(1). This is a pathetic case of a lady who has become widow in her young age of 23 years because of the cruel treatment alleged to have been meted out to her husband Usman who succumbed to the injuries in the police station. Because of this, a young lady aged only 23 years became widow and four minor children including two sons and two daughters between the age of eight months to six years have become orphan for no fault of them and denied the love and affection of the young father for the rest of their life.
(2). The petitioner Mst. Madina, who is widow of Usman belongs to a minority community of "MUSLIMS", has filed this petition under Art. 226 of the Constitution before this court praying for compensation in sum of Rs. 10 lacs from the respondents on account of brutal death of her husband deceased Usman who died in police custody.
(3). This petition was seriously objected by the learned counsel for the respondents including learned counsel Mr. Hemant Kumar for respondents No. 3 and 5 -Constables. It was submitted by the learned counsel for the respondents that this Court cannot award compensation or any ex-gratia payment by way of interim compensation to the petitioner in its jurisdiction under Art. 226 of the Constitution because there are disputed questions of facts involved in this petition, therefore, the petitioner should be relegated to avail better alternative remedy of civil suit before the competent court. In support of his submission, learned counsel Mr. Hemant Kumar for respondents have relied upon two judgments of the Hon'ble Supreme Court in the case of - A.K. Singh & Ors. vs. Uttarakhand Jan Morcha & Ors. (1) and Chairman, Grid Corporation of Orissa Ltd. (Gridco) & Ors. vs. Smt. Sukamani Das & Anr. (2).
(4). Before dealing with the aforesaid preliminary objection raised by the learned counsel for the respondents, I would like to narrate few important, relevant and undisputed facts of the case which are as under:
1. That the deceased Usman Khan aged 25 years only died in police custody on 17.6.97 within less than three hours after he was taken to the police station for interrogation because of third degree treatment meted out to him. The Post-mortem report shows that he died due to heamorrhagic shock due to renal kidney injury.
2. The police lodged F.I.R. against the erring police officials - present respondents no. 3 to 7 for offence u/S. 342, 323 and 302/34 I.P.C. immediately on that very day.
3. Having found a strong prima - facie case against them regarding the custodial death of Usman Khan, they including the S.H.O. -respondent No. 7 were arrested and taken into custody on 17.6.97 itself by the police.
4. Looking to the seriousness of the matter, the Addl. S.P. (CID) C.B. Cell, Ajmer Range, Ajmer was directed to investigate the case with regard to the custodial death of the deceased Usman.
5. On account of custodial death of deceased Usman, necessary actions including suspension etc. were taken against erring police personnel including S.H.O.
(5). The above undisputed facts, I have reproduced from the petition and the reply affidavit filed by the respondents themselves.
(6). According to the petitioner, her husband Usman was arrested by the police from his house in the early morning at 6:00 A.M. on 17.6.97 for an offence u/S. 379 I.P.C. of theft of a Guar Gum Bag and taken to Kuchaman Cit police station by the respondents no. 3 to 7 without disclosing anything to the relatives of the deceased Usman including his wife - the present petitioner and due to barbarious and third degree treatment meted out to Usman in police station by the police, he died there and then on 17.6.97 itself in the police station. His dead body was removed to the Government hospital of Kuchaman City at 8:45 P.M.i.e. within less than three hours of his arrest. The F.I.R. regarding the incident in question was filed without wasting any time at 11.10 A.M. i.e. within five hours of his arrest, on 17.6.97 itself. The case was accordingly registered against the respondents no. 3 to 7 for the offences punishable u/S 342, 323 and 302 read with 34 I.P.C. The Board of medical experts of three medical officers was constituted on the same date i.e. on 17.6.97 itself, which gave full details of the body of the deceased Usman and as per its opinion, the cause of death was heamorrhagic shock due to kidney injury which is a vital part of the body. Nothing contrary to this was stated in their reply affidavit by the respondent to the aforesaid facts which are stated on oath by the petitioner and duly corroborated by the documents.
(7). In the light of the aforesaid, there cannot be any difficulty in coming to the prima facie conclusion that the death of Usman was caused by the police in its custody, therefore, his widow and four children including Kirpan (son) aged 6 years, Chanda (daughter) aged 3 years, Farman (daughter) aged 2 years and Sadam (son) aged just 8 months only are entitled for compensation.
(8). Now, in the light of the important and material facts of the present case stated above, I would like to deal with the two judgments of the Hon'ble Supreme Court cited by learned counsel for the respondents. In the case of Singh (supra), the facts were totally different, therefore, I would not like to deal with the same in detail but I would like to narrate the relevant facts of the above case in brief.
(9). In Singh's case (supra) there was a stir by the people in support of the demand for a separate State of Uttarakhand comprising of certain hilly regions of the State of U.P. and some other areas. There was a public rally staged at New Delhi and the administration took stern measures to resist the protesters' march as the officials claimed to have received secret information that the proposed rallysts were carrying lethal weapons with them in violation of the prohibitory orders issued by the Government and they might create serious law and order situation. The confrontation which ensued had resulted in lot of blood-shed including loss of many lives, outraging the modesty of women etc. The writ petition was filed for compensation before the Hon'ble High Court by an Association claiming itself as "Uttarakhand Sangharsh Samiti". The Division Bench of the High Court by way of interim directions called upon the CBI to enquire into the allegations of "human rights violations" restricting it to certain facts only. Accordingly the CBI look up investigation as per the directions and some of the accused were arrayed in the charge sheet. On that the Hon'ble High Court issued certain directions and ordered the Government to pay huge compensation to the dependents of the victims and later on the writ petition was disposed of as having become infructuous. The said judgment of the Hon'ble High Court was carried in S.L.P. wherein on peculiar facts of that case, the Hon'ble Supreme Court held that without trial and without considering evidence, it was not proper on the pan of the High Court to direct the Government to pay huge sum to the victims as compensation.
(10). The another judgment cited by learned counsel for the respondents in case of Smt. Sukamani (supra) has no application to the facts of this case. In that case, the question was regarding negligence and obviously, negligence cannot be proved by affidavits. It requires oral as well as documentary evidence, therefore, on peculiar facts of that case, the Hon'ble Supreme Court held that "It is the settled legal position that where disputed question of facts are involved, a petition under Article 226 of the Constitution is not a proper remedy." The Hon'ble Supreme Court has further held that "The High Court has not and could not have held that the disputes in these cases were raised for the sake of raising them and that there was no substance therein. The High Court should have directed the writ petitioners to approach the Civil Court."
(11). I have already narrated the most important and relevant undisputed facts of the present case in nut shell in the earlier part of the judgment and I fail to appreciate that how the aforesaid two judgments of the Hon'ble Supreme Court cited by learned counsel for the respondents will have any application to the facts of this case.
(12). If, at all, any fact which can be disputed by the respondents in this petition would be the income of the deceased, whose income was stated to be Rs. 3,000/- per month, for fixing the quantum of compensation to be paid to the petitioner. The petitioner has prayed for Rs. 10,00,000/- by way of compensation on the death of the husband Usman in the police custody, for that the petitioner can be asked to approach the competent civil court, but the question is, till the suit is finally decided how this poor lady will survive with her four minor children? Is she not entitled for a reasonable amount from this Court in writ petition when she is able to make out a case for compensation?
(13). In my considered opinion, by way of an interim relief, she is entitled for reasonable compensation, if not of Rs. 10 Lakhs.
(14). Once this Court comes to the conclusion that it was a custodial death, then there cannot be any hesitation on the part of this Court to exercise its powers under Article 226 of the Constitution and award reasonable compensation in its writ jurisdiction till she files suit before the competent civil court for total sum of Rs. Ten lakhs (Rs. 10,00,000/- only, I am supported in my view by the judgment of the Hon'ble Supreme Court in the case of D.K. Basu vs. State of West Bengal reported in (3). Hon'ble Dr. Anand, J. (as he then was) speaking for the bench has held that "For established breach of fundamental rights, compensation can be granted under public law by the Supreme Court and by the High Courts in addition to private law remedy for tortious action and punishment to wrongdoer under criminal law'.
(15). In case of Suraj Mal Chhajer vs. State & Ors (4), the Division Bench of this Court has also awarded interim compensation in case of death of his daughter, who was a young doctor, who died due to negligence of the hospital administration. The said judgment was carried to the Hon'ble Supreme Court in S.L.P. and the same was dismissed. This, the Division Bench judgment of this Court has become final.
(16). What was the fault of the poor deceased Usman? The allegations levelled against him was that he committed a party theft of a guar gum bag for which offence was registered against him u/S. 379 IPC It was a trivial offence, for which a young man is done to death by the police in a merciless manner by adopting third degree method.
(17). In my opinion, if this Court does not exercise its powers u/Art. 226 of the Constitution in favour of such a poor young widow and four minor children in such type of gross cases, then it will be failing in its duly, because it is well known fact to one and all that our Civil Courts take atleast ten years' time to finally decide the suit. In this case Usman died on 17.6.1997, almost three years from today. During this period, the petitioner has maintained herself and her four children with great difficulties, therefore, if this Court does not grant any relief, in this petition then they may die due to starvation as the only earning member of their family met with an untimely death clue to police atrocities. In my opinion there cannot be a better case than this for grant of interim compensation. On facts of this case, this Court has no option but to exercise its discretionary jurisdiction u/Art. 226 of the Constitution in favour of the petitioner.
(18). Under the circumstances, I have no hesitation in coining to the conclusion that the petitioner is entitled to atleast Rs. 3 lakhs by way of interim relief, if not for Rs. 10 lakhs full compensation as a final relief. Accordingly, the respondent are ordered to pay Rs.3 lakhs jointly or severally to the petitioner, forthwith. It is made clear that it will be open to the petitioner to approach the competent Civil Court by way of suit for remaining amount from the respondents of Rs. 7 lakhs or any amount, she thinks fit.
(19). In my considered opinion, for the fault of the respondents no. 3 to 7, the State should not be asked to pay from its own public exchequer but time being, it is the duly of the State to first pay the amount of compensation of Rs. 3 lakhs because its own officers i.e. respondents no. 3 to 7 are prima-facie found liable for the custodial death of deceased Usman, as it will be difficult for the petitioner to recover this amount from the respondents no. 3 to 7. Therefore, at the first instance, the respondent no .1 State of Rajasthan is directed to pay Rs. 3 lakhs to the petitioner by way of interim compensation. The said amount shall be paid to the petitioner by an account payee cheque within three months from today. Out of cheque of Rs. 3 lakhs, Rs. 2 lakhs shall be deposited in the name of the petitioner in a Nationalised Bank for a period of seven years. The same shall be re-invested for further period of seven years till her minor children attains majority. On attaining majority, the said amount shall be equally distributed amongst them. The petitioner will be entitled for the periodical interest over the amount of Rs. 2 lakhs till its maturity which shall be used by the petitioner to maintain herself and her for minor children. The petitioner shall be permitted to withdraw the remaining amount of Rs. 1 lakh for paying court fees etc. in a suit which may be filed before the competent civil court. On the evidence being led by the petitioner, the competent civil court may pass appropriate order regarding final compensation.
(20). It is made also clear that the amount of Rs. 3 lakhs which is to be paid by the respondent no. 1 State of the petitioner shall not be recoverable from her irrespective of any result in the suit. It is also made clear that if the petitioner finally succeeds in suit, then the aforesaid amount of Rs. 3 lakh shall be adjusted in the final compensation amount awarded by the competent civil court. It is also made clear that the respondent no. 1 shall recover the amount of Rs. 3 lakh proportionately from the respondents no. 3 to 7.
(21). Accordingly, this petition in allowed with no order as to costs.