- (1.) By means of this writ petition, petitioner is seeking writ in the nature of mandamus directing State authorities to pay damages to petitioner on account of custodial death of accused Lavkush while he was in jail during the pendency of Criminal Appeal No. 1438 of 2014, Luvkush Yadav Vs. State of U.P. The allegation is that custodial death of the accused while in jail was caused due to negligence and carelessness on the part of jail authority and therefore, State is liable to compensate heirs of deceased.
(2.) Reliance has been placed upon judgment of Supreme Court in the case of Nilabati Behera Vs. State of Orissa, 1993 2 SCC 746, wherein Court has held that on account of death caused for negligence and carelessness of State authorities, dependents of such deceased are liable to be compensated for such negligence and carelessness caused. In the said judgment Supreme Court has relied upon earlier judgment in case of Rudul Sah Vs. State of Bihar, 1983 3 SCR 508, Women s Resources Centre Vs. Commissioner of Police, Delhi Police Headquarters, 1990 1 SCC 422 and held that State of Orissa in that case was liable to pay compensation and this liability cannot be doubted. The Court laid down principle on which liability of State arises in such cases for payment of compensation and the distinction between this liability and liability in private law for payment of compensation is an action of tort. It is further held that public law remedy under Article 32 and 226 available in case of strict liability for contravention of fundamental rights to which principle of sovereign immunity would not come into play which otherwise would be available as a defence in private law in an action based on tort. Above distinction between two remedies one has borne in mind. Court emphasised on payment of compensation even in realm of public law remedies.
(3.) However applying above law in the facts of present case, we find that herein, there is a report by Senior Superintendent of Jail, Central Jail, Naini, Allahabad in which it has been stated that on account of illness of detenu he was admitted to Swaroop Rani Nehru Hospital, Allahabad on the advice of Medical Superintendent of Jail on 27.01.2015 and after recovery from illness, he was discharged on 31.01.2015 and brought back to jail again when health problem arose on 02.02.2015. He is taken to Swaroop Rani Nehru Hospital, Allahabad. After receiving medical aid he was discharged and brought back to jail on 03.02.2015. Thereafter he was under treatment in jail hospital where he died ultimately in morning on 04.02.2015. This report of Senior Superintendent of Jail, Central Jail, Naini, Allahabad dated 04.02.2015, addressed to Smt. Sadhana Devi W/o detenu is preceded by earlier letter dated 28.01.2015 whereby Jail Superintendent had informed petitioner about ill health of detenu who was taken to hospital and admitted to hospital on 27.01.2015. It was advised that at least one member of family should be present. In the entire writ petition these two letters dated 28.01.2015 and 04.02.2015 have not been disputed and it is also nowhere stated in entire writ petition, whether any member of family had attended hospital after receiving letter dated 27.01.2015.;