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2003 DIGILAW 390 (GAU)

Sutendra Debbarma v. Union of India (UOI)

2003-08-25

TINLIANTHANG VAIPHEI

body2003
JUDGMENT T. Vaiphei, J. 1. By this writ petition under Article 226 of the Constitution of India, the petitioner is seeking a writ in the nature of Mandamus and/or orders or directions for payment of compensation for violation of Article 21 of the Constitution of India. 2. The facts of the case in brief are that the petitioner is the brother of the deceased Lalit Debbarma son of late Popsingh Debbarma, of Garmaibari village, Behalabari, P. S. Khowai, West Tripura District. The deceased was serving as an Assistant Teacher (Primary) in the pay scale of Rs. 970-2400. At the time of his death, he was posted as Assistant Teacher (Primary) at Tulsirai J. B. School, Khowai, West Tripura. It is further stated in the writ petition that on 25.6.1999 the deceased after attending his duty at Tulsirai J. B. School, proceeded for home. On the way home infront of Asharambari B.O.P. the deceased was all on a sudden shot by No. 88944413 CT. Madan Singh of Asharambari B.O.P. with his L.M.G. at about 7.30 p.m. and as a result of which the deceased died. The said CT. Madan Singh was in the company of No. 80005596 HC Mool Chand, No. 85005796 HC Tassamlal, No. 87005582 L/Nk Purkha Raw, No. 89877575 CT. Shaukhal Manda. No. 92161017 CT.B.D. Paul, No. 97009257 CT. Manjit Nath, No. 97005254 Jagadish Suriya of D. Coy 104 Bn, B.S.F. who were on petrol duty. The petitioner on 26.6.1999 at about 11.30 a.m. lodged FIR to the Officer in-charge at Khowai Police Station highlighting the above incident and requesting that the investigation be made in accordance with law. On the basis of the said FIR, a regular case of Khowai P. S. case No. 35/99 under Section 302 IPC was registered by the Khowai P. S. Postmortem on the body of the deceased was conducted by the Medical Officer, Khowai Hospital. As per postmortem report it was mentioned that one bullet injury was found on the body of the deceased. The writ petition also states that the death of Lalit Debbarma was caused by the B.S.F. personnel of Asharambari BOP. It was further added that the deceased was unarmed and was killed cold bloodedly. The deceased had left behind him his aged mother who is 80 years old and seven brothers. The writ petition also states that the death of Lalit Debbarma was caused by the B.S.F. personnel of Asharambari BOP. It was further added that the deceased was unarmed and was killed cold bloodedly. The deceased had left behind him his aged mother who is 80 years old and seven brothers. It was also stated that the mother of the deceased and two younger brothers namely Samir Debbarma and Satyendra Debbarma were totally dependant on the income of the deceased for their livelihood. It is also alleged in the writ petition that after the death of the deceased, his aged mother had lost her mental balance due to the death of her son. The writ petitioner further goes to state that to cover up the cold blooded murder of Lalit Debbarma by the said BSF personnel, one Kamal Singh, A/C 104 Bn., B.S.F. lodged a false FIR to the O/C, Khowai P. S. alleging that on 25.6.1999, a BSF party consisting of No. 80005596 HC Mool Chand, No. 85005796 HC Tassam Lal No. 87005582 L/Nk Purkha Raw, No. 89877575 Ct. Shaukhal Mandal, No. 92161017 Ct. B.D. Paul, No. 97009257 Ct. Manjit Nath, No. 97005254 Jagadish Suriya of 'D' Coy 104 Bn., B.S.F. was on petrol duty from 19.30 hours. The said party confronted 5/6 unknown persons who were coming from opposite direction under suspicious circumstances. On being challenged, the unknown miscreants started running away and they were chased by the petrol party, CT. Madan Singh caught hold of one miscreant who tried to over power him. The said miscreant attacked Ct. Madan Singh and tried to snatch away his personal arms and at that point, CT. Madan Singh fired one round from his 762 SLR. The miscreant fell down and died on spot. The miscreant was identified as Lalit Debbarma, the deceased. The said written complaint was treated as FIR which was registered as Khowai P. S. case No. 34/99 under Section148/149/333/325/307 IPC. 3. After investigation by the police, final report in respect of Khowai P. S. case No. 34/99 was submitted by the Investigating officer in the Court of the SDJM, Khowai in connection with G. R. 104/1999. The said written complaint was treated as FIR which was registered as Khowai P. S. case No. 34/99 under Section148/149/333/325/307 IPC. 3. After investigation by the police, final report in respect of Khowai P. S. case No. 34/99 was submitted by the Investigating officer in the Court of the SDJM, Khowai in connection with G. R. 104/1999. It is further stated in the writ petition that in the final report, it is established that the entire incident as narrated in the FIR of the BSF was totally false and fabricated and the same was done to destroy the evidence of murder committed by BSF. The I. O. of the case also opined in the final report that the informant and other BSF personnel are liable to be proceeded with under Section201 IPC. Learned Magistrate accepted the final report submitted by the I.O. 4. The writ petition was contested by the respondents by filing counter-affidavit. In the counter-affidavit, the respondents did not dispute about the death of the deceased and nor did they dispute that the petitioner is the brother of the deceased. Supporting the counter-affidavit, it is also stated that he had fired in exercise of his right of self defence, but no member of patrol party was present at the time of incident. The respondents also stated that initially the BSF had lodged FIR on the basis of the statement of Ct. Madan Singh without knowing the correctness of such statement. It was on the basis of the FIR subsequently filed by the petitioner that the accused CT Madan Singh was taken into custody of the BSF from the learned SDJM, Khowai and was tried by the General Security Force Court which found him guilty of the offence and sentenced him to ten years imprisonment in Civil Jail. It is also stated that all the accused were tried by the General Security Force Court and the outcome in the proceeding have been intimated to the learned SDJM, Khowai including the sentence awarded to each of them. The contention of the respondents is that the offence committed by the respondent No. 5, i.e., Madan Singh is in no way an act of the Force nor was such offence committed by him at the instance of the department. The contention of the respondents is that the offence committed by the respondent No. 5, i.e., Madan Singh is in no way an act of the Force nor was such offence committed by him at the instance of the department. The respondents also disclaimed any liability for payment of compensation as demanded by the petitioner since there was no fault or negligence on the part of the respondents. In other words, the defence of the respondents is that the offence having been committed by an individual person of the Force, i.e., respondent No. 5 in his personal capacity and he having been awarded punishment by the Security Force Court, the demand of the petitioner for payment of compensation is mis-placed. Accordingly, the respondents pray that the writ petition is liable to be dismissed. 5. Having set out the averment of the petitioner as well as the respondents, I now to proceed to examine the contentions of the parties. On the facts and circumstances of the case, the first point for determination is whether the deceased was killed by the respondent No. 5. It is contended by the learned Counsel for the petitioner that the respondents in their affidavit have clearly admitted that it was the respondent No. 5 who caused death of the deceased. It is also demonstrated by the fact that he was already convicted and sentenced for 10 years imprisonment and dismissed from service. In view of this, the respondents, i.e., the Union of India and the B.S.F. authorities are vicariously liable for payment of compensation for the death of the deceased. On the other hand, Mr. B. Choudhury, learned senior C.G.S.C. submits that there is no evidence to show that the deceased was killed by the respondent 5 and that in any case, even if the death was caused by the respondent 5, the respondents cannot be held liable in view of the fact that there is no evidence to show that the respondent 5 was on duty at the time of the incident. 6. In order to remove any shadow of doubt regarding the death of the deceased at the hands of the respondent No. 5, it is necessary to extract hereunder the para-6 of the Counter-affidavit, "6. 6. In order to remove any shadow of doubt regarding the death of the deceased at the hands of the respondent No. 5, it is necessary to extract hereunder the para-6 of the Counter-affidavit, "6. That, with regards to the averments of the petitioner made in the writ petition in paragraphs 11, 12, 13, 14 and 15, I submit that for commission of offence, constable Madan Singh has already awarded sentence for ten years imprisonment in civil jail and dismissed from service. The offence committed by the Respondent No. 5 is in no way the act of the Force nor such offence was committed by constable Madan Singh at the instance of the department. It is true that the prayer of the Petitioner was considered and could not be acceded to being devoid of merit by the Competent Authority under the above-narrated circumstances when there was no fault or negligence on the part of the Department. The incident took place due to commission of offence by individual member of the Force and the offence committed by the Respondent No. 5 in his personal capacity and the same is a civil offence for which after trial by Security Force Court he was awarded punishment, I submit that the Petitioner is not entitled to get any compensation whatsoever under the circumstances, narrated above and as such the writ petition of the Petitioner is liable to be dismissed." 7. From the above, it is crystal clear that the respondents have also admitted that it was the respondent No. 5 who caused death of the deceased. Having been determined that it was the Respondent No. 5 who caused death of the deceased, I may now examine the contentions of the respondents that the offence was committed by the Respondent No. 5 in his personal capacity and not when he was on duty. It is the contention of the respondents that since the offence was committed by the Respondent No. 5 in his personal capacity, the offence is nothing but a civil offence for which he was tried by the Security Force Court in terms of Section 47 of the Border Security Force Act (hereinafter referred to as 'Act' for short). It is the contention of the respondents that since the offence was committed by the Respondent No. 5 in his personal capacity, the offence is nothing but a civil offence for which he was tried by the Security Force Court in terms of Section 47 of the Border Security Force Act (hereinafter referred to as 'Act' for short). The term civil offence is defined by Section 2(d)of the Act as an offence which is triable by the Criminal Court, Section 46 of the Act provides that subject to the provisions of Section 47, any person subject to this Act who at any place in, or beyond, India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this Section shall be liable to be tried by a Security Force Court and, on conviction, be punishable as follows, that is to say,- (a) if the offence is one which would be punishable under any law in force in India with death, he shall be liable to suffer any punishment, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned ; and (b) in any other case, he shall be liable to suffer any punishment, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned. Since the Counsel for the respondents is harping on the fact that the Respondent No. 5 was not on active duty at the time of the incident, it may be relevant to produce hereunder Section 47 of the Act. "47. Civil Offences not triable by a Security Force Court. - A person subject to this Act who commits an offence of murder or of culpable homicide not amounting to murder against, or of rape in relation to, a person not subject to this Act shall not be deemed to be guilty of an offence against this Act and shall not be tried by a Security Force Court, unless he commits any of the said offences, - (a) while on active duty ; or (b) at any place outside India ; or (c) at any place specified by the Central Government by notification in this it behalf." 8. The aforesaid provisions manifestly show that Security Force Court cannot try a person who commits civil offence - unless he commits any of the civil offence while on active duty. The fact that the Respondent No. 5 was tried by Security Force Court can no longer be in dispute regard being had of the counter-affidavit of the respondents. When the Respondent No. 5 was tried by the Security Force Court, it does not lie on the mouth of the respondents to say that the Respondent No. 5 was not on duty at the time of commission of murder of the deceased by the Respondent No. 5. If the Respondent No. 5 was not on duty at the time of the incident, he should have been tried by Criminal Court as required by Sections 46 and 47 of the Act. In view of this, the inference is irresistible and the conclusion inescapable that the deceased was killed by the Respondent No. 5 while he was on duty. 9. The law regarding payment of compensation for established breach of fundamental rights has now been settled by a long line of decisions rendered by the Apex Court. If any decision is required to be cited, I may cite the decision of the Apex Court in D.K. Basu v. State of W.B. and reproduce the law laid down therein as under : "The claim in public law for compensation for unconstitutional deprivation of fundamental right to file 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 is a remedy available in public law since the purpose of public law is not only to civilise 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. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 is a remedy available in public law since the purpose of public law is not only to civilise 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. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim - civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family." 10. In the instant case, it has been established clinchingly that the deceased was killed by the Respondent No. 5 who is admittedly a constable serving in the BSF, which is one of the armed forces of the Union of India. In view of this, there can be no doubt that the Respondent Nos. 1 to 4 are vicariously liable for tortious act of the Respondent No. 5 and, as such, any compensation payable to the heirs of the victim is liable to be paid by the Respondent Nos. 1 to 4. 11. Coming now to the quantum of compensation to be paid to the petitioner. 1 to 4 are vicariously liable for tortious act of the Respondent No. 5 and, as such, any compensation payable to the heirs of the victim is liable to be paid by the Respondent Nos. 1 to 4. 11. Coming now to the quantum of compensation to be paid to the petitioner. It may be noted that the deceased is survived by his mother and seven brothers at the time of his death. Out of the six family members, his mother who is reported to be 80 years old at the time of his death and his two younger brothers namely Samir Debbarma and Satyendra Debbarma were totally dependant on the income of the deceased for their livelihood. These facts have not been seriously controverted by the respondents in their counter-affidavit. It is not difficult to imagine the conditions of these three dependants when their sole bread earner left them abruptly. The fact that the legal heirs might have received pensionary benefits from the Government, cannot be a ground for denial of compensation to the legal heirs of the deceased. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life is a claim based on strict liability and it is in addition to the claim available in private law for damages for tortious acts of the public servants. On consideration of the totality of the circumstances, I am of the view that payment of compensation of a sum of Rs. 3 lakhs (Rupees three lakhs) only to the legal heirs of the deceased will meet the ends of justice. In the result, the Respondent Nos. 1 to 4 are hereby directed to pay a sum of Rs. 3 lakhs (Rupees three lakhs) only by way of compensation to the legal heirs of the deceased through the petitioner within a period of three months from the date of receipt of this order from the petitioner. No order as to costs.