B.K. Sharma, J.@mdashBoth the writ petitions have been filed praying for appropriate action against the CRPF Personnel of 61 Bn. Merapani who at the relevant point of time were stationed in the particular place in which the incident of firing took place as a result of which the son of the Petitioner in the first writ petition being WP(C) 177(K)/2007 died and the Petitioner in the second writ petition being WP(C) No. 253(K)/2007 got injured resulting in 70% disability. Presently his movement is restricted on a wheel chair.
2. The fact is not in dispute. It was on 13.9.1994, the deceased and the injured while was coming from Merapani side of Assam towards Nagaland on a motor cycle, they were intercepted by the CRPF personnel of 61 Bn. In the check post. According to the Petitioners after intercepting them, the said personnel took recourse to firing without any provocation, as a result of which the son of the Petitioner in WP(C) No. 177(K)/2007 died at the spot and the Petitioner in WP(C) No. 253(K)/2007 got critically injured.
3. In support of the case of the Petitioners, they have stated in the writ petitions that the two persons involved in the incident were coming towards Nagaland on a motor bike bearing registration No. UP-65-J-9220 and when they were about 70-80 mtrs. away from the check gate, the security personnel on duty without any provocation, suddenly fired at the duo and thereby killed the son of the Petitioner in WP(C) No. 177(K)/2007 and injured the Petitioner in WP(C) No. 253(K)/2007.
4. As a consequence of the said incident, Merapani PS case No. 38/04 u/s 279/338, IPC was registered and Nagaland Police also registered Bhandari PS case No. 25/2004 under Sections 304/326, IPC against erring CRPF personnel. The Petitioners have named a CRPF personal in paragraph 4 of the writ petition who according to them was responsible for the firing. It appears that there was certain communications between the police officials of both the Governments, i.e., the Government of Assam and the Government of Nagaland. Pursuant to the registration of the case against the CRPF personnel, a quashing proceeding was initiated by the Union of India vide Criminal Revision No. 102/2005. Such proceeding was initiated against the Bhandari PS case No. 25/2004 in the State of Nagaland. By order dated 27.2.2007, the criminal revision petition has been dismissed as the same was filed by the Union of India and not by the involved security personnel.
5. In the counter affidavit filed by the Respondents, the incident has not been denied. What has been contended is that when the persons involved were requested to stop their motor bike, they made IT turn and tried to avoid the security personnel as a consequence of which the security personnel opened fire from his 9 mm carbine. It has been stated that instead of stopping the motor bike, the injured tried to bypass the Santry on duty Constable Ravinder Kumar and overrun No. 850814071 HC/GD Monohar Kumar, who was also on duty and when he tried to stop the motor cycle. In the process, Monohar Kumar was hit at the left leg by the motor cyclist and he fell down on the ground. According to the Respondents, left with no other option he resorted to firing from his 9 mm carbine in order to defend himself and also to prevent the miscreants from escaping.
6. According to the affidavit, being a sensitive area, Monohar Kumar fired three rounds at the tyre of the moving motor cycle through his dis-balanced position. In the mean time, the motor cycle took an ''U'' turn and tried to move away back to Merapani site, as a result of which the bullets accidentally hit the pillion rider of the motor cycle. The deceased also sustained bullet injury as a result of which both fell down on the ground. Thereafter, the CRPF personnel seized the vehicle and captured both the occupants and they were thoroughly searched during which some drugs were recovered. Both the injured were rushed to Merapani hospital but the deceased expired.
7. The Respondents have not denied the fact that the Petitioner in WP(C) No. 253(K)/2007 sustained injuries in the said firing. As per the medical documents annexed in the writ petition, his present disability is 70% and as submitted by the learned Counsel for the Petitioner, he is on a wheel chair. His photographs have also been annexed to the writ petition. The medical documents also suggest that he was hospitalised in Assam Medical College, Dibrugarh and some other hospitals and in the process the Petitioner has incurred huge expenditures.
8. We have heard Mr. Lima Wapang, learned Counsel for the Petitioner as well as Mr. T.B. Jamir, learned Central Government Counsel and so also Ms. Lucy, learned State Counsel, Nagaland. We have also considered all the materials on record including the documents annexed to the writ petition and the counter affidavit.
9. As already noted above, the fact involved in the case is not in dispute. On the fateful day, the Petitioners were coming towards Nagaland from the State of Assam through Merapani check gate. Unfortunately, they received bullet injuries due to shot fired on them by the CRPF personnel on duty. Even if the story projected in the counter affidavit is believed that instead of stopping the motor bike by the persons involved, they made a ''U'' turn and that to stop the motor bike, firing was resorted to, the nature of the injuries sustained by both the persons would certainly suggest that there was some amount of negligence on the part of the particular security personal.
10. According to the affidavit, the particular security personal had sustained some injury on his leg as the motor cycle hit him and he had to fire as a measure of self defence and also to stop the miscreants. So far as the plea of self defence is concerned, we are of the considered opinion that for the said purpose, the motor cyclist ought not have been shot at when as per the own admission of the Respondents in their counter affidavit they were fleeing the place of occurrence. So far as the plea of taking recourse to firing to stop the motor cyclist is concerned, with little care same would not have resulted in killing the deceased and inflicting injury to the Petitioner to the extent of 70% disability.
11. Learned Counsel for the Petitioners has placed reliance on the decision of this Court
29. From the above analysis it is clear that the law of this country does not recognise the authority of any person to cause the death of another person at will. The reason is obvious. Article 21 of the Constitution emphatically declares that the life and liberty of any person shall not be deprived by the State except in accordance with the procedure established by law and by a long catena of decisions of the Supreme Court such a procedure established by law must be a rational procedure consistent with the requirement of the mandate of Article 14 of the Constitution of India.
40. We have already reached the conclusion that the members of the police party would have been perfectly justified in, attempting to arrest Prakash Deka. They were also entitled to employ appropriate force for accomplishing such arrest. But it is not the case of the State that either Prakash Deka or any one of the other co-passengers in the vehicle was a member of an extremist group or an extremist that the police party bona fide believed or that Prakash Deka or any one of his fellow passengers in the vehicle was guilty of an offence punishable with death or life imprisonment. Therefore, by virtue of Sub-section (3) of Section 46 of the Code of Criminal Procedure unless one of the facts indicated above is established the causing of death in furtherance of power of arrest u/s 46, Code of Criminal Procedure would not be justified.
12. As in the said case, in the instant case also, the CRPF personnel would have been perfectly justified in attempting to arrest the persons involved. They were also entitled to employ, appropriate force for accomplishing such arrest. It is not the case of the Respondents that the two persons involved were members of any extremist group or extremist. It is also not the case of the Respondents that their arrest would not have been secured other than by firing shots on them. The incident narrated in the counter affidavit is that the persons involved were coming towards the check gate riding on a motor cycle and although they were asked to stop, they did not do so and made ''U'' turn and tried to flee from the place. There was no other provocation to the CRPF personnel although it has been stated that the particular CRPF personal was hit by the motor cycle, as a consequence of which he sustained leg injury but nothing has been disclosed as to what was the nature of the injury. According to the Respondents, fire was shot at as a self defence and to secure arrest of the persons concerned but having regard to the facts and circumstances, even if the plea of right to private defence is accepted, same was exceedingly exceeded and the persons concerned could not have been shot at to the extent of killing the deceased and injuring the Petitioner in WP(C) No. 253(K)/2007 to the extent of 70% disability. Thus, the Respondents cannot escape from their liability in public law damages by way of payment of compensation to the Petitioners.
13. This now leads us to the question as to what would be the adequate and appropriate amount of compensation payable to the Petitioners. It has been submitted that at the time of death, the deceased involved in WP(C) No. 177(K)/2007 was 22 years of age and was running a Pan and other Utility service and his monthly income was Rs. 4,000. He was unmarried and the writ petition has been filed by his father. So far as the Petitioner in the second writ petition is concerned, he was 27 years of age and is married with four minor children. According to the learned Counsel for the Petitioner, he was employed in a private School as Teacher. As recorded above, he has sustained injury resulting in 70% disability. He has sustained injury in the spinal cord and his movement is restricted on a wheel chair.
14. Considering the facts and circumstances involved and holding that the Respondents are liable to pay compensation to both the Petitioners for the above act of their security personnel, we quantify the amount of compensation at Rs. 2.50 lakh payable to the Petitioner involved in WP(C) No. 177(K)/2007 and Rs. 3.50 lakh to the Petitioner in WP(C) No. 253(K)/2007. Such payment shall be made to the registry of this Court in appropriate manner and in turn the Registry shall pay the amount to the Petitioners involved in the writ petitions.
15. The Respondents are directed to make the aforesaid payment as expeditiously as possible but at any rate not latter then 30.11.2010.
16. We hasten to add that this order is in respect of public law damages and it would be open to the Petitioners to proceed against the Respondents for damages in private law, if so advised.
17. Both the writ petitions are allowed to the extent indicated above, without, however, any order as to costs.
