B.P. Katakey, J.
1. The present Writ Application has been filed by Mr. Noklenlemba, father of Late Tiaba Ao who was allegedly died in police custody. By the present writ application, the petitioner prayed for awarding compensation in favour of the wife and the minor children of the deceased as well as to the writ petitioner for the said custodial death and also to fix the responsibility on the guilty officers and to take criminal action against them.
2. Heard Mr. Imti Longchar, learned Counsel for the petitioner and also Ms. Y. Longkumer, learned Govt. Advocate for the respondents.
3. This Court, vide order dated 11.10.2001, while issuing notice of motion directed the learned Addl. Deputy Commissioner (Judicial), Tuensang to cause an enquiry leading to the custodial death of the said deceased and after recording the evidences, both oral and documentary submit report. Accordingly report dated 21.2.2002 was submitted by Shri L.N. Sema, Addl. Deputy Commissioner (Judicial) Tuensang. The writ petitioner-had made a complaint against the said report dated 21st February, 2002 stating that the Addl. Deputy, Commissioner (Judicial) has submitted a report without giving the writ petitioner an opportunity to cross examine the witnesses in the enquiry as well as to examine any witness in his support. This Court, thereafter, vide order dated 23.10.2002 directed the learned Addl. Deputy Commissioner (J) to conduct further enquiry by affording an opportunity to the writ petitioner to produce his evidence in support of his case and also allowing the respondents to cross examine the witnesses so produced. The learned Addl. Deputy Commissioner (J) was directed to complete the enquiry and submit the report within a period of 2(two) months. It was further directed by the said order that the witnesses who were examined during the earlier enquiry should also be made available for cross-examination by the writ petitioner. Accordingly the enquiry was conducted by the learned Addl. Deputy Commissioner (J) and submitted the report to this Court pursuant to the said order passed by this Court. The learned Addl. Deputy Commissioner (J) in his report has recorded the following findings :
(1) On considering the depositions of the witnesses produce by both the parties and on perusal of the records I find without any doubt that Lt. Tiaba left home on 22.7.2001 and a mass public search was conducted, and at the time of search it was found from some labourers camp at Seyochung Road that he took meal from their camp and again went to jungle.
(2) Lt. Tiaba came to Kiphire Village on 24.7.2001 night and the Police personnel of the Kiphire Police Station brought Lt, Tiaba to Kiphire Police Station and took him to Civil Hospital Kiphire where he was examined by DW- 5 Dr. H. Kumar and treated for some minor injuries.
(3) Lt. Tiaba was lock up without any direction from the higher ups as is clear from the deposition of DW-1 SDPO, who was taking the charge of SP at that time. DW-3 O.C. Kiphire Police Station and DW-4 ASI Janbemo.
(4) It is clear from the deposition of witnesses that there is no criminal case against Lt. Tiaba before he was lodged in the lock up nor he was detained in connection with any criminal case.
(5) Till date no case in respect to custodial death of Lt. Tiaba has been registered as such no police inquiry is initiated.
(6) No mental sickness is established against Lt. Tiaba.
(7) The so-called Magisterial enquiry conducted by DW-7 cannot be said to be any enquiry for the reason that he stated in cross examination that he examined one ASI and l(one) Constable of the Kiphire Police Station whose name he do not remember, he did not written statements of any witness at the same time even though the wife of Lt. Tiaba was present in the Police Station he did not enquired anything from her. He also did not order for post mortem, nor he examined the dead body of Lt. Tiaba. He honestly admitted that he had never conducted magisterial enquiry over custodial death.
(8) It is clear from the deposition of DW-6 ADC. Kiphire and DW-7 EAC Kiphire that Exbt-P/1 WT Message No. CON.3/00-01 dated, 25.7.2001 was sent to the higher ups stating that 'suspicious circumstance involved in this death' but no proper steps were taken. And with respect to Exbt-P/2 wt Message No. SP/KPE/CB-1/00/01/658 dated 25.7.2001 the police officials denied existence of any such report, which is not understood why it is denied.
(9) The fact that Lt. Tiaba was lock-up inside Kiphire Police Station on the night of 24.7.2001 and found death the next morning is established beyond any doubt from the deposition of witnesses.
It is concluded that Lt. Tiaba was lock up on the night of 24.7.2001 at Kiphire Police Station without legal authority and he was found dead inside the police lock-up the next morning and his body was dispose of without following the mandatory legal procedure. However, I find that no administrative official or police personnel can be held directly responsible for the death of Lt. Tiaba in the Police custody.
4. Upon receipt of the report of the enquiry copy of the same was furnished to the learned Counsel for the petitioner as well as the learned State Counsel. The State respondents have not filed any objection to the report submitted by the learned Addl. Deputy Commissioner (J). No affidavit in opposition has also been filed by the State respondents in the writ petition filed by the writ petitioner.
5. The writ petitioner in the writ petition had stated that his son Tiaba Ao, who was a farmer by profession and also earning his livelihood as daily wage earner, was picked up by Police on 24th July, 2001 while he was at Kiphire Village, in spite of the fact that there was no criminal case registered against him. The petitioner has stated in the writ petition that his son Tiaba Ao was arrested by the Police and was taken to Kiphire Police Station at about 9 P.M. and was put in the lock-up. It is the further case of the writ petitioner that when Late Tiaba Ao's sister in law came to know about the said police action, she went to the Police Station on the next day i.e., on 25th July, 2001 where she met the Pastor, Kiphire Ao Church and they found that the dead body of Tiaba Ao was lying in the Police lock up in Kiphire Police Station, It has further been stated in the writ petition that in spite of such unnatural death of Tiaba Ao, no steps were taken for making any enquiry by the authority and even the dead body was not sent for the post mortem examination by the Police as required under the law. The writ petitioner, therefore, filed the present writ petition for making an enquiry and to fix the responsibility on the guilty officers and to punish them in accordance with law, apart from claiming compensation for the death caused to his son by the illegal act of the Police personnel which resulted in the death of his son in the Police lock up.
6. During the enquiry, the learned Addl. Deputy Commissioner (J) Tuensang has examined a number of witnesses, including the Doctor, Officer. In-Charge of the Police Station, Constables attached to the said Police Station, S.D.P.O., Addl. Deputy Commissioner as well as the writ petitioner and the sister-in-law of the deceased and also the Pastor of Ao Baptist Church.
7. It appears from the enquiry report as well as the deposition of the witnesses examined during the enquiry conducted by the learned Addl. Deputy Commissioner (J) that the State respondents have not denied taking Tiaba Ao in custody as well as his death in Police lock up on 24/ 25th July, 2001 It also appears from the deposition of the witnesses that the stand of the State respondents is that Late Tiaba Ao was not subjected to any torture and it was a natural death.
8. PW-2 Smti. Sakula who saw the dead body of Tiaba Ao in the lock up of the Police Station deposed as under : -
On 24.7.2001 around 9 P.M. I learn from some neighbours that Lt. Tiaba came to Kiphire village and he was brought by the Kiphire Police personnel and kept at the Police station. It was late for me to go out as such thinking that I will go with some responsible man the next morning to inquire about in what connection Lt. Tiaba was kept under detention. But next early in the morning around 5 AM when I was, preparing to visit him I was informed by someone whose name I do remember that Tiaba was found dead inside the lock up. I rushed to the Police lock up where our Kiphire Ao church pastor also reached and on the request of the pastor the lock up was opened where we found Lt. Tiaba already dead inside the police lock up at Kiphire Police Station. Immediately I informed Tiaba's wife who at that time was staying with her parents along with their 3(three) minor children and I also sent a telegraphic message to my father-in-law Noklenlemba who is staying at Mopungchuket village at Mokokchung District.
There was no cross examination from the side of the respondents on the material points regarding the detention of Tiaba Ao by Police and his death in Police lock up.
9. PW-3, Shri S.I. Meren Jamir who is the Pastor of Kiphire Ao Baptist Church has also narrated the incident and deposed as under :
That on 23.7.2001 when I was at in co-operative bank I was informed that Lt. Tianungsang alias Tiaba Ao left his house and a mass search was carried out and we learnt that he took meal from a farm house at Seyochung road. On 24.7.2001 at around 8 P.M. someone informed me that Lt. Tianungsang alias Tiaba Ao came to Kiphire village and the villagers informed the Kiphire police and they brought him from Kiphire village and was kept at the lock up It was late night so I decided to go and meet him the next morning.
Next morning i.e., 25.7.2001 I was informed by one church member at my residence that Lt. Tianungsang alias Tiaba Ao was found dead in the police lock up therefore, we rushed to the thana and I asked the police on duty to show us the death body, the police on duty opened the lock up where we found Lt. Tianungsang alias Tiaba Ao already dead inside the police lock up and I took a short prayer standing at the door and entered the lock up and I lighted the candle and agarbatty which were in the thana. The dead body looks quite grotesque.
I conducted funeral at the thana as requested by Smti. Sakula sister-in-law of Lt. Tianungsang alias Tiaba Ao at around 10.30 AM on 25.7.2001 and buried the dead body at the cemetery. At the police station I was told by the authority to sign some documents which I did believing it to be a formality in such a case.
On 21.7.2001 I met Lt. Tianungsang alias Tiaba Ao in the residence of Shri Thomas where he was cutting/chopping fire wood for hazira/wage.
There was also no cross examination from the side of the respondents on the material points.
10. DW-1 Mr. N.C. Jamio who is the SDPO, Kiphire in his deposition has stated that he directed the Officer-in-charge of Kiphire Police Station to bring the missing person (Tiaba Ao) and to inform the relatives of the said person and accordingly the Police team went to Kiphire Village and brought Tiaba Ao to Kiphire Town, It has further been stated by him that on 25.7.2001 he was informed by an officer of Kiphire Police Station that Tiaba Ao had expired. It is apparent from the deposition of the said witness that though no criminal case was registered against Late Tiaba Ao, he was kept in the Police Station. During cross-examination Mr. Jamio has stated that he did not give any instruction to keep Mr. Tiaba Ao in the Police Station.
11. Mr. T.C. Chuba, the Officer-in-charge or Kiphire Police Station was examined as DW-3 who in his deposition had stated that on 23.7.2001 he received a missing report of Tiaba Ao and a mass search was conducted and on 24th July, 2001 at about 9 PM he instructed ASI Jaribemo to carry out the search operation as directed by the SDPO. Later, on 25th July, 2001 he was informed by the said ASI that Tiaba Ao expired. During cross examination, this witness has stated that in spite of the unnatural death of Tiaba Ao, no case was registered and no post mortem examination of the dead body was also conducted. It has also come out from the deposition of this witness that there was no criminal record involving Mr. Tiaba Ao in the said Police Station. It is the categorical statement of this witness that when he reached the Police Station he found the dead body of Tiaba Ao inside the lock up. Mr. Janbemo who was the S.I. of the said Police Station at the relevant point of time was examined as DW-4 who has also stated during his examination that he brought Tiaba Ao to the Police Station and took him to the Hospital for giving first aid on the same night i.e., on 24th July, 2001, This witness had also stated that there was no criminal case against Mr. Tiaba Ao and no case for unnatural death of Tiaba Ao was registered.
12. Dr. H. Kumar who medically examined Mr. Tiaba Ao on 24th July, 2001 was examined as DW-5 in the said proceeding before the Addl. Deputy Commissioner (J) and who has stated that the time of his examination he was quite normal without any sign of mental sickness and he was rationale. He has prescribed some medicines to Mr. Tiaba Ao which were very simple and general medicines and he was found to be quite healthy without any serious sickness.
13. The Additional Deputy Commissioner Mr. C.M. Tsanglao was examined as DW-6 who has stated that on 24th July, 2001 Mr. Tiaba Ao was taken to the Police Station from Kiphire Village and in the next morning i.e., on 25th July, 2001 he was informed about the death of Mr. Tiaba Ao and accordingly he endorsed for a magisterial enquiry by the E.A..C. Shri Chubawati. Mr. Chubawati who was the E.A.C. Kiphire was examined as DW-7 and who has stated in his deposition that he conducted a magisterial enquiry wherein he examined one A.S.I. and one Constable, but did not write down their statements in writing. He has further stated that he did not order for post mortem examination of the dead body. It has further been stated by the said witness that during the preliminary examination of the dead body he did not even open/removed the trouser and underwear of the deceased and also did not examine the genitalia of the deceased. According to him he also had not conducted any magisterial enquiry over the custodial death of Mr. Tiaba Ao.
14. Two Armed Branch Constables, viz., Mr. Imlong Chang and Mr. Litsacho Sangtam were also examined as additional DW-1 and additional DW-2 who have stated in their deposition that Mr. Tiaba Ao was taken to the Police Station and he was put behind the bar in the lock up where he was found dead. It was further stated that he found to be mentally unsound with physical weakness.
15. The learned A.D.C. (J) after discussing the evidences of the witnesses recorded during the enquiry came to the definite finding that Late Tiaba Ao was put in the lock up on the night of 24th July, 2001 in Kiphire Police station without any legal authority and he was found dead inside the Police Lock up next morning and his body was disposed of without following the mandatory legal procedure.
16. From the deposition of the witnesses recorded during the enquiry conducted by the learned A.D.C.(J), it has clearly come out that Late Tiaba Ao was picked up by Police on the night of 24th July, 2001 and was put in the lock up and he was found dead in the lock up in the morning of 25th July, 2001, It has also come out from the deposition of witnesses that he was physically weak when he was picked up by Police for which treatment was given to him through Dr. H. Kumar. Doctor who examined the deceased has also categorically stated that the deceased was mentally sound and was rationale and there was no major or serious, illness, therefore, he prescribed some general medicines to the deceased.
The Police also did not take any steps to find out the reason for unnatural death of Mr. Tiaba Ao in the Police lock up by conducting the post mortem examination. The post mortem examination was not conducted by the Police probably to cover up their misdeeds. It is also evident that Mr. Tiaba Ao was put in the lock up without there being any criminal case registered against him. It was the duty of the police to give adequate medical treatment to said Tiaba Ao, to protect his life, even if the version of the respondent that he was ill and died a natural death, is accepted. The police has failed to give him adequate medical treatment, thereby has failed to protect the life of a person who was in their custody.
17. The so called enquiry conducted by the E.A.C. on 25th July, 2001 also cannot be accepted because of the fact that the E.A.C. himself has stated in his evidence that he has not removed the garments of the deceased while making such enquiry. Moreover he has not recorded the statements of witnesses examined by him. Therefore, the said enquiry cannot be accepted as an enquiry in the eye of law.
18. The Apex Court in the case of Smti. Nilabati Behera alias Lalita Behera v. State of Orissa and Ors., reported in AIR 1993 SC 1960 has held as under :
16. It follows that a claim in public law for compensation for contravention of human rights and fundamental freedom, the protraction 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 principles 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 AIR 1983 SC 1006 and is the basis of the subsequent decision in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights.
30. It is axiomatic that convicts, prisoners or under-trials 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 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, under-trials or other prisoners in custody, 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.
19. The Apex Court in the said judgment has held that the prisoners or the under-trials are even not denuded of their fundamental rights under Article 21 of the Constitution of India and in the instant case Mr. Tiaba Ao was detained in custody and put into the lock up even without there being existence of any criminal case against him, the said person was found to be dead in the said Police lock up on the morning of 25th July, 2001.
20. The Apex Court, in D.K. Basu v. State of West Bengal, reported in : 1997CriLJ743 has held that a custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. The expression 'life or' personal liberty' in Article 21 includes 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. The precious right guaranteed by Article 21 cannot be denied to convicts, undertrials, detenue and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. The Apex Court in the said judgment has also held that the dependents have to be duly compensated for the custodial death and the infringement of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution. The relevant portion of the judgment passed by the Apex Court are quoted below ; -
9. 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 the basic human rights of the citizens. Custodial violence, including torture and death in the lock-ups, 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.
17. Fundamental Rights occupy a place of pride in the 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 n 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 or arrest of a person and the safeguards which are required to followed by the police to protect the interest of the arrested person. Section 41, Cr.P.C confers powers on any police officer to arrest a person under the circumstance 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.
22. Custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be gealously 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 anarchanism. 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.
21. From the above discussions, it is evident that the courts in India has evolved a right to compensation against the State for its failure to protect the fundamental rights of the citizen which is guaranteed by the Constitution of India. Right to life and property is one of the precious rights guaranteed by the Constitution to the citizens and it cannot be allowed to be violated. Since the rights are guaranteed and assured to the individual, it follows that a claim in public law for compensation for contravention of human rights and fundamental rights, is an acknowledged remedy for enforcement and protection of such rights in addition to the traditional remedies.
22. From the above discussion, it is evident that the State has failed to protect the fundamental right of the citizen guaranteed under Article 21 of the Constitution of India and because of the illegal action on the part of some officers, Tiaba Ao has to die in the police lock up thereby putting the entire family in jeopardy. The dependents of Late Tiaba Ao are, therefore, to be adequately compensated for the wrongful act of the Officers of the State Government and also for the failure of the State to protect the fundamental rights of the citizen. The deceased Tiaba Ao was a daily wage earner who maintains his family consisting of his wife and 3 (three) minor children out of his earning as daily wage earner and was about 37 years old.
23. Taking into account the entire facts and circumstances of the case, I consider it appropriate to award compensation of Rs. 3.00 lakhs (Rupees three-hundred thousand) only with cost of Rs. 15,000 (Rupees fifteen thousand) to be paid to the writ petitioner and wife and children of the deceased, which, in my view, would substantially meet the ends of justice. Accordingly, Rs. 3.00 lakh (Rupees three hundred thousand) with cost of Rs. 15,000 (Rupees fifteen thousand) would be payable by the respondents.
24. The State of Nagaland is directed to deposit the compensation as awarded within a period of 6 (six) months from today before the Registry of this Court. On such deposit, the Registrar shall release 50% of the amount i.e. Rs. 1.50 lakhs (Rupees one hundred fifty thousand) together with cost of Rs. 15,000 (Rupees fifteen thousand) on being identified by the learned Counsel for the petitioner to the wife of Late Tiaba Ao, and the remaining sum of Rs. 1.50 lakh (Rupees one hundred fifty thousand) shall be invested in a fixed deposit scheme of any Nationalised Bank in the name of the 3 (three) minor children viz., (1) Miss Imtikumla, (2) Master Temjenyanger and (3) Master Limatenzuk separately in three fixed deposit receipts of equal amount. The said fixed deposit receipts shall not be allowed to be encashed by any one till the said (1) Miss Imtikumla, (2) Master Temjenyanger and (3) Master Limatenzuk attain the age of majority.
25. It would also be open to the State authorities to make an inquiry and proceed against the erring officials and to recover the amount awarded by this Court from the said officers as per law.
26. The writ petition, is, therefore, allowed to the extent indicated above.