IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9598 of 2007 SHAHDA KHATOON, widow of late Abdul Hamid, resident of village Heridih, P.O.Malathe, P.S. Makhdumpur (Tehta), District- Jehanabad, presently residing at C/o Azhar Maqsood, Khatun Mazil, Behind Road No.25, Gardanibag, P.O. Anisabad, P.S. Gardanibagh, District- Patna. Versus 1. THE STATE OF BIHAR 2. The Chief Secretary, Govt. of Bihar, Patna. 3. Inspector General of Prison, Government of Bihar, Patna. 4. District Magistrate and Collector, Jehanabad. 5. Dr. J.K.L. Dass, Associate Professor, Department of Medicine, Patna Medical College Hospital, Patna, residing at Road No.15, Indrapuri, Durga Chowk, P.O. Indrapuri, P.S. Patliputra, District- Patna. 6. Dr. Satish Kumar Singh, Associate professor, Department of Medicine, Patna Medical College Hospital, Patna, residing azt Road No. 1/E, Near Lotus Apartment, New Patliputra, P.O. Patliputra Colony, P.S.Patliputra, District- Patna. 7. Jail Superintendent, Sub Jail, Jehanabad. ----------- 3. 23.3.2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner prays for a direction upon the respondents to pay compensation of Rupees Ten Lacs for the death of Abdul Hamid, late husband of the petitioner who allegedly died due to negligence of the respondents in not providing him proper treatment while he was in Jail custody. The relevant facts of this case are that the petitioner’s husband late Abdul Hamid was an accused in Makhdumpur P.S. Case No. 146 of 2004 dated 23.6.2004 under Sections 447, 341, 323 and 307 of the Indian Penal Code to which Section 302 I.P.C. was subsequently added by order dated 26.6.2004 of the C.J.M., Jehanabad. The said late - 2 - Abdul Hamid was arrested by the police and remanded to Jail custody on 22.11.2004. Thereafter, charge-sheet was submitted and by order dated 15.2.2005 cognizance was taken. Ultimately, the case was committed for trial and transferred to the Court of F.T.C. III, Jehanabad on 7.1.2006. In the meantime, since he was suffering from Paralysis before admission in the Jail, he was given treatment from time to time. He was admitted for treatment at Sadar Hospital, Jehanabad on 29.12.2005 and referred to the Patna Medical College and Hospital for further treatment where he was admitted on 29.12.2005 and discharged on 6.1.2006. Again, he was treated at Sadar Hospital, Jehanabad and on 13.1.2006, the Medical Board referred his case to P.M.C.H. for further management. On 16.1.2006, he was again admitted at P.M.C.H. but ultimately died on 21.1.2006 at P.M.C.H. itself. The cause of death has been stated to be brain haemorrhage and found to be due to natural causes. The admitted position is that he had no external or internal injury. The said Abdul Hamid had died on account of his aforesaid ailments. The only grievance raised by learned - 3 - counsel for the petitioner is that Respondent No.5, Dr. J.K.L. Dass, Associate Professor, Department of Medicine, P.M.C.H. had wrongly discharged the husband of the petitioner, late Abdul Hamid, on 6.1.2006, which amounted to denial of proper treatment to her husband and had he continued to be treated at P.M.C.H. he could have recovered. It is submitted by learned counsel that for the aforesaid alleged negligence of respondent No.5 in discharging the husband of the petitioner he was again admitted in P.M.C.H. for his proper treatment and during the course of his treatment he breathed his last. Learned counsel further submits that there has been thus a violation of the fundamental right of the husband of the petitioner under Article 21 of the Constitution of India, which amounts to custodial death and the petitioner is, therefore, entitled to get compensation of Rupees Ten Lacs for the same. In support of the aforesaid stand, learned counsel for the petitioner relies upon three decisions of the Supreme Court in the cases of Ajab Singh and another v. State of uttar Pradesh and others.: A.I.R. 2000 S.C. 3421, Smt. Nilabati - 4 - Behera @ Lalita Behera v. State of Orissa and others: AIR 1993 S.C.1960 and Paschim Banga Khet Mazdoor Samity and others v. State of W. B.: AIR 1996 S.C.2426. Learned counsel for the State, on the other hand, submits that it is evident from the materials placed on the record that the late husband of the petitioner after his entry in Jail on 22.11.2004 was found at the time of admission in jail suffering from weakness in his left side (history of paralysis one year back). It is clear from the treatment details of Md. Hamid contained in Annexure-A to the counter affidavit that right from beginning he was given proper treatment in Jail and was also treated at Sadar Hospital, Jehanabad as per requirement and on the reference being made, he was also sent to P.M.C.H. for further treatment. Even after his discharge from P.M.C.H. he was given further treatment at Sadar Hospital, Jehanabad and again on reference being made by the Medical Board he was sent for further management in P.M.C.H. where he died during the course of his treatment. Thus it is neither a case of highhandedness of the respondent-authorities nor of denial of proper treatment to the late - 5 - husband of the petitioner. Learned counsel for the State further submits that the death of late husband of the petitioner was natural one on account of his ailment and he was not denied any medical treatment at any stage. On a consideration of the facts and circumstances of the case, I am of the view that the writ petition in a case of present nature is misconceived. The compensation under the writ jurisdiction of this Court can be granted in a case of denial of right to life, which may result in a case where a person, in custody, is subjected to torture at the hands of the police authorities as a result of which he succumbs to his injuries. Only such a case can be called as one of the custodial death and not every death which takes place while a person is in custody of the State authorities. Such was the position in the cases of Ajab Singh and Nilabati Behera(supra), where the persons were apparently healthy at the time of being taken into custody but ultimately died on account of the highhandedness and torture inflicted upon them by the police- authorities. Under such circumstances it was held by the Apex Court that the same amounts to a violation of the - 6 - right to life which would entitle the dependents of the deceased to get compensation as a public law remedy apart from a right to enforce the claims under the private law. The facts of the present case do not come at all in the category of cases referred to in Ajab Singh and Nilabati Behera’s case(supra). Similarly in Paschim Banga Khet Mazdoor Samity’s case (supra), the compensation of Rs.25,000/- Was awarded because the authorities of the Government Hospital refused treatment to an agricultural labourer when he was brought there suffering from serious injuries and brain haemorrhage. The said case was not at all one of custodial death, rather it was a case of denial of emergency medical aid by the authorities of a Government Hospital and in that circumstance he was granted compensation. In the present matter, it is evident from the materials brought on the record that the husband of the petitioner was given due and proper treatment by the respondent- authorities of the State. The submission of learned counsel for the petitioner that utter negligence was shown by respondent No.5 in discharging the petitioner on - 7 - 6th January, 2006 since he was re-admitted on 16th January, 2006 does not cut any ice, as the condition of the patient can keep varying from time to time and it is for the Doctor present on the spot on the basis of his experience and skill to consider whether his treatment should continue or he should be discharged from the Hospital. In the present matter when the petitioner was discharged from P.M.C.H., his treatment was not discontinued, rather he was under the treatment of a Doctor at Sadar Hospital, Jehanabad instead of treating him in P.M.C.H. Such exercise of discretion by a professional, unless it could be shown without any doubt that the same was a case of gross negligence, cannot be a matter of consideration under the writ jurisdiction of this Court. For the aforesaid reasons, I do not find any merit in the writ petition and it is, accordingly, dismissed. VPS ( Ramesh Kumar Datta, J. )