HIGH COURT OF ORISSA: CUTTACK W.P.(Crl.) No.379 of 2011 In the matter of an application under Article 226 of the Constitution of India. -------- Simkari Huika, W/o Late Katru Huika, Village: Lachhamani, G.P.: Goudaguda, PS : Kakirigumma, Dist : Koraput. … Petitioner -Versus- State of Orissa and others … Opp. Parties For Petitioner : M/s Prasanta Kumar Jena & M.M.Patnaik For Opp. Parties : Government Advocate ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgement: 20.09.2011 B.N. Mahapatra, J. This writ petition has been filed by the widow of deceased Katru Huika for a direction for impartial investigation by a specially constituted investigating team or other investigating agency in order to unearth the facts in connection with the death of her husband; and for a further direction to opposite parties to pay adequate compensation to the petitioner, who lost her husband due to arbitrary action of the Police. 2. Case of the petitioner in a nutshell is that on 13th April, 2009 at about 5.30 PM her husband late Katru Huika had gone to attend the call of nature and while returning he met one Kandru Meniaka. On the way, all of a sudden one Police jawan fired at the husband of the petitioner and he died on the spot. At the time of firing, the deceased was wearing a towel and was completely unarmed. He was killed by the Police force without any provocation from the side of the deceased. Dead body of the deceased was not handed over to the petitioner and it is not known to the petitioner whether the dead body was cremated or thrown in the jungle. The matter being published in media, it sensitized the citizens of the State including many intellectuals. On the next day of the incident, one Fact Finding Committee was formed under the Chairmanship of Sri Nihar Ranjan Patnaik, the President of Koraput Bar Association and members consisting of Senior Journalist Mr.K.Sudhakar Patnaik, an Advocate-cum-Social activist, Mr.Bibeka Ranjan Sethi, Social Activist, Sri Manoranjan Routray to ascertain truth and to find out facts. The report of the said Fact Finding Committee was published and given to different authorities including the opposite parties. 3. Mr. P.K.Jena, learned counsel appearing on behalf of the petitioner submits that even though the matter relating to brutal killing of the husband of the petitioner was widely circulated in the media, no authorities including opposite parties enquired into the matter and followed the guidelines issued by National Human Rights Commission. The brutal killing of unarmed tribal people by Police Officer and not handing over the dead body to the petitioner is a serious concern amounting to violation of human rights as well as fundamental right guaranteed under Article 21 of the Constitution of India. The matter needs to be investigated by a specially constituted investigating team 2 independent of the local Police. The free, fair and credible investigation should be initiated for ascertaining the truth and restraining the Police personnel from committing merciless and brutal killing. The petitioner being an illiterate, poor tribal widow, who has lost her husband without any fault on his part, is entitled to be adequately compensated for the damage and irreparable loss caused to her. Despite petitioner’s cause was agitated by the different social activists and media persons, no action was taken by the opposite parties either for an impartial independent enquiry into the matter or for grant of adequate compensation. 4. Per contra, learned Government Advocate referring to the counter affidavit filed on behalf of opposite party No.3 submits that the writ petition is misconceived in law and on facts and as such is liable for dismissal at the threshold. On 12/13.04.2009 night the members of C.P.I. (Maoist) numbering 150 being armed with fire arms and explosives attacked Mines Magazine of NALCO during which 10 CISF personnel and 4 naxal were killed and the members of Maoist looted away some arms and one explosive loaded van and some other vehicles. In this connection, Sri Debesh Ranjan Pradhan, Dy. Subedar of SOG assault Team No.23 and the team of S.I. Shyamaghana Behera proceeded to Panchapatamali Hill area on the same night for combing operation in order to apprehend the culprits as well as to recover the looted vehicle and explosive. On 13.04.2009 after receiving information from credible source that a group of naxals numbering about 60, who were involved in mining attack, had hidden themselves at village Talamitingi, both the assault teams proceeded to village Talamitingi. 3 While the assault teams were about to reach the village at about 5.00 PM, the Maoists on coming to know about arrival of police tried to escape. Despite the raiding party with loud voice asked them to surrender repeatedly, they started firing indiscriminately towards assault party. Finding no other way out to save their lives the raiding party did open fire in return. So there was exchange of firing on the northern side of the village for about 30 minutes. The Maoists could be able to escape towards the other side. Thereafter, during search near the spot, the raiding party found the dead body of the deceased who was later on identified by the villagers, namely, Siru Huika, Lingu Sirika and others as Katru Huika, aged 28 years, son of Nadia Huika of village Karon Jajhola, PS: Narayanpatna, Dist: Koraput, presently staying at village Talamitingi. They also recovered one SBML gun, one kit bag packed with one pair of naxal uniform, one plastic box containing one multi motor, nine detonators, fuse wire and some keys of NALCO. On further search near the dead body of Katru Huika they found 19 numbers of 7.62 mm empty cartridge, 9 numbers of 0.303 empty cartridges, 2 numbers of 12 bore life cartridge, one 12 bore empty cartridge. On further search in the village, they also recovered two SBML guns, six packets of explosives of 25 Kg each, one Maoist banner. It was also established that the deceased was a member of CPI (Maoist) since one year. The deceased Katru Huika was wearing one black colour half shirt, one green colour banian, one blue colour half pant, one read colour ‘gamuchha’ and with shoes on feet which is evident from the inquest report. Thus, the opinion of the Fact Finding 4 Committee regarding the deceased that he was wearing a towel only and totally unarmed is not correct. 5. The inquest over the dead body was held on 14.04.2009 at 2.00 PM near the spot in presence of villagers of Talamitingi. Sri Basanta Kumar Odu, Executive Magisrate-cum-BDO, Semiligudu also attended the inquest and signed on the inquest report. The post mortem examination was also conducted near the spot, as it was reasonably felt insecured to send the dead body to District Headquarter Hospital, Koraput due to movement of Naxalites all around the hill top. After the post mortem examination, the dead body was handed over to the villagers Siru Huika, Sadhu Sirika and Bibi Hembreka with proper acknowledgement for cremation as per tradition and custom. 6. After due inquiry of the matter necessary information was submitted to the Assistant Registrar (Law, NHRC), New Delhi vide Office Letter No.563/HRPC dated 05.06.2009 and report submitted to the District Magistrate & Collector, Koraput vide letter No.472/NHRC dated 26.05.2009. The District Magistrate & Collector, Koraput has enquired into the matter and submitted his report vide letter No.1798 dated 29.12.2009 which was forwarded to NHRC, New Delhi. The finding of the Committee is concocted, fabricated and baseless. It is deliberate attempt to demoralize and defame the forces, who are fighting day in and day out with extremists at the cost of their lives. However, to dispel doubt and for a free, fair and credible investigation, the case is now investigated by C.I.D., CB, Orissa Cuttack. Concluding his argument learned Government Advocate submits for dismissal of the writ petition. 5 7. On the rival contentions advanced by the parties, the questions that fall for consideration by this Court are as follows:- (i) Whether deceased Katru Huika was a member of the C.P.I. Maoists group who attacked the Police and fired at Police during combing operation on 12/13.04.2009? (ii) Whether in the facts and circumstances of the case, the petitioner is entitled to any compensation for death of her husband, who was killed in combing operation in village Talamitingi on 12/13.04.2009? (iii) If the answer to question No.(ii) is in affirmative, then what should be the appropriate compensation? 8. Question No.(i) is as to whether deceased Katru Huika was a member of the C.P.I. Maoists group who fired at the Police during combing operation on 12/13.04.2009. The case of the petitioner was that her husband was an innocent tribal and was brutally killed by the security force while he was unarmed. The dead body of her husband was not handed over to her, which is a serious concern and amounts to violation of human rights and fundamental rights guaranteed under Article 21 of the Constitution of India. The petitioner claims two reliefs, namely (i) investigation by specially constituted agency; and (ii) award of adequate compensation. 9. On the other hand, case of the opposite parties is that the deceased was a member of the C.P.I. Maoists group and various arms and ammunitions were found by the side of the dead body of the deceased. The inquest over the dead body of the deceased was held on 14.04.2009 at 2.0 PM near the spot in presence of villagers. Post mortem was conducted near the spot and it was reasonably felt insecured to send the 6 dead body to District Headquarter Hospital, Koraput due to movement of Naxalites all around the hill top. After the post mortem examination, the dead body was handed over to villagers Siru Huika, Sadhu Sirika and Bibi Himirika with proper acknowledgement for cremation as per tradition and custom. However, Sadhu Sirika, son of Kursa Sirika and Bibi Himirika, son of Budura Himirika, village Talamitingi in their affidavits dated 03.09.2011 denied that the dead body of Katru Huika was handed over to them. Sri Bibi Himirika in his affidavit inter alia stated as under: “1. That the armed Jawans entered into our village at about 5.30 p.m. on 13th April 2009 and started firing indiscriminately in our village for the reason all the villagers left the Village and went to near by Jungle. 2. That one Katru Huika of our Village who was returning after attending call of the nature along with Kandru Miniaka, one of the Jawan fired a bullet at Katru Huika who died on the spot and there after they (the Jawans) took the dead body of Katru Huika to the near by forest. They have not handed over the dead body to me or Sadhu or Bibi Himirka or Siru Huika of our village.” Sri Sadhu Sirika in his affidavit dated 03.09.2011 stated exactly the above fact. Smt. Singru Huika, who is wife of late Katru Huika and petitioner in the present case, in her affidavit dated 03.09.2009 has inter alia stated as under: “1. That the armed Jawans entered into our village at about 5.30 p.m. on 13th April 2009 and started firing indiscriminately in our village for the reason all the villagers left the Village and went to near by Jungle. 2. That my husband Katru Huika after attending call of the nature was returning to the village along with Kandru Miniaka of our village. One of the Jawan fired a bullet at my Husband who died on the spot and there after they (the Jawans) took the dead body of my husband to the 7 nearby forest. They have not handed over the dead body to me or Sadhu Sirika or Bibi Himirika or Siru Huika of our village.” 10. At this juncture, it is necessary to refer to the order of the Orissa Human Rights Commission dated 12th August, 2011 passed in Suo Motu Case No.532 of 2009. In the said Suo Motu Prceeding initiated by the learned Commission on the basis of news item published in “The Times of India” in its issue dated 24.04.2009 under the caption “MAOIST WIDOW CRIES FOUL, TRIBAL WOMAN ALLEGES POLICE IMPLICATED HUSBAND” directed for payment of compensation of Rs.1.50 lakhs to the widow of deceased Katru Huika, the present petitioner. The relevant portion of the said order is extracted below:- “The CID, CB examined many witness including the wife of the deceased Katru and Kandru Miniaka who was said to be with the deceased as per the version of widow. The villagers namely Bisu Miniaka, Siru Huika, Lingu Sirka and Sadhu Sirka stated before the Investigating Officer that the deceased was taking part in Maoist activity. The Superintendent of Police states in the report that although weapon was seized near the dead body of Katru Huika hand wash of the deceased was not taken to establish that he handled the weapon. In the report he concludes as follows: “On the basis of evidence established so far it is clear that there was an encounter between police and L.W. Extremists and police acted in self- defence. However, it cannot be conclusively established that Katru Huika has fired at police or that he was a part of group who attacked police. The possibility of his being caught in the cross fire between police and Maoist thus cannot be totally ruled out. Investigation concluded that the case is true no clue. Accordingly, the I.O. has 8 been directed to submit the Final Form. Though police firing appears justified, we would have no objection if the Honourable Commission awards any compensations to deceased Katru Huika.” In view of his finding that it cannot be conclusively established that Katru Huika fired at police or that he was a part of group who attacked police, the commission is inclined to hold that the possibility of he being caught in the cross fire between police and Maoists cannot be totally ruled out. The Commission in the facts and circumstances awards a sum of rupees one lakh fifty thousand (R.1,50,000/-) only which shall be paid to the widow of deceased Katru Huika.” (underlined for emphasis) 11. Though the opposite parties alleged that the deceased husband of the petitioner was a Maoist, such allegation was not proved by them. There is nothing on record to show that the deceased was a Maoist. On the other hand, the Superintendent of Police in his report quoted above stated that it cannot be conclusively established that deceased Katru Huika has fired at Police or that he was a part of the group. The possibility of he being caught in the cross fire between Police and Maoists thus cannot be totally ruled out. The learned Human Rights Commission also accepted the said report of the Superintendent of Police in its order. 12. In view of the above, it cannot be said that the deceased Katru Huika was a member of the C.P.I. Maoist and he fired at the Police personnel during combing operation on 12/13.04.2009. 13. Question no. (ii) is as to whether the widow of the deceased Katru Huika is entitled to any compensation for the death of her 9 husband, who was killed in combing operation in village Talamitingi on 12/13.04.2009. Needless to say that one of the fundamental rights guaranteed to a person under Article 21 of the Constitution is that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Therefore, there is great responsibility on the Police authorities and other State authorities to see that a person should not be deprived of his right to life. It is not uncommon that in a cross firing between Police and anti-social(s), some times an innocent person is being caught and killed. If life of an innocent person is taken away by Police during the course of any encounter between Police and anti-social(s), such case(s) is/are governed by the legal maxim “respondeat superior” and thus the State is liable for the wrong done by the Police. 14. The apex Court in the case of Rudul Sah v. State of Bihar and another, AIR 1983 SC 1086, observed that in appropriate cases, the Court discharging constitutional duties can pass orders for payment of money in the nature of compensation consequent upon deprivation of a fundamental right to life and liberty of a person as State must repair the damage done by its officers to such person’s right. 15. In Kumari Smt. vs. State of Tamil Nadu and others, AIR 1992 SC 2069, the apex Court overruling the decision of the High Court of Tamil Nadu observed that the writ jurisdiction under Article 226 of the Constitution of India can be invoked by the Writ Court for 10 awarding compensation to a victim, who suffered due to negligence of the State or its functionaries. In that case six years’ old child had fallen down in the uncovered sewerage tank. The High Court refused to entertain the claim of compensation in a writ petition under Article 226 of the Constitution, but the Apex Court directed the State to pay compensation. 16. The apex Court in the case of State of Rajasthan v. Mst. Vidhyawati, AIR 1962 SC 933, held as under: “Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such, as any other employer. The immunity of the Crown in the United Kingdom was based on the old feudalistic notions of justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could not be sued in his own courts. In India, ever since the time of East India Company, the sovereign has been held liable to be sued in tort or in contract, and the common law immunity never operated in India…….” 17. In view of the above, the petitioner, who is the widow of the deceased, is entitled to get compensation for the death of her husband and the opposite party-State is liable to pay such compensation to the petitioner. 18. Question No.(iii) is with regard to quantum of compensation to which the petitioner is entitled to get from the State. 19. The Hon’ble Supreme Court in the case of Laxmi Devi & Ors. Vs. Mohammad Tabbar and Anr., 2008(2) T.A.C. 394 (S.C.), while considering quantum of compensation under M.V.Act, upheld the 11 notional income of the deceased determined by the Calcutta High Court at Rs.36,000/- per annum against notional income of Rs.15,000/- per annum prescribed in the Second Schedule under Section 163-A of the M.V. Act in case of non-earning persons on the ground that the notional income prescribed in the Second Schedule of the M.V. Act was in the year 1994 whereas the accident took place in the year 2004. The Second Schedule of M.V. Act prescribes multiplier 18 where the age of the victim is above 25 years and not exceeds 30 years. 20. In the instant case, the deceased died on 13.04.2009 in the alleged police encounter and at the time of his death he was 28 years old. 21. In the fact situation, we feel no useful purpose would be served in directing further investigation into the matter by any independent investigating agency and keeping in mind the age of the deceased Katru Huika and the date of his death, we feel it appropriate to direct the opposite parties to pay a lump sum Rs.4,00,000/- (rupees four lakhs) inclusive of interest to the widow-petitioner. Out of the total amount of compensation, Rs.3,00,000/- shall be kept in a fixed deposit in any Nationalized Bank in the name of the petitioner for a period of five years and renewed from time to time for a spell of five years. The monthly interest accrued thereon shall be paid to the petitioner in every succeeding month on proper identification. The balance Rs.1.00,000/- shall be paid to the widow-petitioner on proper identification. The total amount of the compensation shall be paid by the opposite party No.1 within a period of eight weeks from today and if the same is not paid, it 12 shall carry interest @ 9% per annum from the date of death of the deceased, i.e., 13.04.2009 till the date of payment. In the event, the amount so directed to be kept in a fixed deposit is required to meet the urgent need of the petitioner, the same may be withdrawn by the petitioner by filing an application for grant of such permission. 22. We notice that there are some discrepancies with regard to the name of the petitioner reflected in the cause title of the writ petition, L.T.I appearing in the affidavit accompanied to the writ petition and in the Vakalatnama enclosed with the writ petition. Though the name of the petitioner as mentioned in the cause title of the writ petition and in the affidavit is “Simkari Huika”, below the affidavit as well as in the Vakalatnama attached to the writ petition the L.T.I. is identified by the Advocate as “Sinkari Huika”. Further, in the affidavit dated 3.9.2011 the name of the wife of the deceased Katru Huika has been mentioned as “Singru Huika”. In the said affidavit the L.T.I. has been identified as “Singru Huika”. Therefore, the concerned Collector of the district is directed to verify the identity of wife of the deceased Katru Huika so that the compensation can be paid to the proper person. 23. With the above observations/directions, the writ petition is disposed of. ……………………..... B.N.Mahapatra, J. …....……………….. Chief Justice 13 Orissa High Court, Cuttack Dated 20th September, 2011/ssd/sss/skj