1 Criminal Writ Petition No.1125 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1125 OF 2010 Smt.Ragbirkaur W/o.Komalsing Bungai PETITIONER VERSUS The State of Maharashtra and others RESPONDENTS Mr.A.A.Mukhedkar, learned counsel for the petitioner. Mr.D.V.Tele, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 21/01/2011 PER COURT : 1. This is a petition under Article 226 of The Constitution of India by which the petitioner prays for issuance of a writ of mandamus, directing the respondents to pay the petitioner an amount of Rs. 10,00,000/- as compensation/damages on account of custodial death of her son Indrapal @ Bunty S/o.Komalsing Bungai. The petitioner also prays that an interest @ Rs.18% p.a. be granted to the petitioner as compensation to be calculated w.e.f. 09/06/2009. 2. It appears that the son of the petitioner namely Indrapal @ Bunty was a Under Trial Prisoner in a Sessions Case and was 2 Criminal Writ Petition No.1125 of 2010 confined to the Central Prison at Aurangabad. On 08/06/2009, son of the petitioner alongwith other 2 prisoners was taken from Central Jail, Aurangabad to attend the Court of Additional Sessions Judge, Nanded alongwith police escort. After attending the proceedings in the Court at Nanded, the son of the petitioner alongwith the other accused was taken back to Aurangabad Central Jail. The petitioner alleges that her son was in the custody of the police officers who were escorting from Aurangabad to Nanded and back to Aurangabad. It appears that on account of consumption of some poisonous substance, the son of the petitioner expired. 3. The petitioner had approached the Human Rights Commission with a prayer therein for holding an inquiry and for payment of compensation. The Human Rights Commission at Mumbai, in its order dated 11/03/2010, at para no.5 has observed thus, which we reproduce : “In view of above discussion, in our opinion the deceased died an accidental death in the jail. The jail authorities have taken all necessary care to provide treatment to the accused. Prima-facie the deceased died by consuming unknown tablets obtained by him from unknown person while he was in the company of his relatives, after the court proceedings were over. It is a case of showing over leniency, casual approach, and carelessness shown by police guards, allowing prisoners to meet anybody and to pass on drugs, resulting death which in our opinion is a serious misconduct on their part.” 3 Criminal Writ Petition No.1125 of 2010 The Human Rights Commission further granted liberty to the present petitioner, who was a party before the Human Rights Commission to avail such remedies as were available to the present petitioner in Law and claim compensation. The Human Rights Commission further clarified that the observations and findings recorded above were prima-facie in nature and would not come in her way, if she decides to approach other forum. 4. Mr.Mukhedkar, learned counsel for the petitioner has placed reliance on two judgments of the Supreme Court namely Smt.Nilabati Behera alias Lalita Behera versus State of Orissa and others, AIR 1993 Supreme Court 1960 to urge before us that in respect of death of a convict during the custody of the police, relief of compensation can be granted by the court in exercise of the jurisdiction under Article 226 of The Constitution. It is further urged before us that in the said two decisions, which are relied upon by the petitioner, the Supreme Court had awarded compensation and therefore the petitioner may be also awarded compensation. 5. In the Nilabai Behera’s case (cited supra), the Supreme Court had relied upon the evidence which was recorded by the District Judge. The Supreme Court had remitted the matter to the District Judge, Sundergarh in Orissa to conduct an inquiry and to submit its report, and the parties were directed to appear before the District Judge and to led evidence on which they were proposing to rely. The 4 Criminal Writ Petition No.1125 of 2010 Supreme Court then decide the case on the basis of the admitted facts which emerge from the report of the District Judge. In Rudul Shah versus State of Bihar and another, AIR 1983 Supreme Court 1086, the Supreme Court has held that in exercise of its jurisdiction under Article 32, the Supreme Court would pass an order for payment of money in the nature of compensation consequential upon the deprivation of the fundamental right to life and liberty of a person. 6. Admittedly, no offence has been registered. The matter has not been investigated nor a charge sheet has been submitted in the Court. The petitioner’s claim for compensation/damages is based upon a plea of negligence of the respondents including the police officers who were members of the escort party. The petitioner has claimed compensation/damages of Rs.10,00,000/-. According to us, such disputed questions can not be decided in the exercise of writ jurisdiction. Negligence, as a fact, is require to be proved and established in accordance with Law which can only be done by the parties by leading the evidence. On account of negligence, the Court would have to arrive at the quantum of damages/compensation to be paid. All these aspects can not be decided into the exercise of writ jurisdiction. The Human Rights Commission had already relegated the petitioner to the alternate remedies which were available to the petitioner in Law for claiming compensation. On the basis of some inquiry conducted by the District Magistrate it can not be held that 5 Criminal Writ Petition No.1125 of 2010 negligence has been proved. 7. In the light of what has been hold by us above, we do not find any merit in the present petition and the petition is summarily dismissed with no orders as to costs. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/JAN. 2011/cri.w.p.1125-10