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2012 DIGILAW 130 (ORI)

Kuni Parida v. State of Orissa

2012-03-13

B.N.MAHAPATRA, V.GOPALA GOWDA

body2012
JUDGMENT B.N. Mahapatra, J. 1. This writ petition has been filed with a prayer to grant compensation of Rs.10.00 lakhs to the petitioners on account of untimely death of one under-trial prisoner namely, Ladu @ Rajkishore Parida on 05.11.2003, who happens to be the husband of petitioner No.1 and father of petitioner Nos.2 and 3, on the ground that death of the deceased was due to lack of proper care and non-supply of medicine as well as adequate and proper diet to the deceased by the Jail Authorities. 2. Petitioners’ case in a nutshell is that the deceased Ladu @ Rajkishore Parida (for short, “deceased”), aged about 40 years was arrested and taken to Special Jail, Jharpada, Bhubaneswar on 05.09.2003 in connection with G.R. Case No.3017/03 of the Court of S.D.J.M., Bhubaneswar under Sections 461 and 379 I.P.C. for theft of some petty materials as per letter dated 06.11.2003 (Annexure-1) issued by the S.I., Laxmisagar Police Station addressing to the Chief Medical Officer, Capital Hospital, Bhubaneswar. All of a sudden, the petitioners came to know from Odia newspaper (Annexure-2) on 06.11.2003 morning that the deceased died in the jail due to lack of proper treatment. Immediately thereafter, relatives of the petitioners rushed to Jharpada Jail, where they were informed by the staff of Jharpada Jail that due to illness the deceased was shifted to Capital Hospital, Bhubaneswar and he died there. 3. Dr. T.C. Mohanty, learned Senior Advocate appearing on behalf of the petitioners submitted that the deceased died in Jharpada Jail and not in the Capital Hosptial as it has been clearly mentioned in the death certificate that the place of death of the deceased is Jharpada Jail. According to Dr. Mohanty, the dead body of the deceased was sent to the Capital Hospital for post-mortem examination by Laxmisagar Police Station but the same was referred to the S.C.B., Medical College and Hospital (for short, “SCB”) vide their letter No.5009 dated 06.11.2003 (Annexure-1) and finally post-mortem on the body of the deceased was conducted in the Capital Hospital after three days, i.e., on 07.11.2003 at 1 P.M. though the dead body of the deceased was received by the Capital Hospital on 05.11.2003 at about 6.10 PM. Here suspicion arises that when the post-mortem was conducted by Capital Hospital finally, there was no reason for referring the dead body to SCB and not conducting the post-mortem of the dead body of the deceased there. The reason is only known to the State-authorities. Such attitude of the Jail Authorities creates doubt in the mind of the petitioners that there is some mala fide intention behind it so as to suppress the actual cause of death. 4. It is stated that one Brajabandhu Parida, brother of the deceased expressed his doubt regarding the cause of death of his brother in the inquest report to the effect that “I am unable to understand how my brother has died”. Below the signature of Brajabandhu Parida, another witness namely, Manoj Parida has also signed in the Inquest Report. Sri Niranjan Behera, S.I. of Laxmisagar Police Station and the Magistrate Sri Debasish Singh, who were present at the time of inquest have also clearly mentioned that the “Cause of death is not known”. All these opinions demonstrate that the death of the deceased was definitely due to negligence of the Jail Authorities. After the untimely death of deceased, the widow has been passing her days in melancholy posture and also in distress condition. After regaining strength in mind and coming to stable condition she could be able to get the certified copy of U.D. Case No.15 of 2003 only on 30.12.2006, wherefrom she could come to know the mala fide intention of the Jail Authorities. 5. Dr. Mohanty, further submitted that U.D. case was actually lodged on 06.11.2006 though the death of deceased occurred on 05.11.2003. There was no reason as to why the patient was not admitted to the Capital Hospital or SCB which are not far off from Jharpada Jail for treatment, if he had prolonged illness as pleaded by the Jail Authorities. Such plea of the jail authorities is totally false as petitioner No.1-wife had seen her husband in Jail in good condition prior to four-five days of death. The post-mortem report also discloses that a group of drugs were detected in the viscera. It is not known who had prescribed to give such drugs in empty stomach to the deceased. Such plea of the jail authorities is totally false as petitioner No.1-wife had seen her husband in Jail in good condition prior to four-five days of death. The post-mortem report also discloses that a group of drugs were detected in the viscera. It is not known who had prescribed to give such drugs in empty stomach to the deceased. The post-mortem report further discloses that one kidney was preserved, but nothing has been mentioned about the other kidney, which creates doubt whether it was in the body of the deceased or not. Nowhere the actual time of death of the deceased has been mentioned which also proves the mala fide intention of Jail Authorities of Jharpada Jail regarding cause of death. On the basis of the above allegations, Dr. Mohanty submitted that so far as cause of death of the deceased is concerned that needs further investigation by an independent body under the order of this Court. The petitioners have no source of income after death of the deceased. The deceased was 40 years old at the time of death and was earning Rs.150/-per day as a Mason. It was further submitted that the petitioners have appealed to the State Human Rights Commission for monetary help which is still pending before the said Commission. Concluding his argument, Dr. Mohanty, learned Senior Advocate submitted that keeping in view the age of the deceased and his daily income before death, the legal heirs of the deceased may be awarded compensation of Rs.10.00 lakhs. 6. Mr. R.K. Mohapatra, learned Government Advocate appearing on behalf of the opposite parties submitted that one U.T. prisoner Rajkishore Parida was admitted in the Special Jail, Jharapda being accused in the criminal case for commission of offence under Sections 461 and 379 I.P.C. and he was also in jail from 05.09.2003. The said U.T. Prisoner was admitted as an indoor patient vide Indoor Register No.265 dated 05.09.2003 of Jail Hospital for generalized weakness and abnormal behaviour. He was given required treatment by the Jail Medical Officer till 05.11.2003. The deceased was referred to Capital Hospital on 12.09.2003 and 13.09.2003 and he was given medicines as per the advice of the treating physician of the Capital Hospital. The deceased was also examined by Dr. L.S. Mohapatra, Psychiatrist of Circle Jail, Cuttack at Choudwar on 10.09.2003 for his abnormal behaviour. The deceased was referred to Capital Hospital on 12.09.2003 and 13.09.2003 and he was given medicines as per the advice of the treating physician of the Capital Hospital. The deceased was also examined by Dr. L.S. Mohapatra, Psychiatrist of Circle Jail, Cuttack at Choudwar on 10.09.2003 for his abnormal behaviour. The Jail Medical Officer referred the case of U.T.P. to Capital Hospital for immediate specialized treatment at about 4.00 P.M. as he was found serious. But the deceased was declared dead in the Casuality of Capital Hospital at about 6.10 P.M. On receipt of death news of the deceased, an F.I.R. was lodged before the Inspector-in-Charge of Capital Police Station/Inspector-in-Charge of Laxmisagar P.S. vide office order no.3584(2) dated 05.11.2003. The Secretary, National Human Rights Commission/Principal Secretary to Government, Department of Home/Additional D.G. of Police-cum-I.G. of Prisons and D.C.S., Orissa/District Magistrate, Khurda and Superintendent of Police, Khurda were intimated about the death news of the U.T.P. vide office Message No.3588 dated 05.11.2003. An intimation on the death of U.T.P. deceased-Rajkishore had also been sent to the Court of learned S.D.J.M., Bhubaneswar vide office letter No.3594 dated 06.11.2003. On receipt of the information of death of U.T.P., U.D. Case No.15 dated 05.11.2003 was registered in Laxmisagar P.S. The Inspector-in-Charge of Chandrasekharpur P.S. was requested vide Office letter No.3585 dated 05.11.2003 to communicate the death news of U.T.P. Rajkishore Parida to his relatives. An inquest over the dead body of U.T.P. Rajkishroe Parida was conducted on 06.11.2003 at 11.45 A.M., in presence of Sri Debasis Singh, Executive Magistrate in Capital Hospital, Bhubaneswar. At the time of inquest Sri Brajabandhu Parida, Manoj Parida and Tibina Parida were present and signed on the inquest report. Sri Niranjan Behera, S.I. of Laxmisagar Police Station, who is the I.O. in this case, has requested the Chief Medical Officer, Capital Hospital to conduct the post-mortem over the dead body of the deceased vide his letter No. “Nil” dated 06.11.2003. The Medical Officer has requested the Professor & H.O.D., F.M.T., Department of SCB vide letter No.5009 dated 06.11.2003 to conduct post-mortem examination as the matter related to the case of a U.T. Prisoner. The Professor & H.O.D., Department of F.M.T., SCB in his letter No.3572 dated 06.11.2003 addressed to the Chief Medical Officer, Capital Hospital intimated that there is no ground to refer the case to F.M.T. Department for postmortem examination. The Professor & H.O.D., Department of F.M.T., SCB in his letter No.3572 dated 06.11.2003 addressed to the Chief Medical Officer, Capital Hospital intimated that there is no ground to refer the case to F.M.T. Department for postmortem examination. The post-mortem examination of a U.T.P. case can be done by any doctor of the Hospital. It does not require that F.M.T. Specialist will only conduct the case. Moreover, there is no such circular that the post-mortem examination of a U.T.P. will be conducted by the F.M.T. Specialist only. On receipt of instruction from the Professor & H.O.D., F.M.T., Department of SCB, the Chief Medical Officer, Capital Hospital has again been requested vide Letter No.2247 dated 06.11.2003 of Sri Niranjan Behera, S.I. of Laxmisagar Police Station to conduct postmortem over the dead body of the deceased in that hospital. The postmortem was conducted by Dr. Sarbeswar Acharya, Specialist, F.M.T., Capital Hospital at 1.00 P.M. on 07.11.2003. In the said report he has mentioned that the cause of death of the deceased was due to “Asphyxia out of disease Bronco Pneumonia”. After completion of the post-mortem, the dead body was received by Sri Brajabandhu Parida, the brother of the deceased under proper acknowledgment. Therefore, there was no delay in conducting the post-mortem examination on the dead body of the deceased either by the Jail Authorities or Police Authorities or Medical Authorities. The brother of the deceased Sri Brajabandhu Parida has clearly mentioned in the inquest report that “MO BHAI KIVALI MARICHHI MU JANI PARUNAHI”. Generally the cause of death can only be ascertained after the post-mortem examination of the dead body. The inquest was conducted by Sri Niranjan Behera, S.I. of Police, Laxmisagar Police Station. The Jail Authorities have nothing to interfere in the inquest of the dead body. The deceased was under treatment as an indoor patient in the Jail Hospital from the date of his admission into the Jail. 7. On the rival contentions advanced by parties the only question that falls for consideration by this Court is as to whether in the facts and circumstances of the case, the legal heirs of the deceased are entitled to any compensation on account of the untimely death of the deceased, who was a U.T.P. in jail custody. 8. 7. On the rival contentions advanced by parties the only question that falls for consideration by this Court is as to whether in the facts and circumstances of the case, the legal heirs of the deceased are entitled to any compensation on account of the untimely death of the deceased, who was a U.T.P. in jail custody. 8. Needless to say that the apex Court in several decisions has observed that the precious right guaranteed under Article 21 of the Constitution of India cannot be denied to the under trial or other prisoners in custody, except according to the procedure established by law. The prison authority has a great responsibility to ensure that a citizen in custody is not deprived of his right to life. He must be afforded with minimum necessities of life. 9. The Hon’ble Supreme Court in the case of D.K. Basu v. State of West Bengal, AIR 1997 SC 610 held that : “Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rules of Law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest ? These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic ‘No’. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.” 10. The answer, indeed, has to be an emphatic ‘No’. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.” 10. The Hon’ble Supreme Court in the case of Chameli Singh & others vs. State of Uttar Pradesh and another, AIR 1996 SC 1051 , held as follows: “Right to life” means to live like a human being and it is not ensured by meeting only the animal needs of man. It includes the right to live in any civilized society implies the right to food, water, decent environment, education, medical care and shelter.” 11. The Hon’ble Supreme Court in the case of Smt. Nilabati Behera alias Lalita Behera vs. State of Orissa and others, AIR 1993 SC 1960 , has held as under: “30. It is axiomatic that convicts, prisoners or undertrials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law. I agree with Brother Verma, J. that the defence of “sovereign immunity” in such cases is not available to the State and in fairness to Mr. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law. I agree with Brother Verma, J. that the defence of “sovereign immunity” in such cases is not available to the State and in fairness to Mr. Altaf Ahmed it may be recorded that he raised no such defence either. 12. The term “life” used in Article 21 of the Constitution of India has a wide and far-reaching concept. It means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. (vide Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni, AIR 1983 SC 109 ; Olga Tellis & Ors. Vs. Bombay Municipal Corporation & Ors., AIR 1986 SC 180 ; and Kapila Hingorani Vs. State of Bihar , (2003) 6 SCC 1 ). 13. In the instant case, there is no material on record to support the claim of the State that from the date of admission, the deceased was treated as an indoor patient in Jail Hospital till he was sent to Capital Hospital on 05.11.2003 when he became serious. No intimation was sent to his family members regarding illness of the deceased and his treatment in Jail Hospital, Capital Hospital on 12.9.2003 and 13.9.2003 respectively. This is certainly a serious laches on the part of the Jail Authorities. No step was also taken to send the message of illness of the deceased to his family. It was only after death of the deceased, the I.I.C., Chdrasekharpur Police Station was informed to intimate the relatives of the deceased about his death. This is certainly serious laches on the part of the State Authorities. There is nothing on record to show that the medicine and diet prescribed by the Physician were given to the deceased. Needless to say that it is the duty cast on the Jail Authorities to see that the diet and medicine prescribed to an under-trial prisoner-patient have been provided. No convincing reason has been assigned by the opposite parties as to why the dead body of the deceased was sent to SCB from Capital Hospital and again for the purpose of post-mortem, the dead body of the deceased was returned to Capital Hospital. No convincing reason has been assigned by the opposite parties as to why the dead body of the deceased was sent to SCB from Capital Hospital and again for the purpose of post-mortem, the dead body of the deceased was returned to Capital Hospital. All such conduct of the Jail Authorities create grave suspicion in the mind of this Court about providing proper treatment and care to the deceased during his stay in the jail as an under trial prisoner, who died at the age of 40. Therefore, the petitioners, who are wife and children of the deceased, are entitled for compensation. 14. At this juncture, it would be profitable to refer to the decision of the apex Court in D.K.Basu (supra) wherein the apex Court held as under: “42. Some punitive provisions are contained in the Indian Penal Code which seek to punish violation of right to life. Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a corrupt or malicious motive. Sections 330 and 331, provide for punishment of those who inflict injury or grievous hurt on a person to extort confession or information in regard to commission of an offence. Illustration (a) and (b) to Section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330, therefore, directly makes torture during interrogation and investigation punishable under the Indian Penal Code. These statutory provisions are, however, inadequate to repair the wrong done to the citizen. Prosecution of the offender is an obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, not by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legal injury is compulsion of judicial conscience. xxxx xxxx xxxx 55. To repair the wrong done and give judicial redress for legal injury is compulsion of judicial conscience. xxxx xxxx xxxx 55. Thus, to sum up, it is now a well accepted proposition in most of the jurisdiction, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the Criminal Courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.” 15. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.” 15. The Hon’ble Supreme Court in the case of Smt. Nilabati Behera alias Lalita Behera (supra), held as under: In Rudul Sah 1983 (3) SGR 508 it was held that in a petition under Article 32 of the Constitution, this Court can grant compensation for deprivation of a fundamental right. That was a case of violation of the petitioner's right to personal liberty under Article 21 of the Constitution. Chandrachud, CJ., dealing with this aspect, stated as under: (SCC pp. 147-48, paras 9 and 10) “It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of courts, civil and criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right. The instant case is illustrative of such cases .... ... The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders to release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others too well known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers.” 16. In the fact situation, considering the age of the deceased and since he was only bread-winner of the bereaved family, we deem it just and proper to direct opposite party-State to pay an ex gratia of Rs.5.00 lakhs to the bereaved family of the deceased within a period of eight weeks from today failing which the ex gratia of Rs.5 lakhs shall carry interest of 9% per annum, after the date of expiry of eight weeks till the date of payment. It is further directed that out of total compensation of Rs.5.00 lakhs, Rs.1.00 lakh shall be deposited in a fixed deposit in any Nationalized Bank in the name of petitioner No.1 and the monthly interest accrued thereon shall be paid to petitioner No.1 in every month. It is further directed that out of total compensation of Rs.5.00 lakhs, Rs.1.00 lakh shall be deposited in a fixed deposit in any Nationalized Bank in the name of petitioner No.1 and the monthly interest accrued thereon shall be paid to petitioner No.1 in every month. Rs.1,50,000/-(Rupees One lakh fifty thousand) in the joint names of petitioner Nos.1 and 2 and another Rs.1,50,000/-(Rupees One lakh fifty thousand) in the joint names of petitioner Nos.1 and 3 shall be kept in any Nationalized Bank till petitioner Nos.2 and 3 attain majority, as the said amount is awarded in their favour. The interest earned on such deposits of the petitioner nos. 2 and 3 shall be withdrawn every month and utilised for their welfare, such as education, clothing, food and other related expenses. The balance amount of Rs.1 lakh (Rupees one lakh) shall be paid to petitioner No.1 in cash on proper identification within a period of eight weeks. 17. With the aforesaid observation and direction, the writ petition is partly allowed.