(Prayer: This appeal is filed u/S 4 of the Karnataka High Court Act praying to set aside the order passed in W.P. No. 20333/2004 dated 07.12.2006.)

1. This appeal u/S 4 of the Karnataka High Court Act is filed against the order passed by the learned Single Judge wherein the State Government has been directed to compensate the kith and kin of deceased Basappa Kuri who had been taken into Police custody and met with homicidal death whilst in police custody. The deceased was taken to custody not for any crime or offence he has committed because some other persons were said to be assaulting him and bruising him black and blue.

2. It appears the Police took control of an already battered person, i.e., Basappa Kuri, on the evening of 27.11.2002 purporting to rescue this man from the onslaught of one Subhash Desai, President of Aminabhavi Panchayat. It is alleged the said Subhash Desai was beating Basappa Kuri in an inhaman way after having tied him to a Telephone pole in front of his house in his village.

3. The version of the appellant is that the police on reaching the spot after having received information, they rescued Basappa Kuri and took him to Police station and later to the hospital. It appears at the time of admitting the Basappa Kuri to the Hospital for getting him medically examined to know the nature of injuries if any suffered by him due to assault by said Subhash Desai, Basappa Kuri had suffered few abrasions. In terms of the wound certificate issued by the Senior Medical Officer, Government Hospital, Dharwad Basappa Kuri had suffered three injuries.

1. Abression over the knee and interior aspeal over titam tuberocity 1” x 1” bleeding++

2. Abression over (R) side lambar region at L4 level 2” X 2”.

3. Abression over shoulder 2” X ” bleeding.

- - - -

4. It appears the Police took him back to the Police Station after such examination by the Doctor at the Hospital and as we could see, without any rhyme or reason retained Basappa Kuri who had already suffered few injuries. The jurisdictional Police instead of arresting the offender – Subhash Desai, had detained Basappa Kuri in the Police station and had taken him to the hospital for further check up and treatment on 29.11.2002.

5. It is also the further version of the appellants’/officials of the State Government that when Basappa Kuri was taken to the hospital on 29.11.2002, doctors on examination certified that he was brought dead. Thereafter the Police personal registered case in Crime No. 172/02 against Subhash Desai and six others. A case is also registered in Crime No. 171/02 for wrongful confinement against their own Police Sub Inspector and two Head constables of the jurisdictional Police Station where the said Basappa Kuri had been detained.

6. It is in this background the kith and kin and Basappa Kuri filed W.P. No. 20333/04 before this Court claiming compensation from the State for causing custodial death of their bread-winner and also for causing untold anguish, agony and misery to them.

7. The Writ Petition was resisted by the State for granting any compensation in favour of the dependents of deceased Basappa Kuri.

The learned Single Judge on examining the fact situation was of the view that it is an extra ordinary situation where it is warranted to exercise writ jurisdiction for compensating kith and kin of the deceased Basappa Kuri. The learned Single Judge has held that deceased Basappa Kuri was in exclusive custody and control of the Police from 27.11.2002 upto 29.11.2002 and he had been retained by the Police. On 27.11.2002 Doctors on examination of Basappa Kuri certified that he had suffered three minor injuries and during second time when Basappa Kuri was taken to the Hospital, he was not alive and only his dead body had been taken to the Hospital for being medically declared him as dead.

It is a clear case where gross negligence and possible abuse of the power of the custody has resulted in the death of Basappa Kuri. Therefore learned Single Judge thought it fit to fix quantum of compensation payable to the kith and kin at Rs.3,00,000/- in addition to a sum of Rs.1,00,000/- which had been released by the Assistant Commissioner as an exgratia payment having regard to the facts and circumstances. It is against this order o the learned Single Judge directing the State Government to pay a sum of Rs.3,00,000/- in addition to exgratial payment of Rs.1,00,000/- as exgratia, the State has preferred this appeal.

8. We have heard Sri C S Patil, learned Addl. Govt. Pleader for State Government and Sri J S Shetty, learned counsel appearing for the writ petitioners.

9. The learned Addl. Govt. Pleader would very vehemently urge the deceased person was not exactly in the custody of the Police. The death of Basappa Kuri could not have been characterized as a custodial death and in fact the Police had retained him in the Police Station, because his well-wishers and others had indicated that if deceased Basappa Kuri were to be released from the Police Station it would be risky for him as other person, his assaulter, namely Subhas Desai, would resume his brutal attack on the hapless person-Badsappa Kuri. The learned Single Judge has committed an error in characterising the death of a person who in fact had been protected by the Police as a custodial death. It is also submitted that while a crime for an offence punishable u/S 302 IPC had been registered against the said Subhash Desai and his companions and another crime for an offence u/S 342 had been registered against the very official in charge Police Station of other Police personal of the State Government has acted in bonafide commensurate manner, then there is no need for the State Government to compensate the kith and kin of the deceased.

10. Sri C S Patil, learned Government Advocate has drawn our attention to the judgment of the learned Magistrate in C C No 666/03 in the criminal case registered against the police officials u/S 342 IPC wherein learned Judge has opined that there was no wrongful confinement of deceased Basappa Kuri. When such being the finding on the judicial side the learned Single Judge has committed an error in interfering a custodial death and granting compensation to the dependents of deceased Basappa Kuri person as an amount playable due to his custodial death.

11. In an appeal of this nature which is not an appeal either u/S 384 of Cr.P.C. or u/S 96 of CPC, the scope of examination of the correctness or otherwise of the order passed by the learned Single Judge exercising extra ordinary jurisdiction under Article 226 of the Constitution, is rather limited and in fact almost the scope for interference is nil.

12. The fact that the deceased Basappa Kuri was within the power and control of the Police and in the Police station for two continuous days and nights, is borne out by record and it is also borne out by record that he met with homicidal death. It is also on record that when the deceased person had been taken for medical examination on 27.11.2002, the Doctor had certified that he had sustained three minor injuries, whereas on 29.11.2002 the Medical Officer had certified that Basappa Kuri was brought dead to hospital. The Postmortem examination Report reveals that deceased Basappa Kuri had suffered multiple fractures and injuries and his death was due to shock and hemorrhage.

13. The injuries which the deceased had suffered on 27.11.2002 may be due to assault by the said Subhash Desai. But the subsequent facts reveal that something very damaging, disastrous had happened to deceased Basappa Kuri while he was within the power and control of the Police. That is good enough for a writ court to exercise jurisdiction to compensate the kith and kin as in a situation where duty of the State Government is to protect and promote the interest of its citizens, if the protectors themselves should turn predators, start beating people black and blue to the extent of causing multiple fractures resulting in a homicidal death, and in a situation of this nature qualification in terms of money definitely fails in anyway to repair the damage caused to the kith and kin, not only to the actual loss of their life support but also due to the mental shock, the agony and the sorrow that they have to suffer during the rest of their lives, is something which is not amenable for determination in terms of money. Therefore in a matter of this nature there is no scope to interfere with the order of the learned Single Judge which in our opinion is the proper order. The leaned Single Judge has exercised jurisdiction for dispensing justice.

14. Be that as it may, this is not a matter either for examination or for admission in a writ appeal. Accordingly the appeal is dismissed mulcting the State with cost of Rs.10,000/-

15. Sri J S Shetty, learned counsel for writ petitioners/ respondents submitted that amount was deposited in the year 2008 with this Court, the same was not paid to writ petitioners. They have not drawn periodical interest though they wee permitted to withdraw periodical interest due to practical reasons.

16. Be that as it may, the writ appeal is dismissed. It is open to the respondents to draw, outstanding interest. The investment being in the nature of compensation for the rest of their life, we deem it proper to direct part of the compensation amount being invested in a term deposit in any nationalized Bank. Accordingly a sum of Rs.2,00,000/- shall be invested in any nationalized bank. The balance amount of Rs.1,00,000/- with accrued interest shall be released in favour of the first respondent, to spend for the welfare of her children/other respondents.

17. The cost shall be deposited before this Court within six weeks from today failing which apart from issuing notice to the Principal Secretary, Home Department calling for an explanation for non compliance, the registry shall also issue a certificate for recovery of cost as it were a decree of civil Court. Registry is directed to ensure that the deposit made in State Bank of Mysore, Vidhana Soudha Branch, Bangalore is transferred to the branch of the very Bank at Dharwad which is nearer to the place where the writ petitioners reside.

18. In view of disposal of the appeal Misc. W.No. 60210/2010 filed for early hearing does not survive for consideration.