Ramhit Lodhi S/o Deenbandhu Lodhi v. State of Madhya Pradesh, through Collector Satna, District Satna
2016-04-29
RAJENDRA MAHAJAN, S.K.SETH
body2016
DigiLaw.ai
JUDGMENT : Rajendra Mahajan, J. This writ petition was initially filed by the petitioner in the nature of habeas corpus under Article 226 of the Constitution of India for the production or release of respondent No.4. Later on, this petition has been converted for grant of compensation to his legal representatives in pursuance of the order dated 15.04.2016 of this Court. 2. Background facts are as follows: 2.1 The petitioner had filed on 06.03.2010 this writ petition under Article 226 of the Constitution of India seeking issuance of a writ in the nature of habeas corpus with the averments and allegations that respondent No.4 Kamlesh @ Kammu Lodhi is the brother of his wife. On 29.11.2009 at around 10:00 p.m., Head Constable Rana Singh, who is respondent No.5 herein, of Police Station Maihar (for short P.S. Maihar) with other policemen came to the house of respondent Kamlesh in village Dhanwahi and took him with them to P.S. Maihar on the pretext of his interrogation in a criminal case. On 30.11.2009, his wife Gomti Bai approached P.S. Maihar seeking information about his whereabouts. She was told by the policemen present there that her husband had been released. However, he had not showed up in his home for the next three weeks. Thereupon, Gomti Bai started worrying about his safety and well being. On 23.12.2009, she met respondent No.2 the Superintendent of Police, Satna and sought information regarding her husband. Upon his advice, on 24.12.2009 she met respondent No.3 S.H.O. P.S. Maihar. He told her that her husband was arrested on 02.12.2009 by the policemen of P.S. Maihar and the same day he was produced before the Court of Sub Divisional Magistrate, Maihar (for short the S.D.M., Maihar). The said Court released him on bail. Thereafter, she discerned information from the local lawyers regarding the proceedings conduct against her husband on 02.12.2009. Whereupon, she came to know that her husband was produce before the S.D.M. Maihar on 02.12.2009 and the same day he was released on bail upon his executing a personal bond in a sum of Rs.40,000/-. Thereafter, she further discovered that the proceedings of the S.D.M. Court Maihar, the arrest memo and the other documents prepared by the police did not bear the signatures of her husband and someone impersonating respondent Kamlesh signed the aforesaid documents. On 26.12.2009, she again met the police personnel of P.S. Maihar.
Thereafter, she further discovered that the proceedings of the S.D.M. Court Maihar, the arrest memo and the other documents prepared by the police did not bear the signatures of her husband and someone impersonating respondent Kamlesh signed the aforesaid documents. On 26.12.2009, she again met the police personnel of P.S. Maihar. They gave her a document saying that a missing person report is lodged upon the disappearance of her husband, whereas neither she nor any members of her family lodged the missing person report of her husband. Thus, the police personnel of P.S. Maihar lodged the missing person report of her husband suo motu. Thereafter, she made several representations to the respondents authorities regarding the search of her husband, but all in vain. She apprehended that police personnel of P.S. Maihar might have liquidated him and in order to cover up their evil acts, they had produce an impersonator before the S.D.M. Court Maihar. Under the circumstances, the petitioner prays to issue a writ in the nature of habeas corpus directing the respondent Nos. 1 to 3 to produce corpus of respondent Kamlesh. 2.2 Respondent Nos. 1 to 3 filed a joint reply on 07.04.2014 in which they denied all the allegations made in the petition. Their reply in brief is that respondent Kamlesh was arrested on 02.12.2009 in Istgasa No.185/09 of P.S. Maihar registered against him under Sections 41 (2) and 109 of the Cr.P.C. On the same day, his arrest was duly conveyed to his wife Gomti Bai and thereafter he was produce before the Court of S.D.M. Maihar. The said Court has registered the Istgasa as Case No.161/09 the parties being State v. Kamlesh. In that case, the S.D.M. Maihar released respondent Kamlesh after he had executed a personal bond (Muchalka) of Rs.5,000/- for his presence in the case on due dates. On 26.02.2009, Gomti Bai herself made a complaint regrading disappearance of her husband/ respondent Kamlesh. Thereupon, a missing person report being No. 103/09 is registered and information of the same is conveyed to all the concerned and also declared a reward of Rs.2,500/- later on which was raised to Rs. 5,000/- for providing information about his location. It is further stated in the reply that P.S. Maihar has registered two cases at Crime Nos. 109/89 and 146/08 on 30.05.1989 and 25.02.2008 respectively against respondent Kamlesh for the offences punishable under Section 379 of the IPC.
5,000/- for providing information about his location. It is further stated in the reply that P.S. Maihar has registered two cases at Crime Nos. 109/89 and 146/08 on 30.05.1989 and 25.02.2008 respectively against respondent Kamlesh for the offences punishable under Section 379 of the IPC. Thus, he has criminal antecedents. In the latter case, the concerned Court has issued perpetual arrest warrant against him. In order to evade the arrest in the case, respondent Kamlesh has holed up somewhere. It is also stated in the reply that the conduct of respondent Rana Singh is found to be suspicious. Thereafter, he was thoroughly interrogated, but no evidence is available that he suffered custodial death. All out efforts are being made out to trace him out. 2.3 Respondent No.5 Rana Singh in his short reply denied all the allegations levelled against him in the writ petition. His defence is that on 02.12.2009, he arrested respondent Kamlesh in Istgasa No.185/09 of P.S. Maihar and on the same day he produce him before the S.D.M. Court, Maihar. On the same day, the Court has released him on bail after his furnishing a personal bond. He has no knowledge where respondent Kamlesh has gone after being released. 2.4 This Court ordered the C.I.D. enquiry and judicial enquiry in the matter on various dates. 2.5 As per the enquiry report submitted by the C.I.D. respondent No.5 Rana Singh rounded respondent Kamlesh up from his house. However, his corpus was not traced out despite all out efforts. Thereupon, a criminal case at Crime No.299/12 in P.S. Maihar is got registered against respondent Rana Singh for the offences punishable under Sections 177, 182, 205, 365, 201 and 120-B of the IPC. Upon completion of the investigation, the charge-sheet is filed against him in the Court of J.M.F.C. Maihar. Thereupon, criminal case No.1119/13 is registered in which trial is going on. 2.6 Upon the order of this Court, the judicial enquiry was conduct by the C.J.M. Satna. On 17.12.2011, he submitted his report in which he gave two findings in Para 27 of the report on the basis of the evidence collected in the course of enquiry. First on 29.11.2009 at about 10:00 p.m. respondent Rana Singh arrested respondent Kamlesh from his residence at village Dhanwahi in Crime No.212/09 of P.S. Maihar registered under Sections 457 and 380 on suspicion.
First on 29.11.2009 at about 10:00 p.m. respondent Rana Singh arrested respondent Kamlesh from his residence at village Dhanwahi in Crime No.212/09 of P.S. Maihar registered under Sections 457 and 380 on suspicion. Second in Istgasa No.185/09 of P.S. Maihar, on 02.12.2009 respondent Kamlesh was not arrested as claimed by the police authorities and in place of him some other person showing him respondent Kamlesh was produce before the Court of S.D.M. Maihar. The arrest memo and bail bond did not bear signature of the deceased. 2.7 Upon the aforesaid reports, this Court on 15.04.2014 passed an order for consideration of granting of compensation to the legal representatives of respondent Kamlesh keeping in view the exposition of the apex Court in the case of Smt. Nilabati Behera alias Lalita Behera v. State of Orissa and others ( AIR 1993 SC 1960 ). 2.8 In the light of the aforesaid order, the petitioner further amended the petition and made the averments that deceased was an agriculturist, he owned four acres of land in village Dhanwahi and that by doing farming thereon he used to earn Rs. 7,000/- to 8,000/- per month. Thus, his notional income Rs.54,000/- per year be presumed as per existing wages fixed by the Collector for unskilled labourer. At the time of alleged incident, he was about 35 years old and his wife Gomti Bai aged 38 years and his two children Chhotu and Neelu aged 20 and 21 years respectively are dependent upon him. The answering respondents be ordered to pay them a total compensation of, at least, Rs. 12 lacs on the heads such as loss of dependency, loss of estate, loss of consortium, pain and suffering and loss of love and affection. It is also submitted that the multiplier of sixteen be applied for calculation of loss of dependency. 2.9 In view of the above amendments made in the petition, the respondent Nos. 1 to 3 filed a rejoinder in which they have averred that the possibility of respondent Kamlesh being alive cannot be ruled out as his corpus is still not traced out. At the time of alleged incident, the age of respondent Kamlesh was between 38 to 40 years and he was unemployed man having criminal background. These facts may be considered while awarding the compensation. 3.
At the time of alleged incident, the age of respondent Kamlesh was between 38 to 40 years and he was unemployed man having criminal background. These facts may be considered while awarding the compensation. 3. Now, the point for consideration before us is that how much compensation respondent Kamlesh's wife Gomti Bai and his two sons are entitled to get and from which respondents? 4. In the matter(s) of Ramesh Singh Pawar v. M.P. Electricity Board, ( 2004 (2) MPLJ 506 M.P.) and Nirmala Nayak and others v. The Grid Corporation of India and others ( 2007 ACJ 283 Ori.), the deceased died of electrocution and their legal representatives claimed compensation under torts. In these cases, the compensation was assessed with the aid of second schedule of the Motor Vehicles Act, 1988. It is also pertinent to mention here that it is also prayed in the petition that the compensation amount be determined on the basis of multiplier system. Hence, we proceed to decide the compensation as per the aforesaid schedule. 5. The petitioner has not produce any documentary or oral evidence with regard to the age and income of deceased at the time of alleged incident. The documents of his education and ownership of the agricultural land are not produce, though in the petition it is claimed that he was owner of a total of four acres of agricultural lands situated in village Dhanwahi. For want of evidence on the aforesaid points, we assess his income as an ordinary unskilled manual labourer. Taking note of the facts that respondent Kamlesh was a resident of village Dhanwahi and that in the villages manual jobs are not available during the whole year, we determine his monthly income Rs. 4,000/- and thus his annual income would be Rs.12x4000=48,000/-. As per the averments made in the petition, the age of Kamlesh's wife Gomti Bai is 38 years and the age of his two children are 20 and 21 years respectively. Taking a clue on the basis of the age of them, we fix that at the time of alleged incident respondent Kamlesh was in the age group of 35 to 40 years. The Supreme Court in the case of Sarla Verma v. D.T.C., ( 2009 ACJ 1298 ) has approved the multiplier of fifteen in the aforesaid age group of a person in case of his/her death in a vehicular accident.
The Supreme Court in the case of Sarla Verma v. D.T.C., ( 2009 ACJ 1298 ) has approved the multiplier of fifteen in the aforesaid age group of a person in case of his/her death in a vehicular accident. After deducting ? of living expenses of respondent Kamlesh, we award in the head of loss of dependency a total compensation of Rs. 4,80,000/- (48,000 x ? x 15). Taking into consideration, the age of Gomti Bai and her two sons and the annual income of respondent Kamlesh as decided, we award in the heads namely loss of consortium Rs.50,000/-, loss of love and affection to the children Rs.20,000/- and loss of estate Rs.30,000/-. Thus, we hold that respondent Kamlesh's wife Gomti Bai and his two sons are entitled to get a total compensation of Rs. 5,80,000/-. 6. In the light of discussions supra, it is ordered that:- 6.1 Respondent Nos. 1, 2, 3 and 5 jointly and severely pay to respondent Kamlesh's wife Gomti Bai and his two sons a total compensation of Rs. 5,80,000/- within two months from the date of this judgment, failing which they are entitled to get 6% annual simple interest on the aforesaid amount from the date of this judgment till the date of payment. 6.2 Of the total compensation, each son of respondent Kamlesh is entitled to get Rs.50,000/- and the remaining compensation shall go to the share of respondent Kamlesh's wife Gomti Bai. 6.3 In order to secure Gomti Bai's future financially, she is entitled to get Rs.1,00,000/- in cash and the remaining amount of her share will be deposited for ten years in F.D.R. of nationalised bank fetching maximum rate of interest. She is entitled to withdraw the accrued interest thereon every month. However, she is not entitled to get premature payment and any loan against the deposit. 6.4 The compensation shall be payable to respondent Kamlesh's wife Gomti Bai only when she furnishes an undertaking and one solvent surety of Rs.8,00,000/- to the effect that in case respondent Kamlesh is found alive, then she will return the total compensation with 6% annual simple interest within three months from the date of order of this Court. 7. The disbursement of compensation and other incidental proceedings will be held under the supervision of the District Judge Satna.