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2014 DIGILAW 83 (MAN)

Khundongbam Manisana Singh v. Union of India

2014-07-18

LAXMI KANTA MOHAPATRA, N.KOSIWAR SINGH

body2014
JUDGMENT N. Kotiswar Singh, J.:-- 1. Heard Mr. R.K. Nokulsana, learned senior counsel for the petitioner, Mr. C. Kamal, learned CGSC and Mr. R.S. Reisang, learned GA for the respondents. 2. The present writ petition has been filed seeking compensation to the tune of Rs. 18,27,000/- (Rupees eighteen lakh twenty thousand) on account of alleged physical assault and torture of the petitioner by the security forces. 3. According to the petitioner, the petitioner is a farmer who earns his livelihood by cultivation and by doing physical labour. It has been stated that on 24.3.1994 at about 9 p.m. when the petitioner and his family members were preparing to go to bed, he heard the sound of vehicles being halted on the D.M. Road running at the western side of his house. Soon thereafter, he heard the sound of a gunshot from his gate along the D.M. Road and barking of dogs. After about 30 minutes, some Assam Rifles personnel entered the house of the petitioner and dragged the petitioner and his brother-in-law Shri Lourembam Ibopishak Singh on the floor out of their house to the D.M. Road and assaulted them with rifle butts and sticks and they were also repeatedly kicked on the road. According to him, after about 20 minutes, a Civil Police Commando party under the then S.P. joined the Assam Rifles personnel in assaulting the petitioner and his brother-in-law by kicking them with their boots because of which the petitioner fell unconscious. Because of the said assault, the petitioner was hospitalized and had to undergo prolonged treatment. According to the petitioner as a result of the said brutal torture and assault, he sustained permanent fracture at his left wrist and back and he has been mentally unstable. According to the petitioner, he had spent a huge amount of money for his treatment and subsequently filed a suit for claiming compensation damages from the respondents to the tune of Rs. 18,27,000/- before the Court of Civil Judge (Sr. Divn No.1) Manipur East. According to the petitioner, he had spent a huge amount of money for his treatment and subsequently filed a suit for claiming compensation damages from the respondents to the tune of Rs. 18,27,000/- before the Court of Civil Judge (Sr. Divn No.1) Manipur East. He also filed an application for allowing him to sue as a pauper under Order XXXIII of the C.P.C. However, the said suit was dismissed by the Civil Court on the ground that the provisions of Section 6 of the Armed Forces (Special Powers) Act, 1958 requirement of previous sanction from the Central Government for instituting any suit against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act, was lacking in the case, vide order dated 18.7.2002. It was observed by the Civil Court that the petitioner may seek his remedy at public law by approaching the Hon'ble High Court under Art. 226 or the Hon'ble Supreme Court under Article 32, whichever is advantageous to the petitioner. Accordingly, the present petition has been filed under Article 226 of the Constitution contending that there is no other alternative remedy. 4. The writ petition has been resisted by the respondents by filing respective affidavits-in-opposition. In their affidavit-in-opposition filed by the Union respondent Nos.1 to 3, they denied the allegations of the petitioner as false contending that the Assam Rifles personnel have been falsely implicated with the ulterior motive to secure compensation and the writ petitioner has not been able to establish the identity of the unit to which the alleged Assam Rifles personnel belonged. It was also denied that the Assam Rifles personnel with the Civil Police Commando assaulted the petitioner. 5. The State respondent Nos.4, 5 and 6 also filed their affidavit-in-opposition denying that there is no Civil Police Commandos involved in the said incident. It was also stated that there was no information about the hospitalisation of the petitioner and also about filing of any complaint regarding the incident. 6. This Court after hearing the parties, vide order dated 26.9.2007 observed that as there are disputed questions of fact, it would be just and proper to direct the concerned District Judge to make an inquiry about the disputed question of facts to enable the Court to make a just decision. 6. This Court after hearing the parties, vide order dated 26.9.2007 observed that as there are disputed questions of fact, it would be just and proper to direct the concerned District Judge to make an inquiry about the disputed question of facts to enable the Court to make a just decision. Accordingly, the District Judge, Manipur East, within whose jurisdiction the alleged occurrence took place, was directed to inquire about the disputed questions of fact and submit a report. The enquiry was duly held and the District & Sessions Judge, Manipur East submitted his report dated 16.12.2011 before this Court. The relevant and material portion of the said report, for the purpose of consideration of the issues involved, may be reproduced hereunder. ... From the evidence so far available, the petitioner Kh. Manisana Singh sustained injuries in the night between 24.3.1994 and 25.3.1994 due to beaten by the Assam Rifles personnel and Civil Commandos of Manipur without any reasonable ground. As per evidence of the petitioner, he sustained permanent fracture on his left wrist and back and his brain is not properly working. However, the documents produced by the petitioner do not support such evidence of the petitioner. As per report of X-ray (Ext. A-12), it has stated that there is evidence of fracture of the nasal bone with slight depression of the distal fragment. As there is no documental proof supporting the evidence of the petitioner that his left wrist was broken and his brain is disorder, it has concluded that his nasal bone was fractured due to beaten by the security personnel in the night between 24.3.1994 and 25.3.1994. There is no direct evidence to show that who had actually beaten the victim on the said fateful night. The Assam Rifles personnel led by JOC A.S. Choppra and the Civil Commandos led by the then S.P., Imphal are responsible to cause injury to the petitioner................... 7. The power of the Constitutional Court to award monetary compensation against the State and its officials for its failure to safeguard fundamental rights has been crystallised through a series of judicial interventions and interpretations. 7. The power of the Constitutional Court to award monetary compensation against the State and its officials for its failure to safeguard fundamental rights has been crystallised through a series of judicial interventions and interpretations. Of the long judicial precedents one may just refer to the decision of the Supreme Court in Rudal Saha Vs State of Bihar: (1983) 4 SCC 141 in which the Supreme Court observed that Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringement of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others too well known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the STATE must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers. The principle so adopted was followed in subsequent decisions which was succinctly reiterated in Nilabati Behra Vs State of Orissa: (1993) 2 SCC 746 in which the deceased was arrested by the police, handcuffed and kept in police custody and the next day, his dead body was found on a railway track. The Supreme Court awarded compensation to the mother of the deceased. In the said case of Nilabati Behra (supra) the following principle was spelt out: 10. The Supreme Court awarded compensation to the mother of the deceased. In the said case of Nilabati Behra (supra) the following principle was spelt out: 10. (A)ward of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution 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. ................................ ........................... 17. ... '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 from, 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. The said principle was further elaborated by the Supreme Court in the same case by observing that 34. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by (the Supreme) Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. 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 which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting 'compensation' in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law. Thus, it is now well settled that the award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21 by a public servant. 8. In Sube Singh Vs State of Haryana: (2006) 3 SCC 178 the Supreme Court while examining the aforesaid principles observed that Court has to examine certain aspects before the proceedings to award compensation, as follows: 46. In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, the courts may award compensation in a proceeding under Article 32 or 226. In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, the courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the Court will have to pose to itself the following questions: (A) whether the violation of Article 21 is patent and incontrovertible, (B) whether the violation is gross and of a magnitude to shock the conscience of the court, (C) whether the custodial torture alleged has resulted in death or whether custodial torture is supported by medical report or visible marks or scars or disability. Where there is no evidence of custodial torture of a person except his own statement, and where such allegation is not supported by any medical report or other corroborative evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, the courts may not award compensation as a public law remedy under Article 32 or 226, but relegate the aggrieved party to the traditional remedies by way of appropriate civil/criminal action. 9. Keeping in mind the above principles, we have to examine whether the facts as disclosed in the present case fulfil the above requirements for awarding compensation to the petitioner. To do so, we now refer to the report dated 16.12.2011 submitted by the learned District & Sessions Judge, Manipur East. We have already reproduced the relevant portion of the report in which the learned District & Sessions Judge has given the finding that the petitioner sustained fracture on his left wrist and back and his brain is not properly working. The learned District & Sessions Judge also gave the finding that though there is no direct evidence to show who had actually beaten the victim on the said fateful night, the Army personnel and police commandos were responsible for causing of injury to the petitioner. It is to be noted that we are not sitting on appeal against the finding recorded by the learned District & Sessions Judge, Manipur East as an appellate authority. However, in order to satisfy ourselves of the correctness of the said finding and conclusion arrived at by the learned District & Sessions Judge, we have perused the documentary and oral evidences produced in the course of the inquiry conducted by the learned District & Sessions Judge. However, in order to satisfy ourselves of the correctness of the said finding and conclusion arrived at by the learned District & Sessions Judge, we have perused the documentary and oral evidences produced in the course of the inquiry conducted by the learned District & Sessions Judge. In the course of our examination of the record we found that there are contemporaneous medical documents to show that the petitioner had suffered blunt injuries on his forearms and multiple abrasions with tenderness. The medical records also indicate that there was a fracture in the lower ulna because of which the petitioner was advised casting of plaster of Paris. There were also certain observations noted in the medical record, of the petitioner having suffered from nausea, anorexia, vertigo, tendency to collapse and that he was not addicted or habituated to smoking and though his pulse and behaviour appear to be normal, he seemed to be anxious. These documents produced before the Court, indicate certain injuries received by the petitioner. Therefore, we are also of the view that the petitioner received certain injuries including fracture on his left wrist. It has been also noted that though no police complaint was filed by the petitioner or anybody else regarding the said incident, the petitioner's father had submitted a representation within a few days of the incident on 4.4.1994 to the Governor of Manipur requesting for an inquiry for beating of the petitioner and his brother-in-law by the security personnel on the night of 24.3.1994. The matter was taken up by the Raj Bhavan, which forwarded the said representation to the GOC, 57 Mountain Division on 11.4.1994 for causing an inquiry. We have also gone through the oral testimonies of the petitioner and other witnesses produced before the District & Sessions Judge, testifying about the alleged physical assault by the security personnel and police. It has been noted that only one witness was produced on behalf of the Army authorities who denied the assault as alleged by the petitioner. However, neither in the course of cross examination of the witnesses produced on behalf of the petitioner nor in the examination of the witness produced on behalf of the army authorities, nothing has been mentioned about the communication from the Raj Bhavan which suggested an inquiry into the incident. However, neither in the course of cross examination of the witnesses produced on behalf of the petitioner nor in the examination of the witness produced on behalf of the army authorities, nothing has been mentioned about the communication from the Raj Bhavan which suggested an inquiry into the incident. Though the identity of the individual security personnel could not be established by the petitioner, in his cross examination he had stated that he could identify the security personnel as belonging to the Assam Rifles from the badge they wore. Therefore, in consideration of the materials on record, this Court is of the view that the finding and conclusion arrived at by the learned District & Sessions Judge that the petitioner was assaulted and beaten by the security personnel, cannot be said to be without any basis or material. Therefore, we also accept that the petitioner was assaulted on the night of 24.3.1994 by the security personnel and the allegations cannot be said to be entirely false or exaggerated or without any basis. It is also observed that there was no apparent reason for physical assault of the petitioner and his brother in law on the night of 24.3.1994 nor there is no allegation against the petitioner of being involved in any illegal or criminal or anti national activities. 10. This takes us to the next issue as to what should be the quantum of compensation for the violation of Article 21. This issue had engaged the mind of the Supreme Court from time to time as observed by the Supreme in MCD Vs Uphaar Tragedy Victims Assn: (2011) 14 SCC 481 . It was observed that there is no system or method to measure damages caused in such situation and quite often Courts have a difficult task in determining damages in various fact situations and yardsticks normally adopted for determining compensation payable provided under law of torts are not as such applicable when a constitutional Court determines the compensation in cases where there is violation of fundamental rights guaranteed to its citizens. The Supreme Court in Uphaar case (supra) noted various yardsticks adopted in various cases as "palliative" for measuring damages as done in Rudal Saha's case (supra), "exemplary" costs and "punitive" measure as mentioned in Sebastian M. Hongray Vs Union of India: (1984) 3 SCC 82 or "monetary compensation" used in D.K. Basu Vs State of West Bengal: (1997) 1 SCC 416 . Thus, there is no uniform criteria adopted for the purpose of measuring the damage or compensation. The Supreme Court in Uphaar (supra) also cautioned against adopting the various methods such as loss of earning, impairment of future earning capacity, medical expenses, mental and physical suffering, property damage etc for computing damages for violation of constitutional torts as mentioned in para 101 thereof:- 101. Constitutional courts all over the world have to overcome these hurdles. Failure to precisely articulate and carefully evaluate a uniform policy as against State and its officials would at times tend the court to adopt rules which are applicable in private law remedy for which courts and statutes have evolved various methods, such as loss of earnings, impairment of future earning capacity, medical expenses, mental and physical suffering, property damage, etc. Adoption of those methods as such in computing the damages for violation of constitutional torts may not be proper. 11. However, absence of a uniform criteria, would not come in the way of this Court to award such damage or compensation for the injury received by the petitioner at the hands of the security personnel violating his fundamental right under Article 21 of the Constitution. Having considered the facts noted in their entirety as disclosed in the inquiry report as well as the materials placed before the learned District & Sessions Judge, and considering the fact that there is no allegation of wrongdoing on the part of the petitioner and the incident occurred in 1994, we are of the view that it will be just and proper, if we award a sum of Rs. 75,000/- (Rupees seventy five thousand) as palliative measure for the suffering petitioner had undergone at the hands of the security personnel on the fateful night and subsequently, which amount, the Union respondent and the State respondent would jointly and equally share to pay to the petitioner within a period of three (three) months from today. 75,000/- (Rupees seventy five thousand) as palliative measure for the suffering petitioner had undergone at the hands of the security personnel on the fateful night and subsequently, which amount, the Union respondent and the State respondent would jointly and equally share to pay to the petitioner within a period of three (three) months from today. We have also noted that the petitioner had earlier approached the Civil Court claiming damage to the tune of Rs. 18,27,000/- against the respondents which was dismissed on the ground that the Civil Court has no jurisdiction to try the suit in absence of previous sanction of the Central Government for filing the suit. Thus, the said suit was dismissed on technical ground of lack of previous sanction of the Central Government and not on merit. Accordingly, we also hold that the petitioner may pursue his claim for enhanced compensation before a Civil Court in accordance with law, if so advised, if any such sanction is granted by the Central Government for the said purpose. With the above observation and direction, the petition stands allowed to the extent indicated above.