Mohinder Singh vs Union of India and Others

T.P.S. Mann, J.—By way of the present petition, the petitioner has sought payment of adequate compensation for extreme physical third

degree torture of Dalip Singh s/o Kartar Singh, leading to fracture of his both hip joints and despite treatment, becoming a handicapped person.

The petitioner has stated in the petition that Dalip Singh is his nephew being his sister''s son. He is aged 40 years, married and having three minor

children. It is alleged that said Dalip Singh went to his in-laws'' village situated at a distance of 10/12 kilometers from his own village. He was taken

in custody from there by respondent No. 3, during the night intervening 7th and 8th of April, 2004. He was physically tortured and his legs were

pulled apart, leading to fracture to his hip joints. The nearest Court was merely at a distance of 10 kilometers from the place of his arrest. He was

not disclosed any ground of his arrest. He was interrogated regarding one Constable Kali Dass, about whom he had no knowledge. On account of

extreme physical torture committed upon him, he was unable to walk and climb the stairs.

It was further alleged that Dalip Singh was produced before the lllaqa Magistrate on 8.4.2004 at 7.40 p.m. at his residence and thereafter

remanded to judicial custody on 8.4.2004 at 11.00 p.m. He was not given proper medical treatment. An application was finally moved by Dalip

Singh to the Court that he had serious injuries on his person and thus, he be got examined from a Board of Doctors. This application was allowed

by Sub Divisional Judicial Magistrate. Ajnala on 17.4.2004 by directing Superintendent, Central Jail, Amritsar to produce Dalip Singh before Civil

Surgeon, Amritsar. Despite directions so issued, Dalip Singh was not got medically examined. Another application was then moved, upon which

similar order was passed on 23.4.2004. Ultimately, a Medical Board was constituted which after examining him, gave its report dated 17.5.2004,

as per which Dalip Singh was having fracture of the left femur. He was admitted in Civil Hospital, Amritsar on 15.5.2004 and discharged on

25.5.2004. Operation was later on conducted on 4.6.2004 under spinal anaesthesia. Cemented Bipolar Moldular Hip Orthoplasty was done with

posterior modified Gibbson''s app. with 47 mm Head and stranded stem. As per the discharge certificate (Annexure P-6) Dalip Singh was advised

as follows :-

Flexion and adduction - not allowed of hip.

Squatting - not allowed.

Toilet only on English type seats.

Stairs climbing - not allowed.

Walk with walker.

On account of the above, a prayer was made that directions be issued to Union of India to grant compensation to the tune of Rs.10 lacs to

Dalip Singh for extreme physical torture, committed upon him leading to permanent disability, mental trauma and loss of earning.

Reply has been filed by the respondents wherein it has been denied that Dalip Singh was taken in custody from his in-laws'' house or that he was

physically tortured by pulling his legs apart. It was stated mat heroin weighing three kilograms was recovered from Dalip Singh on 7.4.2004 at

Lopoke-Attari Road, Ajnala and complaint under NDPS Act in that respect was pending in the Court of Additional Sessions Judge, Amritsar. His

prayer for bail was declined and thereafter he moved High Court for the same relief which was rejected on 10.5.2005. It was further pleaded that

Dalip Singh was a habitual offender and operating with his gang in border districts of Punjab. He was a carrier of narcotics. His gang consisted of

Tasveer Singh and Sube Singh. Regarding the presence of injuries on Datip Singh, the respondents took the stand that as per the opinion of

Dr.Surinder Singh given on 8.4.2004 (Annexure R- 1/E), the two injuries i.e. an abrasion and complaint of slight pain were on account of fell on

ground/floor.

Whether Dalip Singh had been arrested for being found in possession of three kilograms of heroin or that he had been illegally picked up from

his in-laws'' place, is not the subject-matter of the present petition. The question involved in the present petition is the alleged third degree treatment

of Dalip Singh at the hands of respondent No.3. The medical evidence prima facie shows that there was a fracture of the femur in its neck area.

The effect of such an injury required orthoplasty. At the time of his discharge from the hospital, Dalip Singh was directed not to squat or climb the

stairs. He was asked to walk with walker and use only English type seat for answering the call of nature. Even the flexion and adduction of hip was

not allowed.

Mere fact that Dalip Singh was a habitual offender and operating with his gang in border districts of Punjab, as alleged by the respondents, is no

ground that he should have been dealt with in the manner as alleged in the present petition. No criminal deserves the third degree torture as has

been met out to Dalip Singh.

Prima facie it is clear that Dalip Singh has become a handicapped person on account of third degree torture received by him at the hands of

respondent No.3.

In D.K.Basu v. State of West Bengal, 1997(1)ACJ 158 (S.C.): AIR 1997 SC 6.10, the Supreme Court held that torture did not go with the

Constitution and in case anyone was shown to be responsible for indulging in torture, he was bound to compensate the victim and face punishment.

It was held as under :-

Thus, to sum up, it is now a well accepted proposition in most of the jurisdiction, 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 is 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 wrong-doer. 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

is 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 right 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.

In State of Madhya Pradesh v. Shyamsunder Trivedi and others, AIR 1995 SCW 2793, the Hon''ble Supreme Court deprecated torture in

police custody by observing that police excesses and the maltreatment of detainees/under-trials or suspects tarnished the image of any civilised

nation and encouraged the men in-khaki to consider themselves to be above the law and sometimes even to become law unto themselves. It was

observed as under :-

Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the courts because

it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would

hardly be any evidence available to the prosecution to directly implicate them with the torture. 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/under-trial 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 a sad day.

The scope of the present petition u/s 482 Cr.P.C. may not permit this Court to decide as to who was responsible for the alleged

torture/atrocities committed upon Dalip Singh. For that purpose the Court would require both the parties to lead their respective evidence. That

can be done only in appropriate proceedings, like filing of a civil suit by Dalip Singh for claiming damages. Prima facie it is respondent No.3, who

appears to have committed torture/atrocities upon Dalip Singh as a result of which the latter has become a handicapped person. This Court can

only apply balm to the injuries of Dalip Singh. In that direction this Court may like to award an amount of Rs.50,000/- to be paid to Dalip Singh as

interim compensation. The said amount ought to be paid by Union of India as respondent No.3 allegedly acted under the colour of his office being

an Intelligence Officer with narcotics Control Bureau.

In view of the above, the present petition is disposed of with a direction to respondent No: 1 to make payment of Rs.50,000/- as a interim

compensation to Dalip Singh s/o Kartar Singh resident of Kamaske, Tehsil Ajnala, District Amritsar within a period of three months from the date,

a copy of this order is received. Said Dalip Singh, however, is at liberty to take any other appropriate proceedings, including filing of a civil suit, for

claiming damages, if so advised. Such proceedings, if so undertaken by Dalip Singh, be concluded expeditiously. In case, Dalip Singh is found

entitled to receive more compensation by way of damages, the amount of Rs.50,000.- now being granted as interim compensation, shall be

adjusted against it.''

It is, however, made clear that any observations made by this Court while disposing of the present petition, be not considered as an expression

on the merits or demerits of the case of either party. The Court in which aforementioned Dalip Singh may take up the appropriate proceedings,

shall be at liberty to decide the same on the basis of the evidence to be led by the parties.