The Secretary, Ministry of Railways and The General Manager, Southern Railway vs Smt. S. Santhanamary and Others

P.K. Misra, J.—Heard Mr.M. Sekar for the appellants, Mr.C. Vijayakumar for the respondents 1 & 2 and Mr.D. Krishnakumar, Special

Govt. Pleader for the respondents 3 to 10.

The appeal is directed against the order of the learned single Judge in W.P.No.22267 of 1993 directing the appellants to pay a compensation of

Rs.1 lakh to the respondent No.1 on account of death of her son in custody.

The said writ petition was filed by the present respondents 1 & 2 on the allegation that the son of the respondent No.1 was illegally taken into

custody by Railway Police and subsequently expired in custody on account of torture.

A counter affidavit had been filed on behalf of the present appellants wherein the allegation of torture has been denied. However, in the counter

affidavit it had been admitted that the deceased had been apprehended on 1.9.1991 at about 00.30 hours in connection with Cr.Nos.15/91 and

22/91 and had been brought to their Railway Protection Force Station for interrogation. It is further indicated that the deceased was secured in the

lock-up of Tondiarpet Marshalling Yard RPF Station at about 4.30 hours on 1.9.1991 and at about 5.00 hours he was found dead in the lock-up.

It is further indicated that inquest was held on the same day and thereafter post-mortem was conducted and the body was handed over to the

father of the deceased on 2.9.1991.

Learned single Judge taking into consideration the specific averments made on behalf of the writ petitioner and considering the fact that the

deceased had been taken into custody and had admittedly died in custody and the fact that inquest and post-mortem reports were not available to

the Court, held that the present appellants were liable to pay compensation on account of the death of the deceased while in police custody.

In the appeal, it is contended on behalf of the appellants that as per the communication received from the State Government and the officials of

the State Government, the death was due to natural causes and in the absence of any positive proof of torture, the direction to pay compensation

was uncalled for.

Before considering the questions raised by the learned counsel appearing for the State Government, it is necessary to notice some of the relevant

decisions of the Supreme Court throwing light on the question relating to payment of compensation.

In Rudul Sah Vs. State of Bihar and Another, , the Supreme Court observed that compensation for deprivation of a fundamental right can be

guaranteed in a petition under Article 32 of the Constitution. It was observed :-

. . . It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously

through the ordinary processes of courts, civil and criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted

in a court of lowest grade competent to try it. But the important question for our considerations is whether in the exercise of its jurisdiction under

Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the

deprivation of a fundamental right. The instant case is illustrative of such cases . . .

. . . The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense

that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal

detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise

amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the

petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which

guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders to release

from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate

of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of

fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the

unlawful acts of instrumentalities which act in the name of public interest and which prevent for their protection the powers of the State as a shield.

If civilisation 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. Therefore, the State must have repair the damage done by

its officers to the petitioner''s rights. It may have recourse against those officers.

In Bhagalpur Blinding cases : Khatri and Others Vs. State of Bihar and Others, and Khatri and Others Vs. State of Bihar and Others, , the

Supreme Court held that in a case of violation of the right to life and personal liberty, the courts should be required ""to forge new tools and devise

new remedies"" for the purpose of upholding the fundamental rights.

In Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, , the Supreme Court while reiterating the aforesaid principles,

observed :-

. . . 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.

It was further observed :-

We may also refer to Article 9(5) of8 the International Covenant on Civil and Political Right, 1966 which indicates that an enforceable right to

compensation is not alien to the concept of enforcement of a guaranteed right.

Justice Anand in his concurring decision observed:-

It is axiomatic that convicts, prisoners or undertrials are not denuded of their funmental rights under Article 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. The

precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials or other prisoners in custody, except

according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody

is not deprived of his right to life. 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. . . .

In State of M.P. Vs. Shyamsunder Trivedi and Others, arising out of a prosecution u/s 302 IPC against police officials, while considering the

question of standard of proof required in such cases relating to custodial death, it was observed :-

. . . The High Court erroneously overlooked the ground reality that rarely in cases of police torture or custodial death, direct ocular evidence of

the complicity of the police personnel would be available, when it observed that ''direct'' evidence about the complicity of these respondents was

not available. Generally speaking, it would be police officials alone who can only explain the circumstances in which a person in their custody had

died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even

pervert the truth to save their colleagues, and the present case is an apt illustration, as to how one after the other police witnesses feigned ignorance

about the whole matter.

It was further observed :-

. . . The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring

the ground realities, the fact-situations and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice

and makes the justice delivery system a suspect. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police

custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the courts because it reinforces the

belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would hardly be any

evidence available to the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police

custody is perhaps one of the worst kind of crimes in a civilised society, governed by the rule of law and poses a serious threat to an orderly

civilised society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity.

Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image of any civilised nation and encourages the

men in ''Khaki'' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken

to check the malady, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence

of heading towards perishing. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve,

otherwise the common man may lose faith in the judiciary itself, which will be a sad day.

In Ajab Singh and Another Vs. State of Uttar Pradesh and Others, , the Supreme Court while dealing with a similar matter in a petition under

Article 32 of the Constitution, the Supreme Court observed :

If we may be permitted to use the same words, what appears to us to be a concocted story is that set out in the respondent''s affidavits. They

are, to our mind, desperate attempts to avoid responsibility for acts committed while Rishipal was in judicial custody. There can be no doubt that

the respondents have not investigated the cause of death of Rishipal as they ought to have done or that, at any rate, they have not placed all

relevant material before this Court. They have attempted to pull the wool over the eyes of this Court. We do not appreciate the death of persons 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. . . .

Most of the decisions already noted have been categorised and comprehensive guidelines have been laid down in the case of D.K. Basu Vs.

State of West Bengal, .

In the light of the observations made by the Supreme Court in the decisions cited above, the facts and circumstances of the present case are to

be examined. In the present case, we are not concerned with a criminal trial where the prosecution is supposed to establish the guilt of the accused

beyond all reasonable doubts. We are concerned with a plea for payment of compensation in a case of admitted custodial death. It is to be

examined whether in the facts and circumstances of the present case, the petitioner, the mother of the deceased is to be driven to a Civil Court.

Even if a case is filed in a civil court, such case has to be decided on the basis of preponderance of probability. In the background of the admitted

fact that the deceased was taken into custody, was interrogated and found dead within a short span of about 4 to 5 hours, in the absence of any

satisfying material produced on behalf of the contesting respondents that the death was on account of natural causes, must be taken to be a

custodial death by applying any standard of proof.

It is not disputed that the deceased, who was aged about 28 years, had been taken into custody and died while he was in police custody within

a short span of five hours from the time of his detention. The incident had attracted much attention at that time and obviously the parents of the

deceased had been pestering various authorities for justice. In such a background, normally one would have expected the authorities to preserve

various official documents including the inquest report, post-mortem report and the enquiry report, if any, allegedly prepared by the Revenue

Divisional Officer. As rightly observed by the learned single Judge, the writ petition had been entertained during the month of December, 1993 and

notices were served very soon thereafter and the Respondents ought to have preserved the relevant documents. It is of course true that

subsequently a plea was advanced that the records/documents were destroyed. However, such a plea was not accepted, and in our opinion

rightly, by the learned single Judge. In view of the admitted fact that the death occurred while the deceased was in custody, the burden was

obviously on the present appellants/their subordinate officials to produce the acceptable materials to indicate that the death was on account of

natural causes. It should be remembered that ordinarily a young man in his 20''s does not expire suddenly due to natural causes. The fact that the

deceased had been interrogated and had died within a short span of about five hours of his being taken into custody itself creates grave suspicion

regarding acceptability of such an excuse of natural death. Non-production of the minimum material in the shape of inquest report/post-mortem

report only adds to such suspicion. In the absence of any prima facie acceptable material, the inevitable conclusion is that the deceased must have

died on account of torture.

It is true that the post-mortem report and inquest report are not available. It is true that there is no direct material in support of the allegation

that the deceased was subjected to any torture. However, since admittedly the death took place while the deceased was in policy custody, it is for

the police officials or the concerned Government to place materials on record to prove that the death was due to ""natural causes"" as claimed by

them.

Having regard to all these aspects, we have no hesitation to uphold the findings of the learned single Judge and the direction regarding payment

of compensation. It is not disputed that during pendency of the appeal, a sum of Rs.50,000/- has been disbursed to the respondent No.1. In the

facts and circumstances of the case, we direct that balance amount of Rs.50,000/- with interest at the rate of 9%, calculated from the date of

expiry of 12 weeks from the date of the order of the learned single Judge, shall be paid to the respondent No.1. This direction should be complied

within a period of three months from the date of receipt of the present order.

Subject to the aforesaid direction, the writ appeal is dismissed. No costs.