“Legal System Completely Failed Him”: Orissa High Court Orders ₹10 Lakh Compensation To Wife Of Tribal Man Killed In Police Custody

The Division Bench of Chief Justice Dr. S. Muralidhar and Justice Murahari Sri Raman said it is no coincidence that the deceased tribal, who was tortured to death after being labelled a maoist with not even an iota of evidence, belonged to the poorer sections of the society. It lamented that the victim was denied his basic rights while in custody and said,

“He had no one to represent his interests or to give him legal assistance while in custody. The legal system appears to have completely failed him. The mandatory fundamental rights available to an arrested person as spelt out in in Article 22(1) and (2) of the Constitution of India were violated with impunity in this case first by the CRPF and then the police.”

Factual Background

On June 1, 2010, a tribal man named Pidera Kadaiska went in search of firewood carrying a country made ‘desi gun’ which is used to hunt birds and other small animals as is the usual practice of the tribal in the remote forest areas. When he was in the forest, the CRPF personnel were coming from Gudari towards Chandrapur in course of naxal combing operations.

He was caught by them and brought to the Police Station (Camp). He was stated to have been mercilessly beaten there by the CRPF personnel with the butts of the guns, lathis and kicks. The CRPF did not even inform his family members or relatives nor was his detention recorded in any book, log, memo or anywhere. On 3rd June, 2010 the Sarpanch of Chandrapur called by the police and was handed over the dead body of the victim.

The wife of the victim filed this writ petition before the High Court seeking compensation for the custodial death of her husband.

Court’s Observations

The Court referred to the report of a fact-finding team of the People’s Union for Civil Liberties (PUCL) wherein it was recorded that on the allegation that he was a ‘maoist’, Pidera was caught by the CRPF Jawans on 1st June and brought to Rayagada on June 02, 2010. After he complained stomach ache, he was taken to the hospital where he was received as dead.

The PUCL team noted that the SP, Rayagada informed them that between 1st and 2nd June, 2010 Pidera was made to walk about 40 KMs and that he might have died out of sheer exhaustion. The IIC, Rayagada informed the team that both sides of his heart were empty, black colour deposits were found in the lungs, the genitals were swollen and there was a mark of wound (6-7 days) old and 5cm x 2 cm in size on his buttock.

A counter affidavit was filed by the opposite parties wherein they denied that Pidera was brutally tortured and killed while in custody. It was alleged that he was actively associated with the CPI (Maoist) and involved in the criminal activities with ‘top maoist cadres’ and had conspired with them to blast the Government properties as well as other vital installations.

“There is no manner of doubt that irrespective of the Petitioner’s husband being labelled as a ‘maoist’ by the Opposite Parties, and even if he belonged to a ‘banned’ organisation, his fundamental rights under Article 22 (1) to (3) of the Constitution cannot be said to have been denuded. It is trite that a person is presumed innocent till he is found guilty. The mere suspicion that a person happens to belong to CPI (Maoist) group will not clothe the police with impunity to deal with him in any which way they like,” the Court remarked.

It was of the view that except the FIR enclosed with the counter affidavit and the version of the police, there is nothing which indicates that there was sufficient material with the police to infer that the he belonged to the CPI (Maoist) group or that he was indulging in criminal activities.

“The above narration of facts paints a disturbing scenario. A tribal person, with no means of survival and in search of firewood armed with just country made weapon used for hunting birds and animals, was ‘caught’ by the CRPF SOG on the presumption that he belonged to the CPI (Maoist) cadre,” the Court added.

It lamented that the detailed guidelines provided by the Apex Court against custodial violence in D.K. Basu v. State of West Bengal were not followed by the concerned authorities. It reiterated the following observation made by the Delhi High Court in Nina Ranjan Pillai v. Union of India:

“The basic minimum right to life and dignity should be available to every prisoner. When that non-derogable minimum standard is breached, the principle of strict liability should be invoked against the jail authorities making them answerable in law for the consequences of such breach.”

The Court concluded that no convincing explanation was given by the OPs in support of their stand that the victim died out of ‘natural causes’ who was under their custody. The injuries recorded in post-mortem report remained unexplained. Therefore, it held, the OPs were unable to discharge the burden of showing that he did not die as a result of custodial violence inflicted upon him.

Inquiry Against Doctors

The Court expressed its serious dismay over the fact that the two doctors working with the Government certified the death to be due to ‘natural causes’ when even to a lay person the PM report indicates the contrary.

It referred to Principle 2 of ‘The Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’, adopted by the United Nations General Assembly on 18 December 1982, which states:

“It is a gross contravention of medical ethics… for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment…”

Accordingly, it ordered the Opposite Parties to institute a proper inquiry into such conduct of the said doctors and take to its logical conclusion.

“…it is unfortunate that the qualified medical personnel have by submitting a questionable medical report attempted to help the State authorities in particular CRPF, the law enforcement agency in the present case, and the police in whose custody the Petitioner’s husband died, to avoid their liability,” it added.

Thereafter, following the principles laid down by the Supreme Court in Nilabati Behera v. State of Orissa, the Court ordered the CRPF and the Odisha State Police to pay compensation of Rs. 5,00,000/- (Rupees five lakh) each (i.e. total of Rs. 10 lakhs) to the petitioner within a period of eight weeks, failing which to pay the amount along with 6% simple interest for the period of delay.

Case Title: Maria Kadaisma @ Kadaiska @ Salmina v. State of Odisha & Ors.

Case No.: W.P.(C) No. 13508 of 2010

Judgment Dated: March 15, 2023

Counsel for the Petitioner: Mr. Prasanta Kumar Jena, Advocate

Counsel for the Respondents: Mr. Ishwar Mohanty, Addl. Standing Counsel; Mr. P.K. Parhi, Deputy Solicitor General and Mr. B.S. Rayaguru, Central Govt. Counsel

Citation: 2023 LiveLaw (Ori) 38