ORDER [ENTITY], J.
1. This Writ Petition was initially heard by a Division Bench. The two learned Judges of this Court constituting the Division Bench passed separate conflicting judgments/orders which were signed and delivered. In the aforesaid situation treating the case to be one where there was a difference of opinion, a reference was made by Hon'ble the Chief Justice to a third Judge. The third Judge/nominated Judge vide the order dated 16-2-1998 returned the reference unanswered to Hon'ble the Chief Justice for further appropriate orders indicating that reference was incompetent for the reasons given in that order and the matter required to be placed before a larger Bench which could effectively deal with the situation as it will not be under any inhibition nor incompetent to hear every aspect of the case before it. It was thereafter that Hon'ble the Chief Justice constituted the present Full Bench and the Writ Petition has thus come up before it for being heard and disposed of.
2. [ENTITY], the husband of the Petitioner No. 1 and the father of petitioners Nos. 2 to 4, who stood lodged in the Central Jail, Gwalior being an undertrial, was brought in the Central Jail Dispensary Gwalior from the cell where he stood confined at 6.30 p.m. on 8-5-1995 for his treatment. At the time when he was brought to the Central Jail Dispensary he was found unconscious having convulsions and suffering from high fever which was measured and found to be 105 fahrenheit. The attending doctor at the Central Jail Dispensary Gwalior, on provisional diagnosis, found it to be a case of hyperpyrexia. He gave the medicines which he thought proper but advised for his shifting to the Government Hospital for further treatment. [ENTITY] was thereafter shifted to the G. R. Medical College J. A. Group of Hospitals and was admitted there at 8.00 p.m. on the same day. At the time of admission he was found to be deeply unconscious and not responding to deep painful stimuli. The attending doctor provisionally came to the conclusion that it was a case of cerebral malaria. The medicines were administered by the doctor and by 9.00 p.m. his temperature came down to 104 fahrenheit but he was found gasping. This situation continued even at 10.00 p.m. At 11.00 p.m. however the pulse and blood-pressure went down and were not recordable. The heart sounds were found to be muffled and the gasping continued. The patient remained in this situation upto 12.00 a.m. and was declared dead at 12.05 a.m. on 9-6-1995. The post-mortem report, which was conducted by three doctors, reported the cause of death to be cardio respiratory failure.
3. The Writ Petition was thereafter filed by the four petitioners wherein [ENTITY] through Chief Secretary, Government of Madhya Pradesh; [ENTITY]; [ENTITY]; Collector and District Magistrate, Gwalior; Principal Secretary, Ministry of Health, Government of Madhya Pradesh; Principal Secretary, Department of Jail, Government of Madhya Pradesh; Principal Secretary, Medical Education, Government of Madhya Pradesh and Superintendent, J. A. Group of Hospitals, Gwalior, were impleaded as respondents.
4. The petitioners prayed for a direction requiring a thorough probe by Central Bureau of Investigation in the incidents relating to five unnatural deaths, which had taken place in the Central Jail, Gwalior, during a short span of one month under mysterious circumstances and into the high corruption amongst the jail authorities and non or less supply of food, clothes and medical facilities to the prisoners, praying further for a direction to prosecute the responsible Jail authorities for such unnatural deaths. Another direction was sought for requiring the concerned Jail authorities of Central Jail, Gwalior not to keep in isolation or in solitory confinement or with fetters any of its inmates following the decision of the Apex Court in the case of [PRECEDENT] as well as the decision of the Apex Court in the case of [PRECEDENT]. Another direction sought for was for payment of compensation for unnatural and mysterious death of [ENTITY], the husband of the Petitioner No. 1 and father of petitioners Nos. 2 and 4, claiming compensation of an amount of Rs. 11,20,000/-.
5. The petitioners had alleged that [ENTITY], the deceased, had been arrested by the police for having committed offences under [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] for breaking the windscreen of Fire- brigade Vehicle No. CPM/7924 by pelting stone and causing simple injuries to one [ENTITY] on 1-4-1995 at 10.30 a.m. and was arrested on the same day and was sent to judicial custody under the orders of the Chief Judicial Magistrate, Gwalior.
6. The petitioners had come up with the case that in the Central Jail Gwalior, [ENTITY] was kept in isolation in a cell which was nearby a condemned cell as he was considered by the Jail Authorities as noisy, filthy and dangerous. In the night of 6th and 7th of April 1995 he had broken open the wall of the cell but could not escape and was locked up in special cell with fetters in his legs. It was claimed that the elder brother of [ENTITY] moved an application on 9-4-1995 indicating that he had a disturbed mental condition requesting the Superintendent, Central Jail, Gwalior, to provide him proper treatment for his mental sickness. In the aforesaid circumstances the Superintendent, Central Jail moved an application before the Chief Judicial Magistrate seeking permission to get [ENTITY] examined in Mental Hospital, Gwalior. It was claimed that the condition of [ENTITY] was deteriorating day by day in Jail in absence of his treatment in Mental Hospital. The petitioners asserted that no medical treatment was provided to deceased [ENTITY] upto 30-5- 1995 in the Mental Hospital, Gwalior by the Jail Authorities. The petitioners further asserted that on 8-6-1995 at about 8.00 p.m. a wireless message was received from the Incharge, Police Station, Inderganj Gwalior by [ENTITY], elder brother of the deceased about his serious illness and his admission in J.A. Group of Hospitals. On receiving the aforesaid message [ENTITY], petitioner No. 1, and her relatives reached the J. A. Group of Hospitals and found [ENTITY] lying unconscious with Oxygen gas fitted at his nose. However, even though he was unconscious he was handcuffed and was tied to his bed. He died there at about 12.15 in the same night on 9th June 1995.
7. The petitioners claimed that in the post-mortem report of the deceased, blood stained fluid discharge from his nose was found. According to the petitioners this showed some internal injury to the deceased prior to his death which confirmed the petitioner's doubt about the unnatural death of deceased [ENTITY].
8. It may be noticed that the assertion that in the Central Jail, Gwalior, [ENTITY], was kept in isolation in a cell which was very near to the condemned cell and that he had been locked up in a special cell with fetters in his legs was based on the news-item published in the daily news papers, '[ENTITY]' and '[ENTITY]' published on 8-4-1995. The fact that petitioner's doubt about the unnatural death of the deceased [ENTITY] on account of his having some internal injury in his body prior to his death as stated in para 6(xi) of the writ petition was based on the inference drawn from the detection of blood stained fluid discharge from the nose of the deceased as indicated in the post-mortem report.
9. The petitioners have raised several grounds in support of the reliefs claimed by them and in ground No. (f) it has been asserted that the absence of medical care and treatment in Mental-hospital for his mental illness and also for keeping him in isolation with fetters and other physical and mental torture in jail from 1-4-1995 to 8-6-1995, had the cumulative effect of causing such serious injury like brain haemorrhage and/or other serious diseases which resulted into his cardio respiratory failure and blood stained fluid discharge from the nose of [ENTITY] categorically established his death to be unnatural. The aforesaid ground is, however, sworn on the basis of legal advice.
10. It is apparent from the perusal of the writ petition that the relief No. (c) seeking a direction requiring the respondents to pay compensation for unnatural and mysterious death of [ENTITY] is founded upon the pleadings contained in paragraph 6(xi) of the Writ Petition and the ground No. (f) is also based on the facts asserted in paragraph 6(xi) of the writ petition and the inference drawn from the post-mortem report dated 9-6- 1995.
11. In opposition to the Writ Petition initially a short counter-affidavit dated 30-10-1995 was filed by the respondents, but later on a detailed counter-affidavit was filed on 25-11-1995. In the counter-affidavit it was asserted that from the date of detention of the deceased [ENTITY] he behaved abnormally and was mentally perturbed and made altercation with other prisoners with the result that he was detained in a separate ward. He also made a torphor in the ward and the wall was damaged. When the brother and the wife of the deceased [ENTITY] came to the Jail to meet the deceased [ENTITY], they were advised to get him enlarged on bail to get him properly treated because he had been arrested and detained in connection with minor offences. But, they refused to get him bailed out on the ground that he disturbed the routine of the whole family and created embarrassing situation for it. It was further asserted that with the permission of the Chief Judicial Magistrate the deceased was provided treatment in the Mental Hospital, Gwalior. The treatment advised by the doctor at the Mental Hospital was provided to the deceased. On 8th June 1995 the deceased had been brought to the Jail Hospital when he was suffering from fever and was vomitting and was given treatment there. He was brought to the Jail Hospital at 6.15 p.m. and taking into account his condition he was referred to J.A. Hospital at 7.00 p.m. where he died at 12.15 a.m. on the 9th June 1995.
12. It was further asserted that several medicines were supplied to the deceased from the hospital. The contesting respondents claimed that the deceased was given proper treatment. In Central Jail, Gwalior, criminal lunatics were also kept for which purpose a mental-ward was functioning there and in fact all the criminal lunatics from all the jails situate in Madhya Pradesh are kept at Gwalior. It was also claimed that proper treatment is given to the indoor patients in the Central Jail, Gwalior, which is run by the specialists of the Mental Hospital accompanied by a Jail doctor. The respondents claimed that proper treatment had been given to the deceased and there was no negligence.
13. So far as the deaths of other lunatic criminals, referred to in paragraph 6(xii) of the writ petition was concerned, it was asserted that these cases were not of suspicious deaths and these persons had died in the Hospital even after full medical care provided to them.
14. On 8-12-1995 while hearing the Writ Petition, the Division Bench of this Court passed an order indicating that it proposed to go into the larger question of improving the conditions in the Jail and hospitals in the State in the matter of treatment of indoor prisoners observing that there had been incidents of such custodial deaths because of the alleged negligence on the part of the jail and medical authorities of the State. It was further observed that a thorough enquiry into the subject was essential and it was proposed to set up an enquiry committee comprising of experts in the subject. For the aforesaid reasons the Division Bench issued notices to the Principal Secretary, Health of the [ENTITY], Principal Secretary, Jails and Secretary to Medical Education, who were directed to be made parties to the petition. The Division Bench also required the Superintendent, J. A. Group of Hospitals to be impleaded as a party in the Writ Petition. The newly added parties were required to submit their returns.
15. On the aforesaid date the Superintendent, Central Jail, Gwalior, had filed a separate return denying the allegations of the petitioners. It was asserted that the petitioner knew that the deceased [ENTITY] was leading a life of a disturbed mind and they themselves wanted to get rid of him. It was pointed out that initially [ENTITY] was kept in a cell and since he had broken open a wall he had been shifted to another cell. It was categorically denied that [ENTITY] had been put in fetters. It was also asserted that on account of safety purposes he had been lodged in another cell. The Superintendent asserted that he had advised the wife of [ENTITY] and his elder brother to get [ENTITY] released on bail since he had been lodged in Jail in connection with minor offences, but both of them had refused to do so indicating that [ENTITY] was of perturbed mind and he had disturbed the peace of the entire family and he should be sent for treatment in the Jail itself. No steps were taken to get him released on bail. It was indicated that however the deceased was provided medical treatment not only by the Jail doctor but also at the Mental Hospital, Gwalior. On 8-6-1995 at 6.00 p.m. the deceased was found suffering from high fever and he was attended to by the Jail Doctor and given medical treatment and later on he was shifted to J. A. Group of Hospital. At the J. A. Hospital the deceased was treated by the doctors and on receiving information from the security guard accompanying the deceased another Warder was sent to J. A. Hospital, who took the prescription from the doctor and brought the medicines from the market which were administered to the deceased. But, he died in spite of best efforts to save him.
16. So far as the other prisoners referred to in the Writ Petition were concerned, the Superintendent, Central Jail, in his return gave details indicating that all of them had been given proper medical treatment. [ENTITY] had died on 10-7-1995 in the J. A. Hospital. [ENTITY] had been admitted in the J. A. Hospital on 15-6-1995 and died there on 18-6-1995. [ENTITY] also died in the J. A. Hospital on 15-6-1995. [ENTITY] son of [ENTITY] had also died in the Jail Hospital on 18-9-1995. The Superintendent, Central Jail, in his return had asserted that none of the aforesaid prisoners had died because of the negligence or otherwise on the part of the answering respondent and were provided best medical treatment as was possible by the Jail Authorities in the situation in which, they stood placed.
17. The Joint Director of the J. A. Group of Hospitals filed his return on 4-1-1996 denying the claim of the petitioners. He had stated that the deceased was given the treatment as indicated in'the Treatment-card as well as the case-sheet by the Competent doctors available in the J. A. Group of Hospitals. In his return it was pointed out that so far as the few medicines which were not immediately available in the Hospital a slip was given to the attendant to bring those medicines which were required immediately and urgently for the treatment of the patient, [ENTITY]. The attendant had expressed his inability to leave the patient and to bring the medicines. Thereafter, the requisite medicines were given to the patient by the attending doctors without any loss of time and despite best and sincere efforts made and all possible measures taken by the doctors treating the patient [ENTITY], the patient could not be saved and died at about 12.00 p.m. on 9-6-1995.
18. In his return the Doctor asserted that there had not been any negligence or slackness on the part of either the hospital authorities or the doctors attending and treating the patient who had made all efforts sincerely and taken all possible measures for saving the life of the patient.
19. The Principal Secretary, Jail Department, Government of Madhya Pradesh, filed a separate return on 29-1-1996. In this return the stand taken by the Superintendent, Central Jail, has been reiterated asserting that there had not been any slackness or lethargy on the part of the Jail Authorities in sending the deceased to J. A. Hospital for treatment and they had shown promptness and provided the medicines at the cost of the State. So far as the other deaths of prisoners in custody referred to in the writ petition, it was asserted that their cases had been scrutinised in Magisterial enquiries wherein none of the Jail staff was found negligent.
20. The learned counsel for the petitioners has strenuously urged that the petitioners, who are the dependents of the deceased [ENTITY], are entitled to compensation for his unnatural, untimely and mysterious death on account of the negligence of the respondents in providing proper food, clothes, medical facilities and other amenities to the deceased who would not have met his premature early death had he been provided proper medical care and treatment for his mental illness.
21. The respondents in the present case include the [ENTITY] as well as its officers. The claim of the petitioners in regard to the payment of compensation on account of the death of [ENTITY], who was lodged in the Central Jail as an undertrial, is based on the alleged negligence on the part of the respondents, State and its officers. The contention of the learned counsel for the petitioners is that on the facts asserted in the Writ Petition and the materials and evidence brought on record the liability for the payment of compensation stands fastened not only on the State but also on the other respondents.
22. Generally, relief under [SECTION] of the [ACT] should not be refused purely on technical grounds. The aforesaid Article is couched in comprehensive phraseology and ex facie confers a wide power on the High Court to reach injustice wherever it is found. While, it is true that no limit can be placed upon the exercise of the discretionary jurisdiction envisaged under [SECTION] of the [ACT], yet none the less it must be exercised along recognised lines on sound judicial principles and not arbitrarily. It must be emphasised that in the larger public interest there always exists an element of self ordained restraint.
23. As observed by the Allahabad High Court in its decision in the case of [PRECEDENT], decided by a Division Bench; in spite of the explanation inserted in [SECTION] by the [ACT], the salutary principles enshrined in the [ACT] governing the trial of civil suits may be applied to the proceedings excepting the cases of habeas corpus petitions under [SECTION] of the [ACT]. This decision was followed in a later Division Bench decision of the said Court in the case of [PRECEDENT]. It seems to me that on the reasonings on which various other salutory principles enshrined in the [ACT] governing the trial of Civil Suits had been applied to the proceedings under [SECTION] of the [ACT] excepting the cases of habeas corpus petitions, indicated hereinabove, the principles underlying the provisions contained in [SECTION], [SECTION], [ACT] can be safely applied to the proceedings under [SECTION] of the [ACT].
24. In fact, [SECTION] of the Rules framed by this Court regulating the proceedings under [SECTION] of the [ACT] read with the Form prescribed thereunder clearly indicates that the writ petition must contain a concise statement of facts in chronological order in separate paragraphs and the grounds on which the reliefs are claimed and as envisaged under [SECTION] of the said Rules all questions of facts arising for determination are to be decided ordinarily upon affidavits providing that the Court may direct that such other evidence be taken as it may deem fit. Of course, as provided under [SECTION] of the aforesaid Rules, if the Court at any time finds that the facts furnished are insufficient or further and better particulars of any matter shall be furnished, the Court may, of its own motion, or on the application of any party, order any party to furnish such facts or particulars supported by an affidavit.
25. It, is, therefore, abundantly clear that in a writ petition the petitioner is required to set out all the material facts clearly on the basis whereof the relief is sought and that the Court is required to decide the question which arises for determination in the case. Obviously, the emphasis is on the questions which arise in the case for determination taking into account the pleadings of the parties in regard to material facts.
26. A distinction must be made between omission to state material facts and omission to give full particulars. If material facts are omitted, a party should not be allowed to raise a contention on a particular point even if, some materials are available in the evidence. If on the other hand material facts have been pleaded but full particulars have not been given the Court may permit the points to be raised on the basis of the evidence unless the opposite party is thereby materially prejudiced. The first obviously relate to a question of jurisdiction and the second to one of procedure.
27. It is settled law that though liberal consideration to the pleadings is to be given so as to allow any question to be raised and discussed covered thereunder yet a petitioner cannot be deemed to be entitled to a relief upon the facts and evidence, neither stated nor referred to in the pleadings relied upon. It was observed by the Privy Council in the case of [PRECEDENT] that where a claim has never been made no amount of evidence can be looked into upon a plea which was never put forward. A decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. It should, however, not be lost sight of that consideration of form cannot override the legitimate consideration of substance. If a plea is not specifically made and yet it is covered by an issue by implication and the parties know that said plea was involved, in that event, the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence.
28. 'Liability' is normally grounded on some finding of fault or wrong in addition to a finding of responsibility for some occurrence. According to [ENTITY]'s Law Dictionary 'liability is the state of being bound or obliged in law or justice. [ENTITY]'s Law Dictionary defines 'liability' as the state of being bound or obliged in law or justice to do, pay or make good something, legal responsibility. In Black's Law Dictionary the expression 'liability' has been indicated to denote 'every kind of legal obligation, responsibility, or duty, the state of being bound or obliged in law or justice to do, pay, or make good something; the state of one who is bound in law and justice to do something which may be enforced by action'.
29. If the conduct is in violation of some legal rules a wrong is born and there is no wrong if the conduct falls within the legal definition of justifiable conduct. A decision of legal liability implies the existence of applicable legal standards or legal rules and holding a party liable is a response justified by some fault or wrong. Liability may be imposed as a legal consequence of a person's act or his omission if he is under a legal duty to act. Liability may also be imposed upon one as a consequence of an act or omission of another person with whom he stands in some special relationship who is notionally known as vicariously liable.
30. A perusal of the writ petition indicates that the petitioners have not asserted the material facts in regard to either the want of competent care and skill in providing medical help or establishing the necessary connection or nexus between the negligence of the respondents and the ultimate death of the patient. The respondents have denied their liability which is sought to be saddled upon them. When a negative fact has to be proved the party can be expected to do nothing more than to substantiate his allegations prima facie. The onus thereafter shifts on other side to prove positively his assertion. However, the rule that burden rests on the persons who makes an affirmative allegation is always not a true test. There are many exceptions to this proposition. The burden also rests on a person who has a negative assertion to make. The amount of evidence required to shift the burden, however, depends on the circumstances of each case. The Apex Court in its decision in the case of [PRECEDENT] had pointed out that there is an essential distinction between the phrase, burden of proof, as a matter of law and pleading and as a matter of adducing evidence. Their Lordships have stated that under [SECTION] of the [ACT], the burden in the former sense is upon the party who comes to Court to get a decision on the existence of certain facts which he asserts and that burden is constant throughout but the burden of proof in the sense of adducing evidence shifts from time to time having regard to the evidence adduced by one party or the other or the presumption of fact or law raised in favour of one or the other.
31. In the present case, the petitioners have claimed damages for the alleged negligence on the part of the State as well as the public officers. It was for the petitioners to establish first that there had been a want of competent care and skill on the part of the respondents to such an extent so as to lead to a bad result. There must be direct nexus between the death of a person and the negligent act. The necessary connection between the negligence of the respondents and the ultimate death of the patient had to be established. It seems to me that it is not enough to saddle the respondents with the liability on the supposition that some medical man of far greater experience might have used greater degree of skill or some greater degree of care. The real test is whether there has been a want of competent care and skill to such an extent as to lead to a bad result.
32. It must not be lost sight of that care is a matter of degree, but it is difficult to define the precise legal standard of care required in all cases of negligence. The standard of care then is a question of fact depending upon the circumstances of each case. In determining this standard what has to be considered is as to how a reasonable and prudent man would behave under given circumstances. Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs will do or doing something which a prudent and reasonable man would not do. In the realm of negligence rigid rules give right to avoidable injustice. The degree of competent care and skill therefore by which the respondents are to be judged has to be such as may be reasonably expected from an average person in his profession and from any person specially gifted or qualified. The burden of proving negligence rests upon the person who asserts it. In medical negligence cases it is for the patient to establish his case against the medical man and not for the medical man to prove that he acted with sufficient care and skill. In all cases the facts proved must be sufficiently compelling to give rise to an inference of negligence. A mere conjecture will be insufficient. No human being is infallible and in the present state of science even the most eminent specialist may be at fault in detecting the true nature of the disease condition. A case of serious fault where the diagnosis of the disease was palpably wrong has to lead to an irresistible conclusion about negligence being committed. That is to say if the mistake is of such nature that has to imply absence of reasonable skill and care regard having had to the ordinary level of skill in the profession, a medical man may be guilty of negligence if he fails to attend to his patient with regularity and promptitude which his patient's condition demands, but he can only be held liable if his lack of attention leads to an avoidable deterioration of the patient's condition.
33. In the facts and circumstances of the present case, as indicated hereinabove, it was for the petitioners to establish first that there had been a want of competent care and skill on the part of the respondents to such an extent as to lead to the death of [ENTITY]. The necessary connection between the negligence of the respondents and the ultimate death of [ENTITY], had to be established. The petitioners had further to establish that a duty stood cast on the respondents, the breach of which was a legal cause of the damage complained of. It is easy to become wise after the fault and to condemn as negligence which may only be a misadventure or a vis-major.
34. It is, therefore, obvious that in the absence of requisite pleadings in regard to material facts no roving inquiry could be made in the present proceedings under [SECTION] of the [ACT]. It was incumbent on the petitioners to make specific pleadings before expecting this Court to enter into the question in regard to the liability with which the respondents were sought to be saddled with. A party cannot be allowed to rely on mere hypothetical state of facts or inference where the question is in regard to saddling the State or public officers with the liability to pay compensation for the alleged culpable negligence which is claimed to have resulted in the death of a citizen.
35. In the facts and circumstances of the case the petitioners had to establish by cogent proof that the death of [ENTITY] could be attributed to be negligent act or some negligent omission on the part of the respondents. If the material facts in this regard are neither pleaded nor proved the petition has to fail so far as the relief of compensation is concerned.
36. Even if in the absence of direct proof the circumstances which are established are equally consistent with the allegation of the plaintiff as with the denial of the defendants, the plaintiff again fails, for the very simple reason that the plaintiff is bound to establish the affirmative of the proposition; 'Ei qui affirmat non ei qui negat incumbit probatio' which indicates that if the evidence establishes only that the accident was possibly due to the negligence to which the plaintiffs seek to assign it, their case is not proved. To justify the verdict which they wish to obtain the evidence must be such that the attribution of the negligence to that cause may reasonably be inferred. If a case such as this is left in the position that nothing has been proved to render more probable any one of two or more theories of the incident, then the petitioner has to be taken to have failed to discharge the burden of proof stood cast upon him. In such a situation, it is obvious that he leaves the case in equilibrium, and the Court is not entitled to incline the balance one way or the other.
37. Sentiment is a dangerous will of the Wisp. The Court should not be carried away by any sympathy for the party in such cases as yielding to instinct will tend to ignore the cold logic of law. It should be remembered that the law is the embodiment of all wisdom. Disregardful of law, however, hard, the case may be it should not be done.
38. It may further be noticed that the petitioners have come up with a very grave charge of negligence against the respondents in regard to non- providing of medical care attributing the death to such a negligence. With the best will in the world, sometimes things go amiss in medical treatment. A doctor cannot be held negligent simply because something went wrong. He cannot be held liable for mischance or misadventure or for an error of judgment. The liability can be fastened in case medical care provided is proved to fall below the standard of reasonable competent medical practitioner in his field so much so that his conduct might be deserving censor or is inexcusable. It was for the petitioners to give evidence of fact on which they based their claim for the relief in regard to the compensation. It had to be established that on the balance of probability the most likely cause of the death was the negligence on the part of the respondents and not the negligence of any other person. Further, the facts proved must be sufficiently compelling to give rise to an inference of negligence; a mere conjecture will be insufficient. In the circumstances, therefore, even if on the balance of probabilities it can be indicated that there was a breach of duty on the part of the respondents, the petitioners could not succeed. If, on the other hand, the facts proved only bring out a position of the petitioners being able to say no more than that 'a possible explanation is that the respondents failed in their duty' but the materials brought on record do not indicate that it was a more probable cause of the misbeing than any other in that event also the negligence cannot be taken to have been established as the case cannot be deemed to have passed from the realm of conjecture to that of legal inference.
39. The State has been regarded as a legal person having a distinct personality and will of its own. As a legal person it creates and possesses rights and obligations which are quite distinct from those people constituting it. A remedy of damages, however, is not available for every breach of statutory duty. A distinction must be drawn between 'faute-de-service' (service fault) and Jaute personnelle' (personal fault). There is 'faulte personnelle' where the servant or employee acts with the intention of satisfying his own interest and when also he acts without any interest in his service and has been lazy or very imprudent. However, serious fault (faute lourda) is held to be necessary when task of the public service is particularly difficult and delicate like hospital service or police service to render the State liable. Serious fault must be established to saddle the State with liability on account of injury, serious or fatal, sustained by a patient.
40. If the State action results in individual damage to a particular citizen, the State has to provide redress whether or not there is a fault committed by the public officers concerned. The State in such matters is an insurer of what is often called an essential risk. If the impugned act is not referable to any delegation of sovereign power the State would be liable for the tortious act committed by a public servant in discharging its official function or in the course of his employment. The State is not immune from the liability merely because the act complained of may have been done in exercise of governmental power. The State is liable for the tortious act of its servants in that circumstance, that makes the relation between the State and that of servant indentical with the circumstances of private employment. However, unless it is shown that the employee was acting in exercise of sovereign power delegated to him by some law or rule and was doing something which could not be done by a private individual the State cannot claim immunity. The mere fact that the act may or may not have been done in a course of governmental activity is inconclusive. In deciding whether a particular act was done by a Government servant in discharge of a sovereign power delegated to him the proper test is whether it was necessary for the State for the proper discharge of its sovereign functions to have the act done through its own employee rather than through a private agency.
41. It may be noticed that in the garb of collective responsibility the public servants take undue advantage by moving leisurely and in careless manner. The public servant should be held personally liable where State exchequer suffers loss on account of their negligence in discharge of their functions as a public servant. The Apex Court in its decision in the case of [PRECEDENT], pointed out that public officers are accountable for their negligence and misfeasance if they commit negligence in the discharge of their official duties. The concept of State immunity is diluted and the public servants may be held liable for the damages for the malicious deliberate and injurious wrong doing. Behaving in a careless manner may amount to malicious abuse of power. However, with the change in the Socio economic outlook in our democratic set up, the public servants are expected to be more attentive to their onerous duties which they must discharge diligently. In a democratic set up the functions of a government is to extend all possible facilities to its citizen and that is why the State is known as a Welfare State.
42. This Court in its decision in the case of The [PRECEDENT] at page 168 had clarified that the socio-economic and welfare activities stand on a different footing and are not included in the traditional sovereign functions. It was further pointed out that the work of medical relief undertaken by the State is not a sovereign function in the traditional sense. In this view of the matter it not being a sovereign function the State cannot claim immunity.
43. Compensation for violation of fundamental rights can be allowed in exceptional cases while exercising the extraordinary jurisdiction under [SECTION] of the [ACT] and normally the party aggrieved ought to seek his remedy by a suit in the Civil Court. In the case in hand the materials on the record indicate that [ENTITY] had been provided the requisite treatment not only in the mental ward of the Central Jail, but also in the Mental Hospital, Gwalior. The Jail doctor had also been attending the deceased. In the J. A. Group of Hospitals, as has already been noticed hereinabove, he had been provided the medical care and provided the medicines. The material facts establishing the nexus of the negligence with the ultimate death have not been pleaded at all and the assertion of negligence is based on inference. The aforesaid inference does not appear to have passed from the realm to conjecture to that of legal inference, so as to fasten the liability in regard to the death in question on the respondents.
44. The learned counsel for the petitioners has placed strong reliance on the decisions in the case of [PRECEDENT] and on the decision in the case of [PRECEDENT]. They have further relied on the decision of [PRECEDENT], a decision in the case of [PRECEDENT], and on the case of [PRECEDENT]., reported in 1995 ACJ 859.
45. Considering the pleadings in the present case and the facts and circumstances brought on record the ratio of the aforesaid decisions, is not at all attracted. Similar is the situation in regard to the decision relied upon by the petitioners in the case of [PRECEDENT], [PRECEDENT] and in the case of [PRECEDENT]. The petitioners cannot derive any advantage out of the observations made in the aforesaid decisions. Considering the peculiar facts and circumstances of the present case they cannot come to their rescue.
46. It must be emphasised that it is no more open to doubt that the convicts or undertrials are not wholly denuded of their fundamental rights. It is the duty of the State to take effective steps to protect the guaranteed constitutional rights such as right to life, liberty, pollution free air and water and the State must take effective steps to safeguard the constitutional rights of a citizen by enacting laws ensuring the constitutional rights of our people relating to life, liberty as well as safety of environment and ecology to enable the people to live a healthy and clean life. The State has to ensure that the conditions of prisoners conform to certain minimum standard, maintenance, health, hygiene, institutional treatment and discipline and for taking corrective action as may be found necessary. The claims for compensation for excesses and negligence on the part of the administration resulting in the negation of personal liberty have become increasingly common in India. There may be a case where refusal to pass an order of compensation to a victim will be doing 'mere lip service' to his fundamental right and liberty which the State Government is claimed to have grossly violated. As has been indicated by the Apex Court on more than one occasion one of the telling ways in which the violation of the right can reasonably be prevented and due compliance with the mandate of [SECTION] secured, is to mulct its violaters in the payment of monetary compensation.
47. The question as to whether a person whose fundamental rights have been violated by the wrongful acts of State servants is entitled to compensation had surfaced in the case of [PRECEDENT] (supra), wherein it was held that the State cannot disown the responsibility which stands fastened upon it under the law. Even in the decision in the case of [PRECEDENT] writ jurisdiction had been utilised for awarding compensation for the death of the victim on account of police atrocities. Similarly, in the decision in the case of Peoples' Union for Democratic Rights through its [PRECEDENT], decided on 13-1-1989, cited in [PRECEDENT] at page 516, the State was found liable to pay compensation where the victim had been taken to police station for doing some work and on demand for wages was severely beaten and ultimately succumbed to the injuries, it was found that the State was liable to pay compensation. In another decision in the Case of [PRECEDENT], the Apex Court had held that the State was liable to pay compensation in case of death due to police atrocities.
48. Apart from the relief relating to payment of compensation for the alleged unnatural and mysterious death of [ENTITY] the petitioners had also prayed for a direction requiring thorough probe by an independent agency into the whole affairs of Central Jail Gwalior including high corruption amongst the Jail Authorities and non or less supply of food, clothes and medical facilities to the prisoners, further seeking prosecution of the responsible Jail Authorities for unnatural death of the prisoners kept in custody. They had also prayed for a direction requiring the respondents not to keep in isolation or in solitary confinement with fetters any prisoner. The aforesaid reliefs were founded on the allegations made in paragraph 6(xii) of the Writ Petition. In this paragraph what has been asserted is that there were other prisoners apart from [ENTITY] who had died recently under similar mysterious condition. Some of which were [ENTITY] son of [ENTITY], [ENTITY] son of [ENTITY], [ENTITY] son of [ENTITY] and [ENTITY] of Shivpuri, who were undertrial prisoners. The aforesaid assertion in regard to [ENTITY] was based on the news item published in [ENTITY] dated 8-7-1995, 11-7-1995, 16-9-1995 and 17-6-1995. Deaths of the aforesaid underfrials was asserted to have been caused due to non- providing of proper food, clothes, medical facilities and other amenities as per Jail Manual by the Authorities of Central Jail, Gwalior. The aforesaid assertions were based on a news item published in [ENTITY] dated 17- 7-1995 and [ENTITY] dated 11-9-1995.
49. So far as this aspect is concerned the petitioners claimed this part of the writ petition to be a public interest litigation. This Court as had already been noticed hereinabove vide its order dated 8-12-1995 had proposed to go into a larger question of improving the conditions in Jails and Hospitals of the State in the matter of treatment of indoor prisoners observing that a thorough enquiry into the subject was essential.
50. It may be further noticed in the aforesaid connection that the reliefs indicated hereinabove were based solely on the assertions made by the petitioners in paragraph 6(xii) of the Writ Petition relying upon certain news items published in daily news papers. The news items published in daily news papers cannot ex facie be taken to be of such authenticity which may warrant initiation of an action in the proceedings under [SECTION] of the [ACT]. As pointed out by the Apex Court in its decision in the case of [PRECEDENT], it is only when Courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. It was further pointed out by the Apex Court that the public interest litigation is an instrument for the administration of justice to be used properly in proper cases and a challenge and an opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social, economic and political justice which is the signature tune of our [ACT]. It was also emphasised that all communications and petitions involving the jurisdiction of the Court, must be addressed to the entire Court, that is to say, the Chief Justice and his companion judges.
51. In the aforesaid view of the matter it was incumbent on the petitioners, in case they intended this part of the Writ Petition to be a public interest litigation to come up and plead the material facts with supportive evidence which could prima facie justify taking of an action in the proceedings under [SECTION] of the [ACT]. The pleadings relating to the material facts in this regard are totally lacking in the writ petition and the assertions made are based on mere inferences. It would not have been wise exercise of discretion to entertain this type of public interest litigation, with such vague allegations based on unauthentic news paper reports without any reliable supportive evidence. However, pursuant to the order passed by the Division Bench, referred to hereinabove, and other interim directions, the State Government held a Magisterial enquiry in regard to the various deaths of the undertrials wherein it was found that the death had not occurred on account of any negligence or on account of the grounds as alleged. A specialists committee was, however, constituted to make inquiry in regard to the improvements in the matter relating to providing of medical aid and every facilities. The Chief Secretary, Government of Madhya Pradesh filed an application which was duly supported by his affidavit indicating that the High Level Committee had submitted their reports and requisite arrangements as were recommended relating to the treatment of the prisoners etc. had been made. The circulars have been issued by the State Government for making all facilities to the prisoners in the jails and for their treatments outside the jail more effectively. The delay in carrying the ailing prisoners for proper treatment to hospitals other than the jail hospital have been curtailed. It has been provided that an amount of Rs. 5,000/- would be left under the control of Jail Superintendent to meet the emergency situations. This amount would be in addition to the fund already provided under the contingency head. The Magisterial enquiry had been held to the facts were fresh and much time had been lapsed. Jail Authorities were not found to be negligent and were not reported responsible for the deaths in question. The deaths complained of were found to have resulted due to ailment which could not be controlled despite the requisite treatment.
52. It may be noticed that the provisions contained in the [ACT] read with the provisions contained in the [ACT] amply secure the supply of the food, clothes and bedding to civil convicts and criminal prisoners as well as providing of the medical care to them. These provisions contained in the Act and the Rules do not merely regulate the conduct of the prisoners but also cast upon the State the duties in regard to the matters relating to providing of proper medical care and supply of food, clothes, bed etc. There is no specific pleadings in regard to the non- compliance of the provisions contained in the aforesaid Act and the Rules framed thereunder. In any view of the matter taking into consideration the action taken by the State Government as reported by the Chief Secretary in his application and the affidavit referred to hereinabove, no further direction is called for.
53. Considering the facts and circumstances as brought on record and the conclusions indicated hereinabove, if the matter is viewed from the aforesaid angle, that being the only view possible, I find no difficulty in dismissing the writ petition which is accordingly dismissed.
54. There shall, however, be no order as to costs.