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The Aurangabad bench of Bombay High Court awarded Rs. 5 lakh compensation to the family of an allegedly juvenile victim of custodial death who was arrested on suspicion of pickpocketing at Shirdi temple. The two-judge bench of Justices TV Nalawade and Shrikant D Kulkarni, while leaving the criminal trial to the trial court, concluded that the factual scenario determined that it was a case of custodial death and hence compensation was justified. The court also called out the erring police officials for not following the law and the guidelines laid down in the DK Basu case during or at the time of arrest.
Background of case
The petitioner sought ex gratia compensation of Rs. 10 Lakhs as his son, Kiran Rokade died while in custody as also an FIR under section 302 of Indian Penal Code against the police officers responsible for the same and departmental inquiry against SP, Ahmednagar.
The background, as asserted by the petitioner is that Kiran, his son was picked up by police officials of Shirdi Police station on suspicion of pickpocketing and when the family was made aware of this, they went to police station where Kiran was seated on the floor and was being interrogated. The petitioner and other family members were asked to go away. After a while the police carried something covered in a blanket to Saibaba Hospital, which the family of the deceased witnessed. When they reached the hospital, it was disclosed by doctors that Kiran was dead.
When the petitioner rushed to the police station to file FIR for custodial death, the same was denied, and hence the petitioner sent a complaint to the Superintendent of Police, C.I.D. Crime Branch, Pune and also requested post mortem. Finally, after 4 days of the death, a post-mortem was conducted.
Kiran was 15 years old and the petitioner stated that the family was not informed of the arrest; there was no entry in the concerned register; no arrest panchnama was conducted, CCTV cameras were deliberately switched off and the dead body was taken to the hospital and thereafter, the concerned officer ran away. The petitioner held Deputy Superintendent of Police Mr Vivek Patil, P.I. Pramod Wagh, Police Naik Mane, Police Avhad and P.S.O. Ayyub Shaikh Rajjaq Shaikh responsible for custodial death of his deceased son. The post mortem stated that the death was probably caused due to abrasion over the neck.
The court left it up to the trial court to decide whether section 302 IPC charge should be invoked against the police officers as case was already registered under section 342 (wrongful confinement), 306 (abetment of suicide) and 34 (common intention) of IPC and charge sheet has been filed. The court held that whether the death was homicidal or suicidal would be decided by the trial court and this court was concerned with the ex gratia compensation prayed for by the petitioner.
After perusal of material records that Kiran was kept in custody on March 31, 2016, the court held that it was crystal clear that Kiran died in police lock up and hence his death qualifies as “custodial death”.
The respondents argued that it was a case of suicidal death and hence the State was not liable to pay compensation for it. The court observed that the police had violated all guidelines laid out under D.K. Basu Vs. State of West Bengal and ors., (1997) 1 SCC 416 as no arrest punchnama was made and the family was not informed of the arrest. “No enquiry was conducted about the age of Kiran Rokade, whether he was juvenile and straightway put him in the lock up which unfortunately resulted in his custodial death,” the court observed.
Legal provisions highlighted by the court
The bench highlighted the many provisions of law which need to be strictly followed by police.
Section 41 of (CrPC) gives the procedure to arrest the person without warrant for the purpose of investigation of an offence provided the conditions mentioned in Section 41 are satisfied. Section 41-B of Cr.P.C. relates to the precautions, which need to be taken during the procedure of arrest. The provision shows that it is mandatory to prepare memorandum of arrest, which shall be attested atleast by one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made. The arrest memo needs to be countersigned by the person arrested. The provision also shows that if such memorandum is not attested by a member of family of accused then it needs to be informed to the accused that he has right to have a relative or a friend named by him to be informed of his arrest.
Section 54 of CrPC was also violated as no medical examination of the deceased was conducted after arrest. Further, Section 41 (D) of CrPC states that when a person is arrested and interrogated by the Police, the said person shall be entitled to meet an advocate of his choice during interrogation, though not throughout; which was also not provided to the deceased.
The court also pointed towards the constitutional provisions, “Article 21 of the Constitution of India speaks that the procedure established by law needs to be followed strictly by Police effecting arrest and detaining a person. Article 22(1) and 22(2) of the Constitution of India give safeguards against arbitrary arrest and detention and while making law, the limitations and conditions put by Article 22 need to be kept in mind.”
Determining compensation
Before determining compensation, the court quoted an extract from the DK Basu judgment about providing compensation to families of victims of custodial deaths, which inter alia states that “The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer.” The judgment deems compensation in such cases to be “relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them.”
The court relied upon the apex court’s judgement in Sarla Verma (Smt.) and ors., Vs. Delhi Transport Corporation and anr., (2009) SCC 121. The court used the formula used therein which was a case under Motor Vehicles Act which took into consideration age of the deceased and his notional income per year and calculated the sum to be Rs. 5 Lakhs.
The court directed the State to deposit Rs. 5 lakhs to the court within 45 days and if not deposited within that period then an interest of 8% pa would accrue. The court stated that once the amount is received it shall be handed over equally to the parents of the deceased.
The court further stated that the State was at liberty to recover the amount of compensation of Rs.5 lakhs from the erring police officials concerned as and when the liability for the crime in question is fastened.
The judgment may be read here.
Related:
Police can’t use non-functional CCTV camera as defense: Bombay HC
Custodial deaths: Relatives can take photos, videos of dead body before post mortem says Madras HC
End Custodial Torture: SC’s new comprehensive directions on CCTVs in police stations