Madras High Court
N.Kamala Kannan vs The State Rep. By Its on 10 August, 2022
Author: N. Anand Venkatesh
Bench: N. Anand Venkatesh
W.P.No.19500 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.08.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
W.P.No.19500 of 2012
N.Kamala Kannan ... Petitioner
Vs.
1.The State Rep. By its
Secretary Home Department,
Secretariat,
Saint George Fort,
Chennai – 600 009.
2.The Director General of Police,
Kamarajar Salai,
Chennai – 600 005.
3.The Superintendent of Police,
Cuddalore District,
Cuddalore – 1.
4.The Inspector of Police,
Muthandikuppam Police Station,
Cuddalore District. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India
for issuance of a Writ of Mandamus, to direct the respondents to pay
compensation of Rs.20 Lakhs with 24% per annum to this petitioner for the
loss of petitioner limbs.
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W.P.No.19500 of 2012
For Petitioner : Mr.K.Srinivasan
For Respondents : Mr.R.Kumaravel
Additional Government Pleader
for R1 and R2
Mr.V.Meganathan
Government Advocate for R3 & R4
ORDER
This writ petition has been filed seeking for compensation on the ground that the petitioner suffered a permanent disability due to the grievous injuries sustained by him after being hit by a rubber bullet that was used during firing by the police to disperse the crowd who were causing a riot during a temple dispute.
2.The case of the petitioner is that on 08.11.2001, there was a temple dispute between two villages and it resulted in large scale violence and riots. The police in order to bring the situation under control, opened fire with rubber bullets and the petitioner who claims to be standing in front of his house was hit in his right hand palm. As a result, his hand above wrist had to be severed. Thereafter, he underwent a major operation and the hand above the wrist was refixed. The concerned authority had assessed the petitioner to be suffering with 40% permanent and physical 2/22 https://www.mhc.tn.gov.in/judis W.P.No.19500 of 2012 impairment.
3.In view of the above, the petitioner claims that he had spent huge amount of money towards the operation and he was not in a position to undertake any work due to the disability and according to the petitioner all this was caused due to the negligence on the part of the police. Aggrieved by the same, the petitioner has sought for payment of compensation of a sum of Rs.20 Lakhs.
4.The 4th respondent has filed a counter affidavit. The relevant portions in the counter affidavit are extracted hereunder:
3.It is submitted that in Cuddalore District, Panruti Taluk, Perperiankuppam is a Village Panchayat and it consists of hamlet village known as Muthandikuppam. One Anandeeswarar Temple is situated near the lake in Perperiyankuppam, Village.
Both village people used to conduct 16th day ceremony (Karumakariyam) in the said Temple. While printing the 16th day ceremony card, Muthandikuppam Village people not in the habit of mentioning Perperiyankuppam, Village name in the card. This was objected by the Perperiyankuppam Village people. Moreover, in the local body election Muthandikuppam Village persons were elected as President and Vice President of 3/22 https://www.mhc.tn.gov.in/judis W.P.No.19500 of 2012 Perperiankuppam Village, Panchayat. Perperiankuppam Village persons were defeated in the election. So, there was an enemity prevailing between the Perperiyankuppam Village people and Muthandikuppam Village people. While so, on 24.10.2001 one Ramalingam of Muthandikuppam Village died and the 16th day ceremony was proposed to be conducted on 08.11.2001, at Anandeeswarar Temple, Perperiyankuppam.
While printing the card the name of the village Perperiyankuppam was not printer. So, this was objected by the Perperiyankuppam Village people.
4. It is further submitted that on 08.11.2011 at about 04.00 A.M., in Perperiankuppam main road, 400 women of Perperiyankuppam Village conducted "Road Roko" and they were surrounded by Perperiyankuppam Village men. In order to maintain law and order Zonal Deputy Tahsildar, Krishnamurthy, Revenue Inspector Kumudam, V.A.O. Gnanasekaran, D.S.P.Panruti, Inspector of Police Kadampuliur camped there and tried to pacify them. But, Perperiyankuppam Village people insisted that Muthandikuppam people had to give a written undertaking that in future the name of the Perperiyankuppam Village must be printed in the ceremony invitation and also demanded to tender apology to them. They failed to give up the Road Roko. At the same time, in retaliation to the above incident Muthandikuppam Village people conducted Road Roko in Kattukoodalore Road. They were pacified and they gave up the Road Roko at 08.30 A.M. Muthandikuppam Village people 4/22 https://www.mhc.tn.gov.in/judis W.P.No.19500 of 2012 insisted that they be permitted to go to Anandeeswarar Temple, Perperiyankuppam to conduct 16th day ceremony for the deceased Ramalingam. They were asked to keep away from there and adviced that after the talks with the Perperiyankuppam Village people they can proceed. But, they prepared to go to Anandeeswarar Temple to perform the 16th day ceremony. Tension was prevailing in that area. Perperiyankuppam Village people were asked to disperse but in vain D.S.P Panruti warned them to disperse by in vain. When the police party tried to arrest them, Perperiyankuppam Village people hurled stones towards the police. In spite of the repeated warning by the D.S.P. Panruti, they attacked the police party with stones and the D.S.P sustained injuries. They were warned that tear gas would be used. But the angry unruly mob started to throw stones towards the police. After obtaining the permission from the Executive Magistrate (Tahsildar) tear gas were used to disperse the unruly mob. Inspite of it the unruly mob not dispersed. Again they were warned that lathi charge would be carried out this was also not responded by them. So, with the order of the Executive Magistrate they were lathi charged. Repeatedly they attacked the police party. Lastly they were warned that unless they disperse firing would be open. But the unruly mob did not heed to the warning and indulged in attacking the police people. At about 10.30 A.M. in order to maintain law and order and to protect this lives of innocent people, after getting permission from the Executive Magistrate firing with rubber bullets was opened. Again the 5/22 https://www.mhc.tn.gov.in/judis W.P.No.19500 of 2012 Village people advance towards the police for attacking. So, the police party opened firing with rubber bullets to disperse the crowd. Due to the attack of the unruly mob, Deputy Tahsildar, Head Constable, six constables were injured, Jeeps were damaged. In this regard D.S.P. Nagarajan gave a complaint and a case was registered in Muthandikuppam P.S. Cr.No.257/2011 u/s 147, 148, 341, 332, 333, 324, 307 IPC and 3(1) of the Tamil Nadu Property (Prevention of Damages and Loss) Act 1992. Apart from the police personnel, during the above said rioting one Ramamurthy also sustained injury and he was awarded Rs.10,000/- by the Government as compensation, injured Valalyapatty was awarded Rs.10,000/- as compensation, injured Kamalakannan was awarded Rs.10,000/- as compensation, injured Arivalagan was awarded Rs.5,000/- as compensation, injured Sivakumar was awarded Rs.5,000/- as compensation thus the Government had taken adequate measures to compensate the injured persons.
5. Regarding the averment made in paragraph 2 of the affidavit, It is submitted that it is true that there is a dispute between the people of Perperiankuppam Village and Muthandikuppam Village regarding the non-mentioning of the village Perperiankuppam in the printing card by the Muthandikuppam Village people while performing 16th day Ceremony at Anandeeswarar Temple situated at Perperiankuppam. The Village people of Perperiankuppam proposed a Road Roko on 08.11.2011. So, Revenue officials 6/22 https://www.mhc.tn.gov.in/judis W.P.No.19500 of 2012 and police camped there for bandobust. On 08.11.2011 PerperankuppamVillage people formed themselves into unlawful assembly in Perperiankuppam main road with a common object to attack the police personnel, Revenue personnel and Muthandikuppam Village people. Inspite of the repeated warnings by the Police Officials, they indulged in attacking the police personnel damaged the government vehicles. After observing the legal formalities the police initially used teargas shells, then lathi charge finally opened fire with rubber bullets. The warnings given by the police were not heeded by them and they attacked the police personnel and Revenue Officials and tried to kill them. So, as a defensive action firing was opened against the people of Perperiankuppam Village.
6. Regarding the averment made in paragraph 3 of the affidavit, it is submitted that the people of Perperiankuppam Village formed themselves into an unlawful assembly in Perperiankuppam main road with a common object to attack the police, Revenue officials and the Muthandikuppam Village people. The officials tried to pacify them but in vain. They demanded a written apology Letter from the Muthandikuppam Village people. At the same time Muthandikuppam Village people also gathered at Kattukoodalore road. They insisted to proceed to Anandeeswarar Temple. Tension was prevailing. The people of Muthandikuppam Village were pacified. Thereafter Perperiankuppam Village people were asked to disperse but in vain. So, when the police party tried to arrest them they 7/22 https://www.mhc.tn.gov.in/judis W.P.No.19500 of 2012 attacked the police party. They were warned that teargas shell will be used in spite of it, they threw stones towards the police and Revenue Officials. The Deputy Superintendent Police Deputy Tahsildar, Head Constable and six constables were injured, use of teargas did not yield any fruitful result. The Panruti Tahsildar order to open fire with rubber bullets in order to scare away the unruly mob. In such use of several rounds of rubber bullets some of the members of the unlawful assembly also got injured. It is submit that in order to maintain law and order and in order to protect the life of the innocent people after observing all the legal formalities the firing with rubber bullets were opened. So, it is not correct to state that the respondent Police instantly opened fire in a blind manner without any precaution. The police acted in a manner known to law. The petitioner was treated at Government Hospital, Cuddalore and he recovered.
7. Regarding the averment made in paragraph 4 of the petition. It is submitted that Rs.10,000/- was awarded by the Government by way of compensation. It is submitted that it is not correct to state that the petitioner incurred around two lakh for treatment and now he is unable to work.
8. Regarding the averment made in paragraph 5 of the affidavit, it is submitted that it is not correct to state that respondent police foisted a false case against the petitioner and 59 people residing in Perperiankuppam Village. I submit that on 8/22 https://www.mhc.tn.gov.in/judis W.P.No.19500 of 2012 08.11.2001, in the main road at Perperiankuppam Village the petitioners and 59 people of Perperiankuppam Village formed themselves into an unlawful assembly armed with stick, iron pipe, cycle chain, knife stone with a common object to attack the police, Revenue Officials and hurled stones towards the police and thereby caused hurt to the Deputy Tahsildar, D.S.P. Head Constable and six constables. Inspite of the warnings given by the police they did not stop the attacking and continuing their unlawful activities. So, after observing all the Legal formalities police used teargas shell, lathi charge finally opened firing with rubber bullets. In this regard on the basis of the complaint given by the D.S.P. Panruti a case was registered in Cr. No.257/2001 of Muthandikuppam Police Station u/s 147, 341, 332, 331, 307 IPC and 3 of Tamil Nadu Property (Prevention Damage and Loss) Act 1992 read with 149 IPC. It is submitted that the case was tried by the Assistant Sessions Judge, Panruti in S.C.No.278/2010, 87/2010 and all the accused were acquitted on 02.03.2011. It is submitted that the police discharged the duty to maintain the law and order and had not committed any atrocious against the petitioner and against the 59 people of the Perperiankuppam.
5.Heard Mr.K.Srinivasan, learned counsel appearing on behalf of the petitioner, Mr.R.Kumaravel, learned Additional Government Pleader appearing on behalf of the 1st and 2nd respondents and Mr.V.Meganathan, learned Government Advocate (Criminal Side) appearing on behalf of the 9/22 https://www.mhc.tn.gov.in/judis W.P.No.19500 of 2012 3rd and 4th respondents.
6.The learned counsel for the petitioner submitted that the petitioner was hardly eighteen years when this incident had taken place and he was falsely implicated in this case and shown as A59 in the criminal case.
Ultimately, the criminal case ended in acquittal through judgment in S.C.No.87 of 2010, dated 02.03.2011. The learned counsel further submitted that the petitioner was standing in front of his house and there was absolutely no authority for the police to open firing and the police failed to ensure/secure the life and liberty of the citizen which resulted in the petitioner suffering a virtual amputation of the hand above the wrist. As a result of the same, the petitioner had to undergo a major operation where the skin was taken from the waist and leg of the petitioner and that was used to join the amputed limb. According to the learned counsel for the petitioner, since the State failed to secure the life and limb of the citizen and the petitioner suffered heavily due to the same, the petitioner is entitled for payment of compensation by the State.
7.Per contra, the learned Additional Government Pleader appearing on behalf of the respondents submitted that the petitioner was one of the 10/22 https://www.mhc.tn.gov.in/judis W.P.No.19500 of 2012 accused persons in the criminal case and he chose to claim for compensation after the order of acquittal was passed by the trial Court. The learned Additional Government Pleader submitted that totally 63 persons joined together and formed an unlawful assembly and they were carrying dangerous weapons in their hand and they started pelting stones and attacking the police and revenue officials who are present in the spot. As a result, they caused injury to the Deputy Tahsildar, Deputy Superintendent of Police, Head Constable and nearly six constables. Since, the situation was going out of control, the police warned all those who were present in the scene of occurrence to stop attacking. However, the attack continued and the lathi charge and the tear gas shell was not enough to bring the situation under control and ultimately, the police had to resort to firing with rubber bullets. The learned Additional Government Pleader submitted that the police had to undertake this exercise in order to maintain the law and order and in order to bring the situation under control. It was therefore submitted that the injuries sustained by the petitioner cannot be attributed against the State and no compensation is payable to the petitioner. The learned Additional Government Pleader further submitted that all those who were injured at the time of the occurrence were paid compensation of a sum of Rs.10,000/- and the petitioner also received a compensation of a 11/22 https://www.mhc.tn.gov.in/judis W.P.No.19500 of 2012 sum of Rs.10,000/-. Beyond that the petitioner is not entitled for any compensation and therefore, the learned Additional Government Pleader sought for the dismissal of this writ petition. The learned Additional Government Pleader in order to substantiate his submissions, relied upon the judgment of the Full Bench in P.P.M.Thangaiah Nadar Firm, Rep. By its Partner T.P.Prakasam, Tuticorin and others vs. Government of Tamil Nadu, rep. By its Chief Secretary, Chennai and others reported in 2007 2 MLJ 685.
8.This Court has carefully considered the submissions made on either side and also the materials available on record.
9.In a case of this nature, the manner in which the Court has to exercise its jurisdiction under Article 226 of the Constitution of India has been spelt out by the Full Bench of this Court in the judgment relied upon by the learned Additional Government Pleader and which has been referred supra. For proper appreciation, the relevant portion in the Judgment is extracted hereunder:
38. Now the inevitable end of the journey or may be beginning of another. In view of the various decisions noticed 12/22 https://www.mhc.tn.gov.in/judis W.P.No.19500 of 2012 by us and many other decisions referred to in such decisions, the following conclusions can be reached. The State is not necessarily liable in every case where there is loss of life or damage to the property during rioting. Where, however, it is established that the officers of the State ordained with duty of maintaining law and order have failed to protect the life, liberty and property of person and such failure amounts to dereliction of duty, the State would be liable to pay compensation to the victim. Such liability can be enforced through Public Law remedy or Common Law remedy. Where, necessary facts to establish culpable negligence on the part of the officials are available, the High Court under Article 226 can issue appropriate direction. Where, however, the main aspect relating to culpable negligence of the officer is seriously disputed, filing of suit may be more appropriate remedy. No hard and fast rule can be laid down on these aspects and obviously the availability of remedy under Article 226 would depend upon the facts and circumstances of each case.
Compensation for loss to the property can also be claimed under Article 226 and merely because right to property has been deleted from the Chapter of Fundamental Rights and has been recognised as a Constitutional right, would not disentitle the High Court to examine that question in any appropriate case.
10.Per contra, the learned counsel for the petitioner relied upon the Judgment of this Court in S.Krishnaswamy vs. State of Tamil Nadu, 13/22 https://www.mhc.tn.gov.in/judis W.P.No.19500 of 2012 Rep. By the Secretary to Government, Home Department, Fort St. George, Chennai - 9 and others reported in 2016 5 CTC 70. The learned counsel by relying upon by this Judgment submitted that there was a similar riot in that case which resulted in a citizen sustaining serious injuries and he also lost his sight in the left eye and suffered 40% disability.
This Court on considering the Full Bench Judgment that was relied upon by the learned Additional Government Pleader, held that the compensation is payable on the ground that the State failed to secure and safeguard the life and limb of the citizen. The learned counsel in order to substantiate his submission, relied upon the relevant portions in the judgment which are extracted hereunder:
27. In the case on hand, the materials placed before this Court would clearly reveal that the State has given assurance that on the eve of Bandh, normal life will not be paralyzed and essential services will be properly maintained, based on which only the petitioner undertook the journey and on account of stone throwing by two persons on the eve of Bandh, he suffered grievous injuries which led to loss of vision on his left eye, broken jaws and blood clots for which he has undergone surgeries and incurred medical expenses and was also put to grave hardship, mental agony, pain and suffering. The prosecution launched against two persons by the State has 14/22 https://www.mhc.tn.gov.in/judis W.P.No.19500 of 2012 ended in acquittal and the State did not evince any interest to challenge the said order of acquittal passed by the trial Court and it has become final and therefore, this Court is of the considered opinion that the State is bound to compensate the petitioner for the agonies being undergone by him.
28. In T.Sekaran v. State of Tamil Nadu [2010 (1) CWC 455], a Division Bench of this Court has considered the quantum of compensation to the persons who suffered injuries and it is relevant to extract the para 51 of the said judgment:
"51. Once it is found that the family members of the victim are entitled to compensation, the next question to be considered is as to the quantum. There is no codified law, for arriving at the quantum of compensation in cases of this nature. Though special enactments such as the Motor Vehicles Act, 1988 and the Workmen's Compensation Act, 1948, provide lot of indications for arriving at the quantum of compensation, in cases to which they apply, there is no enactment to cover cases of this nature. Even the Fatal Accidents Act, 1855, does not provide adequate indications. The State of Kerala has a special enactment known as "The Kerala Torts (Miscellaneous Provisions) Act, 1976. But even the said Act, is primarily aimed at codifying the law relating to survival of causes of 15/22 https://www.mhc.tn.gov.in/judis W.P.No.19500 of 2012 action, liability of joint tortfeasors and the liability in cases of contributory negligence in respect of torts.
29. The petitioner, at the time of accident, was aged about 44 years and as per the certificates issued by Aravind Eye Hospital, Madurai, he lost the eye sight of his left eye and is having a disability of 40%. Series of medical bills enclosed in the typed set of documents would disclose that the petitioner had incurred a sum of Rs.55,000/- by way of medical expenses and as per his additional affidavit, he was admitted as an inpatient in Aravind Eye Hospital, Madurai from 02.07.2001 to 12.07.2001, followed by several other visits and short spells of treatment and also admitted as an in-patient in Sankara Hospital, Tiruppur from 15.07.2001 to 26.07.2001, 29.07.2001 to 12.08.2001 and 18.08.2001 to 08.09.2001 and therefore, he was admitted as an in-patient nearly for 55 days.
11.In the instant case, it is apparent from the records that on 08.11.2001, there was a major violence that took place due to a temple dispute between two villages. Nearly 63 persons were identified by the prosecution to have involved in arson and violence. Some of the revenue authorities and police personnel were also injured due to pelting of stones by the mob. The lathi charge and the tear gas shell was not enough to bring the situation under control and the police left with no other option 16/22 https://www.mhc.tn.gov.in/judis W.P.No.19500 of 2012 opened firing with rubber bullets. That was the only way in which the police were able to bring the situation under control. On investigation, a final report was ultimately laid as against 63 accused persons and the petitioner was arrayed as A59. After trial, the Sessions Court found that the prosecution was not able to prove the case beyond reasonable doubts and had acquitted the accused persons. This typically happens in all cases of violence and arson involving a mob and in most cases, the benefit of the doubt is given to the accused persons due to non-availability of strong material to convict them. On reading the judgment, it is clear that there was large scale violence that took place on the date of occurrence.
12.The limited issue that has to be considered by this Court is as to whether the State must be held liable to pay compensation to the petitioner due to its failure to safeguard the life and limb of the citizen. To consider the same, the clarity given by the Full Bench of this Court and which was relied upon by the learned Additional Government Pleader, assumes significance. The Full Bench after taking into consideration all the earlier judgments laid down that the State will not be necessarily liable in every case where there is a loss of life or injury sustained or there is damage to property during riot. It is only in those cases where it is established that the 17/22 https://www.mhc.tn.gov.in/judis W.P.No.19500 of 2012 officers of the State who are ordained with the duty of maintaining law and order have failed to protect the life and limb of the citizens and such failure will be treated as dereliction of duty and in those cases, the State would be liable to pay compensation. The Full Bench also expressed a word of caution while granting compensation in exercise of jurisdiction under Article 226 of the Constitution of India by stating that where there is a serious dispute on facts and it may involve appreciation of evidence, filing of a suit may be the most appropriate remedy and in such cases, the Court should not exercise its jurisdiction under Article 226 of the Constitution of India. This judgment of the Full Bench has to be kept in mind while dealing with the facts of the present case.
13.Insofar as the judgment that was relied upon by the learned counsel for the petitioner, that was a case where a bandh call was issued by a political party and inspite of the same, the normal activities resumed and as a result, there was a large scale violence and an unruly mob indulged in attacking persons and damaging properties. During this incident, the petitioner therein who was traveling in a State Transport Corporation bus sustained a serious injury in his left eye and suffered 40% disability.
It is under those circumstances, this Court held that the State 18/22 https://www.mhc.tn.gov.in/judis W.P.No.19500 of 2012 after having given an assurance that normal activities will not be paralyzed on the day when the bandh was called, failed to give proper protection to the citizens and as a result of the same, the petitioner sustained a serious injury and therefore, the Court held that the State failed in its obligation to protect the life and limb of the citizen and hence, awarded compensation.
14.In the present case, there was a wide spread violence between two villages due to temple dispute. The violence had to be brought under control and hence, the police were forced to resort to force. The police opened firing only as a last resort to bring the situation under control and unfortunately, during that point of time, the petitioner sustained a bullet injury in his palm. On the facts of the present case, the judgment that was relied upon by the learned counsel for the petitioner, will not come to his aid. This is a case where this Court has to merely see if the injury was sustained by the petitioner due to the culpable negligence on the part of the officials. Such a finding cannot be rendered in this writ petition, since the police are ordained to maintain the law and order and for performing that duty, sometimes an extreme situation may arise where they have to resort to force. That may even go to the extent of opening firing and it goes without saying that, that is the last resort that is applied by the police to 19/22 https://www.mhc.tn.gov.in/judis W.P.No.19500 of 2012 bring the situation under control. In the facts of the present case, the police had to resort to open firing, since the mob started attacking the revenue officials and the police. Under such circumstances, it was quite unfortunate that the petitioner sustained injuries but that cannot be held to be as a result of any culpable negligence on the part of the police. It was a sheer accident that was bound to take place under such circumstances where the police resort to open firing. It cannot be held to be a dereliction of duty or the failure of the State to safeguard the life and limb of the citizens. Infact, the force itself was used only with a view to being the situation under control and to save the life, limb and property of a large population belonging to both the villages.
15.In view of the above discussion, after taking into consideration the facts and circumstances of the present case and after carefully understanding the scope of the judgment of the Full Bench, this Court holds that this is a case which will not fall within the category of the State failing to safeguard the life and limb of a citizen and as a result of the same, no culpable negligence can be attributed to the officials acting on behalf of the State and consequently, the petitioner will not be entitled to claim any compensation against the State.
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16.In the result, this writ petition stands dismissed. No costs.
10.08.2022
Internet : Yes
Index : Yes
Speaking Order / Non Speaking Order
ssr
To
1.The Secretary Home Department,
Secretariat,
Saint George Fort,
Chennai – 600 009.
2.The Director General of Police,
Kamarajar Salai,
Chennai – 600 005.
3.The Superintendent of Police,
Cuddalore District,
Cuddalore – 1.
4.The Inspector of Police,
Muthandikuppam Police Station,
Cuddalore District.
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W.P.No.19500 of 2012
N. ANAND VENKATESH, J.
ssr
W.P.No.19500 of 2012
10.08.2022
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