Holding

The Court held that Suman Behera died due to injuries inflicted while in police custody, constituting a custodial death, and that the State is strictly liable to pay compensation of Rs.1,50,000 under Article 21, with sovereign immunity inapplicable in this public‑law remedy.

Summary

Smt. Nilabati Behera filed a writ petition under Article 32 alleging that her son, Suman Behera, died in police custody due to injuries inflicted by police and that his body was later dumped on a railway track. The State of Orissa contended that the son escaped custody and was killed in a train accident, denying liability. The Court examined the medical post‑mortem report, forensic evidence, and the lack of any credible evidence of an escape, concluding that the injuries were caused by police beating, constituting a custodial death. It held that the State is strictly liable to compensate for the violation of Article 21, and that sovereign immunity does not bar such compensation in public‑law proceedings under Articles 32 and 226. Accordingly, the Court ordered the State to pay Rs.1,50,000 as compensation and Rs.10,000 as costs, with the payment to be made via a term‑deposit scheme.

Issues considered

The factual question whether Suman Behera's death was a custodial death caused by police violence or a train accident after an alleged escape.
Whether the State is liable to pay monetary compensation for violation of the fundamental right to life under Article 21 in a writ petition under Article 32.
Whether sovereign immunity can be invoked by the State to avoid compensation in such public‑law remedies.
The appropriate quantum of compensation for a custodial death.
The distinction between public‑law compensation and private‑law tort damages.

Legislation cited

Code of Criminal Procedure, 1973s. Section 176, s. Section 357(5)
Constitution of Indias. Article 142, s. Article 21, s. Article 226, s. Article 32
Motor Vehicles Act, 1988s. Section 141(3)

Subjects

custodial deathcompensationfundamental right to lifeArticle 21Article 32sovereign immunitypublic law remedypolice torturestrict liability

Judgment

SMT. NILABATI BEHERA ALIAS LAUT BEHERA (THROUGH A
THE SUPREME COURT LEGAL AID COMMITTEE)
v.
STATE OF ORISSA AND ORS.

MARCH 24, 1993
?- B
• (J.S. VERMA, DR. A.S. ANAND AND N. VENKATACHALA, JJ.)

Constitution of India, 195<>-Alticle 32-1.etter of a mother infomiing
Supreme Court death of her son in custody-Writ petitimr-Appreciation· of
evidence-Whether the death ofpetitioner's son in police custody due to police c
bTUta/ity.

)-· Constitution of India, 1951>--Articles 32, 226-Death in police cus-
tody-Power of Supreme Court/High Court to award compensation for con-
travention of fundamental right to life guaranteed under Article il--Purpose
of public law proceedings-Remedy in public law proceedings-/lole of D
Courts--Payment of Compensation-Fixation-Directions of Supreme Court
on mode of payment and appropriate actions against individuals responsible
for custodial death.

Petitioner's son, aged about 22 years was taken from his home In E
'r police custody at about 8 a.m. on 1.12.1987 by respondent No.6, Assistant
Sub-Inspector or Police or the Police Outpost in connection with the
investigation or an offence or theft. He was detained at the Police outpost.

- On 2.12.1987, at about 2 p.m. the petitjimer "8me to know that the
dead body of her son was round on the railway track. There were multiple F
injuries on the body and his death was unnatural, caused by thooe Injuries.
~
The petitioner alleged in her letter dated 14.9.1988, whieh was treated
as a writ petition under Article 32 of the Constitution, that it was a case
of custodial death since her son died as a result of the multiple Injuries
inflicted to him while he was in police custody and thereafter his dead body
G
was thrown on the railway track. It was prayed in the petition that award
y or compensation be made to her, for contravention or the fundamental
right to life guaranteed under Article 21 of the Constitution.

The defence of the respondents was that petitioner'.• son managed to H
581
582 SUPREMECOURTREPORTS [1993) 2 S.C.R.

A escape from police custody at about 3 a.m. on 2.12.1987 from the Police,
Outpost, where be was detained; that thereafter be could not be ap-
prehended in spite of a search and that his dea.d body was found on the
railway track on 2.12.1987 with multiple injuries, which indicated that he
was run over by a train. The respondents denied the allegation of custodial
death and their responsibility for the unnatural death of petitioner's son.
B
On 4.3.1991, this Court directed the District Judge to hold an inquiry
into the matter and to submit a report. After bearing the parties and
appreciating the evidence the District Judge submitted the Inquiry Report
dated 4.9.1991. The District Judge found that petitioner's son died on
C account of multiple injuries inflicted to him while he was in police custody
at the Police Outpost.

The correctness of the finding of the District Judge in his report was
assailed in this Court.

D The respondents contended that petitioner's son managed to escape
from police custody at about 3 a.m. on 2.12.1987; that be was run over by
a passing train and sustained the fatal injuries; that the responsibility of
the respondents for his safety came to an end the moment he escaped from
police custody; and that the factual foundation for State's liability for
payment of compensation for violation of the fundamental right to life
E under Article 21 was absent.

Allowing the petition, this Court,

HELD: (per J.S. Verma, !. on his behalf and on behalf of N.
Venkatachala, !.)
F
1.01. There is no cogent independent evidence of any search made by
the police to apprehend petitioner's son, if the defence of his escape from
police custody be true. On the contrary, after discovery of the dead body
on the railway track in the morning by some railwaymen, it was much later
G in the day that the police reached the spot to. take charge of the dead body.
This conduct of the concerned police officers is also a significant cir·
cumstance to assess credibility of the defence version. (591 G-H]

1.02. The medical evidence comprising the testimony of the doctor,
who conducted the post-mortem, excludes the possibility ofall the injuries to
H the deceased being caused in a train accident while indicating that all of
NILABATillEHERA v. STATE OF ORISSA 583
.--4.... them could result from the merciless beating given to him. (594 H·595AJ A
1.03. An inquiry under Section 176 Cr.P.C. is contemplated Inde-
pendently by a Magistrate and not joindy with a police officer when the
role of the police officers itself is a matter of inquiry. [5'J5 F)

-+ 1.04. There was baud-cuff on the bands of the deceased when his B
- body was found on the railway track with rope around iL It is significant
that the Report dated 11.3.1988 of the Regional Forensic Science
Laboratory mentions that the two cut ends of the two pieces of rope which
were sent for examination do not match with each other in respect of
physical appearance. This finding about the rope negatives the
respondents' suggestion that the petitioner's son managed to escape from
c
police custody by chewing otr the rope with which be was tied. (595 G-HJ
-~

1.05. It is a case nf custodial death, and the deceased died as a result
of the injuries inflicted to him voluntarily while be was in police custody
at the Police OutposL (596 A] D

2.01. Award of compensation in a proceeding under Article 32 by this
Court or by the High Court under Article 226 of the Constitution is a
remedy available in public law, based on strict liability for contravention
• of fundamental rights to which the principle of sovereign immunity does
'r E
not apply, eveu though it may be available as a defence in private law in
an action based ou torL This is a distinction between the two remedies to
be borne in mind which also indicates the basis on which compensation is

- awarded in such proceedings. (596 G]

2.02. Enforcement of the constitutional right and grant of redress F
embraces award of compensation as part of the legal consequences of its
contravention. (602 A)

2.03 •. A claim in public law for compensation for contravention of
human rights and fundamental freedoms, the protection of which is
guaranteed in the Constitution, is an acknowledged remedy for enforce· G
ment and protection, of such rights, and such a claim based on strict
liability made by resorting to a constitutional remedy provided for the
enforcement of a fundamental right is distinct from, and in addition to,
the remedy in private law for damages for the tort resulting from the
contravention oftbe fundamental righL The defence of sovereign immunity H
584 SUPREME COURT REPORTS [1993) 2 S.C.R.

A being inapplicable, and alien to the concept or guarantee or rundamenlBI
rights, tbere can be no question or such a defence being available in the
constitutional remedy. It is this principle which justifies award or
monetary compensation ror contravention or fundamental rights guaran-
teed by the Constitution, when that is the only practicable mode or redress
available ror the contravention made by the State or its servants in the
B +
purported exercise of their powers, and enforcement of the fundamental
right is claimed by resort to the remedy in public law under the Constitu-
lion by recourse to Articles 32 and 226 or the Constitution. [602 B-DJ
-
2.04. The Court is not helpless and the wide powers given to this
c Court by Article 32, which itself is a fundamental right, imposes a con·
stitntional obligation on this Court to forge such new tools, which may be
necessary for doing complete justice and enforcing the fundamental rights
·~
guaranteed in the Constitution, which enable the award or monetary
compensation in appropriate cases, where that is the only mode or redress
available. (603 DJ
D
2.05. The power available to this Court under Article 142 is also an
enabling provision in this behair. The contrary view would not merely render
the court powerless and the constitutional guarantee a mirage, but, may, in
certain situations, be an incentive to extinguish lire, ir for the extreme con-
E travention the court is powerless to grant any relier against the State, except •
·y
by punishment or the wrongdoer for the resulting offence, and recovery or
damages under private law, by the ordinary process. [603 E-FJ

F
2.06. Ir the guarantee that deprivation or life and personal liberty
cannot be made except in accordance with law, is to be real, the enforce-
ment of the right in case of every contravention must also be possible in
-
the constitutional scheme, the mode of redress being I.hat which is ap-
propriate lo the facts of each case. [603 Fl }-

2.07. This remedy in public law has to be more readily available whe.o
invoked by the havenots, who are not possessed of the wherewithal for
G
enforcement of their rights in private law, even though its exercise is to be
tempered by judicial restraint to avoid circumvention of private law
remedies, where more appropriate. [603 G] y

2.08. The principle of which the Court's power under Articles 32 alld
H 226 of the Constitution is exercised to award monetary compensation for
I

·-
NILABATI BEHERA v. STATE OF ORISSA 585

contravention of a fundamental right. [604 BJ A
Rudul Sah v. State of Bihar and Another, [1983] 3 S.C.R. 508; Sebas-
tian M. Hongray v. Union of India and Others, [1984] l ·S.C.R. 904 and
(1984) 3 S.C.R. 544; Bhim Singh v. State of J. & K, [1984) Supp. S;C.C. 504
and [1985) 4 S.C.C. 677; Sahel~ A Women's Resources Centre and Others v.
Commissioner of Police, Delhi Police Headquarters and Others, [1990) 1 B
S.C.C. 422; State of Maharashtra and Others v. Ravikant S. Pati~ [1991) 2
S.C.C. 373; Maharaj v. Attorney-General of Trinidad and Tobago, (No.2),
(1978) 3 All.E.R. 670; Khatri and Others (W) v. State of Bihar and Others,
[1981) 2 S.C.C. 493 and Union Carbide Corporation and Others v. Union oi
India and Others, (1991] 4 S.C.C. 584, referml to. C
.,._ Kasturilal Raua Ram Jain v. The State of Uttar Pradesh,_ (1965) 1
S.C.R. 375, distinguished.

Ratan/a/ & Dhirajlal's Law of Torts, 22nd Edition, 1992, hy Justice
G.P. Singh, at pages 44 to 48, referml to. D
2.09. In the present case, on the finding reached, It Is a clear case for
award of compensation to the petitioner for the custodial death of her son.
[604 DJ
2.10. The deceased was aged about 22 yars and bad a monthly E
Income between Rs.1200 to Rs.1500. A total amount of Rs.1,50,000 would
be appropriate as compensation, to be awarded to the petitioner la the _
present case. [604 E]

2.11. The respondent-State of Orissa Is directed to pay the sum of
Rs.1,50,000 to the petitioner as compensation and a further snm or F
Rs.10,000 as costs to be paid to the Supreme Court Legal Aid Committee.
The mode or payment or Rs.1,S0,000 to the petitioner would be, by making
a term deposit orthat amount in a scheduled bank in the petitioner's name
for a period orthree yars, during which she would receive only the Interest
payable thereon, the principal amount being payable to her on expiry of G
the term. The Collector of the District will take the necessary steps in this
behalf, and report compliance· to the Register (Judicial) or this Court
within three months. [604 H, 605-A]

2.12. The State of Orissa Is expected to take the necessary further
action to ascertain and fix the responsibility or the Individuals responsible H
-~

586 SUPREME COURT REPORTS (1993] 2 S.C.R.

A for the custodial death or petitioner's son ·and also take all available
appropriate actions against each or them. (605 CJ

Per Dr. A.S. Anand, J. (Concuning)

1.01. Convicts, prisoners or under-trials are not denuded or their
B rundamental rights under Article 21 and it is only such restrictions, as are +
......
permitted by law, which can be imposed on the enjoyment or the fundamen-
tal rights by such persons. It is an obligation or the State, to ensure that
there is no inrringement or the indereasable rights or a citizen to tire, except
in accordance with law while the citizen is in its custody. (607 El
c 1.02. The precious right guaranteed by Article 21 or the Constitution
of India cannot be denied to convicts, under-trials or other prisoners in
custody, except according to procedure established by law. (607 El

1.03. There is a great responsibility on the police or prison
D authorities to ensure that the citizen in its custody is not deprived of bis
right to life. His liberty is in the very nature of things circumscribed by
the very fact or 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. [607 F]
E
1.04. The wrongdoer is accountable and the State is responsible if
the person In custody or the police is deprived of his life except according

F
to the procedure-established by law. (607 G]

1.05. The.death of petitioner's son was caused while he was in custody
of the police by police torture. A custodial death is perhaps one of the worst
--
crimes in a civilised society governed by the Rule or Law. ;I>-

1.06. The defence of "sovereign immunity'in such cases is not avail-
able to the State. (607 G]

G 2.01. Adverting to the grant or relief to the heirs of a victim of
custodial death for the infraction or invasion of his rights guaranteed
under Article 21 of the Constitution of India, it is not always enough to
relegate him to the ordinary remedy of a civil suit to claim damages for
the tortious act of the State as that remedy in private law indeed is
H available to the aggrieved party. (608 A]
NILABATI BEHERA v. STATE OF ORISSA 587

2.02. The citizen complaining of the infringement of the indefeasable A
right under Article 21 of the Constitution cannot be told that 'for tbe
established violation of the fundamental right to life, he cannot get any
relief under the public law by the courts exercising writ jurisdiction.
[608-B]
2.03. The primary source of the public law proceedings stems from B
the prerogative writs and the courts have, therefore, to evolve 'new tools'
to give relief in public law by moulding It according to the situation with
a view to preserve and protect the Rule of Law. [608 Cl

2.04. The old doctrine of only relegating the aggrieved to the C
remedies available in civil law limits the role of tbe courts too much as
protector and guarantor of the indefeasable rights of the citizens. The
courts have the obligation to satisfy the social aspirations of the citizens
because the courts and the law are for the people and expected tb respond
to their aspirations. (608 H, 609 A]
D
2.05. The public law proceedings serve a different purpose than the
private law proceedings. The relief ofmonetary 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 indefeasable right
y 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 guaran·
E.
teed basic and indefeasable rights of the citizen. (609 BJ

2.06. 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, which the court F
moulds the relief by granting 'compensation in proceedings under Artlcle32
or 226 of the Constitution seeking enforcement or protection offundamtntal
rights, it does so under the public law by way of penalising tbe 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. (609 CJ
G
2.07. The payment of compensation in such cases is not to be
understood, as it is generally understood in a civil ection 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 H
-4 I

588 SUPREME COURT REPORTS (1993) 2 S.C.R.

A of the citizen. [609 DJ
2.08. The compensation is in the nature or the exemplary damages'
awarded against the wrong-doer for the breach of its public law duty and r
B
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 prosecqte the
offender under the penal law. [609 El

2.09. This Court and the High Courts, being the protectors of the
civil liberties of the citizen, have not only the power and jurisdiction but L
c also an obligation to grant relief in exercise of its jurisdiction under
Articles 32 and 226 of the Constitution to the victim or the heir of the
victim.whose fundamental rights under Article 21 of the Constitution of ._, '
India are established to have been Oagrantly infringed by calUng upon the
State to repair the damage done by its officers to tbe fundamental rights
of the citizen, notwithstanding the right of the citizen to the remedy by way
D or a civil suit or criminal proceedings. [609 F-G) l
2.10. The State, or course, has the right to be indemnified by and take
such action as may be available to it against the wrongdoer in accordance t
with law -through appropriate proceeding. or course, relief in exercise of the
power under Article 32 or 226 would be granted only once it is established y
E
that there has been an.infringement ofthe fundamental rights of the citizen (
and no other form of appropriate redressal by the court in the facts and .·
circumstances orthe case, is possi~le. [609 H, 610A)

2.11. Law is in the process of development and the process neces-
r
•
F sitates developing separate public law procedures as also public law
principles. It may be necessary to identify the situations to which separate /
,_
proceedings and principles apply and the courts have to act firmly but with
certain amount of circumspection and self restraint, lest proceedings
under Article 32 or 226 are misused as a disguised substitute for civil
action in private law. [610 D-El
G
"Freedom under the Law": By
Lord Denning - Firsi Hamlyn Lecture, 1949, referred to.
Rudul Sah v. State of Bihar and Anr., [1983) 3 S.C.R. 508, referred to.

H 2.12. In the facts of the present case the mode of redress which
NILABATI BEHERA v. STATE OF ORISSA [VERMA, J.] 589

commends appropriate is to make an order of monetary amend, in favour A
of the petitioner for the custodial death of her son by ordering payment of
compensation by way of exemplary damages. (610 F]

2.13. The State of Orissa should pay a sum of Rs.1,S0,000 to the
petitioner and a sum of Rs.10,000 by way of costs to the Supreme Court
• Legal Aid Committee. (610 GI J B

ORIGINAL JURISDICTION : Writ Petition (Crl.) No. 488 of 1988.

(Under Article 32 of the Constitution of India).

J M.S. Ganesh for the Petitioner. c
. ~·· Altaf Ahmed, Addi. Solicitor General, A.K. Panda and Naresh
l Kumar Sharma for the Respondents.

The Judgments of the Court were delivered by
D
VERMA, J. A letter dated 14.9.1988 sent to this Court by Smt.
Nilabati Behera alias Lalita Behera, was treated as a Writ Petition under
Article 32 of the Constitution for determining the claim of compensation
made_ therein consequent upon the death of petitioner's son Suman Behera,
y aged about 22 years; in police custody. The said Suman Behera was taken
E
from his home in police custody at about 8 a.m. on 1.12.1987 by respondent
No.6, Sarai Chandra Barik, Assistant Sub-Inspector of Police of Jaraikela
Police Outpost under Police Station Bisra, Distt. Sundergarh in Orissa, in
connection with the investigation of an offence of theft and detained at the
Police Outpost. At about 2 p.m. the next day on 2.12.1987, the petitioner
F
.. ~ came to know that the dead body of her son Suman Behera was found on
the railway track near a bridge at some distance from the Jaraikela railway
station. There were multiple injuries on the body of Suman Behera when
' it was found and obviously his death was uunatural, caused by those
injuries. The allegation made is that it is a case of custodial death since
Suman Behera died as a result of the multiple injuries inflicted to him while
G
he was in police custody; and thereafter his· dead body was thrown on the
y railway track. The prayer made in the petition is for award of compensation
to the petitioner, the mother of Suman Behera, for contravention .of the
fundamental right to life guaranteed under Article 21 of the Constitution.

The State of Orissa and its police officers, including Sarai Chandra · H
590 SUPREME COURT REPORTS (1993) 2 S.C.R.

A Barile, Assistant Sub-Inspector of Police and Constable No.127, Chhabil
Kujur of Police Outpost Jeraikela, Police Station Bisra, are impleaded as
respondents in this petition. The defence of the respondents is that Suman
Behera !llanaged to escape from police custody at about 3 a.m. on the night
between the 1st and 2nd December, 1987 from the Police Outpost
Jeraikela, where he was detained and guarded by Police Constable Chhabil
,:r
B Kujur; he could not be apprehended thereafter in spite of a search; and
the dead body of Suman Behera was found on the railway track the next
day with multiple injuries which indicated that he was run over by a passing
. train after he had escaped from police custody. In short, on this basis the
allegation of custodial death was denied and consequently the respondents'
c responsibility for the unnatural death of Suman Behera.
. --."
In view of the controversy relating to the cause of death of Suman
Behera, a direction was given by this Court on 4.3.1991 to the District
Judge, Sundergarh in Orissa, to hold an inquiry into the matter and submit
a report. The parties were directed to appear before the District Judge and
D lead the evidence on which they rely. Accordingly, evidence was led by the
parties and the District Judge has submitted the Inquiry Report dated
4.9.1991 containing his finding based on that evidence that Suman Bebera
had died on account of multiple injuries inflicted to him while he was in
police custody at the Police Outpost Jeraikela. The correctness of this y
E finding and Report of the D.istrict Judge, being disputed by the respon-
dents, the matter was examined afresh by us in the light of the objections
raised to the Inquiry Report.

The admitted facts are, that Suman Behera was taken in police
F custody on 1.12.1987 at 8 a.m. and he was found dead the next day on the
railway track near the Police Outpi>st Jeraikela, without being released /~
from custody, and his death was unnaturitl, caused by multiple ·injuries
sustained by him. The burden is, therefore, clearly on the respondents to
explain bow Suman Behera sustained those injuries which caused his death.
Unless a plausible explanation is given by the respondents which is cotisis-
G tent with their innocence, the obvious inference is that the fatal injuries
were inflicted to Suman Behera in police custody resulting in his death, for 'y
which the respondents are responsible and liable.

To avoid this obvious and logical inference of custodial death, the
H learned Additional Solicitor General relied on the respondent's defence
'1-.

_...... NIIABATI BEHERA v. STATEOFORISSA[VERMA,J.) 591

that Suman Behera had managed to escape from police custody at about A
3 a.m. on the night between the 1st and 2nd December, 1987 and it was
likely that he was run over by a passing tr;Un when he sustained the fatal
injuries. The evidence adduced by the respondents is relied on by the
learned Additional Solicitor General to support this defence and to con-
1-· tend that the responsibility of the respondents for the safety of Suman
Behera came to an end the moment Suman Behera escaped from police
B
custody. The learned Additional Solicitor General, however, rightly does
not dispute the liability of the State for payment of compensation in this
proceeding for violation of the fundamental right to life under Article 21,
in case it is found to be a custodial death. The argumel).t is that the factual
foundation for such a liability of the State is absent. Shri M.S. Ganesh, who c
appeared as amicus curiae for the petitioner, however, contended that the
~·
evidence adduced during the inquiry does not support the defence of
respondents and there is no reason to reject the finding of the learned
District Judge that Suman Behera died in police custody as a result of
injuries inflicted to him.
D
The first question is: Whether it is a case of custodial death as alleged
by the petitioner? The admitted facts are: Suman Behera was taken in
police custody at about 8 a.m. on 1.12.1987 by Sarai Chandra Barik, Asst!.
"f" Sub-Inspector of Police, during investigation of an offence of theft in the
village and was detained at Police Outpost Jeraikela; Suman Behera and E
Mahi Seth~ another accused, were handcul'.fed, tied together and kept in
custody at the police station; Suman Behera's mother, the petitioner, and
grand-mother went to the Police Outpost at about 8 p.m. with food for
Suman Behera which he ate and thereafter these women came away while
Suman Behera continued to remain in police custody; Police Constable F
....... Chhabil Kujur and some other persons were present at the Police Outpost
that night; and the dead body of Suman Behera with a handcuff and
multiple injuries wa:s found lying on the railway track at Kilometer
No.385129 between Jeraikela and Bhalulata railway°stations on the morning
of 2.12.1987. It ~ significant that there is no cogent independent evidence
of any search made by the police to apprehend Suman Behera, if the
G
~ defence of his escape from police custody be true. On the contrary, after
discovery of the dead body on the railway track in the morning by some
railwaymen,: it was much later in the day that th!) police reached the spot
to take charge of the dead· body. This conduct of the concerned police
H
592 SUPREME COURT REPORTS (1993] 2 S.C.R.

A officers is also a significant circumstance to assess credibility of the defence
version.

Before discussing the other evidence adduced by the parties during
the inquiry, reference may be made to the injmies found on the dead body
B of Suman Behera during post-mortem. These injuries were the following:-

' External injuries

(1) Laceration over with margin of damaged face.

(2) Laceration of size - 3' x 2" over the left temporal region
c upto bone.
- _,;
(3) Laceration 2' above mastoid process on the right-side
of ,size 1 1/2' x 1/4' bone exposed.

(4) Laceration on the forehead left side of size 1 1/2' x
D 1/4' upto bone in the mid-line on the forehead 1/2' x 1/4"
bone deep on the left lateral to it 1' x 1/4' bone exposed.

(5) Laceration l' x 1/2' on the anterior aspect of middle
of left arm, fractured bone protruding.
E
(6) Laceration 1' x 1/2" x 1/2" on medial aspect of left thigh
4' above the knee joint.

(7) Laceration 112' x 1/2' x 1/2' over left knee joint.

F (8) Laceration 1' x 1/2' x 1/2' on the medial aspect of riiQ!t
knee joint.

(9) Laceration l' x 1/2' x 1/2" on the posterior aspect of
left leg, 4' below knee :ioint.

G (10) Laceration l' x 1/4' x 1/2" on the plantar aspect of
3rd and 4th toe of right side.

(11) Laceration of 1' x 1/4' x 1/2" on the dorsum of left
foot.

H Injury on the neck
NILABATI BEHERA v. STATE OF ORISSA [VERMA, J.] 593

(1) Bruises of size 3" x 1" obliquely alongwith ster- A
nocleidomastoid muscle 1' above the clavical left side (2)
lateral to this 2" x l' bruise (3) and 1' x 1" above the clavial
left side (4) posterial aspect of the neck 1' x 1' obliquely
placed right to mid line.

--f Right shoulder B

(a) Bruise 2' x 2', 1' above the right scapula.

(b) Bruise 1' x 1' on the tip of right shoulder.

( c) Bruise on the dorsum of righl palm 2' x 1'. c
( d) Bruise extenses surface of forearm left side 4' x 1'.

( e) Bruise on right elbow 4' x 1'

(t) Bruise on the dorsum of left palm 2" x 1'. D
(g) Bruise over left patela 2' x1'.
(h) Bruise 1' above left pate! 1" x l".

(i) Bruise on the right illiac spine 1' x 1/2".
E
GJ Bruise over left scapula 4' x 1'.
(k) Bruise 1" below right scapula 5" x l".

(I) Bruise 3" medial to inferior angle of right scapula 2" x 1'.
F
(m) Bruise 2' below left scapula of size 4" x 2".

(n) Brui~e 2' x 6" below 12th rib left side.

(o) Bruise 4' x 2" on the left lumber region.
G
(p) Bruise on the buttock of left side 3" x 2".

·y ( q) On dissect10n found -

(1) Fracture of skull on right side parietal and occipital
bone 6" length. H
594 SUPREME COURI REPORIS [1993] 2 S.C.R.

A (2) Fracture of frontal bone below laceration 2' depressed
fracture.

(3) Fracture of left temporal bone 2' in length below
external injury No.2 i.e. laceration 2' above left mastoid
process.
B
(4) Membrane ruptured below depressed fracture, brain
matter protruding through the membrane.

(5) Intracraneal haemorrhage present.

c (6) Brain lacerated below external injury No.3, 1' x 1/2' x
1/2'.

(7) Bone chips present on temporal surface of both sides.

D (8) Fracture of left humerous 3' above elbow.

(9) Fracture of left femur 3' above knee joint.

(10) Fracture of mendible at the angle mendible both
sides.
E
(11) Fracture of maxillary.

The face was completely damaged, eye ball present, nose lips, cheeks
absent. Maxila and a portion of mendible absent.
-.
F No. injury was present on the front side of body trunk. There is
rupture and laceration of brain.'
;...
The doctor deposed that all the injuries were caused by hard and
blunt object; the injuries on •he face and left temporal region were post-
mortem while the rest were ante-mortem. The doctor excluded the pos-
G sibility of the injuries resulting from dragging of the body by a running train
and stated that all the ante-mortem injuries could be caused by lathi blows.
It was further stated by the doctor that while all the injuries could not be y
caused in a train accident, it was possible to cause all the injuries by lathi
blows. Thus, the medical evidence comprising the testimony or'the doctor,
H who conducted the post-mortem, excludes the possibility of all the injuries
N!IABATI BEHERA v. STATEOFORISSA[VERMA,J.] 595

to Suman Behera being caused in a train accident while indicating that all A
of them could result form the merciless beating given to him. The learned
Additional Solicitor General placed strong reliance on the written opinion
of Dr. K.K. Mishra, Professor & Head of the Department of Forensic
Medicine, Medical College, Cuttack, given on 15.2.1988 on a reference
made to him wherein he stated on the basis of the documents that the
'+-
, injuries found on the dead body of Suman Behera could have been caused B
by rolling on the railway track in-between the· rail and by coming intci
forceful contact with projecting part of the moving train/engine. While
adding that it did not appear to be a case of suicide, he indicated that there
was more likelihood of accidental fall on the railway track followed by the
running engine/train. In our view, the opinion of Dr. K.K. Mishra, not c
examined as a witness, is not of much assistance and does not reduce the
.weight of the testimony of the doctor who conducted the post-mortem and
~ deposed as a witness durin~ the inquiry. The opinion of Dr. K.K. Mishra
is cryptic, based on conjectures for which there is no basis, and says nothing
about the injurieo being both anti-mortem and post- mortem. We have no
D
hesitation in reaching this conclusion and preferring the testimony of the
doctor who conducted the post-mortem.

We may also refer to the Report dated 19.12.1988 containing the
findings in a joint inquiry conducted by the Executive Magistrate and the
Circle Inspector of Police. This Report is stated to have been made under E
Section 176 Cr.P.C. and was strongly relied on by the learned Additional
Solicitor General as a statutory report relating to the cause of death. In the
first place, an inquiry under Section 176 Cr.P.C. is contemplated inde-
- pendently by a Magistrate and not jointly with a police officer when the
role of the police officers itself is a matter of inquiry. The joint finding F
recorded is that Suman Behera escaped from police custody at about 3
a.m. on 2.12.1987 and died in a train accident as a result of injuries
sustained therein. There was hand-cuff on the hands of the deceased when
his body was found on the railway track with rope around it. It is significant
that the Report dated 11.3.1988 of the Regional Forensic Science
Laboratory (Annexure 'R-8', at p.108 of the paper book) mentions that the G
two cut ends of the two pieces of rope which were sent for examination do
not match with each other in respect of physical appearance. This finding
~
about the rope negatives the respondents' suggestion that Suman Behera
managed to escape from police custody by chewing off the rope with which
he was tied. It is no necessary for us to refer to the other evidence including H
596 SUPREME COURT REPORTS [1993) 2 S.C.R.

A the oral evidence adduced during the inquiry, from which the learned
District Judge reached the conclusion thai it is a case of custodial death
and Suman Behera died as a result of the injuries inflicted to him volun-
tarily while he was in police custody at the Police Outpost Jeraikela. We
have reached the same conclusion on a reappraisal of the evidence ad-
duced at the inquiry taking into account the circumstances, which also
B support ·that conclusion. This was done in view of the vehemence with
which the learned Additional Solicitor General urged that it is not a case
of custodial death but of death of Suman Behera caused by injuries
susiained by him in a train accident, after he had managed to escape from
police custody by chewing off the rope with which he had been tied for
C being detained at the Police Outpost. On this conclusion, the question now
is of the liability of the respondents for compensation to Suman Behera's
mother, the petitioner, for Suman Behera's custodial death.

In view of the decisions of this Court in Rudul Sah v. State of Bihar
D and Another, [1983) 3 S.C.R. 508, Sebastian M. Hongray v. Union of India
and Others, [1984) 1 S.C.R. 904 and [1984) 3 S.C.R. 544, Bhim Singh v. State
of J&K, [1984) Supp. S.C.C. 504 and [1'185) 4 S.C.C. 677, Saheli, A Women's
Resoun:es Centre and Others v. Commissioner of Police, Delhi Police Head-
quaTters and Others, [1990) 1 S.C.C. 422 and State of Maharashtra and
E Others v. Ravikant S.Pati~ [1991) 2 S.C.C. 373, the liability of the State of
Orissa in the present case to pay the compensation cannot be doubted and
was rightly not disputed by the learned Additional Solicitor General. It
would, however, be appropriate to spell out clearly the principle on which
the liability of the State arises in such cases for payment of compensation
and the 4istinction between this liability and the liability in private law for
F payment of compensation in an action on tort. 'It may be mentioned
straightway that award of compensation in a proceeding under Article 32
by this court or by the High Court under Article 226 of the Constitution is
a remedy available in public law, based on strict liability for contravention
of fundamental rights to which the principle of sovereign immunity does
G not apply, even though it may be available as a defence in private law in
an action based on tort. This is a distinction between the two remedies to
be borne in mind which also indicates the basis on which compensation is
awarded in such proceedings. We shall now refer to the earlier decisions
of this Court as well as some other decisions before further discussion of
H this principle.
NII.ABATI BEHERAv. STATEOFORISSA[VERMA,J.] 597

In Rudul Sah (supra), it was held that in a petition under Article 32 A
of the Constitution, this Court can grant compensation for deprivation of
a fundamental right. That was a case of violation of the petitioner's right
to personal liberty under Article 21 of the Constitution. Chandrachud, CJ.,
dealing with this aspect, stated as under:-

B
'It is trne that Atticle 32 cannot be used as a substitute for
the enforcement of rights and obligations which can be
enforced efficaciously through the ordinary processes of
Courts, Civil and Criminal. A money claim has therefore
to be agitated in and adjudicated upon in a suit instituted
in a court of lowest grade competent to try it. But the c
important question for our consideration is· whether in the
exercise of its jurisdiction under attic/e 32, this Court can
pass an order for the payment of money if such an order is
in the nature of compensation consequential upon the
deprivation of a fundamental right. The instant case is
D
illustrative of such cases .......

...... The petitioner could have been relegated to the ordinary
remedy of a suit if his claim to compensation was factually
controversia~ in the sense that a civil court may or may
not have upheld his claim. But we have no doubt that if E
the petitioner files a suit to recover damages for his illegal
detention, a decree for damages would have to be passed

- in that suit, though it is not possible to predicate, in the
absence of evidence, the precise amount which would be
decreed in his favour. In ·these circumstances, the refiisal F
of this Court to pass an order of compensation in favour
of the petitioner will be doing mere lip-service to his
fundamental right to liberty which the State Governmeat
has so grossly violated. Article 21 which gUarantees the
right to life and liberty will be denuded of its significant
content if the power of this Court were limited to passing G
orders to release from illegal detention. One of the telling
ways in which the violation of that right can reasonably be
prevented and due compliance with the mandate of Ar-
ticle 21 secured, is to mulct its violaters in the payment
9f monetary compensation. Administrative sclerosis lead- H
598 SUPREME COUR1 REPORTS (1993) 2 S.C.R.

A ing to flagrant infringements of fundamental tights cannot
be corrected by any other method open to the judiciary
to adopt. The right to compensation is some palliative for
the unlawful acts of instrumentalities which act in the name
of public interest and which present for their protection the
powers of the state as shield. If Civilisation is not to perish
B in this country as it has perished in some others too
well-known to suffer mention, it is necessary to educate
ourselves into accepting tha4 respect for the rights of in-
dividuals is the true bastion of democrary. Therefore, the
State must repair the damage done by its officers to the
c petitioner's rights. It may have recourse against those of-
ficers'

(pp.513-14}
(emphasis supplied}
D
It does appear from the above extract that even though it was held
that compensation could be awarded under Article 32 for contravention of
a fundamental right, yet it was also stated that 'the petitioner could have
been relegated to the ordinary remedy of a suit if his claim to compensation
was factually controversial' and 'Article 32 cannot be used as a substitute
E for the enforcement of rights and obligations which can be enforced
efficaciously through the ordinary processes'. These observation may tend
to raise a doubt that the remedy under Article 32 could be denied 'if the
claim to compensation was factually controversial' and, therefore, optional,
not being a distinct remedy available to the petitioner in addition to the
F ordinary processes. The later decisions of this Court proceed on the
assumption that monetary compensation can be awarded for violation of
constitutional rights under Article 32 or Articl~ 226 of the Constitution,
but this aspect has not been adverted to. It is, therefore, necessary to clear
this doubt and to indicate the precise nature of this remedy which is distini::t
0 · and in addition to the available ordinary processes, in case of violation of
the fundamental rights.

Reference may also be made to the other decisions of this Court after
Rudul Sah. In Sebastian M. Hongray v. Union of India and Others, (I},
H (1984) 1 S.C.R. 904, it was indicated that in a petition for writ of habeas
NILABATI BEHERA v. STATE OF ORISSA [VERMA,J.] 599

corpus, the burden was obviously on the respondents to make good the A
positive stand of the respondents in response to the notice issued by the
court by offering proof of the stand taken, when it is shown that the person
detained was last seen alive under the surveillance, control, and command ·
of the detaining authority. In Sebastian M. Hongray v. Union of India &
Ors., (II), (1984] 3 S.C.R. 544, in such a writ petition, exemplary costs were B
-f awarded on failure of the detaining authority to produce the missing
......
persons, on the conclusion that they were not alive and had met an
unnatural death. The award was made in Sebastian M. Hongray-ll ap-
parently following Rudul Sah, but without indicating anything more. In
Bhim Singh v. State of J&K and Others, (1985] 4 S.C.C. 677, illegal detention
in police custody of the petitioner Bhim Singh was held to . constitute
c
violation of his rights under Articles 21 and 22(2) and this Court exercising
~- its power to award compensation under Article 32 directed the State to
pay monetary compensation to the petitioner for violation of his constitu-
tional right by way of exemplary costs or otherwise, taking this power to
be settled by the decisions in Rudu/ Sah and Sebastian M. Hongray. In D
Saheli, (1990] 1 S.C.C. 422, the State was held liable to pay compensation
payable to the mother of the deceased who died as a result of beating and
assault by the police. However, the principle indicated therein was that the
State is responsible for the tortious acts of its employees. In State of
Maharashtra and Others v. Ravikant S. Patil, (1991] 2 S.C.C. 373, the award E
of compensation by the High Court for violation of the fundamental right
under Article 21 of an undertrial prisoner, who was handcuffed and taken
through the streets in a procession by the police during investigation, was
upheld. However, in none of these cases, except Rudu/ Sah, anything more
Was said. In Saheli, reference was made to the State's liability for .tortious F
acts of its servants without any reference being made to the decision of this
Court in Kasturi/aJ Ralia Ram Jain v. The State of Uttar Pradesh, (1965] 1
S.C.R. 375, wherein sovereign immunity was upheld in the case of vicarious
liability of the State for the tort of its employees. The decision in Saheli is,
therefore, more in accord with the prjnciple indicated in Rudul Sah.
G
In this context, it iS sufficien1 to say that the decision of this Court
._,... in Kasturi/a/ upholding the Stace's plea of sovereign immunity for tortious
acts of its servants is confined to the sphere of liability in tort, which is
distinct from the State's liability for contravention of fundamental rights to
H
600 SUPREME COURT REPORTS [1993] 2 S.C.R.

A which the doctrine of sovereign immunity has no application in the con-
stitution~! scheme, and is no defence to the constitutional remedy under
Anicles 32 and 226 of the Constitution which enables award of compensa-
tion for contravention of fundamental rights, when the only practicable
mode of enforcement of the fundamental rights can be the award of
B compensation. The decisions of this Court in Rudu/ Sah and others in that
line relate to award of compensation for contravention of fundamental
rights, in the constitutional remedy under Articles 32 and 226 of the
ConsUtution; On the other hand, Kasturi/a/ related to value of goods seized
-
and not returned to •he owner due to the fault of Government servants,
the claim being of damages for the tort of conversion under the ordinary
c process, and not a claim for compensation for violation of fundamental
rights. Kasturi/al is, therefore, in-applicable in this context and distinguishable.

The decision of Privy Council in Maharaj v. ·Attorney-General of
Trinidad and Tobago, (No.2), [1978] 3 All ER670, is useful in this context.
D That case related to Section 6 of the Constitution of Trinidad and Tobago
196.2, in the chapter pertaining to human rights and fundamental freedoms,
wherein Section 6 provided for an application to the High Court for
redress. The question was, whether the provision permitted an order for
monet\\11' compensation. The contention of the Attorney-General therein,
E that an order for payment of compensation did not amount to the enfor-
. cement of the rights that had been contravened, was expressly rejected. It
was held, that an order for payment of compensation, when a right
protected had been contravened, is clearly a form of 'redress' which a
person is entitled to claim under Section 6, and may well be the 'only
practicable form of redress'. Lord Diplock who delivered the majority
F opinion, at page 679, stated.:-

'It .was argued on behalf of the Attorney-General that
s.6(2) does not permit of an order for monetary compen-
sation despite the fact that this kind of redress was or-
G dered in Jaundoo v. Attorney-Genera/ of Guyana, (1971]
.SC 972. Reliance was placed on the reference in the
subsection to 'enforcing, or securing the enforcement of,
any of the provisions '!f the said foregoing sections' as the
purpose for which orders etc. could be made. An order
H for payment of compensation, it was submitted, did nOl
NILABATIBEHERAv. STATEOFORISSA[VERMA,J.] 601

amount to the enforcement of the rights that had been A
contravened. In their Lordships' view an order for pay-
ment of compensation when a right protected under s.l
'has been' contravened is clearly a form of 'redress' which
a person is entitled to claim under s. 6(1) and may well
+ be the only practicable form of red.ress, as by now it is in
the instant case. The jurisdiction to make such an order
B
is conferred on the High Court by,para (a) of s.6(2), viz.
jurisdiction 'to hear and determine any application made
by any person in pursuance of sub-section (1) of this
section'. The very wide powers to make orders, issue writs
and give directions are ancillary to this." c
Lord Diplock further stated at page 680, as under:-

'Finally, their Lordships would say something about the
measure of monetary compensation recoverable under s.6
where the contravention of the claimant's,constiiutional D
rights consists of deprivation of liberty otherwise than by
due process of law. The claim is not a claim in private law
for damages for the tort of false imprisonmen4 under which
the damages recoverable are at laJgl! and would include
y damages for loss of reputation. It is a claim in public law E
for compensation for deprlvation of liberty alone. ...... •

(emphasis supplied)

Lord Hailsham while dissenting from the majority regarding the
liability for compensation in that case, concurred with the majority opinion F
on this principle and stated at page 687, thus:-

"...... I am simply saying that, on the view I take, the
expression 'redress' in sub-s(l} of. s.6 and the expression
'enforcement' in sub-s. (2), although capable of embracing
damages where damages are available as part of the legal G
-...,.-· consequences of contravention, do not confer and are not
in the context capable of being construed so as to confer
a right of damages where they have not hitherto been
available, in this case against the state for the judicial
errors of a judge . ...11 H
602 SUPREMECOURTREPORTS (1993] 2 S.C.R.

A Thus, on this principle, the view was unanimous, that enforcement of the
constitutional right and grant of redress embraces award of compensation
as part of the legal consequences of its contravention.

It follows that 'a claim in public law for compensation' for contraven-
tion of human rights and fundamental freedoms, the protection of which is
B
guaranteed in the Constitution, is an acknowledged remedy for enforce-
ment and protection of such rights, and such a claim based on strict liability
made by resorting to a ·constitutional remedy provided for the enforcement
of a fundamental right is 'distinct from, ·md in addition to, the remedy in
private law for damages for the tort' resulting from the contravention of
c the fundamental right. The defence of sovereign immunity being inap-
plicable, and alien to the concept of guarantee of fundamental rights, there
can be no question of such a defence being available in the constitutional
remedy. It ·is this principle which justifies award of monetary compensation
for contravention of fundamental rights guaranteed by the Constitution,
D when that is the only practicable mode of redress available for the con-
travention made hy the State or its servants in the purported exercise of
their powers, and enforcement of the fundamental right is claimed by resort
to the remedy in public law under the Constitution by recourse to Articles
32 and 226 of the Constitution. This is what was indicated in Rudu/ Sah
and is the basis of the subsequent decisions in which compensation was .
E awarded under Articles 32 and 226 of the Constitution, for contravention
of fundamental rights.

A useful discussion on this topic which brings out the distinction
between the remedy in public law based on strict liability for violation of
F a fundamental right enabling award of compensation, to which the defence
of sovereign immunity is inapplicable, and the private law remedy, wherein
vicarious liability of the State in tort may arise, is to be found in Ratanlal
& Dhirajlal's Law of Torts, 22nd Edition, 1992, by Justice G.P. Singh, at
pages 44 to 48.

G This view finds support from the. decisions of this Court in the
Bhagalpur blinding cases: Khatri and Others (II) v. State of Bihar and
Others, [1981] 1 S.C.C. 627 and Khatri and Other (W) v. State of Bihar and
Others, [1981] 2 S.C.C. 493, wherein it was said that the court is not helpless
to grant relief in a case of violation of the right to life and personal liberty,
H and it should be prepared to forge new tools and devise new remedies' for
NIIABATI BEHERA v. STATE OFORISSA [VERMA,J.] 603

the purpose of vindicating these precious fundamental rights. It was also A
indicated that the procedure suitable in the facts of the case must be
adopted for conducting the inquiry, needed to ascertain.the necessary facts,
for granting the relief, as the available mode of redress, for enforcement
of the guaranteed fundamental rights. More recently in Union Carbide
-;- COT]JOration and Others v. Union of India and Others, (1991) 4 S.C.C. 584,
Misra, CJ. stated that 'we have to develop our own law and if we find that
B
it is necessary to construct a new. principle of liability to deal with an
unusual situation which has arisen and which is likely to arise in future .....,
there is no reason why we should hesitate to evolve such principle of
liability ....'. To the same effect are the observations of Venkatachaliah, J.
(as he then was), who rendered the leading judgment in the Bhopal gas c
case, with regard to the court's power to grant relief.
r
We respectfully concur with the view that the court is not helpless
and the wide powers given to this Court by Article 32, which itself is a
fundamental right, imposes a constitutional obligation on this Court to
D
forge such new tools, which may be necessary for doing complete justice
and enforcing the fundamental rights guaranteed in the Constitution, which
enable the award of monetary compensation in appropriate cases, where
that is the only mode of redress available. The power available to this Court
'r under Article 142 is also an enabling provision in this behalf. The contrary
_,
~ view would not merely render the court powerless and the constitutional E
guarantee a mirage, but may, in certain situations, be an incentive to
~

' extinguish life, if for the extreme contravention the court is powerless to
grant any relief against the State, except by punishment of the wrongdoer
'
for the resulting offence, and recovery of damages under private law, by
the ordinary process. It the guarantee that deprivation of life and personal
F
liberty cannot be made except in accordance with law, is to be rea~ the
-"""" enforcement of the right in case of every contravention must also be
possible in the constitutional scheme, the mode of redress being that which
. is appropriate in the facts of each case. This remedy in public law has to
be more readily available when invoked by the havenots, who are not
possessed of the wherewithal for enforcement of their rights in private Jaw, G
even though its exercise is to be tempered by judicial restraint to avoid
-""' circumvention of private law remedies, where more appropriate.

We may also refer to Article 9(5) of the International Covenant on
Civil and Political Rights, 1966 which indicates that an enforceable right to H
• (J()4 SUPREME COURT REPORTS (1993) 2 S.C.R.
,>--
l
A compensation is not alien to the concept of enforcement of a guaranteed t
right. Article 9(5) reads as under:-

•Anyone who has been the victim of unlawful arrest or
detention shall have an enforceable right to compensa-

B
tion." ~ ,_

The above discussion indicates the principles on which the Court's
power under. Articles 32 and 226 of the Constitution is exercised to award
monetary compensation for contravention of a fundamental right. This was
indicated in Rudu/ Sah and certain further observations therein adverted
to earlier, which may tend to minimise the effect of the principle indicated
r
_,
i
c therein, do not really detract from that principli:. This is how the decisions
of this Court in Rudul Sah and others in that line have to be understood ,_
and Kasturi/al distinguished therefrom. We have considered this question
--<
at some length in view of the doubt raised, at times, about the propriety of
awarding compensation in such proceedings, instead of directing the
D claimant to resort to the ordinary process of recovery of damages by t
recourse to an action in tort. In the present case, on the finding reached,
it is a clear case for· award of compensation to the petitioner for the
custodial death of her son.

The question now, is of the quantum of compensation. The decease~ y
E Suman Behera was aged about 22 years and had a monthly income between
Rs.1200 to Rs.1500. This is tJie finding based on evidence recorded by the
!
District Judge, and there is no reason to doubt its correctness. In our (
opinion, a total amount of Rs.1,50,000 would be appropriate as compensa-
tioo, to be awarded to the petiiioner in the present case. We may, however,
F observe that the award of compensation in this proceeding would ' be taken
into account for adjustment, in the event of any other proceeding taken by
the petitioner for recovery of compensation on the same ground, so that
,,>-.
r
t
the amount to this extent is not recovered by the petitioner twice over.
Apart from the fact that such an order .is just, it is also in consonance with '
the statutory recognition of this principle of adjustment provided in Section ~

G L
357(5) Cr.P.C. and Section 141(3) of the Motor Vehicles Act, 1988.
y
Accordingly, we direct the respondent - State of Orissa to pay the
sum of Rs.1,50,000 to the petitioner and a further sum of Rs.10,000 as costs
to be paid to the Supreme Court Legal Aid Committee. The mode of
H payment of Rs.1,50,000 to the petitioner would be, by making a term
__..;, NILABATI BEHERA v. STATE OF ORISSA(ANAND,J.] 605

deposit of that amount in a scheduled bank in the petitioner's name for a A
period of three years, during which she would receive only the interest
payable thereon, the principal amount being payable to her on expiry of
the term. The Collector of the District will take the necessary steps in this
behalf, and report compliance to the Registrar (Judicial) of this Court
'"1-· within three months.
B
We clarify that the award of this compensation, apart from the
direction for adjustment of the amount as indicated, will not affect any
other liabiiity of the respondents or any other person flowing from the
custodial death of petitioner's son Suman Behera. We also expect that the
State of Orissa would take the necessary further action in this behalf, to c
ascertain and fix the responsibility of the individuals responsible for the
r custodial death of Suman Behera, and also take all available appropriate
actions against each of them, including their prosectution for the offence
committed thereby.

The writ petition is allowed in these terms. D

DR. ANAND, J. (CONCURRING)

y. The lucid and elaborate judgment recorded by my learned brother
Verma J. obviates the necessity of noticing facts or reviewing the case law E
referred to by him. I would, however, like to record a few observations of
my own while concurring with his Lordship's judgment.

This Court was bestirred by the unfortunate mother of deceased
.. Suman Behera through a letter dated 14.9.1988, bringing to the notice of
. .-I.._ the Court the death of her son while in police custody. The letter was F
treated as a Writ-Petition under Article 32 of the Constitution. As noticed
by Brother Verma J ., an inquiry was got conducted by this Court through
the District Judge Sundergarh who, after recording the evidence, submitted
his inquiry report containing the finding that the deceased Suman Behera
had died on account of multiple injuries inflicted on him while in police G
.._,.... custody. Considering, that it was alleged to be a case of custodial death, at
the hands of those who are supposed to protect the life and liberty of the
citizen, and which if established was enough to lower the flag of civilization
to fly half-mast, the report of the District Judge was scrutinized and
analysed by us with the assistance of Mr. M.S. Ganesh, appearing an1icus H
606 SUPREME COURT REPORTS (1993] 2 S.C.R. )_

A curiae for the Supreme Court Legal Aid Committee and Mr. Altaf Ahmad, '
the learned Additional Solicitor General carefully.

Verma J., while dealing with the first question i.e. whether it was a
case of cutodial death, has referred to the evidence and the circumstances
B of the case as also the stand taken by the State about the manner in which
injuries were caused and has come to the conclusion that the case put up
by the police of the alleged escape of Suman Behera from police custody
and his sustaining the injuries in a train accident was not acceptable. I
respectfully agree.· A strenuous effort was made by the learned Additional
Solicitor General by reference to the injuries on the head and the face of
C . the deceased to urge that those injuries could not be possible by the alleged
police torture and the finding recorded by the District Judge in his report
to the contrary was erroneous. It was urged on behalf of the State that the
medical evidence did establish 'that the injuries had been caused to the
deceased by lathi blows but it was asserted that the nature of injuries on
D the face and left temporal region could not have been caused by the lathis
and, therefore, the death had occurred in the manner suggested by the
police in a train accident and that it was not caused by the police while the
deceased was in their custody. In this connection, it would suffice to notice
that the Doctor, who conducted the post-mortem examination, excluded
the possibility of the injuries to Suman Behera being caused in a train ''f'
E accident. The injuries on the face and the left temporal region were found
to be post-mortem injuries while the rest were ante-mortem. This aspect of
the medical evidence would go to show that after inflicting other injuries,
which resulted in the death of Suman Behera, the police with a view to
cover up their crime threw the body on the rail-track and the injuries on
F the face and left temporal region were received by the deceased after he
had died. This aspect further exposes not only the barbaric attitude of the ;...
police but also its crude attempt to fabricate false clues and create false
evidence with a view to screen its offence. The falsity of the claim of escape
stands also exposed by the report from the Regional Forensic Science
Laboratory dated 11.3.1988 (Annexure R-8) which mentions that the two
G pieces of rope sent for examination to it, did not tally in respect of physical
appearance, thereby belying the police case that the deceased escaped
from the police custody by chewing ihe rope. The theory of escape has,
thus, been rightly disbelieved and 1 agree with the view of Brother Verma
J. that the death of Suman Behera was caused while he was in custody of
. H the police by police torture. A custodial death is perhaps one of the worst
NILABATJBEHERAv. STATEOFORISSA[ANAND,J.] 607

crimes in a civilised society governed by the Rule of Law. It is not our A
concern at this stage, however, to determine as to which police officer or
officers were responsible for the torture and ultimately the death of Suman
Behera. That is a matter which shall have to be decided by the competent
court. I respectfully agree with the directions given to the State by Brother
Verma, J. in this behalf.
B
On basis of the above conclusion, we have now to examine whether
to seek the right of redressal under Article 32 of the Constitution, which
is without prejudice to any other action with respect to the same matter
which way be lawfully available, extends merely to a declaration that there
has been contravention and infringement of the guaranteed fundamental c
rights and rest content at that by relegating the party to seek relief through
civil and criminal proceedings or can it go further and grant redress also
by the only practicable form of redress - by awarding monetary damages
for the infraction of the right to life.
D

It is exiomatic that convicts, prisoners or under-trials 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 enjoy-
ment of the fundamental right by such persons. It is an obligation of the E
State, to ensure that there is no infringement of the indefeasable 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 ca9not be denied to convicts, under trials 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 F
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 G
the person in custody of the police is deprived of his life except according
to the procedure established by law. I agree with Brother Verma, J. that
the dcfcnc~ cf ":;vv~reign i:rununity" in such cases is not available to the
State and in fairness to Mr. Altaf Ahmed it may be recorded that he raised
no such defence either. H
608 SUPREME COURT REPORTS
~
(1993) 2 S.C.R.
~
A Adverting to the grant of relief to the heirs of a victim of custodial
death forthe infraction or invasion of his rights guaranteed under Article
21 of the Constitution of India,· it is not always enough to relegate him to
the ordinary remedy of a civil suit to claim damages for the tortious act of
the State as that remedy in private law indeed is available to the aggrieved
-.\--
party. The citizen complaining of the infringement of the indefeasable right
B
under Article 21 of the Constitution cannot be told that for the established
violation of the fundamental right to life, he cannot get any relief under the
public law by the courts exercising writ jurisdiction. The primary source of
the public law proceedings sterns from the prerogative writs and the courts
have, therefore, to evolve 'new tools' to give relief in public law by moulding
c it according to the situation with a view to preserve and protect the Rule
of Law. While concluding his first Hamlyrt Lecture in 1949 ·under the title ~
"Freedom under the Law" Lord Denning in his own style warned:

'No one can suppose that the executive will never be guilty
D of the sins that are common to all of us. You may be sure
that they will sometimes do things which they ought 001
to do: and will not do things that they ought to do. But if
and when wrongs are thereby suffered by any of us what
is the remedy? Our procedure for securing our personal
E freedom is efficient, our procedure for preventing the
abuse of power is not. Just as the pick and shovel is no
longer suitable for the winning of coa~ so also the proce-
dure of mandamus, certiorari, and actions on the case are
not suitable for the winning of freedom in the new age.
They must be replaced by new and up to date machinery,
F by declarations, injunctions and actions for negligence ... ,;....
This is not the task for Parliament ..... the courts must do
this. Of all the great tasks that lie ahead this is the greatest.
Properly excercised the new powers of the executive lead
to the welfare state; but abused they lead to a totalitarian
G state. None such must ever be allowed in this Courtry."
y
The old doctrine of only relegating the aggrieved to the remedies
available in civil law limits the role of the courts too much as protector and
guarantor of the indefeasable rights of the citizens. The courts have the
H obligation to satisfy the social aspirations of the citizens because the courts
NILABATIBEHERAv. STATEOFORISSA(ANAND,J.] 609

and the law are for the people and expected to respond to their aspirations. A

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 indefeasable
right guaranteed under Article 21 of the Consitution is a remedy available
B
in public law and is based on the strict liability for contravention of the
guaranteed basic and indefeasable 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 C
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 flXing
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 D
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 'exempellary damages' awarded against the wrong doer for E
the breach of its public law duty 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
jurisdiciton or/and prosecute the offender under the penal law.
F
This Court and the High Courts, being the protectors of the civil
liberties of the citizen, have not only the power and .jurisdiction but also
an obligation to grant relief in exercise of its jurisdiction under Articles 32
and 226 of the Constitution to the victim or the heir of the victim whose
fundamental rights under Article 21 of the Constitution of India are
established to have been flagrantly infringed by calling upon the State to G
repair the damage done by its officers to the fundamental rights of the
citizen, notwithstanding the right of the citizen to the remedy by way of a
civil suit or criminal proceedings. The State, of course has the right to be
indemnified by and iake such action as may be available to it against the
wrongdoer in accordance with law - through appropriate proceedings. Of H
610 SUPREME COURT REPORTS (1993) 2 S.C.R.

A course, relief in exerciSG of the power under Article 32 or 226 would be
granted only once it is established that there has been an infringement of
the fundamental rights of the citizen and no other form of appropriate
redressal by the court in the facts and circumstances of the case, is possible.
The decisions of this Court in the line of cases starting with Rudu/ Sah v.
B State of Bihar and Ailr., (1983) 3 SCR 508 granted~onetary relief to the
victims for deprivation of their fundamental rights in proceedings through
petitions filed under Article 32 or 226 of the Constitution of India, not-
withstanding the rights ~vailable under the civil law to the aggrieved party
where the courts found that grant of such relief was warranted. It is a sound
policy to punish the wrongdoer and it is in that spirit that the Courts have
C moulded the relief by granting compensation to the victims in exercise of
their writ jurisdiction. In doing so the cour!s take into account not only the .
interest of the applicant and the respondent but also the interests of the
public as a whole with a view to ensure that public bodies or officials do
not act unlawfully and do perform their public duties properly particularly
D where the fundamental rights of a citizen under Article 21 is concerned.
Law is in the process of development and the process necessitates develop-
ing separate public law procedures as also public law principles. It may be
necessary to identify the situations to which separate proceedings and
principles apply a.nd the courts have to act firmly but with certain amount
of circumspection and self restraint, lest proceedings under Article 32 or
E 226 are mis.used as a disguised substitute for civil action in private law.
Some of those situtations have been identified by this Court in the cases
referred to by Brother Verma, J.

In the facts of the pres~nt case on the findings already recorded, the
mode of redress which commends appropriate is to make an order of
F monetary amend in favour of the petitioner for the custodial death of her
sii!."b}:'o'rc!e~iriif paym~nt' of compe~~ation by way of exemplary damages.
)-... .
For the reasons recorded by Brother Verma, J., I agree that the State of
Orissa should pay a sum of Rs.1,50,000 to the petitioner and a sum of
Rs.10,000 by way of costs to the Supreme Court Legal Aid Committee
G Board. I concur with the view expressed by Brother Verma, J. and the
directions given by him in the judgment in all respects.

V.P.R. Petition allowed.