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2006(1) JLJ 31
R.V. Raveendran, C.J. and Dipak Misra, J.
Brijendra Thakur v. State of M.P. and others
Writ Petition No. 3043 of 2005;
Decided on 22.8.2005
(2) Constitution of India -- Arts. 226 and 21 -- High Court is protector or civil liberties, of citizen -- has jurisdiction under Art 226 to grant relief -- two children shot dead in the name of maintenance of law and order fundamental rights under Art. 21 infringed -- Rs. 2,00,000/- granted To each family.
As pleaded, one Makkhan Lambardar @ Krishnakant was sought dead by one Dharmendra Rathore who was a relative of the Jail Minister, State of M.P., He was taken into custody for offences punishable under sections 302 and 364 of the Indian Penal Code (for short ‘IPC). The residents of the village of Krishnakant, being agitated by the act of Dharmendra Rathore, demanded the resignation of the Minister. The police registered an FIR against a number of persons, forming the subject matter of Crime No. 92/ 05 on the foundation that they have created ‘Chakka jam‘ and created obstruction. The said blocking of the traffic was led by Ram Rakshpal Singh. His name did not feature in the FIR. The Additional Collector and the Additional Superintendent of Police came to village to receive the written representation from the public and while they were returning, public pelted stones on their vehicles which gave rise to Crime No. 93/05 for various offences. As set forth, the situation got galvanized and public started pelting stones on the police station and their vehicles. It gave rise to Crime No. 94/05. On the said date at 3:45 p.m. an information was received that a boy was lying injured near the school and ultimately he breathed his last and offences punishable under sections 302, 147, 148 and 149 of IPC were registered against unknown persons. As perceptible from the writ petition, a young lad, namely, Anket Gupta was shot dead on the top of his house. [Para 4
Held: We are inclined to delve into the action of the police which resulted in the death of deceased persons. In our considered view, the death had occurred due to recklessness of the police. There might have been need and necessity for dispersing the unruly mob to bring the situation under control, but it creates as sense of perplexity in the mind of a prudent person how a young child standing on the terrace and young boy not a pm1 of the active mob would invite the wrath of death in the name of maintenance of law and order. Because of this obtaining fact-situation, the public law remedy comes into playas there is a violation of human rights. [Para 8
The High Court is the protector of civil liberties of the citizen and has the jurisdiction under AI1icle 226 of the Constitution of India to grant relief to victim or the heirs of the victim whose fundamental rights under Article 21 of the Constitution are established to 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 right of the citizen to the remedy by way of a civil suit or criminal proceedings. It has been further expressed therein that in doing so, the Courts take into account not only the interest of the applicant and the respondent but also the interest of the public as a whole with a view to ensure that 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. [Para 9
Public duty has to be done properly, particularly when fundamental right of a citizen under Article 21 is concerned. Here, by the police firing, a child standing on the terrace lost his life and a young boy trying to fetch water got injured and eventually his life vanished like the foam of the sea. Under these circumstances, we have no scintilla of doubt that compensation can be granted. That being the inevitable conclusion, we proceed to quantify the quantum. We do not intend to draw any difference between the two deaths inasmuch as both were innocents and both were victims of circumstances.
In view of the aforesaid. we think that payment of compensation of Rs. 2,00,000/- in respect of each death would be proper. (1993) 2 SCC 746 and (1997) I SCC 416 followed. [Paras 12 & 13
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Misra. J. --- 1. Noble Prize Winner Poetess Gabriela Mistral of Chile while speaking about the faults committed by society as regards the 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 wait 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 To-day." The apex Court in the case of M.C. Mehta v. State of Tamil Nadu [(1996) 6 SCC 756], while speaking about the obligation of the State and Society towards the children in the Indian methods, 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 views as under:
"I hold it for 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."
We have reproduced from the thoughts of the great poets, jurists and thinkers relating to a concept of 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 the clouds and accomplishes things which make a civilisation a sustained one. But, the great populace of India cannot totally depend upon the potential propensity of a child. for a child may cry that he is the future and if he is dying there is no possibility of future. Therefore, the State, the society, and the collective at large have the sacrosanct duty to inject the kinetic dynamics to a child to make him grow to live, to erode the clouds. ostracize the antagonism, develop empathy and usher in the laser-beam of culture and civilisation in a well organised society. In the name of control of law and order situation, it cannot exceed its power by taking resource 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. It would be an anathema to proclaim 'He speaketh too much'. We are compelled to say so as such an act would only intensify the grief and danger and may in the ultimate eventuate cause social tribulation and give lise to mild concavity having the effect-potentiality of causing earthquakes in a democratic body polity. The State cannot afford to bid good bye to the children, for such farewell frenzy would not only jettison the conception of accountability but also compel and constram the nation to go for a constant mourning in the silence and stillness of shock. The constitutional safeguards for a child is for more than what is available to an adult.
2. We have begun with the aforesaid prefatory note as the case at hand depicts a sad incident by which the life spark of a seven year old child got extinguished and life span of a seventeen year old boy got cUl1ailed. 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?
3. The crucial question that arises for consideration is whether the death caused in the name of law and order is justified? Was it imperatively necessitous? Was it avoidable or was it an act of gross ne
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