IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6102 of 2006 RAS BIHARI RAM, SON OF BANSHIDHAR RAM, RESIDENT OF VILLAGE KARESUA P.S. DARIGAON, DISTRICT ROHTAS. Versus 1. THE STATE OF BIHAR THROUGH HOME SECRETARY, BIHAR, PATNA. 2. D.G.P., BIHAR, PATNA. 3. SUPERINTENDENT OF POLICE, SASARAM. 4. DISTRICT MAGISTRATE, SASARAM. 5. JAIL SUPERINTENDENT, SASARAM. For the petitioner : M/s Mithilesh Kumar, Raghunandan Kr. Singh, Advocates. For the State : M/s Vinay Kirti Singh, SC-5, Pravin Kr. Verma, Advocates ----------- 08. 17.05.2011 Heard learned counsel for the petitioner and the State. 2. Petitioner is the father of Sanjeet Kumar who died in Sasaram Jail Hospital on 23.4.2003 at 4.30 P.M. while in judicial custody in connection with Sasaram(Darigaon) P.S. Case No.787 of 2002 registered for the offence under Sections 376, 366A, 379/34 of the Penal Code in which Sanjeet Kumar along with his parents was made accused by Rajendra Singh, son of Ram Pyaray Mahto of village Karesua p.s. Darigaon on the allegation that Sanjeet Kumar with the active support and cooperation of his parents eloped with his daughter. In connection with the said case son of the petitioner was taken in custody on 08.01.2003 and remanded to Sasaram Jail where he complained of insomnia (lack of sleep) on 2 10.4.2003 and was admitted in Sasaram Jail Hospital, where he committed suicide on 23.4.2003 at 4.30 P.M. This writ petition has been filed praying inter alia to grant the petitioner adequate compensation as son of the petitioner never committed suicide in Sasaram Jail Hospital but was done to death at the instance of Rajendra Singh with whose daughter Sanjeet Kumar eloped, made accused and remanded to jail custody. It is further submitted on behalf of the petitioner that assertion of the State respondents that son of the petitioner committed suicide has been raised with a view to protect the jail authorities who in collusion with the parents of the girl plotted the murder of the son of the petitioner while he remained in judicial custody. In this connection, it is pointed out that under Memo No.908 dated 23.4.2003, Annexure-A to the counter affidavit filed by Superintendent, District Jail, Sasaram petitioner was called upon to collect the dead body of his son for performing his cremation. While receiving the dead body petitioner refuted the claim of Superintendent, District Jail, Sasaram that his son committed suicide, having performed cremation of his deceased son petitioner 3 approached Sasaram police for lodging First Information Report but the same was not registered, whereafter he filed complaint Case No.376 of 2003 on 28.4.2003 against Rajendra Singh, his brother Raju Singh as also the jail authorities including Chanddeo Yadav constable posted in the Sub-Jail, Sasaram alleging murder of his son by the named accused of the complaint. After receipt of the complaint Chief Judicial Magistrate, Sasaram under order bearing Memo No.192 dated 29.4.2003 forwarded the complaint for being registered as First Information Report in terms of Sub-Section-(3) of Section 156 of the Cr.P.C. by 28.5.2003. It is submitted that the First Information Report in compliance of the aforesaid order of the Chief Judicial Magistrate, Sasaram was registered much belatedly on 17.10.2004 vide Sasaram Mufassil P.S. Case No.564 of 2004 dated 17.10.2004 for the offence under Section 302/120B of the Penal Code against Rajendra Singh, Raju Singh and Chanddeo Yadav, constable posted in Sasaram Sub-Jail. Even after registering the belated First Information Report the police was not proceeding with the investigation in right earnest and petitioner filed protest 4 petition dated 6.11.2004. During the pendency of the aforesaid protest petition final form dated 28.2.2005 was submitted in Sasaram Mufassil P.S. case No.564 of 2004 indicating the allegations to be mistake of fact, whereafter protest petition filed by the petitioner on 6.11.2004 was numbered as Complaint Case No.1244 of 2008. With reference to the final form dated 28.2.2005 coupled with the fact that authorities did not conduct any enquiry as was directed by the District Magistrate, Rohtas under order dated 23.4.2003, Annexure-A in the light of the provisions contained in Sections 176 of the Cr.P.C. this writ petition has been filed praying inter alia to direct the State respondents to pay compensation to the petitioner for the failure of the authorities to proceed with the enquiry, as is required in terms of the provisions of the Cr.P.C. It is submitted that even an under trial prisoner has the constitutional protection under Article 21 of the Constitution which inter alia require that no person including under trial prisoner can be deprived of his right and liberty except by procedure established by law. In the instant case son of the petitioner is said to have committed suicide while in custody in Sasaram Jail 5 Hospital on 23.4.2003 at 4.30 P.M. Enquiry under Section 176 Cr.P.C. should have been conducted by Sri Surya Narayan Singh, Executive Magistrate in compliance of the order dated 23.4.2003, Annexure-A. In the instant, case according to the petitioner no enquiry, whatsoever was conducted by the authorities before informing the petitioner that his son committed suicide on 23.4.2003 at 4.30 P.M. in the toilet of the jail hospital, which is evident from Memo No.908, 912 dated 23.4.2003, 24.4.2003 whereunder the Superintendent, District Jail, Sasaram informed the petitioner and Chairman, National Human Rights Commission, New Delhi, respectively that Sanjeet Kumar son of the petitioner committed suicide while he had gone to toilet to attend the call of nature on 23.4.2003 at 4.45 P.M. According to the petitioner the authorities before writing letter dated 23.4.2003 and transmitting wireless message dated 24.4.2003 concluded that his son committed suicide, although post mortem on the dead body of his son Sanjeet Kumar was also not performed by then, as such, without there being any enquiry or post mortem on the dead body of Sanjeet Kumar the Superintendent, 6 District Jail Sasaram could not have stated under Memo No.908, 912 dated 23.4.2003, 24.4.2003 that Sanjeet Kumar committed suicide. 3. Counsel for the State opposed the prayer with reference to the averments made in the two separate counter affidavit of respondent nos.3 and 5. State counsel, however did not produce the original record of the magisterial, police enquiry in compliance of my order dated 1.4.2011 in spite of several indulgence granted. He only produced Xerox copy certified to be true of the statement of the witnesses examined on 23.4.2003 and other documents maintained in connection with the death of the son of the petitioner by an officer who has signed for Superintendent, District Jail, Sasaram. From the statement of the witnesses it does not appear that the statement was recorded by Sri Surya Narayan Singh, Executive Magistrate appointed to conduct the magisterial enquiry under order dated 23.4.2003 by the District Magistrate, Rohtas, Sasaram. With the counter affidavit of respondent no.3 earlier counter affidavit filed on behalf of respondent no.5 in Cr.W.J.C. No.86 of 2006 has been annexed placing on record Final Report No.20 7 of 2005 dated 28.2.2005 submitted in the criminal case filed by the petitioner alleging murder of his son inside the District Jail Hospital, Sasaram finding that allegation of murder is mistake of fact. Learned counsel for the State further informed this Court that after filing of the aforesaid counter affidavit, Annexure-A in the said criminal writ case petitioner did not pursue the same and allowed the criminal writ petition to be dismissed for default. The apathy of the petitioner towards the criminal writ petition filed by him according to the counsel for the State is a pointer for dismissing the present writ case for compensation, as petitioner having not pursued the allegation of murder to its logical conclusion; he is only interested in extracting money for the unfortunate incident of suicide by his son. With the counter affidavit filed by respondent no.5 the authorities have placed on record the letter bearing Memo No.908 dated 23.4.2003, Annexure-A, whereunder Superintendent, District Jail, Sarasam informed the petitioner that his son committed suicide in the District Jail Hospital, Sasaram on 23.4.2003 at 4.45 P.M. where he was under treatment. Along with counter affidavit of respondent no.5 the order 8 of the District Magistrate, Sasaram bearing Memo No.1320 dated 23.4.2003, Annexure-B has also been annexed, wherefrom it appears that thereunder Sri Surya Narayan Singh, the Executive Magistrate, Sasaram was deputed to conduct the inquest on the dead body of Sanjeet Kumar with further direction to Sri Singh to conduct the magisterial enquiry to confirm whether Sanjeet Kumar committed suicide as has been asserted by the Superintendent, District Jail, Sararam under letter No.910 dated 23.4.2003 referred to in the said order. Annexure-C appended with the said counter affidavit of respondent no.5 is the inquest report of Sanjeet Kumar drawn by Sri Surya Narayan Singh, the Executive Magistrate who in compliance of the order of the District Magistrate dated 23.4.2003, Annexure-B held inquest on the dead body of Sanjeet Kumar. Perusal of the inquest report indicate that in column nos.8, 9 of the inquest report learned magistrate stated that he was informed that deceased committed suicide. While holding inquest duty is cast on the Magistrate to indicate in columns 5, 8 and 9 of the inquest report the apparent cause of death of the deceased. In the instant case, Sri Surya Narayan Singh, 9 Executive Magistrate has not recorded of his own in the inquest report that deceased Sanjeet Kumar committed suicide. Annexure-D to the said counter affidavit is the Letter No.3006 dated 24.9.2003 of the Deputy Collector, Confidential Section, Rohtas, Sasaram, whereunder the Deputy Collector in response to the letter of the Superintendent, District Jail, Sasaram bearing no.2629 dated 7.9.2003 forwarded the report of the magisterial enquiry dated 28.6.2003 to the Superintendent, District Jail, Sasaram for being forwarded to the National Human Rights Commission, New Delhi. The magisterial enquiry report enclosed with letter dated 24.9.2003 is bearing Memo No.17 dated 28.6.2003, author whereof is Sri Saligram Sah, Executive Magistrate, Sasaram who conducted enquiry to confirm the nature of death of Sanjeet Kumar in compliance of the order of the District Magistrate, Sasaram contained in Letter No.1716/C dated 2.6.2003. 4. Perusal of the said report dated 28.6.2003 indicate that Enquiry Magistrate examined under trial prisoners, namely, M/s Babu Lal Ram, Brij Bihari Singh, Baban Choudhary, Constable on duty Chalbali Singh 10 who claimed that they were present at the relevant time in the District Jail Hospital, Sasaram. Besides the aforesaid under trial, constable the Enquiry Magistrate also examined the Jailor, Sub-Jailor of the District Jail, Sasaram. Petitioner was also examined during the enquiry but at his village home. The Enquiry Magistrate also perused the inquest, post mortem report of the deceased. In the light of the oral testimony of the aforesaid under trial prisoners, constable on duty, Jailor, Sub-Jailor, Enquiry Magistrate found that Sanjeet Kumar committed suicide in the toilet, which was confirmed by almost all the prisoners present in the District Jail Hospital. In this connection, Enquiry Magistrate also stated in the report that Sanjeet Kumar was suffering from mental depression and on account of ill health was admitted in the Jail Hospital. In paragraph-2 of the report the Enquiry Magistrate found that father and mother of Sanjeet Kumar were also made accused in the criminal case but they were released on bail. The prayer for grant of bail to Sanjeet Kumar having been refused, he was not likely to get bail in near future. In paragraph-3 the Enquiry Magistrate relying on the statement of the 11 witnesses examined by him held that Sanjeet Kumar committed suicide on 23.4.2003 at 4.30 P.M. as he was suffering from mental depression and illness. In paragraph-4 the Enquiry Magistrate held that length of the door frame with which Sanjeet Kumar hanged himself is 6 ¼ feet and the height of Sanjeet Kumar was 5 feet and 5 inches. The witnesses examined during enquiry also informed the Enquiry Magistrate as has been stated in paragraph-4 that near the hanging body of Sanjeet Kumar neither any bucket nor container was found which could have been used by Sanjeet Kumar as a platform to hang himself and commit suicide. As the bucket or container was not found near the dead body of Sanjeet Kumar which could have been used by Sanjeet Kumar to hang himself with the door frame the Enquiry Magistrate raised doubt in the said paragraph as to how Sanjeet Kumar who was 5 feet 5 inches tall could commit suicide by hanging himself with the door frame, height whereof was 6 ¼ feet as the difference between the two i.e. length of the door frame and height of Sanjeet Kumar was only of 10 inches. In paragraph-5 of the report the Enquiry Magistrate quoted extract from the post mortem report of 12 Sanjeet Kumar. In paragraph-6 of the report the Enquiry Magistrate noted the statement of the petitioner that his son did not commit suicide, rather he was killed at the instance of the family members of the girl with whom he had eloped and the murder has been camouflaged as suicide. The Enquiry Magistrate in paragraph-6 appears to have questioned the petitioner about the basis on which he is alleging murder of Sanjeet Kumar at the instance of the family members of the girl with whom he had eloped and concludes that petitioner did not give any satisfactory answer to dispel the conclusion of the Enquiry Magistrate that family members of the girl with whom Sanjeet Kumar had eloped are landless daily wage agricultural labourers. In the light of the statement of the under trial prisoners, jail officials and the petitioner the Enquiry Magistrate raised the following four questions :- (i) How could Sanjeet Kumar commit suicide from such a lesser height ? (ii) What were the reasons which persuaded Sanjeet Kumar to commit suicide ? 13 (iii) None of the 70-80 prisoners admitted in the jail hospital visited the toilet for half an hour during which period Sanjeet Kumar is said to have committed suicide. (iv) None could hear any sound while Sanjeet Kumar was committing suicide. In the last paragraph of the report the Enquiry Magistrate is attempting to find out the reasons for the alleged suicide by Sanjeet Kumar and on the basis of the statement of the under trial prisoners concluded that Sanjeet Kumar was suffering from mental depression and tension, which is the cause for his death. The Enquiry Magistrate at the same time taking note of the unhygienic conditions prevailing in the Jail Hospital states that it was difficult for the 70-80 under trial prisoners admitted in the jail hospital to survive. He is also raising doubt about the bad behaviour of other under trial prisoners towards Sanjeet Kumar which may also be the cause of his depression. Besides the aforesaid report, Annexure-E the 14 post mortem report is also annexed with the counter affidavit, wherefrom it appears that the post mortem on the dead body of Sanjeet Kumar commenced on 24.4.2003 at 11.45 A.M. The cause of death of Sanjeet Kumar is asphyxia caused by hanging. From the bottom of the report it appears that the report was signed by Dr. Ashwini Kumar Sinha and Dr. Kanhai Mahto on 24.4.2003. The report also bears the signature of Dr. Tej Narayan Singh CAS Sadar Hospital but Dr. Tej Narayan Singh has not put any date beneath his signature. The post mortem report has been issued on 24.5.2003. Question which is bothering my mind is that post mortem having been performed and signed on 24.4.2003 why the post mortem report was not issued until 24.5.2003, who was withholding the issue of the report, which was a relevant material for conducting the enquiry as was directed by the District Magistrate under order dated 23.4.2003. Annexure-F to the said counter affidavit is the letter of the Superintendent, District Jail, Sasaram addressed to the Officer-in-charge, Sasaram(Mufassil) police station informing the Officer-in-charge about the suicide committed by Sanjeet Kumar on 23.4.2003 at 15 4.30 P.M. Annexure-G to the said counter affidavit is the petition of complaint case No.376 of 2003 dated 28.4.2003 on which learned Magistrate passed order to refer the said complaint to the Officer-in-charge, Sasaram(Mufassil) police station asking him to register First Information Report in the light of the allegation set out in the complaint petition by 28.5.2003. Annexure-H to the said counter affidavit is the First Information Report of Sasaram(Mufassil) P.S. Case No.564 of 2004 dated 17.10.2004, which was registered on the basis of the allegation set out in the Complaint Case No.376 of 2003 in compliance of the order of the Chief Judicial Magistrate, Sasaram dated 28.4.2003 to register the First Information Report by 28.5.2003. Along with the aforesaid First Information Report final form submitted in the said case dated 28.2.2005 is also enclosed. Annexure-I to the said counter affidavit is the wireless message bearing Memo No.912 dated 24.4.2003 addressed to the Chairman, National Human Rights Commission, New Delhi informing the Commission about the suicide committed by accused Sanjeet Kumar of Darigaon P.S. Case No.787 of 2002 on 23.4.2003 at 16 4.30 P.M. Question which is again coming to my mind is that wireless message was sent to the Chairman, National Human Rights Commission, New Delhi even without obtaining the post mortem report and confirming the fact that Sanjeet Kumar committed suicide. In this connection, I may again point out that the post mortem report is dated 24.5.2003, as such there was no material before the Superintendent, District Jail, Sasaram on the basis of which he could inform the Chairman, National Human Rights Commission on 24.4.2003 that Sanjeet Kumar committed suicide on 23.4.2003. 5. From the documents annexed with the counter affidavit and referred to above, it is evident that according to the authorities, Sanjeet Kumar committed suicide inside Sasaram District Jail Hospital on 23.4.2003 at 4.30 P.M., soon thereafter information about suicide committed by Sanjeet Kumar was given to his father under Letter No.908 dated 23.4.2003 by the Superintendent, Sasaram District Jail, although, till the time of issue of letter dated 23.4.2003 the body of Sanjeet Kumar was not even sent for post mortem which was sent on 24.4.2003 at 6.30 A.M. and no definite/scientific 17 evidence was available to suggest that he committed suicide. The District Magistrate having learnt about the suicide committed by Sanjeet Kumar under letter no.910 dated 23.4.2003 from the Superintendent, District Jail, Sasaram under order bearing Memo No.1320 dated 23.4.2003 directed Sri Surya Narayan Singh, Executive Magistrate to hold inquest on the dead body of Sanjeet Kumar as also to conduct magisterial enquiry to find out the cause of his death. In compliance of the aforesaid direction of the District Magistrate, Sri Surya Narayan Singh held inquest on the dead body of Sanjeet Kumar on 23.4.2003 itself and noted in column nos.8, 9 of the inquest report that he has been informed that Sanjeet Kumar committed suicide by hanging. From the inquest report Annexure-C, it however, does not appear that Sri Surya Narayan Singh the Executive Magistrate having held inquest over the dead body of Sanjeet Kumar recorded any finding of his own that apparent cause of death of Sanjeet Kumar is suicide by hanging. Endorsement made by Surya Narayan Singh in presence of the two witnesses named in column no.8 is that he has been informed that Sanjeet Kumar committed suicide. He 18 has not stated in the said column that having seen the dead body of Sanjeet Kumar he is of the opinion that apparent cause of death of Sanjeet Kumar is suicide caused by hanging. Having performed the inquest Sri Surya Narayan Singh, Executive Magistrate did not proceed to conduct the enquiry as was directed by the District Magistrate under order dated 23.4.2003 and the matter remained pending, meanwhile post mortem report dated 24.5.2003 was received indicating that the post mortem was performed on the dead body of Sanjeet Kumar on 24.4.2003. The post mortem report was signed by two of the three doctors conducting the post mortem on 24.4.2003. Dr. Tej Narayan Singh, Civil Assistant Surgeon who was also one of the three doctors entrusted to conduct post mortem of Sanjeet Kumar has not given any date beneath his signature on the post mortem report which was issued on 24.5.2003 indicating that Sanjeet Kumar died due to Asphyxia caused by hanging. No explanation in any of the counter affidavit has been given as to why the post mortem report was issued on 24.5.2003, although post mortem is said to have been performed on 24.4.2003. When the District Magistrate 19 realized that Sri Surya Narayan Singh, Executive Magistrate is not proceeding with the enquiry to find out the cause of death of Sanjeet Kumar as was directed under order dated 23.4.2003 the District Magistrate is said to have issued order bearing Letter No.1716 dated 2.6.2003 (Confidential) appointing Sri Saligram Sah another Magistrate to conduct enquiry into the cause of death of Sanjeet Kumar. Copy of the order bearing letter No.1716 dated 2.6.2003 (Confidential) appointing Sri Saligram Sah another Executive Magistrate to conduct the enquiry into the cause of death of Sanjeet Kumar has neither been annexed with any of the counter affidavit nor has been produced along with the Xerox copy, certified to be true of the other documents maintained in connection with death of Sanjeet Kumar. I have already analyzed the report of Sri Saligram Sah dated 28.6.2003 in paragraph-4 above. From my analysis of the report, it would appear that Sri Saligram Sah conducted belated, slipshod enquiry to find out the cause of death of Sanjeet Kumar. In paragraphs 4, 6 of the report the Enquiry Magistrate entertained doubt about the cause of death of Sanjeet Kumar as nothing objective was found in the 20 toilet to suggest that he committed suicide. The Enquiry Magistrate did not record the evidence of the witnesses examined during the enquiry. He also did not conduct the enquiry in presence of the petitioner, father of the deceased as he was examined afterwards at his village home. The Xerox copy of the evidence of the witnesses certified to be true produced by the State counsel is the statement/evidence of the witnesses recorded on 23.4.2003 but not by Sri Surya Narayan Singh Executive Magistrate who was authorized to conduct enquiry and record such evidence under order dated 23.4.2003 by the District Magistrate. The statement appears to have been recorded by the Superintendent, District Jail, Sasaram who was not authorized to record the evidence and could not have been used during the magisterial enquiry as the enquiry was being conducted to verify the assertion of the Superintendent that Sanjeet Kumar committed suicide on 23.4.2003 at 4.30 P.M. in the toilet of the jail hospital. Evidence/statement recorded by Sri Saligram Sah, which is the basis of the belated report dated 28.6.2003 has not been produced in spite of repeated indulgence granted to the State counsel. In the circumstances, there is no 21 difficulty for me to conclude that no statement/evidence was at all recorded by Sri Saligram Sah, Executive Magistrate before submitting the belated report dated 28.6.2003. From the report dated 28.6.2003 it is also evident that without even examining the family members of the girl with whom Sanjeet Kumar eloped Sri Saligram Sah, Executive Magistrate has found that the family members of the girl are landless persons and working as daily wage agricultural labourers. For recording such finding no material whatsoever has been referred to by the Executive Magistrate in his report dated 28.6.2003. The manner in which Sri Saligram Sah the Executive Magistrate conducted enquiry and submitted belated report dated 28.6.2003 i.e. after about two months of the death of Sanjeet Kumar does not inspire confidence about the findings recorded in the report. There is yet another aspect of the matter. Enquiry into the assertion of the Superintendent, Sasaram District Jail that Sanjeet Kumar committed suicide should have been conducted in terms of the provisions of Sections 174, 176 of the Cr.P.C. expeditiously, in any case within a reasonable time and such mandate is evident from conjoint reading of the 22 provisions contained in Sections 174, 176 Cr.P.C., which