| SooperKanoon Citation | sooperkanoon.com/134013 |
| Subject | ;Criminal |
| Court | Patna High Court |
| Decided On | May-14-1997 |
| Case Number | Cr.W.J.C. No. 859 of 1996 |
| Judge | Choudhary S.N. Mishra, J. |
| Appellant | Ajmeri Khatoon |
| Respondent | State of Bihar and ors. |
| Disposition | Application Allowed |
Choudhary S.N. Mishra, J.
1. The petitioner is the widow of late Jannal: Ansari, who has been killed while he was under Police handcuffs in the Court premises, has filed this writ application under Article 226 of the Constitution of India for issuance of a writ of mandamus commanding the State and its officials to pay a sum of Rs. 10,000,00/- (ten lacs) by way of compensation and/or damages for failure to protect the life of her husband while her husband was in the Court premises under the police handcuffs. Further prayer of the petitioner in this case is for a direction to the respondents to pay monthly compensation at the rate of Rs. 2,000/- for maintenance of the petitioner and for education and maintanance of her minor daughter.
2. Admitted fact of this case is that the deceased Jannat Ansari was in judicial custody as an under-trial prisoner in an offence punishable under Section 302/34 of the Indian Penal Code. On 14.10.96 late Janna't Ansari was brought by the police under handcuffs from the Sasaram jail to Sasaram Court for his production in the Court of 1st Additional Sessions Judge, Rohtas when the petitioner under handcuffs alongwith police personnel reached near the Civil Court premises, he was shot by unidentified person which hit on his head, as a result he died immediately in the hospital. F.I.R. was lodged by the brother of the deceased, which was registered as Sasaram Town P.S. Case No. 558/96 under Section 302/307/324/34 of the Indian Penal Code including 27 of the Arms Act against five named accused persons. The post-mortem exmination conducted on 14.10.96 confirms the death due to fire arm injury on the skull. The age of the deceased at the time of occurrence was assessed at 23 years, who died leaving behind the widow-petitioner and one minor daughter aged 20 and 5 years respectfully. It is alleged that before taking into custody in the aforesaid criminal case, the petitioner's husband late Jannat Ansari was working at Bombay in a Textile factory at a monthly salary of Rs. 2,500/-. It is further alleged that the petitioner has no landed property and her father Rustam Ali aged about 60 years is not in a position to maintain the petitioner and her minor daughter. It is further alleged that after killing her husband it has become impossible to maintain herself and her minor daughter. In the premises it is alleged that the petitioner has been deprived of the very essence of her and daughter's life because of sudden demise of her husband and having no bread earner in her family and further having absolutely no source of income, it has become extremely difficult for the petitioner to survive her and her daughter any longer. The entire occurrence and the plight of the petitioner were subsequently highlighted in the various news papers, which is apparent from Annexure-3 to the writ application.
3. In this case, a counter-affidavit has been filed on behalf of respondents 4 and 5, namely, Inspector General of Prison, Patna, the Jail Superintendent, district Jail, Sasaram, wherein the mode and manner of the occurrence has not been denied. However, it is stated that the Prison Officials namely Inspector General of Prison and/or Jail Superintendent are not, in any way, concerned with the occurrence as the accused late Jannat Ansari was handed over to Sri Mahendra Singh, Assistant Sub-Inspector, Incharge of Court Hazat with 1-4 armed guard for production before the Court of 1st Additional Sessions Judge and, as such, they cannot be held responsible for failure to protect the life of late Jannat Ansari. Another counter-affidavit has also been filed on behalf of respondent No. 6 Superintendent of Police, Rohtas, Sasaram, wherein he has also not denied the mode and manner of the occurrence except that the police personnel has neither allowed the killer to reach near the deceased nor filed in their duties in protecting the life of the prisoner. It is, however,stated that since the police personnel alongwith the deceased entered into the campus of the Civil Court and because of the great rush in the campus of the Civil Court the killer succeeded in their attempt. According to him, the police personnel has discharged their duties and, as such, cannot be held liable for murder of late Jannat Ansari.
4. In view of the admitted facts, as stated above, now the question for consideration of this Court is whether the petitioner is entitled for the reliefs sought for in this writ application under Article 226 of the Constitution of India. Having regard to the law laid down by the Apex Court in the case of (i) Kewal Pati (Smt.) v. State of U.P, and Ors. reported in 1995 SCC (Cri.) 556, (ii) Smt. Nilabati Behera alias Lalita Behera v. State of Orissa and Ors. reported in 193 SC 1960, (iii) State of Andhra Pradesh and Ors. v. Surmalla Ramulu, reported in 1996 Cr. LJ 2854, (iv) Shakuntala Devi v. State of Bihar and 2 others reported in 1991 Vol II PLJR 494, the liability to pay such compensation and/or damages,in such cases, no longer less integrata and has rightly not been disputed by the learned AAG III in course of argument. The Apex Court as well as various High Courts in catena of decisions has held that grant of such compensation and damages under Article 32 by the Supreme Court and under Article 226 of the Constitution is appropriate remedy available to the aggrieved person based on a principle if and when the fundamental right of a citizen is contravened and/or denied by the State and its officials. Learned AAG III has faintly argued that the principle of sovereign immunity will apply in such cases but this submission seems to be fallacious in the present context- The principle of sovereign immunity is not applicable where the fundamental right of a citizen is contravened though to some extent this submission may be ayailable as a defence in a private law in a proceeding based upon tort.
5. In Kewal Pati Case (supra) it has been held by the Apex Court that the prisoner is equally entitled to Constitutional right and protection except to the extent deprive in accordance with law. In that case, deceased was killed by one of the co-accused while he was serving out his life imprisonment in Central Jail, Varanashi. The compensation was claimed both on law and on compassionate ground. It has been held that since the prisoner was killed when he was in Jail, which resulted in deprivation of life contrary to law and, accordingly, State Government was directed to pay a sum of Rs. 1 lac by way of compensation to the petitioner. In Smt. Nilabati Behera Case (supra) the fact of this case is that the Apex Court treated a letter sent by the petitioner as a writ petition under Article 32 of the Constituition with respect to the claim of compensation on account of death of the petitioner's son, who was aged about 22 years in police custody. The son of the petitioner was picked up from his home by Assistant Sub Inspector of Police in connection with some investigation of an offence of theft where he was detained in the Police Station. On the following day the petitioner came to know that deadbody of his son was found in the railway track. Sum and substance of the allegation was that said Suman Behera died While he was in the police custody and, accordingly, prayed for compensation to the petitioner, who was the mother of the deceased for contravention of the fundamental right guaranteed under Article 21 of the Constitution. In the case in hand, as stated above late Jannat Ansari died while he was in police custody under police handcuffs. On the admitted facts it has to be held that there has been a contravention and infringement of fundamental right, the presious right guaranteed under Article 21 of the Constitution cannot be denied and/or in any manner, doubted even to the convicts and other under trial including such person in custody except in accordance with due process of law. The responsibility is of the more greater on the police as well as the prison authorities to protect the life of a person who is in their custody and not to any way deprive of his/her right to life. It is well settled principle of law by now that the State and its agencies are wholly responsible if the person in custody either as an under trial and /or convict is deprived of his life except in accordance with the procedure prescribed under the law. In that view of the matter, I do not agree the defence of sovereign immunity in such cases, as submitted by Mr. Ganga Prasad Roy, AAG III and rightly Mr. Roy has conceeded and ultimately thought it not to take such defence, The Apex Court while dealing with the case of violation of the petitioner's right to personal liberty under Article 21 of the Constitution in paragraph 34 has held as follows:
'This C ourt and the High Courts, being the protectors of the Civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant reliet 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 (1993) 3 SCR 508 : AIR 1993 SC 1086, granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 32 or 226 of the Constitution of India, notwithstanding the rights available under the Civil law to the aggrieved party where the Courts found that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in that spirit that the Courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the Courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental rights of a citizen under Article 21 is concerned. Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the Courts have to act firmly but with certain amount of circumspection and self- restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for Civil action in private law. Some of those situations have been identified by this Court in the cases referred to by Brother Verma, J.' and ultimately the Court for the reasons recorded therein directed the State to pay a sum of Rs. 1,50,000/- to the petitioner and a sum of Rs. 1000/- by way of cost. In the case of State of Andhra Pradesh {supra) the fact of this case is that the petitioners who were father, mother and the wife approached the High Court under Article 226 of the Constitution for grant of compensation on account of death of their son while he was under-going life sentenced within the jail premises. A Division Bench of Andhra Pradesh High Court relying upon several decisions of the' Supreme Court as well as the different High Courts has held in paragraph 12 as follows:
'In the light of the legal conspectus and the principles laid down as to the power of this Court under Article 226 of the Constitution to award monetary compensation for contravention of a fundamental right and respectfully following the ratio laid down therein, it has to be held that compensation be awarded instead of diverting the claimant to resort to ordinary process of recovery of damages by recourse to an action in tort. We are therefore of the opinion that the State is liable to pay compensation of the death of Shankar. Which resulted due to failure of authorities to protect him.' In Shakuntala Devi case (supra) the petitioner approached the High Court under Articles 226 and 227 of the Constitution for issuance of a writ of mandamus commanding the respondents to pay compensation on account of death of the husband who was killed by police personnel, who was deputed in the village to maintain law and order. Both the police personnel went to the shop and asked for cigarette in absence of the husband of the petitioner and the petitioner was alone when the cigarette was handed over to the said police personnel, they caught her and attempted to commit rape. On alarm being raised, her husband came and picked up a knife kept in the shop and in order to save his wife inflicted kinfe injury to one of the constables. The police constable, thereafter, forcibly took the husband near the village school and fired at him as a result he died on the spot. In order to escape the criminal liability, the police registered a case against Ratan Sao and some other persons which was registered as Kowakole P.S. Case No. 23 of 1984. The petitioner was not allowed to go out and kept confined in a house. Ultimately she managed to escape and lodged a complaint before the Chief Judicial Magistrate. Meanwhile a villager namely, Saket Bihari Singh sent a petition to the Chief Justice of India giving the details of the fact with a prayer for enquiry by the C.B.I, or any independent agency with a further prayer for payment of compensation to the petitioner. The said petition was sent to the High Court on the basis of which Cr. W.J.C. No. 180 of 1984 was registered. Accordingly, this Court directed an enquiry by the Superior Police Officer. Ultimately the enquiry report was submitted by the Deputy Inspector General of Police (Anti- Dacoity) fully supported the allegations made by he petitioner. The Division Bench of the Patna High Court relying upon various decisions of the Apex Court has held that the petitioner is entitled to compensation for the damages sustained by her on account of the murder of her husband by the employee of the State.
6. I have heard the learned Counsel for the parties and perused the material available on record, particularly having regard to the admitted facts, I am of the view that the State and its officials cannot escape their responsibility on the ground that they have taken all care and precaution in protecting the said detenue Jannat Ansari. The petitioner, who is the widow of the deceassed, in distress, has approached this Court for the reliefs in terms of the prayer made hereinabove with a heavy heart and tearful eyes with a minor daughter who has been left uncared in absence of bread-earner. This Court in exercise of its power under Article 226 of the Constitution has a bounden duty to compensate the aggreived person though the precious life cannot be restored to such victims. The husband of the petitioner was killed under handcuffs while he was in police custody. In such situation the State has to answer for every unlawful and negligent act committed by its instrumentilities and the State and its instrumentalities are to be held responsible for such act on their part. The Supreme Court in the case of Rudul Sah v. State of Bihar, reported in 1983 SC 1086, has held as follows:
'Article 21 which gruarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulet its violaters in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others too well known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals 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.'
7. Having regard to the facts and circumstances at this case and further having regard to the principles laid down by the Apex Court in the cases, referred to above, 1 direct the State to deposit a sum of Rs. 1,000,00/- (one lac) with the Registrar General of this Court within six weeks from the date of receipt/production of a copy of this judgment. Out of which a sum of Rs. 50,000/- shall be kept in Fixed deposit in any Nationalised Bank and the interest accuring therefrom shall be paid to the petitioner-widow. The Registrar General will pay a sum of Rs. 50,000/- to the petitioner after having ascertained her identity. Rs. 50,000/- will remain in deposit till the daughter of the petitioner attends majority when the said amount will be paid to the mother.
8. In the result, this writ application is allowed to the extent indicated above at the admission stage itself.