SASI BEHERA vs STATE OF ODISHA
- Court
- Odisha High Court
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 5194 of 2025
CNR No. ODHC010112012025
In the matter of an application under Articles 226 & 227 of
the Constitution of India.
………………
Sasi Behera & Ors. …. Petitioners
-versus-
State of Odisha & Ors. …. Opposite Parties
For Petitioners : Mr. L. Achari, Advocate
For Opp. Parties : Mr. C.K. Pradhan, AGA
PRESENT:
THE HON BLE JUSTICE BIRAJA PRASANNA SATAPATHY
’
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Date of Hearing: 04.11.2026 & Date of Judgment:04.11.2026
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Biraja Prasanna Satapathy, J .
I.A. No.17212 of 2026
1. This matter is taken up through hybrid mode.
2. Heard learned counsel appearing for the parties.
3. Learned counsel appearing for the Petitioners contended that he
does not want to press this I.A.
// 2 //
4. Accordingly, the I.A. stands dismissed as not pressed.
(BIRAJA PRASANNA SATAPATHY)
Judge
W.P.(C) No.5194 of 2025
1. Heard learned counsel appearing for the Parties.
2. The present writ petition has been filed inter alia with the
following prayer:-
“ It is therefore prayed that this Hon'ble may
graciously be pleased to admit this writ application, call
for the records, issue notice to the opp. parties and on
hearing issue writ of mandamus directing the opp.
parties to pay compensation of Rs. 15,00,000/- (Rupees
Fifteen Lakh) only along with interest @ 18% per annum
to the petitioners from the date of custodial death of
Charan Behera the husband of the petitioner No. 1.
Further the petitioners prayed for a
direction to the State Govt. to give a suitable job to the
petitioner No. 1 for having lost her husband Charana
Behera and by quashing the Notification No.
HOMEJAIL- RULE-0002-2022/JAILS 8977 dated 2nd
March, 2023 under Annexure - 2 issued by the Addl.
Chief Secretary, Govt. of Odisha, Bhubaneswar, Dist -
Khurda.
Page 2 of 32
// 3 //
And may further be pleased to pass any
other order(s)/direction(s) as this Hon'ble Court deem fit
and proper in the facts and circumstances of the case.
And for the said act of kindness, the
petitioners as in duty bound shall ever pray.
”
3. Learned counsel appearing for the Petitioners contended that the
deceased, who happens to be the husband of Petitioner No.1 because
of his involvement in Bellaguntha PS Case No.301 dated 11.07.2023,
was arrested on 11.07.2023 and forwarded to the Court of learned
SDJM, Bhanjanagar. The deceased after being remanded to judicial
custody was sent to the Special Sub-jail, Bhanjanagar, where he was
admitted into jail custody as an UTP vide UTP No.470 of 2023 on
11.07.2023.6.1. It is contended that even though no notice was ever
issued to the Petitioner directing him to vacate the quarter, but
Petitioner when was charged with penal rent for the period from
February, 2002 to May, 2006 vide Annexure-6 communication
dtd.12.09.2017, Petitioner challenging the same, approached this
Court by filing W.P.(C) No. 7381 of 2018. This Court when directed
for consideration of the Petitioner’s claim, the same was rejected
vide the impugned order dtd.23.10.2018 under Annexure-9.
Page 3 of 32
// 4 //
3.1. On being so admitted to jail custody as an UTP the deceased was
staying in the quarantine house of the jail. However, while so staying
in the quarantine house of the jail with effect from 11.07.2023, the
deceased was brought to Sub-Divisional Hospital, Bhanjanagar on
15.07.2023 at about 9.35 A.M. in the morning in the jail Ambulance
for medical treatment. But, on examination by the concerned Doctor
who was present in the hospital, the deceased was declared brought
dead.
3.2. It is contended that because of such death of the deceased while
in custody on 15.07.2023 a post-mortem was also conducted on the
deceased and the following external injuries were found on the
deceased with internal injuries:-
i. A reddish brown coloured abrasion of size 5.5
cm X 3.5 cm with surrounding skin confusion
present over postero lateral aspect of left arm.
ii. A reddish brown coloured abrasion of size 2 cm
X 2 cm with surrounding skin confusion present
st
over skin below 1 lesion.
iii. A reddish brown coloured abrasion of size 5 cm
X 3 cm with surrounding skin present over middle
part of posterior aspect of left arm.
iv. A reddish brown coloured abrasion of size 4.5
cm X 3.5 cm with surrounding skin confusion
present over middle part of posterior aspect of left
arm.
Page 4 of 32
// 5 //
v. A bluish purple coloured bruise of size 15cm
x10cm present over postero lateral aspect of left
arm.
vi. A reddish brown coloured abrasion of size
5cmx3cm with surrounding skin confusion present
over upper part of left flank.
vii. A bluish purple coloured bruise of size
15cmx15cm present over left flank.
viii. A bluish purple coloured bruise of size
25cmx5cm present transversely over upper part of
back. On dissection there is extravasation of
blood.
3.3. Learned counsel appearing for the Petitioners further contended
that since the deceased died while in jail custody, an enquiry was
also conducted to ascertain the cause of death of the deceased. In the
said judicial enquiry conducted, it was clearly proved that the
deceased died while in jail custody and the death of the deceased is
homicidal in nature.
3.4. It is also the finding of the enquiry that the life of the deceased
could have been saved if the Jail Authority as well as the jail staffs
would have performed their duty as per the jail manual. Finding of
the report so available under Annexure-B to the counter reads as
follows:-
Page 5 of 32
// 6 //
The deceased UTP namely Charan Behera was admitted to
“
Special-Sub-Jail, Bhanjanagar at about 08:50 PM on dated
11.07.2023 being remanded by the Court in GR Case No.
1014/2023 arising out of Bellaguntha PS Case No. 301 of 2023,
after his admission his health screening report was prepared by
the Medical Officer i.e. E.W 23 and the said health screening
report is marked as Ext.8. From the Ext 8 it is found that there is
no previous history of illness mention in the health screening
report of the deceased UTP Charan Behera while he was
examined by the jail doctor on dated 12.07.2023. From the
evidence of the E.W.1 and E.W.3, who had conducted the post-
mortem report of the deceased UTP, it is found that there are
multiple injuries both internal and external are found over the
body of the deceased UTP and they have opined that the said
injuries may cause the death in ordinary courses of nature and
the statement and opinion of both the doctors are corroborated
by the jail medical officer i.e. E.W.23, as he has submitted in his
statement that before the UTP Charan Behera shifted to SDH,
Bhanjanagar he examined his pulse but he found not palpable
and he found multiple injuries over the body of the deceased
UTP Charan Behera. Hence, from the statement of the E.W.1,
E.W.3 and E. W.23 it is presumed that the death of the deceased
UTP Charan Behera was done inside the Special-Sub-Jail,
Bhanjanagar premises before he shifted to SDH, Bhanjanagar
for treatment on dated 15.07.2023 and also the cause of death of
the deceased UTP Charan Behera was due to the injuries found
over the body of the deceased UTP. From the statement of the
inmates of the deceased UTP Charan Behera i.e. E.W.19,
E.W.20 and E.W.21 who are residing with the deceased UTP
Charan Behera in the quarantine ward of jail medical, it is
found that they are stated in their statement that the life-convict-
cum-watcher namely Ajay Naik had assaulted severely to the
deceased UTP Charan Behera by means of a plastic pipe.
Moreover, they have also stated in their statement that the said
plastic pipe was supplied by the jail authority to the Life-
convict-cum-watcher Ajay Naik in order to create a fear in
minds of the prisoners. It is surprising to me that during the
inquiry except the UTPs who are resided with the deceased UTP
Charan Behera in the jail quarantine ward, none of the official
witnesses including the jail staffs are whispered a single line
regarding the cause of death of the deceased UTP or any assault
caused by the life-convict-Cum-Watcher Ajay Naik to the
deceased UTP Charan Behera while he was residing inside the
quarantine ward of jail medical. Moreover, from the Ext. 1 le the
post-mortem report of the deceased UTP Charan Behera it is
found that the probable time since death of the deceased UTP
Page 6 of 32
// 7 //
Charan Behera was mention about 6 to 12 hours of PM
examination. Further, the PM examination was conducted on
dated 15.07.2023 at about 03:10 PM and from the IN or OUT
register submitted by the jail authority which was marked as
Ext.5 it is found that Charan Behera was brought to SDH,
Bhanjanagar on dated 15.07.2023 at about 09:30 AM. While
comparing the IN and OUT register with the post-mortem report
of the deceased UTP, it is found that the UTP Charan Behera
was brought dead to the SDH, Bhanjanagar on dated
15.07.2023, that means the UTP Charan Behera was died inside
the Special-Sub-Jail, Bhanjanagar premises before he shifted to
SDH, Bhanjanagar for treatment on dated 15.07.2023.
Surprisingly, the E.W.22 who is the Jailer-Cum-Superintendent
of Special-Sub-Jail, Bhanjanagar has not whispered a single
line regarding the cause of the death of the deceased UTP
Charan Behera rather he has stated in his statement that the jail
medical officer intimated him over phone regarding the death of
deceased UTP Charan Behera due to cardiac arrest from the
SDH, Bhanjanagar but in order to know the truth while I
perused the statement of the Jail medical officer i.e. E.W.23 it is
found that he has denied the said fact by submitting in his
statement that before the UTP Charan Behera shifted to SDH,
Bhanjanagar he examined his pulse and found not palpable and
he also found multiple injuries over the body of the deceased
UTP Charan Behera and most interestingly he also submitted in
his statement that the death of deceased UTP Charan Behera
might have been caused due to injury found over his body before
he shifted to the SDH, Bhanjanagar for treatment. From the
statement of Jailer-Cum-Superintendent of Special-Sub-Jail,
Bhanjanagar it is found that he is hiding the truth and tried to
fool the inquiry officer during his examination in relation to this
case. Moreover, the Enquiry witness No. E.W.19 has stated in
his statement that the death of deceased UTP Charan Behera is
due to severe assault by the watcher-cum-life-convict Ajay Naik
by means of a plastic pipe and such assault was in the
knowledge of jail authority and his statement is corroborated by
the E.W.20 and E.W.21 in their statement. From the statement of
the inmates of the deceased UTP Charan Behera in the
quarantine ward of jail medical, it is found that the deceased
UTP Charan Behera was examined multiple injuries caused by
the Life-Convict-Cum-Watcher Ajay Naik by means of a plastic
pipe while he was residing inside the quarantine ward of
Special-Sub-Jail, Bhanjanagar and from the post-mortem report
and inquest report it is found that there are several injuries
found over the body of the deceased UTP namely Charan
Behera during the examination of his dead body. Moreover,
Page 7 of 32
// 8 //
from the post-mortem report it is seen that though the cause of
death was kept reserve pending till the chemical analysis of
routine of Viscera report but the doctors who had conducted the
post-mortem report are opined that the injury both external and
internal found over the body of the deceased UTP Charan
Behera may cause death in ordinary courses of nature. That
means, all the injuries in combination with their corresponding
internal and external Injuries are sufficient to cause death in
ordinary courses of nature Further, the E.W.19 has stated in his
statement that there is an every possibility of harassment to him
by the jail authority as while he left Special-Sub-Jail,
Bhanjanagar to this court in order to give his statement before
me, one Jail warder of Special-Sub-Jail, Bhanjanagar and Life-
Convict Ajay Naik are induced him not to tell the truth before
the Magistrate in relation to this case. Hence, from the conduct
of the jail warder and the Life-convict Ajay Naik it is presumed
that something is happening inside the Special-Sub-Jall,
Bhanjanagar against the deceased UTP Charan Behera for
which they have tried to influence the Enquiry witness i.e.
E.W.19 and also it creates a reasonable doubt in my minds that
the jail authority as well as the assaulter have a nexus with each
other and the Chief-Warder and the Night watcher who are on
duty on dated 14.07.2023 have a knowledge regarding such
assault and they also indirectly supported the Life-Convict-Cum-
Watcher Ajay Naik to manage and control the deceased UTP
Charan Behera inside the quarantine ward of Special-Sub-Jail,
Bhanjanagar. Moreover, from the statement of the E. W.19,
E.W.20 and E.W.21 and the other official witness of Special-
Sub-Jail, Bhanjanagar including the Jailer-Cum-Superintendent
of Special-Sub-Jail, Bhanjanagar it is found that the inmates of
the deceased U'TP Charan Behera i.e. E.W.19, E.W:20 and
E.W.21 are stated in their statement that the life-convict-cum-
watcher Ajay Naik assaulted the deceased UTP Charan Behera
by means of a plastic pipe causes multiple injuries over the body
of the deceased UTP Charan Behera and their version was
corroborated by the Jail-Medical Officer i.e. E.W.23 and also
the postmortem report reveals that the death of the UTP Charan
Behera may be caused due to the injury found over the body of
the deceased UTP. But surprisingly the Jailer-Cum-
Superintendent of Special-Sub-Jail, Bhanjanagar has stated in
his statement that the cause of death of the deceased UTP
Charan Behera was due to cardiac arrest. Further, during the
examination of staff of the Special-Sub-Jail, Bhanjanagar
including the jail warders it is found that they are not interested
to depose anything before the Inquiry Officer rather they
become tutor. Hence, the conduct and the statement of the jail
Page 8 of 32
// 9 //
warders including the Superintendent of Special-Sub-Jail,
Bhanjanagar are under suspicion.
It is crystal clear that the death of UTP Charan Behera was
homicidal in nature but there are reason to belief that the life
of the UTP Charan Behera would have been save, if the jail
authority as well as the jail staffs were performed their duty
and responsibility as per law. Somewhere I feel that the
Odisha Jail Manual has not been followed by the Jail authority
scrupulously. I cited some instances in the present case where
the provision of Jail Manual are completely ignored which
encourage the offender to do the present offence. ”
3.5. Relying on the view of the I.O. in the final form so submitted
under Annexure-1 series and the finding of the judicial enquiry so
available under Annexure-B to the counter, learned counsel
appearing for the Petitioners contended that since there is no dispute
that the deceased died while in jail custody on 15.07.2023,
Petitioners are eligible and entitled to get adequate compensation
from the State Authorities. Not only that since the deceased was the
only earning member of his family and he died while in jail custody,
direction be issued to Opposite Party No.1 to provide rehabilitation
appointment to the Petitioner No.1, who happens to be the wife of
the deceased as a special case.
3.6. It is further contended that the deceased left behind his wife,
Petitioner Nos.1, 3 minor children, Petitioner Nos.2 to 4 and his
parents, Petitioner Nos.5 and 6.
Page 9 of 32
// 10 //
3.7. In support of the aforesaid submission, reliance was placed to
the following decisions:-
1. Satyabhama Das Vs. State of Orissa & Others (OJC No.13732
of 1998).
2 Radhakanta Majhi V. State of Orissa & Others (W.P.(C )
No.11979 of 2004).
3. Kunja Parida Vs. State of Orissa & Others (W.P.(C ) No.2144 of
2007).
4. Munni Devi & Others Vs. State of Bihar & Others (Criminal
Writ No.1205 of 2008).
5.Kamala Tadingi Vs. Stage of Orissa & Others (W.P.(C )
Nos.20023 & 20024 of 2010).
6. Vushnu & Others Vs. State of Maharashtra & Others (Criminal
W.P. NO.1464 of 2015).
7. Sabara Khatun Vs. State of Assam & Others (W.P. No.306 of
2021).
3.8. This Court in the case of Satyabhama Das in paragraph-12 to 16
has held as follows:
12. Needless to say that the Hon'ble Supreme Court in
several decisions has observed that the precious right guaranteed
under Article 21 of the Constitution of India cannot be denied to the
under trial or other prisoners in custody, except according to the
procedure established by law. The prison authority has a great
responsibility to ensure that a citizen in custody is not deprived of his
right to life. He must be afforded with minimum necessities of life.
13. The apex Court in the case of D.K. Basu v. State of West Bengal,
AIR 1997 SC 610 held as follows:
Page 10 of 32
// 11 //
"Custodial death is perhaps one of the worst crimes in
a civilized society governed by the Rules of Law. The
rights inherent in Articles 21 and 22(1) of the
Constitution require to be jealously and scrupulously
protected. Court cannot wish away the problem. Any
form of torture or cruel, inhuman or degrading
treatment would fall within the inhibition of Article 21
of the Constitution, whether it occurs during
investigation, interrogation or otherwise. If the
functionaries of the Government become law
breakers, it is bound to breed contempt for law and
would encourage lawlessness and every man would
have the tendency to become law unto himself thereby
leading to anarchism. No civilized nation can permit
that to happen. Does a citizen shed off his
fundamental right to life, the moment a policeman
arrests him? Can the right to life of a citizen be put in
abeyance on his arrest ? These questions touch the
spinal cord of human rights jurisprudence. The
answer, indeed, has to be an emphatic 'No'. The
precious right guaranteed by Article 21 of the
Constitution of India cannot be denied to convicts,
under trials, detenus and other prisoners in custody,
except according to the procedure established by law
by placing such reasonable restrictions as are
permitted by law."
14. the apex Court, in the case of Chameli Singh & others vs. State
of Uttar Pradesh and another, AIR 1996 SC 1051, held as follows:
"Right to life" means to live like a human being and it is not ensured
by meeting only the animal needs of man. It includes the right to live
in any civilised society implies the right to food, water, decent
environment, education, medical care and shelter."
15. The term "life" used in Article 21 of the Constitution of India has
a wide and far-reaching concept. It means something more than
mere animal existence and the inhibition against the deprivation of
life extends to all those limits and faculties by which life is enjoyed.
(vide Board of Trustees of the Port of Bombay Vs. Dilipkumar
Raghavendranath Nadkarni, AIR 1983 SC 109; Olga Tellis & Ors.
Vs. Bombay Municipal Corporation & Ors., AIR 1986 SC 180.
16. In the case at hand, we are not satisfied that the opposite party-
authorities have taken adequate care of the deceased-Maheswar Das
in providing proper medical treatment and preventive measures for
which he died prematurely at the age of 45 years by committing
suicide. Therefore, the widow-dependants of the deceased-Maheswar
Das is entitled for compensation.
Page 11 of 32
// 12 //
16. In the case at hand, we are not satisfied that the opposite party-
authorities have taken adequate care of the deceased-Maheswar
Das in providing proper medical treatment and preventive
measures for which he died prematurely at the age of 45 years by
committing suicide. Therefore, the widow-dependants of the
deceased-Maheswar Das is entitled for compensation.
3.9. This Court in the case of Radhakanta Majhi in paragraphs-7 to
9 has held as follows:
7. Upon hearing learned counsel for the parties and on
consideration of the pleaded facts and documents on record and
more particularly the detailed enquiry report submitted by the Sub-
Divisional Magistrate, we are of the considered opinion that the
death of Dhaneswar Pradhan while in judicial custody had been
due to callousness and negligence on the part of the jail authorities,
more particularly, the attending doctor. True it is, that the enquiry
did not disclose any sign or mark of assault on him and the report
of Forensic Science Laboratory, Bhubaneswar also did not indicate
death due to poisoning, but it cannot be concluded that the death of
Dhaneswar Pradhan had been natural. It is more than apparent
that at the relevant point of time, the deceased had high fever
calling for necessary medical attention, which the jail authorities
failed to provide. Having regard to the purport and expanse of
Article 21 of the Constitution of India, there cannot be any manner
of doubt that the deceased, though a detenu, was entitled to be
provided with due care and attention during his illness. As the same
was not provided to him resulting in his death, we are constrained
to hold that the State Government is vicariously liable for the
custodial death of the son of petitioner nos.3 and 4, resulting in
violation of the fundamental right to life to pay adequate
compensation.
8. In course of arguments, on a query being made by us, it has been
submitted at the Bar that at the time of death of Dhaneswar
Pradhan he was aged about 20 years. Learned counsel for the
petitioners has submitted that at the relevant time he did earn his
livelihood being engaged as labourer. His family comprises of old
ailing parents who were depending on the deceased for their
sustenance. The untimely death of Dhaneswar Pradhan definitely
has caused a serious setback in their lives apart from mental agony
and sufferings consequent upon such tragedy.
Page 12 of 32
// 13 //
9. Compensation in a writ proceeding can never be a substitute for
loss of life and normally is by way of palliative and token in the
nature. This, by no means, as has been held by the apex Court in a
catena of decisions, is a bar for a person to pursue his other
remedies available in law. The amount of compensation is only on a
public law remedy for violation of Article 21 of the Constitution of
India.
Kunja Parida
3.10. This Court in the case of in paragraphs-7 to 12
&15 has held as follows:
7.
Needless to say that the Apex Court in several decisions has
observed that the precious right guaranteed under Article 21 of the
Constitution of India cannot be denied to the under trial or other
prisoners in custody, except according to the procedure established
by law. The prison authority has a great responsibility to ensure
that a citizen in custody is not deprived of his right to life. He must
be afforded with minimum necessities of life.
8. The Hon'ble Supreme Court in the case of D.K. Basu v. State of
West Bengal, MANU/SC/0157/1997: AIR 1997 SC 610 held that:
Custodial death is perhaps one of the worst crimes in
a civilized society governed by the Rules of Law. The
rights inherent in Articles 21 and 22(1) of the
Constitution require to be zealously 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 civilized 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
Page 13 of 32
// 14 //
answer, indeed, has to be an emphatic 'No'. The
precious right guaranteed by Article 21 of the
Constitution of India cannot be denied to convicts,
under trials, detenus and other prisoners in custody,
except according to the procedure established by law
by placing such reasonable restrictions as are
permitted by law.
9. The Hon'ble Supreme Court in the case of Chameli Singh & others
v. State of Uttar Pradesh and another, MANU/SC/0286/1996: AIR
1996 SC 1051, held as follows
"Right to life" means to live like a human being and
it is not ensured by meeting only the animal needs of
man. It includes the right to live in any civilized
society implies the right to food, water, decent
environment, education, medical care and shelter.
10. The Hon'ble Supreme Court in the case of Smt. Nilabati Behera
alias Lalita Behera v. State of Orissa and others.
MANU/SC/0307/1993 AIR 1993 SC 1960 has held as under:
30. It is axiomatic that convicts, prisoners or
undertrials 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, undertrials 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 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
Page 14 of 32
// 15 //
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.
11. The term "life" used in Article 21 of the Constitution of India
has a wide and far-reaching concept. It means something more
than mere animal existence and the inhibition against the
deprivation of life extends to all those limits and faculties by which
life is enjoyed, (vide Board of Trustees of the Port of Bombay v.
Dilipkumar Raghavendranath Nadkarni, MANU/SC/0184/1982:
AIR 1983 SC 109; Olga Tellis & Ors. v. Bombay Municipal
Corporation & Ors., MANU/SC/0039/1985: AIR 1986 SC 180; and
Kapila Hingorani v. State of Bihar, MANU/SC/0403/2003: (2003)
6 SCC 1).
12. In the instant case, there is no material on record to support the
claim of the State that from the date of admission, the deceased was
treated as an indoor patient in Jail Hospital till he was sent to
Capital Hospital on 05.11.2003 when he became serious. No
Intimation was sent to his family members regarding illness of the
deceased and his treatment in Jail Hospital. Capital Hospital on
12.9.2003 and 13.9.2003 respectively. This is certainly a serious
laches on the part of the Jail Authorities. No step was also taken to
send the message of illness of the deceased to his family. It was
only after death of the deceased, the I.I.C., Chandrasekharpur
Police Station was informed to intimate the relatives of the
deceased about his death. This is certainly serious laches on the
part of the State Authorities. There is nothing on record to show
that the medicine and diet prescribed by the physician were given
to the deceased. Needless to say that it is the duty cast on the Jail
Authorities to see that the diet and medicine prescribed to an
under-trial prisoner-patient have been provided. No convincing
reason has been assigned by the opposite parties as to why the
dead body of the deceased was sent to SCB from Capital Hospital
and again for the purpose of post-mortem, the dead body of the
deceased was returned to Capital Hospital. All such conduct of the
Jail Authorities create grave suspicion n the mind of this Court
about providing proper treatment and care to the deceased during
his stay in the jail as an under trial prisoner, who died at the age of
40. Therefore, the Petitioners, who are wife and children of the
deceased, are entitled for compensation.
Page 15 of 32
// 16 //
15. In the fact situation, considering the age of the deceased and
since he was only bread-winner of the bereaved family, we deem it
just and proper to direct opposite party-State to pay an ex gratia of
Rs. 5.00 lakhs to the bereaved family of the deceased within a
period of eight weeks from today failing which the ex gratia of Rs.
5 lakhs shall carry interest of 9% per annum, after the date of
expiry of eight weeks till the date of payment.
It is further directed that out of total compensation of Rs. 5.00
lakhs. Rs. 1.00 lakh shall be deposited in a fixed deposit in any
Nationalized Bank in the name of petitioner No. 1 and the monthly
interest accrued thereon shall be paid to petitioner No. 1 in every
month. Rs. 1,50,000/- (Rupees one lakh fifty thousand) in the joint
names of petitioner Nos. 1 and 2 and another Rs. 1,50,000/-
(Rupees one lakh fifty thousand) in the joint riames of petitioner
Nos. 1 and 3 shall be kept in any Nationalized Bank till petitioner
Nos. 2 and 3 attain majority, as the said amount is awarded in their
favour. The interest earned on such deposits of the petitioner Nos.
2 and 3 shall be withdrawn every month and utilized for their
welfare, such as education, clothing, food and other related
expenses. The balance amount of Rs. 1 lakh (Rupees one lakh) shall
be paid to petitioner No. 1 in cash on proper identification within a
period of eight weeks.
3.11. This Court in the case of Munni Debi in paragraphs-10, 13, 14,
15 & 16 has held as follows:
10. How far an under trial prisoner is entitled for Article 21 of the
Constitution has been taken into consideration by the Hon'ble Apex
Court and for that I would like to rely upon a decision reported in AIR
2000 SC 2083 and the relevant paragraphs are as follows:
"22 Right to Life is one of the basic human rights. It is guaranteed to
every person by Article 21 of the Constitution and not even the State
has the authority to violate that right. A prisoner, be he a convict or
undertrial or a detenu, does not cease to be a human being. Even
when lodged in the jail, he continues to enjoy all his fundamental
rights including the right to life guaranteed to him under the
Constitution. On being convicted of crime and deprived of their
liberty in accordance with the procedure established by law, prisoners
still retain the residue of constitutional rights.
Page 16 of 32
// 17 //
24. Thus according to the definition under the Prisoners Act, there is a
convict, there is an undertrial and there is a civil prisoner who may
be a detenu under preventive detention law of the three cotsportes of
prisoners lose their fundamental reason being placed inside a prison.
The restriction placed on The right to movement is the result of their
conviction or mot sa crtee Thes, a person prisoner) is deprived of his
personal Liberty in accordance with the procedure established by Tow
which, at pointed out in Makandhi Union of India must be reasonable,
fair and Just.
25. The rights of prisoners, including their fundamental rights have
been called out by this Court in a large number of decisions. all of
which say not be referred to here. In State of Maharashtra V.
Prabhakar Pandurang Sanzgirill it was held that conditions of
detention cannot be be extended to deprivation of other fundamental
rights and the detenu, who had written a book in Marathi, could not
be prohibited from sending the book outside the jail for its
publication. In Bluvan Mohan Patnaik w. State of A P.12 it was Laid
down that convicts are not denuded of all the fundamental rights they
possess Chandrachud, 3 as he then was held
"The security of one's person against an
arbitrary encroachment by the police is basic
to a free society and prisoners cannot be
thrown at the mercy of policemen as if it were
a part of an unwritten law of crimes. Such
intrusions are against the very essence of a
scheme of ordered liberty" (See D. Bhuvan12,
SCC p. 183, para 9)
26. In Charles Sobraj v. Supdt Central Jail. Tihar13
Krishna lyer, J
Observed as under: (SCC p. 110, para 14) "Trae, confronted with
cruel conditions of confinement, the court has an expanded role. True,
the right to life is more than mere animal existence, or vegetable
subsistence. Tron, the worth of the human person and dignity and
divinity of every individual inform Articles 19 and 21 even in a prison
setting. True constitutional provisions and municipal laws must be
interpreted in the light of the normative laws of nations, wherever
possible and a prisoner does not forfeit his Part III rights." (See.
Charles Sobraj13, AIR p. 1517, para 14)
27.
In Francis Coralie Mullin v. Administrator, Union Territory of
Delhi 14 the Court held that right to life means the right to live with
Page 17 of 32
// 18 //
basic human dignity. In this case, the petitioner, who was a British
national and was detained in Central Jail, Tihar, had approached this
Court throughs a petition of habeas corpus in which it was stated that
she experienced considerable difficulty in having interview with her
lawyer and the members of her family. She stated that her daughter,
who was 5 years of age, and her sister who was looking after the
daughter, were permitted to have interview with her only once in a
month. Considering the petition, Bhagwati, J. (as he then was)
observed at AIR pp. 753-54 in para 8 as under: (SCC pp. 619-20,
para 9) "9. The same consequence would follow even if this problem is
considered from the point of view of the right to personal liberty
enshrined in Article 21, for the right to have interviews with members
of the family and friends is clearly part of personal liberty guaranteed
under that article. The expression personal liberty occurring in Article
21 has been given a broad and liberal interpretation in Maneka
Gandhi case 10 and it has been held in that case that the expression
personal liberty used in that article is of the widest amplitude and it
covers a variety of rights which go to constitute the personal liberty of
a man and it also includes rights which have been raised to the status
of distinct fundamental rights and given additional protection under
Article 19. There can therefore be no doubt that personal liberty
would include the right to socialize with members of the family and
friends subject, of course, to any valid prison regulations and under
Articles 14 and 21, such prison regulations must be reasonable and
non-arbitrary. If any prison regulation or procedure laid down by it
regulating the right to have interviews with members of the family and
friends is arbitrary or unreasonable, it would be liable to he struck
down as invalid as being violative of Articles 14 and 21." (See also:
Sunil Batra v. Delhi Admn.15 and Sunil Batra (II) v. Delhi Admn.16)
28. Thus, fundamental rights, which also include basic human rights,
continue to be available to a prisoner and those rights cannot be
defeated by pleading the old and archaic defence of immunity in
respect of sovereign acts which has been rejected several times by this
Court.
29. In N. Nagendra Rao & Co. v. State of A.P.17 it was observed:
(SCC p. 235, para 25) "25. But there the immunity ends. No civilized
system can permit an executive to play with the people of its country
and claim that it is entitled to act in any manner as it is sovereign. The
concept of public interest has changed with structural change in the
society. No legal or political system today can place the State above
law as it is unjust and unfair for a citizen to be deprived of his
property illegally by negligent act of officers of the State without any
remedy. From sincerity, efficiency and dignity of State as a juristic
person, propounded in nineteenth century as sound sociological basis
Page 18 of 32
// 19 //
for State immunity the circle has gone round and the emphasis now is
more on liberty, equality and the rule of law. The modern social
thinking of progressive societies and the judicial approach is to do
away with archaic State protection and place the State or the
Government on a par with any other juristic legal entity. Any
watertight compartmentalization of the functions of the State as
sovereign and non-sovereign or governmental and non-governmental
is not sound. It is contrary to modern jurisprudential thinking. The
need of the State to have extraordinary powers cannot be doubted. But
with the conceptual change of statutory power being statutory duty for
sake of society and the people the claim of a common man or ordinary
citizen cannot be thrown out merely because it was done by an officer
of the State even though it was against law and negligent. Needs of the
State, duty of its officials and right of the citizens are required to be
reconciled so that the rule of law in a welfare State is not shaken.
Even in America where this doctrine of sovereignty found its place
either because of the financial instability of the infant American States
rather than to the stability of the doctrine's theoretical foundation, or
because of Jogical and practical ground, or that there could be no
legal right as against the State which made the law gradually gave
way to the movement from, State irresponsibility to State
responsibility In welfare State, functions of the State are not only
defence of the country or administration of justice or maintaining law
and order but it extends to regulating and controlling the activities of
people in almost every sphere, educational, commercial, social,
economic, political and even marital. The demarcating line between
sovereign and non- sovereign powers for which no rational basis
survives has largely disappeared therefore, barring functions such as
administration of justice, maintenance of law and order and
repression of crime etc. which are among the primary and inalienable
functions of a constitutional Government, the State cannot claim any
immunity."
30. The whole question was again examined by this Court in Common
Cause, A Registered Society v. Union of India 18 in which the entire
history relating to the institution of suits by or against the State or, to
be precise, against the Government of India, beginning from the time
of the East India Company right up to the stage of the Constitution,
was considered and the theory of immunity was rejected. In this
process of judicial advancement, Kasturi Lal case has paled into
insignificance and is no longer of any binding value.
31. This Court, through a stream of cases, has already awarded
compensation to the persons who suffered personal injuries at the
hands of the officers of the Government including police officers and
personnel for their tortious act. Though most of these cases were
Page 19 of 32
// 20 //
decided under public law domain, it would not make any difference as
in the instant case, two vital factors, namely, police negligence as also
the Sub-Inspector being in conspiracy are established as a fact.
32. Moreover, these decisions, as for example, Nilabati Behera v.
State of Orissa19, Death of Sawinder Singh Grower, In re 20 and
D.K. Basu v. State of W.B.21 would indicate that so far as
fundamental rights and human rights or human dignity are concerned,
the law has marched ahead like a Pegasus but the government attitude
continues to be conservative and it tries to defend its action or the
tortious action of its officers by raising the plea of immunity for
sovereign acts or acts of the State, which must fail.
13 .Thus, from the factual aspect as is visualizing in the background of
the materials placed by the rival parties as well as having it properly
scrutinized, it is clearly evident that languishing of deceased under
trial prisoner from 7.8.2007 to 20.8.2007 at SKMCH, Muzaffarpur
was uncared and further the acute chronic disease of deceased under
trial prisoner, Arbind Kumar Singh even failed to sensitize the
authorities concerned to discharge their pious obligation which they
were bounded for and | slackness on their part for the aforesaid
intervening period has ultimately cost the life of under trial prisoner.
14. It is needless to remind that the employer is accountable for the
negligence on the part of his employee and for that I would like to
refer AIR 1962 SC 933 as well as 1989(4) SCC 730.
15. Thus, the State is held accountable for the negligence committed
at the part of its employee which ultimately cost life of under trial
prisoner, Arbind Kumar Singh.
16. Consequent thereupon, State is directed to pay lump sum of Rs.2
Lacs to the petitioner, Munni Devi wife of late Arbind Kumar Singh @
Arbind Singh within two months from the date of receipt of this order.
3.12. This Court in the case of Kamala Tadingi in paragraphs-11 to
17 has held as follows:
11. Needless to say that the apex Court in several decisions has
observed that the precious right guaranteed under Article 21 of the
Constitution of India cannot be denied to the undertrial or other
Page 20 of 32
// 21 //
prisoners in custody, except according to the procedure established
by law. The prison authority has a great responsibility to ensure
that a citizen in custody is not deprived of his right to life. He must
be afforded with minimum necessities of life.
12. The apex Court in the case of D.K. Basu v. State of West
Bengal, AIR 1997 SC 610 held that:
Custodial death is perhaps one of the worst crimes in a
civilised society governed by the Rules of Law. The rights
inherent in Articles 21 and 22(1) of the Constitution
require to be jealously and scrupulously protected. Court
cannot wish away the problem. Any form of torture or
cruel, inhuman or degrading treatment would fall within
the inhibition of Article 21 of the Constitution, whether it
occurs during investigation, interrogation or otherwise. If
the functionaries of the Government become law breakers,
it is bound to breed contempt for law and would
encourage lawlessness and every man would have the
tendency to become law unto himself thereby leading to
anarchism. No civilized nation can permit that to happen.
Does a citizen shed off his fundamental right to life, the
moment a policeman arrests him? Can the right to life of
a citizen be put in abeyance on his arrest ? These
questions touch the spinal cord of human rights
jurisprudence. The answer, indeed, has to be an emphatic
‘No’. The precious right guaranteed by Article 21 of the
Constitution of India cannot be denied to convicts, under
trials, detenus and other prisoners in custody, except
according to the procedure established by law by placing
such reasonable restrictions as are permitted by law.”
13. The apex Court, in the case of Chameli Singh & others Vs. State
of Uttar Pradesh and another, AIR 1996 SC 1051, held as follows:
“Right to life” means to live like a human being and it
is not ensured by meeting only the animal needs of
man. It includes the right to live in any civilized society
implies the right to food, water, decent environment,
education, medical care and shelter.”
14. The
term “life” used in Article 21 of the Constitution of India has
a wide and far-reaching concept. It means something more than
mere animal existence and the inhibition against the deprivation of
life extends to all those limits and faculties by which life is enjoyed.
(Vide Board of Trustees of the Port of Bombay Vs. Dilipkumar
Raghavendranath Nadkarni, AIR 1983 SC 109; Olga Tellis & Ors.
Vs. Bombay Municipal Corporation & Ors., AIR 1986 SC 1280; and
Kapila Hingorani Vs. State of Bihar , (2003) 6 SCC 1).”
Page 21 of 32
// 22 //
15. In the cases at hand, we are not satisfied that the opposite party-
authorities have taken adequate care of the deceased prisoners,
Gangula Tadingi and Ratunu Sirika in providing proper medical
treatment for which they died prematurely at the age of 44 years and
38 years respectively in curable diseases. Therefore, the widow-
dependants of the deceased Gangula Tadingi and Ratunu Sirika are
entitled for compensation.
16. At this juncture, it is profitable to refer to the decision of the apex
Court in D.K.Basu (supra) wherein the apex Court held as under:
“42. Some punitive provisions are contained in the Indian Penal
Code which seeks to punish violation of right to life. Section 220
provides for punishment to an officer or authority who detains or
keeps a person in confinement with a corrupt or malicious motive.
Sections 330 and 331 provide for punishment of those who inflict
injury or grievous hurt on a person to extort confession or
information in regard to commission of an offence. Illustration (a)
and (b) to Section 330 make a police officer guilty of torturing a
person in order to induce him to confess the commission of a crime
or to induce him to point out places where stolen property is
deposited. Section 330, therefore, directly makes torture during
interrogation and investigation punishable under the Indian Penal
Code. These statutory provisions are, however, inadequate to repair
the wrong done to the citizen. Prosecution of the offender is an
obligation of the State in case of every crime but the victim of crime
needs to be compensated monetarily also. The Court, where the
infringement of the fundamental right is established, therefore,
cannot stop by giving a mere declaration. It must proceed further
and give compensatory relief, not by way of damages as in a civil
action but by way of compensation under the public law jurisdiction
for the wrong done, due to breach of public duty by the State of not
protecting the fundamental right to life of the citizen. To repair the
wrong done and give judicial redress for legal injury is compulsion
of judicial conscience.
xxxx xxxx xxxx
55. Thus, to sum up, it is now a well accepted proposition in most of the
jurisdiction, that monetary or pecuniary compensation is an
appropriate and indeed an effective and sometimes perhaps the only
suitable remedy for redressal of the established infringement of the
fundamental right to life of a citizen by the public servants and the State
is vicariously liable for their acts. The claim of the citizen is based on
the principle of strict liability to which the defence of sovereign
immunity is not available and the citizen must receive the amount of
compensation from the State, which shall have the right to be
indemnified by the wrong doer. In the assessment of compensation, the
emphasis has to be on the compensatory and not on punitive element.
The objective is to apply balm to the wounds and not to punish the
Page 22 of 32
// 23 //
transgressor or the offender, as awarding appropriate punishment for
the offence (irrespective of compensation) must be left to the Criminal
Courts in which the offender is prosecuted, which the State, in law, is
duty bound to do. The award of compensation in the public law
jurisdiction is also without prejudice to any other action like civil suit
for damages which is lawfully available to the victim or the heirs of the
deceased victim with respect to the same matter for the tortious act
committed by the functionaries of the State. The quantum of
compensation will, of course, depend upon the peculiar facts of each
case and no strait-jacket formula can be evolved in that behalf. The
relief to redress the wrong for the established invasion of the
fundamental rights of the citizen, under the public law jurisdiction is,
thus, in addition to the traditional remedies and not in derogation of
them. The amount of compensation as awarded by the Court and paid
by the State to redress the wrong done, may in a given case, be adjusted
against any amount which may be awarded to the claimant by way of
damages in
a civil suit.”
17. In the fact situation, considering the age of the deceased persons, we
direct that compensation of Rs.3, 50,000/- (Rupees Three lakhs fifty
thousand) should be paid to each of the petitioners. Eighty percent of the
total amount of compensation shall be kept in a fixed deposit in any
Nationalized Bank in the name of the widow-petitioners for a period of
five years and the monthly interest accrued thereon shall be paid to the
petitioners on proper identification. If the amount directed to keep in
fixed deposit is required to meet any pressing needs or for any
development of the family the same may be withdrawn by filing an
application before this Court for grant of such permission. The balance
twenty percent of the amount of compensation shall be paid to each of the
petitioners on proper identification within a period of four weeks from
today.
3.13. This Court in the case of Vishnu & Others in paragraphs-8, 9,
10,11,12,13 & 14 has held as follows:
8. The question before us is whether the death of the deceased was
caused for want of proper medical care and treatment. The records
reveal that the deceased was not provided any treatment while he
was in jail from 7/2/2012 till the date he was shifted to the hospital.
All that the jail authorities had done is that they collected the blood
sample of the deceased Pratap on 10/2/2012, report of which was
received after his death. The contentions of the learned A.P.P. that
Page 23 of 32
// 24 //
the deceased Pratap ought to have approached the doctor and
narrated about his sickness cannot be accepted. As noted above, the
deceased who was an undertrial prisoner, had approached the
Magistrate and had complained about ill-health. The jail authorities
were, therefore, well aware that the deceased was having some sort
of ailment. Having opposed the application on the ground that all the
facilities were available in the jail, it was the duty of the
Superintendent of Jail and all the other concerned to ensure that
necessary medical facility was provided to the deceased Pratap. The
records further reveal that, even after the deceased was shifted to the
hospital, the doctor on duty had informed the on-duty Constable that
the patient had to be shifted to Government Medical College &
Hospital, Aurangabad. The said Constable from Headquarters, Beed
had made an endorsement that for some reason, he is unable to shift
the accused to Government Medical College & Hospital,
Aurangabad and that they would have no grievance if the life of the
deceased Pratap was in danger. endorsement itself reflects total
callous and insensitive mindset of the police authorities as well as
the jail authorities. This endorsement itself reflects total callous and
insensitive mindset of the police authorities as well as the jail
authorities.
9. The affidavit filed by Anil Paraskar, Superintendent of Police
(respondent No.2) also indicates that Sub-Divisional Officer has
attributed negligence to the Police Duty Guard who had refused to
shift the deceased to Government Medical College, Aurangabad
despite advice of the doctor at District Government Hospital, Beed.
In paragraph 9 of the affidavit it is stated that "during the inquiry,
the State C.I.D. as well as Sub-Divisional Police Officer, it was
revealed that there was no ill-treatment at the hands of Jail
Authorities in jail." We are conscious of the fact that this is not a
typical case of death due to custodial violence or torture. The present
case reveals that
despite the request of the deceased, an undertrial prisoner, to
provide medical treatment, no timely medical aid was provided to
him except for collecting his blood sample, report of which was
received after his demise. This fact has not been considered in the
magisterial inquiry report.
10. In Suba Singh Vs. State of Haryana (2006)3 SCC 178 , the
Apex Court has observed thus:
"38. It is well settled that the award of
compensation against the State is an appropriate
and effective remedy for redress of an established
infringement of a fundamental right under Article
Page 24 of 32
// 25 //
21, by a public servant. The quantum of
compensation will, however, depend upon the facts
and circumstances of each case, award of such
compensation (by way of public law remedy) will
not come in the way of the aggrieved person
claiming additional compensation in a civil court,
in the enforcement of the private law remedy in
tort, nor come in the way of the criminal court
ordering compensation under Section 357 of the
Code of Criminal Procedure.”
In Sujata Kumunda Manerao Vs. State of Maharashtra & Ors.
(2004 ACJ 11023) , the Division Bench of this Court has observed that:
“7. It is bounden duty of the State ot look after health
of the inmates in the jails since they cannot take
treatment on their own and for the purpose of
treatment, they are at the mercy of the hospital
authorities. Proper medical aid to the inmates is a
right available to them under Article 21 of the
Constitution. The Apex Court in P.B. Khet Mazdoor
Samity's case (supra) has laid down that Article 21
imposes an obligation on the State to safeguard the
right to life of every person Preservation of human
life is thus of paramount importance and failure on
the part of a Government hospital to provide timely
medical treatment to a person in need of such
treatment results in violation of his right to life
guaranteed under Article 21. It is also laid down by
the Supreme Court in the said judgment that it is
well settled that adequate compensation can be
awarded by the Court for such violation by way of
redress in proceedings under Articles 32 and 226 of
the Constitution."
11.
Having gone through the records, in our considered view, there has
been total negligence and lapse on the part of the jail authorities in
providing adequate, effective and proper medical treatment and on the
part of the police guard on duty who declined to shift the deceased
Pratap Kute to Government Medical College, Aurangabad which has
resulted in his death.
12. The deceased was a young man of 32 years of age, with his wife,
children and parents dependent on him. The deceased was not a hardened
criminal involved in some grave or serious crime. He lost his life only due to
the failure of the Jail authority to provide medical treatment. It need not be
emphasized that the right to health enshrined in Art. 21 of the Constitution
Page 25 of 32
// 26 //
of India particularly of a prisoner, who is deprived of his personal liberty,
albeit in accordance with the procedure established by law, cannot be
ignored. In fact the Hon'ble Supreme Court has in several decisions held
that the right to life includes right to live with human dignity. Hence the duty
of the State to provide medical treatment to the prisoners, to take care and
ensure their safety and security of the prisoners and treat them with human
dignity needs no affirmation. The Government having failed in its duty, the
petitioners being the parents, widow and the children of the deceased are
entitled for compensation.
13. As regards the quantum of compensation, the deceased was 32 years of
age. His parents, wife and two minor children were dependent on him. The
parents, widow and the children of the deceased have also been deprived of
love and affection of their loved one due to his untimely death caused due to
negligence of the jail authority and the police guard. In such circumstances,
though we cannot compensate human life in true sense, we are inclined to
award compensation of Rs.10,00,000/- (Rupees ten lakhs) to the petitioners.
14. In the result, the respondent No.1 State of Maharashtra is directed to
pay compensation of Rs.10, 00,000/-(Rupees ten lakhs) to the petitioners.
The compensation shall be paid within four weeks from today be paid
within four weeks from today failing which the amount will carry interest @
6% p.a. from the date of the order till the date of payment. The State is at
liberty to recover the same from the concerned officers who are negligent in
providing medical aid to the undertrial prisoner. Rule made absolute in
above terms.
3.14. This Court in the case of Sabara Khatun in paragraphs-23, 24
& 25 has held as follows:
23. We are of the considered opinion that being an under trial
prisoner, since 24.05.2018 till his death on 01.07.2018, the
deceased Rohijuddin Sk. was entitled to get adequate and
appropriate medical treatment as same would be regarded as a
part of Right to Life guaranteed to him under Article 21 of the
Constitution of India.
24. In the case in hand, we are of the view that the said right
appears to have been violated to the extent that though the husband
of the petitioner was suffering from Chronic Obstructive Pulmonary
Disease, however, the treatment for the same was provided first
time to him only on 28.06.2018 Lc.. three days prior to his death.
Before that, he was only being treated for hypertension for more
than a month during which he was in custody.
Page 26 of 32
// 27 //
25. In the case of Nilabati Behera-Vs-State of Orrisa and Ors
(Supra), the Hon'ble Apex Court has observed as follows:
“35. 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 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 [(1983) 4
SCC 141: 1983 SCC (Cri) 798 (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 Page No.
10/12 the wrongdoer and it is in that spirit that the courts have
moulded the relief by granting compensation to the victims in
exercise of their writ jurisdiction. In doing so the courts take into
account not only the interest of the applicant and the respondent but
also the interests of the public as a whole with a view to ensure that
public bodies or officials do not act unlawfully and do perform their
public duties properly particularly where the fundamental right 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."
Page 27 of 32
// 28 //
3.15. It is also contended that following the decisions as cited supra,
this Court while dealing with a similar issue in W.P.(C) No.27275 of
2017, vide judgment dated 25.11.2025 held as follows in Para 4.3 to
4.5.
4.3. Since Petitioner's husband remained in custody w.e.f
20.09.2016 and while in custody, his health condition
deteriorated and subsequently he died on 26.01.2017, it is
the view of this Court that claim made by the Petitioner to
get compensation on the ground of negligence on the part
of the jail authorities is well proved.
4.4. Placing reliance on the decisions as cited supra, and
the materials available on record, this Court taking into
account the negligence on the part of the jail authorities in
not providing proper and better treatment to the U.T.P.,
while in custody w.e.f 20.09.2016, is of the view that
Petitioner is eligible and entitled to get the benefit of
compensation.
4.5. However, taking into account the materials available
on record, the earning of the deceased and the future life of
the Petitioner, this Court held the Petitioner entitled to get
compensation amount of Rs. 20,00,000/-(Rupees Twenty
Lakhs) from the Opp. parties. This Court accordingly
directs Opp. party No.1 to release the aforesaid
compensation amount in favour of the Petitioner within a
period of 6(six) weeks from the date of receipt of this order.
3.16. It is accordingly contended that Opposite Party-State be
directed to pay compensation amount of Rs.15,00,000/- as prayed for
and also provide rehabilitation appointment to Petitioner No.1
Page 28 of 32
// 29 //
4. Learned Additional Government Advocate while opposing the
prayer for compensation so prayed for and so also the appointment
under Rehabilitation Assistance Scheme, contended that though there
is no dispute that the deceased died while in jail custody on
15.07.2023, on being remanded to such custody on 11.07.2023, but
in view of the notification issued by the Government-Opposite Party
No.1 on 02.03.2023 under Annexure-C to the counter affidavit,
Petitioners are eligible and entitled to get compensation amount of
Rs.3,00,000/-.
4.1. Taking this Court to the notification dated 02.03.2023, learned
AGA contended that since because of the negligence of the jail
authority the deceased died on 15.07.2023, in view of the notification
so issued by the Department Petitioners are eligible and entitled to
get compensation amount of Rs.3,00,000/-. It is accordingly
contended that the claim made towards compensation at
Rs.15,00,000/- in the present Writ Petition is not at all entertainable.
4.2. It is also contended that since the deceased died while in jail
custody and as per the notification issued on 02.03.2023, Petitioners
are eligible and entitled to get compensation amount of Rs.3,00,000/-
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and there is no such provision to provide compassionate appointment
to any of the family members of the deceased, claim of the
Petitioners to provide compassionate appointment in favour of
Petitioner No.1 is also not entertainable.
4.3. Making all the submissions, learned AGA contended that
Opposite Party No.1 in terms of the notification issued under
Annexure-C can be directed to pay compensation amount of
Rs.3,00,000/-.
5. Having heard learned counsel for the parties, considering the
submissions made and the materials available on record, it is found
that the deceased because of his implication in Bellaguntha PS Case
No.301 dated 11.07.2023 was arrested by the local police on
11.07.2023. On being remanded judicial custody on 11.07.2023,
Petitioner was admitted to Special sub-Jail Bhanjanagar as an UTP
vide UTP No.470 of 2023 on 11.07.2023 at about 9.30 am.
5.1. It is found that while so continuing in jail custody with effect
from 11.07.2023, the deceased was brought to sub-Divisional
Hospital, Bhanjanagar on 15.07.2023 at about 9.30 am for medical
treatment in the jail ambulance. However, concerned Doctor of the
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// 31 //
Hospital declared the deceased as brought dead. It is also found from
the final form that the deceased because of various internal and
external injuries so inflicted on him by the co-convicts in the jail
succumbed to the injury on 15.07.2023. The deceased has left behind
his old parents, three minor children and Petitioner No.1, who
happens to be the wife.
5.2. It is also found from the report available under Annexure-B, the
enquiring authority in his finding has come to a definite conclusion
that because of the negligence of the Jail Authority, the deceased
while in jail custody with effect from 11.07.2023, died on
15.07.2023. Since it is not disputed that the deceased while in
custody died on 15.07.2023 because of the injuries inflicted on him
by the co-convicts, this Court placing reliance on the decision as
cited supra, is inclined to allow the prayer made in the Writ Petition.
While allowing the same, this Court directs Opposite Party No.1 to
release compensation amount of Rs.15,00,000/- in favour of the
Petitioners and also take appropriate steps in providing
compassionate appointment to Petitioner No.1 as against any Group-
D post under the Department.
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5.3. This Court directs Opposite Party No.1 to release a sum of
Rs.10,00,000/- in favour of Petitioner No.1 and keep a sum of
Rs.5,00,000/- in the fixed deposit in the name of Petitioner No.4,
who happens to be the minor daughter of the deceased, for a period
of six (6) years. This Court also directs Opposite Party No.1 to
provide compassionate appointment in favour of Petitioner No.1 in
any suitable Group-D post coming under the Department as a special
case.
5.4. This Court directs Opposite Party No.1 to complete the entire
exercise within a period of two (2) months from the date of receipt of
this order.
6. The Writ Petition accordingly stands disposed of.
(BIRAJA PRASANNA SATAPATHY)
Judge
Orissa High Court, Cuttack
th
Dated the 4 November, 2026/Sipra
Signature Not Verified
Page 32 of 32
Digitally Signed
Signed by: SIPRA MUDULI
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa,
Cuttack
Date: 11-Nov-2026 15:21:58