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2004 DIGILAW 757 (PAT)

Urmila Devi v. State Of Bihar

2004-07-28

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 issue a writ in the nature of mandamus commanding the respondents to pay to the petitioner adequate compensation on account of the killing of her son in judicial custody. 2. Facts lie in a narrow compass. Petitioners son Rajesh Kumar Singh alias Pappu Kumar Singh was an accused in Silao P.S. Case No. 283 of 1998, who was on judicial remand and lodged in Biharsharif Jail. On 1.12.1999 he was to be produced in the court of the Chief Judicial Magistrate, Biharsharif and for that purpose he was brought to the court, produced before the learned Magistrate and thereafter while being brought back to the court lock-up, he was shot dead by criminals in the verandah of the court premises. This led to registration of Biharsharif P.S. Case No. 472 of 1999 under Section 302 of the Indian Penal Code and 27 of the Arms Act. Undisputedly, the petitioners son was killed while in judicial custody and it is the plea of the petitioner that the State being protector of the life and property during judicial custody and her son having died due to lack of adequate protection and security, respondents are liable to pay compensation to the petitioner. 3. Mr. Rama Kant Sharma appearing on behalf of the petitioner submits that during incarceration or transit for production of a prisoner in judicial custody, it is the States obligation to provide security and the respondents having failed to do the same which would be evident from the fact that the petitioners son was killed while in judicial custody, respondents are under an obligation to pay compensation to the petitioner who happens to the mother of the deceased. In this connection he has brought to my notice the provision of Rule 801A of the Bihar Jail Manual. Same reads as follows: "801 A. The responsibility for the safety of prisoners under escort will rest with the Police. The police shall be responsible for deciding what precautions in the way of fetters, accommodations, etc., shall be provided." 4. In this connection he has brought to my notice the provision of Rule 801A of the Bihar Jail Manual. Same reads as follows: "801 A. The responsibility for the safety of prisoners under escort will rest with the Police. The police shall be responsible for deciding what precautions in the way of fetters, accommodations, etc., shall be provided." 4. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Smt. Nilabati Behera alias Lalita Behera vs. State of Orissa and others (A.I.R. 1993 S.C. 1960) and my attention has been drawn to paragraph 35 of the judgment, which reads as follows: "35. 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., l agree that the State of Orissa should pay a sum of Rupees 1,50,000/- to the petitioner and a sum of Rs. 1,000/- by way of costs to the Supreme Court Legal Aid Committee. I concur with the view expressed by Brother Verma, J. and the directions given by him in the judgment in all respects. 5. There is no difficulty in accepting the broad submission of Mr. Sharma that during incarceration, it is the obligation of the State Government to protect the life of the prisoner but the question in the present case is as to whether killing of a person in the judicial custody itself shall fasten the liability on the State Government to pay compensation. ln my opinion, mere killing of a person in the judicial custody itself shall not entitle the dependant to claim compensation, unless it is established that killing had resulted on account of gross negligence, connivance or an act of the functionary of the State. True it is that the obligation of the State Government is to protect the life of a person in custody, in fact its obligation extends to protecting the life of every citizen of a State. May be in a case of a person in custody the responsibility is higher on account of the fetters on his right. True it is that the obligation of the State Government is to protect the life of a person in custody, in fact its obligation extends to protecting the life of every citizen of a State. May be in a case of a person in custody the responsibility is higher on account of the fetters on his right. in a given case the right of a person in a judicial custody or, for that matter, anywhere citizen is affected by a positive act of omission or commission of the functionary of the State, one may be entitled for grant of compensation but as a general rule, if it is held that in every case in which the person in custody is killed, compensation has to be necessarily paid on the ground of failure to protect the life of that person, for parity of reasons, for every person killed by criminal and not under custody compensation has to be paid as it is States obligation not only to protect the life of the prisoners but every citizen. This in my opinion would be stretching the law too much. 6. Here in the present case, petitioner has not been able to establish that her son was killed by the functionary of the State or, for that matter, any of the functionary of the State connived in his killing. In fact the petitioners son was killed by criminals in the court premises. It may tell upon the poor law and order situation in the State but shall not entitle her for grant of compensation. 7. Now reverting to the authority of the Supreme Court in the case of Smt. Nilabati Behera (supra) same is clearly distinguishable. in the said case it was found that the victim died on account of multiple injuries inflicted on him while he was in police custody at the police out post and on that fact the Supreme Court granted compensation in a writ application. No such fact exist in this case. 8. Hence f am constrained to dismiss this application and 1 do it accordingly. No cost.