PAWAN KUMARI Vs. STATE OF J&K
LAWS(J&K)-1999-8-19
HIGH COURT OF JAMMU AND KASHMIR
Decided on August 13,1999

Pawan Kumari Appellant
VERSUS
STATE OF JANDK Respondents

JUDGEMENT

- (1.) THE petitioner is the mother of late Narinder Singh who dies in Police custody. He was a young man aged about 23 years. He was picked up by a police party of Police Station Raj Bag, Kathua in late night on 11th of October, 1992. Next day i.e. 12 -10 -1992 he succumbed to the injuries allegedly inflicted during interrogations in the Police Station. As no case was registered against those responsible for his dastardly killing and even departmental action was not initiated, the petitioner approached the court for a direction to the state by the Central Bureau of Investigation. She has also asked for payment of compensation. It appears with initial reluctance, a case of murder was registered in Police Station, Kathua.
(2.) DURING the pendency of the petition the court has received following communication from the Superintendent of Police Kathua. The Deputy Registrar Honble High Court, Jammu No. CB/ 96/ 5152 -547 DFO Dt 26 -9 -96 Sub. : Case FIR No. 139/ 93 U/s 304 RPC P/S Kathua. Sir, I may refer writ petition filed by Mst. Pawan Kumari versus State of J&K and Others. The case file was received from IG Office Jammu for taking further action into the matter vide his letter no. CB/SR/ZPHQ/ J/96/9220 -22 dated 16/08/1996. On the basis of investigation the challan no. 46 of 96 of the case against 1) Dy. SP Vijay Singh Samyal 2) Inspr. Sarwan Singh 3) S.I. B.K. Ganjoo and 4) Ct. Ram Kumar under section 304 RPC after completion has been produced by SHO P/S Kathua on 25/09/96 before the competent court for judicial determination. Hence, the report is sent herewith for favour of appraisal of the justice of the Honble High Court before whom the case would be listed". S.P. Kathua
(3.) SO , the allegation of the petitioner that her son died in police custody stands admitted by the state as the police officials have been found guilty and charged accordingly as aforesaid. Thus, the only question to be decided is whether petitioner is entitled to compensation. For this the postmortem findings dated 12 -10 -1992, required a special reference. "1. Haematoma over whole of left lamperal region. 2. Bruise C abrasion 1/4th cm x 1/ 4th cm. over upper side of lower lip, clotted blood present over rt. corner of mouth. 3. Bruise over rt. forearu 2 cm x 2cm in an idle of dorsal aspect. 4. Habrasien abound rt. elbow joint 1 cm x 2cm dorslape. 5. Swelling over dorsum of right hand. 6. Swelling over dorsum of left hand ediyivwris over it. 7. Semi circular abrasism over dorsum of left wrist and dorsum of left thumb. 8. Bruise over chin 3 cm x 2 cm. 9. Linear bruises 3 in number over rt. lower part of chest, vertically placed, about 2 cm x 1 cm each. 10. Centusion occupying whole of back extending upto gluteal region. 11. Extensive centusion of rt. thigh, frontal and lateral part spaning upper 1/3rd. 12. Circular contusion 1/2 cm vide around rt. ankle and abrasion over media nakolus 1 cm x 2cm. 13. Contusion on back of rt. leg just above the ankle joint 1 cm x 6 cm longitudinal. 14. Clotted blood stiching on a small abrasion over little toe of rt. foot. 15. Extensive contusion of left thigh in trientolateral part spacing upper 1/3rd. 16. Circular contusion 1/2 cm vide around left ankle E abrasion over medial makolus 3 cm x 2 cms. 17. Echymosis over centre of rt. and left sole of foot. 18. On giving incisions at the confusions sites viz rt. and It. thigh, rt. and It. sole back subcutaneous collection of clotted blood was present". Since the injuries were found to be antimortem, the charge that the deceased died due to police torture while in custody stands established as far as the civil liability is concerned. So, no investigation by CBI is necessary and the first part of the relief stands granted. This takes us to the claim for payment of compensation. As the deceased died in police custody liability of the state to compensate the victim on the principle of strict liability admits of no exception as laid down by the apex court in D.K. Basu vs. State of West Bengal, AIR 1997 Supreme Court 610, holding that: "22. 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 requires to be jealously and scrupulously protected. We cannot whisk away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise, lf the functionaries of he 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 himself thereby loading to anarchism No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic "No". The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials, detenue and other prisoners in custody, except according to the procedure restrictions as are permitted by laws. 23. In Neelbati Bahera vs. State of Orissa, (1993) 2 SCC 746; (1993 AIR SCW 2366), to which Anand. J. was a party this court pointed out that prisoners and detenues are not dienuded of their fundamental rights under Article 21 and it is only such restrictions as are permitted by law, which can be imposed on the enjoyment of the fundamental rights of the arrestees and detenue. It was observed (p. 2382 of AIR SCW): "It is axionatid that convicts, prisoners or under trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions as are permitted by law which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts under trials or other prisoners in custody except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the state is strict and admits of no exceptions. The wrong doer is accountable and the state is responsible if the person in custody of the police is deprived of his life except according to the* procedure established by law". ;


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