I N T H E H I G H C O U R T O F M A D H Y A P R A D E S I ‘ I A T J A B A L P U . R W R x T p E T I T I b N N o . ( g u i d z A 9 9 6 . s h i t . S a V i t r i D e v i , W / o P a r a s n a t h T i w a r i , R / c V i l l k & n o ; B i x k o n a D i s t t . B i l a s p u : ( M . P . ) . S h r i P a r a s n a t h T i w a r i . f a t h e r o f l a t e C o n s t a b l e S u n i l K u m a r T i w a r i , R / o v i l l . & P . o . B i r k o h a , D i s t t . B i l a s p u r ( M . P . ) . . . . P E T I T I O N E R S - V e I S ' u S - C e n t r a l R e s e r v e P o l i c e F o r c e . T h r e u g h : D i r e c t o r G e n e r a l , C R P F H e a d Q u a r t e r , N e w D e l h i . ) 4 6 4 } . D I G . C F P F G r o u p & C e n t r e , C e n t r a l R e s e r v e d P o l i c e , B h u b a n e s h w a r . O r i s s a . . . . ’ _ R _ § S P O N D E N T S P E T I T I O N U N D E R A R T I C L E 2 2 6 8 c 2 2 7 O F T H E C O N S T I T U T I O N O F I N D I A . r @ G H C O U R T O F C H H A T T I S G A R H A T B I L A S P U R E M W r i t P e t i t i o n N o . 2 4 0 7 o f 1 9 9 6 P e t i t i o n e r : S m t . S a v i t r i D e v i 8 a a n o t h e r V c r s u s R e s p o n d e n t s : C e n t r a l R e s e r v e P o l i c e F o r c € & o t h e r s / / * D u l y , 2 0 0 6 S d l - S a t i s h K . A g n i h o t r i J u d g e l o . 7 , 2 0 0 6 P o s t f o r o r d e r o n H I G H C O U R T O F C H H A T T I S G A R H A T B I L A S P U R W r i t P e t i t i o n N o . 2 4 0 7 o f 1 9 9 6 P e t i t i o n a r S m t . S a v i t r i D e v i 8 5 a n o t h e r V c r s u s R e s p o m i m l t s : C a n t r a l R e s e r v e P o l i c e F o K ' e 6 1 5 e o t h e r s S i n g l e B e n c h : H o n ’ b l e M r . J u s t i c e S a t i s h K . A g n i h o t r i . S h r i P . D i w a k a r , S e n i o r c o u n s e l w i t h S h r i R R . P a t a n k a r , c o u s n e l f o r T h e P e t i t i o n e r s . M i s s S h a n m ' l a S h i n g h a i , c o u n s e l f o r t h e R e s p o n d e n t s . O R D E R ( I / S ‘ u l y , 2 0 0 6 ) T h e p r e s e n t p e t i t i o n i s t i l e d b y t h e p a r e n t s o f l a t e S h r i S u m } K u n l a r T i w a n ' , w h o d i e d i n t h e i n t e r v e n i n g n i g h t o f 3 0 m N o v e m b e r ; 1 “ D e c e m b e r , 1 9 8 2 d u e t o b u l l e t i n j u r y s u s t a i n e d b y h i m . T h e p e t i t i o n e r s h a v e c l a i m e d t h e r e l i e f o f p a y m e n t o f l i b e r a l i t r e s a t t h e r a t e o f 7 5 % w i t h i n t e r e s t a t t h e r a t e o f 1 8 % . L e a r n e d c o u n s e l a p p e a r i n g f o r t h e r e s p o n d e n t s s u b m i t s t h a t t h e e n t i r e p e n s i o n a i y d u e s a n d o t h e r a d m i s s i b l e d u e s a s p e r l a w , h a v e b e e n p a i d t o t h e p e t i t i o n e r a n d a s s u c h n o t h i n g s u r v i v e s i n t h i s m a t t e r . 4 . T h i s C o u r t h a s d e a l t w i t h t h e i d e n t i c a l d i s p u t e i n d e t a i l b e t w e e n t h e p a r t i e s i n a n o t h e r m a t t e r i . e . W P . N o . 5 5 4 / 2 0 0 1 . T h e d e t a i l e d j u d g m e n t a n d o r d e r o f t h e s a m e i s p a s s e d o n l 1 . 7 . 2 0 0 6 . 5 . I n v i e w o f t h e r e a s o n e d o r d e r p a s s e d i n W . P . N o . 5 5 4 / 2 0 0 1 , t h i s p e t i t i o n s t a n d s d i s p o s e d o t h w h h i r . S d l - S a t i s h K . A g n i h o t r i J u d g e B a b l u o HIGH COURT OF CHHATT!SGARH AT BILA; Writ Petition No. 554 of 2001 Petitioner SIiri Parasnath Tiwari Versus Respondents Central Resen/e PoEce Force & ottiers Post ibr order on // 'Jiily, 2006. Sd/. satisbK.Agnih^ 'e ?EKi^?Ki^t^ ^ HIGH CQURT OF CHHAmSGARH AT BILASPUR Writ Petition No. 554 of 2001 Petitioner Versus Respondents Shri Par^iiafli Tiwari Central Reserve PoUce Force & others Sin^.e Beach: HonTale Mr. Justice SaUsh K. AgnUiotei. Shn P. Diwakar, Senior coiinsel wifh Sbri P.R. Pataxikar, coimsel for the Petitioner. Miss Shaniula Shinghai, counsel for the Respoadents. ORDER ( / /July, 2006) 1. The present petitton is filed by the fafher of ttis deceased son Shri Suiul Kumar Tiwari who died while performing service as constabfc wifh the Central Rcserve Police Force at Mizoram. 2. The facts of thc case, m nulsIieU, are that the soa of the petitioaer, Shri Suml Kumar Tiwan was einployed as a constable in 66 Battatfon of Central Rcserve Police Foice (m short "CRPF") at Bhubneshwar. The petitioner is a resident ofvillage Birkona, Distorict Bilaspur. He is an old man aad he has no fiaancial support due to untimely death of his son Shri Simil Kumar Tiwari (hereinafter referred to as °fhe deceased sou^. 3. According to the petitioner, fhe pctitiouer received tfae information fiom the of&ce of the respondent No. 2 that his son died on 1.2.1982 aad his last rites were perfbrmed wifhout mtimation or information to the parents, at the p]ace where fhe deceased son was workiag. 4. Accordiag to the respondents, fhe feUow coastable Shri Desb Raj while being on sentiy duty in fhe residence of fhe Devclopiaent Coiiimissioner, Mizoram at Aizwal saw a inan clunbiag a guava tiee ia the inooiilight, shot four rounds of buflets wifhia a distancc of 15 yards, whereby fhe deceased son offhe petitioner died on fhe spot. 5. The parents of fhe deceased son made several representations to respondent No. 2 for sending last photograph of their deceased son. The petitioner received a letter dated 18.12.1982 froin a friend ofhiss deceased son namefy Ravindra Kumar Sharma wherein it -was fhat the deafh of fhe deceased son was not an accident, but, it was & brutel inurder comimtted by his feUow constables. 6. The petitioner bas ffled this petition under Article 226 of &£: Constitution oflndia seeking the foBowing reUefs:- l'7.ReUef(sl souaht: It is respectfirity prayed by fhe petitioner to direct the respondents to enquire into :- ^ To direct fhe respondents to iaquire into or uwestigate thc inatter aad report to the court and the petitioner hereof. b) To direct the respondents to take action to book fhe culprit c) That an independent inquuy be ordered by the CBI or some other responsible aufhority to look into the case of fhe cleatb. of fhe petitioner's son. d) Iffhls Hon'ble Court comes to the conclusion that fhc deatfa of the petitioner's son was not by aa accident, fhen, the petitmner be sultabfy coiupensated by the respondeats. The respondents be directed to pay Rs. 5.00 lacs, as coinpensatiDn to the petitioner. e) Aay ofher reUef raay also be granted to the petitioner which this Hon'ble Coiut feels fit in the facts & ciroiusastances of fhe casc. 7. The respondents filed fheir rcply stating that fhe deafh of deceased son waa an accident on fhe iuterveiumg night of 30*h Noveinber/ 1st Deceiuber 1982. The constable Desb Raj, who fired on thfi deceased son, was arrested by the Civfl f&licc, Aizwal (MiKirainj) and a criminal case was registered agaiast 'him. The photograph aanexed with the retura, according to the petitioner, was not fhat of the deceased son of the petitioner. The respondente were directed to venfy fhe positiou. By way of ffae additioiial retum, the respondents filed the report of thc Central Forensic Science Laboratoiy, Ceatral Bureau of Investigation, Block No. 4, CGO Coinplex, Lodhl Road, New Delhi, wherein itwas stated as under;- "5. LABORATORY PROCEDURE, EXPERIMENT& ANALYSIS The laboratoiy exainlnation waa undertaken for fhe purpose of photographic coniparison amongst one another. The various photographs features were taken for coiaparisoa. The peciiliar feature, namety poiat to point physical inatch transparencies, facial feature and iudhudual characteristics in the photograph have been examined for fhe purpose of inter-comparison. The photographic features revea! some smularities but on fhe whole gross dis-siDularity appear in bofh the photographs. 6. RESULT OF EXAMINATION AND CONCLUSION On the basis of fhe laboratoiy exammatiou aad scieatific aualysis no definite conclusion could be drawii iu respect of photograph marked Q-l when coinpared witfa S-l 8. In the coiirse of fhe arguments, tfae respondents raised several objections namely the Police Departmeat, Goverruuent of Mizoram be made as a party and fhis Court has no jurisdiction iiader /u-ticle 226 of the Constitution of India as tbe cause of action arose in Aizwal wifhia fh.e territonal jurisdiction of Mizoram. It was further stated that post-inortem. was conducted at Cinl Hospital, Aizwal and the case was registered at FIR No. l/12/82 under Section 304 of the Indian Panel Code at Police Station, Aizwal on 1.12.1982. constable Desh Raj and In-chaige of the post LNK Ramjeet Singh Yadav were arrested on 2.12.1982 aad fhcy were released on bail on 6.12.1982. It was further iafonaed that fhe Superintendent of Police of Distnct Aizwal by his letter dated 8.12.1983 informed fhe Commandaat 66 BattaUon, Central Reserye Police Force, as follows :- "With reference to your letter No. P.VIII-2/83-EC-H dated 29/11/83, I am to inform you that Aizwal PoUce Statioa Case No. 1/12/82 U/S 304 IPC has been ended in final report vide No. 89 dated 3/8/83 as case true but insufBcient evidence a^iast fhe accused person. Submitted for favour ofmformation." The respondents furfher submitted in his repty that the respondents have approached the Court of ADM (I) Aizwal by filiag an appHcatioii dated 17/10/02 and flie Court ofADM (I) Aizwal passed fhe foBowm^ orders:- "Seen petition submitted by PU.V.S. Khatana A/C 71 Bn CRPF Zenbawk Aizwal prayiag for issue of FR copy in counection wifh Aizwal PS C/No. 1(12) /82 dated l/12/82 U/S 302 IPC Heaid the prosecyution fhat fhe above case have ah-eady been retumed in FR No. 83/84 dated 3/08/83 but copy ofthe FR cannot be furaisfaed the petitioner as the case record have been burat iato ashes ia fhe year 1994 when Aizwal court was gutted by fire. As is fhe fact let the petitfoner be iofonned accordingly." 10. The departmental inquiiy was conducted against the constabte Desh Raj, who was responsible for the death of fhe deceased son and LNK; Ranjit Singh Yadav, who was fhe Guard Coimnander. Pursuant to the departiaental iaquiry, constabte Desh Raj was disnussed ftom. service w.e.f. 6.7.1983 and Guard Comiaander LNK Raajit Singh Yadav was punished by reduction of rank to constable for sixtecn inonths. The civil suit filed by fhe constable Desh Raj ^ainst fhe order ofdismissal is pendiug coasideratiou in RCA No. 235/2005 in the Court of Shri Rakesh Kuinar Sharma, AD & SJ, Tees Hazari Ddhi. 11. With regard to pensionaiy benefits, the leamed counsel for the respondents submltted that atl fhe dues aa per the rules and instructions have been paid to fbe parents of fhe deceased son Late Shri Suiul Kumar Tiwari. The respondents have not madc any submission wifh regard to paynaent of coinpensation to the deceased son. 12. I have heard leamed coiinsel for the parties and perused the records appended to fhe petition as weH as the retura. 13. Objections of fhe respondents with regard to the maintaiaability of this petition uader Article 226 of the Constitution of India on the ground fhat no cause of action has ansen wifhia tfae temtorial jiinsdiction of fhis Court are legaUy untenable. Article 226 (2) clearly provides that the cause of actioa whoUy or in part if arises im the territorial jurisdiction of a High Courfc The said H^h Court has fuffi jiutediction to entertain fhe petition irrespective of the fact wheie the respondents are residing. In the present case, fhe deceased son made an appUcation for appomtaient fiom Bflaspur. The iafonnation of the death was coiniaunicated to fhe parents who reside iu Bilaspur and ttie ultimate looser or sufferer offhe death ofthe deceased son ofthe 6 parents or relatives, who reside withia fhe territorial jurisdiction fhis H^h Court Taking iato consideration aU fhe facts, it is held a part of cause of action arose here within the territorial jurisdiction. of ttus Court and fhls petition is accordiugly Baaiataiaable in Court. 14. It is evident that the son of the petitioner late Shri Sunil Kumar' died in the intervening n^ht of 30th November/' lat Denaceaiber, at 01.10 hours due to gun shot ofconstable Desh Raj. 15. The Coiut of Enquiry Committee of fhree luembers coaaprisinj Jagjit Singh, Assistant Commandant 54 Battalion, Shri A.R. Depuly S.P., 66* Battalion CRPP and Shri M.B. Negi, Depuly S. Battalion, CRPF, subiaitted their opmioa as uuder :• "OPINION Afiber taking into consideration fhe facto revealed during the course of the enquixy the court has found that No. 800650815 Ct, Sunil Kuxuar Tiwari of C/66 Bn CRPF was kffled by fiu-iag while on sentry duty at ttie resident of Development Commissioner, Mizoram at about 0110 hours on 1-12-82 due to fhe foUowins reasQns :- ^ Lack ofconfidence aad loss ofwflls, caused by the excessive fear due to fh.e suspected presence of hostiles wtuch prompted No. 800664113 Ct. Desh Raj to act m a Taastv inaaner. b) Lack of quaUties or leadership displayed by No. L/NK. Raiajit Yadav ia which he failed to tackle the wifh cool inind aad created panic which rcsulted ia a tosto'' and rash action by No. 800664113 Ct. Desh Raj.' 16. The report of fhe Central Forensic Scicnce Laboratoiy wifh regard to the photograph sent to the petitioner is not clear as to whether fhe photograph sent to the petitioner was fhe sanie or differeut. However; it is found that fhere is soine similanties, but on the whole giuss dis-suxularily. It is further noticed that the respondente/departineat has not taken aay steps in fhe criminal case ader the file was closed on fhe ground of lack of suEBcient evidence. It is further estabUshed fhat constable Desh Raj, who has been found giully in the inquiiy report, was procecded under departmental iaquity and he was disinissed finm service and Guard CoBamaader LNK Ramjit Singh Yadav was also puiushed wifh reversion to the post ofconstable for 16 nionfhs, as stated above. 17. It appears fh.at fhe respondents have taken deafh offhe deceased son of the petitioner as au accident, not the murder. Accordiagly, the FIR was lodged iinder the provisions of Section 304 of the Indian Penal Code, not under Sectiou 302 ofthe Iiidian Panel Code. 18. At this stage, directmg a fresh criminfll trial, when aU the records have been desteoyed, niay not be fi-uitful. However, in fhe facts and circumstaaces of fhe case, the petitioner caa be coinpensated for loss ofhis son and mental agony sufFered by the parents and relatives due to casual conduct of the respondents by not sending fhe deatti report or not uifortning ttie deafb to fhe father of the deceased son aad sending the photogiaphs of another person, not of ftie deceased a>a, by payment of some amouat to the aggrieved parents. 19. The Supreme Court in fhe casc of Radal Sah V».State of BUiar and another { (1983) Supreme Court Cases 141}, where Rural Sali was kept inside the jaU for more than over 14 years after acquittal without talring care of his mentel iiabalance, the Supreine Court observed iii para. 10, as under:- "10. We cannot resist fhis atyuaent We see no effective answer to it save fhe stale and sterile objectlon that thc petitioncr may, if so advised, file a suit to recover dainages fi-om fhe State Goverrunent. Happity, the State's counsel has not raised fhat objection. The petitioner couM have been relegated to the ordmaiy remedy of a suit if Iiis claiDa to compeusation was factuaUy contawersial, in fhe sense fhat a civil court may or may not have upheld tus claini. But we have ao doubt fhat if the petitioner files a suit to recover daaaages for his iUegal detention, a decree for damages would have to be passed in fhat suit, fhough it is not possible to predicate, ia tfae absence of evidence, fhe precise amouat which would be decreed in Ins favour. In Aese cucttinstances, fhe refusal of fhis Court to pass an order of compensation in favour of the petitioner wffl be doing aiere llp-service to his fundaiaental right to Uberty which fhe State Govemment has so grossly violated. Article 21 which guarantees fhe ligbt to Ufe and liberiy will be denuded of its. s^nificaut content if the power of ttus Court weie liauted to passiag orders of release fbom fllegal detention. One of the teUiag ways in wfaich the violation of that r^ht caa. reasonably be prevented and duc compUaace with the mandate ofArticle 21 secured, is to inulct its violators ia the payment of laonetary coiapensation. Admuustiatiye sclerosis leading to Qaysmt iufrmgeinents of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. Thc right to coinpensation te some paBiative for fhe unJawful acts ofinstrumentaUties whicfa act in the name of pubUc interest and whlch present for •fheir protection the powers of the State as a shield. tf civUisation is aot to perish in this cozmtry as it has perished in soiae ofhera too well-kaowu to suffer mention, it is necessary to educate ourselves into acceptmg fhat, respect for fhe r%hts of iadividuals is the true bastion of deniocracy. Therefore, fhe State must repair the damage done by its officers petitioner's rights. It niay have recouree against officers.* 20. The Supremc Court m the case of Bhlna Siaj^i, MLA Vs. Btate ®iFJ