Tunilata Mallick Vs. State of Orissa and Others - Court Judgment

Excerpt:
bihar and orissa excise act - section 47(a) -- this writ petition has been filed by the widow of late hrusikesh mallick (for short, ‘deceased-husband’) praying for a direction to the opposite parties to award compensation of rs.10,00,000/- to the bereaved family and conduct an independent inquiry with regard to unnatural death of her husband. during that period the deceased was not allowed to meet his family members and no medicine was provided to the deceased by the jail authority. lastly on 03.10.2006, husband of the petitioner died. after death of the deceased, the concerned opposite parties did not furnish any information to the bereaved family. mr. b.n. panda, learned counsel appearing for the petitioner submits that the husband of the petitioner died at the age of.....1. this writ petition has been filed by the widow of late hrusikesh mallick (for short, ‘deceased-husband’) praying for a direction to the opposite parties to award compensation of rs.10,00,000/- to the bereaved family and conduct an independent inquiry with regard to unnatural death of her husband. 2. the case of the petitioner in a nutshell is that her deceasedhusband was a peace loving and law abiding citizen of the country. on 29.09.2006 at 10.30 a.m., opposite party no.4-excise inspector, jajpur conducted raid in the house of the petitioner and searched all the corners of the house without any search warrant from any of thecompetent authorities and found 1.50 gm liquor bottle in presence of the villagers. at that time, while the deceased-husband of the petitioner was.....

Judgment:

1. This writ petition has been filed by the widow of Late Hrusikesh Mallick (for short, ‘deceased-husband’) praying for a direction to the opposite parties to award compensation of Rs.10,00,000/- to the bereaved family and conduct an independent inquiry with regard to unnatural death of her husband.

2. The case of the petitioner in a nutshell is that her deceasedhusband was a peace loving and law abiding citizen of the country. On 29.09.2006 at 10.30 A.M., opposite party No.4-Excise Inspector, Jajpur conducted raid in the house of the petitioner and searched all the corners of the house without any search warrant from any of thecompetent authorities and found 1.50 gm liquor bottle in presence of the villagers. At that time, while the deceased-husband of the petitioner was returning from river after taking bath, opposite party No.4 arrested him without showing any reason and took him to the custody without giving any seizure list. At the time of taking her husband to the custody, he was neither suffering from any disease nor previously affected by any disease. On inquiry from Jajpur Police Station, she came to know that her husband had been arrested in connection with P.S. Case No.540 of 2006. Her husband was illegally detained from 29.09.2006 to 01.10.2006 and on 01.10.2006 he was surrendered before the nearest Magistrate and the learned Court below remanded him to jail custody on the very same day. During that period the deceased was not allowed to meet his family members and no medicine was provided to the deceased by the Jail Authority. When the deceased became senseless on 03.10.2006, the Jail Authority admitted him in D.H.H. Jajpur without informing the widow-petitioner or any other members of the family. Lastly on 03.10.2006, husband of the petitioner died. After death of the deceased, the concerned opposite parties did not furnish any information to the bereaved family. Though the petitioner submitted a report before the I.I.C., Dharmasala on 05.10.2006, the same was not registered by the police. Hence, the present writ petition.

3. Mr. B.N. Panda, learned counsel appearing for the petitioner submits that the husband of the petitioner died at the age of 32 years, due to custodial torture, which violates Article 21 of the Constitution. After arrest of the deceased, the opposite parties have not followed the general principle and guidelines of the Apex Court. No medical check up was conducted when he was put in jail. The petitioner has two minor children and also old ailing parents-in-law. The deceased was the only earning member of the family and the whole family was depending on his income. After death of husband of the petitioner, the petitioner is in a helpless condition having two small children and old parents of more than 70 years. The rule of law requires that the wrongs should not remain unredressed. Persons committing wrong should be liable to pay or to undergo criminal punishment. Had proper care been taken by the opposite parties, the deceased would not have died. Therefore, prayer has been made for adequate compensation.

4. Learned Government Advocate appearing on behalf of the State submits that there had been no negligence on the part of the opposite parties in taking proper care of the deceased while he was in jail custody. It was not on 29.09.2006 at about 10.30 A.M. but on 30.09.2006 at 11.30 A.M. the Sub-Inspector of Police, Dharmasala, Mr. Sankarsan Nayak seized 5 litres of ID liquor from the husband of the petitioner. Accordingly, the husband of the petitioner was booked in an Excise case under Section 47(a) of the Bihar and Orissa Excise Act vide Dharmasala Excise P.R. No.40/06-07 dated 30.09.2006. The seizure was made in presence of the independent witnesses. Memo of arrest of the accused (deceased) had been prepared at the time of arrest of the husband of the petitioner and the signature of one independent witness and the accused had been taken on that memo of arrest. The seized articles had been brought to the office of the Sub-Inspector of Excise and on the same day he was forwarded to the court of the S.D.J.M., Jajpur at about 5 P.M. There is no question of torture and ill-treatment to the accused (deceased) while he was in excise custody as the contraband ID Liquor had already been seized from the spot and the accused confessed his guilt. The order sheet of the learned S.D.J.M., Jajpur clearly shows that the husband of the petitioner had been forwarded to the Court of S.D.J.M., Jajpur on the very date of his arrest, i.e., on 30.09.2006. Further the records of the Sub-Jail, Jajpur also shows that the husband of the petitioner was remanded to Jajpur Sub-Jail on 30.09.2006 by the S.D.J.M., Jajpur. It is submitted that Section 54 of Cr.P.C. provides due opportunity to the accused to state before the learned Magistrate regarding his ill-treatment if at all meted out to him during the period of his custody by the officials of the Police Department or Excise Department. The order sheet of learned Magistrate clearly indicates that the accused had not raised any such complaint of ill treatment made by the excise staff of Dharmasala. Therefore, learned Government Advocate prayed for dismissal of the writ petition.

5. It is not in dispute that the husband of the petitioner died while in jail custody and at the time of death, the deceased was 32 years old. There is dispute between the parties with regard to the date of arrest of the deceased. According to the petitioner, her husband was arrested on 29.09.2006, whereas, according to opposite parties, accused was arrested on 30.09.2006. Though in the counter opposite parties denied the allegation of torture made by opposite parties, nothing has been stated in the said counter as to whether any medical test was conducted by the authorities and the guidelines provided by the apex Court were followed. It is not in dispute that the husband of the petitioner was the only bread winner of his family, on whom his wife, two minor children and also the old parents were depending.

6. Needless to say that the apex Court in several decisions has observed that the precious right guaranteed under Article 21 of the Constitution of India cannot be denied to the undertrial or other prisoners in custody, except according to the procedure established by law. The prison authority has a great responsibility to ensure that a citizen in custody is not deprived of his right to life. He must be afforded with minimum necessities of life.

7. The apex Court in the case of D.K. Basu v. State of West Bengal, AIR 1997 SC 610 held that :

 “Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rules of Law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. Court 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, under trials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.”

8. The term “life” used in Article 21 of the Constitution of India has a wide and far-reaching concept. It means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. (vide Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, AIR 1983 SC 109; Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors., AIR 1986 SC 1280; and Kapila Hingorani v. State of Bihar , (2003) 6 SCC 1).

9. At this juncture, it would be profitable to refer to the decision of the apex Court in D.K.Basu (supra) wherein the apex Court held as under:

“42. Some punitive provisions are contained in the Indian Penal Code which seek to punish violation of right to life. Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a corrupt or malicious motive. Sections 330 and 331, provide for punishment of those who inflict injury or grievous hurt on a person to extort confession or information in regard to commission of an offence. Illustration (a) and (b) to Section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330, therefore, directly makes torture during interrogation and investigation punishable under the Indian Penal Code. These statutory provisions are, however, inadequate to repair the wrong done to the citizen. Prosecution of the offender is an obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, not by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legal injury is compulsion of judicial conscience.

xxxx xxxx xxxx

55. Thus, to sum up, it is now a well accepted proposition in most of the jurisdiction, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element.

The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the Criminal Courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no straitjacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.”

10. In the facts situation, considering the age of the deceased and that he was the only bread winner of the bereaved family and died only after his arrest, we deem it just and proper to direct opposite partyState Government to pay ex gratia of Rs.1,00,000/- (rupees one lakh) to the bereaved family of the deceased within a period of two weeks from the date of receipt of a copy of this order. Out of Rs.1,00,000/- (rupees one lakh), Rs.40,000/- (rupees forty thousand) shall be kept in a fixed deposit in any nationalized bank in joint names of the widow-petitioner and her two children. Another Rs.40,000/- (rupees forty thousand) shall be kept in any nationalized bank in the names of old parents of the deceased. Both the fixed deposits shall be made initially for a period of five years and monthly interest accrued thereon shall be paid to the deposit holders. The old parents of the deceased and the widowpetitioner shall be paid Rs.10,000/- (rupees ten thousand) each in cash on proper identification.

11. With the aforesaid observation and direction, the writ petition is disposed of.