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2010 DIGILAW 379 (GAU)

Gaingamliu Zemei v. Union of India

2010-05-31

MAIBAM B.K.SINGH

body2010
JUDGMENT Maibam B.K. Singh, J. 1. This writ petition has been filed praying mainly for directing the Respondents to pay compensation of Rs. 14 lakhs to the Petitioner in connection with the death of her husband, Iteulung Zemei, said to have caused by some personnel of 15 JAT Regiment, as a result of their illegal, unjustified and indiscriminate firing made by them. 2. According to the Petitioner, on 23.5.2000, in the night, her husband, Iteulung Zemei, one Kaukambe of Mandu Village and one Heuneing of Tousem Village, who had come to Mandu Village to collect paddy, left Mandu Village for Tousem Village to collect medicine for one Miss Nambuale and at about 9.00 p.m., after having travelled about 3 kms on their way to Tousem Village, they were intercepted by some army personnel of 15 JAT Regiment stationed at Namtilam Tousem Sub-Division under the command of Lieutenant Manish Malhotra. Further, according to the Petitioner, as a result of indiscriminate firing made by the said aimed personnel, her husband got injury and died at the spot. Moreover, according to the Petitioner, in the said occurrence, the said Heuneing could escape by running away in the dark and the said Kaukambe was arrested and handed over to O.C., Tousem, Police Station by the army personnel. It is the case of the Petitioner that her innocent husband was killed as a result of illegal, unjustified and indiscriminate firing made by personnel of 15 JAT Regiment. 3. As per counter-affidavit filed on behalf of the Respondents No. 1 to 4, on the said day, on getting a specific information about the likelihood of coming of some armed underground personnel of NSCN (K) for collection of taxes from Tousem, the said army personnel were looking for underground personnel and on seeing the said three persons carrying some weapon like implements moving towards Tousem in that night at about 240045 hrs. without any torch or lighted marshals, suspecting them to be underground persons, they were warned and asked to stop and they were fired upon when they started to run instead of stopping. According to the Respondents No. 1 to 4, the said three persons, who were running away in spite of warnings, were not innocents and firing was resorted as a last resort by asking one of the army personnel to fire and thereby using minimum force in order to incapacitate the fleeing suspected persons. According to the Respondents No. 1 to 4, the said three persons, who were running away in spite of warnings, were not innocents and firing was resorted as a last resort by asking one of the army personnel to fire and thereby using minimum force in order to incapacitate the fleeing suspected persons. It is the case of the Respondents No. 1 to 4 that in the facts and circumstances, there was sufficient justification for firing upon the said three persons on that day and time. According to the Respondents, had the firing been not made and the said persons, if happened to be armed underground personnel, would have inflicted casualties on the army personnel and as such, from point of self defence also, the army personnel reacted in a soldierly manner. 4. Upon hearing Mr. T. Rajendra, learned Counsel appearing on behalf of the Petitioner and Mr. N. Ibotombi, learned Counsel appearing on behalf of the Respondents and on careful perusal of the pleadings of the parties, I have ascertained that there is no dispute in between the parties that the said Iteulung Zemei, husband of the Petitioner, died as a result of firing made by the personnel of 15 JAT Regiment on 23.5.2000 in the night, while the said Iteulung Zemei and two other persons were proceeding towards the Tousem Village, and that no incriminating articles was seized either from the deceased or any of his companions. However, there are disputes as regards the facts if the said Iteulung Zemei and his said two companions were innocent villagers or persons connected with an underground organization and if there was sufficient Justification for resorting to the said firing on that day and time or not. Annexure-A/1 of the writ petition is a copy of the report lodged to the O.C., Tousem P.S. by one Jagdish Prasad Khokhya, Subedar Adjutant of the 15 JAT on 25.5.2000 about the said occurrence and on the basis of which, FIR Case No. 2(5)2000 TSM P.S. under Section 307/326/121/121A IPC, etc. was registered. Annexure-A/2 of the writ petition is a copy of the Post Mortem report dated 26.5.2000 showing ante-mortem bullet injuries found on the dead body of Iteulung Zemei. was registered. Annexure-A/2 of the writ petition is a copy of the Post Mortem report dated 26.5.2000 showing ante-mortem bullet injuries found on the dead body of Iteulung Zemei. Annexure-A/4 of the writ petition is a copy of the report made to the Deputy Commissioner, Tamenglong District on 26.5.2000 by two Ex-Chairmen and one Member, Mandu Village Authority, alleging killing of the said Iteulung Zemei by personnel of 15 JAT. Annexure-A/6 is the Enquiry Report of Sub-Divisional Officer, Tousem, submitted to the Deputy Commissioner, Tamenglong, regarding the occurrence leading to the death of the said Iteulung Zemei. As per the said enquiry report, the deceased and other two persons were innocent villagers and not members of any underground organization. I do not find sufficient reason as to why the said report should not be relied upon. 5. No one will deny that the primary task of the armed forces of the Union is to defend the country in the event of war or when it is faced with external aggression. Their training and orientation is to defeat the hostile force. In an internal disturbance involving the local population, a different approach is required. When armed forces are involved in handling an internal disturbance, a confrontation is bound to take place in between them and their countrymen. There is no dispute that the said area, where the occurrence took place, was within the area declared as a disturbed area by the competent authority at the relevant time under the provisions of Armed Forces (Special Powers) Act, 1958. Section 4 of the above said Act specifies special powers of armed forces. In the context of the facts and circumstances in which the said occurrence took place, the provisions of Section 4(a) of the said Act, which are reproduced below, are relevant: 4. Section 4 of the above said Act specifies special powers of armed forces. In the context of the facts and circumstances in which the said occurrence took place, the provisions of Section 4(a) of the said Act, which are reproduced below, are relevant: 4. Special Powers of Armed Forces: Any Commissioned Officer, Warrant Officer, Noncommissioned Officer or any other person of equivalent rank in armed forces may, in a disturbed area; (a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturb area prohibiting the assembly of 5 or more persons or carrying of weapons or of things capable of being used as weapons or of fire arms, ammunition or explosive substances. 6. The powers under Section 4(a) of the said Act can be exercised only when (a) a prohibitory order of the nature specified in that clause is in force in the disturbed area; (b) the officer exercising those powers forms the opinion that it is necessary to take action for maintenance of public order against the person/persons acting in contravention of said prohibitory order; and (c) a due warning as the officer considers necessary is given before taking action. In Naga People's Movement of Human Rights v. Union of India 1997 (3) GLT (SC) 50 : (1998) 2 SCC 109 , the Hon'ble Apex Court held to the effect that while exercising the powers, the officer shall use minimal force required for effective action against the person/persons acting in contravention of the prohibitory order. The prohibitory orders contemplated in Section 4(a) of the said Act are of two types of such orders, viz., (a) an order prohibiting the assembly of 5 or more persons, and (b) an order prohibiting carrying of weapons or things capable of being used as weapons or fire arms, ammunitions or explosive substances. The order prohibiting the assembly of 5 or more persons can be issued under Section 144 of the Code of Criminal Procedure. The order prohibiting the assembly of 5 or more persons can be issued under Section 144 of the Code of Criminal Procedure. While an order prohibiting carrying of weapons or things capable of being used as weapons or of firing arms, ammunition or explosive substances has to be passed under the Arms Act, 1959 or other similar enactment. The action under Section 4(a) of the said Act can be taken only when either of the above said prohibitory orders is contravened by a person/persons. Some of instructions in the form of a list of "Dos and Don'ts" issued by the Army Headquarters noted by the Hon'ble Apex Court in Naga People's Movement of Human Rights (supra) are: DOS 1. Action before Operation (a) Act only in the area declared 'Disturbed Area' under Section 3 of the Act. (b) Power to open fire using force or arrest is to be exercised under this Act only by an officer/JCO/WO and NCO. (c) Before launching any raid/search, definite information about the activity to be obtained from the local civil authorities. (d) As far as possible co-opt representative of local civil administration during the raid. 2. Action during Operation (a) In case of necessity of opening fire and using any force against the suspect or any person acting in contravention of law and order, ascertain first that it is essential for maintenance of public order, Open fire only after due warning. .... 7. In the present case, there is no any specific pleading to the effect that the said firing on that day leading to the death of Iteulung Zemei was made in exercise of the special powers of Armed Forces in Section 4(a) of the Armed Forces (Special Powers) Act, 1958. At the same time, it is to be noted that even assuming that the place of the said occurrence was within the area declared as a disturbed area by the competent authority under the said Act of 1958 at the relevant time, there is nothing to show that either an order under Section 144 of the Code of Criminal Procedure prohibiting the assembly of 5 or more persons or the order prohibiting carrying of weapons or fire arms, ammunition or explosive substances under any provisions of law was in operation at the relevant time and place. Unless one of the above said prohibitory orders was in operation at the relevant time and place, those personnel of 15 JAT Regiment were not in a position to exercise the special powers given in Section 4(a) of the said Act. Further, even though according to the Respondents No. 1 to 4, on the said day just before the said firing, the deceased and his two companions were seen carrying weapon like implements, however, there is nothing to show that any weapon like implements or anything was seized from either the deceased or anyone of his companions. It is not also clarified by the Respondents as to how the deceased and his companions were seen carrying weapon like implements in that dark night. Had the deceased and his companions been carrying implements, any of the implements should have been seized. It is also not the case of the Respondents that any firing was made from the side of the deceased and his companions towards the said army personnel. There was no sufficient basis on the part of the said army personnel to assume that had not firing been made, they would have been attacked and inflicted casualties by the deceased and his companions. In fact, there is nothing to show that the deceased and his two companions committed any illegality by their presence at that place and time. The situation faced by those army personnel did not warrant them to fire in exercise of their right of self defence. 8. Furthermore, even though the allegations of the Respondents No. 1 to 4 is to the effect that due warning was given to the deceased and his companion before resorting to the said firing, there is nothing to show that the said warning was given in the language understood by the deceased and his two companions. 8. Furthermore, even though the allegations of the Respondents No. 1 to 4 is to the effect that due warning was given to the deceased and his companion before resorting to the said firing, there is nothing to show that the said warning was given in the language understood by the deceased and his two companions. In my considered opinion, having regards to the decision of the Hon'ble Apex Court in Naga People's Movement of Human Rights (supra), the said personnel of 15 JAT Regiment should have co-opted a representative of local civil administration at the time of the said operation and the warnings should have been given in the local language to the effect that firing would be effective in case of not stopping from fleeing in order to ensure that the firing was resorted to only when it was absolutely necessary and that it was not resorted to due to any lack of communication or misunderstanding. The leader of those personnel of 15 JAT Regiment apparently failed to exercise proper and reasonable care before giving the order for firing on a wrong and mistaken assumption that had the said firing been not ordered, the deceased and his two companions would have inflicted heavy casualties on the personnel of 15 JAT Regiment. As a matter of fact, the deceased and his two companions were not in a position to attack and cause casualties on the said personnel of 15 JAT Regiment. The said firing was made indiscriminately in as much as it was made without proper care and thinking about the effect it might cause. 9. In the facts and circumstances of the case, the said firing leading to the death of the deceased Iteulung Zemei was made illegally and without sufficient justification. The deceased was deprived of his right to life without legal justification and as such, not in accordance with the procedures established by law i.e. in violation of the provisions of Article 21 of the Constitution of India. 10. Enforcement of the constitutional right and ground of redress embraces award of compensation as a part of legal consequence of its contravention. 10. Enforcement of the constitutional right and ground of redress embraces award of compensation as a part of legal consequence of its contravention. It is well settled that award of compensation in a proceeding under Article 226 is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. In Nilabati Behera v. State of Orissa and Ors. (1993) 2SCC 746, the Hon'ble Apex Court held that 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. [Radul Sah v. State of Bihar (1983) 4 SCC 141 , Sebastian M. Hongray v. Union of India (1984) 1 SCC 82; Bhim Singh v. State of J. and Kalyanpur (1984) Supp. SCC 504, Bhim Singh v. State of J. and Kalyanpur, (1985) 4 SCC 677 , Saheli : A Women's Resources Centre v. Commissioner of Police, Delhi Police Headquarters (1990) 1 SCC 422 and D.K. Basu v. State of W.B. AIR 1997 SC 610 .] 11. In quantifying the amount of compensation payable to the Petitioner, in respect of the said violation of the fundamental right of her husband, Iteulung Zemei, there will be certain amount of guess work. Having regards to all the relevant considerations, including the decisions of the Hon'ble Apex Court and this Court in similar cases, I direct the Respondents to pay a sum of Rs. 4 lacs to the Petitioner as compensation in the nature of palliative. The Respondents No. 1 to 4 shall deposit the compensation amount of Rs. 4 lac before this Registry within a period of four months from the date of receipt of this order. On being deposited, the registry shall pay the compensation amount of Rs. 4 lacs to the Petitioner as compensation in the nature of palliative. The Respondents No. 1 to 4 shall deposit the compensation amount of Rs. 4 lac before this Registry within a period of four months from the date of receipt of this order. On being deposited, the registry shall pay the compensation amount of Rs. 4 lacs to the Petitioner after proper verification and identification. 12. It is made clear that the said amount of compensation is in addition to other remedies available to the Petitioner and also other remedies in the criminal proceedings against the concerned personnel of 15 JAT Regiment. 13. With these directions and observations, this writ petition stands disposed of. Petition disposed.