A.I.S. Cheema, J.

1. Rule. Rule made returnable forthwith.

2. Present Writ Petition has been filed by Kewalbai W/o Madhavrao Ghorband, the mother of one Sandeep, who met with custodial death, for compensation of Rs.10,00,000/-.

3. The petitioner claims that:-

(a) Petitioner’s son was in custody and lodged in Sub Jail, Kandhar, Dist. Nanded. Superintendent of Sub Jail, Kandhar (Respondent No.4) is under supervisory authority of Superintendent of Central Jail, Nanded (Respondent No. 3). At the Sub Jail, Kandhar one constable Pandit Manikrao Marwade by his Service Rifle of 303, in the night of 02.02.2011 shot her son Sandeep. Petitioner was having two sons and one daughter. Her husband died long back. (Deceased) Sandeep was the earning member of the family. He was arrested in 2011 for some charges by the Local Police and thus, he was sent in custody to Respondent No.4. Petitioner was informed on 03.02.2011 that her son was shot by on duty constable Pandit Manikrao Marwade in the Jail lockup and that, he had died on the spot. There were various other inmates in the lockup. Police constable Pandit at about 11.30 p.m. to 12.00 midnight opened the lockup and shot Sandeep and thereafter shot himself and committed suicide. Sub-Inspector of Police Station, Kandhar lodged F.I.R. of the incident. Investigation has been conducted by Deputy Superintendent of Police and charge-sheet under Section 173 of Code of Criminal Procedure, 1973 was submitted to Judicial Magistrate, First Class, Kandhar and “A” Abetted Summary was sought, which has been granted on 30.08.2011.

(b) It is claimed that due to the custodial death of Sandeep, petitioner and her family is suffering mental agony and facing starvation. She filed representation dated 12.07.2012 to Superintendent of Police, Nanded (Respondent No.2) for grant of compensation and also requested for conducting enquiry into the custodial death. It is the duty of the State to protect life and personal liberty of every citizen and State is vicariously liable for custodial death for carelessness of Respondent No.4. The constitutional and human rights have been violated and thus claim for compensation, of Rs.10,00,000/-.

4. Police Inspector, Kandhar, Mr. Chandrashekhar Tukaram Chaudhari has filed affidavit dated 20.02.2013, and further affidavit dated 22.04.2013. In the affidavit, it is mentioned that on the basis of information available with Respondents, the fact regarding the occurrence of incident is admitted. Sandeep was arrested and remanded in magisterial custody at Sub Prison, Kandhar in a crime and constable Pandit Manikrao Marwade did shoot Sandeep on 02.02.2011. Sandeep was arrogant in nature and addicted to drinks. The incident occurred due to arrogant nature and misbehaviour of Sandeep. First Information Report was lodged on 03.02.2011 and investigation was done by SDPO Kandhar, Gita Chavan and later on same has been handed over to C.I.D. Nanded. The incident occurred due to sudden and grave provocation and is an individual act of Police Constable which behaviour was not expected by the Superior authorities. Theory of vicarious liability does not apply. It is true that it is the duty of Department to protect life and personal liberty. However, Sandeep was threatened and abused constable Marwade and the incident took place. Sandeep is responsible for the incident. Sandeep was of criminal nature and was remanded to magisterial custody in crime No. 90/2009 under Sections 307, 452, 294, 354, 336, 506 of the Indian Penal Code, 1860 which crime was registered at Police Station Loha, Dist. Nanded. Sandeep was arrogant. There were other five inmates in the room and there was no reason for the constable to shoot only Sandeep.

In the Additional Affidavit dated 22.04.2013, Police Inspector Chandrashekhar has replied to the contents of the Petition by claiming that the investigation had been handed over to C.I.D. Nanded. After proper investigation, the concerned Authority submitted Fin