IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10683 of 2007 MAMTA KUMARI, WIFE OF LATE BIRENDRA SAO, RESIDENT OF VILLAGE PAHARPUR, POLICE STATION FATEHPUR, DISTRICT GAYA. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, HOME DEPARTMENT, OLD SECRETARIAT, PATNA. 2. THE DIRECTOR GENERAL OF POLICE, BIHAR, PATNA. 3. THE INSPECTOR GENERAL OF POLICE, MAGADH RANGE, GAYA. 4. THE DEPUTY INSPECTOR GENERAL OF POLICE, MAGADH RANGE, GAYA. 5. THE DISTRICT MAGISTRATE, GAYA. 6. THE SUPERINTENDENT OF POLICE, GAYA. 7. THE DEPUTY SUPERINTENDENT OF POLICE, GAYA. 8. THE SUB-DIVISIONAL OFFICER, SADAR GAYA. 9. THE INSPECTOR OF POLICE, FATEHPUR, GAYA. 10. THE SUB-INSPECTOR, POLICE STATION FATEHPUR, GAYA. For the petitioner : Mr. Ajay Kr. Sharma, Advocate. For the State : M/s Nilu Agrawal, GA-6, Jainendra Kr. Sinha, AC to GA-6. Amicus Curiae : Mr. Subhash Chandra Mishra, Advocate. ----------- 08/ 13.01.2011 Heard learned counsel for the petitioner, the State and the Amicus Curiae. 2. Petitioner is the widow of Late Birendra Sao, who suffered accidental death on 15.10.2006 at the instance of police party when the police party went to the village of the petitioner to contain criminal activities. Such fact is evident from the First Information Report dated 15.10.2006 on the basis of which Fatehpur P.S. Case No. 150 of 2006 dated 15.10.2006 was registered for the offence under Sections 395, 397 of the Indian 2 Penal Code against the unknown miscreants. Later, Fatehpur P.S. Case No. 152 of 2006 was also registered against the police constable, Janardan Singh, who caused accidental death of the husband of the petitioner. After investigation, initially charge- sheet was submitted against the named constable for the offence under Section 304 of the Indian Penal Code. Court below, however, differing with the police report took cognizance for the offence under Section 302 of the Penal Code and Section 27 of the Arms Act. Later the case has been committed to the court of sessions for trial of the constable who shot dead the husband of the petitioner. 3. By filing the present writ petition, petitioner, the widow of Late Birendra Sao has prayed for grant of compensation to the tune of 15,00,000/- as also to provide her with a government job as her husband was deprived of his life without due process of law. In this connection, learned counsel for the petitioner invited my attention to Article 21 of the Constitution of India, which is quoted hereinbelow for ready reference: “21. Protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to procedure established by law.” 3 4. From perusal of Article 21 of the Constitution of India, it is crystal clear that none can be deprived of his life without due process of law. Husband of the petitioner was deprived of his life in a police action, as is evident from the First Information Report, Annexure-1. Police party reached the village to contain criminal activities and firing was resorted to by and between the police party and the miscreants in which the husband of the petitioner received accidental bullet injury and succumbed to death. 5. With reference to the averments made in paragraph 15 of the writ petition that petitioner-widow has to support a minor son and an old mother-in-law it is submitted that considering the fact that the deceased was a grocery shop owner and was earning a sum of 5,000/- per month, petitioner be at least allowed compensation of 5,00,000/- In support of such prayer learned amicus curiae in support of the petition has relied on the Division Bench judgment of this Court in the case of Shakuntala Devi Vs. The State of Bihar and others, reported in 1991(2) P.L.J.R. 494 and submitted that this Court considering the fact that husband of the petitioner was killed in a fake encounter following quarrel with two policemen directed for payment of compensation to the widow. He also relied on the 4 judgment of the Hon’ble Supreme Court in the case of D.K.Basu Vs. State of West Bengal, reported in A.I.R. 1997 Supreme Court 610 and submitted that where the infringement of the fundamental right is established the Court cannot stop by giving a mere declaration that in the facts of the case fundamental right of the petitioner has been violated. It must proceed further and give compensatory relief not by way of damages as is allowed in civil action but by way of compensation under the public law jurisdiction for the wrong done to the affected person so as to repair the wrong done by giving judicial redress as remedy for legal injury which is compulsion of judicial conscience. 6. State respondents have opposed the prayer by filing counter and supplementary counter affidavit, whereunder it has been submitted by the State respondents that husband of the petitioner suffered accidental gun shot injury while police party resorted to firing to contain the miscreants in the village which resulted in the death of the husband of the petitioner. It is also submitted that State respondents are only entitled to pay compensation in the light of the guidelines evolved by the State under Resolution dated 17.2.2010 and case of the husband of the petitioner is not covered by such resolution, as such, she is not entitled for the compensation. 5 7. Perusal of Resolution dated 17.02.2010 indicates that thereunder State-respondents have provided for grant of compensation to the victims of terrorist, extremist, communal, caste and election related violence, provided the victim himself is not a terrorist or extremist. It is submitted that under the resolution of the State dated 17.02.2010 there is hardly any scope for granting compensation to the next of kin of the victim of police action and as such, the petitioner and other members of the family of deceased Birendra Sao are not entitled for grant of any compensation. Finally, it is submitted that request of the petitioner for grant of compensation may be considered after disposal of the criminal trial in terms of the provisions contained in Sub-Section(3) of Section 357 of the Cr.P.C. 8. In rejoinder counsel for the petitioner submitted that deceased was the only bread winner for his family, which comprised of his old mother, wife and a minor son. After the death of the bread winner the family has no income as the grocery shop from which the deceased earned his livelihood is closed, the family is living in distress and is required to be compensated by the State so as to enable the family of late Birendra Sao to survive. After the accidental death of the bread winner Birendra Sao in the police action the family is suffering 6 penury and is required to be compensated by the State. From the First Information Report of Fatehpur P.S. Case No.150 of 2006 dated 15.10.2006 it is quite evident that husband of the petitioner suffered accidental bullet injury at the instance of the police party which reached the village to control the miscreants. The victim ultimately succumbed to the injury and died leaving the family which comprised of his old mother, wife and minor son in distress, completely shattered, with hardly any chances of survival. From the contents of the aforesaid First Information Report and the charge sheet it is established that husband of the petitioner was deprived of his life in a police action without due process of law, though may be on account of an accident and such deprivation of life resulted in distress and extreme hardship for the family of the deceased Birendra Sao. Article-21 of the Constitution of India mandates that none shall be deprived of his life without due process of law. Husband of the petitioner, who was the only bread winner of the family has been deprived of his life in a police action without due process of law and in these circumstances, the petitioner is required to be compensated by the State. Husband of the petitioner was 24 years old at the time of his death. His income from the grocery shop is assessed at 4,000/- per month which is at the lower side of scale. Taking into 7 account the fact that deceased left behind an old mother, wife and a minor son, it is directed that the State should pay the petitioner compensation of 4 lacs and the amount of compensation be invested in a fixed deposit with any nationalized Bank and the family should manage itself from the interest earned from the deposit. The amount should be paid from the State Exchequer by the Home Commissioner, Bihar through Bank draft drawn in the name of the petitioner, who is directed to invest the amount in a fixed deposit as stated above and to manage herself including her old mother in law and minor son from the income earned from the interest. Necessary payment be made by the Home Commissioner to the petitioner, as early as possible, in any case within two months from the date of receipt/production of a copy of this order. 9. The writ application is, accordingly, disposed of. 10. Copy of this order be also forwarded to the Secretary of the Patna High Court Legal Aid Committee with a request to the Committee to pay one hearing fee to the learned Amicus Curiae. Hearing fee is assessed at Rs.2,000/-. AFR Arjun/P.K.P./Rajesh ( V. N. Sinha, J.)