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1996 Supreme(Ori) 201
IN THE HIGH COURT OF ORISSA
S.N. Phukan, A. Pasayat, JJ.
SMT. CHANCHALA SWAIN - APPELLANT
Versus
STATE OF ORISSA AND OTHERS - RESPONDENT
O.J.C. No. 7991 of 1994
Decided On : 14-11-1996
A.K. Nanda, for the Appellant; Advocate General for Opp. Party Nos. 1 to 4 and 11, G.D. Tripathy, R.K. Nayak and G.C. Mishra for Opp. Party No. 7, B.N. Panda, D. Das, D. Panda, Dillip Dash and S.K. Lenka for Opp. party Nos. 8 and 9, for the Respondent
The police are responsible for the custodial death of a person who is in their custody and must pay compensation to the victim's family.
Headnote:
WRIT OF HABEAS CORPUS - CUSTODIAL DEATH - COMPENSATION - POLICE LIABILITY - ENFORCEABLE RIGHT TO COMPENSATION FOR UNLAWFUL ARREST OR DETENTION - ARTICLE 9(5) OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 1966.
Fact of the Case:
Rabinarayan Swain, a teacher, was taken into custody by police officials in connection with a kidnapping case. He was never produced before a court or released, and his whereabouts remained unknown. His wife filed a writ of habeas corpus petition seeking his release.
Finding of the Court:
The court found that the police officials had failed to produce Rabinarayan in court or provide any credible explanation for his disappearance. It held that the police were responsible for his custodial death and awarded compensation to his wife.
Issues: 1. Whether the police officials were responsible for the custodial death of Rabinarayan Swain. 2. Whether the petitioner was entitled to compensation for the unlawful detention and custodial death of her husband.
Ratio Decidendi: 1. The court held that the police officials were responsible for the custodial death of Rabinarayan Swain because they had failed to produce him in court or provide any credible explanation for his disappearance. 2. The court held that the petitioner was entitled to compensation for the unlawful detention and custodial death of her husband because the police officials had violated his fundamental rights under Articles 21 and 22(5) of the Constitution.
Final Decision: The court allowed the writ petition and directed the State to pay compensation of Rs. 1,50,000/- to the petitioner. The court also directed the police officials to produce Rabinarayan Swain in court within a stipulated time, failing which the balance amount of compensation would be released to the petitioner.
JUDGMENT :
A. Pasayat, J. - In this petition for a Writ of habeas corpus under Article 226 of the Constitution of India, 19.0 (in short,'the Constitution'), Chanchala Swain, wife of Rabinarayan Swain, has moved to secure release of her husband, who was allegedly taken to custody by police officials in connivance with others.
2. The prayer for release of Rabinarayan has bean on the following background:
One Bijay Kumar Bal. nephew of Rabinarayan fell in love with the daughter of Harekrushna Nayak (opp. party No. 7). Both the girl and the boy left their village and went to Rajgangpur where Rabinarayan was serving as a teacher in Model Upper Primary School, in which Sudhir Kumar Moharana (opp party No. 10) is the Headmaster. After staying in the house of Rabinarayan for nearly one month, Bijay and the girl left for Burdwan. Akshaya Kumar Behera, A.S.I, of Police, Kudanagiri Out Post (opp. party No. 5), Nimain Charan Rout Constable of the said Out Post (opp. party No. 6) and Harekrushna Nayak, father of the girl along with the Headmaster (PW, 10) arrived in the school where Rabinarayan was teaching on 3-10-1994 Opp, party No.5. addressed a letter to the District Inspector of Schools, Rajgangpur requesting him to direct Rabinarayan for assisting in investigation of P. S. Case No.162 of 1994 of Patakura Police, Station instituted on the basis of information given by opp. party No. 7 that Bijay had kidnapped his minor daughter. The Headmaster requested Rabinarayan to assist in investigation. Opp. party Nos. 5, 6, 7 and 10 took Rabinarayan with them in a jeep with promise to the Headmaster that Rabinarayan would be sent back after interrogation. Thereafter whereabouts of Rabinarayan remained in mystery. The Headmaster sent a telegram to Durga Charan brother of Rabinarayan on 6-10-1994 about absence of Rabinarayan. Another telegram was sent on 15-10-984, which was received by Durgacharan. in the first telegram intimation was given about Rabinarayan being taken for interrogation, and in the second a request was made to give information regarding whereabouts of Rabinarayan, Durga Charan got in touch with the Headmaster. As Rabinarayan could not be traced, enquiries were taken up by Patakura polica and Kudanagari out Post, but nothing material could be elicited. Petitioner being apprehensive of danger to her husbands life, moved the Superintendent of Police, Kendrapara. But since Rabinarayan's whereabouts continued to be in mystery, this Court has been moved.
3. Several counter-affidav ts have been filed by the opposite parties, more particularly Superintendent of Police, Kendrapara opp. party No, 3). Stand has been taken that though for some time Rabinarayan was accompanying, the Assistant Sub-Inspector and the Constable, thereafter he managed to escape giving a slip to the police officials. Station diary entries have been made that Rabmarayan accompanied the police officials. Rabinarayan with ulterior motive is moving from place to place, and though the was reported to be seen at several places outside the State, i.e., at Surat and Calcutta, getting scent of likely arrival of police officials, he has managed to move away. On two occasions this Court expressed displeasure for the manner in which the investigation was being conducted, and the causal and light manner in which it was being dealt with by the police officials. " Evasive stands taken by the police officials was disapproved. During pendancy of the writ application, information was lodged by the petitioner to. th3 effect that she believes that her husband has lost his life, for which the police officials are responsible, and on the basis of such information a police case (Patakura P. S. case No. 228 dated 7-9-1996) has bean instituted.
4. Learned counsel for the petitioner submitted that carelessness of the police officials is apparent and they have taken a frivolous piea that Rabinarayan slipped from their company, and in spite of ample time granted to them, there has been no produc
