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2013 DIGILAW 369 (GAU)

Sabita Ree v. State of Assam and Ors.

2013-05-31

I.A.ANSARI, INDIRA SHAH

body2013
I.A. Ansari, J We have heard Mr. P.K. Deka, learned counsel, for the petitioner, and Ms. S. Sarma, learned Government Advocate, appearing on behalf of the respondents. 2. The case of the petitioner may, in brief, be described as under: (i) The petitioner, namely, Smt. Sabita Ree, is widow of Late Dakhina Ree, resident of Meruya of Silchar, in the district of Cachar, who was a daily wage earner. On 25.3.2.001, while the petitioner was working at his house, he was hit by a bullet on his chest, the bullet having hit his chest, when the personnel of 6th Assam Police Battalion were involved in target practice by using firearms. On the death of her husband, the petitioner lodged a written Ejahar, on 27.3.2001, at Gungur police Outpost. Having made, in this regard, GD Entry No. 518, dated 28.3.2001, the In-charge, Gungur Outpost forwarded the said Ejahar to Silchar Police Station, where Silchar Police Station Case No. 411 of 2001 was registered, under section 304A, IPC, treating the said Ejahar as First Information Report. (ii) During the course of investigation, the police visited the place of occurrence, held inquest over the said dead body, prepared inquest report and, on completion of investigation, submitted a report under section 173(2)(i), Cr.PC ('final report') to the learned Chief Judicial Magistrate, Cachar, Silchar, wherein it was stated, inter alia, thus: The firing range, in the present case, is located on a Hillock, which has a height of about 60 yards, and while firing practice of small arms was in progress by 6th Assam Police personnel, a bullet, which strayed away from the target, accidently happened to hit the petitioner's husband and that there was no rashness or negligence, on the part of those, who were involved in target practice or who had organized the target practice. The police, accordingly, sought for a direction closing the case. (iii) By order, dated 8.8.2011, passed in GR Case No. 852 of 2001 (Corresponding to Silchar Police Station Case No. 411 of 2001), the learned Chief Judicial Magistrate, Cachar, Silchar, accepted the final report and closed the case. The police, accordingly, sought for a direction closing the case. (iii) By order, dated 8.8.2011, passed in GR Case No. 852 of 2001 (Corresponding to Silchar Police Station Case No. 411 of 2001), the learned Chief Judicial Magistrate, Cachar, Silchar, accepted the final report and closed the case. (iv) Before the final report aforementioned was submitted andthe same was accepted as mentioned above, the petitioner, with the help of this writ application made under article, 226 of the Constitution of India, alleged that her husband was hit by bullet and died, because of negligence, on the part of the police personnel, involved in a target practice. The petitioner, therefore, sought for direction to be issued to the respondents/authorities concerned to investigate the case properly so as to bring to book the erring officials and to direct the respondent to pay a sum of Rs.5,00,000 as compensation for the loss of life of the petitioner's husband, who was the sole bread-earner of his family, the mental agony suffered by the family members of the said deceased and the medical expenses incurred by them for treatment of the said deceased. 3. The respondents have resisted the writ petition by filing an affidavit-in-opposition, wherein they have contended to the effect, inter alia, that the case has been properly investigated and there has been no foul play in submitting the final report. 4. Before proceeding further, what needs to be pointed out is that this writ petition, as already indicated above, was filed before filing of the final report and acceptance thereof by the learned Chief Judicial Magistrate, Cachar, Silchar. 5. Notwithstanding the fact that the final report has been accepted, what needs to be noted is that the learned Chief Judicial Magistrate had not, before accepting the final report, given any notice to the petitioner, though she was the informant and also the aggrieved person. In such circumstances, the decision to accept the final report, in the light of the decision in Union Public Service Commission v. S. Papaiah and Others, (1997) 7 SCC 614 , is wholly illegal and this is an aspect, which calls for appropriate directions to be issued by this court. 6. In such circumstances, the decision to accept the final report, in the light of the decision in Union Public Service Commission v. S. Papaiah and Others, (1997) 7 SCC 614 , is wholly illegal and this is an aspect, which calls for appropriate directions to be issued by this court. 6. Assuming, for a moment, that the acceptance of the final report remains undisturbed, what needs to be borne in mind is that the standard of proof, required in order to prove a charge, in a criminal trial, is different from the standard of proof, which is demanded in a civil suit or civil proceeding. While a charge, in a criminal trial, is required to be proved beyond reasonable doubt, a civil suit or civil proceeding has to be decided on the basis of preponderance of evidence. 7. In the case at hand, we notice that at paragraphs 6 and 10 of her writ petition, the petitioner has clearly alleged negligence on the part of those, who were involved in the target practice; but the allegations of negligence, so made, were never denied, disputed or traversed by the respondents. 8. Situated, thus, one cannot escape, in a proceeding under article 226, from the conclusion that negligence, on the part of those, who were involved in target practice, and/or responsible for conducting of target practice, is an admitted fact. 9. Necessarily, therefore, this court has to hold, and we do hold, in the light of the admission made by the respondents themselves, that the petitioner's husband died as a result of negligence on the part of those, who were involved in the target practice. This finding has, however, been rendered in the context of the claim for compensation, which the petitioner has made, and shall not be treated, in future, as a conclusion derived by this court so far as the criminal case, registered against the police personnel, is concerned. 10. Considering the fact that the petitioner's husband lost his life due to sheer negligence of those, who were involved in target practice as mentioned above, it is not difficult to conclude, and we do conclude, that the State Government, being the employer, in the present case, is responsible for the tortious acts of its employees. 11. 10. Considering the fact that the petitioner's husband lost his life due to sheer negligence of those, who were involved in target practice as mentioned above, it is not difficult to conclude, and we do conclude, that the State Government, being the employer, in the present case, is responsible for the tortious acts of its employees. 11. Because of what have been discussed and pointed out above, we have no hesitation in holding that as the petitioner's husband died due to sheer negligence of the State Government employees, the State Government is liable to pay compensation appropriate to the facts of the present case. The State Government is not liable to pay this compensation merely on the principle of tort, but also on the principle of violation of the fundamental rights of the petitioner's husband inasmuch as article 21 guarantees to every person, be he a citizen or not, of not being deprived of his life and liberty except in accordance with the procedure prescribed by law. 12. Since the petitioner's husband was a daily wage earner and even if we assume that he used to earn about Rs. 100 per day, it logically follows that he, having worked, on average, for about three weeks a month, would have been earning more than Rs. 2,000 per month and since the petitioner's husband died, as the post mortem report reveals, at the age of 33 years, which again is not in dispute, a multiplier of 15 would be a reasonable multiplier and if this multiplier is used, the petitioner is entitled to receive more than that sum of Rs. 5,00,000, which the petitioner has claimed as compensation. 13. In the facts and attending circumstances of the present case, we do not find that the claim of Rs.5,00,000, as compensation, is either unreasonable or untenable in law. 14. 5,00,000, which the petitioner has claimed as compensation. 13. In the facts and attending circumstances of the present case, we do not find that the claim of Rs.5,00,000, as compensation, is either unreasonable or untenable in law. 14. Considering, therefore, the matter in its entirety and in the interest of justice, we hereby direct the Registry of this Principal Seat to register a 'revision suo motu' against the order, dated 8.8.2011, passed by the learned Chief Judicial Magistrate, Cachar, Silchar, accepting the final report in Silchar Police Station Case No. 411 of 2001 and list the case, before appropriate Bench, for taking a decision if the revision, against the acceptance of the said final order without giving any notice to the informant, who is the aggrieved person too, needs to be admitted, heard and decided. 15. We also direct that the State respondents, particularly, respondent No. 1 shall pay, within a period of three months from today, a sum or Rs. 5,00,000, as compensation, to the petitioner. 16. We further direct that the Commandant, 6th Assam Police Battalion, shall take all necessary steps to ensure that no unfortunate incident, as the one at hand, in the neighborhood of the place of target practice, takes place, in future, as and when the personnel of the 6th Assam Battalion resort to target practice by firing arms, small or big. 17. Since the petitioner has a minor daughter, 50% of the compensation, which we have hereby directed to be paid to the petitioner, be kept in fixed deposit, in any nationalized bank, and be operated by the orders of the Chief Judicial Magistrate, Cachar, Silchar. 18. With the above observations and directions, this writ petition shall stand disposed of. 19. No order as to costs. 20. Furnish a copy of this order to the learned Government Advocate.