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2012 SCC OnLine Ori 265 : (2013) 115 CLT 74 : AIR 2013 Ori 1
Orissa High Court
(BEFORE V. GOPALA GOWDA , C.J. AND S.K. MISHRA, J.)
Kumari Rojallin Nayak … Petitioner;
Versus
State of Orissa & Ors. … Opp. Parties.
W.P.(C) No. 16060 of 2005, decided on 30.7.2012, in the matter of an application
under Articles 226 & 227 of the Constitution of India
W.P.(C) No. 16060 of 2005
Decided on July 30, 2012
The Judgment of the Court was delivered by
S.K. MISHRA, J.:— The Petitioner being the daughter of Late Ganeswar Nayak has
filed this writ application claiming compensation of Rs. 4,00,000 due to the death of
her father in the Choudwar Jail on 09.09.2001.
2. Deceased Ganeswar Nayak was arrested in a criminal case on the allegation that
he committed murder of his wife. The Trial
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Court found him not guilty, but at the same time, keeping in view the fact that the
deceased was a Psychiatric patient, directed that he be kept in custody & given
treatment. Upon, his recovery from such ailment, he was supposed to be set at liberty.
Because of shortage of space for accommodation in Kendrapada Jail, the deceased was
shifted to Choudwar Jail, where he was kept in the jail hospital. While being treated as
such, it is alleged that the deceased committed suicide on 09.09.2001 at about 10.30
p.m. by strangulating his neck with the leading chain of hand cuff attached to the grill
of the window.
3. On his death, an U.D. Case was registered bearing No. 7 of 2001, which was
enquired into & after completion of enquiry, a report was submitted that the deceased
died due to suicidal strangulation. Counter affidavit is also filed admitting this fact.
The Petitioner claimed that because of the negligence of the Jail authorities, her father
died.
4. In course of hearing, we have examined the original U.D. Case records. From the
inquest report it is apparent that the deceased did not commit suicide by hanging
himself from vantage point rather it is alleged that he has strangulated himself by
means of the leading chain which was connecting his hand cuff with the grill of the
window.
5. Thus, from the aforesaid undisputed fact, the following factual findings emerge.
(i) The deceased was in custody of the jail authorities when the occurrence took
place.
(ii) The dead body of the deceased was found in the jail hospital ward with his neck
covered by the leading chain of the hand cuff.
(iii) The deceased was not found hanging from any vantage point. On the basis of
these factual findings, the authorities have come to the conclusion that the
deceased strangulated himself by means of the chain & committed suicide.
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However, this Court is of the opinion that the investigation of the case does not
reveal the correct picture & the death of the deceased is a custodial death.
6. This Court in Sabitri Kanhar v. State of Orissa, W.P.(C) No. 23407 of 2010,
disposed of on 18.03.2011, has come to the conclusion that in an incident where two
persons were killed by another inmate, the jail authorities are responsible for the same
as there has been a negligence on the part of the jail authorities keeping the prisoner
in safe custody. Holding thus, a Division Bench of this Court in the aforesaid case,
awarded compensation to the legal heirs of the deceased.
7. It is duty of the jail authorities to ensure safety & security of the inmates of the
jail. Only when there is negligence on their part, such an incident could take place.
Though the authorities have termed the incident as a suicide, foul play cannot be ruled
cut. Therefore,
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this Court comes to the conclusion that It is a case of custodial death & the authorities
are responsible for the same. The authorities being the employees of the Sate of
Orissa, the State is vicariously liable for the death of the aforesaid deceased Ganeswar
Nayak.
8. In Nilabati Behera (Smt.) alias Lalita Behera (Through the Supreme Court Legal
Aid Committee) v. State of Orissa, (1993) 2 SCC 746, the Supreme Court examined a
similar case & has gome to the conclusion that enforcement of the constitutional right
& the grant of redress embraces award of compensation as part of legal consequences
of contravention. Award of compensation in a proceeding under Article 32 by the
Supreme Court or by the High Court under Article 26 is remedy available in public law,
based on strict liability for contravention of fundamental rights to which the principle
of sovereign immunity does not apply, even though it may be available in a defence in
private law in an action based on tort. A claim in public law for compensation for
contravention of human rights & fundamental freedoms, the protection of which is
guaranteed in the Constitution, is an acknowledged remedy for enforcement &
protection of such rights & such a claim based on enforcement of a fundamental right
is distinct from, & in addition to the remedy in private law for damages for the tort
resulting from contravention of the fundamental rights. Thus holding, the Supreme
Court further clarified that such principle justified award of monetary compensation for
contravention of fundamental rights guaranteed by the Constitution, when that is the
only practicable mode of redress available for contravention made by the State or its
servant in the purported exercise of their power, & enforcement of fundamental right is
claimed by resort to the remedy in public law under the Constitution by recourse to
Articles 32 & 226.
9. Similar view has been taken in People's Union for Civil Liberties v. Union of India,
(1997) 3 SCC 433 : AIR 1997 SC 1203, wherein the ratio decided in Nilabati Behera's
case (supra) was relied upon & it was further held that in assessment of the
compensation, the emphasis has to be on the compensatory & not on punitive manner.
The objective is to apply balm to the wounds & not to punish the transgressor or the
offender, as awarding appropriate punishment for the offence, irrespective of
compensation, must be left to the criminal Court in which offender prosecuted, which
the State, in law, is duty bound to do. A similar view has been taken by the Division
Bench of this Court in Ahalya Pradhan v. State of Orissa, 2009 (I) OLR 526, wherein
the custodial death was levelled as a suicide, which was negatived by a fact finding
commission, the Division Bench of this Court has come to the conclusion that the legal
heirs of the deceased are entitled to receive compensation.
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10. Keeping in view the aforesaid proposition of law, this Court comes to the
conclusion that on the fact of the case, death of the deceased Ganeswar Nayak is a
custodial death & the jail authorities are responsible for the same. As such, the State
is liable to pay compensation to the Petitioner. Keeping in view in entirety Of the facts,
we assess compensation of Rs. 3,00,000/-.
11. Accordingly, the Writ Petition is allowed. The Opp. Parties are directed to pay a
sum of Rs. 3,00,000/- (Rupees three lakh) to the Petitioner within two months, failing
which the amount shall carry an interest @ 9% per annum from the date of filing of
the writ application i.e. 23.12.2005. A copy of this Judgment be handed over to the
Learned Government Advocate for early compliance of the directions.
CHIEF JUSTICE:— I agree.
12. Petition allowed.
———
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