- (1.) This is a petition under Article 226 of the Constitution of India praying for proper investigation into the unnatural death of one Lakhwinder Singh alias Lucky in police custody. A prayer for award of the compensation to the tune of Rs.25 lacs has also been made.
(2.) The petitioner is the widow of Lakhwinder Singh alias Lucky who was lodged in Central Jail, Gurdaspur pursuant to the registration of F.I.R. No.20 dated 19.5.2006 under Sections 302/34 I.P.C. at Police Station Dera Baba Nanak District Gurdaspur. Intimation was received by the petitioner on 8.10.2009 from the Superintendent, Central Jail, Gurdaspur about the death of her husband in jail. The grievance of the petitioner is that despite the fact that the F.S.L. and the post-mortem reports collectively point out to an unnatural death and subjecting the deceased to unnatural sexual offence within a few minutes of the death, neither the investigation has been carried out properly into the incident, nor has the petitioner been compensated by the State for the custodial death of her husband. Rather, the death has been passed off as suicide on account of hanging. The facts detailed in the petition would be undisputed as far as the custody and death are concerned. The Court has thus to go into the three issues (1) whether an unnatural, unexplained death took place when the deceased was in custody of the respondents and (2) if so, whether this Court can grant compensation in the exercise of its jurisdiction under Article 226 of the Constitution of India and (3) resultantly, compensation and its extent. The Hon'ble Supreme Court in numerous judgments has held that the High Court in the exercise of its jurisdiction under Article 226 of the Constitution of India is not precluded from granting compensation in the case of custodial deaths.
(3.) In The Deputy Commissioner, Dharwad District, Dharwad and others v. Shivakka and others, 2011 12 SCC 419, while relying on the following judgments the Hon'ble Supreme Court observed as follows :- In Rudal Sah v. State of Bihar and another, 1983 AIR(SC) 1086 the Hon'ble Supreme Court ordered payment of compensation in lieu of illegal detention. While rejecting the State's plea that the petitioner should be relegated to the remedy of suit, the Court observed : "The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a Civil Court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predictate, in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the States as a shield. If civilization is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. 13. In Smt.Nilabati Behera's case, a three-Judges Bench while dealing with a case of custodial death, held that in exercise of powers under Articles 32 and 142 of the Constitution, the Court can grant appropriate relief in case of deprivation of constitutional guarantee of life and personal liberty. After adverting to the decision of Maharaj v. Attorney General of Trinidad and Tobago (No.2), 1978 2 AllER 670Verma, J. (as His Lordship then was), observed : "It follows that : "a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudal Sah's case, and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of Fundamental rights." 14. The Court also referred to the earlier judgment in the case of Khatri and observed : ... the Court is not helpless and the wide powers given to this Court by Article 32, which itself is a fundamental right, imposes a constitutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available. The power available to this Court under Article 142 is also an enabling provision in this behalf. The contrary view would not merely render the Court powerless and the constitutional guarantee a mirage, but may, in certain situations, be an incentive to extinguish life, if for the extreme contravention the Court is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence, and recovery of damages under private law, by the ordinary process. If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the havenots, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate. In Nila Bati Behera alias Lalita Behera v. State of Orissa & others, 1993 AIR(SC) 1960, the Hon'ble Supreme Court observed as under:- xxx xxx xxx xxx 36. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Articles 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting 'compensation' in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.";