POLICE ATROCITIES
Secretary, Hailakandi Bar Association V. State Of Assam And Another.
DATE OF DECISION: 24-01-1994
CITATION: 1994-(100)-CRLJ -2197 –SC; 1995-(SU3)-SCC -0736
-SC
CONSTITUTION OF INDIA.Arts. 21 & 32 -- Prisoners and under
trial -- Bar Association forwarded a letter containing allegation
of torture by police resulting in death of the victim - Communication
received from the Bar Association was ordered to be treated as
a writ petition under art. 32 of the Constitution - Supreme Court
directed the Director General of Police to inquire into the matter
and forward a detailed report - Police report denying allegation
of torture and indicating that assault on the deceased was by
members of the public and not the police - Statement in the report
of the Superintendent of Police that `The P.M. Report did not
indicate any external injury over the dead body' was found factually
incorrect - Held, possibility of the police having caused injuries
cannot be ruled out - CBI directed to make investigation in regard
to murder of deceased - High- ranking officers show extra care
while forwarding their comments to Supreme Court and not to mechanically
forward the information collected thro -- Ceiling on land - Calculation
- While calculating the extent of 1961 (as amended by Act 21 of
1975) share which the members of a family unit are entitled to
hold, the claim of the unmarried daughters to maintenance and
marriage expenses are not required to be taken into account.
There is one thing more which needs to be noticed. Even the police
have registered an offence u/s. 302, IPC, albeit against unknown
members of the public. The story that the members of the public
beat him raises doubts because in that case the wrath of the pubic
would not have been towards the police and the Bar Association
would not have taken up the cause. The medical examination report
of 12-3-1993 is not forthcoming nor is the laboratory report on
the viscera available. The fact that the deceased was beaten up
is not in doubt. He had fractured a bone. In the circumstances
even if it is believed that he died of cardiac failure there can
be no doubt that those who caused the The possibility of the police
having caused injuries cannot be ruled out altogether. Since the
local police at the highest level have taken a stand that the
assault on the deceased was by members of the public and not the
police after the apprehension of the deceased it is futile to
expect an independent and wholly objective investigation by the
State police. Even otherwise, the people will have little confidence
in the investigation no matter how honest and objective the investigation
be. In the circumstances, it is most appropriate that the investigation
of the crime in regard to the murder of the deceased should be
undertaken by the Central Bureau of Investigation (CBI). In doing
so, the CBI will bear in mind the allegation of the wife and other
relations of the deceased that he died on account of the beating
given to him after his apprehension on 9-3-1993, without being
influenced by the fact that in the FIR, it is alleged that the
assault was by the members of the public.
CBI directed to make investigation in regard to murder of deceased.
Punjab And Haryana High Court Bar Association, Chandigarh Through
Its Secretary, Appellant V. State Of Punjab And Others, Respondents.
DATE OF DECISION: 07-12-1993
CITATION(S) :
1994-(001)-SCC -0616 -SC
1994-(081)-AIR -1023 -SC
1994-(100)-CRLJ -1368 -SC
On January 25, 1993, Kulwant Singh, Advocate, practising at the
District Courts, Ropar, Punjab, his wife and a child aged about
two years were abducted and murdered by Punjab police. The lawyer
fraternity in general and the advocates practising at the High
Court and the District Courts in the States of Punjab, Haryana,
and the Union Territory of Chandigarh were not satisfied with
the police investigation. The Punjab and Haryana High Court Bar
Association (Bar Association) demanded a judicial inquiry into
the occurrence by a sitting Judge of the High Court or a District
Judge or a Vigilance Judge belonging to the higher judiciary.
Their demand, having not been acceded to by the State Government,
the Bar Association went on indefinite strike with effect from
February 6, 1993. Later on, the District Bar Associations in the
States of Punjab, Haryana and the Union Territory of Chandigarh
also went on strike thereby stopping the functioning of the courts
throughout the jurisdiction of the Punjab and Haryana High Court.
One Suresh Kumar, son of Shri Som Prakash, resident of Ambala
(Haryana) filed a Civil Writ before the Punjab and Haryana High
Court in public interest. The law points and the prayers in the
said writ petition were as under:
(I) Whether it is in the interest of the respondent that doubts
regarding mystery surrounding gruesome murder be unearthed and
the truth brought out by judicial inquiry ?
(II) Whether the interest of justice requires that a judicial
inquiry be conducted by a sitting Judge of the High Court or a
District Judge or a Vigilance Judge especially when the interests
of the litigating masses are suffering ?
A Division Bench of the High Court issued notice of motion to
the Bar Association of the High Court of Punjab and Haryana and
to the Bar Council of Punjab and Haryana. Later on the Petitioner
withdrew the said petition and the High Court allowed the same
to be dismissed as withdrawn. An appeal by way of special leave
was filed by the Bar Association against the five-Judge Bench
judgment of the High Court.
Without going into the question as to whether the writ petition
before the High Court was for bringing an end to the lawyers strike
or to appoint an independent inquiry-agency to probe into the
disappearance and alleged murder of Kulwant Singh, Advocate and
his family, the Supreme Court held that,”Be that as it may
the fact remains that the five-Judge Bench of the High Court was
seized of the matter wherein the issues regarding the abduction
and alleged murder of Kulwant Singh, Advocate and his family were
raised before it. The report of the "Action Committee"
of the Bar Association, statements recorded by the police including
that of Harpreet Singh @ Lucky and other relevant documents were
before the High Court. The High Court was wholly unjustified in
closing its eyes and ears to the controversy which had shocked
the lawyer fraternity in the region. For the reasons best known
to it, the High Court became wholly oblivious to the patent facts
on the record and failed to perform the duty entrusted to it under
the Constitution. After giving our thoughtful consideration to
the facts and circumstances of this case, we are of the view that
the least the High Court could have done in this case was to have
directed an independent investigation/inquiry into the mysterious
and most tragic abduction and alleged murder of Kulwant Singh,
Advocate and his family.”
In the facts and circumstances of the case, to do complete justice
in the matter and to instil confidence in the public mind the
Supreme Court felt it necessary to have fresh investigation in
the case through Central Bureau of Investigation (CBI).
Punjab & Haryana High Court Bar Association, Appellant; V.
State Of Punjab And Others, Respondents.
DATE of DECISION : 10-05-1996
CITATION(S) : 1996-(004)-SCC -0742 -SC
CONSTITUTION OF INDIA.ART. 136 AND 142 --Abduction and alleged
murder of K, Advocate, his wife and their two-year-old child -
Final report submitted by C.B.I. indicating involvement of some
police officers in murder - It is correct that the CBI investigation
reveals circumstances which do point a finger of suspicion at
the police officers but whether the circumstances are sufficient
to prosecute the said police officer is a matter for the consideration
of the Designated Court which is seized of the trial - It has
taken a mysterious and an extremely shocking turn by the finding
of the CBI that H has been falsely implicated in the case - State
Government directed to pay a sum of Rs. 2,00,000 (two lakhs) to
H as compensation for the sufferings caused to him because of
the false implication in the case in particular his remaining
in jail for a long period - In case of conviction of the police
officers, the amount of compensation paid to H should be recovered
from them personally - State Government further directed to take
up the question of grant of sanction under sec. 197, Criminal
Procedure Code for the prosecution of the police officers immediately.
State Government through Secretary to Government, Home Department
directed to pay a sum of Rs. 10,00,000 (ten lakhs) to the parents
(father and mother) of state Advocate as compensation. The payment
shall be made within two months of the receipt of this order.
The police officers falsely implicated H in the case. It is directed
that he be released from jail forthwith. State Government State
Government directed to pay a sum of Rs 2,00,000 (two lakhs) to
H as compensation for the sufferings caused to him because of
the false implication in the case in particular his remaining
in jail for a long period. The amount of compensation shall be
paid within two months of the receipt of this order. The Supreme
Court further direct the Home Secretary, State of Punjab to provide
security, if he considers it necessary, to H. The Supreme Court
further direct that in case of conviction of the police officers,
the amount of compensation paid to H should be recovered from
them personally. The Supreme Court the trial from the Designated
Court at Ropar to the Designated Court at Chandigarh. The CBI
shall file the necessary challan in accordance with the Code of
Criminal Procedure before the trial Court at Chandigarh. The Supreme
Court direct the trial Court to conclude the trial expeditiously
and preferably within six months of its commencement. The Supreme
Court directs the State Government further directed to take up
the question of grant of sanction under section 197, Criminal
Procedure Code for the prosecution of the police officers immediately.
The Supreme Court by the earlier order dated 7-12-1993 directed
the Central Bureau of Investigation (CBI) to investigate into
the mysterious and most tragic abduction and alleged murder of
Kulwant Singh, Advocate, his wife and their two-year-old child.
The CBI submitted the final report to this Court on 7-3-1996 whereunder
following actions have been recommended :
"(i) Harpreet Singh @ Lucky s/o Gurmit Singh Saini, r/o Village
Bahadurpur, who is presently facing trail in case FIR No. 10/93
of PS Sadar, Ropar in the Designated Court, Nabha has been falsely
implicated in the case.
(ii) SI Avindervir Singh, ASI Darshan Singh, Inspector Balwant
Singh and DSP Jaspal Singh are prima facie responsible for the
false implication of Harpreet Singh @ Lucky in the aforesaid case
and are liable for prosecution for offences under Sections 193,
194, 211 and 218 IPC.
(iii) The State Government of Punjab is to be requested for taking
suitable action against Shri Sanjiv Gupta, DIG, Punjab Police
for his lack of supervision."
Mr. Navkiran Singh, Advocate, appearing for the Punjab and Haryana
High Court Bar Association has vehemently contended that there
is sufficient material on the record to prosecute the police officers
for the abduction and murder of Kulwant Singh, Advocate and his
family. He has invited our attention to the following paragraphs
from the CBI report :
Now the question arises, if Harpreet Singh @ Lucky had not abducted
and murdered Kulwant Singh, Advocate and his family, then what
happened to them. The evidence of the family members of Kulwant
Singh, Advocate is there to show that Kulwant Singh had talked
to PS City, Ropar on telephone at about 9.30 p.m. on 25-1-1993
and left the house along with his wife and son to the said police
station for bringing Manjit Kaur and her son who were reportedly
detained by the police. It is also in their evidence that he left
the house in his Maruti Car No. DAQ-3804. Certain shopkeepers/vendors
falling en route from the house of Kulwant Singh to PS City Ropar
were examined but nobody confirmed that they had seen Kulwant
Singh, Advocate and his family going to PS City, Ropar in his
Maruti car. It is a fact that Manjit Kaur and her son were there
in PS City, Ropar on 25-1-1993 night, although she and her son
are denying it. Thus, the only persons who could enlighten us
about the visit of Kulwant Singh to PS City, Ropar are either
the police personnel posted in the PS City, Ropar or Manjit Kaur
and her son. Several police personnel have been examined but they
have denied that Advocate Kulwant Singh had visited the police
station that night. They have also denied about the detention
of Smt. Manjit Kaur or her son in the police station. Manjit Kaur
and her son Amarjit Singh @ Sonu, who are the only key witnesses
in this case, have also changed their versions and denied having
been ever detained by the police in the PS City, Ropar. Smt. Manjit
Kaur is now maintaining that she was never detained by the police
and she has also made a statement before the Special Magistrate,
Patiala on 3-7-1995 under Section 164 CrPC stating therein that
she was not detained by the police during 25-1-1993 to 27-1-1993.
Her eldest son Inderjit Singh @ Lucky has been appointed as a
Special Police Officer by Ropar Police w.e.f. 21-8-1994 without
taking any application from him and he is working in PS Sadar,
Ropar under Shri Avindervir Singh, SHO. Village Budha Bhora to
which Smt. Manjit Kaur belongs falls under the jurisdiction of
PS Sadar, Ropar. It appears that the version of Manjit Kaur and
her son is not reliable and Manjit Kaur seems to have made the
statement before the Magistrate under certain extraneous pressure.
A very significant fact that remains unexplained is the recovery
of the car by the police from the Bhakra Canal on 12-2-1993. If
Lucky was innocent and was not involved in the crime, he could
not have known where the car was. It is in the evidence of family
members of Kulwant Singh that Kulwant Singh and his family had
gone to PS City, Ropar on 25-1-1993 in the said car allegedly
recovered from Bhakra Canal on 12-2-1993. As per the records prepared
by Avindervir Singh, SHO, he had recovered this car at the instance
of Harpreet Singh @ Lucky. Now the question arises as to how he
could recover the car if Lucky was innocent and was not involved
in the crime. Thus, the recovery of the car by the police, false
implication of Harpreet Singh @ Lucky, subsequent payment of money
to his father under a false name showing him as an SPO and appointment
of Inderjit Singh @ Lucky, as an SPO during the investigation
of this case possibly to keep a control on him, his mother Manjit
Kaur and his brother Amarjit Singh @ Sonu and subsequent denial
by Manjit Kaur and her son about their detention by the police
does point the finger of suspicion at the police but these circumstances
are not clinching in nature.
The recovery of the car of Advocate Kulwant Singh was made by
SI Avindervir Singh which obviously could have been done on the
basis of certain information available with him which shows his
personal knowledge about the occurrence. Otherwise he could not
have known that the car was thrown into the canal. This is a circumstance
against Avindervir Singh. The dead bodies of Kulwant Singh, Advocate
and his family members could not be recovered in spite of our
best efforts. The precise sequence of events after Advocate Kulwant
Singh and his family left their house on the night of 25-1-1993
could also not be established due to the non-cooperation of Smt.
Manjit Kaur and her son Amarjit Singh @ Sonu who were the key
witnesses in this case. Assuming that Advocate Kulwant Singh and
his family, were killed, there is no evidence or record regarding
the modus.
We have collected adequate evidence to suggest that the police
version to the effect that Kulwant Singh and his family members
were killed by Harpreet Singh @ Lucky, is not correct. It is proved
beyond reasonable doubt that Lucky has not killed Kulwant Singh
and his family members. The confession of Lucky has been falsely
recorded. The recovery of the car under Section 27 Evidence Act
has been falsely shown.
However, the investigation has not been able to bring forth any
evidence to reveal the persons who have committed the act of killing
of Kulwant Singh and his family members. Their dead bodies have
not been found in spite of our best efforts. There is no other
evidence which may connect any of the suspect police officers
with the kidnapping/killing, howsoever strong the suspicion may
be."
It is no doubt correct that the CBI investigation reveals circumstances
which do point a finger of suspicion at the police officers but
whether the circumstances are sufficient to prosecute them for
the abduction and murder of Kulwant Singh and his family is a
matter for the consideration of the Designated Court which is
seized of the trial. We do not wish to go into this question.
The appellant before us and the prosecutor shall be at liberty
to argue before the trial court that the material collected by
the CBI including its report show that the police officers are
prima facie responsible for the abduction and murder of Kulwant
Singh and his family and are liable for prosecution for offences
under the relevant provisions of the Indian Penal Code.
The abduction and murder of Kulwant Singh and his family was the
most heinous crime against humanity. It has taken a mysterious
and an extremely shocking turn by the finding of the CBI that
Harpreet Singh @ Lucky has been falsely implicated in the case.
The CBI report indicates that under pressure from the police and
finding no other alternative to save his life he agreed to their
proposal to accept the murder of Kulwant Singh and his family
members. Mr. Navkiran Singh has rightly contended that the least
this Court can do at this stage is to compensate the old parents
of Kulwant Singh. J.S. Verma, J. speaking for this Court in Nilabati
Behera v. State of Orissa [(1993) 2 SCC 746 : 1993 SCC (Cri) 527]
held as under : (SCC pp. 762-64, paras 17-21)
"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 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 Sah [Rudul Sah v. State of Bihar, (1983) 4 SCC 141 : 1983
SCC (Cri) 798] 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.
* * *
We respectfully concur with the view that the court is not helpless
and the wide powers given to this Court by Article 32, which itself
is a fundamental right, imposes a constitutional obligation on
this Court to forge such new tools, which may be necessary for
doing complete justice and enforcing the fundamental rights guaranteed
in the Constitution, which enable the award of monetary compensation
in appropriate cases, where that is the only mode of redress available.
The power available to this Court under Article 142 is also an
enabling provision in this behalf. The contrary view would not
merely render the court powerless and the constitutional guarantee
a mirage, but may, in certain situations, be an incentive to extinguish
life, if for the extreme contravention the court is powerless
to grant any relief against the State, except by punishment of
the wrongdoer for the resulting offence, and recovery of damages
under private law, by the ordinary process. If the guarantee that
deprivation of life and personal liberty cannot be made except
in accordance with law, is to be real, the enforcement of the
right in case of every contravention must also be possible in
the constitutional scheme, the mode of redress being that which
is appropriate in the facts of each case. This remedy in public
law has to be more readily available when invoked by the have-nots,
who are not possessed of the wherewithal for enforcement of their
rights in private law, even though its exercise is to be tempered
by judicial restraint to avoid circumvention of private law remedies,
where more appropriate.
We may also refer to Article 9(5) of the International Covenant
on Civil and Political Rights, 1966 which indicates that an enforceable
right to compensation is not alien to the concept of enforcement
of a guaranteed right. Article 9(5) reads as under :
'Anyone who has been the victim of unlawful arrest or detention
shall have an enforceable right to compensation.'"
We direct the Punjab Government through Secretary to Government,
Home Department to pay a sum of Rs. 10,00,000 (ten lakhs) to the
parents (father and mother) of Kulwant Singh, Advocate as compensation.
The payment shall be made within two months of the receipt of
this order.
Regarding Harpreet Singh @ Lucky the CBI reached the following
conclusion :
"Facts emerging from the investigation lead us unequivocally
and decisively to conclude that Harpreet Singh @ Lucky is not
responsible for the abduction or murder of Kulwant Singh, Advocate
and his family."
The police officers falsely implicated Harpreet Singh @ Lucky
in the case. We direct that he be released from jail forthwith.
We further direct the Punjab Government through Secretary to Government,
Home Department to pay a sum of Rs. 2,00,000 (two lakhs) to Harpreet
Singh @ Lucky as compensation for the sufferings caused to him
because of the false implication in the case in particular his
remaining in jail for a long period. The amount of compensation
shall be paid within two months of the receipt of this order.
We further direct the Home Secretary, State of Punjab to provide
security, if he considers it necessary, to Harpreet @ Lucky. We
further direct that in the event of conviction of the police officers,
the amount of compensation paid to Harpreet @ Lucky shall be recovered
from them personally.
We transfer the trial from the Designated Court at Ropar to the
Designated Court at Chandigarh. The CBI shall file the necessary
challan in accordance with the Code of Criminal Procedure before
the trial court at Chandigarh. We direct the trial court to conclude
the trial expeditiously and preferably within six months of its
commencement. We direct the State of Punjab through the Home Secretary
or any other appropriate authority to take up the question of
grant of sanction under Section 197, Criminal Procedure Code for
the prosecution of the police officers immediately and take a
decision in this respect within one month of the receipt of this
order.
Keeping in view the facts and circumstances highlighted by the
CBI in its report it would be in the interest of justice to suspend
the police officers during the course of the trial. We therefore,
direct the Home Secretary, State of Punjab to take appropriate
action in this respect. We accept the recommendation of the CBI
regarding Shri Sanjiv Gupta, DIG, Punjab Police and direct the
Government of Punjab through Secretary to Government, Punjab to
take suitable action against Shri Gupta in the light of the findings
of the CBI.
Peoples' Union For Democratic Rights, Petitioner V. State Of Bihar
And Others, Respondents.
DATE OF DECISION: 19-12-1986
CITATION(S) : 1987-(093)-CRLJ -0528 -SC
On 19th April, 1986, 600 to 700 poor peasants and landless people
mostly belonging to the backward classes had collected for holding
a peaceful meeting within the compound of Gandhi library in Arwal,
a place within the District of Gaya in the State of Bihar. Without
any previous warning by the police or any provocation on the part
of the people who had so collected, the Superintendent of Police,
reached the spot with police force, surrounded the gathering and
opened fire as a result of which several people were injured and
at least 21 persons including children died. The petitioner alleged
that separate unofficial inquiries have been held into the atrocity
and the reports indicated that the number of deaths was much more
that 21 and there was no justification for the firing. It appears
that there was a dispute relating to possession of 26 decimals
of low lying land adjacent to the canal at Arwal and of such dispute
members of a rich Rajak family on one side and members of nine
poor families on the other were parties. Even though several people
died and many more were injured by the ruthless and unwarranted
firing resorted to by the police, to give a cover to the atrocities,
the police started a false case implicated several innocent people
including even some of the people who had been killed in the firing.
The incident drew a lot of publicity and attention both within
the State as also outside.
There was no dispute that as a result of the police firing 21
people died and several others were injured. The heirs and relations
of a few of the dead people had been compensated by the State
of the tune of Rupees ten thousand as found from the record. No
Justification has been indicated as to why the said compensation
has not been given in every case of death or injury. It is a normal
feature of which judicial notice can be taken that when such unfortunate
consequences emerge even in police firing, the state comes forward
to give compensation. Ordinarily in the case of death compensation
of Rupees twenty thousand is paid but there was no reason as to
why the quantum of compensation was limited to rupees ten thousand
in this case. The Court held that ‘we may not be taken to
suggest that in the case of death the liability of the wrong-doer
is absolved when compensation of Rupees twenty thousand is paid.
But as a working principle and for convenience and with a view
to rehabilitating the dependents of the deceased such compensation
is being paid. We direct that without prejudice to any just claim
for compensation that may be advanced by the relations of the
victims who have dies or by the injured persons themselves, for
every case of death compensation of Rupees twenty thousand and
for every injured person compensation of Rupees five thousand
shall be paid. Where some compensation has already been paid,
the same may be adjusted when the amount now directed is being
paid.
Mohammad Sultan Mir, Petitioner V. State Of J. & K. And Others,
Respondents.
DATE OF DECISION: 27-06-2000
CITATION(S) : 2001-(107)-CRLJ -0301 -J&K
Constitution of India Art 226 - Habeas Corpus petition - as per
the enquiry report brother of the petitioner was arrested by the
BSF personnel while on his way to his place of duty as a teacher
and has disappeared since then - prayer to release the detenu
and constitute magisterial inquiry and to prosecute the respondents
under Sec 302 read with Sec 149 RPC and direct them to pay a compensation
of Rs. one crore to the family of the detenu - investigations
are already in progress - detenu has not been released - as held
by various decisions of the SC State is under a legal obligation
to compensate the family of the deceased for the pain and sufferings
occasioned by custodial death of the deceased - relying on various
decisions and totality of facts and circumstances amount of Rs.
one lakh is awarded as just and proper compensation to be paid
by the respondents to the family of the deceased. Petition is
allowed.
Habeas Corpus Petition: On the basis of material, and inquiry
conducted by the CJM the brother of the petitioner was arrested
by the BSF personnel while on his way to his place of duty as
a teacher in a higher secondary school and from then on he had
disappeared. The petitioner prayed for constituting Magisterial
inquiry and prosecuting the respondents under Sec 302 read with
Sec 149 RPC and also to direct the respondents to pay a compensation
of Rs. one crore to the family of the detenu. Case of disappearance
has been registered and investigations are already in progress.
It being a case of arrest and custodial disappearance, the Union
of India and the BSF personnel are under legal obligation to compensate
the family for the pain and sufferings occasioned by loss of liberty
and disappearance of their bread earner. Under public law, the
Union and its instrumentality are under legal duty to safeguard
the life and liberty of the individuals and protect its citizens
from its wrong doings which may occasionally result in death of
the citizen. There are a no. of decisions of the SC which go in
favour of awarding compensation to the family of the deceased
who has become a victim of custodial violence. With regard to
quantum of compensation details about family strength and other
relevant facts having a bearing on the question of award of compensation
are quite sketchy. Taking into consideration the various decisions
and totality of facts and circumstances the amount of Rs. one
lakh is awarded as just and proper compensation to be paid by
the Union of India and BSF, to the family of the deceased. Petition
allowed.
Pratul Kumar Sinha, Petitioner V. State Of Bihar And Another,
Respondents.
DATE OFDECISION:02-05-1994
CITATION(S) : 1994-(SU3)-SCC -0100 -SC
Arts.32 & 21 -- Police atrocities -- Resulted in the death
of three persons - Direction issued that an ex gratia payment
of Rs. 25,000 be made to widow of each deceased person - State
Govt. may recover this amount from tort-feasors. Since death of
the persons resulted due to police atrocities hence Supreme Court
directed to make payment of ex gratia of Rs. 25,000 to each widow
of deceased persons.
Peoples' Union For Democratic Rights and Another V. Police Commissioner,
Delhi Police.
DATE OF DECISION: 13-01-1989
CITATION(S) : 1989-(004)-SCC -0730 -SC
JUDGE(S) :
It was an unfortunate case where the police collected poor people
and took them to the police station for doing some work. They
were asked to work without labour charges. On demand they were
beaten and it appears that one of them Ram Swaroop succumbed to
the injuries and the body has also been disposed of. Petitioner
2 Patasi, as alleged, was also stripped of her clothes and was
thrashed in the police station. The other eight persons namely
(1) Dandwa (2) Ram Prasad (3) Jaipal (4) Mahavir (5) Kannu (6)
Munsjia (7) Hukka and (8) Pratap were also beaten up rather than
they should have been paid for the work they did at the police
station.
The Deputy Commissioner of Police, accepted the atrocity committed
by the Police Officers and some action was also taken and Station
House Officer was arrested. The matter was being investigated
for criminal prosecution. The Court while holding that ‘It
is unfortunate that the Police to whom the citizen can approach
for protection and help acted in such a manner, directed that
the family of Ram Swaroop who is dead will be paid Rs. 50,000
as compensation and Patasi who were stripped of her clothes at
the Police station, shall be paid Rs. 500 as compensation and
the 8 other persons who were take in the police station without
being paid for their work will be paid Rs. 25 each. It was also
directed that after investigation and inquiry officers who were
found guilty, the amount paid as compensation or part thereof
may be recovered from those persons out of their salaries after
giving them opportunity to show cause.
Nilabati Behera Alias Lalita Behera (Through The Supreme Court
Legal And Committee), Petitioner V. State Of Orissa And Others,
Respondents.
DATE OF DECISION: 24-03-1993
CITATION(S) :
1993-(002)-SCC -0746 -SC
1993-(080)-AIR -1960 -SC
1993-(099)-CRLJ -2899 -SC
Constitution of India - Arts. 32, 142, 226 & 300 - Criminal
Procedure code, 1973 - Sec. 357(5) - International Covenant on
Civil and Political Rights, 1966 - Art. 9(5) - Evidence Act, 1872
- Sec. 106 - Award of compensation from Public Law Proceedings
- Different from private law proceedings - Custodial death - Respondents
liable for compensation to deceased's mother (Petitioner), for
custodial death - 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 of arts. 32 &
226 - The Court is not helpless and wide powers given to Supreme
Court by art. 32, which itself is fundamental right, imposes a
constitutional obligation on Court to forge such new tools, which
may be necessary for doing complete justice and enforcing the
fundamental rights guaranteed in Constitution, which enable award
of monetary compensation in appropriate cases, where that is only
mode of redress available - Power available to the Supreme Court
under art. 142 is also enabling provision in this behalf - Death
in police custody established - Having regard to deceased aged
and monthly income between Rs. 1200 to Rs. 1500 - Respondent State
is directed to pay the sum of Rs. 1,50,000 to the petitioner and
further sum of Rs. 10,000 as costs to be paid to Supreme Court
Legal Aid Committee - Award of compensation in proceeding would
be taken into account for adjustment, in the event of any other
proceeding taken by the petitioner for recovery of compensation
on the same ground, so that the amount to this extent is not recovered
by the petitioner twice over
The deceased was aged about 22 years and had a monthly income
between Rs. 1200 to Rs. 1500. This is the finding based on evidence
recorded by the District Judge, and there is no reason to doubt
its correctness. A total amount of Rs. 1,50,000 would be appropriate
as compensation, to be awarded to the petitioner in the present
case. Count may, however, observe that the award of compensation
in this proceeding would be taken into account for adjustment,
in the event of any other proceeding taken by the petitioner for
recovery of compensation on the same ground, so that the amount
to this extent is not recovered by the petitioner twice over.
Apart from the fact that such an order is just, it is also in
consonance with the statutory recognition of this principle of
adjustment provided in S. 357(5) CrPC and S. 141(3) of the Motor
Vehicles Act, 1988. Accordingly, Court direct the respondent State
of Orissa to pay the sum of Rs. 1,50,000 to the petitioner and
a further sum of Rs. 10,000 as costs to be paid to the Supreme
Court legal Aid Committee. The mode of payment of Rs. 1,50,000
to petitioner would be, by making a term deposit of that amount
in a schedule bank in the petitioner's name for a period of three
years, during which she would receive only the interest payable
thereon, the principal amount being payable to her on expiry of
the term. The Collector of the District will take the necessary
steps in this behalf, and report compliance to the Registrar (Judicial)
of this Court within three months.
Supreme Court directed to State to pay the sum of Rs. 1,50,000
to the petitioner and a further sum of Rs. 10,000 as costs to
be paid to the Supreme Court Legal Aid Committee.
Constitution of India - Arts. 32 & 142 - Remedy in public
law - 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 arts. 32 & 226
The Court is not helpless and the wide powers given to this Court
by art. 132, which itself is a fundamental right, imposes a constitutional
obligation on Supreme Court to forge such new tools, which may
be necessary for doing complete justice and enforcing the fundamental
rights guaranteed in the Constitution, Which enable the award
of monetary compensation in appropriate cases, where that is the
only mode of redress available. The power available to Supreme
Court under art. 142 is also an enabling provision in this behalf.
The Contrary view would not merely render the Court powerless
and the constitutional guarantee a mirage, but may, in certain
situations, be an incentive to extinguish life, if for the extreme
contravention the Court is powerless to grant any relief against
the State, except by punishment of the wrongdoer for the resulting
offence, and recovery of damages under private law, by the ordinary
process. If the guarantee that deprivation of life and personal
liberty cannot be made except in accordance with law, is to be
real, the enforcement of the right in case of every contravention
must also be possible in the constitutional scheme, the mode of
redress being that which is appropriate in the facts of each case.
This remedy in public law has to be more readily available when
invoked by the have-nots, who are not possessed of the wherewithal
for enforcement of their rights in private law, even though its
exercise is to be tempered by judicial restraint to avoid circumvention
of private law remedies, where more appropriate.
The remedy in public law has to be more readily available when
invoked by the have-nots, who are not possessed of the wherewithal
for enforcement of their rights in private law, even though its
exercise is to be tempered by judicial restraint to avoid circumvention
of private law remedies, where more appropriate.
Constitution of India - Arts. 32 & 226 - Remedy in public
law proceedings - The burden is, clearly on the respondents to
explain how the deceased sustained those injuries which caused
his death - Unless a plausible explanation is given by the respondents
which is consistent with their innocence, the obvious inference
is that the fatal injuries were inflicted on the deceased in police
custody resulting in his death, for which the respondents are
responsible and liable
Enforcement of the constitutional right and grant of redress embraces
award of compensation as part of the legal consequences of its
contravention. Award of compensation in a proceeding under art.
32 by Supreme Court or by the High Court under art. 226 of the
Constitution is a remedy available in public law, base on strict
liability for contravention of fundamental rights to which the
principle of sovereign immunity does not apply, even though it
may be available as a defence in private law in an action based
on tort.'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 arts. 32 &
226 of the Constitution. This is what was indicated in Rudul Sah
and is the basis of the subsequent decisions in which compensation
was awarded under arts. 32 & 226 of the Constitution, for
contravention of fundamental rights. Certain further observations
therein adverted to earlier, which may tend to minimise the effect
of the principle indicated therein, do not really detract from
that principle. This is how the decisions of Supreme Court in
Rudul Sah and others in that line have to be understood and Kasturilal
distinguished therefrom.
Award of compensation in a proceeding under art. 32 by Supreme
Court or by the High Court under art. 226 of the Constitution
is a remedy available in public law, based on strict liability
for contravention of fundamental rights to which the principle
of sovereign immunity does not apply, even though it may be available
as a defence in private law in an action based on tort.
Constitution of India - Art. 21 - Convicts, prisoners or undertrials
- Their fundamental rights under art. 21 - Obligation of State
to ensure that there is no infringement of the indefeasible rights
of a citizen to life, except in accordance with procedure established
by law, while the citizen is in its custody
Convicts, prisoners or undertrials are not denuded of their fundamental
rights under art. 21 and it is only such restrictions, as are
permitted by law, which can be imposed on the enjoyment of the
fundamental right by such persons. It is an obligation of the
State to ensure that there is no infringement of the indefeasible
rights of a citizen to life, except in accordance with law, while
the citizen is in its custody. His liberty is in the very nature
of things circumscribed by the very fact of his confinement and
therefore his interest in the limited liberty left to him is rather
precious. The duty of care on the part of the State is strict
and admits of no exceptions. The wrongdoer is accountable and
the State is responsible if the person in custody of the police
is deprived of his life except according to the procedure established
by law. The defence of "sovereign immunity" in such
cases is not available to the State. Adverting to the grant of
relief to the heirs of a victim of custodial death for the infraction
or invasion of his rights guaranteed under art. 21 of the Constitution
of India, it is not always enough to relegate him to the ordinary
remedy of a civil suit to claim damages for the tortious act of
the State as that remedy in private law indeed is available to
the aggrieved party. The citizen complaining of the infringement
of the indefeasible right under art. 21 of the Constitution cannot
be told that for the established violation of the fundamental
right to life, he cannot get any relief under the public law by
the Courts exercising writ jurisdiction. The primary source of
the public law proceedings stems from the prerogative writs and
the Courts have, therefore, to 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. The old doctrine
of only relegating the aggrieved to the remedies available in
civil law limits the role of the Courts too much as protector
and guarantor of the indefeasible rights of the citizens. The
Courts have the obligation to satisfy the social aspirations of
the citizens because the Courts and the law are for the people
and expected to respond to their aspirations.
It is an obligation of the State to ensure that there is no infringement
of the indefeasible rights of a citizen to life, except in accordance
with law, while the citizen is in its custody.
Penal Code, 1860 - Sec. 302 - Evidence Act, 1872 - Sec. 45 - Deceased
taken in police custody and found dead next day on railway track
without being released from custody - Burden clearly on respondents
(State) to explain how deceased sustained those injuries which
caused his death - Respondent's plea that deceased escaped from
police custody - Opinion of Professor and Head of Deptt. of Forensic
Medicine, who not examined as witness during inquiry - Being cryptic
and based on conjectures, not acceptable - Deceased in police
custody resulting in his death for which respondent are responsible
and liable
The burden is, clearly on the respondents to explain how the deceased
sustained those injuries which caused his death. Unless a plausible
explanation is given by the respondents which is consistent with
their innocence, the obvious inference is that the fatal injuries
were inflicted on the deceased in police custody resulting in
his death, for which the respondents are responsible and liable.
Criminal Procedure Code, 1973 - Sec. 176 - Custodial death - Inquiry
contemplated independently by magistrate and not jointly with
police officer when role of police officer itself matter of inquiry
- Joint inquiry report in case cannot made u/s. 176 CrPC and cannot
be relied on as statutory report relating to cause of death
Joint inquiry report is stated to have been not made been u/s.176
CrPC and was not strongly relied on by the Additional Solicitor
General as a statutory report relating to the cause of death.
An inquiry u/s. 176 CrPC is contemplated independently by a Magistrate
and not jointly with a police officer when the role of the police
officers itself is a matter of inquiry.
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