ORDER
1. This is a writ petition whereby the petitioners, wife and two children of Head Constable Om Prakash, Malkhana Incharge, PS Naraina, who was killed in a rocket explosion, claim compensation for his death.
2. The first petitioner is the wife of the deceased Om Prakash and the second and the third petitioners are his children. The first respondent is the Government of NCT of Delhi, while the second and the third respondents are the Commissioner of Police and the Station House Officer, PS Naraina, respectively.
3. Om Prakash, at the time of his death, was Head Constable with the Delhi Police and was serving as Incharge, Malkhana, Police Station Naraina, under the immediate control of the third respondent. On January 31, 1996 an information was received at Police Station Naraina that a standard army rocket was lying near Post No. 6, Commercial Railway Lines. On receipt of the information, case under section 4/5 of the Explosive Substances Act, 1908 was registered vide FIR No. 19/96 dated January 31, 1996 at PS Naraina. On the same day the rocket was seized by SI Manoj Kumar of PS Naraina in the presence of SI Kapil Dev and SI Jaiveer Singh of Bomb Disposal Squad. Since it was a live rocket the same was kept outside the police station Naraina surrounded by sand bags. In order to secure assistance to defuse the rocket, SI Manoj Kumar approached the Army Headquarters (for short ‘the Army HQ’). On February 3, 1996 the Army HQ by a written communication asked the respondents to arrange insurance covers for the personnel who were being detailed to undertake the job as per the following details:
(a) Rs. 12,00,000/- for one Junior Commissioned Officer, and
(b) Rs.10,00,000/- for each of the five rankers.
It appears that the respondents did not arrange the insurance cover and instead asked Sub Inspector Chunni Lal of the Bomb Disposal Squad to defuse and dismantle the rocket. Accordingly, on February 10, 1996 SI Chunni Lal dismantled the rocket into five pieces after supposedly defusing the same and taking X-ray thereof. The five pieces of the rocket were sealed in a plastic bag and kept as a case property in respect of case FIR No.19/96 dated January 31, 1996 in the charge of Head Constable Om Prakash. It is not disputed on both sides that on May 15, 1997 at about 8.45 A.M. the rocket exploded while HC Om Prakash was taking out the case properties pertaining to the cases fixed for hearing in various courts on that date. It is also not disputed that in the process of locating the required case properties he had taken out the case property of FIR No.19/96. HC Om Prakash and Constable Varinder sustained injuries as a result of the explosion and they were admitted to Safdarjung Hospital. In respect of the incident a case FIR No.198/97 under section 4/5 of the Explosive Substances Act, 1908 read with section 337 IPC was registered at PS Naraina. On May 24, 1997 HC Om Prakash succumbed to the injuries. Thereupon section 304A IPC was substituted in place of section 337 IPC in the FIR. It appears that the case is still under investigation. Apart from the registration of the FIR no magisterial inquiry was ordered into the cause of the incident leading to the death of HC Om Prakash.
4. The very fact that the rocket exploded shows that it was not defused and the same was live. By keeping live explosive device in the Malkhana lives of persons on duty and those visiting the Police Station Naraina were endangered. It is significant to note that the Army HQ had agreed to defuse the rocket, but the respondents did not provide the requisite insurance covers for the army personnel with the result that they did not defuse the rocket. No reason has been given by the respondents why the insurance covers were not provided as demanded by the Army HQ. Obviously, the respondents were trying to save money at the cost of the lives of the persons on duty at PS Naraina. It is not claimed by the respondents that they had taken an insurance cover for SI Chunni Lal before asking him to handle the explosive device. To say the least this reflects their insenstivity. They do not seem to attach any value to human life. The failure of the respondents in effectively and efficiently getting the explosive device defused has cost dearly to the family of HC Om Prakash. Explosion of the device is a proof positive of the fact that adequate and effective measures for defusing the same were not taken by the respondents. It is a situation where thing speaks for itself. Due to the gross negligence of the State and its functionaries (respondents 1 to 3) the bread winner of the petitioners has been snatched away by the cruel hands of death. It is needless to emphasise that rocket is a dangerous substance and the State and its concerned functionaries were under an obligation to take such steps as would have eliminated any chance of a mishap. Such a duty of care was cast upon them. They were clearly remiss in the discharge thereof. This dereliction of duty on their part led to the untimely death of Om Prakash. It deprived him of his fundamental right under Article 21 of the Constitution. The sweep of Article 21 of the Constitution is wide and far reaching. It will undoubtedly cover a case where the State fails to discharge duty of care cast upon it resulting in deprivation of life and limb of a person. Right to life is not negotiable.
5. In the instant case the heavy duty of care lay upon the State since an explosive device was kept in the Malkhana. As the device was not defused this duty of care was clearly breached by the State and its concerned officials. In such like cases the courts expect strict and high standard of care from them. When there is a failure to perform duty which results in physical injury, deprivation of life or loss of property, Article 21 of the Constitution is attracted and the aggrieved party is entitled to invoke Article 226 to claim monetary or pecuniary compensation as such a remedy is available in public law based on strict liability for breach of fundamental right. As held in Unni Krishnan, J.P. and Others Vs. State of Andhra Pradesh and Others, , Article 21 acts as a shield against deprivation of life or personal liberty. Personal liberty and life have to be given expanded meaning. Though Article 21 is couched in negative terms, it also has a positive content. It contains a person’s right to life and liberty. Concepts of life and liberty were purposely not defined in the Constitution so that expanded meaning could be given in accordance with the march of time. Dereliction of duty on the part of the servants of the State resulting in loss of precious life would amount to violation of Article 21 of the Constitution and the State will be vicariously liable for their acts. In P.A. Narayanan Vs. Union of India and Others, , the Supreme Court in an appeal arising from a writ petition held that dereliction of duty which results in loss of life renders the guarantee under Article 21 of the Constitution illusory. In that case the wife of the appellant lost her life while travelling in the first class railway compartment at the hands of dacoits. It was found that the incident exhibited negligence of the Railway employees in the performance of their duties. The Supreme Court, in the circumstances of that case, asked the Railways to pay a sum of Rs.2 lakhs as compensation to the appellant for the death of his wife. Therefore, it is too late in the day to contend that compensation for the tortuous acts of the functionaries and servants of the State cannot be awarded in a writ petition. The myth was convincingly exploded in Nilabati Behera (Smt.) alias Lalita Behera (through the Supreme Court Legal Aid Committee) Vs. State of and others, , which was based upon the principles laid down in Bhagalpur Blinding cases: Khatri (II) Vs. State of Bihar, ; Khatri (IV) Vs. State of Bihar, ; and Union Carbide Corpn. Vs. Union of India, . In Nilabati Behera’s case (supra) the Supreme Court held that in a case of violation of fundamental rights by the State and its instrumentalities or servants the court can direct the State to pay monetary or pecuniary compensation to the victim. It also held that the principle of sovereign immunity was inapplicable in such cases; a proceeding under Article 32 or 226 of the Constitution for award of compensation is a public law remedy as distinct from private law remedy; and the aggrieved party cannot be relegated to a civil suit. The observations of the Supreme Court in this regard are as follows :-
“Advertising to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortuous act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen complaining of the infringement of the inde feasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve `new tools’ to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law. While concluding his first Hamlyn Lecture in 1949 under the title `Freedom under the law’ Lord Denning in his own style warned :
‘No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power if not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up-to-date machinery, by declarations, injunctions and actions for negligence. This is not the task of Parliament, the court must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare state; but abused they lead to a totalitarian state. None such must ever be allowed in this country.”
6. The decision of the Supreme Court in Nilabati Behera’s case (supra) was followed in D.K. Basu Vs. State of West Bengal, , where the Supreme Court held as under :-
“43. Till about two decades ago the liability of the Government for tortuous acts of its public servants was generally limited and the person affected could enforce his right in tort by filing a civil suit and there again the defense of sovereign immunity was allowed to have its play. For the violation of the fundamental right to life or the basic human rights, however, this Court has taken the view that the defense of sovereign immunity is not available to the State for the tortuous acts of the public servants and for the established violation of the rights guaranteed by Article 21 of the Constitution of India. In Nilabati Behera Vs State the decision of this Court in Kasturilal Ralia Ram Jain Vs. State of U.P. wherein the plea of sovereign immunity had been upheld in a case of vicarious liability of the State for the tort committed by its employees was explained thus : (SCC p. 761, para 14)
“In this context, it is sufficient to say that the decision of this Court in Kasturilal upholding the State’s plea of sovereign immunity for tortuous acts of its servants is confined to the sphere of liability in tort, which is distinct from the State’s liability for contravention of fundamental rights to which the doctrine of sovereign immunity has not application in the constitutional scheme, and is no defense to the constitutional remedy under Articles 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights, when the only practicable mode of enforcement of the fundamental rights can be the award of compensation. The decisions of this Court in Rudul Shah and others in that line relate to award of compensation for contravention of fundamental rights, in the constitutional remedy under Articles 32 and 226 of the Constitution. On the other hand, Kasturilal related to the value of goods seized and not returned to the owner due to the fault of government servants, the claim being of damages for the tort of conversion under the ordinary process, and not a claim for compensation for violation of fundamental rights, Kasturilal is, therefore, inapplicable in this context and distinguishable.”
The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortuous acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests 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 penalising 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.
The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too 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 breadwinner of the family.”
7. In All India Lawyers Union (Delhi-Unit) Vs. Union of India and others, Civil Writ Petition No. 33/98, decided on November 12, 1998, where the municipal school had failed to make adequate provision for potable water for the children and a student while crossing the road to fetch water for himself was run over by a tempo as a result of which he lost his life, the parents of the child were awarded compensation by a Division Bench of this Court. In this regard while awarding compensation this Court held as follows :-
“The importance of provision of drinking water in a school cannot be over emphasised. Children cannot be expected to remain in school for long hours without water. They can not be made to go out side the school, on busy and hazardous roads, in search of water. Water sustains life. To deny water is to deny adequate sustenance. The State, under Article 39(f) of the Constitution, is required to secure opportunities and facilities to children to develop in a healthy manner. When even water cannot be provided to children in a school, the question of their development in a healthy manner would be a far cry. Provision for wholesome potable water in schools is part of right to life enshrined under Article 21 of the Constitution. All schools must provide clean drinking water to the children.
It is important to note that the respondents have not disputed that the child went outside the school during the school hours. It follows that the child was not prevented from leaving the school to quench his thirst. The school authorities were under a duty of care which has been clearly breached by them. When the parents leave the children in school they are in the custody of the school authorities. They are required to take such case of their pupils as would be taken by a careful and prudent parent. The fact that the child could move out of the school during school hours shows that either the gate was unmanned or the security at the gate was lax. The school authorities owe a duty to provide adequate security to the children to prevent chances of injury to them. That duty has not been performed by the authorities. But for their negligence in discharge of the duty, the child would have been alive. In the circumstances, therefore, respondent No.5, which runs the school is liable to pay compensation to the parents of the deceased child. We are conscious of the fact that money is not an adequate compensation for life. It cannot wipe the tears of the parents of the deceased child but there is also no other mode to compensate them.”
8. In view of the aforesaid discussion, we are of the opinion that the petitioners should be compensated for the gross negligence of the respondents which resulted in the death of HC Om Prakash. In the circumstances, we direct the first respondent to pay a sum of Rs. 3,50,000/- as compensation to the petitioners within eight weeks from today in the following manner :-
Petitioner No. 1 (wife) : Rs.1,50,000/-
Petitioner No. 2 (son) : Rs.1,00,000/-
Petitioner No. 3 (daughter) : Rs.1,00,000/-
9. The compensation as awarded above shall be exclusive of the other amounts which may be due to HC Om Prakash or his family members (petitioners) which the State is bound to pay under the relevant service rules. The award of the above compensation in public law jurisdiction shall be without prejudice to any other action which may be lawfully available to the petitioners. The amount of above compensation shall be liable to be adjusted against any amount which may be awarded to the petitioners by way of damages in a private law remedy. Any observations made herein on merits shall not affect the decision of the courts in other proceedings arising from the incident in question. They will be free to arrive at their own conclusions.
10. The amount of Rs.1,00,000/- each, which has been awarded as above in favour of the second and the third petitioners, shall be kept in a fixed deposit till the said petitioners attain majority.
11. The petition stands disposed of.
12. A copy of this order be sent to the Commissioner of Police, Delhi.
13. A copy of this order be also given dasti to learned counsel for the respondents.