Subash Mohapatra and others VS State of Odisha and others
WP(C)11979 of 2004

ORDER of 21st August 2014
The instant petition seeks to invoke the extra-ordinary jurisdiction of this Court for grant of compensation for the custodial death of one Dhaneswar Pradhan, son of petitioner nos.3 and 4 while lodged in Nayagarh Jail in connection with Ranpur P.S. Case No.136/2004 under Section 376, I.P.C.

We have heard Mr. D.P. Dhal, learned counsel for the petitioners and Mr. R.K. Mohapatra, learned Government Advocate for opposite parties.

The facts, in brief, necessary for present adjudication, are that the deceased arrested in the above case, while in custody, contacted with high fever in the evening of 06.10.2004 and eventually after going into delirium, collapsed on 08.10.2004. The sensational incident was spread wide coverage in local media. Be that as it may, U.D. Case No.26 of 2004 was registered on this episode. Parallelly, a Magisterial enquiry was also ordered to unearth the correct state of affairs. The Sub Divisional Magistrate, Nayagarh after conducting the fact finding enquiry, submitted his report on 11.10.2004 in which he recorded the conclusion as herein below:

From my enquiry as well as from the statements recorded as per enclosures separately attached, it leads to believe that there was slackness on the part of the Jail Administration and above all the negligence on the part of Pharmacist as well as Jail Medical Officer was the cause of death of the U.T.P. The matter was taken very casually without having any due care and personal attention. As the matter has been reported to the I.I.C. Nayagarh P.s. and Inquest as well as Post mortem has already been made on 08.10.2004, the exact cause of death is awaited.

A perusal of the said report, clearly indicates that medical treatment ought to have been administered to the deceased, was not provided resulting in his untimely death. According to the inquiry officer, the statement of the attending doctor revealed that though the deteriorating health condition was brought to the knowledge  of the Pharmacist, at 12.30 P.M of that fateful day, he was casual in the matter and did not attach the required importance thus demonstrating callous and negligence attitude. Be that as it may, in the above factual backdrop of the matter, the instant petition has been filed seeking appropriate writ or direction for conduct of an enquiry into the incident by the C.B.I. and also to compute and release adequate amount of compensation for the death of the young son of the petitioner Nos.3 and 4.

In the counter affidavits filed by opposite party nos.3 and 5, neither the factum of the illness of the deceased nor the death of the detenu while in judicial custody has been denied. In substance the stand of the aforementioned opposite parties is that after he complained of fever accompanied by vomiting as per the advice of the jail Medical Officer and Pharmacist, he was given proper medical attention. For the said reason, his blood sample was also collected to investigate as to whether it contained Malaria Parasite, but the investigation could not be pursued as it was in the late of the evening. According to them, as the condition of the detenu deteriorated after midnight whereafter he was rushed to District Headquarter Hospital, Nayagarh where he was declared dead. They denied of any torture or assault on the deceased. According to them, the viscera that was sent for forensic examination also did not disclose that he consumed poison or toxic food resulting in his death.

Mr. Dhal has argued that as the facts unmistakably reveal that the son of petitioner Nos.3 and 4 died an unnatural death while in judicial custody, they are entitled to adequate compensation. Learned counsel for the petitioners in passage of time has not insisted for direction to the C.B.I. for enquiry to that incident. Mr. R.K. Mohapatra, learned Government Advocate in reply while reiterating the pleaded stand of opposite party has also referred to the opinion of the Forensic Science Laboratory, Rasulgarh at Bhubaneswar that the death of Dhaneswar Pradhan had been caused due to natural disease process mostly due to Malaria. He however submitted that there being absence of any torture or assault or deliberate poisoning on the deceased, no criminal liability can be attached to the Jail authorities.

Upon hearing learned counsel for the parties and on consideration of the pleaded facts and documents on record and more particularly the detailed enquiry report submitted by the Sub-Divisional Magistrate, we are of the considered opinion that the death of Dhaneswar Pradhan while in judicial custody had been due to callousness and negligence on the part of the jail authorities, more particularly, the attending doctor. True it is, that the enquiry did not disclose any sign or mark of assault on him and the report of Forensic Science Laboratory, Bhubaneswar also did not indicate death due to poisoning. It cannot be stated that the death, in any manner it had occurred to Dhaneswar Pradhan, can no means be said to be natural. It is more apparent that at the relevant point of time the deceased had high fever calling for necessary medical attention, which the jail authorities failed to provide. Having regard to the purport and explanation of Article 21 of the Constitution of India, there cannot be any manner of doubt that the deceased, though a detenu, was entitled constitutionally to be provided with due care and attention during his illness. As same was not provided to him resulting in his death, we are constrained to hold that the State Government is vicariously liable for the death and/omission resulting in violation of the Constitutional right of the detenu to compensate petitioner nos.3(mother) and 4 (father) in adequate terms.

In course of arguments, on a query being made by us, it is submitted at the Bar that at the time of death of Dhaneswar Pradhan he was aged about 20 years. Learned counsel for the petitioners has submitted that at the relevant time he did earn his livelihood being engaged as labourer. His family comprises of old ailing parents who were depending on the deceased for their sustenance.  The untimely death of Dhaneswar Pradhan definitely has caused a serious setback in their lives apart from mental agony in connection with such tragedy.

Compensation in a writ proceeding can never be a substitute for loss of life and normally by way of palliative and token in the nature of subsistence. Thus, by no means, as has been held by the apex Court in catena of decisions, there is a bar to a person to pursue other remedies available in law. The amount of compensation is only on the touchstone of violation of Article 21 of the Constitution of India. This does not bar reiterate to other remedies civil or criminal available to the person concerned.

Be that as it may, a cumulative consideration of all factors, we are of the considered opinion that  on a mere modest estimate, petitioner Nos.3 and 4 are entitled to an amount of Rs.3,00,000/- (Rupees three lakhs) by way of compensation payable by the State and its functionaries within a period of four weeks from herefrom. As because the case is of the year 2004 and a decade has passed in between, we request Mr. R.K. Mohapatra, learned Government Advocate to take cognizance of this order and move the State machineries for early release of the amount of compensation. However, a copy of this judgment and order also be furnished to Mr. R.K. Mohapatra, learned Government Advocate so as to enable him to follow up the process.

The petition is allowed on the above terms.

..                                                                  Amitava Roy, C.J.

..                                                                Dr. B.R. Sarangi, J.