Ku. Richa Jethani vs State of M.P. and Others

Dipak Misra, J.

At the beginning of the present millennium the petitioner, a child aged about 3 and half years, innocent in her heart and unalloyed feeling in her mind, being endowed with the essential nature of a human soul bereft of any manifestation of nature without knocked at the doors of this Court through her grandfather, Sodarmal, for issue of command to the respondents to investigate and enquire into the death of Shrichand, her father, who breathed his last in suspicious circumstances at police station, Madhav Nagar, Ujjain and further to grant a sum of Rs.5 lacs towards compensation.

The facts as have been exposited in the petition are that the father of the petitioner was a resident of Ujjain and he lived with his wife and the petitioner. On 28.2.2000, Bhawna, the mother of the petitioner while preparing food at home got herself burnt as a result of which she was taken to the hospital where on the next day her life-spark got extinguished. An investigation was conducted by the Assistant Sub- Inspector (Police) of the Police Station, Mahadev (Madhav) Nagar, Ujjain, who completed the inquest. The father of the petitioner was called to the police station on 29.2.2000 and was kept under detention. On 2.3.2000 when the father of the petitioner was under detention intimation was received by the petitioner that her father had got himself burnt at the police station at the midnight of 2.3.2000. The intimation was also sent to other relatives. According to the writ petitioner, the grandfather of the petitioner proceeded to enquire about the matter but his queries were met with silence. Postmortem was carried on the dead-body of Shrichand and an opinion was expressed that the cause of death was due to burn injuries.

According to the writ petitioner the father of the petitioner was in custody of the police from 29.2.2000 and he died during his detention. It is pleaded that it was the responsibility of the respondents to take proper care so that a person does not meet with death of this nature while in police custody. It is also putforth that though the father of the petitioner was required to remain present at the Police Station on 29.2.2000 which he did, it was shown that he was in custody from 2.3.2000, the date on which he breathed his last. It is urged that the police officer at the police station poured kerosene oil and committed murder of Shrichand. It is setforth that many an application was filed for taking proper steps against the respondents but the same fell in deaf ears and counter steps were taken to threaten the petitioner as well as her relatives. It is averred that if a death occurs while a person is in police custody responsibility rests with the officers who are incharge of the police station as it is their bounden duty to take proper care and to protect the person while he is in custody. It is urged that the father of the petitioner was not allowed to take anything with him and it was beyond comprehension how could he pour kerosene oil and put an end to his life. Article 21 of the Constitution has been invoked and compensation has been claimed. To substantiate the quantum it has been pleaded that father of the petitioner was 35 years and was earning Rs. 7500/- per month as he was running a bakery.

A return has been filed on behalf of the respondents No.1 to 5 contending, inter alia, that Shrichand was not murdered by anyone but he committed suicide. On 28.2.2000 a Marg intimation was registered regarding the death of the mother of the petitioner and as the parents of the deceased suspected foul play by the husband who was harassing his wife and also making a demand of Rs. 50,000/- commission of offences punishable under sections 304-B and 498-A was suspected and accordingly postmortem was directed to be conducted. The dead-body of Bhawna was handed over to the father of the petitioner and the relatives on the same day. After funeral ceremony was held as there was suspicion that offences under the aforesaid provisions might have been committed, an enquiry commenced to ascertain the genesis and correctness of the allegations. In course of enquiry Shrichand was called to the police station on 2.3.2000 at about 12.10 p.m. proceedings for registration of the offences and to take consequential steps were in process. At about 14.20 p.m. a wireless information was received at the Police Station, Madhav Nagar to the effect that students of Madhav Nagar College while demonstrating protest against the administration had become aggressive and taken law unto their hands and creating immense disturbance. Because of such an uncontrollable situation the police force available had to rush to the place where the students were involved in rioting. Taking advantage of non-availability of the large number of the police personnel in the Police Station, Madhav Nagar Shrichand committed suicide. It has been setforth that Constable, Gopal, before rushing to the Commissioner''s Office on 2.3.2000, had purchased kerosene oil from free sale mobile retailer to take the same to his house but in haste he kept the container behind the almirah in the police station itself. The father of the petitioner took the container and poured the kerosene oil and got himself blazed. It is pleaded that the entire incident took place all of a sudden and in a few moments and, therefore, the staff available at the police station, namely, Shri Rajendra Prasad, Constable; Indrajeet Mishra, S.I.; L.M. Rawat, S.I.; M.V. Saxena, A.S.I.; A.C. Tiwari, A.S.I.; and Sughar Singh (Santri) could not even watch him doing so. The Police Station, Madhav Nagar is quite a big premises and it was easy for the deceased not being watched by the available staff at the time of occurrence and, therefore, he could not be prevented from committing suicide. According to the said respondents the two accused persons who were in lock-up had also deposed that the father of the petitioner committed suicide avoiding the attention of the other staff of the police station and they could only come to know when the cry of the deceased was heard. It is also putforth that the deceased was crying that his in-laws had not reposed faith in him and disbelieved that he was not responsible for the death of his wife. Hearing such cries the staff available at the police station rushed to the spot with blanket and endeavoured to save his life. As pleaded Shrichand was taken to the hospital where treatment was given to him. On 2.3.2000 at 7.30 p.m. dying declaration was recorded by the Executive Magistrate in presence of the Medical Officer which clearly indicates that he was compelled to commit suicide due to false allegations made against him by his in-laws. The said dying declaration has been brought on record as Annexure-R/2. Eventually he succumbed to the burn injuries at 23.53 hrs. on 2.3.2000.

It is the case of the respondent that a magisterial enquiry was directed to be conducted by the District Magistrate, Ujjain, vide order dated 2.5.2000, Annexure-R/3 and after enquiry the Magistrate has submitted a report clearly indicating that the father of the petitioner committed suicide and the situation was such that the available staff could not prevent him carrying out such an act. It is pleaded that none but the father of the petitioner was responsible for extinction of his life and if the magisterial report is taken into consideration the respondents cannot be put to blame. It is also putforth that a Member of the State Human Rights Commission had inspected the place of incident on 5.3.2000. It is also stated that Sodarmal had himself filed an affidavit expressing that he had no grievance against anyone but after a lapse of time there has been change of stand of the present petitioner. Copy of the statement of Sodarmal has been brought on record as Annexure-R/5. It is putforth by the said respondents that they have not received any complaint either from the petitioner or any other relative of the deceased. It is also pleaded that the writ petition is totally misconceived and does not merit consideration.

A return has been filed by the respondent No. 10 indicating that on 28.8.2000 a Marg intimation was registered regarding the death of the mother of the petitioner and the parents of Bhawna made allegation that the deceased committed suicide because of demand of dowry. An enquiry was conducted by the C.S.P., Arvind Saxena, respondent No. 9 herein. It is putforth that the respondent No. 10 had never conducted any enquiry in relation to the crime. It is also putforth that Shrichand and the parents of the deceased were called upon and their statements were recorded but Shrichand was neither detained nor arrested. According to the said respondent, Shrichand was not in the lock-up and, therefore, no official can be put to blame. An attempt was made to save his life but it could not be saved as Shrichand had sustained severe burn injuries. Reliance has been placed on the enquiry report submitted by the Magistrate who was instructed by the District Magistrate, Ujjain, wherein it has been held that father of the petitioner committed suicide and the available staff at the police station could not prevent him from doing so. The said report has been brought on record as Annexure-R/4. All other essential factual allegations have been disputed.

A counter affidavit has been filed by the respondent No.9 which in essence conveys that the said respondent was informed by the Police Station, Madhav Nagar that Smt. Bhawna Jethani, the mother of the petitioner, had sustained 100% burn injuries and on receiving such information the said respondent reached the hospital where she was admitted. However, he could not record her statement as her physical condition was extremely critical. At this juncture the parents and relatives of the deceased were intimated and they arrived at Ujjain and Panchnama of the dead-body was prepared and thereafter the dead-body was sent for postmortem. An investigation was conducted to find about the cause of death of the said Bhawna. After completion of the postmortem the dead-body was handed over to her husband Shrichand to perform her last rites. It is putforth that Shrichand was brought by S.S. Mishra, Assistant Sub-Inspector of Police and was produced before the respondent No.9. As Shrichand was not in a proper state of mind, being mentally disturbed due to death of his wife, he was set free. It was duly recorded in the Marg diary. Soon after Shrichand left some relatives of Bhavna arrived at the police station and their statements were recorded in furtherance of the said enquiry and a case was registered in respect of offences punishable under sections 304-B and 498-A of the Indian Penal code (in short ''the IPC) against Shrichand. It is also disputed that the answering respondent does not have a lockup in his office which is a separate unit having a separate boundary and, therefore, detention of Shrichand by him does not arise. It is setforth by him that A.S.I., S.S. Mishra informed him that he had brought Shrichand to the police station for recording his statement u/s 161 of the code of Criminal Procedure (for brevity ''the Code''). The answering respondent directed the said S.S. Mishra to instruct the sentry to keep Shrichand under close surveillance. Shrichand was not arrested as the statement u/s 161 of the code was not recorded. In the meantime, at about 14.30 hrs. a wireless information was received at the police station that the students of Madhav College had become aggressive and this led the police force to rush to the place of incidence. After they came back and were contemplating to record the statement of Shrichand it was noticed that relatives of Bhawna were present in the office and a criminal case had already been registered and their statements had already been recorded. Soon after the statements were recorded an information was received that Shrichand set himself on fire at the Madhav Nagar Police Station. In parawise reply certain allegations have been disputed. It is also putforth in the reply that immediately prior to the incident the Constable-Gopal had purchased kerosene oil which was available near the police station at a lower rate, kept the container behind the almirah and covered it with a blanket. The said constable had not disclosed this fact to anybody present at the Police Station. Other aspects which have been stated in the return are repetitions and hence, need not be narrated herein.

It is apposite to mention here that this Court vide order dated 25.8.2000. taking into consideration the facts and circumstances of the case directed an enquiry to be conducted by the Chief Secretary or by a person in the rank of a Commissioner.

In pursuance of the aforesaid order the Chief Secretary got an enquiry conducted and the report was submitted to this court in a sealed cover. The same was opened before the learned counsel for the parties. This court directed the certified copies to be handed over to the learned counsel for the parties. The learned counsel for the respondents prayed for some time to file their objections. However, when the matter was taken up for hearing learned counsel for the parties advanced their submissions.

I have heard Mr. Manish Datt, learned counsel for the petitioner, Mr. Ajay Raizada, learned Government Advocate for the State and Mr. Kishore Shrivastava., learned counsel for the respondents No.9 and 10.

It is submitted by Mr. Datt that this Court by order dated 25.8.2000 had directed the Chief Secretary to conduct an enquiry either himself or through any officer not below the rank of Commissioner in regard to the incident and on the basis of the aforesaid order a report has been submitted to this Court by the Commissioner, Ujjain Division, Ujjain and if the report is appreciated in proper perspective it would be crystal clear that father of the petitioner met with an unnatural death and the said death was caused due to callousness of the personnel who were Incharge of the police station.

Mr. Kishore Shrivastava, learned counsel for the respondents No.9 and 10 sounding a contra note, submitted that the report does not reflect that the father of the petitioner died while he was in custody. It is also urged by him that the respondents No.9 and 10 have no role in causation of deadi of the father of the petitioner.

Mr. Raizada, learned Government Advocate has putforth that a proper enquiry has been conducted and no fault can be attributed to anyone except the deceased.

To appreciate the rival submissions raised at the Bar it is apposite to refer to the report submitted by the Commissioner, Ujjain Division, Ujjain. On a perusal of the report it transpires that the Commissioner has referred to the order passed by this Court on 25.8.2000 and on that basis he commenced enquiry into the matter on 30.8.2000. He has indicated that he went to the Police Station and examined many witnesses. He recorded statements of 24 witnesses connected widi the incident. He has recorded the statement of the Medical Officer who conducted the postmortem on the dead-body of the deceased-Shrichand. After scrutinising everything the Commissioner in paras 12, 13 and 14 has expressed his opinion as under :

A Magisterial Enquiry into the incident was ordered by District Magistrate and Collector Ujjain vide his order no. 3296 dt. 03.03.2000. The S.D.M. of Ujjain conducted the Magisterial Enquiry and submitted his report on 25.5.2000 (E-13). In this enquiry also the negligence of police has been found, the Officer-incharge of Police station Madhavnagar viz. Indrajeet Mishra, constable Gopal (no. 346) and sentry Sughar Singh (no. 501) are squarely responsible for this incident. But for their criminal negligence, this incident would not have taken place. Even if Shrichand had thought of committing suicide, he would not have been able to execute his intention if he had not had the kerosene cane and the matchbox near him for which police officers are entirely responsible. It is the duty of sentry incharge as also the police officer incharge of the police station to see that no weapon, no inflammatory article, no explosive or corrosive substance or material is kept there and that they must have thorough search of not only the detained but also the premises where he was detained. How come a constable was in a position to keep his kerosene cane and the sentry did not know about it. Why a matchbox is regularly kept in the room of T.I. incharge of Police station. It is highly objectionable that deceased Shrichand was called and detained in the police station but no arrest was shown. It amounts to illegal detention. If he was intended to be detained, he should have been properly arrested and kept in the Police lockup rather than in the varanda exposed to all dangers and manipulations from outside. Had he been in the lockup, then too, he would not have been able to commit suicide. All these officials have to be severely punished for their negligence, high handedness and dereliction of duty which has cost a human life.

Even the attitude of C.S.P. and S.P. is casual and callous regarding the incident. It was clear from the very first day that Shrichand died of burning because kerosene oil and matchbox were available there. But no action seems to have been taken against either Sub Inspector incharge of police station or the erring constables. It is on 31st of August 2000 i.e. after the Hon''ble High Court ordered the enquiry and after I started the enquiry that S.P. has withheld one increment each of the two constables without cumulative effect. No punishment has been given to Sub Inspector of Police. The Magisterial Enquiry was completed on 25.5.2000 and at least on the report of Magistrate dtd. 25.5.2000 action should have been taken against the erring officials. It was only at the level of Commissioner when in his office Magisterial Enquiry report was analysed that the guilt of these police officials was noted and consequently a letter was written by me no. 7643/200 dt. 25.8.2000 along with the analysis of the report of the Magisterial Enquiry to the Collector and District Magistrate Ujjain and also the Inspector General of Police of Ujjain for taking action against the erring officials. (E-14).

Thus an agency of the government i.e. Commissioner had taken notice of the negligence of police officials and had asked the Inspector General of Police Ujjain and District Magistrate Ujjain to take action against the guilty officials.

To sum up, the documents and entire evidence on record shows that:

Deceased Shrichand was detained by Madhav Nagar Police on 29.02.2000 and was probably kept in the police station upto the date of the incident i.e. 2.3.2000. During this period his formal arrest was not taken by police.

Because of the death of the wife and the hostile attitude of his in-laws and knowing that he is being held guilty for the death of his wife he got frightened and psychologically went into deep depression which led him to commit suicide by burning himself.

This suicide was facilitated by the criminal negligence of Police officials viz. constable Gopal and constable Sugharsingh as also Shri Indrajeet Mishra, Sub-Inspector incharge of police station Madhavnagar. By their negligence virtually they made kerosene oil and matchbox available to the deceased to commit suicide.

The role of supervisory officers viz. Shri Arvind Saxena (City Superintendent of Police) and Shri Mukesh Gupta (Superintendent of Police) Ujjain is also questionable because inspite of a very clear negligence leading to loss of a human life, they took no steps to punish the guilty.

On a scrutiny of the report it is discernible that the Commissioner has expressed that on the basis of the magisterial enquiry action should have been taken against the erring officials. Be that as it may, the Commissioner in sub-paras 3 and 4 of the para 14 has come to hold that the suicide was facilitated by the criminal negligence of the police officials, namely, Constable Gopal, Constable Sughar Singh and Indrajeet Mishra, Sub-Inspector incharge of the Police Station, Madhav Nagar who by their negligence virtually made kerosene oil and match-box available to the deceased to commit suicide. From the report it is perceptible that the role of supervisory officers, namely, Arvid Saxena, City Superintendent of Police and Mukesh Gupta, Superintendent of Police, Ujjain is also questionable. On proper appreciation of the aforesaid report it rings as a bell that there was total unconcern, negligence and dereliction on the part of the concerned police officials as a result of which Shrichand could commit suicide. The heedlessness on their part has been clearly putforth in the report.

The core question that arises for consideration is when death of a person occurs while he is in police custody, may not be due to assault or maltreatment by the police officials but due to unmindfulness and negligence exhibited by such officers his legal heirs are entitled to compensation/damages or not ? Whether Shrichand was inside the police lockup or was asked to sit on the varandah of the police station is immaterial and totally irrelevant. He could not have left the police station without the permission of the competent authority. The availability of the kerosene and match-box at the police station to a person in police custody is indicative of total unconcern and manifestation of the highest magnitude of callousness. The inquiry officer has clearly named certain officers who have facilitated suicide of Shrichand. Whether Shrichand was in a state of depression or whether he suffered from any kind of phobia is alien to the present controversy. What is pertinent in the case at hand is that, Shrichand committed suicide while he was at the police station being called by the police in relation to a case. The moot question is how could he be allowed to commit suicide at the police station ? How could the kerosene oil was allowed to remain in stock (may be purchased by a person for his personal use) so that an accused or a suspect can utilize it and put an end to his lifespark ? The enquiry officer has rightly expressed the opinion that there was total recklessness and negligence on the part of the officials, Adequate-surveillance has to be kept so that this kind of tragedy and unfortunate incidents are avoided. It may be a guideline for the future but the fact remains that Shrichand committed suicide because of availability of kerosene oil. As the report shows this is a sheer act of negligence, a negligence by an employee serving under the State Government. It is not exactly custodial death by harassment, maltreatment or violence. A death has occurred due to total negligence. The consequence is the product of an act of omission. A warning to the employees and caution for taking safety measures in future may be safeguards in the realm which would be prospective and eventual but a mere proscription would not suffice.

The petitioner, a young child of 3 and half years has come forward seeking compensation. A warning to the police official would not propitiate her agony. Erring officials cannot be allowed to get off scot-free. An omission is an omission and it slowly matures and ripens into negligence when the omission becomes a catalytic factor by which someone gets affected and his interest is jeopardized. In the case at hand, an innocent child has lost her father. True it is, there was allegation that he had demanded dowry which had led his wife to commit suicide. It may be true or may be not. I am, at this juncture, not inclined to dwell upon that. It is well settled in law that a welfare state is vicariously liable on the ground of the negligent acts of its employees. In this context I may profitably refer to the decision rendered in the case of Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, wherein the Apex Court came to hold as under:

Adverting 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 tortious 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 indefeasible 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.

In the case of D.K. Basu Vs. State of West Bengal, the Apex Court ruled thus:

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 tortious 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 civilised 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.

In this context I may profitably refer to the decision rendered in the case of State of Andhra Pradesh vs. Challa Ramakrishna Reddy and others, AIR 2000 SC 2083 wherein the Apex Court granted payment of compensation to a prisoner killed in jail as a result of bomb thrown by outsiders. To quote their Lordships:

Right to life is one of the basic human rights. It is guaranteed to every person by Art.21 of the constitution and not even the State has the authority to violate that Right. A prisoner, be he a convict or under-trial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his Fundamental Rights including the Right to Life guaranteed to him under the Constitution. On being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retail the residue of constitutional rights.

In the case of Mohammed Aynuddin @ Miyam Vs. State of Andhra Pradesh, the Apex Court has held that the State is vicariously liable for negligence of its officials.

From the aforesaid enunciation of law it is graphically clear that law in this sphere has taken a marathon speed and marched ahead. In a democratic welfare set up a citizen has right to lead his life as permitted within the constitutional framework and the State is not supposed to do anything that would curtail or abridge the protected rights of a citizen. The State has the obligation to see that its officers do not infringe the rights of a citizen. It is not to be forgotten that the substance of life has become the substratum of Article 21 of the Constitution. In this regard I think it apposite to refer to the decision rendered in the case of Achutrao Haribhau Khodwa and Others Vs. State of Maharashtra and Others, wherein it has been held that the State cannot claim any immunity and it is vicariously liable for the negligence of its officers.

It is worthnoting here that in the case of Smt. Charanjit Kaur Vs. Union of India and others, the Apex Court granted compensation to the legal representatives of an Army Officer who had died in mysterious circumstances. Their Lordships expressed the view that it gave rise to inference of acts of omissions and commissions. In the case of Inder Singh Vs. State of Punjab and Others, their Lordships of the Apex Court granted compensation to the legal heirs of seven persons who were abducted and were annihilated by the Punjab Police.

From the aforesaid enunciation of law it is graphically clear that State is indubitably vicariously liable for the cause of negligence of its employees. An act of negligence has many a facet. It includes active negligence as well as passive negligence. It also engulfs reckless negligence. In tins context I may usefully refer to the meaning given to it in Black''s Law Dictionary :

Negligence per se : Conduct, whether of action or omissions, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitating or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty enjoined by law for the protection of person or property, so constitutes.

It is submitted by Mr. Raizada as well as by Mr. Kishore Shrivastava that the present case stands on a different footing as Shrichand poured kerosene oil on himself and committed suicide. As putforth by the learned counsel that he died because of his voluntary act in the obtaining factual matrix it does not constitute a legal injury and is not actionable. To put it differently learned counsel are placing reliance on the principle enshrined in the maxim volenti non fit injuria. In my considered opinion, the aforesaid maxim is not remotely applicable to the present case inasmuch as the death occurred while the deceased Shrichand was within the premises of police station and he was called by the police to be there. As has been stated earlier he had not died under a natural circumstances. It is quite different if one gets a massive stroke while entering a police station to lodge an FIR loses his life or a man suffering from epilepsy falls down and loses his life. But in the case at hand kerosene oil was kept, as admitted by one of the respondents which was utilised by the deceased to pour it on himself. The report submitted by the Commissioner, Ujjain Division, Ujjain, clearly indicates that employees of the State by their negligence had virtually made kerosene oil and match box available to the deceased to commit suicide. He has also put the blame on the supervising staff. Thus, negligence on the part of the employees of the State is perceptible. There remains no scintilla of doubt on that score. There are no disputed questions of fact. The occurrence as it has occurred is clear, graphic and admits of no suspicion. Thus, the State is liable on behalf of its employees to compensate the petitioner.

Now to the quantum of compensation. It is submitted by Mr. Manish Daft, learned counsel for the petitioner that the petitioner lost her father at a very tender age and, therefore, compensation amounting to the tune of Rs. 5 lacs should be allowed so that she can lead her life with dignity. The learned counsel has submitted that in a case of this nature Article 21 of the Constitution is attracted and the said Article in its quintessence encapsules to live with dignity. It is contended by him that the petitioner has lost her mother early in life and her father died under an unfortunate circumstance and she is under the guardianship of her grand father who is quite old. As far as the age of the petitioner, Ku. Richa Jethani, is concerned there is no dispute. She is a child and it cannot be conceived that she would be able to earn her livelihood and get education and eventually get married in her own capacity. By this it is not stated that she is incapable of getting it done. This Court does not question her ability. What is being spelt out is that the petitioner has been deprived of the facilities which she would have had ordinarily got. Dependence on ground father, an old person too, cannot be a ruling solace. She cannot be allowed to be treated as unperson. She being a child should be allowed to live with dignity. It is to be borne in mind that the Republic of India has accepted the convention on the Rights of Child which was concluded by the U.N. General Assembly on 20th November, 1989. The convention has categorically resolved that Children''s right require special protection. The resolution also provides that there should be continuous improvement in the situation of children. The rights relating to economic, social, cultural and humanitarian qua child should be protected with extra care. Not for nothing it was said by Emerson, a great American thinker "Respect the child". Buxtun once remarked :

The first duty to children is to make them happy. If you have not made them so, you have wronged them. No other good they may get can make up for that.

In this regard the statement from Edna St. Vincent Millay is worth reproducing

Childhood is the kingdom where no one dies.

In this context I may profitably reproduce what has been stated by the Apex Court in the case of M.C. Mehta Vs. State of Tamil Nadu and others, :

I am the child.

All the earth watches with interest to see what I shall become.

Civilization hangs in the balance.

For what I am, the world of tomorrow will be.

I am the child.

You hold in your hand my destiny.

You determine, largely, whether I shall succeed or fail.

Give me, I pray you, these things that make for happiness.

Train me, I beg you, that I may be a blessing to the world.

It may be that the aforesaid appeal lies at the back of the saying that "child is father of man". To enable fathering of a valiant and vibrant man, the child must be groomed well in the formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so far as the society is concerned.

I have referred to all these aspects to show that the petitioner, a young child of three and half years has to be dealt with in a special manner. All facilities are to be made available so that she gets proper education, live with dignity and does not suffer the bruise in her heart that she is not treated as a person without dignity. Thus, keeping in view the totality of circumstances, I am of the considered opinion, compensation of Rs. 1 lac should be granted to the petitioner by the State. I may hasten to add that the State would be at liberty to recover the amount from the erring officials as per law.

Now I think while fixing the quantum certain other directions should be given keeping in view the age of the petitioner. By this time, is hardly five and half years old. Hence, I am inclined to direct that the State of M.P. through the Secretary Department of Home and Internal Affairs, the respondent no. 1 herein, shall get the amount deposited in joint account in the names of the petitioner and her grandfather in any Nationalised Bank within a period of two months from the date of receipt of the order passed today. After the amount is deposited in the joint account a sum of Rs. 80,000/- shall be kept in a fixed deposit. Instructions will be given to the Bank to debit quarterly interest to the saving bank account of the petitioner and her grandfather. The grandfather would be permitted to operate the saving bank account and draw the interest and spend for the welfare of the petitioner. The fixed deposit of Rs. 80,000/- shall be done under the supervision of the Collector, Jabalpur. The fixed deposit shall be initially for a period of five years and shall be renewed from time to time till the petitioner, Ku. Richa Jethani, becomes a major. After she becomes a major the fixed deposit shall be converted to her singular name and she will be at liberty to operate the same. The bank where the deposit shall be made shall not grant any loan against the fixed deposit receipt without leave of this Court. If any exigency or emergency would arise to avail a loan against the fixed deposit, an application may be filed before this Court which shall be considered by this Court alone keeping in view the facts and circumstances that would be brought forth at that juncture. A compliance report of the aforesaid order shall be filed before the Registry of this Court within a fortnight from the date given earlier is over.

The writ petition is allowed in part. However, there shall be no order as to costs.