IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.383 of 2006 SMT.PREMSHILA DEVI, WIFE OF LATE SUNIL KUMAR, RESIDENT OF MOHALLA- QR. NO. 273, DEFENCE COLONY, KANKARBAGH, DISTRICT- PATNA :--- PETITIONER. Versus THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, OLD SECRETARIAT, PATNA. 2. HOME SECRETARY, OLD SECRETARIAT, PATNA (BIHAR) 3. SUPERINTENDENT OF JAIL, BEUR JAIL, PATNA….RESPONDENTS. --------- For the petitioner : Mr. Ajay Kumar Singh, Advocate. For the State : Mr. Anjani Kumar, A.A.G.-10 Mr. Shailendra Kumar Singh, A.C. to A.A.G.-10. ====== 11. 26.04.2011. Heard learned counsel for the petitioner and the State. 2. Petitioner is the wife of late Sunil Kumar who was taken in custody on 20th October, 1997 in connection with Kankarbagh P.S.Case No. 428 of 1997 for the offence under Section 395 of the Penal Code. While in custody Sunil Kumar left for his heavenly abode on 01.12.2000. This writ petition was filed on 10.01.2006 by his wife praying, inter alia, to direct the State- respondents to pay compensation as his death was preceded by utter neglect of the jail authorities from the date of his admission i.e. 20.10.1997 till 18.11.2000, during the said period he was never attended to by the jail doctor and others incharge of the prison and suffered tuberculosis. 2 3. Aforesaid prayer is being refuted by the State-respondents by filing counter affidavit and supplementary counter affidavit placing on record the prescription of the jail doctor dated 18.11.2000 and further steps taken in the light of the advice rendered by the jail doctor from 18.11.2000 till the date of death i.e. 01.12.2000. In this connection it is also submitted that Sunil Kumar was examined by the jail doctor on 18.11.2000 who found him weak, restless, suffering from cough, breathlessness as also addicted to smack. When his condition did not improve, he was again examined on 22.11.2000 by the jail doctor who directed the jail authorities to subject Sunil Kumar to undergo X-Ray, E.S.R. test at Patna Medical College Hospital. In the light of the direction of the jail doctor, Superintendent of Beur Jail under petition dated 22.11.2000 requested the court concerned for his treatment at P.M.C.H. In response whereto the learned Magistrate passed order dated 23.11.2000 granting permission for treatment of Sunil Kumar at P.M.C.H. In the light of the permission granted by the court concerned request was made under Letter No. 4418 dated 27.11.2000 to the Senior Superintendent of Police, Patna to shift Sunil Kumar to P.M.C.H. but as escort was not made available, he could not be shifted to P.M.C.H. and ultimately died on 01.12.2000 at Beur Jail. After the death of Sunil Kumar U.D. Case No. 4135/2000 dated 01.12.2000 was registered and inquest-report was 3 prepared by Sri Dinesh Kumar Singh, A.S.I. on 02.12.2000 at 12.30 P.M. The inquest-report has also been countersigned by the Executive Magistrate with endorsement that the report in regard to the cause of death shall be submitted after receipt of the post mortem report. The post mortem on the dead body of Sunil Kumar was performed on 02.12.2000 by Dr. Arvind Kumar Singh, Assistant Professor, Department of Forensic Medicine, P.M.C.H., Patna. Having performed the post mortem the dead body of Sunil Kumar was handed over to the petitioner on 02.12.2000 itself vide receipt, Annexure-G to the counter affidavit. Having delivered the dead body to the petitioner information was also given to the court concerned and to substantiate the fact that the information was given to the court concerned reliance is placed on the order-sheet of Sessions Trial No. 1107 of 1998 of the court of Sessions Judge, Patna. Perusal of the order dated 15.01.2001, however, indicates that records of the said sessions trial was transferred to Assistant Sessions Judge-I, Patna but information about the death of Sunil Kumar was given to Additional Sessions Judge- VIII, Patna under letter dated 20.12. The Year in which the said letter is said to have been issued is not stated in the letter. Close perusal of the letter, however, indicates that the said letter was signed by the Superintendent, Beur Jail on 06.12. but issued on 20.12. without indicating the year in which the same is being issued. 4 Sunil Kumar was also accused in connection with Kadamkuan P.S.Case No. 343 of 1997 which was pending in the court of Judicial Magistrate at the time of his death. After the death of Sunil Kumar information was given by his pairvikar on 05.01.2001 to the court concerned that Sunil Kumar has left for his heavenly abode whereafter report was sought from the Superintendent of Beur Jail under orders dated 03.02.2001 in response whereto report was received from the Superintendent which was noted by the court concerned on 27.02.2001 that the jail authorities have confirmed the death of Sunil Kumar. 4. Counsel for the State with reference to the documents i.e. the prescription of Sunil Kumar from 18.11.2000 till the date of his death, Annexure-A the lodging of the U.D. case as also the inquest report and the post mortem report submitted that Sunil Kumar having died on account of lung disease, the case being of natural death, his wife is not entitled for any compensation as prayed for in the writ petition. In support of the aforesaid submission learned State counsel relied on the judgment in the case of Urmila Devi Vs. The State of Bihar & Anr., reported in 2005(4) PLJR 655 and submitted that mere death of a person in the judicial custody itself shall not entitle the dependent to claim compensation unless it is established that death was caused on account of gross negligence, connivance and act of the functionary of the 5 State. Learned counsel for the State also relied on the judgment of the Hon’ble Supreme Court in the case of Sube Singh Vs. State of Haryana & Ors., reported in A.I.R. (2006) SC 1117 paragraphs 20 and 21 and submitted that cases where violation of Article 21 of the Constitution involving custodial death or torture is established or is incontrovertible stand on different footing when compared to cases where such violation is doubtful or not established. According to learned counsel present case is doubtful case of negligence on the part of the prison administration, as such, according to him no compensation should be allowed to the petitioner. 5. True it is that Sunil Kumar who was 25 years old died of lung disease while he was confined in Beur Jail in connection with two criminal cases. Period of his custody in Beur Jail was for more than three years. On the date of his admission in Beur Jail his health condition was satisfactory such presumption is drawn by this Court as at the time of his admission no report has been made that his condition is bad as is required in terms of the provisions of the Prisons Act, 1894, sub- section (2) of Section 24, 37 and Rules 111, 467 and 1142 of the Bihar Jail Manual which inter alia require- every prisoner to be brought before the Medical Officer usually on the morning following his admission and if his health on admission is found not satisfactory then such note has to be made at the time of his admission in the jail register 6 and the physical health/condition of the prisoner to be monitored throughout. Even otherwise the prisoner is to be constantly kept under observation of the Jail authorities including the Medical Officer of the jail so as to watch his condition and if any deterioration in the health of the prisoner is noticed he is to be attended upon by the jail administration even without any request from the inmate as he is under judicial custody i.e. the custody of the jail authorities. Even otherwise the medical condition indicated in the prescription dated 18.11.2000 till the date of death of the husband of the petitioner i.e. 01.12.2000 does not inspire confidence in the Court as any patient of the lung disease who has been advised medicine for tuberculosis for the first time on 18.11.2000 is not likely to die within a span of less than two weeks. Further for the reason that the report on the death of Sunil Kumar does not indicate the date on which Sunil Kumar first complained of illness or observed to be ill. Had Sunil Kumar been subjected to regular medical check-up from the date of his admission in the jail custody his disease would have been noticed by the authorities much earlier and if attended to his demise could have been avoided. There is yet another aspect of the matter which is required to be noticed by me i.e. even after grant of permission by the court concerned for treatment of Sunil Kumar at P.M.C.H. he was never shifted to P.M.C.H. for x-ray of his chest and E.S.R. test. 7 Failure of the jail administration as also the Senior Superintendent of Police, Patna not to make available the necessary force for shifting Sunil Kumar to P.M.C.H. has also contributed to his death. Learned Executive Magistrate while countersigning the inquest report of Sunil Kumar, Annexure-E had undertaken to submit report in regard to the cause of death of Sunil Kumar after receipt of the post mortem report but for reasons best known to the learned Executive Magistrate he did not submit any such report. Perhaps for the reason that there was hardly any record to suggest that Sunil Kumar was subjected to medical examination after the date of his admission until he made complaint of ill health on 18.11.2000. 6. In view of my finding recorded in paragraph 5 above about the negligence of the jail administration in attending on Sunil Kumar during the period of his custody including the report of his health placed before me confirm that Sunil Kumar was medically attended by the jail administration from 18.11.2000 till the date of his death i.e. 01.12.2000. Any patient of lung disease who has contracted tuberculosis is not likely to die within a span of less than two weeks. Had Sunil Kumar been subjected to regular medical check up from the date of his admission, as is required under the Prisons Act, 1894 and the Jail Manual his disease could have been noticed earlier and if attended to his demise could have been 8 avoided. Appreciating the negligence conducted by the jail administration including S.S.P. Patna I am also ignoring the delay caused by the petitioner in filing the writ petition as no third party right has come into play in the meanwhile. Unless any third party right has come to be established the doctrine of laches is not attracted. In view of my findings about negligence recorded above in paragraph 5 as also the young age of the deceased Sunil Kumar I direct the State authorities to pay the petitioner compensation of Rs. 2,50,000/- (Two lac fifty thousand). The compensation amount be paid as early as possible, in any case within a period of two months from the date of receipt/production of a copy of this order before the Home Commissioner, Bihar, Patna. Having paid the compensation amount the State authorities are at liberty to recover the same from the officers of the State who are responsible for the negligence in attending on the deceased Sunil Kumar after initiating a departmental proceeding in accordance with law. 7. The writ petition is, accordingly, allowed. A.F.R./P.K.P. ( V. N. Sinha, J.)