P.K Musahary, J:—

“There's none can comfort mother,

Now that her boy is dead.

2. Lord Denning quoted in his work “The Family Story” from ‘Pathetic Song’ to describe the deep sorrow of a mother, whose son died a martyr in the war field at the age of 23. Here is a case unlike the one, which Lord Denning refers to. The petitioner, as a mother has lost her young son in jail custody. No matter, his was not a martyr's death, yet all mothers carry sorrow alike on the death of their sons. None can, probably, comfort this UTP's mother too. This grief stricken 65 years old widow, rustic, illiterate and poor mother is before us to bring to our notice, thus:

3. There was an FIR lodged by one Smt. Konmai Buragohain on 22.5.2010 with the Officer-in-charge, Sadiya Police Station, alleging that on 20.5.2010, petitioner's deceased son Mandil Buragohain @ Borgohain forcefully kidnapped her minor daughter, aged about 14 years, Miss Boby Buragohain. The police registered a case, being Sadiya P.S Case 'No. 31 of 2010, under section 366A, IPC against the petitioner's son. The police arrested and produced him before the court of SDJM, Sadiya on 23.5.2010 The IO of the case made a prayer to remand Mandil to jail custody so as to enable him to complete the investigation. Accordingly, the learned SDJM, vide his order dated 25.5.2010 rejected the bail petition moved for Mandil and remanded him to jail custody. On 30.7.2010 the petitioner's son Mandil Buragohain @ Borgohain died in the district jail at Sapakhowa under mysterious circumstances. Initially, in regard to the said incident, Sadiya Police Station UD Case No. 19/2010 was registered and an inquest was held over the dead body of UTP Mandil Buragohain @ Borgohain. Post mortem examination over the dead body was also conducted in the Assam Medical College and Hospital (AMCH), at Dibrugarh on 31.7.2010 The doctor concerned opined that the cause of death was asphyxia as a result of manual strangulation and the injuries described were ante mortem caused by blunt weapons. The petitioner has alleged that her son died in jail custody due to the fault of the State Government and as such, the State of Assam is vicariously liable for violation of fundamental rights guaranteed under article 21 of the Constitution of India. The State is also liable to pay adequate compensation for the death of her son.

4. This court, vide order dated 23.12.2010, issued notice upon the respondents making it returnable by 27.1.2011 In reply to the notice, the Inspector General of Prisons, Assam filed an affidavit on 10.3.2011 stating inter alia, that the UTP Mandil Buragohain @ Borgohain died in Sadiya District jail on 30.7.2010 and the post mortem was conducted over the dead body. On receipt of the post mortem report, the Superintendent, District Jail lodged an FIR on 30.8.2010 which was registered as Sadiya Police Station Case No. 52/2010 under section 302, IPC. An affidavit was also filed by the Superintendent of Police, Tinsukia on 10.3.2011 confirming the statements of the IG, Prisons about registration of the aforesaid Sadiya PS. Case and also initiation of investigation by the Officer-in-charge of Sadiya Police Station.

5. On receipt of the said affidavit, this court, vide order dated 7.4.2011, as an interim measure, directed the State of Assam to pay an amount of rupees one lakh as compensation to the petitioner for unnatural death of her son, within a period of four weeks from the date of order. In compliance of the said order an amount of Rs. 1 lakh has been paid to the petitioner as reflected from order dated 19.5.2011

6. The matter was posted for hearing on 21.12.2012 but none appeared on behalf of the petitioner. In the interest of justice, Mr. D. Chakraborty, learned counsel was appointed as amicus curiae to assist this court and the matter was directed to be listed on 11.1.2013 At the time of hearing Mr. P. Sen Deka, learned Addl. Senior Government Advocate has produced a status report in regard to investigation in the Sadiya P.S Case No. 52 of 2010.

7. We have heard Mr. D. Chakraborty, learned amicus curiae for the petitioner, Mr. P.S Deka learned senior Government Advocate and Mr. D. Das, learned Addl. Public Prosecutor for the state respondents.

8. We have also perused the up-to-date status report dated 5.1.2013 prepared and submitted by the Sub-Divisional Police Officer (SDPO), Sadiya. It is stated in the status report that after receipt of the post mortem report, the UD case was returned in FR on 1.9.2010 and an Ejahar was lodged by ASI Lakhinath Sonowal, which was registered as Sadiya P.S Case No. 52/2010 under section 302, IPC. During investigation the Investigating Officer examined the informant ASI, Lakhinath Sonowal and visited the district jail, Sadiya. The IO also recorded the statements of some UTPs including one Netra Bahadur Chetri and some jail staff but failed to collect substantive evidence. The 10 then engaged some UTPs as source to find out the culprit. On 7.9.2010 the 10 again visited the district jail at Sadiya where he examined and recorded the statements of four UTPs. Based on source input the 10 re-examined the said UTP Netra Bahadur Chetri and found sufficient evidence against him regarding his involvement in the case. The said UTP Netra Bahadur Chetri was accordingly brought for three days police remand and after due interrogation he was arrested and forwarded to judicial custody on 8.9.2010, in connection with the said case.

9. As per status report, during investigation, it was found that no enmity prevailed between the victim late Mandil Buragohain and the arrested accused Netra Bahadur Chetri. The 10 intended to interrogate the victim girl Miss Boby Buragohain in connection with Sadiya PS. Case No. 31/2010 under section 366A, IPC but it could not be done so as all her family members had already left the village after the alleged occurrence and villagers could not furnish the whereabout of the family members of Boby Buragohain. Similarly the 10 visited the village of Netra Bahadur Chetri on 7.6.2011 but none of the family members could be found as the family had already shifted to some unknown place. However, the 10 examined some neighbours of the deceased Mandil Buragohain @ Borgohain and accused Netra Bahadur Chetri and from their statements the 10 found that there was no enmity or dispute between the above deceased and the accused.

10. In the aforesaid status report the SDPO recorded his supervisory notes with certain suggestions on further actions to be taken in the investigation of the said case, which are as follows—

“1. The sketch map of the P.O Shows that at the time of death of late Mondil Buragohain there were nine other convicts/UTPs inside the ward. It is not possible to murder a person without the knowledge of the other inmates inside a closed ward. Therefore the I/O strictly instructed to re-examine the other inmates.

2. The statement of UTP Pradip Basumatary is yet to be recorded.

3. The I/O is also asked to find the names of the inmates of the adjacent ward from the Sadiya Jail authorities. The I/O is to ascertain if they have heard any noise of struggle from the neighbouring ward and if so at what time.

4. He is to find out the guard duty from the jail authorities between 8.00 p.m to 4.30 a.m of the fateful night. This is not the duties of the inmates but the duty of any constable detailed by the jail authorities.

5. He is to also ascertain if late Mondil Buragohain was physically or mentally abused by the jail authorities.

6. The accused Sri Netra Bh. Chetry in his statement under section 161, Cr. PC has said that he strangulated the deceased at 1.00 a.m to 1.30 a.m when rest of the inmates were sleeping. But the statement of Paresh Tiware shows that he was on ward duty between 12.00 a.m to 2.00 a.m thereby contradicting the statement of Netra Bh. Chetry. Therefore, the I/O is instructed to re-examine the statement of Paresh Tiware.”

11. From the above status report, there is no doubt, rather it stands as an admitted position, that the UTP Mondil Buragohain @ Borgohain died in the Sadiya District Jail on 30.7.2010 In the affidavit filed on 10.3.2011 on behalf of IG Prisons, Assam (paragraph 2) it is clearly stated that “body of the UTP, Mandil Buragohain who died in the Sadiya District Jail on 30.7.2010 a post mortem was conducted and the post mortem report revealed that the UTP died of strangulation”. In another affidavit filed on 10.3.2011 by the S.P Tinsukia (paragraph 5) it is stated that “the Executive Magistrate Sri Monujyoti Kutum, ACS held the inquest over the dead body of Mondil Buragohain who was found lying dead on the cell of District Jail, Sadiya…” In paragraph 10 of the said affidavit it has also been stated that IO obtained the post mortem report from Assam Medical College, Dibrugarh who opined that “Death was due to Asphyxia as a result of manual strangulation. All injuries described are ante-mortem and caused by blunt weapon. Homicidal in nature”. Further it is stated in the said affidavit that as the death of the victim was homicidal, ASI Lakhinath lodged an FIR at Sadiya Police Station which was registered as Sadiya Police Station Case No. 52/2010 under section 302, IPC and SI Uma Raj Konwar, Officer-in-charge, Sadiya Police Station took up the investigation.

12. The above status report as well as the affidavit filed by the authorities concerned clearly establish the fact that the deceased Mandil Buragohain was killed on 30.7.2010 while he was in jail custody as an UTP in connection with Sadiya P.S Case No. 31/2010 under section 366A, IPC corresponding to GR case No. 45/2010.

13. The respondents, going by the averments made in their counter affidavits and the informations furnished in the status report, cannot deny that the UTP Mandil Buragohain died in the district jail. His death was in the custody of the district jail authorities. The State may be hesitant to admit it as a case of custodial death, inasmuch, as the respondent authorities had shown a tendency to say that although the UTP died in jail, no fault or liability could be attributed to them for his death as, according to them, the UTP was killed by a co-UTP inside the jail. Going by their stand, if it is to be accepted that the UTP was killed by a co-UTP, it must also be accepted that the State failed to protect the life of the UTP inside the jail while he was in custody of the State. Can there be a denial of right to life to a citizen of India simply because he has been put behind the bars for a impending trial or serving sentence after trial and on being convicted? The answer must be an emphatic ‘no’, yet we would like to get ourselves enlightened from the observations of hon'ble Mr. Justice A.S Anand (as His Lordship was then), while delivering a concurring judgment in Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, which is reproduced hereunder:

“(2) Convicts, prisoners or undertrials 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, undertrial or convict. His liberty is in the very nature of things circumscribed by 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 wrongdoer 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” in such cases is not available to the State.”

14. Following the aforesaid observations, the Apex Court in the said case, held in clear and specific terms, as quoted hereunder:

“31. It is axiomatic that convicts, prisoners or undertrials are not denuded of their fundamental rights under Article 21 and it is also 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 law, while the citizen is in its custody. The precious right guaranteed by article 21 of the Constitution of India cannot be denied to convicts, undertrials or other prisoners in custody, except according to procedure established by law. 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 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 wrongdoer 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.………”

15. In view of the above settled position of law, we are bound to hold that respondent-State and its authorities are liable for their failure in protecting the life and liberty of the UTP Mandil Buragohain.

16. Having found that the deceased died in jail custody we would now turn to petitioner's claim for payment of compensation due to death of her son. Normally a party who demands compensation for custodial death has to go for action under the private law. But this is not so is all the cases. The judicial activism has evolved the public law remedy.

17. Consistently it is viewed that custodial death is one of the worst crimes in a society governed by the rule of law. The recurrence of custodial death is prevailing in our country. The question of payment of compensation to the next of kin of the deceased have been considered on several occasions by the Apex Court as well as by various High Courts in exercise of powers vested under article 226 of the Constitution of India. The case of Rudul Sah v. State of Bihar, (1983) 4 SCC 141 : AIR 1983 SC 1086 is one of the leading cases in this respect. It was a case where the petitioner was acquitted in a criminal case but he was released from jail after more than 14 years. The State tried to justify his detention by filing an affidavit that the petitioner was suffering from insanity but it failed to produce any medical proof in support of the diagnosis that he was insane. It was rather confirmed by the civil surgeon of Muzaffarpur, who filed an affidavit, that the petitioner was normal. A great injustice was done to the said petitioner and the Apex Court, therefore, took the view that the State must repair the damage done by its officers to the petitioner's right. Taking into account that the petitioner in the said case was detained illegally in prison for over 14 years after his acquittal it was held that the petitioner was entitled to payment of money under the public law in the nature of compensation consequential upon deprivation of a fundamental right to life and liberty of a petitioner. In the said case, as an interim measure the state was directed to pay a sum Rs. 30,000 in addition to sum of Rs. 5,000 already paid by it to the petitioner. The above compensation was ordered in the public law proceedings. There is no more dispute in law that interim compensation in the matter of custodial death could be awarded under the public law proceedings with liberty granted to the claimant to move the civil court for damages for the tortious act of the State. It may be noted that while ordering payment of above amount as compensation under public law proceeding, it was provided that the said order would not preclude the petitioner from bringing a suit to recover appropriate damages from a State and its erring officials. Further it was made clear that the said order of compensation was passed in the nature of palliative inasmuch as a penniless victim could not be left helpless until the end of his suit under private law.

18. In this regard, we would like to refer ourselves to the observations and law settled in Nilabati Behera's case (supra) which we consider apt to quote hereunder for better appreciation:

“34. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under article 32 by this court or under article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting “compensation” in proceedings under article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ‘monetary amends’ under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of ‘exemplary damages’ awarded against the wrongdoer for the breach of its public law and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.”

19. What we have been made to understand, better say directed by the Apex Court, is that in the process of judicial activism, a writ court, in a proved case of custodial death, should, under the public law remedy direct the State to pay ‘just’ compensation to the victim or his next of kins by way of ‘monetary amends’ and redressal without affecting the party's right under the private law remedy. Now, what should be the ‘just’ compensation in this case? Nothing has been stated in this petition about the occupation, source of income or monthly income of the victim. The petitioner has simply presented her victim son as a young man of about 23 years. In the post mortem report, the doctor concerned recorded his age as 25 years. Such a young man at his age between 23 and 25 years, unless shown or proved suffering from physical or other disability or serious ailment, is accepted to secure suitable job or employ himself gain fully in near future or could have earned his livelihood by engaging himself in manual work as daily wage earner to feed himself and his old widowed mother. Conservatively assessed, the victim might have earned at least Rs. 3,000 per month and he would have continued to earn so or more for at least 30 years till his death, say at the age of 55, the minimum average longevity of a person in the present days. We have no business to sit down and calculate the exact income of the victim for awarding compensation under the public law remedy, which is purely palliative in nature not being a final award with further scope for taking up the claim in appropriate forum under the private tort law action.

20. A Division Bench of this court in Rajen Gogoi v. Union of India, 1995 (2) GLT 3841. awarded compensation of Rs. 2,50,000 with cost of Rs. 3,000 to be paid by the Union of India. In the said case detenue was arrested by army and he was not produced before any magistrate or handed over to police. We do not want to cite more of like cases where the courts in our country have granted monetary or pecuniary compensation in established cases of custodial torture and death. In the light of consideration and decision taken by this court in the aforesaid case (Rajen Gogoi), and considering the rapid escalation of price in essential commodities and cost of living that has taken place in the last 17 years since 1995, we consider that in the present case the ‘just’ amount of compensation could be quantified at Rs. 3 lakhs in addition to the earlier amount of Rs. 1 lakh, which has been paid already, to the petitioner. We, accordingly direct that the respondent-State of Assam shall pay an amount of Rs. 3 lakhs in addition to Rs. 1 lakh, ordered to be paid earlier, as compensation plus litigation cost of Rs. 10,000 to the petitioner, as the mother of victim Mandil Buragohain @ Borgohain within a period of six months from the date of receipt of a copy of this order.

21. We make it clear that the award of this compensation will not affect any other liability of the respondent or other person emanating from the custodial death of the said victim.

22. Before parting with the records, we regretfully express our anguish and dis-satisfaction over the manner in which the police has taken up the investigation with no serious concern and its failure to submit the charge sheet against the culprit although a period of more than 2 years has elapsed and no action has been taken to fix the responsibility on the officials/staff for whose negligence and laxity in their duties, the victim could be killed inside the jail. The jail authority, or for that matter, the State Police Department must be able to find out how an UTP could be killed inside the jail. The lapse of the State and its officials cannot be excused. We direct the respondent No. 2, Home Secretary to the Government of Assam, to hand over the Sadiya Police Station Case No. 52/2010 to the CID for effective investigation and fixing the responsibility on the defaulting officials/staff concerned and taking appropriate action against the guilty officials/staff of the district jail. The respondent No. 2 shall submit a compliance report on handing over of case to CID within a period of 21 days from today. He is also directed to submit a detailed report to the Registrar General of this court on the action taken after completion of investigation by the CID.

23. With a aforesaid observations and directions this petition stands allowed and disposed of. Let the learned amicus curiae be paid Rs. 5,000 as legal fee for the legal service rendered by him.

24. Let a true copy of this order be sent to respondent No. 2, Home Secretary, respondent No. 3, Director General of Police and respondent No. 4, Director General of Prisons immediately for their needful.