1994 Supreme(Bom) 449

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
M.B. Ghodeswar R.M. Lodha, JJ.
Christian Community Welfare Council of India (regd.).... Petitioners.
Versus
Government of Maharashtra and another.... Respondents.
Criminal Writ Petition No. 204 of 1993, decided on 26-8-1994.
Advocates appeared :
R.S. Agrawal, (amicus curie), for the petitioners.
D.N. Kukdey, A.G.P., for the respondents.

Headnote:Articles 21 and 226-lndlan Penal Code, 1860-Sections 302, 330, 342 and 354-Compensatlon-Wben can be escape from paying for wrongful confinement and bearing of detenu, his wife, brothers and children?

       Held; the respondent State of Maharashtra cannot escape its liability from payment of compensation to the petitioner No.2 for the death of her husband in police custody/police lock up and such liability rightly has not been disputed by the Asst. Government Pleader.

       After holding that the State is liable to pay compensation to the petitioner No. 2 for custodial death of her husband and that in exercise of jurisdiction under Article 226 of the Constitution of India such compensation can be awarded against the Slate of Maharashtra and in favour of the petitioner No.2, the only question that remains to be considered is the quantum of compensation. Admittedly, deceased was employed in the Railways and was drawing salary of Rs. 1,600/- per month. This fact is not disputed by the Assistant Government Pleader. Though there is some dispute about the age of the deceased because according to the petitioners, the deceased was 32 years old and the evidence and material collected during the investigation shows the age of deceased 34-35 years, but according to the Assistant Government Pleader, was 42 years old at the time of his custodial death. The dispute of age in the facts and circumstances of the present case is not very material because the High Court not examining the award of compensation under the Law of Tort. Even if for the sake of arguments that deceased was 42 years old at the time of his death, he being a permanent employee in the Railways of the Central Government and the young age of petitioner No.2 and minor children and in the view of the matter, applying the principles laid down by the Apex Court in Nilabati Beheras case this Court deem it just and proper that total amount of Rs. 15,000/- would be appropriate as compensation to be awarded to the petitioner No. 2 in the present case. If the petitioner No. 2 or the minor children take any other proceeding for recovery of compensation on the same ground or any other ground, the amount of Rs. 1,50,000/- which is awarded to the petitioner No.2 would be adjusted. It is, however, made clear that this award of compensation to the tune of Rs. 1,50,000/in favour of the petitioner No.2 and against the Slate of Maharashtra will not affect any other liability of the respondents or any other person following from the custodial death of the petitioner No. 2s husband, Jaonious Adam IIlamatti. It will be open to the State of Maharashtra to recover the amount of compensation awarded from the earning police officials proportionately.

       Now a word about the petitioners prayer for handing over of the investigation of the case to the Central Bureau of Investigation. The High Court has looked into the complete material of investigation conducted the evidence and material collected by him and the fact that now the charge-sheet has already been submitted by him before the Chief Judicial Magistrate, Nagpur and the case has already been committed for trial to the Court of Session Judge by the Chief Judicial Magistrate, in the facts and circumstances of the case, the High Court does not feel that now any purpose would be served by ordering investigation of the case by the Central Bureau of Investigation. Of course, from the material placed on record it does seem that the accused police officials avoided their arrest for few days. Though G in his affidavit has stated that he has made all out efforts for the arrest of all the accused persons immediately, but was not successful, since he did not have sufficient staff. This explanation is not satisfactory and Court direct the State Government to enquire into the question whether there was any lapse on the part of the Investigating Officer in the arrest of the ten accused police officials and if so proper action be taken.

       Articles 21 and 226-lndian Penal Code, 1860, Sections 302, 330, 342 and 354-lIIegal custody of wife with children and brothers along with husband by male policemen-Hurling of obsence signs and abuses on lady-Direction issued to ensure that ladles not be arrested by male policemen, nor between sunset and sun-rise for separate lock-up for ladies.

       Articles 21 and 226-lndlan Penal Code, 1860, Sections 302, 326, 330 and 342-Mere suspicion-Detention and beating of accused, his wife, brothers and children on-Procedure not followed In-Injuries due to-Direction for constituting committee to look into excesses, take measures for avoiding recurrence and medical examination of detenus persons on arrest and then every day of continued custody, and putting up of complaint boxes at police station with facility to accused for making complaints about any excesses etc.

       Sections 302, 330, 342 and 354-See Constitution of India, Articles 21 and 226.

       Sections 302, 330, 342 and 354-Illegal custody of wife with children and brothers along with husband by male policemen-Hurling of absence signs and abuses on lady-Direction issued to ensure that ladies not be arrested by male policemen, nor between sun-set and sub-rise for separate lock-up for ladies.

       Sections 302, 330, 342 and 354-Compensation-When can be accused for paying for wrongful confinement and bearing of detenu, his wife, brothers and children?

       Held; the respondent State of Maharashtra cannot escape its liability from payment of compensation to the petitioner No.2 for the death of her husband in police custody/police lock-up and such liability rightly has not been disputed by the Asst. Government Pleader.

       After holding that the State is liable to pay compensation to the petitioner No.2 for custodial death of her husband and that in exercise of jurisdiction under Article 226 of the Constitution of India such compensation can be awarded against the State of Mahatashtra and in favour of the petitioner No.2, the only question that remains to be considered is the quantum of compensation. Admittedly, deceased was employed in the Railways and was drawing salary of Rs. 1,600/- pet month. This fact is not disputed by the Assistant Government Pleader. Though there is some dispute about the age of the deceased because according to the petitioners, the deceased was 32 years old and the evidence and material collected during the investigation shows the age of deceased 34-35 years, but according to the Assistant Government Pleader, was 42 years old at the time of his custodial death. The dispute of age in the facts and circumstances of the present case is not very material because the High Court not examining the award of compensation under the Law of Tort. Even if for he sake of arguments that deceased was 42 years old at the time of his death, he being of permanent employees in the Railways of the Central Government and the young age of petitioner No.2 and minor children and in this view of the matter, applying the principles laid down by the Apex Court in Nilabati Beheras case Court deemed it just and proper that total amount of Rs. 15,000/- would be appropriate as compensation to be awarded to the petitioner No. 2 in the present case. If the petitioner No.2 or the minor children take any other proceeding for recovery of compensation on the same ground or any other ground, the amount of Rs. 1,50,000/- which is awarded to the petitioner No.2 would be adjusted. It is, however, made clear that this award of compensation to the tune of Rs. 1,50,000/ - in favour of the petitioner No.2 and against the State of Maharashtra will not affect any other liability of the respondents or any other person flowing from the custodial death of the petitioner No. 2s husband Jaonious Adam Illamatti. It will be open to the State of Maharashtra to recovery the amount of compensation awarded from the earning police officials proportionately.

       Now, a word about the petitioners prayer for handing over of the investigation of the case to the Central Bureau of investigation. The High Court has looked into the complete material of investigation conducted the evidence and material collected by him and the fact that now the charge-sheet has already been submitted by him before the Chief Judicial Magistrate, Nagpur and the case has already been committed for trial to the Court of Session Judge by the Chief Judicial Magistrate, in the facts and circumstances of the case, the High Court does not feel that now any purpose would be served by ordering investigation of the case by the Central Bureau Investigation. Of course, from the material placed on record it does seem that the accused police officials avoided their arrest for few days. Though G in his affidavit has stated that he has made all out efforts for the arrest of all the accused persons immediately, but was not successful, since he did not have sufficient staff. This explanation is not satisfactory and Court direct the State Government to enquire into the question whether there was any lapse on the part of the Investigating Officer in the arrest of the ten accused police officials and if so proper action be taken.

       Sections 302, 326, 330 and 342-See Constitution of India, Articles 21 and 226.