IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1141 of 2009 MALTI DEVI, Wife of Late Khiladi Singh @ Ganesh Singh, Resident of Village & P.O. Rampur, P.S.- Surajgarha, District-Lakhisarai. …..Appellant/Writ Petitioner. Versus 1. THE STATE OF BIHAR through the Chief Secretary, Government of Bihar, Patna. 2. The Secretary cum Commissioner, Department of Home, Government of Bihar, Patna. 3. The Director General of Police, Government of Bihar, Patna. 4. The Inspector General Prison, Bihar, Patna. 5. The District Magistrate, Lakhisarai. 6. The Superintendent of Police, Lakhisarai. 7. The Superintendent of Jail, Lakhisarai Sub-Jail, Lakhisarai. ….Respondents in the writ petition/Respondents. ----------- Counsel for the Appellant: Mr. Anil Kumar Sinha. Mr. Mritunjay Kumar. Counsel for the Respondents: Mr. Rajesh Kumar-II, G.P.19. ------------ 03. 04.09.2009 Heard learned counsels appearing for the parties. The present appellant had filed C.W.J.C. No. 7507 of 2007 claiming compensation on account of the death of her husband who was kept in Lakhisarai Jail. The learned Single Judge, on the basis of the submission made by the Advocate General that the question relating to custodial death is taken up by the State - 2 - Human Rights Commission, disposed of the writ petition with liberty to the petitioner to approach the State Human Rights Commission. The contention raised in this appeal is to the effect that since the homicidal death of the husband of the appellant, while he was in custody, is not in dispute and the relevant materials were on record, there was no necessity of the learned Single Judge to direct the present appellant to file fresh application before the State Human Rights Commission and she was resultantly entitled to be compensated. Learned counsel for the State has submitted that in the absence of clear materials that there was homicidal death and such death was caused by any of the officials inside the jail, no compensation is required to be paid to the present appellant. Having heard the counsels for the parties and having gone through the materials on record, we are inclined to - 3 - accept the contention of the appellant. It is apparent from the record that when the death occurred the husband of the appellant was admittedly lodged in the jail and death took place while he was in custody. Soon after the death occurred, his post-mortem was conducted by two doctors both belonging to the Government Medical College, Sadar Hospital Munger. The post mortem report indicates as follows:- The following Ante mortem injuries were found on the body of the deceased:- (1) Bruise, reddish in colours found on the front portion of upper part of chest. (2)Bluish discloluration of face was found. Blood clot in the nostrils and on the left side of angle of mouth was found. On Dissection:- (1) Blood and blood clots were found under the tissues born of above mentioned injuries. (2) In the front of neck the left Cornu of hyoid bone was fractured with congestion of the surrounding muscles and vessels. (3) Blood and blood clot was found with laceration of the posterior neck muscle. Fracture of the 2nd cervicle vertebra was found. (4) Cervical Spinal Chord was found lacerated. (5) The recipidial scalp muscles was found lacerated and - 4 - contains blood and blood clots. The brail was found congested. (6) Both lungs were found congested on section. Dark bluish blood was coming out. (7) Right chamber of heart fall and left chamber was empty. All other organs interior were found congested. In our opinion cause of death was due to asphyxia as a result of above mentioned injuries caused by strangulation (Forefall rotation of the neck). No external signs of resistance were found on the body, so, follouis visceras were kept for forem chemical examination (i) slumimuh with its contents (2) Illegible of injuries spleen and kidney and heart & brain. Time elapsed since death- within 24 hours. Sd/- Dr. Bibhuti Bhushan Prasad M.O. Sadar Hospital, Munger. 05.04.2007 Sd/- Dr. Gyan Bhushan M.O. Sadar Hospital, Munger 05.04.2007 From the aforesaid post mortem report there is sufficient evidence to suggest that the death was of the Appellant‟s husband was homicidal in nature. It is also apparent from the report that the hyoid bone was fractured which completely rules out the possibility of suicidal death. In fact, it - 5 - is no where even suggested by the State in the counter-affidavit which was filed before the learned Single Judge that death was anything other than homicidal death. What appears even more suspicious is that despite the unnatural death of the appellant‟s husband no efforts were taken by the Jail Authorities to institute a case. Learned counsel for the State, however, has contended that soon after the occurrence the uncle of the deceased had filed an FIR raising suspicion against the co-villagers of the deceased who were also lodged at the relevant time and such matter is still under investigation. For the purpose of determining the present appeal, we are not concerned as to whether the death was caused by some other co-prisoner or by any excessive and illegal action of any of the Jail officials. The basic fact remains that when the husband of the petitioner was in custody the homicidal death was taken place. The jail authority was to ensure the safety and protection of all the inmates - 6 - and, therefore, there is definitely lapse in the security. If there was an adequate security there would not be any possibility of a prisoner being killed by the co- prisoner. As a matter of fact, in the present case, the State has not come out with a story that the deceased was, in fact, murdered by other co-prisoner. The Jail officials have maintained complete silence in an effort to hush up the matter. As a matter of fact, we find almost under the similar circumstances the Patna High Court has granted compensation in a case where a prisoner was killed by a co-prisoner in the jail. The learned Single Judge has observed on the point of State‟s liability vis-à-vis a prisoner‟s right in Para 10 of the judgment reported in PLJR 2004 (4) 669 which is quoted as below:- “10. Having given my most anxious consideration to the submission advanced, I am not prepared to accept the extreme position taken by the respondents that persons of criminal background, if killed, the State in no circumstance suffer any liability. Article 21 of the Constitution guarantees every - 7 - citizen protection of life and personal liberty except according to procedure established by law and prisoners‟ freedom of movement is curtailed when lodged in jail but such prisoners are not denuded of other freedoms and rights which can be exercised from within the prison bars. Therefore, a person in judicial custody loses his right to life guaranteed under Article 21 of the Constitution. The torture or failure to prevent injury in custody, in my opinion, flouts the basic right of the citizen recognized by the Constitution and is affront to human dignity.” The learned counsel for the appellant has also placed reliance upon the judgment of Supreme Court reported in AIR 1993 SC 1960 where the Supreme Court had occasion to give its observation on the point of custodial death. It was observed in paragraph 33 as follows:- “33. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed - 8 - basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting “compensation” in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making „monetary amends‟ under the public law for the wrong done due to breach of public duty of not protecting the fundamental rights of the citizen. The compensation is in the nature of „exemplary damages‟ awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.” In the present case when we arrive at - 9 - the conclusion that there is no dispute that there was a homicidal death while the husband of the appellant was in custody, the State can not escape its liability by taking a vague plea that the death took place on account of the illegal action of some other prisoners. The next question relates to amount of compensation to be paid under the circumstances. Keeping in view the age of the deceased and background and all the circumstances, we feel payment of compensation of Rs. 5 Lakhs should be adequate. In the circumstances, this amount would be paid by the State Government within a period of sixty days from the date of receipt of the order failing which there shall be an interest @ 10 per cent per annum. Vikash/- (P.K. Misra,CJ.) (Anjana Prakash, J.)