B. extremists of which he was completely ignorant.
4. Later on the Commanding Officer of 6th Kumaon Regiment lodged a first information report with Khairabari Police Station, after the brutal killing of peti-tioner(s) husband/father Bhupen Choudhury, and the false first information report was lodged to cover up his death, making a false and fabricated statement. The petitioners also filed two first information reports, one with the Tangla Police Station and another at Khairabari Police Station. Copies of these F.I.Rs. have been annexed as Annexures 6, 7 and 8 respectively.
5. The respondents' case as contained in affidavit-in-opposition filed by the respondent Nos. 1 to 4 while admitting the basic fact that Bhupen Choudhury was picked up on 13.9.1997 from his tea stall is slightly different, but it is natural that the facts have been introduced to set up a defence. For example, it is the respondents' case that they had a reliable information from a confidential report that some N.D.F.B. militants are likely to come to Bhupen Choudhury's tea stall around 4 p.m. on 13.9.1997 and it was for this reason that a party was deputed and as claimed by the respondent 'as per procedure established under the aegis of the Armed Forces (Special Powers) Act, 1958 to cordon the suspect area and to carry out a search of the shop'. They further admit that preliminary investigation was held, their pleaded case itself is quoted below:
That preliminary investigation informed that Bhupen Choudhury accepted the fact that militants do frequent his shop. That further the said Choudhury voluntarily agreed to give some information about N.D.F.B. militants and also agreed to show their hide-outs and routes being used by them. The said Choudhury thereafter voluntarily agreed to accompany the troops up to Khairabari Post. However, he being apprehensive that people of the local area would doubt his involvement with the respondents and give him trouble later. Accordingly he requested that one Krishna Sarmah, owner of another tea stall also be shown to be apprehended and asked to accompany the party to Khairabari Post.
6. It is worth noting that even the petitioners have averred that Krishna Sarmah of adjoining tea stall was also picked up. The fact that he was also taken away is admitted, the only difference is as suggested by the respondents, it was at the instance of deceased Bhupen Choudhury. The respondents have further pleaded that the deceased Choudhury willingly agreed to accompany the respondent troops to show the hide-outs and routes frequented by the N.D.F.B. militants. That further the said Bhupen Choudhury also confirmed that on 13.9.1997 at around 16.00 hours, two N.D.F.B. militants had come to his shop but the transaction could not take place due to the untimely arrival of the respondent troops.
It is an admitted fact that Bhupen Choudhury was in custody of the army on 14.9.1997, but what the respondents say is not 'custody' but 'company' to quote their own pleaded case:
On 14.9.97 at around 4 a.m., the patrol party along with Bhupen Choudhury proceeded towards the village Michila-bari on foot. That short of the village, Choudhury expressed being tired and wanted to rest. A halt for 15 minutes or so then took place. That from the spot, Choudhury showed some houses being used by the militants as harbour.
That after a lot of delay, the road could be cleared and information was lodged with the O.C. Tangla P.S. by physically going to Tangla, as there was no telephone or radio communication between answering respondents' Post at Khaira-bari and Tangla P.S.
That O.C. Tangla P.S. informed the respondents' party that the place of occurrence falling under Khairabari P.S., the case would be dealt with by the said P.S. That the party then proceeded to lodge the F.I.R. at Khairabari P.S. after coming back.
The respondents have denied their alleged visit, their lodging of report and have further pleaded that-
The averments are specifically denied as misconceived, misleading and false that the deceased died due to brutal torture by the answering respondents personnel, while in their custody in the name of interrogation about the hideouts of the N.D.F.B. extremists.
7. What the respondents claim is that they have a clear cut policy to encourage friendly relations between its serving personnel and Indian citizens, that the answering respondent is bound to protect against the anti-national activity of such citizens.
8. Before proceeding any further, it would not be out of place to reproduce the certificate issued by Dr. Mukul Bhatta-charyya of Civil Hospital, Khairabari filed as Annexure 1 to the affidavit-in-opposition. The same is reproduced as ready reference:
This is to certify that the army from Khairabari camp came to seek medical examination and advice regarding Bhupen Choudhury, aged 61 years, c/o late Rajan Choudhury of vill. Bhergaon, P.S. Tangla on 14.9.1997 at 09.15 a.m.
I arrived at the Khairabari camp at 9.30 a.m. At that time on general examination I found that the man was senseless. He complained of chest pain, he was slightly grasping for breath. So I advised to start a I/v drip and asked an injection from Khairabari market (Inj. dexona of Inj. Koramine) immediately. But before the injection could reach me, the condition of the patient deteriorated very suddenly. In the meantime I had advised for evacuating the patient to Mangaldoi Civil Hospital for giving oxygen and necessary treatment which is not available at Khairabari and Tangla. Preparation was being made to shift the patient immediately. But the patient died at 09.50 hours on 14.9.97 in my presence. The probable cause of his death is due to cardio-respiratory failure.
9. Putting the post-mortem examination report Annexure 5 and the defence stand as contained in para 3 (d) and (e) of the affidavit-in-opposition, it is hard to reconcile the findings of the post-mortem examination with the defence stand that the deceased Bhupen Choudhury slipped on a stony patch of ground and fell flat on the road which at this point had many stones. However, does it reconcile with the findings as noted by the doctor performing post-mortem examination? The thoracic cavity was found containing blood, it was lacerated on the left side. The following injuries were found-
(i) Contusions over both thighs- placed dorsolaterally and obliquely (i.e. 2 nos. over each thigh) size 1.5 cm x 2.5 cm each.
(ii) Bruises over both soles.
(iii) Multiple contusions over whole back.
(iv) Fracture of ribs - 4th, 5th, 6th on left chest.
10. It is surprising that while the right parietal and the occipital region found containing extravasation of clotted blood, however, could there be bruises on both soles on falling flat? It is the definite stand that Bhupen Choudhury had fallen flat. But, what we find is, there were multiple contusions over the back. If he had fallen flat as sought to be suggested, the nature of injuries caused would be either scratches, laceration or abrasion, but not contusion. Does it explain the contusions found on both thighs? All the chambers of the heart were empty, while there was extravasation of clotted blood in the parietal and occipital region and all these injuries were ante-mortem in nature caused by blunt object.
Taylor in his Principles and Practice of Medical Jurisprudence, 13th Edn., at p. 235, has noted about the patterns of injury as follows:
Fatal injuries resulting from blunt impact force will follow a certain pattern, according to the instrument and manner of death.
Blunt impact injuries are usually accidental and are seen in transportation accidents of all types, and in simple falls. Homicidal injuries are usually inflicted with some clubbing weapon, and suicidal injuries are usually inflicted by jumping off tall buildings.
Certain varieties of blunt impact injury merit special description because of their frequency and the medico-legal importance. Of all the violent deaths of this type those most commonly examined by the pathologists are road traffic accidents.
Blunt impact to the extremities may result in soft tissue and bony injury. The force necessary to cause a fracture will depend upon the density of the bone which receives the impact.
11. The injuries caused are the concern of the doctors or pathologists, but with the material available on record they are of accidental falling flat, is wholly incompatible with the findings recorded in the post-mortem examination report, Annex-ure 5. Respondents have also filed a photostat copy of certificate dated 14.9.97 issued by Dr. Mukul Bhattacharyya, Annexure 1, who claims to have examined Bhupen Choudhury on 14.9.1997 at 9.00 a.m. The interpolation made in the date in the 5th line from the beginning and last but two lines is of crucial importance and this by itself speaks volume. The credibility of the certificate issued by the doctor to say the least, it is most unethical professional practice. Certification in such cases is not a matter of routine. It must be issued with all sense of seriousness, sincerity and sanctity. A photostat copy of the certificate, Annexure 1 to the affidavit-in-opposition as filed by the respondents shall form part of this judgment and be enclosed with the same.
12. The first question that arises is, what was the need for obtaining such a certificate captioned as 'To Whomsoever It May Concern'. When the patient complains of chest pain was it not obligatory on the part of the doctor certifying to ascertain the cause of pain? Could he not find or feel the fractured bones of the ribs? The insertion made without initialling or authenticating the same in the 8th line suggesting that the patient was suffering from 'internal piles' makes the document suspect. It is a certificate tailored for the occasion. The respondents' claim to have received information from a confidential source that some militants were to visit Bhupen Choudhury on 13.9.1997 at 4 p.m. and there was likelihood of extortion deal to be finalised in the shop. The respondents' claim on its face value can at best be that the deceased was guilty of harbouring the militants or abetting their unlawful activities. He had in fact admittedly been taken into custody and could and should have been dealt with in accordance with law and prosecuted for offences punishable under the provisions of the Unlawful Activities (Prevention) Act and the Indian Penal Code for harbouring criminals. The procedure laid down under Section 6 of the Armed Forces (Special Powers) Act, 1958, should have been followed. It is not a case that there was a sudden exchange of fire and someone succumbed to the bullet injuries. The tea stall owner Bhupen Choudhury was picked up on 13.9.1997 afternoon and his dead body was returned on 15.9.1997 morning. What happened in between is revealed by the post-mortem examination report. A man may lie, but circumstances do not, and the circumstances and finding revealed by the post-mortem examination report, Annexure 5, tell tell-tale story supporting the petitioners' case of brutal inhuman torture resulting in the death of Bhupen Choudhury.
13. The petitioners approached the army authorities but they were not allowed to enter the camp, they were eager to enquire about the well-being of their father, and the inquest was prepared as per Annexure 4 under orders of the Deputy Commissioner. The following marks of injuries as observed are worth noting:
Two injection like marks seen on the middle of both the hands with blood stain. On the right thigh, two black injury marks seen. One black injury mark also seen on the left thigh. Some black patches/marks are also seen on the back side of the deceased's body. Seen the toes and found some black marks on both the legs. Also seen one black injury mark over the back side of the left side.
14. The report Annexure 6 lodged by one of the petitioners, son of the deceased, clearly makes out a case of cognizable offence. Yet no action appears to have been taken. The Officer-in-charge and the Superintendent of Police are parties to this petition along with the State of Assam as respondent Nos. 2, 5 and 6. The Supreme Court having held in State of Haryana v. Bhajanlal, AIR 1992 SC 604, that the police has no option but to register a case on first information report if it discloses commission of a cognizable offence, and the State has not chosen even to file a return, let alone show investigating the case in accordance with law.
15. So far as torture and custodial death is concerned we cannot do better than referring to one of the most leading judgments of the Apex Court, delivered by Hon'ble Justice Dr. A.S. Anandin D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, where it has been observed:
Custodial death is perhaps one of the worst crimes in a civilised society governed by rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights' jurisprudence. The answer, indeed, has to be an emphatic 'No'. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.
The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the court, as the custodian and protector of the fundamental and basic human rights of the citizens. Custodial violence, including torture and death in the lockups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law-enforcing officers is a matter of deep concern in a free society. These petitions raise important issues concerning police powers, including whether monetary compensation should be awarded for established infringement of the fundamental rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental.
(10) Torture' has not been defined in the Constitution or in other penal laws. 'Torture' of a human being by another human being is essentially an instrument to impose the will of the 'strong' over the 'weak' by suffering. The word 'torture' today has become synonymous with the darker side of the human civilisation.
'Torture' is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself. -Adriana P. Bartow.
(11) No violation of any one of the human rights has been the subject of so many Conventions and Declarations as 'torture'-all aiming at total banning of it in all forms, but in spite of the commitments made to eliminate torture, the fact remains that torture is more widespread now than ever before. 'Custodial torture' is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward-flag of humanity must on each occasion fly half-mast.
(12) In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma a person experiences is beyond the purview of law.
16. Referring to the Report of Sir Cyril Philips Committee and the suggestions made by the Royal Commission, the Apex Court had dealt with Article 21 of the Constitution of India in the following words:
(17) Fundamental rights occupy a place of pride in Indian Constitution. Article 21 provides 'no person shall be deprived of his life or personal liberty except according to procedure established by law'. Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression 'life or personal liberty' has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and he shall not be denied the right to consult and defend himself by a legal practitioner of his choice. Clause (2) of Article 22 directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate. Article 20(3) of the Constitution lays down that a person accused of an offence shall not be compelled to be a witness against himself. These are some of the constitutional safeguards provided to a person with a view to protect his personal liberty against any unjustified assault by the State. In tune with the constitutional guarantee a number of statutory provisions also seek to protect personal liberty, dignity and basic human rights of the citizens. Chapter V of the Criminal Procedure Code, 1973 deals with the powers of arrest of a person and the safeguards which are required to be followed by the police to protect the interest of the arrested person. Section 41, Criminal Procedure Code confers powers on any police officer to arrest a person under the circumstances specified therein without any order or a warrant of arrest from a Magistrate. Section 46 provides the method and manner of arrest. Under this section, no formality is necessary while arresting a person. Under Section 49, the police is not permitted to use more restraint than is necessary to prevent the escape of the person. Section 50 enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest. The police officer is further enjoined to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the event of his arrest for a non-bailable offence. Section 56 contains a mandatory provision requiring the police officer making an arrest without warrant to produce the arrested person before a Magistrate without unnecessary delay and Section 57 echoes Clause (2) of Article 22 of the Constitution of India. There are some other provisions also like Sections 53, 54 and 167 which are aimed at affording procedural safeguards to a person arrested by the police. Whenever a person dies in custody of the police, Section 176 requires the Magistrate to hold an enquiry into the cause of death.
17. Taking note of growing custodial deaths and violence as disturbing factor the Supreme Court has also referred to the Third Report of the National Police Commission in India expressing its deep concern with custodial violence and lockup deaths, its demoralising effect which custodial torture is creating on the society as a whole and the suggestions made by the Police Commission as regards arrest during investigation of a cognizable case may be considered justified in one or other of the following circumstances:
(i) The case involves a grave offence like murder, dacoity, robbery, rape, etc. and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims.
(ii) The accused is likely to abscond and evade the process of law.
(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.
(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offence again. It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines.
Having examined its earlier judgments as reported in Joginder Kumar v. State of U.P., (1994) 4 SCC 260; Nilabati Behera v. State of Orissa, 1993 ACJ 787 (SC); State of M.P. v. Shyamsunder Trivedi, (1995) 4 SCC 262; Rudul Shah v. State of Bihar, (1983) 4 SCC 141; Sebastian M. Hongray v. Union of India, (1984) 1 SCC 339; Bhim Singh v. State of J&K;, 1986 ACJ 867 (SC); SAHELI, A Women's Resource Centre v. Commr. of Police, Delhi, 1990 ACJ 345 (SC); and Kasturilal Ralia Ram Jain v. State of U.P., AIR 1965 SC 1039, the Supreme Court noted that 'indeed no express provision in the Constitution of India for grant of compensation for violation of a fundamental right to life, nonetheless, this Court has judicially evolved a right to compensation in cases of established unconstitutional deprivation of personal liberty or life' yet found a way out for compensation for unconstitutional deprivation of fundamental right to life and liberty as follows:
(44) The claim in public law for compensation for the unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.
(45) The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian 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. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim-civil action for damages is a long drawn and cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family.
18. This is a case of established infringement of fundamental right to life of a citizen, as has been pointed out by the Supreme Court in D.K. Basu, (1997) 1 SCC 416. Any amount of compensation is just to apply balm to wounds and this award of compensation is without prejudice to any other action like civil suit for damages which is undoubtedly available to the petitioners irrespective of compensation that may be awarded. Apart from the four sons, the widow of Bhupen Choudh-ury is also one of the petitioners. It is an admitted position that the deceased was running a tea stall on a highway. Seeking guidance from the reported case in Nilabati Behera, 1993 ACJ 787 (SC), where the Supreme Court awarded a compensation of Rs. 1,50,000 with cost of Rs. 10,000, in Bihar Timung v. Union of India, 1993 (2) GLR 347 and Geeta Sangma v. State of Nagaland, 1994 ACJ 792 (Gauhati), this Court had awarded Rs. 2,00,000 and Rs. 1,50,000 respectively as palliative. There is always certain amount of guesswork involved in quantifying the amount of compensation. To our mind awarding Rs. 2,00,000 (Rupees two lakh) towards compensation with cost of Rs. 10,000 would substantially meet the ends of justice. Accordingly, Rs. 2,00,000 (Rupees two lakh only) with cost of Rs. 10,000 (Rupees ten thousand) is awarded payable by the respondents.
As already indicated above, the first information report lodged by one of the petitioners clearly and prima facie indicates commission of a cognizable offence. The respondent Nos. 1 and 4 are directed to pay compensation as awarded within a period of 1 (one) month from today by depositing the same in names of the petitioners in a nationalised bank and produce the receipt before the Registrar General of this Court. On such deposit being made, the petitioners shall be at liberty to withdraw Rs. 1,00,000 (Rupees one lakh only) for the time being. Out of this amount Rs. 40,000 shall be paid to the petitioner No. 1, widow of the deceased Bhupen Choudhury and the remaining Rs. 60,000 will be equally distributed in Rs. 20,000 among three sons.
Following State of Haryana v. Bhajan-lal, AIR 1992 SC 604, respondent Nos. 2, 3, 5 and 6 are directed to register a case on the basis of the F.I.R. Annexure 6 lodged by the petitioner No. 2 Narayan Choudhury and submit the progress report of the investigation by 5th of each month.
The petition stands allowed with the above direction.