IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO. 7104 OF 2009 In the matter of letter of Arjun Mishra, resident of village Taryani, P.S. Belsand, P.O. Court Bazar, District Sitamarhi. ………….. Petitioner Versus 1. The State of Bihar 2. The Director General of Police, Govt.of Bihar, Patna. 3. The District Magistrate, Sitamarhi 4. The Superintendent of Police, Sitamarhi. …………..Respondent For the Petitioner : Mr.Y.V.Giri, Senior Advocate Mr.Anshuman, Amicus Curiae For the C.B.I. : Mr.Bipin Kumar Sinha, Advocate For the State : Mr.Lalit Kishore, A.A.G.III Mr.Prasoon Sinha, G.A.III PRESENT : HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (12.05.2010) As per Dipak Misra, C.J.: On the basis of a letter received by this Court pertaining to the death of one Sarvajeet alias Raju Mishra, son of Arjun Mishra, aged about 18 years, resident of village Taryani, P.S. Belsand, P.O. Court Bazar, District Sitamarhi, a suo motu action was taken by this Court treating the letter as a writ petition. 2. On 19.3.2010, this Court had passed the following order : “The present writ petition was initiated on the basis of a letter received by this Court pertaining to the death of Sarvajeet alias Raju Mishra, son of Arjun Mishra, aged about 18 years, resident of village Taryani, P.S. Belsand, P.O. Court Bazar, District Sitamarhi. It was stated in the letter that his son was shot dead by the police in the morning hours of 15.12.2008. This Court 2 after entertaining the petition directed the learned counsel for the State to make available to this Court a copy of formal First Information Report as well as a copy of the up-to-date case diary so that this court can examine the quality of investigation that has been conducted by the police. Thereafter, a counter affidavit has been filed by the answering respondent. In the counter affidavit in paragraphs 5 to 7 it has been stated as follows :- “5. That with regard to the allegations made in the said letter that the police had shot dead the son of the petitioner, it is humbly stated that the son of the petitioner had died during the treatment in Sitamarhi Sadar Hospital. During the investigation of Sitamarhi P.S.Case No.668 of 2008, as referred above, the Investigating Officer prepared the inquest report of the dead body on 15.12.2008 at about 19.40 hours. Four gun-shot injuries were found on his chest and soon thereafter, the autopsy was conducted on the dead body and the post mortem report was prepared by the doctor. During the autopsy the doctor found four oval shape lacerated wounds and charring round the wound-margin was present. The doctor also recovered pieces of brass bullet which were sealed and handed over to the accompanying chowkidar and one Amarjit relative of the deceased. 6. That from the bare perusal of the postmortem report, it would apparent that the gun- shot injury was caused to the son of the petitioner from a very close range, may be a distance of 6” to3 Ft., which falsifies the allegations made by the petitioner in his letter that his son has died in the police firing. It is further submitted that the shots fired from regular rifle and regular pistols have larger bullets than the pieces recovered from the dead body during the postmortem examination and, therefore, it cannot be said that the small pieces of bullets recovered from the dead body could have been fired by regular rifle and regular service pistols. The small pieces of bullets recovered from the dead body are appeared to have been fired by country- made guns. 7.That it is further submitted that regular files which were used in the blank-firing in the air by the police personnel were sent by the Investigating officer under the order of the learned Chief Judicial Magistrate, Sitamarhi, passed by the ballistic experts 3 and the said expert has also confirmed the firing of regular cartridges of .303 bore. Mr.Prasoon Sinha, learned counsel appearing for the State submitted that the father of the deceased Sarvajeet Mishra alias Raju Mishra has made a false statement inasmuch as Sarvajeet was not shot dead in the police firing but he met his end by firing from close range by a country made gun, for which the police is not responsible.” 3. Be it noted, after referring to the allegations made in the letter and the counter affidavit filed by the State, this Court had further observed as follows :- “It is not disputed that a young man has breathed his last. Almost seven decades back while writing obituary on the death of an innocent young person it was spoken “humanity should consider whether death of a young man was justified who was in no way involved in the war.” It is the stand and stance of the respondents that they are not responsible and the young man died because of a close range firing by the country made pistol. In essence, the liability is shifted to a private person, may be due to a personal cavil. It is quite often repeated that truth and justice were wedded to each and other and divorce between two is impermissible. It is the duty of the justice to delve into the realm of truth as far as practicable. When a young man dies an unnatural death and colossal allegations are made and justice is not met with, it can be said with certainty, she (justice) sheds tears. For the sake of getting the truth revealed and to arrive at a just conclusion, it is appropriate that there should be an investigation by an impartial agency.” 4, After so observing, this Court directed the Central Bureau of Investigation (for short ‘CBI’) to conduct an investigation and submit a report before this Court. 5. On the basis of the aforesaid direction, the CBI conducted an investigation and submitted a report. The report indicates that protesting 4 against the murder of one Anil Kumar, a businessman based at Sitamarhi, the businessmen of Sitamarhi gave a bandh call on 15.12.2008. An unruly mob of about 200 persons forcibly entered into Sitamarhi Town Police Station. The mob was shouting slogans against the police. The officer incharge of the Town Police Station tactfully drove the mob out from the Police Station. The mob then came at Bhabdepur Chowk. Later, a large number of persons, brandishing thick bamboo sticks and spears, joined the mob and barged into the police station and ravaged the sign board of the police station and the name plate of the Police Inspector. By exhibiting utmost restraint, the police officials, available on the spot, succeeded in chasing the violent mob from the premises of the police station. The mob then moved towards the office of the police inspector, Riga, and forcibly entered into the office after breaking open the door. Thereafter, the mob turned extremely violent and began destroying the government properties. The assembly was declared unlawful and repeated warnings were given to vacate the premises. The warnings, however, fell on deaf ears and the mob completely ransacked the office, turned turtle the police jeep and set it ablaze. The rioters then started assaulting the police officials available at the place and tried to snatch the rifles and cartridges from the Home Guard Constables. Some of the police officials including the officer-in- charge sustained injuries. 5 6. Finding the mob completely unruly, violent and uncontrollable, as the report proceeds, the police resorted to mild lathi charge. The higher authorities were informed about the deteriorating law and order situation. Observing the worst situation, the officer incharge ordered to open fire in the air. After getting the order, Home Guard constable Shri Nand Kishore Singh fired in the air thrice and co-incidentally two cartridges misfired. Three more Home Guard constables namely, S/Shri Rajdeo Thakur, Pulkit Sah and Yogendra Jha fired in the air. A total of ten rounds were fired. The crowd melted after the fire and two persons who were in the mob, namely, Shri Sarvajeet Mishra, son of Arjun Mishra @ Arun Mishra, village Taryani, P.S.Kotbazar, and Shri Lalan Kumar, sustained injuries. Sri Sarvajeet Mishra, succumbed to the injuries then whereas Lalan Kumar recuperated and survived. Subsequently, on the basis of written complaint of Shri Bijay Kumar Prasad, Station House Officer-cum- Police Inspector, a case vide No.668 of 2008 was registered under Sections 147, 148, 149, 323, 504, 427, 353, 333, 307, 447, 448, 436, 379, 109, and 120B of the Indian Penal Code against Sarvajeet Mishra, Lalan Kumar and five thousand unknown persons. It was learnt during the investigation that one Lalan Paswan had filed a written complaint on 23.12.2008 in the Court of the learned Chief Judicial Magistrate, Sitamarhi against Shri Ajitabh Kumar, the then Superintendent of Police, Sitamarhi and Shri Bijay Kumar Prasad, Station House Officer, Town Police Station, Sitamarhi alleging therein 6 that some police constables, Shri Bijay Kumar Prasad, Station House Officer, Town Police Station , Sitamarhi and Shri Ajitabh Kumar, Superintendent of Police fired from their revolvers. Due to the firing of the police officials, Sarvajeet Mishra, son of Shri Arjun Mishra and Lalan Kumar received gun shot injuries and Shri Sarvajeet Mishra succumbed to the injuries. The Chief Judicial Magistrate entertained the complaint and by order dated 23.12.2008 directed the Station House Officer, Town Police Station, Sitamarhi to register a case against the police officers complained against, namely, Shri Ajitabh Kumar, the then Superintendent of Police, Sitamarhi and Shri Bijay Kumar Prasad, Station House Officer, Town Police Station, Sitamarhi. In compliance with such direction, the Station House Officer, Town Police Station, Sitamarhi instituted a case bearing No.102 of 2009 dated 11.02.2009 under Section 302/307 of the Indian Penal Code against the then Superintendent of Police and Station House Officer, Town Police Station, Sitamarhi. The investigation revealed that none of the witnesses whose names figured in the complaint supported the allegation that the Superintendent of Police and Station House Officer resorted to firing. After so saying, the C.B.I. referred to the internal injuries and posed a question that as per the orders of this Court it was their duty to find out as to who fired at the deceased Sarvajeet Mishra. 7. On the basis of the aforesaid, the C.B.I. proceeded to examine the witnesses and collected documentary evidence. Based on the evidence 7 of Lallan Kumar and Raju Kumar, Shri Ajeet Kumar Singh, the then Deputy Development Commissioner and Incharge, District Magistrate, Sitamarhi, has stated, inter-alia, that the deceased Sarvajeet Mishra was shot at by the police. Shri Arjun Mishra, father of the deceased Sarvajeet Mishra and Amarjeet Mishra, younger brother of the deceased have stated that they were not present at the scene of the occurrence and, therefore, they do not have the first hand knowledge about the incident. Shri Arjun Mishra came to know first about the tragic death of his son through one Anuj Kumar Thakur. Shri Mishra admitted to have received a compensation of Rs.50,000/- by cheque from the State Government. Shri Amarjeet Mishra, younger brother of the deceased has stated that he came to know about the death of his brother through his father as he was not present at the place of occurrence. 8. The C.B.I. in its report has stated the conclusion in the following manner :- “The facts and evidences, brought on record and precisely discussed hereinabove lead to an irresistible conclusion to the effect that deceased Sarvajeet Mishra was shot at by the Police and not by anybody else. However, the identity of the Police official who fired at and due to which the deceased received injuries could not be established more because four of the homeguard constables resorted to the firing. The averments, made in the affidavit, to the effect that the deceased was not shot at by the police, sworn by Shri Nawal Kishore Singh, Subdivisional Police Officer, Belsand, Sitamarhi is not supported by oral, documentary or material evidence.” 8 9. From the aforesaid report, it is clear as crystal that the assertions made in paragraph 6 of the counter affidavit is not correct and the conclusion of the C.B.I. that the deceased Sarvajeet Mishra was shot at by the police deserves acceptance . That apart, it is worth noting that the family of the deceased has been paid Rs.50,000/- by the State Government through cheque which has been brought on record as Annexure-C to the report. 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.” 9 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 10 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 11 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 12 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:- 13 “ 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 14 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