JUDGMENT

B. P. DAS, J. — The petitioners, who are the wife and child¬ren of one late Sunil Mandal, have filed this writ petition with a prayer to direct the State Government, O.P.1, to pay them compensation for the death of late Sunil Mandal in police firing.

2. An F.I.R. was lodged at Simulia Police Station on 7.2.2002 at about 9 a.m. alleging therein that the bus, namely, ‘Dolphin Dynamic’, in which Sunil Mandal was travelling on 6.2.2002, while crossing Simulia Police Station, the Police personnel waived the bus to stop, but the driver instead of stopping it, sped away. The Police van which was chasing the bus started firing at the bus and it was found that the passenger sitting towards the left of the driver was instantly killed in the police firing. After receiving the aforesaid information, a case was registered under Section 304, I.P.C. against some police personnel of Simulia Police Station. Accordingly, charge sheet was submitted and as stated by the learned counsel for the peti¬tioners, all the charge sheeted accused persons have been acquit¬ted. The passenger who died in the police firing was none other than the said Sunil Mandal. After post mortem was conducted on the body of the deceased, the doctor opined that the death was due to shock and Haemorrhage following the injury caused to the left Lung and Heart due to gunshot wound over anterior chest wall and the age of the injuries were within 24 hours from the time of post mortem examination.

3. It is worthwhile to mention here that a sum of Rs.1.00 lakh from the Chief Minister’s Relief Fund was paid to petitioner No.1 on 21.3.2002. On being noticed, a counter affidavit has been filed on behalf of O.Ps.3 & 4 sworn to by the Officer-in-Charge, Simulia Police Station, confirming the allegation of the peti¬tioners that the deceased, Sunil Mandal expired in the police firing while travelling in the bus, on N.H.5 near village-Dhobagadia crossing under Simulia Police Station and in this connection P.S. Case No.12 was registered. While narrating the details of the incident in paragraph-6 of the counter affidavit, the deponent has stated that on 7.2.2002 at about 3 p.m. while the Sales Tax Officer along with Vigilance officer were checking the buses for collection of penalty due to loading of heavy luggage, the ‘Dolphin’ bus bearing Regn. No.ORD-5525 on the plea of parking the vehicle, avoided the detention and sped towards Bhadrak. O.Ps.3 & 4 have not disputed the fact of death of late Sunil Mandal in police firing when he was travelling as a passen¬ger in the bus in question. Further a stand has been taken by the said O.Ps. that the compensation of Rs.1.00 lakh paid to the petitioners from the Chief Minister’s Relief Fund being adequate, the petitioners are not entitled to receive any further amount of compensation.

4. By order dated 7.8.2006, this Court, as an interim measure, directed the State Government to pay a further sum of Rs.1.50 lakhs to the petitioners towards compensation subject to the result of the writ petition. No counter affidavit has been filed by the State Government in its Home Department or the Collector & District Magistrate, Balasore.

5. As the fact of death of late Sunil Mandal in the manner stated by the petitioners has not been disputed nor has it been disputed that the petitioners are the legal heirs and dependents of the deceased Sunil Mandal, we are of the view that late Sunil Mandal died consequent upon the irresponsible act of the police in aimlessly firing at the bus, in which the said deceased was travelling as a passenger. Thus, the irresistible conclusion would be that the State is liable to compensate the petitioners vi¬cariously.

6. Though an objection was raised by the learned counsel for the State that compensation cannot be awarded in an applica¬tion under Article 226 of the Constitution of India, after the decisions rendered by the Supreme Court in the case of Nilabati Behera alias Lalita Behera v. State of Orissa (1993) 2 SCC 746