JUDGMENT
J.N. Patel, J.
1. Heard Mr. Daga, the learned Counsel for the petitioner and Mrs. Dangre, learned A.P.P. for the respondents.
2.The petitioner’s son Suresh Fattuji Gedam, died in police lock-up of Police Station, Ramdaspeth, Akola on 30.9.1999. The petitioner was informed of this fact by one Vasantrao Naik who sent telegram on 30.9.1999 that Suresh died on 29.9.1999, and the petitioner should come immediately. The petitioner therefore along with his other son Dinesh went to Akola and came to know that postmortem of his son Suresh has already been performed and that an inquiry regarding the death of his son was in progress. Thereafter, the petitioner did not receive any information. So after about 8 to 10 months he went to Akola and contacted the Police Officer of Ramdaspeth Police Station, who informed that inquiry is still going on, therefore, in the circumstances the petitioner suspected that there is some foul play because of which his son Suresh died in the police custody, and took further steps and made inquiry. The petitioner was able to obtain certified copy of:
(1) A.D. report dated 30.9.1999 of A.D. No. 32 of 1999;
(2) Spot panchnatna dated 30.9.1999;
(3) Post-mortem report dated 30.9.99;
(4) Inquest panchnatna dated 30.9.1999.
3. The petitioner found that the S.D.M., Akola has not conducted a proper inquiry in A.D. No. 32 of 1999, as none of the relatives of the deceased was informed and no inquiry was made from them, nor any intimation was sent to the relatives through S.D.M., Akola. From the information gathered by the petitioner, it was found that on 30.9.1999 his son Suresh was in custody of Police Station, Akola and he was alive till 8.15 a.m. on 30.9.1999, i.e., the time till he was found dead. The petitioner’s son Suresh Fattuji Gedam was arrested by Ramdaspeth Police Station, Akola in Crime No. 205 of 1999 along with two other persons for committing offence under Sections 380, 511 read with Section 34, Indian Penal Code, and that he died in police custody while he was in police lock-up of Ramdaspeth Police Station. According to the petitioner the post-mortem report discloses that his son Suresh had 21 injuries on different parts of his body and out of them 20 were contusions and one linear abrasion. The medical officer who performed the post-mortem opined cause of death as syncope due to sudden cardiac arrest due to multiple injuries sustained. He also opined that all injuries were ante mortem and within 24 hours and were caused by hard blunt object. In opinion of the medical officer, the injuries were collectively and individually sufficient to cause death in ordinary course.
4. It is the case of the petitioner that he is not aware of the case of his son and who were the investigating officers and who are responsible for causing his death in the police lockup and, therefore, according to him the persons who were responsible for his arrest, and for holding his custody in the police station are the persons responsible for the death of his son.
5. It is the case of the petitioner that he is old person aged more than 70 years, with old and infirm wife. His son deceased Suresh has three children; a daughter by name Sapna aged 17 years, two sons by names Sachin and Aakash aged 14 and 11 years respectively. Deceased Suresh was about 36 years old. He had already lost his wife in accidental death, i.e., Varsha on 6.8.1995. The deceased Suresh was doing the job of centering work, relating to building construction and on average was earning Rs. 150/- to Rs. 200/- per day. Therefore, according to the petitioner the children of the deceased Suresh have been left orphan with no source of livelihood and that the petitioner is not in a position to maintain them. Therefore, in the facts and circumstances, the petitioner prayed that the Court should order an inquiry into the cause of death of his son Suresh Fattuji Gedam, by an independent agency and that persons, i.e., the police officers and others who are responsible for his death should be prosecuted for having committed offence under Section 302 read with Section 34, Indian Penal Code and so on. The petitioner has also prayed for reasonable compensation in the circumstances of the case.
6. In their affidavit in reply filed by the respondent Nos. 1 and 3, which is sworn by one Pralhad Namdeorao Ingale, ASI, Police Station, Ramdaspeth, Akola. It has been stated that on 29.9.1999 Police Station, Ramdaspeth, Akola received report from one Manohar Govindsingh Mohata, Administrative Officer, Akola Oil Industries that the watchmen have caught Suresh Fattuji Gedam the deceased, Sk. Lukman, Sk. Rehman and Sk. Nazir, while committing theft. On this report ASI Ingale, and Police Constables Buckle Nos. 2771 and 2779 went to the spot and they saw watchmen have caught hold of three persons which includes the deceased Suresh. They were referred to Government Hospital for medical examination. Dr. Kalane, Government Medical Officer examined the deceased Suresh Fattuji Gedma. According to the respondents, the police constable who accompanied the deceased Suresh, asked Dr. Kalane to admit him in the hospital, but he refused to admit him saying that accused persons are pretending and it is only in case of Sk. Lukman, who will be required on the next date for X-ray. The police registered offence under Sections 380, 511 read with Section 34, Indian Penal Code against the deceased and his associates, at Ramdaspeth Police Station, Akola vide Crime No. 305 of 1999. According to the respondents, the medical officer has certified that Suresh has suffered multiple abrasions all over his back and multiple abrasions over left arm. It is their case that the deceased Suresh was arrested at 20.35 hours on 29.9.1999 and arrest panchnama came to be prepared and, thereafter, he was taken in police custody and kept in the lock-up by making the necessary entry along with the co-accused Sk. Lukman and Sk. Nazir. According to the respondents on 30.9.99, at about 5.30 a.m. all the accused in the police cell were taken for attending nature’s call, at that time Suresh Gedam got up but due to the injuries he was not willing to go out for natural call and he remained inside the police lockup. At about 8.15 a.m. on 30.9.1999 ASI Pralhad Ingale, reported on duty and during his round at lockup, he noticed that Suresh Gedam was sleeping, so he asked the co-accused Sk. Nazir to. wake up Suresh. Sk. Nazir noticed that Suresh was dead. On coming to know that the said Suresh was dead, the said ASI reported the matter to PSO and then PSO concerned intimated the death of Suresh in custody to the C.I.D. and Superintendent of Police, Akola. It is submitted that PI A.D. Patil, registered accidental death No. 35 of 1999, and S.D.M. made inquest and further investigation was carried out by C.I.D. Office, Akola. It is, therefore, submitted that the police officers are not responsible for the death of deceased Suresh Fattuji Gedam, as they did not assault him, after he was taken in custody till his death, and that Suresh Gedam was already having injuries on his person when he was arrested.
7. An affidavit in reply is also filed by Ramesh Sahare, Additional Superintendent of Police, C.I.D. (Crime), in which it has been stated that he was holding the charge of Akola Unit on 29.9.1999. He received intimation from Police Station, Ramdaspeth, Akola at 11.55 a.m. that custody accused Suresh Gedam has died and, therefore, he along with his staff visited the police station. S.D.M. was already informed by the police. In the presence of Sahare, inquest was made by S.D.M., Akola, spot panchnama was also prepared. The video photograph of the scene and inquest was also recorded, and thereafter the matter was reported to Superintendent of Police, C.I.D., Nagpur, to convey the message to the relatives of the deceased Suresh Gedam, and the message of the death received by the relatives at about 12.30 noon on the same day. In the meantime body of the deceased Suresh Gedam was forwarded to District Government Hospital, Akola for autopsy, which was also videographed. In usual course clothes of the deceased were seized under panchnama and the body of Suresh Gedam was handed over to the relatives on 1.10.99 at 5.30 a.m. It is the case of respondent No. 2, that he interrogated the co-accused Sk. Nazir and Sk. Lukman, and also other accused, and a number of witnesses were interrogated. According to the State C.I.D. on investigation they came to the conclusion that Ashok B. Chavan, Bhaskar Amale and Sukhwant Ghuman, watchmen of Akola Oil Industries assaulted Suresh Gedam and because of this, he died. On the basis of the investigation, the offence under Sections 302, 325, 323 read with Section 34, Indian Penal Code was registered by Ramdaspeth Police Station, vide Crime No. 213 of 1999, against the said persons on a complaint lodged by Sahare, Additional Superintendent of Police, C.I.D. (Crime), Akola, and the said watchmen came to be arrested and produced before the J.M.F.C. It is submitted that charge-sheet in the case is already filed.
8. Similarly, affidavit of Deven Bharti, Superintendent of Police, Akola, respondent No. 1, is also filed on record, and the Superintendent of Police had blamed Dr. Kalane for not properly examining and recording injuries suffered by the deceased Suresh Gedam, when he was taken to him for medical examination, and this is how the Superintendent of Police had tried to explain the discrepancy noted in respect of the injuries suffered by Suresh Gedam in the medico-legal certificate and post-mortem report. Superintendent of Police has specifically stated that Suresh Gedam was not interrogated by anybody nor he was taken out from the police custody from the time of his arrest till his death, and the persons responsible for causing death of Suresh are being prosecuted. Sahare, Additional Superintendent of Police, C.I.D. (Crime), Nagpur has filed further affidavit in which he has given details of his inquiry and has come to the conclusion that, according to him following are the important points in the case:
(a) The deceased Suresh and two other accused were caught by the guards of Akola Oil Industries, and those watchmen assaulted the deceased and his companions with the help of rubber and iron pipe, so also with the help of wooden log and electric wire.
(b) When ASI Ingale reached on the spot on receiving telephonic message, he did not prepare any arrest panchnama, seizure panchanama of the stolen articles nor made any notes of injuries on the deceased.
(c) When the deceased Lukman and Sk. Nazir were brought to the police station along with the seized articles the seizure panchanama was not prepared (sic.) and in the hospital but only by making vague reference in the following letter to medical officer, all the three injured were sent to Government Hospital.
(d) When the injured were produced before medical officer Dr. D. Kalane, the medical officer did not examine the deceased properly and thoroughly. The police constable and other two injured accused disclosed to the medical officer that deceased Suresh Qedam vomited in the Government jeep while bringing them to the hospital, but medicai officer did not pay any heed on this aspect. It further reveals from the statement of the witnesses that deceased Suresh had a severe pain and he was insisting to admit him as indoor patient but was sent back to the police station.
(e) ASI Ingale, did not prepare arrest panchanama and, therefore, it is very difficult to guess how many injuries were on the person of the deceased.
(f) After medical examination when the deceased and his two companions were produced before A.D. Patil, Police Inspector, they made a complaint about assault by the watchmen, Akola Oil Industries. In spite of complaint the PI did not register any crime for an offence under Sections 324,325, etc., of Indian Penal Code. When a complaint was received that deceased Suresh Gedam was not admitted as indoor patient, then it was a duty of PI Patil or ASI Ingale, to make a complaint of this fact to Civil Surgeon of the Government Hospital. Knowing well that the deceased Suresh Gedam was assaulted by the watchmen instead of registering any offence under Sections 302, 323 read with Section 34 of Indian Penal Code accidental death was registered at 8.25 a.m.
(g) According to the report of Manohar Govindsingh Mohta the accused were caught while making theft. It was an attempt to commit theft so there was no need to bring the article from Akola Oil Industries or to prepare seizure memo. The documents prepared in respect of Crime No. 205 of 1999 for an offence under Sections 380,511 read with Section 34 against the deceased Suresh appears to be doubtful.
(h) As regards the allegations of assault on deceased Suresh Fattuji Gedam in a lockup, I have interrogated number of witnesses including the 7 other accused who were in the lockup in the night of 29.9.1999 and 30.9.1999. Lukman and Sheikh Nazir were in the company of the deceased Suresh since the time when they were apprehended by watchmen of Akola Oil Industries. They had a complaint against watchmen that they were beaten at oil industries by the watchmen. Lukman and Sk. Nazir did not made any whisper about assault by the police officer either on the spot or in a transit before they were taken to the police lockup. As regards the position in police lockup the 7 accused persons who were along with the deceased stated that deceased was in the lockup from 20.40 hours on 29.9.1999 till his death. He was not taken out of the lockup during that period there is no direct or indirect evidence for creating a doubt that the police officials had beaten the deceased Suresh. The discrepancy in the medical report given by the medical officer Dr. V.R. Kalane create a little doubt but the vagueness of the medical officer’s report cannot be a sufficient evidence to draw any inference against police officials regarding assault on Suresh Gedam.
9. There is an additional affidavit of respondent No. 3 reiterating his earlier stand that the deceased was not assaulted in police station while he was in custody and he died due to injuries suffered by him at the hands of the watchmen, who have arrested the deceased along with two other accused while committing theft in the factory. The facts are not much disputed, the only thing which is required to be examined by this Court, as to who is responsible for bodily injuries suffered by deceased Suresh which resulted into his death. Suresh Fattuji Gedam came to be arrested on 29.9.1999 by the police when his custody was handed over by the watchmen of Akola Oil Industries, along with co-accused. As the police found that all the accused detained by the three watchmen of Akola Oil Industries were assaulted and had injuries on their person, rather than causing their formal arrest and panchnama, they were referred to General Hospital, Akola for medical, examination. In the case of Suresh Gedam, the medical officer on duty, i.e., Dr. V.R. Kalane, examined him on 29.9.1999 at 6.45 p.m. and found that he had multiple abrasion over back having reddish blue colour. He also found multiple abrasion over the left arm and stated that the object to be hard and blunt, age was noted as within 0 to 6 hours. In the column, healing time in absence of complication, the doctor has stated 5-6 days. Thereafter according to the police the accused were brought to police station where they came to be arrested under an arrest panchnama. The arrest panchnama in case of deceased Suresh is alleged to have been prepared on 29.9.1999 between 20.35 and 20.40 hours, in which it has been noted that he is having marks of injuries on his back, legs and hands. It is doubtful whether such arrest panchnama was prepared at the relevant time or not. We say so, on referring to the affidavit filed by Additional Superintendent of Police, Sahare of State C.I.D. who has specifically stated that in his affidavit dated 30.6.2001, that when he enquired into the matter it was revealed that ASI Ingale, did not prepare arrest panchnama and, therefore, it is difficult to guess how much injuries were on the person of the deceased. We have no reason to disbelieve this. On 30.9.1999 at about 8.15 a.m., ASI Pralhad Ingale, noted that said Suresh was lying dead in the police lock-up and, therefore, he reported the matter to the P.S.O. of Ramdaspeth Police Station. After the necessary preliminary inquiry by the S.D.M. the body of Suresh was sent for autopsy. The post-mortem was conducted by Dr. A.D. Thote and Dr. Rajkumar Chavan on 30.9.1999 between 3.30 p.m. and 5.46 p.m. and the medical officers have noted in all 21 external injuries as stated in column No. 7 (b), which are as under:
(1) Contusion : Right sole middle 1/3rd 3 cm. x 1 cm. obliquely
placed.
(2) Scar mark : On left 3.4 inch of tibia 8" x 3½ cold injuries.
(3) Left knee : Contusion and patellar region 4 cm. x 2 cm. oblique.
(4) Contusions : Contusions over middle 1/3rd of rt. shin of tibia
externally 18 cm. x 6 cm.3
(5) Contusions : On rt. lower thigh middle side 2 cm. x 1 cm.
abdomen.
(6) Linear abrasions : 4 in number transversely placed in epigastric area
and It. lumbar region about umbilicus as shown in
the diagram probably self inflicted.
Back
(7) Contusions : On rt. back from supraclavicular region to groin
length 4 cm. x 13".
(8) Contusion : From one iliac crest to another 2 cm. width.
(9) Contusion : On left side of back from lower ribs to waist.
(10) Deep contusion : Over neck left side at level 2 cm. x 2 cm.
(11) Contusion : Left shoulder posteriorly 2 cm. x 2 cm.
(12) Contusion : Left thigh upper part and posteriorly 16 cm. x 12
cm.
(13) Contusion : Left high outer quadrant 11 cm. x 4 cm.
(14) Contusion : Two contusions at nape of neck I cm. x ½ cm. each,
one below another.
(15) Contusion : Scalp, frontoparietal site 2" from middle and 4"
above left eyebrow 4 cm. x 5 cm.
(16) Right arm : Contusion from shoulder to elbow oblique and
posteriorly 18 cm. x 9 cm.
(17) Contusion : On left elbow anteriorly transversely placed 6 cm. x
4 cm.
(18) Contusion : On left arm posteriorly 16 cm. x 10 cm.
(19) Contusion : On left anteriorly from shoulder to elbow 18 cm. x 7
cm.
(20) Contusion : On left upper arm extending from anterior aspect
of arm lateral aspect and going up to post aspect
of arm. Breadth 3 cm. roughly 3/4th circumference
of arm.
(21) Contusion : On left threshold 2 in number size 1 cm. x 1 cm.
each.
In the opinion of the medical officers the cause and manner of death has been given as:
(a) immediate cause: syncope due to sudden cardiac arrest;
(b) due to multiple injuries sustained;
(c) the injuries were ante mortem and within 24 hours;
(d) manner of causation of injuries: hard and blunt object;
(e) whether injuries collectively and individually are sufficient to cause death in ordinary course of nature?.... Yes
10. The respondent State and its officers have failed to prove that how these injuries were suffered by the deceased Suresh, which have been observed by the medical officers who conducted the autopsy on the body of the deceased. It is the case of the police officers that after Suresh Fattuji Gedam was handed over to them by watchmen of Akola Oil Industries, nobody had occasion to assault him. The police has tried to place the blame on medical officer for his negligence in examining the said Suresh and noting down the injuries by him. Not only this they have come up with the case that in spite of the fact that they had taken the deceased and insisted the medical officer to admit him in the medical hospital, but he refused to do so, and they were required to bring him back. We find that this plea taken by the respondent is only to protect themselves from the charge of having committed murder of the deceased Suresh Fattuji Gedam in police custody. If we examine the medical case papers of all the three accused persons, Dr. Kalane, has given specific description of the injuries suffered by them. In case of Suresh, he has specifically mentioned that he was having multiple abrasions over back and multiple abrasions over left arm and, therefore, doctor was justified in not admitting the accused, who were sent for medical examination. We find that the deceased Suresh had suffered least injuries compared to co-accused Sheikh Lukman and Sheikh Nazir, as their medical certificates which are placed before us do show that they have comparatively serious injuries than deceased Suresh Fattuji Gedam. If deceased Suresh was continuously in custody of the police, after he was brought from Dr. Kalane, then the only inference which can be drawn is that the police officers who were in-charge of his custody are responsible for causing the injuries noted by doctor while conducting autopsy on his body, and which has resulted in his death. There is marked difference in the nature and number of injuries when they are described by Dr. Kalane on medical examination of Suresh and on conducting his autopsy. How these injuries came to be inflicted is within the exclusive knowledge of police officers who were having control over him as he was in their custody.
11. With these sets of fact now let us see what is the legal position in such cases. In the case of D.K. Basu v. State of West Bengal I (1997) Current Criminal Reports 81 (SC) : (1997) 1 SCC 416, Supreme Court has come down heavily against custodial violence, including torture and death in lockups. The Supreme Court held that:
Custodial violence, including torture and death in lockups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by the persons who are supposed to be the protectors of the citizens. It is committed under the four walls of a police station or lockup, the victim being totally-helpless. The protection of an individual from torture and abuse by the police and other law-enforcing officers is a matter of deep concern in the free society. These petitions raise important issues concerning police powers including whether monetary compensation should be awarded for established infringement of the fundamental rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental.
Custodial death is perhaps one of the worst crimes in a civilized society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. The expression ‘life or personal liberty’ in Article 21 includes the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. The precious right guaranteed by Article 21 cannot be denied to convicts, under trials, deenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. It cannot be said that a citizen ‘sheds off his fundamental right to life the moment a policeman arrests him. Nor can it be said that the right to life of a citizen can be put in ‘abeyance’ on his arrest. Any form of torture or cruelty, inhuman or degrading treatment would fall within the inhibition of Article 21, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchy. No civilized nation can permit that to happen. The Supreme Court as the custodian and protector of the fundamental and the basic human rights of the citizens cannot wish away the problem. The right to interrogate the detenus, culprits or arrestees in the interest of nation, must take precedence over an individual’s right to personal liberty. The Latin maxim stilus populi est surpema lex (the safety of the people is the supreme law) and stilus repulicae est supretna lex (safety of the State is the supreme law) co-exist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be ‘right, just and fair’. Using of any form of torture for extracting any kind of information would neither be ‘right nor just nor fair’ and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated–indeed be subjected to sustained and scientific interrogation–determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third-degree methods or eliminated with a view to elicit information, extract confession or derive knowledge about his accomplices,, weapons, etc. His constitutional right cannot be abridged in the manner permitted by law, though in the very nature of things there would be qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal. Challenge of terrorism must be met with innovative ideas and approach. State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to ‘terrorism’. That would be bad for the State, the community and above all for the rule of law. The State must, therefore, ensure that the various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves. That the terrorist has violated human rights of innocent citizens may render him liable to punishment but it cannot justify the violation of his human right except in the manner permitted by the law. The need, therefore, is to develop scientific methods of investigation and train the investigators properly to interrogate to meet the challenge.
12. After expressing their displeasure over the manner in which the police are resorting to custodial violence Their Lordships, have laid down certain guidelines by observing:
It is, therefore, appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf, as preventive measures:
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter-signed by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lockup, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have some one informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The ‘Inspection Memo’ must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel of all tehsils and districts as well.
(9) Copies of all documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
13. The Supreme Court has specifically imposed that failure to comply with the above mentioned requirements, that apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of Court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. In this case, in their affidavit in reply filed on behalf of the various officers of the respondent State, the State has failed to explain that they have followed the guidelines laid down by the Apex Court in D.K. Basu’s case (supra), and particularly Clauses 2, 3, 4, 5, 6, 7 and 11. We propose to deal with the matter separately insofar as initiation of contempt proceedings against the concerned police officers.
14. What we found that in case of non-compliance of the guidelines issued by the Apex Court in D.K. Basu’s case (supra), only inference which the Court can draw is that the police officers who were at the relevant time on duty in the police station are responsible for the custodial violence meted out to the deceased Suresh, i.e., cause of torture inflicted on him, that he died homicidal death which is found from the post-mortem report.
15. In Nilabati Behera v. State of Orissa II (1993) Current Criminal Reports 107 (SC) : 1993 ACJ 787 (SC), the Apex Court while dealing with such custodial death, hold that enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention. Award of compensation in a proceeding under Article 32 by the Apex Court or by the High Court under Article 226, is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. ‘A claim in public law for compensation for contravention of human rights and fundamental freedom, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in. addition to the remedy in private law for damages for the tort’ resulting from the contravention of the fundamental right. The Apex Court went to further observe “that the Court is not helpless and the wide powers given to the Apex Court by Article 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 enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available…”.
16. In the present case, we have no hesitation to hold that the deceased Suresh Fattuji Gedam died while he was in police custody, because of the injuries suffered out of custodial violence. The finding of the medical officer that the deceased suffered 21 contusions, wounds all over the body only indicate that he was brutally tortured and the injuries altogether resulted in cardiac arrest because of which the deceased Suresh died homicidal death. We, therefore, propose to compensate the legal heirs of the deceased. In the additional affidavit filed by the petitioner he has specified that the deceased was doing the job of centering work in building construction and was earning Rs. 150/- to Rs. 200/- per day, and that he has left behind three orphan children, out of them one is a female child of about 17 years and in near future is raquired to get married. The petitioner is the father of the deceased is himself old and not in a position to look after the children. The uncle of the deceased has not come forward to take the responsibility of these three children, who are left orphan because of the homicidal death suffered by Suresh, while in police lock-up. In answer to this, it is submitted on behalf of the State that the deceased Suresh was thief, and that about 17 cases are pending against him. This in our opinion does not deny the right of the legal heirs of the deceased to be entitled for compensation. The deceased may be habitual criminal which we do not accept on mere allegations made by the police against him, but, that does not vest the police or any officer of the State with a power to inflict multiple injuries causing his death, in the manner they have done and, therefore, the State is under obligation to pay compensation to the legal representatives of the deceased Suresh.
17. In a decision rendered by the Apex Court in the case of Ajab Singh v. State of Uttar Pradesh I (2000) Current Criminal Reports 327 (SC) : II (2000) Supreme Laws Today 667 : 2000 ACJ 470 (SC), the Apex Court was dealing with almost similar type of case and felt that the respondent State can be directed to pay compensation in the sum of Rs. 5,00,000/- for the death of Rishipal and this was without prejudice to the rights of the legal representatives to claim the compensation in private law proceedings, if so entitled in law, against those found responsible for his death. The Supreme Court also directed State of Uttar Pradesh to take disciplinary proceedings against those found responsible for Rishipal’s death and also granted costs in favour of the petitioners.
18. Considering the status of the family of the deceased and in order to see that the children are well looked after, in our opinion, a sum of Rs. 75,000/- to the daughter of the deceased by name Sapna Suresh Gedam, and sum of Rs. 50,000/- each to the sons of the deceased, namely, Sachin and Aakash can be granted. As the children are minor and staying with their grandparents who are not in a position to look after them, we appoint the Additional Registrar, (Administration Section) High Court of Bombay, Nagpur Bench, Nagpur as their guardian insofar as the disbursement of the amount of compensation is concerned, who will also take care that the amount spent on the children are actually for their welfare in terms of the directions of this Court. Therefore, we direct the State to deposit a sum of Rs. 1,75,000/- in this Court within a period of 4 weeks. On such amount being deposited, the said amount of compensation would be invested by the Additional Registrar, in fixed deposit with Andhra Bank, High Court Extension, initially for a period of 5 years, i.e., sum of Rs. 75,000 in the name of Sapna Suresh Gedam, sum of Rs. 50,000/- in the name of Sachin and Aakash, sons of Suresh Gedam, with condition that the interest on the said amount will be withdrawn by the Additional Registrar, monthly and disbursed to the children by satisfying himself that the said amount is being actually spent for the children, and also seeing to it that the two sons continue their studies. Insofar as the daughter is concerned, at present she is at home. She has passed her X standard, and now may join some course like stitching and sewing so that she can utilize her time in constructive manner till she gets married. Further that the daughter Sapna will be entitled to withdraw the sum of Rs. 25,000/- for her marriage. The sum so deposited against their names shall not be withdrawn for a period of 5 years after they attain majority or with the permission of the Court in case any such contingency arises, that the dependants may require the money for some immediate purpose.
19. We direct the respondent State not only to take the disciplinary proceedings against the police officers who are found responsible for the death of the said Suresh Fattuji Gedam, while in police lockup, but also prosecute them for having committed offence to which they may be found guilty in the course of the investigation by handing over the investigation of the case to an officer of the rank of D.I.G. Police or above. The action should be initiated against all those police officers who were on duty at the police station during the time the deceased was arrested and till his death.
20. It will be open for the respondent State to recover the amount of compensation granted to the legal heirs of the deceased from the officers who are found responsible for the custodial torture and death of the deceased Suresh Gedam.
21. We also grant cost of this petition quantified at Rs. 5,000/-. The compensation as directed along with the costs should be deposited in this Court within a period of 4 weeks. The petitioner is permitted to withdraw the costs.
22. Respondent State to furnish particulars of police officers responsible for causing arrest and detention of deceased Suresh, within a period of 4 weeks so that show-cause notice can be served on them for having committed contempt of Court, in accordance with directions of the Apex Court in D.K. Basil’s case .