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2023 DIGILAW 350 (JK)

Bachno Devi v. State of J&K

2023-08-04

RAJNESH OSWAL

body2023
JUDGMENT : 1. The petitioners have filed the present petition for directing the respondents to pay compensation of Rs. 13 lacs to the petitioners for the custodial death/killing of their son-Tarsem Lal along with interest @12 % per annum with effect from 17.02.2007 till the date of final payment and further prayer has also been made for directing the respondents to give Government Employment to one of the sons of the petitioners as assured by the respondents. 2. It is stated that the son of the petitioners, namely, Tarsem Lal, aged 18 years was picked-up/arrested from the residence of the petitioners on 17.02.2007 at about 8.00 A.M by the Police of Police Post, Phallian Mandal (Makwal) under the jurisdiction of Police Station, Satwari on the basis of one false complaint made by the neighbour. The petitioners alongwith other villagers reached the Police Post on the same day at about 9.30 AM and found their son in an unconscious condition and marks of violence were also visible on his body. When the petitioners asked the reason for the arrest of their son and cause of injuries on his body, no reply was given by the then In-charge Police Post, Phallian Mandal (Makwal). The petitioners and other villagers, who had gathered there, raised hue and cry. Their son was taken to the Sub-District Hospital Sohanjana, Jammu, where he was declared by the Doctors, as brought dead. The Magisterial Enquiry was ordered and the Magistrate was directed to submit a report within one week and the Administration also constituted a Medical Board to conduct the post-mortem of the deceased Tarsem Lal. Pursuant to the Government order No. Home/09/2007/ISA dated 19.02.2007, Mr. Sourabh Bhagat, IAS, the then Additional District Development Commissioner, Jammu was appointed as Inquiry Officer to conduct a Magisterial enquiry into the alleged custodial killing of Tarsem Lal. The Inquiry Officer conducted the enquiry and after recording the statements of different witnesses arrived at the conclusion that Tarsem Lal, son of petitioners had died in Police Custody and a case of custodial death/killing was prima facie established against the Police officials of Police Post, Phallian Mandal (Makwal). 3. The Inquiry Officer submitted his report to the Government vide letter No. ADDGJ/1756 dated 09.03.2007. 3. The Inquiry Officer submitted his report to the Government vide letter No. ADDGJ/1756 dated 09.03.2007. The Jammu and Kashmir Government, Home Department vide order No. Home/205 (ISA) of 2007 dated 26.04.2007 accepted the report of the Inquiry Officer and ordered the Director General of Police, Jammu and Kashmir to register a case of custodial death under the relevant provisions of law against the Police Personnel of Police Post, Phallian Mandal(Makwal), who were on duty on the day of occurrence. The Jammu and Kashmir Government vide order dated 26.06.2007 issued by the Principal Secretary to Government, General Administration Department accorded ex-post facto sanction to the confirmation of the action taken by the Deputy Commissioner, Jammu in respect of ex-gratia relief for an amount of Rs. one lac granted in favour of the next kin of the deceased-Tarsem Lal. 4. The case projected by the petitioner in the present petition is that the State is under obligation to protect the life, liberty and property of its citizens and cannot take away the life of any individual without any reason and failure to discharge its obligation has the effect of rendering the State liable to compensate the victims or their dependents. The petitioners have claimed the compensation of Rs. 10,80,000/- as the financial loss suffered by the petitioners due to untimely demise of their son, as he was running the dairy business and the petitioners were fully dependent on him. The deceased was earning Rs. 9000/- to 10,000/- per month from the said business, which was the only source of livelihood for the whole family. The petitioners further claimed Rs. 2 lacs as compensation for mental harassment as the petitioners have suffered a great mental agony and shock at the hands of police officials, as the innocent son of the petitioners was killed for none of his fault. It is also stated that the Government had assured the petitioners that one of the petitioners? son would be given an employment and petitioners would be paid suitable compensation. The petitioners have placed on record the documentary evidence to substantiate their claim. 5. The response stands filed by the respondents, wherein it has been submitted that the petitioners have raised the disputed questions of facts, which cannot be adjudicated while considering the writ petition. son would be given an employment and petitioners would be paid suitable compensation. The petitioners have placed on record the documentary evidence to substantiate their claim. 5. The response stands filed by the respondents, wherein it has been submitted that the petitioners have raised the disputed questions of facts, which cannot be adjudicated while considering the writ petition. The respondents have admitted that the Inquiry Officer held that the death of Tarsem Lal be treated as custodial death and recommended senior level police enquiry into the same. It is also admitted by the respondents that the Government accepted the report of the Inquiry Officer and directed the Director General of Police, Jammu and Kashmir to register a case of custodial death under the relevant provisions of law. A sum of Rs. 1 lac was paid to the next kin of the deceased on 19.11.2007 and an FIR bearing No. 201/2007 under Section 302 RPC was registered in Police Station, Satwari. It is further stated that the investigation in the case was still going on. The respondents have also pleaded about the statements made by the witnesses during investigation and that the involvement of the police officials has not been established so far. The respondents have denied the claim of the petitioner for monetary compensation and for providing the job to one of the family members of the deceased. 6. Mr. Raghu Mehta, learned counsel for the petitioners during the course of arguments, restricted the claim of the petitioners, only in respect of the compensation payable due to custodial death of the son of the petitioners. He further submitted that the petitioners are entitled to compensation of Rs. 15 lacs, as son of the petitioners died in the custody of the Police. 7. Per contra, Ms. Monika Kohli, learned senior AAG vehemently argued that the petitioners are not entitled to any compensation, more particularly, when a sum of Rs. 1.00 lac was already paid to the petitioners. She further submitted that disputed questions of facts have been raised by the petitioners, which cannot be adjudicated in the present petition. 8. Heard and perused the record. 9. Monika Kohli, learned senior AAG vehemently argued that the petitioners are not entitled to any compensation, more particularly, when a sum of Rs. 1.00 lac was already paid to the petitioners. She further submitted that disputed questions of facts have been raised by the petitioners, which cannot be adjudicated in the present petition. 8. Heard and perused the record. 9. The issue is no more res-integra that the writ petition can be maintained under Article 226 of the Constitution of India, for the purpose of claiming the compensation in the form of monetary relief in case of infringement of the indefeasible fundamental right guaranteed under Article 21 of the Constitution of India. In “Smt. Nilabati Behera alias Behera alias Lalita Behera vs. State of Orissa”, AIR 1993 SC 1960 , the Supreme Court made the following observation: "16. It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Shah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights. 33. The public law proceedings serve a different purpose than the private law proceedings. This is what was indicated in Rudul Shah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights. 33. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting "compensation" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law 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 payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of exemplary damages' awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and persecute the offender under the penal law. This Court and 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 in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings." 10. In “Chairman, Railway Board v. Chandrima Das”, (2000) 2 SCC 465 , the Hon’ble Supreme Court affirmed the decision of the High Court under Article 226 of the constitution of India whereby the compensation for an amount of Rs. 10 lacs was awarded to the victim, a foreign national, who was gang raped by the officials of the Eastern Railway. 11. It is the stand of the respondents in their response that the complicity of the Police Officials was not established during the investigation and the investigation was still going on. The stand of the respondent deserves to be rejected only of the ground that once the Government has accepted the findings of the Inquiry Officer in respect of the death of the victim as custodial death and has even paid the sum of Rs. one lac as an ex-gratia relief, the respondents cannot defeat the claim of the petitioners for grant of compensation just by taking a refuge under the Police investigation, more particularly when the allegations were against the Police Officials. In the post-mortem report, it has been mentioned that there was bruise on the left cheek of the victim and there were clots of blood in the right nostril of the deceased, though the postmortem report is inconclusive. Once the Government has accepted the death as „custodial death? and has paid sum of Rs. 1 lac as ex-gratia, the respondents are estopped from denying the death of the victim in police custody. In “Dy. Commr, Dharwad v. Shivakk”, (2011) 12 SCC 419, the Hon’ble Supreme Court upheld the maintainability of writ petition, pending trial of the accused official and upheld the order of High Court granting compensation in case of custodial death. 12. 1 lac as ex-gratia, the respondents are estopped from denying the death of the victim in police custody. In “Dy. Commr, Dharwad v. Shivakk”, (2011) 12 SCC 419, the Hon’ble Supreme Court upheld the maintainability of writ petition, pending trial of the accused official and upheld the order of High Court granting compensation in case of custodial death. 12. Now, the only issue that remains to be adjudicated is in respect of the compensation payable to the petitioners-the unfortunate parents of the victim. There is no fixed criteria for determining the amount of compensation in custodial death cases. Different High different amounts of compensation in such cases and there is no uniform approach in awarding the compensation. In “Maria Kadaisima versus Sate of Odisha and Ors”, AIR Online 2023 ORI 87, the Division Bench of Odisha High Court awarded a sum of Rs. 10 lacs as compensation to the wife of a man, who died in Police custody. The Co-ordinate Bench of this Court in “Mst. Jana & Others vs State Of J&K & Another”, 2023 LIVELAW (JKL)162, has awarded 5 lacs as compensation when the deceased was attacked by a co-prisoner in jail. In Shivakka (supra), the Hon’ble Supreme Court awarded compensation of Rs. 10 lacs as compensation to wife and 4 children of the deceased, a victim of custodial violence resulting in to his death. In Mrs. Sudha Rasheed v. Union of India, 1995(1) Scale 77 , the Hon’ble Supreme Court awarded an amount of RS. 7.5 lcas to the widow, one minor son, one minor daughter and one major son of the deceased in custodial death case. In the said case, the unit system was applied by the Hon’ble Supreme Court. In “Amol Vithalrao Kadu v. State of Maharashtra & Ors”, 2019 AIR(SC) 218, the Hon’ble Supreme Court awarded an amount of Rs. 7 lacs as compensation in custodial death case. 13. This Court is of the considered view that the principles of compensation applicable in the Motor Vehicles Act can be applied in such cases as well. The petitioners are on affidavit that the deceased was earning about Rs. 9,000/- to 10,000/- per month but there is no documentary proof in respect of that. In such view of the matter, the monthly income of the deceased can be considered as Rs. 5,000/ per month. The petitioners are on affidavit that the deceased was earning about Rs. 9,000/- to 10,000/- per month but there is no documentary proof in respect of that. In such view of the matter, the monthly income of the deceased can be considered as Rs. 5,000/ per month. The deceased was 18 years of age and bachelor, so 50% of his earnings are to be deducted on account of personal expenses. By applying the multiplier of 18 and taking into consideration the future prospects of the deceased, the total compensation payable to the petitioners comes out to be Rs. 8,40,000/- (including Rs.15,000/ each on account of Loss of Estate and Funeral Expenses), Rs. 40,000/- each is required to be awarded to both the petitioners on account of “Loss of Filial Consortium”. Thus, the total compensation payable to the petitioners come out to Rs. 9,00,000/- (rounded off). A sum of Rs. 1 lac has already been paid to the petitioners as ex gratia. Accordingly, the respondents are directed to pay an amount of Rs. 8,00,000/- as compensation to the petitioners along with interest @ 6% per annum from the date of filing of the writ petition till the actual amount is paid to the petitioners. Let the aforesaid amount be paid to the petitioners within the period of two months from today. 14. Disposed of.