HIGH COURT OF ORISSA: CUTTACK W.P. (C) No. 10891 of 2009 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------- Bilasini Behera, Wife of Rohit Behera, Village: Rajnagar, PS: Athagarh, Dist: Cuttack … Petitioner -Versus- State of Orissa and others … Opp. Parties For Petitioner : M/s Bisweswar Mishra R.Mishra, S.Mishra, D.Sahoo, P.K.Sahoo, B.K.Mishra & B.S. Mishra For Opp. Parties : Mr. R.K. Mohapatra, Government Advocate ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment: 22.12.2011 B.N. Mahapatra, J. This Writ Petition has been filed by petitioner-Bilasini Behera, wife of Rohit Behera of village Rajnagar, PS: Athagarh, Dist: Cuttack with several prayers, i.e., to enhance the amount of compensation from Rs.1,00,000/- awarded by the Human Rights Commission to Rs.10,00,000/-; to direct the opposite party-Government of Orissa to pay the same within two weeks; to entrust the investigation to C.B.I. to unearth the real motive of the culprits and the persons under whose spell such a heinous murder took place; to punish the officers, persons and any other agency helping, aiding to screening the offenders and to issue direction to the S.D.J.M., Athagarh not to accept the final report and to wait for investigation by C.B.I. or any agency or for a judicial probe. 2. Petitioner’s case in a nutshell is that her son Bhaskar was working as a Helper and part-time driver at Paradeep. He came to the house to celebrate Raja Festival. On 14th June, 2007, at about 10 P.M. in the night, one Narendra Kumar Das, A.S.I. of Athagarh Police Station along with three constables were found shouting in filthy language against her son Bhaskar in front of their house. Hearing the shouting of the police officials, the petitioner and the entire family members bolted the door from inside. The Police party scaled over the boundary wall by help of two Gram Rakhees and entered into the premises of the petitioner and went on kicking the door of the petitioner. Finding no other alternative, the petitioner and the entire family members went out of the house and wanted to know the reasons of immediate entrance of the Police into their house by shouting in filthy language and breaking the door from outside. The Police party thereafter searched for Purusottam Behera, the younger brother of the petitioner’s husband. The petitioner replied that he was not present there in the house. Despite their statement that Purusottam Behera, the younger brother of the petitioner’s husband was not there in the house, the Police party went on beating another door of a room where deceased Bhaskar was sleeping. When Bhaskar opened the door, the Police party 2 forcibly brought him outside and went on assaulting him in a brutal manner. The entire Police party individually assaulted the deceased by means of lathi, kicks and slaps. All of them went on kicking the deceased for which the deceased Bhaskar fell down on the ground with bleeding from his mouth. When his old grandfather was crying to give water to the deceased, the Police party behaved like demons and went on assaulting denying water. The Police party thought that Bhaskar was dead. They tried to flee away from the place. The two Grama Rakhees and few other constables who were standing on the main road joined together with the Police party and tried to escape through the police van but hearing the cry, some villagers by that time gathered there and requested the Police party to shift Bhaskar to Hospital. Finding no other way out, the Police party carried Bhaskar, his father and another man in the vehicle to the hospital. While carrying Bhaskar to hospital, on the way, the other persons were directed by the Police to get down from the vehicle and the ASI N.K.Das talked to the Circle Inspector of Police and O.I.C. over mobile phone that Bhaskar was probably dead and requested them to come to the Hospital to where they were carrying the dead body. As soon as the deceased reached at the hospital, the doctor attending him declared that Bhaskar was dead. By then, the O.I.C. and other police officers who were present there left the place immediately escaping themselves from the spot as hundreds of villagers came down to the hospital following Bhaskar. The dead body was laying there for the whole night and on the next day the father of the 3 deceased went to the office of S.D.P.O., Athagarh to lodge an F.I.R. against the Circle Inspector, O.I.C., A.S.I. and other constables who were involved in the case. The SDPO, Athagarh soon after getting FIR sent it to the OIC, Athagarh to register a case and take up investigation, but the O.I.C., Athagarh Police Station did not register the F.I.R. as a case immediately even though the case was of house-breaking and murder and tried to conduct post mortem through doctors of Athagarh without making any inquest there. The doctors though started the post mortem but subsequently declined to conduct the post mortem and referred the case to FMT Department of S.C.B. Medical College & Hospital, Cuttack. After the post mortem was conducted at S.C.B. Medical College & Hospital, Cuttack, the O.I.C., Athagarh Police Station registered the F.I.R. already sent by SDPO, as a case bearing Athagarh PS Case No.119/07 under Sections 457/302/34, I.P.C. The matter was communicated to the Collector, Cuttack, I.G. of Police, who reached at the spot and wanted to negotiate with the people who were present near the dead body. Immediately, the ASI N.K.Das was put under suspension and thereafter the post mortem wok was started. The Collector, Cuttack assured that suitable action shall be taken against the real culprits. The Collector, Cuttack gave Rs.10,000/- to the petitioner and the family members from Red-cross Society as ex-gratia. A spot enquiry was made through an Officer in the rank of Additional District Magistrate, who was the Presiding Officer, DRDA, Cuttack. On 16.06.2007, he went to the village as well as the house of the petitioner and 4 recorded statements of ten persons. Since the petitioner suspected that the real truth cannot come up as the local MLA, who is an ex-Minister and belongs to the ruling party, and at his instance Police has taken action, she filed W.P.(C) No.7399 of 2007 with prayer for prosecution of all the accused persons who were present at the spot, assaulted the deceased, tried to suppress the truth of the case and for providing proper protection to the family of the petitioner and adequate compensation. This Court vide order dated 18.02.2008 disposed of W.P.(C) No.7399 of 2007 directing the Chairman, Orissa State Human Rights Commission (for short, ‘the Commission’) to make an enquiry into the matter and submit a report to the Registrar (Judicial) of this Court within a period of three months from the date of receipt of the record of that case. 3. Since no proper relief was granted to the petitioner by learned Commission, the petitioner has filed the present writ petition with the above prayers. 4. Mr.Mishra, learned counsel appearing on behalf of the petitioner submitted that pursuant to the order of this Court, the Commission registered three cases bearing OHRC Case No.667 of 2007 (suo motu), ORHC Case No.669 of 2007 and OHRC Case No.437 of 2008. All the three cases were tagged together and decided on 07.08.2008. The learned Commission gave a finding that the un-natural death caused by the Police officials was sudden and without any warrant, and house trespass made by the Police in the night without any case and without any woman 5 police is an offence. Therefore, Athagarh P.S. Case No.119 dated 15.06.2007 under Sections 457/302/34, I.P.C. has to be investigated into and the investigation was to continue against ASI N.K.Das and Rs.1,00,000/- be given to this petitioner towards compensation for death of her son-Bhaskar. The Commission further observed that independent of the outcome of the investigation of the case, the State Government shall initiate departmental proceeding against ASI N.K.Das and Constable Artatran Nayak for misconduct. The compensation of Rs.1,00,000/- awarded by the Commission is very negligible. Had the deceased been alive, the parents could have been able to get the benefit of earning of their deceased son for their life time. Therefore, minimum compensation of Rs.10,00,000/- should have been awarded to them. The Commission has not given any finding on the report of the doctor, police official, C.I. of Police, Athagarh, namely, Sudam Charan Sahu and Sri R.P.Swain under whose spell everything was done. The Police did not proceed against the culprits, who are the doctors and the police as they belonged to the group of one ruling party MLA. Therefore, proper investigation by CBI to find out the truth should be made. Because of death of son of the petitioner, the old father in-law of the petitioner who was about 84 years and the eyewitness also expired due to shock of assault on his grandson. The learned Commission has also not examined the witnesses and employees of the Sub-Divisional Hospital, Athagarh who could have narrated about the treatment and post mortem made by the doctor in order to hush up the 6 matter. The then Circle Inspector of Athagarh Police Station, who was the real architect of such a crime, goes unpunished for such ghastly murder and unlawful activities. The learned S.D.J.M., Athagarh had issued notice inviting objection against final report submitted by the Police against which the informant, the father of the deceased, filed protest petition in spite of the findings of the Commission and this Court. The State Police have become callous and have deliberately and intentionally filed final report alleging the facts to be true, but there was no clue to array the police officials in any such crime. The petitioner has no trust on the Police agency because of the conduct of the Police. The Commission though categorically directed to prosecute the Police officials, the same has not yet been done. The State Police agency and their Police personnel carelessly and deliberately handled the case to save their Police personnel, who are accused persons and to wash out the case of murder. 5. Per contra, Mr. R.K. Mohapatra, learned Government Advocate submitted that there is no evidence on record to show that Bhaskar was murdered by the Police. On the other hand, the learned Commission in paragraph 14 of its order held that Bhaskar was not assaulted by Police. The cause of death might be due to aspirated stomach contents which got into the air passage which happened when he was shocked and scared to find Police standing in front of him. The State Police has also filed the final report. There is nothing on record to show that the Police officials have murdered the deceased and the allegations raised against other accused 7 persons are true. Therefore, the Government Advocate prayed for dismissal of the writ petition. 6. On the rival contentions advanced by the parties, the following questions fall for consideration by this Court. (i) Whether it is a fit case to be handed over to the C.B.I. or any other independent agency for investigation? (ii) Whether compensation of Rs.1.00 lakh awarded by the Human Rights Commission is adequate? 7. The undisputed facts are that on 14th June, 2007 while the deceased was sleeping in his house the Police officials entered into the house of the petitioner and the deceased died in their front. Pursuant to the direction of this Court vide order dated 18.02.2008 passed in W.P.(C) No.7399 of 2007, the Commission registered three cases – those are suo motu proceedings initiated on the basis of the news report published in the Oriya daily ‘The Samaja’ in its issue dated 16.06.2007. OHRC Case No.669 of 2007 was registered on the basis of a petition filed by Bilasini Behera, the mother of the deceased-Bhaskar Behera, who alleged that her son was assaulted to death in the night of 14.06.2007. OHRC Case No.437 of 2008 was registered pursuant to the direction given by this Court vide order dated 18.02.2008 passed in W.P.(C) No.7399 of 2007. The learned Commission considered all the three cases together and passed a common order on 07.08.2008 taking into consideration the evidence of several persons. The Commission, inter alia, came to the following conclusion. 8 “14. On a close analysis of the evidence mentioned above and having regard to the expert medical opinion, we are inclined to hold that Bhaskar was not assaulted by the police. The only external injury (abrasion on the left upper eyelid of size 1 cm. x 5 cm.) could not have been the cause of his death. The cause of death might be due to aspirated stomach contents which got into the air passage which happened when he was shocked and scared to find police standing in front of him. Assuming that Bhaskar had taken alcohol (as per the chemical examination report, presence of alcohol was evident), the proximate cause of his death was fright caused by the presence of police in the late hours of the night in the house. 15. The entry of the police personnel into the house of the father of Bhaskar in the night of 14.06.2007 under the leadership of the A.S.I. (N.K.Das) is admitted. The Police had come to village-Rajnagar in connection with investigation of a case of minor girl Anupama being allegedly assaulted by Kabu Behera. In stead of investigating into that case, they made entry into house of Rohit Behera to apprehend his brother-Purusottam Behera. No scrap of paper is produced before us that Purusottam Behera was involved in any cognizable offence which led A.S.I. (N.K/Das) to search for him. They entered into the house in the late hour of the night when family members were expected to have gone to bed. There were number of female members in the house, but the police team did not consist of any female police officer. It is an admitted case that they were not in search of Bhaskar. The provision of Section 47 of the Code of Criminal Procedure was observed with breach by the police. The right to life and right of privacy of the family members of Bhaskar were infringed by the police when they failed to offer any ostensible reason for their entry into the house of Rohit Behera in the late hours of the night. The fact that Bhaskar did not die due to assault by the police, does not mitigate the violation of human right of Bhaskar and his family members. The police was guilty of excesses in entering into the house in the night of occurrence. The District Administration perhaps in recognition of such excesses granted rupees 10,000/- as ex-gratia to the bereaved family. Bhaskar was a bachelor aged about 20 years and was earning and his parents were depending on him. 9 16. We have given our anxious consideration and having regard to the circumstances in which Bhaskar died, we recommend to the State Government under section 18(a)(i) of the Protection of Human Rights Act, 1993 to pay to the parents of Bhaskar a sum of rupees 1,00,000/- (one lakh) as compensation. Investigation of Athagarh P.S. Case No.119 of 2007 under sections 457/302/34 IPC is in progress. We make it clear that any observation by us in this order would not affect the course of the investigation. Independent of the outcome of the investigation of the case, the State Government shall initiate departmental proceeding against the A.S.I. (N.K.Das) and the constable (Artatran Nayak) for misconduct.” 8. In view of the categorical findings of the learned Commission that deceased-Bhaskar was not assaulted by the Police for the reasons stated in its detailed order, we do not feel that the present case is a fit one to be entrusted to the C.B.I. for investigation. 9. Next question for consideration is with regard to grant of adequate compensation. The learned Commission in its order held that the proximate cause of death of Bhaskar Behera was due to fright caused by the presence of the Police party in the late hours in their house. Learned Commission further held that the Police personnel entered into the house of the petitioner in the late hours of the night when the family members were expected to have gone to bed, but the Police party did not consist of any female official/officer in the team. Learned Commission has also further held that the police personnel were not arrived there for searching Bhaskar. Right to life and privacy of family members of the petitioner’s family was infringed when the Police party failed to offer any ostensible reason for their entry into petitioner’s house in the late hours of the night 10 of occurrence. The fact that Bhaskar did not die due to assault by the Police does not mitigate the violation of human right of Bhaskar and his family members. The Police was guilty of entering into the house of the petitioner in the late hours of the night of occurrence. 10. In view of this categorical finding arrived at by the learned Commission, we are of the view that it is a fit case where adequate compensation should have been awarded to the petitioner. 11. At this juncture, it will be beneficial to refer to some of the decisions of the Hon’ble Supreme Court. In the case of Rudul Sah v. State of Bihar and another, AIR 1983 SC 1086, the Hon’ble Supreme Court observed that in appropriate cases, the Court discharging constitutional duties can pass orders for payment of money in the nature of compensation consequent upon deprivation of a fundamental right to life and liberty of a person as the State must repair the damage done by its officers to such person’s right. 12. The Hon’ble Supreme Court in the case of Siddharama Satlingappa Mehetre Vs. State of Maharastra, (2011) 1 SCC 694, held in paragraph 36 that all human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of right to life and liberty. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be 11 worth living. That is why liberty is called the very quintessence of a civilized existence. 13. In Smt. Kumari vs. State of Tamil Nadu and others, AIR 1992 SC 2069, the Hon’ble Supreme Court overruling the decision of the High Court of Tamil Nadu observed that the writ jurisdiction under Article 226 of the Constitution of India can be invoked by the Writ Court for awarding compensation to a victim, who suffered due to negligence of the State or its functionaries. In that case six years’ old child had fallen down in the uncovered sewerage tank. The High Court refused to entertain the claim of compensation in a writ petition under Article 226 of the Constitution, but the Hon’ble Supreme Court directed the State to pay compensation. 14. The Hon’ble Supreme Court in the case of State of Rajasthan v. Mst. Vidhyawati, AIR 1962 SC 933, held as under: “Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such, as any other employer. The immunity of the Crown in the United Kingdom was based on the old feudalistic notions of justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could not be sued in his own courts. In India, ever since the time of East India Company, the sovereign has been held liable to be sued in tort or in contract, and the common law immunity never operated in India…….” 15. In the fact situation, considering the age of the deceased at the time of death that he was 20 years old, we are of the considered view that 12 Rs.4.00 lakhs would be the adequate compensation in the facts and circumstances of the present case. Since the father of the deceased has already received Rs.1.00 lakh pursuant to the order of the Commission, the State Government is directed to pay Rs.3,00,000/- (rupees three lakhs) more to the petitioner towards compensation within a period of two months from today and if the same is not paid, it shall carry interest @ 9% per annum from the date of death of the deceased, i.e., 14.06.2007 till the date of payment. Out of the above amount of Rs.3.00 lakhs, Rs.2.00 lakhs be kept in Fixed Deposit in any Nationalized Bank for a period of five years in joint names of father and mother of the deceased, which shall be renewed from time to time. In the event, the amount so directed to be kept in fixed deposit is required to meet the urgent need of the petitioner, the same may be withdrawn by the petitioner by filing an application before this Court for grant of such permission. The balance amount of Rs.1.00 (one lakh) be paid equally to the parents of the deceased. 16. In the result, the writ petition is allowed to the extent indicated above. ……………………..... B.N.Mahapatra, J. V.Gopala Gowda, C.J. I agree. …....……………….. Chief Justice 13 Orissa High Court, Cuttack Dated 22nd December, 2011/ssd/sss/skj