CIVIL WRIT PETITION NO.11653 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JANUARY 12 ,2011 Hawa Singh and another .....Petitioners VERSUS The State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Jagbir Malik, Advocate, for the petitioners. Ms. Shruti Jain, AAG, Haryana, for respondent Nos.1 to 5 and 7. Mr. S. S. Sandhu, Advocate, for respondent No.6. **** RANJIT SINGH, J. Two Civil Writ Petition Nos.11653 of 2008 (Hawa Singh and another Vs. The State of Haryana and others and 65 of 2010 (Geeta Vs. State of Haryana and others) , have been filed to claim compensation for custodial death of two persons taken in custody by police together. They both have died while in custody and accordingly parents of the deceased in one case and widow of the second CIVIL WRIT PETITION NO.11653 OF 2008 :{ 2 }: deceased have approached this Court not only for seeking investigating of these custodial deaths but also for grant of compensation. The issue of award of compensation by public law proceedings, thus, would arise in these cases. Virender Kumar aged 16 years son of the petitioners (in Civil Writ Petition No.11653 of 2008) was statedly an artist working in Haryana movies. As per the allegation, Virender Kumar was illegally picked up at 11.30 A.M on 11.8.2007. He expired at P.G.I., Chandigarh, on 13.8.2007. As per post mortem report, the cause of his death was due to consumption of `CELPHOS'. No intimation was given to the petitioners about the arrest of their son. Petitioner No.1 learnt about the same on 15.8.2007. He then visited the office of the then A.D.C., Kaithal on 16.8.2007 and learnt that his son had expired in P.G.I on 13.8.2007. The petitioners prayed for investigating the case to ascertain the cause of death and visited the office of respondent No.2 on 10.9.2007. The petitioners would complain that their request for investigation into this custodial death was not properly attended to. Rather, no action was taken in this regard. The petitioners have not properly averred facts leading to the death of their son. May be, it is the counsel who could have been little elaborate in this regard. Some details, however, would emerge from the contents of the reply, which is filed in response to notice of motion issued on 10.7.2008. Ofcourse, these details are projected from police angle. In the reply, reference is made to the enquiry CIVIL WRIT PETITION NO.11653 OF 2008 :{ 3 }: conducted by Additional Deputy Commissioner, Kaithal and the report submitted by him to the Deputy Commissioner on 8.8.2008. This report was placed on record on directions issued by this Court. Apparently, this Court had noticed from the enquiry that petitioners' son was given merciless beatings by the police for two days and he died on 13.8.2007, when he was in police custody. After referring to Section 176(1A) of the Code of Criminal Procedure inserted in the Act in 2005, this Court had noticed the legal requirement about holding of an inquiry upon death of a person in police custody by a Judicial Magistrate or a Metropolitan Magistrate within whose local jurisdiction the offence has been committed. Finding that no such enquiry was held, the Court thought it appropriate to direct Sessions Judge, Kaithal, to get an enquiry conducted from a Judicial Magistrate and to submit his report. The Court passed the following order in this regard on 12.11.2008:- “The petitioners are parents of one Varinder Kumar who was arrested on 1.8.2007. It is the case of the petitioner that son of the petitioners were given merciless beatings by the police for two days and he died on 13.8.2007, when in Police custody. As per the respondents, the son of the petitioner died having consumed Celphos tablet, but it is not denied that Varinder Singh was in custody of Police, when he died. In terms of Section 176 (1A) of the Code of Criminal Procedure, 1973 (hereinafter referred to as `Cr.P.C.', inserted in the Act No.25 of 2005, in case any person dies CIVIL WRIT PETITION NO.11653 OF 2008 :{ 4 }: in the custody of the police under the order of the court, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate within whose local jurisdiction the offence has been committed. Admittedly, an inquiry in terms of the Section 176(1A) of Cr.P.C. has not been conducted by the Judicial Magistrate. Therefore, before we proceed further, we deem it appropriate to direct learned Sessions Judge, Kaithal, in whose jurisdiction, the deceased was kept in custody, to get an inquiry conducted from a Judicial Magistrate into the matter and submit his report. The learned Sessions Judge shall mark the inquiry to any Judicial Magistrate within his jurisdiction. Parties to appear before learned Sessions Judge on 12.1.2009 for further proceedings. Hearing of the case is adjourned sine-die. To be listed for hearing after submission of the report by the Judicial Magistrate.” The enquiry report duly sealed was submitted on 28.4.2010. Copies thereof were supplied to the counsel and the counsel for the parties have been heard. Civil Writ Petition No.65 of 2010 has been filed by Geeta, whose husband was picked up by the police on 13.8.2007. Late husband of Geeta and late Virender Singh (son of the petitioners in Civil Writ Petition No.11653 of 2008) have died while they were in the custody of police. Petitioner, Geeta, would aver that the police, in CIVIL WRIT PETITION NO.11653 OF 2008 :{ 5 }: order to hide their illegal action, had registered a case against her husband and Virender Singh in the form of FIR No.184 dated 10.8.2007 under Sections 392/34 IPC. In this FIR, allegation of snatching of Rs.7,000/- was made against unidentified persons. The police in order to cover up their action had registered another FIR on 13.8.2007 under Sections 307, 309 IPC with the allegation that the husband of the petitioner and Virender Singh had administered poisonous substance to each other while in police custody. Reference is made to an enquiry, which was instituted by the Government, when the residents of the area protested. This is an enquiry held by the Additional Deputy Commissioner, who has given a report, implicating the police officials for custodial deaths of the husband of the petitioner and that of Virender Singh. When no action was taken, the petitioner has filed this writ petition to seek compensation for custodial death of her husband and has prayed for direction to register a case under Section 302 IPC against the guilty police officials. Since the common question of fact and law are arising in these two writ petitions, the same were ordered to be heard together and are being disposed of through this common order. The stand of the respondents noticed from reply in Civil Writ Petition No.11653 of 2008 is that son of the petitioners was involved in FIR No.184 dated 10.8.2007 under Sections 392/34 IPC and under the provisions of the Arms Act. He was arrested by SHO Dharam Singh on 13.8.2007. Kuldeep Singh son of Hawa Singh was informed about the arrest. Deceased, Virender Singh, was CIVIL WRIT PETITION NO.11653 OF 2008 :{ 6 }: interrogated at village Manana, when he allegedly made a disclosure statement. Late Virender Singh was then brought to Police Station, Pundri. Entries to this effect were also made in Daily Diary Register and Virender Singh was put up in police lock up. It is then disclosed that there is only one lock up meant for men in police station. One Satnam was also locked up alongwith Virender Singh. At 9 A.M., Virender Singh and Satnam, both started vomitting. A DDR was also recorded in this regard. They were immediately removed from lock up and moved to a private hospital Shah at Kaithal. Doctor, who attended the patients in this private hospital, advised that condition of Virender and Satnam was serious. SHO Dharam Singh moved an application before the Illaqa Magistrate for recording the statement of Virender, which was done. Virender is alleged to have stated before the Magistrate that he was implicated in this case by one Lada, who had made him consume one and a half tablets. Satnam was found unfit to make any statement. Both were referred to PGI, where Virender Singh died at 4.40 P.M. It is accordingly stated that death of said Virender Singh and Satnam is not due to any negligence or torture on the part of the police. As already noticed, two enquiries have been conducted in this case. A perusal of the enquiry conducted by A.D.C. would show that he had summoned the record of the police station and had recorded the statements of various police officials, who were found involved in this case. Having made mention to the FIR, in which the deceased were arrested, the A.D.C. has concluded that deaths of Satnam and Virender Singh were custodial deaths. While CIVIL WRIT PETITION NO.11653 OF 2008 :{ 7 }: commenting on the story as projected that these tablets were given to Virender Singh by Satnam, the enquiry has noticed that Satnam was arrested by ASI Wazir Singh and some other Constables, who had lodged him in the lock up after taking his search. A.D.C has, thus, rightly questioned as to from where these tablets had, thus, appeared. He has, therefore, held that either the search was not taken properly or the tablets were given to the accused by some outsider. A.D.C. has, thus, held all the members responsible for negligence while performing their duties. Dharam Singh, SHO, was also found to have misled the system by showing arrest of Virender Singh at 2.15 A.M on 13.8.2007. As per record, Virender Singh was shown to have been lodged in the lock up after his search at 7.00 A.M. The raiding party had then proceeded to investigate accused Satnam at 4-5 A.M., whereas version of the relatives of Virender Singh is that he was produced in the Police Station on 11.8.2007. It is noticed that return of the raiding party at 7.00 A.M. and departure of second party at 4-5 A.M. cannot be reconciled. Then had followed the judicial enquiry under the orders of this Court. 17 witnesses were examined by the Judicial Magistrate on behalf of the complainant Hawa Singh. Petitioner, Hawa Singh, has given the detailed background, how the police officials had come to his residence on 2.8.2007 and had enquired about a motorcycle. The police had asked Hawa Singh to produce his son, Virender. On 8.8.2007, Sarpanch of the village, Hari Ram, Leela and another person, whose vehicle was hired, again met Dharam Singh, who threatened the complainant and in this background, he had produced CIVIL WRIT PETITION NO.11653 OF 2008 :{ 8 }: his son on 11.8.2007, when he was accompanied by Hari Ram, Sarpanch and Leela. As per the allegation, the SHO demanded a sum of Rs.20,000/- for letting off Virender Singh. Thereafter, petitioner No.1 stated to have learnt on 13.8.2007 that his son was admitted in PGI, Chandigarh, about which he enquired from Dharam Singh, whose telephone number he already had. The complainant then came to Chandigarh and learnt that his son had already died. Another fact of significance is that during post mortem, following injuries were noticed on the body of Virender:- “1. Abrasion with reddish scab with faded area in between of the size 2.1 x 0.8 cm was present over the inner and upper aspect of lower lip in the midline. 2. Abrasion with reddish scap of the size 1 x 0.6 cm over the chin 1 cm right lateral to the tip of chin in the midline. 3. A linear abrasion with reddish scap of the size 1.8 x 0.1 cm was seen, 0.4 cm below and 0.2 cm outer to the injury No.2. 4. Reddish contusion with faded area in between of the size 6 x 4 cm was present over the posterior end of left sole in the midline. 5. Reddish contusion with faded area in between o the size 6 x 4.6 cm was present over the posterior end of right sole in the midline. 6. Reddish contusion of the size 1.9 x 0.9 cm was present over the inner aspect of distal end of right thumb. CIVIL WRIT PETITION NO.11653 OF 2008 :{ 9 }: 7. Reddish contusion of the size 1.3 x 0.8 cm was present over the inner aspect of distal end of right little finger.” The Magistrate had accordingly analyzed the versions of various witnesses that he examined and the material that was placed on record and found that the version of police witnesses about the search of Satnam before putting him in Hawalat is self contradictory. As per the enquiry record, ASI Wazir Singh has allowed private meeting of two outsiders with Satnam, but the police could not specify the purpose for which this meeting was arranged. Is it a fact or a ploy to mislead enquiry? No efforts seem to have been made to ascertain the same. In any case, this was found to be an act of gross negligence on the part of police officials. The police accordingly was found to have utterly failed in their duties to take care of detainees, which had resulted in their deaths. The Magistrate also found fault with the action of the police in showing the arrest of late Virender at 2.15 A.M. on 13.8.2007, whereas he was shown to have been lodged in the lock up at 7 A.M. The SHO alongwith the raiding party had proceeded to arrest accused Satnam at 4/5 A.M., which fact was found to be of doubtful in nature. The timing of the return to police station of the first party and leaving of the police station by the second party is not found tallying. Then there is a clear version that late Virender was produced in the police station on 11.8.2007. Dharam Singh, SHO, was, thus, found to be misleading the system and he has been found responsible for that. From the factual position, as it would emerge from both CIVIL WRIT PETITION NO.11653 OF 2008 :{ 10 }: the enquiries and also from the stand of the respondents, it is clearly established that both the persons died while they were in police custody. This was, therefore, not seriously disputed or debated before me in any manner. Once the deceased were taken into custody by police to keep them safely was the responsibility of the police. They both have died because of poisoning, which is being attributed to the deceased persons only. Still, the police can not be allowed to escape responsibility for acting in a most casual and negligent manner. No doubt, the death of both the deceased may seem to be due to consuming of some tablets supplied by one of the deceased but how he could get these, has not been explained in any manner. A serious poser will beg an answer as to from where these detenues got these tablets. Upon that would depend whether it is a suicide or a homicidal death. Whatever be a case, the police can not be allowed to escape responsibility for their negligence. Two persons have died while in police custody. To keep them safe and to safeguard their lives was the responsibility of the police. The police officials are, therefore, liable. Next question would be to see if the compensation can be awarded for these custodial deaths. That award of compensation by Supreme Court in proceedings under Article 32 of the Constitution or by the High Court in proceedings under Article 226 of the Constitution is a remedy available in public law based on strict liability is by now fairly settled. As observed in Nilabati Behera (Smt.) alias Lalita Behera (through the Supreme Court Legal Aid Committee) Vs. State of Orissa and others, (1993) 2 Supreme Court Cases 746, the object CIVIL WRIT PETITION NO.11653 OF 2008 :{ 11 }: of compensation in public law proceedings is different from the compensation in private tort law action. In case of violation of any fundamental right of an individual by State's instrumentaliities or by its servants, the Court can direct the State to pay compensation to the victim or to his heirs by way of monetary amends and redressals. It is observed that the principle of sovereign immunity is inapplicable in such cases and that this remedy is apart from the private law remedy. Once the custodial death is established, then having regard to the age of the deceased and his monthly income, the State can be directed to pay compensation by adopting some parameters and these may be available as are applied under Motor Vehicles Act. It can be noticed that under public law proceedings, Court can evolve new tools and mould remedy to provide redressal in case of deprivation of fundamental rights like the right under Article 21 of the Constitution of India. The public law proceedings are different from private law proceedings and award of compensation in proceedings for enforcement of fundamental rights under Articles 32 and 226 of the Constitution of India is a remedy available in public law. The convicts, prisoners and under trials have a right under Article 21 of the Constitution and the State has a strict duty to ensure that a citizen in custody of the police or prison is not deprived of his right under Article 21, except in accordance with law. Once a person is taken in police custody and he dies, the burden is always on the State to explain how he died and what is the cause of his death. The Court has observed that enforcement of constitutional right and grant of redress embraces award of compensation as part of legal CIVIL WRIT PETITION NO.11653 OF 2008 :{ 12 }: consequences of its contravention. Award of compensation under Articles 32 and 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law on an action based on tort. Thus, a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledge remedy for enforcement and protection of such rights. Such a claim based on strict liability made by resorting to constitutional remedy provided for enforcement of fundamental rights is distinct from and in addition to the remedy in private law for damages for tort, resulting from contravention of the fundamental rights. In Rudul Sah Vs. State of Bihar, (1983) 4 SCC 141, it was held that in a petition under Article 32 of the Constitution, the Supreme Court can grant compensation for deprivation of fundamental rights. Having observed that Art 32 can not be a substitute for enforcement of rights and obligations which can be enforced through the ordinary process of courts, civil or criminal, Hon'ble Supreme Court went on to hold that the refusal to pass an order of compensation in favour of the person will be doing lip- service to his fundamental right to liberty, which the State Govt. has so grossly violated. As per the Hon'ble Supreme Court, Art 21, which guarantees the right to life and liberty will be denuded of its significant contents if the powers of the court were limited to passing CIVIL WRIT PETITION NO.11653 OF 2008 :{ 13 }: the orders to release from illegal detention. As observed, one of the telling ways in which the violation of the right can reasonably be prevented and due compliance of the mandate of the Art secured, is to mould its violators in the payment of compensation. Catena of decisions in this regard recognizing the right to receive compensation in public law proceedings can be noticed. This was so held in Sebastian M. Hongray Vs. Union of India, (1984) 1 SCC 339 (I), Sebastian M. Hongray Vs. Union of India,, (1984) 3 SCC 82, (II) Bhim Singh Vs. State of J & K, 1984 Supp SCC 504, Saheli: A Women's Resources Centre Vs. Commissioner of Police, Delhi Police Headquarters, (1990) 1 SCC 422 and State of Maharashtra Vs. Ravikant S.Patil, (1991) 2 SCC 373. In Sebastian M. Hongray's case (I)'s case (Supra), it was indicated that in a petition for writ of habeas corpus, the burden was obviously on the respondents to make good the positive stand of the respondents in response to the notice issued by the Court by offering proof of the stand taken, when it is shown that the person detained was last seen alive under the surveillance, control and command of the detaining authority. In Sebastian M Hongry's case (II) (supra), exemplary costs were awarded on failure of the detaining authority to produce the missing persons on the conclusion that they were not alive and had met with an unnatural death. In Bhim Singh's case (supra), illegal detention in police custody was held to constitute violation of rights under Articles 21 and 22 of the Constitution and the Hon'ble Supreme Court had awarded compensation, directing the State to pay monetary compensation by CIVIL WRIT PETITION NO.11653 OF 2008 :{ 14 }: way of exemplary costs. In Saheli's case (supra), the State was held liable to pay compensation to the mother of the deceased, who died as a result of beating and assault by police. The principle indicated therein was that the State was responsible for tortious act of its employees. In Ravikant S.Patil's case (supra), High Court has awarded compensation for violation of fundamental rights under Article 21 of an under trial prisoner, who was handcuffed and taken through the streets in procession by police during investigation. Similar issue arose and was decided in Maharaj Vs. Attorney General of Trinidad and Tobago, (1978) 2 All ER 670. This case related to Section 6 of the Constitution of Trinidad and Tobago, 1962, in Chapter pertaining to human rights and fundamental freedoms. Section 6 provided for an application to the High Court for redress. The question was whether the provision permitted an order of monetary compensation. A contention was raised that an order for payment of compensation did not amount to enforcement of right that had been contravened. This was expressly rejected. It was held that an order of payment of compensation, when a right protected has been contravened is clearly a form of redress, which a person was entitled to claim under Section 6 and may well be the only practicable form of redress. Lord Diplock, delivering the majority judgements, held that the jurisdiction to make such an order is conferred on the High Court, viz jurisdiction to hear and determine any application made by any person in pursuance of sub- section (1) of Section 6 and that the very wide power to make orders, issue writs and give directions are ancillary to this. Lord Diplock CIVIL WRIT PETITION NO.11653 OF 2008 :{ 15 }: further spoke as under:- “Finally, their Lordships would say something about the measure of monetary compensation recoverable under Section 6 where the contravention of the claimant's constitutional rights consists of deprivation of liberty otherwise than by due process of law. The claim is not a claim in private law for damages for the tort of false imprisonment, under which the damages recoverable are at large and would include damages for loss of reputation. It is a claim in public law for compensation for deprivation of liberty alone.” This approach would find clear support from the decision of the Hon'ble Supreme Court in Bhagalpur Blinding Cases: Khatri (II) Vs. State of Bihar, (1981) 1 SCC 627. The Court in this case has observed that it