HIGH COURT OF ORISSA: CUTTACK W.P.(C) Nos. 20023 and 20024 of 2010 In the matter of applications under Articles 226 and 227 of the Constitution of India. ---------- In W.P.(C) No.20023 of 2010 Kamala Tadingi, W/o. Late Gangula Tadingi, Vill: Bagama, G.P./Town: Kumbhari, P.S. Narayanapatna, Dist: Koraput … Petitioner -Versus- State of Orissa & Others … Opp.Parties For Petitioner : M/s. Mina Kumari Das, S. Das & S. Mohanty For Opp. Parties : Government Advocate And In W.P.(C) No.20024 of 2010 Kamala Sirika, W/o. Late Ratunu Sirika, Vill: Siriguda, G.P./Town: Kumbhari, P.S. Narayanapatna, Dist: Koraput … Petitioner -Versus- State of Orissa & Others … Opp.Parties For Petitioner : M/s. Mina Kumari Das, S. Das & S. Mohanty For Opp. Parties : 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 : 17.05.2011 B.N. Mahapatra, J. These two writ petitions have been filed by the widows of two undertrial prisoners, namely, Gangula Tadingi and Ratunu Sirika, who died in jail custody praying for a direction to opposite parties to conduct an independent inquiry with regard to unnatural death of their husbands; punish the authorities responsible for such death and award adequate compensation to their families. 2. The case of the petitioners in a nutshell is that their husbands along with others were arrested in connection with alleged attack by the Chasi Mulia Adivasi Sangha on Narayanpatna Police Station in G.R. Case No.165 of 2009 of J.M.F.C., Laxmipur. Thereafter, they were sent to Koraput Jail. Prior to arrest, they were in good health and were cultivating forest land to earn their livelihood. The deceased were supporting the cause of Chasi Mulia Adibasi Sangha which was fighting against landlords who had occupied the lands of Adivasis. The petitioners were never informed about their husbands’ illness while in jail custody. They were also not allowed to meet their husbands in jail custody. After coming to know about death of their husbands, there was agitation among the Mahila Sangha of Narayanpatna and they demanded a judicial probe into the custodial death of their husbands. The news regarding death of their husbands was published in the Indian Express on 24.09.2010. The petitioners, finding no other alternative remedy, have filed these writ petitions. 3. Learned counsel appearing on behalf of the petitioners submitted that the deceased were badly beaten up at the time of arrest and were not provided with any medical treatment while in jail custody. As a result, the young and energetic husbands of the petitioners died untimely due to inhuman behaviour of the State police personnel. He further submitted that the petitioners belong to below poverty line category and are having no means to live after the death of their 2 husbands in jail custody. Their children have become helpless. The death of the petitioners’ husbands in jail custody is due to arbitrary, illegal and inhuman attitude of the State Authorities for which they should be punished. The petitioners are illiterate women belonging to below poverty line and their families were mostly depending upon the income of their husbands. Therefore, learned counsel prayed for grant of adequate compensation. 4. Per contra, learned Government Advocate appearing on behalf of the State Authorities submitted that late Gangula Tadingi, husband of the petitioner-Kamala Tadingi in W.P.(C) No.20023 of 2010, died in Tuberculosis in the District Headquarters Hospital, Koraput. Adequate care and medical treatment were provided to the husband of the petitioner. Deceased-Gangula Tadingi, husband of the petitioner, was arrested in connection with G.R. Case No.85 of 2009, G.R. Case No.86 of 2009 and G.R. Case No.165 of 2009 and put to jail on 17.12.2009 as per the order of the learned J.M.F.C., Laxmipur. Due to illness, the deceased- Gangula Tadingi was admitted in the Jail Hospital from 30.01.2010 till 07.04.2010 and he was provided with the medical treatment in the Jail Hospital by the Jail Medical Officer. It is further submitted that from 18.02.2010 the medicine for T.B. was administered to him with proper sick diet. On 04.07.2010, he was shifted to District Headquarters Hospital, Koraput as per the advice of the Jail Medical Officer for specialized treatment and he was admitted there. As there was no road communication and disruption of telephone line due to agitational activities of the Maoists, none of the staff of the Jail could be deputed to his native village to communicate the news of his illness. On 12.04.2010, during the course of treatment at the District Headquarters Hospital, 3 Koraput, the husband of the petitioner-Kamala Tadingi expired. The petitioner was intimated by the I.I.C., Narayanapatna Police Station to remain present at the time of inquest and post mortem. The post-mortem examination was conducted in presence of his brother-in-law. They were requested to receive the dead body but they expressed their inability and requested the State Authorities to dispose of the dead body. Accordingly, the dead body of the husband of the petitioner-Kamala Tadingi was disposed of by the Office of the Superintendent, District Jail, Koraput. 5. Late Ratunu Sirika, husband of the petitioner-Kamala Sirika in W.P.(C) No.20024 of 2010 died in severe anaemia resulting in complication of Malaria in MKCG Medical College and Hospital, Berhampur. Adequate care and medical treatment were provided to the husband of the petitioner. The deceased-Ratunu Sirika had smoking addiction. The petitioner-Kamala Sirika has failed to show any negligence on the part of the opposite party-authorities. It is further submitted that the deceased -Ratunu Sirika was arrested in connection with G.R. Case No.25 of 2009 and G.R. Case No.165 of 2009 and he was put to the jail on 03.05.2009 as per the direction of the learned J.M.F.C., Laxmipur. Due to illness, deceased-Ratunu Sirika was admitted in jail hospital on 03.05.2010 and was being provided with medical treatment by the Jail Medical Officer. On 27.05.2010, he was shifted to the District Headquarters Hospital, Koraput as per the advice of the Jail Medical Officer for specialized treatment and he was admitted there. At that time, the I.I.C., Narayanapatna Police Station was informed by Wireless Message to intimate the relatives of Ratunu Sirika about his hospitalization. The relatives of the deceased-Ratunu Sirika did not attend him during the time of treatment. On 04.06.2010, the petitioner 4 was shifted to M.K.C.G. Medical College & Hospital, Berhampur for better treatment and on 05.06.2010 the husband of the petitioner expired. The said fact was intimated to the petitioner by the I.I.C., Narayanapatna Police Station to remain present at the time of inquest and post-mortem. Relatives of the deceased were requested to receive the dead body but they expressed their inability and requested to dispose of the dead body then and there. Accordingly, the dead body of the husband of the petitioner was disposed of by the Office of the Superintendent, District Jail, Koraput. 6. The learned Government Advocate further submitted that the husbands of the petitioners were never beaten and there was no ill- treatment to their husbands inside the jail. The inquest report and post- mortem report would go to show that the deceased had no specific external injuries on their body and proper treatment was provided to them. The diet had been given to them as per Orissa Jail Manual Rules. Apart from that, extra protein diet had been provided to the deceased- Gangula Tadingi as because he was suffering from Tuberculosis. The Jail Manual and the guidelines of National Human Rights Commission were being followed in the jail. The involvement of People’s Union for Civil Liberties, which is a private organization, has no nexus with the present cases. The petitioners have failed to prove any negligence on the part of the opposite party-authorities for which the writ petitions are liable to be dismissed. 7. In the rejoinder affidavit filed in W.P.(C) No.20023 of 2010, the petitioner-Kamala Tadingi has stated that the stand taken by opposite party that her husband died in Tuberculosis was totally false and fabricated, as no detailed report on medical treatment has been filed 5 before this Court. Similar averments have been made in the rejoinder affidavit filed in W.P.(C) No.20024 of 2010 by the petitioner-Kamala Sirika. The petitioners being poor adivasis, illiterate women have no access to it. Their husbands have no criminal background and they were arrested being falsely implicated in the criminal cases. When the husbands of the petitioners were put to jail, they had complained of the police beating while they were in police custody before the Jail Medical Officer, but no treatment was provided. In a severe condition, the deceased were admitted into the jail hospital on 03.05.2010. Only after their death, the petitioners got information and were unable to take the dead body to their respective native places for cremation as per their rituals. The undertrial prisoners should have been produced in Court once in every 15 days which has been violated in the present cases. 8. It is not in dispute that the husbands of both the petitioners died while they were in jail custody. The deceased-Gangula Tadingi was aged about 44 years ( as per Annexure-1, Photo Identity Card) when he was arrested on 17.12.2009 and after about five months, he died in jail custody on 12.04.2010. Till he was arrested, he was doing cultivation and maintaining his family. Similarly in W.P.(C) No.20024 of 2010, the deceased-Ratunu Sirika was aged about 38 years on 03.05.2009 (as per Annexure-1, Photo Identity Card) when he was arrested. He died after one year and a month from the date of arrest on 05.06.2010. Till his arrest, he was cultivating the forest land and maintaining his livelihood. The deceased-Gangula Tadingi was suffering from Tuberculosis. Similarly, deceased-Ratunu Sirika was suffering from anaemia which resulted in complication of malaria. Therefore, the normal presumption is that the respective deceased persons were suffering from the alleged 6 disease only after they were admitted into the jail. Both the diseases were curable in nature. Had the opposite party-authorities taken proper care, the husbands of the petitioners could have been cured and they would not have died of such disease. 9. The learned Government Advocate has not brought any material to our notice to show that the victims were produced in 15 days interval as laid down under Section 167 (2) read with Section 167(2)(b), Cr.P.C. The families of the victims are in distress as the only breadwinners of their families died while in jail custody. In the counter affidavit it is stated that as there were no road communication and disruption of telephone line due to agitational activities of Maoist none of the staff of the jail could be deputed to the native village of the deceased Gangula Tadingi to communicate about his illness to his family members. 10. In case of deceased Ratunu Sirika, it is stated in the counter affidavit that during the period of his illness, the I.I.C., Narayan Patna Police Station was informed by wireless message to intimate the relatives of Sirika about his hospitalisation. Nothing has been stated whether I.I.C., Narayan Patna Police Station intimated to the relatives of the deceased-Ratunu Sirika about his illness. It is also not understood why a similar step has not been taken in case of deceased Gangula Tadingi to send message about his illness to his family members by I.I.C., Narayanpatna Police Station. If the opposite party-State authorities expressed their inability to communicate the message of illness of a prisoner to his family members, who subsequently succumbed to the illness, then this admission itself shows that the concerned authorities are negligent in their duties. It is found that the District Administration 7 did not make any arrangement to transport the dead bodies of the husbands of the petitioners to their respective native villages for cremation as per the tradition of the community. 11. Needless to say that the apex Court in several decisions has observed that the precious right guaranteed under Article 21 of the Constitution of India cannot be denied to the undertrial or other prisoners in custody, except according to the procedure established by law. The prison authority has a great responsibility to ensure that a citizen in custody is not deprived of his right to life. He must be afforded with minimum necessities of life. 12. The apex Court in the case of D.K. Basu v. State of West Bengal, AIR 1997 SC 610 held that : “Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rules of Law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. Court cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest ? These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic ‘No’. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.” 13. The apex Court, in the case of Chameli Singh & others Vs. State of Uttar Pradesh and another, AIR 1996 SC 1051, held as follows: “Right to life” means to live like a human being and it is not ensured by meeting only the animal needs of man. It includes the right to live in any civilised society implies the 8 right to food, water, decent environment, education, medical care and shelter.” 14. The term “life” used in Article 21 of the Constitution of India has a wide and far-reaching concept. It means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. (vide Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni, AIR 1983 SC 109; Olga Tellis & Ors. Vs. Bombay Municipal Corporation & Ors., AIR 1986 SC 1280; and Kapila Hingorani Vs. State of Bihar , (2003) 6 SCC 1).” 15. In the cases at hand, we are not satisfied that the opposite party-authorities have taken adequate care of the deceased prisoners, Gangula Tadingi and Ratunu Sirika in providing proper medical treatment for which they died prematurely at the age of 44 years and 38 years respectively in curable diseases. Therefore, the widow-dependants of the deceased Gangula Tadingi and Ratunu Sirika are entitled for compensation. 16. At this juncture, it is profitable to refer to the decision of the apex Court in D.K.Basu (supra) wherein the apex Court held as under : “42. Some punitive provisions are contained in the Indian Penal Code which seek to punish violation of right to life. Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a corrupt or malicious motive. Sections 330 and 331, provide for punishment of those who inflict injury or grievous hurt on a person to extort confession or information in regard to commission of an offence. Illustration (a) and (b) to Section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330, therefore, directly makes torture during interrogation and investigation punishable under the Indian Penal Code. These statutory provisions are, however, inadequate to repair the wrong done to the 9 citizen. Prosecution of the offender is an obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, not by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legal injury is compulsion of judicial conscience. xxxx xxxx xxxx 55. Thus, to sum up, it is now a well accepted proposition in most of the jurisdiction, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the Criminal Courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.” 10 17. In the fact situation, considering the age of the deceased persons, we direct that compensation of Rs.3,50,000/- (Rupees Three lakhs fifty thousand) should be paid to each of the petitioners. Eighty percent of the total amount of compensation shall be kept in a fixed deposit in any Nationalized Bank in the name of the widow-petitioners for a period of five years and the monthly interest accrued thereon shall be paid to the petitioners on proper identification. If the amount directed to keep in fixed deposit is required to meet any pressing needs or for any development of the family the same may be withdrawn by filing an application before this Court for grant of such permission. The balance twenty percent of the amount of compensation shall be paid to each of the petitioners on proper identification within a period of four weeks from today. 18. With the aforesaid directions, the writ petitions are allowed. ……………………... B.N.Mahapatra, J. V. Gopala Gowda, C.J. I agree. …....……………….. Chief Justice 11 Orissa High Court, Cuttack Dated 17th May, 2011/ssd/sss/skj