WP(C) 4101/2000 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. A.K. Bora, learned counsel for the petitioner. Mr. S. Das, learned Gov t. Advocate appears for the respondents. 2. The petitioner alleges that her son late Thaneswar Kalita @ Durl ov Kalita, while under the custody of the Khoirabari Police Station w.e.f. 16-1- 95 died on 19-1-95 due to custodial torture and accordingly direction is sought for payment of compensation from the State. 3. The case set up by the petitioner is that on 15-1-95 police pers onnel from Khoirabari Police Station visited the petitioner’s house and asked he r son to be sent to the police station. Next day, i.e. 16-1-95 the deceased alon g with his cousin Tulsi Kalita visited the police station and they were then det ained by the police. The petitioner then personally visited the police station o n 18-1-95 and met the deceased who was detained in the police lock up. 4. According to the petitioner the deceased complained about police torture and requested the petitioner to save him from such torture. Because of the comp laint of the deceased, on 19-1-95 the petitioner submitted an application before the CJM, Darrang, Mangaldoi wherein she requested the intervention of the Magis trate to secure medical treatment for her son and Tulsi Kalita who were being su bjected to torture in police custody. Eventually on 20-1-95, the petitioner lear nt that her son died the previous evening, i.e. on 19-1-95 while in custody of t he police. 5. In paragraph 5 of the writ petition the petitioner makes the following a verments :- That your humble petitioner states that when the victim Late Thaneswar Kalita d id not return to the home from the said police station, the petitioner on being made an enquiry came to know that her son was in the police station due to a cri minal allegation levelled against him and on being 18.1.95 met in the said polic e station, the petitioner was told by the victim Late Thaneswar Kalita that the police beated him black and blue and it was also told by the victim to the petit ioner that he would die and requested to save his life. 6. In response to the above averment in paragraph 5 of the writ pet ition, in the counter affidavit sworn by the Deputy Commissioner, Darrang distri ct, there is no specific denial and those specific averments have been dealt wit h as no comment by the deponent. 7. It is further narrated in the counter affidavit that a magisteri al enquiry was ordered to ascertain the cause of death of the petitioner’s decea sed son but the findings of the enquiry is inconclusive about the torture given to the deceased. Accordingly the State has repudiated the compensation claimed b y the petitioner. ENQUIRY REPORT 8.1 From the enquiry report dated 28-3-95 prepared by Mr. P.P. Baroo ah, the Addl. District Magistrate, Mangaldoi, it can be gathered that the police admit that the deceased Thaneswar Kalita PRESENTED HIMSELF at the Khoirabari Po lice Station on 16-1-95 but according to the police he was released on PR Bond o n the same day at 5 P.M. Then the deceased was again summoned to the police stat ion on 17-1-95 through the Second Officer and he was released on 17.1.95 (the sa me day) at about 8.45 A.M. 8.2 Thereafter the police claim that on 19-1-95 the deceased was arrested fr om the vicinity of the Khoirabari Railway Station and he was put inside the lock up. At about 7.45 P.M., when he was brought out from the lock up for interrogat ion, the deceased saw a news item in the daily news paper Ajir Bat ori showing his involvement in the murder of late Bhaba Kalita (Khoirabari PS Case No. 5 / 95 under 302 / 201 IPC). The police version is that thereafter, the deceased complained of chest pai n and he fainted. Then medical assistance was requisitioned and while arrestee w as taken to Mangaldoi Civil Hospital, he was declared brought dead on arrival. 8.3 The Enquiry Officer considered the post mortem report of the deceased wh erein the cause of death could not specifically be ascertained. However, in resp ect of several vital areas like Thorax, Cranium, Spinal Canal and Abdomen, the p ost mortem report recorded contradictory finding as follows:- Thorax - Healthy, congested Cranium - Healthy, congested Spinal canal - Healthy, congested Abdomen - Healthy, congested 8.4 As regards the claim of the police that the deceased after being summoned to the police station on 16.1.95 and 17.1.95 was released and was not kept in the police station continuously till 19.1.95 when he died, the Enquiry O fficer refers to the concerned GD Entries and the P.R. Bond showing release of the deceased from the police custody on 16.1.95 and 17.1.95. According to the Ad dl. District Magistrate the police station general diary entries were badly ov erwritten, rendering it completely illegible. 8.5 Further more, the claim of the police that the deceased was arre sted at about 9.45 A.M. on the day of his death i.e. 19.1.95 from near the Khoi rabari Railway Station, was found to be doubtful by the Enquiry Officer due to absence of any witnesses to his arrest, although the concerned locality is a thi ckly populated area and it is unlikely that any arrest at about 9-45 A.M. from t hat area would remain unnoticed by the public. 8.6 Contradiction in the version of the officer-in-charge and the se cond officer of the Khoirabari Police Station about the re-arrest of the decease d on 19.1.95, was also recorded by the Enquiry Officer. 8.7 On the basis of the above discrepancies, the Enquiry Officer con cluded that the deceased was never released from custody since 16.1.95 and false release documents were prepared by the police only to avoid production of the a rrestee before the Magistrate. 8.8 However because of the inconclusive postmortem report, the Enqui ry Officer opined that custodial torture by police could not be established beyo nd reasonable doubt. DISCFREPENCIES IN POLICE VERSION 9. The overwritings of the General Diary Entries and P.R. Bond rais es serious doubt on the version projected by the police that the deceased after being summoned to the police station on 16.1.95 was ever released till 19.1.95, on which date, he died in police custody. 10. The mother of the petitioner categorically claims that she found her son in the police lock up when she visited the Khoirabari Police Station on 18.1.95 and she specifically mentions that her son complained of custodial police tortu re. Anxious to save her son from custodial torture, the mother gave a written co mplaint to the CJM on 19.1.95 requesting for his intervention for rendering medi cal treatment to her arrested son. 11. The specific averments of the petitioner in paragraph-5 of the w rit petition stating the above has not been denied by the respondents and I am o f the considered opinion that it is more reasonable to believe that the deceased was kept confined in Khoirabari Police Station w.e.f. 16.1.95 till 19.1.95 and during this period he was never let out of custody till he died. 12. Considering the overwritings noticed by the Enquiry Officer in t he GD Entries as well as in the P.R. Bond (to project that the deceased was rele ased from custody on 16.1.95 and 17.1.95). the police version that the deceased was not in their continuous custody from 16.1.95 onwards till he died on 19.1.95 is found to be false. 13. Having reached the conclusion that the deceased was in custody o f the Khoirabari Police personnel from 16.1.96 till he died on 19.1.95, it is cl ear that during these 4 days although he was in police custody, the petitioner’s son was never produced before a Magistrate. Further more, the Sipajhar Police S tation under whose jurisdiction the deceased residence was located, was never in formed by the Khoirabari police station personnel, about the arrest and confinem ent of the deceased. 14. Eventually when the petitioner’s son succumbed on 19.1.95, to sa ve themselves and to cover their lapses the police manipulated the police statio n records to falsely show that the deceased was not in continuous police custody from 16.1.95, and the records were manipulated to show that the deceased was su bjected to intermittent interrogation on 16.1.95 and on 17.1.95 respectively and released on each of those days. 15. Although the medical report does not record any injury on the bo dy of the deceased, several of his vital organs are shown to the congested witho ut any explanation by the concerned Doctor as to how those vital organs are desc ribed as healthy and congested at the same time. But this inconclusive postmorte m report makes it difficult for this Court to conclude with absolute certainty t hat, death had occurred only on account of physical custodial torture received b y the arrestee. 16. Nevertheless the police definitely has a responsibility to ensur e safety of the persons kept under their custody and in the event of any unnatur al death, they owe an explanation and share responsibility for such custodial de ath. The rights guaranteed under Article 21 and 22(1) of the Constitution are re quired to be protected even for arrested person and when custodial death occurs either due to physical torture or because of inhuman or degrading treatment, the same definitely violates the constitutional right of a prisoner in police custo dy. 17. In this case, the police failed to adhere to the directions give n by the Supreme Court in the case of D.K. Basu vs. State of West Bengal , repo rted in AIR 1997 SC 610 on treatment of prisoners particularly those directions mentioned in sub paragraphs (2),(3),(4),(5),(6),(7),(8) of paragraph 36 of the A pex Court’s judgment. Due to such infraction, the deceased’s family consisting of his widowed mother and two unmarried sisters lost the sole bread earner and t he detained person lost his life, before any medical attention could be received by him after 4 days of continuous confinement in police custody. 18. In the above circumstances, I am of the considered opinion that since infringement of fundamental right(s) is clearly established in the present case, compensation under the public law domain due to breach of public duty by the State in failing to protect the fundamental rights of a detained prisoner mu st be ordered. The State must be held vicariously liable for the failure of the police to ensure protection of the petitioner’s son who died in police custody. 19. Considering the fact that the deceased was employed as a teacher and was the sole bread earner of the family, I deem it appropriate to order for payment of compensation quantified at Rs.2,50,000/- (Rupees two lakh fifty thou sand only) to be paid by the State on or before 1-11-2010 to the petitioner. Thi s amount be deposited by the State with the Registrar General of this Court and the petitioner may receive the amount after proper identification. This payment would not foreclose the option for the petitioner to claim further amount by est ablishing the actual loss suffered by the family, through an appropriate proceed ing. It is ordered accordingly. 20. A copy of this order be furnished to Mr. S. Das, learned Govt. A dvocate and also to the petitioner, for communication and compliance. 21. The petition stands allowed accordingly.