R.M.S. Khandeparkar, J.
1. Heard the learned Advocates for the parties. Perused the records.
2. By the present petition, the petitioner seeks direction to the respondents for payment of compensation on account of alleged custodial death of her husband in the Central Jail at Bhandara. Initially the petition was also filed for direction to held enquiry in the matter of the death of her husband. However, the claim is now restricted to the compensation as it has come on record that the respondents have already filed criminal proceeding against one of the jail staff on account of the death of the husband of the petitioner.
3. It is the case of the petitioner that one Anil Londase, the husband of the petitioner, was arrested by Tumsar Police Station for the offence of theft on 17-10-1999 and was sent to Central Jail, Bhandara and since then he continued to be in the said jail. During the trial, he was regularly produced before the Sessions Judge at Tumsar. He was physically fit and keeping good health. On 19-1-2000 on receipt of telegram from Superintendent of Central Jail, Bhandara, it was revealed that he was admitted in the Government Hospital at Bhandara for treatment. As it was not possible to arrange the funds, the petitioner could not immediately contact her husband in Bhandara Hospital. However, she was able to contact him on 22-1-2000 and from the information furnished by her husband, it was revealed to the petitioner that five police personnel by name Babu Dandegaonkar, Dhumare, Ashok Jadhao, Meshram and Chauhan Dadu engaged her husband for wrestling practice and in the process fractured his bones of waist and neck and as a result he was admitted in the hospital, and ultimately succumbed to his injuries. The petitioner's complaint to the police authorities yielded no result. Further by telegram dated 8-2-2000, the petitioner was informed about the death of her husband and, therefore, directed to take the custody of the dead body of her husband. Considering that the death of husband had occurred while he was in the custody and the petitioner having to maintain herself and her minor children, the petitioner claims compensation from the State Government to the extent of Rs. 3,00,000/-.
4. In the reply on behalf of the respondent No. 3 on 15-11-2000, it is contended that the deceased Anil was in habit of committing theft and house breaking etc. and he used to remain in jail or indulge in criminal activities for most of his time and there were about 33 crimes registered against him since 1986 to 1999 and he was convicted for the offence punishable under sections 457 and 380 of I.P.C. and as such he was in District Central Prison, Bhandara, with effect from 9-11-1999. It is the further case of the respondent No. 3 that on 18-1-2000 deceased Anil was playing Kabaddi with jail Constable and thereafter deceased Anil and Babu Dandegaonkar Jail Constable were wrestling and in the course of wrestling the deceased sustained injuries and, therefore, he was admitted in the Government Hospital, Nagpur, on 19-1-2000 at 7.20 p.m. There while taking treatment, he expired on 8-2-2000. Said Anil was interrogated by the Executive Magistrate, Nagpur, on 20-1-2000 and also his dying declaration was recorded.
5. The return filed on behalf of the respondent No. 2 on 16-9-2002 discloses that the deceased Anil was admitted in the District Prison Bhandara on 17-10-1999. He was sent to the said jail on account of the offences punishable under sections 457, 454, 224, 380, 427 and 110 I.P.C. in relation of five different cases viz. 172/99, 220/99, 201/99, 95/99 and 46/99 and he was regularly produced before the concerned courts on the dates of the hearing. While admitting that the deceased Anil was physically fit till the date of unfortunate incident which happened on 19-1-2000, it is contended that no ill-treatment was given to Anil while he was in prison and there was no complaint from Anil at any time about any ill-treatment to him. It is further the case of the respondent No. 2 that Anil was always interested in taking part in various activities of the prison and he was a good worker besides being that player. He was taking part in daily practice of games with other interested prisoners. There was annual sport meet scheduled to take place in February, 2000 of the prison employees on State level at Pune and consequently the jail employees were involved in practice of various games and sports. Such practice was being conducted on the ground inside the prison wherein staff members were regularly taking part and some interested prisoners were also willing to take part in such games with staff members of the prison and indeed some of the prisoners took part in such games with jail sepoys on 19-1-2000. On that day after finishing their practice of Kabaddi, the prisoner Anil insisted to the jail guard Babu Dandegaonkar for practice of wrestling and accordingly both of them started the practice of wrestling and in the process Anil as well as Babu Dandegaonkar fell on the ground and Anil sustained serious injuries to the neck and shoulder. The incident was witnessed by some of the staff members as well as prisoners who were present at the site and watching the game. As Anil had severe pain in his neck, immediately Medical Officer was called who after examining Anil, gave first and treatment and suggested that the prisoner Anil be shifted to Government Hospital Bhandara for investigation and treatment. On his recommendation, the prisoner was sent to Government Hospital Bhandara at about 10 a.m. and on suggestion from the Medical Officer of Bhandara Medical Hospital, he was shifted to Medical College and Hospital at Nagpur on the same day. It is their further case that pursuant to the enquiry conducted by the police at Bhandara, the case has been registered against the staff members of the Bhandara District Prison being Crime No. 8/2000 under section 174 of Cri.P.C. and on detail enquiry the offence was registered against Babu Dandegaonkar under section 304 of I.P.C. being Crime No. 59/2000. The enquiry by the respondents has revealed that except Babu Dandegaonkar, no other person was involved in the incident. According to the respondent, there is no justification for grant of any compensation to the petitioner. It is their further case that the injuries which were suffered by Anil were in the course of the wrestling game and not intentionally inflicted upon. According to Rule 12(i) of Chapter XIX of Prison Manual, the prisoners are to be encourage to play such games as can be suitably arranged in the premises of the prison. So, the Superintendent had arranged the facility of playing games for the prisoners. Besides Anil was fit for every type of game and he himself also was playing the game and willingly took part in the games and sports in the prison. The severe injury to the neck and cervical card was totally accident and not intentional.
6. Upon hearing the learned Advocates for the parties and perusal of record, it is apparent that it is an undisputed fact that the husband of the petitioner was in jail at District Prison Bhandara with effect from 17-10-1999 and continued to be a jail inmate till his death which occurred on 8-2-2000. He suffered severe injuries while he was involved in wrestling with Babu Dandegaonkar, a jail guard, on 19-1-2000 and consequently came to be shifted to the hospital where he breath his last.
7. The first question which arises for consideration is whether Anil, in the fact and circumstances of the case, can be said to have met with custodial death? In this regard, the learned A.P.P. has vehemently contended that Rule 12 of Chapter XIX of the Prison Manual specifically requires that the prisoners should be encouraged to play such games as can be suitably arranged in the premises of the prison and Anil having himself volunteered and insisted for playing wrestling game with Babu Dandegaonkar-jail guard and in the process of such game having suffered injury which resulted in his death nearly after three weeks from the date of the incident, the case cannot be said to be a custodial death giving cause for claiming compensation in favour of the petitioner. While considering this contention, it would be necessary to scan through the provisions of law contained in Jail Manual.
8. Undoubtedly Rule 12(i) of Chapter XIX of the Maharashtra Prison Manual provides that 'prisoners shall be encouraged to play such games as can be suitably arranged in the premises of the prison'. The said rule apparently cast obligation upon the prison authorities to encourage the prisoners to play various games which can be suitably arranged in the premises of the prison. The Rule 12 by itself neither prescribes for nor bars the active involvement of the prison staff in such games with the prisoners. The rule, on plain reading thereof, discloses the prisoners themselves to be encouraged to play the games amongst themselves. Undoubtedly that would not mean that participation by the jail staff in such games with the prisoners is prohibited. However, whether such involvement of jail staff is permissible or not, cannot be considered by referring to the said Rule 12 alone which, as already observed, on the face of it neither speak of permissibility of such involvement of jail staff in such activities nor prohibits the same. It will be, therefore, necessary to go through the other provisions of law relevant for the decision.
9. The Rule 11 of Chapter XIII of the Jail Manual deals with the necessity of celebrating National festivals like Republic Day and Independence Day in the jail premises. Clause (iv) of the said Rule 11 provides that on such occasions of National Festivals, prisoners should be allowed to have such sports activities as may be considered feasible. Rule 12(i)(a) of the said Chapter provides that the prisoners may be permitted on such occasions to perform dramas. However, dramas selected should be without objectionable scenes and should, as far as possible, attempt to impress on the minds of prisoners noble ideas such as brotherhood, co-operation, settlement of disputes by compromise the evils arising out of family feuds etc. and no female roles should be enacted in the dramas to be performed in the male section of a jail. Clause (b) of Rule 12 thereof provides that no outsider should be allowed to take any part in any capacity in any such dramatic performance or other entertainment on the jail premises, except with the specific permission of the Inspector General. Clause (ii) of Rule 12 provides that the Superintendent may, in his discretion permit a prisoner's drama to be staged outside the jail, but on the jail premises provided the prisoners concerned volunteer. Rule 4 of the said Chapter provides that the superintendent shall, subject to any order of Government, the Inspector-General, and the D.I.G. (Regional) be in charge of the executive management of the prison in respect of all matters relating inter alia to internal economy discipline, labour, expenditure, punishment and control in general. Rule 6 thereof provides that no member of the staff of prison establishment shall use physical force against a prisoner except when compelled to do so in self-defence or to restrain a refractory prisoner. It further provides that no officer subordinate to the Superintendent shall punish or direct the punishment of any prisoner and no member of the prison staff shall use coarse or unbecoming language towards a prisoner and every complaint made by a prisoner shall be heard with attention in order that, if genuine, it may be redressed and that no legitimate cause for discontent may be allowed to remain. Rule 24 of the said Chapter speaks of punishments to the jail staff. Accordingly sub-clause (b) of Clause (i) of Rule 24 provides that the members of the jail staff would be liable to be prosecuted under section 54(1) of the Prisons Act, 1894 if any offences under section 42 of the Prisons Act relating to the introduction of or supply to prisoners of forbidden articles, unauthorised communication with prisoners and abetment of such offences is/are revealed. Further Rule 25(iii) provides for prosecution of the jail officer under section 54(1) of the Prisons Act in case of striking a prisoner, except in self defence or to suppress an outbreak, or unlawfully punishing any prisoner and further under Clause (vi) employing a prisoner for private purpose contrary to Rules. Rule 27 of the said Chapter provides that any jail officer sentenced to imprisonment by a Criminal Court shall be dismissed from service, except when retention is authorised by Government and or the Inspector General on account of considerations such as long service, good character, and the petty nature of the offence for which he was convicted and that the order of dismissal shall not, however, be passed till expiration of the period allowed for appeal and till decision of the appeal in case an appeal is filed, and in the meanwhile, the convicted official shall be continued under suspension.
10. Chapter XIV, Rule 14 of the Prison Manual deals with the functions and duties of Senior Jailor and Clause (a) thereof requires the Senior Jailor to ensure safe custody of prisoners. Clauses (b) thereof requires enforcement of discipline among subordinate officers and among prisoners. Clause (d) requires report to be made to the Superintendent in cases in which disciplinary action for any misconduct on the part of a prisoner or a subordinate officer may be necessary. Further in terms of Clause (h), Senior Jailor is required to report to the Superintendent without delay in fact or circumstances likely to affect the security of the prison and the health and discipline of the prisoners; and also bring to the notice of the Superintendent any fact or circumstance likely to affect the efficiency of any subordinate member of the establishment. Rule 25(20) further makes a duty of a prison guard to report to the higher authority any breach of any Prison Rules.
11. The provisions contained in the Prison Manual including the provisions of Rule 12 of Chapter XIX would disclose that the encouragement to the prisoners to participate in games and sports activities does not disclose any participation of jail staff in such games with the prisoners. No doubt in order to encourage the prisoners to play such games and sports, it may be necessary for the jail staff to teach some of the prisoners various games. Teaching of the various games and sports activities to the prisoners and active participation in such activities by the jail staff cannot be equated with each other. And in no case active participation in games and such activities with the prisoners by the jail staff for the purposes of practice and experience to the jail staff or to ensure that the performance of the jail staff in their annual sport meet is improved can be said to be part of the encouragement to the prisoners to participate in sports and games. In other words, the provisions of law contained in Rule 12 are necessarily meant for the benefit and with the intention of encouraging the prisoners themselves to take part in games and not for the purpose and intention of improve the performance of jail staff in their sport activities. Besides Rule 25(vi) or Chapter XIII clearly prohibits any prisoners to be utilized for private purpose by any of the member of the jail staff. Clause (iii) of Rule 25 debars the jail staff from striking a prisoner, except in self defence or to suppress an outbreak, or unlawfully punishing any prisoner. Being so, utilizing the skill of the prisoners for improving the performance of the jail staff in any game or sport activities in the annual meet of jail staff will be certainly in contravention of Rule 25 Clause (vi) of the Prison Manual. It will clearly amount to utilizing or employing the prisoner for the private benefit of the jail staff and, therefore, in violation of the provisions of the Jail Manual and in no way it will be in compliance with Rule 12 of Chapter XIX of the Jail Manual.
12. The provisions of law contained in Rule 12, Chapter XIX of the Jail Manual cannot be read ignoring the other provisions of the Jail Manual. On the contrary, rule of harmonious reading would require all the provisions of the Jail Manual to be taken into consideration while considering the issue relating to encouragement to the prisoners to take part in sport activities. Besides Rule 12 itself prescribes that the prisoners shall be encouraged to play such games as can be suitably arranged in the premises of the prison. Apparently the games are necessarily to be of such a nature which can be 'suitably arranged' in the premises. The main idea behind encouraging the prisoners to take part in sport activity is from the point of view of bringing reformation in the prisoners as well as and as far as possible to make them to keep themselves healthy. Certainly the authorities in that regard will have to bear in mind that any activities which can encourage to fight or to use physical force against each others cannot be said to be a game which can be suitably arranged in the prison premises. Wrestling can kindle the idea of use of physical force against the opponent. The prisoners who are admitted in the prison are necessarily on account of offences committed by them. It cannot be forgotten that most of the time such prisoners are the victims of social disorder and improper guidance to such prisoners during their prime age and non-availability of necessary and conducive atmosphere to developed their personality which can make them responsible citizens and being so the course of reformation to such prisoners cannot include activities which can deteriorate their personality and encourage them to commit further crimes and offences. Any activity which encourages a fighting nature attitude or conduct amongst the persons grown in such polluted atmosphere, in those cases rather than bringing about desired effect of reformation of such persons, can lead to disastrous result. This is what the prison authorities have to remember while arranging 'suitable games' within the premises of the prison.
13. Wrestling is known to be a sport or activity of grappling with an opponent and trying to throw or hold him down on the ground, according to the code of Rules. The term 'wrestle' means to take part in a fight, either as a sport or otherwise which would generally involve grappling with one's opponent and trying to throw or force them to the ground. The term 'wrest' is used to mean forcibly pull something from a person's grasp or take something under power or control from someone even overcoming any amount of difficulty. The word 'grapple' means to 'engage in close fight or struggle without weapons or to seize hold of someone. The term 'fight' without use of weapon implies taking part in a violent struggle involving exchange of physical blows or force. The struggle would involve making forceful or violent efforts to get free of restraint or constriction. The wrestling, therefore, necessarily discloses use of physical force against another to throw such person on the ground and/or to hold him on the ground, while the other is also encouraged to perform the similar activity in contra. Can such a sport or game be considered a 'suitable' game in the jail premises? The term 'suitable' would certainly mean the thing or act which is right or appropriate for a particular person, purpose or situation. Considering the fact that the jail inmates and particularly the convicts are confined to the jail premises by way of punishment for commission of a criminal offence and undoubtedly they are required to be provided with reformative measures, such measures are necessarily be suitable for reformation and not to encourage either the criminal activity or the human instinct which would lead to commission of acts destructive of public tranquility and the acts prohibited by law, or even immoral acts. In any case, therefore, wrestling cannot be said to be a suitable game to be organized within the jail premises.
14. It is pertinent to note that besides the argument on behalf of the respondents that there was consent on the part of the deceased Anil to participate in a wrestling, there is no material placed on record to support the said contention. Besides consent for wrestling cannot be construed to consent for physical violence on the person of Anil by the jail authorities including person who has been accused of being responsible for death of Anil and against whom the criminal case has been registered. The record apparently, therefore, discloses that Anil was subjected not only to the illegally on the part of the jail authorities but was virtually tortured for the benefit of the jail authorities who wanted to attain excellence in the game of wrestling as they were interested in participating wrestling competition scheduled to take place for such authorities at Pune.
15. As regards the torture and custodial violence, the Apex Court in D.K. Basu v. State of W.B., reported in : 1997CriLJ743 , has clearly ruled thus:
'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 human civilisation.
'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 back warding of humanity must on each such occasion by half-mast.
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 experience is beyond the purview of law.
'Custodial violence' and abuse of police power is not only peculiar to this country, but it is widespread. It has been the concern of international community because the problem is universal and the challenge is almost global. The Universal Declaration of human rights in 1948, which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights, stipulates in Article 5 that: 'No one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.' Despite the pious declaration the crime continues unabated, though every civilised nation shows its concern and takes steps for its eradication.
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. 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 policemen 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.'
16. The very fact that the respondents have arrived at the conclusion about the involvement of the jail guard in death of Anil and, therefore, has initiated criminal proceedings against him apparently discloses the cause of death of Anil being that he was subjected to the custodial torture and that would also justify the claim of the petitioner for compensation in this petition.
17. The Apex Court in the State of A.P. v. Challa Ramkrishna Reddy and others, reported in : (2000)5SCC712 , has held that right to life is one of the basic human rights and it is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that right. It is further held that a prisoner, be he a convict or undertrial or a detenue, does not cease to be a human being and even lodged in the jail, he continue to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution. Besides, it has been also ruled that 'on being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rights'.
18. In D. Bhuvan Mohan Patnaik v. State of A.P., reported in : 1975CriLJ556 , it was held that:
'The security of one's person against an arbitrary encroachment by the police is basic to a free society and prisoners cannot be thrown at the mercy of policemen as if it were a part of an unwritten law of crimes. Such intrusions are against 'the very essence of a scheme of ordered liberty.'
19. The Apex Court in Charles Sobraj v. Supdt. Central Jail, Tihar, reported in : 1978CriLJ1534 , has clearly warned that 'the right to life is more than mere animal existence, or vegetable subsistence' and 'the worth of the human person and dignity and divinity of every individual inform Articles 19 and 21 even in a prison setting' and that 'a prisoner does not forfeit his Part III rights'.
20. Anil apparently was used for the benefit of jail staff and not to encourage his participation in the sports activity. This is apparently a case of violation of human and fundamental right of the deceased Anil. There is nothing on record as to how the prisoner was allowed to be used in such a manner contrary to the Rules disclosed from the jail manual. There is nothing on record as to how the premises within the jail were allowed to be used by the jail staff for their own benefits? Who had granted such permission to them? Under what authority? What precautions were taken? There is apparently no explanation for such misuse of the prisoners for the benefit of jail staff. The acts on the part of jail staff cannot be said to be bona fide. In fact they lack bona fide and smacks of mala fide. Why no action against all those who are responsible for such illegal activities in the jail has been taken? Respondents are totally silent on all these points. It is really surprising that inspite of the fact that the respondents have arrived at the finding that the jail guard is responsible for the death of Anil while the latter was in custody, no departmental action has been taken against the said jail guard till this date. It is not understood as to what has prevented the respondents from taking an appropriate action in that regard till this date. At least no explanation is forthcoming in that matter from the respondents. Being so, it is necessary for this Court to direct the respondents to take appropriate action departmentally against the person or persons who prima facie found to be responsible for the death of Anil and to initiate proceedings against him or them, as the case may be, in accordance with the law forthwith. The respondents are expected to keep this Court informed about any such action taken and ultimate decision thereon and to file proper report in that regard. On such report being filed in the office of Additional Registrar, the same shall be placed before this Court for whatever order or direction which may require in the matter.
21. The admitted facts are that Anil was in the jail and was not released therefrom till his death. Undisputably Anil was victim of illegal, unauthorised and abusive acts on the part of jail staff and the jail authorities and that too for their selfish benefits. Anil was virtually used in inhuman manner to test the excellence gained by the jail staff in wrestling game. It was a total abuse of powers with least respect for human dignity of the jail inmates and in particular the deceased. The Apex Court in Nilabati Behera (Smt.) Alias Lalita Behera v. State of Orissa and others, reported in : 1993CriLJ2899 , has ruled that enforcement of the constitutional right and grant of redress embraces Award of compensation as part of the legal consequences of its contravention and Award of compensation in a proceeding under Article 32 by the Supreme Court or by the High Court under Article 226 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. The Apex Court therein has ruled 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.'
22. As regards the question of compensation, admittedly as per the say of the respondents themselves, Anil was a good worker and best player. Loss of such person to his family can hardly be measured with the monetary compensation. The petitioner has claimed the compensation of Rs. 3,00,000/-. We do not find it either exorbitant or unreasonable. The deceased being victim of barbaric treatment by the servants of the State, it is primarily the responsibility of the State to pay the compensation with the right to recover the same from its servants who are responsible for the custodial death of Anil after holding inquiry in that regard and fixing the liability.
23. In the result, therefore, the petition succeeds. The respondent/State is directed to pay compensation of Rs. 3,00,000/- to the petitioner within a period of six weeks from today and to file the compliance report in that regard on or before 1-7-2003 which should be placed before the Court in the week commencing from 7th of July, 2003. The compliance report should be filed by the respondent No. 1. The respondents are required to hold necessary inquiry to fix up the responsibility to contribute the said compensation and shall take necessary steps in accordance with the provisions of law to recover the same from those persons. The compliance report in that regard be filed on or before 31-3-2004 and shall be placed before the Court in the week commencing from 5th of April, 2004. The respondent No. 1 is further directed to initiate necessary proceedings against all the persons responsible for the custodial death of Anil and to take legal action against those persons. The compliance report in this regard also to be filed on or about 31-3-2004 and to be placed before this Court in the week commencing from 5th of April 2004. Rule is made absolute accordingly with costs of Rs. 2,000/- in favour of the petitioner.