WP(C) No.519/2006 Page 1 of 16 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 519/2006 Reserved on : 14th January 2010 Decision on : 16th March 2010 RAM SINGH ..... Petitioner Through Mr. Kedar Yadav with Mr. Markandey Gupta and Ms. Pooja Rai, Advocates versus UNION OF INDIA & ORS ..... Respondents Through Mr. Rohit Madan with Mr. Arvind Gopal, Advocate for R-1 to R-5 CORAM: JUSTICE S. MURALIDHAR 1. Whether reporters of local paper may be allowed to see the judgment? No 2. To be referred to the reporter or not? Yes 3. Whether the judgment should be referred in the digest? Yes JUDGEMENT 1. The prayer in this petition is for a direction to the Respondents to award a sum of Rs.10 lakhs as compensation to the Petitioner whose son Raju Bhandari, aged 22 years, and driver of a truck/trailer, was shot dead at point blank range by Respondent No.6 Constable Anil Kumar on 13th September 2003 at about 11.30 p.m. 2. The facts of the case are best elicited from the charge sheet that has been filed in the FIR No.507 of 2003 registered at Police Station Sangam Vihar arising out of the above incident in which Respondent No.6 has WP(C) No.519/2006 Page 2 of 16 been arraigned as an accused and charged with the offence under Section 302 IPC. 3. The facts as narrated in the charge sheet read as under:- “It is respectfully submitted that on 13.9.2003 about S-50 Control room informed at police Post Pul Prahladpur P.S. Sangam Vihar, that Constable Anil No.2132/SD has informed that I am posted at P.S. Okhla and was going to take food from C.C.I. Picket, one unknown truck hit me at Lal Quan Chowk. I fell down by the side. I had a rifle which was fired, motorcycle is under the truck and the truck driver got bullet injury. From HC Kishan Chand No.1325/PCR a call was recorded vide DD No.30 at 12.08 p.m. and which was entrusted through Constable Mahabir No.3381SD to ASI Satbir Singh who along with ASI and Constable Mainuddin No. 1902/SD reached at MB Road, near Kaya Mandir Lal Quan, where a trailer No. HR-38A-7098 under which a motorcycle No. DL 2SF-9837 Kawasaki Bajaj, ahead a truck Trailer No. HR-38H-1875 and ahead from that HR-38D-7231 were found in accident condition. Both the trucks trailer collided with each other due to hit by truck trailer No. HR-38A-7098. A young boy was found dead at the left side of trailer No.HR38-A-7098. He had got two bullet injuries on his body, one near ribs at right side and another under shoulder at left side. The first injury seems like an entry wound and the second, an exit wound. The dead person was identified from his driving license, found in his pocket as driver Raju Bhandari S/o Sh. Ram Singh R/o Banwara, Champawat Distt. Haldwani, Uttaranchal, aged 21 years. Constable Anil Kumar No.2132/SD from P.S. Okhla Industrial Area, whose duty was at CCI picket, found at the spot and told that trailer No. HR-38A-7098 had tried to hit him from side at red light MB road, Lal Quan. Then he chased in order to stop it and at about 11.45 PM he tried to stop the abovesaid trailer at Lal Kuan, Near Kaya Mandir, (at WP(C) No.519/2006 Page 3 of 16 the place of occurrence) but he fell down from the motorcycle and as result his rifle fired and hit the driver of trailer, as a result he died. A driver of trailer bearing No. HR-38H-1875 named Sohan Lal S/o Sh. Pachati Das, R/o Gaon Dholi Thari, Kharba Thana, Bansoor, Distt. Alwar, Rajasthan, found at the spot and he told that while he was sleeping at his trailer along with his cleaner Banwari Lal S/o Sh. Rameshwar Swami, R/o Village Nirka, P.S. Shahpura, Distt. Jaipur, Rajasthan a trailer No. HR-38A-7098 hit his trailer as a result he got up and when came down he saw the driver of trailer No.HR-38A-7098 dead at seat and blood was oozing. Constable Anil was standing below. Besides the driver of trailer, nobody was present there at that time, the rifle of constable Anil Kumar, was checked and one round was found fired and nine alive round were found in Magazine, no eyewitness was found at the spot, as per inspection of spot/dead body, and from injury, the statement of constable Anil Kumar is false and after consideration of all the conditions, it is found an offence under Section 302 IPC. Therefore, a complaint is being sent at P.S. to register a case through constable Mahavir No. 3381/SD. SHO is present at the spot. After registration of the case, a request was sent to the crime team further investigation of the case. The crime team reached the spot with photographer. The photograph of the spot was taken on the instruction of the Inspector who was present with the crime team. The sample of the blood from the soil as well as from the sirka, test control and from the body have been taken with the help of cotton and the custody of the rifle bullet No. 8545DP Body No. 26860 NE and which contained one empty cartridge and nine cartridge in magazine were taken from the custody of Constable Anil by police. Meanwhile one Mr. Diwan son of Rati Ram R/o Village Salasigi P.S. & Distt. Pithoragarh Uttaranchal who has claimed to be a cleaner of the truck having registration No. HR 38 A 7098, came at the spot and gave his statement that he is resident of the aforesaid WP(C) No.519/2006 Page 4 of 16 address and working on the truck No. 70-98 with Mr. Raju Bhandari as cleaner. At midnight when we were going from CCI picket in his truck driven by Raju Bhandari the police officials had stopped the truck and put the truck on the side near the barrier on the road. Due to this there was very less space remained. One truck collided with one bearer. The police officials have given warning to stop the truck to Mr. Raju Bhandari but he did not stop the truck. After that we has seen that one constable have been chasing us on one motorcycle and when truck reached MB Road near Kaya Mandir two trucks also stood there and Raju Bhandari put the truck behind the trucks and did not switch off the engine of the truck and motorcycle which was driven by Constable hit the truck. Constable Anil Kumar whose name has been known lost temper and he had picked a rifle from his back and hit the driver. After that the driver immediately hit by bullet fell down and truck hit the other trucks and I in fear ran away from the place of the incident. I informed my employer and when my employer reached the place of occurrence where a number of policemen were already present and Constable Anil Kumar was also present who had killed the truck driver Raju Bhandari with his rifle by hitting a bullet must be proceeded under the law. Ct. Anil was arrested after collecting evidence. He is also in the judicial custody and on the instance of witnesses Dewan the rough sketch of the place of incident was prepared. The dead body, after postmortem from AIIMS, was given to their relatives and the sample of blood and the cloths which have been taken from the body and rifle alongwith bullet have seized and sent to FSL Laboratory Malviya Nagar, New Delhi which report have not been taken yet. After getting the report will be filed in the court. After statement of the witnesses the truck and the motorcycle have also been taken in custody and which after inspection have been released on superdari. The statement of accused Anil Kumar has been recorded in which he stated the WP(C) No.519/2006 Page 5 of 16 reasons why he hit with his service rifle to truck driver Raju Bhandari having registration No. HR-38A-7098 in which the deceased died. Postmortem report number 981/03 from doctor stated the reason of death “in this case in Hoamorologic shock as a result of antemortem fire arms projectile injury fired from close range which is sufficient to cause death in ordinary cause of nature. From statement of witnesses there is sufficient evidence against the accused Anil Kumar Column No. 3 which have been taken on the file and Anil Kumar has been charged from the evidence of the witnesses column No. 6 under Section 302 IPC and who is still in judicial custody and the witnesses be summoned.” 4. Based on the charge sheet, the Additional Sessions Judge, New Delhi has framed the following charge against Respondent No.6 on 3rd February 2004 to which Respondent No.6 has pleaded not guilty: “That you on 13.9.03 between 10.30 to 11.45 p.m., on Mehrauli Badarpur Road, near Kayamala Mandir, Lal Kuan, within the jurisdiction of P.S. Sangam Vihar, (near CCI Police picket barrier near main road light-turn) committed the murder of Raju Bhandari trailor driver with a rifle, fire arm and thereby committed an offence punishable u/s 302 IPC and within my cognizance.” 5. A departmental enquiry was instituted against Respondent No.6 under the provisions of the Delhi Police (Punishment & Appeal) Rules, 1980 [hereinafter “Rules”] in which a detailed report has been prepared. A copy of the said report has been placed on record. After setting out the facts, the allegations against the Respondent No.6 have been summarized as under:- “The above conduct on the part of Constable Anil Kumar, No. 2132/SD (Now 2216/DA) is an act of criminal indiscipline, WP(C) No.519/2006 Page 6 of 16 carelessness, negligence, dereliction to duty and untenable in a disciplined force rendering him liable to be dealt with departmentally under the provisions of the Delhi Police (Punishment & Appeal) Rules, 1980.” (emphasis supplied) 6. In the departmental enquiry, the statements of the PW1, HC Shri Gopal, PW-2, HC Virender Kumar, PW3, Inspector Satyaveer Dagar, PW-4, ASI Satbir Singh, PW-5 Sohan Lal, PW-6, Banwari Lal Cleaner, PW-7, Ct. Bheem Singh and PW-8 Diwan have been recorded. In addition the statement of Diwan, s/o Rati Ram under Section 161 CrPC has been adverted to. The said statement as reproduced in the enquiry report reads as under:- “Stated that he resides at the above address and worked as a cleaner with driver Raju Bhandari on truck No. HR-38A-7098. That night, at about midnight when Raju Bhandari driving the truck reached C.C.I. picket, the police personnel had set barriers on the road and the truck touched one of the barriers. The police signaled the trailer to stop but the driver did not stop and in the meanwhile he saw the police man who had signaled the truck to stop at the picket was following the truck on a motor cycle. As soon as the truck reached near Kaya Maya Mandir on MB Road Raju Bhandari parked the truck behind two other truck already parked and the engine of the truck was still running. The said constable put his motor cycle in front of the truck but the motor cycle immediately fell down. At this the constable whose name was confirmed as Anil Kumar got enraged and taking off his rifle from his shoulder fired upon the driver and after being hit by the bullet the driver immediately slumped on the driver seat and the truck with engine still running hit the front truck. As he was scared he got down from the truck and ran away and informed his employer and again returned to the spot with the WP(C) No.519/2006 Page 7 of 16 owner of the truck and found a large number of policemen present at the spot. Ct. Anil Kumar was also present there. The said constable has murdered truck driver Raju Bhandari by firing from his rifle. Legal action be taken against him. R.O.A.C.” 7. In the departmental enquiry, on behalf of the defence, DW1 Shri Ganga Ram, s/o Mohan Lal was examined. 8. The discussion of evidence on record and the conclusion reached in the inquiry report read as under - “Discussions of evidence on record Before commencing the discussion of evidence on record and for a better evaluation of the same the charge can be divided into three different parts as follows:- 1. That the defaulter left the picket (Static point of duty) where he was deployed for duty with his weapon unauthorizedly. 2. That by doing so, he exposed himself and his colleague who was also armed to a grave danger, by taking his rifle alone on the motor cycle. 3. That he fired from his service rifle at the innocent driver Raju Bhandari who lost his life as a result of this. As regards part 1 of the Charge the same is established beyond doubt in the testimony of 5 PWs. As regards part 2 of the Charge the same is also established beyond doubt in testimony of PW-1 HC Shiv Gopal who was also performing the picket duty along with the defaulter on the night of the incident. Part 3 of the Charge which is the serious most and criminal misconduct on the part of the defaulter is also proved beyond doubt. WP(C) No.519/2006 Page 8 of 16 1) from the testimony of PWS 2) from the circumstantial evidence 3) from the documentary & scientific evidence i.e. the P.M. report, the C.F.S.L. reports and other related documents. As such whatever the provocation might have been the defaulter Ct. Anil Kumar No. 2216/DAP is responsible for causing the death of innocent driver Raju Bhandari by firing from his service rifle. Conclusion Hence the charge against the defaulter Ct Anil Kumar No. 2132/SD (Now 2216/DAP) stands fully proved.” 9. Learned counsel for the Petitioner states that the above enquiry report itself substantiates the claim of the Petitioner that in the course of his official duty, Respondent No.6 caused the murder of the Petitioner’s son at point blank range. The deceased was the only bread earner for the Petitioner and the other children of the Petitioner. At the time of the filing of the writ petition on 12th December 2005 the situation was that the Petitioner being a poor person had no source of income at all, his two daughters were of marriageable age, two other sons were minor and unemployed. Counsel for the Petitioner has relied upon the judgments of the Supreme Court in Chairman, Railway Board v. Chandrima Das 2000 CRI. L.J. 1473 and the judgment of this Court in Surender v. Commissioner & Secretary NCT & Ors. 2005 [3] JCC 1595. 10. On behalf of the Respondents, it is submitted that the State cannot be held vicariously liable for the negligence of its employees. Reliance is WP(C) No.519/2006 Page 9 of 16 placed upon the judgment in Kasturilal Ralia Ram Jain v. State of Uttar Pradesh AIR 1965 SC 1039. Further it is submitted on the strength of the decision in N. Nagendra Rao & Co. v. State of Andra Pradesh (1994) 6 SCC 205, the negligence of the employees while performing the functions such as administration of justice, maintenance of law and order and repression of crime cannot be fastened on the State any liability “since Respondents 1 to 5 have been discharging obligations under the sovereign functions, the instant writ petition for grant of compensation may not be directed against them”. According to the Respondents 1 to 5, it is the Respondent No.6 who had committed the crime “in his personal capacity and is liable to face legal consequences and that “State is not liable for any of the tortuous acts done by officers in his personal capacity and the State claims sovereign immunity. Reliance is also placed on the judgment of the Supreme Court in Achutrao Haribhau Khodwa v. State of Maharashtra AIR 1996 SC 2377. 11. The facts are really not in dispute in the instant case. In any event, this court proposes to rely only upon the facts as found substantiated by the Respondents themselves after full-fledged inquiries. There are two documents which have been placed on record for this purpose. One is the charge sheet which is the result of a detailed investigation by the police. On that basis, charges have been framed against Respondent No.6 under Section 302 IPC. Then there is a very detailed report of departmental enquiry. It narrates the facts, the allegation, the analysis of the evidence and the conclusion. This report establishes on a preponderance of probabilities, that the negligence and dereliction of duty charges against WP(C) No.519/2006 Page 10 of 16 the Respondent No.6 stand established beyond doubt. The charge as set out in the report of the departmental enquiry is in three parts. The report concludes that “part three of the charge which is the serious most and criminal misconduct on the part of the defaulter is also proved beyond doubt”. This part of the charge relates to the Respondent No.6 leaving the picket “where you were deployed for duty with your weapon unauthorizedly, exposing your colleague who was also armed grave danger but also exposed yourself to danger by traveling along with rifle alone on your private motor cycle. Secondly, you fired from your service rifle at the innocent driver Raju Bhandari who lost his life on such a petty issue.” The charge which has also been held to be proved beyond doubt is that the conduct of Respondent No.6 “is an act of criminal indiscipline, carelessness, negligence, dereliction to duty and untenable in a disciplined force rendering him liable to be dealt with departmentally under the provisions of the Delhi Police (Punishment & Appeal) Rules, 1980”. 12. In view of the above categorical findings, this Court is unable to accept the submissions made on behalf of the Respondent State that Respondent No.6 was acting in his personal capacity. 13. The claim of the State to sovereign immunity, as claimed in the present case, has long been discarded by the Supreme Court in a series of pronouncements. In Chairman, Railway Board v. Chandrima Das, the concept of sovereign immunity has been discussed in a very elaborate manner. After referring to the pronouncements of the Supreme Court as WP(C) No.519/2006 Page 11 of 16 well as certain international conventions, the Supreme Court has held (AIR @ p. 1484): “42. The theory of Sovereign power which was propounded in Kasturi Lal's case (1966) II LLJ 583 SC has yielded to new theories and is no longer available in a welfare State. It may be pointed out that functions of the Govt. in a welfare State are manifold, all of which cannot be said to be the activities relating to exercise of Sovereign powers. The functions of the State not only relate to the defence of the country or the administration of Justice, but they extend to many other spheres as, for example education, commercial, social, economic, political and even marital. These activities cannot be said to be related to Sovereign power.” 14. In Chairman, Railway Board v. Chandrima Das the Railways were made liable for the criminal act of its employees. In para 43, the Supreme Court held as under (AIR @ p. 1484): “43. Running of Railways is a commercial activity. Establishing Yatri Niwas at various Railway Stations to provide lodging and boarding facilities to passengers on payment of charges is a part of the commercial activity of the Union of India and this activity cannot be equated with the exercise of Sovereign power. The employees of the Union of India who are deputed to run the Railways and to manage the establishment, including the Railway Stations and Yatri Niwas, are essential components of the Govt. machinery which carriage on the commercial activity. If any of such employees commits an act of tort, the Union Govt., of which they are the employees, can, subject to other legal requirements being satisfied, be held vicariously liable in damages to the person wronged by those employees. Kasturi Lal's decision, (1966) II LLJ 583 SC, WP(C) No.519/2006 Page 12 of 16 therefore, cannot be pressed in aid. Moreover, we are dealing with this case under Public Law domain and not in a suit instituted under Private Law domain against persons who, utilising their official position, got a room in the Yatri Niwas booked in their own name where the act complained of was committed.” (emphasis supplied) 15. The law settled in Chairman, Railway Board v. Chandrima Das has been reiterated in a number of decisions thereafter, including S.P.S. Rathore v. State of Haryana & Ors. (2005) 10 SCC 1, Vikram Dhillon v. State of Haryana & Ors. 2007 (2) SCALE 67. 16. In view of the enunciation of the law hereinbefore, the claim of the State to sovereign immunity in the present case is hereby rejected. 17. The award of compensation for a constitutional wrong committed by the State or its employee is recognized in several judgments of the Supreme Court. Beginning with Rudul Sah v. State of Bihar (1983) 4 SCC 141, the Court has provided this remedy in a series of other cases including Bhim Singh v. State of Jammu and Kashmir AIR 1986 SC 494; PUDR v. Union of India AIR 1982 SC 1473; Nilabati Behera v. State of Orissa AIR 1993 SC 1960 and D.K. Basu v. State of West Bengal AIR 1997 SC 610. This Court too has recognized this in several decisions, including Master Dheeru v. Govt. of NCT of Delhi 160 (2009) DLT 759, Sunita v. State of NCT of Delhi 151 (2008) DLT 192, Ram Kishore v. MCD 2007 VII AD (Delhi) 441, Ashwani Gupta v. Govt of WP(C) No.519/2006 Page 13 of 16 India & Ors. 117 (2005) DLT 112, Smt. Kamla Devi v. Govt. of NCT of Delhi & Anr 114 (2004) DLT 57 and Smt. Shyama Devi & Ors. v. NCT & Ors 78 (1999) DLT 827. 18. The question that remains to be decided is the amount of compensation that the Petitioner would be entitled to. The claim of compensation is in the sum of Rs.10 lakhs. The exact earnings of the deceased have not been indicated. However, going by the minimum wages for a skilled worker payable in Delhi at the time of the incident, his annual income works out to Rs.40,515/-. This has been calculated on the basis that at the relevant time, the minimum wage for a skilled worker in Delhi was Rs.111/- per day. (It may be noted that with effect from 1st February 2010, minimum wages for a skilled worker in Delhi have been revised to Rs.248/- per day). 19. This Court has, in Kamla Devi v. Govt. of NCT of Delhi [followed in Ram Kishore v. MCD], adopted a formula to calculate the sum to be awarded wherein standard compensation for non-pecuniary losses was to be added to the compensation calculated for pecuniary loss of dependency. The same method is being adopted in the present case and is explained hereunder. The Standard Compensation for non-pecuniary losses in 1989 is taken to be Rs. 50,000 as propounded in Lata Wadhwa v. State of Bihar (2001) 8 SCC 197. The said sum is required to be adjusted for September 2003, when the incident took place, based on the Consumer Price Index for Industrial Workers (CPI-IW), published by the WP(C) No.519/2006 Page 14 of 16 Labour Bureau, Government of India. With the base year 1982(=100), the average CPI (IW) for the year 1989 was 171 and the average CPI (IW) for the year 2003 was 496. Hence, the inflation-corrected value works out to Rs. 1,45,000/- [50,000 x 496/171]. The Standard Compensation in this case, thus amounts to Rs. 1,45,000/-. 20. For calculating the compensation for pecuniary loss of dependency, the multiplier method (multiplier value given in the Second Schedule of the Motor Vehicles Act, 1988  Yearly income of the deceased less the amount spent on himself or herself) is used. This has been adopted in G.M., Kerala SRTC v. Susamma Thomas AIR 1994 SC