2018 Supreme(Bom) 1455

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.S. SHINDE, V.K. JADHAV, JJ.
Shaikh Shama wd/o Shaikh Muhammed & Ors. - Petitioners
Versus
The State of Maharashtra through Police Inspector Shivajinagar & Ors. - Respondents
Criminal Writ Petition No. 1451 of 2015
Decided On : 16-08-2018

Headnote:

Constitution Of India, 1950 - Section 142, 32 and 226 - Right to Information Act, 2005 - Appeal for Compensation – Murder - Transfer of investigation - Petitioner no.1 is wife of victim, petitioner no.2 is father and Petitioner no.3 is brother of victim - Victim was residing with his wife - It is contention of petitioners, victim had left home in search of labour work. - On same day one of brothers of victim received phone call from his friend informing him that victim is hospitalized by policemen at Civil Hospital in seriously injured condition - Petitioners along with other relatives went to said hospital when policemen were shifting victim to Hospital - Petitioners joined policemen and boarded ambulance carrying victim to said hospital - According to petitioners, at that time,victim was unconscious and kept on ventilator and blood was oozing from his mouth, ears and nose - On arrival at Hospital doctors declared victim dead - Police officers concealed real cause of death of victim and vaguely claimed that he was arrested in connection with a case of theft and during his transportation from place of arrest to Koregaon, he jumped off police van and received injuries - Petitioners disbelieved said story as there was no case registered against victim and demanded impartial investigation of custodial killing of victim at the hands of concerned police officials - Petitioners also insisted for registration of FIR against guilty police officials which was flatly refused by police officers - Petitioners were informed that case is handed over to Crime Investigation Department (CID), Beed for further investigation and if found proper, offence will be registered against concerned police officials - Petitioners made applications to various authorities and also to Chief Minister for registering offence against guilty policemen and for transfer of investigation from CID to CBI - Petitioners also sought information under Right to Information Act, 2005 about further progress in case – Held, Court respectfully concur with view that, court is not helpless and 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 fundamental rights guaranteed in Constitution, which enable award of monetary compensation in appropriate cases, where that is only mode of redress available - Power available to this Court under Article 142 is also an enabling provision in this behalf - Courts power under Articles 32 and 226 of Constitution is exercised to award monetary compensation for contravention of a fundamental right - This was indicated in Rudul Sah (AIR 1983 SC 1086) and certain further observations therein adverted to earlier, which may tend to minimise effect of principle indicated therein, do not really detract from that principle - This is how decisions of this Court in Rudul Sah and others in that line have to be understood and Kasturilal (AIR 1965 SC 1039) distinguished therefrom – Court have considered this question at some length in view of doubt raised, at times, about propriety of awarding compensation in such proceedings, instead of directing claimant to resort to ordinary process of recovery of damages by recourse to an action in tort - On finding reached, it is a clear case for award of compensation to petitioner for custodial death of her son - Deceased was bread earner of family - There are five minor children, including three daughters and two sons and widow – Deceased was labour by occupation - There is clear violation of mandate laid down by Supreme Court in case of D.K. Basu (supra), as much as prima facie, there is sufficient material to draw inference that deceased was subjected to custodial violence - We also deem it appropriate to initiate suo motu contempt proceedings against respondent No.7 police head constable, for violating the mandatory direction given by Supreme Court in case of D.K. Basu – Court make it clear that investigating agency is at liberty to add other persons as accused in crime in event their involvement in crime is revealed during course of investigation – Court hope and expect that investigation would be expedited and be taken to its logical end within a period of four months from today – Petition Disposed Of.