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IN THE HIGH COURT OF TRIPURA
Deepak Gupta, S.C. Das, JJ.
Selina Aktar alias Khatoon, Shri Jashim Uddin, Shri Nazir Uddin and Smti. Fariza Khatoon - Appellant
Versus
Union of India - Respondent
W.P. (C) 388 of 2002
Decided On : 09-04-2014
Compensation - Border Security Force - IPC, Arms Act - Sections 307/398, 302, 27 - The court awarded compensation of ` 3,00,000/- to the petitioners for the death of Nanu Mia caused by firing from respondent No. 3. The court found that the right to life as guaranteed under Article 21 of the Constitution in respect of Nanu Mia has been violated. The firing was done on his back which resulted in his death. The court invoked the principle of awarding compensation as a public law remedy for violation of fundamental rights and held that the circumstances did not justify the firing causing death. The court considered it as a fit case to award compensation to the next of kin of the deceased.
Fact of the Case:
The petitioners sought compensation for the killing of Nanu Mia by Border Security Force (BSF) firing. The respondents claimed that Nanu Mia was involved in smuggling activities and was shot in self-defense by respondent No. 3. Two FIRs were lodged, and police cases were registered. The GSFC of BSF acquitted respondent No. 3, but the court found that the circumstances did not justify the firing causing death.
Finding of the Court:
The court found that the right to life as guaranteed under Article 21 of the Constitution in respect of Nanu Mia has been violated. The firing was done on his back, and the circumstances did not justify the firing causing death. The court awarded compensation of ` 3,00,000/- to the petitioners for the death of Nanu Mia.
Issues: The main issue was whether the firing by respondent No. 3 resulting in the death of Nanu Mia was justified and whether the petitioners were entitled to compensation.
Ratio Decidendi: The court invoked the principle of awarding compensation as a public law remedy for violation of fundamental rights. It held that the circumstances did not justify the firing causing death and considered it as a fit case to award compensation to the next of kin of the deceased.
Final Decision: The court directed respondent Nos. 1 to 3 to pay a compensation of ` 3,00,000/- to the petitioners within 3 months from the date of the judgment, failing which the amount shall carry interest at 9% per annum from the date of the judgment.
JUDGMENT
S.C. Das, J.:-By filing this writ petition, the petitioners prayed for directing the respondents to pay them compensation of ` 5,00,000/- (Rupees five lakhs) in the form of damage for the killing of Nanu Mia alias Sdo Mia, aged about 28 years, the husband of petitioner No. 1, father of petitioner Nos. 2 and 3 and son of petitioner No. 4 respectively, due to B.S.F. firing on 05.04.1995 at about 08-30 a.m. It is inter alia alleged by the petitioners that Nanu Mia alias Sdo Mia was killed by the respondent No. 3 under a fake ground that the said Nanu Mia alias Sdo Mia was engaged in smuggling activities and he was chased by the respondent No. 3 and that while under chase said Nanu Mia tried to snatch the rifle from the hand of respondent No. 3 and at that time respondent No. 3, to save his life and weapon fired on the smugglers and as a result Nanu Miah received bullet injuries and died. Thereafter with a view to escape from the misdeeds of respondent No. 3, the Company Commander, E. Coy. B.S.F., Kamthana B.O.P. lodged a false FIR before the O.C., Kalamchaura P.S. and that FIR was registered as KLC P.S. Case No. 22 of 1995 dated 05.04.1995 under Sections 307/398 of IPC against 5/6 unknown persons. It is further stated by the petitioners that postmortem was conducted on the dead body of Nanu Miah and it was found that the bullet injury was on the back of the shoulder of Nanu Miah measuring 1/2" X 1/2" and the exit wound was measuring 1" x 1". A copy of the postmortem report annexed as Annexure-2 to the writ petition.
2. Police investigated that case and submitted final report. It is the further case of the petitioners that on the same day i.e. on 05.04.1995 another suo motu FIR was lodged by police of Kalamchaura P.S. which was registered as KLC P.S. Case No. 23 of 1995 under Section 302 of IPC and Section 27 of the Arms Act and that case was also investigated by police and charge-sheet was submitted on 16.12.1996 against the respondent No. 3. A copy of the charge-sheet has been annexed as Annexure-3 to the writ petition.
3. It is contended by the petitioners that the deceased Nanu Mia was aged 28 years and was daily labourer by profession and used to earn ` 100/- per day in average and he was the sole bread earner of the family consisting of the petitioners and because of his death the petitioners suffered irreparable loss.
Respondent Nos. 1, 2 and 3 are responsible for the death of deceased Nanu Miah and therefore, they should be directed to pay compensation of ` 5,00,000/-.
4. Respondent Nos. 1, 2 and 3 filed a joint counter affidavit inter alia stating that on 05.04.1995 at about 08:30 hours some suspects were carrying goods on their bicycles and were approaching towards Bangladesh border which was observed by the Out Post party of B.O.P., Putia consisting of Nk. Shib Kumar Yadav (respondent No. 3) and constable Ram Khilawan in the border post about 700 yards inside the Indian territory. The Out Post party challenged the suspects but the suspects started running towards Indo-Bangladesh border. Out Post party chased behind them and tried to stop with repeated warning but the suspects did not pay any heed to the warning of the BSF Out Post Party and when they reached near the suspects and were about to apprehend them, Nanu Miah pelted stones on Nk. Shib Kumar Yadav (respondent No. 3) and tried to snatch the personal weapon and finding no other alternative Shib Kr. Yadav opened fire of one round from his weapon in self defence which caused injury to Nanu Miah who subsequently succumbed to the injuries. Hearing the sound of fire, the other miscreants ran away from the spot. After searching, the BSF personnel recovered Bangladesh Taka 1420 from the possession of deceased Nanu Miah and those were handed over to custom authority vide letter dated 30th August, 2002. Dead body of Nanu Mia was handed over to civil police personnel for postmortem and further disposal as per law. An FIR was lodged by the Commandant at Kalamchaura P.S.
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