Dukhuram v. State Of Chhattisgarh & Others

Oral Order

(WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSITUTION OF INDIA)

1. This petition has been filed by the petitioner, for grant of compensation of Rs.2,50,000/-, on account of death of his son while in the custody of respondents No.3 and 4.

2. Deceased-Khikhram was the son of the petitioner. On an allegation of theft, the deceased-Khikhram was arrested by the police. In order to recover articles alleged to be hided in a secret place by the deceased-Khikhram, he was brought to Kumhiya pond of village-Raipura, Police Station-Baradwar by respondent No.3 and 4 along with one home guard. During investigation, the police officials enquired from the deceased-son of the petitioner as to where he concealed brass vessel. It is the case of the petitioner that when his son disclosed that the vessel was kept inside the pond, his son was compelled to dive into the pond and take out the vessel. At that time, the deceased-Khikhram was handcuffed and chained. On being so insisted, Khikhram entered into the pond but never come out. The police officials tried to find out deceased-Khikhram in the pond but thereafter, they went away stating the villagers who had gathered there, to inform the police regarding whereabouts of deceased-Khikhram. Thereafter, on 21/10/97, the dead body of deceased-Khikhram was seen floating in the pond. Merg intimation was recorded and a Panchnama (Annexure P/2) was also prepared. The dead body of the deceased-Khikhram was sent for post mortem and in the post mortem report, it was stated that the cause of death is Asphyxia and it can be due to submersion of the body into the water for a long time. The matter was investigated and a charge sheet was filed in the Court of Additional Chief Judicial Magistrate, Sakti for alleged commission of offence under Section 304-A/34 IPC against the respondents No.3 and 4.

3. Learned counsel for the petitioner argued that the son of the petitioner died due to gross negligence of respondents No.3 and 4 - police officials while in their custody. He submits that the manner in which his son was dealt with by respondent No.3 and 4, resulted in untimely death of his son. It is also submitted that it were respondents 3 and 4, who compelled the son of the petitioner, though alleged with allegations of theft, to sink into water, whereas his son was handcuffed and chained. Because of this high handed action of respondent No.3 and 4, the son of the petitioner, lost his life for which, the petitioner is entitled to be compensated because his son lost his life and died in the custody of respondents 3 and 4, on account of their sheer negligence, callous and irresponsible act.

4. On the other hand, learned State counsel submitted that after the incident had taken place, in which the petitioners son died, the matter was enquired into and a criminal case was registered against respondents 3 and 4 on the allegation of commission of offence under Section 304-A/34 IPC. A charge sheet was filed in the Court and respondents 3 and 4 were prosecuted. Vide judgment dated 18/2/08 passed in criminal case No.4031/02, respondent No.3 was found guilty and has been convicted whereas learned trial Court has acquitted respondent No.4. He submits that the wrong doer has been punished in accordance with law and if the petitioner claims compensation on account of death of his son, he ought to have filed a suit in Civil Court rather than filing writ petition before this Court. He submits that the matter relating to grant of compensation would require recording of evidence and enquiry into disputed questions of fact. Therefore, the writ petition is not the appropriate remedy and liable to be dismissed.

5. In the return of respondents No.3 and 4, it has been stated that respondents No.3 and 4 were only performing their duty as police officials, in the course of investigation, for the purposes of recovering the concealed / stolen article. The son of the petitioner was asked to take out the concealed vessel from the place, where he stated to have kept the stolen vessel. Before requiring the deceased-Khikhram to sink into the water to take out the vessel, it was verified that he knows swimming and then only, he was asked to sink into the water and take out the stolen article from the pond. The deceased was handcuffed in one hand because he was a habitual offender and number of criminal cases were registered against him. When the deceased did not come out of the pond, then all attempts were made to search out the deceased and even fishing net was thrown into the water to take out the deceased. Therefore, respondents No.3 and 4 are not at all responsible for the accidental death of the deceased-Khikhram and they only performed their duty. It has not been disputed that on 19/10/97, the deceased-Khikhram was brought to the pond in the custody of respondent No.3 and respondent No.4 also accompanied him that the deceased-Khikhram sunk into the water to take out the vessel, has not been disputed by respondents No.3 and 4. The fact that the deceased was asked to sink into the water to take out the vessel by the police officials is also not disputed. The dead body of the deceased was recovered from the same pond on 21/10/97.

6. In the judgment dated 18/2/08, the trial Court has held respondent No.3 guilty of commission of offence under Section 304-A IPC though respondent No.4 has been acquitted of the charges. The trial Court has recorded finding that the respondents 3 and 4 had taken the deceased-Khikhram to the pond and he was directed to go inside to take out the vessel while he was handcuffed and chained and thereafter, the deceased could not come out and two days after, his dead body was recovered from the same pond. The judgment of the trial Court clearly shows that the deceased-Khikhram died due to negligent act of respondent No.3.

7. The question, therefore, which arises for consideration is whether in this petition under Article 226 of the Constitution of India, the petitioner could be awarded compensation. The issue is no longer res integra and set at rest by the Apex Court in catena of decisions. The liability of the State to pay compensation for deprivation of the fundamental right of life and personal liberty is a new liability in public law created by the Constitution and not vicarious or a liability in tort. The claim which has been made by the petitioner is a claim in public law for compensation for deprivation of life. In the case of Rudul Sah v. State of Bihar and another, AIR 1983 S.C. 1086, negativing the States objection of existence of alternative remedy, it was held -

"(9.) It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of Courts, Civil and Criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a Court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right. The instant case is illustrative of such cases. The petitioner was detained illegally in the prison for over 14 years after his acquittal in a full-dressed trial. He filed a Habeas Corpus petition in this Court for his release from illegal detention. He obtained that relief, our finding being that his detention in the prison after his acquittal was wholly unjustified. He contends that he is entitled to be compensated for his illegal detention and that we ought to pass an appropriate order for the payment of compensation in this Habeas Corpus petition itself.

(10.) We cannot resist this argument. We see no effective answer to it save the stale and sterile objection that the petitioner may, if so advised, file a suit to recover damages from the State Government. Happily, the States counsel has not raised that objection. The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees 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 mulct its violators 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 is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioners rights. It may have recourse against those officers."

8. In the case of Nilabati Behra v. State of Orissa, AIR 1993 S.C. 1960, the Supreme Court directed the State of Orissa to pay compensation. While awarding compensation, the Supreme Court observed -

"(9.)......Award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution 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. This is a distinction between the two remedies. "Verma, J. further explained that the States plea of sovereign immunity for tortuous acts of its servants is confined to the sphere of liability in tort, which is distinct from the States liability for contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the constitutional scheme, and is no defence to the constitutional remedy under Articles 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights when the only practicable mode of enforcement of the fundamental rights can be the award of compensation. Concurring with Verma, J. Dr.A.S.Anand, J. in the same case observed : "The purpose of the public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights - This Court and the High Court being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief 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 32 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 citizens, notwithstanding the right of the citizen to the remedy by way of a 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. "Dr. Anand, J. also observed :

"There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his rights to life."

9. The aforesaid decision again came up for consideration in the Supreme Court in the case of D.K.Basu v. State of West Bengal, AIR 1997 S.C. 610, wherein, after reviewing earlier authorities, the Supreme Court reiterated that the relief of compensation against the State based " on the principles of strict liability" under the public law is one to which the defence of sovereign immunity does not apply and that this relief is in addition to the traditional remedies and the compensation awarded in a given case is adjusted against any amount awarded to the claimant by way of damages in civil suit. It was also held that in the assessment of compensation under Article 32 or 226, "the emphasis has to be on the compensatory and not on the punitive element. It was further held that the objective is to apply balm on 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 court in which the offender is prosecuted, which the State in law is duty bound to do.

10. In the case of Hindustan Papers Corporation v. Ananta Bhattacharjee, 2004 (6) SCC 213 , Supreme Court held -

"The public law remedy for the purpose of grant of compensation can be resorted to only when the fundamental right of a citizen under Article 21 is violated and not otherwise". The Court further said that "it is not every violation of the provisions of the Constitution or a statute which would enable the Court to direct grant of compensation.

11. Therefore, it is very well settled that claim of compensation by way of filing petition under Article 226 of the Constitution of India is remedy sought in public law and this Court, notwithstanding existence of ordinary civil remedy of claiming appropriate compensation, applying the principles laid down by the Supreme Court in the decision referred to above may award compensation. That is also the view which has been taken by the Division Bench of High Court of Madhya Pradesh in the case of Pooran Singh v. State of Madhya Pradesh and others, AIR 2009 Madhya Pradesh153.

12. In the case of Rudul Sah (Supra), it was found that the petitioner therein had suffered illegal detention. While rectifying grave injustice perpetrated on the petitioner, the Supreme Court awarded compensation as an interim measure observing that the award of lump sum compensation would not preclude the petitioner therein from bringing a suit to recover further damages from the State and his erring officials by observing that the order of compensation is in the nature of a palliative. In the case of Nilabati Behra (Supra), the compensation of Rs.1,50,000/- was awarded, in a case of custodial death.

13. The deceased was a young boy who died in the circumstances, when he was under the control and custody of respondents 3 and 4. Considering the overall circumstances of the case and the principles laid down by the Supreme Court in various decisions referred to above, in the opinion of this Court, the petitioner should be paid a quantum of compensation of Rs.1,50,000/- by the State. However, if the petitioner is dissatisfied with the amount so awarded, he would be at liberty to resort to traditional remedies and the compensation as awarded in the present case, will be adjusted against any amount awarded to him by way of damages in civil suit, if any, filed by him.

14. The petition is accordingly allowed to the extent indicated as above. No orders as to cost.