Madras High Court
N.Kamala Kannan vs The State Rep. By Its on 10 August, 2022
W.P.No.19500 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.08.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
W.P.No.19500 of 2012
N.Kamala Kannan ... Petitioner
Vs.
1.The State Rep. By its
Secretary Home Department,
Secretariat,
Saint George Fort,
Chennai – 600 009.
2.The Director General of Police,
Kamarajar Salai,
Chennai – 600 005.
3.The Superintendent of Police,
Cuddalore District,
Cuddalore – 1.
4.The Inspector of Police,
Muthandikuppam Police Station,
Cuddalore District. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India
for issuance of a Writ of Mandamus, to direct the respondents to pay
compensation of Rs.20 Lakhs with 24% per annum to this petitioner for the
loss of petitioner limbs.
1/22
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W.P.No.19500 of 2012
For Petitioner : Mr.K.Srinivasan
For Respondents : Mr.R.Kumaravel
Additional Government Pleader
for R1 and R2
Mr.V.Meganathan
Government Advocate for R3 & R4
ORDER
This writ petition has been filed seeking for compensation on the
ground that the petitioner suffered a permanent disability due to the
grievous injuries sustained by him after being hit by a rubber bullet that
was used during firing by the police to disperse the crowd who were
causing a riot during a temple dispute.
2.The case of the petitioner is that on 08.11.2001, there was a
temple dispute between two villages and it resulted in large scale violence
and riots. The police in order to bring the situation under control, opened
fire with rubber bullets and the petitioner who claims to be standing in front
of his house was hit in his right hand palm. As a result, his hand above
wrist had to be severed. Thereafter, he underwent a major operation and
the hand above the wrist was refixed. The concerned authority had
assessed the petitioner to be suffering with 40% permanent and physical
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impairment.
3.In view of the above, the petitioner claims that he had spent huge
amount of money towards the operation and he was not in a position to
undertake any work due to the disability and according to the petitioner all
this was caused due to the negligence on the part of the police. Aggrieved
by the same, the petitioner has sought for payment of compensation of a
sum of Rs.20 Lakhs.
4.The 4th respondent has filed a counter affidavit. The relevant
portions in the counter affidavit are extracted hereunder:
3.It is submitted that in Cuddalore District, Panruti Taluk,
Perperiankuppam is a Village Panchayat and it consists of
hamlet village known as Muthandikuppam. One Anandeeswarar
Temple is situated near the lake in Perperiyankuppam, Village.
Both village people used to conduct 16th day ceremony
(Karumakariyam) in the said Temple. While printing the 16th
day ceremony card, Muthandikuppam Village people not in the
habit of mentioning Perperiyankuppam, Village name in the
card. This was objected by the Perperiyankuppam Village
people. Moreover, in the local body election Muthandikuppam
Village persons were elected as President and Vice President of
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Perperiankuppam Village, Panchayat. Perperiankuppam Village
persons were defeated in the election. So, there was an
enemity prevailing between the Perperiyankuppam Village
people and Muthandikuppam Village people. While so, on
24.10.2001 one Ramalingam of Muthandikuppam Village died
and the 16th day ceremony was proposed to be conducted on
08.11.2001, at Anandeeswarar Temple, Perperiyankuppam.
While printing the card the name of the village
Perperiyankuppam was not printer. So, this was objected by
the Perperiyankuppam Village people.
4. It is further submitted that on 08.11.2011 at about
04.00 A.M., in Perperiankuppam main road, 400 women of
Perperiyankuppam Village conducted "Road Roko" and they
were surrounded by Perperiyankuppam Village men. In order to
maintain law and order Zonal Deputy Tahsildar, Krishnamurthy,
Revenue Inspector Kumudam, V.A.O. Gnanasekaran,
D.S.P.Panruti, Inspector of Police Kadampuliur camped there
and tried to pacify them. But, Perperiyankuppam Village people
insisted that Muthandikuppam people had to give a written
undertaking that in future the name of the Perperiyankuppam
Village must be printed in the ceremony invitation and also
demanded to tender apology to them. They failed to give up
the Road Roko. At the same time, in retaliation to the above
incident Muthandikuppam Village people conducted Road Roko
in Kattukoodalore Road. They were pacified and they gave up
the Road Roko at 08.30 A.M. Muthandikuppam Village people
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insisted that they be permitted to go to Anandeeswarar
Temple, Perperiyankuppam to conduct 16th day ceremony for
the deceased Ramalingam. They were asked to keep away from
there and adviced that after the talks with the
Perperiyankuppam Village people they can proceed. But, they
prepared to go to Anandeeswarar Temple to perform the 16th
day ceremony. Tension was prevailing in that area.
Perperiyankuppam Village people were asked to disperse but in
vain D.S.P Panruti warned them to disperse by in vain. When
the police party tried to arrest them, Perperiyankuppam Village
people hurled stones towards the police. In spite of the
repeated warning by the D.S.P. Panruti, they attacked the
police party with stones and the D.S.P sustained injuries. They
were warned that tear gas would be used. But the angry unruly
mob started to throw stones towards the police. After obtaining
the permission from the Executive Magistrate (Tahsildar) tear
gas were used to disperse the unruly mob. Inspite of it the
unruly mob not dispersed. Again they were warned that lathi
charge would be carried out this was also not responded by
them. So, with the order of the Executive Magistrate they were
lathi charged. Repeatedly they attacked the police party. Lastly
they were warned that unless they disperse firing would be
open. But the unruly mob did not heed to the warning and
indulged in attacking the police people. At about 10.30 A.M. in
order to maintain law and order and to protect this lives of
innocent people, after getting permission from the Executive
Magistrate firing with rubber bullets was opened. Again the
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Village people advance towards the police for attacking. So, the
police party opened firing with rubber bullets to disperse the
crowd. Due to the attack of the unruly mob, Deputy Tahsildar,
Head Constable, six constables were injured, Jeeps were
damaged. In this regard D.S.P. Nagarajan gave a complaint
and a case was registered in Muthandikuppam P.S.
Cr.No.257/2011 u/s 147, 148, 341, 332, 333, 324, 307 IPC
and 3(1) of the Tamil Nadu Property (Prevention of Damages
and Loss) Act 1992. Apart from the police personnel, during the
above said rioting one Ramamurthy also sustained injury and
he was awarded Rs.10,000/- by the Government as
compensation, injured Valalyapatty was awarded Rs.10,000/-
as compensation, injured Kamalakannan was awarded
Rs.10,000/- as compensation, injured Arivalagan was awarded
Rs.5,000/- as compensation, injured Sivakumar was awarded
Rs.5,000/- as compensation thus the Government had taken
adequate measures to compensate the injured persons.
5. Regarding the averment made in paragraph 2 of the
affidavit, It is submitted that it is true that there is a dispute
between the people of Perperiankuppam Village and
Muthandikuppam Village regarding the non-mentioning of the
village Perperiankuppam in the printing card by the
Muthandikuppam Village people while performing 16th day
Ceremony at Anandeeswarar Temple situated at
Perperiankuppam. The Village people of Perperiankuppam
proposed a Road Roko on 08.11.2011. So, Revenue officials
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and police camped there for bandobust. On 08.11.2011
PerperankuppamVillage people formed themselves into unlawful
assembly in Perperiankuppam main road with a common object
to attack the police personnel, Revenue personnel and
Muthandikuppam Village people. Inspite of the repeated
warnings by the Police Officials, they indulged in attacking the
police personnel damaged the government vehicles. After
observing the legal formalities the police initially used teargas
shells, then lathi charge finally opened fire with rubber bullets.
The warnings given by the police were not heeded by them and
they attacked the police personnel and Revenue Officials and
tried to kill them. So, as a defensive action firing was opened
against the people of Perperiankuppam Village.
6. Regarding the averment made in paragraph 3 of the
affidavit, it is submitted that the people of Perperiankuppam
Village formed themselves into an unlawful assembly in
Perperiankuppam main road with a common object to attack
the police, Revenue officials and the Muthandikuppam Village
people. The officials tried to pacify them but in vain. They
demanded a written apology Letter from the Muthandikuppam
Village people. At the same time Muthandikuppam Village
people also gathered at Kattukoodalore road. They insisted to
proceed to Anandeeswarar Temple. Tension was prevailing. The
people of Muthandikuppam Village were pacified. Thereafter
Perperiankuppam Village people were asked to disperse but in
vain. So, when the police party tried to arrest them they
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attacked the police party. They were warned that teargas shell
will be used in spite of it, they threw stones towards the police
and Revenue Officials. The Deputy Superintendent Police
Deputy Tahsildar, Head Constable and six constables were
injured, use of teargas did not yield any fruitful result. The
Panruti Tahsildar order to open fire with rubber bullets in order
to scare away the unruly mob. In such use of several rounds of
rubber bullets some of the members of the unlawful assembly
also got injured. It is submit that in order to maintain law and
order and in order to protect the life of the innocent people
after observing all the legal formalities the firing with rubber
bullets were opened. So, it is not correct to state that the
respondent Police instantly opened fire in a blind manner
without any precaution. The police acted in a manner known to
law. The petitioner was treated at Government Hospital,
Cuddalore and he recovered.
7. Regarding the averment made in paragraph 4 of the
petition. It is submitted that Rs.10,000/- was awarded by the
Government by way of compensation. It is submitted that it is
not correct to state that the petitioner incurred around two lakh
for treatment and now he is unable to work.
8. Regarding the averment made in paragraph 5 of the
affidavit, it is submitted that it is not correct to state that
respondent police foisted a false case against the petitioner and
59 people residing in Perperiankuppam Village. I submit that on
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08.11.2001, in the main road at Perperiankuppam Village the
petitioners and 59 people of Perperiankuppam Village formed
themselves into an unlawful assembly armed with stick, iron
pipe, cycle chain, knife stone with a common object to attack
the police, Revenue Officials and hurled stones towards the
police and thereby caused hurt to the Deputy Tahsildar, D.S.P.
Head Constable and six constables. Inspite of the warnings
given by the police they did not stop the attacking and
continuing their unlawful activities. So, after observing all the
Legal formalities police used teargas shell, lathi charge finally
opened firing with rubber bullets. In this regard on the basis of
the complaint given by the D.S.P. Panruti a case was registered
in Cr. No.257/2001 of Muthandikuppam Police Station u/s 147,
341, 332, 331, 307 IPC and 3 of Tamil Nadu Property
(Prevention Damage and Loss) Act 1992 read with 149 IPC. It
is submitted that the case was tried by the Assistant Sessions
Judge, Panruti in S.C.No.278/2010, 87/2010 and all the
accused were acquitted on 02.03.2011. It is submitted that the
police discharged the duty to maintain the law and order and
had not committed any atrocious against the petitioner and
against the 59 people of the Perperiankuppam.
5.Heard Mr.K.Srinivasan, learned counsel appearing on behalf of the
petitioner, Mr.R.Kumaravel, learned Additional Government Pleader
appearing on behalf of the 1st and 2nd respondents and Mr.V.Meganathan,
learned Government Advocate (Criminal Side) appearing on behalf of the
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3rd and 4th respondents.
6.The learned counsel for the petitioner submitted that the petitioner
was hardly eighteen years when this incident had taken place and he was
falsely implicated in this case and shown as A59 in the criminal case.
Ultimately, the criminal case ended in acquittal through judgment in
S.C.No.87 of 2010, dated 02.03.2011. The learned counsel further
submitted that the petitioner was standing in front of his house and there
was absolutely no authority for the police to open firing and the police failed
to ensure/secure the life and liberty of the citizen which resulted in the
petitioner suffering a virtual amputation of the hand above the wrist. As a
result of the same, the petitioner had to undergo a major operation where
the skin was taken from the waist and leg of the petitioner and that was
used to join the amputed limb. According to the learned counsel for the
petitioner, since the State failed to secure the life and limb of the citizen
and the petitioner suffered heavily due to the same, the petitioner is
entitled for payment of compensation by the State.
7.Per contra, the learned Additional Government Pleader appearing
on behalf of the respondents submitted that the petitioner was one of the
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accused persons in the criminal case and he chose to claim for
compensation after the order of acquittal was passed by the trial Court. The
learned Additional Government Pleader submitted that totally 63 persons
joined together and formed an unlawful assembly and they were carrying
dangerous weapons in their hand and they started pelting stones and
attacking the police and revenue officials who are present in the spot. As a
result, they caused injury to the Deputy Tahsildar, Deputy Superintendent
of Police, Head Constable and nearly six constables. Since, the situation
was going out of control, the police warned all those who were present in
the scene of occurrence to stop attacking. However, the attack continued
and the lathi charge and the tear gas shell was not enough to bring the
situation under control and ultimately, the police had to resort to firing with
rubber bullets. The learned Additional Government Pleader submitted that
the police had to undertake this exercise in order to maintain the law and
order and in order to bring the situation under control. It was therefore
submitted that the injuries sustained by the petitioner cannot be attributed
against the State and no compensation is payable to the petitioner. The
learned Additional Government Pleader further submitted that all those who
were injured at the time of the occurrence were paid compensation of a
sum of Rs.10,000/- and the petitioner also received a compensation of a
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sum of Rs.10,000/-. Beyond that the petitioner is not entitled for any
compensation and therefore, the learned Additional Government Pleader
sought for the dismissal of this writ petition. The learned Additional
Government Pleader in order to substantiate his submissions, relied upon
the judgment of the Full Bench in P.P.M.Thangaiah Nadar Firm, Rep. By
its Partner T.P.Prakasam, Tuticorin and others vs. Government of
Tamil Nadu, rep. By its Chief Secretary, Chennai and others reported
in 2007 2 MLJ 685.
8.This Court has carefully considered the submissions made on either
side and also the materials available on record.
9.In a case of this nature, the manner in which the Court has to
exercise its jurisdiction under Article 226 of the Constitution of India has
been spelt out by the Full Bench of this Court in the judgment relied upon
by the learned Additional Government Pleader and which has been referred
supra. For proper appreciation, the relevant portion in the Judgment is
extracted hereunder:
38. Now the inevitable end of the journey or may be
beginning of another. In view of the various decisions noticed
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by us and many other decisions referred to in such decisions,
the following conclusions can be reached. The State is not
necessarily liable in every case where there is loss of life or
damage to the property during rioting. Where, however, it is
established that the officers of the State ordained with duty of
maintaining law and order have failed to protect the life, liberty
and property of person and such failure amounts to dereliction
of duty, the State would be liable to pay compensation to the
victim. Such liability can be enforced through Public Law
remedy or Common Law remedy. Where, necessary facts to
establish culpable negligence on the part of the officials are
available, the High Court under Article 226 can issue
appropriate direction. Where, however, the main aspect
relating to culpable negligence of the officer is seriously
disputed, filing of suit may be more appropriate remedy. No
hard and fast rule can be laid down on these aspects and
obviously the availability of remedy under Article 226 would
depend upon the facts and circumstances of each case.
Compensation for loss to the property can also be claimed
under Article 226 and merely because right to property has
been deleted from the Chapter of Fundamental Rights and has
been recognised as a Constitutional right, would not disentitle
the High Court to examine that question in any appropriate
case.
10.Per contra, the learned counsel for the petitioner relied upon the
Judgment of this Court in S.Krishnaswamy vs. State of Tamil Nadu,
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W.P.No.19500 of 2012
Rep. By the Secretary to Government, Home Department, Fort St.
George, Chennai - 9 and others reported in 2016 5 CTC 70. The
learned counsel by relying upon by this Judgment submitted that there was
a similar riot in that case which resulted in a citizen sustaining serious
injuries and he also lost his sight in the left eye and suffered 40% disability.
This Court on considering the Full Bench Judgment that was relied upon by
the learned Additional Government Pleader, held that the compensation is
payable on the ground that the State failed to secure and safeguard the life
and limb of the citizen. The learned counsel in order to substantiate his
submission, relied upon the relevant portions in the judgment which are
extracted hereunder:
27. In the case on hand, the materials placed before this
Court would clearly reveal that the State has given assurance
that on the eve of Bandh, normal life will not be paralyzed and
essential services will be properly maintained, based on which
only the petitioner undertook the journey and on account of
stone throwing by two persons on the eve of Bandh, he
suffered grievous injuries which led to loss of vision on his left
eye, broken jaws and blood clots for which he has undergone
surgeries and incurred medical expenses and was also put to
grave hardship, mental agony, pain and suffering. The
prosecution launched against two persons by the State has
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W.P.No.19500 of 2012
ended in acquittal and the State did not evince any interest to
challenge the said order of acquittal passed by the trial Court
and it has become final and therefore, this Court is of the
considered opinion that the State is bound to compensate the
petitioner for the agonies being undergone by him.
28. In T.Sekaran v. State of Tamil Nadu [2010 (1) CWC
455], a Division Bench of this Court has considered the
quantum of compensation to the persons who suffered injuries
and it is relevant to extract the para 51 of the said judgment:
"51. Once it is found that the family members
of the victim are entitled to compensation, the next
question to be considered is as to the quantum.
There is no codified law, for arriving at the quantum
of compensation in cases of this nature. Though
special enactments such as the Motor Vehicles Act,
1988 and the Workmen's Compensation Act, 1948,
provide lot of indications for arriving at the
quantum of compensation, in cases to which they
apply, there is no enactment to cover cases of this
nature. Even the Fatal Accidents Act, 1855, does
not provide adequate indications. The State of
Kerala has a special enactment known as "The
Kerala Torts (Miscellaneous Provisions) Act, 1976.
But even the said Act, is primarily aimed at
codifying the law relating to survival of causes of
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action, liability of joint tortfeasors and the liability
in cases of contributory negligence in respect of
torts.
29. The petitioner, at the time of accident, was aged
about 44 years and as per the certificates issued by Aravind
Eye Hospital, Madurai, he lost the eye sight of his left eye and
is having a disability of 40%. Series of medical bills enclosed in
the typed set of documents would disclose that the petitioner
had incurred a sum of Rs.55,000/- by way of medical expenses
and as per his additional affidavit, he was admitted as an
inpatient in Aravind Eye Hospital, Madurai from 02.07.2001 to
12.07.2001, followed by several other visits and short spells of
treatment and also admitted as an in-patient in Sankara
Hospital, Tiruppur from 15.07.2001 to 26.07.2001, 29.07.2001
to 12.08.2001 and 18.08.2001 to 08.09.2001 and therefore, he
was admitted as an in-patient nearly for 55 days.
11.In the instant case, it is apparent from the records that on
08.11.2001, there was a major violence that took place due to a temple
dispute between two villages. Nearly 63 persons were identified by the
prosecution to have involved in arson and violence. Some of the revenue
authorities and police personnel were also injured due to pelting of stones
by the mob. The lathi charge and the tear gas shell was not enough to
bring the situation under control and the police left with no other option
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opened firing with rubber bullets. That was the only way in which the police
were able to bring the situation under control. On investigation, a final
report was ultimately laid as against 63 accused persons and the petitioner
was arrayed as A59. After trial, the Sessions Court found that the
prosecution was not able to prove the case beyond reasonable doubts and
had acquitted the accused persons. This typically happens in all cases of
violence and arson involving a mob and in most cases, the benefit of the
doubt is given to the accused persons due to non-availability of strong
material to convict them. On reading the judgment, it is clear that there
was large scale violence that took place on the date of occurrence.
12.The limited issue that has to be considered by this Court is as to
whether the State must be held liable to pay compensation to the petitioner
due to its failure to safeguard the life and limb of the citizen. To consider
the same, the clarity given by the Full Bench of this Court and which was
relied upon by the learned Additional Government Pleader, assumes
significance. The Full Bench after taking into consideration all the earlier
judgments laid down that the State will not be necessarily liable in every
case where there is a loss of life or injury sustained or there is damage to
property during riot. It is only in those cases where it is established that the
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officers of the State who are ordained with the duty of maintaining law and
order have failed to protect the life and limb of the citizens and such failure
will be treated as dereliction of duty and in those cases, the State would be
liable to pay compensation. The Full Bench also expressed a word of
caution while granting compensation in exercise of jurisdiction under
Article 226 of the Constitution of India by stating that where there is a
serious dispute on facts and it may involve appreciation of evidence, filing
of a suit may be the most appropriate remedy and in such cases, the Court
should not exercise its jurisdiction under Article 226 of the Constitution of
India. This judgment of the Full Bench has to be kept in mind while dealing
with the facts of the present case.
13.Insofar as the judgment that was relied upon by the learned
counsel for the petitioner, that was a case where a bandh call was issued by
a political party and inspite of the same, the normal activities resumed and
as a result, there was a large scale violence and an unruly mob indulged in
attacking persons and damaging properties. During this incident, the
petitioner therein who was traveling in a State Transport Corporation bus
sustained a serious injury in his left eye and suffered 40% disability.
It is under those circumstances, this Court held that the State
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after having given an assurance that normal activities will not be paralyzed
on the day when the bandh was called, failed to give proper protection to
the citizens and as a result of the same, the petitioner sustained a serious
injury and therefore, the Court held that the State failed in its obligation to
protect the life and limb of the citizen and hence, awarded compensation.
14.In the present case, there was a wide spread violence between
two villages due to temple dispute. The violence had to be brought under
control and hence, the police were forced to resort to force. The police
opened firing only as a last resort to bring the situation under control and
unfortunately, during that point of time, the petitioner sustained a bullet
injury in his palm. On the facts of the present case, the judgment that was
relied upon by the learned counsel for the petitioner, will not come to his
aid. This is a case where this Court has to merely see if the injury was
sustained by the petitioner due to the culpable negligence on the part of
the officials. Such a finding cannot be rendered in this writ petition, since
the police are ordained to maintain the law and order and for performing
that duty, sometimes an extreme situation may arise where they have to
resort to force. That may even go to the extent of opening firing and it goes
without saying that, that is the last resort that is applied by the police to
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bring the situation under control. In the facts of the present case, the police
had to resort to open firing, since the mob started attacking the revenue
officials and the police. Under such circumstances, it was quite unfortunate
that the petitioner sustained injuries but that cannot be held to be as a
result of any culpable negligence on the part of the police. It was a sheer
accident that was bound to take place under such circumstances where the
police resort to open firing. It cannot be held to be a dereliction of duty or
the failure of the State to safeguard the life and limb of the citizens. Infact,
the force itself was used only with a view to being the situation under
control and to save the life, limb and property of a large population
belonging to both the villages.
15.In view of the above discussion, after taking into consideration the
facts and circumstances of the present case and after carefully
understanding the scope of the judgment of the Full Bench, this Court holds
that this is a case which will not fall within the category of the State failing
to safeguard the life and limb of a citizen and as a result of the same, no
culpable negligence can be attributed to the officials acting on behalf of the
State and consequently, the petitioner will not be entitled to claim any
compensation against the State.
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W.P.No.19500 of 2012
16.In the result, this writ petition stands dismissed. No costs.
10.08.2022
Internet : Yes
Index : Yes
Speaking Order / Non Speaking Order
ssr
To
1.The Secretary Home Department,
Secretariat,
Saint George Fort,
Chennai – 600 009.
2.The Director General of Police,
Kamarajar Salai,
Chennai – 600 005.
3.The Superintendent of Police,
Cuddalore District,
Cuddalore – 1.
4.The Inspector of Police,
Muthandikuppam Police Station,
Cuddalore District.
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W.P.No.19500 of 2012
N. ANAND VENKATESH, J.
ssr
W.P.No.19500 of 2012
10.08.2022
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