Madhya Pradesh High Court
Brijendra Thakur vs State Of Madhya Pradesh And Ors. on 22 August, 2005
Equivalent citations: 2006ACJ2262, AIR2006MP28, 2005(4)MPHT260, AIR 2006 MADHYA PRADESH 28, 2006 (1) ALL LJ EE 7, 2006 (1) AJHAR (NOC) 288 (MP), (2006) 1 JAB LJ 31, (2006) 1 MPLJ 90, (2006) 1 RECCRIR 761, (2005) 4 MPHT 260, (2006) 4 ACJ 2262
Author: Dipak Misra
Bench: R.V. Raveendran, Chief Justice, Dipak Misra
ORDER Dipak Misra, J.
1. Noble Prize Winner Poetess Gabriela Mistral of Chile while speaking about the faults committed by society as regard the children spoke thus :--
"We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the fountain of life. Many of the things we need can wait, the Child can not. Right now is the time his bones are being formed, his blood is being made and his senses are being developed. To him we can not answer Tomorrow. His name is To-day."
The Apex Court in the case of M.C. Mehta v. State of Tamil Nadu, , while speaking about the obligation of the State and Society towards the children in the Indian ethos quoted a stanza which reads thus :--
"I am the child.
All the world waits for my coming.
All the earth watches with interest to see what I shall become.
Civilization hangs in the balance, For what I am, the world of tomorrow will be.
I am the child, You hold in your hand my destiny.
You determine, largely, whether I shall succeed or fail;
Give me, I pray you, these things that make for happiness.
Train me, I beg you, that I may be a blessing to the world."
(Mamie Gene Cole) Long back John Ruskin had expressed his view as under :--
"I hold it for indisputable, that the first duty of a State is to see that every child born therein shall be well housed, clothed, fed and educated, till it attains year of discretion."
We have reproduced from the thoughts of the great poets, jurists and thinkers relating to a concept of child and the collective responsibility towards the child, as a child fundamentally is the treasure of the future and has the potentiality to shine despite the antagonism of the clouds and accomplishes things which makes a civilisation a sustained one. But, the great populace of India can not totally depend upon the potential propensity of a child, for a child may cry that he is the future and if he is dying there is no possibility of future. Therefore, the State, the society, and the collective at large have the sacrosanct duty to inject the kinetic dynamics to a child-to make him grow to live, to erode the clouds, ostracize the antagonism, develop empathy and usher in the laser-beam of culture and civilisation in a well organised society. In the name of control of law and order situation, it can not exceed its power by taking recourse to uncalled for and unwarranted acts to unceremoniously crush the tolerance capacity of the collective. The State can not take advantage of the poor strata of the society who are not well-equipped to fight against the City Halls. The State can not afford to nasalize and choke the voice of the unknown because they can not articulate their grievance adequately. It would be an anathema to proclaim 'He speaketh too much'. We are compelled to say so as such an act would only intensify the grief and danger and may in the ultimate eventuate cause social tribulations and give rise to mild concavity having the effect-potentiality of causing earthquakes in a democratic body policy. The State can not afford to bid good bye to the children, for such farewell frenzy would not only jettison the conception of accountability but also compel and constrain the nation to go for a constant mourning in the silence and stillness of shock. The constitutional safeguards for a child is for more than what is available to an adult.
2. We have begun with the aforesaid prefatory note as the case at hand depicts a sad incident by which the lief spark of a seven year old child got extinguished and life span of a seventeen year old boy got curtailed. Should the State's conception and vision of handling a law and order situation allowing to blow the unkind wind of winter bringing a cataclysm and catastrophe to the families, go unnoticed and un-remedied ?
3. The crucial question that arises for consideration is whether the death caused in the name of law and order is justified ? Was it imperatively necessitous ? Was it avoidable or was it an act of gross negligence ? Be it placed on record that we are only adverting and dwelling upon the two deaths that we have been referred to above as in the latter part of the decision we will clarify why we have thought to do so, albeit, the prayer in the writ petition is different, endeavoring to paint a larger canvass and graze in a different pasture invoking inherent and extra-ordinary jurisdiction of this Court to the extent of issue of a writ of mandamus for setting a commission being headed by a retired High Court Judge. At the very out set we think it condign to state that we are not disposed to allow the aforesaid prayer of the petitioner but we can not repel the prayer of the learned Counsel for the petitioner for moulding the relief clause for grant of compensation to the bereaved legal representatives of the deceased persons in a litigation of this nature and accordingly we proceed to uncurtain the facts that have been adumbrated in the petition.
4. The petitioner, a journalist, describing himself as a pro bono publico is aggrieved with the incident that took place on 15-3-2005. As pleaded, one Makkhan Lambardar @ Krishnakant was sought dead by one Dharmendra Rathore who was a relative of the Jail Minister, State of M.P. He was taken into custody for offences punishable under Sections 302 and 364 of the Indian Penal Code (for short TPC). The residents of the village of Krishnakant being agitated by the act of Dharmendra Rathore demanded the resignation of the Minister. The police registered an FIR against number of persons forming the subject matter of Crime No. 92/05 on the foundation that they have created 'Chakka jam' and created obstruction. The said blocking of the traffic was led by Ram Rakshpal Singh. His name did not feature in the FIR. The Additional Collector and the Additional Superintendent of Police came to village to receive the written representation from the public and while they were returning public pelted stones on their vehicles which gave rise to Crime No. 93/05 for various offences. As set forth, the situation got galvanized and public started pelting stones on the police station and their vehicles. It gave rise to Crime 94/05. On the said date at 3:45 p.m. an information was received that a boy was lying injured near the school and ultimately he breathed his last and offence punishable under Sections 302, 147, 148 and 149 of IPC were registered against unknown persons. As perceptible for the writ petition a young lad, namely, Anket Gupta was shot dead on the top of his house. Various crime numbers have been referred to highlight that there was total chaos and police atrocities were totally beyond comprehension inasmuch as the dead body of Anket Gupta was cremated on the next date at 25 k.m. away despite the unwillingness of his relatives. It is also putforth that despite the representation being made the authorities have given a clean chit to the police. It is averred that law and order situation was not so bad to take such devastating action as the same could have been controlled by way of tear gas and taking further recourse to mild 'lathi' charge before opening of firing. Criticism has been advanced with regard to the action of the police an the role played by the political high-ups. In this back drop prayer has been made to issue of a direction to CBI to investigate in the crime in question and for directing judicial inquiry by a retired High Court judge and to pass such other order/orders as may be deemed fit and necessary in the facts and circumstances of the case.
5, A counter affidavit has been filed by the respondents contending, inter alia, that the petitioner has no public interest as he is not fighting for the public interest; that investigation has been done completely without any kind of favour or discrimination; that inquiry commission has conducted the inquiry after giving full notice and time to the public by recording their evidence and perusing the documents; that in the instant case the Sub-District Magistrate, Additional Superintendent of Police, the Town Inspector, Head Constable and other sustained injuries and the public had become unruly and violent that it was extremely difficult to control the public by small number of the police force; that an endeavour was made by the Police to control the public by firing tear gas cells and light 'lathi' charge but the number of public was more than 500 equipped with fire arms and lathis and started pelting stones over the police station. It is also setforth in the return that the public broke the furniture and mirror and set fire to the vehicles standing at the police station. It is also pleaded that the SDM, Banda granted permission to open fire with the intention to disperse the mob and to bring the situation under control. It is also averred that the fire arms were opened by both the sides and in this incident one Honey @ Anket aged about 8 years and Pappuaged about 17 died. It is denied in the return that the cremation of Anket Gupta was performed in Village Makronia under the force of police but was done as the family members of Anket voluntarily decided for cremation of Anket in Makronia and there is no justification in directing any further inquiry inasmuch the one man commission has already submitted a report as contained in Annexures R-10 and R- 11 which has got the truth revealed and further suggested future course of action.
6. We have carefully perused the pleadings of the parties. The Commission has categorically and unequivocally recorded a finding that the deceased persons had died due to the police firing. We may note a contention of Mr. Ruprah, learned Additional Advocate General which has been urged with immense vehemence that there was firing from both the sides and hence, it can not be said with certitude that how the deceased persons were injured and eventually succumbed to the same. The aforesaid proponement is noted to be rejected since the inquiry report clearly states that they breathed their last because of police firing.
7. We have already enumerated earlier what we are not disposed to direct any further inquiry or set up a judicial commission. We are only disposed to address ourselves with regard to grant of compensation to the legal representatives of the deceased persons. We may hasten to state that it is inconceivable that a seven year old child would be pelting stones at the police or in a way acting to endanger them. Be it noted that in the fact finding inquiry it has come up that he was standing on the terrace. The same is due to curiosity. His standing on the terrace to watch the mob was totally accidental and in a way absolutely innocent. The one man commission has not put the blame on the child. Similarly, no blame has been put on the 17 years old boy. The police had opened fire arms to dispurse the crowd. It is submitted by Mr. Umesh Trivedi, learned Counsel for the petitioner that the police could have been more circumspect in opening fire arms and ought not to have targeted the child and the young boy who had nothing to do with the occurrence. It is canvassed by him that the recklessness and negligence of the police is writ large as there was no blank firing in proper sense to create a fear in the mob but the firing was done in a state of vengeance as a consequence of which innocent children lost their life spark.
8. The seminal question that falls for consideration is whether the action of the police qua two deceased persons is just and proper. We may repeat at the cost of the repetition that we do not intent to dwell upon and deal with various allegations made in the petition and series of FIRs lodged for launching of criminal action and the propriety of the same, but we are inclined to delve into the action of the police which resulted in the death of deceased persons. In our considered view the death had occurred due to recklessness of the police. There might have been need and necessity for dispersing the unruly mob to bring the situation under control, but it create a sense of perplexity in the mind of a prudent person how a young child standing on the terrace and young boy not a part of the active mob would invite the wrath of death in the name of maintenance of law and order. Because of this obtaining fact situation the public law remedy comes into play as there is a violation of human rights. In this context, we may profitably refer to the decision rendered in the case of Nilabati Behera v. State of Orissa and Ors., , wherein the Apex Court ruled thus :--
"A claim in public law for compensation for contravention of human right 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."
After so stating Their Lordships proceeded to observe as under :--
"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 justified 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 rights is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution."
In the said case Justice A.S. Anand (as His Lordship then was) in his concurring opinion expressed the view in the following terms :--
"The public law proceedings serve a different purpose than the private law proceedings. The relief for monetary compensation, as exemplary damages, in proceedings under Article 32 by or under Article 226, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interest as and preserve their rights. Therefore, when the Court moulds the relief by granting compensation in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it, does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making monetary amends under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of exemplary damages awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a Court of competent jurisdiction or/and prosecute the offender under the penal law."
9. A this stage we may usefully state that in the said decision Their Lordships have clearly held that the High Court is the protector of civil liberties of the citizen and has the jurisdiction under Article 226 of the Constitution of India to grant relief to victim or the heirs of the victim whose fundamental rights under Article 21 of the Constitution are established have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the rights of the citizen to the remedy by way of a civil suit or criminal proceedings. It has been further expressed therein that in doing so the Courts take into account not only the interest of the applicant and the respondent but also the interest of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned. Thus, in the aforesaid case the Apex Court has laid that legal heirs of a victim have a right to get compensation and officials have to perform their public duties properly. Special emphasis has been laid where fundamental rights of a citizen under Article 21 are concerned. In said case Their Lordships have further ruled as follows :--
"If the guarantee that deprivation of life and personal liberty can not be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have-nots, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate."
10. In the case of D.K. Basu v. State of West Bengal, , it has been held as under :--
"9. The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the citizens...."
In the said case it was further held as under :--
"44. The claim in public law for compensation for unconstitutional deprivation of fundamental rights to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen."
11. The obtaining factual matrix has to be tested on the touchstone and anvil of the aforesaid pronouncements. In the case at hand the lives of a child and a young boy have been lost because of improper exercise of powers of police authorities.
12. Mr. Ruprah, learned Additional Advocate General, would contend that there can not be grant of compensation, for there has been no custodial violence. The custodial violence stands on a different footing. It is in a different spectrum. Every violence need not be custodial violence. Prismatic view may be different. As has been indicated earlier, in the case of Nilabati Behera (supra) the Apex Court has held that public duty has to be done properly particularly when fundamental right of a citizen under Article 21 is concerned. Here by the police firing a child standing on the terrace lost his life and a young boy trying to fetch water got injured and eventually his life vanished like the foam of the sea. Under these circumstances we have no scintilla of doubt that compensation can be granted. That being the inevitable conclusion we proceed to quantify the quantum. We do not intend to draw any difference between the two deaths inasmuch as both were innocents and both were victims of circumstances.
13. In view of the aforesaid we think that payment of compensation of Rs. 2,00,000/- in respect of each death would be proper. The respondents shall pay the said sum (less any ad hoc compensation, if any, already paid) to the parents of the deceased. The fourth respondent shall identify the parents and hand over the amount to be made available by the first respondent to the parents within an period of two months from the date of receipt of this order. The compliance report shall be filed within four months from today.
14. In this regard we may fruitfully refer to Para 24 of the case of Nilabati Behera (supra):--
"24. Accordingly, we direct the respondent State of Orissa to pay the sum of Rs. 1,50,000 to the petitioner and a further sum of Rs. 10,000 as costs to be paid to the Supreme Court Legal Aid Committee. The mode of payment of Rs. 1,50,000 to the petitioner would be, by making a term deposit of that amount in a scheduled bank in the petitioner's name for a period of three years, during which she would receive only the interest payable thereon, the principal amount being payable to her on expiry of the term. The Collector of the District will take the necessary steps in this behalf, and report compliance to the Registrar (Judicial) of this Court within three months."
In view of the aforesaid, we direct that the amount of compensation shall be kept in a fixed deposit in a scheduled bank in the name of both the parents of each of the deceased and in the absence of any of the parents in the name of surviving parent for a period of five years during which they would receive the interest payable thereon. The principal amount would be paid after the expiry of the term.
15. Before parting with the case we are reminded of few lines from Regum Utimo Ratio, a poem written about the death of a small child in 1939 by Stephen Spender:
"Consider : only one bullet in ten thousand kills a man.
Ask : was so much expenditure justified On the death of one so young and so silly Stretched under the olive trees, Oh, World, Oh, death ?"
After reproducing the aforesaid sensitive lines, we say no more.
16. The writ petition is accordingly disposed of. There shall be no order as to costs of the writ petition.