Full Judgment Text
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PETITIONER:
SMT. NILABATI BEHERA ALIAS LALIT BEHERA (THROUGH THE
Vs.
RESPONDENT:
STATE OF ORISSA AND ORS.
DATE OF JUDGMENT24/03/1993
BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
VERMA, JAGDISH SARAN (J)
ANAND, A.S. (J)
VENKATACHALA N. (J)
CITATION:
1993 AIR 1960 1993 SCR (2) 581
1993 SCC (2) 746 JT 1993 (2) 503
1993 SCALE (2)309
ACT:
Constitution of India, 1950-Article 32-Letter of a mother
informing Supreme Court death of her son in custody-Writ
petition-Appreciation of evidence-Whether the death of
petitioner’s in in police custody due to police brutality.
Constitution of India, 1950-Articles 32, 226-Death in police
custody-Power of Supreme Court/High Court to award
compensation for contravention of fundamental tight to life
guaranteed under Article 21-Purpose of public law
proceedings-Remedy in public law proceedings-Role of Courts-
Payment of Compensation-Fixation-Directions of Supreme Court
on mode of payment and appropriate actions against
individuals responsible for custodial death.
HEADNOTE:
Petitioner’s son, aged about 22 years was taken from his
home In police custody at about 8 a.m. on 1.12.1987 by
respondent No.6, Assistant Sub-Inspector of Police of the
Police Outpost in connection with the investigation of an
offence of theft. He was detained at the Police outpost
On 2.12.1987, at about 2 p.m. the petitioner came to know
that the dead body of her son was found on the railway track
There were multiple injuries on the body and his death was
unnatural, caused by those injuries.
The petitioner alleged in her letter dated 14.9.1988, which
was treated as a writ petition under Article 32 of the
Constitution, that it was a case of custodial death since
her son died as a result of the multiple injuries inflicted
to him while he was in police custody and thereafter his
dead body was thrown on the railway track. It was prayed in
the petition that award of compensation be made to her, for
contravention of the fundamental right to life guaranteed
under Article 21 of the Constitution.
The defence of the respondents was that petitioner’s son
managed to
582
escape from police custody at about 3 a.m. on 2.12.1987 from
the Police. Outpost, where he was detained; that thereafter
he could not be apprehended in spite of a search and that
his dead body was found on the railway track on 2.12.1987
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with multiple injuries, which indicated that he was run over
by a train. The respondents denied the allegation of
custodial death and their responsibility for the unnatural
death of petitioner’s son.
On 4.3.1991, this Court directed the District Judge to hold
an inquiry into the matter and to submit a report. After
hearing the parties and appreciating the evidence the
District Judge submitted the Inquiry Report dated 4.9.1991.
The District Judge found that petitioner’s son died on
account of multiple injuries inflicted to him while he was
in police custody at the Police Outpost.
The correctness of the finding of the District Judge in his
report was assailed in this Court.
The respondents contended that petitioner’s son managed to
escape from police custody at about 3 a.m. on 2.12.1987;
that he was run over by a passing train and sustained the
fatal injuries; that the responsibility of the respondents
for his safety came to an end the moment he escaped from
police custody; and that the factual foundation for State’s
liability for payment of compensation for violation of the
fundamental right to life under Article 21 was absent.
Allowing the petition, this Court,
HELD: (per LS. Verma, J. on his behalf and on behalf of
N. Venkatachala, J)
1.01. There is no cogent independent evidence of any
search made by the police to apprehend petitioner’s son, if
the defence of his escape from police custody be true. On
the contrary, after discovery of the dead body on the
railway track in the morning by some railwaymen, it was much
later in the day that the police reached the spot to take
charge of the dead body. This conduct of the concerned
police officers is also a significant circumstance to assess
credibility of the defence version. [591 G-H]
1.02. The medical evidence comprising the testimony of
the doctor, who conducted the postmortem, excludes the
possibility of all the injuries to the deceased being caused
in a train accident while indicating that all of
583
them could result from the merciless beating given to him.
[594 H-595 A]
1.03. An inquiry under Section 176 Cr.P.C. is
contemplated independently by a Magistrate and not jointly
with a police officer when the role of the police officers
itself is a matter of inquiry. [595 F]
1.04. There was hand-cuff on the hands of the deceased
when his body was found on the railway track with rope
around it. It is significant that the Report dated
11.3.1988 of the Regional Forensic Science Laboratory
mentions that the two cut ends of the two pieces of rope
which were sent for examination do not match with each other
in respect of physical appearance. This finding about the
rope negatives the respondents’ suggestion that the
petitioner’s son managed to escape from police custody by
chewing off the rope with which he was tied. 1595 G-H]
1.05. It is a case of custodial death, and the deceased
died as a result of the injuries inflicted to him
voluntarily while he was In police custody at the Police
Outpost. [596 A]
2.01. 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
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distinction between the two remedies to be borne in mind
which also indicates the basis on which compensation is
awarded in such proceedings. [596 G]
2.02. Enforcement of the constitutional right and grant
of redress embraces award of compensation as part of the
legal consequences of its contravention. [602 A]
2.03.. 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
584
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 guaran-
teed 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 of the Constitution. [602
B-D]
2.04. The Court is not helpless and the wide powers
given to this Court by Article 32, which itself is a
fundamental right, imposes a constitutional obligation on
this Court to forge such new tools, which may be necessary
for doing complete justice and enforcing the fundamental
rights guaranteed in the Constitution, which enable the
award of monetary compensation In appropriate cases, where
that is the only mode of redress available. [603 D]
2.05. The power available to this Court under Article
142 is also an enabling provision in this behalf The
contrary view would not merely render the court powerless
and the constitutional guarantee a mirage, but, may, in
certain situations, be an incentive to extinguish life, if
for the extreme contravention the court is powerless to
grant any relief against the State, except by punishment of
the wrongdoer for the resulting offence, and recovery of
damages under private law, by the ordinary process. [603 E-
F]
2.06. If the guarantee that deprivation of life and
personal liberty cannot be made except in accordance with
law, is to be real, the enforcement of the right in case of
every contravention must also be possible in the
constitutional scheme, the mode of redress being that which
is appropriate In the facts of each case. [603 F]
2.07. This remedy in public law has to be more readily
available when invoked by the havenots, who are not
possessed of the wherewithal for enforcement of their rights
in private law, even though its exercise is to be tempered
by judicial restraint to avoid circumvention of private law
remedies, where more appropriate. [603 G]
2.08. The principle of which the Court’s power under
Articles 32 and 226 of the Constitution is exercised to
award monetary compensation for
585
contravention of a fundamental right. [604 B]
Rudul Sah v. State of Bihar and Another, [1983] 3 S.C.R.
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508; Sebastian M. Hongray v. Union of India and Others,
[1984] 1. S.C.R. 904 and [1984] 3 S.C.R. 544; Bhim Singh v.
State of J. & K, [1984] Supp. S.C.C. 504 and [1985] 4
S.C.C. 677; Saheli, A Women’s Resources Centre and Others v.
Commissioner of Police, Delhi Police Headquarters and
Others, [1990] 1 S.C.C. 422; State of Maharashtra and Others
v. Ravikant S. Patil, [1991] 2 S.C.C. 373; Maharaj v.
Attomey-General of Trinidad and Tobago, (No.2), (1978) 3
All.E.R. 670;, Khatri and Others (IV) v. State of Bihar and
Others, [1981] 2 S.C.C. 493 and Union Carbide Corporation
and Others v. Union India and Others, [1991] 4 S.C.C. 584,
referred to.
Kasturilal Ralia Rain Jain v. The State of Uttar Pradesh
[1965] 1 S.C.R. 375, distinguished.
Ratanlal & Dhirajlal’s Law of Torts, 22nd Edition, 1992, by
Justice G.P. Singh, at pages 44 to 48, referred to.
2.09. In the present case, on the finding reached, It Is
a clear case for award of compensation to the petitioner for
the custodial death of her son. [604 D]
2.10. The deceased was aged about 22 years and had a
monthly income between Rs.1200 to Rs.1500. A total amount of
Rs.1,50,000 would be appropriate as compensation, to be
awarded to the petitioner in the present case. [604 E]
2.11. The respondent-State of Orissa is directed to pay
the sum of Rs.1,50,000 lo the petitioner as compensation and
a further sum of Rs.10,000 as costs to be paid to the
Supreme Court Legal Aid Committee. The mode of payment of
Rs.1,50,000 to the petitioner would be, by making a term
deposit of that amount in a scheduled bank in the
petitioner’s name for a period of three years, during which
she would receive only the Interest payable thereon, the
principal amount being payable to her on expiry of the term.
The Collector of the District will take the necessary steps
in this behalf, and report compliance to the Register
(judicial) of this Court within three months. [604 H, 605-A]
2.12.The State of Orissa is expected to take the necessary
further action to ascertain and fix the responsibility of
the Individuals responsible
586
for the custodial death of petitioner’s son and also take
all available appropriate actions against each of them. [605
C]
Per Dr. A.S. Anand, J. (Concurring)
1.01. Convicts, prisoners or under-trials are not
denuded of their fundamental rights under Article 21 and It
is only such restrictions, as are permitted by law, which
can be imposed on the enjoyment of the fundamental rights by
such persons. It is an obligation of the State, to ensure
that there is no infringement of the indefeasable rights of
a citizen to life, except in accordance with law while the
citizen is in its custody. [607 E]
1.02. The precious right guaranteed by Article 21 of the
Constitution of India cannot be denied to convicts, under-
trials or other prisoners in custody, except according to
procedure established by law. [607 E]
1.03. There is a great responsibility on the police or
prison authorities to ensure that the citizen in its custody
is not deprived of his right to life. His liberty is in the
very nature of things circumscribed by the very fact of his
confinement and therefore his interest in the limited
liberty left to him is rather precious. The duty of care on
the part of the State is strict and admits of no exceptions.
[607 F]
1.04.The wrongdoer is accountable and the State is
responsible if the person in custody of the police is
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deprived of his life except according to the procedure-
established by law. [607 G]
1.05.The death of petitioner’s son was caused while he was
in custody of the police by police torture. A custodial
death is perhaps one of the worst crimes in a civilised
society governed by the Rule of Law.
1.06. The defence of ’sovereign immunity"in such cases
is not available to the State. [607 G]
2.01. Adverting to the grant of relief to the heirs of a
victim of custodial death foe the infraction or invasion of
his rights guaranteed under Article 21 of the Constitution
of India, it is not always enough to relegate him to the
ordinary remedy of a civil suit to claim damages for the
tortious act of the State as that remedy in private law
indeed is available to the aggrieved party. [608 A]
587
2.02. The citizen complaining of the infringement of the
indefeasable right under Article 21 of the Constitution
cannot be told that for the established violation of the
fundamental right to life, he cannot get any relief under the
public law by the courts exercising writ jurisdiction.
[608-B]
2.03. The primary source of the public law proceedings
stems from the prerogative writs and the courts have,
therefore, to evolve ’new tools’ to give relief in public
law by moulding it according to the situation with a view to
preserve and protect the Rule of Law. [608 C]
2.04. The old doctrine of only relegating the aggrieved
to the remedies available in civil law limits the role of
the courts too much as protector and guarantor of the
indefeasable rights of the citizens. 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. [608 H, 609 A]
2.05. The public law proceedings serve a different
purpose than the private law proceedings. The relief of
monetary compensation, as exemplary damages, in proceedings
under Article 32 by this Court or under Article 226 by the
High Courts, for established infringement of the
indefeasable right guaranteed under Article 21 of the
Constitution is a remedy available in public law and is
based on the strict liability for contravention of the
guaranteed basic and indefeasable rights of the citizen.
[609 B]
2.06. The purpose of 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. Therefore, which the court
moulds the relief by granting" compensation in proceedings
under Article 32 or 226 of the Constitution seeking
enforcement or protection of fundamental rights, it does so
under the public law by way of penalising the wrongdoer and
fixing the liability for the public wrong on the State which
has failed in its public duty to protect the fundamental
rights of the citizen. 1609 C]
2.07. The payment of compensation in such cases is not
to be understood, as it is generally understood in a civil
action for damages under the private law but in the broader
sense of providing relief by an order of making ’monetary
amends’ under the public law for the wrong done due to
breach of public duty, of not protecting the fundamental
rights
588
of the citizen. [609 D]
2.08.The compensation is in the nature of the exemplary
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damages’ awarded against the wrong-doer for the breach of
its public law duty and is independent of the rights
available to the aggrieved party to claim compensation under
the private law in an action based on tort, through a suit
instituted in a court of competent jurisdiction or/and
prosecute the offender under the penal law. [609 E]
2.09. This Court 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 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 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. [609
F-G]
2.10. 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 proceeding. 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. [609 H, 610 A]
2.11. 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. [610 D-E]
"Freedom under the Law. By
Lord Denning First Hamlan Lecture, 1949, referred to.
Rudul Sah v. State of Bihar and Anr., [1983] 3 S.C.R. 508,
referred to.
2.12. In the facts of the present case the mode of
redress which
589
commends appropriate is to make an order of monetary amend,
in favour of the petitioner for the custodial death of her
son by ordering payment of compensation by way of exemplary
damages. [610 F]
2.13. The State of Orissa should pay a sum of
Rs.1,50,000 to the petitioner and a sum of Rs.10,000 by way
of costs to the Supreme Court Legal Aid Committee. [610 G]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 488 of 1988.
(Under Article 32 of the Constitution of India).
M.S. Ganesh for the Petitioner.
Altaf Ahmed, Addl. Solicitor General, A.K. Panda and Naresh
Kumar Sharma for the Respondents.
The Judgments of the Court were delivered by
VERMA, J. A letter dated 14.9.1988 sent to this Court by
Smt. Nilabati Behera alias Lalita Behera, was treated as a
Writ Petition under Article 32 of the Constitution for
determining the claim of compensation made therein
consequent upon, the death of petitioner’s son Suman Behera,
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aged about 22 years, in police custody. The said Suman
Behera was taken from his home in police custody at about 8
a.m. on 1.12.1987 by respondent No.6, Sarat Chandra Barik,
Assistant Sub-Inspector of Police of Jaraikela Police
Outpost under Police Station Bisra, Distt. Sundergarh in
Orissa, in connection with the investigation of an offence
of theft and detained at the Police Outpost. At about 2
p.m. the next day on 2.12.1987, the petitioner came to know
that the dead body of her son Suman Behera was found on the
railway track near a bridge at some distance from the
Jaraikela railway station. There were multiple injuries on
the body of Suman Behera when it was found and obviously his
death was unnatural, caused by those injuries. The
allegation made is that it is a case of custodial death
since Suman Behera died as a result of the multiple injuries
inflicted to him while he was in police custody; and
thereafter his dead body was thrown on the railway track.
The prayer made in the petition is for award of compensation
to the petitioner, the mother of Suman Behera, for
contravention of the fundamental right to life guaranteed
under Article 21 of the Constitution.
The State of Orissa and its police officers, including Sarat
Chandra
590
Barik, Assistant Sub-Inspector of Police and Constable
No.127, Chhabil Kujur of Police Outpost Jeraikela, Police
Station Bisra, are impleaded as respondents in this
petition. The defence of the respondents is that Suman
Behera managed to escape from police custody at about 3 a.m.
on the night between the 1st and 2nd December, 1987 from the
Police Outpost Jeraikela, where he was detained and guarded
by Police Constable Chhabil Kujur; he could not be
apprehended thereafter in spite of a search; and the dead
body of Suman Behera was found on the railway track the next
day with multiple injuries which indicated that he was run
over by a passing train after he had escaped from police
custody. In short, on this basis the allegation of
custodial death was denied and consequently the respondents’
responsibility for the unnatural death of Suman Behera.
In view of the controversy relating to the cause of death of
Suman Behera, a direction was given by this Court on
4.3.1991 to the District Judge, Sundergarh in Orissa, to
hold an inquiry into the matter and submit a report. The
parties were directed to appear before the District Judge
and lead the evidence on which they rely. Accordingly,
evidence was led by the parties and the District Judge has
submitted the Inquiry Report dated 4.9.1991 containing his
finding based on that evidence that Suman Behera had died on
account of multiple injuries inflicted to him while he was
in police custody at the Police Outpost Jeraikela. The
correctness of this finding and Report of the District
Judge, being disputed by the respondents, the matter was
examined afresh by us in the light of the objections raised
to the Inquiry Report.
The admitted facts are, that Suman Behera was taken in
police custody on 1.12.1987 at 8 a.m. and he was found dead
the next day on the railway track near the Police Outpost
Jeraikela, without being released from custody, and his
death was unnatural caused by multiple injuries sustained by
him. The burden is, therefore, clearly on the respondents
to explain how Suman Behera sustained those injuries which
caused his death. Unless a plausible explanation is given
by the respondents which is consistent with their innocence,
the obvious inference is that the fatal injuries were
inflicted to Suman Behera in police custody resulting in his
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death, for which the respondents are responsible and liable.
To avoid this obvious and logical inference of custodial
death, the learned Additional Solicitor General relied on
the respondent’s defence
591
that Suman Behera had managed to escape from police custody
at about 3 a.m. on the night between the 1st and 2nd
December, 1987 and it was likely that he was run over by a
passing train when he sustained the fatal injuries. The
evidence adduced by the respondents is relied on by the
learned Additional Solicitor General to support this defence
and to contend that the responsibility of the respondents
for the safety of Suman Behera came to an end the moment
Suman Behera escaped from police custody. The learned
Additional Solicitor General, however, rightly does not
dispute the liability of the State for payment of
compensation in this proceeding for violation of the
fundamental right to life under Article 21, in case it is
found to be a custodial death. The argument is that the
factual foundation for such a liability of the State is
absent. Shri M.S. Ganesh, who appeared as amicus curiae for
the petitioner, however, contended that the evidence adduced
during the inquiry does not support the defence of
respondents and there is no reason to reject the finding of
the learned District Judge that Suman Behera died in police
custody as a result of injuries inflicted to him.
The first question is: Whether it is a case of custodial
death as alleged by the petitioner? The admitted facts are:
Suman Behera was taken in police custody at about 8 a.m. on
1.12.1987 by Sarat Chandra Barik, Asstt. Sub-Inspector of
Police, during investigation of an offence of theft in the
village and was detained at Police Outpost Jeraikela; Suman
Behera and Mahi Sethi, another accused, were handcuffed,
tied together and kept in custody at the police station;
Suman Behera’s mother, the petitioner, and grand-mother went
to the Police Outpost at about 8 p.m. with food for Suman
Behera which he ate and thereafter these women came away
while Suman Behera continued to remain in police custody-,
Police Constable Chhabil Kujur and some other persons were
present at the Police Outpost that night; and the dead body
of Suman Behera with a handcuff and multiple injuries was
found lying on the railway track at Kilometer No.385/29
between Jeraikela and Bhalulata railway-stations on the
morning of 2.12.1987. It is significant that there is no
cogent independent evidence of any search made by the police
to apprehend Suman Behera, if the defence of his escape from
police custody be true. On the contrary, after discovery of
the dead body on the railway track in the morning by some
railwaymen, it was much later in the day that the police
reached the spot to take charge of the dead body. This
conduct of the concerned police
592
officers is also a significant circumstance to assess
credibility of the defence version.
Before discussing the other evidence adduced by the parties
during the. inquiry, reference may be made to the injuries
found on the dead body of Suman Behera during postmortem.
These injuries were the following:-
"Extemal injuries
(1) Laceration over with margin of damaged
face.
(2) Laceration of size 3" x 2" over the
left temporal region upto bone.
(3) Laceration 2’ above mastoid process on
the right-side of size 1 1/2" x 1/4" bone
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exposed.
(4) Laceration on the forehead left side of
size 1 1/2" x 1/4" upto bone in the mid-line
on the forehead 1/2" x 1/4" bone deep on the
left lateral to it 1" x 1/4" bone exposed.
(5) Laceration 1" x 1/2" on the anterior
aspect of middle of left arm, fractured bone
protruding.
(6) Laceration 1" x 1/2" x V2" on medial
aspect of left thigh 4" above the knee joint.
(7) Laceration 1/2" x 1/2" x 1/2" over left
knee joint.
(8) Laceration 1" x 1/2" x 1/2" on the
medial aspect of right knee joint.
(9) Laceration 1" x 1/2" x 1/2" on the
posterior aspect of left leg, 4" below knee
joint.
(10) Laceration 1"’ x 1/4" x 1/2" on the
plantar aspect of 3rd and 4th toe of right
side.
(11) Laceration of 1" x 1/4" x 1/2" on the
dorsum of left foot.
Injury on the neck
593
(1) Bruises of size 3" x 1" obliquely
alongwith sternocleidomastoid muscle 1" above
the clavical left side (2) lateral to this 2"
x 1" bruise (3) and 1" x 1" above the clavial
left side (4) posterial aspect of the neck 1"
x 1’ obliquely placed right to mid line.
Right shoulder
(a) Bruise 2" x 2", 1" above the right
scapula.
(b) Bruise 1" x 1’ on the tip of right
shoulder.
(c) Bruise on the dorsum of right palm 2" x
1".
(d) Bruise extenses surface of forearm left
side
(e) Bruise on right elbow 4" x 1"
(f) Bruise on the dorsum of left palm 2" x
1".
(g) Bruise over left patela 2" x 1".
(h) Bruise 1" above left patel 1" x 1".
(i) Bruise on the right illiac spine 1" x
1/2".
(j) Bruise over left scapula 4" x 1".
(k) Bruise 1" below right scapula 5" x 1".
(l) Bruise 3" medial to inferior angle of
right scapula 2"x 1".
(m) Bruise 2" below left scapula of size 4" x
2".
(n) Bruise 2" x 6" below 12th rib left side.
(o) Bruise 4" x 2" on the left lumber
region.
(p) Bruise on the buttock of left side 3" x
2".
(q) On dissection found
(l) Fracture of skull on right side parietal
and occipital bone 6" length.
594
(2) Fracture of frontal bone below
laceration 2" depressed fracture.
(3) Fracture of left temporal bone 2" in
length below external injury No.2 i.e.
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laceration 2" above left mastoid process.
(4) Membrane ruptured below depressed
fracture, brain matter protruding through the
membrane.
(5) Intracraneal haemorrhage present.
(6) Brain lacerated below external injury
No.3, 1" x 1/2" x 1/2".
(7) Bone chips present on temporal surface
of both sides.
(8) Fracture of left humerous 3’ above
elbow.
(9) Fracture of left femur 3" above knee
joint.
(10) Fracture of mendible at the angle
mendible both sides.
(11) Fracture of maxillary.
The face was completely damaged, eye ball present, nose
lips, cheeks absent. Maxila and a portion of mendible
absent.
No injury was present on the front side of body trunk.
There is rupture and laceration of brain."
The doctor deposed that all the injuries were caused by hard
and blunt object the injuries on the face and left temporal
region were postmortem while the rest were ante-mortem. The
doctor excluded the possibility of the injuries resulting
from dragging of the body by a running train and stated that
all the ante-mortem injuries could be caused by lathi blows.
It was further stated by the doctor that while all the
injuries could not be caused in a train accident, it was
possible to cause all the injuries by lathi blows. Thus,
the medical evidence comprising the testimony of the doctor,
who conducted the postmortem, excludes the possibility of
all the injuries
595
to Suman Behera being caused in a train accident while
indicating that all of them could result form the merciless
beating given to him. The learned Additional Solicitor
General placed strong reliance ore the written opinion of
Dr. K.K. Mishra, Professor & Head of the Department of
Forensic Medicine, Medical College, Cuttack, given on
15.2.1988 on a reference made to him wherein he stated on
the basis of the documents that the injuries found on the
dead body of Suman Behera could have been caused by rolling
on the railway track in-between the rail and by coming into
forceful contact with projecting part of the moving
train/engine. While adding that it did not appear to be a
case of suicide, he indicated that there was more likelihood
of accidental fall on the railway track followed by the
running engine/train. In our view, the opinion of Dr. K.K.
Mishra, not examined as a witness, is not of much assistance
and does not reduce the weight of the testimony of the
doctor who conducted the postmortem and deposed as a witness
during the inquiry. The opinion of Dr. K.K. Mishra is
cryptic, based on conjectures for which there is no basis,
and says nothing about the injuries being both anti-mortem
and post- mortem. We have no hesitation in reaching this
conclusion and preferring the testimony of the doctor who
conducted the postmortem.
We may also refer to the Report dated 19.12.1988 containing
the findings in a joint inquiry conducted by the Executive
Magistrate and the Circle Inspector of Police. This Report
is stated to have been made under Section 176 Cr.P.C. and
was strongly relied on by the learned Additional Solicitor
General as a statutory report relating to the cause of
death. In the first place, an inquiry under Section 176
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Cr.P.C. is contemplated independently by a Magistrate and
not jointly with a police officer when the role of the
police officers itself is a matter of inquiry. The joint
finding recorded is that Suman Behera escaped from police
custody at about 3 a.m. on 2.12.1987 and died in a train
accident as a result of injuries sustained therein. There
was hand-cuff on the hands of the deceased when his body was
found on the railway track with rope around it. It is
significant that the Report dated 11.3.1988 of the Regional
Forensic Science Laboratory (Annexure ’R-8’, at p. 108 of
the paper book) mentions that the two cut ends of the two
pieces of rope which were sent for examination do not match
with each other in respect of physical appearance. This
finding about the rope negatives the respondents’ suggestion
that Suman Behera managed to escape from police custody by
chewing off the rope with which he was tied. It is no
necessary for us to refer to the other evidence including
596
the oral evidence adduced during the inquiry, from which the
learned District Judge reached the conclusion that it is a
case of custodial death and Suman Behera died as a result of
the injuries inflicted to him voluntarily while he was in
police custody at the Police Outpost Jeraikela. We have
reached the same conclusion on a reappraisal of the evidence
adduced at the inquiry taking into account the
circumstances, which also support that conclusion. This was
done in view of the vehemence with which the learned
Additional Solicitor General urged that it is not a case of
custodial death but of death of Suman Behera caused by
injuries sustained by him in a train accident, after he had
managed to escape from police custody by chewing off the
rope with which he had been tied for being detained at the
Police Outpost. On this conclusion, the question now is of
the liability of the respondents for compensation to Suman
Behera’s mother, the petitioner, for Suman Behera’s
custodial death.
In view of the decisions of this Court in Rudul Sah v. State
of Bihar and Another, [1983] 3 S.C.R. 508, Sebastian M.
Hongray v. Union of India and Others, [1984] 1 S.C.R. 904
and [1984] 3 S.C.R. 544, Bhim Singh v. State of J&K [1984]
Supp. S.C.C. 504 and [1985] 4 S.C.C. 677, Saheli, A Women’s
Resources Centre and Others v. Commissioner of Police, Delhi
Police Headquarters and Others, [1990] 1 S.C.C. 422 and
State of Maharashtra and Others v. Ravikant S.Patil, [1991]
2 S.C.C. 373, the liability of the State of Orissa in the
present case to pay the compensation cannot be doubted and
was rightly not disputed by the learned Additional Solicitor
General. It ,would, however, be appropriate to spell out
clearly the principle on which the liability of the State
arises in such cases for payment of compensation and the
distinction between this liability and the liability in
private law for payment of compensation in an action on
tort. It may be mentioned straightaway that 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 to be borne in mind which also indicates the basis
on which compensation is awarded in such proceedings. We
shall now refer to the earlier decisions of this Court as
well as some other decisions before further discussion of
this principle.
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597
In Rudul Sah (supra), it was held that in a petition under
Article 32 of the Constitution, this Court can grant
compensation for deprivation of a fundamental right. That
was a case of violation of the petitioner’s right to
personal liberty under Article 21 of the Constitution.
Chandrachud, C.J., dealing with this aspect, stated as
under:-
"It is true that Article 32 cannot be used as
a substitute for the enforcement of rights and
obligations which can be enforced
effecaciously 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........
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 to 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 violaters in the payment of monetary
compensation. Administrative sclerosis lead-
598
ing 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 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 in-
dividuals is the true bastion of democracy.
Therefore, the State must repair the damage
done by its officers to the petitioner’s
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rights. It may have recourse against those
officers"
(pp.513-14)
(emphasis supplied)
It does appear from the above extract that
even though it was held that compensation
could be awarded under Article 32 for
contravention of a fundamental right, yet it
was also stated that ’the petitioner could
have been relegated to the ordinary remedy of
a suit if his claim to compensation was
factually controversial’ and ’Article 32
cannot be used as a substitute for the
enforcement of rights and obligations which
can be enforced efficaciously through the
ordinary processes’. These observation may
tend to raise a doubt that the remedy under
Article 32 could be denied ’if the claim to
compensation was factually controversial’ and,
therefore, optional not being a distinct
remedy available to the petitioner in addition
to the ordinary processes. The later
decisions of this Court proceed on the
assumption that monetary compensation can be
awarded for violation of constitutional rights
under Article 32 or Article 226 of the
Constitution, but this aspect has not been
adverted to. It is, therefore, necessary to
clear this doubt and to indicate the precise
nature of this remedy which is distinct and in
addition to the available ordinary processes,
in case of violation of the fundamental
rights.
Reference may also be made to the other
decisions of this Court after Rudul Sah. In
Sebastian M. Hongray v. Union of India and Others, (1),
[1984] 1 S.C.R. 904, it was indicated that in a petition for
writ of habeas
599
corpus, the burden was obviously on the
respondents to make good the positive stand of
the respondents in response to the notice
issued by the court by offering proof of the
stand taken, when it is shown that the person
detained was last seen alive under the
surveillance, control, and command of the
detaining authority. In Sebastian M. Hongray
v. Union of India & Ors., (11), [1984] 3
S.C.R. 544, in such a writ petition, exemplary
costs were awarded on failure of the detaining
authority to produce the missing persons, on
the conclusion that they were not alive and
had met an unnatural death. The award was
made in Sebastian M. Hongray-II apparently
following Rudul Sah, but without indicating
anything more. In Bhim Singh v. State of J&K
and Others, [1985] 4 S.C.C. 677, illegal
detention in police custody of the petitioner
Bhim Singh was held to constitute violation of his rights
under Articles 21 and 22(2) and this Court exercising its
power to award compensation under Article 32 directed the
State to pay monetary compensation to the petitioner for
violation of his constitutional right by way of exemplary
costs or otherwise, taking this power to be settled by the
decisions in Rudul Sah and Sebastian M. Hongray. In Saheli,
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[1990] 1 S.C.C. 422, the State was held liable to pay
compensation payable to the mother of the deceased who died
as a result of beating and assault by the police. However,
the principle indicated therein was that the State is
responsible for the tortious acts of its employees. In
State of Maharashtra and Others v. Ravikant S. Patil, [1991]
2 S.C.C. 373, the award of compensation by the High Court
for violation of the fundamental right under Article 21 of
an undertrial prisoner, who was handcuffed and taken through
the streets in a procession by the police during
investigation, was upheld. However, in none of these cases,
except Rudul Sah, anything more was said. In Saheli,
reference was made to the State’s liability for tortious
acts of its servants without any reference being made to the
decision of this Court in Kasturilal Ralia Ram fain v. The
State of Uttar Pradesh, [1965] 1 S.C.R. 375, wherein
sovereign immunity was upheld in the case of vicarious
liability of the State for the tort of its employees. The
decision in Saheli is, therefore, more in accord with the
principle indicated in Rudul Sah.
In this context, it is sufficient to say that
the decision of this Court in Kasturilal
upholding the State’s plea of sovereign
immunity for tortious acts of its servants is
confined to the sphere of liability in tort,
which is distinct from the State’s liability
for contravention of fundamental rights to
600
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. The decisions of this Court in
Rudul Sah and others in that line relate to
award of compensation for contravention of
fundamental rights, in the constitutional
remedy under Articles 32 and 226 of the
Constitution. On the other hand, Kasturilal
related to value of goods seized and not
returned to -he owner due to the fault of
Government servants, the claim being of
damages for the tort of conversion under the
ordinary process, and not a claim for
compensation for violation of fundamental
rights. Kasturilal is, therefore,
inapplicable in this context and
distinguishable
The decision of Privy Council in Maharaj v.’Attomey-General
of Trinidad and Tobago, (No.2), [1978] 3 All ER 670, is
useful in this context. That case related to Section 6 of
the Constitution of Trinidad and Tobago 1962, in the chapter
pertaining to human rights and fundamental freedoms, wherein
Section 6 provided for an application to the High Court for
redress. The question was, whether the provision permitted
an order for monetary compensation. The contention of the
Attorney-General therein, that an order for payment of
compensation did not amount to the enforcement of the rights
that had been contravened, was expressly rejected. It was
held, that an order for payment of compensation, when a
right protected had been contravened, is clearly a form of
’redress’ which a person is entitled to claim under Section
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6, and may well be the ’only practicable form of redress’.
Lord Diplock who delivered the majority opinion, at page
679, stated.:-
"It was argued on behalf of the Attorney-
General that s.6(2) does not permit of an
order for monetary compensation despite the
fact that this kind of redress was ordered in
Jaundoo v. Attorney-General of Guyana, [1971]
SC 972. Reliance was placed on the reference
in the subsection to ’enforcing, or securing
the enforcement of, any of the provisions of
the said foregoing sections’ as the purpose
for which orders etc. could be made. An order
for payment of compensation, it was submitted,
did not
601
amount to the enforcement of the rights that
had been contravened. In their Lordships’
view an order for payment of compensation when
a right protected under s.1 ’has been’
contravened is dearly a form of ’redress’
which a person is entitled to claim under s.
6(1) and may well be the only practicable form
of redress, as by now it is in the instant
case. The jurisdiction to make such an order
is conferred on the High Court by para (a) of
s.6(2), viz. jurisdiction ’to hear and
determine any application made by any person
in pursuance of sub-section (1) of this
section. The very wide powers to make orders,
issue writs and give directions are to this.’
Lord Diplock further stated at page 680, as
under:-
"Finally, their Lordships would say something
about the measure of monetary compensation
recoverable under s.6 where the contravention
of the claimant’s constitutional rights
consists of deprivation of liberty otherwise
than by due process of law. The claim is not
a claim in private law for damages for the
tort of false imprisonment under which the
damages recoverable are at would include
damages for loss of reputation. It is a claim
in public law for compensation for deprivation
of liberty alone . ...... .
(emphasis supplied)
Lord Hailsham while dissenting from the majority regarding
the liability for compensation in that case, concurred with
the majority opinion on this principle and stated at page
687, thus:-
expression ’redress’ in sub-s(1) of s.6 and
the expression ’enforcement’ in sub-s(2),
although capable of embracing damages where
damages are available as part of the legal
consequences of contravention, do not confer
and are not in the context capable of being
construed so as to confer a right of damages
where they have not hitherto been available,
in this case against the state for the
judicial errors of a judge. ..."
602
Thus, on this principle, the view was unanimous, that
enforcement of the constitutional right and grant of redress
embraces award of compensation as part of the legal
consequences of its contravention.
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It follows 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 inap-
plicable, 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 of the
Constitution. This is what was indicated in Rudul Sah and
is the basis of the subsequent decisions in which
compensation was awarded under Articles 32 and 226 of the
Constitution, for contravention of fundamental rights.
A useful discussion on this topic which brings out the
distinction between the remedy in public law based on strict
liability for violation of a fundamental right enabling
award of compensation, to which the defence of sovereign
immunity is inapplicable, and the private law remedy,
wherein vicarious liability of the State in tort may arise,
is to be found in Ratanlal & Dhirajlal’s Law of Torts, 22nd
Edition, 1992, by Justice G.P. Singh, at pages 44 to 48.
This view finds support from the, decisions of this Court in
the Bhagalpur blinding cases: Kharti and Others (II) v.
State of Bihar and Others, [1981] 1 S.C.C. 627 and Kharti
and Other (TV) v. State of Bihar and Others, [1981] 2 S.C.C.
493, wherein it was said that the court is not helpless to
grant relief in a case of violation of the right to life and
personal liberty, and it should be prepared to forge new
tools and devise new remedies’ for
603
the purpose of vindicating these precious fundamental
rights. It was also indicated that the procedure suitable
in the facts of the case must be adopted for conducting the
inquiry, needed to ascertain-the necessary facts, for
granting the relief, as the available mode of redress, for
enforcement of the guaranteed fundamental rights. More
recently in Union Carbide Corporation and Others v. Union of
India and Others, [1991] 4 S.C.C. 584, Misra, C.J. stated
that ’we have to develop our own law and if we find that it
is necessary to construct a new principle of liability to
deal with an unusual situation which has arisen and which is
likely to arise in future...... there is no reason why we
should hesitate to evolve such principle of liability .... .
To the same effect are the observations of Venkatachaliah,
J. (as he then was), who rendered the leading judgment in
the Bhopal gas case, with regard to the court’s power to
grant relief.
We respectfully concur with the view that. the court is not
helpless and the wide powers given to this Court by Article
32, which itself is a fundamental right, imposes a
constitutional obligation on this Court to forge such new
tools, which may be necessary for doing complete justice and
enforcing the fundamental rights guaranteed in the
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Constitution, which enable the award of monetary
compensation in appropriate cases, where that is the only
mode of redress available. The power available to this
Court under Article 142 is also an enabling provision in
this behalf The contrary view would not merely render the
court powerless and the constitutional guarantee a mirage
but may, in certain situations, be an incentive to
extinguish life, if for the extreme contravention the court
is powerless to grant any relief against the State, except
by punishment of the wrongdoer for the resulting offence,
and recovery of damages under private law, by the ordinary
process. It the guarantee that deprivation of life and
personal liberty cannot be made except in accordance with
law, is to be real, the enforcement of the right in case of
every contravention must also be possible in the
constitutional scheme, the mode of redress being that which
is appropriate in the facts of each case. This remedy in
public law has to be more readily available when invoked by
the have not, who are not possessed of the wherewithal for
enforcement of their rights in private law, even though its
exercise is to be tempered by judicial restraint to avoid
circumvention of private law remedies, where more
appropriate.
We may also refer to Article 9(5) of the International
Covenant on Civil and Political Rights, 1966 which indicates
that an enforceable right to
604
compensation is not alien to the concept of enforcement of a
guaranteed right. Article 9(5) reads as under:-
"Anyone who has been the victim of unlawful
arrest or detention shall have an enforceable
right to compensation."
The above discussion indicates the principles on which the
Court’s power under Articles 32 and 226 of the Constitution
is exercised to award monetary compensation for
contravention of a fundamental right. This was indicated in
Rudul Sah and certain further observations therein adverted
to earlier, which may tend to minimise the effect of the
principle indicated therein, do not really detract from that
principle. This is how the decisions of this Court in Rudul
Sah and others in that line have to be understood and
Kasturilal distinguished therefrom. We have considered this
question at some length in view of the doubt raised, at
times, about the propriety of awarding compensation in such
proceedings, instead of directing the claimant to resort to
the ordinary process of recovery of damages by recourse to
an action in tort. In the present case, on the finding
reached, it is a clear case for award of compensation to the
petitioner for the custodial death of her son.
The question now, is of the quantum of compensation. The
deceased Suman Behera was aged about 22 years and had a
monthly income between Rs.1200 to Rs.1500. This is the
finding based on evidence recorded by the District Judge,
and there is no reason to doubt its correctness. In our
opinion, a total amount of Rs.1,50,000 would be appropriate
as compensation, to be awarded to the petitioner in the
present case. We may, however, observe that the award of
compensation in this proceeding would be taken into account
for adjustment, in the event of any other proceeding taken
by the petitioner for recovery of compensation on the same
ground, so that the amount to this extent is not recovered
by the petitioner twice over. Apart from the fact that such
an order is just, it is also in consonance with the
statutory recognition of this principle of adjustment
provided in Section 357(5) Cr.P.C. and Section 141(3) of the
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Motor Vehicles Act, 1988.
Accordingly, we direct the respondent-State of Orissa to pay
the sum of Rs.1,50,000 to the petitioner and a further sum
of Rs.10,000 as to be paid to the Supreme Court Legal Aid
Committee. The mode of payment of Rs.1,50,000 to the
petitioner would be, by making a term
605
deposit of that amount in a scheduled bank in the
petitioner’s name for a period of three years, during which
she would receive only the interest payable thereon, the
principal amount being payable to her on expiry of the term.
The Collector of the District will take the necessary steps
in this behalf, and report compliance to. the Registrar
(Judicial) of this Court within three months.
We clarify that the award of this compensation, apart from
the direction for adjustment of the amount as indicated,
will not affect any other liability of the respondents or
any other person flowing from the custodial death of
petitioner’s son Suman Behera. We also expect that the
State of Orissa would take the necessary further action in
this behalf, to ascertain and fix the responsibility of the
individuals responsible for the custodial death of Suman
Behera, and also take all available appropriate actions
against each of them, including their prosecution for the
offence committed thereby.
The writ petition is allowed in these terms.
DR. ANAND, J. (CONCURRING)
The lucid and elaborate judgment recorded by my learned
brother Verma J. obviates the necessity of noticing facts or
reviewing the case law referred to by him. I would,
however, like to record a few observations of my own while
concurring with his Lordship’s judgment.
This Court was bestirred by the unfortunate mother of
deceased Suman Behera through a letter dated 14.9.1988,
bringing to the notice of the Court the death of her son
while in police custody. The letter was treated as a Writ-
Petition under Article 32 of the Constitution. As noticed
by Brother Verma J., an inquiry was got conducted by this
Court through the District Judge Sundergarh who, after
recording the evidence, submitted his inquiry report
containing the finding that the deceased Suman Behera had
died on account of multiple injuries inflicted on him while
in police custody. Considering, that it was alleged to be a
case of custodial death, at the hands of those who are
supposed to protect the life and liberty of the citizen, and
which if established was enough to lower the flag of
civilization to fly half-mast, the report of the District
Judge was scrutinized and analysed by us with the assistance
of Mr. M.S. Ganesh, appearing amicus
606
curiae for the Supreme Court Legal Aid Committee and Mr.
Altaf Ahmad, the learned Additional Solicitor General
carefully.
Verma J., while dealing with the first question i.e. whether
it was a case of custodial death, has referred to the
evidence and the circumstances of the case as also the stand
taken by the State about the manner in which injuries were
caused and has come to the conclusion that the case put up
by the police of the alleged escape of Suman Behera from
police custody and his sustaining the injuries in a train
accident was not acceptable. I respectfully agree.A
strenuous effort was made by the learned Additional
Solicitor General by reference to the injuries on the head
and the face of the deceased to urge that those injuries
could not be possible by the alleged police torture and the
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finding recorded by the District Judge in his report to the
contrary was erroneous. It was urged on behalf of the State
that the medical evidence did establish that the injuries
had been caused to the deceased by lathi blows but it was
asserted that the nature of injuries on the face and left
temporal region could not have been caused by the lathis
and, therefore, the death had occurred in the manner
suggested by the police in a train accident and that it was
not caused by the police while the deceased was in their
custody. In this connection, it would suffice to notice
that the Doctor, who conducted the postmortem examination,
excluded the possibility of the injuries to Suman Behera
being caused in a train accident. The injuries on the face
and the left temporal region were found to be post-mortem
injuries while the rest were ante-mortem. This aspect of
the medical evidence would go to show that after inflicting
other injuries, which resulted in the death of Suman Behera,
the police with a view to cover up their crime threw the
body on the rail-track and the injuries on the face and left
temporal region were received by the deceased after he had
died. This aspect further exposes not only the barbaric
attitude of the police but also its crude attempt to
fabricate false clues and create false evidence with a view
to screen its offence. The falsity of the claim of escape
stands also exposed by the report from the Regional Forensic
Science Laboratory dated 11.3.1988 (Annexure R-8) which
mentions that the two pieces of rope sent for examination to
it, did not tally in respect of physical appearance, thereby
belying the police case that the deceased escaped from the
police custody by chewing the rope. The theory of escape
has, thus, been rightly disbelieved and I agree with the
view of Brother Verma J. that the death of Suman Behera was
caused while he was in custody of the police by police
torture. A custodial death is perhaps one of the worst
607
crimes in a civilised society governed by the Rule of Law.
It is not our concern at this stage, however, to determine
as to which police officer or officers were responsible for
the torture and ultimately the death of Suman Behera. That
is a matter which shall have to be decided by the competent
court. I respectfully agree with the directions given to
the State by Brother Verma, J. in this behalf.
On basis of the above conclusion, we have now to examine
whether to seek the right of redressal under Article 32 of
the Constitution, which is without prejudice to any other
action with respect to the same matter which way be lawfully
available, extends merely to a declaration that there has
been contravention and infringement of the guaranteed
fundamental rights and rest content at that by relegating
the party to seek relief through civil and criminal
proceedings or can it go further and grant redress also by
the only practicable form of redress by awarding monetary
damages for the infraction of the right to life.
It is exiomatic that convicts, prisoners or under-trials are
not denuded of their fundamental rights under Article 21 and
it is only such restrictions, as are permitted by law, which
can be imposed on the enjoyment of the fundamental right by
such persons. It is an obligation of the State, to ensure
that there is no infringement of the indefeasible rights of
a citizen to life, except in accordance with law while the
citizen is in its custody. The precious right guaranteed by
Article 21 of the Constitution of India cannot be denied to
convicts, under trials or other prisoners in custody, except
according to procedure established by law. There is a great
responsibility on the police or prison authorities to ensure
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that the citizen in its custody is not deprived of his right
to life. His liberty is in the very nature of things
circumscribed by the very fact of his confinement and
therefore his interest in the limited liberty left to him is
rather precious. The duty of care on the part of the State
is strict and admits of no exceptions. The wrongdoer is
accountable and the State is responsible if the person in
custody of the police is deprived of his life except
according to the procedure established by law. I agree with
Brother Verma, J. that the defence of "sovereign immunity’
in such cases is not available to the State and in fairness
to Mr. Altaf Ahmed it may be recorded that he raised no such
defence either.
608
Adverting to the grant of relief to the heirs of a victim of
custodial death for-the infraction or invasion of his rights
guaranteed under Article 21 of the Constitution of India, it
is not always enough to relegate him to .the ordinary remedy
of a civil suit to claim damages for the tortuous act of the
State as that remedy in private law indeed is available to
the aggrieved party. The citizen complaining of the
infringement of the indefeasible right under Article 21 of
the Constitution cannot be told that for the established
violation of the fundamental right to fife, he cannot get
any relief under the public law by the courts exercising
writ jurisdiction. The primary source of the public law
proceedings stems from the prerogative writs and the courts
have, therefore, to evolve ’new tools’ to give relief in
public law by molding it according to the situation with a
view to preserve and protect the Rule of Law. While
concluding his first Hamlyn Lecture in 1949 under the title
’Freedom under the Law’ Lord Denning in his own style
warned:
"No one can suppose that the executive will
never be guilty of the sins that are common to
all of us. You may be sure that they will
sometimes do things which they ought not to
do: and will not do things that they ought to
do. But if and when wrongs are thereby
suffered by any of us what is the remedy? Our
procedure for securing our personal freedom is
efficient, our procedure for preventing the
abuse of power is not. Just as the pick and
shovel is no longer suitable for the winning
of coal, so also the procedure of mandamus,
certiorari, and actions on the case are not
suitable for the winning of freedom in the new
age. They must be replaced by new and up to
date machinery, by declarations, injunctions
and actions for negligence... This is not the
task for Parliament..... the courts must do
this. Of all the great tasks that lie ahead
this is the greatest. Properly exercised the
new powers of the executive lead to the
welfare state; but abused they lead to a
totalitarian state. None such must ever be
allowed in this Country."
The old doctrine of only relegating the aggrieved to the
remedies available in civil law limits the role of the
courts too much as protector and guarantor of the
indefeasible Fights of the citizens. The courts have the
obligation to satisfy the social aspirations of the citizens
because the courts
609
and the law are for the people and expected to respond to
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their aspirations.
The public law proceedings serve a different purpose than
the private law proceedings. The relief of monetary
compensation, as exemplary damages, in proceedings under
Article 32 by this Court or under Article 226 by the High
Courts, for established infringement of the indefeasible
right guaranteed under Article 21 of the Constitution is a
remedy available in public law and is based on the strict
liability for contravention of the guaranteed basic and
indefeasible rights of the citizen. The purpose of 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.
Therefore, when the court molds the relief by granting
"compensation" in proceedings under Article 32 or 226 of the
Constitution seeking enforcement or protection of
fundamental rights, it does so under the public law by way
of penalising the wrongdoer and fixing the liability for the
public wrong on the State which has failed in its public
duty to protect the fundamental rights of the citizen. The
payment of compensation in such cases is not to be
understood, as it is generally understood in a civil action
for damages under the private law but in the broader sense
of providing relief by an order of making ’monetary amends’
under the public law for the wrong done due to breach of
public duty, of not protecting the fundamental rights of the
citizen. The compensation is in the nature of exempellary
damages’ awarded against the wrong doer for the breach of
its public law duty and is independent of the rights
available to the aggrieved party to claim compensation under
the private law in an action based on tort, through a suit
instituted in a court of competent jurisdiction or/and
persecute the offender under the penal law.
This Court 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 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 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
610
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 and Anr., [1983] 3
SCR 508 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 molded the relief by granting
compensation to the victims in exercise of their writ
jurisdiction. In doing so the courts take into account not
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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.
In the facts of the present case on the findings already
recorded, the mode of redress which commends appropriate is
to make an order of monetary amend in favour of the
petitioner for the custodial death of her son by ordering
payment of compensation by way of exemplary damages. For
the reasons recorded by Brother Verma, J., I agree that the
State of Orissa should pay a sum of Rs.1,50,000 to the
petitioner and a sum of Rs.10,000 by way of costs to the
Supreme Court Legal Aid Committee Board. I concur with the
view expressed by Brother Verma, J. and the directions given
by him in the judgment in all respects.
V.P.R.
Petition allowed.
611