B.P. DAS, J:

1. The Petitioner has filed this Writ Petition with a prayer to direct the State and its functionaries to pay her compensation for the death of her husband-Pitambar Pradhan in police custody.

2. The brief facts leading to the Writ Petition are, as follows:

The deceased Bhalu @ Pitambar Pradhan, husband of the present Petitioner, was arrested by the Investigating Officer on 30.1.2003 in connection with Mahanga Police Station Case No.12 of 2003 and was detained in police hazat without being forwarded to the local Magistrate. On 1.2.2003 at about 2 p.m., the Officer in-Charge of Salipur Police Station, Trinath Mishra, and the Circle Inspector, Keshab Mohapatra came to the village of the Petitioner (Bhakuda) and assured her to release her husband on bail if she would come to the police station with the land record. On such assurance, the Petitioner along with the Ward Member, Sudhir Mishra came to the police station by a police vehicle and found her husband dead inside the police hazat. Thereafter, the police officials forced the Petitioner and the Ward Member to put their signatures on some documents and on some blank papers and shifted the dead-body to Cuttack for post-mortem. After post mortem, the Petitioner and other villagers requested the police officials to hand over the dead-body for cremation but the police officials refused to hand over the dead-body to them and cremated the same at Khannagar Crematorium, which resulted in some agitation in the village of the Petitioner. Thereafter, the brother of the deceased lodged an FIR on the allegation that the death had occurred in the police station in suspicious circumstances. But no action was taken by the O.I.C., Balichandrapur Police Station. Thereafter, the Petitioner lodged an F.I.R. before the O.I.C., Mahanga Police Station on 2.2.2003 to take necessary legal steps for the custodial death of her husband. On 15.2.2003, one Sudhir Kumar Mishra also lodged an F.I.R. before the O.I.C., Balichandrapur Police Station and the matter was intimated to the District Magistrate and Collector, Jajpur by the villagers. When no action was taken by the police authorities, this Writ Petition was filed by the Petitioner with the prayer for compensation. It would not be out of place to mention here that one Prabir Kumar Das, Advocate, Bhubaneswar, also filed a petition before the Hon’ble Chief Justice drawing his Lordship’s attention to the aforesaid incident and alleging therein that it is a custodial death. As the matter was taken up in judicial side, no action was necessary and ultimately, it was closed.

It would not be out of place to mention here that one Prabir Kumar Das, Advocate, Bhubaneswar, also filed a petition before the Hon’ble Chief Justice drawing his Lordship’s attention to the aforesaid incident and alleging therein that it is a custodial death. As the matter was taken up in judicial side, no action was necessary and ultimately, it was closed. 3. This Writ Petition was heard in part on 16.4.2004 and thereafter on 19.4.2004 when it was again listed, this Court passed the following orders :

“xxx xxx xxx

2. The matter is very serious and is also of urgent nature. Therefore, we direct the Learned Government Advocate to obtain all necessary instructions as to the circumstances relating to the death of husband of the Petitioner in the lock up of Mahanga Police Station and to file appropriate counter affidavit, if so advised positively within seven days from today. Otherwise, we will be left with no option but to pass such order as we may think fit and proper in the circumstances of the case...

Despite the aforesaid order, the State authorities failed to file counter affidavit in a case of custodial death.

On 10.5.2004 this matter was again listed and on the said date both the Investigating Officers of the case were present in Court in person and produced the case diary, the station diary (one volume), 22 photographs along with corresponding negatives and two video cassettes. Considering the seriousness of the matter, this Court passed orders, paragraph-5 of which is as follows :

“5. So in the interest of justice, we appoint Justice C.R. Pal, a retired Judge of this Court to enquire into the matter and submit a report on the following questions:

(i) Whether Pitambar Pradhan, the deceased husband of the Petitioner, died a suicidal death or it was case of homicide?

(ii) Whether there was any effort on the part of the Investigating Officers or the medical officer who held post mortem examination or on the part of the Forensic Science Laboratory of S.C.B. Medical College, Cuttack to hush up the crime with a view to shield the offenders from legal punishment?

(iii) To find out, if possible, as to who was responsible for the death of deceased Pitambar Pradhan, if the same is found to be a case of homicidal death.

(iv) To fix responsibility on the police officers and medical officers, who might have been responsible to hush up the crime with a view to shield the offenders from legal punishment, and whether such police authorities or the medical authorities fabricated the records designedly to shield the offenders from legal punishment.”

In pursuance of the order of this Court dated 10.5.2008, after conducting inquiry, Justice C.R. Pal submitted the enquiry report before this Court and by Order Dated 30.11.2006, this Court directed that a copy of the said report be furnished to the Learned Additional Government Advocate as well as Learned Counsel for the Petitioner free of cost within a week. Thereafter the matter was listed on 10.1.2007 and 17.1.2007. Lastly, it was listed on 18.12.2008, on which date this Court directed the matter to be listed today enabling the Learned Additional Government Advocate to obtain instruction regarding the quantum of compensation. But no instruction is forthcoming till date.

4. Perused the report of enquiry held into the custodial death of Pitambar Pradhan at Mahanga Police Station. The enquiry report reveals that an F.I.R. was lodged at Mahanga Police Station on 30.1.2003 alleging theft of a colour T.V. from the house of the informant, Jayanta Kumar Bal in the night of 29.1.2003. In absence of the O.I.C., 2nd Officer, Sri Ramesh Chandra Nayak registered the case and took steps for investigation. In course of recording his statement, the informant gave out that a person had been detained by the villagers of Koliatha, who, it was alleged, confessed before them to have stolen the TV. So the 2nd Officer proceeded to village Koliatha and on his way, he met the O.I.C. at village Kuanpal and apprised him about the registration of a case and detention of the man at Koliatha U.P. School by the villagers. Ultimately, the Police Officer took the deceased and proceeded to village Vakuda and at the first instance searched the house of the deceased and then the house of Kusel Rout and his brother Rushi Rout. However, they could not recover the stolen T.V. or any other incriminating material and returned to the Police Station with the deceased. It is stated by the 2nd Officer that the deceased was asked to remain present in the Police Station under the surveillance of some of the Gramarakhis. On 31.1.2003 morning at about 9 a.m., the 2nd Officer left Mahanga Police Station for further investigation of the case and after his return to the Police Station arrested the deceased at 4 p.m. and kept him confined in Police lock up. It appears, in that night the 2nd Officer with some other Police staff went to perform Anti Dacoit Patrolling while Sri B.B. Nanda continued to be the sentry. On that day four Gramarakhis, who came to the Police Station to submit their weekly reports, were also there in the Police Station. It appears from the statements of Gramarakhis, Surendra Jena, Rama Chandra Mallick and Constable Sri B.B. Nanda that in that night the deceased died inside the Police Hazat. Thereafter, Sri Nanda lodged a written report before the 2nd Officer, who registered Mahanga Police Station U.D. Case No.5 of 2003 dated 1.2.2003. The report also indicates that according to the Constable, Sri Bipin Behari Nanda, the deceased was sleeping inside the Hazat while he went to pass urine at about 5 a.m. On his return after about 15 minutes when he could not see the deceased in the place where he was sleeping, he went near the Hazat door and looked inside. He further stated that when he could not see him, he opened the Hazat and entering inside found the deceased hanging from the window railing using his full shirt as the ligature. He stated so to the 2nd Officer on his return to the Police Station at about 5.40 a.m. on 1.2.2003 after performing Anti Dacoit Patrolling. It is further indicated in the report that it appears from the statements of the Gramarakhis, who were in the Police Station in that night, that they came to know about the incident when Sri Nanda informed the same to the 2nd Officer.

5. Fact remains that the death of Pitambar Pradhan occurred inside the Police Hazat and thereafter, the post-mortem was conducted over the dead body of the deceased. During course of enquiry, statements of 26 persons have been recorded to find out whether the death of Pitambar Pradhan was suicidal or homicidal. Justice Pal in his report has observed that there is no room for doubt that the death of the deceased was suicidal. In other words, as it was found that the death was suicidal, it is now to be seen if any one is responsible or abated the same. After examining various circumstances and evaluating the statements of 26 persons in course of enquiry, Justice Pal came to the following finding:

“From the above circumstances: it appears that though the deceased was inside the Hazat and the Gramarakhis slept on the backside Verandah, no one was on watch over the deceased while he was inside the hazat in that night. The presence of the Constable in the Police Station as sentry in that night also appears to be doubtful since it appears from his statement that he along with all the Gramarakhis stayed inside the Office room adjacent to the Hazat. This version of the Constable has not been supported by any of the Gramarakhis. On the contrary, it appears from their statements that they slept on the backside verandah of the Police Station and got up only when the patrolling party returned to the Police Station in the morning. It may be mentioned here that in between the said Office Room and Hazat Room, there is a grill gate as stated by the Constable Sri Nanda. If all of them were there and the Gramarakhis sprinkled water to bring back the Constable to senses then how is it that they came to know about the occurrence only when the Constable informed about the same to the S.I. Sri Nayak. It appears that in order to make out a case about the presence of the Constable in the Police Station in that night and to show that he was absent for a short time the story of his going out to pass urine and becoming senseless on seeing the deceased in hanging position have been introduced. The absence of the sentry amounts to negligence of duty on the part of the Police Officer concerned and the same is against the provisions of rules framed under the Police Act which requires that whenever a person is detained in Police Hazat, a sentry be provided to keep watch over him so long he is in the Hazat. The version of the A.S.I. Sri Pitabas Nayak that he instructed the Gramarakhis to keep watch over the Hazat when he left the Police Station in that night is also not believable, as the Gramarakhis have not supported his version. Had there been proper watch over the deceased, ti would not have been possible on his part to commit suicide. It appears that the negligence on the part of the Officer concerned to provide proper watch had led to the loss of a human life.”

From the aforesaid finding, it is crystal clear that the death was due to negligence on the part of the Officers concerned to provide proper watch, which led to loss of a human life. So, the negligence has been squarely attributed to the Police Officers responsible to take care of the accused persons while they are in their custody. Justice C.R. Pal has also indicated that the absence of the sentry amounts to negligence in duty on the part of the Police Officer concerned and the same is against the provisions of rules framed under the Police Act, which requires that whenever a person is detained in Police Hazat, a sentry should be provided to keep watch over him so long as he is in the Hazat. In this regard we may refer to Rule 239-B of the Orissa Police Manual.

6. When the negligence of the Police Officials was found in the enquiry report submitted by Justice Pal and in absence of any counter affidavit from the State, the only thing to be determined by this Court is as to whether the prayer of the Petitioner to get compensation can be allowed. This question remains no more res integra. We may refer to the decisions in Nilabati Behera alias Lalita Behera v. State of Orissa (1993) 2 SCC 746 and People’s Union for Civil Liberties v. Union of India, AIR 1997 SC 1203, wherein it has been laid down that this Court can award compensation in a writ petition, to the persons entitled more so when negligence on the part of the O.Ps. is writ large, as in the present case. We may also refer the decision in Kalpana Mandal & Ors. v. State of Orissa, (2007) 36 OCR 836 : 2007 (I) OLR-410, wherein compensation has been awarded to the wife of the victim, who died in indiscriminate firing at the bus by the Police while the deceased was traveling as a passenger in the bus. In the case at hand, the deceased was aged about 32 years on the date of his death and, as indicated above, he was an able-bodied youth and was a skilled labour.

7. Mr. B. Routray, Learned Counsel for the Petitioner, submits that for the death of the persons in police firing at Kalinga Nagar, a sum of Rs.5.00 lakhs each has been awarded to the next of kin of the deceased by the State Government. But here is a case where the death is not homicidal in nature but it is due to the negligence of the Police Officials, the accused got a chance to commit suicide, as the enquiry report reveals. Therefore, the present case cannot be equated with the incident of Kalinga Nagar. However, the irresistible conclusion would be that the State Government is vicariously liable to compensate the Petitioner because the deceased has lost his life and the Petitioner has lost her husband due to negligent act of the concerned Police Officers. Had they acted properly as per the provision of law and bit diligent in their duties, such untoward incident could not have occurred.

Considering the age of the deceased and the circumstances, in which the deceased died, we are of the considered opinion that an amount of Rs.3.00 lakhs (rupees three lakhs) as compensation to the Petitioner would be just and proper and we direct accordingly. Let the aforesaid amount be paid to the Petitioner-Ahalya Pradhan, the wife of the deceased, within three months from today. On payment of the same, an amount of Rs.2.50 lakhs (rupees two lakhs and fifty thousand) shall be kept in Fixed Deposit in any nationlised bank jointly in the names of the Petitioner and other preferential legal heirs of the deceased Pitambar Pradhan, if any, for a period of seven and half years and the balance amount shall be paid to the Petitioner.

The Writ Petition is accordingly allowed.

A free copy of this order be supplied to the Learned Counsel for the State.

R. N. Biswal, J. I agree.

Writ Petition allowed.