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2004 DIGILAW 1076 (PAT)

Sanjay Sharma v. State Of Bihar

2004-10-06

CHANDRAMAULI KR.PRASAD

body2004
Judgment Chandramauli Kr.Prasad, J. 1. Prayer of the petitioner in this writ application filed under Article 226 of the Constitution of India is to direct the respondents to pay to the petitioner a sum of rupees five lakhs as compensation on account of death of his father and brother, while in judicial custody. 2. Facts leading to the filing of the present application are that in relation to an incident which had taken place on 5.8.1999 at village Berthu within the police station Makhdumpur in the district of Jahanabad, Makhdumpur RS. Case No. 241 of 1999 was registered under Sections 147, 148, 149, 302, 448, 424, 323 and 342 of the Indian Penal Code, 27 of the Arms Act, 3/4 of the Explosive Substance Act and Section 17/18 of the Criminal Law Amendment Act. In the said case petitioner Sanjay Sharma, his father Rajendra Singh and brother Sanjeev Sharma figured as accused. According to the petitioner when they knew about their false implication in the case petitioner, his father and brother surrendered in the court of the Chief Judicial Magistrate, Jahanabad from where they were remanded to judicial custody and lodged in the Subdivisional Jail, Jahanabad. On account of palpable tension between prisoners belonging or associated with the Ranvir Sena and prisoners belonging to or associated with left wing extremist group, the authority transferred a group of 35 persons belonging to first category and 42 prisoners belonging to second category to Bhagalpur Central Jail and Hazaribagh Central Jail respectively in July, 1999 for a period of six moths. Later on respondents committed foolish act by shifting the persons from Bhagalpur Central Jail and Hazaribagh Central Jail to the Subdivisional Jail, Jahanabad in February, 2000 and April 2000 respectively. Return of the prisoners led to serious law and order problem inside the jail. According to the petitioner they belonged to Bhumihar caste and hence apprehending assault at the hands of the extremist, who were in jail and belonged to the extremist group of M.C.C., Party Unity etc., made a written complaint to the Superintendent of Jail by letter dated 21.3.2000 and prayed for providing them security. According to the petitioner they belonged to Bhumihar caste and hence apprehending assault at the hands of the extremist, who were in jail and belonged to the extremist group of M.C.C., Party Unity etc., made a written complaint to the Superintendent of Jail by letter dated 21.3.2000 and prayed for providing them security. It is the assertion of the petitioner that the jail authority and the respondents were made aware of the tense situation in the jail premises and danger to the lives of the prisoners specially Bhumihar prisoners, by the extremist group but no protection or step was taken to protect them. 3. It is difficult to fathom, as to why the authorities even after knowing about the tension between the two groups of prisoners, one belonging to Ranvir Sena and other left wing extremist group shifted to other jails to avoid any clash between them earlier allowed their return to Jahanabad Jail in February and April, 2000. After return of the left wing of the extremist group from Hazaribagh Central Jail they started insisting for being lodged in Ward No. Ill, where they were housed prior to their transfer but it was resisted by the prisoners who were then lodged in Ward No. III. On 17.4.2004 the prisoners who came from Hazaribagh Central Jail threatened not to take food unless their demand is fulfilled and they also prevented the food being cooked for the inmates. This resulted into fight between the two groups of prisoners. In the incident prisoners sustained injuries and out of them 16 sustained serious injuries and were referred to Patna Medical College Hospital and Jahanabad Sadar Hospital for treatment. This incident in jail gave rise to Jahanabad P.S. Case No. 170 of 2000 registered under Sections 147, 148, 149, 160, 323, 325, 326, 307, 341, 342, 186, 353, 332, 333, 334, 337, 338, 435 and 120B of the Indian Penal Code and later on, the injured dying Section 302 of the Indian Penal Code was added. In the said case petitioner, his father Rajendra Singh as also brother Sanjiv Sharma were named as accused. Sanjiv Sharma sustained grievous head injury and died in course of treatment on 18.4.2000 at Patna Medical College Hospital. Petitioners father Rajendra Singh died on 16.12.2000 also while lodged in the jail. 4. In the said case petitioner, his father Rajendra Singh as also brother Sanjiv Sharma were named as accused. Sanjiv Sharma sustained grievous head injury and died in course of treatment on 18.4.2000 at Patna Medical College Hospital. Petitioners father Rajendra Singh died on 16.12.2000 also while lodged in the jail. 4. According to the petitioner both his father and brother died, while in judicial custody on account of assault on them. Respondents admit that they died while in judicial custody but their assertion is that death of the father of the petitioner was a natural one because of lungs and liver disease, whereas petitioners brother died on account of injury sustained by him in the clash inside the jail. 5. It is unfortunate that violent incident had taken place in the Subdivisional Jail, Jahanabad and that too on account of clash of two groups on account of tension between them, which was simmering from before, still the Home Secretary of the State or for that matter any functionary of the State, did not visit the jail either earlier or immediately after the incident. 6. When the matter came up for consideration before this Court on 27.4.2004, I directed the Home Secretary, Bihar to make enquiry in regard to the circumstances under which the two inmates of jail died while in judicial custody. The Home Secretary, even thereafter, did not consider the gravity of the matter and did not give the report as directed. Instead the Home Secretary filed a counter affidavit dated 25.4.2004 in which he has stated that on "enquiry it was found" that the petitioner, his father and brother were lodged in Subdivisional Jail, Jehanabad in connection with a criminal case and in the incident which occurred on 17.4.2000 petitioners brother sustained grievous injury and he succumbed to the same while undergoing treatment at P.M.C.H. on 18.4.2000. Finding that instead of enquiry report being submitted the Home Secretary had just filed counter affidavit, this Court directed the Home Secretary to place on record the enquiry report by orders dated 6.7.2004, and 1.7.2004. It seems that only thereafter the Home Secretary visited the jail on 19.7.2004 and gave a report dated 20.7.2004. It is disheartening to note that the Home Secretary did not appreciate the gravity of the matter and this Court had to chase him to hold an enquiry. 7. It seems that only thereafter the Home Secretary visited the jail on 19.7.2004 and gave a report dated 20.7.2004. It is disheartening to note that the Home Secretary did not appreciate the gravity of the matter and this Court had to chase him to hold an enquiry. 7. In the enquiry report submitted to this Court he had admitted the transfer of the two groups of persons from the Subdivisional Jail, Jehanabad to Bhagalpur Central Jail and Hazaribagh Central Jail in July 1999 and their return in February and May, 2000. He has also admitted that after the return of the prisoners belonging to left wing extremist group, disturbance took place which led to firing in which 64 inmates sustained injury, out of them 16 serious, which included the petitioners brother. It has also been stated in the report that the petitioners brother died of the injury sustained in the jail on 18.4.2000 whereas according to the report petitioners father died a natural death. it has been stated that there is no provision for payment of compensation for persons dying in jail custody and in case of firing incident person having criminal background are not entitled for compensation. According to the report, petitioners brother died due to the injury sustained in the jail but he himself being a party to that incident for which he has been chargesheeted, the dependent of the deceased is not entitled for compensation. 8. From the material on record, it can be safely inferred that the petitioner, his brother and father were lodged in Subdivisional Jail, Jehanabad in connection with Makhdumpur P.S. Case No. 241 of 1999. Such of the inmates who belonged to Bhumihar caste and having association with Ranvir Sena were threatened by the left Wing of the extremist group and the authorities were informed about the threat and they were aware of the same. Petitioners brother died on account of the injuries sustained by him while in jail. Only dispute is in regard to the death of the petitioners father. Undisputedly he also died in judicial custody and according to the petitioner cause of death is the assault whereas according to the respondents he died a natural death. Respondents have placed on record the post mortem report of the petitioners father which finds the cause of death to be lung and liver disease. Undisputedly he also died in judicial custody and according to the petitioner cause of death is the assault whereas according to the respondents he died a natural death. Respondents have placed on record the post mortem report of the petitioners father which finds the cause of death to be lung and liver disease. The violent incident in the jail had taken place on 18.4.2000, whereas the petitioners father died on 16.12.2000. In the face of the material aforesaid, it is difficult to hold that the petitioners father died on account of the injuries sustained by him while in judicial custody. The best which can be said in favour of the respondents is that the prisoner did not die of the injury caused by the authority but by other prisoners and I shall examine the case on that premise only. 9. Mr. Dinu Kumar, appearing on behalf of the petitioner submits that the authorities were aware of the situation in the jail and having taken no action at all to prevent clash, petitioner is entitled for grant of compensation by the respondents. Mr. S.J. Rahman, G.P. VII appearing on behalf of the respondents, however, submits that the incident in which the petitioners brother died, was his own creation in which he has been made an accused and ultimately chargesheeted and, therefore, petitioner shall not be entitled for any compensation. 10. Having given my most anxious consideration to the submission advanced, I am not prepared to accept the extreme position taken by the respondents that persons of criminal background, if killed, the State in no circumstance suffer any liability. Article 21 of the Constitution guarantees every citizen protection of life and personal liberty except according to procedure established by law and prisoners freedom of movement is curtailed when lodged in jail but such prisoners are not denuded of other freedoms and rights which can be exercised from within the prison bars. Therefore, a person in judicial custody loses his freedom of movement but at the same time it cannot be said that he loses his right to life guaranteed under Article 21 of the Constitution. The torture or failure to prevent injury in custody, in my opinion, flouts the basic right of the citizen recongnised by the Constitution and is affront to human dignity. 11. The torture or failure to prevent injury in custody, in my opinion, flouts the basic right of the citizen recongnised by the Constitution and is affront to human dignity. 11. Having said so, the next question is as to whether death of a person in judicial custody on account of injury caused by persons other than persons responsible to protect the life of the prisoners itself, shall entitle the dependent of the deceased to claim compensation. I find it difficult to uphold that death of a prisoner in custody on account of assault by persons, other than the persons who are entrusted with the duty to safeguard the life of the prisoners shall not in any event give rise to the claim of compensation. it may deprive prisoner its right altogether and unscrupulous jail authorities may resort to the killing of the prisoners by other prisoners. At the same time, I am not inclined to hold that killing of a prisoner in judicial custody, in ail circumstances shall fasten on the State the liability to pay compensation. There may be case in which suddenly a prisoner picks up utensil and starts beating the other prisoner leading to his death. In such circumstance the jail authorities had little time to prevent the assault. However, in a case in which the jail authorities are apprised that a violent incident may take place still it takes no step to prevent the same and prisoner dying in such circumstance may entitle the dependents to claim compensation. In nut shell, I am of the opinion that mere killing of a prisoner in judicial custody itself shall not entitle the dependent to claim compensation but in case it is found that killing had resulted on account of gross negligence, connivance or an act of the functionary of the State, the dependents of the deceased shall be entitled for compensation. Further a person dying in jail on account of violent incident, presumption would be that it is on account of gross negligence of the authority entrusted with the duty to prevent that unless rebutted by placing on record the material to show to the contrary. The question, therefore, is as to whether the petitioners brother got killed on account of gross negligence of the State. 12. The question, therefore, is as to whether the petitioners brother got killed on account of gross negligence of the State. 12. Nothing has been brought on record to show that respondents took any step to prevent the incident, although they were aware of the tense situation in jail. From the material on record, I am of the opinion that had the functionary of the State been a little vigilant, the incident in jail could have been avoided preventing the death of the petitioners brother. The inmates of the jail had brought to the notice of the authority about danger to their lives by the extremist group. In such circumstances the decision to shift back the prisoners belonging to the left wing extremist group was absolutely uncalled for. Callousness on part of the functionary of the State is writ large from the fact that the Home Secretary or any senior functionary did not visit the jail to defuse the tension. Injury to 64 persons in the incident clearly indicates that the incident was pre planned and not sudden as it is not the case of the respondents that prisoners sustained injuries by fists and slaps. All these factors lead me to conclude that it was total failure on part of the functionary of the State to prevent such incident to happen in the jail, which had ultimately led to injury to 64 prisoners and death of the petitioners brother. Thus the case in hand squarely comes within the category of gross negligence. Having found that the incident is the result of the gross negligence on the part of the functionary of the State, I am of the opinion that the petitioner shall be entitled for the compensation. 13. The next question which arises for decision is in regard to the amount of compensation. There is no pleading at all in regard to the income of the deceased. Compensation is a device, which the law has contemplated to be paid to a person who had suffered the loss by a person whose act or omission had led to loss or the injury and justice demands that it should be equal in value. However, it is equally well settled that perfect compensation is hardly possible. Compensation awarded should be adequate and reasonable but should not be excessive or fanciful. However, it is equally well settled that perfect compensation is hardly possible. Compensation awarded should be adequate and reasonable but should not be excessive or fanciful. There is no hard and fast rule for measuring value of the human-life and the loss cannot be arrived at by precise mathematical calculation but requires to be decided on the basis of broad facts and circumstances of each case. It should neither be punitive nor it should be a source of profit. In the facts of the present case, I am of the opinion that a compensation of Rs. one lakh shall be just and proper. However, if the petitioner or any of the dependent of the deceased believe that they are entitled for more compensation, nothing shall prevent them from bringing an appropriate action for that purpose. The respondents shall also be at liberty to make enquiry, ascertain the cause and pin point the person/persons responsible and to recover the amount from him. 14. In the result, this application is allowed. The Respondents are directed to pay a sum of Rs. 1,00,000/- (Rupees one lakh) to the petitioner or any of the dependents of the deceased within eight weeks from today. They are also directed to pay cost of this litigation to the petitioner, which I assess at Rs. 1,000/- (Rupees one thousand) within the same time.