CASE ANALYSIS

SMT. NILABATI BEHERA VS. STATE OF

ORISSA AND OTHERS
1993 (2) SCR 581
 Bench
Justice J.S. Verma

Justice Dr. Anand A.S.

Justice Venkatachala.
 Facts and petitioners pleadings
Suman Behera is the son of the petitioner.

He was taken from his house by the police.

He was accused of theft.

Petitioner found Sumans dead body on the railway track,

with the restraining rope intact.

Wrote a letter to the Supreme Court, which was treated as a

writ petition.

She alleged it was custodial death.

Many injuries on the body of the dead.

 Facts (Continued)
Invoked Article 32 Of the Indian Constitution:
The right to move the Supreme Court by appropriate proceedings
for the enforcement of the rights conferred by this Part (Part III)is
guaranteed.
RIGHT TO CONSTITUTIONAL REMEDIES.

Death caused by police brutality and body thrown on the tracks.

Claimed violation of RIGHT TO LIFE (Article 21)

Protection of life and personal liberty:- No person shall be
deprived of his life or personal liberty except according to
procedure established by law.
 Defence of the police (State of Orissa)
Suman managed to escape, by chewing off his restraint at 3 AM
from the station.

Suman could not be apprehended after his escape.

Sumans dead body with bruises found.

Suman was run over by a train.

His body was found on the railway tracks.

Therefore, there is no custodial death.

Additional Solicitor General of Orissa Dr. K.K. Mishra--- the

injuries were caused by the train hit.
 Directions of the Supreme Court
Under Section 176 Cr.P.C. The Supreme Court directed the
District Magistrate to hold an inquiry into the matter.

When any person dies while in the custody of the police or when
the case is of the nature referred to in clause (i) or clause (ii) of
sub- section (3) of section 174] the nearest Magistrate-
empowered to hold inquests shall, and in any other case
mentioned in sub- section (1) of section 174, any Magistrate so
empowered may hold an inquiry into the cause of death either
instead of, or in addition to, the investigation held by the police
officer; and if he does so, he shall have all the powers in
conducting it which he would have in holding an inquiry into an
offence.
 Section 174 of CrPc
When the officer in charge of a police station or some other police officer
specially empowered by the State Government in that behalf receives
information that a person has committed suicide, or has been killed by
another or by an animal or by machinery or by an accident, or has died
under circumstances raising a reasonable suspicion that some other person
has committed an offence, he shall immediately give intimation thereof to
the nearest Executive Magistrate empowered to hold inquests, and, unless
otherwise directed by any rule prescribed by the State Government, or by
any general or special order of the District or Sub- divisional Magistrate,
shall proceed to the place where the body of such deceased person is, and
there, in the presence of two' or more respectable inhabitants of the
neighbourhood, shall make an investigation, and draw up a report of the
apparent cause of death, describing such wounds, fractures, bruises, and
other marks of injury as may be found on the body, and stating in what
manner, or by what weapon or instrument (if any); such marks appear to
have been inflicted.
 Inquiry report.
Suman Behera died due to lathi blows and not
due to train run-over.
Post mortem reports (& doctor) suggested strong
blows by a blunt object not train accident.
Injuries to the face and the left temporal region
were severe.
Damage of the eye-ball, nose, cheek and the
jaws.
THE SUPREME COURT DECIDED THAT THE DEATH
OF SUMAN BEHERA WAS CUSTODIAL, DUE TO
THE BRUTALITY OF THE POLICE.
 ISSUE 1
WHETHER IT IS A CASE OF CUSTODIAL DEATH?

Supreme Court- Yes, it is.

Findings of the post-mortem

Declaration of the doctor.

Findings of the District Magistrate of Cuttack.

Injuries were very different to those seen in train hit cases.

 ISSUE 2
WHETHER THE RESPONDENTS ARE LIABLE TO COMPENSATE
NILABATHI BEHERA? CAN THE SUPREME COURT AWARD
COMPENSATIONS UNDER ARTICLE 32?

Supreme Court relied on precedents.

RUDUL SHAH VS. STATE OF BIHAR AND ANR. (1983) 3 SCR 508
Remedy given to the petitioner for perpetual detainment and
violation of his fundamental right. ( Article 21)

SEBASTIAN M. HONGRAY VS. U.O.I (1984)1 SCR 904

Exemplary remedies awarded for failure to comply with
habeas corpus. unnatural death of the petitioner's relative.
 Case with opposing judgement

KASTURI LAL RALIA RAM JAIN VS THE STATE OF UTTAR

PRADESH. (1965) 1 S.C.R 375
Sovereign Immunity was upheld in the case of vicarious
liability of the State for the tort of its employees.
BHAGALPUR BINDING CASES
KHATRI and OTHERS(II) vs State of BIHAR and OTHERS(1981) 1
SCC 627
KHATRI AND OTHERS(IV) VS STATE OF BIHAR AND OTHERS
(1981) 2 SCC 493
 ISSUE 2 (CONTINUATION)
BHIM SINGH VS. STATE OF JAMMU KASHMIR (1984) SCC504

Violation of Article 21 and Article 22 (2)

Court granted compensation under Article 32.

ARTICLE 9(5) INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS

Anyone who has been the victim of unlawful arrest and

detention shall have an enforceable right to compensation.
 ISSUE 3

DOES THE SUPREME COURT UNDER ARTICLE 32 AND HIGH

COURTS UNDER ARTICLE 226 HAVE THE POWERS TO WIDELY
APPLY THE PROVISIONS OF ARTICLE 32 AND ARTICLE 226 TO
INCLUDE COMPENSATION?

Supreme CourtYes.

Because, Article 32 itself is a fundamental right.

Supreme court and high courts is the custodian of the right to

constitutional remedies.
 Compensation
Sovereign immunity of the state limited to torts.

Not applicable in the violation of fundamental rights.

Gave Nilabathi Behera Rs. 150,000.

Based on the monthly earnings of Suman Behera.

Penalised the State of Orissa Rs. 10,000.

 Obiter Dicta

A custodial death is perhaps

one of the worst crimes in a
civilised society governed by
the RULE OF LAW.
THANK YOU
NISHANTH CHAKKERE & SHREYAS
G.