Judgment :- This Writ Petition has been, preferred by a widow of an accused claiming compensation from the Government of Tamil Nadu for the death of her husband in police custody on 111. 1998. 2. Factual matrix necessary for disposal of this Writ Petition are as under :- Petitioners version : — A) The petitioner was married to the deceased Balu and in the said wedlock, the petitioner had two children. The deceased was working as a construction worker. B) While so, on (11. 1998, about 8 to 10 policemen in mufti came to the residence of petitioners mother-in-law and under the pretext of washing their hands after taking snacks, they conducted search in her residence and on enquiry, they informed that they were policemen from Chennai and they have come in search of Balu as he was involved in a case of theft. Since the petitioner told them that her husband was missing for the last three months, the police left the place. On the very same evening her husband came home and he was informed about the search made by the police team and thereafter, he gave some piece of gold ornaments to the petitioner to tide over the temporary difficulties in case he was caught by the police. C) On 11. 1998, a police team consisting of 8 to 10 members accompanied by one Kumar, came and threatened to assault the family members in case the police were not able to arrest the husband of the petitioner. In the early hours of 111. 1998, mother-in-law of the petitioner as well as her sister-in-law were taken by the police to Thalankuppam in search of Balu as well as her brother Deva. Accordingly, the police arrested Deva and subsequently, Petitioners husband was also arrested. On such arrest, the police manhandled the petitioner as she tried earlier to protect her husband from arrest. After the arrest of Balu, he was taken to Thiruvanmiyur Kuppam and the police raided the house of one Nithya, with whom Balu was residing for some time and from the said residence, police seized stolen articles as well as household articles, fan and other objects. Immediately, the accused were taken to Korattur Police Station at about 6.30 p.m. on 111. 1998 and they, were confined in lock up along with another accused by name Mathi. D) Subsequently, on 111. Immediately, the accused were taken to Korattur Police Station at about 6.30 p.m. on 111. 1998 and they, were confined in lock up along with another accused by name Mathi. D) Subsequently, on 111. 1998, Balu was taken from the police station by the very same policemen who arrested him and, he was taken to Tindivanam to recover the stolen articles pledged with a pawn broker. However, when the policemen came to know that the pawn shop was closed, they brought Balu to his mothers house at 3 p.m. and the petitioner was also there along with her two children. The police struck terror in the neighbourhood and the petitioner and her family members were beaten up and they were directed to get the stolen articles. Though Balu was raising alarm from the police van, the police did not allow the petitioner to see him and they violently stopped the petitioner and hit her with lathi and in that incident, the two year old child of the petitioner got the burnt of the lathi and the child fell down from petitioners hand. The petitioner handed over the gold to the police which was given by Balu to her on 11. 1998. Subsequently, along with Balu, the petitioner, Subramaniam and Kumar were taken} in the police van from Tiruvanmiyur Kuppam in search of one Nithya, Even in the police van, the policemen were repeatedly assaulting Balu. After a vain search for Nithya, the petitioner and her child were dropped near a bus stop and others were taken in the van to the police station. Even from the police van, the policemen threatened that the petitioner may not be in a position to see her husband again and her Thali was as good as gone. E) Subsequently, in the morning of 111. 1998, about six policemen from Ennore Police Station came to the house of the petitioner and took her as well as her mother-in-law and sister-in-law and one Shanmugam in the police jeep under the pretext of questioning them. They were taken to Ennore Police Outpost on Kathivakkam High Road and they were not told anything by the police, but there was a lot of activity in the outpost. The petitioner and others were provided lunch and at about 3.00 p.m. they were informed by the Inspector of Ennore Police Station that Balu had committed suicide. They were taken to Ennore Police Outpost on Kathivakkam High Road and they were not told anything by the police, but there was a lot of activity in the outpost. The petitioner and others were provided lunch and at about 3.00 p.m. they were informed by the Inspector of Ennore Police Station that Balu had committed suicide. Some policemen and an officer who was identified as Tahsildar were engaged in preparing statements. The petitioner and others were asked to put signatures/thumb impression in some written statements. The petitioner and her mother-in-law and others were taken in a jeep to Kiipauk Medical Hospital and they were made to wait for a long time under the guise of conduct of postmortem. The petitioner and her mother-in-law were threatened to sign certain statements. The Inspector of Police, Korattur Police Station told the petitioner that in case the petitioner did not make any trouble, he would get her a job and also arrange for payment of a sum of Rs.1,00,000/- as compensation. Left with no other alternative, the petitioner and her family members received the body of Balu for burial. F) The body was buried in Ernavur on the very next day though the police tried to pressurize them for cremation. On the day of burial about 200 policemen surrounded the village to prevent the local people from protesting. Initially, the local people did not allow the body to be taken and demanded that the policemen gave a written assurance that compensation would be given to the petitioner and her family members. But a local influential person intervened and told the villagers that the police had assured for making arrangements for compensation. Based on his words, the body was buried. The Inspectors of Police of Korattur and Ennore Poilce Station gave Rs.2,500/- each for performing last rites. G) The petitioner was convinced that her husband died only on account of the torture by the police during custody. The petitioner also made an application to the Chief Minister claiming compensation from the Chief Ministers Relief Fund. Subsequently, a sum of Rs.1,00,000/- was paid as compensation by the District Collector of Tiruvallur. Since the petitioner died in police custody on account of the torture by the police, the petitioner has filed the Writ Petition claiming compensation of Rs.10,00,000/- Defence version 3. Subsequently, a sum of Rs.1,00,000/- was paid as compensation by the District Collector of Tiruvallur. Since the petitioner died in police custody on account of the torture by the police, the petitioner has filed the Writ Petition claiming compensation of Rs.10,00,000/- Defence version 3. In the counter affidavit filed by the Deputy Commissioner of Police it was their contention that Balu @ Balan was arrested on 111. 1998 at 15.00 hours at Thalankuppam Village in connection with Cr.No.1499/1998 under Section 457 and 380 IPC of Korattur Police Station as he was involved in theft of silver and gold ornaments. The accused was brought to Korattur Police Station at about 6.30 hours on 111. 1998 along with two other co-accused and were kept in lock up. Subsequently, Balu @ Balan had made an attempt to commit suicide at 8.00 hours by using his lungi around his neck and the bars of the window in the lavatory of Korattur Police Station. He was taken to Kilpauk Medical College Hospital, where he was declared dead. Since the death was while in police custody, the Revenue Divisional Officer, Ponneri conducted enquiry. 4. The postmortem report did not indicate any injury on the body of the deceased. However, certain lapses were noticed against the police officers and the Enquiry Officer had recommended to initiate departmental action against the police officials of the Korattur Police Station for the lapse committed by them. Necessary departmental action was also taken against seven police officials of Korattur Police Station who had committed dereliction of duty. As per the recommendation of the District Collector and the Enquiry Officer, a sum of Rs.1,00,000/-was paid as financial assistance to the family of Balu @ Balan. The husband of the petitioner died only due to hanging and the said incident was due to dereliction of duty of the police officials and in such circumstances, the respondents have,prayed for dismissal of the Writ Petition. Magisterial enquiry : - 5. The circumstances leading to the death of the husband of the petitioner in police custody was the subject matter of Magisterial enquiry conducted by the Revenue Divisional Officer as per the direction of the District Collector, Tiruvallur. The enquiry report of the District Collector was forwarded to the first Respondent as per proceeding in Rc.30502/98 MI dated 03.03.1999. The circumstances leading to the death of the husband of the petitioner in police custody was the subject matter of Magisterial enquiry conducted by the Revenue Divisional Officer as per the direction of the District Collector, Tiruvallur. The enquiry report of the District Collector was forwarded to the first Respondent as per proceeding in Rc.30502/98 MI dated 03.03.1999. In the said report, the following major lapses reported by the Revenue Divisional Officer on the part of Korattur Police Station were indicated :- a) The deceased was allowed to wear lungi, when he was kept in lock-up, which was used as an instrument for hanging. The Inspector of Police, while admitting the deceased in the lock-up, had searched the petitioner, in a casual manner, without applying his mind. b) The signatures of Tvl.Deva and Madhi @ Madhiazhagan have been obtained in the memos of arrest, whereas the signature of the deceased Thiru.Balu @ Balan, has not been obtained in the memo of arrest. c) General diary has not been written up from morning 6.30 hours to 10.30 hours on 111. 1998. An important incident, due to the absence of entries in the General diary had lead to various suspicions. The Inspector of Police is alone responsible for not making any efforts to write the General Diary without omission. d) There is correction at page 274 of the General diary. The Inspector of Police who had made the entry is alone responsible for the correction. 6. The Revenue Divisional Officer, Ponneri, having satisfied about the serious lapses committed by the police officers of Korattur Police Station, has recommended to initiate departmental action against the Inspector of Police, Head Constable and three policemen of the Korattur Police Station who according to the Revenue Divisional Officer, were directly responsible for the death of Balu @ Balan. The said opinion given by the Revenue Divisional Officer was endorsed by the District Collector who recommended for departmental action to be taken against the police officials of Korattur Police Station The District Collector also made a report to this Government that the deceased was the sole bread winner of the family and as such, recommended for grant of financial assistance to the family of the deceased. Findings of the Home Department :- 7. Findings of the Home Department :- 7. The report dated 03.03.1999 submitted by the District Collector to the Secretary to the Government Home Department was considered by the Home Department, as found in file C.No. 5559/L & OE/98. The said report prepared by the Home Department and signed by the Secretary to Home Department on 06.05.1999 was taken as the basis for payment of a sum of Rs.1,00,000/- as exgratia to the legal heirs of the deceased Balu. The report of the Secretary dated 06.05.1999 contains the findings as well as the conclusion arrived at by the Home Department both about the death of Balu as well as the carelessness and dereliction of duty of the policemen of Korattur Police Station. It would be appropriate to quote the following observation as contained in the said report :- "(a) Had the SI.Thangam, Inspector Panneer Selvam, the Sentry Head Constable, Mangali who is in charge of the lock up and the other 3 P.C.s viz., Tvl. Lucas, 2768, Soman, 2053 and Jayachandran 114 who are incharge of the safety and security of the prisoner Balu bit careful and cautious, the death could have been avoided hence ail the above police personnel are responsible for the above lapses and not the Inspector alone as opined by the Enquiry Officer. .(b) The signature of Tvl. Deva and Madhi have been obtained in the memos of arrest, whereas the thumb impression of the deceased Thiru.Balu @ Balan is not found in the duplicate copy of the memo of arrest and there was a lapse on the part of the Inspector. (c) General Dairy of the Korattur Police Station was not written from 630 hours to 10.30 hours in the morning of 112. 1998. .(d) There was no entry in PSR as to whether the deceased was wearing lungi and other clothes. The deceased was allowed to wear lungi while in the detention which was against the rules. Analysis :- 8. Both the Inspector of Police and the Sub Inspector of Police were guilty of having allowed the accused to wear lungi against the rules and provisions as contained in Police Standing Order 661, which led to the suicide of Balu, in the lavatory of Korattur Police Station. Analysis :- 8. Both the Inspector of Police and the Sub Inspector of Police were guilty of having allowed the accused to wear lungi against the rules and provisions as contained in Police Standing Order 661, which led to the suicide of Balu, in the lavatory of Korattur Police Station. When the other two accused were allowed inside the lavatory only with underwear, the deceased Balau alone was allowed to wear lungi, which was used as an instrument for hanging, and it shows the carelessness and dereliction of duty of the Police. 9. The report of the Home Department prepared on the basis of the Magisterial enquiry report as well as the report submitted by the District Collector clearly shows that death could have been avoided had the police officers shown little care and seriousness. Therefore, there is further proof necessary to. come to the conclusion that the police were responsible for the death though it was act of suicide. 10. As per Police Standing Orders, it was not permissible for an accused to wear lungi and such other clothes during their confinement in the lockup. It is evident from the report of the Revenue Divisional Officer that two other accused were not permitted to wear lungi but the deceased alone was permitted to wear such a dress. It is also evident from the report that the General Diary of the Korattur Police Station was kept blank without writing anything between 6.30 a.m. and 10.30 a.m. on 111. 1998. .11. In the First Information Report lodged by the Inspector of Police after the death of Balu @ Balan, it was stated that the deceased Balu went inside lavatory to answer nature call and the other two accused and three policemen were waiting outside. Since they heard some noise, the three policemen and two accused opened the lock of the lavatory which was bolted from inside and found the accused Balu @ Balan struggling for life as he had hanged himself fastening his lungi around his neck and the window bars of the lavatory. First Information Report prepared by Mr.R.Panneer Selvam, Inspector of Police, Korattur Police Station clearly shows the negligence and wilful omission on the part of the policemen. First Information Report prepared by Mr.R.Panneer Selvam, Inspector of Police, Korattur Police Station clearly shows the negligence and wilful omission on the part of the policemen. The accused was permitted to wear lungi and be was also permitted to lock the door from inside and the report was not clear as to how long the accused was in the lavatory before he was found hanging. 12. Section 306 IPC makes abetment to commit suicide punishable. Similarly, Sections 107 and 109 IPC makes abetment an offence. The word abetment means to aid, encourage or to countenance. Section 107 of IPC defines abetment of a thing as instigating any person to do a thing or engage with one or more other person or persons in any conspiracy for doing of a thing or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or intentionally aids, by any act or illegal omission, the doing of that thing. There are two explanations appended to Sec.107 IPC. As per Explanation (1), A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is. bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. As per Explanation (2), Whoever, either prior to or at the time of the commission of an. act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. .13. Therefore, the worxi "instigation" assumes significance. A person is said to instigate any other person to do an act which makes the other person to do such act by any means possible, either direct or indirect. Mens rea is necessary concomitant for instigation. Therefore, in order to proceed against a person for criminal offence u/s 107 IPC or 306 IPC, the prosecution must prove the element of mens rea. Therefore, the negligence or carelessness or the facilitation cannot be termed to be abetment so as to punish the guilty as per the provisions of penal laws. However, things would be different in the case of action in public law. .Article 21 :- .14. Article 21 of the Constitution of India guarantees right to life to a citizen. Therefore, the negligence or carelessness or the facilitation cannot be termed to be abetment so as to punish the guilty as per the provisions of penal laws. However, things would be different in the case of action in public law. .Article 21 :- .14. Article 21 of the Constitution of India guarantees right to life to a citizen. The term "right to live" encompasses within all the other facets of life which makes the life of a person happy and meaningful. Though no criminal prosecution is possible against the policemen who were instrumental in providing material to the deceased Balu for committing suicide and have created the circumstance enabling him to commit such act, they are liable for payment of compensation to the legal representative of the deceased. 15. The Apex Court in P. Rathinam v. Union of India ( 1994 (3) SCC 394 ) held that Sec.309 IPC was violative of Article 21 of the Constitution of India and declared the same as unconstitutional. The said view no longer holds good in view of the Constitutional Bench Judgment in Gian Kaur v. State of Punjab, (1996) 2 SCC 648 .-In P. Rathinam case, the Apex Court interpreted Article 21 in such a way that in case a person has got a right to live, he has also got a right not to live. However in Gian Kaurs case, the Supreme Court explained the concept of right to live in such a way as it would include any aspect of life which makes it dignified but not, that it extinguishes it. The Apex Court also indicated that the "right to die", if any, is inherently inconsistent with "right to life" as is death with life. 16. According to the Petitioner, her husband was arrested as early as on 111. 1998. But, however, police maintains that the accused was arrested only on 112. 1998 at 3.00 p.m. Whatever it maybe, the deceased appears to have been in a great stress and he must be depressed. He was only 26 years at the time of his death. Police should have avoided all kinds of circumstances which would help the accused to take the extreme step of extinguishing his life. When the two other accused were not provided with lungi, the deceased alone was given lungi to wear and that too in the lavatory. He was only 26 years at the time of his death. Police should have avoided all kinds of circumstances which would help the accused to take the extreme step of extinguishing his life. When the two other accused were not provided with lungi, the deceased alone was given lungi to wear and that too in the lavatory. There was no entry in the Station Register to show that the accused was searched and whether he was permitted to wear lungi. All these show that everything was not well. 17. The Counter affidavit has been filed by the Deputy Commissioner of Police on the basis of the records available in the police station. None of the averments as found in the affidavit filed in support of the writ petition with respect to the alleged arrest of the accused on 112. 1998 and the ordeal suffered by him till his suicide on 112. 1998 were denied in the counter. No counter affidavit has been filed by the Inspector of Police who arrested the petitioner and lodged the First Information, with respect to the suicide committed by the deceased. Therefore, certain factual contentions raised in the writ petition remain unanswered in the counter affidavit filed on behalf of respondents. Even though the policemen against whom action was recommended, cannot be prosecuted under Section 107 or 306 IPC, still, their negligence as well as wilful omission can be made as basis for awarding compensation to the petitioner. 18. The Apex Court in Gian kaur v. State of Punjab referred supra, considered the assisted attempt to commit suicide and observed that the same was made punishable for cogent reasons in the interest of society. In paragraph 37 and 38 of the said judgment, the Apex Court made the position very clear. "37. Section 306 prescribes punishment for abetment of suicide while Section 309 punishes attempt to commit suicide. Abetment of attempt to commit suicide is outside the purview of Section 306 and it is punishable only under Section 309 read with Section 107 IPC. In certain other jurisdictions, even though attempt to commit suicide is not a penal offence yet the abettor is made punishable. The provision there, provides for the punishment of abetment of suicide as well as abetment of attempt to commit suicide. In certain other jurisdictions, even though attempt to commit suicide is not a penal offence yet the abettor is made punishable. The provision there, provides for the punishment of abetment of suicide as well as abetment of attempt to commit suicide. Thus, even where the punishment for attempt to commit suicide is not considered desirable, its abetment is made a penal offence. In other words assisted suicide and assisted attempt to commit suicide are made punishable for cogent reasons in the interest of society. Such a provision is considered desirable to also prevent the danger inherent in the absence of such a penal provision. The arguments which are advanced to support the plea for not punishing the person who attempts to commit suicide do not avail for the benefit of another person assisting in the commission of suicide or in its attempt. This plea was strongly advanced by the learned Attorney General as well as the amicus curiae Shri Nariman and Shri Sorabjee. We find great force in the submission. 38. The abettor is viewed differently, inasmuch as he abets the extinguishment of life of another person and punishment of abetment is considered necessary to prevent abuse of the absence of such a penal provision". .19. The petitioner has claimed a sum of Rs.10 lakhs as compensation on account of the death of her husband at the age of 26. In view of the report submitted by the Revenue Divisional Officer as well as District Collector which culminated in making a report by the Home Department, there is no factual dispute with respect to the negligence, carelessness and dereliction of duty on the part of police. The arrest of the accused as well as his suicide in the lavatory attached to the police station are matters not in issue. The utter carelessness and indifferent attitude of the policemen in providing the weapon to commit suicide has been clearly admitted by the first respondent in the report. In fact, there was a clear statement made by the first respondent to the effect that had the police took a little care, the incident could have been avoided. This clearly shows the role of the policemen in the factum of suicide committed by the accused. In fact, there was a clear statement made by the first respondent to the effect that had the police took a little care, the incident could have been avoided. This clearly shows the role of the policemen in the factum of suicide committed by the accused. In the event of the police discharging their duty as per the Police Standing Orders and other relevant rules, there would have been no opportunity to the accused to commit suicide. The Police should have foreseen the mental condition of the accused and his temptation to commit suicide in such depressed mental condition. Therefore, the action of the police only contributed for the unfortunate incident and therefore, the petitioner is entitled to get compensation from the State. 20. The amount of compensation to be awarded on account of the custodial death as well as other kind of death in police custody cannot be put in a strait-jacket formula. It all depends upon the facts of each case. The facts of the present case though not a case of police torture as per the records, still it would come as an assisted attempt to commit suicide. In public law proceedings, compensation could be awarded by taking into account the relevant factors. The provisions of the sister enactment like Motor Vehicles Act can also be resorted to for arriving at the quantum. The structured formula as well as multiplier adopted while determining the compensation under motor accident cases can also be takers as the guideline for fixing compensation in like cases. .21. Since the petitioner was aged 26 years at the material time, multiplier of 18 could be taken to assess the compensation. The petitioner was stated to be a coolie engaged in construction work and as such, a sum of Rs.3,000 could be taken as his monthly income. The said monthly income multiplied by 18 multiplier would come to a sum of Rs.6,48,000/-. Out of the said amount, 1/3rd has to be deducted as expenses which the victim would have incurred towards his expenses had he been alive Therefore, the total compensation would be a sum of Rs. 4,32,000/-. Government have given a sum of Rs.1,00,000/- as ex-gratia payment to the mother of the deceased and the said amount was ordered to be paid from the "Compensation to Communal and Caste Clashes" in Govt.Lr.No. 1917/99, Public (L&O.B.) Dept. 4,32,000/-. Government have given a sum of Rs.1,00,000/- as ex-gratia payment to the mother of the deceased and the said amount was ordered to be paid from the "Compensation to Communal and Caste Clashes" in Govt.Lr.No. 1917/99, Public (L&O.B.) Dept. The said amount was given by the Government as an ex-gratia without any reference to the negligence and dereliction of police. Therefore, after deducting the amount already paid, the respondent shall pay the balance amount of Rs.3,32,000/-with interest at 6% from the date of filing of Writ Petition. 22. Since children of the deceased are minors, half of the amount of compensation shall be deposited in a fixed deposit equally in the name of the two minors initially for a period of five years and to be renewed periodically till the minors attain majority and the concerned Bank shall permit withdrawal of the deposit only after production of proof of the minors attaining majority. However, it would be open to the petitioner to withdraw the interest on such deposits for the welfare of the minor children. 23. In the result, the writ petition is allowed by directing the first respondent to pay a sum of Rs.3,32,000/-as compensation to the petitioner with interest at 6% from the date of filing the Writ Petition. Such payment/deposit shall be made within three months from the date of receipt of a copy of this order. No costs.