Compensation for death by police firing: High Court

In a recently reported decision [Arjun Mishra v. State of Bihar, AIR 2010 NOC 869] the Patna High Court has declared that the State was accountable and liable to pay compensation for death of a citizen in police firing. The High Court was dealing with the death of a person in police firing which was ordered to scare away an unruly mob. In this context, noting the precedents on the issue, the High Court directed that payment of compensation in the circumstance was in order.


The High Court speaking on the context inter alia observed as under;

10. Thus, there cannot be any iota of doubt that the death has occurred by the police firing and the father was paid compensation by the State Government. As is evident from the report of the C.B.I., the deceased was a young man aged about 18 years. The question which emanates for consideration is whether his death is warrantable in the circumstances of the case. The report is vivid that the firing was made in the air and due to misfire, a young man got serious injuries and breathed his last.
11. The importance of a life and that too the life of a young man has to be realised. Nobel Prize winner Poetess Gabriela Mistral of Chile, while speaking about the faults committed by society as regards children, spoke thus :-

“We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the fountain of life. Many of the things we need can wait, the child cannot. Right now is the time his bones are being formed, his blood is being made and his senses are being developed.” To him we cannot answer Tomorrow. His name is Today.”
12. The Apex Court in the case of M.C.Mehta v. State of Tamil Nadu, (1996) 6 SCC 756: AIR 1997 SC 699, while speaking about the obligation of the State and society towards children in the Indian ethos, quoted a stanza which reads thus :-

“I am the child. All the world waits for my coming. All the earth watches with interest to see what. I shall become. Civilization hangs in the balance. For what I am, the world of tomorrow will be I am the child. You hold in your hand my destiny. You determine, largely, whether I shall succeed or fail; Give me, I pray you, these things that make for happiness. Train me, I beg you, that I may be a blessing to the world.” (Mamie Gene Cole)
Long back, John Ruskin had expressed his view as under :

“ I hold it to indisputable, that the first duty of a State is to see that every child born therein shall be well housed, clothed, fed and educated, till it attains year of discretion.”
13. The aforesaid thoughts of great poets, jurists and thinkers have conveyed the concept of a child and the collective responsibility towards the child as a child fundamentally is the treasure of the future and has the potentiality to shine despite the antagonism of such clouds which derails the civilization. If a child dies, the possibility of a good future gets extinct. Therefore, the State, the society and the collective at large have the sacrosanct obligation to inject the kinetic dynamics to a child to make him grow, to live, to erode the clouds, ostracize the antagonism, develop empathy and usher in the laser-beam of culture and civilization in a well organized society. In the name of control of law and order situation, it cannot exceed its power by taking recourse to uncalled for and unwarranted acts to unceremoniously crush the tolerance capacity of the collective. The State cannot take advantage of the poor strata of the society who are not well equipped to fight against the City Halls. The State cannot afford to nasalize and choke the voice of the unknown because they cannot articulate their grievance adequately. The State cannot afford to bid good bye to the young children for such farewell frenzy would not only jettison the conception of accountability but also compel and constrain the nation to go for a constant mourning in the silence and stillness of shock. It is likely to cause a tremor and tribulations in a democratic body polity. The life span of a young man cannot be extinguished on the garb that there was a law and order situation and more so when there was an order only to fire in the air. The pivotal question is should the State’s conception and vision of handling a law and order situation allowing to blow the unkind wind of winter bringing a cataclysm and catastrophe to the families go unnoticed and un-remedied and the parents of a young man who lost their child remain in silence simply because they have got compensation of Rs.50,000/-. The stand in the counter affidavit is not correct on the basis of investigation by the C.B.I. that nobody has been identified. There might have been a law and order situation and a young man who was not even armed and a spectator to the incident would not have invited bullets on his body. Thus, we have no hesitation in placing reliance on the report of the CBI.
14. In this context, we may refer with profit the decision rendered in the case of Nilabati Behera V. State of Orissa (1993) 2 SCC 746 : AIR 1993 SC 1960 wherein it has been ruled thus:

“ 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.”
15. In the said case, Justice A.S.Anand (as his Lordship then was) in his concurring opinion expressed the view in the following terms :-

“The public law proceedings serve a different purpose than the private law proceedings. The relief for monetary compensation, as exemplary damages, in proceedings under Article 32 by or under Article 226, 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 civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interest as 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 wrong-doer 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.”
16. In the said case, their Lordships have clearly held that the High Court is the protector of civil liberties of the citizen and has the jurisdiction under Article 226 of the Constitution of India to grant relief to the victim or the heirs of the victim whose fundamental rights under Article 21 of the Constitution have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen notwithstanding the rights of the citizen to remedy by way of a civil suit or criminal proceedings. The interest of the public as a whole has to be taken into account to ensure that the public bodies or officials do not act unlawfully and do perform public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned. Their Lordships have emphasized that the legal heirs of the victim have a right to get compensation and the officials have to perform their public duties properly.
17. In the case of D.K.Basu v. State of West Bengal, (1997) 1 SCC 416: (AIR 1997 SC 610), it has been held as under:-

“ 9. The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the citizens………”
18. In the said case, it was further held as under:-

“44. The claim in public law for compensation for unconstitutional deprivation of fundamental rights to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortuous acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interest shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalizing the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.”
19. Again, in paragraph 54, their Lordships have ruled thus :-

“Thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence(irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizens, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.”
20. Regard being had to the obtaining factual matrix and keeping in view the aforesaid pronouncement of law, we would proceed to quantify the quantum. The young man was innocent. Death came in a most unexpected manner. The State Government has paid a sum of Rs.50,000/- only. Having regard to the age of the deceased victim, the strata from which he comes, the mental pain and sufferings the parents have suffered, the silence that would remain in his house for years and the deprivation of aid and assistance, we think that the cause of justice would be best sub-served if a further sum of Rs.2,00,000/-(Rupees two lacs) only is paid to the parents of the deceased, Sarvajeet Mishra.
21. In this regard, we may fruitfully refer to para 24 of the case of Nilabati Behera (supra):

“24. Accordingly, we direct the respondent State of Orissa to pay the sum of Rs.1,50,000 to the petitioner and a further sum of Rs.10,000 as costs to be paid to the Supreme Court Legal Aid Committee. The mode of payment of Rs.1,50,000 to the petitioner would be, by making a term deposit of that amount in a scheduled bank in the petitioner’s name for a period of three years, during which she would receive only the interest payable thereon, the principle amount being payable to her on expiry of the term. The Collector of the District will take the necessary steps in this behalf and, report compliance to the Registrar (Judicial) of this Court within three months.”
22.. In view of the aforesaid, we direct that the District Magistrate, Sitamarhi shall identify the parents of the deceased and handover the amount to be made available to the parents within a period of three months from the date of receipt of a copy of this order. The amount of compensation should be deposited in a nationalised Bank and/or post office in a fixed deposit in the name of the parents of the deceased and in absence of the parents, in the name of the surviving parent for a period of five years during which they would receive the interest payable therein. The principal amount would be paid only after the expiry of the term.
23. Before parting with the case, we are reminded of a few lines from Regum Ultimo Ratio, a poem written about the death of a small child in 1939 by Stephen Spender :

“Consider : only one bullet in ten thousand kills a man. Ask : was so much expenditure justified On the death of one so young and so silly Stretched under the olive trees, Oh , world, Oh, death ?”
24. After reproducing the aforesaid sensitive lines, we say no more.

Source: LAW-IN-PERSPECTIVE

Is Naxalism Justified ?

Naxalism had started after the backdrop of the rise and fall of the Telangana Movement (1946-51). After an incident in a remote village called Naxalbari in West Bengal, tribal people retaliated and started forcefully recapturing their lands landlords had attacked the tribal who had taken the judicial order. This movement had grown with the advent of time. All India Coordination Committee of Communist Revolutionaries was converted to Communist Party of India (Marxist- Leninist) due to disagreements between the members. ‘Allegiance to the armed struggle and non-participation in the elections’ were the two cardinal principles of this Movement.

Charu Majumdar is regarded as the ‘Undisputed Naxalite Guru’. In his leadership he had written several Articles, those articles later on became the famous ‘Historic Eight Documents’, which formed the basis of Naxalism His talks and comments becomes the ‘party line’. In his words it clearly shows that this movement is against the Corrupt persons not all the officials of the State.

Answering to the question whether Naxalism is Justified or not ? There are two sides. Government says that Naxals and Maoists are the gravest threat to the India’s Internal Security. The Government also adopts various strategies in the battle against Naxalism which hiders the normal living of common masses. On the other hand there are number of Intellectuals who tries to understand the problems of Naxalism and justifies them. Few Intellectuals can be named as Balagopal , Bela Bhatia and famous novelist Arundathi Roy. It is also very interesting here by to note that the leaders who are involved in these movements are highly educated, intellectual people. Kobad Gandhi is a classic example for it. He did his schooling from Doon School where he was classmate of Congress Leader Sanjay Gandhi. After that he went to St. Xaviers College, Mumbai and later did his Accountancy from London. He is now in Tihar Jail, New Delhi.

The Truth is very different because today the Naxalism which we call is not the same and had taken a different turn in every aspect. This turn took place after the Death of Charu Majumdar when many leaders came with different mindsets and the disintegrated the movement as a result of which today Naxalism has grown and is present in every state of India. Government, police officers and the common masses says that Naxals and Maoists are same but the truth is Maoist Movement is bigger than the original Naxal Movement in terms if its reach and its strength. The Maoist have moved leaps ahead of their predecessors who were a part of Naxalite Movement from where the word ‘Naxalite’ was coined.

The Need of the Hour is to look upon the matter specially today’s situation of growing Naxal Movement and to implements methods especially in the rural area because in this Fight between Naxals on one side and the State on the other there are common masses who are being affected. One interview by a local tribe of Chhattisgarh explains the need to cure the issue. He said :
 “Earlier, we used to fear the tigers and wild animals. Now we fear the guns of the Naxalites and the police. Life is very difficult. The Naxalites think we are helping the police. The police think we are helping the Naxalites. Nowadays, we are living in fear that who will kill us first"

DYING DECLARATION

INTRODUCTION:

The maxim “Nemo moriturus praesumitur mentire” is basis for ''dying declaration'', which means '' a man will not meet his maker with a lie in his mouth''. A dying declaration is called as '' Leterm Mortem''. The word '' Leterm Mortem'' means '' Words said before death''. Recording of dying declaration is very important task. Utmost care is to be taken while recording a dying declaration. If a dying declaration is recorded carefully by the proper person, keeping in mind the essential ingredients of the dying declaration, such declaration retains its full value.

Section 32 (1) of Indian Evidence Act.

A close scrutiny of section 32 (1) of Indian Evidence Act, it is vividly known when the statement is made by a person with regard to the cause of his death, or any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant irrespective of the person who made such declaration was expecting death or not . Thus, it is apt to say that admissibility of Dying declaration is explained in the section 32 (1) of Indian Evidence Act.

How a dying declaration should be?

There is no particular form of dying declaration. However, the best form of dying declaration is in the form of questions and answers. However, whenever a dying declaration is being recorded in the form of questions and answers precaution should be taken that exactly what questions are asked and what answers are given by the patient those should be written.

A dying declaration may be in the following forms:

1. Written form;

2. Verbal form;

3. Gestures and Signs form. In the case ''Queen vs Abdulla'', it was held that if the injured person is unable to speak, he can make dying declaration by signs and gestures in response to the question.

4. If a person is not capable of speaking or writing he can make a gesture in the form of yes or no by nodding and even such type of dying declaration is valid.

5. It is preferred that it should be written in the vernacular which the patient understands and speaks.

6. A dying declaration may be in the form of narrations. In case of a dying declaration is recorded in the form of narrations, nothing is being prompted and every thing is coming as such from the mind of the person making it.

OBJECTS;

1. The presumption is '' a person who is about to die would not lie''.

2. It is also said that '' Truth sits on the lips of a person who is about to die''.

3. The victim is exclusive eye witness and hence such evidence should not be excluded.

LAW OF LIMITATION BINDS EVERYBODY INCLUDING THE GOVT.

SC: LAW OF LIMITATION BINDS EVERYBODY INCLUDING THE GOVT.

Unless the Govt. Depts. or instrumentalities have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The Government departments are unde
r a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

Reference : SC. Office of the Chief Post Master General & Ors. v. Living Media India Ltd. & Anr., civil appeal nos. 2474-2475 of 2012 [arising out of SLP (C) nos. 7595-96 of 2011].

Adultery as a ground for Divorce under Hindu Law

Adultery can be defined, according to Black’s Law Dictionary, as the unlawful voluntary sexual intercourse of a married person with another person of opposite sex. Indian law treats adultery as an offence under Section 497 of Indian Penal Code, punishable with imprisonment which can be extended for a period of 5 years. At the outset, this provision was introduced so as to preserve the notion of a family, where a married person was not allowed to have illicit relationship once married. Under Hindu Marriage Act, adultery is one of the grounds on the basis of which a person can file a petition in order to procure decree of divorce. Very often, Courts are reluctant in awarding a decree of divorce, and put a great burden over the parties before separating them. Marriage, according to Hindus, is a sacred and impeccable bond, which if broken would lead to severe consequences. However sacred it may be, there have always existed some grounds on which marriage can be broken, and sometimes couples find themselves in a subjugating state that divorce seems to them the last resort to entreat.

Section 13 of Hindu Marriage Act, 1955 states the circumstances enabling a person to file a petition for the decree of divorce, and for our purpose clause (3) of the aforesaid section is significant which can be read as –

“has, after the solemnization of the marriage, had voluntary, sexual intercourse with any person other than his or her spouse”

So as to avoid a plethora of divorce petitions, and to save the knot of marriage, petitioner cannot as a matter of fact get the petition decreed in his favour just because of the reason that respondent had illicit relationship with some other person in past. Instead, court would be hesitant in providing such decree if respondent had abstained from indulging in such an activity for a substantial period of time, and thereafter practicing a good moral behaviour. Continuing the tradition, the onus remains on the party which files a petition to get relief on the basis of this particular ground, and courts do not make it an easier task for the petitioner, and require them to prove it stoutly, which can persuade the judges. Accusing someone of adultery means questioning the moral character of that person, and this is the reason why burden on the petitioner becomes even higher. There can certain circumstances when a person becomes perplexed whether his spouse is engaged in the act of adultery, and mere qualm can never be allowed as a strong reason to believe that the other spouse has in fact committed adultery, and courts have always remained cautious so as not to opine any erroneous decision. In addition to this, courts, very often, remain reluctant to admit the direct evidence pointing towards the act of adultery. Highly probable circumstances proving the act of adultery are relied upon by the courts while hearing this discourse.

There are certain other evidences which can, if reliable, be admitted and accepted by the court of law while pronouncing its decision for the act of adultery. A series of act, if called upon by the courts to prove this act, forms one of the most important substantiation which if proven can lead to the decree of divorce efficacious. Denying accusation of adultery by the respondent, even if he did it, can be carried out by him because of various reasons, and can plead those reasons which can form substantial ground for refuting the divorce decree. Being faulty, a petitioner cannot ask for divorce. It is as simple as it can be, one cannot ask for a relief for which he was at fault. A person, who himself engages in the act of adultery, cannot ask for a divorce decree, which if asked would be precluded by the court promptly. Eventually, it would be the discretion and satisfaction of the court which would be the deciding component in these cases.

Criminal charges cannot be framed in a suit filed in a civil court, even if such charges proven. This is because of a minimal reason that the degree of proof in a criminal court is highly sophisticated in comparison to a civil court, which shall be proven beyond all reasonable doubts disparate to what one requires to prove in a civil court. A separate suit can be filed in the criminal court under Section 497 of Indian Penal court, which would consequently lead to the engrossment of the criminal procedure while framing charges and thereby proving it. Another important point which ought to be taken into account while dealing with such cases is the naissance of a child during the period when couple had been living apart because of some differences between them, and the period between the birth of the child and last marital intercourse should be long enough in order to prove that no child, if conceived during such period, would be a legitimate child of the petitioner. It would be unproblematic to understand that petitioner in such cases would be a man. But, it would be an obligation on the part of the husband to prove that no access was feasible at the time when child was born. The period relied upon the English Court is that of 360 days after the last martial intercourse between the couple. Once proven, such a ground would leave no room for the court to believe that adultery was in fact committed by the wife. There have been certain instances when a man had requested the court to conduct blood test in order to spot whether the child born is in fact his child. But, a court cannot compel, in such cases, a wife to undergo blood test so as to make the petitioner satisfy and this shall be proven by means of facts and circumstances. Only wholesome facts and circumstances can prove such a charge. It would not be mandatory for the petitioner to name the person with whom the respondent had committed adultery, and it would not in any way affect the decision of the court. Interestingly, courts do not rely upon the confession churned out by the respondent in front of the bench. As an alternative, court will rely on the evidences presented before it with verve. It would be quite clear to understand some of the basic principles on which a divorce decree could be granted to the petitioner if demanded.

 

Source: LegalJunction