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2012 DIGILAW 1262 (GAU)

Damayanti Das v. State of Assam

2012-11-09

AMITAVA ROY, ANIMA HAZARIKA

body2012
JUDGMENT Amitava Roy, J. 1. Alleging death of her husband in police custody consequent upon physical and mental torture meted out to him, the petitioner seeks the intervention of this Court for awarding adequate compensation therefor. We have heard Mr. B Islam, learned counsel for the petitioner. Mr. PS Deka, learned Additional Senior Government. Advocate, Assam for the respondent State and Mr. D Das, learned Standing Counsel, Bodoland Territorial Autonomous District (presently Bodoland Territorial Council) for respondent Nos. 2, 3, 4 and 5. 2. The petitioner's pleaded case in short is that her husband (deceased) was called by the Officer-in-Charge of Mushalpur Police Out Post located in the district of Baksa within the territorial limits of the Bodoland Territorial Autonomous District/Bodoland Territorial Council pursuant whereto he (deceased) along with one Harihar Das presented himself before the said Police Out Poston 25.10.2007 at about 9 a.m. whereafter he (deceased) was kept confined in police custody. On enquiries being made by some villagers and the son of the deceased, the police informed them that he (deceased) had to be confined for interrogation in connection with a police case. According to the petitioner, the visitors who had gone to the police station to meet the deceased on the next date i.e. 26.10.2007, noticed two black spots on his forehead and about two hours thereafter it was reported that he (deceased) had died while in the custody of the police. It was thereafter that the son of the deceased, Dhiraj Das lodged an FIR on 28.10.2007 before the Officer-in-Charge, Borbari Police Station intimating the custodial death of his father at Mushalpur Police Out Post on which, however, allegedly no action was taken. 3. According to the petitioner, at the relevant time, the deceased was the Head Teacher of Ulubari LP School drawing Rs. 15,303/- as monthly salary. She has stated further that the post mortem of the dead body of her husband was conducted at the S.M.K. Civil Hospital, Nalbari on 27.10.2007 which indicated homicidal death. Reference to public hue and cry and the media reports in connection with the incident has been made as well. An amount of Rs. 21,46,360/- has been sought for as compensation for such death perceived to be in gross violation of the human rights of the deceased. 4. Reference to public hue and cry and the media reports in connection with the incident has been made as well. An amount of Rs. 21,46,360/- has been sought for as compensation for such death perceived to be in gross violation of the human rights of the deceased. 4. In his affidavit-in-opposition, the respondent No. 3, Superintendent of Police, Baksa while admitting the death of the husband of the petitioner while in the custody at Mushalpur Police Out Post on 26.10.2007 has relied on the findings recorded in the post mortem examination report that the same was due to asphyxia following hanging and contended that there was no sign of any assault or violence unleashed by the police contributing thereto. While contending that Borbari P.S. U.D. Case No. 11/07 was registered on the ejahar submitted by the Sub Inspector of Police, Mushalpur Police Out Post on 26.10.2007 about the episode, the deponent also referred to a Magisterial Enquiry conducted in connection therewith. According to the answering respondent, the Enquiry Officer in his report dated 17.12.2007, however, indicated negligence in duty on the part of the Home Guard, Sri Sailen Medhi who was entrusted with the care and custody of the deceased, in not noticing that he (deceased) had taken one 'Gamosa' to the toilet which he eventually used for the purpose of committing suicide. The deponent has construed this omission on the part of the Home Guard to be a gross misconduct, According to this respondent, the deceased locked the door of the toilet and hanged himself with a 'Gamosa' from the iron rod of the ventilator inside and his body was retrieved by breaking open the toilet door as he did not come out for a long time. That the deceased prior thereto was called to Mushalpur Police Out Post on 25.10.2007 for interrogation in connection with Baska P.S. Case No. 72/2007 under Section 302/34 IPC read with Section 25(1)(b) Arms Act and Section 10/13 U.A. (P) Act whereafter he was arrested on 26.10.2007 and was to be forwarded to the jurisdictional Court on 27.10.2006 has also been stated. The answering respondent also averred that the inquest that was thereafter conducted on the dead body had been video graphed which inter alia disclosed that the ventilator inside the toilet had a rod which had been used by the deceased to tie the 'Gamosa' to hang himself and that in trying to reach the rod he stepped on the water taps for which those were broken in the process. 5. In her affidavit-in-reply, the petitioner while reiterating and remaining the averments made in the writ petition, dismissed the plea of suicide by her husband and alleged that the whole incident had been preplanned by the police to give it such a colour, 6A. Having regard to the irreconcilable pleaded assertions, this Court by order dated 1.9.2011, directed the learned District & Sessions Judge, Nalbari to conduct an enquiry into the episode and submit a report. On 9.2.2012 such report has been submitted and copies thereof along with the proceedings have been furnished to the learned counsel for the parties. 6. Mr. Islam has urged that having regard to the attendant facts and circumstances of the case, it is apparent that the petitioner's husband had died out of physical and mental torture in view of his unwarranted arrest and detention by the police and that, thus, she is entitled to adequate compensation for the untimely death of the only bread earner of the family. Referring, amongst others, to the evidence recorded by the learned District & Sessions Judge, Nalbari (for short, hereinafter referred to as 'the Enquiry Officer'), the learned counsel has insisted that not only the visitors who had gone to meet her husband at the Mushalpur Police Out Post prior to his death had noticed two black spots on his forehead suggesting physical assaults on his person, his confinement thereat without any justifiable reason had resulted in unbearable mental agony in violation of his right to life, thus, warranting award of compensation therefor. Without prejudice to this, Mr. Without prejudice to this, Mr. Islam has also urged that the petitioner's husband was not in the habit of using 'Gamosa' while using the toilet and, thus, the same having been planted by the police to give it a complexion of suicide, it is a fit case in which the respondents ought to be held guilty for his homicidal death in gross violation of his human rights holding them liable for payment of exemplary compensation therefor, Mr. Islam has underlined that as in any view of the matter non-compliance of the directions contained in the decision of the Apex Court in D. K Basu vs. State of West Bengal & other, AIR 1997 SC 610 (1) is patent as has been recorded by the Enquiry Officer, the respondents ought to be directed to pay adequate compensation for such uncalled for and deliberate infringement, In support of his contentions, Mr. Islam has placed reliance also on the decisions of the Apex Court in Renu Kunta Mallaiah vs. State of Andhra Pradesh, (2008) 10 SCC 220 and in Mehmood Nayyar Azam vs. Sate of Chhattisgarh & other, (2012) 8 SCC 1 . 7. Emphatically refuting the above, Mr. Deka has urged that it being more than apparent from the materials on record that the petitioner's husband died a suicidal death on his own volition, the claim for compensation in a proceeding under Article 226 of the Constitution of India is wholly misconceived. Referring to the evidence recorded in the Magisterial enquiry and the one conducted by the learned District & Sessions Judge, Nalbari and relying particularly on the post mortem report, the learned State counsel has insisted that the plea of homicidal death is a misconception liable to be dismissed in limine. According to Mr. Deka, in absence of any proof whatsoever of physical and mental torture by the police on the petitioner's husband during his stay at Mushalpur Police Out Post, the allegation of violation of his human rights is unfounded and ought to be rejected. To reinforce his pleas, the learned State counsel has placed reliance on the decision of the Apex Court in Sube Singh vs. State of Haryana & other, (2006) 3 SCC 178 . 8. We have cautiously considered the pleaded facts and the arguments advanced. We have perused closely as well the supporting documents on record. To reinforce his pleas, the learned State counsel has placed reliance on the decision of the Apex Court in Sube Singh vs. State of Haryana & other, (2006) 3 SCC 178 . 8. We have cautiously considered the pleaded facts and the arguments advanced. We have perused closely as well the supporting documents on record. Admittedly, the petitioner's husband on being called by the police had visited Mushalpur Police Out Post on 25.10.2007 along with one Harihar Das and though the latter was released later in course of the day, he (deceased) was detained. He, however, died an unnatural death on the next date i.e. 26.10.2007 having been found hanging from a rod in the toilet attached to the aforementioned Police Out Post by a 'Gamosa' tied thereto (rod). 9. The report of the post mortem examination proved and exhibited in the enquiry conducted by the learned District & Sessions Judge would disclose that the death was due to asphyxia following hanging. The findings recorded therein divulge that except the ligature mark in the front and sides of the neck at the upper most part thereof of the size referred to, no other injury was detected over the dead body. The report further discloses dislocation between the first and the second cervical vertebrae and the findings on the dissection of the ligature mark suggest ante mortem hanging. 10. A perusal of the report of the Magisterial enquiry submitted on 17.11.2007 immediately after the incident divulge that on the detention of the deceased at the Mushalpur Police Out Post on 25.10.2007 he was not put inside the lock up but lodged in a room which the constables used for residing. That on that date, a number of his well wishers from the teaching fraternity of the locality as well others including his wife had visited him has been mentioned therein. The authority conducting the said enquiry recorded further that the deceased did not exhibit any abnormal conduct or movement but did confide to one Niranjan Kalita of his village who had visited him that though he was being treated quite well by the police, he would resort to something extreme if not released from the police out post that day itself. This report further discloses that on the examination of the toilet it was found that the ventilator had a rod that was used by the deceased to tie the 'Gamosa' to hang himself and that while trying to reach the rod he stepped on the water taps inside for which those were broken. The following were the findings recorded in the Magisterial enquiry: Findings:- (i) Sri Rajen Das was brought to the OP and the reason for his detainment was not intimated to his family. (ii) Sri Das was kept at the OP quite comfortably without any bad treatment. He was neither kept in the lock up nor handcuffed. (iii) There was negligence on the part of the Home Guard in not observing that Sri Das took the gamocha to the toilet, which was not necessary. 11. As the report quoted above would suggest, the reason for detention of the deceased was not intimated to his family and there was negligence on the part of the Home Guard in-charge in not observing that the deceased had taken a 'Gamosa' to the toilet which was not necessary. It would, however, appear that the deceased during his stay at the police out post had not been meted out any 'bad treatment' and that he was neither kept in the lock up nor was handcuffed and that he was otherwise quite comfortable 12. The records reveal that following the unfortunate incident, Pabitra Kalita, S.I. who was at the relevant point of time the in-Charge of Mushalpur Police Out Post had reported the same to the Officer-in-Charge of Borbari Police Station on the very same date i.e. 26.10.2007 apart from making GD Entry No. 393 of the same date at his out post. That on the basis of the said report Borbari Police Station U.D. Case No. 11/0 was registered on 27.10.2007 is also borne out by the materials available. GD Entry No. 393 dated 26.10.2007 also bears out the truth of the version to this effect as mentioned in the FIR dated 26.10.2007. 13. In the enquiry conducted by the learned District & Sessions Judge, Nalbari as the proceedings thereof would demonstrate, whereas seven witnesses were examined on behalf of the petitioner, the respondents cited three witnesses. In addition, Sri Dhiraj Das, son of the deceased was examined as a Court Witness. 13. In the enquiry conducted by the learned District & Sessions Judge, Nalbari as the proceedings thereof would demonstrate, whereas seven witnesses were examined on behalf of the petitioner, the respondents cited three witnesses. In addition, Sri Dhiraj Das, son of the deceased was examined as a Court Witness. On an analysis of the evidence-oral and documentary, the Enquiry Officer arrived at the following findings:- (i) The police authorities specially the then I/C of Mushalpur O.P. Sri Pratap Kalita did not act in accordance with law as he failed to prepare the arrest memo while arresting Sri Rajen Das since deceased. He also failed to inform the family members of Rajen Das about his arrest which shows negligence on part of the police in performing his duty. (ii) The U/D Case No. 11/07 which was registered on the death of Rajen Das shows that the same has not been put up before the concerned Magistrate for necessary orders or brought to his notice b the police specially the O/C Borbari P.S. who had registered the same. This shows a negligence and carelessness on the part of the concerned police authorities. (iii) The conduct of the Post Mortem in absence of the family members of the deceased inspite of knowing them and their address shows utter insensitivity and callousness on part of the police. (iv) It is made clear that Sri Rajen Das was not subjected to any ill treatment or torture during his period of detention in the police out post. There was no sign of any injury on the person of Sri Rajen Das as alleged by the Writ Petitioner and her son. (v) It was not ascertained that the alleged Gamosa used by the deceased for hanging himself was provided by Sri Dhiraj Das, the son of Rajen Das. However, the fact that the police personnel allowed Rajen DAs to carry the Gamosa along with him to the latrine, more so after he was arrested shows great carelessness and lack of vigilance on the part of the police. (vi) The evidence does not suggest that there is any other cause that can be attributed for the death of Sri Rajen Das except as hanging which is suicidal in nature. (vii) There is no evidence to show that the son of the deceased had lodged an FIR on the alleged custodial death of Sri Rajen Das. 14. (vi) The evidence does not suggest that there is any other cause that can be attributed for the death of Sri Rajen Das except as hanging which is suicidal in nature. (vii) There is no evidence to show that the son of the deceased had lodged an FIR on the alleged custodial death of Sri Rajen Das. 14. In essence, it was held that though there were violations on some counts traceable to the procedure pertaining to the arrest and detention of the deceased, there was no evidence of any ill treatment or torture at the police out post and that there was no sign of injury on his person as alleged by the petitioner and her son. While affirming that the evidence really proved that the death of the petitioner's husband was suicidal in nature, the Enquiry Officer attributed "great carelessness and lack of vigilance on the part of the police" in allowing him to carry a 'Gamosa' to the toilet. 15. We have perused the evidence recorded in the enquiry conducted by the learned District & Sessions Judge, Nalbari. It transpires therefrom in substance that there was no evidence of any physical assault on the deceased or any ill treatment meted out to him during his brief stay at Mushalpur Police Out Post, This noticeably has been admitted by the writ petitioner who had visited the deceased thereat. Though the petitioner and three other witnesses including her son have referred to two black spots on the forehead of the deceased while meeting him on 25.10.2007, no such finding, to reiterate, had been recorded by the doctor performing the post mortem examination on his body. Further, the other witnesses have also not referred to such black spots. It is also not clear as to whether the same (black spots) are conclusively suggestive of any injury sustained by the deceased out of physical assaults meted out to him by the police at the out post. To the Contrary, the evidence of the witnesses of the petitioner clearly indicates that the deceased did not complain to them that the police had either misbehaved with him or had tortured him. That at the time of their visit he was not confined in the police lock up has also been disclosed by them in unequivocal terms. To the Contrary, the evidence of the witnesses of the petitioner clearly indicates that the deceased did not complain to them that the police had either misbehaved with him or had tortured him. That at the time of their visit he was not confined in the police lock up has also been disclosed by them in unequivocal terms. Though the doctor who had proved the post mortem report was cross examined by the petitioner and had opined that the death of her husband was suicidal in nature, noticeably, not even a suggestion was given to him that it was homicidal. 16. The evidence of the respondents' witnesses disclose that the petitioner's husband was summoned to the Mushalpur Police Out Post in connection with Baksa P.S. Case No. 72/07 and that in course of his interrogation by the Superintendent of Police, Baksa he (deceased) had handed over two letters to the investigating agency which eventually did arrest him on the instructions of the superior officer overseeing the process on 26.10.2007 at 10 a.m. in connection with the case. That corresponding to his arrest GD Entry No. 385 of Mushalpur Police Out Post was made is also borne out by the records. The evidence of the witnesses of the respondents further disclose that at about 2.50 p.m. on 26.10.2007, the deceased went to the toilet attached to the Police Out Post and though Home Guard Sailen Medhi was assigned the duty to accompany him, this fact was not brought to the notice of the in-Charge of the Out Post. It was thereafter that noticing undue delay in his return, the door of the toilet was broken open and the deceased was found hanging from the rod of the ventilator therein being tied to the neck with it by a 'Gamosa'. Visibly the findings recorded in the Magisterial enquiry do accord with this version of the witnesses of the respondents. The respondents' witnesses stated as well that Dhiraj Das, son of the deceased on his return to the Out Post after his interaction with the Superintendent of Police, Baksa rebuked the deceased as he (deceased) had disclosed some material facts to the investigating agency. They averred as well that prior to the commission of the incident the 'Gamosa' used by the deceased in committing suicide had been handed over to him by his son. 17. They averred as well that prior to the commission of the incident the 'Gamosa' used by the deceased in committing suicide had been handed over to him by his son. 17. One facet of the episode, however, cannot be overlooked. The witnesses of the petitioner in particular have inter alia highlighted that the deceased who was a teacher and a social figure of the locality was deeply hurt by the ignominy he suffered due to his detention thus defiling his social status and esteem. An indication to this is available in the Magisterial enquiry report which referred to his disclosure to Sri Niranjan Kalita of his disgust and the contemplation to take extreme step if not released immediately from custody. To be specific, P.W. 2, Harihar Das in course of his cross-examination remarked that the deceased was a responsible person in the locality and involved with various organizations and that it might be that, as he was an arrogant person, he committed suicide on being called by the police to the police out post for interrogation. 18. On a cumulative consideration of the materials on record, we are left unconvinced that the death of the petitioner's husband while in custody of Mushalpur Police Out Post had been due to any physical torture by the police. The possibility of his committing suicide being deeply grieved and devastated by his confinement in police custody for nearly 48 hours cannot be ruled out. The materials on record as a whole do not suggest that this extreme step had been taken by him on being induced by any act or deed of the police to hold them culpably liable therefor. 19. The above notwithstanding, it is admitted by the respondents that Sri Sailen Medhi, Home Guard under whose vigil and control the deceased had been left at the Mushalpur Police Out Post had been grossly negligent in allowing him to carry a 'Gamosa' with him to the toilet and not bringing this to the notice of the in-Charge of the Out Post in time. Further, though it is in the evidence of the witnesses of the respondents that the deceased was directed to be arrested by the Superintendent of Police, Baksa on 25.10.2007 itself, he was arrested only on the next date i.e. 26.10.2007, hours before his death. The reason for such delay is not forthcoming. Further, though it is in the evidence of the witnesses of the respondents that the deceased was directed to be arrested by the Superintendent of Police, Baksa on 25.10.2007 itself, he was arrested only on the next date i.e. 26.10.2007, hours before his death. The reason for such delay is not forthcoming. This assumes significance in view of the fact that the deceased had remained confined in the Out Post without being arrested. In addition thereto, the report of the Magisterial enquiry as well as the one in the process conducted by the learned District & Sessions Judge, Nalbari would disclose that the deceased was brought to Mushalpur Out Post and was confined thereat without any intimation to his family and further that the police authorities, more particularly, the then in-Charge of Mushalpur Out Post Sri Pratap Kalita did not prepare the arrest memo while arresting the deceased as was required in law. He also failed to inform his family members about his arrest. Further, the post mortem examination of his body was conducted in absence of his family members though their address was known to the investigating agency. 20. The Apex Court in D.K. Basu (supra) while dealing with the theme of 'custody jurisprudence' and the modalities for awarding compensation to the victim and/or his/ her family members for atrocities and death caused in police custody as well as to provide for accountability for the officers concerned emphasized on the essentiality of maintaining a delicate yet right balance between the freedom of an individual and his/or human rights on one hand and the security of the State on the other. While underlining that the action of the State must essentially be right, just and fair, their Lordships enumerated the requirements to be complied in all cases of arrest or detention by the police till legal provisions were made in that behalf as preventive measures to guard against police excesses and high handed outrages in transgression of human rights. These measures adopted in essence as guidelines by all concerned, amongst others, require that the police officer carrying out the arrest should prepare a memo of arrest at the time of arrest and that such memo is to be attested by at least one witness who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. In terms of the requirement to this effect as prescribed, the arrest memo which should contained the date and time of arrest ought to be countersigned by the arrestee. The guidelines further mandated that a person who is arrested or detained in custody or is subjected to interrogation shall be entitled to have one relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and detained at a particular place, unless the attesting witness of the memo of arrest is himself. The requirement of notification of the time, place of arrest and venue of custody of the arrestee by the police where the next friend or relative of the arrestee lives outside the district or town in the manner as provided in the guidelines is also of utmost significance. The guidelines further provide that the person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. That the arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody or by a doctor on the panel of approved doctors as referred to therein is also an inalienable requirement prescribed by their Lordships. The guidelines further guarantee the right of the arrestee to meet his lawyer during interrogation. Their Lordships observed that these requirements as ordained do flow from Article 21 and 22(1) of the Constitution of India and were thus to be strictly followed. 21. In Mehmood Nayyar Azam (supra), the Hon'ble Apex Court recognized the right to reputation of a person to be a facet of Article 21 of the Constitution of India. 22. In the conspectus of facts as narrated hereinabove, though we are constrained to reiterate that materials are lacking to conclusively hold that the death of the petitioner's husband while in custody of Mushalpur Police Out Post had been due to any physical torture, the petitioner's plea of mental agony and distress suffered by him, more particularly, having regard to his avocation in life and recognition in the society, cannot be lightly disregarded. The violations committed by the investigating agency as recorded in the two enquiries vis-a-vis the guidelines enumerated in. D.K. Basu (supra) also stand proved. 23. The violations committed by the investigating agency as recorded in the two enquiries vis-a-vis the guidelines enumerated in. D.K. Basu (supra) also stand proved. 23. On a cumulative consideration of all these, we are thus not inclined to wholly dismiss the petitioner's claim for compensation. It is our unhesitant opinion that in the attendant facts and circumstances, the petitioner's right to reputation and several of the requirements prescribed by the Apex Court in D.K. Basu (supra) had been infringed without any justifiable cause. 24. The above notwithstanding, compensation by way of public law remedy is not a substitute of common law remedy available to a person aggrieved on the same cause of action. It is only in the form of a palliative in a bid to assuage the proved transgression of one's human rights. In this view of the matter, though at the relevant time the petitioner's husband was the only bread earner of the family as claimed by her and that he had a monthly income of Rs. 15,303/-, the same per se cannot decisively quantify the amount of compensation to be granted. In the exercise of our writ jurisdiction, having regard to the singular facts and circumstances of the case, we are of the view that it would meet the ends of justice if the amount of compensation payable is estimated at Rs. 1,50,000/-. We order accordingly 25. The respondents would release this amount of compensation to the petitioner on proper identification within a period of six weeks therefrom. 26. The petition is allowed to the extent indicated hereinabove. No costs. A copy of this judgment and order be furnished to Mr. PS Deka, learned Addl. Senior Govt. Advocate, Assam to enable him to do the needful. Petition allowed.