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2018 DIGILAW 148 (ALL)

BRIMA DEVI @ MEENA DEVI v. STATE OF Uttar Pradesh

2018-01-16

RAJNISH KUMAR, SATYENDRA SINGH CHAUHAN

body2018
JUDGMENT By the Court.—Heard learned counsel for the petitioner and the learned Standing Counsel. This writ petition has been filed with the prayer to award Rs. 12,00,000/- compensation to the petitioner on account of death of her husband (hereinafter referred to as ‘deceased’) in jail as a prisoner. 2. The facts giving rise to the present case are that the First Information Report was lodged against the husband of the petitioner at Case Crime No. 110/01 under Sections 302/34, 201 I.P.C., P.S. Baddu Pur, district Barabanki. The petitioner was arrested by the police of the concerned police station and he was sent to District Jail, Barabanki on 7.12.2001. The trial followed and ultimately the deceased was convicted on 12.3.2003. The deceased continued as a prisoner in the jail. All of a sudden, the deceased died in prison by hanging on 25.5.2003. The complaint was made and the District Magistrate directed for holding magisterial enquiry into the matter and the enquiry report was submitted by ADM, Finance and Revenue, Barabanki. The ADM, Finance and Revenue, Barabanki found jail authorities guilty of custodial death of the deceased, although it was found that the death had occurred as a result of hanging. 3. On the basis of the enquiry report, a complaint was also made to the Human Rights Commission and the Human Rights Commission has proceeded to award compensation to the tune of Rs. one lakh to the petitioner. 4. The learned counsel for the petitioner submits that since it is a custodial death and in series of cases decided by the Supreme Court and other Courts, if custodial death has taken place, compensation has to be awarded on higher side and therefore, petitioner is also entitled for the compensation to the extent of Rs. 12 lakhs as he was about 26 years of age at the time of death. 5. Learned counsel for petitioner submitted that once the negligence of the jail authorities has been found to be established and the said finding has not been challenged before any Forum and rather the Government and the jail authorities proceeded to accept that finding, then on the basis of the said finding the petitioner is entitled for compensation. 5. Learned counsel for petitioner submitted that once the negligence of the jail authorities has been found to be established and the said finding has not been challenged before any Forum and rather the Government and the jail authorities proceeded to accept that finding, then on the basis of the said finding the petitioner is entitled for compensation. The further submission is that the petitioner was earning member and he was maintaining the family of two children and wife, therefore, it is to be assumed that he was earning something for the survival of his family. Learned counsel for petitioner also submitted that the petitioner has not remarried and presently she is residing alongwith her two minor children. 6. Learned counsel for the petitioner has relied on the case laws in D.K. Basu v. State of Uttar Pradesh and others, AIR 1997 SC 610 ; Ajab Singh and another v. State of Uttar Pradesh and others, AIR 2000 SC 3421 ; Ravindra Nath Awasthi v. State of Uttar Pradesh and others, 2009(4) ADJ 127 (DB); (Punjab & Haryana High Court); Preeti Thapar v. State of Punjab and others, 2004 CRL LJ 3722; unreported 30.4.2008 Madras High Court, W.P. No. 10726 of 1999; Tmt. Rohini Lingam v. State of Chennai; Sunaina Devi v. State of Bihar and others, AIR 2015 Patna 141 and Director General (Railway Spl. Protection Force, New Delhi and another v. Mst. SARA, w/o Ab. Raasi Rashi and others, AIR 2016 Jammu & Kashmir 143. 7. Learned Standing Counsel on the basis of the counter-affidavit, which has been filed, has submitted that the deceased had died by hanging and therefore, no negligence can be attributed to the jail authorities. The petitioner is therefore, not entitled for any compensation and in any case, if he is found entitled for compensation, then Rs. one lakh has already been awarded by the Human Rights Commission. As such, no more compensation can be awarded to the petitioner and the writ petition is liable to be dismissed. 8. We have heard the learned counsel for parties and perused the record. 9. The claim of the petitioner ought to be considered in the light of evidence on record. As such, no more compensation can be awarded to the petitioner and the writ petition is liable to be dismissed. 8. We have heard the learned counsel for parties and perused the record. 9. The claim of the petitioner ought to be considered in the light of evidence on record. The evidence on record is in the form of statements recorded by the ADM, Finance and Revenue, Barabanki and the enquiry report submitted by the ADM, Finance and Revenue, Barabanki and it goes to indicate that the jail authorities have been found negligent in the death of the deceased. It has also come in the enquiry report that Rs. 1,000/- per month was demanded by the jail authorities from the husband of the petitioner, since he failed to give the aforesaid amount, he was beaten and threatened by the jail authorities. The statement of various persons also goes to indicate that the husband of the petitioner was working in store. On arrival of truck carrying gas cylinders at the jail gate, the prisoners and constables got lifted unlfilled cylinders from the godown and carried unfilled cylinders to the place where the delivery of filled cylinders was to be taken and after receiving the cylinders they again returned back to godown where they found the deceased hanging. Immediately on getting the news jail authorities completed the formalities and in the postmartem, the cause of death was hanging. 10. The fact remains that the husband of the petitioner was in the jail while he died, therefore, it is presumed that it is a custodial death. It has come in the evidence of Pradeep Kumar, brother of the deceased and Kushal Kumar, brother-in-law of the deceased and the wife of the deceased in respect of demand of money of Rs. 1,000/- per month and he failed to pay the same, so the husband of the petitioner was being tortured and as a result of which he committed suicide. 11. 1,000/- per month and he failed to pay the same, so the husband of the petitioner was being tortured and as a result of which he committed suicide. 11. In the case of D. K. Basu v. State of West Bengal with Ashok K. Johri v. State of U.P., (1997) 1 SCC 416 , Chairman, Legal Aid Services addressed a letter to the Chief Justice of India drawing his attention to certain news items published in newspaper regarding deaths in police lock-ups and custody and submitted that it was imperative to examine the issue in depth and to develop “custody jurisprudence” and formulate modalities for awarding compensation to the victim and/or family members of the victim for atrocities and death caused in police custody and to provide for accountability of the officers concerned and it was requested that letter be treated as writ petition under Public Interest Litigation category. Considering the importance of the issue raised in the letter, the Hon’ble Supreme Court issued notices to the respondents and subsequently to all the State Governments and Law Commission of India for suitable suggestions. After considering the suggestions and the laws of various countries, issued several directions regarding arrest or detention till legal provisions are made on that behalf as preventive measures which needs to be strictly followed as they flow from Article 21 and 22(1) of the Constitution of India. The Hon’ble Supreme Court finally held that the monitory or pecuniary compensation is an appropriate and indeed an effective remedy for redressal of the established infringement of the fundamental right of a citizen by the public servants and the State is liable for their acts. The relavant para 54 of the Hon’ble Apex Court judgment is reproduced as under: “Thus, to sum up, it is now a well accepted proposition in most of the jurisdictions, 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 revive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. 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 revive 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 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, That 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 he public law jurisdiction is, in addition to the traditional remedies and not it derrogation 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.” 12. In Ajab Singh and another v. State of Uttar Pradesh and others, AIR 2000 SC 3421 , Hon’ble Apex Court has been pleased to hold that we do not appreciate the death of prisoners in judicial custody. When such deaths occur, it is not only to the public at large that those holding custody are responsible; they are responsible also to the Courts under whose orders they hold such custody and directed for an investigation by the Central Bureau of Investigation. The Hon’ble Apex Court further held that the State of Uttar Pradesh is responsible in public law for the death of the deceased and directed to pay the compensation to the petitioners to the tune of Rs. The Hon’ble Apex Court further held that the State of Uttar Pradesh is responsible in public law for the death of the deceased and directed to pay the compensation to the petitioners to the tune of Rs. 5 lakhs in view of the judgment rendered in case of D.K. Basu v. State of West Bengal. 13. In the case of Ravindra Nath Awasthi v. State of Uttar Pradesh and others, 2009(4) ADJ 127 (DB), a Division Bench of this Court after considering several authorities held that in view of the proposition laid down by the Apex Court, in proceedings under Article 226 of the Constitution when rights guaranteed under Article 21 of the Constitution of India are violated to the extent, as in the present case, the Court is fully justified to award monetary compensation to the tune of Rs. 5 lakhs on account of the custodial death of the deceased. 14. In case of Preeti Thapar v. State of Punjab and others, 2004 Cri.L.J. 3722, a Division Bench of Punjab and Haryana High Court dealing with the cases of custodial death has held as under: “13. After giving thoughtful consideration to the peculiar facts and circumstances of the instant case and keeping in view that the deceased was an able bodied person of 28 years, who was maintaining a family which included his widow (the petitioner) and two minor children by working as an ice-cream and vegetable vendor, and the fact that the sole bread earner of the family has been snatched, at least on account of gross negligence committed by the officials of the Jail and Police Departments of the State of Punjab, if not killed by one of them by administering poison, we are of the view that the ends of justice will be sufficiently met by awarding a compensation to the tune of Rs. 2.50 lacs. We order accordingly.” 15. In view of above, the law laid down in the aforesaid cases by the Courts and also the facts of the present case, we find that the husband of the petitioner died of unnatural death on account of the atrocities in the jail at an early age. 2.50 lacs. We order accordingly.” 15. In view of above, the law laid down in the aforesaid cases by the Courts and also the facts of the present case, we find that the husband of the petitioner died of unnatural death on account of the atrocities in the jail at an early age. We find that the husband of the petitioner was earning something in order to make the survival of his two minor children and wife and when he was earning something, then adequate compensation, in view of the decision of various Courts, in our opinion would be Rs. 5 lakhs. 16. Admittedly, since the petitioner has already been paid Rs. one lakh from the Human Rights Commission, we deduct the amount and award Rs. 4 lakhs on account of the custodial death in jail premises. Out of the aforesaid amount of Rs. 4 lakhs, Rs. one lakh each will be deposited by way of fixed deposit in the name of two minor children in a nationalized bank or any other Government Financial Institutions or opening a P.P.F. Account, whichever may fetch highest rate of interest with provision for auto renewal. The said amounts alongwith remaining accrued interest till the date of payment shall be paid to the two children as and when they will attain age of majority. However, the petitioner would be entitled to interest amount quarterly for the upkeep of the two children from the Bank/Institution. The rest of the amount of Rs. 2 lakhs would be paid to the petitioner. The aforesaid compensation shall be paid within two months from the date of receipt of certified copy of this order. The writ petition is accordingly disposed of. No order as to costs.