Surya Kant, J. — Smt. Priti Thapar widow of Shri Ashwani Kumar Thapar has knocked the doors of this Constitutional Court under Articles 226/227 of the Constitution of India for issuance of appropriate directions to the State of Punjab to grant compensation amounting to Rs. 5 lacs to the legal heirs of her deceased husband who died injudicial custody under mysterious circumstances while lodged in Central Jail, Jalandhar on account of the fact that in an inquiry held by the Sub Divisional Magistrate, Jalandhar, it was found that poison was administered to the deceased husband of the petitioner regarding which even FIR No. 5 dated 16.1.2003 has been registered against nine officials of the Central Jail, Jalandhar. The petitioner has also sought a direction to the State of Punjab to comply with the order dated October 23, 2003 (Annexure P-2) passed by the Punjab State Human Rights Commission (hereinafter referred to as the Commission) in complaint No. 2105 of 2001 recommending to the State Government to take disciplinary action against certain officials of the Police and Jail Departments who have been found, prima facie, negligent in the performance of their duties in relation to matter of administering poison to her deceased husband.

2. Briefly, the facts are that the deceased husband of the Petitioner (Ashwani Kumar Thapar) was involved in some criminal case registered vide FIR No. 39 dated March 29, 1992 under Section 460 IPC by PS Division No. 6, Jalandhar and he surrendered before the Court of competent jurisdiction on 15.1.2001; the Petitioner who is 26 years old and is mother of two minor children aged about 7 years and 4-1/2 years respectively met her husband on May 4, 2001, which was the date of hearing in the Court case, and remained with him along with her two minor children in the court premises till 3.30 P.M; her deceased husband was taken to the jail at about 4 P.M and thereafter he died inside the jail under mysterious circumstances; the death is said to have occurred at 4.30 P.M but the Petitioner was not informed although her house is situated at a distance of only 100 metres from the Central Jail, Jalandhar; the deceased was just 28 years old and was hale and hearty; the Petitioner came to know about the death of her husband at about 10.30 P.M, that too when a person known to her informed that an attempt was being made to hospitalise her deceased husband; however, due to timely protest the hospital and jail officials could not admit her husband as the Petitioner along with some members of the Punjab Human Rights Organisation reached the hospital at Jalandhar and prevented the admission of her deceased husband as a patient; due to public protest, the Deputy Commissioner, Jalandhar ordered an inquiry into the matter by the Sub Divisional Magistrate, Jalandhar; however, the then Jail Superintendent continued to interfere with the inquiry which compelled the petitioner to approach the Commission vide complaint No. 2105 of 2001 and 2322 of 2001 in which prayers for taking action against the Jail officials and for grant of compensation to the family were made; the Commission took cognizance of both the complaints and upon issuance of notice, the State of Punjab submitted a report dated October 15, 2003 (Annexure P-1) to the District Magistrate, Jalandhar which was based upon the inquiry report of Sub Divisional Magistrate, Jalandhar-1; it has been stated in the report that an FIR No. 5 dated 15.1.2003 regarding the death of the husband of the petitioner in judicial custody had been registered against certain officials but the issue, as to who had actually administered poison to the deceased could be established only through police investigation; it was also stated in the report that prima facie Gurdip Singh, ASI, Paramjit Singh, Head Constable and Sohan Lal Head Warder were responsible for negligent performance of their duties warranting action against them; the Commission vide its order dated October 23, 2003 (Annexure P-2) has accepted the report of the Sub Divisional Magistrate, Jalandhar-1 which is also supported by the District Magistrate, Jalandhar and has recommended to the State Government to take disciplinary action against certain officials of the police and jail departments who were found prima facie responsible for the cause of death; regarding the grant of compensation, the Commission has directed the legal heirs of the deceased to seek their remedy in accordance with law; that the deceased Ashwani Kumar Thapar was the only bread-earner of the family of the Petitioner and her two minor children, who are his legal heirs, have no source of livelihood and the petitioner is not in a position to feed and bring up her two minor children. The petitioner has accordingly sought a compensation of Rs. 5 lacs to be paid to her and her minor children by the State of Punjab.

3. Upon notice, reply on behalf of Respondents No. 1 to 3 has been filed, inter alia, admitting the fact that the deceased Ashwani Kumar Thapar died on 4.5.2001 on way to Civil Hospital, Jalandhar and that FIR No. 5 dated 16.1.2003 under Section 304-A IPC of PS Division No. 2, Jalandhar, has been registered against nine jail officials and two police officials on the basis of enquiry conducted by the Sub Divisional Magistrate, Jalandhar. He has also been admitted that the Commission held some officials of the police andjail departments to be prima facie negligent and necessary steps regarding taking disciplinary action against them in terms of the order passed by the Commission are being taken.

4. We have heard Shri R.S Bains, learned counsel for the petitioner and Smt. Charu Tuli, learned Senior Deputy Advocate General, Punjab on behalf of the Respondents and have perused the record.

5. Shri R.S Bains, learned counsel for the petitioner, has contended that it is not disputed by the State of Punjab that the husband of the petitioner died in mysterious circumstances while he was lodged in the Central Jail, Jalandhar; the District Magistrate, Jalandhar got an inquiry conducted into the circumstances which led to the death of the deceased husband of the petitioner and it has been established in the inquiry conducted by the Sub Divisional Magistrate, Jalandhar that the deceased died due to administering of poison which was possible only if someone from amongst the officials of the jail or police departments was actually involved in administering the poison. In any case, argues Mr. Bains, they were grossly negligent in the performance of their duties as they failed to protect the life of the deceased. According to Shri Bains, the respondents themselves have admitted that the death of the husband of the petitioner was caused due to the gross negligence of the officials of the jail and/or police departments and even an FIR under Section 304-A IPC has been registered against them. He further contended that the deceased was the sole bread earner of the family which includes his widow (the petitioner) and her two minor children; he used to sell ice-cream and vegetables and was earning enough to support the family, therefore, the claim of Rs. 5 lacs, as compensation made by the petitioner is fully justified.

6. Mrs. Charu Tuli, learned State Counsel, however, asserts that no negligence can be attributed to the officials of the jail department in the case of death of the deceased inasmuch as it was case of an emergency and he died while he was being taken to the Civil Hospital, therefore, in the very nature of things, the State is not liable to pay any compensation and that the claim of Rs. 5 lacs is in any case on the higher side.

7. By now, in a catena of judgments, it has been well settled that the claim for compensation for violation of human rights and fundamental freedom, the protection of which is guaranteed in our Constitution, is an acknowledged remedy for enforcement and protection of such rights and can be resorted to even under Article 226 of the Constitution. Their Lordships of the Supreme Court in the case of Smt. Nilabati Behera alias Lalita Behera v. State of Orissa and others, 1994 (1) RCR (Crl.) 18 (SC) : AIR 1993 SC 1960 held as under :—

“16. It follows that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to the remedy in private law for damages for the tort resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution…….”

8. In this case, the deceased, who met with a custodial death, was aged about 22 years and the Supreme Court directed payment of compensation of Rs. 1.50 lacs which could be taken into account for adjustment in the event of any other proceeding taken for recovery of compensation on the same ground by the claimants in that case.

9. In the case of Ajab Singh and another v. State of Uttar Pradesh and others, 2000 (2) RCR (Crl.) 250 (SC) : AIR 2000 SC 3421, the deceased had died while in judicial custody leaving behind three minor children, aged 7, 4 and 2-1/2 years; his wife had unfortunately pre-deceased him. The deceased was working as a Supervisor with a contractor of Maruti Udyog Limited, Gurgaon and was receiving monthly emoluments of Rs. 5,000/-. While considering the quantum of compensation payable to the minor children of the deceased, their Lordships held as under :—

“9. The State of Uttar Pradesh is responsible in public law for the death of Rishipal and must pay compensation to the petitioners for the same. [D.K Basu v. State of West Bengal, 1997 (1) RCR (Crl.) 372 (SC) : 1997 (1) SCC 416 : 1997 AIR SCW 233 : AIR 1997 SC 610 : 1997 Crl. LJ 743]. We think that it is appropriate, in the circumstances, to order the State of Uttar Pradesh to pay to the petitioners compensation for the death of Rishipal in the sum of Rupees five lakhs within three months. The sum shall be invested by the petitioners and the income thereof shall be so distributed that at least half is utilised for the benefit of Rishipal's children during the period of their minority.”

10. In the case of Govt. of NCT of Delhi v. Nasiruddin, 2001 (1) RCR (Crl.) 721 (Delhi) : 2001 Crl. Law Journal 4925, a Division Bench of the Delhi High Court granted a sum of Rs. 2 lacs as compensation to the parents, sisters and brothers of the 21 years old deceased, who were dependent on him.

11. A learned Single Judge of this Court in the case of Rajwant Kaur and others v. State of Haryana and others, 2000 (2) RCR (Crl.) 560 (P&H) granted compensation to the tune of Rs. 1.50 lacs to the widow and children of the deceased person who died while in custody.

12. A learned Single Judge of Jharkhand High Court, in the case of Bahlen Balmuchu v. State of Bihar and others, 2003 Crl. Law Journal 3803, awarded compensation to the tune of Rs. 10 lacs to the widow and three minor children of the deceased who was 28 years old and died while in custody; the learned Single Judge found that the family income of the deceased was Rs. 2,500/- per mensem and by applying the multiplier of 30 and making deduction of 25% for personal expenses but by awarding adequate compensation for loss of company and care, anguish, mental torture, etc. awarded a total compensation of Rs. 10 lacs.

13. After giving thoughtful consideration to the peculiar facts and circumstances of the instant case and keeping in view that the deceased was an able bodied person of 28 years, who was maintaining a family which included his widow (the petitioner) and two minor children by working as an ice-cream and vegetable vendor, and the fact that the sole bread earner of the family has been snatched, at least on account of gross negligence committed by the officials of the Jail and Police Departments of the State of Punjab, if not killed by one of them by administering poison, we are of the view that the ends of justice will be sufficiently met by awarding a compensation to the tune of Rs. 2.50 lacs. We order accordingly.

14. We may also direct that the respondents shall pay the compensation amount of Rs. 2.50 lacs by depositing Rs. 50,000/- each in the name of two minor children of deceased Ashwani Kumar Thapar and the petitioner, either by way of fixed deposit in a Nationalised Bank and/or any other government financial institution under the direct control of the Central/State Government and/or by getting opened their PPF accounts in the Post Office, whichever may fetch the highest rate of interest; and the remaining amount, Rs. 1.50 lacs shall be paid to the petitioner, who will also be entitled to be paid the amount of monthly interest accruing upon the fixed deposits of the minors, referred to above, so as to enable her to spend the said amount for the up-keep/look after of her children and/or their education, etc. The aforesaid compensation shall be paid by the respondents within a period of two months from the date of receipt of a certified copy of this order.

15. At this stage, we may profitably quote the principles enunciated by their Lordships in the case of State of Maharashtra v. Christian Community Welfare Council of India and another, 2003 (4) RCR (Crl.) 718 (SC) wherein their Lordships permitted the State to recover the amount of compensation paid by it to the widow of the deceased, from the officers/officials concerned found to be responsible for the misdeeds which made the State to pay compensation. Their Lordships held that if it is determined, after holding proper inquiry, that the officers committed the alleged misdeeds beyond the scope of performance of the State duty and they did cause death to the deceased not in the performance of their official duty, rather in excess of the same, then they cannot escape the liability to reimburse the State the amount paid by it to the widow of the deceased. We accordingly hold that in case, after holding a proper inquiry in accordance with law, it is found that the death of deceased husband of the petitioner was caused due to specific negligence and/or dereliction in performance of duty, or it was a result of abuse of powers by the officials of the Jail and Police Departments, it will be open for the State of Punjab to recover the afore-mentioned amount of compensation from such officials.

16. The writ petition is allowed in these terms with costs, quantified at Rs. 5,000/- which shall be payable to the petitioner.

Petition allowed.