Khalil Razak Shaikha (Deceased) vs The State Of Maharashtra & Ors.
2001 Latest Caselaw 161 Bom

JUDGMENT

Vishnu Sahai, J.

1. Rule. By consent Rule made returnable forthwith.

2. Pursuant to a report dated 8th November, 2000 published in Bombay Edition of the Indian Express newspaper dated 9th November, 2000 a Division Bench of this Court comprising of G.D. Patil and A. M. Khanwilkar, JJ., on 29th November, 2000 passed, the following order :

"Issue notice, returnable two weeks to (1) State of Maharashtra through the Secretary, Home Department, Mantralaya, Bombay (2) Commissioner of Police, Greater Bombay, (3) Shri S. K. Padvi, Deputy Commissioner of Police, Greater Bombay, and (4) Mahajan, Sub-Inspector. Mulund Police Station for showing cause (1) As to why they should not be directed to disclose as to who were the officers on duty who took the injured Sub-Inspector in a police wireless van to a private hospital, (ii) Whether any explanation has been called upon by the Respondents from these police officers travelling In a police wireless van as to why they did not take Khalil Razak Shaikh to the hospital when he also had sustained serious injuries and was lying just about the place where the Sub-Inspector was lying in an injured condition and whether any action Is contemplated against them for this lapse on their part, (iii) Whether any crime Is registered against the persons who were In Tata Sumo vehicle and what Is the stage of those proceedings and further, (iv) Why the State and Shri Mahajan. Sub-Inspector should not be directed to pay appropriate compensation to the family of late Khalil Razak Shaikh.

2. The office to serve copy of this petition to the learned Public Prosecutor along with this order to the aforesaid Respondents."

3. Pursuant to the order dated 29.1.2000, the present Writ Petition was registered by the office.

In compliance to the said order and the order passed by us on 21.2,2001 six affidavits were filed. Their details are as under :

(a) Affidavit of Krishna Rarnchandra Shtnde, Inspector of Police, attached to Mulund Police Station;

(b) Affidavit ofSurupsing K. Padavi, Deputy Commissioner of Police, Zone V, Mumbai ;

(c) Affidavit of Manojkumar S. Lohiya, Deputy Commissioner of Police, Zone VI, Mumbai;

(d) Affidavit of Prabhakar Gotu Mahajan, Sub-Inspector of Police, attached to Mulund Police Station: (All dated 18th December, 2000).

(e) Affidavit of Manojkumar S. Lohtya, Deputy Commissioner of Police, Zone VI, Mumbai dated 29th January, 2001;

(f) Affidavit ofM. R. Patil. Additional Chief Secretary, Government of Maharashtra;

(g) Affidavit of Mahesh Narain SIngh, Commissioner of Police, Mumbai.

(Both dated 23rd February, 2001).

4.Aperusal of the affidavits and the papers on record, in short, show as under :

On 7.11.2000 at 8 p.m. S. I. Prabhakar Gotu Mahajan. of Mulund Police Station resumed duty along with his staff at Modella Checknaka for Nakabandi and was checking all suspected vehicles. At about 11.15 p.m. two persons (deceased Khalil Razak Shaikh and his friend Vijay Jayram Patll) came from the direction of Thane area riding motor cycle ofBajaJ Calibre No. MH-04 AQ-3298. P. S. I. Mahajan stopped them for checking papers. Since they were not having papers pertaining to the said motor cycle the deceased Khalil Shaikh left the place to fetch them and came back alongwith the papers about half an hour later. P.S.I. Mahajan after checking the papers allowed Khalil Shaikh and his friend to go. Thereafter they sat on their motor cycle and Khalil Shaikh started the same. When they were about to leave the Modella Checknaka a blue coloured Tata Sumo motor jeep, in which including the driver three persons were sitting, came at a break-neck speed from Thane side. P.S.I. Mahajan gave signal to the jeep to stop but on the converse the driver started speeding away. In the circumstances P.S.I. Mahajan asked Khalil Shaikh's friend who was sitting on the pillion seat of the motor cycle to get off. P.S.I. Mahajan sat thereon and directed the deceased Khalil Shaikh to chase the blue coloured Tata Sumo which was speeding away. The deceased relented to the direction of P.S.I. Mahajan and started chasing the Tata Sumo vehicle. At a distance of about 2'/2 kms. from Modella Checknaka. near B.O.C. Company, on L.B.S. Marg, while theTataSumo was trying tospeed away it took a turn and collided with the motor cycle driven by Khalil Shaikh, resulting in P.S.I. Mahajan and Khalil Shaikh being thrown on the ground.

At about 1 a.m. on 8.1.2000 one Sanjay Ramdas Thakker who was proceeding in a car from Prabhadevi to Thane found that some persons had gathered near B.O.C. Company. He stopped his car and saw that a person in uniform was lying injured on the road and another person who appeared to be dead was lying nearby. Consequently he took the person in uniform (P.S.I. Mahajan) to Padmashri Hospital in Mulund and got him

admitted there. The persons who had gathered there told him that they were bringing the other person in a rickshaw.

At about 12.57 a.m. one person came on a motor cycle and Informed, A. S. I. Jadhav, who along with his staff was on duty at Bhandup-I Mobile Van at Sonapur junction, that a police personnel had met with an accident on L.B.S. Marg. Consequently A.S.I. Jadhav contacted the control room which directed him to proceed immediately to the place of the incident.

At about 1 a.m. A.S.I.Jadhav reached B.O.C., on L.B.S. Marg. He found a motor cycle, bearing No. MH-04 AQ-3298 of Bajaj Calibre parked on the side of the road and a person with a head injury lying in a pool of blood near the road divider. A. S. 1. Jadhav immediately informed the control room and requested for a hearse-van.

At 1 a.m. P.S.I. Uttam Patil recorded the statement of Police Constable Dalvi (Dalvi was with P.S.I. Mahajan at the Checknaka when the motor cycle of the deceased was checked by P.S.I. Mahajan), and registered on its basis C. R. No. 578/2000 under Sections 279, 338, 304A of the Indian Penal Code read with Section 134(a) and (b) of the Motor Vehicles Act, at Mulund Police Station, against unknown persons.

At about 2.18 a.m. A.S.I. Jadhav removed the dead body of Khalil Shaikh to Mulund General Hospital where he was pronounced dead.

At about 2.30 a.m. P.S.I. Uttam Patil prepared the spot panchanama and seized from the place of the incident the motor cycle of the deceased, apair of red shoes and one white coloured broken strap of a wrist watch. At about 2.40 a.m. he carried out the inquest.

The autopsy on the corpse of the deceased was conducted on*8.11.2000 at 6.10 a. m. and the same shows that the deceased had sustained two ante mortem injuries one of which was a CLW on the right frontal region with the dimensions of 6 cm. x 3 cm. x bone deep, (brain tissues were crushed] and one was fracture of the right lower end of humerus.

The internal examination showed fracture of the skull.

The cause of death spelt out in the autopsy, report is head injury.

5. We have heard Mr. S.V. Marwadl who was appointed amicus curiae by a Division Bench of this Court (G. D. Patil and A. M. Khanwilkar, J.J.) vide its orders dated 21st December, 2000 and the Additional Advocate . General for the State of Maharashtra and perused the relevant records and the aforesaid affidavits.

6. We have no doubt in our mind that the only question which survives is as lo why the State be not directed to pay proper compensation to the family of the deceased late Khalil Shaikh. We say this because

(i) it was not any of the police officers who had taken Sub-Inspector Mahajan to Padmashrl Hospital. Instead it was one Sanjay Ramdas Thakker who had taken him to the said hospital in his car;

(ii) C. R. No. 578/2000 under Sections 279. 338, 304A of the Indian Penal Code read with Section 134(a) and (b) of the Motor Vehicles Act. was registered atMulund Police Station against unknown persons on the basis of the complainl lodged by Constable Dalvi; and

(iii) since S. I. Mahajan with the laudable objective of apprehending thosewho were fleeing in the Tata Sumo jeep, whom he suspected of having committed some offence, enlisted the services of the deceased Khalil Shaikh in apprehending them, there can be no reason for his being

directed to pay compensation to the family members of the deceased Khalil Shaikh.

7. Mr. Marwadi strenuously urged that the State should be directed to pay substantial compensation to the widow of the deceased Nasreena Bano because she has no means of livelihood and not only has she to maintain herself but also bring up and thereafter perform the marriage of Muskan. the seven months old daughter of the deceased. Mr. Marwadi urged that the State is duty bound to pay the said compensation because S. I. Mahajan In his affidavit dated 18.12.2000 has categorically admitted In para 4 that he asked the person who was sitting on the pillion seat of the motor cycle of the deceased Khalil Shaikh to get down; thereafter he sat thereon, and directed the deceased Khalil Shaikh to start the motor cycle, and chase the Tata Sumo Jeep.

8. We find merit in the said submission of Mr. Marwadi. It Is the duty of the State to maintain law and order through the police force and when a member of the police force directs a citizen to chase and apprehend those who are suspected of committing offences the State cannot be permitted to wriggle out of its responsibility to pay compensation in the event of the death of such a citizen. A contrary approach, in our view, would demoralize the citzenry and would result in people shying from rushing to the assistance of the police in such situations and that indeed would be distressing. As a matter of fact the State should feel thankful that there are citizens like the deceased Khalil Shaikh who at the peril of their lives join a chase to apprehend those suspected . of committing crimes.

9. The question which now crops up is the quantum of compensation that should be awarded to the widow of the deceased in the exercise of our jurisdiction under Article 226 of the Constitution of India.

10. The learned Additional Advocate General pointed out that the deceased was a prosperous person and as a consequence of his death his family is not left on the road. He urged that the material on record shows that the fathei of the deceased has a plot, in half portion of which the deceased was doing foundry business from which he was annually earning about Rs. 1,50,000/- to Rs. 1,60,000/- and the said business has now been taken over by his father. He also urged that the remaining half portion of said plot fetches an annual rental of Rs. 1,30,000/-. He contended that in the house Owned by the father of the deceased there are three tenants and the monthly rental income is about Rs. 3000/-. He further contended that at his native place the father of the deceased has about 40 acres of land from which the annual income is about one lakh. He lastly, contended that there are two life insurance policies in the name of the deceased, but he Is not in a position to state the insured amount. The long and short of his submission is that since the father of the deceased is possessed of sufficient means the compensation should be symbolic and not substantial.

11. We have reflected over the rival submissions. We must say that on the first blush the submission of the learned Additional Advocate General appeared attractive but on a deeper reflection we realised that it was not pregnant with merit. In the first place it should be borne in mind, as admitted by the learned Additional Advocate General also, that the father

of the deceased has his own wife and three unmarried daughters. Obviously he requires money for their sustenance and for the marriage of his three daughters. In other words a sizable amount would be exhausted in the sustenance of his family and the marriage of his daughters.

12. That apart, what really disturbs us is should the widow of the deceased be left at the mercy of her father-in-law, more so when her husband at the behest of an officer of the State sacrificed his life in apprehending criminals. Our answer is in the negative. We feel that in the circumstances In which the deceased died, compensation is the legitimate right of his widow and not an act of charity on the part of the State.

13. In such a situation, we make no bones In observing that the compensation has to be substantial and not symbolic. It should be borne in mind that considering the high cost ofliving and the galloping rate of inflation the quantum of compensation should be sufficient forthe widow and the seven month old daughter of the deceased to live decently. The latter after some time has to be educated and married. After giving our anxious consideration and bearing in mind that the widow of the deceased is living in Thane, which is a very expensive town, in our view, a compensation of Rs. 3,00,000/- (Rupees three lakhs), would meet the ends of justice. Considering the present rate of interest in a nationalized bank it should fetch to the wife of the deceased approximately Rs. 2500/- every month. We are not awarding a higher compensation because, we are informed by the counsel for the parties that the widow of the deceased along with the daughter of the deceased is living with her father-in-law and consequently, would not have to pay a high rental which ordinarily a person living in Thane has to pay. We are certain that the father of the deceased would keep his daughter-in -law and grand daughter with dignity and respect, remembering all the time that the former became a widow and the latter fatherless for no fault of theirs.

14. In the result we allow this petition and direct the State of Maharashtra to make payment of Rs. 3,00,000/- (Rupees Three lakhs) to the widow of the deceased Nasreena Bano residing at Sweet Home, Majiwada, Near Kapur Wadi Police Station, Thane within 30 days from today. The payment shall be made through an account payee cheque in the name of the Nasreena Bano which shall be sent to the District and Sessions Judge, Thane who on receiving it shall call her and invest the entire amount in a fixed deposit for a period of 36 months in the main branch of the State Bank of India, Thane, which shall be reinvested on the expiry of every 36 months till the time Muskan, the daughter of Nasreena Bano, attains majority. Nasreena Bano shall be at liberty to withdraw the quarterly interest accruing thereon till her daughter Muskan attains majority. Thereafter it would be open to her to use the entire amount as she deems to be fit. We make it clear that the said compensation shall in no way affect the rights of the widow of the deceased Nasreena Bano and his dauther Muskan and other legal heirs to receive such other compensation to which they are entitled in law.

At this stage, Marwadi urged that we should issue a direction to the State Government to give employment to Nasreena Bano. In the circumstances the prayer appears to be reasonable. We are certain that

in the event of Nasreena Bano making an application for employment, the Government of Maharashtra shall give her a suitable employment.

Rule is made absolute in the said terms.

The learned Additional Advocate General undertakes to communicate our judgment to the Stale Government forthwith.

A true copy of this order, duly attested by the Shirestedar of this Court shall be handed over to the Additional Advocate General within three days from today.