“There cannot be any doubt that the responsibility of ensuring the safety of the inmates during the day or in the night as long as they are in the prison is upon the said authorities”: Sikkim High Court

THE HIGH COURT OF SIKKIM: GANGTOK CIVIL EXTRA ORDINARY JURISDICTION) Single Bench: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE W.P.(C) No. 421 State of Sikkim Through the Chief Secretary Government of Sikkim Gangtok East Sikkim. .... Petitioner Versus National Human Rights Commission Through the Secretary General National Human Rights Commission Manav Adhikar Bhawan Block C GPO Complex INA New Delhi 110023. .... Respondent Petition under Article 226 of the Constitution of India Mr. Hissey Gyaltsen Assistant Government Advocate for the JUDGMENT03.12.2021) Bhaskar Raj Pradhan J. Heard Mr. Hissey Gyaltsen learned Assistant Government The State of Sikkim has preferred this writ petition under Article 226 of the Constitution of India seeking a writ for setting aside the show cause notice dated 13.01.2021 and orders dated 9.6.2021 and 14.9.2021 passed by the National Human Rights Commission NHRC) in NHRC Case No. 1 21 3 2020 jcd relating to the suicide of 2 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission an under trial prisonerRoshan Chettri in District Jail Namchi as being arbitrary and illegal. On 13.01.2021 the NHRC issued a show cause notice to the Chief Secretary of the petitioner stating inter alia that the Commission had received intimation on 06.05.2020 from the Jailor District Jail Namchi Sikkim regarding suicide by the UTP Roshan Chettrison of Shri Dilip Chettri in the prison on 04.04.2020. The show cause notice also records that the Investigation Division of NHRC after collecting analyzing relevant reports records has submitted that the deceased UTP was a covid 19 positive patient and was in quarantine along with another UTP. On 04.04.2020 at 11 a.m. the deceased made an attempt to commit suicide by hanging on the door of his cell with the help of cloth of the blanket provided to him but that act was noticed by his cell mate who caught hold his body and called out for help. Subsequently jail authorities arrived and brought him down by cutting the blanket cloth. He was immediately shifted to hospital wherein he died during the treatment. The inquest and the Post Mortem Examination revealed no injury on the body of the deceased other than ligature marks the cause of death was asphyxia due to hanging. The Magisterial Enquiry Report conducted by the learned Judicial Magistrate South Sikkim Namchi concluded that no medical negligence and foul play was found in the death of the deceased and that he committed suicide by hanging. 3 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission The show cause notice further recorded that vide direction dated 11.12.2020 the Commission after considering the relevant reports had considered and directed as under: “Prima facie the deceased committed suicide in day time i.e. at 11:10 AM. Ensuring the safety and security of inmates who are under care and custody of the prison is one of the prime duties of the authorities concerned in which it failed. Had the prison authorities been vigilant enough incident could have been avoided and the precious life would have been saved. Hence the State is vicariously liable to compensate the next of kin of the deceased under trial prisoner.” The show cause notice thereafter required the petitioner to show cause as to why monetary compensation of Rs.3 75 000 should not be recommended under section 18(a)(i) of the Protection of Human Rights Act 1993 to be paid to the next of kin of the deceased Roshan Chettri. On 05.03.2021 the petitioner responded to the show cause notice stating that no case of negligence on the part of jail administration was found during the judicial enquiry by the learned Judicial Magistrate South Sikkim at Namchi. The petitioner also forwarded the following documents to the NHRC: The detailed report of DIGP State Central Prison Rongyek received vide letter dated 25 02 2021 Letter to the Ld. CJM South District by the Jailer commission of suicide by UTP Roshan Chhetri final enquiry report of Ld. JM Namchi u s 176 of Cr.PC. 1973 Jail Namchi iv) Warrant of Commitment to Judicial Custody Report submitted to the Sikkim Human Rights Commission First Information Report vi) 4 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission Inquest Form u s 174 of Cr.PC of Namchi Police Station Inquest Report u s 176 of Cr.PC of Judicial Magistrate Namchi Post Mortem Report of the deceased Roshan Chettri Statement of witnesses taken by the Police Final Report of a reported case of unnatural deadu s 174 of Cr.PC. 1973.” In the meanwhile Dilip Chettri father of the deceased Roshan Chettri filed a Writ Petition No. 02 of 2021 under Article 226 of the Constitution of India. The writ petition prayed for a direction upon the state respondents to pay compensation to the tune of Rs.20 00 000 as well as for an independent investigation of the incident of the alleged suicide by a retired judge or a government officer or any other person as deemed fit. The writ petition was taken up on 12.03.2021 by the learned Single Bench of this court and the following order was passed: “After hearing Learned Counsel for the Petitioner and duly considering the matter this Writ Petition deserves to be and is dismissed in limine.” Thereafter the NHRC vide communication dated 09.06.2021 addressed to the Chief Secretary of the petitioner informed that the Commission on 09.06.2021 had directed as follows: “ .. In the instant case the Commission had received an intimation on 06.05.2020 from Jailor Dist. Jail Namchi Sikkim regarding suicide by under trial prisoner Roshan Chhetari S o Dilip Chhetrari in the prison on Vide proceeding dated 24.04.2021 the Commission observed and directed as under 5 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission the part of “Pursuant to the directions of the Commission letter dated 05.03.2021 has been submitted by the Joint Director Home Department Govt. of Sikkim who has submitted the detailed report Letter to Ld. CJM South District final enquiry report warrant of commitment to judicial custody to Sikkim Human Rights report submitted Commission First Information Report Inquest form and report post mortem report of the deceased statement of witnesses final report of a reported case of unnatural death U sec. 174 Cr.P.C. As per the attached detailed report of the DIGP State Central Prison dated 25.02.2021 the authority has relied upon the judicial enquiry and the final report filed by the P.S. Namchi which does not establish any negligence on administration district prison Namchi. The Commission has taken note of the contents of the show cause notice the reports reply submitted by the authorities and has also considered the facts and circumstances of the case. Admittedly the prisoner was in the care and custody of the State and it was the bounden duty of the State to ensure his safety. It is also an admitted fact that he had committed suicide in day time i.e. at 11:10 AM so had the prison authorities been vigilant enough this incident could have been avoided and a precious life would have been saved. Hence the Commission is not inclined to its order of payment of monetary compensation of Rs.3 75 000 to the NoK of the aforesaid deceased UTP and hence confirms its The Chief Secretary Govt. of Sikkim is directed to the proof of payment of monetary compensation of Rs.3 75 000 Rupees Three Lakhs Seventy Five Thousand only) to the NoK of the deceased UTP within six weeks failing which the Commission will be constrained to invoke its coercive power u s 13 of the PHR Act 1993 calling for the personal appearance of the authority concerned before the Commission.” The Commission observes that the requisite reports from aforesaid authority is still awaited. In normal circumstances such non responsive attitude towards direction of the Commission would have invited issuance of summons u s 13 of the PHR Act 1993 calling for his personal appearance before the Commission but in view of the pandemic situation in the country last opportunity is being given to the Chief Secretary Govt. of Sikkim for submission of requisite compliance report along with proof of payment within four weeks failing 6 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission which the Commission would be constrained to invoke its coercive power u s 13 of the PHR Act 1993 calling for the personal appearance of the On 16.07.2021 the petitioner wrote to the NHRC informing them inter alia that a Writ Petition No. 02 of 2021 was filed by the father of the deceased before this court on 09.03.2021 praying for compensation which came up for hearing on 12.03.2021 and this court after hearing the learned counsel for the petitioner dismissed it in limine “on merit of the case and duly considering the matter”. The petitioner thus urged the NHRC that the petitioner may be exempted from payment of compensation as the proceeding before the NHRC was barred by the principle of res judicata. 10. 14.09.2021 the NHRC made communication to the Chief Secretary of the petitioner stating that on that day the Commission directed as follows: “The present matter pertains regarding death of UTP Roshan of District Jail Namchi Sikkim. In continuation of earlier proceedings vide proceedings dated 26.07.2021 this Commission has observed directed as under: “In the instant case the Commission had received an intimation on 06.05.2020 from Jailor Dist. Jail Namchi Sikkim regarding suicide by under trial prisoner Roshan Chhetari S o Sh. Dilip Chhetari in the prison on 04.04.2020. The Commission observes that the matter pending for want of compliance report along with proof of payment of monetary compensation of Rs.3 75 000 to be paid to the NOK of the 7 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission deceased UTP Roshan Chhetari S o Sh. Dilip Chhetari who committed suicide in the prison on 04.04.2020. Registry is directed to issue final reminder to the Chief Secretary Govt. of Sikkim for submission of compliance report along with the proof of payment within four weeks failing which the Commission shall be constrained to invoke its coercive power u s 13 of the PHR Act 1993 calling for the personal appearance of the authority concerned before the Thus this Commission has sought the compliance the payment of monetary compensation of Rs.3 75 000 to the NOK of deceased UTP. Pursuant to same a report dated 16.07.2021 is received from Joint Director Sikkim vide which he has submitted that since the writ petition of the victim‟s father has already been dismissed by Hon‟ble Sikkim High Court the Commission shall review its order and State Govt. be exempted from the payment of compensation as directed by the NHRC. It is pertinent to observe here that vide proceedings categorically declined the request of review of concerned State Government. This Commission has observed that: “The Commission has taken note of the contents of the reports reply to the sow cause notice submitted by the authorities and has also considered the facts and circumstances of the case. Admittedly the prisoner was in the care and custody of the State and it was the bounden duty of the State to ensure his safety. It is also an admitted fact that he had committed suicide in day time i.e. at 11.10 AM so had the prison authorities been vigilant enough this incident could have been avoided and a precious life would have been saved. Hence the Commission is not inclined to review its order of Rs.3 75 000 Rs. Three Lakhs Seventy Five Thousand only) to the NOK of the aforesaid deceased UTP Thus this plea of the concerned authority has already been declined. In view of same the Chief Secretary Govt. of Sikkim is recommended to pay the compensation to the NOK of deceased of Rs.3 75 000 and submit a report in this regard within eight weeks.” of monetary 8 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission 11. The NHRC vide the above communication requested the additional compete report as directed by Commission in the matter be sent latest by 19.11.2021 for further consideration by the Commission. 12. The petitioner aggrieved by the issuance of the show cause notice and the impugned orders dated 09.06.2021 and 14.09.2021 has approached this court on eleven grounds. 13. On perusal of the grounds and hearing the learned counsel it is clear that the petitioner is primarily aggrieved on five counts. The petitioner is aggrieved that inspite of the dismissal of W.P.(C) No. 02 of 2021 by this court the NHRC has passed the impugned orders which was barred by the principle of res judicata that the show cause notice and the impugned orders did not disclose the commission of violation of human rights by the police authorities or the negligence of the police authorities in prevention of violation of human rights that the NHRC could not have entertained the complaint under Regulation 9(xi) and 9(xii) of the National Human Rights Commission Regulations 1994 and that the NHRC did not consider the final inquiry report dated 20.05.2021 of the learned Judicial Magistrate and the final report of the Namchi Police Station. It is further argued that merely because suicide took place during the day it does not in any manner corroborate or substantiate that there was any negligence on the part of the 9 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission police authorities. Each of these grounds shall be considered 14. The admitted facts are that show cause notice was issued on 13.1.2021 the father of the deceased UTP Roshan Chettri filed W.P.(C) No. 021on 09.03.2021 which was dismissed in limine on 12.03.2021. The impugned orders were thereafter passed by the NHRC. 15. In Dario and others vs. State of Uttar Pradesh1 the Supreme Court held as under: raised by the preliminary objection “19. We must now proceed to state our conclusion respondents. We hold that if a writ petition filed by a party under Art. 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Art. 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Art. 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Art. 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Art. 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar except in cases which we have already indicated. If the petition is 1 AIR 1961 SC 1457 10 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that prima facie dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Art. 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32 because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other. ..................................................................” 16. Thus it is clear that if the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata and although prima facie dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the court took the view that there was no substance in the petition at all but in the absence of the speaking order it would not be easy to decide what factors weighed in the mind of the court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata. In the present case this court is of the opinion that there is no such issue. The order passed by the learned Single Bench on 12 03 2021 clearly records that it was dismissed in fact in limine. The pronouncement of the learned Single Bench was absolutely clear. It was a dismissal in limine. In view of the clear 11 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission pronouncement of the Supreme Court the dismissal of the writ petition in limine does not act as res judicata against the proceedings before the NHRC. 17. The next point urged by the learned counsel is the show cause notice as well as the impugned orders not disclosing the commission of violation of human rights by the police authorities or the negligence of the police authorities in prevention of violation of human rights. It is quite evident that the Commission was of the firm view on both facts and law. The fact that the UTP committed suicide during the day at 11:10 a.m. in the jail is not disputed by the petitioner. The NHRC records that “ensuring the safety and security of the inmates who are under care and custody of the prison is one of the prime duties of the authorities concerned”. This cannot be disputed. It is quite obvious that had the jail authorities been vigilant enough as observed by the NHRC this incident could have been avoided and the precious life would have been saved. The State is vicariously liable to compensate the next of kin of the deceased UTP. It is not the case of the petitioner that the jail was not under its control when the incident happened in the manner described and admittedly inside the jail. There cannot be any doubt that the responsibility of ensuring the safety of the inmates during the day or in the night as long as they are in the prison is upon the said authorities. It may not have been at the instance of any of the jail officers that the suicide was committed but the fact that the incident has happened inside the jail makes the petitioner vicariously liable. 12 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission The National Human Rights Commission Regulations 1994 as amended provides in Regulation 9 that in certain cases complaints are not ordinarily entertainable. It provides that the Commission may dismiss in limini complaints of various nature as enumerated below: “(i) illegible ii) vague anonymous or pseudonymous iii) trivial or frivolous iv) barred under section 36(1) of the Act v) barred under section 36(2) of the Act vi) allegation is not against any public servant vii) the issue raised relates to civil dispute such as property rights contractual obligations and the like viii) the issue raised relates to service matters ix) the issue raised relates to labour industrial disputes x) allegations do not make out any specific violation of human rights xi) matter is sub judice before a Court Tribunal xii) matter is covered by a judicial verdict decision of the Commission xiii) where it is only a copy of the complaint addressed to some other authority xiv) the matter is outside the purview of the Commission on any other ground.” 19. Regulation 9(xi) relates to matter which are sub judice before the court or tribunal. The admitted facts as pleaded do not reflect that the NHRC entertained the complaint when the matter was sub judice before this court. Regulation 9(xii) relates to matter which is covered by the judicial verdict or decision of the Commission. The arguments made by the learned counsel for the petitioner relates to the dismissal of the writ petition in limine which has already been discussed in detail above. Therefore even this ground does not help the petitioner’s case. 13 W.P.(C) No. 421 State of Sikkim vs. National Human Rights Commission 20. The final inquiry report passed by the learned Judicial Magistrate South Sikkim Namchi relates to the procedure under section 176 of the Cr.P.C. and the final report of the Namchi Police Station relates to the procedure under section 174 Cr.P.C. Both did not deal with the issue before the NHRC. Consequently this ground is also devoid of merits. 21. Having examined each of the grounds raised by the petitioner this court is of the considered view that the present writ petition is misconceived and is liable to be dismissed. 22. It is accordingly ordered. 23. interlocutory application also Bhaskar Raj Pradhan ) Judge disposed of. Approved for reporting : Yes No : Yes No Internet 

Summary: Article 21 of the Indian constitution mandates for Right to life for every human being even if he/she is a convicted criminal. NHRC of India is set up to check any kind of violation of basic human right. In this case of State of Sikkim vs. National Human Rights Commission [W.P.(C) No. 46 of 2021] a writ petition was filed in front of Sikkim high court under article 226 of the Indian constitution. The petitioner had filed the writ petition in response to a show cause notice issued notice dated 13.01.2021 and orders dated 9.6.2021 and 14.9.2021, passed by the National Human Rights Commission (NHRC) in NHRC [Case No. 1/21/3/2020-jcd] relating to the suicide of an under trial prisoner (UTP) Roshan Chettri in District Jail, Namchi, as being arbitrary and illegal. The facts of this case were that the NHRC issued a show cause notice to the Chief Secretary of the petitioner stating, that the Commission had received intimation on 06.05.2020 from the Jailor, District Jail, Namchi, Sikkim, regarding suicide by the UTP Roshan Chettri in the prison on 04.04.2020. Further, the deceased UTP was a covid-19 positive patient and was in quarantine along with another UTP. On 04.04.2020, at 11 a.m., the deceased tried to commit suicide by hanging on the door of his cell with the help of cloth of the blanket provided to him but that act was noticed by his cell mate who caught hold his body and called out for help. Subsequently, jail authorities arrived and brought him down by cutting the blanket cloth. He was immediately shifted to hospital wherein he died during the treatment. The show cause notice thereafter required the petitioner to show cause as to why monetary compensation of Rs.3,75,000/- should not be recommended under section 18(a)(i) of the Protection of Human Rights Act, 1993, to be paid to the next of kin of the deceased Roshan Chettri. The petitioner responded to the show cause notice stating that no case of negligence on the part of jail administration was found during the judicial enquiry by the learned Judicial Magistrate, South Sikkim at Namchi. The petitioner is aggrieved that in spite of the dismissal of W.P.(C) No. 02 of 2021 by this court, the NHRC has passed the impugned orders which was barred by the principle of res judicata; that the show cause notice and the impugned orders did not disclose the commission of violation of human rights by the police authorities or the negligence of the police authorities in prevention of violation of human rights. It is further argued that merely because suicide took place during the day, it does not in any manner corroborate or substantiate that there was any negligence on the part of the police authorities. The learned High court judge, Justice Bhaskar Raj Pradhan relying on various precedence and case laws held that; It is quite evident that the Commission was of the firm view on both facts and law. The fact that the UTP committed suicide during the day at 11:10 a.m. in the jail is not disputed by the petitioner. The NHRC records that “ensuring the safety and security of the inmates who are under care and custody of the prison is one of the prime duties of the authorities concerned”. This cannot be disputed. It is quite obvious that had the jail authorities been vigilant enough, as observed by the NHRC, this incident could have been avoided and the precious life would have been saved. The State is vicariously liable to compensate the next of kin of the deceased UTP. It is not the case of the petitioner that the jail was not under its control when the incident happened in the manner described and admittedly inside the jail. There cannot be any doubt that the responsibility of ensuring the safety of the inmates during the day or in the night as long as they are in the prison is upon the said authorities. The court held that “Having examined each of the grounds raised by the petitioner, this court is of the considered view that the present writ petition is misconceived and is liable to be dismissed.” Hence, the writ petition was dismissed.