Gauhati High Court
Nangkhujam Mungsong And Anr. vs Smt. Thokchom Ongbi Gambhini Devi on 29 November, 2006
Equivalent citations: 2007CRILJ1491
JUDGMENT B.D. Agarwal, J.
1. The appellants are Police Officers. At the relevant time the 1st appellant, namely, Shri Nangkhujam Mungsong, was the Officer in charge of the Lamlai Police Station and the 2nd appellant, Shri Takheliambam Ibobi Singh was the armed Police Constable. In the year 1983 a case of Kidnapping a minor girl was registered against the deceased namely, Thokchom Tomba Singh, being Lamlai PS Case No. 24(6)83 under Section 366/34 of the IPC. On 13-6-1983 the Officer-in-charge of the Lamlai PS accompanied by 4 (four) police constables went to apprehend the accused/deceased, Th. Tomba Singh, in his village in connection with kidnapping case. However, seeing the police personnel, the deceased attempted to flee away from the scene. With a view to apprehend the accused the Police Constables chased the boy and all of a sudden fired few gun shots. Unfortunately, one bullet hit the accused and he was injured. Thereafter, the accused was taken to the hospital where he succumbed to the injuries.
2. Since the accused died in a police action the SDPO of the area suo motu registered a criminal case against the Officer-in-charge of the Lamlai P. S. and Constable, Chandramani Singh under Section 304-A IPC. The said case was registereds Lamlai PS Case No. 25(6) 83, after investigation charge sheet was laid against the Officer-in-charge and the said Police Constable. However, the Officer-in-Charge i.e. appellant No. l was discharged, whereas the police constable was acquitted after trial.
3. In the meanwhile, the mother of the deceased, Smt. Thokchom Ongbi Gambhlni Devi filed a civil suit in the Court of the Subordinate Judge, which was registered as Original (Money) Suit No. 3 of 1985. Subsequently, the said suit was transferred to the Court of the Additional District Judge (Fast Track Court), Manipur East, whereupon the case was renumbered as 31/02. In the said Money Suit the State of Manipur as well as all the 5 (five) Police Officers were made defendants. The plaintiff prayed for a compensation of Rs. 5 lakhs. The learned Additional District Judge has awarded the said amount, albeit, the decree is only against the defendant Nos. 2, 3, 4, 5 and 6 jointly and severally. The State was not made vicariously liable to indemnify the Police Officers. Being aggrieved with this judgment and decree, only two defendants, i.e. defendant Nos. 2 and 6 have preferred this appeal. The other defendants did not challenge the impugned judgment. However, the remaining defendants, including the State have been made proforma respondents in the present appeal.
4. I have heard Mr. T. Rajendro, learned Counsel for the appellants. The principal respondent has been represented by Mr. Kh. Mani Singh and the State of Manipur has been represented by Md. Jalal Uddin, learned GA. I have also perused the impugned judgment as well as the pleadings of both the parties and evidence of witnesses.
5. The admitted facts are that the deceased was an accused in a case of kidnapping. It is not disputed that at the relevant time the appellants were public servants. It is also undisputed that the appellants and other constables had gone to apprehend the deceased to book him in the criminal case. One of the disputes raised by the defendants in their written statement was that when the police officers chased the deceased, he entered a nearby hillock. Subsequently, the accused was found in injured condition. In the other words, the defendants, including the State took the plea that the deceased was not killed by the police officers.
6. The relevant part of the pleading made in the written statement of the State, i.e. the defendant No. 1 are necessary to be reproduced herein below to effectively decide the appeal.
3...
(a) Late Thokchom Tomba Singh was an accused person named in the FIR Case No. 24(6)83 of Lamlai Police Station Under Section 366/ 34 IPC read with Section 25(1)(a) Arms Act. On 13-6-1983 at about 4 p.m. a police party of Lamlai Police Station led by Inspector Nangkhujam Mungsong who was the Investigation Officer of the case and also the Officer-in-charge of Lamlai P. S. (the defendant No. 2) along with Naik Hemochandra Singh Police constable Shri Chandramani Singh, const. Amuba Singh and const. Ibobi Singh, defendants No. 3, 4, 5 and 6 respectively proceeded towards Uyumpok for the investigation of the case referred to above and to arrest the accused persons. On reaching the village, the O.C. confirmed that the accused Thokchom Tomba Singh had already proceeded towards a nearby hillock through village route. Accordingly the OC and his party pursued the accused. Th. Tomba Singh. After proceeding about 2 kms., the Police Party noticed the accused Th. Tomba Singh fleeing towards hillock side. The Police party made a hot chase and he was finally apprehended and he was found with a bullet injury. He was immediately brought to the hospital by the Police party for his medical treatment but he succumbed to the injury he received on the way to hospital. The place where the occurrence took place was within the Manipur Central District which was declared as disturbed area vide Govt. of Manipur Home Department Notification No. 7/20/67-POL(Pt) dated the 8th Sept., 1980.
(b) Shri Namoijam Shyamkishore Singh, SDPO Singjamei got the information of the death of accused Tomba Singh and From his source he registered one case suo motu being FIR Case No. 25(6)83 Lamphel Police Station Under Section 304-A IPC against 1. Inspector Ningkhojam and constable Chandramam Singh and the said case was charge sheeted and Inspector Ningkhojam and Constable Chandramani Singh were tried by the Ld. JMIC Imphal Manipur. During the trial Inspector Ningkhojam was discharged from the charges leveled against him and the defendant No. 4 constable Chandramani Singh was also acquitted on the ground that there was no evidence to prove that constable Chandramani had fired to the deceased Th. Tomba Singh.
7. The State of Manipur also took the plea that even if it is held that Th. Tomba Singh was killed by the defendant Nos. 2 to 6, the State was not liable to pay any damages, as the said act was not done in exercise of sovereign powers. On the other hand, it was the plea of the defendant Nos. 2 to 6 that they are not liable to pay damages for the acts done by them in exercise of the delegated sovereign powers. To establish her case, the plaintiff examined altogether 5 (five) witnesses. On the other hand, the State also examined 2 (two) witnesses. On the basis of evidence of both the parties, the learned Trial Judge has held that the Police Officers acted beyond the powers conferred upon them under Section 46 Cr. P.C. and as such, the State is not duty bound to indemnify the erring police officers. With this finding the entire amount of compensation has been directed to be paid jointly or severally by the police officers.
8. After going through the evidence on record, I find that the plaintiffs witnesses, have given different versions regarding the circumstances in which the deceased was killed. However, all the witnesses have at least, given consistent version that the deceased was followed by the police constables and soon thereafter, Th. Tomba Singh was found in injured condition. Out of the five witnesses, PW No. 1 is the Village Sarpanch. He being an independent witness, the Court can rely upon the testimony given by him. This witness has also deposed that he saw two police constables chasing the deceased shouting to stop him. Within moments, PW No. 1 also heard sounds of few gunshots. Thereafter, in his presence the injured was brought from the hillock to the main road. The evidence of the witnesses is sufficient to presume that the accused was injured in police firing. However, PW No. 1 has categorically stated that at that point of time the Officer-in-Charge of the Lamlai PS (appellant No. 1) was seen standing near his jeep. in this way the appellant No. 1 did not take part in shooting down the boy. However, the Court may presume that the Police Constables must have acted and fired upon the deceased under the command of the Officer-in-Charge. I do not deem it necessary to discuss this aspect in detail since the defendants failed to prove in the Trial Court that some other persons other than the police constables must have killed the deceased. In the charge-sheet submitted from Lamlai PS, two police officers were also challaned under Section 304-A, I.P.C. Hence I affirm the finding of the Trial Court that the deceased died in police firing.
9. Now the pertinent question is whether the plaintiff/respondent No. 1 is legally entitled to get the compensation in Private Law. There are umpteen numbers of cases from the Hon'ble Apex Court as well as from this Court, wherein it has been held that the victims are entitled to get compensation both under the Public Law as well as under the Private Law. This right flows from Article 21 of the Constitution of India.
10. Without multiplying the authorities, I would only refer to the internationally celebrated case of D.K. Basu v. State of West Bengal . In this case, their Lordships have enunciated the following principles of law regarding awarding of monetary compensation in the matter of infringement of fundamental right of life and for violation of human rights etc. The relevant legal principles enunciated by the Apex Court are extracted below:
55. Thus, to sum up, it is now a well accepted proposition in most of the jurisdiction, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the Criminal Courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortuous act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.
10A. In view of the law laid down by the Apex Court there can be no doubt that the plaintiff is entitled to compensation both in public law as well as in private law. In the present case, the plaintiff has instituted a civil suit and has obtained a decree in her favour.
11. The next question that falls for determination is whether the liability can be fastened to the State absolving the police officers from their liability. Shri T. Rajendro, learned Counsel for the appellants submitted that since the appellants were on official duty, they cannot be held personally liable for the said action done in good faith. According to the learned Counsel the boy was not killed with any malice or mala fide intention. According to the learned Counsel, the police had to fire to prevent the accused absconding, who was also a surrendered militant. Citing judgment of this Court rendered in the case of (1) Jinna Abdur Rahim v. State of Assam 2002 (3) GLT 498 (2) Maheela Moran and Anr. v. State of Assam 2000 (2) GLT 504 and (3) Smt. Kamini Bala Talukdar v. State of Assam and Ors. 1997 (1) GLT 333 : 1997 Cri LJ 874, the learned Counsel for the appellants submitted that adopting the same principle the State should be made liable to pay compensation.
12. Per contra, Mr. Jalal Uddin, learned GA submitted that since the police officers acted irrationally and beyond the statutory powers, the State is not obliged to indemnify the officers liability. The learned GA gave much stress to Section 46(3) of the Cr. P.C. to buttress his argument that the police officers acted beyond their Jurisdiction and as such they are personally liable to pay compensation.
12A. For better appreciation of the submission as well as the question involved, it would be just and proper to reproduce Section 46 of the Code of Criminal Procedure, which runs as follows:
46. Arrest how made--
(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
(4) xxx xxx xxx
13. Admittedly only a case of kidnapping a girl was registered against the deceased. In other words, offence under Section 366, I. P.C. does not attract punishment of death or life imprisonment. According to the learned GA the extreme action causing death of a person is permissible if the said person faces a serious criminal charge which may invite sentence of death or imprisonment for life as has been laid down under Section 46(3), Cr. P.C. While approving the submission of learned GA, I would further add that no law in a democratic and civilized society would permit causing death of any person, irrespective of the gravity of offence and criminal charges. To say it differently, the power of causing death of a person in the name of maintenance of rule of law, far less for the purpose of apprehending any alleged offender, cannot be approved. Such an act can be legally condoned, if it is shown that the said act was done in good faith and under extreme compelling circumstances. At the same time, Sub-section (2) of Section 46, Cr. P.C. authorizes the Police Officer to use force to apprehend the person who attempts to evade the arrest. In the present case, the State itself has admitted the fact that the deceased was a surrendered militant. Besides this, serious case of kidnapping of a minor girl was also registered against him. Hence, apparently, the deceased was not a law-abiding citizen and there was every possibility of his absconding, had the police officers not resorted to firing.
14. Above apart, the evidence is clear enough to prove that the deceased was not killed inside his dwelling house. Evidence confirms that the police officers had to fire gunshots when the deceased attempted to flee away and that too after a hot chase. It is said that once a bullet comes out of the weapon the bullet does not remain in the control of the firer, it may hit as well as miss the target or it may also cause physical injury to a third person. I have already said earlier that there is no evidence to take a view that the police officers had any malice or enmity against the deceased. Hence, firing of gunshots appears to have been done in good faith. They must not have the intention to kill the person, who incidentally received only one bullet on the backside (as per the statement of Ld. GA).
14-A. The other peculiar features of this case are that the State of Manipur is taking different and conflicting stands. In one stroke it is said that the police officers acted irrationally, whimsically and illegally but at the same time, the learned GA could not place any document to show that any departmental action was taken against any of the police officers, I take judicial notice of the fact that at the relevant time appellant No. 1 was Inspector of Police. However, during the pendency of the suit the said officer was promoted to the rank of DSP. If the submission of the learned GA is accepted that the police officers grossly acted against the law, some sort of departmental punitive action ought to have been taken against them. In other words, exonerating the police officers from their alleged wrong acts indicates that the State has also recognized/accepted that action of firing was done in good faith and under the prevailing circumstances it was justified.
15. The learned GA has also taken another plea that in the memo of appeal the appellants have not made any prayer to direct the impugned decree against the State and, as such, this Court is not competent to modify the decree. However, the learned Counsel for the appellants submitted that the averments and grounds of appeal clearly show that the prayer was so made. I find that in ground No. 3 the appellants have cited the judgment of the Apex Court given in the case of D.K. Basu (supra) and have also pleaded that the appellants, who are police personnel, are not liable to pay compensation for the acts done on duty. It is true that no specific averment has been made that the appellants should be indemnified by the State but the wordings of the pleadings are fully pregnant with such a plea.
16. Mr. Kh. Mani Singh, learned Counsel for the principal respondent also supported the appellants in this regard. According to the learned Counsel, this Court is fully empowered to modify the decree in exercise of powers given under Order XLI, Rule 33 of the C.P.C. In my considered opinion, the appellate Court has the co-extensive power with that of the original Court and as such there can be no difficulty to suitably mould the decree. Besides this, help of the statutory illustration given in Rule 33 of Order XLI can also be taken. The illustration is quoted below:
A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X, appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y.
17. In the present case the State of Manipur was a principal defendant in the. Original Suit. In other words, the compensation was sought for jointly and severally from the State and other defendants. In the appeal also, the State has been made a party, albeit as a proforma respondent. In my considered opinion, making the State as proforma respondent has not materially changed the situation.
18. The learned GA also submitted that the State can be held liable only when death of a person is caused in police custody. I am not prepared to accept this submission. In the case of Smt. Nilabati Behera alias Lalita Behera v. State of Orissa and Ors. the compensation was awarded against the State when the deceased was found killed on a railway track. It is true that initially the accused was apprehended by police. However, fact remains that at the relevant time the dead body was found on the railway track and not in police custody. Similarly in the case of Smt. Kamini Bala Talukdar v. State of Assam and Ors. (supra) compensation was awarded against the State when a person was killed in exchange of fire. Again in the case of Jagat Dhar Sarma v. State of Assam and Ors. , the Gauhati High Court awarded compensation, which was made payable by the State, in a situation where a stranger was killed on the street by the police officer. In my considered opinion, it is not sine qua non that the death of person must take place in actual police custody to make the State liable to pay compensation, indemnifying its officers. To say it differently, if any Govt. servant is found involved in the death of a person in violation of law, the State is bound to pay compensation to the victim family at the first instance. Subsequently, the compensation amount may be recovered from the erring servant. In the case before me admittedly the appellants were public servants and they committed the alleged offence whilst on duty. Hence I hold that it is a fit case wherein compensation should be paid by the State.
19. Coming to the quantum of compensation I find that according to the plaintiff her son was earning in between Rs. 2000/-to Rs. 3000/- per month from cultivation. Few witnesses have deposed that the deceased was unemployed. Admittedly, there was no conclusive evidence of earning of the deceased. Be that as it may, the deceased was a young boy of 25 years. Hence, even in the absence of proof of income, the future dependency of the plaintiff cannot be totally denied. Loss of an adult son of the plaintiff is another aspect. At the same time, the incident took place in the year, 1983. Hence I am not persuaded to reduce the amount of compensation after 22 years. In other words, the amount of compensation of Rs. 5 lakhs is hereby maintained. However, it is made clear that the plaintiff/respondent No. 1 shall not be entitled to any interest thereon till date. The State is directed to make the aforesaid payment within 3 (three) months from today. If the payment is not made within this period, the amount shall carry interest at the rate of 6% from today.
20. In the result, the appeal stands allowed. The impugned judgment and decree is modified to the extent indicated in the preceding paragraphs.
Return the LCR with the copy of this judgment and order.