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2017 DIGILAW 1290 (PNJ)

Swaranjeet Singh v. State of Punjab

2017-05-31

AMIT RAWAL

body2017
JUDGMENT : Amit Rawal, J. The petitioner, father of the deceased-Harinder Singh, has approached this Court for issuance of writ in the nature of mandamus directing the respondent-State to award monetary compensation to the tune of Rs. 20 lacs on account of custodial death. 2. It has been submitted that Harinder Singh-deceased was lodged in Central Jail, Amritsar for facing trial of offence under Section 61 of the Punjab Excise Act. According to the petitioner, his son was beaten in the jail premises, who later on succumbed to the injuries. An attempt was made to put the matter under carpet but with the intervention of this Court, FIR bearing No.275 dated 13.7.2007 was registered at Police Station Sadar Amritsar against the accused namely, Gurdip Singh son of Gurdip Singh, Paramjit Singh son of Hushank Singh and Kulwinder Singh son of Gurcharan Singh. 3. Mr. Navdeep Chhabra, learned counsel appearing on behalf of the petitioner submitted that on 26.10.2006, Harinder Singh (since deceased) was produced before the Court and after the proceedings of the Court, was taken back to the jail safely and in good health. However, at about 5.22 PM on 27.10.2006, he was brought to the Civil Hospital and declared dead at 6.30 PM. On 28.10.2006, Postmortem Report was prepared by the Department of Forensic Medicines, Government Medical College, Amritsar and as per the report the Postmortem Report (Annexure P-1) it was found that there were certain external injuries on his body, as a result thereof, the son of the petitioner died. 4. On 13.11.2006, the petitioner submitted written communications to various authorities i.e. the Chairman Human Rights Commission, Punjab Hon'ble the Chief Justice Punjab and Haryana High Court etc., which was treated as Crl.Misc. Petition No. 74621-M of 2006. A medical opinion dated 6.1.2007 (Annexure P-2) was relied upon by the petitioner to allege that the deceased had died on account of craniocerebral injury leading to intracranial hemorrhage, resulting into injury No.1 and 2 which is sufficient to cause death in ordinary course of nature. 5. The Sub Divisional Magistrate had also conducted an enquiry and the report dated 26.3.2007 (Annexure P-3) submitted to the District Magistrate, Amritsar indicating that though it could not, prima facie, found that Harinder Singh died of the beatings but the death of the prisoner on account of head injury was suspicious. 5. The Sub Divisional Magistrate had also conducted an enquiry and the report dated 26.3.2007 (Annexure P-3) submitted to the District Magistrate, Amritsar indicating that though it could not, prima facie, found that Harinder Singh died of the beatings but the death of the prisoner on account of head injury was suspicious. This Court vide order dated 30.05.2007 (Annexure P-4), noticing the aforementioned facts, disposed of the aforementioned petition and as a result thereof, the aforementioned FIR was registered. 6. It has also been pointed out that the petitioner had also approached this Court vide CWP No.16029 of 2008 seeking monetary compensation and this Court vide order dated 28.01.2009 (Annexure P-6) noticed that since challan had already been presented and the matter pending before the trial judge, disposed of the writ petition by granting interim compensation of Rs. 2 lacs to be paid to the petitioner within six months from the dated of receipt of certified copy of the order with a rider that it will not preclude him for seeking further enhancement of the compensation, if it is found that his son had suffered a custodial death. 7. Learned counsel for the petitioner further submitted that since the police did not conduct the investigation properly and did not place on record material to substantiate the evidence, in order to support the aforementioned accused persons, being the police officials, inasmuch as filed enquiry reports Ex.PW14/A and PW14/D without examining authors of the aforementioned reports, the accused persons were acquitted on the basis of benefit of doubt vide order dated 27.11.2012 (Annexure P7). In fact, the prosecution was not conducted properly. All the eyes witnesses deposed before the Investigating Officer that in fact the deceased was mercilessly beaten by the police authorities and were proved on record as PW6 Kaustubh Sharma and statement of Gurpreet Singh (Annexure P-9). 8. In fact, the prosecution was not conducted properly. All the eyes witnesses deposed before the Investigating Officer that in fact the deceased was mercilessly beaten by the police authorities and were proved on record as PW6 Kaustubh Sharma and statement of Gurpreet Singh (Annexure P-9). 8. In support of his contention, learned counsel appearing on behalf of the petitioner relied upon the judgment rendered by Hon'ble Supreme Court in D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 and by a Division Bench of this Court in Phoolwati v. State (Union Territory of Chandigarh) and others 2008(1) RCR (Civil) 139 to contend that custodial death is also violation of Article 21 of the Constitution of India and tortious liability should be fastened upon the erring official at whose behest and on account of whose negligence and criminal act, custodial death occurred. They should be burdened with compensation, in essence, the family of the deceased is entitled to compensation and the method of multiplier as applicable in motor accident cases is to be applied. 9. He further referred to the report of the District and Sessions Judge, Amritsar, which was submitted in pursuance of the order dated 8.2.2017 passed by this Cour whereby this Court had directed the District and Sessions Judge to assess the age of the deceased and suitable multiplier. As per the report, the deceased-Harinder Singh at the time of his death was aged 27 years and suggested multiplier of 17. 10. On the other hand, Mr. Yatinder Sharma, Addl. A.G., Punjab submitted that the deceased did not die of the injuries as alleged in the petition, much less, of inhuman and indifferent attitude but he sustained injuries owing to the fall in the bathroom. In fact, no investigation has revealed the negligence of the police officials. None of the investigation report had resulted into any such findings, much less, registration of the FIR also resulted into acquittal, therefore, the petition is not tenable and liable to be dismissed. 11. He further submitted that question of damages and compensation cannot be decided in writ jurisdiction. The remedy, if any, would be of filing the civil suit. In fact, all the injuries No.1 i.e. subqaleal haematome present on (L) Parieto-occipital region of head extended to (R) side of occipital region leading to intracranial hemorrhage. 11. He further submitted that question of damages and compensation cannot be decided in writ jurisdiction. The remedy, if any, would be of filing the civil suit. In fact, all the injuries No.1 i.e. subqaleal haematome present on (L) Parieto-occipital region of head extended to (R) side of occipital region leading to intracranial hemorrhage. Even the report of the SDM also exonerated the jail officials of the alleged allegations levelled against them and the liberty granted by this Court while ordering the interim compensation for seeking enhancement of the same was only in the eventuality of accused found guilty but in the absence of the same, the writ petition is liable to be dismissed. 12. I have heard learned counsel for the parties and appraised the paper book. The deceased had died on sustaining injury on the back side of head and as well as the front of eye. The manner in which the police authorities have explained the death of the deceased of sustaining the injuries i.e. the injuries owing to the falling in the bathroom, could not have been on the two sides of the body i.e. front and the back. The operative part of the report of the SDM regarding the suspicion of the death reads as under:- "On the basis of spot enquiry at De-Addiction Centre (ward) where the prisoner Harinder Singh was kept and enquiring from other prisoners on the spot and as per the statements of above said Partap Singh, Lifter and In charge Assistant Superintendent, De-Addiction Centre (ward), the death of the prisoner Harinder Singh is not proved due to beating but as per the post mortem report of the deceased prisoner in which head injury is reported, the death of prisoner Harinder Singh is suspicious." 13. It is also a matter of record that accused persons in the FIR had been acquitted on the benefit of doubt, which is not an honourable acquittal. Since the accused persons are police officials, obviously they would be supporting their colleagues by keeping every possible loophole in the investigation. This fact is being noticed from the judgment dated 27.11.2012 rendered by the Additional Sessions Judge. Relevant portion of the same reads as under:- "As regards the enquiry reports Ex.PW14/A and Ex.PW14/D, the said enquiries have been conducted afterwards and as such cannot be called primary or direct evidence in regard to the occurrence. This fact is being noticed from the judgment dated 27.11.2012 rendered by the Additional Sessions Judge. Relevant portion of the same reads as under:- "As regards the enquiry reports Ex.PW14/A and Ex.PW14/D, the said enquiries have been conducted afterwards and as such cannot be called primary or direct evidence in regard to the occurrence. Even otherwise also, for the reasons best known to the prosecution has placed on record the enquiry report but has not examined the enquiry officers namely Sh. Rajesh Sharma and Sh. Manpreet Singh, Sub Divisional Magistrate, Amritsar. In such like circumstances, it can be said there is nothing on record which can connect the accused with the injuries on his right eye and left parieto occipital region of head of Harinder Singh." 14. Had the authors of the enquiry reports Ex.PW14/A and PW14/D been examined to corroborate the same, perhaps the finding in the aforementioned criminal case would have been different. The forensic report also reveals the death on account of injury i.e. subqaleal haematome present on (L) Parieto-Occipital region of head extended to (R) side of occipital region and on right eye. 15. Cumulative reading of the aforementioned facts, leads to irresistible conclusion that the deceased could not have died on account of injuries as being projected by the police. Otherwise, there would not have been injuries on the person of the deceased as indicated above. In my view, it is a case of custodial violence, torture, rape, death in police custody/lock up is not longer in controversy. In fact, it has been deliberated/pondered upon in many cases, much less, in the judgments cited supra. The aforementioned act of the authorities infringes the basic human rights and strikes a blow at the rule of law. In fact, it is a naked violation of human dignity and destruction of human personality. This is what has been laid down in the judgment cited in supra in D.K. Basu's case (supra) in paragraphs 22, 27 and 30, which read thus:- "22. Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. The rights inherent in Articles 21 and 22(1) of the Constitution required to be jealously and scrupulously protected. We cannot wish away the problem. Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. The rights inherent in Articles 21 and 22(1) of the Constitution required to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture of 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 anarchanism. 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 undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. 27. It needs no emphasis to say that when the crime goes unpunished, the criminals are encouraged and the society suffers. The victim of crime or his kith become frustrated and contempt for law develops. It was considering these aspects that the Law Commission is its 113th Report recommended the insertion of section 114(B) in the Indian Evidence Act. The Law Commission recommended in its 113 Report that in prosecution of a police officer for an alleged offence of having caused bodily injury to a person, if there was evidence that the injury was caused during the period when the person was in the custody of the police, the Court may presume that the injury was caused by the police officer having the custody of that person during that period. The Commission further recommended that the court, while considering the question of presumption, should have regard to all relevant circumstances including the period of custody, statement made by the victim, medical evidence and the evidence which the Magistrate may have recorded. Change of burden of proof was, thus, advocated. The Commission further recommended that the court, while considering the question of presumption, should have regard to all relevant circumstances including the period of custody, statement made by the victim, medical evidence and the evidence which the Magistrate may have recorded. Change of burden of proof was, thus, advocated. In sham Sunder Trivedi's case (supra) this Court also expressed the hope that the Government and the legislature would give serious thought to the recommendation of the Law Commission. Unfortunately, the suggested amendment, has not been incorporated in the statute so far. The need of amendment requires no emphasis - sharp rise in custodial violence, torture and death in custody, justifies the urgency for the amendment and we invite Parliament's attention to it. 30. Apart from the police, there are several other governmental authorities also like Directorate of Revenue Intelligence, Directorate of Enforcement, Costal Guard, Central Reserve Police Force (CRPF), Border Security Force (BSF), the Central Industrial Security Force (CISF), the State Armed Police, Intelligence Agencies like the Intelligence Bureau, R.A. W, Central Bureau of Investigation (CBI), CID, Traffic Police, Mounted Police and ITBP, which have the power to detain a person and to interrogated him in connection with the investigation of economic offences, offences under the Essential Commodities Act, Excise and Customs Act, Foreign Exchange Regulation Act etc. There are instances of torture and death in custody of these authorities as well In re Death of Sawinder Singh Grover [1995 Supp (4) SCC, 450], (to which Kuldip Singh, J. was a party) this Court took suo moto notice of the death of Sawinder Singh Grover during his custody with the Directorate of Enforcement. After getting an enquiry conducted by the Additional District Judge, which disclosed a prima facie case for investigation and prosecution, this Court directed the CBI to lodge a FIR and initiate criminal proceeding against all persons named in the report of the Additional District Judge and proceed against them. The Union of India/Directorate of Enforcement was also directed to pay sum of Rs. 2 lacs to the widow of the deceased by way of ex gratia payment at the interim stage. Amendment of the relevant provisions of law to protect the interest of arrested persons in such cases too is a genuine need." 16. This Court has already sought the report of the District and Sessions judge regarding ascertaining the age of the deceased. Amendment of the relevant provisions of law to protect the interest of arrested persons in such cases too is a genuine need." 16. This Court has already sought the report of the District and Sessions judge regarding ascertaining the age of the deceased. Relevant portion of the same reads as under:- "10. In view of my findings on the aforesaid issues, the report is submitted to the Hon'ble High Court concluding that Harinder Singh, since deceased, was aged 27 years and 5 months at the time of his death and as regards the grant of compensation, the same may be assessed by applying multiplier of 17." 17. For applying the multiplier, the method prescribed in the Motor Accident Claims Tribunal has been upheld by this Court in Phoolwati's case (supra). Paragraph 8 of the same reads as under:- 8. A careful reading of the aforesaid judgments cited by learned counsel for the petitioner discloses that only in those cases where Magisterial enquiry report or police officers' report tried to illegally protect the subordinate police officers/authorities that a CBI enquiry was ordered and not in a case where the conducts of the investigating agency do not create any doubt (See : Ajab Singh and another supra). CBI investigation was also ordered in a case where the matter was enquired into by a judicial officer and his report indicted some police officers or any other officer exercising the same/similar powers during custodial interrogations (See : Sawinder Singh's case (supra)). In the instant case, a Magisterial enquiry was ordered after the incident and a SDM (an IAS officer) was assigned that job who on a detailed and thorough enquiry has found accused respondent No. 6 Narinder Singh guilty of negligence and gross dereliction in performance of his duties by not making provision for guarding of the deceased during his stay in the Police Station between 12.57 noon to 3.00 PM on the date of the incident. On receipt of Magisterial enquiry report so also the post-mortem and FSL reports, the investigating agency of Chandigarh Police registered a case under Section 304 IPC against accused respondent No. 6. On receipt of Magisterial enquiry report so also the post-mortem and FSL reports, the investigating agency of Chandigarh Police registered a case under Section 304 IPC against accused respondent No. 6. Though in some of the cases referred to hereinabove, the police officers were convicted and sentenced under Section 302 IPC on the charges of custodial deaths, but in the cases of (a) Shyamsunder Trivedi; (b) Ram Sagar Yadav, and (c) Munshi Singh Gautam (supra), the guilty police officers were convicted only under Section 304 Part-II IPC. In the instant case, the Magisterial enquiry so also the post mortem and forensic reports prima facie do not suggest any clear marks of custodial violence as the injuries noticed on the body of the deceased could be possible also from the alleged fall from the first floor of the Police Station. Besides, the investigation report, Magisterial enquiry report and the affidavits filed during the course of hearing of this writ petition by the senior police officers, like SSP, Chandigarh, have not offered any explanation in the defence of the police officer responsible for the custodial death. Moreover, a solitary instance of derelict and negligent conducts of the accused in the discharge of his duties in this episode cannot be taken to be synonymous with the image of the Chandigarh Police force, and particularly,in the absence of any motive to act in a direction to cause harm to the deceased. Bonafides of the police force are further proved from the fact that the National Human Rights Commission was immediately informed about the incident. Police Station Manimajra, where the incident took place, is equipped with a CCTV camera, which keeps on recording the ingress and egress of all the police officers present in the police station, and for that reason also, the accused police officer could not succeed in creating any alibi or wiping out material evidence about his presence or absence in the police station during the custody of the deceased. Though the accused and his subordinates appeared to be panic striken in changing their stands but it cannot be denied that the deceased was given immediate medical aid by shifting him to the General Hospital, Sector 16, Chandigarh, and then to PGI, Chandigarh. Though the accused and his subordinates appeared to be panic striken in changing their stands but it cannot be denied that the deceased was given immediate medical aid by shifting him to the General Hospital, Sector 16, Chandigarh, and then to PGI, Chandigarh. The Chandigarh Administration has placed on record all the relevant documents connected with this case during the course of hearing of the writ petition, which may leave a very little or almost no scope for tampering with the records available till date, which may prove crucial and provide vital clues during the investigations of the case. The witnesses have already been identified and their statements have been recorded during the course of enquiry by the Executive Magistrate so also in the course of police inquiry/investigations. Necessary incriminating articles also appear to have been seized and vital reports like the ones connected with the site of incident have also been prepared. Moreover, post-mortem report, and chemical examinations report of the viscera of the deceased have already been placed on case file of this writ pennon thus, there would be a very little scope for the CBI to investigate into the case even if this case is entrusted to the agency for investigation. In this background, we do not see any benefit in transferring this case to CBI. Moreover, we do not propose to shut the door of this Court for future in seeking similar reliefs in the event of any deliberate attempt on the part of the prosecution/investigating agency to act against the interest of the complainant side/prosecution case. Hence, for the present, we see no reason to accept the prayer for CBI investigation which is declined. As regards the prayer for grant of compensation in the light of the aforesaid judgments of Hon'ble the Apex Court, we with agree with the submission of learned counsel for the petitioner that the family of the victim needs to be adequately compensated. In the case of Sawinder Singh Gorver (supra), in the year 1995, Hon'ble the Supreme Court directed an ex-gratia payment of Rs. 2.00 lacs, whereas in the case of Ajab Singh (supra), in the year 2000, a compensation amount of Rs. 5.00 lacs was paid. In another case reported in 1995(1) Scale 77 (Mrs. Sudha Rasheed and others v. Union of India and others), Hon'ble the Apex Court directed payment of Rs. 2.00 lacs, whereas in the case of Ajab Singh (supra), in the year 2000, a compensation amount of Rs. 5.00 lacs was paid. In another case reported in 1995(1) Scale 77 (Mrs. Sudha Rasheed and others v. Union of India and others), Hon'ble the Apex Court directed payment of Rs. 7.50 lacs after applying multiplier system in assessing the compensation amount. In the instant case, the deceased was aged about 21 years on the date of incident. He had done 10+2 from the CBSE Board, and then had earned a diploma in ITI. He was also trained in computers. Moreover, it is averred in the writ petition that the petitioner was earning around Rs. 6,000-7,000/- per month, thus, in this background, if we assess his income at Rs. 5,000/- per month and deduct l/3rd towards personal expenses, his monthly earning would come to Rs. 3333/-. As the age of the deceased was 21 years, normally, a multiplier of 17 would apply. Thus, his total earning would come around Rs. 6,80 lacs. Over and above that, his widow wife is entitled to get a consortium amount of Rs. 5,000/-, and towards funeral expenses, as it was an unnatural death, the family would be entitled to get Rs. 10,000/-. That apart, as the deceased was a well educated and technically qualified young man of 21 years, his future prospects cannot be ignored. Further, this has also come on records that there has been a violation of the directions of Hon'ble the Supreme Court in the matter of D.K. Basu (supra) wherein, the High courts have also been empowered to punish the contemnor/accused. Thus, taking into account the totality of circumstances including these factors, to achieve the ends of justice herein, we award an additional amount of Rs. 3.00 lacs on that count. Thus, the family members of the deceased would be entitled to get a compensation of Rs. 9.95 lacs, which shall be paid by the UT, Administration, Chandigarh within three months from receipt of a copy of this order to the widow and the parents of the deceased and also to other legal heirs, if any. 18. Now the question left what would be the compensation/damages. 9.95 lacs, which shall be paid by the UT, Administration, Chandigarh within three months from receipt of a copy of this order to the widow and the parents of the deceased and also to other legal heirs, if any. 18. Now the question left what would be the compensation/damages. As it has already been held that while assessing the compensation in the case of custodial death, the provisions of Motor Vehicles Act would be applicable, I will proceed to assess the compensation as per the formula set by Hon'ble Supreme Court in Smt. Sarla Verma v. Delhi Transport Corporation and another, 2009(6) SCC 121 . 19. The writ petition is silent about the avocation of the deceased except a bald statement that son of the petitioner was aged 25 years at the time of his death and his income could be assessed at Rs. 8000/- per month. The son of the petitioner died in the year 2006 and in the absence of any income proof, I will assess the income of the deceased at Rs. 3000/- per month as unskilled labour. Since the deceased was 27 years old at the time of his death, I will provide 50% increase as future prospect as held by the Hon'ble Supreme Court in Rajesh v. Rajbir Singh, (2013) 9 SCC 54 . I will make a deduction of 50% towards personal expenses and apply a multiplier of 17 suitable to the age of the deceased, to assess the loss of dependency at Rs. 4,59,000/-. I will also provide Rs. 50,000/- towards loss love and affection to the parents, Rs. 25,000/- for funeral expenses and Rs. 25,000/- for loss to estate. 20. The total compensation payable shall be Rs. 5,59,000/-. This Court vide order dated 28.01.2009 has already granted Rs. 2 lacs as interim compensation and granted the liberty to the petitioner to seek further enhancement if ultimately it is proved that his son suffered a custodial death. The aforementioned amount of Rs. 2 lacs shall be adjusted against the amount now assessed, in essence, an amount of Rs. 3,59,000/- shall be paid to the petitioner by the State. 21. As an upshot of my finding, the State is directed to pay the compensation of Rs. 3,59,000/- to the petitioner and thereafter, the State shall be at liberty to recover the same from the erring officials in accordance with law. 3,59,000/- shall be paid to the petitioner by the State. 21. As an upshot of my finding, the State is directed to pay the compensation of Rs. 3,59,000/- to the petitioner and thereafter, the State shall be at liberty to recover the same from the erring officials in accordance with law. The writ petition is allowed in the aforementioned terms.