Delhi High Court (July 26, 2001) 2001 (TLS)125392 2001-DLT-93-218 :: 2001-AD (Del)-6-830 DHANNO Vs. Union of India Anil Dev Singh ( 1 ) BY the present writ petition, the petitioner claims compensation of Rs. 4,00,000/- and allotment of a flat. The facts giving rise to the present petition lie in a narrow compass. ( 2 ) THE petitioner s husband Madan Lal was convicted and sentenced to undergo rigorous imprisonment for a period of five years under Section 304, IPC. As a consequence of his conviction, Madan Lal was incarcerated in Tihar Jail. It is not disputed on either side that on completion of his sentence he was to be released from jail on 16/04/1981. The fate, however, had something else in store for him. Between 12/04/1981 and 15/04/1981 while he was in custody at Tihar Jail he sustained injuries as a result of severe beating administered to him by some employees of the jail, who are said to be S/shri Shiv Kumar, Mudrika, Prem bahadur, Kadam Singh, Yogesh Tyagi and Virender. On 16/04/1981, on the day he was to be released from jail, he succumbed to his injuries. A FIR was registered against the aforesaid persons on 19/04/1981. The investigation in the matter led to the filing of challan against them for commission of offences under Section 302 / 34, IPC. ( 3 ) THE Trial Court, however, came to the conclusion that there was no evidence worth the name connecting the accused persons with the crime. Accordingly, they were acquitted. ( 4 ) SOME time in 1983 the petitioner and her three minor children filed a civil suit, bearing Suit No. 204/1983, against the aforesaid persons. Union of India and delhi Administration for recovery of Rs. 99,800/- as damages. The learned Trial court by its order dated 12/12/1983 rejected the plaint against the aforesaid persons on the ground that the plaintiffs did not serve notices under section 80, CPC on them. ( 5 ) SUBSEQUENTLY, the Trial Court by an order dated 16/04/1984 dismissed the suit against the Union of India and Delhi Administration on the ground that since the plaint against the principal tortfeasors had been rejected the suit against the State was not competent. It was also held that the State was not liable for the action of its employees as they were performing sovereign functions at the time of the incident. It was also held that the State was not liable for the action of its employees as they were performing sovereign functions at the time of the incident. The petitioner aggrieved by the orders passed by the Trial Court filed rfa No. 54/1985, which is still pending. The petitioner also filed the instant writ petition being CWP No. 4009/1991 claiming the following reliefs: (a) Issue a writ of mandamus and/or any such other writ/writs/order (s) and or directions in favour of the petitioner and against the respondents thereby granting an award of compensation of Rs. 4,00,000/- (Rupees four lakhs) as compensation ex-gratia payment. (b) To pass orders for allotment of dwelling unit and business stall to the petitioner. (c) To allow the costs of the petition to the petitioner. ( 6 ) WE have heard learned Counsel for the parties. We are of the opinion that the petitioner is entitled to receive monetary relief from the State for the death of her husband who died in its custody. It is not denied by the respondents that Madan Lal was undergoing sentence when he sustained injuries in the jail but they deny their responsibility for his death. According to the State a fight took place in the jail in which Madan Lal sustained injuries and ultimately succumbed to them. It also claims that State is not liable for the alleged acts of its employees as they were discharging sovereign functions of the State at the time of the incident. Besides, the respondents rely on the outcome of the suit filed by petitioner and the criminal proceedings initiated against some of the employees of the jail. ( 7 ) WE have given our serious consideration to the stand of the respondents. It appears to us that they have overlooked the importance of the fact that the beating was administered to the petitioner while he was in jail. It was the responsibility of the State to ensure his safety. Just because a person is convicted and is confined in jail does not mean that he ceases to have the protection of fundamental rights guaranteed to him under Part III of the Constitution. ( 8 ) IT is not the case of the respondents that Madan Lal lost his life in accordance with the procedure established by law. Just because a person is convicted and is confined in jail does not mean that he ceases to have the protection of fundamental rights guaranteed to him under Part III of the Constitution. ( 8 ) IT is not the case of the respondents that Madan Lal lost his life in accordance with the procedure established by law. When it is beyond dispute that he died because of the beating received by him during his incarceration, no further proof of infraction of Article 21 of the Constitution is required. Since the victim has died, at this stage Article 21 can only be enforced by granting monetary relief to the family of the victim. The argument of the learned Counsel for the respondent based on state immunity is not applicable in the instant case. Here we are dealing with violation of Article 21 of the Constitution. Once it is established that the fundamental right of a prisoner guaranteed to him under Article 21 has been violated by the functionaries of the State, we fail to appreciate how the State can shirk its responsibility to grant monetary relief to the victim. Similarly, in the instant case the State cannot seek shelter under the doctrine of State immunity to avoid its liability from paying monetary relief to the family of Madan Lal who died because of the injuries caused by its employees, notwithstanding the fact that their identity was not established in the criminal trial. It does not matter who was responsible for causing injuries to the prisoner in so far as the liability of the State to grant monetary relief of the victim is concerned. ( 9 ) IN Kewal Pati v. State of U. P. and Ors. , III (1995) CCR 1 (SC)= (1995) 3 SCC 600 , the Supreme Court while granting monetary relief to the family of the victim held as follows: ". . . EVEN though Ramjit Upadhayaya was a convict and was serving his sentence yet the Authorities were not absolved of their responsibility to ensure his life and safety in the jail. A prisoner does not cease to have his constitutional right except to the extent he has been deprived of it in accordance with law. Therefore, he was entitied to protection. Since the killing took place when he was in jail, it resulted in deprivation of his life contrary to law. A prisoner does not cease to have his constitutional right except to the extent he has been deprived of it in accordance with law. Therefore, he was entitied to protection. Since the killing took place when he was in jail, it resulted in deprivation of his life contrary to law. He is survived by his wife and three children. His untimely death has deprived the petitioner and her children of his company and affection. Since it has taken place while he was serving his sentence due to failure of the Authorities to protect him, we are of opinion that they are entitled to be compensated".( 10 ) AGAIN in Murti Devi v. State of Delhi and Ors. , (1998) 9 SCC 604 , the supreme Court reiterating the principle held as under: "it appears that later on the Jail Authorities came up with a case that the said undertrial prisoner was assaulted by some of the convicts in the jail for which a criminal case has been initiated against the offending convicts. It has also been established that prompt and appropriate action in rendering medical aid in a hospital was also not given to the said deceased. Whether the said undertrial prisoner had really been assaulted by the convicts or he was assaulted by the Jail Warden and his associates may be ultimately decided in the criminal case stated to be pending. We may only indicate that the pending criminal case should be conducted with utmost seriousness and should be completed as early as practicable". ( 11 ) IN Smt. Nilabati Behera @ Lalita Behera (through the Supreme Court Legal aid Committee) v. The State of Orissa and Ors. , II (1993) CCR 107 (SC)=jt 1993 (2) SC 503, the Supreme Court held that there was a great responsibility on the police to ensure that a person in its custody is not deprived of his right to life. The Supreme court went on to hold that the State has a right to be indemnified by a wrongdoer in accordance with law in appropriate proceedings, but once it is established that here has been an infringement of fundamental rights of a citizen in custody, the state in the first instance is required to grant monetary relief to him for deprivation of his fundamental rights. ( 12 ) LEARNED Counsel for the State contends that since the petitioner had filed civil suit for seeking compensation which did not succeed, she cannot be granted monetary relief under Article 226 of the Constitution. As already noted the plaint filed by the petitioner against the Union of India and the Government of NCT Delhi was rejected insofar as the jail employees are concerned on the ground that the notice under Section 80 of the CPC was not given to them before filing of the suit. The rejection of the plaint was merely on a technical ground. In so far as the suit against the Union of India and the Delhi Administration was concerned, it was dismissed on the ground that since the perpetrators of crime were not made liable in the suit, the State could not be held responsible for their act since they were performing sovereign functions. The orders passed by the Trial Court are under challenge in Regular First Appeal which is listed for hearing before us today. ( 13 ) UNDER the circumstances, therefore, the writ petition succeeds. The rule is made absolute and the State is directed to pay a sum of Rs. 2,50,000/- to the petitioner by way of monetary relief for violation of fundamental rights of the victim. The sum of Rs. 2,50,000/- should be paid by means of a crossed cheque in the name of Smt. Dhanno widow of late Sh. Madan Lal within a period of 8 weeks form today. ( 14 ) THE State shall be at liberty to recover the amount from the persons who were responsible for causing injury to Madan Lal which led to his death. ( 15 ) THE writ petition is allowed. There will, however, be no order as to costs. Writ Petition allowed. --- *** --- .