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2005 DIGILAW 256 (PNJ)

Parminder Kaur v. State Of Punjab

2005-02-11

ASHUTOSH MOHUNTA

body2005
Judgment Ashutosh Mohunta, J. 1. C.M. No. 6462 of 2004 is allowed. Photocopy of the judgment dated 1.3.2004 passed by the Additional Sessions Judge, Ludhiana, convicting Darshan Singh, Mehar Singh and Sarabjit Singh accused under Sections 364, 302, 120-B and 201, I.P.C., is taken on record as Annexure P13. 2. The prayer made in this petition under Articles 226/227 of the Constitution of India is for issuance of a writ in the nature of mandamus directing the official respondents to pay compensation to the tune of Rs. 25 lacs and also for allowing monthly maintenance allowance to the petitioner on account of the alleged murder of her husband Tarvinder Singh by respondent Nos. 7 to 12. 3. According to the petitioner, her husband Tarvinder Singh was forcibly picked up by the police officials, who have been arrayed as respondent Nos. 7 to 12 in the present writ petition, on the night intervening 30th/31st March, 1993 at about 11 P.M. after scaling the wall of the house and was brutally murdered and the dead body was thrown in a canal near village Barde-Ke, F.I.R. No. 73 dated 7.7.1993 under Sections 302, 364, 201, 149, 120-B read with Section 34, I.P.C., was registered at Police Station Payal, District Ludhiana, challan against the accused was presented in the Court of Illaqa Magistrate and one Hawaldar Amarjit Singh confessed the commission of crime by him along with respondent Nos. 7 to 12 and turned approver. He got his statement recorded under Section 164, Cr.P.C. The trial commenced against respondent Nos. 7 to 12. Ultimately, vide judgment dated 1.3.2004 the Additional Sessions Judge, Ludhiana, convicted Darshan Singh (respondent No. 7), and Mehar Singh accused for the offence under Sections 364, 302 read with Section 120-B, I.P.C., while Sarbjit Singh accused (respondent No. 12) was convicted for the offence under Section 201, I.P.C. 4. The petitioner approached the authorities concerned for grant of compensation on the basis of the allegation that her husband was murdered by the Police authorities. However, no compensation has been awarded to her. Consequently, she has filed the present writ petition for grant of compensation to her on the ground that her husband Tarvinder Singh was allegedly murdered by the Police personnel in connivance with accused Mehar Singh, Sarpanch of the village. However, no compensation has been awarded to her. Consequently, she has filed the present writ petition for grant of compensation to her on the ground that her husband Tarvinder Singh was allegedly murdered by the Police personnel in connivance with accused Mehar Singh, Sarpanch of the village. The petitioner has placed reliance on the instructions issued by the Government of Punjab vide letter dated 20.10.1994 (Annexure P-3) for payment of compensation to the families of persons who were killed by the terrorists/security forces. 5. The respondents filed their respective written statements. In the written statement filed by the Deputy Commissioner, Ludhiana (respondent No. 4) a plea has been taken that the instructions dated 20.10.1994 (Annexure P-3) are not ipso facto applicable to the facts appearing in the present case. It has been averred that it has yet to be proved whether or not the husband of the petitioner was abducted/murdered by the security personnel. Further it has been stated that the matter is still subjudice. Other respondents have taken a plea of denial simplicitor. 6. It has been contended by the learned counsel for the petitioner that Hawaldar Amarjit Singh turned approver in this case and he specifically named the police personnel in the brutal murder of Tarvinder Singh, husband of the petitioner. The counsel relied upon the statement (Annexure P-2) of said Amarjit Singh. He also placed reliance on the letter dated 20.10.1994 (Annexure P3) issued by the Department of Relief and Rehabilitation wherein instructions have been given to all the Deputy Commissioners in the State of Punjab to pay monetary compensation to the close relatives of innocent persons killed by the terrorists or by the security forces. 7. In the present case, though I do not intend to make any comment upon the role of the Police personnel in the killing of Tarvinder Singh as litigation is still going on, yet from the statement of Hawaldar Amarjit Singh it prima facie appears that Tarvinder Singh was done to death on the instructions of S.H.O. Darshan Singh (respondent No. 7) by Basant Singh and his co-accused, who are also police officials. By now even the Additional Sessions Judge, Ludhiana, vide judgment dated 1.3.2004 has held S.I. Darshan Singh (respondent No. 7) and S.P.O. Sarbjit Singh (respondent No. 12) guilty of the offence and convicted them accordingly. By now even the Additional Sessions Judge, Ludhiana, vide judgment dated 1.3.2004 has held S.I. Darshan Singh (respondent No. 7) and S.P.O. Sarbjit Singh (respondent No. 12) guilty of the offence and convicted them accordingly. Without making any comment on the criminal proceedings, which may be finally decided in separate litigation, keeping in view the fact that Tarvinder Singh deceased was engaged in agriculture operation and was the only bread-winner of the family and was having three minor children to support, I am of the considered opinion that the petitioner deserves to be provided some monetary help. In a catena of judgments, it has been well settled that the claim for compensation for violation of human rights and fundamental freedom, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights and can be resorted to even under Article 226 of the Constitution. In Smt. Nilabati Behara alias Lalita Behera v. State of Orissa and others, 1994(1) RCR(Crl.) 18 (SC) : AIR 1993 SC 1960, it has been held by their Lordships of the Supreme Court as under :- "16. It follows that a claim in public law for compensation for contravention of human rights 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 form, and in addition to the remedy in private law for damages for the tort resulting from the contravention of the fundamental right. 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 justifies 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 right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution ......" 8. Recently this Court in its judgment dated 29.5.2004 passed in C.W.P. No. 550 of 2004, Priti Thapar v. State of Punjab and others, 2004(3) RCR(Crl.) 495 (P&H) wherein the husband of the petitioner, namely, Ashwani Thapar, had died in judicial custody, had awarded to the widow and two minor children, compensation to the tune of Rs. 2.50 Lacs. Similarly, a Single Judge of the Jharkhand High Court in the case Bahlen Balmuchu v. State of Bihar and others, 2003 Crl. Law Journal 3803, had awarded compensation to the tune of Rs. 10 lacs to the widow and three minor children of the deceased, who was 28 years old and died while in custody. 9. In view of the above, I am of the considered opinion that ends of justice would amply be met, if the petitioner is awarded compensation to the tune of, Rs. 3,00,000/-. Out of this amount, a sum of Rs. 1,50,000/- shall be paid to the petitioner, and the rest of the amount shall be equally shared by the children of the deceased. The share of the minors shall be deposited in Fixed Deposit in a Nationalized Bank and/or any other government financial institution under the direct control of the Central/State Government and/or by getting opened their P.P.F. accounts in the Post Office, whichever may fetch the highest rate of interest. The petitioner shall also be entitled to be paid the amount of monthly interest accruing upon the fixed deposits of the minors, so as to enable her to spend the said amount for up-keep/look after her children and/or their education, etc. The said amount of compensation shall be paid by the respondents within a period of two months from the date of receipt of a certified copy of this order. 10. At this stage, it would be appropriate to quote the principles enunciated by their Lordships in the case of State of Maharashtra v. Christian Community Welfare Council of India and another, 2003(4) RCR(Crl.) 718, wherein the State was permitted to recover the amount of compensation paid by it to the widow of the deceased, from the officers/officials concerned found to be responsible for the mis-deeds which made the State to pay compensation. Their Lordships held that if it is determined, after holding a proper inquiry, that the officers committed the alleged mis-deeds beyond the scope of performance of the State duty and they did cause death to the deceased not in the performance of their official duty, rather in excess of the same, then they cannot escape the liability to reimburse the State the amount paid by it to the widow of the deceased. Accordingly, it is held that in case, after holding a proper inquiry in accordance with law, it is found that the death of the deceased husband of the petitioner was caused due to specific negligence and/or dereliction in performance of duty, or it was a result of abuse of powers by the officials/officers of the Police Department, it will be open to the State of Punjab to recover the amount of compensation paid to the widow and the children of the deceased from them. 11. The writ petition is allowed in the above terms.