Bhaskar Bhattacharya, J. - (1.) This mandamus appeal is at the instance of an unsuccessful writ petitioner and is directed against an order dated 21st November, 2002, passed by a learned Single Judge of this Court by which His Lordship dismissed the writ application filed by the appellant. By the said writ application, the appellant prayed for a direction upon the State Government to pay compensation of Rs. 35 lakh to the appellant for the death of her son in the police custody due to torture inflicted upon him by the police officials.
(2.) The case made out by the appellant in the writ application may be Summed up thus : "a) On 26th February, 1980, the son of the appellant was arrested by the police and was taken to the Golabari police station where he was mercilessly beaten and due to such brutal atrocity, he died. The police refused to accept even the written complaint of the husband of the appellant, as a result, such grievance was lodged before the S.D.J.M., Howrah. b) The learned S.D. J.M. took cognizance of the complaint and committed the case to the learned Sessions Court for trial where charges were framed under section 302/34 of the Indian Penal Code against the accused persons who were all police personnel. The learned Sessions Judge although found that the torture upon the son of the appellant was the cause of his death and that he did not die due to fall from the roof in order to escape arrest as suggested on behalf of the defence, all the accused persons were acquitted on the ground that the prosecution could not prove that the accused persons had really beaten the son of the appellant to death. c) Being dissatisfied, the de facto complainant, the husband of the appellant, filed a revisional application before this Court and at the same time, the State also preferred an appeal against order of acquittal. A Division Bench of this Court allowed the appeal and the revisional application by setting aside the order of acquittal passed by the Sessions Court and convicted three of the accused persons for committing offence under section 304 Part II read with section 34 of the Indian Penal Code by imposing rigorous imprisonment of seven years each on the two of the accused persons in addition to a fine of Rs. 5,000/-. The third accused, another police personnel was directed to suffer imprisonment of five years in addition to unposition of a fine of Rs. 2,500/-. The Division Bench further ordered that the fine, if realised, should be paid to the heir of the victim by way of compensation. The fourth accused person was, however, acquitted. d) On an appeal by the convicted persons to the Supreme Court by special leave, the said Court refused to interfere with the finding of guilt of the accused persons but was of the view that all the three convicted persons should be directed to undergo rigorous imprisonment of 5 years as they were equally guilty of the offence. e) After the confirmation of the aforesaid verdict by the Supreme Court in the year 1990, the father of the victim had approached the employer of his son for the purpose of ascertaining the actual amount he would have received if he did not, die so that appropriate application could be filed for compensation. Unfortunately, after the decision of the Supreme Court, the father of the victim was murdered at the instance of the convicted persons, as a result, the appellant was at her wits' end. However, after recovering from the shock, she got information from the Railway authorities, where her son was working, about the scale of pay the victim would have enjoyed by that time if he were alive. On the basis of the aforesaid scale of pay supplied by the Eailway authority, the appellant calculated the gross amount her son would have received after adding the available dearness allowances and other benefits payable to a Railway-employee if he were alive till the date of his retirement. f) According to the appellant, such amount would come to Rs. 31 lakh and odd as detailed in the calculation-sheet annexed to the writ application. The appellant, therefore, prayed for a direction upon the State Government to pay her an amount of Rs. 35 lakh as compensation for the wrongful act committed by the employees of the State Government upon her son while he was in police custody.
(3.) The writ application was opposed by the State Government by filing affidavits-in-opposition thereby controverting the allegations made in the writ application. According to the State Government, it had taken all reasonable steps against the guilty persons and even preferred appeal against their acquittal and ultimately, succeeded in obtaining the order of conviction of the accused persons and at the same time, dismissed those guilty employees from service. In such circumstances, the State Government could not be held responsible for the wrong committed upon the son of the appellant. It was further contended that the writ application should be dismissed on the ground of gross delay in filing the same and that the appropriate remedy of the appellant lay before other forum.;