IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) TUESDAY, THE EIGHTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT APPEAL No.1669 of 2003 BETWEEN: Kalla Balamma and another … APPELLANT(S) And The Govt. of A.P. rep. by its Chief Secretary, Secretariat building, Hyderabad and others … RESPONDENT(S) THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT APPEAL No.1669 of 2003 ORDER: (Per HON’BLE SRI JUSTICE N. RAVI SHANKAR) Appellants in this Writ Appeal are petitioners in W.P.No.8904 of 1996. They filed this writ appeal questioning the order dated 08.11.2002 of a learned single Judge of this Court by which their writ petition was dismissed. 2. The matter pertains to a claim for compensation against the State of Andhra Pradesh and its officers on account of the death of a prisoner by name Kalla Balaiah (hereafterwards referred to as ‘the deceased’) in the District Jail, Medak at Sangareddy (for short ‘District Jail’), on the plea that he died due to negligence of the staff of the said jail in not providing timely and proper medical treatment to the deceased. 3. On the date of the writ petition the 2nd petitioner was a minor aged about 15 years and therefore he was represented by his mother the 1st petitioner as his guardian. At the time of filing the writ appeal the 2nd petitioner was got declared major with leave to prosecute the writ appeal and that was permitted. 4. The 1st petitioner is the widow of the deceased and the 2nd petitioner is their son. The 1st respondent is the Government of Andhra Pradesh represented by the Chief Secretary, the 2nd respondent is the District Collector, Medak at Sangareddy, the 3rd respondent is the Inspector General of Prisons, Andhra Pradesh, the 5th respondent is the Superintendent of District Jail, and the 7th respondent is the Jailor of the said jail. The 4th respondent is the Superintendent of Police, Medak, while the 6th respondent is the Medical Officer, District Jail, Sangareddy/ District Medical Officer, Medak. 5. One Sri Mohammad Munawar the then Superintendent of District Jail, i.e., the 5th respondent filed counter affidavit for himself and also on behalf of respondents 3 and 7. The other respondents did not file counters. It should however be noted that the 5th respondent in his counter admitted about the admission of the deceased as a prisoner in the District Jail and also his death but he has denied that himself or his jail staff are in any way responsible for his death and this aspect will be dealt with infra. 6. The material facts relevant to the claim of the petitioners and which are not in dispute and which led to the filing of the writ petition can be stated thus and hereafterwards the parties shall be referred to as they are arrayed in the writ petition. Even according to the counter of the 5th respondent the deceased Kalla Balaiah along with 11 other accused were admitted in the District Jail on 15.03.1996 in connection with investigation of Crime No.5/1996 of Kolcharam Police Station pursuant to a remand order issued by the Judicial First Class Magistrate, Medak, and the said remand was granted upto 27.03.1996. The petitioners have alleged that the said police case is a false one and the 1st petitioner’s version is that she was also an accused in that case but she obtained bail and she was released and that bail was also granted to the deceased and she was taking steps to get him released by furnishing sureties when the death of the deceased occurred. It is not necessary to go into these details and also the background in which crime No.5/96 came to be registered, for the purpose of the present writ petition. 7. It would be sufficient to note that according to the counter of the 5th respondent the deceased complained of illness on 21.03.1996 and therefore the jail authorities referred him to Government Head Quarters Hospital, Sangareddy on the morning of the same date and the doctors in the said hospital treated him as an outpatient and sent him back to jail. 8. The further version found in the counter of the 5th respondent is that again on 22.03.1996 at 11.00 AM the subordinate staff of the District Jail and the Jailor informed the 5th respondent that the deceased complained of loose motions and again the 5th respondent made arrangements and the deceased was immediately sent to the Government Head Quarters Hospital at Sangareddy at 11.20 AM from the jail premises on the same day in a rickshaw with jail escort. It is then stated in the counter that on the same day the authorities of the said hospital declared him dead at 11.45 AM. It is then stated that the further action was initiated and the matter was informed to all concerned. 9. The version of the petitioners is that they were totally unaware about the illness of the deceased and they say that the deceased was a hale and healthy person. They also stated that on 23.03.1996 they came to know about the death of the deceased through newspaper reports appearing in Vaartha paper and Eenadu paper of Medak edition of 23.03.1996 and in the said newspapers it was reported that the deceased died of loose motions and temperature in the jail itself. The plea of the petitioners is that the deceased was a hale and healthy man and he died only because of the failure of the Superintendent and the other staff of the District Jail in providing proper and timely medical treatment to the deceased. The plea of the petitioners is that the State and its officers are bound to protect the fundamental rights of citizens and the fundamental right of right to life is available to a prisoner also and in the above circumstances the State cannot be exonerated from its liability for the death of the deceased and consequently it is liable to compensate the petitioners. 10. The petitioners then mentioned about the Prisons Act, 1894 and the various Rules framed thereunder which enjoin the authorities of a prison to look after the prisoners and their health and also their food and clothing and urged that the Superintendent of the District Jail and the concerned Jailor and the subordinate staff of the said jail acted in a negligent manner and in violation of the said rules and did not provide proper and timely medical treatment to the deceased and because of that only the deceased died and consequently the jail authorities and the other respondents are liable to pay compensation to them. 11. Regarding the claim for compensation, the petitioners pleaded that every person kept in custody in a prison also remains a human being notwithstanding such custody he still continues to have his right to life under Article 21 of the Constitution and the deceased also had such a right and as his death occurred because of the negligence of the jail staff, they (petitioners) are entitled to compensation going by the various rulings given by the Supreme Court. In other words, it is clear that petitioners are claiming compensation as a public law remedy under Article 226 of the Constitution on the principle of violation of Article 21 i.e. right to life of the deceased by the State and its servants. The petitioners on the above pleas claimed a sum of Rs.2 lakhs towards compensation. 12. The plea of the 5th respondent i.e. the Superintendent, District Jail is that himself and his subordinate staff are aware of their duties under the Prisons Act 1894, and also the various Rules framed under the said Act. He further pleaded that himself or his subordinate staff have never neglected any prisoner lodged in their prison and they have not neglected the deceased also. In this connection the 5th respondent stated that earlier there was no post of Medical Officer for the District Jail and that though the Government have sanctioned the said post through G.O.Ms.No.86 dated 23.02.1996 the said post has not been filled up i.e. by then. He therefore stated that every ailing prisoner in his jail was being taken to the District Head Quarters Hospital, Sangareddy, for treatment and that is how the deceased was also taken there on 21.03.1996 and also on 22.03.1996 immediately and there was no negligence on his part. In this connection, it is also stated in the counter that the deceased was aged 60 years suggesting that even his age coupled with his ailment may have contributed to his death. 13. The 5th respondent further pleaded that on 18.03.1996 he conducted his weekly inspection and personally saw all the prisoners and was satisfied about the facilities made available to the prisoners and their health condition. He then stated that when the deceased complained of illness on 21.03.1996 he was sent to the Government Head Quarters Hospital, Sangareddy, for treatment and on that day he was treated as an outpatient and he was sent back to the jail. It is stated that the very fact that the deceased was treated as an outpatient on 21.03.1996 would itself show that he was not suffering from any serious ailment. He says that even on the night of 21.03.1996 he made his rounds in the jail and found that all the prisoners including the deceased were alright. He then stated that again on 22.03.1996 the deceased complained of illness and therefore steps were taken and he was promptly sent to the above hospital again where unfortunately he was declared dead. Regarding the actual occurrence of the death of the deceased, it is stated in the counter of the 5th respondent that the distance between the jail and the hospital is about 1 KM and the deceased might have expired before he reached the hospital or a little later after he reached the hospital. With the above pleas the 5th respondent pleaded that he or the other jail authorities cannot be made answerable for the death of the deceased for not providing timely medical care and consequently the petitioners claim must be rejected. 14. The learned single Judge considered the above defence of the 5th respondent and found it acceptable and in that view of the matter she dismissed the writ petition. The contention of the petitioners counsel is that the learned single Judge did not consider the matter in its proper perspective and reiterated the pleas taken by the petitioners and argued that the State must be held responsible for the death of the deceased and it must be made liable to compensate them. In the course of arguments he also relied upon two judgments of our Honourable Supreme Court one given in NILABATI BEHERA vs. STATE OF ORISSA[1] and the other given in STATE OF A.P. vs. CHALLA RAMAKRISHNA REDDY[2]. He argued that the principles laid down in the above two decisions can be extended even to a case where the death of a person whilst in custody in a prison has occurred for want of medical care and therefore the State must be made liable in the present case and be directed to pay compensation. On the other hand, the learned Government Pleader basing on the stand of the 5th respondent argued that the various averments made in the counter show that the jail authorities took reasonable and sufficient care which an ordinary prudent man would take to provide medical treatment to the deceased, but unfortunately he passed away and consequently the jail authorities cannot be held guilty of any negligence and therefore the claim of the petitioners should be rejected. 15. At the time of arguments in this writ appeal we requested the learned Government Pleader to find out whether any magisterial inquiry was ordered into the cause of the death of the deceased and if so to produce that enquiry report along with the postmortem report pertaining to the deceased. Accordingly he produced the said report along with the file. 16. It is seen from the file the death of the deceased on the report of the Superintendent of the Jail was registered as Crime No.76/1996 under Section 174 Cr.P.C. in Sangareddy Police Station on 22.03.1996 at 14.00 hours. Thereafter the authorities took all the formalities and the then Sub-Divisional Magistrate, Sangareddy, held the magisterial enquiry into the death of the deceased. His report in file No.A3/1565/96 dated 24.01.1997 has been placed before us along with the file. The said report shows that the Sub-Divisional Magistrate in the course of enquiry examined 22 witnesses including the cellmates of the deceased and the jail staff. It is not necessary to discuss this report in detail but it would be relevant to note the conclusion of the Sub- Divisional Magistrate about the cause for the death of the deceased. His conclusion which is at pages 14 and 15 of his report reads as follows. “It is clear from the deposition of co-prisoners of the deceased and also the Jail officials that Balaiah was suffering from ill-health atleast (3) days prior to his death. It is also clear that the fact was brought to the notice of the Chief Warders (Sri Afzal Ali and also Mohd. Ghouse though they denied it). That two tablets were brought by Sri.Mohd.Ghouse for the decased was testified by Sri.A.Pulla Reddy a warder. Besides him, other constables Sri.P.Rama and Prabhulu have also seen the deceased being helped to bath etc., by the Co- prisoners. That the plight of an ill-prisoner being carried because of his inability do so himself has not evoked a response from the Jail authority either from the warder (who were admittedly witnessed) or duty warder, is a serious lapse on the part of the Jail authorities. It is observed that the Doctor who are to necessarily go on rounds in the jail are not doing so in Sangareddy Jail and the reasons for not doing so are nil. While the Doctor who have examined Balaiah on the day prior to the death have stated that K.Balaiah was not so ill as to admitted in Hospital, still he died within 24 hours of treatment. While the Jail authorities insist that he died after leaving the Jail. The co-prisoner insist that Kalla Balaiah died in the cell which could well be the case taking into consideration the contradictory statements of the jail authorities regarding carrying of Balaiah’s body in the cell to the gate. Also the absolute denial of Balaiah’s illness by the Chief warders is strange and not tenable considering that the warders themselves have admitted to it. Therefore, I am of the opinion that the death of Kalla Balaiah s/o Hanmaiah was occurred in the cell itself. In conclusion, the role of the Jail authorities in the case has been far from exemplary, especially the Chief warder Sri.Afzal Ali who denied treatment to Sri.Balaiah despite repeated request is guilty of negligence and irresponsibility. The treatment of a sick prisoner in Jail has to be part of their routine schedule in jail and cannot be at the whim and fancy of the jail authorities which sadly has been in this case. As such Chief warder Sri Afzal Ali is liable for disciplinary action. As also Superintendent of Jail who owes a moral responsibilities of owning up the negligence.” 17. It may thus be noted that in substance the Sub-Divisional Magistrate concluded that the deceased was not well since at least three days prior to his death and the above conclusion of the Sub-Divisional Magistrate shows that the role of the jail authorities in this case especially the Chief Warder Afzal Ali who denied the treatment to the deceased is far from satisfactory and of-course he used the word ‘exemplary’. The Sub-Divisional Magistrate did not consider the age of the deceased and it appears that he did not give any importance even to the fact that the deceased was treated as an outpatient on 21-03-1996 and it is therefore clear that he rejected both the said pleas of the jail superintendent. In other words the above conclusion of the Sub-Divisional Magistrate shows that the jail authorities were responsible in not providing timely medical treatment to the deceased and that resulted in his death. 18. The question now is whether the contention of the petitioners should be accepted and whether the State should be made liable to compensate them for the death of the deceased. In Nilabati Behera’s case (1 supra) a Bench of the three Judges of our Honourable Supreme Court categorically laid down that in case of violation of fundamental rights by State’s instrumentalities or servants the Court can direct the State to pay compensation to the victim or his heir by way of payment of money and that the principle of sovereign immunity is inapplicable there. The same principle was reiterated in Challa Ramakrishna Reddy’s case (2 supra). Of-course in the first case the death of the concerned deceased in that case was held to have occurred when he was in the police custody and in the second case the death occurred due to a bomb blast in a jail where the deceased therein was lodged. 19. In both the above cases, there was violence which led to the death of the persons in question therein and in both the cases it was found that there were lapses on the part of the State and its servants and therefore they must be held responsible for the death of the deceased therein inasmuch as they violated the fundamental right to life given under Article 21 of the Constitution by not protecting the same due to their administrative lapses. In both the cases it has been categorically held that prisoners though in custody of the authorities of the State continue to have fundamental rights especially the right to life which cannot be violated except by authority of law which is constitutionally valid, and in case it is violated the State is in principle liable to compensate the victim or his heir. It is therefore not necessary for us to restate the fundamental right of the prisoners under Article 21 and also the provisions of the Prisons Act and the various Rules framed under it and it is also not necessary to repeat the precedents on this aspect. This position is now well settled. 20. In the present case the plea of the petitioners is that the deceased died as the jail authorities of the District Jail, Sangareddy, did not provide timely and proper medical treatment to the deceased. This prima facie gains support from the report of the Sub-Divisional Magistrate who held the magisterial enquiry and whose conclusion has been extracted above. It should now be noted here that in Nilabati Behera’s case (1 supra) it has been held that the duty of care on the part of the State to protect the fundamental right of a citizen including a prisoner is strict and admits of no exception. It is also held in the said decision that the state and its officers would be liable in tort for damages if the death of the prisoner occurs due to negligence or lack of care on the part of its officers in protecting his person. It has been observed in the above decisions that normally in such a case the victim or his heirs should sue for compensation under the ordinary law in a civil Court but where the violation of fundamental rights is involved by the State or its servants the State should be made prima facie liable notwithstanding the rights available under the ordinary civil law to the aggrieved party when such relief is found warranted. It was however held that compensation should be awarded in such cases without prejudice to the rights of the aggrieved parties to work out their remedies ultimately in a civil Court. 21. In the case on hand as already seen supra the report of the Sub-Divisional Magistrate shows that the Chief warder Sri.Afzal Ali was responsible in denying timely treatment to the deceased and he was negligent and irresponsible. The Sub-Divisional Magistrate also observed that the jail authorities in general are also responsible for that negligence. Consequently it follows that the Inspector General of Prisons, Andhra Pradesh, Hyderabad i.e. the 3rd respondent and the Government of Andhra Pradesh i.e. the 1st respondent and also the District Collector who is the 2nd respondent must also be made vicariously liable for the action of the Chief warder and the jail authorities of the District Jail, Sangareddy, including its Superintendent and the Jailor who are also respondents to the writ petition. In other words, the 1st respondent i.e., the government of Andhra Pradesh and its servants looking after the administration of the jails must be held responsible for not providing the timely and proper medical treatment to the deceased. 22. It should be noted here that normally an individual who is free will take care of his treatment but when he is in custody in a jail, the jail authorities should take care of providing treatment to his ailment as the jail authorities will have full control over his movements and the restrictions placed on him. Under the law of torts showing negligence or carelessness in not providing timely and proper medical treatment by a person who has control or custody of the victim amounts to tort and gives rise to a civil action for damages. In a case like this as it is the duty of the State and its authorities to provide such timely medical treatment without showing any negligence it follows that failure of the State and its authorities to provide such treatment would certainly amount to violation of right to life if it results in death and therefore the District Jail authorities and consequently the State itself must be held responsible prima facie in this case on the basis of the report of the Sub-Divisional Magistrate who is also a responsible officer of the State. In our opinion the principle of tortuous liability for violation of fundamental rights as laid down in the above two decisions of our Supreme Court can be extended even to a case where timely and proper medical treatment is not provided to a prisoner by the jail authorities in a case like this. On the basis of the report of the Sub-Divisional Magistrate in this case, we are of the opinion that the respondents especially the 1st respondent i.e. the State must be held liable to pay compensation to the petitioners for the death of the deceased. 23. It may however be noted and as laid down in the above two cases the ultimate remedy of the petitioners would lie in seeking adequate compensation for the death of the deceased in a civil Court by way of a suit. In this connection we must also mention here that in T.T.ANTONY vs. STATE OF KERALA[3] it has been held that a report of a commission of enquiry is not binding on a Court or a police officer who investigates a case and each can come to its own or his own conclusion basing on the evidence placed before it. Hence, going by the above principle, irrespective of the above report of the Sub-Divisional Magistrate, the civil Court in which the petitioners may file a suit may uphold the case of the State or that of the petitioners basing on the evidence before it. However the Sub-Divisional Magistrate’s report prima facie shows that the jail authorities and through them the State are prima facie responsible for the death of the deceased in not providing timely and proper medical treatment to the deceased and the petitioners must be given monetary relief by this Court. 24. Accordingly for the aforesaid reasons and in the circumstances of this case we are of the opinion that a sum of Rs.50,000/- (Rupees