In cases of custodial death, pending investigation does not preclude compensation claims; negligence by authorities is presumed when violence is indicated, necessitating Magisterial inquiry.

ORDER :

1. The writ petition was moved on 11^th February, 2022. Mr. Sahoo, learned advocate appears on behalf of petitioner and had submitted, father of his client died in custody. Relief of compensation had been prayed for. On behalf of State, directions were obtained for filing counter. It was to be filed by 14^th March, 2022. Instead, extension of time was prayed for on 23^rd March, 2022 on submission that there were efforts to move the authorities for issuance of viscera report and final opinion on cause of death. In the circumstances, further extension to file counter was granted.

2. On 12^th July, 2022, on behalf of State it was submitted that counter had been filed and there is reference therein to inquiry under sub-section (1-A) in section 176 of Code of Criminal Procedure, 1973 by Magistrate, as is pending. There was record in order made that day that the counter does not disclose police report under section 174. State was required to answer as to how finding in the Magisterial inquiry would be relevant as contention in defence against the claim for compensation.

3. Today Mr. Das, learned advocate, Additional Government Advocate appears on behalf of State and submits, a memo has been filed disclosing in it, inter alia, judgment dated 19^th April, 2022 made by the First Division Bench of this Court in W.P. (C) No. 33492 of 2011 ( Smt. Bishnupriya Pattnaik and another vs. State of Orissa and others ). Also disclosed is, referred to in the judgment, Record dated 4^th September, 2020 of proceeding in National Human Rights Commission (NHRC), New-Delhi, on interpretation of section 176(1-A).

4. In Smt. Bishnupriya Pattnaik (supra), Mr. Das relies on paragraph 10. Said paragraph is reproduced below:

“10. In reply to the present petition, the Opposite Parties have placed a record of medical treatment of late Susanta Pattnaik including the Inquest Report and the PM Report. The proceedings of the SHRC have also been placed on record. Having carefully examined all these documents, the Court is unable to come to a conclusion different from that reached by the SHRC. Further, although the counter affidavit was filed way back on 23rd November 2015, there has been no rejoinder filed thereto by the Petitioners till date. There is no material on the basis of which this Court can come to a conclusion that the death of late Susanta Pattnaik was either due to any ill-treatment by the jail officials or due to negligence of the jail officials in not affording any timely medical treatment for his condition.”

He then relies on following passage from proceedings dated 4^th September, 2020 in NHRC, reproduced below.

“Inquiry shall also be held by Judicial Magistrate or the Metropolitan Magistrate in addition to the inquires or investigations held by the police within the local jurisdiction where the offence has been committed. So the inquiry is the condition precedent to determine an offence and unless the inquiry is conducted by Judicial Magistrate or the Metropolitan Magistrate in cases where any person dies or disappears or rape is alleged to have been committed on any woman, while such person or woman in police or judicial custody, there seems to be no scope to determine that such incident of custodial death, disappearance or rape as the case may be, is an offence. Therefore, to give more sanctity to such inquiry, the power has been given to the Judicial Magistrate/Metropolitan Magistrate by inserting new amended provision in Section 176 Cr.P.C.”

5. Paragraph 9 from counter filed on behalf of State is reproduced below:

“9.That the post mortem over the dead body was conducted on 03.01.2021 at SCB Medical College and Hospit