By Ayush Upadhyay[1]

In the Supreme Court of India

CITATION1993 AIR 1960, 1993 SCR (2) 581  
DATE OF THE CASEMarch 24, 1993  
STATUS/CONSTITUTION INVOLVEDThe Constitution of India The Code of Criminal Procedure, 1973  
IMPORTANT SECTIONS/ARTICLESThe Constitution of India – Article 21 and 32 The Code of Criminal Procedure, 1973 – Section 176  


In Indian Constitution every person is authorized to avail imprescriptible fundamental right. However, our citizens do takes basic rights whether codified or not are requisite for him to enjoy their secured rights. This case analysis is considering the liability of State on executive measures in regards to fundamental rights enshrined under Indian Constitution. The present case acknowledged as paramount case on important questions of compensation to victim for infringing the essential right to life enshrined under Article 21, and that liability upon State to protect custodial death and police atrocities. This case emerged, when a letter submitted by appellant Nilabati Behera to the Apex Court, the Court agreed and considered as Writ Petition under ambit of Article 32 of the Constitution of India for ascertaining the appeal of compensation upon the death of appellant’s son Suman Behera, aged 22 years, in police custody. The prayer made by the appellant is for reward of compensation to the petitioner, the mother of Suman Behera, for transgression of the enshrined fundamental right to life given under Article 21 of the Constitution.


The custodial death is a very brutal form of violence. The major concern of custodial deaths is a deplorable problem for any developing countries like India. The issue of custodial death is not new in our society but evidences of its genesis from the English dominion too. In the colony of the British period initiated many assassinations, involving myriad freedom fighters. It has been derived from the averment of Nityananda Rai, the Union Minister of State for Home Affairs, it has been declared that an aggregate of 146 cases of custodial death was recorded from 2017 to 2018, followed by 136 cases between 2018-2019, 112 cases in 2019-2021, 100 cases in 2020-2021 and 175 cases in 2021-2022[2]. We know that the institution of emergency disreputable noted as the dark time of our Indian Democracy. It was used as a weapon for searing Parliamentary motif of a Nation. In the meantime, an unmarked number of custodial homicides was happened.

Custodial Death means an assassination of impeded person in custody of police, prison or other authorities, for the meaning of custody, there are 3 kinds:

1- Police Custody

2- Judicial Custody

3- Parliamentary Custody

From time to time, the Supreme Court enunciated compensatory philosophy in regards to custodial violence, as Indian Constitution does not specifically enshrine this issue. The legal ameliorate includes yielding compensation to the persons, who have distressed of their fundamental rights.


In this case, Suman Behera son of appellant, aged 22 years, was inculpated of the offence of theft u/s 378[3]. On December 1, 1987, the deceased was taken into custody by the police (Sarat Chandra Barik, ASI), at about 8 a.m. from his house in Police Station Bisra in District Sundergarh in Orissa. He was apprehended under police establishment. The appellant was notified that her son Suman Behera’s dead body was revealed on the Railway track near Jaraikela train station on December 2, 1987. After this incident, when a letter submitted by the appellant/petitioner on September 14, 1988, which was contemplated as a writ petitioner by the Supreme Court under ambit of article 32 of the Constitution. The petitioner has alleged her son’s death was not a natural death. Hence, it was considered as a custodial death, which indicating numerous injuries on the deceased endured. It was further alleged that deceased sustained various wounds when he was in the police outpost, after that his body throwed on the railway track. The appellant has applied for reward of compensation for infringement of Right to Life provided under Article 21. The respondents denied the accusation of custodial violence in respect of Suman Behera’s death by elaborating that on night of December 1st and 2nd, 1987, the deceased vamoosed from the outpost of police where he was being detained for alleged of theft. He suggested that on the next day, he was collided by passing train on the track. Due to this contended issue of death, the Apex Court directed on March 4th, 1991, directing District Judge of Sundergarh in Orissa to initiate an investigation & disclose the Compte rendu on this behalf. On September 4th, 1991, the District Court adduced inquiry report, which extrapolated that Suman Behera died due to numerous wounds and injuries sustained while being in the outpost of police station.


1. Whether the Appellant’s claim of custodial death is justifiable and corroborated by presented evidences?

2. Whether the Constitutional Courts are empowered to award monetary loses in regards to compensation for infringement of Civil Rights?


1. Learned counsel for the appellant argued that Suman Behera died as an outcome of several abrasion & wounds imposed to him when he was in police custody. Therefore, it is a case of custodial torture that reflects a custodial death of a youth.

2. The appellant’s counsel contended that deceased has to face severe cruelty by the police officers, and that violence threatening his basic civil right to live with dignity. He mentioned that a person is having a right to equal treatment irrespective of accused person or innocent person.

3. Learned counsel in behalf of petitioner submitted that on September 4th, 1991, the inquiry report made by the District Court serving the directions by the Apex Court. In the report presented by the Court suggested that Suman Behera had died by several injuries sustained by him while undergone custody of police premise.

4. Learned counsel requested that my client should be given some monetary relief in this regard to live with basic need as her son was the only source of income.


1.Learned counsel for the respondent side argued that appellant’s son Suman Behera vamoosed from premise of police custody on the next day after detained. Therefore, in order to escape with police authorities, he ran away hurriedly and died by crashing with train.

2. Learned counsel appeared for the respondent side denying the fact that had stated by the petitioner’s counsel. He again argued that the deceased could not perceived in search conducted by the officers.

3. The respondent’s counsel contended strongly that the liability of the police officials stopped the time when he escaped from the outpost of police premise.

4. Learned counsel appealed that Suman Behera died while collided with passing train and imposed severe injuries that caused his death. Further, he contended that there were more options to inflicts wounds by fall on the railway line.

Related Provision

  • The 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[4].

Article 32 – Remedies for enforcement of rights conferred by this Part

  • The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed[5]
  • The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part[6]
  • Without prejudice to the powers conferred on the Supreme Court by clause (1) & (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)[7]

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution[8].

  • Indian Penal Code, 1860

Section 176 – Inquiry by Magistrate into cause of death.

  • When any person dies while in the custody of the police or when the case is of the nature referred to in clause (i) or clause (ii) of sub- section (3) of section 174] the nearest Magistrate- empowered to hold inquests shall, and in any other case mentioned in sub- section (1) of section 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer; and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence[9].

(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[10].

(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[11].

(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. Explanation. – In this section, expression” relative” means parents, children, brothers, sisters and spouse[12].


In the famous groundbreaking case of Nilabati Behera v. State of Orissa and Others, where the compensatory jurisprudence evolved as a core product of its decision. The Bench of the Apex Court was adjudicated through the facts and evidences offered by both the parties. The Supreme Court observed that there is no explicit evidence of search in order to discover appellant’s son after vamoose from police station’s premise. The Court further stated that the report of doctor has suggested the injuries could not imposed in train tragedy, it had been feasible to inflict wounds by the lathi blows. It is inferred that the reward of monetary damages as compensation under Article 32 or 226 of the Constitution may be ameliorate for the public administration, confirmed strict liability for demonstration of fundamental rights, where relief does not approve. The Court has enunciated the principle that awarding compensation can be essential for complete justice and effectuating civil rights. The Court mentioned that it is the duty of the State to protect the rights of individual under Article 21 of the Constitution of India cannot be denied to an accused person. The State will be responsible for the illicit wrong happened by police authorities. In this situation the principle of sovereign immunity does not impose. Further the Court mentioned that the police officers have a strict duty towards the citizens in the outpost of police premise. Honourable Apex Court leaned on Article 9(5) of ICCPR, 1966, which determines that implementation of monetary costs is not only an international aspect. Article 9(5) reads – “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation[13].” The Court’s adjudication was involved various judgements in order to substantiate the case of appellant’s deceased son.

In Rudal Shah v. State of Bihar[14], the Court held that compensation might be given under the ambit of Article 32 but the petitioner could have exiled the primary remedy if it was absolutely disputed.

In order to reach the true fraction, the Court cited case of Sebastian Hongray v. Union of India[15], ideal costs were given by the Court in the disability of authorities to produce the person, and that they told us all person had died due to unnatural demise.

The Court cited another case of Bhim Singh v. State of J&K[16], where adjudicated that an unlawful detention, illegality could not be cleaned by releasing the person.

Finally, the Supreme Court has granted the compensation to the appellant for her son’s demise while in care and protection of police authority. The court is of opinion that there are no particulars to check the precision. The District Judge submitted that the deceased had a monthly payment between 1200/- to 1500/- rupees. The Supreme Court ordered the respondent, the State of Orissa to pay appellant amount of One Lakh Fifty Thousand rupees as inferred ideal compensation, along with an extra Ten Thousand rupees to Legal Aid committee of Supreme Court.


The epoch making and groundbreaking verdict has been pronounced by the Honourable Apex Court. Therefore, this decision made the State could be responsible for any such wrong or illicit exploitation in public law. It is the duty of the State to ensure the citizen from illegal & unlawful activity by its officers. The provision of Article 21 is enough to provide every person live with dignity and free from all demonstration performed by the State.  If the current scenario is to be considered, it is very difficult to say that there will be any improvement regarding custodial deaths. There is a need for stringent legal action which will be solely dedicated to punishing the personnel who misused their power and whose brutal force led to a loss of life. For ensuring the reduction of instances of custodial death, the guidelines laid down in the landmark cases of D.K. Basu v. State of Bengal[17] and Prakash Singh v. Union of India[18] need to be strictly implemented[19].

The Highest Court of the India enunciated the remedy in this behalf for the violation of individual right involved in the Article 21 of the Constitution. Though, implementation of this principle of compensatory jurisprudence could strongly expediate the extrapolation of right to endeavour suitable compensation, in the present scenario, it is needed to make legislation that imposed smooth process for taking compensation by the aggrieved person. 

[1]  LL.B.(Hons.) 4th Semester Student at University of Allahabad, Prayagraj, Uttar Pradesh.

[2]  Mahendra Singh Manral, At 80, highest no. of custodial deaths reported in Gujarat in last five years, Rajya Sabha told, (The Indian Express, 14 February, 2023) <–up-tamil-nadu-bihar-rajya-sabha-8441974/> accessed 28 June 2023.

[3]  See The Indian Penal Code, 1860, § 378.

[4] The Constitution of India, 1950, Art. 21.

[5] The Constitution of India, 1950, Art. 32(1).

[6] The Constitution of India, 1950, Art. 32(2).

[7] The Constitution of India, 1950, Art. 32(3).

[8]  The Constitution of India, 1950, Art. 32(4).

[9]  The Indian Penal Code, 1860, § 176(1).

[10] The Indian Penal Code, 1860, § 176(2).

[11] The Indian Penal Code, 1860, § 176(3).

[12] The Indian Penal Code, 1860, § 176(4).

[13] The International Covenant on Civil and Political Rights, 1966 Article 9(5).

[14] Rudal Shah v. State of Bihar (1983) AIR 1086.

[15] Sabastian Hongray v. Union of India & Others (1984) AIR 1026.

[16] Bhim Singh, MLA v. State of J&K & Others (1985) 4 SCC 677.

[17] D.K. Basu v. State of West Bengal (AIR 1997 SC 610).

[18] Prakash Singh v. Union of India (1998) 1 SCC 226.

[19] Mohammad Sahil Khan, Custodial deaths, ipleader, (July 22, 2023), <,years%20to%20seven%20years%20each.> accessed 30 June 2023.

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