INDEPENDENT INQUIRY INTO THE DEATH OF A CHILD LABOUR BEATEN TO DEATH ABDUL RASHID –VS- STATE OF ODISHA [2014 1 ILT CUT. 202]

 

INDEPENDENT INQUIRY INTO THE DEATH OF A

CHILD LABOUR BEATEN TO DEATH

ABDUL RASHID –VS- STATE OF ODISHA

[2014 1 ILT CUT. 202]

The following is the case summary of Abdul Rashid v. State of Odisha where Rajunu Khan was working in a Bidi Company was beaten to death by the owner and died on the spot; the same was published in the daily newspaper “The Samaj”. The Magistrate conducted the enquiry and found that dead body was buried by the owner of the Bidi Company without informing the parents of the victim. On post-mortem being conducted, the case was found to be homicidal death as the injuries were ante mortem and could have been caused by blunt force trauma. A counter affidavit was filed on behalf of the State of Odisha by the Inspector- in - charge. After the investigation, accused were sent up for trial but were acquitted. The learned Government Advocate submitted that the investigation was proper and the State was

not guilty of failure of its duty and thus, no compensation was payable.

FACTS OF THE CASE

• The case of the petitioner is that on of November 14, 1996 a worker named Rajunu Khan was working in a Bidi Company in Sheikh Bazar was beaten by the owner of the Bidi Company and died on the spot. The same matter was published in a local

newspaper named “The Samaj” after 04 days of the incident i.e. November 18, 1996.

• The parents of the deceased come from a poor family so they did not take remedies.

The Magistrate conducted the enquiry and got the dead body from the grave and found injuries on the dead body.

• The owner buried the dead body and did not inform the victim’s parents. When the body was sent for the post-mortem, it was found that the case is of Homicidal Death.

• Inspector-in-charge of Lalbag Police Station filed the counter affidavit on behalf of the State of Odisha. According to the said affidavit, on November 15, 1996, the Inspector-in-charge started inquiry and found that Nanda @ Rajunu Khan, s/o Mohammad Khan of Sheikhbazar, aged about 15 years was working in Tarabidi Company at Seikhbazar and expired on November 14, 1996 was buried at Idga Kabarstan by his kith and kin and others.

• The case was registered and inquisition was done in front of the Magistrate. The body of the deceased was recovered from the grave and then it was sent for post-mortem.

According to post-mortem report, the injuries were ante mortem and could have been caused by blunt force trauma.

• The injuries on the body were lethal to cause death. Deceased’s brother stated that his brother died after falling from the top of the building to the watchman at the burial ground.

• The matter has been pending for the last 17 years. In the meanwhile, after investigation,  accused were sent up for trial, but the witnesses examined by the prosecution did not support the prosecution version and stated that they did not have any direct knowledge. Accordingly, the accused who were sent up for trial were acquitted vide judgment dated July 17, 2002 in Sessions Trial No. 218 of 2001 (State v. Apu @ Md. Afsar) rendered by Addl. Sessions Judge, Fast Track No.1, Cuttack.

• No one appeared for the petitioner, learned Government Advocate submitted that the investigation was proper and the State was not guilty of failure of its duty and thus, no compensation was payable.

ISSUES INVOLVED IN THE CASE

I. Whether the responsibility of the State comes to an end after registering a case, or conducting investigation or the State has more responsibility towards the victim and whether the Court has duty to provide compensation to the victim irrespective of conviction of acquittal or not?

II. Whether the abundance of power conferred in the Courts under Section 357 and 357A of CrPC, notwithstanding, Courts can disregard the provisions or exercise of a power that is primarily meant to be exercised to benefit the victims of the crime. In other words, whether the Courts have a legal duty to refer to the question of awarding compensation to the victim and record reasons while granting relief or refusing the same to them?

Plea of the Petitioner

• When compensation is not available from the accused, the State is bound to provide financial compensation to victims or to their family and as per Article 21; the State shall not only compensate when the State itself is guilty of an offence but also

compensate when the State is not guilty of any offence.

• As per Section 357 and 357A of CrPC and “The Odisha Victim Compensation Scheme, 2012”, compensation is payable to victim in every case whether of conviction or acquittal.

• When the State fails to identify the accused or fails to collect and present evidence to punish the accused, the duty to award compensation still exists. Victim of the crime and his family expect that the State will definitely punish the accused and compensate the victim or victim’s family.

• According to Section 357A of CrPC, “the Court has the power to direct the State to pay compensation to victims in all such cases where the compensation awarded under Section 357 is not adequate, or where the case ends with acquittal”. Under this

provision, the victim has the right to request the District of State Legal Services Authority to award him/her compensation.

Plea of the Respondent

• The respondent argued that no one appeared for the petitioner, and submitted that the investigation was proper and the State was not guilty of failure of its duty and thus, no compensation was payable.

• It was also mentioned that although there is provision for compensation under Section 357 of CrPC but that too it subjected to certain limitations as it can only invoked upon

conviction and that also at the discretion of the Judge. The amount of compensation also depends upon the capacity of the accused, for which the evidence is required that becomes a difficult task. Further, victims are unable to ask Court for legal aid or otherwise.

• This above-mentioned statement makes it clear that why Courts even in case of conviction rarely press upon this provision. The rate of conviction being low, competence of investigation; witnesses and need of proof are required to make sure that innocent is not being punished; the said provision becomes hard to address the need of victims.

• Emphasizing on the case, the respondent also stated that “principle of compensating the victims has been recognized by the way of law but only as a token of relief and not the part of a punishment”. When fine is imposed as a punishment, the whole or part of it may be directed to be given to the victim of the crime as per Section 357 of CrPC. Compensation can be awarded only when the accused has been convicted.

LEGAL ASPECTS INVOLVED IN THE CASE

The present case revolves around Sections 125, 126, 357, 357A of Code of Criminal Procedure, 1973 and Articles 21 of Constitution of India.

Code of Criminal Procedure, 1973

Section 125: Order for maintenance of wives, children and parents.

“If any person having sufficient means neglects or refuses to maintain his wife or other family members, a Magistrate of first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or other family members, at such monthly rate as the Magistrate thinks fit and to pay the same to such person

as the Magistrate may from time to time direct”.

Section 126: Procedure

(2) “All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal

attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases”.

Section 357: Order to pay Compensation.

(1) “When a Court imposes a sentence of fine or a sentence of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied”-

(a) in defraying the expenses of properly incurred in the prosecution.

(b) in the payment to any person of compensation for any loss or injury caused by the offence.

(3) “When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced”.

Section 357A: Victim compensation scheme

“Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation”.

Constitution of India

Article 21: Protection of life and personal liberty.

“No person shall be deprived of his life or personal liberty except according to procedure established by law”.

JUDGMENT

• Hon’ble Court held that compensation need to be paid at the earliest as the immediate need of victim has to be met and for determining the interim compensation, the Court may rely to the facts and circumstances of the case, loss that has been suffered and the basic requirement of the deceased family.

• On passing the interim order by the Court, the available funds of the District/State Legal Services Authorities may be disbursed to the deceased family in the manner as directed by the Hon’ble Court and to be adjusted at the later stage in appropriate proceedings.

• It was evident that crime had taken place admittedly so the petitioner is entitled to get interim compensation without prejudice to claim for final compensation, if any, being preferred at the appropriate platform.

• Accordingly, the Court directed for the payment of interim compensation of Rs. 50,000/- to the petitioner, who is the father of the deceased by way of Bank Draft. The payment could be made within 2 months from the date of receipt of a copy of this

order which will be the responsibility of the Home Secretary to the State of Odisha.