SMT. NILABATI BEHERA ALIAS LAUT BEHERA (THROUGH A

THE SUPREME COURT LEGAL AID COMMITTEE)

v.

STATE OF ORISSA AND ORS.

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MARCH 24, 1993

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(J.S. VERMA, DR. A.S. ANAND AND N. VENKATACHALA, JJ.)

Constitution of India, 195<>-Alticle 32-1.etter of a mother infomiing

Supreme Court death of her son in custody-Writ petitimr-Appreciation· of

evidence-Whether the death of petitioner's son in police custody due to police c

bTUta/ity.

)-· Constitution of India, 1951>--Articles 32, 226-Death in police cus-

tody-Power of Supreme Court/High Court to award compensation for con-

travention of fundamental right to life guaranteed under Article il--Purpose

D

of public law proceedings-Remedy in public law proceedings-/lole of

Courts--Payment of Compensation-Fixation-Directions of Supreme Court

on mode of payment and appropriate actions against individuals responsible

for custodial death.

Petitioner's son, aged about 22 years was taken from his home In

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'r police custody at about 8 a.m. on 1.12.1987 by respondent No.6, Assistant

Sub-Inspector or Police

or the Police

Outpost in connection with the

investigation or an offence or theft. He was detained at the Police outpost.

- On 2.12.1987, at about 2 p.m. the petitjimer "8me to know that the

dead body of

her son was round on the railway track. There

were multiple F

injuries on the body and his death was unnatural, caused by thooe Injuries.

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The petitioner alleged in her letter dated 14.9.1988, whieh was treated

as a writ petition under Article

32 of the Constitution,

that it was a case

of custodial death since her son died as a result of the multiple Injuries

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inflicted to him

while he was in police custody and thereafter his dead body

was thrown on the railway track. It was prayed in the petition that award

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or compensation be made to her, for contravention or the fundamental

right to life guaranteed under Article 21 of the Constitution.

The defence of the respondents

was that

petitioner'.• son managed to H

581

582 SUPREMECOURTREPORTS [1993) 2 S.C.R.

A escape from police custody at about 3 a.m. on 2.12.1987 from the Police,

Outpost, where be was detained; that thereafter be could not be ap­

prehended in spite of a search and that his dea.d body was found on the

railway

track on 2.12.1987 with multiple injuries, which indicated that he

was run over by a train. The respondents denied the allegation of custodial

B

death and their responsibility for the unnatural death of petitioner's son.

On 4.3.1991, this Court directed the District Judge to hold an inquiry

into the matter

and to submit a report. After bearing the parties and

appreciating the evidence the District Judge submitted the Inquiry Report

dated 4.9.1991. The District Judge found that petitioner's son died

on

C account of multiple injuries inflicted to him while he was in police custody

at the

Police Outpost.

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The correctness of the finding of the District Judge in his report was

assailed in this Court.

The respondents contended that petitioner's son managed to escape

from police custody

at about 3 a.m. on 2.12.1987; that be was run over by

a passing train and sustained the fatal injuries; that the responsibility of

the respondents for his safety came to

an end the moment he escaped from

police custody;

and that the factual foundation for

State's liability for

payment of compensation for violation of the fundamental right to life

under Article

21 was absent.

Allowing the petition, this Court,

HELD: (per J.S. Verma, !. on his behalf and on behalf of N.

Venkatachala, !.)

1.01. There is no cogent independent evidence of any search made by

the police to apprehend petitioner's son, if the defence of his escape from

police custody

be true.

On the contrary, after discovery of the dead body

on the railway track in the morning

by some railwaymen, it was much later

G in the day that the police reached the spot to. take charge of the dead body.

This conduct of the concerned police officers is also a significant

cir·

cumstance to assess credibility of the defence version. (591 G-H]

1.02. The medical evidence comprising the testimony of the doctor,

who conducted the post-mortem, excludes the possibility ofall the injuries to

H the deceased being caused in a train accident while indicating that all of

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NILABATillEHERA v. STATE OF ORISSA 583

them could result from the merciless beating given to him. (594 H·595AJ

1.03. An inquiry under Section 176 Cr.P.C. is contemplated Inde­

pendently by a Magistrate and not joindy with a police officer when the

role of the police officers itself is a matter of inquiry. [5'J5 F)

1.04. There was baud-cuff on the bands of the deceased when his

body

was found on the

railway track with rope around iL It is significant

that the Report dated 11.3.1988 of the Regional Forensic Science

Laboratory mentions that the

two cut ends of the two pieces of rope

which

were sent for examination do not match with each other in respect of

physical appearance. This finding about the rope negatives the

respondents' suggestion that the petitioner's son managed to escape from

police custody

by chewing

otr the rope with which be was tied. (595 G-HJ

1.05. It is a case nf custodial death, and the deceased died as a result

of the injuries inflicted to him voluntarily

while be was in

police custody

at the Police OutposL (596 A]

2.01. Award of compensation in a proceeding under Article 32 by this

Court or

by the

High Court under Article 226 of the Constitution is a

remedy available in public law, based on strict liability for contravention

of fundamental rights to which the principle of sovereign immunity does

not apply,

eveu though it may be

available as a defence in private law in

an action based ou torL This is a distinction between the two remedies to

be borne in mind which also indicates the basis on which compensation is

awarded in such proceedings. (596 G]

2.02. Enforcement of the constitutional right and grant of redress

embraces award of compensation as part of the legal consequences of its

contravention. (602 A)

2.03 •. 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 enforce·

ment 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,

A

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the remedy in private

law for damages for the tort resulting from the

contravention oftbe fundamental righL The defence of sovereign immunity

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584 SUPREME COURT REPORTS [1993) 2 S.C.R.

A being inapplicable, and alien to the concept or guarantee or rundamenlBI

rights, tbere can be no question or such a defence being available in the

constitutional remedy.

It is this principle which justifies award or

monetary compensation ror contravention or fundamental

rights guaran-

teed by the Constitution, when that is the only practicable mode or redress

B

available ror the contravention made by the State or its servants in the

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purported exercise of their powers, and enforcement of the fundamental

right is claimed

by

resort to the remedy in public law under the Constitu- -

lion by recourse to Articles 32 and 226 or the Constitution. [602 B-DJ

2.04. The Court is not helpless and the wide powers given to this

c

Court by Article 32, which itself is a fundamental right, imposes a con·

stitntional 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 or monetary

compensation in appropriate cases, where that is the only mode or redress

D

available. (603 DJ

2.05. The power available to this Court under Article 142 is also an

enabling provision in this be hair. 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 lire, ir for the extreme con-

E

travention the court is powerless to grant any

relier against the State, except •

by punishment or the wrongdoer for the resulting offence, and recovery or

·y

damages under private law, by the ordinary process. [ 603 E-FJ

2.06. Ir the guarantee that deprivation or life and personal liberty

-cannot be made except in accordance with law, is to be real, the enforce-

F ment of the right in case of every contravention must also be possible in

the constitutional scheme, the mode of redress being I.hat which is ap-

propriate lo the facts of each case. [603 Fl

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2.07. This remedy in public law has to be more readily available whe.o

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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. [603 G] y

2.08. The principle of which the Court's power under Articles 32 alld

H 226 of the Constitution is exercised to award monetary compensation for

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NILABA TI BEHERA v. STA TE OF ORISSA 585

contravention of a fundamental right. [604 BJ

Rudul Sah v. State of Bihar and Another, [1983] 3 S.C.R. 508; Sebas-

tian M. Hongray v. Union of India and Others, [1984] l · S.C.R. 904 and

(1984) 3 S.C.R. 544; Bhim Singh v. State of J. & K, [1984) Supp. S;C.C. 504

A

and [1985) 4 S.C.C. 677; Sahel~ A Women's Resources Centre and Others v.

Commissioner of Police, Delhi Police Headquarters and Others, [1990) 1 B

S.C.C. 422; State of Maharashtra and Others v. Ravikant S. Pati~ [1991) 2

S.C.C. 373; Maharaj v. Attorney-General of Trinidad and Tobago, (No.2),

(1978)

3

All.E.R. 670; Khatri and Others ( W) v. State of Bihar and Others,

[1981) 2 S.C.C. 493 and Union Carbide Corporation and Others v. Union oi

India and Others, (1991] 4 S.C.C. 584, referml to. C

Kasturilal Raua Ram Jain v. The State of Uttar Pradesh,_ (1965) 1

S.C.R. 375, distinguished.

Ratan/a/ & Dhirajlal's Law of Torts, 22nd Edition, 1992, hy Justice

G.P. Singh, at pages 44 to 48, referml to. D

2.09. In the present case, on the finding reached, It Is a clear case for

award of compensation to the petitioner for the custodial death of her son.

[604 DJ

2.10. The deceased was aged about 22 yars and bad a monthly E

Income between Rs.1200 to Rs.1500. A total amount of Rs.1,50,000 would

be

appropriate as compensation, to be

awarded to the petitioner la the _

present case. [604 E]

2.11. The respondent-State of Orissa Is directed to pay the sum of

Rs.1,50,000 to the petitioner as compensation and a further snm or F

Rs.10,000 as costs to be paid to the Supreme Court Legal Aid Committee.

The mode or payment or Rs.1,S0,000 to the petitioner would be, by making

a

term deposit orthat amount in a

scheduled bank in the petitioner's name

for a period orthree yars, during which she would receive only the Interest

payable thereon, the principal amount being payable to her on expiry of G

the term. The Collector of the District will take the necessary steps in this

behalf, and report compliance· to the Register (Judicial) or this Court

within three months. [604 H, 605-A]

2.12. The State of Orissa Is expected to take the necessary further

action to ascertain and fix the responsibility or the Individuals responsible H

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586 SUPREME COURT REPORTS (1993] 2 S.C.R.

for the custodial death or petitioner's son ·and also take all available

appropriate actions against each or them. ( 605 CJ

Per Dr. A.S. Anand, J. ( Concuning)

1.01. Convicts, prisoners or under-trials are not denuded or their

rundamental rights under Article 21 and it is only such restrictions, as are

permitted

by

law, which can be imposed on the enjoyment or the fundamen-

tal rights by such persons. It is an obligation or the State, to ensure that

there is no inrringement or the indereasable rights or a citizen to tire, except

in accordance with law while the citizen is in its custody. (607 El

1.02. The precious right guaranteed by Article 21 or the Constitution

of India cannot

be denied to convicts, under-trials or other prisoners in

custody, except according to procedure established

by

law. (607 El

1.03. There is a great responsibility on the police or prison

authorities to ensure

that the citizen in its custody is not deprived of bis

right

to life. His liberty is in the very nature of things circumscribed by

the very fact or 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. [ 607 F]

1.04. The wrongdoer is accountable and the State is responsible if

the person In custody or the police is deprived of his life except according

to the procedure-established by law. (607 G]

1.05. The.death of petitioner's son was caused while he was in custody

of the police

by police torture. A custodial death is perhaps one of the worst

crimes in a civilised society governed

by the Rule or Law. 1.06. The defence of "sovereign immunity'in such cases is not avail­

able to the State. (607 G]

2.01. Adverting to the grant or relief to the heirs of a victim of

custodial death for the infraction or invasion of his rights guaranteed

under Article 21 of the Constitution of India, it is not always enough to

relegate him to the ordinary remedy of a civil suit to claim damages for

the tortious act of the State as that remedy in private law indeed is

H available to the aggrieved party. (608 A]

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NILABATI BEHERA v. STATE OF ORISSA 587

2.02. The citizen complaining of the infringement of the indefeasable A

right under Article

21 of the Constitution cannot be

told that 'for tbe

established violation of the fundamental right to life, he cannot get any

relief under the public law by the courts exercising writ jurisdiction.

[608-B]

2.03. The primary source of the public law proceedings stems from B

the prerogative writs and the courts have, therefore, to evolve 'new tools'

to give relief in public law by moulding It according to the situation with

a view to preserve and protect the Rule of Law. [608 Cl

2.04. The old doctrine of only relegating the aggrieved to the C

remedies available in civil law limits the role of tbe courts too much as

protector

and guarantor of the indefeasable rights of the citizens. The

courts have the

obligation to satisfy the social aspirations of the citizens

because the courts

and the

law are for the people and expected tb respond

to their aspirations. (608 H, 609 A]

2.05. The public law proceedings serve a different purpose than the

private law proceedings. The relief ofmonetary compensation, as exemplary

damages, in proceedings under Article 32 by this Court or under Article 226

by the High Courts; for established infringement of the indefeasable 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 guaran·

teed basic and indefeasable rights of the citizen. (609 BJ

2.06. 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, which the court moulds the relief by granting 'compensation in proceedings under Artlcle32

or 226 of the Constitution seeking enforcement or protection offundamtntal

rights, it does so under the public law by way of penalising tbe 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. (609 CJ

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2.07. The payment of compensation in such cases is not to be

understood, as it is generally understood in a civil ection 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 H

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588 SUPREME COURT REPORTS (1993) 2 S.C.R.

A of the citizen. [609 DJ

2.08. The compensation is in the nature or the exemplary damages'

awarded against the wrong-doer for the breach of its public law duty and r

is independent of the rights available to the aggrieved party to claim

B

compensation under the private law in an action based on tort, through a _..

suit instituted in a court of competent jurisdiction or/and prosecqte the

offender under the penal law. [609 El

2.09. This Court and the High Courts, being the protectors of the

civil liberties of the citizen, have not only the power and jurisdiction but L

c

also an obligation to grant relief in exercise of its jurisdiction under

Articles

32 and 226 of the Constitution to the victim or the heir of the

'

victim.whose fundamental rights under Article 21 of the Constitution of ._,

India are established to have been Oagrantly infringed by calUng upon the

State to repair the damage done by its officers to tbe fundamental rights

D

of the citizen, notwithstanding the right of the citizen to the remedy by way

or a civil suit or criminal proceedings. [609 F-G)

l

2.10. The State, or course, has the right to be indemnified by and take

such action as may be available to it against the wrongdoer in accordance t

with law -through appropriate proceeding. or course, relief in exercise of the

E

power under Article 32 or 226 would be granted only once it is established y

( that there has been an.infringement ofthe fundamental rights of the citizen

and no other form of appropriate redressal by the court in the facts and . ·

circumstances orthe case, is possi~le. [609 H, 610A)

2.11. Law is in the process of development and the process neces-

r

•

F sitates developing separate public law procedures as also public law

principles. It may be necessary to identify the situations to which separate ,_

/

proceedings and principles apply and the courts have to act firmly but with

certain amount of circumspection and self restraint, lest proceedings

under Article 32 or 226 are misused as a disguised substitute for civil

G

action in private law. [610 D-El

"Freedom under the Law": By

Lord Denning -Firsi Hamlyn Lecture, 1949, referred to.

Rudul Sah v. State of Bihar and Anr., [1983) 3 S.C.R. 508, referred to.

H 2.12. In the facts of the present case the mode of redress which

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NILABATI BEHERA v. STATE OF ORISSA [VERMA, J.] 589

commends appropriate is to make an order of monetary amend, in favour A

of the petitioner for the custodial death

of her son by ordering payment of

compensation

by way of exemplary damages.

(610 F]

2.13. The State of Orissa should pay a sum of Rs.1,S0,000 to the

petitioner

and a sum of

Rs.10,000 by way of costs to the Supreme Court

Legal Aid Committee. (610 GI J B

ORIGINAL JURISDICTION : Writ Petition (Crl.) No. 488 of 1988.

(Under Article 32 of the Constitution of India).

M.S. Ganesh for the Petitioner.

c

Altaf Ahmed,

Addi. Solicitor General, A.K. Panda and Naresh

Kumar Sharma for the Respondents.

The Judgments of the Court were delivered by

D

VERMA, J. A letter dated 14.9.1988 sent to this Court by Smt.

Nilabati Behera alias Lalita Behera, was treated as a Writ Petition under

Article 32

of the Constitution for determining the claim of compensation made_ therein consequent upon the death of petitioner's son Suman Behera,

aged about 22 years; in police custody.

The said

Suman Behera was taken

E

from his home in police custody at about 8 a.m. on 1.12.1987 by respondent

No.6, Sarai Chandra Barik, Assistant Sub-Inspector of Police of Jaraikela

Police Outpost under Police Station Bisra, Distt. Sundergarh in Orissa, in

connection with the investigation of

an offence of theft and detained at the Police Outpost. At about 2 p.m. the next day on 2.12.1987, the petitioner

came to know that the dead body of her son Suman Behera was found on F

the railway track near a bridge at some distance from the Jaraikela railway

station. There were multiple injuries on the body of Suman Behera when

it was found and obviously his death was uunatural, caused

by those

injuries. The allegation made

is that it is a case of custodial death since

Suman Behera died as a result of the multiple injuries inflicted to him while

G

he was in police custody; and thereafter his· dead body was thrown on the

railway track. The prayer made in the petition

is for award of compensation

to the petitioner, the mother of Suman Behera, for

contravention .of the

fundamental right to life guaranteed under Article 21 of the Constitution.

The State of Orissa and its police officers, including Sarai Chandra · H

590 SUPREME COURT REPORTS (1993) 2 S.C.R.

A Barile, Assistant Sub-Inspector of Police and Constable No.127, Chhabil

Kujur of Police Outpost Jeraikela, Police Station Bisra, are impleaded as

respondents in this petition. The defence of the respondents

is that Suman

Behera !llanaged to escape from police custody at about 3 a.m.

on the night

between the 1st and 2nd December, 1987 from the

Police Outpost

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Jeraikela, where he was detained and guarded by Police Constable Chhabil

Kujur; he could not be apprehended thereafter in spite of a search; and

the dead body of Suman Behera was found on the railway track the next

day with multiple injuries which indicated that he

was run over by a passing

. train after he had escaped from police custody. In short, on this basis the

allegation of custodial death

was denied and consequently the respondents'

c responsibility for the unnatural death of Suman Behera.

In

view of the controversy relating to the cause of death of Suman

. --."

Behera, a direction was given by this Court on 4.3.1991 to the District

Judge, Sundergarh in Orissa, to hold an inquiry into the matter and submit

D

a report. The parties were directed to appear before the District Judge and

lead the evidence on which they

rely. Accordingly, evidence was led by the

parties and the District Judge has submitted the Inquiry Report dated

4.9.1991 containing his finding based on that evidence that Suman Bebera

had died on account of multiple injuries inflicted to

him while he was in

police custody at the

Police Outpost Jeraikela. The correctness of this y

E finding and Report of the D.istrict Judge, being disputed by the respon-

dents, the matter

was examined afresh by us in the light of the objections

raised to the Inquiry Report.

The admitted facts are, that Suman Behera

was taken in police

F

custody on 1.12.1987 at 8 a.m. and he was found dead the

next day on the

railway track near the Police Outpi>st Jeraikela, without being released

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from custody, and his death was unnaturitl, caused by multiple ·injuries

sustained by him. The burden is, therefore, clearly on the respondents to

explain

bow Suman Behera sustained those injuries which caused his death.

G

Unless a plausible explanation is given by the respondents which is

cotisis-

tent with their innocence, the obvious inference is that the fatal injuries

were inflicted to Suman Behera

in police custody resulting in his death, for

'y

which the respondents are responsible and liable.

To avoid

this obvious and logical inference of custodial death, the

H learned Additional

Solicitor General relied on the respondent's defence

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NIIABATI BEHERA v. STATEOFORISSA[VERMA,J.) 591

that Suman Behera had managed to escape from police custody at about A

3 a.m. on the night between the 1st and 2nd December, 1987 and it was

likely that he was run over by a passing tr;Un when he sustained the fatal

injuries. The evidence adduced

by the respondents is relied on by the

learned Additional Solicitor General to support this defence and to

con-

tend that the responsibility of the respondents for the safety of Suman

B

Behera came to an end the moment Suman Behera escaped from police

custody. The learned Additional Solicitor General, however, rightly does

not dispute the liability of the State for payment of compensation in this

proceeding for violation of the fundamental right to life under Article

21,

in case it is found to be a custodial death. The argumel).t is that the factual

foundation for such a liability of the

State is absent. Shri M.S. Ganesh, who c

appeared as amicus curiae for the petitioner, however, contended that the

evidence adduced during the inquiry does not support the defence of

respondents and there

is no reason to reject the finding of the learned

District Judge that

Suman Behera died in police custody as a result of

injuries inflicted to

him.

D

The first question is: Whether it is a case of custodial death as alleged

by the petitioner? The admitted facts are:

Suman Behera was taken in

police custody at about 8

a.m. on 1.12.1987 by

Sarai Chandra Barik, Asst!.

Sub-Inspector of Police, during investigation of an offence of theft in the

village and was detained at Police Outpost Jeraikela; Suman Behera and E

Mahi Seth~ another accused, were handcul'.fed, tied together and kept in

custody at the police station; Suman Behera's mother, the petitioner, and

grand-mother went to the Police Outpost at about 8 p.m. with food for

Suman Behera which he ate and thereafter these women came away while

Suman Behera continued to remain in police custody; Police Constable

F

Chhabil Kujur and some other persons were present at the Police Outpost

that night; and the dead body of Suman Behera with a handcuff and

multiple injuries

wa:s found lying on the railway track at Kilometer No.385129 between Jeraikela and Bhalulata railway° stations on the morning

of

2.12.1987. It

~ significant that there is no cogent independent evidence

G

of any search made by the police to apprehend Suman Behera, if the

defence of

his escape from police custody be true.

On the contrary, after

discovery

of the dead body on the railway track in the morning by some

railwaymen,:

it was much

later in the day that th!) police reached the spot

to take charge of the dead· body. This conduct of the concerned police

H

592 SUPREME COURT REPORTS (1993] 2 S.C.R.

A officers is also a significant circumstance to assess credibility of the defence

version.

Before discussing the other evidence adduced by the parties during

the

inquiry, reference may be made to the

injmies found on the dead body

B of Suman Behera during post-mortem. These injuries were the following:-

c

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' External injuries

(1) Laceration over with margin of damaged face.

(2) Laceration of size -3' x 2" over the left temporal region

upto bone.

(3) Laceration 2' above mastoid process on the right-side

of

,size 1 1/2' x 1/4' bone exposed.

( 4) Laceration on the forehead left side of size 1 1/2' x

1/4' upto bone in the mid-line on the forehead 1/2' x

1/4"

bone deep on the left lateral to it 1' x 1/4' bone exposed.

(5) Laceration l' x 1/2' on the anterior aspect of middle

of left arm, fractured bone protruding.

( 6) Laceration 1' x 1/2" x 1/2" on medial aspect of left thigh

4' above the knee joint.

(7) Laceration 112' x 1/2' x 1/2' over left knee joint.

F (8) Laceration 1' x 1/2' x 1/2' on the medial aspect of riiQ!t

knee joint.

(9) Laceration l' x 1/2' x 1/2" on the posterior aspect of

left leg, 4' below knee :ioint.

G (10) Laceration l' x 1/4' x 1/2" on the plantar aspect of

3rd and 4th toe of right side.

(11) Laceration of 1' x 1/4' x 1/2" on the dorsum of left

foot.

H Injury on the neck

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NILABATI BEHERA v. STA TE OF ORISSA [VERMA, J.] 593

(1) Bruises

of size

3" x 1" obliquely alongwith ster- A

nocleidomastoid muscle 1' above the clavical left side (2)

lateral to this 2" x l' bruise (3) and 1' x 1" above the clavial

left side (4) posterial aspect of the neck 1' x 1' obliquely

placed right to mid line.

--f Right shoulder B

(a) Bruise 2' x 2', 1' above the right scapula.

(b) Bruise

1' x 1' on the tip of right shoulder.

( c) Bruise

on the dorsum of

righl palm 2' x 1'. c

( d) Bruise extenses surface of forearm left side 4' x 1'.

( e) Bruise

on right elbow 4' x 1'

(t) Bruise on the dorsum of left palm

2" x 1'.

D

(g) Bruise over left patela 2' x 1'.

(h) Bruise

1' above left pate!

1" x l".

(i) Bruise on the right illiac spine 1' x 1/2".

E

GJ Bruise over left scapula 4' x 1'.

(k) Bruise 1" below right scapula 5" x l".

(I) Bruise 3" medial to inferior angle of right scapula 2" x 1'.

F

(m) Bruise 2' below left scapula of size 4" x 2".

(n) Brui~e 2' x 6" below 12th rib left side.

( o) Bruise

4' x

2" on the left lumber region.

G

(p) Bruise on the buttock of left side 3" x 2".

·y ( q) On dissect10n found -

(1) Fracture

of skull on right side

parietal and occipital

bone 6" length. H

594

A

B

c

SUPREME COURI REPORIS [1993] 2 S.C.R.

(2) Fracture of frontal bone below laceration 2' depressed

fracture.

(3) Fracture

of left temporal bone

2' in length below

external injury No.2 i.e. laceration 2' above left mastoid

process.

(

4) Membrane ruptured below depressed fracture, brain

matter protruding through the membrane.

(5) Intracraneal haemorrhage present.

(6) Brain lacerated below external injury No.3, 1' x 1/2' x

1/2'.

(7) Bone chips present on temporal surface of both sides.

D (8) Fracture of left humerous

3' above elbow.

E

(9) Fracture of left femur 3' above knee joint.

(10) Fracture of mendible at the angle mendible both

sides.

(11) Fracture of maxillary.

The face was completely damaged, eye ball present, nose lips, cheeks

absent. Maxila and a portion of mendible absent.

F

No. injury was present on the front side of body trunk. There is

rupture and laceration of brain.'

The doctor deposed that all the injuries were caused

by hard and

blunt object; the injuries on

•he face and left temporal region were post­

mortem while the rest were ante-mortem. The doctor excluded the pos-

G sibility of the injuries resulting from dragging of the body by a running train

and stated that all the ante-mortem injuries could be caused by lathi blows.

;...

It was further stated by the doctor that while all the injuries could not be y

caused in a train accident, it was possible to cause all the injuries by lathi

blows. Thus, the medical evidence comprising the testimony or'the doctor,

H who conducted the post-mortem, excludes the possibility of all the injuries

-.

N!IABATI BEHERA v. STATEOFORISSA[VERMA,J.] 595

to Suman Behera being caused in a train accident while indicating that all A

of them could result form the merciless beating given to him. The learned

Additional Solicitor General placed strong reliance

on the written opinion

of Dr.

K.K. Mishra,

Professor & Head of the Department of Forensic

Medicine, Medical College, Cuttack, given on

15.2.1988 on a reference

made to him wherein he stated on the basis of the documents that the

B

'+-injuries found on the dead body of Suman Behera could have been caused ,

by rolling on the railway track in-between the· rail and by coming intci

forceful contact with projecting part of the moving train/engine. While

adding that

it did not appear to be a case of suicide, he indicated that there

was more likelihood of accidental fall on the railway track followed by the

running engine/train. In our

view, the opinion of Dr. K.K. Mishra, not c

examined as a witness, is not of much assistance and does not reduce the

. weight of the testimony of the doctor

who conducted the post-mortem and

~ deposed as a witness durin~ the inquiry. The opinion of Dr. K.K. Mishra

is cryptic, based on conjectures for which there is no basis, and says nothing

about the injurieo being both anti-mortem and post-mortem. We have no

D

hesitation in reaching this conclusion and preferring the testimony of the

doctor who conducted the post-mortem.

We

may also refer to the Report dated 19.12.1988 containing the

findings

in a joint inquiry conducted by the Executive Magistrate and the

E Circle Inspector of

Police. This Report is stated to have been made under

Section

176

Cr.P.C. and was strongly relied on by the learned Additional

Solicitor General as a statutory report relating to the cause of death. In the

first place, an inquiry under Section

176

Cr.P.C. is contemplated inde-

-

pendently by a Magistrate and not jointly with a police officer when the

role of the police officers itself

is a matter of inquiry. The joint finding

F

recorded is that

Suman Behera escaped from police custody at about 3

a.m. on

2.12.1987 and died in a train accident as a result of injuries

sustained therein. There

was hand-cuff on the hands of the deceased when

his body

was found on the railway track with rope around it. It is significant

that the

Report dated 11.3.1988 of the Regional Forensic

Science

G

Laboratory (Annexure 'R-8', at p.108 of the paper book) mentions that the

two cut ends of the two pieces of rope which were sent for examination do

~

not match with each other in respect of physical appearance. This finding

about the rope negatives the respondents' suggestion that Suman Behera

managed to escape from police custody

by chewing off the rope with which

he was tied.

It is no necessary for us to refer to the other evidence including H

596 SUPREME COURT REPORTS [1993) 2 S.C.R.

A the oral evidence adduced during the inquiry, from which the learned

District Judge reached the conclusion thai it is a case of custodial death

and Suman Behera died as a result of the injuries inflicted to him volun­

tarily while he

was in police custody at the

Police Outpost Jeraikela. We

have reached the same conclusion on a reappraisal of the evidence ad-

B

duced at the inquiry taking into account the circumstances, which also

support ·that conclusion. This was done in view of the vehemence with

which the learned Additional Solicitor General urged that

it

is not a case

of custodial death but of death of Suman Behera caused by injuries

susiained by

him in a train accident,

after he had managed to escape from

police custody

by chewing

off the rope with which he had been tied for

C being detained at the Police Outpost. On this conclusion, the question now

is of the liability of the respondents for compensation to Suman Behera's

mother, the petitioner, for Suman Behera's custodial death.

In view of the decisions of this Court in Rudul Sah v. State of Bihar

D and Another, [1983) 3 S.C.R. 508, Sebastian M. Hongray v. Union of India

and Others, [1984) 1 S.C.R. 904 and [1984) 3 S.C.R. 544, Bhim Singh v. State

of J&K, [1984) Supp. S.C.C. 504 and [1'185) 4 S.C.C. 677, Saheli, A Women's

Resoun:es Centre and Others v. Commissioner of Police, Delhi Police Head­

quaTters and Others, [1990) 1 S.C.C. 422 and State of Maharashtra and

E

F

Others v. Ravikant S.Pati~ [1991) 2 S.C.C. 373, the liability of the State of

Orissa in the present case to pay the compensation cannot be doubted and

was rightly not disputed by the learned Additional Solicitor General. It

would, however, be appropriate to spell out clearly the principle on which

the liability of the State arises in such cases for payment of compensation

and the 4istinction between this liability and the liability in private law for

payment of compensation in an action on tort. 'It may be mentioned

straightway that award of compensation

in a proceeding under Article 32

by this court or by the High Court under Article 226 of the Constitution is

a

remedy available in public law, based on strict liability for contravention

of fundamental rights to which the principle of sovereign immunity does

G not apply, even though it may be available as a defence in private law in

an action based on tort. This is a distinction between the two remedies to

be borne

in mind which also indicates the basis on which compensation is

awarded in such proceedings. We shall now refer to the earlier decisions

of this Court

as well as some other decisions before further discussion of

H this principle.

-

NII.ABATI BEHERAv. STATEOFORISSA[VERMA,J.] 597

In Rudul Sah (supra), it was held that in a petition under Article 32 A

of the Constitution, this Court can grant compensation for deprivation of

a fundamental right. That

was a case of violation of the petitioner's right

to personal liberty under Article

21 of the Constitution. Chandrachud, CJ.,

dealing with this aspect, stated as under:-

'It is

trne that Atticle 32 cannot be used as a substitute for

the enforcement

of rights and obligations which can be

enforced efficaciously

through the ordinary processes of

Courts, Civil and Criminal. A money claim has therefore

to be agitated

in and adjudicated upon in a suit instituted

in a court of lowest grade competent to try it. But the

important question for our consideration

is· whether in the

exercise

of its jurisdiction under

attic/e 32, this Court can

pass

an order for the payment of money if such an order is

in the

nature of compensation consequential upon the

deprivation of a fundamental right. The instant case is

illustrative of such cases ...... .

...... The petitioner could have been relegated to the ordinary

remedy

of a suit if his claim to compensation was

factually

controversia~ 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 predicate, in the

absence of evidence, the precise amount which would be

decreed

in his favour. In ·these circumstances, the

refiisal

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

Governmeat

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 to 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 Ar­

ticle 21 secured, is to mulct its violaters in the payment

9f monetary compensation. Administrative sclerosis lead-

B

c

D

E

F

G

H

A

B

c

D

E

F

598 SUPREME

COUR1 REPORTS (1993) 2 S.C.R.

ing to flagrant infringements of fundamental tights 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 state as shield. If Civilisation 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 tha4 respect for the rights of in­

dividuals is the true bastion of democrary. Therefore, the

State must repair the damage done by its officers to the

petitioner's rights. It may have recourse against those of­

ficers'

(pp.513-14}

(emphasis supplied}

It does appear from the above extract that even though

it was held

that compensation could be awarded under Article

32 for contravention of

a fundamental right,

yet it was also stated that 'the petitioner could have

been relegated to the ordinary remedy of a suit if

his claim to compensation

was factually controversial' and 'Article

32 cannot be used as a substitute

for the enforcement of rights and obligations which can be enforced

efficaciously through the ordinary processes'. These observation may tend

to raise a doubt that the remedy under Article

32 could be denied 'if the

claim to compensation

was factually controversial' and, therefore, optional,

not being a distinct remedy available to the petitioner

in addition to the

ordinary processes. The later decisions of this Court proceed on the

assumption that monetary compensation can be awarded for violation of

constitutional rights under Article

32 or

Articl~ 226 of the Constitution,

but this aspect has not been adverted to.

It is, therefore, necessary to clear

this doubt and to indicate the precise nature of this remedy which

is

distini::t

0 · and in addition to the available ordinary processes, in case of violation of

the fundamental rights.

Reference

may also be made to the other decisions of this Court after

Rudul

Sah. In Sebastian M. Hongray v. Union of India and Others, (I},

H

(1984) 1 S.C.R.

904, it was indicated that in a petition for writ of habeas

NILABATI BEHERA v. STATE OF ORISSA [VERMA,J.] 599

corpus, the burden was obviously on the respondents to make good the A

positive stand of the respondents in response to the notice issued by the

court by offering proof of the stand taken, when it

is shown that the person

detained was last seen alive under the surveillance, control, and command ·

of the detaining authority. In

Sebastian M. Hongray v.

Union of India &

-f

Ors., (II), (1984] 3 S.C.R. 544, in such a writ petition, exemplary costs were

B

awarded on failure of the detaining authority to produce the missing

......

persons, on the conclusion that they were not alive and had met an

unnatural death. The award

was made in Sebastian M. Hongray-ll ap-

parently following

Rudul

Sah, but without indicating anything more. In

Bhim Singh v. State of J&K and Others, (1985] 4 S.C.C. 677, illegal detention

c

in police custody of the petitioner Bhim Singh was held to . constitute

violation of his rights under Articles

21 and 22(2) and this Court exercising ~- its power to award compensation under Article 32 directed the State to

pay monetary compensation to the petitioner for violation of his constitu-

tional right by

way of exemplary costs or otherwise, taking this power to

D be settled by the decisions in Rudu/

Sah and Sebastian M. Hongray. In

Saheli, (1990] 1 S.C.C. 422, the State was held liable to pay compensation

payable to the mother of the deceased who died

as a result of beating and

assault

by the police. However, the principle indicated therein was that the

State is responsible for the tortious acts of its employees. In State of

Maharashtra and Others v. Ravikant S. Patil, (1991] 2 S.C.C. 373, the award E

of compensation by the High Court for violation of the fundamental right

under Article

21 of an undertrial prisoner, who was handcuffed and taken

through the streets

in a procession by the police during investigation, was

upheld. However, in none of these cases, except Rudu/

Sah, anything more

Was said. In Saheli, reference was made to the State's liability for .tortious

F

acts of its servants without any reference being made to the decision of this

Court

in Kasturi/aJ Ralia Ram Jain v.

The State of Uttar Pradesh, (1965] 1

S.C.R. 375, wherein sovereign immunity was upheld in the case of vicarious

liability of the State for the tort of its employees. The decision in Saheli is,

therefore, more in accord with the prjnciple indicated in Rudul Sah.

G

In this context, it iS sufficien1 to say that the decision of this Court

._,... in Kasturi/a/ upholding the Stace's plea of sovereign immunity for tortious

acts of its servants

is confined to the sphere of liability in tort, which is

distinct from the State's liability for contravention of fundamental rights to

H

600 SUPREME COURT REPORTS [1993] 2 S.C.R.

A which the doctrine of sovereign immunity has no application in the con­

stitution~! scheme, and is no defence to the constitutional remedy under

Anicles

32 and 226 of the Constitution which enables award of compensa­

tion for contravention of fundamental rights,

when the only practicable

mode of enforcement of the fundamental rights can

be the award of

B compensation. The decisions of this Court in Rudu/

Sah and others in that

line relate

to award of compensation for contravention of fundamental

rights, in the constitutional remedy under Articles

32 and 226 of the

ConsUtution;

On the other hand, Kasturi/a/ related to value of goods seized

and not returned to •he owner due to the fault of Government servants,

the claim being of damages for the tort of conversion under the ordinary

c

process, and not a claim for compensation for violation of fundamental

rights. Kasturi/al is, therefore, in-applicable in this context and distinguishable.

The decision of Privy Council

in Maharaj v. ·Attorney-General of

Trinidad and Tobago, (No.2), [1978] 3 All ER670, is useful in this context.

D That case related to Section 6 of the Constitution of Trinidad and Tobago

196.2, in the chapter pertaining to human rights and fundamental freedoms,

wherein Section 6 provided for an application to the High Court for

redress. The question was, whether the provision permitted an order for

monet\11' compensation. The contention of the Attorney-General therein,

E that an order for payment of compensation did not amount to the enfor­

. cement of the rights that had been contravened, was expressly rejected. It

was held, that an order for payment of compensation,

when a right

protected had been contravened,

is clearly a form of 'redress' which a

person

is entitled to claim under

Section 6, and may well be the 'only

F

G

H

practicable form of redress'. Lord Diplock who delivered the majority

opinion, at page

679, stated.:-

'It .was argued on behalf of the Attorney-General that

s.6(2) does

not permit of an order for monetary compen­

sation despite the fact that this kind of redress

was or­

dered

in Jaundoo v. Attorney-Genera/ of Guyana, (1971]

.SC 972. Reliance was placed on the reference in the

subsection to 'enforcing, or securing the enforcement

of,

any of the provisions

'!f the said foregoing sections' as the

purpose for which orders etc. could be made. An order

for payment of compensation,

it was submitted, did nOl

-

+

y

-...,.-·

NILABATIBEHERAv. STATEOFORISSA[VERMA,J.] 601

amount to the enforcement of the rights that had been

contravened. In their Lordships' view

an order for pay­

ment

of compensation when a right protected under s.l

'has been' contravened is clearly a form of 'redress' which

a person is entitled to claim under s. 6(1)

and may well

be the only practicable form of

red.ress, as by now it is in

the instant case. The jurisdiction to make such an

order

is conferred on the High Court

by,para (a) of s.6(2), viz.

jurisdiction 'to hear and determine any application made

by any person in pursuance

of sub-section (1) of this

section'. The

very wide powers to make orders, issue writs

and give directions are ancillary to this."

Lord Diplock further stated at page 680, as under:-

'Finally, their Lordships would say something about the

measure

of monetary compensation recoverable under s.6

where

the contravention of the claimant's,constiiutional

rights consists

of deprivation of liberty otherwise than by

due process

of law. The claim is not a claim in private law

for damages for the tort of false

imprisonmen4 under which

the damages recoverable are at laJgl! and would include

damages for loss of reputation. It is a claim in public law

for compensation for deprlvation of liberty alone ....... •

(emphasis supplied)

Lord Hailsham while dissenting from the majority regarding the

liability for compensation in that case, concurred with the majority opinion

on this principle

and stated at page

687, thus:-

"...... I am simply saying that, on the view I take, the

expression 'redress' in sub-s(l}

of. s.6 and the expression

'enforcement' in sub-s. (2), although capable

of embracing

damages where damages are available as

part of the legal

consequences of contravention, do not confer and are not

in the context capable of being construed so as to confer

a right of damages where they have not hitherto been

available, in this case against the state for the judicial

errors of a judge ....

11

A

B

c

D

E

F

G

H

602 SUPREMECOURTREPORTS (1993] 2 S.C.R.

A Thus, on this principle, the view was unanimous, that enforcement of the

constitutional right and grant of redress embraces award

of compensation

as part of

the legal consequences of its contravention.

B

c

It follows that 'a claim in public law for compensation' for contraven­

tion

of human rights and fundamental freedoms, the protection of which is

guaranteed in the Constitution, is an acknowledged remedy for enforce­

ment 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,

·md 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 inap­

plicable, 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,

D when that is the only practicable mode of redress available for the con­

travention made hy 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 Rudu/

Sah

E

F

G

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.

A useful discussion on this topic which brings out the distinction

between the remedy in public law based on strict liability for violation of

a fundamental right enabling award of compensation, to which the defence

of sovereign immunity

is inapplicable, and the private law remedy, wherein

vicarious liability

of the

State in tort may arise, is to be found in Ratanlal

& Dhirajlal's Law of Torts, 22nd Edition, 1992, by Justice G.P. Singh, at

pages 44 to

48.

This view finds support from the. decisions of this Court in the

Bhagalpur blinding cases:

Khatri and

Others (II) v. State of Bihar and

Others,

[1981] 1

S.C.C. 627 and Khatri and Other (W) v. State of Bihar and

Others, [1981] 2 S.C.C. 493, wherein it was said that the court is not helpless

to grant relief in a case of violation of the right to life and personal liberty,

H

and it should be prepared to forge new tools and devise new remedies' for

NIIABATI BEHERA v. STATE OFORISSA [VERMA,J.] 603

the purpose of vindicating these precious fundamental rights. It was also A

indicated that the procedure suitable in the facts of the case must be

adopted for conducting the inquiry, needed to ascertain.the necessary facts,

for granting the relief,

as

the available mode of redress, for enforcement

-;-

of the guaranteed fundamental rights. More recently in Union Carbide

COT]JOration and Others v. Union of India and Others, (1991) 4 S.C.C. 584,

B

Misra, CJ. stated that 'we have to develop our own law and if we find that

it is necessary to construct a new. principle of liability to deal with an

unusual situation which has arisen and which is likely to arise in future ..... ,

there

is no reason why we should hesitate to evolve such principle of

liability

... .'. To the same effect are the observations of Venkatachaliah, J.

(as he then was), who rendered the leading judgment in the Bhopal gas c

r

case, with regard to the court's power to grant relief.

We respectfully concur with the

view that 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

D

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

'r

under Article 142 is also an enabling provision in this behalf. The contrary

~ view would not merely render the court powerless and the constitutional E _,

~

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. It the guarantee that deprivation of life and personal

F

-""""

liberty cannot be made except in accordance with law, is to be rea~ 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

Jaw, G -""'

even though its exercise is to be tempered by judicial restraint to avoid

circumvention of private law remedies, where more appropriate.

We may also refer to Article 9(5) of the International Covenant on

Civil and Political Rights, 1966 which indicates that an enforceable right to H

• (J()4 SUPREME COURT REPORTS (1993) 2 S.C.R .

,>--

A compensation is not alien to the concept of enforcement of a guaranteed

l

t

right. Article 9(5) reads as under:-

•Anyone who has been the victim of unlawful arrest or

detention shall

have an enforceable right to compensa-

tion."

~

,_

B

The above discussion indicates the principles on which the Court's

r

power under. Articles 32 and 226 of the Constitution is exercised to award

monetary compensation

for contravention of a

fundamental right. This was _,

indicated in Rudu/ Sah and certain further observations therein adverted i

c

to earlier, which may tend to minimise the effect of the principle indicated

therein, do

not really detract from that

principli:. This is how the decisions

of

this Court in Rudul

Sah and others in that line have to be understood

--<

,_

and Kasturi/al distinguished therefrom. We have considered this question

at some length in view of the doubt raised, at times, about the propriety of

awarding compensation

in such proceedings, instead of directing the

t

D claimant to resort to the ordinary process of recovery of damages by

recourse to an action in tort. In the present case, on the finding reached,

it is a clear case for· award of compensation to the petitioner for the

custodial death of her son.

E

The question now, is of the quantum of compensation. The decease~ y

Suman Behera was aged about 22 years and had a monthly income between

!

Rs.1200 to Rs.1500. This is tJie finding based on evidence recorded by the

(

District Judge, and there is no reason to doubt its correctness. In our

opinion, a total amount of Rs.1,50,000 would be appropriate as compensa-

tioo, to be awarded to the petiiioner in the present case. We may, however,

F

' observe that the award of compensation in this proceeding would be taken

into account

for adjustment, in the event of any other proceeding taken by

,,>-.

r the petitioner for recovery of compensation on the same ground, so that

the amount

to this extent is not recovered by the petitioner twice over.

t

Apart from the fact that such an order .is just, it is also in consonance with '

the statutory recognition of this principle of adjustment provided in Section

~

G

357(5) Cr.P.C. and Section 141(3) of the Motor Vehicles Act, 1988.

L

Accordingly, we direct the respondent -State of Orissa to pay the

y

sum of Rs.1,50,000 to the petitioner and a further sum of Rs.10,000 as costs

to be paid to the Supreme Court Legal Aid Committee. The mode of

H payment of Rs.1,50,000 to the petitioner would be, by making a term

__..;,

NILABATI BEHERA v. STATE OF ORISSA(ANAND,J.] 605

deposit of that amount in a scheduled bank in the petitioner's name for a A

period of three years, during which she would receive only the interest

payable thereon, the principal amount being payable to her

on expiry of

the term. The Collector of the District will take the necessary steps in this

'"1-·

behalf, and report compliance to the Registrar (Judicial) of this Court

within three months.

B

We clarify that the award of this compensation, apart from the

direction for adjustment

of the amount as indicated, will not affect any

other liabiiity

of the respondents or any other person flowing from the

custodial death of petitioner's son

Suman Behera. We also expect that the

State of Orissa would take the necessary further action in this behalf, to c

r

ascertain and fix the responsibility of the individuals responsible for the

custodial death

of

Suman Behera, and also take all available appropriate

actions against each

of them, including their prosectution for the offence

committed thereby.

The writ petition is allowed in these terms.

D

DR. ANAND, J.

(CONCURRING)

y.

The lucid and elaborate judgment recorded by my learned brother

Verma J. obviates the necessity

of noticing facts or reviewing the case law E

referred to by him. I would, however, like to record a few observations of

my own while concurring with his Lordship's judgment.

This Court was bestirred by the unfortunate mother

of deceased

.. Suman Behera through a letter dated 14.9.1988, bringing to the notice of

F

. .-I.._

the Court the death of her son while in police custody. The letter was

treated as a Writ-Petition under Article

32 of the Constitution.

As noticed

by Brother Verma J ., an inquiry was got conducted by this Court through

the District Judge Sundergarh who, after recording the evidence, submitted

his inquiry report containing the finding that the deceased Suman Behera

had died on account of multiple injuries inflicted on him while in police G

.._,.... custody. Considering, that it was alleged to be a case of custodial death, at

the hands

of those who are supposed to protect the life and liberty of the

citizen, and which

if established was enough to lower the flag of civilization

to fly half-mast, the report of the District Judge was scrutinized and

analysed

by us with the assistance of Mr.

M.S. Ganesh, appearing an1icus H

606 SUPREME COURT REPORTS (1993] 2 S.C.R. )_

A curiae for the Supreme Court Legal Aid Committee and Mr. Altaf Ahmad,

the learned Additional Solicitor General carefully.

B

Verma J., while dealing with the first question i.e. whether it was a case of cutodial death, has referred to the evidence and the circumstances

of the case as also the stand taken

by the State about the manner in which

injuries were caused and has come to the conclusion that the case put up

by the police of the alleged escape of Suman Behera from

police custody

and his sustaining the injuries

in a train accident was not acceptable. I

respectfully

agree.· A strenuous effort was made by the learned Additional

Solicitor General

by reference to the injuries on the head and the face of

C . the deceased to urge that those injuries could not be possible by the alleged

police torture and the finding recorded

by the District Judge in his report

to the contrary

was erroneous. It was urged on behalf of the State that the

medical evidence did establish

'that the injuries had been caused to the

deceased

by lathi blows but it was asserted that the nature of injuries on

D the

face and left temporal region could not have been caused by the lathis

and, therefore, the death had occurred

in the manner suggested by the

police

in a train accident and that it was not caused by the police while the

deceased

was in their custody. In this connection, it would suffice to notice

that the Doctor, who conducted the post-mortem examination, excluded

'

E

the possibility of the injuries to Suman Behera being caused in a train ''f'

accident. The injuries on the face and the left temporal region were found

F

to be post-mortem injuries while the rest were ante-mortem. This aspect of

the medical evidence would go to show that after inflicting other injuries,

which resulted

in the death of Suman Behera, the police with a view to

cover

up their crime threw the body on the rail-track and the injuries on

the face and left temporal region were received

by the deceased after he

had died. This aspect further exposes not only the barbaric attitude of the

;...

police but also its crude attempt to fabricate false clues and create false

evidence with a

view to screen its offence. The falsity of the claim of escape

stands also exposed

by the report from the Regional Forensic Science

Laboratory dated

11.3.1988 (Annexure R-8) which mentions that the two

G pieces of rope sent for examination to it, did not tally in respect of physical

appearance, thereby belying the police case that the deceased escaped

from the police custody

by chewing ihe rope. The theory of escape has,

thus, been rightly disbelieved and

1 agree with the view of Brother Verma

J. that the death of Suman Behera was caused while he was in custody of

. H the police

by police torture. A custodial death is perhaps one of the worst

NILABATJBEHERAv. STATEOFORISSA[ANAND,J.] 607

crimes in a civilised society governed by the Rule of Law. It is not our A

concern at this stage, however, to determine as to which police officer or

officers were responsible

for the torture and ultimately the

death of Suman

Behera. That

is a matter which shall have to be decided by the competent

court. I respectfully agree with the directions given to the State

by Brother

Verma,

J. in this behalf.

On basis of the above conclusion, we have now to examine whether

to seek the right of redressal under Article

32 of the Constitution, which

is without prejudice to any other action with respect to the same matter

which

way be lawfully available, extends merely to a declaration that there

has been contravention and infringement of the guaranteed fundamental

rights and rest content at that

by relegating the party to seek relief through

civil and criminal proceedings or can it go further and grant redress also

by the only practicable form of redress -by awarding monetary damages

for the infraction of the right to life.

It is exiomatic 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 enjoy­

ment of

the fundamental right by such persons. It is an obligation of the

State, to ensure that there

is no infringement of the indefeasable 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

ca9not 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.

B

c

D

E

F

The duty of care on the part of the State is strict and admits of no

exceptions. The wrongdoer

is accountable and the State is responsible if G

the person in custody of the police is deprived of his life except according

to the procedure established

by law. I agree with Brother Verma, J. that

the dcfcnc~ cf ":;vv~reign i:rununity" in such cases is not available to the

State and in fairness to Mr. Altaf Ahmed it may be recorded that he raised

no such defence either.

H

608 SUPREME COURT REPORTS (1993) 2 S.C.R.

~

~

A Adverting to the grant of relief to the heirs of a victim of custodial

death forthe infraction or invasion of his rights guaranteed under Article

21 of the Constitution of India,· it is not always enough to relegate him to

the ordinary remedy of a civil suit to claim damages for the tortious act of

the State as that remedy in private law indeed is available to the aggrieved

-.\--

B

party. The citizen complaining of the infringement of the indefeasable right

under Article

21 of the Constitution cannot be told that for the established

violation of the fundamental right to life, he cannot get any relief

under the

public law by the courts exercising writ jurisdiction. The primary source

of

the public law proceedings sterns from the prerogative writs and the courts

c

have, therefore, to evolve 'new tools' to give relief in public law by moulding

it according to the situation with a

view to preserve and protect the Rule

of Law. While concluding his first

Hamlyrt Lecture in 1949 ·under the title ~

"Freedom under the Law" Lord Denning in his own style warned:

D

'No one can suppose that the executive will never be guilty

of the sins that are common

to all of us.

You may be sure

that they will sometimes do things which they ought 001

to do: and will not do things that they ought to do. But if

and when wrongs are thereby suffered

by any of us what

is the remedy?

Our procedure for securing our personal

E freedom is efficient, our procedure for preventing the

abuse

of power is not. Just as the pick and shovel is no

longer suitable for the winning of

coa~ so also the proce-

dure of mandamus, certiorari, and actions on the case are

not suitable for the winning of freedom in the new age.

F

They must be replaced by new and up to date machinery,

by declarations, injunctions and actions for negligence ... ,;....

This is not the task for Parliament ..... the courts must do

this. Of all the great tasks that lie ahead this is the greatest.

Properly excercised the new powers of the executive lead

to the welfare state; but abused they lead to a totalitarian

G state. None such must ever be allowed in this Courtry."

y

The old doctrine of only relegating the aggrieved to the remedies

available in

civil law limits

the role of the courts too much as protector and

guarantor of the indefeasable rights of the citizens. The courts have the

H obligation to satisfy the social aspirations of the citizens because the courts

NILABATIBEHERAv. STATEOFORISSA(ANAND,J.] 609

and the law are for the people and expected to respond to their aspirations. A

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 Article

226 by the High Courts, for established infringement .of the indefeasable

right guaranteed under Article

21 of the Consitution is a remedy available

in public

law and is based on the strict liability for contravention of the

guaranteed basic and indefeasable rights

of the citizen. The purpose of

public law

is not only to civilize public power but also to assure the citizen

B

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

C

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 penalising the wrongdoer and

flXing

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

D

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 'exempellary damages' awarded against the wrong doer for E

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

jurisdiciton or/and prosecute the offender under the penal

law.

This Court and the High Courts, being the

protectors of the civil

liberties of the citizen, have not only the power and .jurisdiction but also

an obligation to grant relief

in exercise of its jurisdiction under Articles 32

F

and 226 of the Constitution to the victim or the heir of the victim whose

fundamental rights under Article

21 of the Constitution of India are

established to have been flagrantly infringed

by calling upon the State to G

repair the damage done by its officers to the fundamental rights of the

citizen, notwithstanding the right of the citizen to the remedy by

way of a

civil

suit or criminal proceedings. The State, of course has the right to be

indemnified

by and iake such action as may be available to it against the

wrongdoer in accordance with

law -through appropriate proceedings.

Of H

610 SUPREME COURT REPORTS (1993) 2 S.C.R.

A course, relief in exerciSG of the power under Article 32 or 226 would be

granted only once

it is established that there has been an infringement of

the fundamental rights of the citizen and no other form of appropriate

redressal by the court in the facts and circumstances of the case,

is possible.

The decisions of this Court

in the line of cases starting with Rudu/ Sah v.

B State of Bihar and

Ailr., (1983) 3 SCR 508 granted~onetary relief to the

victims for deprivation of their fundamental rights in proceedings through

petitions filed under Article

32 or 226 of the Constitution of India, not­

withstanding the rights

~vailable under the civil law to the aggrieved party

where the courts found that grant of such relief

was warranted. It is a sound

policy to punish the wrongdoer and

it is in that spirit that the Courts have

C moulded the relief by granting compensation to the victims in exercise of

their writ jurisdiction. In doing

so the

cour!s take into account not only the .

interest of the applicant and the respondent but also the interests of the

public

as a whole with a view to ensure that public

bodies or officials do

not act unlawfully and do perform their public duties properly particularly

D where the fundamental rights of a citizen under Article

21 is concerned.

Law

is in the process of development and the process necessitates develop­

ing separate public

law procedures as also public law principles. It may be

necessary to identify the situations to which separate proceedings and

principles apply

a.nd the courts have to act firmly but with certain amount

of circumspection and self restraint, lest proceedings under Article

32 or

E 226 are mis.used as a disguised

substitute for civil action in private law.

F

Some of those situtations have been identified by this Court in the cases

referred to

by Brother Verma, J.

In the facts of the

pres~nt case on the findings already recorded, the

mode of redress which commends appropriate

is to make an order of

monetary amend

in favour of the petitioner for the custodial death of her

sii!."b}:'o'rc!e~iriif paym~nt' of compe~~ation by way of exemplary damages.

For the reasons recorded by Brother Verma,

J., I agree that the

State of

Orissa should pay a sum of Rs.1,50,000 to the petitioner and a sum of

Rs.10,000 by way of costs to the Supreme Court Legal Aid Committee

G Board. I concur

with the view expressed by Brother Verma, J. and the

directions given

by him in the

judgment in all respects.

V.P.R. Petition allowed.

)-.. ..