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COMPENSATION IN CASE OF UNLAWFUL ARREST AND DETENTION

SMT. NILABATI BEHERA ALIAS LALIT VS STATE OF ORISSA AND ORS  –  on 24 March 1993

1993 AIR 1960, 1993 SCR (2) 581

This petition was brought before The Supreme Court of India before the bench consisting of Honourable Justice Verma Jagdish Saran, Honourable Justice Anand A.S and Honourable Justice Venkatachala N.

The Judgments of the Court were delivered by Honourable Justice Verma A letter dated 14.9.1988 sent to this Court by Smt. Nilabati Behera alias Lalita Behera, was treated as a Writ Petition under Article 32 of the Constitution for determining the claim of compensation made therein consequent upon, the death of petitioner’s son Suman Behera, aged about 22 years, in police custody.

ISSUES RAISED

Whether the provision permitted an order for monetary compensation?

The contention of the Attorney-General therein, that an order for payment of compensation did not amount to the enforcement of the rights that had been contravened, was expressly rejected. It was held, that an order for payment of compensation, when a right protected had been contravened, is clearly a form of ‘redress’ which a person is entitled to claim under Section 6 and may well be the ‘only practicable form of redress’. It was argued on behalf of the Attorney- General that s.6(2) does not permit of an order for monetary compensation even though this kind of redress was ordered in Jaundoo v. Attorney-General of Guyana, [1971] SC 972. Reliance was placed on the reference in the subsection to ‘enforcing, or securing the enforcement of, any of the provisions of the said foregoing sections’ as the purpose for which orders etc. could be made. An order for payment of compensation, it was submitted, did not amount to the enforcement of the rights that had been contravened. An order for payment of compensation when a right protected under s.1 ‘has been’ contravened was dearly a form of ‘redress’ which a person was entitled to claim under s. 6(1) and may well be the only practicable form of redress, as by now it is in the instant case. The jurisdiction to make such an order is conferred on the High Court by para (a) of s.6(2), viz. jurisdiction ‘to hear and determine any application made by any person in pursuance of sub-section (1) of this section. The very wide powers to make orders, issue writs and give directions are to this. The Honourable Court further observed the measure of monetary compensation recoverable under s.6 where the contravention of the claimant’s constitutional rights consisted of deprivation of liberty otherwise than by due process of law. The claim was not a claim in private law for damages for the tort of false imprisonment under which the damages recoverable are at would include damages for loss of reputation. It was a claim in public law for compensation for deprivation of liberty alone.

Whether it was a case of custodial death?

This Honourable Court referred to the evidence and the circumstances of the case as also the stand taken by the State about the manner in which injuries were caused and came to the conclusion that the case put up by the police of the alleged escape of Suman Behera from police custody and his sustaining the injuries in a train accident were not acceptable. A strenuous effort was made by the learned Additional Solicitor General by reference to the injuries on the head and the face of the deceased to urge that those injuries could not be possible by the alleged police torture and the finding recorded by the District Judge in his report to the contrary was erroneous. It was urged on behalf of the State that the medical evidence did establish that the injuries had been caused to the deceased by lathi blows but it was asserted that the nature of injuries on the face and left temporal region could not have been caused by the lathis and, therefore, the death had occurred in the manner suggested by the police in a train accident and that it was not caused by the police while the deceased was in their custody. In this connection, it would suffice to notice that the Doctor, who conducted the postmortem examination, excluded the possibility of the injuries to Suman Behera being caused in a train accident. The injuries on the face and the left temporal region were found to be post-mortem injuries while the rest were ante-mortem. This aspect of the medical evidence would go to show that after inflicting other injuries, which resulted in the death of Suman Behera, the police with a view to cover up their crime threw the body on the rail-track and the injuries on the face and left temporal region were received by the deceased after he had died. This aspect further exposed not only the barbaric attitude of the police but also its crude attempt to fabricate false clues and create false evidence with a view to screen its offence. The falsity of the claim of escape stood also exposed by the report from the Regional Forensic Science Laboratory which mentioned that the two pieces of rope sent for examination to it, did not tally in respect of physical appearance, thereby belying the police case that the deceased escaped from the police custody by chewing the rope. The theory of escape had, thus, been rightly disbelieved, observed this Court and that the death of Suman Behera was caused while he was in custody of the police by police torture. A custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. It was not however, the Courts concern at that stage, however, to determine as to which police officer or officers were responsible for the torture and ultimately the death of Suman Behera. That was a matter which had to be decided by the competent court.

Whether right to seek redressal under Article 32 of the Constitution maintainable?

The question of whether to seek the right of redressal under Article 32 of the Constitution, which is without prejudice to any other action with respect to the same matter which way be lawfully available, extended merely to a declaration that there had been contravention and infringement of the guaranteed fundamental rights and rest content at that by relegating the party to seek relief through civil and criminal proceedings or can it go further and grant redress also by the only practicable form of redress by awarding monetary damages for the infraction of the right to life. It was axiomatic that convicts, prisoners or under-trials were not denuded of their fundamental 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 was an obligation of the State, to ensure that there was 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, under trials 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. Thus, the defence of “sovereign immunity’ in such cases was not available to the State and in fairness to Mr. Altaf Ahmed it may be recorded that he raised no such defence either.

JUDGMENT DELIVERED BY THIS COURT

Thereby, after inferring the facts and circumstances of the case, this Honourable Court gave its decision as under,“It may be necessary to identify the situations to which separate proceedings and principles apply And the courts have to act firmly but with certain amount of circumspection and self-restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law. Some of those situations have been identified by this Court in the cases referred to by Brother Verma, J. In the facts of the present case on the findings already recorded, the mode of redress which commends appropriate is to make an order of monetary amend in favour of the petitioner for the custodial death of her son by ordering payment of compensation by way of exemplary damages. For the reasons recorded by Brother Verma, J., I agree that the State of Orissa should pay a sum of Rs.1,50,000 to the petitioner and a sum of Rs.10,000 by way of costs to the Supreme Court Legal Aid Committee Board. I concur with the view expressed by Brother Verma, J. and the directions given by him in the judgment in all respects.”

–  Tanvi Srivatsan

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