Nilabati Behera vs State

of Orissa

By Sumiet More
• FACTS:

• Petitioner’s son suman Behera aged 22 years was taken

into the police custody at around 8 a.m. on 1.12.1987 by
Assistant Sub-Inspector of Police of the Police Outpost for
the investigation of an offence of theft.
• He was confined at the Police outpost on 2.12.1987.
• At about 2 p.m. on the same day it came to the
knowledge of the petitioner that the corpse of her son was
found on the railway track, there have been multiple
injuries on the body and his death was unnatural, the
reason behind the death was the injuries on his body.
• The petitioner alleged that it had been 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 body was thrown away on the railway track
in her letter written on 14.9.1988, which was treated as a
writ petition under Article 32 of the Constitution.
• It had been prayed within the petition that award of
compensation be made to her, for contravention of the
elemental right to life guaranteed under Article 21 of the
Constitution.
• The defending argument of the respondents was that the
petitioner’s son managed to flee from police custody at
about 3 a.m. on 2.12.1987 from the Police Outpost where
he was detained and thereafter, he couldn’t be
apprehended in spite of a research.
• After a brief search his 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 allegations of the custodial
death and their responsibility for the unnatural death of
the petitioner’s son.
• On 4.3.1991, this Court directed the District Judge to
carry an inquiry into the matter and to submit a report.
• After hearing to both the parties and going through their
sets of evidences the District Judge submitted the Inquiry
Report on 4.9.1991.
• The District Judge found that the petitioner’s son died
because of the multiple injuries suffered by him while he
was in the police custody.
• The correctness of the finding of the District Judge in his
report was assailed during this Court.
• The respondents stated that the petitioner’s son managed
to escape from police custody at about 3 a.m. on
2.12.1987 and he was run over by a passing train and
hence he sustained the fatal injuries.
• They also stated that that the responsibility of the
respondents for his safety came to an end the instant he
escaped from the police custody.
• This was the factual foundation for State’s liability for
payment of compensation for violation of the elemental
right to life under Article 21 was absent.
• ISSUES:

• The issues raised by the petitioner in this case was

whether there is a right to life under Article 21 of the
Indian Constitution, and whether the Supreme Court of
India and the High Courts can issue monetary
compensation in case of (or if it is given in compensation
for) violation of fundamental right under Article 32 and 226
of the Indian Constitution respectively, if the case is with
regard to “Sovereign Immunity”.
• The principle of “Sovereign Immunity” states that a State
cannot commit a legal wrong and is immune to from
prosecution.
• In simple terms, it to the fact that the government cannot
be sued without its consent.
• ARGUMENTS OF THE PARTIES:

• By the Petitioner:

• The petitioner’s counsel stated that the District Court

judge’s findings on the matter of the case cannot be
rejected, and that there was enough evidence to prove
that a petitioner’s son was in custody of the police when
he was inflicted with the injuries that has caused his
death.
• It was also argued that the petitioner’s son’s right to life
under Article 21 of the Indian Constitution has been
deprived by the police, and then compensation was
claimed.
• By the respondent:

• The respondents’ counsel, i.e., the Additional Solicitor

General, claimed that the petitioner’s son had escaped
the police custody at around 3a.m., on the morning of 2nd
of December, 1987, and was not to be found in spite of
the police having searched for him.
• He also claimed that the petitioner’s son reached near the
railway station soon after his escape from the police, and
was hit by a train that was crossing, and stated that it was
those injuries that has caused the death of the petitioner’s
son.
• He argued that this was not a case of custodial death, as
the petitioner’s son has escaped the police custody, and
also denied the District Court’s evidence.
• JUDGEMENT:

• The Supreme Court held that the respondent i.e. State of

Orissa has to pay a sum of Rs.1,50,000 Mrs. Nilabati
Behera and also a sum of Rs.10,000 has to be paid to the
Supreme Court Legal Aid Committee.
• It was contended that the evidence adduced during the
inquiry doesn’t support the defence of respondents and
there’s no reason to reject the finding of the learned
District Judge that Suman Behera died in police custody
as a result of the injuries inflicted upon him.
• Ratio decidendi: (the rule of law on which a judicial decision is
based)

• It is clear that there’s no evidence of any search made by

the police to apprehend Suman Behera if the defence of
his getaway police custody is true.
• Contradictory to which the invention of the body on the
railway track within the morning by some railway men, it
had been much later within the day that the police
reached the spot to require charge of the body.
• This conduct of the concerned law enforcement officials,
is additionally a major circumstance to assess the
credibility of the defence version.
• it had been stated by the doctor that while all the injuries
couldn’t be caused in a very train accident, it had been
possible to cause all the injuries by lathi blows.
• There is a difference between the liability of the state
publicly law and therefore the liability of the state in
camera law for payment of compensation in action on tort.
• It is mentioned that award of compensation in a every
proceeding under Article 32 by this court or by the state
supreme court under Article 226 of the Constitution may
be a remedy available publicly law, supported strict
liability for contravention of fundamental rights to which
the principle of exemption doesn’t apply, while it’s going to
be available as a defence in camera law in an action
supported tort.
• The court isn’t helpless and therefore, the wide powers
given to the current Court by Article 32, which itself may
be a fundamental right, imposes a constitutional
obligation on this Court to forge such new tools, which
can be necessary for doing complete justice and
enforcing the elemental rights guaranteed within the
Constitution, which enable the award of monetary
compensation in appropriate cases, where that’s the sole
mode of redress available.
• The ability available to the current Court under Article 142
is additionally an enabling provision during this behalf.

• There was concurring opinion given by justice Dr. Anand

which said that it is the duty of the state to make sure that
the rights of the people are not infringed in accordance
with law when any person is its custody.
• The valuable right guaranteed by Article 21 of the
Constitution of India cannot be denied to convicts, under
trials or other prisoners in custody, except per procedure
established by law.

• There’s a good responsibility on the police or prison

authorities to make sure that the citizen in its custody isn’t
bereft of his right to life.
• His liberty is within the very nature of things circumscribed
by the actual fact of his confinement and thus his interest
within the limited liberty left to him is very precious.
• On the part of the State the duty of care is strict and has
no exceptions.

• The wrongdoer is accountable and therefore the State is

responsible if the person in custody of the police are
bereft of his life except per the procedure established by
law.
• ANALYSIS:

• Article 21 of the Indian Constitution states that “No person

shall be deprived of his life or personal liberty except
according to procedure established by law”.
• It is pretty evident with this particular law that no one can
snatch away the right to life of a person.
• Not unless the Law states, which happens in the rarest of
the rarest cases; It was not just culpable homicides and
murders, but custodial deaths were also pretty frequent
and in fact, increased in the 1980s.
• And most of the times, they couldn’t be proved.
• In a Country where its Constitution even talks about the
rights of the persons detained, it is pretty apparent that
the rights that they are vested to already, cannot be taken
away.
• And the judgment of this case of Nilabati Behera v. State
of Orissa , is undoubtedly one of the landmark judgments
of the country, for the court stated in its judgment that
compensation can be claimed in case of a custodial
death, and it definitely does stand as a testimony to the
fact that in spite of all the drawbacks of the setup of the
Government of this country, there is still a hope for justice.
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