The present case considered an important case on questions of ‘compensation to victim for violating the right to life guaranteed under Article 21, and State’s liability over police atrocities and custodial deaths.

The case arose, when a letter was sent by Nilabati Behera to the supreme court, the court accepted and treated that as writ petition under Article 32 for determining the claim of compensation made therein consequent upon the death of petitioner’s son Suman Behera, aged about 22 years, in police custody

Facts of the Case

  • Suman Behera was taken from his home in police custody at about 8 a.m. on 1.12.1987 by respondent Sarat Chandra Barik, Assistant Sub-Inspector of Police of Jaraikela Police Outpost under Police Station Bisra, Distt. Sundergarh in Orissa, in connection with the investigation of an offence of theft and detained at the Police Outpost.
  • At about 2 p.m. the next day on 2.12.1987, the petitioner came to know that the dead body of her son Suman Behera was found on the railway track near a bridge at some distance from the Jaraikela railway station. There were multiple injuries on the body of Suman Behera when it was found and obviously his death was unnatural, caused by those injuries.
  • The allegation made was that it was a case of custodial death since Suman Behera died as a result of the multiple injuries inflicted to him while he was in police custody; and thereafter his dead body was thrown on the railway track.
  • The prayer made in the petition was for award of compensation to the petitioner, the mother of Suman Behera, for contravention of the fundamental right to life guaranteed under Article 21 of the Constitution.

Defence of the Police

The defence of the respondents was that Suman Behera managed to escape from police custody at about 3 a.m. on the night between the 1st and 2nd December, 1987 from the Police Outpost Jeraikela, where he was detained and guarded by Police Constable Chhabil Kujur;

he could not be apprehended thereafter in spite of a search; and the dead body of Suman Behera was found on the railway track the next day with multiple injuries which indicated that he was run over by a passing train after he had escaped from police custody.

Supreme Court’s direction for the inquiry

In view of the controversy relating to the cause of death of Suman Behera, a direction was given by supreme Court on 4.3.1991 to the District Judge, Sundergarh in Orissa, to hold an inquiry into the matter and submit a report.

Accordingly, evidence was led by the parties and the District Judge has submitted the Inquiry Report dated 4.9.1991 containing his finding based on that evidence that Suman Behera had died on account of multiple injuries inflicted to him while he was in police custody at the Police Outpost Jeraikela.

Questions before the Court

1.      Whether it was a custodial death?

Additional Solicitor general, who was appearing for the state, did not dispute the claim for compensation but he defended the liability of the state. He relied on the respondent’s defence that Suman Behera had managed to escape from police custody at about 3 a.m. on the night between the 1st and 2nd December, 1987 and it was likely that he was run over by a passing train when he sustained the fatal injuries.

But the admitted facts of the case were-

“Suman Behera’s mother, the petitioner, and grand-mother went to the Police Outpost at about 8 p.m. with food for Suman Behera which he ate and thereafter these women came away while Suman Behera continued to remain in police custody-, Police Constable Chhabil Kujur and some other persons were present at the Police Outpost that night; and the dead body of Suman Behera with a handcuff and multiple injuries was found lying on the railway track at Kilometer.

The court noted that there was no cogent independent evidence of any search made by the police to apprehend Suman Behera, if the defence of his escape from police custody be true.

On the contrary, after discovery of the dead body on the railway track in the morning by some railwaymen, it was much later in the day that the police reached the spot to take charge of the dead body.

Facts disposed by the Doctors

The doctor deposed that all the injuries were caused by hard and blunt object, the injuries on the face and left temporal region were postmortem while the rest were ante-mortem. The doctor excluded the possibility of the injuries resulting from dragging of the body by a running train and stated that all the ante-mortem injuries could be caused by lathi blows.

After considering all evidences and testimonies, the court reached the same conclusion that the death of Suman Behera was custodial death.

  • The liability of compensation

While deciding the question of compensation, the court referred the following cases on compensation,

  • Rudul Sah v. State of Bihar and Another, [1983] 3 S.C.R. 508,
  • Sebastian M. Hongray v. Union of India and Others, [1984] 1 S.C.R. 904
  • Bhim Singh v. State of J&K [1984] Supp. S.C.C. 504
  • Saheli, A Women’s Resources Centre and Others v. Commissioner of Police, Delhi Police Headquarters and Others, [1990] 1 S.C.C. 422 and
  • State of Maharashtra and Others v. Ravikant S.Patil, [1991] 2 S.C.C. 373,

Difference of state liability in tort and criminal law

Further, while differentiating the liability of state in tort and criminal law and Negativing the decision of Kasturilal on tort, the court observed as follows-

“A claim in public law for compensation’ for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is ‘distinct from, and in addition to, the remedy in private law for damages for the tort’ resulting from the contravention of the fundamental right.

The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.”

Decision of the Court on compensation

After the discussion on the liability of state to pay compensation for victim, the court reached on the conclusion that it is a clear case for award of compensation to the petitioner for the custodial death of her son.

The court further considered the question of quantum of compensation. The court found that, the deceased Suman Behera was aged about 22 years and had a monthly income between Rs.1200 to Rs.1500. therefore, a total amount of Rs.1,50,000 was awarded as compensation to the petitioner in the present case.


Smt. Nilabati Behera Alias Lalit … vs State Of Orissa; 1993 AIR 1960, 1993 SCR (2) 581