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2023 DIGILAW 2843 (PNJ)

Kamlesh v. State of Haryana

2023-09-21

VINOD S.BHARDWAJ

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JUDGMENT Vinod S. Bhardwaj, J. (Oral) Challenge in this petition is to the order dated 16.1.2014 (Annexure P-9) passed by the Additional Chief Secretary to the Govt, of Haryana, Department of Home whereby claim of the petitioners for compensation on account of murder of their respective husbands while in police custody, had been prayed for. 2. Learned counsel for the petitioners contends that the petitioner Nos.1 and 2 are widows of Shri. Bhagwan and Dilbag sons of Chhaju Ram respectively and that their husbands had been taken into police custody in case FIR No.264 dated 23.10.2008 registered under Section 147,149, 323, 302, 307, 449 and 120B and 216 IPC and 25-54-59 of the Arms Act, at Police Station Sampla, District Rohtak. Deceased Dilbagh Singh son of Chajju Ram had moved an application dated 12.12.2008 before the Court of Judicial Magistrate 1st Class Rohtak for providing escort vehicle and special guards while being brought for appearance in the courts apprehending danger to their life. After considering the said application, the Superintendent District Jail, Rohtak was directed to take proper steps and to provide appropriate extra precaution by deploying sufficient number of security guards while producing the deceased husbands of the petitioners before the court in the said trial and/or before any other court. It was also contended that such apprehension about elimination was also addressed by the deceased husbands of the petitioners on 5.7.2011 before the Additional Sessions Judge, Rohtak and it was informed that they were receiving threatening calls against their lives despite being in judicial custody at Bhondsi Jail. They also sought transfer of their Jail from Gurgaon to Rohtak and to provide special guards as well. A similar request was also made by family members of the deceased on 18.07.2011 before the Additional Sessions Judge. However, on 10.3.2012, when the deceased husbands of the petitioners were being taken back to prison, after producing them in court, the prison van was intercepted at about Naurangapur turn from Rohtak to Bhondsi Jail around 3:15 p.m. A large number of persons opened attack with fire arms in which incident, Shri. Bhagwan and Dilbag husbands of the petitioners were killed while in police custody. A case FIR No.165 dated 10.3.2012 was registered at Police Station, Jhajjar about the above said incident. A case FIR No.165 dated 10.3.2012 was registered at Police Station, Jhajjar about the above said incident. It is averred that as per the postmortem conducted, the cause of death was head injuries and its complication alongwith injuries on the vital organs which were caused by the fire arms. The said injuries were anti mortem in nature and were sufficient to cause death. The petitioners thus prayed for compensation to be awarded for loss of their husbands who were killed for lapse of the respondents-State to take adequate security measures to protect the life and liberty of the persons who were in their custody. 3. Reply by way of an affidavit of Assistant Superintendent of Police, Sampla had been filed on behalf of respondents No. 1 to 5 wherein the occurrence of the incident in question remains undisputed. It is however averred that the petitioners have an alternative efficacious remedy to approach the District /State Legal Services Authority as per the provisions under Section 357 (A) Cr.P.C. for grant of compensation. The quantum of compensation may accordingly be determined by the competent authority. 4. A separate reply on behalf of respondent No.6 i.e. CBI has also been filed wherein the CBI has expressed that there is no complexity involved in the case as would warrant any investigation by the CBI. The State Police is well equipped with trained investigating officer to handle such type of cases. 5. An additional reply on behalf of respondent No.5, Superintendent of Police, Rohtak has also been filed wherein it has been informed that the deceased suffered from criminal antecedents and had been convicted vide judgment dated 03.08.2013 to undergo life imprisonment by the District Court, Rohtak in case FIR No.264 dated 23.10.2008. A further a list of as many as 8 criminal cases registered against Shri. Bhagwan and Dilbag (since deceased) has also been given. The same is extracted as under:- Sr. No. Case FIR No. Dated U/S PS Name of the accused 1. 170 18.6.98 302 IPC and 2554-59 Arms Act Sampla Shri Bhagwan s/o Chhaju Ram VPO Karor & others 2. 95 04.05.03 452,323, 506,34 IPC Sampla Dilbag s/o Chhaju Ram VPO Karor & others 3. 277 21.11.03 307, 452, 506, 34 IPC Sampla Shri Bhagwan and Dilbag sons of Chhaju Ram VPO Karor & others 4. 170 18.6.98 302 IPC and 2554-59 Arms Act Sampla Shri Bhagwan s/o Chhaju Ram VPO Karor & others 2. 95 04.05.03 452,323, 506,34 IPC Sampla Dilbag s/o Chhaju Ram VPO Karor & others 3. 277 21.11.03 307, 452, 506, 34 IPC Sampla Shri Bhagwan and Dilbag sons of Chhaju Ram VPO Karor & others 4. 187 31.7.04 148, 149, 323, 325, 506 IPC Sampla Shri Bhagwan and Dilbag sons of Chhaju Ram VPO Karor & others 5. 105 12.6.05 25, 54, 59 Arms Act Sampla Shri Bhagwan son of Chhaju Ram VPO Karor 6. 364 28.10.08 147, 149, 323, 302, 307, 449 IPC and 25, 54, 59 Arms Act Sampla Shri Bhagwan and Dilbag sons of Chhaju Ram VPO Karor & others 7. 320 10.6.02 148, 149, 302, 307, 379 IPC and Arms Act Sampla Shri Bhagwan son of Chhaju Ram VPO Karor & others 8. 484 12.9.04 302, 34 IPC and Arms Act Civil Line Rohtak Shri Dilbag son of Chhaju Ram VPO Karor & others It is thus contended that the deceased suffered from criminal incidents and they have been eliminated as a result of such criminal rivalry. 6. Learned counsel appearing on behalf of the petitioners, submit that merely because the husbands' of the petitioners had criminal antecedents cannot be the valid justification for elimination while in custody. The respondents-State having not denied the occurrence of the incident in question, it cannot be absolved of its liability to compensate the petitioners' who have been widowed as a result of inadequate security arrangement to ensure safety of deceased despite being informed. He further places reliance on a judgment of this Court in CWP No.19349 of 2015 titled as "Rekha Rani and another v. State of Haryana and others" decided on 25.1.2018 wherein the victim had been held entitled to compensation. 7. I have heard learned counsel appearing on behalf of the respective parties and gone through the documents available on record. The facts that have remained un-controverted are as under:- (i) That the deceased namely Shri. Bhagwan and Dilbag Singh were in police custody in FIR No.264 registered at Police Station Sampla, Rohtak. 7. I have heard learned counsel appearing on behalf of the respective parties and gone through the documents available on record. The facts that have remained un-controverted are as under:- (i) That the deceased namely Shri. Bhagwan and Dilbag Singh were in police custody in FIR No.264 registered at Police Station Sampla, Rohtak. (ii) That the applications for seeking police protection and for deployment of special guards had been moved by the deceased as well as their family members in the year 2008 and thereafter in the year 2011 and an order had been passed by the Illaqa Magistrate to make adequate and proper arrangement to ensure the safety and security of the life of the under trials. (iii) That the deceased were killed on 10.03.2012 while being transported to prison from Rohtak to Bhondsi at 3:15 pm. (iv) That the police has registered case FIR No. 163 dated 10.03.2012 wherein accused were apprehended and they have been facing trial. Prosecution evidence is already complete. (v) That the post-mortem report dated 11.03.2012 establishes that the cause of death was on account of injuries sustained by the firm arms. (vi) That the incident in question and the fact that deceased Shri. Bhagwan and Dilbhag were in police custody at the time when the incident took place is not disputed or denied. (vii) That the ratio in the judgment of the Hon'ble Supreme Court of India in the matter of "Nilabati Behera v. State of Orissa" reported as 1994(1) RCR Criminal 18 specifically lays down that the under trial prisoners are not denuded of their rights under Article 21 of the Constitution of India and that it is obligatory on the part of the State to ensure that there is no infringement of the indefeasible right extended to the citizens except in accordance with law. The said ratio has been followed in numerous successive cases by the Hon'ble Supreme Court as well as the High Courts across the country including in the judgment dated 25.01.2018 passed in CWP No.19349 of 2015 in the matter of "Rekha Rani and another v. State of Haryana and others". (viii) The liability of the State to compensate the victims for unnatural deaths has been upheld by Hon'ble Supreme Court in the matter of Re-Inhuman Conditions in 1382 Prisons, reported as (2017) 10 SCC 658 . (viii) The liability of the State to compensate the victims for unnatural deaths has been upheld by Hon'ble Supreme Court in the matter of Re-Inhuman Conditions in 1382 Prisons, reported as (2017) 10 SCC 658 . The relevant paras read as under: - "Compensation for unnatural deaths 41. The issue of compensation for unnatural deaths in custody is no longer res integra. 42. One of the earliest cases where this Court granted compensation in a petition under Article 32 of the Constitution is Rudul Sah v. State of Bihar, (1983) 4 SCC 141 . That case was not one of a custodial death but was a case of illegal detention even after acquittal in a full dress trial. This Court held that the petitioner was entitled to compensation for the illegal detention and it rejected the stale and sterile objection of the State Government that the petitioner may if so advised file a suit to recover damages. This Court took the view that the refusal to pass an order of compensation would be doing mere lip service to the fundamental right of liberty of the petitioner under Article 21 of the Constitution which the State Government had so grossly violated. This Court observed that "if civilization 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." 43. A little later, this Court dealt with Sebastian M. Hongray v. Union of India, (1984) 3 SCC 82 which concerned itself with the disappearance of some persons while in custody. This Court was convinced that enabling the respondents to trace or locate the two missing persons at such a late stage would be to shut its eyes to reality and to pursue a mirage. It appeared to this Court that the two missing persons had actually met a tragic end in an encounter amounting to an unnatural death. This Court ordered the registration of an offence and an investigation and also directed payment of compensation to the next of kin. 44. Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 was a case where a person who was taken into police custody for investigation of a theft, was found dead near a railway track the next day. This Court ordered the registration of an offence and an investigation and also directed payment of compensation to the next of kin. 44. Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 was a case where a person who was taken into police custody for investigation of a theft, was found dead near a railway track the next day. On the basis of injuries and handcuffs on his wrists, this Court concluded that it was a custodial death and compensation was awarded under Article 32 of the Constitution. It was held that a public law remedy was certainly available to claim compensation for the contravention of human rights and fundamental rights which are protected as a guarantee by our Constitution. A reference was also made to Article 9(5) of the International Covenant on Civil and Political Rights, 1966 which reads: "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation." 45. An unnatural death in judicial custody where one person was killed by a co-prisoner was the subject matter of discussion in Kewal Pati v. State of Bihar, (1995) 3 SCC 600 . It was held that as a consequence of imprisonment, a prisoner does not cease to have constitutional rights, except to the extent he or she has been deprived of them in accordance with law. Therefore, even a prisoner is entitled to protection and if he is killed while in prison, it results in a deprivation of his life contrary to the law, for which the next of kin are entitled to compensation. 46. In D.K.Basu v. State of West Bengal, (1997) 1 SCC 416 this Court recognized that at the time of ratification of the International Covenant on Civil and Political Rights, 1966 in 1979, the Government of India made a specific reservation to the effect that the Indian legal system does not recognize a right to compensation for victims of unlawful arrest or detention and only became a party to the covenant, subject to this reservation. It was noted however, that the reservation has lost its relevance in view of the law laid down by this Court in several cases wherein compensation has been awarded for the infringement of a fundamental right of a citizen. It was noted however, that the reservation has lost its relevance in view of the law laid down by this Court in several cases wherein compensation has been awarded for the infringement of a fundamental right of a citizen. It was also noted that while there is no express provision in the Constitution for grant of compensation, this right has been judicially evolved in cases of established unconstitutional deprivation of personal liberty or life. This Court summed up the law in the following words:- "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 receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. 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 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." 47. Ajab Singh v. State of U.P., (2000) 3 SCC 521 , Murti Devi v. State of Delhi, (1998) 9 SCC 604 and more recently Rohtash Kumar v. State of Haryana, (2013) 14 SCC 290 illustrate that custodial death is a clear violation of the prisoner's rights under Article 21 of the Constitution and relief could be moulded by granting compensation to the next of kin of the deceased. 48. In addition to the above decisions and several others rendered by this Court, almost every High Court in the country has, at one time or another, also granted compensation for the unnatural death of a person in custody, whether an under-trial or a convict. A few such illustrations may be noted: a. Nina Rajan Pillai & Ors. v. Union of India, 180 (2011) DLT 104. The husband of the petitioner died in judicial custody due to inadequate medical treatment given by the jail authorities. The Lt. Governor of Delhi even appointed a Commission of Inquiry headed by Justice Leila Seth, a former Chief Justice of the Himachal Pradesh High Court to inquire into the circumstances that led to the death of the petitioner's husband. The Delhi High Court awarded compensation for the unnatural death in custody. b. Kewalbai v. The State of Maharashtra, 2013 (3) BomCR (Cri) 601. The victim was shot dead by a constable while in custody. The Bombay High Court awarded compensation for the unnatural death in custody. c. Bheduki Buragohain v. State of Assam, 2013 (2) GLT 370. The under-trial victim died in judicial custody under suspicious circumstances. The post mortem report indicated that the cause of death was asphyxia as a result of strangulation and ante mortem injuries by blunt weapons. The Gauhati High Court awarded compensation for the unnatural death in custody. d. Madhuben Adesara v. State of Gujarat, R/SCR.A./536/2010 (unreported). The under-trial victim died in judicial custody under suspicious circumstances. The post mortem report indicated that the cause of death was asphyxia as a result of strangulation and ante mortem injuries by blunt weapons. The Gauhati High Court awarded compensation for the unnatural death in custody. d. Madhuben Adesara v. State of Gujarat, R/SCR.A./536/2010 (unreported). The deceased was brutally tortured by police officers while in custody and succumbed to his injuries during treatment. The post-mortem report revealed that the victim had multiple injury marks which were ante mortem in nature. The Gujarat High Court awarded compensation for the unnatural death in custody. e. Banalata Dash v. State of Orissa & Ors., AIR 2012 Orissa 97. The deceased was found hanging from a tree with his hands behind his back, tied at the wrist with a towel. Since the victim was in the custody of the prison authorities, compensation was awarded by the Orissa High Court for the unnatural death in custody. f. Amandeep v. State of Punjab & Anr., (2013) 1 PLR 191. The deceased was assaulted by a co-prisoner and succumbed to injuries in the hospital. Due to the unnatural death in custody, the Punjab & Haryana High Court awarded compensation to the next of kin of the deceased. g. Smt. Rohini Lingam v. State, (2008) 5 MLJ 822 . The victim was murdered by his enemies while in prison. Due to the unnatural death in custody the Madras High Court awarded compensation to his next of kin. h. Sabu & Anr. v. State of Kerala & Ors., CRP No. 1170/2015. The victim was tortured in a police station and succumbed to his injuries. In view of the unnatural death in custody the Kerala High Court awarded interim compensation to the next of kin of the deceased until the criminal trial against the concerned police officers was concluded. i. Ravindra Nath Awasthi v. State of U.P., (2009) 2 AWC 2090 (All). The victim was an advocate held guilty of contempt of court. While he was undergoing his sentence, he was severely beaten up by the prison authorities and succumbed to his injuries in hospital. Due to the unnatural death in custody, the Allahabad High Court directed payment of compensation to the next of kin of the deceased. j. Mst. Madina v. State of Rajasthan & Ors., 2000 CriLJ 4484. While he was undergoing his sentence, he was severely beaten up by the prison authorities and succumbed to his injuries in hospital. Due to the unnatural death in custody, the Allahabad High Court directed payment of compensation to the next of kin of the deceased. j. Mst. Madina v. State of Rajasthan & Ors., 2000 CriLJ 4484. The victim died in police custody on account of the use of third degree methods. Due to the unnatural death in custody, compensation was awarded by the Rajasthan High Court to the next of kin of the deceased. k. Dukhuram v. State of Chhattisgarh & Ors., 2011 (3) MPHT 81 . The deceased was taken from the police station in order to recover stolen articles alleged to have been hidden by him at a secret place. He was brought to a pond and compelled to dive into the pond. At that time he was handcuffed and in chains. Subsequently, the dead body of the deceased was found floating in the pond. In view of the unnatural death while the deceased was in the custody of police officers, the Chhattisgarh High Court awarded compensation. l. Santosh Kumari v. State of H.P. & Ors., 2008 ACJ 1684 . The victim died while he was in police custody and it was found that he had injuries on his head, shoulders, eyes, knees and private parts. He died in hospital as he was not given medical assistance in time. In view of the unnatural death while in custody, the Himachal Pradesh High Court awarded compensation to the next of kin of the deceased. m. State of Jammu & Kashmir v. Sajad Ahmad Dar, LPAHC No. 36/2015. The victim died due to cardio pulmonary arrest while detained in the District Jail under the Jammu and Kashmir Public Safety Act, 1978. It was held that death was due to carelessness, non-seriousness and negligence in not extending medical treatment. In view of the unnatural death in custody the Jammu & Kashmir High Court awarded the compensation to the next of kin of the deceased. n. Mrs. Meena Singh v. State of Bihar, 2001 CriLJ 3573. The victim was attacked and killed by co-prisoners by the use of chhura, iron rods and belts etc. The next of kin of the deceased were awarded compensation by the Patna High Court for the unnatural death of the victim in custody. n. Mrs. Meena Singh v. State of Bihar, 2001 CriLJ 3573. The victim was attacked and killed by co-prisoners by the use of chhura, iron rods and belts etc. The next of kin of the deceased were awarded compensation by the Patna High Court for the unnatural death of the victim in custody. o. Lawyers for Justice (Non-Government Organization) v. State of M.P., AIR 2015 Madhya Pradesh 212. The victim was facing trial for offences under Section 302 of the Indian Penal Code. While he was undergoing treatment in a hospital he was shot dead by an unknown person. In view of the unnatural death while in custody the Madhya Pradesh High Court awarded compensation to the next of kin of the victim. The need to compensate 54. The case law indicates that over the last several decades this Court and almost every High Court has relied on Article 21 of the Constitution and thought it appropriate to compensate the next of kin for an unnatural custodial death. The constitutional courts can go on delivering judgment after judgment on this issue and award compensation, but unless the State realizes that custodial death is itself a crime and monetary compensation is not necessarily the only appropriate relief that can be granted to the next of kin of the deceased, such unnatural deaths will continue unabated. Therefore, what is needed is a review of all prisons with a humanitarian nuance. 55. Over the last several years, there have been discussions on the rights of victims and one of the rights of a victim of crime is to obtain compensation. Schemes for victim compensation have been framed by almost every State and that is a wholesome development. But it is important for the Central Government and the State Governments to realize that persons who suffer an unnatural death in a prison are also victims - sometimes of a crime and sometimes of negligence and apathy or both. There is no reason at all to exclude their next of kin from receiving compensation only because the victim of an unnatural death is a criminal. Human rights are not dependent on the status of a person but are universal in nature. There is no reason at all to exclude their next of kin from receiving compensation only because the victim of an unnatural death is a criminal. Human rights are not dependent on the status of a person but are universal in nature. Once the issue is looked at from this perspective, it will be appreciated that merely because a person is accused of a crime or is the perpetrator of a crime and in prison custody, that person could nevertheless be a victim of an unnatural death. Hence the need to compensate the next of kin." (ix) Since the issue as regards the determination of compensation and its apportionment is a matter which would involve leading evidence by the respective parties which such evidence cannot be appreciated by this Court while adjudicating a writ jurisdiction. The quantum of compensation is however a question of fact which can only be ascertained by considering evidence about income, dependency; multiplier, future prospects and apportionment etc. (x) The order passed by Additional Chief Secretary, Govt., of Haryana, Department of Home does not take into consideration any of the above-said judgment of the Hon'ble Supreme Court of India and obligation cast upon the State to ensure protection of right of under-trial and victims while in State custody. Mere availability of an alternative remedy would not be sufficient for the State to wash its hands of its obligation and to compensate the victims for the loss. 8. Taking into consideration the facts noticed above as also the requirement that certain issues as regards determination of compensation are required to be ascertained after considering the evidence led by the respective parties and also taking into consideration the financial hardship and the difficulties faced by the petitioners, I deem it appropriate to dispose of this petition setting aside dated 16.1.2014 (Annexure P-9) passed by the Additional Chief Secretary to the Govt, of Haryana, Department of Home and by awarding an interim compensation of Rs. 5 lac each to the petitioners on account of death of their husbands while in police custody in incident dated 10.3.2012. The petitioners may, if so advised, approach a competent court for seeking determination of compensation on account of murder of their husbands. The compensation of Rs. 5 lac awarded today, be released in favour of the petitioners within a period of three months on the receipt of certified copy of this order. 9. The petitioners may, if so advised, approach a competent court for seeking determination of compensation on account of murder of their husbands. The compensation of Rs. 5 lac awarded today, be released in favour of the petitioners within a period of three months on the receipt of certified copy of this order. 9. Needless to mention that in the event of the petitioners preferring any claim, in a manner known to law, the period during which proceedings have remained pending before this Court, shall be taken into consideration while computing the limitation.