J.S. Verma, J.@mdashA letter dated 14.9.1988 sent to this Court by Smt. Nilabati Behera alias Lalita Behera, was treated as a Writ Petition
under Article 32 of the Constitution for determining the claim of compensation made therein consequent upon the death of Petitioner''s son Suman
Behera, aged about 22 years, in police custody. The said Suman Behera was taken from his home in police custody at about 8 a.m. on 1.12.1987
by Respondent No. 6, Sarat Chandra Barik, Assistant Sub-Inspector of Police of Jaraikela Police Outpost under Police Station Bisra, Distt.
Sundergarh in Orissa, in connection with the investigation of an offence of theft and detained at the Police Outpost. At about 2 p.m. the next day
on 2.12.1987, the Petitioner came to know that the dead body of her son Suman Behera was found on the railway track near a bridge at some
distance from the Jaraikela railway station. There were multiple injuries on the body of Suman Behera when it was found and obviously his death
was unnatural, caused by those injuries. The allegation made is that it is a case of custodial death since Suman Behera died as a result of the
multiple injuries inflicted to him while he was in police custody; and thereafter his dead body was thrown on the railway track. The prayer made in
the petition is for award of compensation to the peti-tioner, the mother of Suman Behera, for contravention of the fundamental right to life
guaranteed under Article 21 of the Constitution.
2. The State of Orissa and its police officers, including Sarat Chandra Barik, Assistant Sub-Inspector of Police and Constable No. 127, Chhabil
Kujur of Police Outpost Jeraikela, Police Station Bisra, are impleaded as Respondents in this petition. The defence of the respondents is that
Surnah Behera managed to escape from police custody at about 3 a.m. on the night between the 1st and 2nd December, 1987 from the Police
Out-post Jeraikela, where he was detained and guarded by Police Constable Chhabil Kujur; he could not be apprehended there after in spite of a
search; and the dead body of Suman Behera was found on the railway track the next day with multiple injuries which indicated that he was ruh
over by a passing train after he had escaped from police custody. In short, on this basis the allegation of custodial death was denied and
consequently the Respondents responsibility for the unnatural death of Sumah Behera.
3. In view of the controversy relating to the cause of death of Suman Behera, a direction was given by this Court on 4.3.1991 to the District Judge,
Sundergarn in Orissa, to hold an inquiry into the matter and submit a report. The parties were directed to appear before the District Judge and lead
the evidence on which they rely, Accordingly evidence was led by the parties and the District Judge Judge has submitted the Inquiry Report dated
4.9.1991 containing his finding based on that evidence that Suman Behera had died on account of multiple injuries inflicted to him while he was in
police custody at the Police Outpost Jeraikela. The correctness of this finding being disputed by the Respondents the matter was examined afresh
by us in the light of the objections raised to the Inquiry Report.
4. The admitted facts are that Suman Behera was taken in police custody on 1.12.1987 at 8 a.m. and he was found dead the next day on the
railway track near the Police Outpost Jeraikela, with out being released from custody and his death was unnatural, caused by multiple injuries
sustained by him. The burden is, therefore, clearly on the Respondents to explain how Suman Behera sustained those injuries which caused his
death. Unless a plausible explanation is given by the Respondents which is consistent with their innocence, the obvious inference is that the fatal
injuries were in-flicted to Suman Behera in police custody resulting in his death, for which the Respondents are responsible and liable.
5. To avoid this obvious and logical inference of custodial death, the learned Additional Solicitor General relied on the Respondents defence that
Suman Behera had managed to escape from police custody at about 3am. on the night between the 1st and 2nd December, 1987 and it was likely
that he was run over by passing train when he sustained the fa(sic) injuries. The evidence adduced by the Respondents is relied on by the learned
Additional Solicitor General to support this defence and to contend that the responsibility of the Respondents for the safety of Suman Behera came
to an end the moment Suman Behera escaped from police custody. The learned Additional Solicitor General, however, rightly does not dispute the
liability of the State for payment of compensation in this proceeding for violation of the fundamental right to life under Article 21, in case it is found
to be a custodial death. The argument is that the factual foundation for such a li-ability of the State is absent. Shri M.S. Ganesh, who appeared as
amicus curiae for the Petitioner, however, contended that the evidence adduced during the inquiry does not support the defence of Respondents
and there is no reason to reject the finding of the learned District judge that Suman Behera died in police custody as a result of injuries inflicted to
him.
6. The first question is: Whether it a case of custodial death as alleged by the Petitioner? The admitted facts are: Suman Behera was taken in police
custody at about 8 a.m. on 1.12.1987 by Sarat Chandra Barik, Asstt. Sub-Inspector of police, during investigation of an offence theft in the village
and was detained police Outpost Jeraikela; Suman Behera and Mahi Sethi, another accused, were handcuffed, tied together and kept custody at
the police station; Suman Behera''s mother, the Petitioner, and grandmother went to the Police Outpost about 8. p.m. with food for Suman Behera
which he ate and thereafter these women came away while Suman Behera continued to remain in police custody; Police Constable Chhabil Kujur
and some, other persons were present at the Police Outpost that night; and the dead body of Suman Behera with a handcuff and multiple injuries
was found lying on the railway track at Kilometre No. 385/29 between Jeraikela and Bhalulata railway stations on the morning of 2.12.1987. It is
significant that there is no cogent independent evidence of any search made by the police to apprehend Suman Behera, if the defence of his escape
from police custody be true. On the contrary, after discovery of the dead body on the railway track in the morning by some railwaymen, it was
much later in the day that the police reached the spot to take charge of the dead body. This con-duct of the concerned police officers is also a
significant circumstance to assess credibility of the defence version.
7. Before discussing the other evidence adduced by the parties during the inquiry, reference may be made to the injuries found on the dead body of
Suman Behera during post-mortem. These injuries were the following:
External injuries
1) Laceration over with margin of damaged face.
2) Laceration of size - 3"" x 2"" over the left temporal region upto bone.
3) Laceration 2"" above mastoid process on the rightside of size 1 1/2"" x: 1/4"" bone exposed.
4) Laceration on the forehead left side of size 1 l/2""x 1/4"" upto bone in the mid-line on the forehead 1/2"" x 1/ 4"" Done deep on the left lateral to it
1"" x 1/4"" bone exposed.
5) Laceration 1"" x 1/2"" on the anterior aspect of middle of left arm, fractured bone protruding.
6) Laceration 1"" x 1/2"" x 1/2"" on the medial aspect of left thigh 4"" above the knee joint.
7) Laceration 1/2"" x 1/2"" x 1/2"" over left knee joint.
8) Laceration 1"" x 1/2"" x 1/2"" on the medial aspect of right knee joint.
9) Laceration 1"" x 1/2"" x 1/2"" on the posterior aspect of left leg, 4"" below knee joint.
10) Laceration 1"" x 1/4"" x 1/2"" on the plantar aspect of 3rd and 4th toe of right side.
11) Laceration of 1"" x 1/4"" x 1/2"" on the dorsum of left foot.
Injury on the neck
1) Bruises of size 3"" x 1"" obliquely alongwith sternocleidomastoid muscle 1"" above the clavical left side (2) lateral to this 2"" x 1"" bruise (3) and 1"" x
1"" above the clavical left side (4) posterial aspect of the neck 1"" x 1"" obliquely placed right to mid line.
Right Shoulder
a) Bruise 2"" x 2"", 1"" above the right scapula.
b) Bruise 1"" x 1"" on the tip of right shoulder.
c) Bruise on the dorsum of right palm 2"" x 1"".
d) Bruise extenses surface of forearm left side 4"" x 1"".
e) Bruise on right elbow 4"" x 1"".
f) Bruise on the dorsum of left palm 2"" x 1"".
g) Bruise over left patela 2"" x 1"".
h) Bruise 1 ""above left patel 1"" x 1"".
i) Bruise on the right illiac spine 1"" x 1/2"".
j) Bruise over left scapula 4"" x 1"".
k) Bruise 1"" below right scapula 5"" x 1"".
l) Bruise 3"" medial to inferior angle of right scapula 2"" x 1"".
m) Bruise 2"" below left scapula of size 4"" x 2"".
n) Bruise 2"" x 6"" below 12th rib left side.
o) Bruise 4"" x 2"" on the left lumber region.
p) Bruise on the buttock of left side 3"" x 2"".
q) On dissection found -
1) Fracture of skull on right side parietal and occipital bone 6"" length.
2) Fracture of frontal bone below laceration 2"" depressed fracture.
3) Fracture of left temporal bone 2"" in length below external injury No. 2 i.e. laceration 2"" above left mastoid process.
4) Membrane ruptured below depressed fracture, brain matter protruding through the membrane.
5) Intracraneal haemorrhage present
6) Brain lacerated below external injury No. 3, 1"" x 1/2"" x 1/2"".
7) Bone chips present on temporal surface of both sides.
8) Fracture of left humerous 3'''' above elbow.
9) Fracture of left femur 3"" above knee joint.
10) Fracture of mandible at the angle mandible both sides.
11) Fracture of maxillary.
The face was completely damaged, eye ball present, nose lips, cheeks absent. (sic)axila and a portion of mandible absent.
No injury was present on the front side of body trunk. There is rupture and laceration of brain.
8. The doctor deposed that all the inuries were caused by hard and blunt object; the injuries on the face and left temporal region were post-
mortem while the rest were ante-mortem. The doctor excluded the possibility of the injuries resulting from dragging of the body by a running train
and stated that all the ante-mortem injuries could be caused by lathi blows. It was further stated by the doctor that while all the injuries could not
be caused in a train accident, it was possible to cause all the injuries by lathi blows. Thus, the medical evidence comprising the testimony of the
doctor who conducted the post-mortem, excludes the possibility of all the injuries to Suman Behera being caused in a train accident while
indicating that all of them could result from the merciless beating given to him. The learned Additional Solicitor General placed strong reliance on
the written opinion of Dr. K.K. Mishra, Processor and Head of the Department of Forensic Medicine, Medical College, cuttack, given on
15.2.1988 on a reference made to him wherein he stated on the basis of the documents that the injuries found on the dead body of Suman Behera
could have been caused by rolling on the railway track in-between the rail and by coming into forceful contact with projecting part of the moving
train/ engine. While adding that it did not appear to be a case of suicide, he indicated that there was more likelihood of accidental fall on the railway
track followed by the running engine/train. In our view, the opinion of Dr. K.K. Mishra, not examined as a witness, is not of much assistance and
does not reduce the weight of the testimony of the doctor who conducted the post-mortem and deposed as a witness during the inquiry. The
opinion of Dr. K.K. Mishra is cryptic, based on conjectures for which there is no basis, and says nothing about the injuries being both ante-
mortem and post-mortem. We have no hesitation in reaching this conclusion and preferring the testimony of the doctor who conducted the
postmortem.
9. We may also refer to the Report dated 19.12.1988 containing the findings in a joint inquiry conducted by the Executive Magistrate and the
Circle Inspector of Police. This Report is stated to have been made u/s 176 Code of Criminal Procedure and was strongly relied on by the learned
Additional Solicitor General as a statutory report relating to the cause of death. In the first place, an inquiry u/s 176 Code of Criminal Procedure is
contemplated independently by a Magistrate and not jointly with a police officer when the role of the police officers itself is a matter of inquiry. The
joint finding recorded is that Suman Behera escaped from police custody at about 3 a.m. on 2.12.1987 and died in a train accident as a result of
injuries sustained therein. There was handcuff, on the hands of the deceased when his body was found on the railway track with hope around it, It
is significant that the Report dated 11.3.1988 of the Regional Forensic Science Laboratory (Annexure ''R-8'', at p. 108 of the paperbook)
mentions that the two cut ends of the two pieces of rope which were sent for examination do not match with each other, in respect of physical
appearance. This finding about the rope negatives the Respondents'' suggestion that Suman Behera managed to escape from police custody by
chewing off the rope with which he was tied. It is not necessary for us to refer to the other evidence including the oral evidence adduced during the
inquiry, from which the learned District Judge reached the conclusion that it is a case of custodial death and Suman Behera died as a result of the
in-juries inflicted to him voluntarily while he was in police custody at the Police Outpost Jeraikela. We have reached the same conclusion on a
reappraisal of the evidence adduced at the inquiry taking into account the circumstances, which also support that conclusion. This was done in view
of the vehemence with which the learned Additional Solicitor General urged that it is not a case of custodial death but of death of Suman Behera
caused by injuries sustained by him in a train accident, after he had managed to escape from Police Outpost. On this con-clusion, the question now
is of the liability of the Respondents for compensation to Suman Behera''s mother, the Petitioner, for Suman Behera''s custodial death.
10. In view of the decisions of this Court in 276278 , 286797 282755 and 280232 Saheli, 292526 and 293767 the liability of the State of Orissa
in the present case to pay the compensation cannot be doubted and was rightly not disputed by the learned Additional Solicitor General. It would,
however, be appropriate to spell out clearly the principle on which the liability of the State arises in such cases for payment of compensation and
the distinction between this liability and the liability in private law for payment of compensation in an action on tort. It may be mentioned
straightaway that award of compensation is a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution
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. This is a distinction between the two remedies to
be borne in mind which also indicates the basis on which com-pensation is awarded in such proceedings We shall now refer to the earlier decisions
of this Court as well as some other decisions before further discussion of this principle.
11. In Rudul Sah (supra), it was held that in a petition under Article 32 of the Constitution, this Court can grant compensation for deprivation of a
fundamental right. That was a case of violation of the Petitioner''s right to personal liberty under Article 21 of the Constitution. Chandrachud, C.J.,
dealing with this aspect stated as under:
It is true that Article 32 cannot be used as a substitute for the aforcement of rights and obligations which can be enforced efficaciously through the
ordinary processes of Courts Civil and Criminal. A money claim has therefore to be agaitated in and adjudicated upon in a suit instituted in a court
of lowest grade competent to try it But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32,
this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a
fundamental right. The instant case is illustrative of such cases. (sic) The Petitioner could have been relegated to the ordinary remedy of a suit if his
claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But we have no doubt that if
the Petitioner fites a suit to recover damages for his illegal detention a decree for damages would have to be passed in that suit though it is not
possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of
this Court to pass an order of compensation in favour of the Petitioner will be doing mere lip-service to his fundamental right to liberty which the
State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the
power of this Court were limited to passing orders to release from illegal detention. One of the telling ways in which the violation of that right can
reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary
compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the
judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities. which act in the name of public interest and
which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others
too well-known to suffer mention, it is necessary to educate ourselves into accepting that respect for the rights of individuals is the true bastion of
democracy. Therefore, the State must repair the damage done by its officers to the Petitioner''s rights. It may have recourse against those officers.
(emphasis supplied)
12. It does appear from the above extract that even though it was held that compensation could be awarded under Article 32 for contravention of
a fundamental right, yet it was also stated that the Petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation
was factually controversial and Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced
efficaciously through the ordinary processes. This observation may tend to raise a doubt that the remedy, under Article 32 could be denied ''if the
claim to compensation was factually controversial'' and therefore, optional, not being a distinct remedy available to the Petitioner in addition to the
ordinary processes. The later decisions of this Court proceed on the assumption that monetary compensation can be awarded for violation of
constitutional rights under Article 32 or Article 226 of the Constitution, but this aspect has not been adverted to. It is, therefore, necessary to clear
this doubt and to indicate the precise nature of this remedy which is distinct and in addition to the available ordinary processes, in case of violation
of the fundamental rights.
13. Reference may also be made to the other decisions of this Court after Rudul Sah. In 286797 it was indicated that in a petition for writ of
habeas corpus, the burden was obviously on the Respondents to make good the positive stand of the Respondents in response to the notice issued
by the court by offering proof of the stand taken, when it is shown that the person detained was last seen alive under the surveillance, control, and
command of the detaining authority. In 284043 , in such a writ petition, exemplary costs were awarded on failure of the detaining authority to
produce the missing person, on the conclusion that they were not alive and had met and unnatural death. The award was made in Sebastian M.
Hongray-II apparently following Rudul Sah, but without indicating anything more. In 280232 illegal detention in police custody of the Petitioner
Bhim Singh was held to constitute violation of his rights under Articles 21 and 22(2) and this Court exercising its power to award compensation
under Article 32 directed the State to pay monetary compensation to the Petitioner for violation of his constitutional right by way of exemplary
costs or otherwise, taking this power to be settled by the decisions in 292526 the State was held liable to pay compensation payable to the mother
of the deceased who died as a result of beating and assault by the police. However, the principle indicated therein was that the State is responsible
for the tortious acts of its employees. In 293767 the award of compensation by the High Court for violation of the fundamental right under Article
21 of an undertrial prisoner, who was handcuffed taken through the streets in a procession by the police during investigation, was upheld.
However, in none of these cases, except Radul Sah, anything more was said. In Saheli, reference was made to the State''s liability for tortious acts
of its servants without any reference being made to the decision of this Court in 279360 wherein sovereign immunity was upheld in the case of
vicarious liability of the State for the tort of its employees. The decision in Saheli is, therefore, more in accord with the principle indicated in Rudul
Sah.
14. 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 Articles 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 and others in that line relate to
award of compensation for contravention of fundamental rights, in the constitutional remedy under Articles 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, in-applicable in this context and distinguishable.
15. The decision of Privy Council in Maharaj v. Attorney-General of Trinidad and Tobago (No. 2), (1978) 3 All ER 670, is useful in this context.
That case related to Section 6 of the Constitution of Trinidad and Tobago 1962, in the chapter pertaining to human rights and fundamental
freedoms, wherein Section 6 provided for an application to the High Court for redress. The question was, whether the provision permitted an
order for montary compensation. The contention of the Attorney-General therein, that an order for payment of compensation did not amount to the
enforcement of the rights that had been contravened, was expressly rejected. It was held, that an order for payment of compensation, when a right
protected had been contravened, is clearly a form of ''redress'' which a person is entitled to claim u/s 6, and may well be the ''only practicable form
of redress''. Lord Diplock who delivered the majority opinion, at page 679, stated:
It was argued on behalf of the Attorney-General that Section 6(2) does not permit of an order for monetary compensation despite the fact that this
kind of redress was ordered in Jaurdoo v. Attorney-General of Guyana [1971] SC 972. Reliance was placed on the reference in the Sub-section
to enforcing, or securing the enforcement of, any of the provisions of the said foregoing sections'' as the purpose for which orders etc could be
made. An order for payment of compensation, it was submitted, did not amount to the enforcement of the rights that had been contravened. In
their Lordships'' view an order for payment of compensation when a right protected u/s 1 ''has been'' contravened is clearly a form of ''redress''
which a person is entitled to claim u/s 6(1) and may well be the only practicable form of redress, as by now it is in the instant case. The jurisdiction
to make such an order is conferred on the High Court by para (a) of Section 6(2), viz jurisdiction to hear and determine any application made by
any person in pursuance of Sub-section (1) of this section''. The very wide powers to make orders, issue writs and give directions are ancillary to
this.
Lord Diplock further stated at page 680, as under:
Finally, their Lordships would say something about the measure of monetary compensation recoverable u/s 6 where the contravention of the
claimant''s constitutional rights consists of deprivation of liberty other wise than by due process of taw. The claim is not a claim in private law for
damages for the tort of false imprisonment, under which the damages recoverable are at large and would include damages for loss of reputation. It
is a claim in public law for compensation for deprivation of liberty alone....
(emphasis supplied)
16. Lord Hailsham while dissenting from the majority regarding the liability for compensation in that case, concurred with the majority opinion of
this principle and stated at page 687, thus:
...I am simply saying that, on the view I take, the expression ''redress'' in Sub-section (1) of Section 6 and the expression ''enforcement'' in Sub-
section (2), although capable of embracing damages where damages are available as part of the legal consequences of contravention, do not
confer and are not in the context capable of being construed so as to confer a right of damages where they have not hitherto-been available, in this
case against the slate for the judicial errors of a judge....
Thus, on this principle, the view was unanimous, that enforcement of the constitutional right and grant of redress embrace award of compensation
as part of the legal consequences of its contravention.
17. It follows that ''a claim in public law for compensation'' for contravention of human rights and fundamental freedoms, 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 contra-vention of the fundamental right. The defence of sovereign immunity being
inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the
constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the
Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported
exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by
recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which
compensation was awarded under Articles 32 and 226 of the Constitution, for conuavention of fundamental rights.
18. A useful discussion on this topic which brings out the distinction between the remedy in public law based on strict liability for violation of a
fundamental right enabling award of compensation to which the defence of sovereign, immunity is inapplicable, and the private law remedy, wherein
vicarious liability of the State in tort may arise, is to be found in Ratanlal and Dhirajlal''s Law of Tons 22nd Edition, 1992, by Justice G.P. Singh, at
pages 44 to 48.
19. This view finds support from the decisions of this Court in the Bhagalpur blinding cases: 292947 and 272141 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 suitable 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 relief, as the available
mode of redress, for enforcement of the guaranteed fundamental rights. More recently in 280318 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 to 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.
20. We respectfully concur with the view that the court is not helpless and the wide powers given to this 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. The power available to this Court under Article 142 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 for the extreme contravention the court 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 have-nots, who are not possessed of the wherewithal for enforcement of their rights in private
law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate.
21. We may also refer to Article 9(5) of the International Cover ant 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.
22. The above discussion indicates the principle on which the court''s power under Articles 32 and 226 of the Constitution is exercised to award
monetary compensation for contravention of a fundamental right. This was indicated in Rudul Sal and certain further observations therein adverted
to earlier, which may tend to minimise the effect of the principle indicated therein, do not really de-tract 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.
23. The question now, is of the quantum of compensation. The deceased Suman Behera was aged about 22 years and had a monthly income
between Rs. 1200/- to Rs. 1500/-. This is the finding based on evidence recorded by the District Judge, and there is no reason to doubt its
correctness. In our opinion, a total amount of Rs. 1,50,000/- would be appropriate as compensation, to be awarded to the Petitioner in the
present case. We may, however, observe that the award of compensation in this proceeding would be taken into account for adjustment, in the
event of any other proceeding taken by the Petitioner for recovery of compensation on the same ground, so that the amount to this extent is not
recovered by the Petitioner twice over. Apart from the fact that such an order is just, it is also in consonance with the statutory recognition of this
principle of adjustment provided in Section 357(5) Code of Criminal Procedure and Section 141(3) of the Motor Vehicles Act, 1988.
24. Accordingly, we direct the Respondent State of Orissa to pay the sum of Rs. 1,50,000/- to the Petitioner and a further sum of Rs. 10,000/- as
costs to be paid to the Supreme Court Legal Aid Committee. The mode of payment of Rs. 1,50,000/- to the Petitioner would be, by making a
term deposit of that amount in a scheduled bank in the Petitioner''s name for a period of three years, during which she would receive only the
interest payable thereon, the principal amount being payable to her on expiry of the term. The Collector of the District will take, the necessary
steps in this behalf, and report compliance to the Registrar (Judicial) of this Court within three months.
25. We clarify that the award of this compensation, apart from the direction for adjustment of the amount as indicated, will not affect any other
liability of the Respondents or any other person flowing from the custodial death of Petitioner''s son Suman Behera. We also expect that the State
of Orissa would take the necessary further action in this behalf, to ascertain and fix the responsibility of the individuals responsible for the custodial
death of Suman Behera, and also take all available appropriate actions against each of them including their prosecution for the offence committed
thereby.
26. The writ petition is allowed in these terms.
Dr. Anand, J.: (Concurring)
27. The lucid and elaborate judgment recorded by my learned Brother Verma (sic) obviates the necessity of noticing facts or reviewing the case
law referred to by him. I would, however, like to record a few observations of my own while concurring with His Lordship''s judgment.
28. This Court was bestirred by the unfortunate mother of deceased Suman Behera through a letter dated 14.9.1988, bringing to the notice of the
Court the death of her son while in police custody. The letter was treated as a Writ-Petition under Article 32 of the Constitution. As noticed by
Brother Verma J., an inquiry was got conducted by this Court through the District Judge Sundergarh who, after recording the evidence, submitted
his inquiry report containing the finding that the deceased Suman Behera had died on account of multiple injuries inflicted on him while in police
custody. Consider-ing, that it was alleged to be a case of custodial death, at the hands of those who are supposed to protect the life and liberty of
the citizen, and which if established was enough to lower the flag of civilization to fly half-mast, the report of the District Judge was scrutinized and
analysed by us with the assistance of Mr. M.S. Ganesh, appearing amicus curiae for the Supreme Court Legal Aid Com-mittee and Mr. Altaf
Ahmad, the learned Additional Solicitor General carefully.
29. Verma J., while dealing with the first question i.e. whether it was a case of custodial death, has referred to the evidence and the circumstances
of the case as also the stand taken by the State about the manner in which injuries were caused and has come to the conclusion that the case put
up by the police of the alleged escape of Suman Behera from police custody and his sustaining the injuries in a train accident was not acceptable. I
respectfully agree. A strenuous effort was made by he learned Additional Solicitor General by reference to the injuries on the head and the face of
the deceased to urge that those injuries could not be possible by the alleged police torture and the finding recorded by the District Judge in his
report to the contrary was erroneous. It was urged on behalf of the State that the medical evidence did establish that the injuries had been caused
to the deceased by lathi blows but in was asserted that the nature of injuries on the face and left temporal region could not have been caused by the
lathis and, therefore, the death had occurred in the manner suggested by the police in a train accident and that it was not caused by the police while
the deceased was in their custody. In this connection, it would suffice to notice that the Doctor, who con-ducted the post-mortem examination,
excluded the possibility of the injuries to Suman Behera being caused in a train accident. The injuries on the face and the left temporal region were
found to be post-mortem injuries while the rest were ante-mortem. This aspect of the medical evidence would go to show that after inflicting other
injuries, which resulted in the death of Suman Behera, the police with a view to cover up their crime threw the body on the rail-track and the
injuries on the face and left temporal region were received by the deceased after he had died. This aspect further exposes not only the barbaric
attitude of the police but also its crude attempt to fabricate false clues and create false evidence with a view to screen its offence. The falsity of the
claim of escape stands also exposed by the report from the Regional Forensic Science Laboratory dated 11.3.1988 (Annexure R-8) which
mentions that the two pieces of rope sent for examination to it, did not tally in respect of physical appearance, thereby belying the police case that
the deceased escaped from the police custody by chewing the rope. The theory of escape has, thus, been rightly disbelieved and I agree with the
view of Brother Verma J. that the death of Suman Behera was caused while he was in custody of the police by police torture. A custodial death is
perhaps one of the worst crimes in a civilised society governed by the Rule of Law. It is not our concern at this stage, however, to determine as to
which police officer or officers were responsible for the torture and ultimately the death of Suman Behera. That is a matter which shall have to be
decided by the competent court. I respectfully agree with the directions given to the State by Brother Verma, J. in this behalf.
30. On basis of the above conclusion, we have now to examine whether to seek the right of redressal under Article 32 of the Constitution, which is
without prejudice to any other action with respect to the same matter which may be lawfully available, extends merely to a declaration that there
has been contravention and infringement of the guaranteed fundamental rights and rest content at that by relegating the party to seek relief through
civil and criminal proceedings or can it go further and grant redress also by the only practicable form of redress-by awarding monetary damages
for the infraction of the right to life.
31. It is axiomatic that convicts, prisoners or under-trials are not denuded of their fundamental rights under Article 21 ''and it is only such
restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the
State, to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law while the citizen is in its
custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under-trials or other prisoners in
custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the
citizen in its custody is not deprived of his right to life. His liberty is in the very nature of tilings circumscribed by the very fact of his confinement and
therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no
exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according
to the procedure established by law. I agree with Brother Verma, J. That the defence of ""sovereign immunity"" in such cases is not available to the
State and in fairness to Mr. Altaf Ahmed it may be recorded that he raised no such defence either.
32. 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 aggrived-party. The citizen complaining of the infringement of the indefeasible right
under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to lift, the cannot get any relief under
the public law by the courts exercising writ ju-diction. The primary source of the pub-lic law proceedings stems from the pre-rogative writs and the
courts have, therefore to evolve ''new tools'' to give relief in public law by moulding it according to the situation with a view to preserve and protect
the Rule of Law. While contending 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 ex-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 there by 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 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.
33. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits 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.
34. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary
damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of he indefeasible
right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the
guaranteed basicand 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. There fore, when the court moulds the relief by
granting ""compensation"" in proceedings under Article 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 its
public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as in is generally
understood in a civil action for damages under fee 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 wrong doer 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.
35. 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 Articles 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 rights 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 Article 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 276278
granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 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 wrongdoer 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.
36. In the facts of the present case on the findings already recorded, the mode of redress which commends appropriate is to make an order of
monetary amend in favour of the Petitioner for the custodial death of her son by ordering payment of compensation by way of exemplary damages.
For the reasons recorded by Brother Verma, J., I agree that the State of Orissa should pay a sum of Rs. 1,50,000/- to the Petitioner and a sum of
Rs. 10000/- by way of costs to the Supreme Court Legal Aid Committee. I concur with the view expressed by Brother Verma, J, and the
directions given by him in the judgment in all respects.
