Or.VII, rule 11 C.P.C.- suit for cancellation of deeds executed by parties to the suit - court fee is paid under the relief of Declaration as null and void but not under cancellation of deeds - objection was rejected - Apex court held that -A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act. Whether proper court fee is paid on a plaint is primarily a question between the plaintiff and the State.- Section 12 of Madras Court fee Act - this section only enables the defendant to raise a contention as to the proper court fee payable on a plaint and to assist the court in arriving at a just decision on that question - The Act, it is true by Section 19 provides that for the purpose of deciding whether the subject-matter of the suit or other proceeding has been properly valued or whether the fee paid is sufficient, the court may hold such enquiry as it considers proper and issue a commission to any other person directing him to make such local or other investigation as may be necessary and report thereon. The anxiety of the legislature to collect court fee due from the litigant is manifest from the detailed provisions made in Chapter III of the Act, but those provisions do not arm the defendant with a weapon of technicality to obstruct the progress of the suit by approaching the High Court in revision against an order determining the court fee payable.”- appeal is to be allowed, the impugned orders passed by the trial court and the High Court, being unsustainable are to be set aside and we so direct. The trial court is directed to grant three months time to the plaintiff to pay the requisite court fee.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3396 OF 2017
(Arising out of SLP (C) No.33692 of 2016)
J. Vasanthi & Ors. … Appellant(s)
VERSUS
N. Ramani Kanthammal (D) Rep. by …Respondent(s)
LRs. & Ors.
J U D G M E N T
Dipak Misra, J.
This appeal, by special leave, is at the instance of the
appellants calling in question the legal propriety of the
judgment and order dated 16th March, 2016 passed by the
High Court of Judicature at Madras, Bench at Madurai in
C.R.P. (MD) No. 847 of 2015 (PD), whereby the High Court
has affirmed the order passed by the Principal District
Judge, Dindigul in I.A. No. 94 of 2014 in Original Suit No. 20
of 2014 rejecting the prayer of the applicant/defendant for
dismissal of the Original Suit on the ground of payment of
2
inadequate court fee by placing reliance on a wrong provision
of the Tamil Nadu Court Fees and Suit Valuation Act, 1955
(for brevity, “the Act”).
2. The facts in a nutshell are that the “A Schedule property”,
as appended to the plaint, was purchased by the plaintiff’s
father, late Raja Chidambara Reddiyar from one Balasundara
Iyyer on 12.08.1943 through document No. 412/1943 and
also “B schedule property” was purchased by him from one
Swaminatha Iyyer on 09.08.1943 through document No.
238/1943. After the purchase, he got the patta transferred in
his name and paid the government taxes and enjoyed the
properties. On 21.02.1948 through document No. 596/1948
plaintiff’s father made a sale of the A and B Schedule
properties along with some other properties in favour of
Sellammal w/o Rangoon Krishnasamy Reddiyar. As averred
in the plaint, the A and B schedule properties and other
properties which were sold, were again purchased by the
father of the plaintiff on 19.04.1948 through document No.
1469/1948 from Sellammal and, thereafter, changed the
patta in his name bearing patta Nos. 621, 705, 2032 and
2133, and held the suit A and B Schedule properties during
3
his life time. As pleaded, the plaintiff’s father died on
07.10.1986 leaving behind the plaintiff and her sister Gowri
as his legal heirs. The 1st defendant is the son of the
plaintiff. The 2nd defendant is the husband of the 3rd
defendant and the 4th defendant is their son. The 5th
defendant is the father of 3rd and 6th defendants and
father-in-law of the 2nd defendant. The suit was basically
filed for seeking declaration that the sale deeds dated
30.08.1991, 23.03.1993, 04.01.1994, 10.06.2002 and
11.03.2004 as per document Nos. Document Nos.922/1991,
Document No.330/1993, Document No.2395/1994,
Document No.1239/2002 and Document No. 214/2004,
respectively as null and void and for permanent injunction.
3. The further narration of the factual score is that as
regards the “A Schedule property”, the plaintiff asked for a
loan of Rs. 1 lakh from the 2nd defendant, Janakiraman, who
in turn, suggested that an agreement for sale should be
made in favour of his brother-in-law, the 6th defendant,
Saravanaprabhu. The plaintiff agreed to make an agreement
for sale as proposed by the 2nd defendant. As per the said
agreement an amount of Rs. 50,000/- was received by the
4
plaintiff and her son, the 1st defendant and executed an
agreement for sell.
4. It is claimed that at that time, the 2nd defendant
obtained signatures in blank papers. Since the document
was for security which was made in favour of the 6th
defendant on the request of the 2nd defendant, no action was
taken regarding document No. 805/91. It is further
contended that the A and B Schedule properties were
maintained by the plaintiff and her sister in the name of their
father only. When the plaintiff was making arrangements for
partition of the A and B Schedule properties on 10.03.2011,
it came to their knowledge that the defendant Nos. 2 to 6 had
created fabricated documents on the basis of the document
No.805/91. It is urged in the plaint that the 2nd defendant
was a Sub-Registrar and taking advantage of his position the
sale agreement made in favour of the 6th defendant, who is
the brother-in-law of the 2nd defendant, fabricated sale deeds
were created by the defendant Nos. 2 to 6 as if the plaintiff
had executed the sale deed in favour of the 6th defendant.
5. The defendants filed I.A. No.94 of 2014 in O.S. No.20 of
2014 praying for directing the plaintiff to pay the court fees
5
under Section 40 of the Act failing which to reject the plaint
since the plaint was highly undervalued. The said
application for rejection of the plaint preferred under Order
VII Rule 11 of the Code of Civil Procedure was dismissed by
the Principal District Judge, Dindigul, as mentioned
hereinbefore. The trial Judge, while dismissing the I.A.,
relied upon the decisions in G. Seethadevi v. R. Govindaraj
& Ors.1
, P. Thillai Selvan v. Shyna Paul & Anr.2
, and
Siddha Construction (P) Ltd. Rep. By its Power Agent,
Anjay Sharma, No.32 Guruswamy Road, Chetpet,
Chennai – 600031 v. M. Shanmugam & Ors.3
. Be it
clarified that the original plaintiff died during the pendency
of the case, i.e., on 15.01.2015, and her legal heirs have been
brought on record.
6. Being dissatisfied with the aforesaid order, the
appellants preferred C.R.P. (MD) No. 847 of 2015 (PD). It was
contended before the High Court that the learned trial Judge
has completely erred by rejecting the prayer inasmuch as the
plaintiff was seeking declaration for cancellation of the sale
deeds and hence, she was liable to pay the court fee under
1 (2011) 6 MLJ 399
2 (2014) 7 MLJ 732
3 (5) CTC 255 : (2006) 4 MLJ 924
6
Section 40 of the Act and not under Section 25 (d) of the said
Act. It was also urged that the trial court has completely
erred by placing reliance on Siddha Construction (supra).
The said stand of the revisionists was resisted by the
opposite parties contending, inter alia, that when a plea had
been advanced that she had not executed any sale deed and
the documents were fabricated, then the court fee is payable
as per Section 25(d) and Section 40 of the Act is not
attracted. That apart, it was also urged that the payment of
the court fee is a mixed question of fact and law and,
therefore, the plaint was not liable to be rejected by
entertaining a petition as regards evaluation of the suit
property. It is worthy to mention here that the issue of
limitation was raised before the trial court which was not
accepted as a ground for rejection of the plaint and the High
Court concurred with the same. We do not intend to address
the issue of limitation as that can be dealt with at the stage
of trial of the suit.
7. The High Court, as the impugned judgment would
show, referred to the averments in the plaint which were to
the effect that the sale deeds were not executed by their
7
predecessor-in-interest and she had not received
consideration and, therefore, the principle enunciated in G.
Seethadevi (supra) is squarely applicable to them. The High
Court further observed that on a perusal of the plaint, it is
manifest that the plaintiff had denied execution of the sale
deeds and in that context the court fee payable could be
under Section 25(d) and not under Section 40 of the Act.
8. Ms. V. Mohana, learned senior counsel appearing for
the appellants submits that the court fees has to be paid
under Section 40 of the Act when the plaintiff has sought
declaration for treating the documents as null and void,
which basically amounts to seeking the relief of cancellation
of the said documents. It is urged by her that when the
requisite court fees as payable under the Act is not paid, the
court has no other option but to reject the plaint and the
said factum is obvious from the assertions in the plaint.
9. Mr. G. Gowthaman and Mr. P. Soma Sundaram, learned
counsel for the respondent Nos. 1, 5, 6, 7 and 9 to 14 in
support of the order passed by the High Court contend that
the reasons ascribed by the High Court are absolutely
impregnable and in a case of the present nature, court fee
8
has to be paid under Section 25(d) of the Act. It is further
submitted by the learned counsel for the respondents that
the sale deeds executed in favour of the defendants were
fraudulent ones, for they were never executed by the original
plaintiff and hence, the court fees is required to be paid
under Section 25(d) of the Act.
10. Section 40 of the Act reads as under:
“40. Suits for cancellation of decrees, etc.-- (1)
In a suit for cancellation of a decree for money or
other property having a money value, or other
document which purports or operates to create,
declare, assign, limit or extinguish, whether in
present or in future, any right, title or interest in
money, movable or immovable property, fee shall
be computed on the value of the subject-matter of
the suit, and such value shall be deemed to be--
if the whole decree or other document is
sought to be cancelled, the amount or value of
the property for which the decree was passed or
other document was executed;
if a part of the decree or other document is
sought to be cancelled, such part of the amount
or value of the property.
(2) If the decree or other document is such that
the liability under it cannot be split up and the
relief claimed relates only to a particular item of
property belonging to the plaintiff or to the
plaintiff's share in any such property, fee shall be
computed on the value of such property or share
or on the amount of the decree, whichever is less.
Explanation.-- A suit to set aside an award shall
9
be deemed to be a suit to set aside a decree
within the meaning of this section.”
[Emphasis added]
11. The singular issue that gains significance in this case is
that the original plaintiff was a party to the transaction.
Section 40 of the Act, as we notice, provides that in a suit for
cancellation of a document, the court fee has to be computed
on the value of the subject-matter of the suit and such value
shall be deemed to be the whole decree or other document
which is sought to be cancelled, the amount or value of the
property for which the decree was passed or other document
was executed. It also spelt out that a part of the decree or
other document is to be cancelled, such part of the amount
or value of the property. On a careful scrutiny of the
provision, it is limpid that it refers to the decree or other
document and in that context, it uses the word “value”. The
stand of the respondents before the High Court as well as
before this Court is that the documents were sought to be
declared as null and void on the ground of fraud and,
therefore, Section 40 of the Act would not be attracted. In
this regard, we may notice certain decisions of the High
Court of Madras.
10
12. In Siddha Construction (supra), the learned single
Judge has opined that for the value of the Court Fee payable
by the plaintiff the averments in the plaint alone are to be
considered. In the said case, it was observed that the plaintiffs
had not executed the sale deed and did not receive any
sale consideration and they had not alienated the property in
favour of any one. In the said case, the third defendant was
the petitioner in the revision petition. The suit was filed to
declare that the sale deed executed by the first defendant in
favour of the third defendant was null and void. The High
Court referred to the decision in Alamelu v. Manickammal4
wherein it has been held that the plaintiff is not a party to
the sale deed and when he seeks only a declaration that the
impugned sale deed is null and void, it is subject to the value
of the suit under Section 25(d) of the Act. The learned single
Judge also quoted a passage from Gnanambal Ammal v.
Kannappa Pillai5
wherein it has been held:
“Where a plaintiff's case is that a document is sham
and nominal, it need not be set aside, and the suit
for relief on that footing is not one for cancellation,
so as to attract the application of Section 40 of the
Madras Court-fees and Suits Valuation Act, 1955.
But even in such a case, if the plaintiff sues for can-
4 1979 (II) M.L.J. 8
5 1959(I) M.L.J. 353
11
cellation he would have to pay Court-fee on that relief,
whether it is necessary to have the deed cancelled
or not.”
13. The learned counsel for the appellant would submit that
the said decision is distinguishable as in the said case the
plaintiffs were not parties to the impugned sale deed.
14. In G. Seethadevi (supra), the High Court followed the
principle stated in Siddha Construction (supra) and held
thus:
“In the case on hand, it is to be seen that the case of
the Petitioner is that she has not executed Power of
Attorney in favour of one Bhaskaran so as to execute
the sale deed in favour of third parties. That
apart, it is contended that the said Bhaskaran is
unknown to the Petitioner and he is an employee of
the first Respondent in his petrol bunk. When such
statement has been made in the plaint, the court fee
that has to be payable on the relief that has been
sought for by the Petitioner viz., for declaration that
the sale deed dated 25.04.2008 is null and void and
not binding on the Petitioner, under Section 25(d) of
the Act and not under Section 40 of the Act. The Petitioner
has not admitted the execution of Power of
Attorney. The court below is not justified in directing
the Petitioner to pay the court fee under Section
40 of the Act. In the case relied on by the Respondents,
the Power of Attorney was admitted by the
Respondents/Plaintiffs therein and hence, this
Court in the said decision has directed the party to
pay the Court Fee under Section 40 of the Act.”
12
15. In K. Palaniswamy and another v. S.B. Subramani
and another6
, the learned single Judge took note of the facts
that the plaintiff had filed a suit for declaring the sale deeds
executed by the first defendant in favour of the second and
third defendants as null and void and unenforceable and
would not bind the plaintiff and for consequential permanent
injunction and an application under Order VII Rule 11 of
Civil Procedure Code (CPC) was filed as proper court fee had
not been paid and the suit was not properly valued and it deserved
to be rejected. In the said case, the second respondent
was the power of attorney of the first respondent and after
revocation of power of attorney, he had executed the sale
deed in favour of the defendants. The High Court took note
of the fact that when the first respondent was not a party to
the document, the relief sought for in the suit would not
come under Section 40 of the Act and accordingly, dismissed
the civil revision.
16. Chellakannu v. Kolanji7
, dealt with a civil revision
that was filed by the plaintiff assailing the order of the trial
court directing the plaintiff to pay the court fee under Section
6 2007 (1) CTC 300
7 AIR 2005 Mad 405
13
40 of the Act. The narration of the facts in the plaint was adverted
to by the High Court and for proper appreciation of
the controversy that has been raised in the instant case, we
may reproduce the same:
“… the Suit Property belonged to his FatherPichamuthu.
Pichamuthu had two wives, through
whom he had Three Sons. Earlier, there was Partition
in the family of the Plaintiff on 04.08.1971
wherein the Plaintiff and the Sons through the First
Wife have partitioned the family properties. There
was further partition between the Plaintiff and his
Brothers in 1977. Item 1 of the Suit Property was
allotted to one Poomalai. Items 2 and 4 -
S.Nos.155/3 and 339/13A were allotted to the
Plaintiff. First Defendant is the Wife of Shanmugam.
Third Defendant has been keeping the First Defendant
as his concubine. The Third Item was allotted
to the Plaintiff's Sister. The Third Defendant is the
Third Party. With the help of the First Defendant,
the Third Defendant secured the Suit Properties -
Item Nos.1 to 3 under a false representation that
the Plaintiff is executing a Will in favour of the First
Defendant. On that mis-representation, Plaintiff's
thumb impression was obtained and two Sale Deeds
dated 05.06.1995 and 23.08.1995 are said to have
been obtained. Those Sale Deeds obtained from the
Plaintiff under false representation is not binding on
the Plaintiff. Hence, the Plaintiff has filed the Suit
for Declaration that the Sale Deeds are not binding
on him and for Permanent Injunction, restraining
the Defendants from in any way interfering with the
Plaintiff's peaceful possession and enjoyment of the
Plaint Schedule Items I, II and IV.”
17. The further stand taken by the plaintiff was that the
sale deeds were obtained from him under fraud and hence,
14
suit had been filed for declaration that the sale deeds were
not binding on the plaintiff and since the suit was not filed
for cancellation of the sale deeds, the defendants could not
insist the plaintiff to pay the court fee under Section 40 of
the Act. The trial court recorded a find that the sale deeds
had been executed by the plaintiff himself and prima facie
the sale deeds were binding on the executants and when
there is a prayer to declare the sale deeds as invalid, it tantamounts
to seeking cancellation of sale deeds and therefore,
court fee payable would be governed by Section 40 of the Act.
18. The High Court posed two questions, namely, (i)
whether in the Suit filed for Declaration that the Sale Deeds
are invalid, Court Fee paid under Section 25(d) of the Act is
incorrect and (ii) whether the impugned order directing the
Plaintiff to pay the Court Fee under Section 40 of the Act suffers
from any infirmity warranting interference. Dealing with
the factual matrix, the High Court observed:
“Thus, the Plaintiff himself is a party to the Sale
Deed; when the Party himself seeks to get rid of the
Sale Deeds in substance it amounts to Cancellation
of Decree. The Plaintiff might seek to avoid the Sale
Deeds if he is not a party to the Sale Deeds. But,
since the Plaintiff himself is a party to the Sale
Deeds before he is suing for any relief, the Plaintiff
15
must first obtain the cancellation of the Sale
Deeds.”
And again:
“The word "Cancellation" implies that the persons
suing should be a party to the document. Strangers
are not bound by the documents and are not
obliged to sue for cancellation. When the party to
the document is suing, challenging the document,
he must first obtain cancellation before getting any
further relief. Whether cancellation is prayed for or
not or even it is impliedly sought for in substance,
the Suit is one for cancellation. in the present case,
when the Plaintiff attacks the Sale Deeds as having
been obtained from him under fraud and mis-representation
the Plaintiff cannot seek for any further
relief without setting aside the Sale Deeds.
x x x x x
The allegation on the Plaint in substance mounts to
cancellation of the document. Though the prayer is
couched in the form of seeking declaration that the
document is not valid and not binding, the relief in
substance indirectly amounts to seeking for cancellation
of the Sale Deed. Learned District Munsif was
right in ordering payment of Court Fee under Section
40 of the Act. This Revision Petition has no
merits and is bound to fail.”
Being of this view, the High Court dismissed the civil revision
and directed the plaintiff to pay court fee with further
stipulation that unless paid, plaint would stand rejected.
19. To appreciate the decision in P. Thillai Selvan (supra),
we have carefully gone through the same and we find the
16
High Court has referred to Order VII Rule 11 CPC, adverted
to the issue of payment of court fee both as a question of fact
and law and opined that the trial court has rightly rejected
the petition. Thus, the said decision does not really deal with
Section 40 of the Act.
20. In this context, we may profitably refer to the pronouncement
of this Court in Suhrid Singh alias Sardool
Singh v. Randhir Singh and others8
. In the said case, the
Court referred to several elaborate prayers contained in the
plaint and summarized the same. The Court took note of the
fact that the issue had come before the trial court which had
come to hold that prayers relating to the sale deeds
amounted to seeking cancellation of the sale deeds and,
therefore, ad volerem court fee was payable on the sale consideration
in respect of the sale deeds. The said view was affirmed
in the revision. The Court addressed the core issue
pertaining to court fee payable in regard to the prayer for a
declaration that the sale deeds were void and not “binding on
the coparcenary”, and for the consequential relief of joint
possession and injunction. After referring to the provisions
8 (2010) 12 SCC 112
17
of the Court Fees Act, 1870 as amended in Punjab (as the
controversy arose from the High Court of Punjab and
Haryana), the Court held:
“Where the executant of a deed wants it to be annulled,
he has to seek cancellation of the deed. But
if a non-executant seeks annulment of a deed, he
has to seek a declaration that the deed is invalid, or
non est, or illegal or that it is not binding on him.
The difference between a prayer for cancellation and
declaration in regard to a deed of transfer/conveyance,
can be brought out by the following illustration
relating to A and B, two brothers. A executes
a sale deed in favour of C. Subsequently A wants to
avoid the sale. A has to sue for cancellation of the
deed. On the other hand, if B, who is not the executant
of the deed, wants to avoid it, he has to sue for
a declaration that the deed executed by A is
invalid/void and non est/illegal and he is not bound
by it. In essence both may be suing to have the deed
set aside or declared as non-binding. But the form
is different and court fee is also different. If A, the
executant of the deed, seeks cancellation of the
deed, he has to pay ad valorem court fee on the consideration
stated in the sale deed. If B, who is a
non-executant, is in possession and sues for a declaration
that the deed is null or void and does not
bind him or his share, he has to merely pay a fixed
court fee of Rs. 19.50 under Article 17(iii) of the Second
Schedule of the Act. But if B, a non-executant,
is not in possession, and he seeks not only a declaration
that the sale deed is invalid, but also the consequential
relief of possession, he has to pay an ad
valorem court fee as provided under Section 7(iv)(c)
of the Act.
Section 7(iv)(c) provides that in suits for a
declaratory decree with consequential relief, the
court fee shall be computed according to the
18
amount at which the relief sought is valued in the
plaint. The proviso thereto makes it clear that where
the suit for declaratory decree with consequential
relief is with reference to any property, such valuation
shall not be less than the value of the property
calculated in the manner provided for by clause (v)
of Section 7.”
21. On the basis of the aforesaid analysis, the Court opined
that the view expressed by the trial court and the High Court
was not justified in holding that the court fee is required to
be paid on the sale consideration mentioned in the sale
deeds.
22. In Shailendra Bhardwaj and others v. Chandra Pal
and another9
, the Court was dealing with an issue whether
suit filed seeking a declaration that a will and a sale deed are
void resulting in their cancellation fell under Section 7(iv-A)
of the Court Fees Act, 1870 as amended by the U.P. Amendment
Act (Act 19 of 1938) or Article 17(iii) of Schedule II of
the Court Fees Act, 1870 for the purpose of valuation. Be it
noted, in the said case the trial court had taken the view that
the court fee had to be paid under Section 7(iv-A) and the
High Court has concurred with the same. The two-Judge
Bench took note of the provisions of the Court Fees Act, 1870
9 (2013) 1 SCC 579
19
as amended by the U.P. Amendment Act (Act 19 of 1938) and
after referring to the same in detail, held thus:
“On comparing the abovementioned provisions, it is
clear that Article 17(iii) of Schedule II of the Court
Fees Act is applicable in cases where the plaintiff
seeks to obtain a declaratory decree without any
consequential relief and there is no other provision
under the Act for payment of fee relating to relief
claimed. Article 17(iii) of Schedule II of the Court
Fees Act makes it clear that this article is applicable
in cases where the plaintiff seeks to obtain a
declaratory decree without consequential reliefs
and there is no other provision under the Act for
payment of fee relating to relief claimed. If there is
no other provision under the Court Fees Act in case
of a suit involving cancellation or adjudging/declaring
void or voidable a will or sale deed on the question
of payment of court fees, then Article 17(iii) of
Schedule II shall be applicable. But if such relief is
covered by any other provisions of the Court Fees
Act, then Article 17(iii) of Schedule II will not be
applicable. On a comparison between the Court
Fees Act and the U.P. Amendment Act, it is clear
that Section 7(iv-A) of the U.P. Amendment Act covers
suits for or involving cancellation or
adjudging/declaring null and void decree for money
or an instrument securing money or other property
having such value.”
23. The Court took note of the fact that the suit was filed after
the death of the testator and, therefore, on that basis observed
that the suit property covered by the will was required
to be valued. The Court further opined that since Section
7(iv-A) of the U.P. Amendment Act specifically provides that
20
payment of court fee in case where the suit is for or involving
cancellation or adjudging/declaring null and void decree for
money or an instrument, Article 17(iii) of Schedule II of the
Court Fees Act would not apply. The U.P. Amendment Act,
therefore, is applicable in the said case, despite the fact that
no consequential relief has been claimed. Consequently, in
terms of Section 7(iv-A) of the U.P. Amendment Act, the court
fees have to be computed according to the value of the subject-matter
and the trial court as well as the High Court have
correctly held so. The two-Judge Bench distinguished
Suhrid Singh’s case by expressing thus:
“10. We are of the view that the decision of this
Court in Suhrid Singh (supra) is not applicable to
the facts of the present case. First of all, this Court
had no occasion to examine the scope of the U.P.
Amendment Act. That was a case in which this
Court was dealing with Sections 7(iv)(c), (v) and
Schedule II Article 17(iii), as amended in the State of
Punjab. The position that we get in the State of Punjab
is entirely different from the State of U.P. and
the effect of the U.P. Amendment Act was not an issue
which arose for consideration in that case. Consequently,
in our view, the said judgment would not
apply to the present case.
11. The plaintiff, in the instant case, valued the suit
at Rs 30 lakhs for the purpose of pecuniary jurisdiction.
However, for the purpose of court fee, the
plaintiff paid a fixed court fee of Rs 200 under Article
17(iii) of Schedule II of the Court Fees Act. The
plaintiff had not noticed the fact that the abovemen-
21
tioned article stood amended by the State, by
adding the words “not otherwise provided for by this
Act”. Since Section 7(iv-A) of the U.P. Amended Act
specifically provides for payment of court fee in case
where the suit is for or involving cancellation or adjudging/declaring
void or voidable an instrument
securing property having money value, Article 17(iii)
of Schedule II of the Court Fees Act shall not be applicable.”
24. The decisions in Suhrid Singh (supra) and Shailendra
Bhardwaj (supra) have to be understood in their proper
perspective. There was U.P. Amendment in Shailendra
Bhardwaj (supra). In Suhrid Singh (supra) the Court was
dealing with a different situation. Be that as it may, the valuation
of a suit and payment of court fee shall depend upon
the special provision in a State if provided for. The view taken
by the Madras High Court in Chellakannu (supra), in our
considered opinion, is the correct exposition of law.
25. Another aspect needs to be noted. As we notice from
the impugned judgment, the High Court has expressed the
view that payment of the court fee is a mixed question of fact
and law and that has to be decided on the basis of evidence.
26. In this context, we have been commended to the decision
in A. Nawab John and others v. V.N. Subra-
22
maniyam10. On a careful perusal of the said decision, we
find that the said authority nowhere addresses the issue that
is involved in the case at hand. Proper valuation of the subject
matter or under valuation is an aspect which can be contested
by the defendant, but the said contest is limited. In
this regard, the two-Judge Bench has reproduced two passages
from Rathnavarmaraja v. Vimla11 which we think
seemly to reproduce:
“The Court Fees Act was enacted to collect revenue
for the benefit of the State and not to arm a contesting
party with a weapon of defence to obstruct the
trial of an action. By recognising that the defendant
was entitled to contest the valuation of the properties
in dispute as if it were a matter in issue between
him and the plaintiff and by entertaining petitions
preferred by the defendant to the High Court
in exercise of its revisional jurisdiction against the
order adjudging court fee payable on the plaint, all
progress in the suit for the trial of the dispute on
the merits has been effectively frustrated for nearly
five years. We fail to appreciate what grievance the
defendant can make by seeking to invoke the revisional
jurisdiction of the High Court on the question
whether the plaintiff has paid adequate court fee on
his plaint. Whether proper court fee is paid on a
plaint is primarily a question between the plaintiff
and the State. How by an order relating to the adequacy
of the court fee paid by the plaintiff, the defendant
may feel aggrieved, it is difficult to appreciate.
Again, the jurisdiction in revision exercised by
the High Court under Section 115 of the Code of
Civil Procedure is strictly conditioned by clauses (a)
10 (2012) 7 SCC 738
11 AIR 1961 SC 1299
23
to (c) thereof and may be invoked on the ground of
refusal to exercise jurisdiction vested in the subordinate
court or assumption of jurisdiction which the
court does not possess or on the ground that the
court has acted illegally or with material irregularity
in the exercise of its jurisdiction. The defendant who
may believe and even honestly that proper court fee
has not been paid by the plaintiff has still no right
to move the superior courts by appeal or in revision
against the order adjudging payment of court fee
payable on the plaint. But counsel for the defendant
says that by Act 14 of 1955 enacted by the Madras
Legislature which applied to the suit in question,
the defendant has been invested with a right not
only to contest in the trial court the issue whether
adequate court fee has been paid by the plaintiff,
but also to move the High Court in revision if an order
contrary to his submission is passed by the
court. Reliance in support of that contention is
placed upon sub-section (2) of Section 12. That subsection,
insofar as it is material, provides:
x x x x
But this section only enables the defendant to raise
a contention as to the proper court fee payable on a
plaint and to assist the court in arriving at a just decision
on that question. Our attention has not been
invited to any provision of the Madras Court Fees
Act or any other statute which enables the defendant
to move the High Court in revision against the
decision of the court of first instance on the matter
of court fee payable in a plaint. The Act, it is true by
Section 19 provides that for the purpose of deciding
whether the subject-matter of the suit or other proceeding
has been properly valued or whether the fee
paid is sufficient, the court may hold such enquiry
as it considers proper and issue a commission to
any other person directing him to make such local
or other investigation as may be necessary and report
thereon. The anxiety of the legislature to collect
court fee due from the litigant is manifest from the
detailed provisions made in Chapter III of the Act,
but those provisions do not arm the defendant with
24
a weapon of technicality to obstruct the progress of
the suit by approaching the High Court in revision
against an order determining the court fee payable.”
(emphasis supplied)
27. On a perusal of the decision in Rathnavarmaraja
(supra), we find the controversy had arisen with regard to
proper valuation and the stand of the defendant was that the
court fee had not been properly paid and in that context, the
Court has held what as we have reproduced hereinabove.
The issue being different, the said decision is distinguishable.
We may reiterate that proper valuation of the suit property
stands on a different footing than applicability of a particular
provision of an Act under which court fee is payable and in
such a situation, it is not correct to say that it has to be determined
on the basis of evidence and it is a matter for the
benefit of the revenue and the State and not to arm a contesting
party with a weapon of defence to obstruct the trial of
an action. It is because the Act empowers the defendant to
raise the plea of jurisdiction on a different yardstick.
28. In the ultimate anlaysis, we arrive at the conclusion
that the appeal is to be allowed, the impugned orders passed
by the trial court and the High Court, being unsustainable
25
are to be set aside and we so direct. The trial court is
directed to grant three months time to the plaintiff to pay the
requisite court fee. There shall be no order as to costs.
.….............................................J.
[Dipak Misra]
.…..............................................J.
[A.M. Khanwilkar]
...….....................................J.
[Mohan M. Shantanagoudar]
New Delhi;
August 10, 2017.

‘open jails’ or ‘open prisons’ - Custodial violence could take the form of third degree methods to extract information – the method used need not result in any physical violence but could be in the form of psychological violence. Custodial violence could also include a violation of bodily integrity through sexual violence – it could be to satisfy the lust of a person in authority or for some other reason. The ‘Mathura Rape Case’ is one such incident that most are familiar with. Custodial violence could, sometimes, lead to the death of its victim who is in a terribly disadvantaged and vulnerable condition. = The Ministry of Women & Child Development of the Government of India which is concerned with the implementation of Juvenile Justice (Care and Protection of W.P. (C) No. 406/2013 etc. Page 43 of 43 Children) Act, 2015 is directed to discuss with the concerned officers of the State Governments and formulate procedures for tabulating the number of children (if any) who suffer an unnatural death in child care institutions where they are kept in custody either because they are in conflict with law or because they need care and protection. Necessary steps should be taken in this regard by 31st December, 2017.

W.P. (C) No. 406/2013 etc. Page 1 of 43
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 406 OF 2013
RE- INHUMAN CONDITIONS IN 1382 PRISONS
WITH
I.A. No. 68248 of 2017
J U D G M E N T
Madan B. Lokur, J.
1. Custodial violence has always been a matter of great concern for all
civilized societies. Custodial violence could take the form of third degree
methods to extract information – the method used need not result in any
physical violence but could be in the form of psychological violence.
Custodial violence could also include a violation of bodily integrity through
sexual violence – it could be to satisfy the lust of a person in authority or for
some other reason. The ‘Mathura Rape Case’ is one such incident that most
are familiar with. Custodial violence could, sometimes, lead to the death of
its victim who is in a terribly disadvantaged and vulnerable condition. All
W.P. (C) No. 406/2013 etc. Page 2 of 43
these forms of custodial violence make it abhorrent and invite disparagement
from all sections of civilized society.
2. Like most societies, we are not strangers to custodial violence and
unnatural deaths but our vibrant democracy permits us to debate and discuss
these issues with rational arguments. However, right sounding noises critical
of custodial violence (in any form) cannot achieve any useful purpose unless
persons in authority hear the voices of the victims or the silence of the dead
and act on them by taking remedial steps. There must be a greater degree of
sensitivity among those in authority with regard to persons in custody and it
has been the endeavour of the constitutional courts in our country, over
several decades, to consistently flag this issue. The results have been
somewhat mixed but the effort will continue as long as Article 21 remains in
our Constitution. This message goes out loud and clear, as also the message
that the dignity of the individual is not a plaything for those in authority.
3. Chief Justice R. C. Lahoti highlighted one aspect of custodial deaths,
namely, unnatural deaths in prisons. This was through a letter addressed to
this Court which has been treated as a public interest litigation. We have
been very ably assisted in understanding the concern raised and in
appreciating different perspectives on the issue by the learned Amicus
Curiae Mr. Gaurav Agrawal who has spent considerable time and effort in
W.P. (C) No. 406/2013 etc. Page 3 of 43
placing all relevant material before us and for this he deserves our gratitude.
4. In our judgment and order of 5th February, 2016
1 we had drawn
attention to four issues regarding prisons raised in the letter addressed by
former Chief Justice Lahoti. The four issues are: (i) Overcrowding in
prisons; (ii) Unnatural death of prisoners; (iii) Gross inadequacy of staff, and
(iv) Available staff being untrained or inadequately trained
5. In the order of 5th February, 2016 we had dealt with the issue of
overcrowding in prisons and had issued certain directions. In the present
decision, we consider unnatural deaths in prisons. On this issue of unnatural
deaths in prisons, the only reliable information available is from the National
Crime Records Bureau or the NCRB. The website of the NCRB
2
indicates
that deaths in judicial custody, both natural and unnatural, are as under:
Year Natural deaths Unnatural deaths
2012 1345 126
2013 1482 115
2014 1507 195
2015 1469 115
6. The distinction made by the NCRB between natural and unnatural
deaths is unclear. For example, if a prisoner dies due to a lack of proper
medical attention or timely medical attention, would that be classified as a
1
Re- Inhuman Conditions in 1382 Prisons, (2016) 3 SCC 700
2
ncrb.gov.in
W.P. (C) No. 406/2013 etc. Page 4 of 43
natural death or an unnatural death? This needs to be explained as submitted
by the learned Amicus.
7. Be that as it may, the break-up of unnatural deaths given by the
NCRB on its website is as under:
Year Suicide Murder
by
inmates
Death
due to
firing
Assault by
outside
elements
Negligence
by jail
staff
Others
2012 87 4 10 4 0 22
2013 70 8 1 12 0 23
2014 94 12 2 4 1 82
2015 77 11 0 7 0 19
8. Again, there is a lack of clarity in the classification of unnatural
deaths in the category of ‘others’. What does this category encompass? We
have not been provided any information in this regard by the Union of India
and it is submitted by the learned Amicus, that the NCRB should be directed
to explain the difference not only between a natural death and an unnatural
death but also to clarify the sub-categorization of ‘others’ unnatural deaths.
9. On the issue of defining natural and unnatural deaths, the learned
Amicus drew our attention to the Guidelines on Investigating Deaths in
Custody issued by the International Committee of the Red Cross (ICRC).
According to the ICRC, ‘death’ is the irreversible cessation of all vital
functions, including brain activity. Death is ‘natural’ when it is caused
W.P. (C) No. 406/2013 etc. Page 5 of 43
solely by disease and/or the aging process. It is ‘unnatural’ when its causes
are external, such as intentional injury (homicide, suicide), negligence or
unintentional injury (death by accident). We have perused the guidelines
provided by the ICRC and are of the view that these guidelines deserve
consideration and circulation by the Central Government and all the State
Governments.
NHRC and suicide prevention
10. It has been pointed out by the learned Amicus that a disproportionately
large number of unnatural deaths are attributable to suicides. In this regard,
it has been brought to our notice by the learned Amicus that in relation to
suicides in prisons, the National Human Rights Commission or the NHRC
has published a monograph sometime in December 2014 entitled “Suicide in
Prison - prevention strategy and implication from human rights and legal
points of view”. This monograph records that during the period 2007–2011,
deaths in prisons on account of suicide formed 71% of the total number of
unnatural deaths. It was also pointed out that the average suicide rate among
the general public for this period is 11 (per 100,000) whereas the average
suicide rate in prison is 16.9 (per 100,000). In other words, the average
suicide rate in prisons is over 50% more than in normal conditions. The
monograph refers to certain communications issued by the NHRC from time
W.P. (C) No. 406/2013 etc. Page 6 of 43
to time on the aspect of custodial deaths, but we will refer to them in
somewhat greater detail a little later.
11. The study conducted by the NHRC as reflected in the monograph
suggests that there are two primary causes for all jail suicides - the first is the
environment in the jail, which is apparently ‘conducive’ to suicidal
behaviour, and the second is the crisis situation faced by an inmate.
12. Detailing the characteristics of a prison environment that make
suicides in prisons more likely, the NHRC monograph mentions the
following:
1. Authoritarian environment.
2. No apparent control over the future.
3. Isolation from family, friends and community.
4. The shame of incarceration.
5. Dehumanizing aspects of incarceration.
6. Fears.
7. Staff insensitivity to the arrest and incarceration
phenomenon
8. Hostility and bullying by other inmates.
9. Lack of adequate medical and psychological counseling and
treatment facility
10.Delay in deciding the parole.
Similarly, the characteristics of a crisis situation are mentioned and they are
as follows:
W.P. (C) No. 406/2013 etc. Page 7 of 43
1. Recent excessive drinking and/or use of drugs.
2. Recent loss of stabilizing resources.
3. Severe guilt or shame over the offence.
4. Same-sex rape.
5. Current mental illness.
6. Poor health or terminal illness.
7. Approaching an emotional breaking point.
13. The NHRC has suggested various protective factors or measures that
could be employed to reduce the number of suicides in prisons. Among them
are visits and contact that the prisoner could have with the family,
constructive occupation in prison, instilling hopes and plans for the future
and support from staff.
14. The NHRC also conducted a National Seminar on Prison Reforms on
15th April, 2011. The recommendations made in the National Seminar have
also been indicated in the monograph as also some actionable points for
suicide prevention programmes. In its conclusion, the NHRC has recorded
that the success of efforts to prevent suicides in prisons depends on the
ability and willingness to identify the vulnerability of each prisoner, provide
necessary supervision and support and offer alternative ways of coping and
reducing emotional distress. It is noted that any proposed piecemeal solution
to the problem of suicides in prisons will not result in any long-term
W.P. (C) No. 406/2013 etc. Page 8 of 43
improvement.
15. What we have mentioned above is only a brief indication of the extent
to which the NHRC has put in an effort to bring about a composite
monograph and a detailed study on suicides in prisons. In our view, this
would certainly be useful to prison officials and staff in reducing, if not
eliminating suicides in prisons. The monograph prepared by the NHRC, in
our opinion, deserves to be freely distributed amongst the staff and prisons
all over the country since it is a document of immense utility insofar as
suicide prevention in prisons is concerned.
Relevant communications issued by the NHRC
16. Apart from the above efforts of the NHRC, our attention has been
drawn by the learned Amicus to various communications sent by the NHRC
to the Chief Secretaries of all the States and the Union Territories. The first
such communication is dated 14th December, 1993 on the subject of
reporting of custodial deaths/rapes within 24 hours. A request was made in
the communication that District Magistrates and Superintendents of Police
may be given suitable instructions to report to the Secretary General of the
NHRC any custodial death or custodial rape within 24 hours of occurrence
or of these officers coming to know of such an incident.
17. Another communication dated 21st June, 1995 was sent by the NHRC
W.P. (C) No. 406/2013 etc. Page 9 of 43
to all the Chief Secretaries of States and the Union Territories clarifying that
not only deaths in police custody but also deaths in judicial custody ought to
be reported. This clarified the communication of 14th December, 1993 which
was perhaps misunderstood by the Chief Secretaries and their subordinates
to mean that the intention of the NHRC was to obtain information only with
regard to deaths in police custody and not deaths in judicial custody.
18. On 10th August, 1995 the NHRC addressed a communication to the
Chief Ministers of all the States on the necessity of video-recording of postmortem
examinations in cases of custodial deaths. The reason behind this
communication was that a post-mortem report is a very valuable record and
has considerable importance in assisting in drawing conclusions on the cause
of death of a person, particularly in a police lock-up or in a jail. The NHRC
noted that though the process of video-recording of the post-mortem
examination would involve extra cost, human life is more valuable than the
cost of video-recording and in any case, occasions necessitating videorecording
should ideally be very limited.
19. The NHRC addressed a communication on 27th March, 1997 to the
Chief Ministers/Administrators of all the States/Union Territories requesting
adoption of the Model Autopsy Form and the additional procedure for
inquest. The Model Autopsy Form was prepared after ascertaining the views
W.P. (C) No. 406/2013 etc. Page 10 of 43
of the States and discussing with experts in the field the necessity of having
such a document. The Form was modeled on the United Nations Model
Autopsy Protocol but was not adopted as it is. Some incidental
improvements were made, particularly with regard to the conduct of
inquests. The communication enclosed therewith the Model Autopsy Form
and the additional procedure for inquest as annexures to the said letter.
20. The NHRC sent a communication dated 3rd January, 2001 to all the
Home Secretaries regarding the revised instructions to be followed while
sending post-mortem reports in cases of custodial death. In order to
streamline the procedure, the NHRC issued certain instructions and among
them were the following:
1. The post-mortem report along with the videograph and
the magisterial enquiry report must be sent to the NHRC
within two months of the incident.
2. The post-mortem report should be sent in the proforma
attached to the letter dated 27
th March, 1997.
3. The magisterial enquiry into a custodial death should be
completed as soon as possible but within a period of two
months.
W.P. (C) No. 406/2013 etc. Page 11 of 43
4. In some cases of custodial death, the viscera are sent for
examination after the post-mortem examination and a report is
called for. Since this may take some time, it was instructed that
the post-mortem report and other documents should be sent to
the NHRC without waiting for the viscera report, which could
be sent later on.
21. On 21st December, 2001 the NHRC addressed a communication to all
Chief Ministers and Administrators of all the States and Union Territories
giving modified instructions regarding videography of post-mortem
examinations in respect of deaths in judicial custody. It was clarified that the
requirement of videographing of post-mortem examinations in respect of
deaths in jail would be applicable only where the preliminary inquest by the
Magistrate had raised suspicion of foul play or where any complaint alleging
foul play was made to the concerned authorities or there was any other
reason to suspect foul play.
22. It is clear from the above that the role of the NHRC is extremely
important whenever there is an unnatural death in a prison. Although the
NHRC has issued detailed instructions from time to time, it does appear
however that these instructions are not being taken seriously but are being
followed more in the breach.
W.P. (C) No. 406/2013 etc. Page 12 of 43
Nelson Mandela Rules
23. The learned Amicus submitted that the General Assembly of the
United Nations adopted the Standard Minimum Rules for the Treatment of
Prisoners (the Nelson Mandela Rules) adopted on 17th December, 2015.
These Rules provide useful internationally accepted guidelines for
implementation by prison administrations across the country. He drew our
particular attention to Rules 58 to 63 which deal with prisoner contact with
the outside world. It was submitted that merely because a person is in prison,
it does not mean that he or she should be cut off from the outside world. In
fact, the prisoner should be allowed to communicate with his family and
friends at regular intervals and should also be permitted to communicate and
consult with a legal adviser of his or her choice. This by itself could have a
soothing effect on the prisoner. He submitted that prisoners should be
informed of important items of news through newspapers, periodicals or
special institutional publications so that contact with the outside world is
maintained. This, according to the learned Amicus, would substantially
reduce the feeling of isolation that a prisoner has and would have an impact
on his or her mental stability thereby reducing the possibility of any harmful
activity by the prisoner.
24. On the specific issue of custodial deaths, the learned Amicus drew our
W.P. (C) No. 406/2013 etc. Page 13 of 43
attention to Rule 71 of the Nelson Mandela Rules to submit that any
custodial death, disappearance or serious injury shall be reported without
delay to a judicial or other competent authority that is independent of the
prison administration. The learned Amicus also pointed out that the Mandela
Rules require the prison administration to treat the body of a deceased
prisoner with respect and dignity.
Model Prison Manual
25. The learned Attorney General responded to the submissions of the
Amicus by making a preliminary submission before adverting to the issue of
unnatural deaths in prisons. He submitted that the subject of prisons was a
State subject in Entry 4 of List II of the Seventh Schedule to the
Constitution and as such the Central Government could not legislate on the
subject or pass any binding directions but could only issue advisories to the
State Governments. Really therefore, the burden of improving prison
conditions was on the State Governments but the Central Government would
be more than willing to render assistance to this Court and to the States in
improving prison conditions, within constitutional limits. With this caveat,
the learned Attorney General adverted primarily to the Model Prison Manual
2016 issued by the Government of India through the Ministry of Home
Affairs.
W.P. (C) No. 406/2013 etc. Page 14 of 43
26. It was submitted that Chapter VII of the Manual and particularly
paragraph 7.95.1 thereof, provides that in the event of a custodial death, the
procedure laid down in the Code of Criminal Procedure, 1973 and the
guidelines issued by the NHRC should be followed. On this basis, it was
submitted that the guidelines issued by the NHRC are treated more or less as
binding and are scrupulously followed.
27. Reference was also made to Chapter XIII of the Manual and the
section therein on ‘Accidents and Suicides’. Particular reference was made
to paragraph 13.38 which is to the effect that when a sudden or violent death
or suicide takes place in a prison, immediate notice shall be sent to the
concerned Superintendent and the Medical Officer. Paragraph 13.41 relates
to custody of articles that could be used to commit suicide such as knives
and tools used in worksheds and barber’s or tailor’s equipment as well as
ropes for wells. It is provided that care should be taken that no such object is
left about in the prison that may be used for committing suicide. In fact in
paragraph 13.42 it is stated that prisoners with apparently suicidal tendencies
should be carefully watched and not left alone in a cell. Such prisoners
should also be referred to counselors and psychiatrists and should be
supervised closely. Chapter XIII of the Manual also provides that reasonable
caution should be taken to guard against accidents when convicts are
W.P. (C) No. 406/2013 etc. Page 15 of 43
employed on dangerous work such as blasting, excavation or other works of
a dangerous character. It is also provided in paragraph 13.44 that poisonous
drugs, surgical instruments and other similar items should not be left within
the reach of prisoners.
28. The said Chapter XIII of the Manual contains a section devoted to the
issue of prevention of fires and yet another section is devoted to epidemics
and precautions to be taken when an epidemic occurs such as cholera,
enteric fevers, gastroenteritis etc. It is provided that infected prisoners
should be segregated and kept under medical observation and appropriately
treated. Paragraph 13.62 provides that whenever an epidemic occurs, the
Medical Officer shall at once arrange for vaccination or inoculation as the
case may be of all prisoners, prison personnel and members of their families.
Paragraph 13.63 provides that overcrowding must be strictly avoided both in
the hospital as well as in every cell and ward. This Chapter also contains a
section devoted to hunger strikes and the procedure to be followed in cases
of hunger strikes and forcible feeding of prisoners on a hunger strike.
29. The learned Attorney General brought to our notice that NGOs also
have a role to play in rehabilitation programmes of prisoners as mentioned in
Chapter XXII of the Manual. He also submitted that legal aid is provided to
prisoners and in fact Chapter XVI of the Manual is devoted entirely to legal
W.P. (C) No. 406/2013 etc. Page 16 of 43
aid and the right of a prisoner to free legal representation or legal aid. There
is also a reference in the Manual to the Under Trial Review Committee
adverted to in our order dated 5
th February, 2016.
30. The learned Attorney General submitted that there exists a grievance
redressal system as mentioned in Chapter XXI of the Manual. Consequently,
if any prisoner has any grievance, he or she can bring it to the notice of the
authorities through a complaint box installed in the prison at an easily
accessible place. In this context, he drew our attention to the ‘Perspective’
section of the Manual containing a section on the rights and duties of
prisoners which includes the right to human dignity, the right to basic
minimum needs, the right to communication, the right to access to law, the
right against arbitrary prison punishment, the right to meaningful and gainful
employment and finally the right to be released on the due date. It is not at
all clear whether this information is effectively passed on to the prisoners.
Our attention was also drawn to a handbook for prisoners captioned
“Prisoners Rights and Obligations” prepared by the Bureau of Police
Research and Development. While we have no comment to make on the
contents of the handbook, it is again not clear whether it is made available to
all the prisoners and even if it is made available, whether it is in a local
language that the prisoner understands or whether the contents of the
W.P. (C) No. 406/2013 etc. Page 17 of 43
handbook are explained to the prisoner in the event the prisoner is found to
be illiterate. In the absence of a prisoner having any knowledge about his or
her rights, a grievance redressal mechanism is quite meaningless.
Compendium of Advisories issued by the Government
31. The learned Attorney General then placed before us a Compendium of
Advisories on Prison Administration 2016 issued by the Government of
India. This was in the context of his submission that since ‘prisons’ is a State
subject as per Entry 4 of List II of the Seventh Schedule of the Constitution,
all that the Central Government can do is to issue advisories to the State
Governments on the subject of prisons. The learned Attorney General
submitted that advisories had been issued from time to time to the State
Governments on a variety of issues, including on the issue of prison
administration as well as stress relieving programmes such as yoga and
meditation courses, Art of Living courses, Pranic courses and Vipassana.
32. All that we can say in this regard is that while the Central Government
may have noble intentions and is perhaps taking steps to improve prison
administration and to bring about reforms in prisons, the fact remains that
conditions in prisons leave a lot to be desired and there are quite a few
unnatural deaths in prisons. Suggestions and recommendations made by the
Central Government do look good on paper but they do not seem to have
W.P. (C) No. 406/2013 etc. Page 18 of 43
any remedial effect. Perhaps it is time that the Ministry of Home Affairs
takes a more proactive interest in prisons and prison reforms by having
sensitization programmes for those at the helm of affairs in prisons so that
there is a positive impact on the ground. After all, even if it is assumed that
the Central Government has certain constitutional limitations with regard to
prison management, surely, it cannot be said that the Central Government
need not share its expertise or give any guidance to the State Governments.
33. Adverting to the Nelson Mandela Rules, the learned Attorney General
also expressed the view that State Governments have several development
priorities and while they will certainly look after the interests of prisoners,
there are other issues that might require greater attention and greater
financial commitment. While this may be so, we are clearly of the view that
Article 21 of the Constitution cannot be put on the back burner and as
mentioned in the Mandela Rules even prisoners are entitled to live a life of
dignity. Therefore, no State Government can shirk its duties and
responsibilities for providing better facilities to prisoners. If a State
Government is unable to do so, it should be far more circumspect in
arresting and detaining persons, particularly under-trial prisoners who
constitute the vast majority of those in judicial custody. The State
Governments and the prosecution do not have to oppose every bail
W.P. (C) No. 406/2013 etc. Page 19 of 43
application nor do they have to ask for the remand of every suspect pending
investigation. If the fundamental right to life and liberty postulated by
Article 21 of the Constitution is to be given its true meaning, the Central
Government and the State Governments must accept reality and not proceed
on the basis that prisoners can be treated as chattel.
Challenges indicated by the Comptroller and Auditor General
34. The National Forum for Prison Reforms, an intervener in the present
petition, submitted that there should be a ‘performance audit’ by the
Comptroller and Auditor General in respect of prisons so that it is known
whether all prisons are in fact adhering to the provisions of the Model Prison
Manual or at least the rules and regulations framed by the State Government
for the management of prisons.
35. Our attention was drawn to the report of the Comptroller and Auditor
General of India (CAG) in respect of the Government of NCT of Delhi for
the year ended 31st March, 2014 in relation to social, general and economic
sectors. The submission made by learned counsel appearing for the National
Forum was that as a result of what could be termed as a performance audit,
the CAG provided some very useful suggestions. In the particular audit
referred to, it was pointed out that the hospital in Tihar Jail was not equipped
W.P. (C) No. 406/2013 etc. Page 20 of 43
to face any emergency situation as there was a shortage of doctors and other
medical staff ranging from 18% to 62%. A reference was also made in the
report to the problem of substance abuse in prisons and the shortcomings
noted in the Drug De-addiction Centre in Tihar Jail. One of the shortcomings
was the non-availability of essential medicines for a period ranging from one
to thirty-four months. If these are the conditions in what is perhaps the ‘best
prison’ in the country, we shudder to think what the position would be in
other prisons across the country.
36. The learned counsel also made a reference to Section 176(1A) of the
Code of Criminal Procedure, 1973 which mandates that where there is a
death or disappearance from the custody of the police or any other custody
authorized by a Magistrate or a Court, in addition to the inquiry or
investigation held by the police, an inquiry shall be held by the Judicial
Magistrate or the Metropolitan Magistrate, as the case may be, within whose
local jurisdiction the offence has been committed.3
It was submitted that in
3
176. Inquiry by Magistrate into cause of death.— (1) 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.
(1A) Where,—
(a) any person dies or disappears, or
(b) rape is alleged to have been committed on any woman,
while such person or woman is in the custody of the police or in any other custody authorised by the
Magistrate or the Court, under this Code in addition to the inquiry or investigation held by the police, an inquiry
W.P. (C) No. 406/2013 etc. Page 21 of 43
view of the provisions of law, it was obligatory on the part of the State to
ensure that an inquiry is conducted in respect of every death that takes place
in custody.
37. The need for an inquiry into every death in custody was also
emphasized by the learned Amicus, who submitted that there was
discrepancy of data between deaths reported in prisons as per the NCRB and
deaths reported in prisons as derived from the data available with the NHRC.
It was submitted by the learned Amicus that this discrepancy needs to be
reconciled and adequate reasons must be provided for every death that takes
place in a prison.
Suggestions of the learned Amicus
38. Taking all these submissions into consideration, the learned Amicus
suggested that we issue, amongst others, the following directions:
shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local
jurisdiction the offence has been committed.
(2) The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in
any manner hereinafter prescribed according to the circumstances of the case.
(3) Whenever such Magistrate considers it expedient to make an examination of the dead body of any person
who has been already interred, in order to discover the cause of his death, the Magistrate may cause the body to
be disinterred and examined.
(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the
relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the
inquiry.
(5) The Judicial Magistrate or the Metropolitan Magistrate or Executive Magistrate or police officer holding an
inquiry or investigation, as the case may be, under sub-section (1A) shall, within twenty-four hours of the death of
a person, forward the body with a view to its being examined to the nearest Civil Surgeon or other qualified
medical man appointed in this behalf by the State Government, unless it is not possible to do so for reasons to be
recorded in writing.
Explanation.—In this section, the expression “relative” means parents, children, brothers, sisters and spouse.
W.P. (C) No. 406/2013 etc. Page 22 of 43
1. The treatment of prisoners should be more humane and the
dehumanizing effect of imprisonment should be reduced.
2. The involvement of NGOs should be encouraged especially with
first-time offenders.
3. Counseling should be encouraged and the State Governments should
engage the services of psychologists or social counselors who could
visit the prisons on a daily basis to counsel prisoners, particularly
first-time offenders. The learned Amicus acknowledged the
contribution made by the Inspector General (Prisons) Karnataka for
this suggestion.
4. A prisoner should be enabled to communicate with family members
and to the extent possible, the meeting time available to a prisoner
should be extended. If possible, a prisoner may also be allowed to
speak to his family on telephone.
5. A prisoner should have access to legal services including legal aid.
In this context the learned Amicus referred to a report prepared under
the auspices of the Bihar State Legal Services Authority by Ms.
Smita Chakraburtty on her experiences in prisons in Bihar which
suggests that many inmates do not voluntarily approach the legal aid
clinics and so they must be encouraged to do so.
6. A status report prepared by the Commonwealth Human Rights
Initiative on the implementation of the legal aid schemes in
Rajasthan particularly the NALSA (Free and Competent Legal
Services) Regulations, 2010 and the NALSA (Legal Aid Clinics)
Regulations, 2011 suggests that the basic mechanism to ensure legal
representation and advice is absent in a majority of sub-jails.
7. There should be an independent mechanism for entertaining the
grievances of inmates without putting the inmates into trouble with
the prison staff or other inmates. A reference in this regard was made
to Rule 56 and Rule 57 of the Mandela Rules.
8. Over-crowding in jails should be reduced and that might help in
reducing the possibility of suicides by the prisoners. It is also
suggested by the learned Amicus that the concept of open jails (of
which there are 54 as mentioned in the statistics provided by the
NCRB) should be encouraged.
9. The learned Amicus laid stress on providing basic medical facilities
to the inmates which could even be in the form of a primary health
centre. In this regard the learned Amicus referred to the discussions
that he had with the Director-General of Police (Prisons) Karnataka,
the Welfare Officer in Tihar, the former Inspector General of Police
W.P. (C) No. 406/2013 etc. Page 23 of 43
(Prisons) West Bengal and the report of Ms. Smita Chakraburtty
which suggests that medical facilities in most prisons do not meet
the minimum requirements of medical care.
10.The learned Amicus laid great stress on the constitution of a Board of
Visitors comprising official and non-official visitors. The learned
Amicus drew attention to an advisory issued on 18th February, 2011
by the Central Government for the appointment and working of nonofficial
visitors for prisons.
11. The learned Amicus endorsed the suggestion of conducting
performance audits for prisons across the country.
39. According to the learned Amicus, if these (and other) directions are
given to the State Governments, prison reforms will become far more
meaningful and the level of unnatural deaths will decrease.
Compensation for unnatural deaths
40. The issue of compensation for unnatural deaths in custody is no
longer res integra.
41. One of the earliest cases where this Court granted compensation in a
petition under Article 32 of the Constitution is Rudul Sah v. State of Bihar.
4
That case was not one of a custodial death but was a case of illegal detention
even after acquittal in a full dress trial. This Court held that the petitioner
was entitled to compensation for the illegal detention and it rejected the stale
and sterile objection of the State Government that the petitioner may if so
advised file a suit to recover damages. This Court took the view that the
4
(1983) 4 SCC 141
W.P. (C) No. 406/2013 etc. Page 24 of 43
refusal to pass an order of compensation would be doing mere lip service to
the fundamental right of liberty of the petitioner under Article 21 of the
Constitution which the State Government had so grossly violated. This
Court observed that “if civilization is not to perish in this country as it has
perished in some others too well known to suffer mention, it is necessary to
educate ourselves into accepting that, respect for the rights of individuals is
the true bastion of democracy.”
42. A little later, this Court dealt with Sebastian M. Hongray v. Union of
India5 which concerned itself with the disappearance of some persons while
in custody. This Court was convinced that enabling the respondents to trace
or locate the two missing persons at such a late stage would be to shut its
eyes to reality and to pursue a mirage. It appeared to this Court that the two
missing persons had actually met a tragic end in an encounter amounting to
an unnatural death. This Court ordered the registration of an offence and an
investigation and also directed payment of compensation to the next of kin.
43. Nilabati Behera v. State of Orissa6 was a case where a person who
was taken into police custody for investigation of a theft, was found dead
near a railway track the next day. On the basis of injuries and handcuffs on
his wrists, this Court concluded that it was a custodial death and
5
(1984) 3 SCC 82
6
(1993) 2 SCC 746
W.P. (C) No. 406/2013 etc. Page 25 of 43
compensation was awarded under Article 32 of the Constitution. It was held
that a public law remedy was certainly available to claim compensation for
the contravention of human rights and fundamental rights which are
protected as a guarantee by our Constitution. A reference was also made to
Article 9(5) of the International Covenant on Civil and Political Rights, 1966
which reads: “Anyone who has been the victim of unlawful arrest or
detention shall have an enforceable right to compensation.”
44. An unnatural death in judicial custody where one person was killed by
a co-prisoner was the subject matter of discussion in Kewal Pati v. State of
Bihar.
7
It was held that as a consequence of imprisonment, a prisoner does
not cease to have constitutional rights, except to the extent he or she has
been deprived of them in accordance with law. Therefore, even a prisoner is
entitled to protection and if he is killed while in prison, it results in a
deprivation of his life contrary to the law, for which the next of kin are
entitled to compensation.
45. In D.K.Basu v. State of West Bengal8
this Court recognized that at the
time of ratification of the International Covenant on Civil and Political
Rights, 1966 in 1979, the Government of India made a specific reservation
to the effect that the Indian legal system does not recognize a right to
7
(1995) 3 SCC 600
8
(1997) 1 SCC 416
W.P. (C) No. 406/2013 etc. Page 26 of 43
compensation for victims of unlawful arrest or detention and only became a
party to the covenant, subject to this reservation. It was noted however, that
the reservation has lost its relevance in view of the law laid down by this
Court in several cases wherein compensation has been awarded for the
infringement of a fundamental right of a citizen. It was also noted that while
there is no express provision in the Constitution for grant of compensation,
this right has been judicially evolved in cases of established unconstitutional
deprivation of personal liberty or life. This Court summed up the law in the
following words:-
“Thus, to sum up, it is now a well-accepted proposition in most of the
jurisdictions, that monetary or pecuniary compensation is an
appropriate and indeed an effective and sometimes perhaps the only
suitable remedy for redressal of the established infringement of the
fundamental right to life of a citizen by the public servants and the
State is vicariously liable for their acts. The claim of the citizen is
based on the principle of strict liability to which the defence of
sovereign immunity is not available and the citizen must receive the
amount of compensation from the State, which shall have the right to
be indemnified by the wrongdoer. In the assessment of compensation,
the emphasis has to be on the compensatory and not on punitive
element. The objective is to apply balm to the wounds and not to
punish the transgressor or the offender, as awarding appropriate
punishment for the offence (irrespective of compensation) must be
left to the criminal courts in which the offender is prosecuted, which
the State, in law, is duty bound to do. The award of compensation in
the public law jurisdiction is also without prejudice to any other
action like civil suit for damages which is lawfully available to the
victim or the heirs of the deceased victim with respect to the same
matter for the tortious act committed by the functionaries of the State.
The quantum of compensation will, of course, depend upon the
peculiar facts of each case and no strait-jacket formula can be
evolved in that behalf. The relief to redress the wrong for the
W.P. (C) No. 406/2013 etc. Page 27 of 43
established invasion of the fundamental rights of the citizen, under
the public law jurisdiction is, thus, in addition to the traditional
remedies and not in derogation of them. The amount of compensation
as awarded by the Court and paid by the State to redress the wrong
done, may in a given case, be adjusted against any amount which
may be awarded to the claimant by way of damages in a civil suit.”
46. Ajab Singh v. State of U.P.9
, Murti Devi v. State of Delhi10 and more
recently Rohtash Kumar v. State of Haryana11
illustrate that custodial
death is a clear violation of the prisoner’s rights under Article 21 of the
Constitution and relief could be moulded by granting compensation to the
next of kin of the deceased.
47. In addition to the above decisions and several others rendered by this
Court, almost every High Court in the country has, at one time or another,
also granted compensation for the unnatural death of a person in custody,
whether an undertrial or a convict. A few such illustrations may be noted:
a. Nina Rajan Pillai & Ors. v. Union of India.
12
The husband of the petitioner died in judicial custody due to inadequate
medical treatment given by the jail authorities. The Lt. Governor of
Delhi even appointed a Commission of Inquiry headed by Justice Leila
Seth, a former Chief Justice of the Himachal Pradesh High Court to
9
(2000) 3 SCC 521
10 (1998) 9 SCC 604
11
(2013) 14 SCC 290
12 180 (2011) DLT 104
W.P. (C) No. 406/2013 etc. Page 28 of 43
inquire into the circumstances that led to the death of the petitioner’s
husband. The Delhi High Court awarded compensation for the unnatural
death in custody.
b. Kewalbai v. The State of Maharashtra.
13
The victim was shot dead by a constable while in custody. The Bombay
High Court awarded compensation for the unnatural death in custody.
c. Bheduki Buragohain v. State of Assam.
14
The undertrial victim died in judicial custody under suspicious
circumstances. The post mortem report indicated that the cause of death
was asphyxia as a result of strangulation and ante mortem injuries by
blunt weapons. The Gauhati High Court awarded compensation for the
unnatural death in custody.
d. Madhuben Adesara v. State of Gujarat.
15
The deceased was brutally tortured by police officers while in custody
and succumbed to his injuries during treatment. The post-mortem report
revealed that the victim had multiple injury marks which were ante
mortem in nature. The Gujarat High Court awarded compensation for the
unnatural death in custody.
13 2013 (3) BomCR (Cri) 601
14 2013 (2) GLT 370
15 R/SCR.A./536/2010 (unreported)
W.P. (C) No. 406/2013 etc. Page 29 of 43
e. Banalata Dash v. State of Orissa & Ors.
16
The deceased was found hanging from a tree with his hands behind his
back, tied at the wrist with a towel. Since the victim was in the custody
of the prison authorities, compensation was awarded by the Orissa High
Court for the unnatural death in custody.
f. Amandeep v. State of Punjab & Anr.
17
The deceased was assaulted by a co-prisoner and succumbed to injuries
in the hospital. Due to the unnatural death in custody, the Punjab &
Haryana High Court awarded compensation to the next of kin of the
deceased.
g. Tmt. Rohini Lingam v. State.
18
The victim was murdered by his enemies while in prison. Due to the
unnatural death in custody the Madras High Court awarded compensation
to his next of kin.
h. Sabu & Anr. v. State of Kerala & Ors.
19
The victim was tortured in a police station and succumbed to his injuries.
In view of the unnatural death in custody the Kerala High Court awarded
16 AIR 2012 Ori 97
17 (2013) 169 PLR 191
18 (2008) 5 MLJ 822
19 CRP No. 1170 /2015
W.P. (C) No. 406/2013 etc. Page 30 of 43
interim compensation to the next of kin of the deceased until the criminal
trial against the concerned police officers was concluded.
i. Ravindra Nath Awasthi v. State of U.P.20
The victim was an advocate held guilty of contempt of court. While he
was undergoing his sentence, he was severely beaten up by the prison
authorities and succumbed to his injuries in hospital. Due to the
unnatural death in custody, the Allahabad High Court directed payment
of compensation to the next of kin of the deceased.
j. Mst. Madina v. State of Rajasthan & Ors.
21
The victim died in police custody on account of the use of third degree
methods. Due to the unnatural death in custody, compensation was
awarded by the Rajasthan High Court to the next of kin of the deceased.
k. Dukhuram v. State of Chhattisgarh & Ors.
22
The deceased was taken from the police station in order to recover stolen
articles alleged to have been hidden by him at a secret place. He was
brought to a pond and compelled to dive into the pond. At that time he
was handcuffed and in chains. Subsequently, the dead body of the
deceased was found floating in the pond. In view of the unnatural death
20 2009 2 AWC 2090 (All)
21 2000 Cri LJ 4484
22 2011 (3) MPHT 81
W.P. (C) No. 406/2013 etc. Page 31 of 43
while the deceased was in the custody of police officers, the Chhattisgarh
High Court awarded compensation.
l. Santosh Kumari v. State of H.P. & Ors.
23
The victim died while he was in police custody and it was found that he
had injuries on his head, shoulders, eyes, knees and private parts. He
died in hospital as he was not given medical assistance in time. In view
of the unnatural death while in custody, the Himachal Pradesh High
Court awarded compensation to the next of kin of the deceased.
m. State of Jammu & Kashmir v. Sajad Ahmad Dar.
24
The victim died due to cardio pulmonary arrest while detained in the
District Jail under the Jammu and Kashmir Public Safety Act, 1978. It
was held that death was due to carelessness, non-seriousness and
negligence in not extending medical treatment. In view of the unnatural
death in custody the Jammu & Kashmir High Court awarded the
compensation to the next of kin of the deceased.
n. Mrs. Meena Singh v. State of Bihar.
25
The victim was attacked and killed by co-prisoners by the use of chhura,
iron rods and belts etc. The next of kin of the deceased were awarded
23 2008 ACJ 1684
24 LPAHC No. 36/2015
25 2001 Cri LJ 3573
W.P. (C) No. 406/2013 etc. Page 32 of 43
compensation by the Patna High Court for the unnatural death of the
victim in custody.
o. Lawyers for Justice (Non-Government Organization) v. State of
M.P.26
The victim was facing trial for offences under Section 302 of the Indian
Penal Code. While he was undergoing treatment in a hospital he was
shot dead by an unknown person. In view of the unnatural death while in
custody the Madhya Pradesh High Court awarded compensation to the
next of kin of the victim.
48. There are several such cases – documented and undocumented - all
over the country but in spite of repeated decisions delivered by this Court
and perhaps every High Court there seems to be no let up in custodial
deaths. This is not a sad but a tragic state of affairs indicating the apparent
disdain of the State to the life and liberty of individuals, particularly those in
custody. The time to remedy the situation is long past and yet, there seems to
be no will and therefore no solution in sight.
The need to reform
49. The factual material referred to above is an indication that steps are
being taken in some form or the other by the Central Government and
26 AIR 2015 MP 212
W.P. (C) No. 406/2013 etc. Page 33 of 43
hopefully by the State Governments to ameliorate the conditions of prisoners
across the country and thereby reduce the number of unnatural deaths.
These steps give an impression that there is nothing to be seriously worried
about. However, the statistics provided by the NCRB reflect the ground
reality and dispel that impression. It is time for the State to go beyond
projections through circulars and advisories and actually come to grips with
reality as it exists in a very large number of prisons. What is practised in our
prisons is the theory of retribution and deterrence and the ground situation
emphasizes this, while our criminal justice system believes in reformation
and rehabilitation and that is why handcuffing and solitary confinement are
prohibited. It is this ‘rejection’ of the philosophy of our criminal justice
system that leads to violence in prisons and eventually unnatural deaths.
50. This Court has time and again emphasized the importance of Article
21 of the Constitution and the right to a life of dignity. There must be a
genuine desire to ensure that the guarantee to a life of dignity is provided to
the extent possible even in prisons, otherwise Article 21 of the Constitution
will remain a dead letter. It must be appreciated by the State that the
common person does not violate the law for no reason at all. It is
circumstances that lead to a situation where there is a violation of law. On
many occasions, such a violation may be of a trivial nature or may be a one-
W.P. (C) No. 406/2013 etc. Page 34 of 43
time aberration and, in such circumstances, the offender has to be treated
with some degree of humanity. At least in such cases, retribution and
deterrence cannot be an answer to the offence and the offender. Unless the
State changes this mindset and takes steps to give meaning to life and liberty
of every prisoner, prison reforms can never be effective or long lasting.
51. The issue of unnatural deaths in prisons was debated and discussed
before us in great detail by the learned Amicus, the learned Attorney General
and learned counsel for the National Forum. All of them have painstingly
taken us through a plethora of documents but, as mentioned above, the
existence of volumes of documents relating to unnatural deaths in prisons
does not necessarily resolve the problem that we are confronted with and
which was brought to our notice by Chief Justice Lahoti.
52. However, we do hope that the highlighting of this issue will bring
about awareness in the mind and heart of the powers that be and
consequential reforms in prisons which may ultimately reduce, if not
eliminate, the number of unnatural deaths in prisons and also improve the
conditions of prisoners all over the country.
The need to compensate
53. The case law indicates that over the last several decades this Court
and almost every High Court has relied on Article 21 of the Constitution and
W.P. (C) No. 406/2013 etc. Page 35 of 43
thought it appropriate to compensate the next of kin for an unnatural
custodial death. The constitutional courts can go on delivering judgment
after judgment on this issue and award compensation, but unless the State
realizes that custodial death is itself a crime and monetary compensation is
not necessarily the only appropriate relief that can be granted to the next of
kin of the deceased, such unnatural deaths will continue unabated.
Therefore, what is needed is a review of all prisons with a humanitarian
nuance.
54. Over the last several years, there have been discussions on the rights
of victims and one of the rights of a victim of crime is to obtain
compensation. Schemes for victim compensation have been framed by
almost every State and that is a wholesome development. But it is important
for the Central Government and the State Governments to realize that
persons who suffer an unnatural death in a prison are also victims -
sometimes of a crime and sometimes of negligence and apathy or both.
There is no reason at all to exclude their next of kin from receiving
compensation only because the victim of an unnatural death is a criminal.
Human rights are not dependent on the status of a person but are universal in
nature. Once the issue is looked at from this perspective, it will be
appreciated that merely because a person is accused of a crime or is the
W.P. (C) No. 406/2013 etc. Page 36 of 43
perpetrator of a crime and in prison custody, that person could nevertheless
be a victim of an unnatural death. Hence the need to compensate the next of
kin.
Custodial death of Children
55. One of the issues not touched upon by the learned Amicus or by the
National Forum relates to the custodial death of children in child care
institutions under the Juvenile Justice (Care and Protection of Children) Act,
2000 as well as the Juvenile Justice (Care and Protection of Children) Act,
2015. There does not appear to be any study carried out in this regard and it
is rather unfortunate that the Central Government and the State Governments
are oblivious to the possibility of death of children in custody in child care
institutions. This is distressing. The pain and anguish of the next of kin of
children who pass away in custody is not less, but more than the pain and
anguish of the next of kin of any prisoner who suffers an unnatural death in
custody. It seems that apart from being ‘voiceless’, such children are also
dispensable.
56. There is no documentation on the number of unnatural deaths (if any)
of children in child care institutions and this should now be on the agenda of
the Central Government and the State Governments (particularly the
Department concerned with the welfare of children) with far greater concern
W.P. (C) No. 406/2013 etc. Page 37 of 43
than has been shown so far. The unnatural death of any child in need of
care and protection or in conflict with law and in a child care institution
needs attention since it is these voiceless children who need to be heard. It is
time that unnatural deaths of children in child care institutions are seriously
looked into by all concerned if we are to provide the children of our country
with a better future.
Directions
57. We are of the view that on the facts and in the circumstances before
us, the suggestions put forward by the learned Amicus and the learned
counsel appearing for the National Forum deserve acceptance and, therefore,
we issue the following directions:
1. The Secretary General of this Court will transmit a copy
of this decision to the Registrar General of every High Court
within one week with a request to the Registrar General to place
it before the Chief Justice of the High Court. We request the
Chief Justice of the High Court to register a suo motu public
interest petition with a view to identifying the next of kin of the
prisoners who have admittedly died an unnatural death as
revealed by the NCRB during the period between 2012 and
2015 and even thereafter, and award suitable compensation,
W.P. (C) No. 406/2013 etc. Page 38 of 43
unless adequate compensation has already been awarded.
2. The Union of India through the Ministry of Home Affairs
will ensure circulation within one month and in any event by
31st October, 2017 of (i) the Model Prison Manual, (ii) the
monograph prepared by the NHRC entitled “Suicide in Prison -
prevention strategy and implication from human rights and
legal points of view”, (iii) the communications sent by the
NHRC referred to above, (iv) the compendium of advisories
issued by the Ministry of Home Affairs to the State
Governments, (v) the Nelson Mandela Rules and (vi) the
Guidelines on Investigating Deaths in Custody issued by the
International Committee of the Red Cross to the Director
General or Inspector General of Police (as the case may be) in
charge of prisons in every State and Union Territory. All
efforts should be made, as suggested by the NHRC and others,
to reduce and possibly eliminate unnatural deaths in prisons and
to document each and every death in prisons – both natural and
unnatural.
3. The Union of India through the Ministry of Home Affairs
will direct the NCRB to explain and clarify the distinction
W.P. (C) No. 406/2013 etc. Page 39 of 43
between unnatural and natural deaths in prisons as indicated on
the website of the NCRB and in its Annual Reports and also
explain the sub-categorization ‘others’ within the category of
unnatural deaths. The NCRB should also be required to subcategorize
natural deaths. The sub-categorization and
clarification should be complied with by 31st October, 2017.
4. The State Governments should, in conjunction with the
State Legal Services Authority (SLSA), the National and State
Police Academy and the Bureau of Police Research and
Development conduct training and sensitization programmes
for senior police officials of all prisons on their functions,
duties and responsibilities as also the rights and duties of
prisoners. A copy of this order be sent by the Registry of this
Court to the Member-Secretary of each SLSA to follow-up and
ensure compliance.
5. The necessity of having counselors and support persons
in prisons cannot be over-emphasized. Their services can be
utilized to counsel and advice prisoners who might be facing
some crisis situation or might have some violent or suicidal
tendencies. The State Governments are directed to appoint
W.P. (C) No. 406/2013 etc. Page 40 of 43
counselors and support persons for counselling prisoners,
particularly first-time offenders. In this regard, the services of
recognized NGOs can be taken and encouraged.
6. While visits to prison by the family of a prisoner should
be encouraged, it would be worthwhile to consider extending
the time or frequency of meetings and also explore the
possibility of using phones and video conferencing for
communications not only between a prisoner and family
members of that prisoner, but also between a prisoner and the
lawyer, whether appointed through the State Legal Services
Authority or otherwise.
7. The State Legal Services Authorities (SLSAs) should
urgently conduct a study on the lines conducted by the Bihar
State Legal Services Authority in Bihar and the Commonwealth
Human Rights Initiative in Rajasthan in respect of the overall
conditions in prisons in the State and the facilities available.
The study should also include a performance audit of the
prisons, as has been done by the CAG. The SLSAs should also
assess the effect and impact of various schemes framed by
NALSA relating to prisoners. We request the Chief Justice of
W.P. (C) No. 406/2013 etc. Page 41 of 43
every High Court, in the capacity of Patron-in-Chief of the
State Legal Services Authority, to take up this initiative and, if
necessary, set up a Committee headed preferably by the
Executive Chairperson of the State Legal Services Authority to
implement the directions given above.
8. Providing medical assistance and facilities to inmates in
prisons needs no reaffirmation. The right to health is
undoubtedly a human right and all State Governments should
concentrate on making this a reality for all, including prisoners.
The experiences in Karnataka, West Bengal and Delhi to the
effect that medical facilities in prisons do not meet minimum
standards of care is an indication that the human right to health
is not given adequate importance in prisons and that may also
be one of the causes of unnatural deaths in prisons. The State
Governments are directed to study the availability of medical
assistance to prisoners and take remedial steps wherever
necessary.
9. The constitution of a Board of Visitors which includes
non-official visitors is of considerable importance so that
eminent members of society can participate in initiating reforms
W.P. (C) No. 406/2013 etc. Page 42 of 43
in prisons and in the rehabilitation of prisoners. Merely
changing the nomenclature of prisons to ‘Correction Homes’
will not resolve the problem. Some proactive steps are required
to be taken by eminent members of society who should be
included in the Board of Visitors. The State Governments are
directed to constitute an appropriate Board of Visitors in terms
of Chapter XXIX of the Model Prison Manual indicating their
duties and responsibilities. This exercise should be completed
by 30th November, 2017.
10. The suggestion given by the learned Amicus of
encouraging the establishment of ‘open jails’ or ‘open prisons’
is certainly worth considering. It was brought to our notice that
the experiment in Shimla (Himachal Pradesh) and the semiopen
prison in Delhi are extremely successful and need to be
carefully studied. Perhaps there might be equally successful
experiments carried out in other States as well and, if so, they
require to be documented, studied and emulated.
11. The Ministry of Women & Child Development of the
Government of India which is concerned with the
implementation of Juvenile Justice (Care and Protection of
W.P. (C) No. 406/2013 etc. Page 43 of 43
Children) Act, 2015 is directed to discuss with the concerned
officers of the State Governments and formulate procedures for
tabulating the number of children (if any) who suffer an
unnatural death in child care institutions where they are kept in
custody either because they are in conflict with law or because
they need care and protection. Necessary steps should be taken
in this regard by 31st December, 2017.
58. We expect the above directions to be faithfully implemented by the
Union of India and State Governments. In the event of any difficulty in the
implementation of the above directions, the Bench hearing the suo motu
public interest litigation in the High Court in term of our first direction is at
liberty to consider those difficulties and pass necessary orders and
directions.
59. List for follow-up in December, 2017.
……………………………J
(Madan B. Lokur)
……………………………..J
(Deepak Gupta)
New Delhi;
September 15, 2017

Fatal accident Claim - When the deceased was on the rooftop, a naked electricity wire touched his hand. Due to the electrocution, the deceased fell down from the roof of the bus. Thereafter, he was rushed to the hospital where he was declared dead = What is the period of limitation for filing a suit or claim under The Fatal Accidents Act, 1855 = Therefore, the suit under Section 1A of the Fatal Accidents Act, 1855 has to be filed within two years.- whether there is a scheme under the first respondent for providing compensation to the victims, the learned standing Counsel has informed us that there is a scheme under the Rules now applicable wherein the legal heirs of the deceased person are entitled to a one-time compensation of Rs.5 lakhs. The accident is of the year 2008. Therefore, we are of the view that it is a fit case to invoke our jurisdiction under Article 142 of the Constitution of India and grant Rs. 7 lakhs as compensation. The first respondent shall pay this amount to the first appellant within two months from today otherwise the appellants will be entitled to interest of 12 per cent per annum from the date of the accident and the officers responsible for the delay shall be personally liable for the same. We make it clear that this order is passed under the peculiar facts of this case and hence, it is not to be treated as a precedent.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 12851 OF 2017
(Arising out of S.L.P.(C) No. 26011 of 2016)
DAMINI AND ANOTHER ... APPELLANT (S)
VERSUS
MANAGING DIRECTOR,
JODHPUR VIDYUT VITRAN NIGAM
LIMITED AND ANOTHER ... RESPONDENT (S)
J U D G M E N T
KURIAN, J.:
Leave granted.
2. What is the period of limitation for filing a suit or claim under
The Fatal Accidents Act, 1855 is the issue arising for
consideration in this case.
3. The appellants are the widow and son of one Pradeep Bhai
Patel who worked as a driver of a bus. The deceased was
driving passengers from Ahmedabad to Rajasthan. When the
bus reached a dharamshala, the deceased climbed the
rooftop of the bus to bring down the luggage of the
passengers. When the deceased was on the rooftop, a naked
electricity wire touched his hand. Due to the electrocution,
the deceased fell down from the roof of the bus. Thereafter,
he was rushed to the hospital where he was declared dead
REPORTABLE
by the doctors. The cause of death was the contact with the
live electricity wire.
4. The appellants filed an application under Section 1A of the
Fatal Accidents Act, 1855 before the District Judge, Jaisalmer,
Rajasthan claiming Rs.22,68,000/- towards damages. The
claim was resisted on the ground of limitation among other
grounds.
5. According to the respondents, under Article 82 of The
Limitation Act, 1963, the claim should have been presented
within two years from the date of death of the person. The
contention was upheld and the claim petition was dismissed.
The decision was upheld by the High Court as well, and thus,
the appellants are before this Court.
6. It is the contention of the appellants that the petition filed
before the District Judge has to be treated as a Civil Suit for
damages, and hence, it was the residuary entry, viz., Article
113 which should have been applied, in which case, the
limitation is three years from when the right to sue accrues
which is the date of death, i.e., 14.09.2008.
7. In the present case, the claim petition was preferred on
05.09.2011 before the District Judge, and therefore,
according to the learned Counsel for the appellants, the
petition was within time.
8. We are afraid the contentions raised by the appellants
cannot be appreciated. Part VII of the Schedule to the
Limitation Act, 1963 which provides for period of limitation
deals with suits relating to tort. Article 82 is under Part VII.
The same reads as follows:
“PART VII- SUITS RELATING TO TORT
Description of
suit
Period of limitation Time from
which
period
begins to
run
By executors,
administrator
s
or
representativ
es under the
Indian Fatal
Accidents Act,
1855
(13 of 1855).
Two years. The date of
the death of
the person
killed.”
9. Under Part X, Article 113 reads as follows:
“PART X-SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD
Description of
suit
Period of limitation Time from
which
period
begins to
run
Any suit for
which no
period of
limitation is
provided
elsewhere in
this Schedule.
Three years. When the
right to sue
accrues.”
10. As rightly contended by Shri Punjeet Jain, learned Counsel
appearing for the respondents, once a specific period of
limitation is referrable to any of the entries in the Schedule
to the Limitation Act, 1963, then the residuary Article 113
cannot be invoked. In the instant case, for a suit for damages
under the Fatal Accidents Act, 1855 Article 82 provides for a
specific period of limitation, viz., two years from the date of
death of the person.
11. Part VII of the Schedule deals with the “suits relating to tort”.
Therefore, when a suit for compensation is filed under the
Fatal Accidents Act, 1855, the same has to be filed within the
period of two years as prescribed under Article 82 of the
Limitation Act, 1963. In the instant case, the action for
damages is brought under Section 1A of the Fatal Accidents
Act, 1855. The provision reads as follows:
“[1A.] Suit for compensation to the family of a
person for loss occasioned to it by his death by
actionable wrong.-Whenever the death of a person
shall be caused by wrongful act, neglect or default,
and the act, neglect or default is such as would (if
death had not ensued) have entitled the party injured
to maintain an action and recover damages in respect
thereof, the party who would have been liable if death
had not ensued, shall be liable to an action or suit for
damages, notwithstanding the death of the person
injured and although the death shall have been caused
under such circumstances as amount in law to felony
or other crime.
Every such action or suit shall be for the benefit
of the wife, husband, parent and child, if any, of the
person whose death shall have been so caused, and
shall be brought by and in the name of the executor,
administrator or representative of the person
deceased;
and in every such action, the court may give such
damages as it may think proportioned to the loss
resulting from such death to the parties respectively,
for whom and for whose benefit such action shall be
brought, and the amount so recovered, after deducting
all costs and expenses, including the costs not
recovered from the defendant, shall be divided
amongst the before-mentioned parties, or any of them,
in such shares as the court by its judgment or decree
shall direct.”
12. The appellants have placed reliance on the decision of this
Court in Jay Laxmi Salt Works (P) Ltd. v. State of
Gujarat1
to justify their argument that Article 113 should be
applied for computation of period of limitation. Jay Laxmi
(supra) was not a case of death of a person and it was also
not a case under the Fatal Accidents Act, 1855. It pertained
to a claim of damages for loss due to damage to property.
Therefore, Jay Laxmi (supra) has no relevance in a suit for
damages under the Fatal Accidents Act, 1855. It is also to be
noted that there is no particular period of limitation under
the Fatal Accidents Act, 1855. Therefore, the suit under
Section 1A of the Fatal Accidents Act, 1855 has to be filed
1
(1994) 4 SCC 1
within two years.
13. However on a query as to whether there is a scheme under
the first respondent for providing compensation to the
victims, the learned standing Counsel has informed us that
there is a scheme under the Rules now applicable wherein
the legal heirs of the deceased person are entitled to a
one-time compensation of Rs.5 lakhs. The accident is of the
year 2008. Therefore, we are of the view that it is a fit case
to invoke our jurisdiction under Article 142 of the
Constitution of India and grant Rs. 7 lakhs as compensation.
The first respondent shall pay this amount to the first
appellant within two months from today otherwise the
appellants will be entitled to interest of 12 per cent per
annum from the date of the accident and the officers
responsible for the delay shall be personally liable for the
same.
14. We make it clear that this order is passed under the peculiar
facts of this case and hence, it is not to be treated as a
precedent.
15. The appeal is disposed of as above. There shall be no order
as to costs.
.......................J.
(KURIAN JOSEPH)
.……………………J.
(R. BANUMATHI)
New Delhi;
SEPTEMBER 14, 2017.
ITEM NO.1501 COURT NO.5 SECTION XV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 26011/2016
DAMINI & ANOTHER Petitioner(s)
VERSUS
MANAGING DIRECTOR, JODHPUR VIDHYUT VITRAN
NIGAM LTD & ANOTHER Respondent(s)
Date : 14-09-2017 This petition was called for Judgment today.
For Petitioner(s) Mr. Balraj Dewan, AOR
(Appearance slip not given)
For Respondent(s) Ms. Pratibha Jain, AOR
(Appearance slip not given)
Hon'ble Mr. Justice Kurian Joseph pronounced the reportable
Judgment of the Bench comprising His Lordship and Hon'ble Mrs.
Justice R. Banumathi.
Leave granted.
The appeal is disposed of.
Pending interlocutory applications, if any, stand disposed of.
(JAYANT KUMAR ARORA) (RENU DIWAN)
COURT MASTER ASSISTANT REGISTRAR
(Signed reportable Judgment is placed on the file)