IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1011 of 2004 *** In the matter of an application under Article 226 of the Constitution of India. *** Sima Devi, wife of Late Bijay Ram, resident of village Bhenda, P.S. Rahui, District Nalanda...............................Petitioner Versus 1. The State Of Bihar 2. The Inspector General (Prison), Bihar, Old Secretariat, Patna 3. The District Magistrate, Nalanda at Biharsharif 4. The Jail Superintendent, Biharsharif, District Jail, District Nalanda at Biharsharif 5. The Civil Surgeon, Nalanda at Biharsharif.......................Respondents *** For the Petitioner: Mr. Binit Kumar, Advocate For the State: Mr. Ravindra Kr. Chaubey, G.P.7 *** P R E S E N T THE HON’BLE MR. JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh, J. Heard learned counsel for the petitioner and learned counsel for the respondents. 2. Petitioner, who is widow of one Vijay Ram, has filed this writ application for a direction to the respondents to pay her compensation for untimely and custodial death of her husband. 3. It is stated that petitioner’s husband was in Biharsharif jail at the relevant - 2 - time in connection with a case being Rahui P.S. Case No.99 of 2003 registered under Section 302/34 of the Indian Penal Code. Along with petitioner’s husband, his father and brothers were also in the same jail. On 16.10.2003 in the wee hours at about 3.00 A.M., while coming back from the toilet, he suddenly fell down and died. Since his father and brothers were also in jail, no male member was available in the family to perform his last rites. Therefore, a petition was filed on that very day before the trial court for permission to male members of her family, namely, father and his brothers, to attend his funeral. The petition was taken up by the trial court on the same day. The said male members were directed to be taken for the funeral of the deceased in police custody and to participate in the same and to be taken back to jail after the funeral. The court also directed the Superintendent of Jail to hold proper enquiry as to the cause of death of the deceased and get post mortem done before funeral. 4. As per submission of the learned counsel for the petitioner, the said petition, Annexure-3, which was filed before the trial court, was prepared and forwarded by the Jail - 3 - Authorities. Father and brothers of the deceased being illiterate only put their thumb impression on the same and, after getting inquest done, and after the order of the trial Court, a post mortem was held and the body was cremated. 5. Learned counsel for the petitioners submits that the deceased was suffering from jaundice from before and he was not properly taken care of and proper treatment was not provided to him by the jail authorities, due to which his condition deteriorated in jail. Learned counsel for the petitioner has also referred to a newspaper report, as contained in Annexure-5, to show that the deceased had died in jail for want of treatment. Petitioner thereafter sent a petition in the Human Rights Commission, New Delhi and other authorities of the State through registered post vide Annexure-6. Getting no response, she has filed this writ petition. 6. A counter affidavit has been filed by the respondents. It is stated in the counter affidavit that the deceased was not ailing from before, he was hale and hearty and no complaint was received by the jail authorities with regard to his suffering from any ailment from before. It - 4 - was a case of sudden death. Post mortem was conducted and in the post mortem report as contained in Annexure-A, no cause of death could be found by the conducting doctor. Therefore, viscera was preserved. It is submitted on behalf of the State that merely on the fact that cause of death of the deceased was not stated in the post mortem report, it cannot be presumed that he was suffering from any ailment from before and was not provided proper treatment and taken care of by the jail authorities. It is submitted that unless and until it is established from the records that there was negligence on the part of the jail authorities in failure to provide care, attention and medical aid to the detenu, they cannot be held, on presumption, of having committed negligence in the matter. It is submitted that for finding of negligence, the materials should be clear enough to necessarily lead to that conclusion. 7. Learned counsel for the petitioner, in reply, has referred to a judgment of the learned Single Judge of Gauhati High Court reported in 2003 Criminal Law Journal 4197 in the case of Smt. Swarna Kalita alias Jan Vrs. State of - 5 - Assam and others to contend that the authorities hurriedly cremated the dead body without waiting for wife and children of the deceased which shows that they were tying to hush up the matter. He submitted that this was enough to come to the conclusion that jail authorities were responsible for not providing medical aid. From facts of the said case, as relied upon by learned counsel for the petitioner, it appears that the said deceased was arrested by the police and brought to jail and was kept in police custody without information to her relatives and on the very next day, he was found dead and the authorities cremated the body without information to his relatives. 8. Learned counsel for the petitioner has placed reliance upon another judgment of the leaned Single Judge of Madhya Pradesh High Court reported in 1997 Criminal Law Journal 3844 (Smt. Chandabai Yadav Vrs. State of Madhya Pradesh and others). This judgment shows that admittedly, there was an incident in which deceased had received injuries and a detailed enquiry was held in which it was found that the jail administration was responsible for the incident. The cases relied upon by the learned counsel for the petitioner - 6 - were apparently decided in their peculiar fact situation and are not relevant or the present case. 9. So far as the present case is concerned, case of the petitioner is that deceased was suffering from jaundice from before and the same was reported to the authorities but he was not provided proper treatment at proper time. Jaundice does not develop in a day. When a patient suffers from jaundice, it takes weeks to develop to such a condition where patient deteriorates enough to die of the ailment. The undisputed fact is that the father and brothers of the deceased were also in the same jail. If the deceased was suffering from jaundice, there was enough time for the deceased or his father or brothers to report the matter to jail authorities. Two cases relied by learned counsel for the petitioner show that death of deceased of those cases were caused due to sudden assault in the incident which happened during custody period of the deceased. Hence, the court held the administration responsible for those injuries caused to the deceased which led to their death. 10. In this case there is no - 7 - allegation that deceased was in any way assaulted or some incident happened which caused sudden death. Long ailment for weeks, if true, gave sufficient time to the deceased, his father and brothers to report the same to the jail authorities. Nothing has been produced on record to show that any of them had reported about deceased suffering from any ailment. Had his father and brothers not been in jail along with him, the case might have been different. But in view of the facts of the case, it cannot be presumed that on account of suffering from jaundice for weeks together and on account of deterioration in his condition, deceased died without any medical treatment in spite of the fact that the same was reported to the authorities. As said earlier, there is nothing on record to substantiate this assertion of the petitioner in the writ application. 11. In the circumstances, this Court finds it difficult to accept the contention of learned counsel for the petitioner that the presumption should be drawn against the authorities of having committed negligence in providing proper treatment of the deceased and to - 8 - hold them liable for payment of compensation to the petitioner on account of death of the deceased in jail. 12. As a result, this Court does not find any merit in the writ application. The same is dismissed. (Jayanandan Singh, J.) Patna High Court, Patna The 22nd July, 2010 N.A.F.R. (B.T.)