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2017 DIGILAW 558 (ALL)

RAM RATI YADAV v. STATE OF U. P.

2017-02-16

ABHAI KUMAR, TARUN AGARWALA

body2017
JUDGMENT By the Court.—We have heard the learned counsel for the petitioners and the learned Standing Counsel. 2. The petitioners have filed the present writ petition praying for compensation of Rs. 50 lacs on account of the custodial death of the husband of petitioner No. 1 and father of petitioner Nos. 2 to 5. 3. The facts leading to the filing of the writ petition, as culled out from the petition is, that the husband of respondent No. 1 was a permanent class-IV employee in Food Corporation of India and was drawing a salary of Rs. 10,500 per month. Hari Lal the husband of petitioner No. 1 did not have any criminal record. It transpires that the deceased was arrested in 2003 by the police and was taken to Police Station Rani ki Sarai, District Azamgarh where it transpires that some altercation occurred between Hari Lal and the Station House Officer who shot him at close range resulting in his death. A first information report was lodged under Section 302,504 and 342 IPC at Police Station Kotwali, Azamgarh, based on which, an investigation was made and subsequently, a charge-sheet has been filed. The Court has been informed that the trial is going on against the accused police officials. 4. Since a hue and cry was raised and based on the interference made by the National Human Rights Commission, the State of Uttar Pradesh gave a compensation of Rs. 3 lacs to the widow of the deceased, i.e., petitioner No. 1 in the year 2008. The petitioners contend that the deceased Hari Lal was the sole bread earner of his family which comprised of his spouse petitioner No. 1 and four children who were all totally dependant upon the deceased. It was contended that a sum of Rs. 3 lacs granted as compensation was wholly inadequate and that the Court should exercise its discretionary power and enhance the compensation. 5. The aforesaid facts are admitted by the State Government in their affidavits filed before this Court. Custodial death did occur in the police station and the trial is going on. The learned Standing Counsel however contends that there is no provision to pay compensation for custodial death. We, however, find that the State Government admits paying compensation of Rs. 3 lacs. Custodial death did occur in the police station and the trial is going on. The learned Standing Counsel however contends that there is no provision to pay compensation for custodial death. We, however, find that the State Government admits paying compensation of Rs. 3 lacs. We are further of the opinion that Article 21 of the Constitution of India provides that the right to life is guaranteed to all citizens of India. It is the onerous duty of the State to ensure that its citizens live a life with dignity. It is also the onerous duty to ensure protection to its citizens. When a person dies in custody it becomes the duty for the State Government to pay adequate compensation to the dependants of the deceased. The mere fact that no provision has been created by the State Government cannot be a ground to escape the liability. Admittedly, the State Government has paid some compensation which according to the respondent is adequate but according to the petitioners the same is inadequate. 6. Custodial death is one of the worst crime in the civilized society governed by the rule of law as held by the Supreme Court in D.K. Basu v. State of West Bengal and others, 1997 (1) SCC 416 . The Supreme Court held that the rights inherent in Articles 21 and 22 (1) of the Constitution requires it to be jealously and scrupulously protected. The expression “life or personal liberty” in Article 21 includes the right to live with human dignity and thus it will also include within itself a guarantee against torture, assault or custodial death by the State and its functionaries.Personal liberty, thus, is a sacred and cherished right under the Constitution. 7. The question that arises is the grant of relief to the heirs of a victim of custodial death on the ground of invasion of his rights guaranteed under Article 21 of the Constitution of India. 8. In our opinion, it is not enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortuous act of the State. The petitioners have complained of the infringement of the indefeasible rights guaranteed under Article 21 of the Constitution. 8. In our opinion, it is not enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortuous act of the State. The petitioners have complained of the infringement of the indefeasible rights guaranteed under Article 21 of the Constitution. The Supreme Court in Smt. Nilabati Behera @ Lalita Behera v. State of Orissa and others, AIR 1993 SC 1960 , held that where there has been an infringement of the right guaranteed under Article 21 of the Constitution, the said citizen cannot be told that for violation of the fundamental right to live he cannot get the relief in the Courts exercising writ jurisdiction. The Supreme Court held that the Courts exercising prerogative writs should evolve “new tools” to give relief in public law by moulding it according to the situation with a view to preserve and protect the rule of law. 9. Thus, the relief of monetary compensation, as exemplary damages, can be taken up in proceedings initiated under Article 226 of the Constitution by the High Court for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution. The purpose is, not only to civilize public power but also to assure the citizens that they live under a legal system which aims to protect their interests and preserve their rights. 10. In the instant case, the infringement of the indefeasible right guaranteed under Article 21 of the Constitution is established. The State admits that the husband of petitioner No. 1 died in police custody. The writ petition, therefore, becomes maintainable and the Court is required to mould the relief by granting compensation which is by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The compensation payable in the instant case is in the nature of exemplary damages awarded against the wrongdoer for the breach of its public law and is independent of the rights available to the aggrieved party to claim compensation under the private law as held by the Supreme Court in Smt. Nilabti Behera (Supra). The compensation payable in the instant case is in the nature of exemplary damages awarded against the wrongdoer for the breach of its public law and is independent of the rights available to the aggrieved party to claim compensation under the private law as held by the Supreme Court in Smt. Nilabti Behera (Supra). The High Courts being the protectors of the civil liberties of the citizen have not only the power and jurisdiction but also an obligation to grant relief under Article 226 of the Constitution of India to the heirs of the victim, whose fundamental rights under Article 21 of the Constitution was infringed by the State. 11. In the light of the aforesaid and having considered the submission of the parties, we are of the opinion that when a death happens in custody, it becomes the liability of the State Government to pay adequate compensation and recover the same from the erring officials. 12. The question which remains to be answered is, what adequate compensation should be payable. No mechanism has been formulated. Some kind of mechanism has been framed under the Motor Vehicles Act and taking a cue from that Act, we find that the deceased was receiving a salary of Rs. 10,000 per month. The deceased was 55 years of age when he died in the year 2003. He had 5 years of service left. Consequently, if he had lived up to the date of his retirement, his 5 years salary at the rate of Rs. 10,000/- per month would have been Rs. 6 lacs. 13. Consequently, in our opinion without going into other aspects as to how much he spent on himself or for loss of consort, etc. which are contemplated under the Motor Vehicles Act, we are of the opinion that the minimum compensation which should be paid should be equivalent to 5 years salary, which in the instant case comes to Rs. six lacs. Three lacs have already been paid and, consequently, we are of the opinion that the balance three lacs is required to be paid by the State Government to the petitioners. 14. We, accordingly, allow the writ petition and issue a writ of mandamus commanding the State Government to release the balance sum of Rs. six lacs. Three lacs have already been paid and, consequently, we are of the opinion that the balance three lacs is required to be paid by the State Government to the petitioners. 14. We, accordingly, allow the writ petition and issue a writ of mandamus commanding the State Government to release the balance sum of Rs. three lacs within six weeks from the date of production of a certified copy of this order before the Principal Secretary, Home, Government of Uttar Pradesh Lucknow.