Punjab-Haryana High Court
Bimla Devi & Ors vs State Of Haryana & Ors on 18 November, 2014
Author: Raj Mohan Singh
Bench: Surya Kant, Raj Mohan Singh
LPA No.1749 of 2014 1
In the High Court of Punjab and Haryana at Chandigarh
LPA No.1749 of 2014
Date of decision: 18.11.2014
Bimla Devi ......Appellant
Versus
State of Haryana and others .......Respondents
CORAM: HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present: Mrs.Kiran Bala Jain, Advocate,
for the appellants.
****
Raj Mohan Singh, J.
This Letters Patent Appeal has been filed against the judgment dated 15.7.2014, passed by the learned Single Judge, whereby, claim of the appellants, in the context of damages on account of death of Kuldeep Singh, has been dismissed.
Brief facts of the case are that Kuldeep Singh, aged 40 years (as on the date of filing of the writ petition) was a transporter by vocation and he had gone to Bharatpur to attend the marriage of his relative. On his way back to Ambala on 1.2.1998, his bus was stuck in a traffic jam on account of protest by the locals in respect of brutal killing of one canter driver, namely, Satpal. The protest of agitated mob led to traffic jam, resulting in halting of the bus in which aforesaid Kuldeep Singh was travelling. As per the facts pleaded by the appellants, the police opened tear gass shell as well as lathi charge on the public so gathered on the G.T.Road, Samalkha. ANITA DEVI 2014.11.26 15:56 I attest to the accuracy and integrity of this document Chandigarh LPA No.1749 of 2014 2 Kuldeep Singh had alighted the bus and was entangled in the mob and was found dead in front of the office of Bhartiya Janta Party, where one Raghubir Singh saw him lying dead on the rallying and accordingly, informed the police. According to the appellants, Kuldeep Singh got down from the bus in order to get another vehicle to reach Ambala. The police broke glasses of the vehicles and threw stones on the public and also opened tear gas shell and lathi charge on the public. This sudden act of the police, ultimately, caused panic amongst the people and they started running, which also made Kuldeep Singh to run along with his attachi. This disorder (created panic) coupled with polluted atmosphere, led to the death of Kuldeep Singh on the G.T.Road, Smalkha. The occurrence allegedly took place at about 4.00 P.M. and the dead body of Kuldeep Singh remained lying on the spot for more than two hours.
The police lodged FIR No.43 dated 2.2.1998 against erring police officials for the offence under Sections 302/34 IPC for causing murder of canter driver Satpal. Two police officials, namely Jai Pal and Charanjit Singh were arrested in the said case. The family of Satpal was paid the interim relief by the Government to the tune of ` 1,10,000/- and the episode was widely covered by the local and national newspapers.
The appellant-claimants, thus, sought compensation/ damages to the tune of ` 20,00,000/- on account of death of Kuldeep Singh on the G.T.Road, attributing negligence and tortious liability of the State on account of breach of duty. The claim of the ANITA DEVI appellants is based upon the coverage of the press-release made by 2014.11.26 15:56 I attest to the accuracy and integrity of this document Chandigarh LPA No.1749 of 2014 3 P.P.Kapur, District Convenor of Naujwan Bharat Sabha, Samalkha, who ventilated the factum of death of Kuldeep Singh allegedly on account of tear gas shelling and lathi charge opened by the police. According to the appellants, necessary information was initially given by Raghubir Singh, who informed the police by saying that he saw a person lying dead along with rallying and he does not know how the man had died. The police thereafter verified the facts and opined that no cognizable action was involved and after necessary compliance, submitted the report to higher officers. The matter was highlighted in news papers dated 2.2.1998 in respect of brutal killing of Satpal and a reference was also made that one person had died in stampede. Thereafter, the matter was taken up by P.P.Kapur, District Convenor of Naujwan Bharat Sabha, Samalkha, against whom, FIR No. 47 dated 1.2.1998, under Section 148/ 149/ 332/ 353/ 341/ 436/ 427 IPC was registered and he was arrested also. In fact, he was stated to be the main preparator/ instigator for the public to break glass pans and putting the vehicles on fire. The aforesaid P.P.Kapur lodged a complaint before the National Human Rights Commission highlighting the background in which FIR No.43 dated 2.2.1998 came to be recorded in the context of murder of Satpal and also in connection of death of Kuldeep Singh, allegedly on account of lathi charge opened by the police.
The National Human Rights Commission invited the report from the Director General of Police, Haryana on the aforesaid complaint dated 24.2.1998. The Director General of Police, Haryana ANITA DEVI submitted his fact finding report claiming that the complainant 2014.11.26 15:56 I attest to the accuracy and integrity of this document Chandigarh LPA No.1749 of 2014 4 P.P.Kapur was involved in FIR No.47 dated 1.2.1998 under Section 148/ 149/ 332/ 353/ 341/ 436/ 427 IPC, registered in police station Samalkha and the complaint before Human Right Commission was filed for distracting the attention of the police in order to save himself. He was arrested in the case and was in judicial lock up at the time of making report to the Human Right Commission. The death of Kuldeep Singh was on account of his heart failure and other related diseases because there was no visible mark of injury on his person. In the post-mortem report also, the cause of death was due to sudden cardiac arrest as a result of ventricular tachy cardia.
On receiving the report from the police, the Human Right Commission declined to interfere in the matter and closed the case. The police also informed the appellants as to how the death of Kuldeep Singh was caused. It has been canvassed by the police that Kuldeep Singh had not died on account of any lathi charge nor on account of any tear gas shelling. No evidence was produced before the police by any shopkeeper, whose shops were situated near the place of occurrence that the death in question took place on account of any mischief by the police personals. Even the brothers of deceased Pal Singh and Raj Singh had admitted before the Investigating Officer that deceased Kuldeep Singh was suffering from diabetes and his cause of death was hypo-hyperglyeermick shock. P.P.Kapur, however, did not stop from moving complaints to the authorities in hierarchy. The postmortem of deceased Kuldeep Singh was conducted on 2.2.1998. The initial report was quoted as under:- ANITA DEVI
"In my opinion, the cause of death could be opined after 2014.11.26 15:56 I attest to the accuracy and integrity of this document Chandigarh LPA No.1749 of 2014 5 the report from the Forensic Pathology Department, Medical College, Rohtak.
Sd/-2.2.1998"
On receipt of the aforesaid report, the investigating officer moved an application whereupon the doctor made the following endorsement on 8.2.2001:-
"The cause of death of Kuldeep Singh son of Arjun Singh vide P.M. No.RKt/2/98 dated 2.2.1998 being an old diabetic patient, could have been due to sudden cardiac arrest as a result of verticular tachycardia. This cannot be ruled out."
The appellants still asserted the State liability and claimed damages on account of death of Kuldeep Singh allegedly as a result of police action.
The State of Haryana contested the claim of the claimants/ appellants for the grant of damages, thereby relying upon the aforesaid incriminating facts arising out of investigation of the case.
Learned Single Judge has dismissed the writ petition, holding that the death of Kuldeep Singh was not on account of any lathi charge or police action, rather he died on account of cardiac arrest and the complaint made by P.P.Kapur was false and intended to have been made in order to shield his misdeeds.
In the Letters Patent Appeal, the stress has been made by learned counsel for the appellants that the State is liable to pay ANITA DEVI damages for its tortious liability.
2014.11.26 15:56I attest to the accuracy and integrity of this document Chandigarh LPA No.1749 of 2014 6
The expression "tort" means "breach of duty leading to damage". The basic ingredients of tort are 'injury' and 'damage' on account of failure of the State to observe duty. The claim of the appellants in the present appeal is far fetched and could have been appreciated by the Court if the clouds of facts are discernible. The alleged failure of duty and consequential tortious liability is a subject matter of inquiry. The investigation of the case particularly in the light of dead body of Kuldeep Singh having no sign of external injury, postmortem report showing cause of death to be cardiac arrest and statements of brothers of Kuldeep Singh in the context of Kuldeep Singh being a diabetics, conclusively proved that there was no overt act by the police in any manner in facilitating untimely demise of Kuldeep Singh. The proposition on the point is equivi-distant, when the cause of death is not found to be directly proportional to the alleged failure of duty. Even the concept of the damage being an act of God cannot be remotely observed because the death in question did not arise from any riots, there is no injury on the person of the deceased and the cause of death is specific as per medical jurisprudence, which has its own nomenclature in the medical terminology.
There is mark distinction between proceedings arising out of 'public law' and proceedings arising out of 'private law'. Infringement of indefeasible rights as guaranteed under Article 21 of the Constitution of India make award of compensation in a remedy available in public law. The deprivation of constitutionally guaranteed ANITA DEVI right of life and liberty is based on strict liability and such a claim is 2014.11.26 15:56 I attest to the accuracy and integrity of this document Chandigarh LPA No.1749 of 2014 7 covered under public law for compensation. This remedy is in addition to the remedy available to the party under private law for damages for tortious acts of the State or its functionaries or public servants. Though, the Court cannot close its consciousness but the cause must be based on failure to observe duty by the State so as to attract the principle of strict liability. The strict liability and fault liability are to be distinctly appreciated in the context of availability of remedies to the aggrieved party. Strict liability cannot be construed in ordinary manner in the absence of any deprivation of constitutionally guaranteed right of life and liberty.
The afore-stated settled principles make it abundantly clear that there is a constitutionally guaranteed right of life and liberty and its deprivation should be at the hands of the State by virtue of its failure to observe duty resulting in tortious liability to pay damages/ compensation. Now the question arises whether this strict liability can be made subject matter of prerogative writs or by way of ordinary procedure of redressal i.e. private law. The primary source of the public law proceedings sterns from the prerogative writs to give relief in public law by moulding the same according to prevailing situation so as to preserve rule of law. It is true that there cannot be any presumption that the executive authorities will never be involved in any guilt and if they involve then the concept of tortious liability comes into play.
In Kasturilal Ralia Ram Jain vs. State of Uttar Pradesh AIR 1965 SC 1939, the plea of sovereign immunity was ANITA DEVI upheld in a case of vicarious liability of the State for the tort 2014.11.26 15:56 I attest to the accuracy and integrity of this document Chandigarh LPA No.1749 of 2014 8 committed by its employees. In D.K.Basu vs. State of West Bengal 1997 (1) RCR (Crl.) 372, the tortious act of public servant was held to be the subject matter of civil suits for enforcing right in tort and the defence of sovereign immunity was allowed to have its own say. In violation of fundamental right to life, the defence of sovereign immunity is not available to the State for tortious act of the public servant. In a way, this is the proposition as it exists today that in case of violation of fundamental right to life, the defence of sovereign immunity is not available to the State as these are covered under the rights guaranteed by Article 21 of the Constitution of India. For other violations, the remedies under private law to seek damages are available.
If these propositions are made applicable to the present case, then two things must come to the fore. First, there must be a violation of fundamental right to life by the public servant and the remedy available for the same in public law. So far as the remedy available to public law is concerned, prerogative writs are maintainable to answer the second claim. This has been so observed in Nilabati Behera @ Lalita Bahera (through Supreme Court Legal Aid Committee) vs. State of Orissa and others 1994 (1) RCR (Crl.) 18. The first applicability is pure question of fact which has to be propounded and proved with reference to evidence on record. In the present case, since the death is not directly proportional and related issue to any police atrocity or lathi charge and tear gas shelling, therefore, the controversy cannot be brought ANITA DEVI within the four corners of injury and damage due to failure to observe 2014.11.26 15:56 I attest to the accuracy and integrity of this document Chandigarh LPA No.1749 of 2014 9 duty, which is a tort. The cause of death has no relevancy with the aforesaid alleged acts. The cause of death being cardiac arrest of an old diabetic patient as a result of verticular tachycardia, the same cannot be held to be an instance of act of violation of any constitutionally guaranteed right to life and liberty. Additionally, there was no mark of any violence available on the person of the deceased, therefore also the death in question does not fall under the ambit of homicidal effect.
Learned counsel for the appellants has relied upon Dharamvir Kataria vs. Union of India, 2000 (2) ACJ 815; Nilabati Behera @ Lalita Behera vs. State of Orissa and others, 1993(2) SCC 746 ; P.A.Narayanan vs. Union of India, 1999 (1) ACJ 374 and Kulwant Kaur vs. State of Haryana 1999 (2) ACJ 1279.
A bare perusal would show that all these cases relate to established neglect or breach of duty by the public servant. In Dharamvir's case (supra), which was a case of death on account of tortious negligence of lift operating agency and the negligence was proved on record. In that set of circumstances, it was held by the Court that over looking of safety parameters/ measures in operation of lift by the agency, amounts to breach of its public duty.
In Nilabati's case (supra), the case involved was a case of custodial death and in that view of the matter, defence of sovereign immunity was not held available because there was a violation of fundamental right to life. Similarly in Kulwant Kaur (supra), in a case of death in riots, compensation was awarded. ANITA DEVI The victim was travelling in a train from where he was dragged out of 2014.11.26 15:56 I attest to the accuracy and integrity of this document Chandigarh LPA No.1749 of 2014 10 the compartment and was done to death in 1984 in Delhi riots. In view of that situation, it was held by the Court that it is a case of violation of fundamental right as guaranteed under Article 21 of the Constitution of India and is covered under public law proceedings. In P.A. Narayanan's case (supra), the death of passenger took place due to assault during the course of robbery in the train and the Court ultimately after establishing the facts on record came to the rescue of the family of the victim to observe that the motorman and the guard of the train did not stop the train on pulling the alarm chain. The same amounts to breach of duty in common law to take reasonable care and, therefore, railway was held liable to pay compensation to the victim.
A perusal of the facts involved in the present case do not match with the cited judgments inasmuch as that there is no established fact that the death caused is directly proportional any omission on the part of the public servant or there was any failure to observe duty on the part of the public servant. In a case of mob, the police tried to remove the blockade and during the course of proceedings, deceased Kuldeep Singh died due to cardiac arrest without subjecting to any maltreatment by the police or public. The evidence on record do not suggest any manual strangulation or any extra ordinary force applied upon the person of the deceased in commission of any cognizable act. Since the deceased was having the history of diabetic ailment and the cause of death is sudden cardiac arrest as a result of verticular tachycardia. ANITA DEVI
In the absence of any evidence of overt act at the 2014.11.26 15:56 I attest to the accuracy and integrity of this document Chandigarh LPA No.1749 of 2014 11 instance of the police, the death has no reasonable nexus with any alleged atrocity having been committed by the police in the entire episode. Therefore, this Court does not feel like to interfere with the judgment rendered by the learned Single Judge, which is squarely found to be based on sound reasons. The appeal is totally bereft of merits and is dismissed accordingly with no order as to costs.
(SURYA KANT) (RAJ MOHAN SINGH)
JUDGE JUDGE
November 18, 2014
anita
ANITA DEVI
2014.11.26 15:56
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integrity of this document
Chandigarh