IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5174 of 2006 MD.AKHTAR HUSAIN, SON OF LATE MD. LIYAKAT HUSSAIN, RESIDENT OF VILLAGE SUJA, P.O. SUJA, P.S. MUFFASSIL DISTRICT BEGUSARAI. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, HOME, BIHAR, PATNA. 2. THE I.G.(PRISON), BIHAR, PATNA. 3. THE DISTRICT MAGISTRATE, MONGHYER. 4. THE SUPERINTENDENT OF POLICE, MONGHYER. 5. THE INCHARGE, REMAND HOME (SPECIAL HOME), MONGHYER. For the petitioner : Mr. Asit Kumar Jha, Advocate. For the State : M/s Prashant Pratap, GP-6, Dr. Kumar Binodi Baliar, AC to GP-6, General Rajesh, AC to GP-6, Advocates. ----------- 06. 27.04.2011 Counsel for the State is permitted to correct the description of the post mortem report annexed with the counter affidavit. 2. Heard learned counsel for the petitioner and the State. 3. Petitioner is the maternal grandfather of Md. Alam, son of Md. Queyamul who died on 16.8.2005 while he was under treatment in judicial custody at Sadar Hospital, Munger. This writ petition has been filed praying inter alia to direct the State respondents to pay compensation for the death of Md. Alam. In this connection, it is pointed out that Md. Alam was accused in connection with Sahebpur Kamal P.S. Case No.125 of 2004 dated 26.8.2004 registered 2 for the offence under Section 376 of the Indian Penal Code in which he surrendered on 20.9.2004 and remanded to Begusarai jail. While in custody plea was raised on his behalf that he is a juvenile. Under orders dated 25.2.2005, Md. Alam was declared a juvenile by the Juvenile Justice Board, Munger. On 14.5.2005 he was transferred to Munger Remand Home, where he complained of physical illness on 16.8.2005, was shifted to Munger Sadar Hospital at 4 P.M. and died the same day at 9 P.M. On 17.8.2005 post mortem was conducted on the dead body of Md. Alam whereafter the body was handed over to his father for burial. Under representation dated 24.9.2005, Annexure-3 petitioner informed the Governor, Bihar about the death of his grand son Md. Alam in mysterious circumstances while he was in judicial custody at Remand Home, Munger and requested for grant of compensation. Copy of representation was also sent to the District Judge, District Magistrate, Superintendent of Police, Munger and the I.G. (Prison), Bihar, Patna. Receipt dated 26.9.2005 showing dispatch of representation dated 24.9.2005 to the authorities through courier has also 3 been annexed as Annexure-3 series. When request of the petitioner under representation dated 24.9.2005 for grant of compensation was not considered by the authorities, the present writ application was filed. 4. Prayer made in the writ petition is refuted by the State authorities by filing counter affidavit on behalf of respondent nos.4, 5 and the Jail Superintendent, Begusarai. Respondent no.4 has also filed supplementary counter affidavit. Perusal of counter, supplementary counter affidavit of respondent no.4, the Superintendent of Police, Munger indicates that on 16.8.2005, Md. Alam died during treatment at the Sadar Hospital, Munger whereafter the doctor on duty requested the Officer-in-charge of the police station concerned to do the needful, such endorsement is contained in Annexure-A. The death certificate of Md. Alam indicating that he died on 16.8.2005 is annexed as Annexure-B. Under letter nos.119, 120 dated 16.8.2005 the Incharge of the remand home informed the Officer-in-charge, Munger police station and the Sub-Divisional Magistrate, Munger about the death of Md. Alam during treatment at Munger Sadar 4 Hospital requesting the Officer in Charge and Sub- Divisional Magistrate respectively to hold and depute magistrate for holding inquest on the dead body of Md. Alam. Under order bearing Memo No.1582 dated 17.8.2005 the Sub-Divisional Magistrate deputed Sri Suman Kumar, Assistant Project Officer, Munger to hold inquest on the dead body of Md. Alam. In compliance of the request of the Incharge, Remand Home and the order passed by the Sub-Divisional Magistrate, Munger the inquest on the dead body of Md. Alam was held by the Sub-Inspector, Kotwali police station and the deputed Executive Magistrate on 17.8.2005, copy of the inquest report is dated 17.8.2005. It appears from close perusal of the report, Annexure-D that inquest on the dead body of Md. Alam was held at 7.30 A.M. From the endorsement made in column no.8 and 9 of the inquest report, it appears that apparent cause of death of Md. Alam is illness. The post mortem report of Md. Alam dated 17.8.2005, Annexure-E however, indicates that cause of death could not be ascertained with direction to preserve the Visceras of Md. Alam for chemical examination and 5 analysis. From the counter affidavit of respondent no.5 it further appears that Md. Alam was medically treated on 20.7.2005 for cough and breathlessness. On 31.7.2005 for cough, indigestion and burning sensation. On 2.8.2005 Md. Alam was advised to undergo sputum examination. Sputum of Md. Alam was collected on 9.8.2005 and sent for examination. Sputum report is dated 10.8.2005, wherefrom it appears that the same was found negative. Another sputum report is dated 4.8.2005 and therefrom also it appears that AFB was not found. By filing supplementary counter affidavit the Superintendent of Police, Munger has confirmed that Viscera of Md. Alam was not sent to the Forensic Science Laboratory for chemical examination and analysis as was directed by the doctors conducting post mortem on the dead body of Md. Alam. With the said supplementary counter affidavit the Superintendent of Police, Munger has also annexed the letter from the Deputy Superintendent, Sadar Hospital, Munger bearing no.439 dated 5.5.2006, Annexure-1 whereunder with reference to the bed head ticket of Md. Alam bearing no.2172 dated 16.8.2005 the Deputy Superintendent has 6 stated that Md. Alam was admitted in the Sadar Hospital, Munger on 16.8.2005 in very serious condition and was suffering from Tuberculosis as his right lung was full of fluid and he died on account of pressure on his right lung. Findings of the Deputy Superintendent, Sadar Hospital recorded under letter dated 5.5.2006 is contrary to the findings of the Board of three doctors which conducted post mortem on the dead body of Md. Alam on 17.8.2005. From close perusal of post mortem report dated 17.8.2005 it appears that there was no fluid in the lungs of Md. Alam. Deputy Superintendent by writing letter dated 5.5.2006 is attempting to mitigate the lapse committed by the administration in not sending the Viscera for chemical examination and analysis in the light of the findings and direction of the Board of three doctors who conducted post mortem. Such attempt of the Deputy Superintendent, Sadar Hospital, Munger is only with a view to mislead the authorities, if he had to dispute the findings recorded and direction given in the post mortem report he should have challenged the same soon after the same was made on 17.8.2005 and not by 7 writing belated letter dated 5.5.2006. Findings recorded and direction made in the statutory post mortem report cannot be allowed to be scuttled by Deputy Superintendent by writing a belated letter dated 5.5.2006 on the basis of the entries made in Bed Head Ticket dated 16.8.2005 which is observation on the state of health of the patient and was available at the time of receipt of the post mortem report dated 17.8.2005. Deputy Superintendent should have questioned the finding and direction given in the post mortem report dated 17.8.2005 soon after its receipt and not after 9 months by writing letter dated 5.5.2006. 5. Counsel for the State on the basis of the treatment meted out to Md. Alam, as is evident from the prescriptions at page 12 and 14 of the counter affidavit of respondent nos.5 submitted that Md. Alam may have been administered wrong treatment and if he suffered death on account of wrong treatment, this Court should be slow in awarding compensation to the petitioner. In support of aforesaid submission he has relied on the orders of the Hon’ble Supreme Court in the case of State of Haryana and Others Versus Bala Devi dated 8 25.6.2008 passed in Cr. Appeal No.921 of 2003. He further submitted that in the present case the request of the petitioner for grant of compensation is fit to be rejected as the authorities of the remand home have been attending on Md. Alam, no sooner he made complaint about illness provided him with the best possible treatment which was available at Munger. 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 AIR 2006 Supreme Court 1117, paragraphs-20, 21 and submitted that the cases where violation of Article-21 of the Constitution involving custodial death or torture is established or is incontrovertible stand on a different footing when compared to cases where such violation is doubtful or not established. According to learned counsel for the State present case is doubtful case of violation of right to life and liberty, as steps for medical treatment of Md. Alam has been taken by the authorities of the remand home and the Sadar Hospital, Munger 6. In rejoinder counsel for the petitioner submitted that question whether Md. Alam was 9 properly treated by the authorities of the remand home and the doctors of the Munger Sadar Hospital is not to be considered by this Court. Such submission of the authorities was required to have been considered by the Magistrate while holding inquest on the dead body of Md. Alam to find out the apparent cause of his death. When information about the death of Md. Alam was given to the police and civil authorities by the Incharge of the remand home, the Sub-Divisional Magistrate, Munger appointed Sri Suman Kumar as the Executive Magistrate to conduct inquest on the dead body of Md. Alam. According to the learned counsel for the petitioner if the Deputy Superintendent desired to dispute the findings and direction made in the post mortem report he should have challenged the same either before Sri Suman Kumar the Executive Magistrate appointed to conduct inquest or before the competent court of law within close proximity of the death/post mortem of Md. Alam 16/17.8.2005. Letter dated 5.5.2006 of the Deputy Superintendent is only an attempt to cover up the failure of the administration not to carry out the instructions given in the post mortem 10 report to find out the scientific cause of death of Md. Alam by undertaking chemical examination and analysis of the Viscera of Md. Alam. Failure to find out and disclose the scientific cause of death of a prisoner is also violation of his right to life and liberty as enshrined in Article 21 of the Constitution. By not complying the direction of the doctors conducting post mortem on the dead body of Md. Alam the authorities have violated the procedure established by law and thereby infracted Article 21 of the Constitution. 7. From the entire records generated by the State authorities in connection with the treatment, death, holding of inquest and post mortem of Md. Alam and placed before this Court by way of counter, supplementary counter affidavit filed on behalf of respondent no.4, 5 and the Jail Superintendent, Begusarai it is evident that scientific cause of death of Md. Alam was not ascertained by referring his Viscera for chemical examination and analysis as was directed by the three doctors conducting post mortem examination on the dead body of Md. Alam. Perhaps to explain the failure of the administration to refer the 11 Viscera of Md. Alam for chemical examination and analysis as was directed by the three doctors in the statutory post mortem report submitted under Sub- Section(3) of Section 174 Cr.P.C., the Deputy Superintendent under letter dated 5.5.2006, Annexure-1 to the supplementary counter affidavit of respondent no.4 recorded a finding with reference to the bed head ticket of Md. Alam bearing no.2172 dated 16.8.2005 that he suffered tuberculosis, his right lung was full of fluid and he died on account of pressure on his right lung. Aforesaid finding of Deputy Superintendent is contrary to the findings of the three doctors conducting post mortem on the dead body of Md. Alam as found in the statutory post mortem report under Section 174(3) Cr.P.C. Failure to conduct the Viscera examination in the light of the findings and directions of the three doctors conducting post mortem on the dead body of Md. Alam, in my opinion, is failure on the part of the State and its functionaries to ascertain and disclose the scientific cause of death of Md. Alam. By writing belated letter dated 5.5.2006 the Deputy Superintendent has attempted to dilute the findings and 12 suggestion recorded in the statutory post mortem report submitted under Sub-Section-(3) of Section 174 Cr.P.C. On account of failure to ascertain and disclose the scientific cause of death of a person in captivity of the State the authorities have violated due process as established by law infracting Article-21 of the Constitution. For the administrative failure on the part of the State functionaries to find out and disclose the scientific cause of death of Md. Alam by not conducting chemical examination and analysis on his Viscera the authorities have violated due procedure as established by law enshrined under Article 21 of the Constitution and for such violation, I direct the State respondents to pay compensation of Rs.1,50,000/- to the father of Md. Alam. Aforesaid payment be made to the father of Md. Alam, as early as possible, in any case within two months from the date of receipt/production of a copy of this order before the Home Commissioner, Bihar, Patna. The State respondents are at liberty to recover the amount of compensation paid to the father of Md. Alam by initiating proceeding against those who are responsible for not sending Viscera of Md. Alam for 13 conducting chemical examination and analysis over the Viscera of Md. Alam. The State respondents shall also consider the desirability to initiate proceeding against the Deputy Superintendent, Sadar Hospital, Munger who wrote letter dated 5.5.2006 overreaching the findings recorded in the statutory post mortem report conducted by a Board of three doctors. 8. The writ application is, accordingly, allowed. AFR Rajesh/ ( V.N. Sinha, J.)