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Madhya Pradesh High Court · body

2011 DIGILAW 99 (MP)

Kaliram v. State of M. P.

2011-01-24

A.K.SHRIVASTAVA

body2011
ORDER 1. By this petition under Article 226 of the Constitution of India, the petitioner has sought relief to pay compensation of Rs. 10 lacs from the State of M.P. and its functionaries on account of the custodial death of petitioner's son namely Chuttan Singh Kahar @ Uma Shankar. 2. The facts shorn of unnecessary details lie in narrow compass. Suffice it to say that petitioner's son Chuttan Singh along with another accused Shailendra was facing a criminal trial for the offence punishable under section 302 and in the alternative under section 302/34 and also under section 506 later part of IPC in the Court of Additional Sessions Judge, Sohagpur in Sessions Trial No. 45/96. Admittedly, the petitioner's son was on bail and was appearing in the trial by availing the bail facility. The judgment was to be pronounced by the trial Court on 17.7.2000 and indeed it was so pronounced on that date by the said Court. The trial Court found both the accused persons guilty and eventually convicted them to undergo sentence of life imprisonment and fine of Rs. 2000/- each. 3. On the date of pronouncement of the judgment, the petitioner'2:, son was present in the Court and after hearing the judgment, he consumed some poisonous substance as a result of which, ultimately he died. After his death, his father (present petitioner) has filed this petition on the ground that his son has died in the custody of police and, therefore, the respondents are liable to pay compensation of Rs. 10 lacs. 4. Vehementally it has been put forth by Shri Deoras, learned senior counsel for the petitioner that although petitioner's son was enlarged on bail was availing the bail facility and on the date of pronouncement of the judgment also he was on bail but as soon as the judgment was pronounced and it was directed by the trial Court directing to prepare the jail warrants for the deceased persons (including the petitioner' son), it should be deemed that he was in the custody of police and if during the custody he had died, it will amount to a custodial death and, therefore, the respondents are liable to pay compensation. In support, of his submission, learned counsel has placed heavy reliance on the three decisions of the Supreme Court, they are; Smt. Nitabai alias Lalita Behara v. State of Orissa and others. In support, of his submission, learned counsel has placed heavy reliance on the three decisions of the Supreme Court, they are; Smt. Nitabai alias Lalita Behara v. State of Orissa and others. AIR 1993 SC 1960 , People's Union for Civil Liberties v. Union of India aid another, AIR 1997 SC 1203 , Chairman, Railway Board and another v. M s. Chandriam Das and others, AIR 2000 SC 988 . Learned senior counsel has also placed reliance on Reeves v. Commissioner of Police (1993) 3 All England Reports. Learned senior counsel further, submits that the respondents have not filed any return and, therefore, whatever averments are made in the memo of writ petition, they shall be deemed to be admitted and hence since it is not in dispute that the deceased had died in the custody of the respondents, the petitioner is entitled for the compensation. 5. On the other hand, Smt. Sheetal Dubey, learned Government Advocate appearing for the respondents submits that on bare perusal of the order-sheet dated 1.7.2000, it is clear that before sending accused (petitioner's son) to jail, he died by consuming the poisonous pills and, therefore, in these facts and circumstances, it cannot be said that the deceased had died a custodial death and, therefore, the State of M.P. and its functionaries cannot be slammed to pay compensation since it was not a custodial death. 6. Having heard learned counsel for the parties. I am of the view that this petition deserves to be dismissed. 7. In order to grant compensation to the petitioner, firstly it is to be held that his son had occurred custodial death. 1fthe answer is given by this Court in negative, certainly the petition has to be dismissed. However, if the answer is in affirmative then whether petitioner is entitled for the compensation in the peculiar facts and circumstances, this is to be ascertained. For arriving at a proper and just conclusion, it will be necessary to ascertain as to how and in what circumstances he had died. However, if the answer is in affirmative then whether petitioner is entitled for the compensation in the peculiar facts and circumstances, this is to be ascertained. For arriving at a proper and just conclusion, it will be necessary to ascertain as to how and in what circumstances he had died. This Court thinks it apposite to quote the order sheet of the trial Court dated 17.7.2000 (annexure P/2) which reads thus : ^^vfHk;kstu dh vksj ls Jh ch-ds- ‘kekZ vfr- yks- vfHk;kstd vfHk;qDrx.k lfgr dqekjh xhrk iVok ,M- fu.kZ; [kqys U;k;ky; esa gLrk{kfjr, fnukafdr dj ?kksf”kr fd;k x;kA vfHk;qDrx.k dks jkew mQZ jkeHkjks”k dh gR;k djus ds vijk/k dk nks”kh ikrs gq, vkthou dkjkokl rFkk 2000@& 20002& :i;s ds vFkZnaM rFkk vFkZnaM vnk u djus ij 6&6 ekg ds vfrfjDr lJe dkjkokl dh ltk nh x;hA vfHk;qDrx.k dks fu.kZ; dh fu%’kqYd izfr nh tkosA vfHk;qDrx.k dks tsy okjaV cukdj tsy Hkstk tkosA ^^izdj.k dh tIr’kqnk oLrqvksa dks vihy vof/k ckn u”V fd;s tkus ds vkns’k fn;s x;sA izdj.k fu;r vof/k esa vfHkys[kkxkj Hkstk tkosA vfrfjDr l= U;k- i’pkr%& vfHk;qDrx.k }kjk fu.kZ; lquus ds mijkUr dqN tgjhyh xksfy;ksa [kk yh x;h ,slk U;k;ky; esa mifLFkr vf/koDrkx.k rFkk Lo;a vfHk;qDrksa us crk;k U;k;ky; ds dV?kjs esa Hkh dqN xksfy;ka ik;h x;h ftUgsa rFkk vfHk;qDrksa dks mfpr fpfdRlk ds fy, Fkkuk izHkkjh lksgkxiqj rFkk fpfdRlk vf/kdkjh dks Kkiu ds lkFk Hkstk x;kA vij l= U;k;k/kh’k lksgkxiqj** 8. The purpose of quoting the entire order sheet of 17.7.2000 is nothing but to demonstrate that in what circumstances the son of the petitioner had died in order to ascertain that the son of the petitioner died a custodial death of\1ot and if it is a custodial death then whether petitioner is entitled for any compensation or not. Undisputedly the petitioner's son was availing the facility of bail and he came in the Court along with his counsel. The learned trial Judge pronounced the judgment on this date holding the petitioner's son to be guilty of the offence along with co-accused under section 302/34 IPC and was directed to suffer life imprisonment and fine of Rs. 2000/-. Copy of the judgment of trial Court pronounced on that date has been filed as annexure P/1 along with petition. The petitioner's son came along with his counsel in the Court and when he arrived in the Court nobody could say that he was in police custody. 2000/-. Copy of the judgment of trial Court pronounced on that date has been filed as annexure P/1 along with petition. The petitioner's son came along with his counsel in the Court and when he arrived in the Court nobody could say that he was in police custody. The learned trial Court directed to provide copy of the judgment free of cost to the accused persons and further directed that the jail warrants be prepared and the accused persons he sent to jail. There is nothing on record that the jail warrants were prepared. On going through the order-sheet (annexure P/2), this Court finds that immediately thereafter accused persons consumed some poisonous pills and some of them were also found lying in the dock. If after hearing the judgment immediately the son of the petitioner consumed poisonous pills and put his life to an end, according to me, the State of M.P. and its functionaries should not be saddled with the stigma of custodial death. The matter would have definitely different if the accused would have brought in the custody of the police persons from jail and in that situation if he would have consumed some poisonous substance certainly, it would amount to a custodial death but looking to the peculiar facts and circumstances of the case, since the petitioner's son was on bail and by availing that facility, he came along with his counsel in the Court and immediately after hearing the judgment if he had consumed poisonous substance, according to me, technically it can be said to be a custodial death. But the accused was not taken over by the police persons physically and the police was not having possidendi i.e. actual physical possession of the petitioner's son. The circumstances in which the petitioner's son had died is axiomatic and in these state of affairs, if the petitioner's son consumed poisonous substance which was brought by him on his own as he was availing the bail facility and was not in the custody of the police, I am of the view that the State and its functionaries cannot be saddled with the compensation. 9. 9. Apart from the reasons which I have assigned herein above, the relief which is to be granted while exercising powers conferred to this Court under Article 226 of the Constitution of India since it is a discretionary relief and because the petitioner's son was availing the bail facility and came to the Court of his own and while coming to the Court the State of M.P. and its functionaries were not having any domain over him and was not having any check that what he has brought with him, therefore, in these peculiar facts and circumstances of the case, I am not inclined to grant discretionary relief to the petitioner. 10. The decision of Supreme Court in Smt. Nitabat and People's Union for Civil Liberties (supra) are not applicable in the present case as in those cases the accused was under the detention of police either in the Police Station or in the Jail and similarly the decisions of Reeves (supra) is also not applicable. The decision of Chandrima Das (supra) is also not applicable in the present case because in that case, employees of the Railway committed gang rape in building belonging to the Railway's (Yatri Niwas) and, therefore, vicariously the Railway administration was found to be liable for the vile act of gang rape committed by the employees of Railway in the Yatri Niwas and, therefore, in those circumstances the compensation was directed to be paid. 11. For the reasons stated above, I am of the view that this petition is bereft of substance and the same is hereby dismissed. No costs.