V.D. GYANI, CJ. (ACTG.)

(1.) Heard learned counsel Mr. A. Thakur for the Petitioner.

(2.) By this writ petition under Article 226 of the Constitution, the Petitioner, Assam Chah Mazdoor Sangha, Golaghat Branch, affiliated to INTUC, has espoused and highlighted the case of custodial death of a labour boy aged about 14 years (by name Romanchal Deep Tanti), who was picked up by one Asstt. Sub-Inspector of Police attached to Ghiladhari Police Station on 5.9.1994 from his house. No warrant of arrest, nor any ground of arrest was disclosed to either the boy or his family members while taking him away to the police station, where he was confined for a couple of hours and subjected to interrogation in connection with an alleged theft which had occurred in the tea garden and thereafter let off. Next day, i.e. on 6.9.94, the same Asstt. Police Sub-Inspector along with a pose of constables again came to the house of Ramanchal Tanti around 6.30 P.M. on 6.9.94 and the boy Ramanchal Tanti along with Bikram, Mahananda, Bijoy Tanti, Abhiram Deep and Romench Deep were taken into custody without disclosing the reasons thereof. While others were released, Romanchal was detained in the lock up. On 8.9.94, the ASI, Kamal Mohan came to the house in the small hours only to inform his mother that she should immediately accompany him to Golaghat, Romanchal father was not present, his mother got ready and proceeded in a vehicle provided by the Police to Golaghat along with one Joyram. Having waited in the police station for quite sometime, Joyram was informed by police that Romanchal Deep had committed suicide by hanging, thereafter they were taken to the Civil Hospital, Golaghat. Keeping them out, the Police personnel went inside the hospital then a woman called back Panchu Tanti and after that the mother was called to have a look at the dead body of her son. She noticed multiple injuries on his forehead, she was not shown the whole body. The mother demanded the dead body which was refused on excuse that it was decomposed and it was disposed of by the police.

(3.) The writ petitioner association came to know of the incident and the entire developments. They approached the authorities including the then Chief Minister and Ministers insisting for a judicial enquiry but to no avail. As a last resort, this petition has been filed praying for (i) direction to the Respondents to institute judicial enquiry, (ii) to direct investigation by CBI, (iii) suitable compensation to the mother and family members to the tune of Rs. 1 lakh.

(4.) By order dt. 29.9.94 notices were directed to be issued. Accordingly, the Respondents have entered appearance and filed their counter affidavits. The Respondent No.2, Deputy Commissioner, Golaghat while denying the allegations made has explained the circumstances commencing from the lodging of the FIR on 6.9.94, by one Dinanath Tanti at Ghiladhari Police Station to the effect that on 28.8.94 some unknown miscreants had intruded into his shop committing burglary and theft of articles worth Rs.60,000/-. The garden Manager was informed of the incident. As per affidavit he was convinced of the fact that theft was committed by Romanchal Deep, whose age has been described around 18 years. A preliminary investigation was conducted. A test identification parade during investigation has been held, as can be gathered from paragraph 7 of the affidavit-in-opposition. As for visit of Smti. Ruma Tanti, the mother of Romanchal Tantito civil hospital, Golaghat it is stated that she was brought there when post-mortem examination was to be conducted on the dead body and the dead body was shown to her. She moved a petition for handing over of the dead body before an Executive Magistrate and the dead body according to the affidavit sworn in by D.C. was in fact handed over in presence of an Extra-Asstt. Commissioner and Executive Magistrate, Golaghat along with other witnesses. It is significant to note at this stage that the name of the Extra-Asstt. Commissioner is not disclosed in the affidavit. Annexure-C is the photocopy of the application alleged to have been filed by the mother before the Executive Magistrate and Annexure-D is the Zimmanama. The English translation thereof is reproduced hererunder as ready reference, the original being in Assamese.

"To Srimati Krishna Gohain,

Executive Magistrate, Golaghat,

Dated : the 8th September, 1994.

Sub-Cremation of dead body.

Madam,

Humble submission is that my son, Romanchal Deep committed suicide by hanging himself in the lock up of Ghiladhari Police Station on 7.9.95. The body was brought to Golaghat Civil Hospital and autopsied there as per procedure. The body has become decomposed and found smelling. We do not want to take the body back to Ghiladhari after post mortem examination and want to dispose it off duly in cooperation with the police.

So your goodself is requested to grant us permission to perform the last rite of the body at Golaghat cremation ground and oblige.

attested Yours faithfully,

Sd/- Illegible L.T.I, of Smt. Runha Dip.

8.9.94 W/O Sri Budhu Ram Dip,

Line No. 4, Kamugmri T.E.,

P.S.Ghiladhari

Permission granted

Sd/- Krishna

8.9.94 Ext. 6(1) provided in original

Sd/- Illegible

23.2.96

Inquiry Officer cum

District & Sessions Judge,

Golaghat

Witness : Sd/- Jayram Bhakta,

son of Late Luku Bhakta"

(5.) After hearing the parties this Court directed to conduct an enquiry to be held by Sessions Judge, Golaghat who in compliance of the Courts direction submitted his report on examination of witnesses and the documents placed before him. The findings recorded by the learned Sessions Judge, which is material for the purpose of disposal of the petition at hand, is as follows : "It appears from the statement of the Petitioner and other witnesses on behalf of the Petitioner that the deceased died in the police custody due to the inhuman torture meted to him by the police officials. This has been focussed from the statement of co-accused Abhiram Deep Tanti and the mother of the deceased."

"It also discloses that the deceased was brought to the police station on 6.9.94 and he was arrested on 7.9.94. It further transpires from the G.D maintained by Ghiladhari P.S. Chat the deceased was brought by one Dinanath Tanti in a theft case as he was suspected in the commission of theft at his shop house and the deceased was kept at police custody for interrogation etc. But he was shown arrested on the following date i.e. on 7.9.94. The record maintained by the learned CJM, Golaghat does not disclose that copies of the entries of the Diary of the case dtd. 6.9.94 and 7.9.94 under reference have been transmitted to the nearest Magistrate as required U/S 167 Cr.P.C."

(6.) The stand taken by the Respondent is that Romanchal Deep Tanti committed suicide while in police custody. The verification of the affidavit to the point sworn by the D.C. is as follows : "That with regard to the statements made in paras 16, 17, 18 and 19 of the writ petition this deponent begs to state that he has no comments to offer."

(7.) This affidavit, to say the least, is not worth the paper on which it is typed, it does not make a minimal requirement of Order 19 Rule 1 CPC. Except paragraph 1 which relate to the deponents name, parentage, vocation and resident, para 10 which relate to opinion of the Medical Officer in the post-mortem report, paragraph 12 which relate to the authority to supply the post-mortem report and paragraph 14 relating to the Magisterial enquiry and completion thereof under orders of the deponent, the rest of the statements as contained in paragraphs 5, 6, 7, 8, 9 and 10 are claimed to be true on information derived from record and the record as placed are the photostate copies of Annexure-A, B, C and D. Annexure-A relates to the date of birth, Annexure-B is the First Information Report while C and D purported to be the application made by the mother of the deceased under her thumb mark. Annexure-E is the Post-Mortem Examination Report, which was conducted on 8th September, 1994.

(8.) With all these material and the affidavit filed by the Deputy Commissioner of the district, what is more significant to be noted is that the Officer-in-Charge of the Police Station who could have been the best person to depose to the effect, rather theory of suicide as propounded by the Respondents, has assiduously avoided swearing an affidavit in support of the Respondents claim. As already noted above, the affidavit sworn by the D.C. is not based on his first hand information, it is based on record which as rightly observed by the District and Sessions Judge has been conveniently tailored and tampered.

(9.) Mr. A.K. Goswami, learned panel lawyer appearing for the Respondent state has referred to the affidavit filed by the deponent Rupeswar Borgohain on 1st February, 1995, who at the time of filing of the affidavit was the Officer-in-Charge of the Ghiladhari Police Station. It does not stand to reason, what prevented the State from filing the affidavit of that Police Officer who was the Officer-in-Charge of the Police Station at the material time, i.e. 6.9.94 onwards when the incident, described as suicide by the Respondents, had taken place. It is nobodys case that the then Officer-in-Charge was not available to the Respondent state for swearing an affidavit. The State is seem banks upon the borrowed oath of those who was not even remotely connected with the incident. Kamal Mohan, the A.S.I, who reportedly visited the house of Ruma Deep has come forward to file an affidavit. It was he who took up the body in connection with the alleged theft. It was he who had come again to inform and asked the old lady to accompany him to the hospital. The police personnel present in the hospital declined to handover the dead body they were all kept back. The record shows, Annexure-E, as filed by the Respondent, Post Mortem Examination Report, it was Havildar Ramdeo Singh who had taken the dead body to the hospital for post-mortem examination. He does not come forward to say in what condition the dead body was taken. The Requisition form for holding post-mortem examination, is not placed on record. Inquest Report, if any, is not produced and be it noted, an A.S.I, is not authorised u/s 174 Cr.P.C. to ask for post-mortem examination of a dead body, it is only Sub-Divisional Magistrate, specially empowered, who can order postmortem examination. Although the D.C. in his affidavit has referred to a Magisterial enquiry and its completion report is withheld. It is not to suggest that such report are to be implicitely relied upon but all these documents could have thrown some light on truth of the matter.

(10.) If the story as sought to be suggested by the Respondent is true that Romanchal committed suicide, naturally, the first question that arises is what the constable or Havildar was doing, could he not prevent it or atleast inform his higher police officer present there Suicide by hanging must have preceded by some prior, arrangements, it is nobodys case that the police constable posted on duty were all along dozing or sleeping, as such, they could not see as to what was happening in the police lock up. Whether the rope was supplied by the police or by what means he could hang himself, these are the questions which remain unanswered in the affidavits filed by the D.C. and the incumbent O.C. Naturally, going by the record, their affidavits are bound to be discrepant as they infact are tortured and as the most heinous of crime committed, it is a sin against humanity, as has been observed by the Apex Court in D.K. Basu - Vs- State of West Bengal, 1997 (1) SCC 416 [LQ/SC/1996/2231] : Custodial death is perhaps one of the worst crimes in a civilised society governed by rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him Can the right to life of a citizen be put in abeyance on his arrest These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic "No". The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof become 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 or 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. "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 one "strong" over the "week" by suffering. The word "torture" today has become synonymous with the darker side of the human civilisation. "Torture" is a wound in the soul so painful that some times you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralyzing 5s sleep and dark as the abyss. Torture is dispair and fear and rage and hate. It is a desire to kill and destroy including yourself." - Adriana P. Bartow.

(11.) No violation of any one of the human rights has been the subject of so many Conventions and Declarations as "torture" - all aiming at total banning of it in all forms, but in spite of the commitments made to eliminate torture, the facts remains that torture is more widespread now than ever before. "Custodial torture" is a naked violation of human dignity and degradation which destroys, a very large extent, the individual personality. It is a calculated assault of human dignity and whenever human dignity is wounded, civilisation takes a step backward - flag of humanity must on each occasion fly half-mast.

(12.) In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lockup. Whether it is physical assault or rape in police custody, the extent of trauma, a person experiences is beyond the purview of law." 11. Referring to the Report of Sir Cyril [Philips Committee and the suggestions made by the Royal Commission, the Apex Court has dealt with Article 21 of the Constitution of India in the following words - "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 arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and he shall not be denied the right to consult and defend himself by a legal practitioner of his choice. Clause (2) of Article 22 directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate. Article 20(3) of the Constitution lays down that a person accused of an offence shall not be compelled to be a witness against himself. These are some of the Constitutional safe guards provided to a person with a view to protect his personal liberty, dignity and basic human rights of the citizens. Chapter V of the Criminal Procedure Code, 1973 deals with the powers of arrest of a person and the safeguards which are required to be followed by the police to prolect the interest of the arrested person. Section 41 Cr. P.C. confers powers on any police officer to arrest a person under the circumstances specified therein without any order or warrant 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 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." 12. Taking note of growing custodial deaths and violence as disturbing factor the Supreme Court Has also referred to the Third Report of the National Police Commission in India expressing its deep concern with custodial violence and lock-up deaths, its demoralising effect which custodial torture is creating on the society as a whole and the suggestions made by the [Police Commission as regards arrest during investigation of a cognizable case may be consiidered justified in one or other of the following circumstances.

(i) The case involves a grave offence like murder, decoity, robbery, rape etc. and it is necessary to arrest the accused and bring his movements under restrain to infuse confidence among the terror-stricken victims. (ii) The accused is likely to abscond and evade the process of law. (iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint. (iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offence again. It would be desirable to insist through departmental instructions; that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines.

(13.) Having examined its earlier judgments as reported in Joginder Kumar -Vs- State of U.P. (1994) 4 SCC 260 [LQ/SC/1994/459] , Nilabati Behera-Vs- State of Orissa, (1993) 2 SCC 746 [LQ/SC/1993/275] , State of M.P.-Vs- Shyamsunder Trivedi, (1995) 4 SCC 262 [LQ/SC/1995/638] , Rudul Shah-Vs- State of Bihar (1983) 4 SCC 141 [LQ/SC/1983/178] , Sebastian M. Hongray -Vs- Union of India, (1984) 1 SCC 339 [LQ/SC/1983/349] . Bhim Singh-Vs- State of J and K, 1984 Supp, SCC 504, Saheli, A Womens Resources Centre - Vs- Commr. of Police, (1990) 1 SCC 422 [LQ/SC/1989/631] , Kasturilal Ralia Ram Jain - Vs- State of UP, AIR 1965 SC 1039 [LQ/SC/1964/250] , the Supreme Court noted that "indeed no express provision in the Constitution of India for grant of compensation for violation of a fundamental right to life, nonetheless, this Court has judicially evolved a right to compensation in cases of established unconstitutional deprivation of personal liberty or life" yet found a way out for compensation for unconstitutional deprivation of fundamental right to life and liberty as follows :- "44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Public law proceedings serve a different purpose that the private law proceedings. Award of compensation for establishment infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen. 45. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the Courts too much. The Courts have the obligation to satisfy the social aspirations of the citizens because the Courts and the law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim - civil action for damages is a long drawn and cumbersome judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family."

(14.) This is a case of established infringement of fundamental right to life of a citizen, as has been pointed out by the Supreme Court in D.K. Basu (supra). Any amount of compensation is just to apply balm to wounds and this award of compensation is without prejudice to any other action like civil suit for damage which is undoubtedly available to the petitioners irrespective of compensation that may be awarded. Seeking guidance from the reported case in Nilabati Behera (supra) where the Supreme Court awarded a compensation of Rs. 1,50,000/- with cost of Rs. 10,000/-, in Bihar Timung -Vs- Union of India and Ors., as reported in 1993(2) GLR 347, and Smti. Geeta Sangma -Vs- State cf Nagaland and Ors,, 1993(1) GLJ 340, this Court awarded rupees two lacs and rupees one lac fifty thousands respectively as palliative. There is always certain amount of guesswork involved in quantifying the amount of compensation. It would not be out of place to note that the finding as recorded by the learned District and Sessions Judge who was appointed to hold an enquiry into the whole episode. "It appears from the statement of the Petitioner and other witnesses on behalf of the Petitioner that the deceased died in the police custody due to the inhuman torture meted to him by the police officials. This has been focussed from the statement of co-accused Abhiram Deep Tanti and the mother of the deceased."

(15.) On recording the evidence of both the parties, he has further noted : "It also discloses that the deceased was brought to the police station on 6.9.94 and he was arrested on 7.9.94. It further transpires from the G.D. maintained by Ghiladhari P.S. that the deceased was brought by one Dinanath Tanti in a theft case as he was suspected in the commission of theft at his shop house and the deceased was kept at police custody for interrogation etc. But he was shown arrested on the following date i.e. on 7.9.94. The record maintained by the learned CJM, Golaghat does not disclose that copies of the entries of the Diary of the case dated 6.9.94 and 7.9.94 under reference have been transmitted to the nearest Magistrate as required U/S 167 Cr.P.C."

(16.) It is a case of custodial death of a labour boy hardly 14 years of age belonging to the weaker section of the society. The First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955 and approved by the Economic and Social Council by its resolutions 663 (XXIV) of 31 July 1957 has laid down certain standard and minimum Rules for the treatment of prisoners and Article 1 of the Code of Conduct for law Enforcement Officials adopted by the General Assembly laid down that - "Law enforcement officials shall at all times fulfil the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession."

(17.) Now in contra see the degree of responsibility and the protection with the Law Enforcing Agency afforded to the poor boy of 14. Article 2 further provides - "In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons."

(18.) As compared to life and liberty of a citizen, no right stands higher than other in the hierarchy of values to be protected by the Courts, it is neither a matter of innovation nor activism, it is a basic fundamental duty of the Court. When the conduct of members of the law enforcing agencies or executive and administrative officials when found to be not only unreasonable, but also violative of fundamental rights like life and liberty of a citizen, they are not entitled any immunity, they are also equally responsible and accountable for their actions. Even if in a given case the immunity is available against damages to such officials the complainant Plaintiff will not be left without relief. The case at hand is one of compelling necessity to award damages in the public law jurisdiction as has been pointed out by the Apex Court in D.K. Basu (supra).

(19.) This is a case where a young boy of 14