CHAPTER-9

CUSTODIAL DEATH AND JUDICIAL RESPONSE IN

INDIA

9.1 Introduction

Complaints of police excess and torture of suspects in police

custody have been made in the past. Of late, such complaints

have assumed wider dimensions, as the incidents of torture,

assault and deaths in police custody have increased in

alarming proportions. The Union Home Minister has in a written

reply in Parliament on December 6th , 1999, declared that 535

persons died in police lockups during the past three years. The

Honorable Minister stated that the figure was supplied to the

Government by national human rights commission. This means

that on an average each year 178 persons die in police

custody, the rising human rights consciousness of the

community, the role of press, human rights activists, NGOs -

have all resulted in increasing attention being paid to custodial

deaths than it was in the past. In last decade in the state of

421
Andhra Pradesh, widespread public protest against custodial

deaths was witnessed. The public protest was sometimes

violent in the form of spontaneous mob attack on the police

stations forcing the police to flee away from the station leaving

the police station to be burnt down by the irate mob or else

stand up and open fire on the mob in defense of the police

station and themselves.

The word custody implies guardianship and protective

care. Even when applied to indicate arrest or incarceration, it

does not carry any sinister symptoms of violence during

custody. No civilized law postulates custodial cruelty - an

inhuman trait that springs out of a perverse desire to cause

suffering when there is no possibility of any retaliation; a

senseless exhibition of superiority and physical power over the

one who is overpowered or a collective wrath of hypocritical

thinking. It is one of the worst crime in the civilized society,

governed by the rule of law and poses a serious threat to an

orderly civilized society. Torture in custody flouts the basic

rights of the citizens and is an affront to human dignity.

422
 Prisoners have human rights and prison torture is the

confession of the failure to do justice to living man. For a

prisoner, all fundamental rights are an enforceable reality,

though restricted by the fact of imprisonment. Simply stated, the

death of a person in custody whether of the Police or Judicial

will amount to Custodial Death. No doubt, the police plays vital

role in safeguarding our life, liberty and freedoms. But the

police must act properly, showing fall respect to the human

rights of the people, remembering that they are also beneath

the law, not above it and can be held liable for the violation of

human rights. One can always argue that prisons formed

islands of lawless discretion in a society guided by the values

and often the practice of the rule of law, where the authorities

exercised arbitrary power over the prisoner's lives. The charge

of brutal custodial violence by the police often resulting in the

death of the arrestees is not new. The figures of Amnesty

International in 1992 show the number of deaths in police

custody in India during the year 1985 to 1991 was 415. Figures

compiled by the National Crime Records Bureau show that

during the year 1990-92, as many as 258 rapes and 197 deaths
423
In police custody were reported from all over the country.

Needless to say, a large number of custodial violence incidents

go unreported. Arun Shourie once observed: The victims were

invariably poor. Several of them hauled in on no formal charges

at all. Even in the case of persons who were arrested, in an

overwhelmingly large number of cases they were all accused of

petty offences n fact, the victims of custodial violence are

people from poor and backward sections of the society with

little political or financial power to back them. Personal enmity,

caste and political considerations and at times pecuniary

benefits become important considerations for custodial deaths

rather than investigation of cases.

9.1.1 Conceptual aspect regarding custodial death

Law has always discouraged the acts or omissions which

in general can affect right in rem and violators have always

been punished with strict sanctions but the crime rate is not

falling and State is in regular quest to preserve social solidarity

and peace in society. Whenever death occurs in custody, it

raises the public interest and attracts media attention. Not that
424
 at each time the death is due to violent causes but at times may

be due to natural causes or due to inadequate medical facilities

or medical attention and diagnosis, or negligent behavior of

authorities or may be due to physical abuse and torture. Since

time immemorial man has been attempting to subjugate his

fellow human beings. 1 Those in power are used to twisting and

turning the people through violence and torture, and torture

under custody has become a global phenomenon. Men, women

and even children are subjected to torture in many of the

world's countries, even though in most of these countries, the

use of torture is prohibited by law and by the international

declarations signed by their respective representatives. A

problem of increasing occurrence and repugnance had been

the methods of interrogation and torture perpetrated upon

prisoners and detainees. Persons held in custody, by police or

by prison authorities, retain their basic constitutional right

except for their right to liberty and a qualified right to privacy.

The Magistrate inquest is mandatory for any death of a person

I Sukhla V. N., Constitution of India. Eastern Book Compnay, 10'" edition. (200 I). reprinted (2007) ,
Lucknow, p 827-854

425
 in custody to ensure examination of the circumstances leading

to death. Beyond Magistrate's inquest and in recent year's

information to Human Right Commission, however, there is no

formal public scrutiny of in-prison deaths and under such

situations many avoidable factors leading to death remains

unexplored. 2

9.2 Constitutional Scheme

From judicial perspective' the right to life and personal

liberty' contained in Article 21 of Indian Constitution

encompasses all basic conditions for a life with dignity and

liberty. Such an approach allows it to come down heavily on the

system of administration of criminal justice; custodial justice in

particular, and law enforcement. It also brings into the fold of

Article 21, all those directive principles of State policy that are

essential for a 'life with dignity'. The right to life guaranteed by

Article 21 of the Constitution of India is not merely a

fundamental right but is the basic human right from which all

, Constituent Assembly Debates. Vol. VII, 953

426
 other human rights stem. It is basic in the sense that the

enjoyment of the right to life is a necessary condition for the

enjoyment of al I other human rights. The right existed even

prior to the commencement of Indian Constitution. In A.D.M.

[aba/pur Vs. Shivakant Shukla case, Justice H.R. Khanna rightly

observed, , ... sanctity of life and liberty was not something new

when the Constitution was drafted. It represented a facet of

higher values which mankind began to cherish in its evolution

from a state of tooth and claw to a civilised existence. Likewise,

the principle that no one shall be deprived of his life and

liberty arbitrarily without the authority of law was not the gift of

the Constitution. It was a necessary corollary of the concept

relating to the sanctity of life and liberty which existed and was

in force before the coming into force of the Constitution ... "

The Court adopted an annotation of Article 21, in Kharak

Singh Vs. State of u.p.3 and expanded the connotation of the term

'life' and said " ... Iife is something more than mere animal

existence. The inhibition against its deprivation extends to all

; AIR 1963 SC 83
427
 those limbs and faculties by which life is enjoyed. 4 The

provision equally prohibits the mutilation of the body by the

amputation of an arm or leg, of the putting out of an eye, or the

destruction of any other organ of the body through which the

soul communicates with the outer world ... " . In Maneka Gandhi

Vs. Union of India 5, Bhagawati. J. opined that "the fundamental

right of life and personal liberty has many attributes and it

covers a variety of rights which go to constitute the personal

liberty of man and some of them have been raised to the status

of distinct fundamental rights and given additional protection

under Article 19" and in the same case it was held that the

procedure contemplated under Article 21 is a right, just and fair

procedure, not an arbitrary or oppressive procedures. 6 The

procedure which is reasonable and fair must now be in

confirmity with the rest of Article 14. In other words, the

Supreme Court while considering the ambit of Article 21 in a

number of cases established that Article 21 does not exclude

Article 19 and that even if there is a law prescribing a procedure

4 Supra note I
5(1978) 1 S(,C248
6 Ibid

428
 for depriving a person of personal liberty' and there is

consequently no infringment of the fundamental right conferred

by Article 21, such law in so far as it abridges or takes away

any fundamental right under Article 19 would have to meet the

requirements of that Article. Further any procedure

contemplated by State to curtail 'life and personal liberty' of an

individual should meet the requirement of Article 14.

In an another case of Sunil Batra 11,7, the Supreme Court

held that: the Prison administration will be liable in a case

where the breisioner breaks down because of mental torture,

physchic pressure or physical infliction beyond the licit limits of

lawful imrpisoment."

Thus, the said case gave the opportunity for the court to

condemn torture. In case of Khatri vs. State of Bihar,s the

Supreme Court in a public Interest Ilitigation case ordered to

investigate and punish the guilty Police officers who barbarically

blinded about 30 prisoners by piercing their eyes with needles

and pouring acid into their eyes. Futher, Supreme Court

7 AIR 1980 SC 1579

8 AIR 1981 SC928
429
 condemned this barbaric torture as violative of Art. 21 and

awarded compensation to the victims.

A telegram sent by a under trail prisoner was treated as

writ petition in Prem Shankar Shukla VS. Delhi Administration, 9

when an under trial prisoner was handcuffed ans chained, he

sent a telegram to the court which was treated as writ petition,

The Supreme Court specifically referred Art. 5 of Universal

Declaration of Human Rights and Article 10 of the Covenant on

civil and Political Rights and held that handcuffing as under

Trail is impermissible torture ans in violative of Article 21. The

Court examined the relevant Act, Rules and Standing orders

and hied that:

"Handcuffing IS prima facie inhuman and therefore,

unreasonable, is over harsh and at the first flush, arbitrary.

Absence of fair procedure of fair procedure and objective

monitoring, to inflict 'irons' is to resort to zoological strategies

repugnant to Article. 21. Thus, we must critically examine the

justification offered by the State for this mode to restraint.

Surely, the competing claims for securing the prisoner and

9 AIR 1980 SC 1535

430
 protecting his personally from barbarity have to be harmonized.

To prevent the escape of an undertrial is in public interest,

reasonable, just and cannot, be itself, be castigated. But to bind

a man hand and foot, fetter his limbs with hoops of steel, shuffle

him along in the streets and stand him fot hours in the courts is

to torture him, defile his dignity, vulgarise society and fool the

soul of our constitutional culture. Where then do we draw the

human line and how far do the rules err in print and practice?"

Thus, in Premshanker,10 the supreme Court specifically

referred to the right against torture in Article. 5 of the Universal

Declaration 0 Human Rights and interpreted in Article 21 to

include right against torture.

9.2.1 Death Penalty

India has not abolished death penalty, but as a rule laid

down by the Supreme Court, it is to be awarded by the

competent courts only in the' rarest of the rare cases, in which

the crime committed is so heinous that it shook the conscience

of mankind'. Under the present criminal law, imposition of death

10 (1980) 3 see 526

431
 sentence is an exception rather than the rule. Even in those

exceptional cases, special reasons have to be given in

justification of the imposition of death penalty. Section 416 of

Cr. P.C. requires the High Court to postpone the execution of a

capital sentence on pregnant women and may, if it thinks fit,

commute the sentence to imprisonment for life. 11 In Rajendra

Prasad Vs. State of U. P. Krishna Ayer J. expressed his view by

stating that the Criminal law of Raj vintage has lost some of it's

vitality, notwithstanding its formal persistance in print of the

Penal Code so far as Section 302 of IPC is concerned. In the

post Constitution period, Section 302 oflPC and Section 354(3)

of Cr.P.C. have to be read in the light of Parts III and IV of the

Constitution. He further went ahead in saying that the death

sentence would not be justified unless it was

shown that the criminal was dangerous to the society.12 In

Bachan Singh's case the Supreme Court elaborated 'special

reasons' for awarding capital punishment and established, that

11 Ratanlal & Dhirajlnl, The code of Crimina! Procedure. Wadhwa & company, 17th ed, reprint 2007, Nagpur, p-
836
" Shad Saleem raruqi, "Human Rights: Asian and Western Perspectives" in Criminal Justice (2004)
K.I.Vibhute (Ed) 62-81. For an analysis of various paradigms in this regard, See Archana Parashar,
"Human Rights: Imperatives of Theoretical Change", 40 .JIll (1998), no.I-4,6-38

432
 when the conviction is for an offence punishable with death, the

judgment should state the special reasons for such a sentence.

Constitutional provisions apart, the Supreme Court has evolved

a number of safeguards to protect the dignity and personal

liberty of persons awarded life sentence while waiting for

execution of the sentence. These include their right to worship,

right to see family members, right to remorse etc. In Attorney

General of India Vs. Lachman Devi case the Court opined that the

execution of death sentence by public hanging is barbaric and

violative of Article 21 of the Constitution. 13 The Court held that

although the crime of which the accused have been found to be

guilty was barbaric, however, a barbaric crime does not have to

be visited with a barbaric penalty such as public hanging.

9.2.2 Torture

Convention against Torture explicitly states that "No exceptional

circumstances whatsoever, whether a state of war or a threat of

war, internal political instability or any other public emergency,

may be invoked as justification of torture". The Supreme Court

"- Supra note 1, P 16..f.

433
of India and the National Human Rights Commission have

upheld this view in their various judgments/recommendations

and have jointly and individually established that the prohibition

of torture is absolute and may not be suspended no matter how

heinous the crime for which someone has been arrested. It is a

right from which the Government is not permitted to derogate,

even in situations of emergency. 44th amendment of the Indian

Constitution declares Article 20 and 21 as non derogable even

in emergency situations. The term 'torture' is defined in the

Convention against torture and other cruel, inhuman or

degrading treatment or punishment. Article 1.1 of the same

defines torture as "any act by which severe pain or suffering,

whether physical or mental, is intentionally inflicted on a person

for such purposes as obtaining from him or a third person

information or a confession, punishing him for an act he or a

third person has committed or is suspected of having

committed, or intimidating or coercing him or a third person, or

for any reason based on discrimination of any kind, when such

pain or suffering is inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person

434
 acting in an official capacity. It does not include pain or

suffering arising from, inherent in or incidental to lawful

sanctions". Article 21 of Constitution only provides" no person

shall be deprived of his life or personal liberty except according

to procedure established by law". The term 'life' or personal

liberty has been held to include the right to live with human

dignity and, therefore, includes within its ambit a guarantee

against torture and assaults by the state or its functionaries.

Any person subjected to torture or to cruel, inhuman or

degrading treatment or punishment can move the higher Courts

for various judicial remedies under Article 32 and 226 of the

Constitution .14

9.2.3 Arrest and Detention

The Supreme Court initiated the development of

"Custodial Jurisprudence" in O.K. Basu Vs. State aiWes! Bengal. 15

The case came up before the Court through a writ petition

under Article 32 of the Constitution by an NGO. In this case the

Chief Justice of India's notice was drawn to a news published in

" Ibid. p-277 & 542
15AIR 1997 SC 3017
435
The Telegraph regarding deaths in police lock-ups and in jail in

the State of West Bengal. It was requested in this petition to

examine in depth and to develop custodial jurisprudence. In this

case the Court outlined the following requirements which

should be followed in all cases of arrest or detention as

preventive measures:

l.The police personnel carrying out the arrest and handling the

interrogation of the arrestee should bear accurate, visible and

clear identification and name tags with their

designation the police personnel carrying out the arrest and

handling the interrogation of the arrestee should bear accurate,

visible and clear identification and name tags with their

designations. The particulars of all such police personnel who

handle interrogation of the arrestee must be recorded in a

register.

2.The police officer carrying out the arrest of the arrestee shall

prepare a memo of arrest at the time of arrest and such memo

shall be attested by at least one witness, who may be either a

member of the family of the arrestee or a respectable person of

the locality from where the arrest is made. It shall also be

436
countersigned by the arrestee and shall contain the time and

date of arrest.

3.A person who has been arrested or detained and is being

held in custody in a police station or interrogation centre or

other lock-up, shall be entitled to have one friend or

relative or other person known to him or having interest in his

welfare being informed, as soon as practicable, that he has

been arrested and is being detained at the particular place,

unless the arresting witness of the memo of the arrest is himself

such a friend or relative of the arrestee.

4.The time, place of arrest and venue of custody of an arrestee

must be notified by the police where the next friend or relative

of the arrestee lives outside the district or town through the

Legal Aid Organisation in the District and the Police station of

the area concerned telegraphically within a period of 8 to 12

hours after the arrest.

5.The person arrested must be made aware of his right to have

one informed of his arrest or detention as soon as he is put

under arrest or is detained.

6. An entry must be made in the diary at the place of detention

437
regarding the arrest of the person which shall also disclose the

name of the next friend of arrestee and the name and

particulars of the police officials in whose custody the arrestee

is.

7.The arrestee should, where he so requests, be also examined

at the time of his arrest and major and minor injuries, if any

present on his/her body, must be recorded at that time. The

"Inspection Memo" must be signed both by the arrestee and the

police officer effecting the arrest and its copy provided to the

arrestee.

8. The arrestee should be subjected to medical examination by

a trained doctor every 48 hours during his detention in custody

by a doctor on the panel of approved doctors appointed by

Director, Health Services of the concerned State or Union

Territory. Director, Health Services should prepare such a panel

for ali Tehsils and Districts as well.

9.Copies of ali the documents including the memo of arrest,

referred to above, should be sent to the Magistrate for his

record.

IO.The arrestee may be permitted to meet his lawyer during

438
 interrogation, though not throughout the interrogation.

II.A police control room should be provided to all district and

State Headquarters, where information regarding the arrest and

place off custody of the arrestee shall be communicated by the

officer causing the arrest. Within 12 hours of effecting the arrest

and at the police control room it should be displayed on a

conspicuous board.

The Court observed that the requirements, referred to

above flow from Articles 21 and 22(1) of the Constitution and

need to be strictly followed. In Nilabati Behera Vs. State of Orissa, 16

the Court observed that prisoners and detainees are not

denuded of their fundamental rights under Article 21 and that 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 detainees. It was

further observed" ... 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 fact of his confinement and

16 (1993) 2 sec 746

439
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 wrongdoer is accountable and the

State is responsible if the person in custody of the police is

deprived of his life except according to procedure established

by law ... " In this case Court awarded a sum of Rs. 1.5 lakhs to

the mother as her son had died in police custody. The Court's

judgment also referred to Article 9(5) of the International

Covenant on Civil and Political Rights, which indicates that an

enforceable right to compensation is not alien to the concept of

enforcement of a guaranteed right. Anyone who has been the

victim of unlawful arrest or detention shall have an enforceable

right to compensation.

9.2.4 Human Dignity

The Latin maxims salus populi est suprema lex (the safety of

the people is the supreme law) and salus republicae est suprema

lex (safety of the State is the supreme law) co-exist and are not

only important but lie at the heart of the doctrine that the

welfare of an individual must yield to that of the community.

440
 However, the action of the State must be "right, just and fair".

Practising any form of torture for extracting any kind of

information would neither be right nor just nor fair and therefore

would be impermissible, being offensive to Article 21. The

Court noted in the Basu case that 'there is no express provision

in the Constitution of India for the grant of compensation for

violation of a fundamental right to life, in spite of this lacuna the

Court has judiciously evolved a right to compensation in case of

established unconstitutional deprivation of personal liberty' . In

Sunil Batra Vs. Delhi Administration l7, the Court was called upon to

determine the validity of solitary confinement and keeping a

prisoner in fetters. Justice Desai, speaking for the majority,

admitted that there was no provision in the Indian Constitution

like the Eighth Amendment of American Constitution which

forbids cruel and unusual punishment. But, he pointed out that

conviction did not degrade the convict to be non-person,

vulnerable to major punishments imposed by the jail authorities

without observance of due procedural safeguards. He also

emphasised a Court's duty towards a prisoner as he was in

17 Supra note 7
441
prison under its order and direction. He held "We cannot be

oblivious to the fact that the treatment of a human being which

offends human dignity imposes avoidable torture and reduces

the man to the level of a beast would certainly be arbitrary and

can be questioned under Article 14". In the same case another

fact was brought to the notice of the Court that undertrials were

kept alongwith the convicts. Justice lyer observed: "The under

trials who are presumably innocent until convicted are being

sent to jail, by contamination, made criminals - a custodial

perversity which violates the test of reasonableness in Article

19 and of fairness in Article 21. How cruel would it be if one

went to a hospital for a check-up and by being kept along with

contagious cases came home with a new disease". The learned

judge drew the picture of Tihar prison thus: "Tihar prison is an

arena of tension, trauma, tantrums and crimes of violence,

vulgarity and corruption. And to cap it all, there occurs the

contamination of pre-trial accused with habitual, and 'injurious

prisoners of international gangs'. The crowning piece is that the

jail officials themselves are allegedly in league with the

criminals in the cell. That is, there is a large network of

442
 criminals, officials, and non-officials, in the house of correction.

Drug racket, alcoholism, smuggling, violence, theft,

unconstitutional punishment by way of solitary cellular life, and

transfer to other jails are not uncommon"

The Court held in this case that personal liberty of the

person who is incarcerated is to a great extent curtailed by

punitive detention. The liberty to move, mix, mingle, talk, share

company with co- prisoners, if substantially curtailed would be a

violation of Article 21 unless the curtailment has the backing of

law. In another important judgment delivered by the Supreme

Court in Francis Corallie Mullin Vs. the Administrator, Union Territory

of Oelhi,18 Bhagawati J. observed the right to life enshrined in

Article 21 cannot be restricted to mere animal existence. It

means something much more than just physical survival. The

right to life includes the right to live with human dignity and all

that goes along with it, namely, the bare necessaries of life

such as adequate nutrition, clothing and shelter over the head

and facilities for reading, writing and expressing oneself in

diverse forms, freely moving out and mixing and coming ling

18 (1981) 1 see 60S

443
 with fellow human beings". In a number of cases the Supreme

Court held that handcuffing of prisoners is against human

dignity and violative of Article 21. In Prem Shankar Shukla Vs.

Delhi Administration,19 while delivering the judgment Justice

Krishna Iyer drew attention to Article 5 of the Universal

Declaration of Human Rights and held that handcuffing of a

prisoner was unconstitutional if there was any other reasonable

way of preventing the escape of the prisoner. He reiterated the

Article 21, now the sanctuary of human values, prescribes fair

procedure and forbits barbarities, punitive as well as

procedural. In State of Maharashlra Vs. Ravikanl, the Court came

down heavily on the Government for handcuffing an under trial

prisoner and making him parade in streets in a procession by

the police. In this case the Court directed the Government for

paying a sum of Rs. 10,000 to the victim for the humiliation he

had suffered.

19 (I'iRO) 3 see 301

444
 9.2.5 Interrogation

Provisions innumerate In Chapter XII of Criminal

Procedure Code confers power on the Police to examine

accused person and witnesses. However, while carrying out

such job it is of utmost importance to follow all other provisions

of the code as well as Constitution to ensure human dignity and

personal liberty of the person under examination. 2o While

examining an accused/witness for the purposes of fact finding

the following legal provisions should be paid heed to:

(i) Section 54 of the Cr. P.c. confers upon an arrested

person the right to have himself medically examined.

(ii) A confession made to police officer IS not

admissible in evidence under Section 25 and 26 of the Indian

Evidence Act.

(iii) Section 162 of Cr.P.C., also provides that no

statement of a witness recorded by a police officer can be used

for any purpose other than that of contradicting his statement

before the Court.

(iv) Section 24 of Indian Evidence Act also provides that

20 Supra note I I, P 239

445
when admissible, confession must be made voluntarily. If it is

made under any inducement, threat or promise, it is

inadmissible in criminal proceedings.

(v) An additional safeguard is that under Section 164 of

the Cr.P.c., it is for the Magistrate to ensure that a confession

or statement being made by an accused person is voluntary.

There are a few constitutional safeguards provided to a

person to protect his personal liberty against any unjustified

assault by the State. Article 22 guarantees protection against

arrest and detention in certain cases and declares that no

person who is arrested shall be detained in custody without

being informed of the grounds of such arrest and he shall not

be denied the right to consult and defend himself by a legal

practitioner of his choice. Article 22(2) directs that the person

arrested and detained in custody shall be produced before the

nearest Magistrate within a period of 24 hours of such arrest,

excluding the time necessary for the journey from the place of

the arrest to the Court of the Magistrate. Article 20(3) of the

Constitution lays down that a person accused of an offence

shall not be compelled to be a witness against himself. Manner

446
In which examination of accused should be conducted IS

elaborated under the head 'confession'.

9.2.6 Confession

Article 20(3) of the Constitution provides that no person

accused of any offence shall be compelled to be a witness

against himself; and Section 161 (2) Cr.P .c. enjoins that any

person supposed to be acquainted with the facts and

circumstances of the case shall be bound to answer truly all

questions relating to such case put to him by any police officer

making an investigation under Chapter XII of the Code, other

than questions the answers to which would have the tendency

to expose him to a criminal charge or to a penalty or forfeiture.

Case of Nandini Satpathy Vs. P.L. Danis, is the classic example in

this context, wherein the Supreme Court held that Section 161

of Cr.P.C. enables the police to examine the accused during

investigation. The prohibitive sweep of Article 20(3) goes back

to the stage of police interrogation-not, as contended,

commencing in Court only. In our judgment, the provisions of

article 20(3) and Section 161(1) substantially covers the same

447
 area, so far as police investigations are concerned. The ban on

self-accusation and the right to silence, while one investigation

or trial is under way, goes beyond that case and protects the

accused in regard to other offences pending or imminent, which

may deter him from voluntary disclosure of criminatory matter21

We are disposed to read compelled testimony' as evidence

procured not merely by physical threats or violence but psychic

torture, atmospheric pressure, environmental coercion, tiring

interrogative prolixity, overbearing and intimidatory methods

and the like - not legal penalty for violation. So, the legal perils

following upon refusal to answer, or answer truthfully, cannot be

regarded as compulsion within the meaning of Article 20(3).

The prospect of prosecution may lead to legal tension in the

exercise of a constitutional right, but then, a stance of silence is

running a calculated risk. On the other hand, if there is any

mode of pressure, subtle or crude, mental or physical, direct or

indirect, but sufficiently substantial, applied by the policemen for

obtaining information from an accused strongly suggestive of

" Art. 21 states: No person shall be deprived of his life or personal liberty except according to procedure
established by law. The procedure established by law has to bejust, fair and reasonable. as held by Indian
Supreme eOllli. See e.g. Maneka Gandhi v. Union of India, AIR 1978 S.C.596

448
guilt, it becomes' compelled testimony', violative of Article 20(3).

Legal penalty for refusing to answer or answer truthfully may by

itself not amount to duress. It cannot be regarded as

compulsion under Article 20(3). But frequent threats of

prosecution if there is failure to answer may take on the

complexion of undue pressure violating Article 20(3). The

manner of mentioning it to the victim of interrogation may

introduce an element of tension and tone of command

perilously hovering near compulsion. Lawyer's presence IS a

constitutional claim in some circumstances in our country also,

and, in the context of Article 20(3), is an assurance of

awareness and observance of the right to silence. The Miranda

decision has insisted that if a med accused person asks for a

lawyer's assistance, at the stage of interrogation, it shall be

granted before commencing or continuing with the questioning.

We think that Article 20(3) and Article 22(1) may, in a way, be

telescoped by making it prudent for the police to permit the

advocate of the accused, if there be one, to be present at the

time he is examined. Overreaching Article 20(3) and Section

161 (2) will be obviated by this requirement. In the same case it

449
was categorically stated that if an accused person expresses

the wish to have his lawyer by his side when his examination

goes on, this facility shall not be denied, without being exposed

to the serious reproof that involuntary self-incrimination

secured in secrecy and by coercing the will. The police need

not wait more than for a reasonable while for an advocate's

arrival. But they must invariably warn-and record that fact-about

the right to silence against self-incrimination; and where the

accused is literate take his written acknowledgement. The

symbiotic need to preserve the immunity without stifling

legitimate investigation persuaded the court to indicate that

after an examination of the accused, where lawyer of his choice

is not available, the police official must take him to a magistrate,

doctor or other willing and responsible non-partisan official or

non-official and allow a secluded audience where he may

unburden himself beyond the view of the police and tell whether

he has suffered duress, which should be followed by judicial or

some other custody for him where the police cannot reach him.

That collocutor may briefly record the relevant conversation and

communicate it- not to the police-but to the nearest magistrate.

450
 Pilot projects on this pattern to guide the practical processes of

implementing Article 20(3) were strongly suggested in the

case. 22 It was further observed that: above all, long run recipes

must be innovated whereby fists are replaced by wits,

ignorance by awareness, 'third degree' by civilised tools and

technology. Special training, special legal courses,

technological and other detective updating are important. An

aware policemen IS the best social asset towards

crimelessness. The consciousness of the official as much as of

the community is the healing hope for a crime-ridden society.

Judge-centered remedies don't work in the absence of

community- centered rights. Investigatory personnel must be

separated from the general mass and given in-service

specialisation on a scientific basis. The policeman must be

released from addiction to coercion and sensitized to

constitutional values. Considering the statutory safeguards to

protect this right in Saroan Singh Vs. State of Punjab, the Court

held that" act of recording confession under Section 164 Cr. Pc.

is very solemn act and, in discharging his duties under the said

~~ Supra note I
451
Section, the Magistrate must take care to see that the

requirements of sub-section (3) of Section 164 are fully'

satisfied. It would of course be necessary in every case to put

the questions prescribed by the High Court circulars but the

questions intended to be put under sub-section (3) of Section

164 should not be allowed to become a matter of mere

mechanical enquiry. No element of casualness should be

allowed to creep in and the Magistrate should be fully satisfied

that the confessional statement which the accused wants to

make is in fact and in substance voluntary. Emphasising the

importance of Section 164 of the Cr. Pc. the court observed that:

"the whole object of putting questions to an accused person

who offers to confess is to obtain an assurance of the fact that

the confession is not caused by any inducement, threat or

promise having reference to the charge against the accused

person as mentioned in Section 24 of the Indian Evidence Act.

There can be no doubt that, when an accused person is

produced before the Magistrate by the investigating officer, it is

of utmost importance that the mind of the accused person

should be completely freed from any possible influence of the

452
 police and the effective way of securing such freedom from fear

to the accused person is to send him to jail custody and give

him adequate time to consider whether he should make a

confession at all. It would naturally be difficult to lay down any

hard and fast rule as to the time which should be allowed to an

accused person in any given case. However, speaking

generally, it would, we think, be reasonable to insist upon giving

an accused person at least 24 hours to decide whether or not

he should make a confession. Where there may be reason to

suspect that the accused has been persuaded or coerced to

make a confession, even longer period may have to be given to

him before his statement is recorded In the same case it was

further held that even if the confession is held to be voluntary, it

must also be established that the confession is true and for the

purpose of dealing with this question it would be necessary to

examine the confession and compare it with the rest of the

prosecution evidence and probabilities in the case". The Court

reiterated its view in Davendra Prasad Vs. State of UP,23 by saying

that before a confessional statement made under S. 164 of the

" 1978 Cr LJ 161-1; AIR 1978 SC 154-1

453
 Code of Criminal Procedure can be acted upon, it must be

shown to be voluntary and free from police influence. While

determining the Magistrate's role, Supreme Court in Shivappa

Vs. State of Kamataka held: From the plain language of Section

164 of Cr.P.c. and the rules and guidelines framed by the High

Court regarding the recording of confessional statements of an

accused under Section 164 Cr.P.c., it is manifest that the said

provision emphasise an inquiry by the Magistrate to ascertain

the involuntary nature of the confession. This inquiry appears to

be the most significant and important part of the duty of the

Magistrate recording the confessional statement of an accused

under Section 164 Cr.P.c. the failure of the Magistrate to put

such questions from which he could ascertain the voluntary

nature of the confession detracts so materially from the

evidentiary value the confession of an accused that it would not

be safe to act upon the same 24 Full and adequate compliance

not merely in form but in essence with the provisions of Section

164 of Cr .P.c. and the rules framed by the High Court is

imperative and its non-compliance goes to the root of the

2..\ Supra note I I, P 289

454
Magistrate's jurisdiction to record the confession and render the

confession unworthy of credence. Before proceeding to record

the confessional statement, a searching enquiry must be made

from the accused as to the custody from which he was prod-

iced and the treatment he had been receiving in such custody

in order to ensure that there is no scope for doubt of any sort of

extraneous influence proceeding from a source interested in the

prosecution still lurking in the mind of an accused. In case the

Magistrate discovers on such enquiry that there is ground for

such supposition he she rid give the accused sufficient time for

reflection before he is asked to make his statement and should

assure himself that during the time of reflection, he is

completely out of police influence. An accused should

particularly be asked the reason why he wants to make a

statement which would surely go against his self-interest in

course of the trial, even if he contrives subsequently to retract

the confession. Besides administrating the caution, warning

specifically provided for in the first part of sub-section (2) of

Section 164 namely, that the accused is not bound to make a

statement and that if he makes one it may be used against him

455
as evidence in relation to his complicity in the offence at the

trial, that is to follow, he should also, in plain language, be

assured of protection from any sort of apprehended torture or

pressure from such extraneous agents as the police or the like

in case he declines to make a statement and be given the

assurance that even if he declined to make the confession, he

shall not be remanded to police custody. The Magistrate who is

entrusted with the duty of recording confession of an accused

coming from police custody of jail custody must appreciate his

function in that behalf as one of a judicial officer and he must

apply his judicial mind to ascertain and satisfy his conscience

that the statement accused makes is not on account of any

extraneous influence on him. That indeed is the essence of a

'voluntary' statement within the meaning of the provisions of

Section 164 Cr.P.c. and the rules framed by the High Court for

the guidance of the subordinate courts. Moreover, the

Magistrate must not only be satisfied as to the voluntary

character of the statement, he should also make and leave

such material on record in proof of the compliance with the

imperative requirements of the statutory provisions, as would

456
satisfy the court that sits in judgment in the case, that the

confessional statements was made by the accused voluntarily

and the statutory provisions were strictly complied with. Even

though an accused makes a confession and pleads guilty, the

Magistrate should examine him under Section 313 Cr.P.c. to

enable him to explain the circumstances under which the

offence

was committed. The confession of a co-accused is not

substantive evidence. It can be used in service when the Court

is inclined to accept other evidence and feels the necessity of

seeking for an assurance in support of his conclusion

deductible from other evidence. When there is no substantive

evidence about a fact or circumstance, the previous statement

of the accused to prove the fact or circumstances cannot be

relied upon, and no conviction can be based solely on such a

statement.

9.2.7 Information Leading to Discovery

While investigating into an offence, it is obvious for the

investigative agency to seek information related to weapons of

457
 offence, stolen property, dead body of the victim and other

similar vital constituents of the offence from the accused

suspect.

However, it is very important to remember that while

eliciting such information from the accused, the investigating

official should not resort to torture or any other similar methods.

All requirements elaborated under head 'confession' is equally

applicable while seeking information from the accused for the

purposes of discovery.

9.2.8 Bail

The innovative interpretations of constitutional provisions

by the Supreme Court and High Courts have developed bail as

a human right. The Code of Criminal Procedure contains

provisions for bail.

Section 57 25 of the Code provides:

"No police officer shall detain in custody a person arrested

without warrant for a longer period than under all the

circumstances of the case is reasonable, and such period shall

~5 Supra note II, p 71

458
not, in the absence of a special order of a Magistrate under

Section 167, exceed twenty four hours exclusive of the time

necessary for the journey from the place of arrest to the

Magistrate's Court." The Supreme Court observed that the right

to bail is an invaluable right available to a person and that this

right should not be denied arbitrarily, and that denial of this

contravenes the fundamental right to personal liberty. As it is

established in the Indian Judicial system, law presumes and

accused to be innocent until his guilt is established, and as an

innocent person he is entitled to defend his freedom. Relying on

this principle in Vidya Sagar Vs. State of Punjab, the Court

observed: "though the stage for raising the presumption of

innocence in favour of the accused person does not arise till the

conclusion of the trial and appreciation of entire evidence on

the record, yet the matter of granting bail has to b, considered

in the background of the fact that in the criminal jurisprudence,

which guides the Courts, there is a presumption in favour of the

accused". In Kashmira Singh Vs. State of Punjab, Justice Bhagwati

observed: "it would be indeed a travesty of justice to keep a

person in jail for a period of five to six years for an offence

459
which is ultimately found not to have been committed by him.

Can the Courtsever compensate him for his incarceration which

is found to be unjustified?". Krishna Iyer J. expressing his view

in Godikanti Vs. Public Prosecutor case observed: "Bailor Jail? At

the pretrial or post conviction stage belongs to the blurred area

of the criminal justice system and largely hangs on the hunch of

the bench, otherwise called judicial discretion".

In the same judgment it was emphasised that" personal liberty,

deprived when bail is refused, is too precious a value of our

Constitution recognised under Article 21 and that the crucial

powered to negate it is a great trust exercisable, not casually

but judicially, with likely concern for the cost to individual and

the community. To glamorize impressionistic orders as

discretionary may, on occasions, make a limitative gamble

decisive of a fundamental right. After all, personal liberty of an

accused or convict is fundamental, suffering lawful eclipse only

In terms of 'procedure established by law'. The

last four words of Article 21 are the life of that human right". In

another case Krishna Iyer, ]. stressed, "reasonableness

postulates intelligent care and predicates the deprivation of

460
 freedom by refusal of bail is not for punitive purpose but for the

bi-focal interest of justice to the individual involved and society

affected". It has been notified in several cases that an accused

is not able to furnish bail bond because of his poverty. This

important aspect was dealt in Mati Ram Vs. State of Madhya

Pradesh. In this case the Court held that there is a need for

liberal interpretation of social justice, individual freedom and

indigent's rights and while awarding bail covers release on

one's own bond, with or without surities. When surities should

be demanded and what sum should be insisted on are

dependent on variables. In Hussainara Khaioon Vs. State of Biha(6,

Bhagawati J., while effectively raising the inherent weaknesses

of monetary bond said: "the bail system, as we see it

administered in the criminal courts today, is extremely

unsatisfactory and needs drastic change. In the first place it is

virtually impossible to translate risk of non-appearance by the

accused into precise monetary terms and even its basic

premise that risk of financial loss is necessary to prevent the

accused from fleeing is of doubtful validity. There are several

26 (1980) I sec 91
461
considerations which deter an accused from running away from

justice and risk of financial loss is only one of them and that too

not a major one. The experience of enlightened projects in the

United States such as Manhattan Bail Project and D.C. Bail

Project shows that even without monetary bail it has been

possible to secure the presence of the accused at the trial in

quite a large number of cases. Moreover, the bail system

causes discrimination against the poor would not be able to

furnish bail on account of their poverty while the wealthier

persons otherwise in similar situation would be able to secure

their freedom because they can afford to furnish bail. This

discrimination arises even if the amount of the bail as fixed by

the Magistrate is not high, for a large majority of those who are

brought before the courts in criminal cases are so poor that

they would find it difficult to furnish bail even in a small amount".

Justice Bhagawati suggested that, under the law as it stands

today the Court must abandon the antiquated concept under

which pre-trial release is ordered only against bail with sureties.

The concept is outdated and experience has shown that it has

done more harm than good. The new insight into the subject of
462
pre-trial release which has been developed in socially

advanced countries and particularly the United States should

now inform the decisions of our Courts in regard to pre-trial

release. If the Court is satisfied, after taking into account, on the

basis of information placed before the Court, that the accused

has his roots in the community and is not likely to abscond, the

Court can safely release the accused on his personal bond. To

determine whether the accused has his roots in the community

which would deter him from fleeing, the Court should take into

account the following factors concerning the accused:

(i) The length of his residence in the community.

(ii) His employment status, history and his financial condition.

(iii) His family ties and relationships.

(iv) His reputation, character and monetary condition.

(v) His prior criminal record including any record of prior release

on recognisance or on bail.

(vi) The identity of responsible members of the community who

would vouch for his reliability.

(vii) The nature of the offence charged and the apparent

probability of conviction and the likely sentence in so far as

463
these factors are relevant to the risk of non-appearance, and

(viii) Any other factors indicating the ties of the accused to the

community or bearing on the risk of wilful failure to appeal.

Guidelines

1. Arrests without substantial grounds need to be avoided.

2. While recording First Information Report it should be ensured

that the same is in accordance with established procedures and

names of innocent uninvolved persons are

not unnecessarily placed in the report.

3. If' caution', 'fine' or anything similar will serve the purpose

4. Then the same. Should be used instead of arrest.

Procedures of arrest need to be followed meticulously;

offenders being duly informed of their rights and their relatives

being informed of the offender's arrest and whereabouts.

5.Procedures carried out at the Police stations should be

transparent.

6.Women arrestees should be handled with special care and

attention to their gender.

7.Proper records of cases brought before each police station

464
should be maintained and should be readily available for

examination by those who are entitled to examine the same.

8.0fficers who are in charge of the investigation of cases should

not be part of the prosecuting agency to avoid tough stances

against arrested person to justify arrest.

9.Where police have the power to grant bail the power should

be exercised.

lO.Extension of remand should not be sought for automatically

or mechanically.

Standards particularly applicable to pre-trial detainees

Detention pending trial should be an exception rather than the

rule. There are several issues to be considered to assess pre-

trial detention is necessary in a given case, including:

-Are there reasonable grounds to believe that the person has

committed the offence?

-Would the deprivation of liberty be disproportionate to the

alleged offence and expected sentence?

-Is there a danger of that the suspect will abscond?

-Is there a danger that the suspect will commit further offence?

-Is there a danger of serious interference with the course of

465
justice if the suspect is released?

.Would bailor release on condition be sufficient?

9.2.9 Trial

Trial is the process through which judiciary determines

criminal liability of an accused. During trial it is the duty/burden

of the prosecution to prove charges against the accused

beyond any reasonable doubt. It is established criminal law that

a person shall be presumed innocent till finally convicted by a

competent court. It is the duty of all concerned with 'custodial

justice system' to conduct themselves in accordance with the

Criminal Procedure Code.

(a) Fair Trial

In the determination of any criminal charge, every person

shall be equally entitled to the following minimum guarantees

necessary for defence.

(1) To be informed promptly of any charges upon arrest; to be

brought promptly before a judicial officer for an assessment of

the legality of an arrest;

(2) To equal treatment before courts; to a fair and usually public

466
hearing by a competent, independent and impartial court

established by law; to be presumed innocent;

(3) To be informed promptly and in detail in a language one

understands the nature of charges; to have adequate time and

facilities for the preparation of a defence; to communicate with

counsel of one's own choice;

(4) To be tried without undue delay;

(5) To be tried in one's presence;

(6) To defend one's self in person or through legal assistance of

one's choice;

(7) To be informed that counsel will be appointed if one does

not have sufficient funds and the interests of justice require

such appointment;

(8) To examine or have examined witnesses;

(9) To obtain the attendance and examination of witnesses on

the same conditions as adverse witnesses;

(10) To have the assistance of an interpreter if one cannot

understand the language used in court;

(11) Not to be compelled to testify against one's self or to

confess guilt;
467
(12) To have a conviction reviewed by a higher court according

to law.

(13) To be compensated for any punishment this is conclusively

shown to be a miscarriage of justice;

(14) Not to be convicted for any offence for which one has been

finally convicted or acquitted (double-jeopardy);

(15) Not to be convicted for any act which did not constitute a

criminal offence under criminal law at the time of the conduct

(retrospective application of criminal law); and

(16) To benefit from any subsequent decrease in punishment.

(b) Remand and Custody

The whole spirit of the Constitution and the Criminal

Procedure Code is that the custody and liberty of the accused

detainee is entirely governed by the authority and sanction of a

court of law beyond the initial 24 hours between the first arrest

and production before the Magistrate thereafter. By no twisted

interpretation can this power in actual fact and practice be

passed on into the mere discretion of the investigating agency.

Once an accused is produced before the court, it is the Court's

468
 responsibility

and power as to whether he is to be remanded to further

custody or granted bailor released altogether. To seek remand

the investigation agency has to prefer an application stating

therein weighty reasons for the same. Under no circumstances

remand order can be passed mechanically and the Magistrate

passing an order of the remand ought, as far as possible, to

see that the detainee is produced before the court when

remand order is passed.

(d) Speedy Trial

Article 14(3)(c) of the International Covenant for Civil and

Political Rights provides for the right "to be tried without undue

delay,,27. The right to speedy trial is incorporated under the

Indian Constitution as part of personal liberty. However, there is

no specific provision under the Indian Constitution which deals

specifically with speedy trial. In spite of this, there is no dearth

of judicial decisions which have given new dimensions to speed

" UDHR, para. 2"d Even though UN Declaration did not provide for easily discernible enforcement
mechanism, yet over the years, UN has served the calise of human rights objectives in many ways. See
V.S.Mani, "Human Rights and the United Nations: A Survey". 40 JiLl (1998) no.I-4, 38-66 at 45.

469
 y trial, and made it almost a fundamental right. The landmark

case is Hussainara Khatoon Vs. State of Bihar.28 Justice Bhagawati

observed in this case that although speedy trial is not

specifically enumerated as a fundamental right, it is implicit in

the broad sweep and content of Article 21. The Supreme Court

had held in Maneka Gandhi Vs. Union of Indii9 that Article 21

confers a fundamental right on every person not to be deprived

of his life or liberty except in accordance with the procedure

prescribed by law. If a person is deprived of his liberty under a

procedure which is not 'reasonable, fair or just', such

deprivation would be violative of his fundamental right under

Article 21 and he would be entitled to enforce such fundamental

right and secure his release. Obviously a procedure established

by law for depriving a person of his liberty cannot be

reasonable, fair or just unless that procedure ensures a speedy

trial for determination of the guilt of such person. "Any

procedure which does not ensure a reasonably quick trial

cannot be regarded 'reasonable, fair or just' and would fall foul

of Article 21 ".Therefore, by speedy trial we mean reasonable

:CR Supra note 26
-'9 Supra note 5
470
 expeditious trial which is an intrinsic and essential part of the

fundamental right to life and liberty enshrined in Article 21. The

Supreme Court further observed that speedy trial was the

essence of criminal justice system and delay in trial by itself

constitutes a denial of justice. In Kadra Pahadiya Vs. State of

Biha?O, four young boys who were designated as petitioners

who were lodged in Pakur sub-jail in Santhal Parganas for a

period of eight years without trial. They all belonged to the

Paharia tribe, a backward tribe. Out of four, two of them were

arrested on 26th November 1978 while the other two, on 19th

December 1972. The jail record showed the ages of the

petitioners being between 18 to 22 years at the time of their

arrest, but the writ petition stated that they could not have been

more than 9 to 11 years old when they were arrested.

Bhagawati J. said, on behalf of the Court, "We hoped that after

the anguish expressed and the severe strictures passed by us,

the justice system in the State of Bihar would improve and no

one shall be allowed to be confined in jail for more than a

reasonable period of time, which we think cannot and should

10 (1983) 2 see 104

471
 not exceed one year for a sessions trial.but we find that the

situation has remained unchanged and these four petitioners,

who entered the jail as young lads of 12 to 13 have been

languishing in jail for over eight years for a crime which perhaps

ultimately they may be found not to have committed". The

position continues to be very disappointing and still a large

number of prisoners languish in jail without their trial having

commenced. This issues related to speedy trial again came

before the Supreme Court in Raghuvir Singh Vs. State of Bihar 1,

wherein the Court held" ... the Constitutional position IS now

well settled that the right to speedy trial is one of the

dimensions of the fundamental right to life and liberty ... " In

Madhu Mehta Vs. Union of India 32, the Supreme Court reiterated

that speedy trial is implicit in the broad sweep and content of

Article 21. This principle has no less importance for the disposal

of mercy petitions than to trial in the Court.

" (1986)4SCC481
" (1989) 1 sec 6~
472
 9.2.10 Appeal

In a number of cases the Supreme Court upheld the right

to appeal. Considering the difficulties of the prisoners in

exercising this invaluable right in M.H. Hoskol Vs. Siale of

Maharashlra 33, the Court declared that the Constitutional

mandates under Article 21 read

with Article 19(1 )(d) prescribes:

(a) Courts shall forthwith furnish a free transcript of the

judgment when sentencing a person to a prison term.

(b) In the event of any such copy being sent to the jail

authorities for delivery to the prisoner by the-appellate,

revisional or other court, the official concerned shall, with quick

despatch, get it delivered to the sentencee and obtain written

acknowledgement thereof from him.

(c) Where the prisoner seeks to file an appeal or revision, every

facility for exercise of that right shall be made available by the

jail administration.

(d) where the prisoner is disabled from engaging a lawyer on

reasonable grounds such as indigence or because of difficulty

3) (1978) 3 see 544

473
In communication with outsiders, the court shall, if

circumstances of the case, or the gravity of the sentence and

the ends of justice so require, assign competent counsel for the

prisoner's defence provided the party does not object to that

lawyer.

(e) The State which prosecuted the prisoner and set in motion

the process so to deprive him of his liberty shall pay to the

assigned counsel such sum as the court may equitably fix.

(f) These benign prescriptions operate from the lowest to the

highest court where a deprivation of life and personal liberty is

in substantial peril.

Under Article 21 no person shall be deprived of his life or

personal liberty except according to procedure established by

law. 'Procedure established by law' are words of deep meaning

for all lovers of liberty and judicial sentinels. Amplified activist

fashion procedure' means' fair and reasonable procedure'

which confirms with civilised norms like natural justice rooted

firm in community consciousness - not primitive procession

barbarity nor legislated normative mockery. Generally speaking,

and subject to just exceptions at least a single right of appeal

474
on facts where criminal conviction is fraught with long loss of

liberty, is basic to civilised jurisprudence. It is integral to fair

procedure, natural justice and normative universality save in

special cases like the Original Tribunal being a high bench

sitting on a collegiate basis. Every step that makes a right of

appeal fruitful is obligatory and every action or inaction which

stultifies it is unfair and hence unconstitutional. In a sense,

Article 19 joins hand with Article 21 necessitating the two

requirements:

(1) Service of a copy of the judgment in time to the prisoner

intending to file an appeal, and

(2) Provision for the free legal services to a prisoner who is

indigent or otherwise disabled from securing legal assistance

where the ends of justice call for such service. With the

aforesaid guidelines the Court directed that the jail manuals will

have to be suitably amended to ensure that the prisoner

receives the copy of the judgment in time.

The Indian socio-Iegal mileu makes free legal service at

trial and higher levels an imperative procession piece of

criminal justice where deprivation of life or personal liberties

475
 hangs in the judicial balance. If a prisoner sentenced to

imprisonment is virtually unable to exercise his constitutional

and statutory right of appeal inclusive of special appeal to

appeal for want of legal assistance, there is implicit in the

Supreme Court under Article 142 read with Articles 21 and 39

A, power to assign counsel for such imprisoned individuals for

doing' complete justice'. It is State's duty and not merely

Government's charity. Equally affirmative is the implication that

while legal services must be free to the beneficiary, the lawyer

himself has to be reasonably remunerated for his services.

There is a right to counsel, not in the permissive sense of

Article 22(1), but in its wider amplitude in the peremptory sense

of Article 21.

9.2.11 Release on Probation

Granting of probation is a discretionary power with the

court. Such powers of the court are governed under Section

36034 and 361 35 of Cr.P.c. These provisions state under what

circumstances probation can be granted. Generally when the

J4 Supra note I I, r 696
15 Ibid
476
accused is neither a habitual offender nor a previous convict,

courts grant probation. Under Section 562(1), Cr.P.c. an

offender can be released on probation only before he is

sentenced to any punishment. If the court convicts the accused

and sentences him to any punishment, it's power to make an

alternative order is exhausted. While granting probation the

court

has to take the age, character, nature of the offence, mental

and physical condition and antecedents of the accused/

offender and all other extenuating circumstances associated

with the offence into consideration apart from other conditions

stipulated in the aforesaid provisions.

9.2.12 Health and Well-Being

Good health is important to everyone. It affects how

people behave and their ability to function as members of the

community. It has a particular significance in the closed

community of a prison. By its nature the condition of

imprisonment can have a damaging effect on both the physical

and mental wellbeing of prisoners. Prison administrations have

477
a responsibility, therefore, not simply to provide medical care

but also to establish conditions which promote the wellbeing of

both prisoners and prison staff. Prisoners should not leave

prison in a worse condition than how they entered. This

applies to all aspects of prison life, but especially to health care.

Those who are imprisoned retain their fundamental right to

enjoy good health, both physical and mental, and they retain

their entitlement to a standard of medical care which is at least

the equivalent of that provided in the wider community.

Alongside these fundamental rights of all human persons,

prisoners have additional safeguards as a result of their status.

When a state deprives people of their liberty it takes on a

responsibility to look after their health in terms both of the

conditions under which it detains them and of the individual

treatment which may be necessary as a result of those

conditions. While dealing with this aspect special attention

should be given to factors like age, gender, mental condition,

etc, of a prisoner. It is unethical to classify prisoners as a single

group for proving medical facilities. Each prisoner should be

given adequate medical care as his/her body demands.

478
Whenever possible prisoners should have full access to the

medical facilities which are available to the public at large.

However, for management reasons presently this access is

limited to specialist care while general medical care is provided

within the individual prison or in specific prison medical

facilities. Any medical treatment or nursing care provided by the

prison administration should be at least comparable to what is

available in the outside community.

There is an absolute obligation on the State to preserve

and, if necessary, restore the health of those individuals for

whom it takes responsibility by depriving them of their liberty.

The conditions under which prisoners are detained will have a

major impact on their health and well-being. In order to meet

their responsibilities therefore, prison administration should

ensure appropriate standards in all those areas which may

affect the health and hygiene of prisoners. The physical

conditions of the accommodation, the food and the

arrangement for hygiene and sanitation should all be

designated in such a way as to help those who are unwell to

recover and to prevent the spread of infection to the healthy.

479
The conditions of imprisonment will have a serious impact on

the mental well-being of prisoners. Prison administrations

should seek to reduce the extent of that impact and should also

establish procedures to monitor its effects on individual

prisoners, steps should be taken to identify those prisoners who

might be at risk of self harm or suicide. Staff should be properly

trained in recognising the indicators of potential self-harm.

Health care staff have an important role in establishing the

concept that health care embraces not simply treatment but all

aspects of creating a healthy environment and that this requires

the cooperation of everyone in the prison. This will be

particularly challenging when resources are limited. The

foregone requirements apart there are a number of issues in

which medical staff need to distinguish between the demands

of the prison administration and the ethics of professional

health care. Prisoners' right to privacy and confidentiality are

amongst such considerations, which have to be adequately

taken care of by the prison medical staff.

480
Guidelines for medical care in prisons

As a minimum, the prison administration should provide in

each prison:

l.Initial medical screening on admission to the prison;

2.Regular out-patient consultations;

3.Emergency treatment;

4.Suitably equipped premises for consultation with and the

treatment of prisoners;

S.An adequate supply of appropriate medicines dispensed by

qualified pharmacists;

6.Facilities for physiotherapy and post-treatment rehabilitation;

7.Any special diets which may be identified as medically

necessary;

8.Prison administration will need to ensure that access to

general medical care is available at any time without delay in

cases of urgency;

9.Necessary medical care and treatment should be provided

free of charge.

IO.Where prisoners are diagnosed as mentally ill they should

not be held in prison but should be transferred to a suitably

481
 equipped psychiatric facility;

l1.The treatment provided as a result of consultation and

diagnosis should be that which is in the best interests of the

individual prisoner. Decisions should not be based on the

relative cost or convenience to the prison administration.

12.Any diagnosis made or advice offered by prison medical staff

should be based on professional judgment and in the best

interests of the prisoner.

9.2.13 Wages in Prison

The Supreme Court In the case of State of Gujarat Vs.

Hon'ble Gault of Gujarat 36exam ined the question of minimum

wages of prisoners and in its order dated 24th September 1998

held that it was 'lawful to employ prisoners sentences to

rigorous imprisonment whether he consents to do it or not'. The

apex court also held:

• it is open to the jail officials to permit other prisoners also to

do the work which they chose to do, provided such prisoners

make a request for the purpose;

JO (1998) 7 sec 392

482
• it is imperative that the prisoners should be paid equitable

wages for the work done by them. In order to determine the

quantum of equitable wages payable to prisoners the State

concerned shall constitute a wage fixation body for making

recommendations. Each State is directed to do so as early as

possible;

• until the State Government takes any decision on such

recommendations every prisoner must be paid wages for work

done by him at such rates or revised rates as the Government

concerned fixes in the light of the observations made above.

For this purpose all the State Governments are directed to fix

the rate of such interim wages within six weeks (from 24th

September 1998) and report to the Court compliance with the

direction.

This direction of the Supreme Court was reiterated by the

National Human Rights Commission, which insisted strict

implementation of the same at the earliest possibility. Fo!:owing

such directions, most of the State Governments have made

upward revision of the paltry wages being paid to the prisoners.

However, it is important to take the health of the prisoner in to

483
consideration while assigning him/her works. Health is of

paramount importance and under no circumstances a prisoner

can be forced to do work that is not permitted by his/her health.

9.2.14 Preventive Detention

After the commencement of the Constitution, the liberty of

a citizen of India has to be zealously guarded and preserved.

Article 210f the Constitution enjoins 'no person shall be

deprived of his life or personal liberty except according to

procedure established by law. Once a person is arrested and

detained the executive has to justify its action in the sense that

the detention is either for violation of some law or for preventive

purpose: as prescribed by law. In both the cases, the

justification for detention has to be only under the authority of

law. It is an established principle that before a person is

deprived of his liberty the procedure established by law must be

strictly followed and must not be departed from to the

disadvantage of the person affected. Preventive detention

differs from imprisonment on conviction or during investigation

of the crime of an accused which permits separate classification

484
of the detainees under preventive detention. Preventive

detention is to prevent breach of law while imprisonment or

conviction or during investigation subsequent to the

commission of the crime. The executive derives its authority to

resort to preventive detention from specific legislations like

National Security Act specifically designed with an object like 'to

cope with situations of communal disharmony, social tensions,

extremist activities, industrial unrest and increasing tendency

on the part of various interested parties to engineer agitations

on different issues. It is imperative to follow the law

meticulously while resorting to preventive detention. The

executive cannot exercise such powers unless the same is

clearly and expressedly stipulated in the respective legislation.

Further, it is very important to facilitate review of the order of

detention. The detainee should be provided with all relevant

information so as to enable him/her to prepare an effective

representation against his/her detention. And such

representation should be processed and considered

expeditiously. While a detainee is under preventive detention

he/ she is entitled to all rights corresponding to his/her human

485
 dignity.

9.3 Custodial Death

9.3.1 Worst kind of crime in a civilized society.-

Death in police custody is one of the worst kind of

crimes in a civilized society, governed by the rule of law

and poses a serious threat to an orderly civilised society.

Torture n custody flouts the basic rights of the citizens

and is an affront to human dignity.' In Bhajan Kaurv. Delhi

Administration through the Lt. Governor the Delhi High

Court while determining the scope and width of Article

21 37 of the constitution held as follows:

"Personal liberty is fundamental to the functioning of our

democracy. The lofty purpose of Article 21 of the

Constitution would be defeated if, the State does not take

adequate measures for securing compliance with the

same. The State has to control and curb the mala fide

propensities of those who threaten life and liberty of

others. It must shape the society so that the life and

37 Supra note I, p 161

486
liberty of an individual is safe and is given supreme

importance and value. It is for the State to ensure that

persons live and behave like and are treated as human

beings. Article 21 of the Constitution is a great landmark

of human liberty and it should serve its purpose of

ensuring the human dignity, human survival and human

development. The State must strive to give a new vision

and peaceful future to its people where they can co-

operate, co-ordinate and co-exist with each other so that

full protection of Article 21 of the Constitution is ensured

and realised. Article 21 is not a 'mere platitude or dead

letter lying dormant. decomposed, dissipated and inert. It

Is rather a pulsating reality throbbing with life and spirit of

liberty, and it must be made to reach out to every

Individual within the country. It is the duty and obligation

of the State to enforce law and order and to maintain

public order so that the fruits of democracy can be

enjoyed by all sections of the society irrespective of their

religion, caste, creed, colour, region and language. Article

21 of the Constitution is an instrument and a device to

487
attain the goal of freedom of an individual from

deprivation and oppression and its violation cannot and

must not be tolerated or condoned. Preamble to the

Constitution clearly indicates that justice, liberty and

equality must be secured to all citizens. Besides, it

mandates the State to promote fraternity among the

people, ensuring the dignity of the individual and the unity

and integrity of the nation. Article 38 of the Constitution

also requires the State to promote welfare of the people

by securing and protecting, as effectively as it may, a

social order in which justice social, economic and political,

shall inform all institutions of the national life. These are

the goals set by the Constitution, and Article 21 and other

fundamental rights are the means by which those goals

are to be attained. Therefore, it becomes the

responsibility and avowed duty of the State to adopt

means and methods in order to realise the cherished

aims ..... The conduct of any person or groups of persons

has to be controlled by the State for the lofty purpose

enshrined in Article 21 of the Constitution"

488
 In Nilabati Behera v. State of Onssa. 38 , the Supreme Court

observed that it is axiomatic 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 procedure established by law,

while the citizen is in its custody, whether he be a

suspect. Under trial or convict. 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. The defence of "sovereign immunity"

)8 (1993) 2 see 746

489
In such cases is not available to the State. Therefore

award of compensation would be a remedy available in a

proceeding under Article 32 or Article 226 of the

Constitution of India based on a strict liability or violation

of fundamental rights.

A person in jail does not lose his fundamental rights

under Article 21 of the Constitution which requires a

person to be treated with dignity. It seems that

most of the jails in our country are jungles where the

security people often behave like animals in mal-treating

the prisoners. It is the prime' duty of the Jail authority being

custodian to provide security and safety to the life of prisoners

while in jail custody, even though he is a criminal or an accused

in a criminal case.

9.3.2 Death In police custody-Entitled for monetary

compensation under articles 32 and 226 of the

Constitution of India.-

490
 In Nilabati Behera (Smt) alias Lalita Behera v. State of Orissa 39

It was pointed out by the Apex Court as under:

"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 right. 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

}9 Ibid
491
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."

It was further observed:

"Adverting to the grant of 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 tortuous act of the State as that

remedy in private law indeed is available to the aggrieved party.

The citizen complaining of the infringement of the indefeasible

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 stems from 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."

492
 In O.K. Basu v. State of West BengarO, it· has been held

by the Apex Court that compensation can be granted under the

public law by the Supreme Court and the High Courts in

addition to private law remedy for tortuous action and

punishment to wrong doers under criminal law for established

breach of fundamental rights.

In Bhim Singh vs. State of Jammu and Kashmir41 , an MLA

was arrested and illegally detained by the police. The Court

after due examination of all the facts ordered for payment of Rs.

50,0001- as compensation. The Court referred to Rudal Shah 42

and Sebastin M Hongray vs. UOl43 cases and observed:

"However the two police officers, the one who arrested

him and the one who obtained the orders of remand, are but

minions in the lower rungs of the ladder. We do not have the

slightest doubt that the responsibility lies else where and with

the higher echelons of the Government of Jammu and Kashmir

but it is not possible to say precisely where and with whom, on

the material now before us. We have no doubt that the

40 AIR 1997 se 3017

41 (1985) 4 see 677
" (1983) 4 see 141
43 (1984) 3 see 82

493
 Constitutional rights of Mr. Bhim Singh were violated with

impunity. Since he is now not in detention, there is no need to

make any order to set him at liberty, but suitably and

adequately compensated, he must be. That we have the right to

award monetary compensation by way of exemplary costs or

otherwise is now established by the decisions of this Court in

Rudal Shah vs. State of Bihar44 , and Sebastian M. Hongary vs.

Union of India 45 . When a person comes to us with the complaint

that he has been arrested and imprisoned with mischievous or

malicious intent and that him constitutional and legal rights

were invaded, the mischief or malice and the invasion may not

be washed away or wished away by his being set free. In

appropriate cases we have the jurisdiction to compensate the

victim by awarding suitable monetary compensation. We

consider this an appropriate case. We direct the first

respondent , the State of Jammu and Kashmir to pay to Mr.

Bhim singh a sum of Rs. 50,000/- within two months from

today. The amount will be deposited with the Registrar of this

court and paid to Mr. Bhim Singh."

44 Supra note 42
-15 Supra note 43
494
 In case of PUDR vs. Police Commissioner46 , Delhi police

head Quarters and another, is a case of laborers who were

forced to work in police station without any wages. When the

labourers demanded the wages they were beaten up and the

women labourer's were stripeed of their clothes and thrashes in

the police station. In this atrocity one labourer by name Rama

Swarup succumbed to the injuries. On these facts the Supreme

Court ordered for payment of Rs. 50,0001- to the dependents of

the deceased and the women whose clothes were stripped off

was awarded Rs. 5,0001- as compensation. Eight other

labourers who were forced to work were paid Rs. 25 per day as

wages.

In, a similar case of Saheli vs. Commissioner of Police47 ,

Delhi police Head Quarters and others, the police raided the

house of one Mrs. Kamalesh Kumari . The victim was staying in

a house with her three children wage 13, 9 and 7 years. The

land lord of that house took the help of police to forcibly evict

them from the house. During the police raid the police trampled

46 (\989) 4 sec 730

" (1990) 1 see 422
495
 upon the nine years child of Kamalesh Kumari resulting in the

death of the child. On these facts the Supreme Court ordered

for payment of Rs. 75,0001- as compensation to the mother of

the deceased child.

In both above mentioned case the similar fact was that

the Supreme Court ordered to recover the amount of

compensation from the concerned police officers.

In charanjit Kaur vs. Union of India 48 , The court awarded

Rs. 6 lakhs compensation to the wife of an army officer who

died due to the negligence of anry authorities.

9.3.3 Immunity of State In cases of custodial deaths.

Barring the functions such as administration of justice.

Maintenance of law and order and repression of crimes. etc.,

which are among the primary and inalienable functions of a

constitutional Government the State cannot claim any immunity.

"(1994)ACJ 499
496
 9.3.4 Police atrocities and compensation by Apex Court.

For a long time after independence the Courts in India

continued to give primacy to the doctrine of "sovereign

functions" and rarely granted relief in petitions filed against the

State for vicarious liability for excesses. The turning point came

in 1978 in Maneka

Gandhi's case.' when the Supreme Court held that any State

action affecting life and liberty of the people assured under

Article 21 of the Constitution has to be "right, just and fair and

not arbitrary fanciful and oppressive". Thereafter, there was

progressive judicial activism for protection of human rights.

In the first phase, the Supreme Court in Nandini Satpathi

v. P.L. Deni49 upheld the right of an accused to secure the

services of a lawyer of his choice at the time of police

interrogation. In first Sunil Batra case" putting bar-fetters on,

and handcuffing, of prisoners was regarded a kind of torture,

cruel or degrading treatment in terms of Article 5 of the

Universal Declaration of Human Rights and prescribed

procedural safeguards. In the second Sunil Batra's case." the

49 (1978) 2 sec 424

497
 Supreme Court considered solitary confinement of prisoners as

a human perversity which should be avoided and issued

suitable guidelines. In Hussainara Khetoon's cases." the

Supreme Court made provision of legal aid at State cost

compulsory in cases of poor and indigent accused under trial in

criminal cases, for seeking bail and also for defence at the time

of trial.

As the impact of Supreme Court's decisions did not

produce the desired effect. In the second phase the Court

ordered the State to pay compensation for wrongful detention

excessive torture and custodial deaths. In Rudul Shah v. State

of Bihar. The petitioner was kept in jail for nearly 14 years after

his acquittal on the ground of insanity. The Supreme Court

ordered the petitioner's immediate release and directed the

State to pay him Rs. 35.000 as compensation for deprivation of

his liberty. In Gauri Shankar Sharma v. State of UP.50 two

police-men were sentenced by the Supreme Court for severely

beating a suspect for extracting a confessional statement. and

his deliberate torture on non-payment of bribe resulting in

50 (1994) 1 SCC92
498
 custodial death. Expressing their deep concern on custody

deaths the Court observed: "Deaths in police custody must be

seriously viewed for otherwise we will help take a stride in the

direction of police raj. " In Nilebeti Behera (Smt.) v. State of

Orissa 51 the Supreme Court while ordering compensation of Rs.

1.5 lakh by the State to the petitioner for custodial death of her

son aged 22 years. reiterated that compensation for

contravention of human rights and fundamental freedoms as

guaranteed in the Constitution is an acknowledged remedy for

enforcement and protection of such rights. In the third phase

the Supreme Court directed that besides recovering the

compensation amount from erring police officials. they should

also be prosecuted. In Arvinder Singh Bagga v. State of Up' 52

the Supreme Court ordered that compensation of Rs. 10.000

each to be paid to the lady and her husband be recovered from

the concerned police officers and the SHO, SI and the 10 be

prosecuted for illegal arrest causing humiliation and torture of

the petitioners in police station for no fault of theirs.

51 Supra note 39
5'
- 1995 slIpp(3)SCC 716
499
 Finding little improvement. in Khedat Mazdoor Chetna

Sangath v. State of M.p' 53 the Supreme Court directed the CBI

to impartially investigate and prosecute officers however high or

low for torturing and handcuffing innocent tribals. In Inder Singh

v. State of Punjab 54 . While deciding a habeas corpus petition

against alleged abduction of seven persons by senior police

officers and sundry policemen the Supreme Court directed

Director of CBI to personally conduct inquiry In the case. On

January 18. 1996 (Times of India. January 19. 1996). the

Supreme Court sentenced a senior Haryana I.P.S. Officer to

imprisonment for 18 months for perjury and Contempt of Court

in a case of illegal detention and abduction of two children from

Agra in 1992. Again on May 9.1996 (Times of India. May10.

1996). the Supreme Court on the report of CBI.

sentenced another senior I.P.S. officer of Assam to three

months' imprisonment for "covering up" unnatural death

of an under trial prisoner three years ago Then on May

13. 1996 (Times of India. May 14. 1996). again acting on

the C.B.1. report the Supreme Court ordered the State of

53 (1994) 6 see 260
54 AIR 1963 Punj 158
500
Punjab to pay Rupees 10 lakhs as compensation to the

parents for abduction and murder of an Advocate his

wife and two years' old child and falsely implicating an

innocent person and also pay Rs. 2 lakhs to the latter as

compensation for the suffering caused to him due to

false Implication and remaining in jail since 1993.

In spite of severe strictures passed fines imposed

and imprisonment ordered by the Supreme Court on

police personnel for violation of human rights there Is no

abatement in reports about illegal detention of innocent

people at police stations harassment of complainants by

non-registration of FIRs. extortions of bribe and

indiscriminate use of third degree methods· during

interrogation of suspects leading to custody deaths.

9.3.5 Monetary compensation for Infringement of

fundamental rights.

The importance of affirmed rights of every human

being needs no emphasis and therefore to deter

breaches thereof becomes a sacred duty of the Court as

501
 the custodian and protector of the fundamental and the

basic human rights of the citizens Custodial violence

including torture and death in the lock-ups strikes a blow

at the Rule of Law.55 which demands that the powers of

the executive should not only be derived from law but

also that the same should be limited by law. Custodial

violence is a matter of concern. It is aggravated by the

fact that it is committed by persons who are supposed to

be the protectors of the citizens. It is committed under

the shield of uniform and authority in the four walls of a

police station or lock-up the victim being totally helpless

the protection of an individual from torture and abuse by

the police and other law enforcing officers is a matter of

deep concern in a free society. The award of

compensation in the public law administration is without

prejudice to any other action like civil suit for damages

which is lawfully available to the victim or the heirs of the

deceased victim for the tortious acts committed by the

functionaries of the State.

55 Supra note I
502
9.3.6 Death In police custody and compensation.

In Herbens Kaur v. Union of India, that was a case

where one person was called to the Police Station

through the constable and thereafter. his where about

was not known. A habeas corpus petition was filed and

the claim for compensation was made and the Supreme

Court directed an enquiry to find out whether the

petitioner was mercilessly beaten in police custody which

ultimately led to his death.

9.3.7 Death In police custody-

Manipulation of Police Records deprecated.-

On a critical appreciation of the testimony available on

record, the High Court held- "the conclusion is irresistible

that the truth has been attempted to be obliterated In

such a manner so as to screen the real offender or

create doubt about the persons put In the dock as

accused and, therefore, challan of the accused was

eyewash for the general public".

503
 The High Court made a strong observation In this

regard and directed the record of the police station to be

thoroughly examined by holding a part-mental enquiry so

as to bring to book such of the police personnel who may

be found guilty of misconduct or negligence or dereliction

of duty resulting into the death of the deceased while he

was in the custody of the police.

9.3.8 Torture and death in other departments apart

from police-liable compensation.

Apart from the police there are several other

governmental authorities also like Directorate of

Revenue Intelligence, Directorate of Enforcement,

Coastal Guard, Central Reserve Police Force (C.R.P.F.)

Border security Force (B.S. F.), the Central Industrial

Security Force (C.I.S.F.) the State armed Police

Intelligence Agencies like the Intelligence Bureau.

R.A.W., Central bureau of Investigation (C.B.I.), C.I.D.

Traffic Police, Mounted Police and I.T.B.P., which have

the power to detain a person and to interrogate him in

504
connection with the investigation of economic offences,

offences under the Essential commodities Act, Excise

and Customs Act. Foreign Exchange Regulation Act, etc.

there are instances of torture and death in custody of

these authorities as well. In sawinder Singh Grover,

Death of. In reo the Supreme Court took suo- motu notice

of the death of Sawinder Singh Grover during his

custody with the Directorate of Enforcement. After

getting an enquiry conducted by the Additional district

Judge, which disclosed a pnma facie case for

Investigation and prosecution, the Supreme Court

directed the C.B.1. to lodge a F.I.R. and initiate criminal

proceedings against all persons named in the report of

the Additional district Judge and proceed against them.

The Union of India/Directorate of Enforcement was also

directed to pay sum of Rs. 2 lacs to the widow of the

deceased by way of ex gratia payment at the Interim

stage. Amendment of the relevant provisions of law to

protect the Interest of arrested persons In such cases

too is a genuine need.

505
9.3.9 Grant of Anticipatory Bail to Police Officer

responsible for custodial death.

The statements of the eye-witnesses clearly implicated

the petitioner and some of his associates for their involvement

in the confinement torture and murder of the deceased and

ultimately in the disposal of his dead body.

It is true that the petitioner is a responsible police officer a

member of Indian Police Service and hence he may not

abscond but on this ground alone his prayer for anticipatory bail

cannot be allowed. At this stage in an application for

anticipatory bail the Court cannot rule out the possibility that

perhaps it was this position of the petitioner as the highest

police officer of the district that gave him the opportunity to

manipulate things so that no FIR could be registered within a

reasonable time. The Court further found that neither the dead

body of the deceased nor the concerned General Diaries of the

Police Station could yet be recovered and. therefore. It may not

be proper to grant anticipatory bail to the petitioner as his

release on bail may prevent the police from recovering the

aforesaid General Diaries as well as the dead body of the

506
 deceased. There are also other allegations that the petitioner

interfered with investigation 56

9.3.10 Compliance of non-bail able warrant against police

personnel in case of custodial death.

The perusal of the case diary disclosed that there were

prima facie materials in the form of circumstantial evidence to

enable the Magistrate to take cognizance of the offences as

against the petitioners and issue the non- bailable warrant. The

murky feature which the Court could see In the case. Is that

during the course of investigation there was no attempt by the

respondent-police to arrest the petitioners. Even after the

issuance of non-bailable warrant no genuine attempts were

made by the respondent-police to arrest the petitioners

probably because the respondent would have thought that the

petitioners need not be arrested as they belong to police force.

The respondent-police have given scant respect to the orders

of the Magistrate Issuing non-bailable warrant against the

'" Justice Sujata Manohar, "Human Rights Protection: CUITent Challenges", XXII Delhi Law Review
(2000) 15-20 at 16.

507
 police force for the best reasons known to them. If this Is the

attitude of the police, then there would be a situation where the

public would lose confidence In the police force. The Tamil

Nadu Police force is known for Its Integrity, courage and

efficiency. But, In the Instant case the recalcitrant attitude

shown by the police by not taking effective steps to arrest the

petitioners from 1992 to 1995 pending Investigation and from

1995 till date after issuance of warrant has caused considerable

concern in the mind of the Court Therefore, while dismissing

the application for anticipatory ball, as the petitioners were not

entitled to, the Court directed the Director General of Police to

take Immediate steps to execute the warrant Issued by the

learned Magistrate.

9.4 Custodial death and compensation.

There are a series of cases relating to custodial

deaths, Illegal detention, suicide, rape and medical

negligence in which the Apex Court and various High

Courts have awarded compensation.

508
 >- Judgment 1: Custodial death of Kewal Singh 57

The Punjab and Haryana High Court took suo motu action

based on report of the Times of India on 22 April 2007 about the

custodial death of Mr. Kewal Singh on 20 April 2007.

The deceased Kewal Singh alias Gola (son of Buta

Singh) of Bukkanwala villagein Ferozepur district of Punjab was

facing trial in case FIR No. 27 dated 5 April 2007 registered at

Police Station Sadar, Moga under Sections 382,506,148, 149

Indian Penal Code (I PC). He was also arrested on FIR No. 34

dated 12.4.2007 registered at Police Station Sadar, Moga

under Sections 307,324,323,382,341 and 506 IPC read with

Section 34 IPC. He was first arrested by the police on 14 April

2007. He was produced in the Court on 15 April 2007 and was

remanded to police custody. On 16 April 2007, he was again

produced before the II/aqa (area) Magistrate and he was

remanded to judicial custody. In judicial custody he was

detained in Sub Jail, Moga. On 20 April 2007 he was

transferred to the Central Jail, Ferozepur on administrative

57 Supra note I J, P 567

509
grounds. In the evening of 20 April 2007, Kewal Singh died in

custody.

He was allegedly beaten with sticks and iron rods by

Head Warden Major Singh, Warden Baldev Singh and Chakkar

Havaldar Shinder Singh. The post mortem report revealed 13

injuries on his body. Jail officials claim that the Kewal was taken

from his cell to take a bath. Kewal became violent and ran

towards the prison wards where he began jumping from one

wall to another. In the process he injured his hand. His

condition deteriorated and he was declared dead on arrival at

the Civil Hospital, Ferozepur. The inquiry by the Additional

Sessions Judge stated:

"But as per post-mortem report at page 93 there are 13 injuries

mark on the body of Kewal Singh. The nature of injuries raises

many questions. Even if his hand had got injured due to glass

on the wall, there is no explanation for the injuries on the body

of Sh. Kewal Singh specially head, back and lower part of back.

It appears that excessive force was used and he was given a

severe beating by the jail staff The Superintendent of Jail both

Moga and Ferozepur has not shown any justification for shifting
510
the prisoner Kewal Singh. The Superintendent, Central Jail,

Ferozepur, did not even bother to get the medical examination

of Sh.Kewal Singh done before admitting him in the Ferozepur

Jaif'.

On 15 February 2008, the Division Bench of Chief Justice

Vijender Jain and Justice Kanwaljit Singh of the Punjab and

Haryana High Court (Court on its own Motion Vs. State of

Punjab) directed the State Government of Punjab to pay

compensation of Rs 10 lakh to the next of kin. The Court

observed that: "The instrumentalities of State, and the jail

authorities, who are responsible to provide adequate facilities

for the persons cannot deprive a person of his life. Nothing can

be more serious than custodial death of an inmate in a jail. The

whole concept of human rights, life and liberty will be put to

naught if this Court does not come down heavily on the State

and its officers for taking out the life of an under-trial without the

authority of law."

511
 ~ Judgement 2: Custodial death of Natarajan Chettiar

Rajammal Vs. State of Tamil Nadu58

On 5 February 2007, two-Judge Bench of the Madras

High Court admitted the writ appeal petition (Writ Appeal No.

1018 of 2006) filed by Rajammal, the widow of a custodial

death victim, for enhancement of compensation. The

appellant's husband Natarajan Chettiar died in the custody of

Tiruvannamalai Police Station on 11 September 1993. He was

arrested in an alleged case of theft in Criminal Complaint No.

417 of 1993 for offences under Sections 457 (house trespass or

house breaking by night in order to commit offence) and 380

(theft in dwelling house etc) of the IPC.

In her Writ of Mandamus petition (W.P. No. 22366 of

1993), his widow, Ms Rajammal pleaded for appropriate action

against the perpetrator involved in Natarajan Chettiar's

custodial death and compensation of Rs. 5,00,000 (US$

12,500) In its order G.O.Ms. No. 741 Public (Law and Order-A)

Department dated 8 July 1996, the state government ordered

the initiation of a criminal prosecution against the accused

58 Writ Appeal No. j() 18 of 2006

512
 police officers, thereby admitting to the custodial death. But the

Single Judge directed the state authorities to pay only Rs

3,00,000 (US$ 7,500) as compensation. Ms Rajammal

appealed for greater compensation on the grounds that she had

to look after her sons who were aged 23, 20 and 15 years and

daughters aged 22, 18 and 17 years at the time of death of her

husband. The two-Judge Bench ruled in her favour stating that

it was:

"appropriate to enhance the compensation ordered by the

learned single Judge from Rs. 300, 000 to Rs. 500, 000 as has

been prayed for by the petitioner in the writ petition. "

>- Judgement 3: Custodial death of Rajmohan the

Government of Tamil Nadu and Ors. Vs. R. Dhanalakshm;59

In the case of the Government of Tamil Nadu and Ors.

Vs. R. Dhanalakshmi (Writ Appeal No. 1169 of 2004 and

WAMP No. 2198 of 2004) on 11 April 2007 a two-Judge Bench

of the Madras High Court held that 'justice would be met" by

awarding compensation of Rs 5,00,000 (US$ 12,5000) to the

59 Writ Appeal No. 11690/200'; and WAMP No. 2198 o/JOO';

513
family of Mr Rajmohan who had died as a result of torture in

police custody. The State government of Tamil Nadu

challenged the order of the Single Judge of the Madras High

Court 29 October 2003 (W.P. No. 13577 of 1996) which

directed the state government of Tamil Nadu to pay Rs

9,00,000 (US$ 22,500) to the petitioner Ms R. Dhanaakshmi

(husband of Rajmohan). The government did not dispute the

custodial death and even awarded Rs 100,000 (US$ 2,500) to

the deceased's family from the Chief Minister's Relief Fund as

compensation.

Ms R. Dhanaakshmi filed a Writ of Mandamus stating that on

23 March 1995 at about 05.00 hours, her husband Rajmohan

was taken into police custody by Mr R. Eswaran, Sub Inspector

of Police of Karur Police Station, from his house at Veeramalai

Palayam, Kaniyalampatti Post, Chinthamanipatti. He was

tortured to death by the Sub Inspector of Police, Karur Police

Station. The post-mortem report issued by the Medical Officer,

Government Hospital, Karur, revealed that the victim died of

Neurogenic shock due to the pain caused by injuries to his

chest 10-14 hours prior to autopsy.

514
 The writ petitioner stated that the deceased was about 29

years old when he died. He ran a successful business which

earned Rs 6,000 per month after deducting all expenses. The

deceased was the only wage earner and had left behind two

children and his wife. But the two-Judge bench contended that:

"except mere statement in the affidavit that her husband was a

fleet owner, operating a lorry, she has not furnished or enclosed

the required materials such as registration certificate of the lorry

or lorries, model, make, details regarding payment of income

tax, information regarding continuance of lorry business"

The Bench then reduced compensation from Rs 9, 00,000

to Rs 5,00,000 stating that this was enough to provide "justice"

to the deceased's family.

y Judgement 4: Custodial death of Rasiklal Jaiswal

(Premilaben R. Jaishwal and

Drs. Vs. Respondent: 8.M. Jadeja and Ors 60

On 3 May 2007, the High Court of Gujarat in the case of

Premilaben R. Jaishwal and Ors. Vs. Respondent: B.M. Jadeja

60 Spl. Cri. Appln. No. 328 of 1998

515
and Ors (Spl. Cri. Appln. No. 328 of 1998) ordered the state

government of Gujarat to provide interim compensation of Rs.

40,000 (US$ 1,000) each to the petitioners. The court ruled that

the compensation should be recovered from the guilty police

personnel "Considering the loss, shock and suffering and the

delay". The Court also ordered for an investigation into the case

by "an independent and competent police officer of a higher

rank".

The petition was filed pertaining to the custodial death of

the husband of the petitioner Premilaben, Rasiklal Jaiswal, who

was detained by the police at around 16.00 on 16 September

1994. The petitioner alleged that Rasiklal Jaiswal was tortured

at Makarpura Police Station in Vadodara. The police denied the

victim access to medical treatment despite suffering from a

number of medical conditions. The post mortem report revealed

several ante mortem minor injuries. But an inquiry by Assistant

Commissioner of Police, "A" Division, Vadodara City found that

the deceased had died of a "heart attack" and exonerated the

accused police officials. However, an inquiry by the Sub-

Divisional Magistrate under Section 176 of the Criminal

516
Procedure Code in its report (submitted on 4 August 1998)

found several disturbing facts.

As the court noted from the report of the Sub-Divisional

Magistrate:

"the time of arrest shown at the police station of 00. 15 hours on

17-9-1994 was wrong and the arrest appeared to have been

effected in the evening of 16-9-1994; that 27 accused persons

appeared to have been detained in a small room at the police

station; that the deceased was not produced before the Court

till the end of normal working hours of the Court, i.e. 18:10

hours, and thereafter at 19.10 hours, the deceased had

expired; that instruction of Police Commissioner, Vadodara not

to produce before the Magistrate the detainees within 24 hours

of their arrest was exactly against the settled position of law

and non-production before the Magistrate of the deceased for

19 hours indicated negligence on the part of the police; that the

deceased appeared to have been unwell since the time of his

arrest; that the allegations of beating of the deceased by the

police were substantiated by the ante mortem injuries found on

the body of the deceased; that despite the complaints of the

517
deceased, the police had failed to make any attempt at

providing proper medical aid to the deceased; that even the

requests of the deceased to call for necessary medicines from

his house or call a doctor were not heeded; that the police

officers and personnel concerned were required to be

proceeded against; that the post mortem examination was also

not properly and expeditiously done and there was obvious

negligence of the authorities of the medical college in

preparation and signing of the post mortem report; that the post

mortem report revealed blockage of 70% in the coronary

arteries and the final cause of death was cardiac failure as a

result of pathology in coronary arteries. It is finally reported by

the Sub-Divisional Magistrate that, in the facts of the case, the

deceased appeared to have died due to congestion of 27

persons in a small room, the atmosphere of the police station,

the apprehension of being beaten by the police and the mental

stress caused by non-supply of water and medicines at the

proper time which precipitated the heart attack".

518
The High Court further observed that:

"The departmental enquiry and its conclusion appear to be an

eye-wash insofar as the version of the police officers concerned

appears to have been accepted in to without reference to the

statements of the eye witnesses who were examined at the

magisterial inquiry. "

The High Court stated:

"Rarely, in cases of police torture or custodial death is there

direct ocular evidence of the complicity of the police personnel

who alone could explain the circumstances in which a person in

their custody had died. Bound as they are by the ties of

brotherhood, it is not unknown that the police personnel prefer

to remain silent and more often than not even pervert the truth

to save their colleagues. Torture in custody flouts the basic

rights of the citizens recognised by the Indian Constitution and

is an affront to human dignity. Police excesses and

maltreatment of detainees/under trial prisoners or suspects

tarnishes the image of any civilized nation and encourages the

men in "khaki" to consider themselves to be above the law and

sometimes even to become a law unto themselves. Unless

519
 stern measures are taken to check the malady of the very fence

eating the crops', the foundations of the criminal justice delivery

system would be shaken and civilization itself would risk the

consequence of barbarism".

The High Court apart from awarding interim compensation

further ordered that:

"Since the State Police Complaints Authority required to be

constituted under the judgment of the Hon'ble Supreme Court in

Prakash Singh v. Union of India 61 is stated to have still not been

constituted, the original complaint of the petitioner addressed to

the Police Commissioner shall be registered as an FIR which,

he original complaint of the petitioner addressed to the Police

Commissioner shall be registered as an FIR which, in the

peculiar facts of requirement of investigation against the police

officers, one of whom is stated to have been promoted to the

rank of Police Inspector, shall be investigated by an

independent and competent police officer of a higher rank and

report of such investigation shall be submitted to the

61 (2006) 3 see (en) 417 : 2006 AIR sew 5233

520
 appropriate Court in accordance with law. It is clarified that the

above order to pay compensation is without prejudice to the

right of the petitioner to claim further compensation is

appropriate civil or criminal proceedings and the conclusions

drawn for awarding the interim compensation are restricted to

the consideration of violation of fundamental rights and shall not

influence the investigation".

y Judgement 5: III-treatment and torture of Mr K.S. Venkatesh

and his sister Ms Rukmini

On 19 April 2007, the Bangalore Division Bench of the

Karnataka High Court in the case of S. Srinidhi Vs. State by

K.G. Nagar Police Station and Anr (Writ Petition NO.3 of 2007)

stated:

"We are of the view that a sum of Rs. 50,000/- would be an

adequate amount of compensation payable by the State for the

illegal detention/torture on 7-1-2007 by the Police."

The petition relates to illegal detention and torture of Mr

K.S. Venkatesh and his sister Ms Rukmini, who were taken into

custody by the police of KG. Nagar Police Station in order to

521
force Mr Venkatesh to withdraw a complaint (P.C.R. No. 180 of

2007) he had submitted against Vishweshwara Teertha Swamiji

of Pejawara Mutt for an offence punishable under Sections 307

(attempt to murder), 326 (grievous hurt), 340 (wrongful

confinement) and 506 (criminal intimidation) read with Section

34 (common intention) of Indian Penal Code, 1860. They were

allegedly illegally detained from 4-6 January 2007. During this

detention it is alleged that they were tortured. They were then

released, but on 7 January 2007, the Assistant Commissioner

of Police re-detained them and in detention assaulted Mr

Venkatesh and his sister. On 23 January 2007, the police

produced Mr K.S. Venkatesh and Ms Rukmini as directed by

the Karnataka High Court and the Court released them. The

Court directed the Registrar Vigilance to hold an enquiry into

the allegation of illegal detention from 7 January 2007 and

torture from 4 January 2007. While the Registrar Vigilance

found that there was no torture or ill-treatment by the

respondent/Police to K.S. Venkatesh and Smt. Rukmini from 4-

6 January 2007 but found that they were tortured during the

second illegal detention. The Court while noted in its ruling:

522
 "Unfortunately, of late, on account of some officials in the Police

Department, the entire Police Department is getting a bad

name despite their good work. To arrest this bad name to the

Police Department and to see that the guilty are properly

punished, we deem it proper to direct the Director General of

Police to get hold of the entire records and conduct an

independent enquiry to decide the (sic) hold that the person

who is with regard to illegal detention/torture in the case on

hand. In the event of any finding in terms of this order, the

Director General of Police may proceed against such emng

official in accordance with law".

~ Judement 6: Custodial death of Phomlin Mawlieh (Shri

Dino DG Dympep and

Anr. Vs. State of Meghalaya and Drs (Civil Rule No. 130(SH)

of 1998)

On 2 September 1998, Phomlin Mawlieh (27), a resident

of Nangsohma village in West Khasi Hills district of Meghalaya

was handed over to the police of Mairang police station in

connection with theft. He was illegally detained and tortured

523
before transferal to the District Jail, Shillong on 4 September

1998. On 10 September 1998, the deceased was admitted to

the Civil Hospital, Shillong in a critical condition. He died on 11

September 1998 at the Civil Hospital. The jail authorities

claimed that he died of malaria. But the District and Sessions

Judge, Shillong, in his inquiry report stated that there had been

'foul play' on the part of the police and jail authority; that the

evidence adduced by the respondents was contradictory. He

concluded that the cause of death could not be attributed to

malaria. The Guwahati High Court did not "find any perversity in

the findings so recorded by the District & Sessions Judge,

Shillong". All witnesses for the prosecution supported the view

that injuries inflicted during detention caused the death. One of

the prosecution witness stated that at the time the victim was

taken in police custody, she saw the police personnel beating

him with sticks. The wife of the deceased stated that when she

bathed her husband, in preparation for his funeral rites, she

saw injuries on his face, chest, legs and hands. His shirt was

torn and bloodstained. On 29 June 2007, the Shillong Bench of

the Gauhati High Court in the case of Shri Dino DG Dympep

524
and Anr. Vs. State of Meghalaya and Ors (Civil Rule No.

130(SH) of 1998) pertaining to death of Phomlin Mawlieh due to

torture in police custody, stated that:

"Rarely in cases of police torture or custodial death, is direct

ocular evidence available of the complicity of the police

personnel, who alone can only explain the circumstances in

which a person in their custody had died. Bound as they are by

the ties of brotherhood, it is not unknown that police personnel

prefer to remain silent and more often than not even pervert the

truth to save their colleagues - and the present case is an apt

illustration - as to how one after the other police witnesses

feigned ignorance about the whole matter. "

The Court further added that:

"It is true that Section 106 of the Indian Evidence Act cannot be

used to shift the onus of proving the evidence from the

prosecution to the accused, but when there is satisfactory

evidence which fastens or conclusively fixes the liability for the

death of the inmates of the house present at the relevant time,

in the absence of any other explanation, the only possible

inference which can be drawn by this Court will be that all the
525
 accused inmates participated in the crime. If anyone of them

claims to the contrary then under Section 106, the burden of

proving that fact would be upon him since that is within his

special knowledge ".

The deceased at the time of death was 27 years old,

employed and survived by his wife and two young children. Yet,

the Court ordered the state government to pay only Rs

3,00,000 (US$ 7,500) which the Court stated "will meet the

ends of justice". The Court asked the state government to hold

an enquiry into the police personnel involved in the custodial

death of the deceased and further stated that:

"the amount of compensation paid to the petitioner No. 2 may

be realized by the State-respondents from the police personnel

found to be involved in thecustodial death of the deceased".

~ Judgement 7:Torture to death of Benudhar Daimar/2

Mr Benudhar Oaimary was arrested with three other persons

by a police team headed by Officer-in-Charge of Rowta Out

Post, Sub Inspector Manzoor Ahmed, from Gangumakha

" 2008 (I) (GLT338)

526
village under Udalgari police station in Darang district of Assam

on 20 December 2000. On 21 December 2000, the victim's

brother and others went to the police post to enquire after his

brother. The Officer-in-Charge stated that Benudhar and others

had been sent to jail custody. However on 22 December 2000,

the police handed over the body of Benudhar Daimary to the

family claiming that it was found near the railway track. The

autopsy report found 11 injuries on the body of Benudhar

Daimary inflicted prior to the death. The High Court vide order

dated 02 February 2001 directed the Superintendent of Police,

Darrang, Mangaldoi to appear before the court on 19 February

2001. He was instructed to explain why the police case has not

been registered despite the complaint dated 22 December 2000

pertaining to the custodial death of deceased Mr Daimary.

Following the hearing on 19 February the High Court passed an

order directing the District and Sessions Judge, Darrang,

Mangaldoi to conduct an enquiry. The inquiry found that

Benudhar Daimary, died in police custody as a result of

physical torture inflicted by the then Officer-in-Charge of Rowta

Out Post. On 19 December 2007, the Guahati High Court, in

527
the case of Khangra Oaimary Vs. State of Assam and Ors.,

ordered the state government of Assam to pay compensation of

Rs 3,00,000 (US$ 7,500) to the wife and child of custodial

death victim Benudhar Daimary. The court stated:

"it is open for the State respondents to recover the said amount

form the person responsible for the custodial torture and death

of Benuddhar Oaimary".

Judgement 8: Custodial death of Mr Pancharaju

On 20 December 2007, a two-Judge bench of the Madras

High Court dismissed the appeal petition (W.A. No. 1328 of

2001) filed by the State of Tamil Nadu against the order of the

Single Judge of the Madras High Court of 8 December 2000

(W.P.No.11231 of 1997) asking the state government to pay

Rs.2,00,000 (US$ 5,000) as compensation to Ms Pulliammal,

the writ petitioner for the death of her husband, Mr Pancharaju

in the custody of Central Jail, Madurai. On 9 October 1996, Mr

Pancharaju was arrested by the police under Section 4(1 )(a) of

Tamil Nadu Prohibition Act and Section 328 (poisoning) of the

Indian Penal Code. On 9 October 1996, the Court remanded

528
him to judicial custody for 15 days but the victim was illegally

detained at the Periyakulam Police Station overnight. During

detention the victim was tortured. On 10 October 1996, he was

transferred to Central Jail Madurai and almost immediately sent

to Rajaji General Hospital, Madurai in a serious condition. On 2

November 1996 at about 12.20 p.m, Ms Pulliammal received a

telegram from the jail authorities saying that her husband was

being transferred to Government Rajaji General Hospital,

Madurai. Another telegram arrived on the same day at 19.00

stating that the victim had died at the hospital. Later, she was

informed by Casualty Mortuary Card that her husband had

arrived already dead to the hospital at 08.35 on 2 November

1996.

The High Court held that:

"It is a fact not in dispute that the deceased Pancharaju was

arrested on 09.10.1996 by the police and produced before the

Judicial Magistrate, Periakulam for remand in Crime No.547 of

1996 for an alleged prohibition offence and was remanded for

15 days. However, he was taken to the Central Prison, Madurai

on 10.10.1996. At the time of admission into the Central Jail

529
itself, he was found unwell and hence, the Prison Medical

officer referred him to Government Rajaji General Hospital,

Madurai. The referral O.P. chit contains the following particulars

noted by the Medical Officer: "Unable to walk" ... "alleged to

have been assaulted by police people". The chit for

readmission in the jail hospital contains the following

particulars: "Treated as an in-patient in our jail hospital from

19.10.1996 to 30.10.1996." From 10.10.1996 to 19.10.1996

admittedly the deceased Pancharaju was given treatment in

Government Rajaji General Hospital, Madurai as an in-patient.

It is also obvious that he had not recovered at the time of his

discharge from Government Rajaji General Hospital, Madurai

on 19.10.1996. He was discharged with an observation that the

patient was "ambulant", meaning capable of being removed.

The same is obvious from a copy of the discharge summary

available in the typed-set of papers. Even after being removed

from the Government Rajaji General Hospital, Madurai to the

prison hospital, he was treated there as an in-patient. Whether

he was discharged on 30.10.1996 as inpatient of the jail

hospital? What type of treatment was given on 31.10.1996 and

530
01.11.1996 - the appellants/respondents have not explained.

No document is available in this regard. One undisputable fact

emerging from the above said materials is that prior to

30.10.1996 during which period Pancharaju is alleged to have

written letters to his wife and brother's son, he was taking

treatment as an in-patient either in Government Rajaji General

Hospital, Madurai or in the prison hospital. Therefore, it is quite

unnatural and improbable that Pancharaju would have written

those letters. "

The High Court "discounted" the contention raised by the

appellants that there was no custodial violence and that the

death was due to natural causes. The Court cited the following

facts:

"After getting Pancharaju remanded for 15 days on 09.10.1996,

he was not taken to the jail immediately. Throughout the night

on 09.10.1996 he was kept in the police station and was taken

to the Centrel Jail, Madurai only on 10.10.1996, that too, to be

admitted and sent to the Government Rajaji General Hospital,

Madurai for treatment immediately after admission in the prison.

Why the accused was kept in the police station for the whole
531
night when the Magistrate had not authorised police custody?

There is no answer forthcoming from the appellants. At the

same time, the submission made by the learned Counsel for

the respondent/writ petitioner in this regard, seems to have

substance in it. According to the respondent, the accused

(deceased Pancharaju) had been beaten up by the police and

he was found with injuries and hence, the officer in-charge of

the local sub-jail refused to admit him in the sub-jail when the

police took him to the sub-jail and demanded that he be

referred to the hospital and then brought to sub-jail with a

certificate of Medical Officer. But the police instead of doing it

kept the accused under their custody in the police station for

the whole night and in the morning took him straight away to

the central prison, Ma dura i. The said contention of the

respondent/writ petitioner seems to be quite probable in the

light of the fact that no sooner Pancharaju was admitted in the

central prison, Madurai, then he was referred to the

Government Rajaji General Hospital, Madurai where he was

admitted as inpatient on 10.10.1996 itself. As pointed out supra,

the referral O.P. chit itself makes it patent that the accused was
532
not able to walk and he alleged that he had been assaulted by

police. The same gives a clear picture that the accused had

been assaulted by police and the injuries caused to the internal

organs had led to his ultimate death".

The Court also rejected the post-mortem certificate, final

opinion of the doctors who conducted autopsy and the report of

the Revenue Divisional Officer that the deceased had

pulmonary tuberculosis and he died out of the said disease.

The Court observed:

"It is true that the medical officers have certified as contended

on behalf of the appellants. But the following facts will make the

opinion of the doctors and report of the Revenue Divisional

Officer questionable. Right from the date of admission in the

Central Jail, Pancharaju was given treatment as inpatient.

During the said period (10.10.1996 to 30.10.1996), the

respondent/writ petitioner was not informed. Only on 02.11.996

the jail authorities chose to send two successive telegrams -

one informing the writ petitioner that Pancharaju was being

taken to Government Rajaji General Hospital, Madurai as he

vomitted blood and the other informing her of the death of her
533
husband. It is obvious that Pancharaju was brought dead to the

Government Rajaji General Hospital, Madurai. Despite the fact

that writ petitioner had been informed by the telegram on

02.11.1996 itself and that the writ petitioner was present in the

hospital on 03.11.1996, Revenue Divisional Officer did not

conduct inquest till 05.11.1996. As such, autopsy was

conducted only on 06. 11. 1996 after allowing the dead body to

decompose.

While dismissing the appeal petition of the state authorities, the

Court stated:

"Further more, it is not disputed that the appellants are liable to

pay compensation if at all the death was the result of custodial

violence. Therefore, the finding of the learned Single Judge

regarding the fixation of liability to pay compensation for the

death of Pancharaju due to custodial violence cannot be

interfered with".

534
 > Judgement 9: Suicide of Pandian as a result of harassment
and torture

(Jayalakshmi Vs. The State of Tamil Nadu represented by its

Secretary, Public Department and Ors 63 and WP. No. 24160 of

2006)

The petitioner, Jayalakshmi filed the writ petition before

the Division Bench against the order of the single Judge dated

01 June 2006 W.P.No.24160 of 2006 who had dismissed the

petition pertaining to the death of her brother Pandian. Pandian,

(estimated around 18 years old) is alleged to have committed

suicide as a result of torture inflicted by the police. On 1 May

2006 at around 23.00 police personnel came to Pandian's

residence at New Merginpuram at Vyasarpadi, Tamilnadu. The

police were searching for Pandian in connection with a theft by

another person. The police said that Pandian would be

released once they had located the other person. The police

produced Pandian along with the said Saranraj before the

Metropolitan Magistrate on 04.05.2006, who remanded them to

judicial custody. On 19 May 2006, Pandian was released on

03 W.A. No. 1130 of2006

535
bail on condition that he should report to Inspector of Police,

Vyasarpadi Police Station, every day at 10:00. Pandian

complied with the bail condition but harassment and torture

continued.

A Sub-Inspector of Police tortured Pandian by inserting

lathi188 inside his anus. Other police personnel forced him to

have oral sex. The torture continued for about two weeks.

Unable to tolerate the ill-treatment Pandian bought kerosene

and went to the Police Station on 12 June 2006. He informed

the police that if they would not stop he would burn himself. The

police laughed at and told him that if he died, no one will be

bothered. Pandian poured kerosene and set fire to himself.

When Pandian was still taking treatment, the police at

least two times sought to compel him to sign blank confession

papers but were prevented by doctors. On 29 June 2006,

around 02.00 Pandian succumbed to burn injuries and died in

Kilpauk Government Medical College Hospital. His statement

recorded by the Metropolitan Magistrate, Pandian stated for the

past one month he was harassed by the police, that they had

threatened him with false charges and these actions forced his
536
suicide. Pending appeal, the High Court appointed the

Registrar (Vigilance), High Court, to conduct an enquiry. She

submitted her report dated 16 February 2007. As the Court

noted,

"The Commissioner appointed by the Court has found that the

entries relating to non-appearance of Pandian between

09.06.2006 to 11.06.2006 are unnatural and abnormal

comparing the G.D. Entries relating to 09.06.2006, 10.06.2006,

11.06.2006 and 12.06.2006 and therefore, the entries create

suspicious circumstances in the commission of suicide by the

deceased Pandian.

(i) The Commissioner found that Or. Megajabin, the Doctor who

first admitted the said Pandian in the hospital gave a copy of

the Accident Register marked as Document No. 18 and in the

document it is stated that the said deceased has burnt himself

by setting fire in P.3 Police Station at 8.30 AM, and in the said

document the Commissioner found the word "in" before P.3

police station was struck off and instead, the words, "near P.3

police station and near S.M. Road" were inserted.

537
The Court was "prima facie satisfied that excesses have been

committed by the respondents" and arrived at the conclusion

that "the suicide committed by Pandian was only in

consequence of the conduct of the accused police personnel".

On 10 July 2007, in the case of Jaya/akshmi Vs. The State of

Tamil Nadu represented by its Secretary, Public Department

and Ors, the High Court of 188. A weighted bamboo stick

Madras while partly allowing the writ appeal and writ petition

(WA No. 1130 of 2006 and WP. No. 24160 of 2006) directed

the state government of Tamil Nadu to provide a compensation

of Rs. 5,00,000 (US$ 12,500) to the petitioner which the State

Government is at liberty "to take appropriate steps to recover

the amount directed to be paid to the petitioner" from the

accused police officers. The Court also directed the State

government and the Commissioner of Police, Chennai to initiate

disciplinary action against the accused police personnel.

538
>- Judgement 10: Illegal detention and torture of S.

Krishnamoorthy and K.Palani

(Cr/. D.P. No. 8543 of 2006 and M.P. No. 1 of 2006, S.

Krishnamoorthy and K. Palani Vs. The State of Tamilnadu

and Drs)

Mr S. Krishnamoorthy and K. Palani were subjected to

illegal detention and torture. The petitioners were kept in judicial

detention for 90 days after they were framed for the murder of a

girl named Sujatha who was actually abducted but still alive. On

26 April 1997, the father of the girl, Sevugan (son of Karuppan)

lodged a complaint with Pattanam Police Station under

Ramanathapuram district stating that his daughter had been

abducted. On the basis of the complaint, Karmegam (son of

Karuppaiah) was arrested by the police. The police later

arrested the petitioners on the basis of the alleged confession

by Karmegam without proper investigation. The petitioners

were tortured to extract a confession. The case collapsed after

the girl re-appeared and stated she did not know the

petitioners. They filed a petition before the Madras High Court

under Section 482 of the Code of Criminal Procedure. On 20

539
November 2007, the court ruled that the petitioners - S.

Krishnamoorthy and K. Palani were "innocent" and they have

been "falsely implicated" in Sessions Case No. 117 of 2002 and

ordered the state government of Tamil Nadu to pay Rs.

1,00,000 (US$ 2,500) to each petitioner as compensation. The

Court also ordered:

"To entrust the investigation to an efficient Officer not below the

rank of Oeputy Superintendent of Police to investigate the

violation of Human Rights of the petitioners and others". "Of-

course, it is true that the Police are, no doubt, under a legal

duty and have legitimate right to arrest a criminal and to

interrogate him during the 189. (a) to declare that the

petitioners are innocent persons and they have been falsely

implicated in the Sessions Case No. 117 of 2002; (b) to direct

the respondents 1 & 2 to register the First Information Report

with regard to illegal confinement, torture, violation of human

rights and malicious prosecution meted out by the petitioners;

(c) to direct the fifth respondent to entrust the investigation to

an efficient Officer not below the rank of Deputy Superintendent

of Police under the direct supervision of Joint Director, Chennai

540
to investigate the alleged violation of human rights; (d) to direct

the first respondent to pay fair and adequate compensation to

the petitioners for having been falsely implicated them in

Sessions Case No. 117 of 2002; (e) to direct the first

respondent to pay reasonable amount to the affected victims;

and (f) to pass such other and further reliefs as the Court may

deem fit and proper in the circumstances of the present case.

"investigation of an offence but the law does not permit use of

third-degree methods or torture of accused in custody during

interrogation and investigation with a view to solve the crime.

End cannot justify the means. The interrogation and

investigation into a crime should be in true sense purposeful to

make the investigation effective. By torturing a person and

using third degree methods, the police would be accomplishing

behind the closed doors what the demands of our legal order

forbid. No society can permit it".

The Court further held that:

"in the instant case, as pointed out in many places the

Investigating Agency has simply acted only on the basis of

confession statements alleged to have been given by the prime

541
 accused as well as the first petitioner without probing into the

matter properly and thereby the Investigating Agency has done

a gargantuan mistake and consequently, the innocent

petitioners have faced unnecessary torture, troubles and

tribulations, and also prison life for a period of 90 days. Since

the Investigating Agency has done a stupendous mistake and

due to that the innocent petitioners have faced untold miseries,

definitely, the petitioners should adequately be compensated".

>- Judgement 11: Illegal detention and torture of Mohd Ayoub

Dar [Abdul Rehman Dar Vs. State and Orst4

Mohd Ayoub Dar (son of Shri Ab. Rehman Dar, petitioner)

was detained by members of the Rajputana Rifles from his

house on the charge of being involved in militant activities on

10 April 1990. The victim was illegally detained for 45 days. He

was released from custody after the intervention of the then

Governor of the State. The Superintendent of Police City South

Sri nagar and Superintendent of Police Criminal Investigation

Department indicated that Dhar was not involved In

f>4 2007(l)JKJ557
542
 subversive/militant activities. During his illegal detention he was

tortured. As a result he suffered psychological damage and

rendered unable to work.

However, the State awarded Rs 30,000 from the Chief

Minister's Relief Fund. However the court observed that this

payment would not be a substitute for requisite compensation

to which the petitioner's son was entitled for depriving him of his

fundamental rights. On 27 November 2006, the High Court of

Jammu and Kashmir ordered the state government of Jammu

and Kashmir to provide compensation of Rs 2,00,000 (US$

5,000) to Addul Rehman Dar within a one month for illegal

detention.

~ Judgement 12: Torture of Congress leader Prafull Thaker

On 14 July 2008, the Gujarat High Court directed the Deputy

Inspector General of Police Rajan Priyadarshi to pay Rs 8 lakh

as compensation to Congress leader, Prafull Thaker for injury

caused during an assault over 20 years ago. The victim had

complained to the then Chief Minister that the police were not

doing enough to stop liquor sales in Ahmedabad. Following the

543
 complaint, Rajan Priyadarsini (then OCP in the North Zone)

along with Inspector RJ Yadav, went to the victim's house and

beat him up. As a result, the victim lost his right eye and was

hospitalized for over a month. The victim lodged a criminal

complaint against Priyadarshini and Yadav in the Metropolitan

Court and filed a suit for compensation in the Civil and

Sessions Court in Ahmedabad. In July 2007, Judge OT Soni

directed the IPS officer to pay Rs 2 lakh with 9 per cent interest

within three months towards the compensation of damages.

However, the accused approached the High Court seeking a

stay on the payment. But, Justice KS Jhaveri of the High Court

asked the officers to deposit Rs 8 lakh with the registry within

three months.

~ Judgement 13: Extrajudicial killing of Thangjam Binoy

Singh

On 20 May 2008, the Imphal bench of Gawahati High Court

comprising Justice T Nandkumar Singh and Justice B 0

Agarwal ordered the Assam Rifles (AR) to pay Rs 3 lakh as

compensation for killing a youth identified as Thangjam Binoy

544
Singh after he was arrested from his house at Lamding

Khumanthem Leikai in Thoubal district of Manipur on the night

of 7 March 2004. According to the information received, a team

of 28 AR personnel went to the victim's house and arrested him

without warrant. AR personnel later killed him. The AR

personnel then claimed the victim had been killed In an

encounter at Thoubal Charangpat road near Kshetri Leikai

crossing.

The Gwahati High Court directed the Additional District

Judge of Manipur West to establish an enquiry. On 1 July 2007,

the Judge submitted her report to the High Court.

Subsequently, the Guwahati High Court directed the

respondents, the AR and the Centre, to pay compensation of

Rs 3 lakh within five months. 158. Top cop told to pay Rs 8L for

blinding a man, The Times of India, 16 July 2008 The Writ

Petition was filed at the initiative of the Human Rights Law

Network, Manipur.

545
,. Judgement 14: Rape of Elangbam Ongbi Ahanjaobi

On 12 August 2008, the Imphal bench of Guwahati High

Court directed the Army and the Central government to pay Rs

2 lakhs to a rape victim identified as Elangbam Ongbi

Ahanjaobi of Takyel Khongbal Khumanthem Leikai in Manipur

on 1 August 1996. The victim was raped by two havildars of the

2nd Mahar Regiment identified as Apparao Mariba Waghmare

and Vithal Domaji Kalane in front of her physically handicapped

son at her home during a army combing operation in the Takyel

area. The accused havildars, Apparao Mariba Waghmare and

Vithal Domaji Kalane were sentenced to 10 years' rigorous

imprisonment through a summary court martial on 5 June 1997.

However, no compensation was awarded to the victim. After the

conviction, Ahanjaobi submitted an application to the army

authorities seeking compensation of Rs 10 lakh. However, the

army turned down the request. The victim than filed a writ

appeal with the Imphal bench of Gawahati High Court on 28

April 2003 seeking compensation. The High Court initiated the

hearings on 2 May 2003.160 While delivering the judgement,

the Guwahati High Court observed that:

546
 "Oefiling the chasity of a woman by personnel of the Indian

army amounts to violation of the basic fundamental rights and

as such the Union of India is liable to pay compensation to the

victim. "

Accordingly, the Court directed the Union of India

represented by the Defence Secretary to the Government of

India, the General-officer-commanding (GOC), 57th Mountain

Division, the brigade commander, 44th Mount Brigade and

commanding officer, 2nd Mahar Regiment to pay compensation

of Rs. 200,000 to the victim within four months.

>- Judgement 15: Illegal detention of Rambahadur Chetri,

Oeependra Limbu and Tarabahadur Gurung

On 13 June 2008, a bench headed by Justice J

Chelamshwar and Anima Hazarika of the Guwahati High Court

directed the State Government of Meghalaya to pay

compensation of Rs 100,000 each to three persons identified

as Rambahadur Chetri, Deependra Limbu and Tarabahadur

Gurung who were illegally detained for over eight months. The

victims were arrested by Meghalaya Police from Langpih area

547
 159. HC orders AR to give Rs 3 lakh as compensation, The

Sentinel, 22 May 2008 Compensation for rape victim - Gauhati

High court orders Centre & army to pay Ahanjaobi Rs 2 lakh,

The Telegraph, 13 August 2008 HC orders compensation for

rape victim after 12 yrs, The Imphal Free Press, 13 August

2008 on 14 May 2004 for "residing in Meghalaya illegally". They

were not produced before court. Following their release the

victims moved the Guwahati High Court challenging their

detention. The High Court found the detention to be illegal and

violation of Article 21 of the Constitution of India (protection of

life and personal liberty

~ Judgement 16: Illegal detention of Keshav Kumar

On 25 February 2008, the Delhi High Court directed the

Delhi Police Commissioner to initiate departmental proceedings

against police officers for detaining the petitioner, Keshav

Kumar illegally and sending him to Tihar Jail. The Court also

asked the State to pay Rs 50,000 to Keshav Kumar as

compensation. In his order Justice Shiv Narayan Dhingra

criticised the Assistant Commissioner of Police (ACP) who was

548
 acting as Special Executive Magistrate (SEM) for not granting

bail to Mr Kumar. The order read, "He (ACP) is supposed to

apply his mind, which God has given him and not act blindly on

the report of his subordinates and juniors. "

The court further observed:

"Police cannot act as an agent of those who do unauthorised

construction and cannot be an accomplice of those who try to

swallow their neighbours rights. The proceedings initiated

against the petitioner reconfirm the league between the

criminals and the police and also shows that the life and liberty

of innocent persons is at stake at the hands of such police

officials. "

>- Judgement 17: Custodial death of Munder Singh

On 4 July 2008, Justice Kanwaljit Singh Ahluwalia of the

Punjab and Haryana Court in the case of Basant Singh Vs.

State of Punjab and Ors. Directed the State Government of

Punjab to pay a compensation of Rs 3 lakh to the legal heir of

Munder Singh who was killed in a fake encounter while in

judicial custody in 1991.

549
 The deceased's father Basant Singh had approached the

High Court for a CBI probe into the death of his son in police

custody and for adequate compensation. The petitioner had

contended that his son Munder Singh was falsely implicated in

two cases (FIR No. 125 dated 4-12-1990 and in FIR No. 27

dated 10-3- 1991). Both the cases were registered at Police

Station Jaito. Munder Singh was arrested and was sent to

Central Jail, Ferozepur on 4 June 1991. On 13 July 1991,

Munder Singh was taken out from the Central Jail, Ferozepur

for production in the Court at Bathinda. Thereafter his

whereabouts was not known. The petitioner had alleged that his

son was killed in a fake encounter while in judicial custody on

13 July 1991. Court asks Meghalaya to pay Langpih men for

illegal detention, The Assam Tribune, 16 June 2008, HC raps

cops for illegal detention, fines Rs 50,000, The Pioneer, 26

February 2008, In response to the petition, the State of Punjab

had filed an affidavit stating that a police party while returning

with Munder Singh after the recovery of a weapon was fired

upon by unidentified persons 13 July 1991. Munder Singh was

caught in the crossfire while trying to escape and died on the

550
spot. A police constable too was injured in the attack. The High

Court held that the State version on the death of Munder Singh

was 'not inspiring confidence'. In his order, Justice Ahluwalia

further observed that:

"After Munder Singh was taken from Central Jail, Ferozepore

and the court at Bathinda had remanded his custody to the

police, it was the duty of the police to secure his life. His

custody has been granted to the police under the orders of the

court. To say that he died in crossfire by some unknown

persons, especially when Munder Singh was involved in various

cases, which had overtones of terrorist crime, such version is to

be accepted with a pinch of salt". "It is ordered that Rs 3 lakh be

awarded as compensation to the legal heirs of deceased

Munder Singh. The amount shall be deposited in the court of

Chief Judicial Magistrate, Faridkot, within three months after the

receipt of the copy of the order."

However, Justice Ahluwalia rejected the petitioner's prayer for a

CBI probe into the death stating that CBI probe will be

meaningless after more than 15 years of the incident. Justice

Ahluwalia observed that:

551
 "Six years' delay and laches on the part of petitioner to

approach this Court and thirteen years thereafter to decide the

case, is a period during which, all documents, from which it

could be inferred whether the version set out by the police was

true or false, would have been destroyed. All incriminating

pieces of evidence, from which lead could have been taken, as

to how the occurrence took place, would have withered."

y Judgement 18: Custodial death of Natarajan Chettiar

On 5 February 2008, the Madras High Court in Appellants:

Rajammal Vs Respondent: State of Tamil Nadu, rep. by its

Secretary, Home Department and Ors (Writ Appeal No.1 018 of

2006) increased the amount of compensation from Rs 3 lakhs

to Rs 5 lakhs to the petitioner, Rajammal whose husband

Natarajan Chettiar died due to torture in police custody in 1993.

In September 1993, the petitioner's husband Natarajan

Chettiar, who dealt with buying and selling of artificial diamonds

and jewels on commission basis, was arrested and detained at

Tiruvannamalai police station on the charge of buying alleged

stolen jewels. The police allegedly demanded huge amount as

552
 bribe. The petitioner alleged that her husband was tortured to

death on 11 September 1993 and that the dead body was

thrown in Thachambattu Reserve Forest. She further submitted

that she is a poor widow having a large family insisting of three

daughters and three sons. The initial inquiry conducted by the

ROO of Tiruvannamalai, cleared the police of any foul play.

However, later, another enquiry conducted by another ROO of

Tiruvannamalai held the police department responsible for the

death of Mr Chettiar. The state government issued G.O.Ms. No.

741 Public (Law and Order-A) Department, dated 8.7.1996,

ordering to launch criminal prosecution against the accused

police officers. 55 The single Judge of the Madras High Court

has held that by virtue of the above G.O. it is clear that the state

government has accepted that the deceased had died due to

the torture by the police. The single Judge has ordered the

respondents to pay a sum of Rs. 3 lakhs as compensation to

the petitioner. The petitioner filed an appeal for enhancement of

65 Even though Preamble does not grant any power but it gives a direction and purpose to the
Constitution. It contains the fundamentals of the Constitution, and therefore the Supreme Court has many
a times referred to it while interpreting the Constitutional provisions. See e.g. Kesavananda [lharati v.
State of KeraJa, AIR 1973 S.C.1461, In Re Kerala Education Bill, 1957, AIR 1958 S.C.956

553
 the compensation amount. The double bench consisting of

Elipe Dharma Rao and S .R. Singharavelu of the Madras High

Court stated -

"It is now a well settled law that the award of compensation

against the State; is an appropriate and effective remedy for

redress of an established infringement of a fundamental right

under Article 21, by a public servant."

The double bench, considering the economic status and size of

the family, ordered the respondents to pay Rs 5 lakh to the

petitioner.

)- Judgement 19: Award of compensation to five appellants

by High Court of Punjab and Haryana

On 23 September 2010, the High Court of Punjab and

Haryana, in the case Appel/ants: Nachhattar Singh alias

Khanda and Ors Vs Respondent: State of Punjab, directed the

state government of Punjab to pay compensation of Rs 20

lakhs to each of the appellants namely Nachhattar Singh alias

Khanda, son of Bant Singh; Amarjit Singh, son of Kaula Singh;

Nikka Singh, son of Bawa Singh; Surjit Singh, son of Jang

554
Singh; and the legal heirs of Sira alias Jagsir Singh, son of

Nachhattar Singh (dead) for false prosecution, illegal detention

and torture for the last 13 years. The High Court also directed

the trial court to initiate prosecutions against the accused,

including two police officials who investigated the case that led

to the conviction of the appellants by the trial court in 1998. In

its judgement dated 18 July 1998, Additional Sessions Judge,

Barnala (the trial court) convicted Nachhattar Singh alias

Khanda, son of Bant Singh; Sira alias Jagsir Singh, son of

Nachhattar Singh; Amarjit Singh, son of Kaula Singh; Nikka

Singh, son of Bawa Singh; Surjit Singh, son of Jang Singh

under Sections 364/302, 148/149, 201 I ndian Penal Code

(IPC) and sentenced them to undergo rigorous imprisonment

(RI) for five years, RI for life, R.1. for one year and R.1. for five

years respectively. They were directed to pay a fine of Rs.

1,000/-each under Sections 302 and 201 IPC, in default to

undergo three months R.1. They were found guilty of murdering

Jagsir Singh, son of Sukhdev Singh, resident of Village

Tallewal. Jagsir Singh was in fact alive when the FIR under

Sections 364/201 IPC was filed against the appellants!

555
 They appealed in the High Court of Punjab and Haryana at

Chandigarh against the judgement of the trial court. The

counsel for the appellants argued in the High Court that they

were tortured in police custody and their blood was planted on

the murder weapons. The Appellants had been in custody for

five years and were The judgment of the High Court of Punjab

and Haryana at Chandigarh dated 23.09.2009 in Nachhattar

Singh alias Khanda and Ors Vs State of Punjab case released

on bail by the High Court on the basis of the law laid down in

Dharam Pal vs. State of Haryana 1999 (4) R.C.R. (Criminal)

600. Jagsir Singh son of Nachhattar Singh, one of the accused,

committed suicide after he was released on bail.

The High Court found that

"it is clear that false and fabricated evidence both oral and

documentary was created by Amar Singh PW2, Gurdev Singh

PW3, Mukhtiar Singh PW4, Kamail Singh PW5, Sukhdev Singh

PWl, Surjit Kaur PW8, Bikkar Singh PW9, AS! Darshan Singh

PW13, SI Sarabjit Rai PW14 and Jeet Singh son of Chuhar

Singh. Both Darshan Singh PW13 and Sarabjit Rai PW14

investigated the case with a bent of mind, to falsely implicate

556
the appellants. This was done for extraneous considerations.

Oarshan Singh OSP and Madan Gopal S.P., the supervisory

officers, also did not scrutinize the case diary and the

investigation in a professional manner."

The High Court concluded that perjury has been committed by

the complainant party and the Investigating Officers as they lied

before the trial Court to get a conviction.

'The High Court also found that FIR No. 171, dated 18.12.2008

under Sections 420,195,211,465,467,468,471 and 120B IPC

registered at Police Station Raikot had been "registered to save

the skin of a few private persons and police officials, especially

the investigating officers. Witnesses who gave false evidence

on oath have also been left out."

The High Court rejected FIR No. 171, dated 18.12.2008 and the

directed the authorities to reinvestigate the case based on a

new FIR. The High Court acquitted all the appellants of all

charges.

In its order the High Court stated:

"It is not only the private respondents, who are responsible for

falsely implicating the appellants, but a major part of the

557
responsibility falls on the shoulders of four police officials i.e.

the Investigating Officer Sarabjit Rai PW14, ASI Darshan Singh

PW13, Darshan Singh DSP and Madan Gopal SP. It is the

solemn and sovereign function of the State to prosecute

criminals but not the innocent. State is duty bound to do a fair

and truthful investigation and thereafter present the challan

before the competent Court. Such was the meticulous

falsehood presented before the trial Court that the trial Court

also believed the evidence which was brought before it. The

trial Court did not have any alternative but to convict the

appellants. "

The High Court ordered the state government of Punjab

to pay Rs. 20 lakhs each to all the appellants after taking into

consideration all the circumstances including five years rigorous

imprisonment, physical torture and the humiliation suffered. The

High Court also directed the trial court to initiate proceedings

under Section 340 of the Criminal Procedure Code against

Assistant Sub Inspector Darshan Singh, Sub Inspector Sarabjit

Rai, Amar Singh, Gurdev Singh, Mukhtiar Singh, Karnail Singh,

Sukhdev Singh, Surjit Kaur, Bikkar Singh; Jeet Singh, son of

558
 Chuhar Singh; Jagsir Singh, son of Sukhdev Singh; Balwinder

Singh alias Binder, son of Sukhdev Singh; Gurdev Kaur, wife of

Sukhdev Singh and Jagir Singh, son of Harnam Singh.

>- Judgement 20: Orissa High Court orders Rs 300,000

compensation to widow of custodial death victim

On 6 January 2009, a Division Bench comprising of

Justice B. P. Das and Justice R. N. Biswal of the High Court of

Orissa in the case of Aha/ya Pradhan Vs. State of Orissa and

Ors directed the state government of Orissa to pay

compensation of Rs. 300,0001- to the family of Bhalu alias

Pitambar Pradhan who died in police custody at Mahanga

Police Station in Cuttack district on 1 February 2003. On 30

January 2003, the victim, Pitambar Pradhan, a resident of

Bhakuda village was arrested In connection with theft

(Mahanga Police Station Case No.12 of 2003). He was

detained at the police lock-up. He was not produced before the

local Magistrate. On 1 February 2003, Pitambar Pradhan was

found hanging from the fan in the lock-up of Mahanga police

station. The police claimed he had committed suicide. Later, the

559
police officials forced Mrs Ahalya Pradhan, the victim's wife and

Sudhir Mishra, a Ward Member, to sign documents and blank

papers. The victim's body was transferred to Cuttack for post-

mortem. Mrs Ahalya Pradhan and residents of Bhakuda village

asked the police to hand over the body for cremation. But the

police refused and instead cremated it at the Khannagar

Crematorium without consent.

First Information Reports (FIRs), including by the victim's

wife, Mrs Ahalya Pradhan, were held in two police stations -

Balichandrapur and Mahanga Police Stations, but the police

failed to act.. Consequently, Mrs Ahalya Pradhan filed a Writ

Petition seeking compensation for the death of her husband.

On 10 May 2004, the High Court of Orissa appointed Justice C.

R. Pal, a retired judge, to investigate and submit a report. In his

investigation report Justice C. R. Pal concluded that it would not

have been possible for victim Pitambar Pradhan to commit

suicide had been guarded. Justice Pal found that the police had

violated the provisions of rules framed under the Police Act,

Orissa as the police had not provided a sentry to guard

Pitambar Pradhan. While hearing Mrs. Ahalya Pradhan's

560
petition, the two-judge bench of Justice B. P. Das and Justice

R. N. Biswal of the High Court Orissa said the failure of the

Judgment of High Court of Orissa dated 6 January 2009 in the

case of Ahalya Pradhan Vs. State of Orissa and Ors police to

prevent the deceased from committing suicide in police custody

had been clearly established in the report of the Judicial Inquiry

Commission.

The High Court of Orissa said:

"it is crystal clear that the death was as a result of negligence

on the part of the Officers concerned to provide proper watch,

which led to loss of a human life."

In its order, the High Court while directing the state government

of Orissa to pay compensation of Rs. 300,0001- to Mrs Ahalya

Pradhan ruled:

"The irresistible conclusion would be that the State Government

is vicariously liable to compensate the petitioner because the

victim has lost his life and the petitioner has lost her husband

as a result of negligent act of the concerned Police Officers.

Had they acted properly as per the provision of law and bit

561
 diligent in their duties, such untoward incident could not have

occurred".

>- Judgement 21: Madras High Court orders Rs 200,000

compensation to a widow of custodial death victim

On 14 March 2009, a Division Bench comprising Justice P.

K. Mishra and K. Chandru of the High Court of Madras in the

case of M. Kalithai Vs. State of Tamil Nadu rep. by its Secretary

(Home), The Col/ector, The Inspector General of Police and

The Inspector of Police (W.P. No. 11569 of 1999) directed the

state government of Tamil Nadu to pay compensation of Rs.

200,000/- to the family of Marisamy who died in police custody

at Sankarankoil police station on 16 September 1998.

The Writ Petition was filed by Mrs M. Kalithai (victim's wife)

of Nelkattumseval in Tiruneveli district seeking compensation of

Rs. 10,00,000. According to the First Information Report, on 16

September 1998 at about 6.30 am, Marisamy was arrested

along with two others, Ramar and Murugaiah by the Inspector

of Police, Vasudevanallur from Nelkattumseval. They were

brought to Sankarankoil police station at about 9.30 a.m.

562
Marisamy was detained in the lock-up of the police station while

the two others were kept in the Writer's room for interrogation.

At about 12 0' clock, the police claimed that Marisami tried to

commit suicide by hanging himself with a lungi from the window

of the toilet. The police rushed Marisami to a nursing home

where the doctor declared him dead.

The Revenue Divisional Officer (RDO), Tirunelveli conducted

an enquiry. In its enquiry report dated 12 March 1999, the RDO

stated that victim, Marisamy must Judgment of Madras High

Court dated 14 March 2009 in the case of M. Kalithai Vs. State

of Tamil Nadu rep. by its Secretary (Home), The Col/ector, The

Inspector General of Police and The Inspector of Police (W.P.

No. 11569 of 1999) have committed suicide after an argument

with his father. However, the RDO did not record the evidence

of the two others, Ramar and Murugaiah on the plea that they

were the relatives of the victim. Based on the post-mortem

report and the final medical opinion, the ROO concluded that

the death was as a result of suffocation and as a result of

hanging and not as a result of torture by the police. The RDO

enquiry report was submitted to the State government in

563
 1999. 66 The state government held Inspector Vijayaraghavan of

Vasudevanallur police station, who was In-Charge of

Sankarankoil police station, guilty of detaining Marisamy

without recording the arrest in the station register. The

government imposed punishments on the Inspector, a Sub-

Inspector and four constables for allowing Marisamy to have a

fungi and thereby facilitating suicide. However, the government

refused to pay the financial relief of Rs. 100,000/- as provided

under the Government Order (G.O.Ms. No.153, Public (Law

and Order-B) Department, dated 31.1.1998) on the plea that

the death was a suicide. As per the existing norms in G.O.Ms.

No. 153, Public (Law and Order-B) Department, dated

31.1.1998, financial relief of Rs. 100,000/- will be sanctioned by

the Government in respect of the following categories:

1. (a) Death in caste/communal clashes

(b) Death as a result of police torture

(c) Death as a result of police firing

(d) Rape by police.

"" Common Calise v Union of India (1996) 8 SCALE 127, 130.

564
 2. Permanent incapacitation In its order, the Division Bench

found that the arrest of Marisa my was not recorded which was

enough to hold that the authorities guilty of violating the

Constitution and the Supreme Court judgment in the D.K.Basu

case. with regard to compensation for human rights abuse.

The Bench while rejecting the ROO enquiry report said "On the

strength of the

dictum laid down by the Supreme Court, the report of the

Revenue Divisional

Officer deserves to be discarded ......... the illegal arrest of Late

Marisamy and

lack of care in savmg his life while m police custody are

sufficiently proved. "

>- Judgement 22: Award of Rs. 800,000 compensation by

Madras High Court to a widow of custodial death victim

On 19 January 2009, Justice K. Chandru of the High Court

of Madras directed the state government of Tamil Nadu to pay

compensation of Rs. 800,000/- to 198. Judgment of Madras

High Court dated 19 January 2009 in Writ Petition No.6195 of

565
2000 and Writ Petition No.9269 of 2000 petitioner Mrs.

Krishnammal, wife of Thiru Vincent, who was tortured to death

by police at Thalamuthu Nagar Police Station, Thoothukudi

District on 18 September 1999. The High Court also directed

the state government to take action against the guilty police

officials.

The Writ Petition (W.P.No.6195 of 2000 and

W.P.M.P.No.9269 of 2000) was filed by Mrs Krishnammal

seeking for investigation by Special Investigation Team into the

death of her husband, Thiru Vincent in police custody,

appropriate disciplinary action against the guilty police

personnel and grant of adequate compensation. On 17

September 1999, the victim Thiru Vincent, a Ward Member of

West Alangarathattu village panchayat, had gone to a local

temple to attend a festival. Thiru Vincent was arrested by the

police attached to Thalamuthu Nagar Police Station on the

same day. Mrs Krishnammal, wife of Thiru Vincent became

aware of the arrest on 18 September 1999. On the morning of

the same day (around 7 am), she went to the police station to

enquire about her husband. However, she found that Thiru

566
Vincent was chained by his leg and was not able to speak

properly. She also noticed injuries on his feet.. Mrs

Krishnammal begged the Sub- Inspector of Police not to torture

her husband. However, she was told that her husband would be

beaten to death and she should visit the police station in a

white saree the next day (meaning she will become a widow).

Later, she was driven away from the police station. On the

evening of 18 September 1999, Thiru Vincent was taken to the

Government General Hospital, Thoothukudi where the doctors

declared him dead on arrival. The police registered a First

Investigation Report (FIR) on 18 September 1999 (Crime

No.170 of 1999). On 4 October 1999, the Revenue Divisional

Officer (ROO) conducted an enquiry. The postmortem was

conducted by Dr. A. J. Balakrishna Rao and Dr. S. Vellai

Pandian. The postmortem report noted 38 injuries on the body.

They concluded that the death was as a result of the injuries

and breathing problems. The ROO in his enquiry report dated 9

April 2000, recommended action against all the police present

in atthe police station on 17 and 18 September 1999 for

causing the death of Thiru Vincent. The report was forwarded to

567
the state government. The state government agreed with the

report and passed a Government Order (G.O. Ms.No.1284,

Public (Law & Order) Department, dated 20.9.2000) directing

the ROO, Thoothukudi to begin criminal prosceedings against

10 police personnel. The victim's wife, Mrs Krishnammal

unsuccessfully requested copies of the documents. She also

sent a letter dated 29.9.1999 seeking proper action against the

accused and for adequate compensation. The High Court held

that the request for compensation was justified. The High Court

observed:

"It will be out of place to mention that the citizens of this country

cannot be left in the lurch without being granted relief in case of

their fundamental right being deprived at the instance of the

police personnel who are supposed to protect the person and

property of the Indian citizens. If such acts are found

uncontrolled by the State, the citizens of this country are not

helpless and the long arm of Article 226 vests power on this

court to order suitable compensation".

568
 The High Court further observed:

"The petitioner lost her only breadwinner by the gruesome act

committed by the policemen functioning under the control of the

third respondent. At the time of filing of the writ petition, she had

five minor children and she would have suffered to bring them

up in life".

>- Judgement 23: Gujarat High Court awards compensation to

widow of custodial death victim in Gujarat

In July 2009, the widow of a victim of custodial death was

granted Rs 200,000 by the state government of Gujarat at the

order of the Gujarat High Court 19 years after her husband who

died as a result of torture in Jamnagar district in Gujarat. In

1990, the Bharatiya Janata Party and the Vishwa Hindu

Parishad call a strike to protest the arrest of their leader L K

Advani. The administration imposed a curfew and the police

arrested 100 people who were subjected to custodial torture.

One of the arrested persons, Prabhudas Vaishnani died after

he was released on bail. Following mass protest against the

death of Vaishnani, the government appointed a commission of

569
enquiry under the chairmanship of Retired Principal Judge of

Small Causes Court, B B Desai. The government immediately

gave Rs 50,000 in compensation to the widow of the victim.

However, Vaishnani's widow moved a petition in the High Court

in 1994, demanding a compensation of Rs 5 lakh. In its report,

the Inquiry Commission of Retired Principal Judge of Small

Causes Court concluded that the police had abused their power

and subjected the people to torture.

The matter had been pending before the Court since then

because of the failure of the state government to file a reply.

When the government finally produced an order for the

payment of Rs 1.50 lakh to the petitioner the High Court

observed that the government has absolute liability to

compensate the victim of police abuse and cannot shift

responsibility onto the police.

570
~ Judgement 24: Compensation awarded by Orissa High

Court to aged parents of custodial death victim in Orissa

On 27 August 2009, the High Court of Orissa directed the

state government of Orissa to pay compensation of Rs. 3,000

per month to the parents of Krushna Chandra Behera who was

allegedly murdered by a fellow convict in Choudwar Circle jail in

August 2008. After hearing the writ petition filed by the mother

of the victim, the Bench of Acting Chief Justice I.M. Quddusi

and Justice Kumari Sanju Panda observed that the death of the

convict in custody was as a result of utter negligence of the jail

authorities and that 'The State government should pay

compensation.

~ Judgement 25: Interim compensation awarded to the father

of custodial death victim in Punjab

On 28 January 2009, the Punjab and Haryana High Court

directed the state government of Punjab to pay an interim

compensation of Rs 200,000 to Swaranjeet Singh after two

years of the death of his son in judicial custody. Following the

custodial death of his 25-year-old son Harinder Singh in

571
Amritsar Central Jail in October 2006, Swaranjeet Singh moved

a peitition in the court seeking an investigation by the Central

Bureau of Investigation (CBI). The petitioner alleged that his

son was tortured to death in Amritsar central jail. The petitioner

stated that his son was was in "good health and sound

physique" when he was produced before a magistrate on 26

October 2006 but the next day at 5.22 pm he was brought to

civil hospital and declared dead at 6.30 pm. In the postmortem

report external injuries on the body were found by the

Department of Forensic Medicine, Government Medical

College, Amritsar. The Punjab and Haryana High Court took

cognizance of a letter written to the Court by the victim's father

and an inquiry by the Sub Divisional Magistrate (SDM) of

Amritsar was ordered. On the bssis of the report of the SDM of

Amritsar, the High Court passed a detailed order directing

Senior Superintendent of Police (SSP) of Amritsar to register a

First Information Report (FIR) against the police and to

investigate. The SSP was also directed to file a status report

after three months from receiving the certified copy of the order.

Pursuant to the Court order an FIR dated 13 July 2007 was

572
 registered under Section 302 of the Indian Penal Code at Sadar

police station against the jail officials. But the Additional Chief

Judicial Magistrate returned the challan, with concerns over the

conduct of the investigating agency. The petitioner filed

contempt HC orders compensation to kin of custodial death

victim, Custodial Death - Compensation for kin; probe ordered,

The Tribune, 29 January 2009 petition stating that he was

"running from pillar to post for almost two years for justice, but

he has neither been given any monetary compensation, nor

proper investigation is being carried out." This resulted in the

interim order of Justice Surya Kant of the High Court to pay

interim compensation of Rs 200,000 to the petitioner.

~ Judgement 26: Allahabad High Court orders Rs. 500,000 to

family of custodial deathvictim

On 1 April 2009 the Allahabad High Court directed the State

Government of Uttar Pradesh to pay compensation of Rs.

5,00,000 to the wife and two daughters of the victim dS.K.

Awasthi who was beaten up and ill-treated at Naini Central by

the jail authorities during his detention from 22 April - 10 May

573
2008. The court also directed the State to recover the amount

of compensation from employees and officials of the Central

Jail, Naini and to expidite the disciplinary proceedings.

Pursuant to an order by a Division Bench of the Allahabad High

Court Advocate S.K. Awasthi was taken into custody and was

held in Central Jail, Naini on 22 April 2008 to serve a one

month imprisonment for contempt of court. On 10 May 2008

S.K. Awasthi was admitted to S.R.N. Hospital, Allahabad. His

legs were shackled while at the hospital. On 13 May 2008 S.K.

Awasthi died in the hospital.

On 13 May 2008 a Division Bench of the Allahabad High

Court passed an order requesting the District Judge to hold an

inquiry to find out- (a) as to under what circumstances the death

of S.K. Awasthi has been caused, (b) whether S.K. Awasthi

during his confinement in jail was manhandled or ill-treated

either by the jail authorities or by the jail mates, and (c) what

was the reason for shifting him to the hospital and keeping him

chained during medical treatment. On 23 June 2008 the District

Judge submitted a detail report. In his report the District Judge

concluded that-
574
1. The cause of death of Sri S.K. Awasthi was as a result of a

coma caused by an ante-mortem head injury. The head injury

was caused by external force and not as a result of any

disease.

2. Shri S.K. Awasthi was assaulted and ill-treated on 2.5.2008

in Circle NO.4 of the Central Jail, Naini by Bandi Rakchhak Sri

Chandra Shekher but he was not sent to the Jail Hospital either

for treatment or for medico legal examination on 2.5.2008.

Bandi Rakchhak Sri Chandra Shekhar concealed the incident of

assault and torture in his report prepared on the History Ticket.

3. Neither the Deputy Jailer Sri R.S. Yadav nor the Senior

Superintendent, Central Jail, Naini, Sri S.K. Sharma, required

physical production of Sri S.K. Awasthi on receiving the report

of Bandi Rakchhak Chandra Shekhar.

4. Sri S.K. Awasthi was assaulted and tortured in Circle No.1,

Barrack No.4, Cell No.6, during the period of his separate

confinement and this is where the head injury was inflicted on

any day after 8th or 9th May, 2008 or any time within two or

three days prior to his death. The jail authorities as also Jail

doctors attempted to conceal the injuries.

575
5. The Senior Superintendent, Central Jail, Naini, the Jailor, the

Deputy Jailer Sri Shivji Singh Yadav, and other jail employees

posted in Barrack NO.4 of Circle No.1 on 8-9 May, 2008, were

held responsible for the assault and torture.

6. J ail Doctor Sri Ram Gopal Verma prepared fake and

fabricated injury report dated 6.5.2008 relating to the alleged

injuries of Sri S.K. Awasthi

7. The jail doctors as well as the Senior Superintendent, Central

Jail, Naini and the Jailer did not promptly refer Sri S. K. Awasthi

to S.R.N. and delayed the matter for about two days without

justification.

8. S ri S.K. Awasthi was sent to the S.R.N. Hospital in shakles,

and so while hospitalised in the S.R.N. Hospital, in violation of

para 798 (b) of the U. P. Jail Manual, Article 21 of the

Constitution of India and various decisions of the Hon'ble

Supreme Court. The Senior Superintendent, Central Jail, Naini,

the Jaiier Sri Shobh Nath Yadav, Deputy Jailers Suresh Kumar

Maurya, Shivji Singh Yadav and Ravi Kant and Bandi

Rakchhaks Subhash Chandra Maurya, Vijai Singh, Surendra

Pratap, Krishna Bihari, Akhilesh Dwivedi, Ram Naresh Yadav,

576
 Suresh Chandra Tiwari, Dev Nath and Surendra Kumar Patel

are responsible for such handcuffing and chaining. 57

9. Sri S.K. Awasthi was neither handcuffed nor chained nor

fettered in any way at the time of his production before the Joint

Registrar (Criminal) of the Hon'ble High Court on 8.5.2008 and

was also not escorted in the handcuffed and chained condition

from the Central Jail, Naini to the Hon'ble High Court and also

from the Hon'ble High Court back to the Central Jail, Naini.

10. Sri S.K. Awasthi had no external injury on his head or

forehead, and was also not found, by the Doctors of the Hon'ble

High Court dispensary, clinically abnormal or unfit at the time of

his production before the Joint Registrar (Criminal) of the

Hon'ble High Court on 8.5.2008.

9.5 Conclusion

Over the years, it has become clear that Courts are

heavily relying on the Constitution, Bill of rights, and even

international norms to protect and enforce rule of law. They are

67 ( 1997) I see 416, Also See In Re Death of Sa winder Singh Grover 1995 Supp(4) see 450 wherein

the deceased died in the custody of Directorate of Enforcement and the Union of India was made to pay
ex-gratia payment of Rupees 200,0001 to the widow of the deceased as an interim measure.

577
equally uSing their powers and new strategies and tools to

restrict parliamentary and executive autonomy, so that it

conforms to constitutional norms, particularly relating to

fundamental human rights. The interdependence between

judicial conscience and reasoning has equally led to greater

concerns being shown about rights by the Courts. The

Supreme Court of India is not an exception to this legal

compass.

The Supreme Court has enlarged the scope and

protection of the fundamental human rights guaranteed under

the Constitution, as analysed above. It has devised new tools to

promote a right-based administration. The Public Interest

Litigation has been an important strategy towards increasing

access of people to the Court. It has also helped the Court to

address violations of fundamental human rights in India and

give appropriate relief. The Court has visualised the award of

compensation as an important methodology not only to redress

the violation but also as a deterrent. Consequently, it has

awarded compensation to the victims of violation of

Fundamental Right to life and liberty. This is so even though the

578
Constitution of India does not expressly provide for a right to

compensation unlike other legal systems. Nor is there any

legislation, which deals with such compensatory relief in case of

infringement of Fundamental Rights, unlike other common law

and continental jurisdictions. Despite this the Court has

awarded compensation, exercising its inherent power to do

complete justice and awarding appropriate relief under Art.32.

In the initial phase of evolution of compensatory relief, the Court

did not offer any firm jurisprudential basis for such a remedy. It

used different terminology like exemplary costs, and exemplary

damages. However, the Court later relied on Constitutional tort

theory to justify the award of compensation. The Supreme

Court has taken a view that a claim in public law for

compensation is distinct from, and in addition to, the remedy in

private law for damages for the tort resulting from the

contravention of Fundamental Rights. The Court has also

relied on Art.9 (5) of international Covenant on Civil and

Political Rights, 1966, while justifying the award of

compensation under Art.32 of the Constitution. This is despite

579
India having put a reservation to Art.9 of the Covenant, stating

that the reservation has lost its importance.

In a welfare state the State must strive to establish just

relations between the rights of the individual and the

responsibilities of the state. The award of compensation as a

remedial measure has been established by interpretative

techniques of the Supreme Court, even though the Court has

not been consistent in awarding the same. The award of

compensation by the Court has evolved as a discretionary

relief, even though it has emphasized justifications for such a

relief. In our submission, the compensatory relief serves both

deterrent as well as restitutive purposes. It is pertinent to note

that despite many objections to the Courts awarding

compensation as a remedy for violation of fundamental human

rights, the Courts have leaned in favour of compensating the

individuals for injuries suffered at the hands of State and its

employees. !t is submitted that preventing and remedying injury

to an individual is the bedrock of many constitutional

protections. Also the Court's attention is focussed towards

establishing constitutional rights so that individuals are

580
protected from State lawlessness. Such an approach is

warranted for establishment of astute constitutionalism and

rights conscious and accountable executive. Indeed, such

individual protection would have been considerably enhanced,

had this right to compensation been made an enforceable right

in India also. Rather, in series of cases on compensation

delivered by the Supreme Court and various High Courts during

the last decade also given an impression that life can be put

down with monetary compensation give rise to a sad note of

fixing rates for the various atrocities. Hence, it is submitted that

the Supreme Court should give equal priority to punishing the

guilty police along with payment of compensation to the victim.

It is further submitted that the compensation also should be

punitive and exemplary and not normal.

581