Cri. Writ Petition No. 99 of 2005

21st October, 2005

Petitioner Counsel: Shri. S. A. JAISWAL
Respondent Counsel: Shri. A. G. MUJUMDAR

Cases Cited:
Sheela Sudhakar Yerpude Vs. The Home Department, through Secretary, Mantralaya, Mumbai, Cri.W.P.No.328/2002, Dt:27-01-2005 [Para 25]
D. K. Basu Vs. State of West Bengal, (1997)1 SCC 416 [Para 27,28,30]
State of M.P. Vs. Shyamsunder Trivedi, (1995)4 SCC 262 [Para 28,35]
Nilabati Behera (Smt.) Alias Lalita Behera (Through the Supreme Court Legal Aid Committee) Vs. State of Orissa, (1993)2 SCC 748 [Para 29]
Shakila Abdul Gafar Khan (Smt.) Vs. Vasant Raghunath Dhoble, (2003)7 SCC 749 [Para 35]

JUDGMENT

J. N. PATEL, J.: - Petitioners are wife, children and parents of deceased Manoj Chhotelal Verma, who have approached this Court by invoking its extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India, claiming compensation in the sum of Rs.9,50,000/- alongwith costs of Rs.50,000/- from the respondent/State and its officials for the custodial death of Manoj Verma who died while he was in custody of Police Station, Ganeshpeth on being arrested for having committed offence punishable under Sections 294 and 506-B of the Indian Penal Code, registered vide Crime No.3229/2003.

2. The indisputed facts can be summed up from the pleadings of the parties and as admitted and presented in the submissions made on behalf of respondent No.1 and are reproduced as under :

That on 28-10-2003 at about 18.00 hours the Control Room gave information to the Police Station, Ganeshpeth that police staff is required at Vajpeyi Mandir at Bajeriya area as some quarrel is going on. On receiving this information from the Control Room the day officer i.e. Respondent No.4 Shri. Saraf alongwith Police Constable Jiralal (Respondent No.6) and Police Constable Rajendra (Respondent No.5) went on the spot in the Police Jeep. They apprehended Manoj Verma and he was beaten by fists blows and stick by the said Police Officers and brought him in the Police Jeep to Police Station, Ganeshpeth and produced the apprehended accused Manoj Verma before the Police Inspector Mr. Vasant Ade (Respondent No.3). It is submitted that the said entry is appearing in the Station Diary at Sr.No.49 at about 19.00 hrs. It is submitted that the Respondent No.3 has interrogated the accused Manoj Verma and gave further investigation to Respondent No.4. The day Officer P.S.I. Arvind Saraf-Respondent No.4 sent the accused Manoj Verma for the Medical examination alongwith Respondent No.5 Rajendra Boldhan and another Police Constable Subhash B.No.712 in Government Jeep. The deceased Manoj Verma was taken to Government Medical College, Nagpur. The Medical Officer Dr. P.M. Revale examined Manoj Verma at 19.20 hrs. and has given opinion "No complaints, No external injuries seen at present.".

3. On perusal of Station Diary of Police Station, Ganeshpeth it is revealed that Manoj Verma was brought back to the Police Station at 19.45 hrs. At 20.00 hrs. complainant Rajesh Gandalal Yadav lodged a report to Police Station, Ganeshpeth and Crime No.3229/2003 was registered for an offence punishable under Sections 294, 506-B of Indian Penal Code and that being an offence registered against Manoj Verma, he was confined in the police lock-up. It is further revealed from the record that the Respondent No.4 with the help of staff, took out deceased Manoj Verma out of the Cell at 20.15 hrs. Then Manoj Verma, having chest pain, according to the police staff, was taken to Government Hospital by respondent No.6 and other police constables. Manoj Verma was examined by Medical Officer Dr. R. V. Tamhne at 11.30 hrs. and the Doctor gave report that "Patient is brought dead". The Respondent No.6 P. C. Jeerala gave a report to the Police Station, Ganeshpeth and therefore A.D. was registered under Section 174 of the Code of Criminal Procedure at about 22.25 hrs.

4. The Taluqa Magistrate having been informed, rushed to the Government Medical College, Nagpur and prepared inquest panchnama. According to inquest panchnama there were external injuries on the body. The body was then referred for post-mortem. In the mean time Sujit Verma, brother of the deceased, had lodged a report on 29-10-2003 at about 00.48 hrs. against the police officers. The matter was taken up for investigation by the State C.I.D. (Crime).

5. It is submitted that as per the Postmortem Report the Medical Officer found the following injuries on the body of Manoj Verma.

EXTERNAL INJURIES

1. Contusion present over medical aspect of left knee and upper third leg, obligue, 15 cm x 2 cm cut section blood & blood clots + bright red in colour 21 linear abrasion 4 cm below left knee 2" in no.1 cm. Apart oblique of size 1.5 cm x 0.25 cm and 0.5 cm x 0.25 cm reddish, 3) Abrasion over back left side 2 cm x 1 cm reddish, 4) Linear abrassion over middle third of left shin of tibia oblique 1.5 cm x 0.5 cm with brown scab.

INTERNAL INJURIES

"underseal haematoma + over vertex partietal right side 3 cm x 3 cm Bright red" extradural haemorrhage present in both parietal region and occipital region as thin film of blood and blood clot 30 cc blood clots in occipital region, brain congested. The reason for death recorded is "Intracranial hemorrhage due to head injury"."

6. The State C.I.D. (Crime) has recorded the statement of various witnesses and out of them Yogesh Prajapati, Gulab Varma, Sujeet Varma and Anil Varma have disclosed that they have seen the Police Officers assaulting the deceased Manoj Varma when they apprehended him near Bajeriya area. Thereafter, it was revealed to the State C.I.D. (Crime) from the eye-witnesses Dipak Gaur, Rakesh Shahu, Ritesh Varma and Anil Shahu that Manoj Varma was beaten by police in the Police Station, Ganeshpeth.

7. The State C.I.D. (Crime) has referred this matter to the expert committee headed by Director of Health Services, Mumbai and the experts' committee has given an opinion "if the head of a person is banged against a hard and blunt surface with considerable force, the internal injuries as found in the instant case, are possible without evidence of any external injury on head."

8. The State C.I.D. having found prima facie material that the deceased Manoj was beaten by Police when he was in police custody in the night of 28/29-10-2003 after detailed investigation and approval from the competent authority has ultimately filed a charge-sheet against Respondent Nos.3 to 6 on 20-11-2004 for an offence punishable u/ss.304(2), 109 and 323 of the I.P.C. There being no material against the Respondent Nos.7 & 8 a report u/s.169 of Criminal Procedure Code is submitted before the Judicial Magistrate First Class, Nagpur for necessary orders.

9. It is in the backdrop of these facts that the petitioners claim that deceased Manoj was earning his livelihood by plying rickshaw in Nagpur city and on an average was earning about Rs.5,000/- to Rs.5,500/- per month. Because of his custodial death on 28-10-2003 the petitioner wife, two minor daughters and disabled and old parents have lost sole bread earner of the family and have come on street.

10. It is the case of the petitioner that as the said Manoj Verma has been murdered in police custody by the respondent police officers who were at the relevant time concerned with the affairs of the Police Station, respondent No.3 being Vasant Kawaduji Ade, Police Inspector, Incharge of Police Station, Ganeshpeth, Respondent No.4 P.S.I. Arvind Saraf, who was at the relevant time on duty as Staff Officer at Ganeshpeth Police Station and Respondent Nos.5 to 8 are the Police Constables who were present and on duty in Police Station, Ganeshpeth. Manoj Verma was brutally assaulted by them until his death and thereby deprived of his life which is guaranteed under Article 21 of the Constitution of India and as respondent Nos.3 to 8 are police officials appointed by the State to protect and safeguard life and property of the citizens the respondents are liable to pay compensation to the petitioners for the custodial death of Manoj Verma which was in violation of his fundamental rights and human rights. It is submitted that due to the untimely death of Manoj Verma there is no one to look after his family and aged parents and therefore, the State is under obligation to provide for their rehabilitation and maintenance having violated his right to life by causing his death in police custody, which as per medical record was homicidal and therefore, they are entitled for a sum of Rs.10 Lacs by way of compensation alongwith costs of the petition.

11. In the initial affidavit in reply filed on behalf of respondent No1 the case of the petitioners is not disputed except for taking a plea that respondent Nos.3 to 6 are responsible for the death of Manoj Verma and therefore, they are liable to pay compensation and that in so far as the State is concerned, it has got the case investigated by State C.I.D. (Crime) which has conducted appropriate investigation and charge-sheeted the erring police officers and therefore, respondent No.1 is not liable to pay compensation.

12. Subsequently another affidavit in reply came to be filed on behalf of respondent Nos.1 and 2, in which it has been highlighted that it appears from the Station Diary entry that on 28-10-2003 at about 20.00 hrs. while Manoj Verma was in police custody of Police Station, Ganeshpeth he made complaints of chest pain and while taking him to the hospital, Manoj Verma died on way. Therefore, Ganeshpeth Police have registered an accidental death vide A.D. No.83/2003 under Section 174 of the Code of Criminal Procedure. Immediately the matter was referred to Sub-Divisional Magistrate who conducted inquiry, prepared spot panchnama, inquest panchnama and referred dead body for post-mortem report. The matter was taken over by the State C.I.D. (Crime) immediately and during investigation offences under Section 302, 109, read with 34 of I.P.C. came to be registered on 13-12-2003 vide Crime No.248/2003 against respondent Nos.3 to 6. A solemn assurance is given to this Court that in addition to the police officers are being prosecuted in the court of law for the offences they have committed, the State would also take necessary departmental action against the erring police officials and therefore, it is submitted that as the police officers already charge-sheeted in the Court of law and the case is yet to be decided, it would not be proper to award compensation at this premature stage.

13. Respondent No.4 has chosen to file a separate affidavit and so also respondent Nos.3 and 8. Respondent Nos.5, 6 and 7 did not feel it necessary to respond to the writ of this Court.

14. In addition to filing their reply on merit, preliminary objection is raised by respondent Nos.3 and 8 that the petitioners have already preferred Writ Petition bearing No.465/2004 through National Human Rights Commission at Mumbai seeking compensation and it is learnt that some order has been passed in the said petition. Therefore, it is submitted that the petitioners suppressed this fact and again preferred a separate petition at Nagpur thereby claiming compensation. Therefore, the respondents 3 & 8 submit that on this count alone the instant petition be dismissed.

15. This preliminary issue raised by respondent Nos.3 and 8 deserves to be dealt with at this stage itself. The petitioners in paragraph No.23 of the petition have specifically pleaded that no petition has been filed previously in this matter before this Court or Supreme Court of India. Mr. Jaiswal, learned counsel appearing for the petitioners submitted that he has sought instructions from the petitioners and made solemn statement that the petitioners have not authorised any person, including any N.G.O., to agitate their cause before the High Court of Bombay at Mumbai and that if any petition is filed on their behalf it is without any consent or authority of the petitioners and that the present petition is the only petition filed by the petitioners, claiming compensation for the custodial death of Manoj Verma. There is nothing placed on record before us to show that the petitioners through National Human Rights Commission has filed any petition before the High Court of Bombay at Mumbai and that they have been granted any compensation.

16. Even if that is true then it is contended by the learned counsel for the petitioners that the petitioners would not avail of any benefit in the form of compensation, if awarded to them, in that petition which has been filed without their consent and if some one has taken up their cause they are not concerned with it as they have not received a single pie out of the compensation for custodial death of Manoj Verma.

17. In view of this, we find that there is no justification, why this Court should not exercise its jurisdiction and proceed to hear the petition and decide it in accordance with law as the petitioners have solemnly averred in this petition that they are not concerned with the petition pending at Mumbai in the High Court of Judicature at Bombay.

18. Respondent Nos.3 and 8 have further contended that the deceased Manoj Verma was belonging to the family of hardcore criminals. His father was convicted for seven years for the offence punishable under Section 307 of I.P.C. All his brothers have faced trial for having committed offence punishable under Sections 307 read with 34 of I.P.C. and younger brother of Manoj, viz. Rajesh was murdered by another gang. In so far as deceased Manoj is concerned, it is the contention of the respondent Nos.3 & 8 that he was history-sheeter and about 26 cases are registered against him since 1985 under various penal Acts including offences under Sections 307, 324 r/w.34, 457, 380, 326, 147, 148, 149, 294, 506-B of the Indian Penal Code and so on. A chart has been annexed to show the criminal cases pending against the deceased Manoj. Even this contention requires to be examined while we are considering the contention of the respondents.

19. In our view such a plea cannot be a defence in reply to charge of custodial death. This plea is probably taken up by respondent Nos.3 and 8 merely to cause prejudice against deceased Manoj Verma and to justify the custodial death. Atleast till now, we have not come across any law which permits the police to cause death of suspect who is in the custody for whatever offence he has committed. There is no dispute over the fact that the deceased Manoj Verma came to be arrested for having committed an offence punishable under Section 294 and 506-B and was in the lock up of Police Station, Ganeshpeth at the relevant time. We fail to understand as to what respondent Nos.3 and 8 want to convey to this Court by placing these facts on record which are not at all relevant for our consideration while dealing with claim of compensation made by the legal heirs of deceased Manoj Verma who died in police custody and according to medical report his death was homicidal.

20. Another plea, by way of defence, taken by respondent Nos.3 and 8 is that when after arrest Manoj Verma was referred for medical examination no external injuries were reported by the Doctor. According to respondent Nos.3 and 8 the blame lies with the Medical Officer as he examined Manoj externally only and no M.R.I. or C.T. Scan was done, therefore, internal injuries in head could not be detected. According to respondent Nos.3 and 8 Manoj was beaten at his home by his brothers just prior to his arrest as he was creating a scene under the influence of liquor. Further they have stated that when Police Party reached there they saw chairs being hurled between Manoj and his brothers and therefore, possibility of sustaining head injury resulting to a blood clot in the brain during the scuffle at his place cannot be ruled out. Unfortunately, for respondent Nos.3 to 8 deceased Manoj was not arrested by the officers of Ganeshpeth Police Station on the aforesaid facts/charges and therefore, this is nothing but an afterthought, nor it is their case that Manoj Verma was referred for medical examination as he was found to be having injury on his person. On the other hand, what appears is that when Manoj Verma was arrested and brought to Ganeshpeth Police Station and produced before respondent No.3, it is the case of respondent No.3 that after asking his name he directed the Day Officer i.e. respondent No.4 to conduct investigation as and when the suspect is arrested, it is obligatory on the part of the police to refer a victim/accused for medical examination, and it is in this context Manoj Verma was referred for medical examination immediately after his arrest and the medical officer did not notice any external injuries or complaint from Manoj Verma which means that when he was first sent for medical examination he had made no grievance before the Medical Officer of having suffered any type of injury which requires medical attention, inspite of that the Medical Officer examined him and gave his report. It is subsequent to that when he was brought back to the Police Station and when he died in the police custody or while being taken to Medical College and Hospital, on examination he was declared dead. He was found to be suffering from injuries noted in the post mortem report and also confirmed by the Medical Board which report is relied upon in the criminal case filed against the Police Officers in the Court of Law by the State itself. Further we may say that respondent Nos.3 and 8 have tried to take a stand that deceased Manoj Verma was completely under the influence of liquor when he was arrested and brought to the Police Station. If that was so, the Medical Officer, who examined him could have definitely mentioned the same in his report which is also absent.

21. Respondent No.3 has also taken an alternative plea that at the relevant time he was not present in the Police Station and according to him he did not enter the Police Station from 8.00 p.m. till 10.30 p.m. as he was on Bandobast duty concerned with a programme of Shri. Satish Chaturvedi, Hon'ble Guardian Minister and after the programme was over, as he was suffering from severe ear pain, he directly proceeded to the clinic of Dr. Naresh Agrawal at Gandhibagh where at about 9.15 p.m. he received a message from Police Station, Ganeshpeth that condition of Manoj has worsened and he was required to take to the hospital. Immediately he sent a jeep, under his custody, to the Police Station. This contention of respondent No.3 stands corroborated by the investigation conducted by the State C.I.D. (Crime) and as reflected in the two submissions on affidavit filed on behalf of respondent Nos.1 and 2.

22. Let us now examine what respondent No.4 has to say in the matter. Admittedly, respondent No.4, at the relevant time, was on duty as Day Officer at Ganeshpeth Police Station. In his submission respondent No.4 has taken preliminary objection that Petitioner No.1 is not at all wife of deceased Manoj Verma and petitioner Nos.4 and 5 are therefore, not parents-in-law of Smt. Pratibha. In paragraph No.2 of his submission the respondent No.4 has failed to give any particulars of wife of Manoj Verma. This submission was promptly replied by the petitioners by filing their rejoinder, wherein the petitioner No.1 has claimed that she married Manoj Chhotelal Verma on 15-08-1999 in Arya Samaj, Dayanand Bhavan, Sadar, Nagpur and in support of her contention the petitioner No.1 has not only filed birth certificate of her two children but also the certificate of marriage, to which no reply is filed on behalf of respondent No.4. Respondent No.4 in his submission has also tried to deny his liability by taking various pleas and has tried to shift the blame on respondent No.3. It is his case that he was only a Day Officer at the Police Station, and under the orders, command and directions of respondent No.3, had registered an offence under Sections 506-B and 294 and registered the same as Crime No.3229/2003. It is his case that after registering the offence which was non-bailable and as there was nobody to come forward to take bail of deceased Manoj Verma, under the direction of respondent No.3, he put the deceased Verma into police lock up. Therefore, it is not disputed that at the relevant time Manoj Verma was in the custody of Ganeshpeth Police Station. Respondent No.4 has also taken a stand that as a Day Officer he was required to attend various functions and in so far as he is concerned, no investigation was allotted to him and therefore, there is no question of interrogating Manoj Verma or interacting with him. He has only complied with the orders of respondent No.3 and according to respondent No.4 Manoj Verma will have to be considered in the custody of respondent No.3, as P.S.O. of Ganeshpeth Police Station, and not in the custody of respondent No.4 at the relevant time.

23. While in our opinion this does not help respondent No.4 in his duty as Police Officer when he admits that on the fateful day he was Day Officer on duty at Ganeshpeth Police Station. Respondent No.4 has taken a stand that at about 8.00 p.m. as deceased Verma complained of chest pain after he was brought back from the medical examination. He has sent deceased Manoj Verma for medical examination immediately alongwith respondent No.6 and one Premdas, Police Constable and his brother and therefore, there was no question of interrogating or beating. We may mention here that medical report, post-mortem report, report of queries made to the medical officer who conducted post-mortem and so also that of the Medical Board, rule out any cardiac problem in case of deceased Manoj Verma, rather Hystopathalogy test makes it crystal clear that Manoj Verma was not suffering from any heart problem or chest pain and this is merely an attempt on the part of respondent No.4 to distant himself from the custodial death of Manoj Verma.

24. Therefore, in our opinion, on the basis of the undisputed facts which are evident from the submissions filed on behalf of respondent No.1, we are satisfied that the petitioners are entitled for compensation for the custodial death of Manoj Verma.

25. A common ground taken by respondents is that as the Police Officers are being prosecuted for the custodial death of Manoj Verma a final verdict in the matter is awaited and therefore, the Court should not saddle them by holding them liable to pay compensation for his custodial death. The law is well settled. This Court had an occasion to deal with an identical petition in which the widow and legal heirs of one Sudhakar Yerpude had approached this Court claiming compensation who was a victim of not only custodial torture but also died in police custody. In the said case also similar contentions were raised on behalf of respondent which this Court has not accepted on the basis of settled law and for the said purpose we may refer to the decision of this Court in the case of Sheela Wd/o. Sudhakar Yerpude Vs. The Home Department, through Secretary, Mantralaya, Mumbai and others (Criminal Writ Petition No.328 of 2002, decided on 27-01-2005). In the said case this Court has granted compensation to the legal heirs of deceased Sudhakar Yerpude in the sum of Rs.10 Lacs with costs which were quantified at Rs.10,000/-. The State has challenged the said decision of this Court by preferring S.L.P. in the Supreme Court of India (SLP (Crl.) No.1569/2005). Not only the Supreme Court dismissed the S.L.P. but took suo motu cognizance considering the seriousness of the matter and called upon the Chief Secretary to file an affidavit before the Supreme Court as to what steps the State of Maharashtra has taken to prevent recurrence of such incidents in future. For the purpose of reference we reproduce the order passed by the Hon'ble Supreme Court as under :

"The State of Maharashtra, its Home Department through its Secretary and the Commissioner of Police, Nagpur have filed this petition seeking special leave to appeal against the judgment of the High Court awarding compensation to the legal heirs of a person who has died custodial death. The special leave petition be treated as dismissed.

Though the special leave petition is dismissed yet, we would like to know from the three petitioners herein what measures have been taken to prevent recurrence of such incidents of custodial torture by police in future so that, if necessary, suitable guidelines may be issued by this Court in the matter.

The response be filed in four weeks.

Having perused the responses, the Court may consider the need for registering the matter as a petition under Article 32 of the Constitution."

26. Sudhakar Yerpude died in the night between 27-02-2002 and 28-02-2002 while in the custody of Gittikhadan Police Station, Nagpur and Manoj Verma met the same fate in the night of 28-10-2003 i.e. within one year and eight months Nagpur Police have done it again, inspite of Supreme Court taking a serious note in the matter.

27. In Sheela Wd/o. Sudhakar Yerpude's case we have quoted and referred to the decision rendered by the Supreme Court in the case of D. K. Basu Vs. State of West Bengal, reported in (1997)1 SCC 416 and particularly highlighted eleven requirements issued by the Supreme Court, required to be followed in all cases of arrest or detention which were directed to be circulated to all Police Stations and disseminated through mass media. These are as under :

"(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board."

In the present case also in the submissions filed on behalf of respondents there is no whisper that all these requirements were complied with by the officers of Ganeshpeth Police Station who were on duty and responsible for arrest/ detention of Manoj Verma.

28. In another decision rendered by the Supreme Court in the case of State of M.P. Vs. Shyamsunder Trivedi and others, reported in (1995)4 SCC 262, in paragraph No.17 the Hon'ble Supreme Court has observed as under:

".... The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilised society, governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in 'Khaki' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading towards perishing. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may lose faith in the judiciary itself, which will be sad day."

In so far as the contention of respondents that Court should not proceed with the matter and award compensation to the petitioners till the matter is finally adjudicated by the Criminal Court, we may again like to cite what the Hon'ble Supreme Court has observed in the case of D. K. Basu (supra). After considering the pros & cons and placing reliance on catena of decisions of the various courts including that of the American Supreme Court, the Supreme Court observed as under :

"Thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State if vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which it lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit."

29. In Nilabati Behera (Smt.) Alias Lalita Behera (Through the Supreme Court Legal Aid Committee) Vs. State of Orissa and others, (1993)2 SCC 748, the Supreme Court observed as under :

"Enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention. Award of compensation in a proceeding under Article 32 by the Supreme Court or by the High Court under Article 226 is a 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 as a defence in private law in an action based on tort. 'A claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226, for contravention of fundamental rights. Certain further observation in Rudul Sah which may tend to minimise the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of the Supreme Court in Rudul Sah and others in that line have to be understood and Kasturilal distinguished therefrom.

The court is not helpless and the wide powers given to the Supreme Court by Article 32, which itself is a fundamental right, imposes a constitutional obligation on the Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available. The power available to the Supreme Court under Article 142 is also an enabling provision in this behalf. The contrary view would not merely render the court powerless and the constitutional guarantee a mirage, but may, in certain situations, be an incentive to extinguish life, if for the extreme contravention the court is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence, and recovery of damages under private law, by ordinary process. If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have-nots, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumstantion of private law remedies, where more appropriate.

Article 9(5) of the International Covenant on Civil and Political Rights, 1966 (which reads : "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation also indicates that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right."

30. Thereafter while dealing with the cases of torture and custodial death, the Supreme Court in very strong words has deprecated the tendency on the part of police relating to the matters of custodial death and expressed its concern by observing as under : (See D. K. Basu Vs. State of W.B. (1997)1 SCC 416).

"Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be deprived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law-enforcing officers is a matter of deep concern in a free society. These petitions raise important issues concerning police power including whether monetary compensation should be awarded for established infringement of the fundamental rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental.

"Torture" of a human being by another human being is essentially an instrument to impose the will of the "strong" over the "weak" by suffering. The word torture today has become synonymous with the darker side of human civilisation. In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma a person experiences is beyond the purview of law. "Custodial torture" is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward - flag of humanity must on each such occasion fly half-mast.

Custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. The expression "life or personal liberty" in Article 21 includes the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. The precious right guaranteed by Article 21 cannot be denied to convicts, under trials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. It cannot be said that a citizen 'sheds off' his fundamental right to life the moment a policeman arrests him. Nor can it be said that the right to life of a citizen can be put in 'abeyance' on his arrest. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchy. No civilised nation can permit that to happen. The Supreme Court as the custodian and protector of the fundamental and the basic human rights of the citizens cannot wish away the problem. The right to interrogate the detenus, culprits or arrestees in the interest of the nation, must take precedence over an individual's right to personal liberty. The Latin maxim salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the State is the supreme law) co-exist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be "right, just and fair". Using any form of torture for extracting any kind of information would neither be "right nor just nor fair" and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated - indeed subjected to sustained and scientific interrogation - determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third-degree methods or eliminated with a view to elicit information, extract confession or derive knowledge about his accomplices, weapons etc. His constitutional right cannot be abridged in the manner permitted by law, though in the very nature of things there would be qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal. Challenge of terrorism must be met with innovative ideas and approach. State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to "terrorism", that would be bad for the State, the community and above all for the rule of law. The State must, therefore, ensure that various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves. That the terrorist has violated human rights of innocent citizens may render him liable to punishment but it cannot justify the violation of his human rights except in the manner permitted by law. Need, therefore, is to develop scientific methods of investigation and train the investigators properly to interrogate to meet the challenge.

Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but the law does not permit use of third-degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true sense purposeful to make the investigation effective. By torturing a person and using third-degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No society can permit it."

31. Facts of the present case rather reveal that deceased Manoj Verma was merely arrested for an offence punishable under Sections 294 & 506(B) of I.P.C. The investigation of which even did not call for any custodial interrogation and in all probabilities police officers took liberty of torturing Manoj Verma to the extent of causing his death in custody may be because of the fact that he is a history sheeter as spelt from the reply filed on behalf of respondent Nos.3 and 8. One can very well visualise the brutality committed on the victim by the police officers while he was in their custody. We have no hesitation to observe that such conduct of police officers deserves to be dealt with stern hands by the State. As it is not only a cowardly act to torture a person in custody to the extent of causing his death but also a stigma on the police force which is under obligation to protect the life and liberty of a person as guaranteed under Article 21 of the Constitution.

32. The only question now remains for our consideration is quantum of compensation to be awarded to the legal heirs of the victim.

33. According to the petitioner they were dependent on the earning of deceased Manoj Verma. Petitioner No.1 is widow of deceased Manoj Verma who is earning nothing and she has shown her occupation as household, whereas their children Ku. Riya is aged about 4 years and Ku. Sneha is aged one year. So far as parents of the deceased Manoj Verma are concerned, father Chhotelal is 72 years old and mother Mitthanbai is 68 years old. They were all dependents on the earnings of Manoj Verma. In our opinion it is petitioner Nos.1, 2, 3 and 5 who may be awarded compensation as legal heirs and dependents of deceased Manoj Verma for the reason that it has come on record that Manoj Verma has brothers and they can take care of their father i.e. petitioner NO.4 Chhotelal Verma.

34. The respondents have not disputed the fact that the petitioner was earning his livelihood by plying cycle rickshaw. Though he has been also shown to have criminal background and prosecuted for various offences, in view of the fact that there is no challenge to the income of deceased Manoj Verma for the purpose of determining compensation, we will rely on the schedule provided under Section 163 of the Motor Vehicles Act, which is provided for award of compensation, for third party fatal accidents/injury claims. Manoj Verma was born on 06-02-1972, as mentioned in the marriage certificate, annexed to the rejoinder filed by the petitioner No.1 in reply to the submissions made by respondent No.4. If that is so, on the day, he was arrested and died in police custody i.e. on 28-10-2003, he had completed 31 years of age, therefore, his average income per annum as considered is Rs.60,000/-, reducing the sum by 1/3rd in consideration of the expenses, the victim would have incurred towards himself had he been alive, his annual income comes to Rs.40,000/- and applying the multiplier, which in his case will be 17, he will be entitled to compensation of Rs.6,80,000/-, to which we can add a sum of Rs.20,000/- towards general damages which includes funeral expenses, loss of consortium, in so far as petitioner No.1 is concerned, loss of love and affection of father by children, loss of estate, on account of pain, agony and suffering which deceased Manoj Verma might have suffered due to torture in the custody which resulted in his death.

35. Mr. Jaiswal, learned counsel appearing for the petitioners submitted that though the State registered offences under Sections 302, 109 read with 34 of I.P.C. against the erring police officials, who on investigation of the case were found responsible for causing torture and death of the deceased in their custody, on conclusion of the investigation they have filed charge-sheet only for offences under Section 304-(II), 109 and 323 of I.P.C. against the respondent Nos.3 to 6. According to Mr. Jaiswal this Court may take cognizance of the fact that the offence which came to be registered against the respondent Nos.3 to 6 that of murder, abetment and causing hurt to the victim Manoj Verma, the same has been diluted in the course of the investigation and he apprehends that the petitioners would not get justice and the respondents may be acquitted during the trial due to lapses in the investigation and dishonesty shown by the police officers. Whereas, the fact of the case, as admitted by the respondents, clearly makes out an offence under Section 302 of the I.P.C. In our view, it is premature to pre-empt all these apprehensions, ultimately it is for the trial Court to frame charges which are found appropriate considering the material placed before it by way of charge-sheet which can also be altered with the progress of the trial of the case and therefore, such an apprehension is unfounded. The manner in which the trial Court should deal with such cases have been spelt out in the case of State of M.P. Vs. Shyamsunder Trivedi and others, reported in (1995)4 SCC 262 which has been restated by the Supreme Court in the recent decision which was referred in Sheela Sudhakar Yerpude's case i.e. the decision rendered in the case of Shakila Abdul Gafar Khan (Smt.) Vs. Vasant Raghunath Dhoble and another, (2003)7 SCC 749. We, therefore, do not think that the trial Court would be oblivious of its duty in dealing with the trial in accordance with law, keeping in mind the principles laid down by the Apex Court while dealing with the cases of custodial torture and death.

36. Considering the facts and circumstances of the case, we are of the view that the amount of compensation, which we are awarding to the petitioners, would not be able to compensate for the loss of husband, father and son in the custodial death of Manoj Verma, atleast it would enable the petitioners who were dependent on him to survive, particularly the petitioner Nos.2 and 3. Petitioner No.1 is merely 23 years of age and petitioner Nos.2 and 3 who were children of 4 and 1 year of age, respectively, and an ailing mother who requires medical treatment. Therefore, we propose to secure their interest by ordering the amount of compensation to be disbursed to them in terms of our order.

37. We also find that the petitioners are entitled for expenses and costs of the litigation so that they are not required to meet the same from the compensation awarded to them, and therefore, we grant a sum of Rs.Ten Thousand towards expenses and costs of litigation which includes fees of lawyer.

38. We, therefore, direct the respondent No.1 to pay a sum of Rs.7,00,000/- (Rs.Seven Lacs only) by way of compensation to the petitioners and Rs.10,000/- (Rupees Ten Thousand only) towards costs. The State is directed to deposit the same in this Court on or before 30th November, 2005.

It will be open for the State to recover the amount of compensation awarded by this Court alongwith costs from the officials who are found responsible for the custodial death of Manoj Verma.

The said compensation awarded by this Court shall be disbursed amongst petitioner Nos.1, 2 and 3, who are, the widow and children of the deceased Manoj Verma and No.5 Mitthanbai Chhotelal Verma, who is the mother of the deceased Manoj Verma.

The petitioner Nos.1 to 3 would be entitled to a sum of Rs.2,00,000/- each whereas petitioner No.5 is awarded sum of Rs.1,00,000/-.

The compensation so awarded is directed to be deposited by the Registrar of this Court in the account of petitioner Nos.1 to 3 with the Post Office under the scheme of Postal Monthly Income Scheme. The separate accounts would be opened in the name of petitioner No.1 for herself and as natural guardian mother for petition Nos.2 and 3. In so far as petitioner No.1 is concerned, she will be entitled to draw a sum of Rs.50,000/- to meet the expenses and a sum of Rs.1,50,000/- will be deposited in her account for a period of 7 years and so also in case of petitioner Nos.2 and 3 an amount of Rs.2,00,000/- each would be initially deposited for a period of 7 years which is the minimum period of the postal monthly income scheme to be renewed from time to time till they attain the age of majority. The petitioner No.1 would be entitled to withdraw the interest from all the three accounts as per the scheme for the purpose of meeting the day to day expenses i.e. food, shelter, clothing and expenses on medical treatment of the three petitioners and educational expenses of petitioner Nos.2 and 3 as and when they are admitted in schools.

In so far as petitioner No.5 Mitthanbai is concerned, sum of Rs.50,000/- be deposited in any Nationalised Bank for a period of 13 months and she will be entitled to withdraw a sum of Rs.50,000/- to meet expenses for her livelihood and medical treatment considering that she is above the age of 65 years.

The petitioners are granted liberty to move this Court in the matter of further order on disbursement of amount if any contingency arises necessitating the same.

We have granted costs of this petition to the petitioners which we have quantified at Rs.10,000/-. Mr. S. A. Jaiswal, learned Counsel for the petitioners, gives solemn assurance to this Court that he would not claim any costs plus fees from the petitioners above the sum granted by this Court. We highly appreciate this gesture on the part of the learned Counsel for the petitioners.

Rule is made absolute in the aforesaid terms.

Order accordingly.