Smt. Amrutabai and Others vs State of Maharashtra and Others

A.H. Joshi, J.—The Petitioner No. 1 is the widow, and Petitioner nos. 2 to 6 are children of deceased Shyama alias Kalya,who died while in police custody.

The Petitioners have filed this petition claiming compensation towards liability of State on account of saidcustodial death. The amount of compensation claimed is at the rate of Rs. 1,00,000/-for each Petitioner, i.e., total of Rs. 6,00,000-00.

During pendency of the petition, Petitioner No. 1 -Smt. Amruta has expired. Name of Petitioner No. 1 -Amrutabai is deleted from the array.

Petitioner Nos. 2 to 6, heirs of deceased, wereminors when the petition was filed. By this date,Petitioner No. 6 must be still minor. These Petitioners areheirs of Petitioner No. 1.

The averments contained in the petition andsubmissions are summarized as follows:

[a] Respondent No. 1 is the State of Maharashtra, while Respondent Nos. 2 to8 are Accused Nos. 1 to 7 in Sessions Trial No. 21 of 1996.

[b] Respondent Nos. 2 to 8 and two other accused persons were tried for commission of various off ences punishable under Sections 302, 330, 331, 342, 343, 354, 385, 387, 201, 193, 202, 203, 218 read with Section 34 of Indian Penal Code, in Sessions Trial No. 21 of 1996 which has ended inconviction of seven accused persons i.e. Respondent Nos. 2 to 8.

[c] The accused persons were not heldguilty for offence punishable u/s 302 of Indian Penal Code.

[d] Accused Nos. 1,2 and 4 were convicted for offence punishable u/s 304 read with Section 34 of Indian Penal Code, Accused Nos. 1 to 5 for offences punishable u/s 331 read with Section 34, Sections 330, 348, 387 read with Section 34 of Indian Penal Code, Accused Nos. 3, 5 to 7 for offence punishable u/s 202 read with Section 34 of Indian Penal Code, and Accused Nos. 1 to 7 for offence punishable u/s 201 read with Section 34 of Indian Penal Code, and were sentenced.

Based on the said fact of conviction and on the foundation that the act of Respondent Nos. 2 to 8 attracted vicarious liability on the State, the compensation amount has been claimed.

The petition is opposed by the State limited to the extent of amount of liability. In the Affidavit-in-Reply filed by the Respondent No. 1, the stand taken by the State is distinctly clear. Instead of describing the stand, relevant averments are quoted below:

It is submitted from the above facts it is crystal clear that the Respondent No. 2to 8 have been convicted for the aforementioned offences in the custodial death of the deceased Shama @ Kalya, husband of the Petitioner No. 1 and father of the Petitioner no. 2 to 6. Thus the Respondent Nos. 2 to 8are solely responsible for the custodial death which was caused during the interrrogation/investigation of the crime. The Hon''bleAdditional Sessions Judge, Gondia also came to the conclusion that the Respondent No. 2 to 8have committed an offences beyond reasonabledoubt and therefore, accordingly they were sentenced to undergo the imprisonment referred above in para supra.

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The Petitioners No. 1 to 6 by the instant petition has prayed that the Petitioner No. 1 has to educate her 5 children and feed them which is very difficult since she is only getting Rs. 45 per day and there is nobody to earn livelihood for her family. The Petitioners No. 1 to 6 required money for education, food and clothes. It is in this context most respectfully submitted, that the deceased Shama @ Kalya, husband of the Petitioner No. 1 and father of the Petitioner nos. 2 to 6 was done to death by the Respondent Nos. 2 to 8. His death was acustodial death when he was under custody of the Respondents No. 2 to 8 and his death was nothing but a result of in human torture which was caused by the Respondent Nos. 2 to 8during custodial interrogation....

It is submitted that the learned Sessions Court, while passing order and judgment in Sessions Trial No. 21 of 1996 considering the fact of custodial death of deceased has already granted compensation tothe tune of Rs. 40,000/-to be paid from the fine imposed against Respondents No. 2 to 8 asthus, in this humble opinion of this answering Respondent, the learned Trial Court has already dealt with the issue of compensation to the Petitioners No. 1 to 6. Thus this petition has already been compensated. However, it is submitted that this Hon''ble Court comes to the conclusion that if any further compensation is required to be granted to the Petitioners same can be granted against this Respondent Nos. 2 to 8, the State Govt.has also taken a decision on 19th Sept., 2002to compensate the Petitioners 1 to 6 by paying them an amount of Rs. 1,60,000/-(one lakhsixty thousand only).

[Quoted from page Nos. 144 to 147 of the Writ Petition paper-book].

The stand of the State Govt. is, thus, clear, i.e., the State is not ready to pay any further amount, and states that further amount, if any, payable, be ordered against the Respondent Nos. 2 to 8.

The Respondent Nos. 2 to 8 have not filed any affidavit, and have remained content on oral arguments.

Heard learned Advocates for the respective parties, who are present.

The points involved in this petition, therefore, are:

[1] Whether the Petitioners are entitled for the amount of compensation claimed by them from all the Respondents jointly and severally?

[2] If the answer to Point No. 1 is in the affirmative:

[a] What shall be the amount?

[b] By whom the amount is payable?

Perusal of petition discloses that it is totally silent on the grounds on which the amount of compensation is to be calculated.

Learned Adv. Mr. Nikhil Joshi, Amicus Curiae,submitted that the claim for the compensation is based onthree grounds, namely:

[a] That, the State should learn a lesson and its officers as well for their conduct, i.e., wrongs, and such asituation should never recur.

[b] By applying any yardstick of even minimum wage, and considering the fact that Shyama was maintaining a large family of six persons, his daily income was around Rs. 100/- per day, and having regard to dependence of the family, each member was having dependence to the tune of Rs. 15/-perday.

[c] Therefore, by applying the yard stick of daily dependence of amount of Rs. 15/-per day, the compensation which the Petitioners are entitled to receive would be with a multiplier of 18 considering the age of deceased and of the Petitioners.

[d] The Petitioners are also entitled for compensation under various other heads,such as loss of love and affection,loss of company and towards general damages and interest.

[e] The compensation already paid, i.e.,Rs.40,000/-each [Rs.1,60,000-00 x40,000-00 / 5 = Rs. 40,000-00 each] canbe deducted from the amount the Petitioners are entitled and,therefore, now they should be awarded compensation to the tune of Rs. 60,000-00 each, i.e., total Rs. 3,00,000-00for Petitioner Nos. 2 to 6 and interest.

We shall now discuss as regards the Point No. 1 as to the entitlement of the Petitioners to recover the amount of compensation.

Every citizen, including a detenue, possesses aguarantee of right of life under Article 21 of the Constitution of India. This right comprehends right of assurance of integrity of the health, body, from any acts of the State.

In so far as the aspect of wrong on the part of Respondent Nos. 2 to 8 is concerned, the State has in unequivocal terms accepted that those acts of accused-Respondent Nos. 2 to 8 were excessive and atrocious. Thus, a clear case where violation of human rights has occurredis proved, as well is admitted by the State.

The Respondent Nos. 2 to 8 have disputed it orally.

We must record that learned Adv. Mr. Mardikar and Mr. R.N. Badhe had submitted that the accused - Respondents are persons of limited means. They have already suffered to a large extent due to suspension, conviction etc., and now they have no means to pay. He has further urged that the claim involves disputed questions of facts and petition should not be entertained.

It is an admitted fact that Shyama died while in police custody. The fact of custodial death is admitted by the State. The Respondent Nos. 2 to 8 are orally disputing the liability, by denying everything. In absence of traverse by the Respondent Nos. 2 to 8, acts attributed against them and the liability have to be treated as admitted. Therefore, the issue as to wrong done to the Petitioners does not require any further discussion for its adjudication.

We hold that the Petitioners have proved that Shyama @ Kalya, the father of Petitioners, died while inpolice custody due to violence and resultant violation off undamental rights of Shyama under Article 21 of Constitution and violation of his human rights.

Vicarious liability of State to compensate towards the wrongs done by its employees is an essential fall out of its sovereign functions, apart from common law doctrine of vicarious liability.

The State does not have any immunity, what so ever,to claim either in law or otherwise deny the vicariousliability, and a submission that if any additional compensation if liable to be paid, is liable to be ordered against Respondent Nos. 2 to 8 jointly and severally.

The liability of State is direct because rights of citizens are fundamental rights, and in particular Article 21 of Constitution of India is a constitutional guarantee. Respondent No. 1 is the Welfare State and it does not lie in the mouth of State to take a cantankerously contentious plea like a private individual to suit own, personal and capricious plea.

Therefore, when the State defends its liability by''severance,'' said denial of liability is based on she erargumentative character. The said objection lacks any legal foundation thereto. Hence State''s refusal and/ordenial, is for denial alone and without a right of privilege to so deny the liability.

We, therefore, hold that the State has not shown any legal grounds, on the basis of which it is entitled to avoid being vicariously liable.

The argument by State that the liability of Stateis in "severance" to the Respondent Nos. 2 to 8 and inexclusion to the State, is a defence without any foundation and is rejected as not tenable.

We hold that due to judicial dictum in Sessions Case No. 21 of 1996, which judgment we have confirmed tothe extent of custodial death, admission by Respondentno.1, and non-traverse by the Respondent Nos. 2 to 8, that the Respondents are jointly, as well severally responsible to pay to the Petitioners the amount of compensation.

Next question to be answered is what shall be the quantum of compensation?

Considering the dependence, the minimum figure even by applying the average income of the deceased person who supports his family of six members, is bound to be around Rs. 100/-per day. Dependence of six family members would be around Rs. 15/- per day per person.

Taking into account the age of the deceased, and of the dependents, the multiplier shall be 18.

By applying the multiplier of Rs. 15/-per day x25 days x 12 months x 18 years, total dependence would come to Rs. 81,000/- per Petitioner.

Petitioners are also entitled to recover compensation to wards loss of services, deprivation of company and love/affection of the deceased.

Each Petitioner would be entitled to additional sum of Rs. 25,000-00 as token amount towards other heads referred to in para Nos. 24 and 29 foregoing. Therefore,total compensation, which each Petitioner would beentitled, shall be Rs. 81,000-00 + Rs. 25,000-00 = Rs. 1,06,000-00.

We had noticed that we are hearing the petition after nine years from its filing. We did not have on record the status of Petitioners who had attained the majority, other details, where abouts etc. We had,therefore, passed order and directed the police to collect in formation about the Petitioners on following points:

[a] The date of death of Petitioner No. 1 -

Amrutabai.

[b] Occupation of the Petitioner Nos. 2 to6 and their earning.

[c] Present residential addresses of Petitioner Nos. 2 to 6 and whether theyre side in own house.

[d] Whether Petitioner Nos. 2 to 6 are married or not.

After taking instructions, on 11th July, 2010, learned APP filed a Purs is answering the status of each of the Petitioners, as follows:

1 Petitioner No. 1 - Amrutabai - dead.

2 Petitioner No. 2 - Sunita Nishant Rautresides at her own house at Kudwa,Gondia, is married and has two children. Her husband does labour work.

3 Petitioner No. 3 - Anita Ramesh Mesh ram resides at Karamsara Malajkh and in Balaghat District, does not have herown house, and has two children. Her husband is a labour and also a fisherman.

4 Petitioner No. 4 - Ravi Shyama Ukeyresides at Survai, Distt. Balaghat, is recently married and does not own house.

5 Petitioner No. 5 - Sarita Shyama Ukeybeing untraceable, her whereabouts are not known.

6 Petitioner No. 6 - Sharda Fulchand Tumsare resides at her own house at Aamatola, District - Balaghat. She is recently married to a person doing labour work.

Considering the fact of death of Petitioner No. 1,no compensation is taken into account for payment to her. Therefore, the State would be liable jointly and severally with Respondent Nos. 2 to 8 to pay to each Petitioner an amount of Rs. 1,06,000/-with interest thereon at the rate of six per cent per annum from the date petition.

We must record in relation to submissions of Respondent Nos. 2 to 8 on the points referred to in parano.17 that present is a case of violation of fundamental right of life as well as human rights together. The amount of compensation claimed is too humble and meagre towarrant any deeper enquiry. Claim of Rs. 1,00,000/-perhead is a random and token claim and hence we do not consider it to be a matter requiring deeper enquiry by refusing to entertain the petition on the ground of disputed questions of facts.

The objection as to jurisdiction etc., referred to in para No. 7 ought to have been raised as a preliminary objection and should have been taken to logical end. Raising such an objection at the belated stage, i.e., final hearing, after nine years of its filing is unjust and is deprecable.

Amount of Rs. 1,60,000-00 deposited in this Court is already paid to Smt. Tarsanbai who was grand-mother and guardian of the Petitioner Nos. 2 to 6.

We are of the considered view that set off of the amount of fine, which is paid as compensation from compensation accruing from vicarious liability ought not bea part to be granted. The State, however, would be entitled to set off of the amount of Rs. 1.60 lakh paid by it. The balance amount, after deducting Rs. 1.60 lakhs, be paid to Petitioner Nos. 2 to 6 equally i. e. from Rs. 1,06,000/�amount liable to be deducted would be Rs. 32,000-00 each[Rs. 1,60,000-00 / 5 = Rs. 32,000-00].

Thus, the each Petitioner would be entitled to asum of Rs. 1,06,000-00 [-] Rs. 32,000-00 = 74,000-00.

We direct that the amount payable by Respondents be deposited by the State within ninety days from the date of this judgment in the District Court, Gondia, along with interest thereon @ 6% per annum. The amount bedisbursed to the Petitioner Nos. 2 to 5. The amount payable to the Petitioner No. 6 be kept in a Fixed Deposit of Postal Savings Schemes for three years. After maturity, the Petitioner No. 6 would be entitled to with draw the amount. The said amount shall be kept in a Fixed Deposit by automatic renewal if withdrawal thereof is not done after three years as indicated.

Before we part with, we need to have a glance on calendar of facts of the case. It is as follows:

[a] The death, subject-matter,occurred in: Dec. 1995.

[b] Sessions Trial leading to conviction came to an end on: 7th Feb, 1997.

[c] Present petition for compensation was filed on: 1stAug. 2002.

[d] The amount of fine, which was to be paid as compensation, was not paid for a long time.

[e] Farad orders indicate that some of the accused persons had sought time to make the deposit.

[c] Present petition for compensation was filed on: 1stAug. 2002.

[f] The amount of Rs. 1,60,000-00 was deposited with this Court on or about: 1st Nov., 2002

[g] The monthly payment out of the said amount of Rs. 1.60 lakh commenced only from: Feb. 2003.

[h] For the reasons due to which this Court was convinced and persuaded, the amount of Rs. 1.60 lakh was ordered to be paid by installments, and the amount has been exhausted by: Sept. 2006.

The manner in which the Petitioners are required to wait to receive amount of compensation is startling.

It appears that said amount of Rs. 4,000-00 permonth was required for maintenance and upbringing of Petitioner Nos. 2 to 6. Had the amount of Rs. 1.6 lakh +Rs. 0.40 and additional sum of a lakh remained in deposit,on interest earned thereon, Petitioners would have definitely survived. Even otherwise, their sharing in father''s income was only Rs. 15/-each.

It has now occurred to our mind that had learned Advocates for the Petitioners suggested to the Court to keep the amount of interim compensation, instead of praying for an order of disbursement of the sum of Rs. 1.60 lakhs deposited in this Court, this Court would have by ajudicial order of interim nature made the deposit to around figure of Rs. 3,00,000-00. Had the interest there of been paid to the Petitioners through the grand-mother, the corpus would have remained intact, while the dependents would have received at least Rs. 3,000/-per month to wards interest, and as noted by us earlier in this petition, the dependence of these Petitioners was hardly around Rs. 15/-per day and, therefore, the sum of Rs. 3,000-00 would have definitely sufficed for maintaining them.

Be that as it may, however, now when the amount of compensation is ordered by this Court finally, the fruits of the petition have emerged after eighteen years.

This Court has noted from the official website of National Human Rights Commission and other sites dealing with this subject that deaths in police custody as well as in jail custody are reported to be 1493 in the year 2007. It is not seen that a trend of reduction of these figures is emerging. Locations of excesses vary, yet excesses at the hands of police and jail authorities do continue.

What strikes to the mind of this Court at this stage is that, on one hand as a Welfare State, the Governments, and the Judiciary in its own way, are striving to minimize the excesses on the part of police. On the other hand, with the increased crimes and increased policing, the number of custodial deaths has not decreased.A question, which arises as a multi-headed monster, is should the victims and their dependents be required to wait for getting amount of compensation for an indefinitely long period? The indefiniteness is aggravated further due to litigous attitude of parties including the State and undeniable law''s delays.

If the remedy is by way of a suit, no finite time frame can be expressed. Considering the pressure of work on the higher Courts, the facts are obvious that like in present case it has taken about nine years to reach adecision and eighteen years to fructify from the date of death.

We were deeply engrossed and hounded by the question as to can this situation be not remedied, and some solace and consolation can be made available to the victims?

The amount of compensation, which the victim and / or dependent would be entitled, is bound to vary from person to person and case to case, yet some minimum consolation and solace can always be made available.

When the State and Law Makers in their wisdom have enforced the doctrine of ''No-fault-Liability'' akin to the doctrine of ''Strict Liability'' in the motor accidents,question arises in our mind as to why should there not be a Fund in the nature of Insurance Fund, any other fund called in any nomenclature - title, whatsoever, where, upon a summary enquiry by a Judicial Officer, certain minimum amount of compensation should be payable from such specified fund.

The background explored by us noted in fore going para constrains us to give a thought as to the manner in which the amount of compensation should be utilized.

When this Court had started examining the aspect of a stable and long functioning arrangement, we have come a cross that the Union Legislature has already enacted a Scheme introduced by Code of Criminal Procedure (Amendment) Act, 2006, which is a step advanced for restitutive justice by introducing Section 357A, which provides for award of due compensation by the District Legal Service Authority after completing enquiry within two months to the victim. Sub-section (1) of Section 357A provides as follows:

357A. (1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who requirere habilitation.

[Quoted from page No. 15 of the Gazette of India dated 23rd August, 2006].

We had called learned Public Prosecutor and requested him to take instructions. Learned Public Prosecutor has taken instructions, and has informed that to his knowledge, no such scheme has been framed so far. He has further informed that the National Legal Services Authority has developed an ad hoc scheme to be implemented by State Legal Services Authority providing payment of compensation.

Learned APP has produced a photo copy of letter dated 6th July, 2011 addressed by Maharashtra State Legal Services Authority to District Legal Services Authorities communicating the Scheme to be implemented by them. The National Legal Services Authority''s letter dated 19th June,2011 is enclosed thereto which is the foundation of State Legal Services Authority''s letter. We have perused the letter circulated by National Legal Services Authority. It contains the Scheme which reads as follows:

C. It was felt that Section 357-A Cr. P.C. which provides for payment of compensation to the victims of crime, quantum of which is to be determined by the State Legal Services Authorities or District Legal Services Authorities, pursuant to a Scheme to be framed by the State Government in consultation with the Central Government, will become redundant unless the State Authorities start awarding compensation to the applicants under the provisions of Sub-sections (4), (5) and under Sub-section (6) of Section 357-A, Code of Criminal Procedure which contemplate immediate relief being provided in appropriate cases.

D. It was resolved that pending the Scheme contemplated in Sub-section (1) of Section 357-A being prepared by the State Governments in co-ordination with the Central Government, the State Legal Services Authorities and District Legal Services Authorities shall start taking up applications under Sub-sections (4), (5) and (6) of Section 357-A, Code of Criminal Procedure., for awarding compensation and immediate interim relief in deserving cases.

E. It was resolved that while awarding compensation under Sub-sections (4) and (5)and interim relief under Sub-section (6) of Section 357-A, Code of Criminal Procedure., the principles of the Second Schedule to the Motor Vehicle Act, 1988(Schedule for Compensation for third party fatal accidents/injury cases claims) be followed by the State/District Legal Services Authorities as guiding principles for determination of compensation of victims of crime when such Authorities are called upon to conduct an enquiry and pass award under the provisions of Sub-sections (4), (5) and (6) of Section 357A, Code of Criminal Procedure.

F. It was further resolved that pending framing of a scheme under Sub-section (1) of Section 357-A, Code of Criminal Procedure., the State/District Legal Services Authority may conduct the enquiry contemplated in Section 357-A, Code of Criminal Procedure. through one of its members, preferably ajudicial officer or a lawyer, and that based on the enquiry so conducted, the quantum of compensation to be paid to the victim/dependents be decided by a Committee econsisting of the Executive Chairman, Member Secretary and one lawyer member of the State Authority. A Committee of similar nature beset up in the District Legal Services Authority consisting of the Chairman, District Legal Services Authority, its secretary and lawyer member of that Authority.

G. It was decided that in order to all eviate the suffering of the victim / dependent as per the provisions of sub-section (6) of Section 357-A, Code of Criminal Procedure., the State/District Legal Services Authority maypass appropriate orders of interim nature.

The Ad hoc Scheme quoted in the fore going paras is totally silent on source of funding and Head of Expenditure. These aspects need an Executive decision. Since the Ad hoc Scheme is received very recently, we consider that the State Govt., needs some breathing time for its decision-making process. Urgent creation of an Expenditure Head or nomination, and ad hoc allocation of budget may be necessary. If the modalities are not worked out and funding is not done, the legislative amendment maybe rendered sterile.

We record and hope, since, at this juncture, there is no occasion to issue directions in absence of any refusal or failure by the State, that appropriate steps for preparation of a regular scheme and formulation of a fund on long term basis in order to cater to the requirement of payment of compensation needs to be devised. We hope this be done as expeditiously as possible.

We, therefore, record our concern, and direct the Principal Secretary, Law & Judiciary Department, Govt. of Maharashtra, to consider what we have expressed in fore going paras 44 to 54, and place it before the appropriate authorities for a decision as wisdom may persuade the Executive.

We direct learned Public Prosecutor to communicate this order to the Principal Secretary, Law & Judiciary Department, Govt. of Maharashtra, Mumbai, for compliance of paragraph No. 55 foregoing.

We make the rule absolute in terms of paras 37, 38 and 55.

We direct the Respondents to pay to each Petitioner jointly and severally costs in a sum of Rs. 6000-00 [rupees six thousand only]. The amount of compensation and costs together with interest be paid to the Petitioners.