Smt.

Parvathamma vs The Chief Secretary And Others on 14 July, 1995

Smt. Parvathamma vs The Chief Secretary And Others on 14

July, 1995

Equivalent citations: II(1995)ACC665, 1996ACJ1091, 1995CRILJ4148,

ILR1995KAR2424, 1995(6)KARLJ8

ORDER

1. The petitioner is the wife of one Chennaiah, and it is not in dispute the said Chennaiah died in
Subramanyanagar Police Station on 18-5-1988 while in police custody. The petitioner has two
female minor children and one male minor child. According to the petitioner, her husband
Chennaiah (hereinafter referred to as the deceased) was arrested by the Subramanyanagar Police
sometime prior to 18-5-1988 on the allegation that he committed theft of an autorickshaw in Cr.No.
160/88 and while he was in police custody he died on account of police atrocities on 18-5-1988. The
petitioner having failed to get any relief from the respondents, has filed the above writ petition for
issue of a writ of mandamus directing the respondents to pay compensation of rupees two lakhs and
for providing a job to the petitioner as also for further direction to refer the matter to the C.B.I. for
investigation.

2. As the matter was contested before this Court and it was alleged by the respondents that the
deceased died on account of suicide while in police custody on 18-5-1988, the Principal Sessions
Judge, Bangalore, was directed by this Court to nominate one of the Chief Metropolitan Magistrates
to hold an enquiry into the matter and report as to whether the deceased had died on account of the
police excesses and if so to assess the damages payable to the petitioner.

3. The enquiry was conducted by the Chief Metropolitan Magistrate, Bangalore, and after examining
the witnesses and hearing the submissions of the counsel, the learnd Magistrate submitted his
report dated 9-5-1995. The finding of the report was that the deceased died by committing suicide.
The learned Magistrate also found that the deceased cut off a wollen rug into a long piece and
hanged himself. He also further held that in view of this, the family of the deceased was not entitled
to any damages. It is this report of the learned Magistrate that is in challenge before us.

4. During the course of enquiry the petitioner, namely, the wife of the deceased and one
Narayanappa who was a jail inmate gave evidence on behalf of the petitioner. The police did not
choose to examine any witness, except the Sub-Inspector of Police Siddagangaiah who arrested the
deceased. At the outset it is pertinent to state that the police did not choose to examine the
eye-witnesses to the occurrence, namely, Muniswamy the Head Constable and Beeraiah the Police
Constable. The police also did not examine the post-mortem doctor.

5. The petitioner stated in her evidence that she came to know from PW-2 Narayanappa who was an
inmate in the police-jail that her husband had been taken away by the police on 13-5-1988 itself.
PW-2 stated in his evidence that when he was arrested by the police on 15-5-1988, he was kept in the
same lock-up. The deceased narrated to him that about 2 or 3 days prior to that the deceased was

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 Smt. Parvathamma vs The Chief Secretary And Others on 14 July, 1995

being beaten by the police, PW-2 further stated that he informed the petitioner about the arrest of
the deceased and the violence caused by the police to the deceased. PW-1 stated that she went to the
police station number of times and the police did not allow her to see the deceased. She further
stated that the police told her, she can get the deceased released on bail after offering surety in
court. She has further stated that on the morning of 18th while she was going towards the court, her
neighbours informed her about the death of her husband in the police station. She rushed to the
police station, but the police told her that the deceased was suffering from stomachache and
therefore had to be admitted to Victoria Hospital. She rushed to the hospital and by the time she
went there she found that the post-mortem of her deceased husband was being conducted.
According to her, her house is only 50 feet away from the police station and she had not been
informed about the death of her husband till she came to know about it at 11 AM on 18-5-88 at the
Victoria Hospital. She suspected that the police by completing the post-mortem without informing
her were trying to hide the truth.

6. RW-1 the P.S.I. stated in his evidence that at about 6 or 6.30 AM on 18-5-88 the police informed
the petitioner about the death of the deceased and the petitioner did not bother to turn up. RW-1
further stated that there was no fan or any such thing in the lock-up. He stated that the deceased
was provided with a wollen rug on the night of 17th and he was kept in the lock-up after making a
thorough search of his body. He further stated before the learned Magistrate that in the early hours
of 18-5-88 he was informed by the Head Constable Muniswamy that the said Muniswamy and the
Police Constable Beeraiah had found that the deceased had died in the lock-up by hanging himself
with the help of wollen rug. Curiously RW-1 stated that he does not know the dimension of the
lockup or the height or width of the door of the lock-up. It was suggested to him that the height of
the lockup door was only five feet and there was only round iron bars which could not facilitate a
person to hang himself. This was denied by RW-1. The learned Magistrate strangely approached the
matter by stating that the onus is on the petitioner to prove that the deceased could not have died by
hanging with the help of wollen rug.

7. We have perused the inquest eport conducted with respect to the deceased under S. 176, Cr.P.C. It
is seen that two witnesses Head Constable Muniswamy and Police Constabe Beeraiah were
examined at the inquest. According to the statement of Muniswamy, he came to the police station on
18-5-88 at about 5.10 AM after patrol duty. After entering the station he sat on the bench in the hall
and looked towards the lock-up in which deceased Chennaiah had been detained. He noticed the
deceased was hanging from the bar of the lock-up with the help of torn piece of wollen rug. He had
seen him falling down. Immediately he called Beeraiah, Beeraiah untied the knot of the wollen rug
and poured water in the mouth of the deceased, but by then the deceased had died.

8. We have carefully considered the report of the learned Magistrate and we are not satisfied that
the Magistrate has applied his mind in bringing out the real cause of death and the act of negligence,
if any, on the part of the police. Neither the police nor the learned Magistrate insisted on the doctor
who conducted the post-moretm to be examined at the enquiry. No opportunity was given to the
petitioner to cross-examine the doctor. We have perused the post-mortem report of the doctor and
the doctor has given an opinion that the death was due to asphyxia as a result of hanging. The doctor
has stated that there was an external injury, an abrasion on the outer aspect of upper part of left arm

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measuring 3 cms. x 5 cms. transverse, thin scab formed. In this situation it would have been fit and
proper that the doctor ought to have been examined to arrive at the whole truth. It was also
contended even at the enquiry the two vital eye-witnesses to the occurrence, namely, Head
Constable Muniswamy and Police Constable Beeraiah were not examined, even though a point was
made by the learned counsel for the petitioner at the enquiry that they ought to have been examined.
The learned Magistrate has approached the whole enquiry as if the onus is on the petitioner to prove
the entire case. The learned Magistrate did not insist on the two eye-witnesses or the post-mortem
doctor to be examined at the enquiry, on a careful perusal of the enquiry report, we are not satisfied
that it meets the requirement of law with respect to the nature of enquiry with regard to lock-up
deaths.

9. We have given our anxious consideration to this unfortunate episode and we feel that in the
circumstances of the case it would have been necessary for the police to show that there was no
negligence on their part. After all when a prisoner is in police custody it is the duty of the police to
keep him alive and well till judicial remand. There are some aspects in this case which have caused
us anxiety. It is ot known in the first place as to why a wollen rug was given to the deceased in the
month of May when it is generally warm in Bangalore. We are also not able to understand how the
deceased was able to cut the wollen rug into a rope in the presence of the police. We are also not able
to understand how and by what means the deceased hanged himself in the very presence of
Muniswamy the Head Constable and Beeraiah the police constable. If it is the case of the police that
Muniswamy & Beeraiah had left the police station and arrived immediately after the occurrence,
then it is not stated why the police station was left unmanned by any person. It is impossible to
believe that the police station would have been left empty without any policeman being present in
the police station. All these matters could have been cleared if the two alleged eye-witnesses were
examined at the enquiry.

10. We are also on a larger issue that when a person is taken into custody, it is the paramount duty
of the police to keep him safely. If there is any dereliction of that duty, then undoubtedly the onus
will be on the police to show that there was no negligence on their part. Even assuming for a
moment that the case before us is one of suicide, we would like to state that there is a duty on the
part of the police to show that there was no negligence. However, it cannot be ruled out that there
may be some cases where in spite of best efforts by the police a prisoner commits suicide by a
method that is beyond the control of the police. In those cases if the police can show that they were
not negligent, then it is possible that they may be absolved of the blame. We have in mind, for
instance a prisoner in spite of best efforts of the police commits suicide by consuming cyanide
immediately on arrest. There may also be other cases where in spite of best efforts of the police the
prisoner commits suicide which could not have been prevented by the police. Ultimately it all
depends on the facts of each case.

11. However, in all cases of police lock-up deaths whether it is by suicide or on account of atrocities
committed by the police, the onus undoubtedly rests on the police to show that there has been no
negligence on their part. We may at this stage refer to a decision of the Supreme Court reported in
the case of Nilabati Behera v. State of Orissa . This was a case of lock-up death. While dealing with
this case, at para 13 their Lordships have held as follows :

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"In this context, it is sufficient to say that the decision of this Court in Kasturilal
upholding the State's plea of sovereign immunity for tortious acts of its servants is
confined to the sphere of liability in tort, which is distinct from the State's liability for
contravention of fundamental rights to which the doctrine of sovereign immunity has
no application in the constitutional scheme, and is no defence to the constitutional
remedy under Arts. 32 and 226 of the Constitution which enables award of
compensation for contravention of fundamental rights, when the only practicable
mode of enforcement of the fundamental rights can be the award of compensation.
The decisions of this Court in Rudul Sah in that line relate to award of compensation
for contravention of fundamental rights, in the constitutional remedy under Arts. 32
and 226 of the Constitution. On the other hand, Kasturilal related to value of goods
seized and not returned to the owner due to the fault of Government servants, the
claim being of damages for the tort of conversion under the ordinary process, and not
a claim for compensation for violation of fundamental rights. Kasturilal is, therefore,
inapplicable in this context and distinguishable."

The Court while reiterating the powers of the Court in granting compensation further held at
paragraphs 18 to 21 as follows :

"18. This view finds support from the decisions of this Court in the Bhagalpur binding
cases : Khatri (II) v. State of Bihar and Khatri (IV) v. State of Bihar . Wherein it was
said that the Court is not helpless to grant relief in a case of violation of the right to
life and personal liberty, and it should be prepared to forge new tools and devise new
remedies for the purpose of vindicating these precious fundamental rights. It was
also indicated that the procedure situable in the facts of the case must be adopted for
conducting the inquiry, needed to ascertain the necessary facts, for granting the
relief, as the available mode of redress, for enforcement of the guaranteed
fundamental rights. More recently in Union Carbide Corporation v. Union of India ,
Misra, C.J. stated that 'we have to develop our own law and if we find that it is
necessary to construct a new principle of liability to deal with an unusual situation
which has arisen and which is likely to arise in future ..... there is no reason why we
should hesitate evolve such principle of liability .....'. To the same effect are the
observations of Venkatachaliah, J. (as he then was), who rendered the leading
judgment in the Bhopal gas case, with regard to the Court's power to grant relief.

19. We respectfully concur with the view that the Court is not helpless and the wide
powers given to this Court by Art. 32, which itself is a fundamental right, imposes a
constitutional obligation on this Court to forge such new tools, which may be
necessary for doing complete justice and enforcing the fundamental rights
guaranteed in the Constitution, which enables the award of monetary compensation
in appropriate cases, where that is the only mode of redress available. The power
available to this Court under Art. 42 is also an enabling provision in this behalf. The
contrary view would not merely render the Court powerless and the constitutional
guarantee a mirage, but may, in certain situations be an incentive to extinguish life, if

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 Smt. Parvathamma vs The Chief Secretary And Others on 14 July, 1995

for the extreme contravention the Courts is powerless to grant any relief against the
State, except by punishment of the wrongdoer for the resulting offence, and recovery
of damages under private law, by the ordinary process. If the guarantee that
deprivation of life and personal liberty cannot be made except in accordance with law
is to be real, the enforcement of the right in case of every contravention must also be
possible in the constitutional scheme, the mode of redress being that which is
appropriate in the facts of each case. This remedy in public law has to be more readily
available when invoked by the havenots, who are not possessed of the wherewithal
for enforcement of their rights in private law, even though its exercise is to be
tampered by judicial restraint to avoid circumvention of private law remedies were
more appropriate.

20. We may also refer to Art. 9(5) of the International Covenant on Civil and Political
Rights, 1966 which indicates that an enforceable right to compensation is not alien to
the concept of enforcement of a guaranteed right. Article 9(5) reads as under :-

"Anyone who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation."

21. The above discussion indicates the principle on which the Court's power under Arts. 32 and 226
of the Constitution is exercised to award monetary compensation for contravention of a
fundamental right. This was indicated in Rudul Sah and certain further observations therein
adverted to earlier, which may tend to minimise the effect of the principle indicated therein do not
really detract from that principle. This is how the decisions of this Court in Rudul Sah and others in
that line have to be understood and Kasturilal distinguished therefrom. We have considered this
question at some length in view of the doubt raised, at times, about the propriety of awarding
compensation in such proceedings, instead of directing the claimant to resort to the ordinary
process of recovery of damages by recourse to an action in tort. In the present case, on the finding
reached, it is a clear case for award of compensation to the petitioner for the custodial death of her
son."

His Lordship Dr. Anand J. in his concurring Judgment dealing with the relief to be granted has held
as follows at paragraphs 31 to 34 :-

"31. Adverting to the grant of relief to the heirs of a victim of custodial death for the
infraction or invasion of his rights guaranteed under Article 21 of the Constitution of
India, it is not always enough to relegate him to the ordinary remedy of a civil suit to
claim damages for the tortious act of the State as that remedy in private law indeed is
available to the aggrieved party. The citizen complaining of the infringement of the
indefeasible right under Art. 21 of the Constitution cannot be told that for the
established violation of the fundamental right to life, he cannot get any relief under
the public law by the Courts exercising writ jurisdiction. The primary source of the
public law proceedings stems from the prerogative writs and the Courts have,
therefore, to evolve 'new tools' to give relief in public law by moulding it according to

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the situation with a view to preserve and protect the Rules of Law. While concluding
his first Hamlyn Lecture in 1949 under the title "Freedom under the Law" Lord
Denning in his own style warned :

"No one can suppose that the executive will never be guilty of the sins that are
common to all of us. You may be sure that they will sometimes do things which they
ought not to do; and will not do things that they ought to do. But if and when wrongs
are thereby suffered by any of us what is the remedy ? Our procedure for securing our
personal freedom is efficient, our procedure for preventing the abuse of power is not.
Just as the pick and shovel is no longer suitable for the winning of coal, so also the
procedure of mandamus, certiorari, and actions on the case are not suitable for the
winning of freedom in the new age. They must be replaced by new and up to date
machinery, by declarations, injunctions and actions for negligence ..... This is not the
task for Parliament ..... the Courts must do this. Of all the great tasks that lie ahead
this is the greatest. Properly exercised the new powers of the executive lead to the
welfare State; but abused they lead to a totalitarian State. None such must ever be
allowed in this country."

32. The old doctrine of only relegating the aggrieved to the remedies available in civil law limit the
role of the Courts too much as protector and guarantor of the indefeasible rights of the citizens. The
Courts have the obligation to satisfy the social aspirations of the citizens because the Courts and the
law are for the people and expected to respond to their aspirations.

33. The public law proceedings serve a different purpose than the private law proceedings. The relief
of monetary compensation, as exemplary damages, in proceedings under Art. 32 by this Court or
under Art. 226 by the High Courts, for established infringement of the indefeasible right guaranteed
under Art. 21 of the Constitution is a remedy available in public law and is based on the strict
liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose
of public law is not only to civilize public power but also to assure the citizen that they live under a
legal system which aims to protect their interests and preserve their rights. Therefore, when the
court moulds the relief by granting "compensation" in proceedings under Art. 32 or 226 of the
Constitution seeking enforcement or protection of fundamental rights, it does so under the public
law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State
which has failed in the public duty to protect the fundamental rights of the citizen. The payment of
compensation in such cases is not to be understood, as it is generally understood in a civil action for
damages under the private law but in the broader sense of providing relief by an order of making
'monetary amends' under the public law for the wrong done due to breach of public duty of not
protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary
damages' awarded against the wrongdoer for the breach of its public law duty and is independent of
the rights available to the aggrieved party to claim compensation under the private law in an action
based on tort, through a suit instituted in a Court of competent jurisdiction or/and prosecute the
offender under the penal law.

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34. This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not
only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction
under Arts. 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental
rights under Article 21 of the Constitution of India are established to have been flagrantly infringed
by calling upon the State to repair the damage done by its officers to the fundamental rights of the
citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal
proceedings. The State, of course, has the right to be indemnified by and take such action as may be
available to it against the wrongdoer in accordance with law - through appropriate proceedings. Of
course, relief in exercise of the power under Art. 32 or 226 would be granted only once it is
established that there has been an infringement of the fundamental rights of the citizen and no
other form of appropriate redressal by the Court in the facts and circumstances of the case is
possible. The decisions of this Court in the line of cases starting with Rudul Sah v. State of Bihar, ,
granted monetary relief to the victims for deprivation of their fundamental rights in proceedings
through petitions filed under Articles 32 or 226 of the Constitution of India, notwithstanding the
rights available under the civil 'law to' the aggrieved party where the courts found that grant of such
relief was warranted. It is a sound policy to punish the wrong doer and it is in that spirit that the
courts have moulded the relief by granting compensation to the victims in exercise of their writ
jurisdiction. In doing so the Courts take into account not only the interest of the applicant and the
respondent but also the interests of the public as a whole with a view to ensure that public bodies or
officials do not act unlawfully and do perform their public duties properly particularly where the
fundamental rights of a citizen under Article 21 is concerned. Law is in the process of development
and the process necessitates developing separate public law procedures as also public law principles.
It may be necessary to identify the situations to which separate proceedings and principles apply
and the courts have to act firmly but with certain amount of circumspection and self-restraint, lest
proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private
law. Some of those situations have been identified by this Court in the cases referred to by Brother
Verma, J."

In the light of the law laid down by the Supreme Court, we have no hesitation to hold that there has
been negligence on the part of the police and the police did not take advantage of the opportunity
afforded to them in the enquiry in satisfying this Court that there was no negligence. The
non-examination of the doctor and the alleged eye-witnesses and the non-furnishing of information
as to the mode of hanging have all clearly gone to show that the police had not exercised due
diligence and care with respect to the deceased while in their custody. In the light of the decision of
the Supreme Court, we propose to asses the damages that the petitioner will be entitled to.

12. It is brought to our notice from the Bar that the petitioner is a widow with three minor children
at the time of the occurrence. It is also brought to our notice that the deceased was aged about 40
years at the time of occurrence and was an autorickshaw driver and was in a position to earn Rs.
300/- per day. Considering the age of the deceased and his income, we hold that a sum of Rs.
2,00,000/- would be a reasonable amount of compensation to be paid to the petitioner and her
minor children. We direct the respondents to pay the said sum to the petitioner and her minor
children. Half the amount of Rs. 2,00,000/- will be paid to the petitioner and the balance amount
will be kept in deposit in a nationalised bank in the name of the children of the petitioner and the

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petitioner as their natural guardian till the minors attain majority. The interest that may accrue on
the amount deposited in nationalised bank will be paid to the petitioner. The petitioner is entitled to
draw the interest on the amount deposited in nationalised bank for the maintenance of her children.
Time for compliance three months. Rule made absolute accordingly.

13. Before parting with this case we are pained to notice that in recent times there has been an
increase in custodial deaths and by the time the family of the victim receives any compensation it
takes years and sometimes more than a decade. In the meanwhile, the family is driven to poverty,
despair and helplessness. When bread winner is gone, the wife and children invariably become
destitute. We also notice that most of the family members with respect to custodial deaths come
from the lower economic strata of society. We also find no effort is made on the part of the State to
rehabilitate the family. We have not even come across one case where even the funeral expenses
have been borne by the State. For these victims Article 21 of the Constitution becomes an empty
promise.

14. We find it necessary to state that whenever a victim's family complains of an infringment of an
indefeasible right of the citizen while in police custody, the Courts will ahve to evolve while
exercising writ jurisdiction, new tools to give relief in public law by moulding it according to the
situations with a view to preserve and protect the rule of law. The old doctrine of relegating the
aggrieved to the remedies available in civil law is a hollow right to a poor citizen of the country. The
Courts have an obligation to satisfy the social aspirations of the citizens because in the last resort the
Courts and the law are for the people and they are expected to respond to their aspirations.

15. The indefeasible rights guaranteed under Article 21 of the Constitution and the remedies
available in public law as laid down by the Supreme Court is a strict liability for contravention of
basic rights of the citizens. The purpose of public law is not only to civilize public power but also to
assure the citizens that they live under a legal system which aims to protect their interests and
preserve their rights. As we have said earlier, once a prisoner is in police custody, custodial death
cannot be treated in casual and cavalier fashion. We find as stated earlier, the legal heirs of the
victims do not get any relief for many years.

16. In that view of the matter we do hope that the State will work out a scheme for payment of
interim compensation of not less than Rs. 25,000/- in case of custodial deaths to the legal heirs
whether it is due to alleged torture or other acts of atrocities or negligence of the police resulting in
death including a case of suicide within a time span of one month from the date of occurrence. We
are of this view, because we hold the State to be the ultimate protector of the citizen while he is in
police custody. The State cannot escape the liability in providing immediately interim relief for the
victim's family whenever the death occurs while in their custody. The amount which is to be paid by
way of interim compensation will undoubtedly go towards the immediate needs of the family of the
deceased for funeral expenses, education of the children and for the rehabilitation of the victim's
family. This direction in all cases of custodial deaths is without prejudice to the rights of the citizen
to claim compensation in accordance with law and in accordance with the principles laid down by
the Supreme Court in . We hold that the State to be ultimate custodian of the prisoner and any
violation of his fundamental rights will have to be compensated without delay.

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17. Order accordingly.

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