IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : INDIAN PENAL CODE

W.P. (C) 4756/1997

Reserved on: 5th May 2011

Decision on: 4th July 2011

NEEMA GOYAL ..... Petitioner

Through: Mrs. June Chaudhari, Senior Advocate with Ms. Sumeeta Chaudhari

and Mr. Anil Karnwal, Advocates.

versus

UNION OF INDIA & ANR ..... Respondents

Through: Ms. Maneesha Dhir, Sr. Panel Counsel with

Ms. Mithu Jain, Advocate for R-1/UOI.

Mr. Rajeev Nanda, Addl. Standing counsel with Ms. Rachna Saxena, Advocate for

for R-2/Police.

W.P. (C) 5405/1997

JASPAL KAUR ..... Petitioner

Through: Mr. Mayank Bughani, Advocate.

versus

UNION OF INDIA & ANR ..... Respondents

Through: Ms. Maneesha Dhir with

Ms. Mithu Jain, Advocates for UOI.

Mr. Rajiv Nanda, Addl. Standing counsel with Ms. Rachna Saxena, Advocate for

for R-2/Police.

CORAM: JUSTICE S. MURALIDHAR

JUDGMENT

Introduction

1. On 31st March 1997 at around 2.30 pm outside Dena Bank at the Outer Circle

of Connaught Place, New Delhi, thirteen policemen led by Assistant Commissioner

of Police Satyavir Singh Rathi (hereafter ‘ACP Rathi’) surrounded a Maruti

Esteem car and fired at it from all directions. Two of the three occupants of the car,

Shri Pradeep Goyal and Shri Jagjit Singh were killed instantaneously. Grievous

injuries were caused to the third occupant, Shri Tarun Preet Singh. For the

dastardly killing, ten of the policemen including ACP Rathi were convicted under

Section 302 IPC read with 120B IPC and various other related offences by the

learned Additional Sessions Judge (‘ASJ’) by a judgment dated 16th October 2007

and sentenced to life imprisonment by a consequential order dated 24th October

2007. The appeals by the convicted policemen were dismissed by this Court on

18th September 2009. Their further appeals were dismissed by the Supreme Court

on 2nd May 2011.

2. Smt. Neema Goyal, wife of Pradeep Goyal has filed W.P. (C) 4756 of 1997

claiming compensation of Rs. 2 crores from the Union of India in the Ministry of

Home Affairs (‘MHA’), and the Commissioner of Police, Delhi (Respondents 1

and 2) for the wrongful killing of her husband. Smt. Jaspal Kaur, wife of Jagjit

Singh has filed W.P. (C) 5405 of 1997, claiming an identical relief.

3. Inasmuch as the facts of the case stand established by the prosecution and the

guilt of the police personnel involved comprehensively proved beyond reasonable

doubt, these petitions do not involve disputed questions of facts. The findings of

the trial court on facts have been affirmed by this Court and the Supreme Court.

Factual background

4.1 The facts are that on 31st March 1997 Jagjit Singh and Tarun Preet Singh, both

hailing from Kurukshetra, Haryana reached the office of Pradeep Goyal near the

Mother Dairy in Patparganj, Delhi at about 1 pm. Pradeep Goyal told them that he

had some work at the Dena Bank in Connaught Place. He asked them to

accompany him. The three left in a blue Maruti Esteem car UP 14 F 1580

belonging to Pradeep Goyal.

4.2 One Mohd. Yaseen was wanted by the Delhi Police and the police of other

states in several criminal cases. He was being tracked by the Inter-State Cell of the

Crime Branch of the Delhi Police. His telephone calls were monitored and tracked

by Inspector Ram Mehar. ACP Rathi was incharge of the Inter-State Cell. He

received information that Mohd. Yaseen would be visiting a place near the Mother

Dairy at Patparganj at about 1.30 pm on 31st March 1997. ACP Rathi directed

Inspector Anil Kumar to keep a watch near the Mother Dairy. Inspector Anil

Kumar was present when Tarun Preet Singh and Jagjit Singh met Pradeep Goyal in

his office. Inspector Anil Kumar mistook Jagjit Singh, who was a cut haired Sikh

(i.e., without a turban but sporting a beard), for Mohd. Yaseen. Inspector Anil

Kumar then was accompanied by Head Constable Shiv Kumar and Constable

Sumer Singh. He called ACP Rathi for reinforcements.

4.3 ACP Rathi with the police party consisting of 12 persons left the Inter-State

Cell office at 1.32 pm. Two of the policemen were armed with AK-47 rifles and

others with revolvers. ACP Rathi was carrying a 9 MM pistol. The Maruti Esteem

car stopped at Dena Bank, Connaught Place at 2.00 pm. Pradeep Goyal emerged

from the Bank at about 2.30 pm and after giving instructions to his employees sat

in the Esteem car on the front left seat whereas Tarun Preet Singh was in the rear

seat. The car driven by Jagjit Singh had moved towards Barakhamba Road when it

halted at the red light. At that time the two police parties, one headed by ACP Rathi

and the other by Inspector Anil Kumar joined forces. The car was immediately

surrounded by the police officials and fired upon from all sides resulting in the

instant deaths of Pradeep Goyal and Jagjit Singh and grievous injuries to Tarun

Preet Singh. The three occupants were removed to the Ram Manohar Lohia

Hospital in a Police Control Room Gypsy. Pradeep Goyal and Jagjit Singh were

declared dead on arrival.

The criminal trial and conviction

5. The incident caused public outrage. FIR No. 448 of 1997 was registered at

Police Station (‘PS’) Connaught Place. Dinesh Chand Gupta, father-in-law of

Pradeep Goyal gave a complaint to the Lieutenant Governor (‘LG’), Delhi leading

to the registration of FIR No. 453 of 1997 at PS Connaught Place, New Delhi

against the aforementioned police personnel for the offences punishable under,

inter alia, Section 302/34 IPC. The investigation was handed over to the Central

Bureau of Investigation (‘CBI’). FIR Nos. 448 and 453 of 1997 were amalgamated.

A charge sheet was filed before the Chief Metropolitan Magistrate (‘CMM’) on

13th June 1997. The CMM took cognizance of the offences by an order dated 10th

July 1997 and committed the case for trial before the learned ASJ. The trial court

recorded evidence of 74 witnesses and examined a large number of documents

including reports of the Forensic Science Laboratory. By a judgment dated 16th

October 2007, the trial court convicted the accused policemen and by a subsequent

order dated 24th October 1997 sentenced them, inter alia, to imprisonment for life

for the offences under Section 302/120B IPC. In Crl. Appeal No. 671 of 2007 and

batch by the convicted policemen including ACP Rathi, this Court re-examined the

entire evidence and by its judgment dated 18th September, 2009 upheld the

conviction and sentence under Section 302/307 IPC with the aid of 34 IPC instead

of Section 120B IPC. The conviction and sentence of ACP Rathi and Inspector

Anil Kumar additionally under Sections 193, 201/34 and 203/34 IPC were

maintained.

6. The further appeals by the convicted policemen including ACP Rathi were

dismissed by the Supreme Court by its judgment dated 2nd May 2011 [Satyavir

Singh Rathi v. State through CBI 2011 (5) SCALE 339]. Negativing the contention

on behalf of the convicted police officers that the acts for which they were accused

fell within the distinction of ‘colour of duty’, the Supreme Court observed as

under: (SCALE, p. 368)

“In the light of the facts that have been found by us above, it cannot, by any stretch

of imagination, be claimed by anybody that a case of murder would fall within the

expression `colour of duty’. We find absolutely no connection between the act of

the appellants and the allegations against them. Section 140 of the Delhi Police Act

would, therefore, have absolutely no relevance in this case and Mr. Sharan’s

argument based thereon must, therefore, be repelled.”

7. The Supreme Court also significantly observed that Inspector Anil Kumar “had

made absolutely no attempt to apprehend” Jagjit Singh although he stayed behind

in the car alone for some time when Pradeep Goyal and Tarun Preet Singh went

into the Dena Bank. It observed that this “pre-incident conduct” was relevant. The

Supreme Court further observed: (SCALE, pp 359-360)

“(I)t is the case of the defence that the car had been surrounded to immobilize the

inmates and to prevent them from escaping and that it was with this intention that

Inspector Anil Kumar had knocked on the driver's window asking the inmates to

get out but he had been answered by firing from inside the car. This plea cannot be

accepted for the reason that the defence has already been rejected by us. Moreover

PW-37 testified that there were no bullet marks on the tyres and they remained

intact even after the incident, despite 34 shots being fired at the car, and 29 bullet

holes, most of them of entry, thereon. On the other hand, the Appellants

presupposed that one of the inmates was Mohd. Yaseen, the wanted criminal and

that the firing was so insensitive and indiscriminate that some of the shots had hit

Constables Subhash Chand and Sunil Kumar. The post facto conduct of the

Appellants is again relevant. Inspector Anil Kumar gave a report on the 1st April

1997 immediately after the incident, which was followed by a report by ACP Rathi

the next day giving the counter version. This has been found by us to be

completely untenable. The High Court was, therefore, justified in holding that in

the light of the above facts, it was not necessary to assign a specific role to each

individual Appellant as the firing at the Car was undoubtedly with a clear intent to

annihilate those in it and was resorted to in furtherance of the common intention of

all the Appellants.”

Liability for compensation

8. The liability of the State to compensate victims of lawlessness by its agents and

employees is well settled. The Supreme Court has consistently rejected the defence

of sovereign immunity as creating an exception when violations of fundamental

rights are committed by the State. [Khatri (IV) v. State of Bihar (1981) 2 SCC 493,

Saheli v. Commissioner of Police, Delhi (1990) 1 SCC 422, Nilabati Behera v.

State of Orissa (1993) 2 SCC 746, DK Basu v. State of West Bengal (1997) 1 SCC

41, State of Andhra Pradesh v. Challa Ramkrishna Reddy (2000) 5 SCC 712]. It is

also well settled that in matters involving violation of fundamental rights by law

enforcement officials, the strict liability principle will apply and the State must pay

monetary compensation to the victims of such violence as a public law remedy

under Articles 32 or 226. This remedy is in addition to any other private law

remedy the victims or their dependants may have.

9. In Nilabati Behera v. State of Orissa (1993) 2 SCC 746 the Petitioner's son,

Suman Behera, aged about 22 years, was taken in police custody from his home by

Sarat Chandra Barik, Assistant Sub-Inspector of Police of PS Bisra, District

Sundergarh in Orissa in connection with the investigation of an offence of theft and

detained at the Police Outpost. At about 2 pm the day after the arrest, the Petitioner

came to know that the dead body of her son Suman Behera was found on the

railway track near a bridge at some distance from the Jaraikela railway station with

multiple injuries on his body. Rejecting the plea of sovereign immunity, the Court

speaking through Justice J.S. Verma (as he then was) observed: (SCC, p. 761)

“16. In this context, it is sufficient to say that the decision of this Court in

Kasturilal v State of UP AIR 1965 SC 1039 upholding the State's plea of sovereign

immunity for tortious 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 no application in the

constitutional scheme, and is no defence 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.”

10. In his concurring opinion, Justice A S Anand (as he then was) explained the

special function of the public law remedy as under: (SCC, pp 768-769)

“The public law proceedings serve a different purpose than the private law

proceedings. The relief of monetary compensation, as exemplary damages, in

proceedings under Article 32 by this Court or under Article 226 by the High

Courts, for established infringement of the indefeasible right guaranteed under

Article 21 of the Constitution is a remedy available in public law and is based on

the strict liability for contravention of the guaranteed basic and indefeasible rights

of the citizen. The purpose of public law is not only to civilize public power but

also to assure the citizen that they live under a legal system which aims to protect

their interests and preserve their rights. Therefore, when the court moulds the relief

by granting "compensation" in proceedings under Article 32 or 226 of the

Constitution seeking enforcement or protection of fundamental rights, it does so

under the public law by way of penalising the wrongdoer and fixing the liability

for the public wrong on the State which has failed in its public duty to protect the

fundamental rights of the citizen. The payment of compensation in such cases is

not to be understood, as it is generally understood in a civil action for damages

under the private law but in the broader sense of providing relief by an order of

making 'monetary amends' under the public law for the wrong done due to breach

of public duty, of not protecting the fundamental rights of the citizen. The

compensation is in the nature of 'exemplary damages' awarded against the wrong

doer for the breach of its public law duty and is independent of the rights available

to the aggrieved party to claim compensation under the private law in an action

based on tort, through a suit instituted in a court of competent jurisdiction or/and

prosecute the offender under the penal law.

37. This Court and the High Courts, being the protectors of the civil liberties of the

citizen, have not only the power and jurisdiction but also an obligation to grant

relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to

the victim or the heir of the victim whose fundamental rights under Article 21 of

the Constitution of India are established to have been flagrantly infringed by

calling upon the State to repair the damage done by its officers to the fundamental

rights of the citizen, notwithstanding the right of the citizen to the remedy by way

of a civil suit or criminal proceedings. The State, of course has the right to be

indemnified by and take such action as may be available to it against the

wrongdoer in accordance with law - through appropriate proceedings. Of course,

relief in exercise of the power under Article 32 or 226 would be granted only once

it is established that there has been an infringement of the fundamental rights of the

citizen and no other form of appropriate redressal by the court in the facts and

circumstances of the case, is possible. … In doing so the courts take into account

not only the interest of the applicant and the respondent but also the interests of the

public as a whole with a view to ensure that public bodies or officials do not act

unlawfully and do perform their public duties properly particularly where the

fundamental rights of a citizen under Article 21 is concerned.”

11. The Supreme Court directed payment of compensation in the sum of Rs.

1,50,000 to the mother of the deceased by the State of Orissa.

12. In D K Basu v. State of West Bengal (1997) 1 SCC 416 the Supreme Court

revisited the issue of police atrocities and “modalities for awarding compensation

to the victim and/or family members of the victim for atrocities and death caused

in police custody and to provide for accountability of the officers concerned”.

Noting that “protection of an individual from torture and abuse by the police and

other law enforcing officers is a matter of deep concern in a free society”, the

Court observed: (SCC, p. 427)

“If the functionaries of the Government become law-breakers, it is bound to

breed contempt for law and would encourage lawlessness and every man would

have the tendency to become law unto himself thereby leading to anarchanism. No

civilised nation can permit that to happen. Does a citizen shed off his fundamental

right to life, the moment a policeman arrests him? Can the right to life of a citizen

be put in abeyance on his arrest? These questions touch the spinal cord of human

rights' jurisprudence. The answer, indeed, has to be an emphatic “No”. The

precious right guaranteed by Article 21 of the Constitution of India cannot be

denied to convicts, undertrials, detenus and other prisoners in custody, except

according to the procedure established by law by placing such reasonable

restrictions as are permitted by law.”

13. Negativing the plea of the Railways that it could not be held vicariously liable

for acts of its employees, the Supreme Court in Chairman Railway Board v.

Chandrima Das (2000) 2 SCC 465 held that “if any of such employees commits an

act of tort, the Union Government, of which they are employees, can, subject to

other legal requirements being satisfied, be held vicariously liable in damages to

the person wronged by those employees.” The redundancy of the sovereign

immunity doctrine was explained as under: (SCC, p. 485)

“41. The theory of Sovereign power which was propounded in Kasturi Lal's case

has yielded to new theories and is no longer available in a welfare State. It may be

pointed out that functions of the Govt. in a welfare State are manifold, all of which

cannot be said to be the activities relating to exercise of Sovereign powers. The

functions of the State not only relate to the defence of the country or the

administration of Justice, but they extend to many other spheres as, for example

education, commercial, social, economic, political and even marital. These

activities cannot be said to be related to Sovereign power.”

14. The distinction between public and private law, and the remedies thereunder,

was elucidated in Common Cause, A Registered Society v. Union of India (1999) 6

SCC 667. In State of Andhra Pradesh v. Challa Ramkrishna Reddy the Supreme

Court upheld the decision of the High Court of Andhra Pradesh granting

compensation to the family members of an undertrial who got killed in an attack

targeting him in the Koilkuntla jail. It observed: (SCC, p. 727)

“Moreover, these decisions, as for example, Nilabti Behera v. State of Orissa, in

Re: Death of Sawinder Singh Grower [(1995) Supp (4) SCC 450], and D.K. Basu

v. State of West Bengal, would indicate that so far as Fundamental Rights and

human rights or human dignity are concerned, the law has marched ahead like a

Pegasus but the Government attitude continues to be conservative and it tries to

defend its action or the tortuous action of its officers by raising the plea of

immunity for sovereign acts or acts of State, which must fail.”

15. In answering the question whether monetary compensation should be awarded

for established infringement of the fundamental rights guaranteed by Articles 21

and 22 of the Constitution, the Court in D K Basu held: (SCC, p. 438)

“44. 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.

45. 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.”

16. Monetary compensation for violation of fundamental rights by the State has

been consistently awarded by the Supreme Court to the victims and their relatives.

The decisions include Rudul Sah v. State of Bihar (1983) 4 SCC 141, Bhim Singh

v. State of J&K (1985) 4 SCC 677, Peoples' Union for Democratic Rights v. Police

Commissioner, Delhi (1989) 4 SCC 730, Mrs. Sudha Rasheed v. Union of India,

1995 (1) SCALE 77, Inder Singh v. State of Punjab (1995) 3 SCC 702, Malkiat

Singh v. State of UP (1998) 9 SCC 351, Ajab Singh v. State of Uttar Pradesh

(2000) 3 SCC 521 and Munshi Singh Gautam v. State of MP (2005) 9 SCC 631.

This Court too has in a large number of cases concerning violations of fundamental

rights by the police awarded compensation. These include Geeta v. Lt. Governor

75 (1998) DLT 822, Phoolwati v. National Capital Territory of Delhi 84 (2000)

DLT 177, Nasiruddin v. State, 2001 CriLJ 4925, State v. Rameez [Order date 6th

April 2009 in Crl. M.C. No. 12/2006], Sunita v. State of National Capital Territory

of Delhi 151 (2008) DLT 192 and Tasleema v. State (NCT of Delhi) 161 (2009)

DLT 660.

17. In the instant case, the violation of the constitutional right to life of the victims

of the shoot out at Connaught Place by the personnel of the Delhi Police stands

clearly established. The criminal culpability of the police personnel has been

proved beyond reasonable doubt. It is imperative for this Court approached under

Article 226 of the Constitution to provide compensation as a public law remedy for

the constitutional tort committed by officers of the State. To recall the observations

of the Supreme Court in D K Basu: (SCC, p. 439)

“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.”

18. Consequently, there can be in the present cases no doubt as to the liability of

the State to compensate the Petitioners for the callous and wanton killing of the

two unfortunate victims. The question, therefore, that remains to be determined is

of the quantum of compensation. Again in D K Basu the Supreme Court pointed

out that: “In the assessment of compensation, the emphasis has to be on the

compensatory and not on punitive element.”

Quantum of compensation in the case of Neema Goyal

19. Smt. Neema Goyal, Petitioner in W.P. (C) 4756 of 1997, has filed an affidavit

dated 24th March 2011 in which, inter alia, it is submitted that Pradeep Goyal

founded two industrial units, namely, Tirupati Cylinders Ltd. and International

Cylinders Pvt. Ltd., in which he was the Director. Both the units were engaged in

industrial production of LPG cylinders for supply to governmental agencies. It is

stated that at the time of his death, the production in the said industrial units was in

the initial stages and still the net profits were to the tune of Rs. 2 lakhs per annum.

The annual income as per the last income tax return of Pradeep Goyal for the year

1996-97 was Rs. 95,280/-. The Petitioner used to reside in a four bed room house

with her late husband and a two-year old minor son. After the death of Pradeep

Goyal, the Petitioner Neema Goyal took employment as a Primary School Teacher

and pursued her B.Ed. The Petitioner’s son is a student of Class-X in DPS R.K.

Puram. It is stated that on account of the loss of Pradeep Goyal, the Petitioner and

her son had to undergo severe mental trauma for several years.

20. In determining compensation in such cases, the formula devised by this Court

in Kamla Devi v. Govt. of NCT of Delhi 114 (2004) DLT 57 has been consistently

followed in the later cases: Ram Kishore v. MCD 2007 VII AD 441, Ashok Sharma

v. Union of India 2009 ACJ 1063, Ram Singh v. Union of India 2010 V AD

(Delhi) 209, Swarn Singh v. Union of India [W.P. (C) 4242 of 2006 decided on

17th March 2010] and Yogita v. GNCTD 178 (2011) DLT 554. The ‘standard

compensation for non-pecuniary losses’ and ‘compensation for pecuniary loss of

dependency’ is to be calculated separately and added up to arrive at the total

amount of compensation payable. The age, income and the number of dependents

of the deceased are considered as relevant indicators. In Lata Wadhwa v. State of

Bihar (2001) 8 SCC 197 the Supreme Court held the standard compensation to be

Rs. 50,000/- in 1989. Thereafter, inter alia, in the above mentioned cases, the

standard compensation was computed by adjusting the amount based on the

Consumer Price Index for Industrial Workers (‘CPI-IW’), published by the Labour

Bureau, Government of India as under:

Standard Compensation for Non-pecuniary Losses = 1989 Standard

Compensation ? Average Consumer Price Index for Industrial Workers (CPI (IW))

when the accident occurred ? Average CPI (IW) for 1989 (1982 being the base

year)

21. The average CPI-IW for March 1997, when the accident occurred, is 351 and

the CPI-IW for 1989 is 171. Therefore, the standard compensation for non-

pecuniary losses that each of the Petitioners is liable to be paid is 50,000 ´ 351 ¸

171 = 1,02,630/-.

22. To calculate the compensation for pecuniary loss of dependency, the multiplier

method (multiplier value given in the Second Schedule of the Motor Vehicles Act,

1988 ? Yearly income of the deceased less the amount spent on himself or herself)

is used. This is consistent with the procedure adopted in G.M., Kerala SRTC v.

Susamma Thomas AIR 1994 SC 1631, Mrs. Sudha Rasheed v. Union of India 1995

(1) SCALE 77, U.P. State Road Transport Corporation v. Trilok Chandra (1996) 4

SCC 362, Smt. Kamla Devi v. Govt. of NCT of Delhi, Ram Kishore v. MCD,

Ashok Sharma v. Union of India, Ram Singh v. Union of India, Swarn Singh v.

Union of India and Yogita v. Govt. of NCT of Delhi. The method of calculating the

multiplicand was explained in Kamla Devi v. Govt. of NCT of Delhi as under:

“This (the multiplicand) is calculated by dividing the family into units - 2 for each

adult member and 1 for each minor. The yearly income is then to be divided by the

total number of units to get the value of each unit. The annual dependency loss is

then calculated by multiplying the value of each unit by the number of units

excluding the two units for the deceased adult member.”

23. The income tax return of Pradeep Goyal at the time of his death shows his

annual income to be Rs. 95,280/-. His family included his wife and a minor son,

Naman Goyal who was slightly above 2 years at that time. The value of each unit

thus works out to Rs. 19,056/- (95280/5). Therefore, the multiplicand would be

57,168. (Gross annual income - the value of two units). Pradeep Goyal was around

34 years of age at the time of his death. Multiplying Rs. 57,168 by 17 as per the

Second Schedule to the MVA 1988, a figure of Rs. 9,71,856/- is obtained, which

constitutes the pecuniary compensation payable by the Respondents. The total

compensation payable works out to Rs. 10,74,486/- (i.e. standard compensation for

non-pecuniary losses Rs. 1,02,630 plus compensation for pecuniary loss of

dependency Rs. 9,71,856). After accounting for interest and costs of litigation, the

total compensation payable by the Respondents to Neema Goyal and her minor son

is determined as Rs.15,00,000/-.

Quantum of compensation in the case of Jaspal Kaur

24. As regards Jagjit Singh, his family at the time of his death included Jaspal Kaur

the Petitioner in WP (C) 5405 of 1997 and their two children, whose names are

however not disclosed in the petition. The respective ages of the two children at

that time of their father’s death were twelve and nine years. They are adults as of

date. As regards the compensation for pecuniary loss, Jaspal Kaur in an affidavit

dated 21st March 2011 claims that at the time of his death, Jagjit Singh was 33

years old and was engaged in the business of selling agricultural crops grown on

his farmland measuring about 60 acres in the grain mandi of M/s Saju Gula Ram

Kurukshetra, Haryana. He is said to have earned income by sale and purchase of

plots and built-up houses and the business of money-lending. It is further claimed

that after his death loans to the extent of Rs. 50 lakhs given by him could not be

recovered. It is stated that Jagjit Singh had collaborated with Pradeep Goyal in

setting up the LPG bottling plant. If the said venture had commenced Jagjit Singh’s

income would have been even more substantial. Jaspal Kaur states that she has

been looking after her parents-in-law who are not keeping well. For over 15 years

the family has been living under immense financial insecurity since Jagjit Singh

was the sole bread earner of the family.

25. There is not a single document placed on record to support the above claim.

However, considering that it was a family of four including two growing children,

with a reasonably decent standard of living, and considering that the age of Jagjit

Singh is around the same age as Pradeep Goyal who died in the same accident, the

total compensation payable by the Respondents to Jaspal Kaur and her two

children i.e. standard compensation plus compensation for pecuniary loss, together

with interest and litigation costs is determined as Rs. 15,00,000/-.

Unexplained delay in taking disciplinary action against the convicted police

officers

26. While the present petitions were being heard it transpired that despite the police

personnel being convicted by the learned ASJ on 16th October 2007 and sentenced

on 24th October 2007 to imprisonment for life, each of them continued in service

long thereafter. After their appeals were dismissed by this Court on 18th September

2009 nine of the convicted policemen were dismissed from service on 11th May

2010. However, ACP Rathi continued in service. He was ordered in 2000 to be

reverted to the post of Inspector. This was, however, stayed by the Central

Administrative Tribunal (‘CAT’). Once he was convicted and sentenced for murder

by the trial court in October 2007 there ought to have been no impediment to

taking disciplinary action against him. Even after his appeal was dismissed by this

Court on 18th September 2009 ACP Rathi continued in service. On 12th January

2011 on the above aspect, the Court passed the following order:

“6. This Court expresses its concern that a police officer who held the post of ACP

(ad hoc) at the time of incident which took place on 31st March 1997, despite his

conviction for the offence under Section 302 IPC by the learned trial court on 16th

October 2007 and confirmation of the said conviction by this Court on 18th

September 2009, continues to remain in service. It is also significant that nine of

the other convicted policemen also continued in service and the order dismissing

them from service was passed only on 11th May 2010.

7. This Court is informed that the Rules governing the terms and conditions of

service of the personnel of the Delhi Police permit dismissal of service only after

the appeal filed by the convicted police official is disposed of and not earlier. This

Court expresses its surprise that there are such rules that permit police officials

convicted of heinous crimes like murder to remain in service even after conviction

by the trial court. The Secretary, Ministry of Home Affairs will examine this

position and inform this Court whether it is unique to Delhi or prevails elsewhere

in the country. It is a matter of great concern if the police officials convicted of

heinous crimes, after full-fledged trial, are allowed to continue in service on the

ground that their appeals against such convictions are pending disposal before the

superior courts. A further disconcerting aspect of the matter is that as far as Shri

Rathi is concerned, the explanation for not taking action against him is that

superior officers were not clear as to who should pass the necessary orders.

8. The affidavit on the above aspect be filed by the MHA within four weeks from

today, through a senior level officer not lower than the rank of Director.”

27. Pursuant to the above order, an affidavit was filed by Dr. A.K. Saxena, Director

in the MHA on 22nd February 2011 quoting an Office Memorandum (‘OM’) dated

4th March 1994 issued by the Department of Personnel and Training (‘DOPT’)

which, inter alia, reads as under:

“when a person is convicted by a Criminal Court the same shall remain in force

until and unless it is reversed or set aside by a competent court in appeal. The mere

filing of an appeal and/or stay of the execution of the sentence do not take away

the effect of conviction, unless the appeal is allowed and the conviction is set aside

by the appellate court..... the competent disciplinary authority may proceed with

the institution/completion of disciplinary proceedings, including imposition of the

penalty as prescribed in the relevant disciplinary rules.....”

28. The MHA in the said affidavit admitted that in terms of the above OM the mere

filing of an appeal against a conviction and/or stay of the execution of the sentence

does not take away the effect of conviction and therefore “there is no bar on the

competent authority not to institute/complete the disciplinary proceedings as

prescribed in the relevant rules”. The affidavit stated that a letter to that effect had

been written on 8th February 2011 to the Director, MHA by the Under Secretary. It

is stated that pursuant to the order dated 12th January 2011 passed by this Court a

meeting was convened on 9th February 2011 by the MHA which was attended by

the officials of the GNCTD and the Delhi Police. The meeting was informed that a

proposal to dismiss ACP Rathi from service under Rule 19 of the CCS (CCA)

Rules, 1965 had been sent to the LG for approval. It is admitted that it was only

after the CBI sent a copy of the judgment of this Court dated 18th September 2009

a decision was taken to dismiss nine of the police personnel and even this was

delayed by over five and a half months “on account of administrative reasons such

as posting of delinquent officers together for taking joint action.” However,

Respondent No. 2 regretted such delay and clarified that “the said delay was not

deliberate and without any motives but only because of the abovesaid

administrative reasons.” As regards ACP Rathi the explanation offered by the

GNCTD was that “owing to several court cases on staying the reversion as

Inspector (Executive) from the rank of ACP (Ad-hoc) of Shri S.S. Rathi, there was

confusion as to who is the competent disciplinary authority to take appropriate

action.” Since then appropriate action in terms of Rule 19 CCS (CCA) Rules, 1965

was taken to seek approval of the LG for the “proposed dismissal” of ACP Rathi.

29. Since the questions arising from the Court’s earlier order dated 12th January

2011 were not satisfactorily answered, Mr. Saxena was asked to file a further

affidavit. This was filed on 4th May 2011. Para 7 of the said affidavit reads as

under:

“7. It is stated that in terms of Rule 11(1) of Delhi Police (Punishment & Appeal)

Rules, 1980, an official of Delhi Police may continue to remain in service even

after his conviction if the first appeal filed by him remains pending. Such Rule may

create functional problem if first appeal remain pending for years together. The

Respondent No. 1 has taken cognizance of this anomaly in Delhi Police

(Punishment & Appeal) Rules, 1980 and has already taken up the matter with the

Home Department of Government of National Capital Territory of Delhi for

suitable amendment of the said provision of the Rule.”

30. It is, therefore, plain that in terms of Rule 11(1) of Delhi Police (Punishment &

Appeal) Rules 1980, an official of Delhi Police can continue to remain in service

even after his conviction for murder as long as the appeal filed by him remains

pending. It is indeed a matter of grave concern that policemen convicted and

sentenced for murder have, under shelter of the above rule, continued in service in

Delhi Police for over twelve years after the murder and for nearly three years after

their conviction. To compound this, the leader of the team of errant policemen,

ACP Rathi has continued in service even as on the date of the filing of the affidavit

dated 4th May 2011 by the MHA. By this time even the Supreme Court had

dismissed his appeal.

31. It can hardly be a matter of debate that there must be zero tolerance for

criminal behavior by men in uniform entrusted with the task of law enforcement

and the protection of the life and liberty of persons. Policemen must be held to the

highest standards of probity and conduct. It is not a little surprising that even after

the anomaly was pointed out by the Court, the MHA and the GNCTD were still

discussing and deliberating on whether to take disciplinary action against ACP

Rathi. Their response to the inexplicable delay in the action against ACP Rathi and

the nine other policemen is reflective of an approach that is typically lackadaisical.

Both the MHA and the GNCTD have to be held answerable and accountable in law

for this obvious failure to take prompt disciplinary action against policemen

convicted and sentenced for murder of two innocent citizens. The Court is

therefore constrained to direct the MHA to institute an appropriate inquiry by a

senior level officer not below the rank of Additional Secretary in the MHA to

inquire into the facts and circumstances under which there was unconscionable

delay in taking disciplinary action against the ten convicted policemen and fix

responsibility on the concerned officers of the MHA and the GNCTD. Further, it is

expected that the proposed amendment to Rule 11(1) will be carried out without

delay.

32. This case serves to highlight the steps that ought to be taken, within the

framework of the legal system, in a situation of proven police violence resulting in

violation of human rights. One is to bring the offenders to trial in accordance with

the processes of the criminal justice system. The other facet of accountability is to

ensure that the offenders, employed as they are by the state law enforcement

machinery, are proceeded against disciplinarily. A further aspect is that of

reparation. The constitutional court can be approached for directions to the state to

appropriately compensate the victims of the violence. Each of these proceedings is

independent of the other. The purpose each serves is different. The standard of

proof in each may differ. Yet, they are imperative for enforcement of the rule of

law and for the rendering of complete justice. The constitutional courts, entrusted

with the responsibility of holding the State and its agencies accountable in law for

the tortuous and criminal acts of their servants, can and should play a significant

role in ensuring this.

Directions

33. The writ petitions are disposed of with the following directions:

(i) The Respondents will within a period of six weeks from today deposit in this

Court, by a cheque or draft in the name of the Registrar General, a sum of Rs.15

lakhs being the compensation amount payable to the Petitioner Neema Goyal and

her son Naman Goyal. Of the said amount a sum of Rs.7,50,000 will be paid to

Neema Goyal by the Registrar General on proper identification, within a period of

one week thereafter. The balance amount of Rs.7,50,000 will be placed in a fixed

deposit with a nationalised bank in the name of Naman Goyal. After he attains

majority, Naman Goyal can withdraw the amount in the fixed deposit together with

the interest accrued thereon.

(ii) The Respondents will within a period of six weeks from today deposit in this

Court, by a cheque or draft in the name of the Registrar General, a sum of Rs. 15

lakhs being the compensation amount payable to the Petitioner Jaspal Kaur and her

two children. The Registrar General will within a week thereafter pay Rs.

5,00,000/- each to Jaspal Kaur and her two children on proper identification.

(iii) The Secretary MHA will ensure that the directions contained in para 30 of this

judgment are implemented and file a compliance report in this Court within a

period of twelve weeks. A certified copy of this judgment will be delivered to the

Secretary MHA for compliance within five days.

S. MURALIDHAR, J