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2018 DIGILAW 1521 (GAU)

Achyut Ch. Mahanta v. State of Assam

2018-10-09

UJJAL BHUYAN

body2018
JUDGMENT : 1. This case was heard on 25.9.2018 and today is fixed for delivery of orders. 2. Heard Mr. A. Khaleque, learned counsel for the petitioner; Mr. N. Sarma, learned standing counsel, Education Department for respondent No. 1; Mr. R. Ali, learned counsel for respondent Nos. 2 and 3; and Mr. A. Chakraborty, learned Government Advocate, Assam, for respondent Nos. 5, 6 and 7. 3. None has appeared for respondent No. 4. 4. By filing this petition under article 226 of the Constitution of India, petitioner seeks a direction to the respondents for prosecution and punishment of respondent Nos. 2, 3 and 4 for the death of his minor son and also seeks a direction for payment of compensation for the said death. 5. According to the petitioner, his son, Mousam Raj Mahanta was about 11 years of age at the relevant point of time and he was a student of Class-VI in Saraswati Shiksha Niketan, Mirza, i.e., respondent No. 2 (School), of which respondent No. 3 was the Vice Principal and respondent No. 4 was the computer teacher. 6. On 25.5.2010, in the afternoon, petitioner's son came back home from school limping and weeping. On being enquired into, he stated that computer teacher of the school, i.e., respondent No. 4 had severely beaten him on the back side of his left leg, which was found swollen. 7. Though the son was taken to a local doctor, his condition did not improve, rather worsened. On 1.6.2010, petitioner had to get his son admitted in the GNRC hospital, Dispur, Guwahati, where he expired on 7.6.2010. 8. In the meanwhile, petitioner had approached the Vice-Principal of the school, i.e., respondent No. 3, who not only admitted beating up of petitioner's son by respondent No. 4, but also justified the same. He additionally stated that he also gave his son two lathi blows. 9. Petitioner's brother, Jayanta Mahanta lodged first information before the Palashbari Police Station, which was registered as Palashbari PS Case No. 128 of 2010, corresponding to GR Case No. 4130 of 2010. Police investigated the matter and, thereafter, submitted charge sheet against respondent Nos. 3 and 4 under section 325/34/302 of the Penal Code, 1860. The case was pending in the court of learned Chief Judicial Magistrate, Kamrup (M). It was in the above factual backdrop that the present writ petition came to be filed. 10. Police investigated the matter and, thereafter, submitted charge sheet against respondent Nos. 3 and 4 under section 325/34/302 of the Penal Code, 1860. The case was pending in the court of learned Chief Judicial Magistrate, Kamrup (M). It was in the above factual backdrop that the present writ petition came to be filed. 10. Notice in this case was issued on 8.6.2012. 11. Thereafter, the case was admitted for hearing on 20.11.2012. 12. In the hearing which took place on 22.11.2016, it was noted that the charge sheet bearing Charge Sheet No. 171/2010 was filed on 30.9.2010 against the accused, Prasun Goswami (respondent No. 3) and absconder, Ajay Singh (respondent No. 4). Learned standing counsel for the Education Department was directed to inform the court as to what action was taken by the Education Department on the aforesaid allegation against respondent Nos. 2,3 and 4. This court observed that the allegation, prima facie, being very serious, leading to death of a young student because of corporal punishment, action of the school authority ought not have been taken lightly by the Education Department; it was expected that appropriate action should have been taken by the Education Department. Court also wanted to know from the learned standing counsel for the Education Department, as to what exercise was taken by the Education Department for providing compensation for the death of a young student. 13. In the hearing which took place on 29.11.2016, record of GR Case No. 4130 of 2010 was called for. In the subsequent hearing on 20.12.2016, learned counsel who had appeared for respondent No. 2, i.e., Saraswati Shiksha Niketan, i.e., the school, was directed to obtain instructions as to the quantum of compensation, which, the respondent No. 2 was agreeable to pay to the parents of the deceased, an eleven-year old child. 14. In the meanwhile, petitioner filed an affidavit on 5.9.2017 to bring on record a copy of enquiry report dated 16.9.2010, submitted by Sri Krishna Gobinda Bhuyan, Additional District Magistrate, Kamrup (Rural) to District Magistrate, Kamrup (Rural). Petitioner stated that no copy of the said enquiry report was furnished to him and, therefore, previously, he was not aware of the same. As soon as he became aware of the enquiry report, he has brought it on record by way of the additional affidavit. Enquiry report discloses physical punishment inflicted upon the son of the petitioner by respondent Nos. As soon as he became aware of the enquiry report, he has brought it on record by way of the additional affidavit. Enquiry report discloses physical punishment inflicted upon the son of the petitioner by respondent Nos. 3 and 4. 15. In the hearing which took place on 23.1.2018, court noted that from the record of GR Case No. 4130 of 2010 it was seen that accused Ajay Singh (respondent No. 4) was absent on 18 consecutive dates. On several dates, proclamation and attachment were issued. Finally, on 15.9.2016, it was recorded that proclamation issued against respondent No. 4 had not returned as his residence was outside the State of Assam and, therefore, his presence could not be secured in-spite of repeated issuance of warrants followed by proclamation and attachment. This court further noted that as per communication of the Superintendent of Police, Kamrup (Rural) dated 6.12.2017, accused Ajay Singh (respondent No. 4) is the son of Sri H.L. Singh, who was a resident of New Police Colony, Police Station-Naharlagun in the State of Arunachal Pradesh. Consequently, Superintendent of Police, Kamrup (Rural) was directed to do the needful for execution of the warrant and proclamation against accused Ajay Singh (respondent No. 4) and, thereafter, to submit compliance report. 16. On the next date, i.e., 6.2.2018, learned Government Advocate, Assam, informed the court that the warrant and proclamation could not be executed as no such warrant and proclamation was received by the Officer In-Charge of Palashbari Police Station. Court directed the Superintendent of Police, Kamrup (Rural) for doing the needful for execution of warrant and proclamation. 17. This is where the matter stood when the case was finally heard on 25.9.2018. 18. Though this case is pending for almost 6 years now, none of the respondents have filed any affidavit in this case. The averments made in the writ petition and in the additional affidavit have, thus, remained uncontroverted. Therefore, those would be deemed to be admitted. The fact that charge sheet has been submitted against respondent Nos. 3 and 4, prima facie, reveals criminal culpability of respondent Nos. 3 and 4 in the most unfortunate death of petitioner's minor son. 19. The averments made in the writ petition and in the additional affidavit have, thus, remained uncontroverted. Therefore, those would be deemed to be admitted. The fact that charge sheet has been submitted against respondent Nos. 3 and 4, prima facie, reveals criminal culpability of respondent Nos. 3 and 4 in the most unfortunate death of petitioner's minor son. 19. In the enquiry report dated 16.8.2010 submitted by the Additional District Magistrate, Kamrup (Rural), it is stated that late Mousam Raj Mahanta was beaten by the computer teacher (respondent No. 4) on the back of the left knee on 25.5.2010 for not doing homework. As per statement of the father, Vice Principal of the School, Prasun Goswami (respondent No. 3) had also beaten the boy on the same day on the same parts of the body. Additional Deputy Commissioner has stated that respondent No. 2, i.e., Saraswati Shiksha Niketan (school) had a reputation of inflicting physical punishment on the students. Vice Principal, Prasun Goswami (respondent No. 3) himself was responsible for physically punishing many of the students. Ajay Singh (respondent No. 4) was suspended by the school authority on 4.6.2010 only after a hue and cry broke out in the locality. The role of the Vice-Principal (respondent No. 3) throughout the incident and thereafter was far from satisfactory. He was also suspended by the Principal on 10.6.2010. 20. From the narration of facts and the relief claimed, what is seen is that grievance of the petitioner is basically two-fold: first grievance pertains to criminal prosecution of the guilty persons and their commensurate punishment, whereas, the second grievance pertains to payment of compensation for the death of his minor son. 21. Insofar criminal prosecution is concerned, original record of GR Case No. 4130 of 2010 has been perused. This case was initially before the Chief Judicial Magistrate, Kamrup (M). Order dated 20.3.2013 indicates that accused Prasun Goswami (respondent No. 3) was present, whereas the other accused Ajay Singh (respondent No. 4) was absent. Non-bailable warrant of arrest and proclamation issued against Ajay Singh had not returned. Prayer was made by accused Prasun Goswami for splitting up the case as he was regularly appearing, whereas, the other accused was absconding. This prayer was accepted and a supplementary case record was prepared in respect of accused Ajay Singh complying with the provision of section 207, Cr. PC. Prayer was made by accused Prasun Goswami for splitting up the case as he was regularly appearing, whereas, the other accused was absconding. This prayer was accepted and a supplementary case record was prepared in respect of accused Ajay Singh complying with the provision of section 207, Cr. PC. Further, considering the fact that offence under section 302, IPC is exclusively triable by the court of Sessions, the case was committed to the court of Sessions Judge, Kamrup, Guwahati. Accused Prasun Goswami was allowed to remain on previous bail. In so far accused Ajay Singh was concerned, fresh warrant of arrest was directed to be issued. 22. It appears that after bifurcation of Kamrup Judicial District into Kamrup (Metro) and Kamrup (Rural), the case record was transferred to the Court of Chief Judicial Magistrate, Kamrup (Rural) at Amingaon, where it was re-numbered as GR Case No. 1378 of 2014. After about 25 dates, finally, an order was passed on 15.9.2016 by the learned Chief Judicial Magistrate, Kamrup (Rural) at Amingaon, stating that presence of accused Ajay Singh could not be secured in spite of repeated issuance of warrants of arrests and proclamation and attachment. Since it was an old pending case, the case against accused Ajay Singh was kept “filed” to be taken up again in the event of arrest and production of accused Ajay Singh before the court. 23. The above situation is not at all encouraging. Firstly, the court has been unable to procure presence of respondent No. 4 before the court despite repeated issuance of warrants of arrest and proclamation and attachment. It appears that the approach of the police in executing the warrant and proclamation was quite mechanical without putting in that extra effort as a result of which respondent No. 4 is yet to be brought to justice. Ultimately, the case was kept “filed” and the accused, against whom charge sheet has been filed alleging murder of an eleven-year old student of whom he was the teacher is roaming around scot free in defiance of the criminal justice system. It is essential that presence of respondent No. 4 is secured and he is compelled to face trial. On the other hand, there is nothing on record as to what has happened in the sessions proceeding against the other accused Prasun Goswami, i.e., respondent No. 3. 24. It is essential that presence of respondent No. 4 is secured and he is compelled to face trial. On the other hand, there is nothing on record as to what has happened in the sessions proceeding against the other accused Prasun Goswami, i.e., respondent No. 3. 24. After careful consideration, court is of the view that this case needs to be splitted up into two, confining the present proceeding to the issue relating to claim for compensation. However, regarding criminal trial of the two accused, i.e., respondent Nos. 3 and 4, court would like to monitor the same and also ensure that presence of respondent No. 4 is secured so that he faces trial, wherever he may be. In the above situation, a separate suo motu writ petition should be registered in respect of the above aspect. Registrar (Judicial), Gauhati High Court shall register a suo motu writ petition to monitor further progress of GR Case No. 4130 of 2010 (old) corresponding to GR Case No. 1378 of 2010 (new), kept in “filed” status by the learned Chief Judicial Magistrate, Kamrup (R) at Amingaon, besides, monitoring at least for some time to put on track the sessions case, where respondent Nos. 3 and 4 are the accused. Principal Secretary to the Government of Assam, Home and Political Department, Director General of Police, Assam and Criminal Investigation Department, represented by the appropriated authority be arrayed as respondents. 25. Insofar the claim for compensation is concerned, the law is well settled that if it is a case of violation of article 21 of the Constitution of India, a constitutional court can award compensation for violation of the fundamental right as above. But before elaborating on this aspect, it would be useful to mention that by the Constitution (86th Amendment) Act, 2002, article 21A was inserted in the Constitution of India, which acknowledges right to education as a fundamental right. It says that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. Thus, right to education, which was hitherto considered a fundamental right by virtue of judicial pronouncements, was expressly declared to be an enforceable fundamental right. Article 39 of the Constitution, which is a directive principle of state policy, mentions that certain principles of policy should be followed by the State. Thus, right to education, which was hitherto considered a fundamental right by virtue of judicial pronouncements, was expressly declared to be an enforceable fundamental right. Article 39 of the Constitution, which is a directive principle of state policy, mentions that certain principles of policy should be followed by the State. One such policy is that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. 26. As a matter of fact, under article 51A(k) of the Constitution, it is the fundamental duty of every citizen of India, who is a parent or guardian to provide opportunities for education to his child or his ward, as the case may be, who is between the age of six and fourteen years. 27. Following the mandate of article 21A of the Constitution, Parliament of India enacted the Right of Children to Free and Compulsory Education Act, 2009 (2009 Act). Preamble of the Act says that it is an act to provide for free and compulsory education to all children in the age group of 6 to 14 years. “Child” has been defined in section 2(c) to mean a male or female child of the age of 6 to 14 years. 28. While other provisions of the 2009 Act may not be very relevant for the present discourse, what is relevant to note is that under section 17 of the 2009 Act, there is prohibition of physical punishment and mental harassment to child. As per sub-section (1), no child shall be subjected to physical punishment or mental harassment. Under sub-section (2), whoever contravenes the provisions of sub-section (1) shall be liable to disciplinary action under the service rules applicable to such person. Before parting with the 2009 Act, reference may be briefly made to section 18 thereof, which says that no school other than a school established, owned or controlled by the appropriate Government or by the local authority, shall, after the commencement of the 2009 Act be established or be allowed to function without obtaining a certificate of recognition from such authority, by making an application in such form and manner, as may be prescribed. 29. In the course of the hearing, both Mr. Ali, learned counsel for respondent Nos. 2 and 3 and Mr. 29. In the course of the hearing, both Mr. Ali, learned counsel for respondent Nos. 2 and 3 and Mr. Sarma, learned standing counsel, Education Department submitted that respondent No. 2, Saraswati Shiksha Niketan is a private school. Therefore, it was contended that Government of Assam in the Education Department is not related to or has got no role in this matter. 30. Assam Non-Government Educational Institutions (Regulation and Management) Act, 2006 (‘2006 Act’) has been enacted to regulate the establishment and management of non-government educational institutions in the State of Assam. As per the preamble, the declared aim of the 2006 Act is to ensure exercise of certain control by the Government over the many non-government educational institutions, which have mushroomed all over the State without caring for the welfare of the students or their education. As per section 2(a), “Director” has been defined to mean Director of Secondary Education, Assam in respect of secondary and higher secondary level of education and Director of Elementary Education, Assam in respect f primary and middle level of education. “Non-government educational institutions” have been defined under section 2(g) to mean schools or junior colleges established and run by an individual or association of individuals or any Non-Government Organization or society or trust, except the schools established and maintained by minorities under clause (1) of article 30 of the Constitution of India, which do not receive any grants-in-aid from the State Government. 31. Section 3 empowers the State Government to regulate all the non-government educational institutions in the State of Assam in accordance with the provisions of the 2006 Act and the rules made thereunder. 31.1 As per section 6, the existing non-government educational institutions are required to seek registration from the concerned Director. While making application for such registration, full particulars of the schools and teachers are required to be provided. Once registered, the concerned Director will have the power of regulating and monitoring such non-government educational institutions. Under sub-section (6), those institutions which fail to fulfill the requirements of the 2006 Act and the rules shall be liable to be closed down. 32. Assam Non-Government Educational Institutions (Regulation and Management) Rules, 2007, particularly rule 24 thereof, lays down a code of conduct for teachers of recognized institutions, who are prohibited from misbehaving or treating cruelly any parent, guardian, student, teacher or employee of such institution. 33. 32. Assam Non-Government Educational Institutions (Regulation and Management) Rules, 2007, particularly rule 24 thereof, lays down a code of conduct for teachers of recognized institutions, who are prohibited from misbehaving or treating cruelly any parent, guardian, student, teacher or employee of such institution. 33. In the light of the above constitutional and statutory framework, Court is unable to accept the stand taken by the Education Department, washing its hands completely off the incident. The State not only has immense responsibility, but also has the statutory responsibility under the 2006 Act and the rules framed thereunder to deal with such a situation. 34. It is quite tragic that till this point of time, no decision has been taken by the State in the Education Department regarding payment of compensation for the death of a minor child, that too, because of corporal punishment meted out in the school. As already noted above, law is well settled that a constitutional court can award compensation if there is violation of fundamental rights of a citizen. It is not necessary to burden the judgment with the long line of judicial pronouncements on the subject. Even in the case of a non-citizen whose rights under article 21 were held to be violated, Supreme Court in Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465 , had awarded compensation to the victim who suffered rape at the hands of employees of Railways within Railway premises. 35. Though Assam State Legal Services Authority is not a party to the proceeding, as per the victim compensation scheme prepared by the State of Assam under section 457A of the Code of Criminal Procedure, 1973, a schedule of rate of compensation has been prepared including in the case of death. In recent judgments, Supreme Court has held that victims are also entitled to interim compensation; besides, compensation under section 457A of the Code of Criminal Procedure, 1973, is independent of conviction of the accused. 36. No doubt, in a case of compensation under the public law remedy, no hard and fast rule can be laid down for determining the quantum of compensation, but in some cases, Courts have applied the multiplier method provided in certain statutes like the Motor Vehicles' Act, 1988. In the instant case, admittedly, the victim was around 11 years of age and he died when he was in Class-VI. In the instant case, admittedly, the victim was around 11 years of age and he died when he was in Class-VI. From the enquiry report as well as from the uncontroverted statements, it is quite evident that the proximate cause of death of the victim was corporal punishment meted out to him by respondent Nos. 3 and 4 in the school. 37. That being the position and considering all aspects of the matter, the following directions are issued: (1) Assam State Legal Services Authority shall pay Rs. 2 lakhs to the parents of the deceased, i.e., the mother and father of the deceased, on proper identification. (2) Government of Assam in the Education (Elementary) Department, shall pay to the parents of the deceased a sum of Rs. 5 lakhs on proper identification. (3) Respondent No. 2, i.e., Saraswati Shiksha Niketan shall pay a sum of Rs. 5 lakhs to the parents of the deceased on proper identification. (4) Member Secretary, Assam State Legal Services Authority, shall ensure that proper legal aid assistance is provided to the parents of the deceased so that they can pursue before the concerned authorities for release of the compensation amounts. (5) Commissioner and Secretary to the Government of Assam, Elementary Education Department, shall take appropriate decision regarding functioning of respondent No. 2 school, i.e., Saraswati Shiksha Niketan. Such decision shall be taken within a period of 2 months from the date of receipt of a certified copy of this order. 38. The present writ petition regarding the aspect of compensation is disposed of in the above manner. However, this would be without prejudice to the petitioner seeking private law remedy. 39. As directed above, Registry shall register a suo motu writ petition in so far criminal prosecution of the accused are concerned.