Criminal Writ No.1205 of 2008 Munni Devi, wife of late Arbind Singh @ Arbind Kumar Singh, R/O Village-Madhkaul, P.S.Belsand , District-Sitamarhi .... .... Petitioner/s Versus 1. State Of Bihar through the Home Secretary, Govt. of Bihar, Patna. 2. The Director General of Police, Govt. of Bihar, Patna 3. The Inspect General of Police (Prisoner) 4. The Divisional Inspect General of Police, Muzaffarpur 5. The District Magistrate, Sitamarhi (Bihar) 6. The Superintendent of Police, Sitamarhi 7. The Jail Superintendent, Sitamarhi (Bihar) .... .... Respondent/s ================================================== Appearance : For the Petitioner/s : Mr. Tajendra Sinha, Advocate For the Respondent/s : AC to AAG-1 ================================================== P R E S E N T HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI Aditya Kumar Trivedi, J. Petitioner Munni Devi has filed instant writ asking for compensation from the respondents on account of death of her husband Arbind Kumar Singh @ Arbind Singh, being under trial prisoner. 2. The admitted fact as is visualizing from the respective pleading is that the aforesaid Arbind Kumar Singh @ Arbind Singh was an accused in Belsand P.S. Case No. 67/2006 and on account thereof, he surrendered before the court concerned on 5.4.2007 and was remanded to judicial custody. Subsequently thereof, he fell ill and 2 was taken care of by the local jail doctor at Mandal Kara, Sitamarhi and there from was recommended for specialized treatment whereupon he was shifted to SKMCH, Muzaffarpur. At the SKMCH, doctors examined him and he was diagnosed suffering from hyper tension, diabetes, chronic case of renal failure and so he has been referred to IGIMS, Patna and for that, the Superintendent SKMCH had reported but on account of negligence on the part of the authorities concerned, he was neither shifted nor any steps were taken and that resulted in his death on 20.08.2007 at SKMCH itself. 3. Contention on behalf of the petitioner is that there is no controversy with regard to death of her husband, Arbind Kumar Singh @ Arbind Singh who was under judicial custody in connection with Belsan P.S. Case No. 67/06 at SKMCH, Muzaffarpur. 4. It has further been submitted that from Letter No.-1376 dated 2.8.2007 (Annexure-3), it is evident that her husband deceased, Arbind Kumar Singh @ Arbind Singh suffered from some chronic ailment on account thereof a Medical Board was constituted at Sitamarhi which recommended him for his shifting to SKMCH. From Annexure-4 it is evident that the Superintendent, SKMCH had reported vide letter no. 1538 dated 11.08.2007 to Superintendent, Mandal Kara, Sitamarhi as well as to the Superintendent of Shaheed Khudi Ram Bose Central Jail, Muzaffarpur detailing the physical condition of 3 deceased, Arbind Kumar Singh @ Arbind Singh and further advising that he be immediately shifted to IGIMS, Patna but the authorities concerned slept over the matter and that led ultimate death of petitioner’s husband at SKMCH on 20.08.2007. 5. Then it has been submitted that the under trial prisoners also possesses protection of Article 21 of the Constitution and having been infringed at the ends of authorities concerned which ultimately cost his life, must be seriously viewed and for that petitioner should be properly compensated. 6. Counter affidavit has been filed on behalf of the State by its representative wherein the disclosure made by the petitioner has been controverted and further pleaded that the same has been filed with an ulterior motive incorporating false and frivolous allegation. Then submitted that from the annexures filed on behalf of the petitioner itself it is evident that whatever disease the deceased was carrying could not occur during period of his being an under trial prisoner rather the deceased was suffering there from since before long. In spite of having all the proper medical facilities provided by the State, deceased could not survive. Therefore, neither there happens to be laches, slackness, negligence on the part of State or its employee nor State could be held responsible for the same. It has further been submitted that there was no delay or negligence on the part of any of the 4 authority rather on account of Independence Day celebration as well as some sort of anti-social activities visualizing at the Indo-Nepal border deployment of force were made and on account thereof, virtually, no police personnel was readily available for lifting the deceased from SKMCH to IGIMS, Patna. So, prayer made on behalf of the petitioner is not at all tenable. 7. A separate counter affidavit has been filed on behalf of Jail Superintendent, Respondent No.7 wherein, it has been narrated that there has been no slackness on his part in getting the under trial prisoner examined by the Jail doctor and as soon as the matter was reported by the jail doctor, the District Magistrate, Sitamarhi was informed at whose order, a Board was constituted and after examination of the under trial prisoner, as per its opinion, was transferred to SKMCH. Further, it has been submitted that on 7.8.2007 the escort party informed that the under trial prisoner was to be taken to IGIMS, Patna as per advice of the Doctors of SKMCH and the petitioner vide letter no. 1408 dated 7.8.2007 (Annexure-A) requested to the S.P. for providing escort as well as court was also informed by annexure-B. Because of the fact that no force was made available although correspondence was going on ultimately on 20.8.2007, he received an information regarding death of the under trial prisoner, Arbind Kumar at the hospital. 5 8. Respondent No.5, District Magistrate had also separately filed counter affidavit challenging the maintainability of the petition. He further challenged the date of death, which as per petitioner happens to be 20.08.2007 while according to his information happens to be 28.8.2007. Also submitted that deceased was given proper medical care but it was unfortunate that he could not survive and took his last breath at SKMCH. Also submitted that he also had requested to S.P. vide letter no.808 dated 1.8.2007 to provide proper escort so that deceased be shifted for getting adequate medical facilities. 9. After hearing the respective parties as well as going through the respective pleadings, it is admitted that on account of ailment of under trial prisoner, Arbind Kumar, who was in custody in connection with Belsand P.S. Case No.67/07, and as per advice of Board, was shifted to SKMCH. It is also an admitted fact that the Superintendent as well as escort party which was along with deceased under trial prisoner, Arbind Kumar at SKMCH, Muzaffarpur had informed the Jail Superintendent, Sitamarhi on 2.7.2007 itself that the doctors had advised to shift the deceased to IGIMS, Patna as per paragraph-4, sub-para-D of the counter affidavit filed on behalf of the Respondent no.7. The death of deceased at SKMCH, though been controverted so far the date of death is concerned by the Respondent 6 No.5 as 28.8.2007 in place of 20.8.2007 but the other counter affidavit filed by the Respondent No.6 and 7, it discloses as 20.08.2007. Controverting over date whether it be 20.8.2007 or 28.8.2007, is immaterial. The material fact is that an information was already received by the authority on 7.8.2007 itself that the physical condition of Arbind Kumar Singh was deteriorating and was requiring specialized treatment at IGIMS, Patna. Then forcing him to remain at SKMCH, Muzaffarpur, for thirteen consecutive days speaks a lot how a life of under trial prisoner has been considered by the authorities as a priceless gem. The escort party was already available with the deceased under trial prisoner, Arbind Kumar Singh guarding him at SKMCH, then in that event if the authorities concerned would have sensitized themselves over the issue, would have directed the escort to carry him to IGIMS, Patna. So, there happens to be some sort of fault at the hands of authorities at this juncture and further continuing with it for days together which ultimately cost life to the under trial prisoner, cannot be/should not be considered as inadvertent mistake on the part of authorities. After all, on account of laches, negligence, fault a human has lost his life which he was entitled to be protected at the hands of State under the guise of Article-21 of the Constitution. 10. How far an under trial prisoner is entitled for protection in accordance with Article-21 of the Constitution has been 7 taken into consideration by the Hon’ble Apex Court and for that I would like to rely upon a decision reported in AIR 2000 SC 2083 and the relevant paragraphs are as follows:- “22. Right to life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that right. A prisoner, be he a convict or undertrial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution. On being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rights. 23. “Prison” has been defined in Section 3(1) of the Prisons Act, 1894 as any jail or place used permanently or temporarily under the general or special orders of the State Government for the detention of prisoners. Section 3 contemplates three kinds of prisoners. Sub-section (2) of Section 3 defines “criminal prisoner” as a prisoner duly committed to custody under the writ, warrant or order of any court or authority exercising criminal jurisdiction or by order of a court martial. “Convicted criminal prisoner” has been defined in Section 3(3) as a prisoner under sentence of a court or court martial and includes a person detained in prison under the provisions of Chapter VIII of the Code of Criminal Procedure, 1882 or under the Prisoners Act, 1871. The corresponding provision in the new Code of Criminal Procedure is not being indicated as it is not necessary for purposes of this case. “Civil prisoner” has been defined in Section 3(4) as a prisoner who is not a “criminal prisoner”. 24. Thus, according to the definition under the Prisoners Act, there is a convict, there is an undertrial and there is a civil prisoner who may be a detenu under preventive detention law. None of the three categories of prisoners lose their fundamental rights on being placed inside a prison. The restriction placed on their right to movement is the result of their conviction or involvement in crime. Thus, a person (prisoner) is deprived of his personal liberty in accordance with the procedure established by law which, as pointed out in Maneka Gandhi v. Union of India10 must be reasonable, fair and just. 25. The rights of prisoners, including their fundamental rights have been culled out by this Court in a large number of decisions, all of which may not be referred to here. In State of Maharashtra v. Prabhakar Pandurang Sanzgiri11 it was held that conditions of detention cannot be extended to deprivation of other fundamental 8 rights and the detenu, who had written a book in Marathi, could not be prohibited from sending the book outside the jail for its publication. In D. Bhuvan Mohan Patnaik v. State of A.P.12 it was laid down that convicts are not denuded of all the fundamental rights they possess. Chandrachud, J. (as he then was) held: “The security of one's person against an arbitrary encroachment by the police is basic to a free society and prisoners cannot be thrown at the mercy of policemen as if it were a part of an unwritten law of crimes. Such intrusions are against „the very essence of a scheme of ordered liberty‟.” (See: D. Bhuvan12, SCC p. 188, para 9) 26. In Charles Sobraj v. Supdt., Central Jail, Tihar13 Krishna Iyer, J. observed as under: (SCC p. 110, para 14) “True, confronted with cruel conditions of confinement, the court has an expanded role. True, the right to life is more than mere animal existence, or vegetable subsistence. True, the worth of the human person and dignity and divinity of every individual inform Articles 19 and 21 even in a prison setting. True constitutional provisions and municipal laws must be interpreted in the light of the normative laws of nations, wherever possible and a prisoner does not forfeit his Part III rights.” (See: Charles Sobraj13, AIR p. 1517, para 14) 27. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi14 the Court held that right to life means the right to live with basic human dignity. In this case, the petitioner, who was a British national and was detained in Central Jail, Tihar, had approached this Court through a petition of habeas corpus in which it was stated that she experienced considerable difficulty in having interview with her lawyer and the members of her family. She stated that her daughter, who was 5 years of age, and her sister who was looking after the daughter, were permitted to have interview with her only once in a month. Considering the petition, Bhagwati, J. (as he then was) observed at AIR pp. 753-54 in para 8 as under: (SCC pp. 619-20, para 9) “9. The same consequence would follow even if this problem is considered from the point of view of the right to personal liberty enshrined in Article 21, for the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that article. The expression „personal liberty‟ occurring in Article 21 has been given a broad and liberal interpretation in Maneka Gandhi case10 and it has been held in that case that the expression „personal liberty‟ used in that article is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which „have been raised to the status of distinct fundamental rights and given additional 9 protection under Article 19‟. There can therefore be no doubt that „personal liberty‟ would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary. If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Articles 14 and 21.” (See also: Sunil Batra v. Delhi Admn.15 and Sunil Batra (II) v. Delhi Admn.16) 28. Thus, fundamental rights, which also include basic human rights, continue to be available to a prisoner and those rights cannot be defeated by pleading the old and archaic defence of immunity in respect of sovereign acts which has been rejected several times by this Court. 29. In N. Nagendra Rao & Co. v. State of A.P.17 it was observed: (SCC p. 235, para 25) “25. But there the immunity ends. No civilised system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal or political system today can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy. From sincerity, efficiency and dignity of State as a juristic person, propounded in nineteenth century as sound sociological basis for State immunity the circle has gone round and the emphasis now is more on liberty, equality and the rule of law. The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government on a par with any other juristic legal entity. Any watertight compartmentalisation of the functions of the State as „sovereign and non-sovereign‟ or „governmental and non-governmental‟ is not sound. It is contrary to modern jurisprudential thinking. The need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for sake of society and the people the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State even though it was against law and negligent. Needs of the State, duty of its officials and right of the citizens are required to be reconciled so that the rule of law in a welfare State is not shaken. Even in America where this doctrine of sovereignty found its place either because of the „financial instability of the infant American States rather than to the stability of the doctrine's theoretical foundation‟, or because 10 of „logical and practical ground‟, or that „there could be no legal right as against the State which made the law‟ gradually gave way to the movement from, „State irresponsibility to State responsibility‟. In welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non- sovereign powers for which no rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity.” 30. The whole question was again examined by this Court in Common Cause, A Registered Society v. Union of India18 in which the entire history relating to the institution of suits by or against the State or, to be precise, against the Government of India, beginning from the time of the East India Company right up to the stage of the Constitution, was considered and the theory of immunity was rejected. In this process of judicial advancement, Kasturi Lal case9 has paled into insignificance and is no longer of any binding value. 31. This Court, through a stream of cases, has already awarded compensation to the persons who suffered personal injuries at the hands of the officers of the Government including police officers and personnel for their tortious act. Though most of these cases were decided under public law domain, it would not make any difference as in the instant case, two vital factors, namely, police negligence as also the Sub-Inspector being in conspiracy are established as a fact. 32. Moreover, these decisions, as for example, Nilabati Behera v. State of Orissa19, Death of Sawinder Singh Grower, In re20 and D.K. Basu v. State of W.B.21 would indicate that so far as fundamental rights and human rights or human dignity are concerned, the law has marched ahead like a Pegasus but the government attitude continues to be conservative and it tries to defend its action or the tortious action of its officers by raising the plea of immunity for sovereign acts or acts of the State, which must fail. 11. Another decision on this score happens to be reported in AIR 2000 SC 3421, paragraphs 8 and 9 are relevant which run as 11 follows:- 8. If we may be permitted to use the same words, what appears to us to be a concocted story is that set out in the respondent’s affidavit. They are, to our mind, desperate attempts to avoid responsibility for acts committed while Rishipal was in judicial custody. There can be no doubt that the respondents have not investigated the cause of death of Rishipal as they ought to have done or that, at any rate, they have not placed all relevant material before this Court. They have attempted to pull the wool over the eyes of this Court. We do not appreciate the death of persons in judicial custody. When such deaths occur, it is not only to the public at large that those holding custody are responsible; they are responsible also to the Courts under whose order they hold such custody. 9. The State of Uttar Pradesh is responsible in public law for the death of Rishipal and must pay compensation to the petitioners for the same. [see D.K. Basu v. State of West Bengal, (1997) 1 SCC 416: (1997 AIR SCW 233: AIR 1997 SC 610 : 1997 Cri LJ 7430. 12. The aforesaid view has also been considered times without number by our own Hon’ble Court as reported in 2011(3) Bihar Law Judgment page as well as 2011 (3) PLJR 735. 13. Thus, from the factual aspect as is visualizing in the background of the materials placed by the rival parties as well as having it properly scrutinized, it is clearly evident that languishing of deceased under trial prisoner from 7.8.2007 to 20.8.2007 at SKMCH, Muzaffarpur was uncared and further the acute chronic disease of deceased under trial prisoner, Arbind Kumar Singh even failed to sensitize the authorities concerned to discharge their pious obligation 12 which they were bounded for and slackness on their part for the aforesaid intervening period has ultimately cost the life of under trial prisoner. 14. It is needless to remind that the employer is accountable for the negligence on the part of his employee and for that I would like to refer AIR 1962 SC 933 as well as 1989(4) SCC 730. 15. Thus, the State is held accountable for the negligence committed at the part of its employee which ultimately cost life of under trial prisoner, Arbind Kumar Singh. 16. Consequent thereupon, State is directed to pay lump sum of Rs.2 Lacs to the petitioner, Munni Devi wife of late Arbind Kumar Singh @ Arbind Singh within two months from the date of receipt of this order. 17. The State will be at liberty to realize the amount after deducting it from the salary of defaulting authorities. 18. Let a copy of this order be served upon A.C to A.A.G.1 for its strict compliance. Patna High Court The 13th day of December 2011 Md. Perwez Alam/AFR ( Aditya Kumar Trivedi, J.)