T. NK. Singh, J.
1. Heard Mr. Y. Z. Shimray, learned counsel for the petitioner and Mr. N. Ibotombi, learned CGSC for respondent N1, 2 and 3 as well as Mr. Jalal, learned Govt. Advocate for the State respondent.
2. By This writ petition, the petitioner is seeking for a direction to the respondents to pay compensation to the kiths & kin of the deceased Mr. Padikhonang (brother of the writ petitioner) in addition to the normal civil remedies.
3. Short fact, which will suffice for deciding the present writ petition is that, at the intervening night of 29th and 30th January, 1997 at about t a.m. a column of army personnel belonging to 12 SIKHLI, posted at Nungba Post came to Nurathel Village and cordoned the houses of the villagers and villagers were forced to assemble and remain in the village by exposing to the cold wind, till 2 a.m. Thereafter, the army personnel conducted house search of all the villagers and looted cash and other valuable properties. The said army personnel also picked up three persons namely, (1) Shri Th. Padikhonang S/o Kinhotpou (brother of the present petitioner) (2) Shri Nambidinang S/o Ngamthui and (3) Shri Khiutei S/o Chakhoure from Nurathel Village at that fateful night without any civil police and they were taken away in their custody. But in the morning of the next day, i.e. 30th January, 1997, two of the said arrested persons, namely, Shri Nambidinang and Shri Khiutei were brought back to the village, i.e. Nurathel village with their hands tied at: their back with injury marks in their persons. They were kept at the village hall i.e. Nurathel Youth Club. On demand of women folk of the village they were released and handed over to the village Chairman in the evening of the same day. On the same day, the Chairman of the village, other members of the village authority and some other villagers were asked by the army personnel of 12 SIKHLI to come with them and to see the hide out of suspected NSCN (IM) camp about 3-4 kms. away from the village. On reaching that place the villagers were forced to burn down and destroy the camp along with army personnel. On the spot, three blind folded persons with their hands tied at their back were found in the custody of the army personnel. On their return journey, after destroying the said camp the army personnel informed the villagers that one of the villagers had been killed in their encounter with the undergrounds and dead body was found lying at a distance of 1 1/2 km. away from the said camp towards the village. The dead body was shown by the army personnel to the villagers. But the villagers were shocked to see the dead body of Shri Fadikhonang who was taken to their custody on the previous night i.e. intervening night of 29th and 30th January, 1997 from Nurathel village along with the said two other persons namely, Shri Nambidinang and Shri Khiute. The dead body of Shri Padikhonang was taken to the village and was buried in the village cemetery. The army personnel also handed over three other dead bodies to the Chairman of the village that were seen in the custody of the army personnel at the said camp side. The petitioner further alleged that Shri Padikhonang was shot dead after he was taken to their Custody in the said intervening night of 29th and 30th January, 1997. The army personnel warned the villagers that they should not report the matter i.e. about the death of Shri Padikhonang to the higher authority assuring that the deceased's family would be compensated with a sum of Rs. 5000/-. Later on the village chairman of Nurathel village was compelled to receive the said amount of Rs. 5000/- in connection with the said incident, i.e murder of Shri Padikhonang by the personnel of SIKHLI while he was in their custody. On 4-2-1997 the army personnel i.e. personnel of SIKHLI lodged a report to the O. C. Nungba Police Station stating that an operation was launched to raid and destroy the underground camp in the general area of Nurathel village. And in the said operation three NSCN (IM) Cadres were killed. On receiving the said report the O. C. Nungba P. S. registered a case and in the course of investigation of the case, the dead body of the deceased Shri Padikhonang was exhumed from its grave and inquest and post mortem report were conducted on 6-2-1997. It is also pertinent to mention that the village chairman and president of Longdung Apei, filed representation dated 4-4-1997 (Annexure-A/1 to the writ petition). Shri Kaisi Thiumai, younger brother of the deceased. Padikhonang also filed representation dated 4-4-1997 to the Deputy Commissioner, Tamenglong and also the others filed representation to the Chief Minister, Manipur to cause judicial inquiry into the death of Shri Padikhonang in the custody of the 12 SIKHLI of Nungba Post in order to fix responsibility to the erring officers, to protect rule of law and also to give Rs. 2 lakhs as ex-gratia for the murder of late Padikhonang by the said army personnel. The State authority did not take up any steps on the said representations and thus the present writ petitioner filed this writ petition.
4. In the present writ petition, petitioner also further prayed that over and above the said directions to pay compensation, to issue direction to the respondent Nos. 1 and 2 to prosecute the officers and jawans involved in causing death of Shri Padikhonang while he was in the custody of the respondent No. 3 and direct the respondent to conduct an impartial judicial and or CBI inquiry into the death of Shri Padikhonang on 30th January, 1997.
5. The respondent No. 1-3 also filed their affidavit-in-opposition in the present writ petition. In their affidavit-in-opposition the respondents stated that on 29th January, 1997 army did not go around the village but conducted raid on National Socialist Council of Nagaland (Issac Muivah Camp) duly accompanied by police personnel. They also further denied that Padikhonang was taken to their custody in the intervening night of 29th and 30th January, 1997. According to the respondents on 29th January, 1997 the army conducted a raid on NSCN (IM) camp which was located at 5 kms to the northwest of Nurathel village and the dead body of Padikhonang was recovered from camp side during search on 30th January, 1997 morning. Dead body was found lying near LMG Bunker, which was situated on a dominating ground. The respondents further stated that an operation for conducting raid on the NSCN (IM) camp was scheduled to start on 1600 hrs. of 29th January. 1997 and actual raid was to commence on 0400 hrs of 30th January, 1997. While raiding the column was approaching Nurathel village, the leading element spotted two persons in civil dress fleeing towards the reported NSCN (IM) camp. Apprehending loss of surprise, raiding party rushed towards the camp when the raiding column was little away from the camp site at about 0300 hrs. automatic firing was heard from the direction of the camp. The raiding column came under effective fire. Heavy exchange of fire took place for about 15-20 minutes. Thereafter the underground ceased fire and fled the camp. As the search of the camp area was undertaken in the morning of 30th January, 1997 four dead bodies, (three in combat dress and one in civil dress) and 22 pistols of Chinese origin were found in the vicinity of the bunker site of the undergrounds. The Chairman of the Nurathel village was brought to the camp on January, 30 for identification and all the dead bodies were handed over to the Chairman of the Nurathel Village at the camp site in presence of the police representatives. Shri Padikhonang had been killed well before the security forces entered the underground camp for its detailed search. The respondents further stated that the dead body of deceased Padikhonang was handed over to the village chairman in the presence of police representative and a certificate was obtained from the chairman. The respondents also further denied that they paid a sum of Rs. 5000/- to the deceased's family as ex-gratia for the death of Padikhonang.
6. This Court after hearing learned counsel for the petitioner and also Mr. N. Ibotombi, learned CGSC for the respondent Nos. 1, 2 and 3 passed an order dated 19-7-2000 that as regards allegations that deceased (Padikhonang) was picked up on the midnight of 29th January, 1997 along with the said two other persons and also as regards the circumstances leading to the death and recovery of the deceased, the District & Sessions Judge, Manipur West is to make an inquiry and submit a report to this Court. In compliance of the direction of this Court, learned District Judge, Manipur West held an inquiry being Judl. Misc. (Inquiry) Case No. 18/2000. Learned District Judge, Manipur West in the course of inquiry after inviting suggested issues for holding inquiry, had framed 2 issues; i.e. (i) what are the circumstances leading to the death of Padikhonang? (ii) whether the deceased Padikhonang was picked up by the personnel of 12 SIKHLI and was killed when in army custody? vide order of the District Judge, dated 4-9-2000. The learned District Judge after examining the witnesses of the petitioners and the defence witnesses for respondents Nos. 1 and 2 and also after inviting written statement/written arguments of the said respondent Nos. 1 and 2 had prepared his report on 30-12-2003.
7. From perusal of the above report it has been seen that the District Judge, Manipur West had given sufficient reasons for deciding the said two issues framed by him and made a finding that the army personnel i.e. personnel of 12 SIKHLI came to the village, Nurathel in the intervening night of 29th and 30th January, 1997 and arrested the deceased, Padikhonang and Shri Nambindinang from their respective houses and that Padikhonang died of bullet injury while he was in the custody of the security personnel i.e. 12 SIKHLI regiment. The said report of the District Judge, Manipur West had been submitted to this Court and copies of the report were furnished to both the petitioner and respondents for filing their comments/objections to the said report of the District Judge, Manipur West. Respondent Nos. 1 to 4 after receiving the said report dated 30-12-2003 had filed their objections/affidavit-in-opposition. In their objection/affidavit-in-opposition, respondent Nos. 1 to 3 could not point out any substantial defect and infirmity in the report of the District Judge, dated 30-12-2003 except 2/3 minor discrepancies in appreciating evidence of the witnesses examined in the course of the inquiry.
8. This Court is not sitting as an appellate authority for re-appreciating the statement of the witnesses examined by the District Judge, Manipur West in the course of inquiry. On careful perusal of the report dated 30-12-2003 of the District Judge, Manipur West there is no reasonable doubt that learned District Judge had given the sufficient reasons and also rightly appreciated the witnesses for giving the convincing reasons and finding that Padikhonang was picked up by the personnel of 12 SIKHLI in the intervening night of 29th and 30th of January, 1997 and Padikhonang died of bullet injury while he was in the custody of security personnel.
9. Redressing the wrong by award of monetary compensation against the State for its failure to protect fundamental right of the citizen had been invented by Bhagwati J. by observing in Khatri v. State of Bihar : 1981CriLJ597 why should the Court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most: precious of the precious fundamental right to life and personal liberty' The Apex Court had considered the requirements of protection of right to life and liberty of the citizen against the lawlessness of the State in Sant Bir v. State of Bihar reported in : 1982CriLJ1933 and Miss Veena Sethi v. State of Bihar reported in : 1983CriLJ675 . Ultimately it had been settled that the most precious of the precious fundamental rights of the citizen is right to life guaranteed by Article 21 of the Constitution of India. It is the bounden duty of the State under the Constitution to protect the life and personal liberty of a citizen and it shall not be deprived of except according to procedure established by law. The State is liable for the constitutional tort and the constitutional tort denotes the case in which compensation or exemplary damages, were awarded by the Court while a constitutional right was violated. Such constitutional remedy was made to partake the character of civil actions. The award of compensation was made only in addition to the normal civil remedies. In the case of Devaki Nandan Prasad v. State of Bihar, reported in : (1984)ILLJ237SC , the Apex Court laid down the concept of constitutional tort and compensatory jurisdiction and awarded Rs. 25,000/- (rupees twenty five thousand) as exemplary costs for harassing the petitioner. This concept of awarding exemplary costs had been also considered in Rudul Sah v. State of Bihar, reported in : 1983CriLJ1644 . In that case, the petitioner filed the Habeas Corpus before the Court for his immediate relief and prayed for rehabilitation costs, medical charges and compensation for illegal detention. After his release in 1982, the question before the Court was whether in exercise of jurisdiction under Article 32, the Court can pass an order for payment of money, if such order is in the nature of compensation consequential upon the deprivation of fundamental right and decided in the affirmative. Therefore, the State must repair the damage done by its officers to the petitioner's right. It may have recourse against those officers. The two important points decided in Rudul Shah (supra) are that (1) violation of constitutional right gives rise a right to a civil liability enforceable in civil Court and (2) it formulates basis for a theory of liability under which a violation of right to the personal liberty can give raise to civil liability with the extreme concern to protect and preserve the fundamental rights of a citizen. The Apex Court awarded compensation to the under trial for violations of his fundamental right and also for the failure of the State to discharge its constitutional obligations to the citizen.
10. The Apex Court in the ease of D.K. Basu v. State of West Bengal reported in : 1997CriLJ743 held that the claim in public law for compensation for unconstitutional deprivation of fundamental right to life and property, the protection of which is guaranteed under the Constitution, is a claim based on strict ability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Public proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of indefeasible right guaranteed under Article 21 of the Constitution of India 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.
11. The Apex Court in the D.K. Basu : 1997CriLJ743 (supra) in clear terms held that : (para 45)
'The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the Courts to much, as the protector and custodian of the indefeasible rights of the citizens. The Courts have the obligation to satisfy the social aspirations of the citizens because the Courts and the law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the bread winner of the family.'
The right of citizens to life and personal liberty are guaranteed under Article 21 of the Constitution. It is the bounden duty of the State under the Constitution to protect life and personal liberty of the citizen. The State is liable to the constitutional tort and constitutional tort did not come in which the compensation for exemplary damages were not awarded by the Court when the constitutional right was violated. In such circumstances, order was made to partake the character of civil actions. The matter regarding the tortuous liability of the States had been arisen and discussed in juristic circle beginning from the case of Devaki Nandan Prasad v. State of Bihar reported in : (1984)ILLJ237SC the Apex Court laid down the concept of constitutional tort and compensatory jurisdiction. In that case awarded Rs. 25,000/- as exemplary cost for harassing the petitioner. The Apex Court again, in the ease of Sebastian M. Hongray reported in AIR 1984 SC 1026 awarded exemplary cost of Rs. 1 lakh each to the wife of the missing persons. The apex Court awarded compensation under the writ jurisdiction for the constitutional torts against the citizens. This concept of awarding compensation under the writ jurisdiction for violation of fundamental right had been followed in a number of cases. The constitutional Bench in M.C. Mehta v. Union of India reported in : [1987]1SCR819 , held that Article 32 is not only injunctive in ambit but: also peremptory in scope. It is not powerless to arrest a person while his fundamental right has been violated, it includes the power to award compensation.
11A. The Apex Court in Naosam Ningol Chandam Ongbi Nengshitombi Devi v. Rishang Keishing, Chief Minister of Manipur reported in (1988) 1 GLR 109 this Court held that the respondents are liable to pay compensation for their failure to do their duty to protect the petitioner's husband who was put to have been taken away by the security forces and shot dead. It may be worth mention that the Apex Court in Nilabati Behara (Smt) v. State of Orissa reported in : 1993CriLJ2899 held that : 'Thus to sum up, it is now well accepted position 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 objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriating 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 of the heirs of the deceased victim with respect to the same matter for the tortious act committed by the State. The quantum of compensation will of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is thus, in addition to the traditional remedies and not derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a Civil suit.'
In Nilabati Behera (supra), the Apex Court appointed fact finding Commission in respect of the disputed facts in Writ Petition. Normally in writ proceedings the Supreme Court or High Courts do not take up the issues relating to the disputed facts. As discussed above, the Court of claim for compensation through public law remedy under Article 32 the Supreme Court instead of making the petitioners to resort to private law remedy, invented the process of fact finding Commissions to inquire into the disputed facts and submits reports before the Court to consider the correctness of the facts placed before the Court.
12. This Court in the cases similarly situated with the present case i.e. Sanu Saikia v. Union of India reported in 2002 (3) GLT 387 : (2003 Cri LJ 515) and Mrs. P. Lily v. Union of India reported in (1997) 3 GLT 542 had awarded a sum of Rs. 1,25,000/- (one lakh twenty five thousand) and 1 lakh respectively as compensation for the death of the citizen in exercise of the public law jurisdiction to meet the ends of justice in the writ proceedings in addition to the other remedies available to the petitioner in ordinary course of law by way of damage in a civil suit.
13. In view of what has been discussed above, I am of the considered opinion that respondent Union of India and respondent Nos. 2 and 3 should be directed to pay compensation to the kiths and kin of the late Shri Padikhonang. For fixing the quantum of compensation, age and economic condition of late Padikhonang who was admittedly serving as a teacher in a private school of the Nurathel village and also the present high cost of living are taken into consideration and fixed a sum of Rs. 2 lakhs as amount of compensation. Accordingly the respondent Nos. 1, 2, and 3 are directed to pay compensation of Rs. 2 lakhs to the petitioner within a period of 8 (eight) weeks from the date of receipt of this order. To my mind award of compensation of Rs. 2 lakhs in exercise of public jurisdiction will substantially meet the ends of justice.
14. Further, I made it clear that this amount of compensation is in addition to the other remedies available to the petitioner in the ordinary course of law by way of damage in a civil suit. Petition accordingly stands allowed in terms of the direction indicated above. With cost of Counsel for the petitioner Rs. 2000/-.
This disposes of this petition.