Gujarat High Court
Savjibhai Parsottambhai Kagathra vs State Of Gujarat & on 10 February, 2017
Author: C.L.Soni
Bench: C.L. Soni
R/SCR.A/377/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 377 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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SAVJIBHAI PARSOTTAMBHAI KAGATHRA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR SK PATEL, ADVOCATE for the Applicant(s) No. 1
MR RAKESH R PATEL, APP for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 10/02/2017
ORAL JUDGMENT
1. The following are the prayers made in paragraph No.48 Page 1 of 26 HC-NIC Page 1 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT of the present petition filed under Article 226 of the Constitution of India:
A. Admit this petition;
B. Be pleased to issue writ of mandamus or any other appropriate writ, order or direction, directing the respondent State to frame appropriate guideline on the issue involve in the present case and thereby to fix the accountability of the officers concern and thereby circulate the copy of such guideline of circular to all the police station in the State of Gujarat and also to all the District Collector in the State of Gujarat for its effective implementation;
C. Be please to issue an appropriate writ, order or direction, directing the State Government to hold inquiry in connection with the entire episode of false implication of the petitioner and the role played by the officers of the State to ruin the career of the petitioner;
D. Allow this petition by issuing a writ of mandamus or any other appropriate writ, order or direction awarding a compensation of Rs.50 lacs to the petitioner and his family members towards the established violation of fundamental rights, harassment, mental agony, damage to the social reputation and damage to the political career of the petitioner and his family members in the interest of justice;
E. Grant such other and further relief/s as deemed fit in the interest of justice in the facts and circumstances of this case.
2. The premise on which the above prayers are made is that the petitioner was maliciously roped in Criminal Case being CR No.I-113 of 1990 registered with Dhrol-Jodiya Police Station, Dist.- Jamnagar, for the offences punishable under Sections 307, 452, 504, 506(2) and 34 of the Indian Penal Code, 1860 (the 'Penal Code') as also under Sections 3(2)(5) and 3(1)(10) of the Schedule Caste and Schedule Tribes (Prevention Of Atrocity) Act, 1989 ('Atrocity Act'). It is averred in the petition that from the day, the petitioner was Page 2 of 26 HC-NIC Page 2 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT falsely implicated in above said offences, the petitioner made representations for appropriate investigation with specific request to investigate that the false case was created against the petitioner. It is further averred that after the petitioner was falsely implicated in the criminal case, the petitioner had to face trial which ultimately resulted in acquittal with a finding that the petitioner was falsely implicated in the criminal case concocted against the petitioner. Such acquittal order was carried in appeal before this Court however, the appeal was dismissed and the order of acquittal was confirmed by the Division Bench of this Court.
3. Learned advocate Mr. SK Patel for the petitioner submitted that on account of malicious prosecution lodged against the petitioner, fundamental rights of the petitioner were grossly violated. He submitted that the Court below while passing the judgment of acquittal has given finding that the petitioner was falsely implicated in the criminal case. He submitted that the Court below has recorded in acquittal order that the statements of the real witnesses were not recorded by the police and the investigate was done in wrong direction with deliberate intention to make the false criminal case more serious whereby liberty of the petitioner as also the right to live with dignity available under Article 21 of the Constitution were violated and, therefore, the petitioner has become entitle to get compensation from the State as prayed for in the present petition. He has relied on the judgment in the case of Dr. Mehmood Nayyar Azam V. Stat of Chhattisgarh, reported in AIR 2012 SC 2573 and in the case of Nilabati Behra V. State of Orissa, reported in AIR 1993 SC 1960. Mr. Patel submitted that the finding recorded Page 3 of 26 HC-NIC Page 3 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT in the order of the acquittal is not the sole basis to claim compensation in the present petition but it is an additional factor to point out that his fundamental rights were grossly violated. He submitted that right from the beginning, after the FIR was lodged, the petitioner made representations and pointed out that the petitioner was falsely implicated in the criminal case and on such representations, the orders were made to handover inquiry to higher officers but unfortunately the same did not achieve any fruitful result. He also submitted that the State Government instructed the DSP for further investigation but, it was falsely reported to the State Government that chargesheet was filed. Thus, from the very beginning, concentrated efforts were made by the police authorities not to reach to the real truth but to see that the petitioner would anyhow face the trial in connection with the false criminal case. It is further submitted by him that false complaint was filed because of the political rivalry, and the concerned file was stated to be destroyed from the office of the Home Department and the petitioner not only had to suffer suspension from the office of Sarpanch but had to languish in jail for 10days. Thus, not only the fundamental rights of the petitioner were violated but his reputation in the society was also tarnished.
4. Learned Additional Public Prosecutor Mr. Rakesh Patel submitted that the judgment of acquittal made by the Court below clearly reveals that the petitioner and other accused were acquitted by giving them benefit of doubt. He submitted that nowhere the Court below has recorded finding that there was any brutality in the action of the police so as to infringe any fundamental right of the petitioner nor even it is recorded Page 4 of 26 HC-NIC Page 4 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT that the police falsely involved the petitioner in criminal case. He submitted that it was not a case where nobody was injured but on account of the contradictions in the evidence of the prosecution witnesses, the petitioner was given benefit of doubt and acquitted. He submitted that nowhere the Court below has recorded that it was the police authority which framed the petitioner in the false offences. He submitted that because of the complaint lodged by the complainant, the police was required to investigate into alleged offences and during the investigation, if any lapse was committed or some witnesses could not be called, the State could not be made responsible to pay the compensation to the petitioner. He submitted that since the compensation is not claimed for any humiliation, torture in custody of police but the compensation is claimed, based on the order of acquittal passed by the Court below, the petitioner could not be made entitle to compensation in public law remedy.
5. Having heard learned advocates for both the sides, the Court finds that since the petition projects the grievances as regards private rights, the prayer made in paragraph No.48-B is not required to be considered. Similarly, since in connection with the FIR lodged against the petitioner, the trial took place and the concerned Court has given judgment of acquittal based on appreciation of evidence, the prayer contained in paragraph No.48-C cannot be granted. Then remains prayer seeking direction to avail compensation of Rs.50 lac to the petitioner and his family members for alleged violation of their fundamental rights and for alleged harassment, mental agony, damage to the social reputation and damage to the political career of the petitioner and his family members.
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R/SCR.A/377/2009 JUDGMENT
6. Before adverting to the claim for compensation made by the petitioner, the Court finds it appropriate to refer two judgments relied on by Mr. Patel for the petitioner and some other judgments on the issue of grant of compensation on the ground of violation of fundamental rights of the citizen.
7. In the case of Nilabati Behra (supra) Hon'ble Supreme Court while speaking through Hon'ble Justice Verma has held and observed in paragraphs No.30 to 34 as under:
"30. It is axiomatic that convicts, prisoners or under-trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State, to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law. I agree with Brother Verma, J. that the defence of "sovereign immunity" in such cases is not available to the State and in fairness to Mr. Altaf Ahmed it may be recorded that he raised no such defence either.
31. 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 tortuous act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen Page 6 of 26 HC-NIC Page 6 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT 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 fife, 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 molding 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 is 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 for Parliament..... the courts 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."
32. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much as protector and guarantor 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.
33. 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 Page 7 of 26 HC-NIC Page 7 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court molds 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 'exempelary 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.
34. 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. The decisions of this Court in the line of cases starting with Rudul Sah v. State of Bihar and Anr., [1983] 3 SCR 508 granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 32 or 226 of the Constitution of India, notwithstanding the rights available under the civil law to the aggrieved party where the courts found that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in Page 8 of 26 HC-NIC Page 8 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT that spirit that the Courts have molded the relief by granting compensation to the victims in exercise of their writ jurisdiction. 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. Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the courts have to act firmly but with certain amount of circumspection and self restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law. Some of those situations have been identified by this Court in the cases referred to by Brother Verma, J."
8. In the said case, a letter dated 14.09.1998 sent to Hon'ble Supreme Court was treated as writ petition under Article 32 of the Constitution for determining the claim of compensation made therein consequent upon the death of the son of the petitioner aged twenty-two years in police custody.
9. In the case of Dr. Mehmood Nayyar Azam (supra) Hon'ble Supreme Court has held and observed in paragraphs No.36 to 40 as under:
"36. From the aforesaid discussion, there is no shadow of doubt that any treatment meted out to an accused while he is in custody which causes humiliation and mental trauma corrodes the concept of human dignity. The majesty of law protects the dignity of a citizen in a society governed by law. It cannot be forgotten that the Welfare State is governed by rule of law which has paramountcy. It has been said by Edward Biggon "the laws of a nation form the most instructive portion of its history." The Constitution as the organic law of the land has unfolded itself in manifold manner like a living organism in the various decisions of the court about the rights of a person under Article 21 of the Constitution of India. When citizenry rights are sometimes dashed against and pushed back by the members of City Halls, there has to be a rebound and Page 9 of 26 HC-NIC Page 9 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT when the rebound takes place, Article 21 of the Constitution springs up to action as a protector. That is why, an investigator to a crime is required to possess the qualities of patience and perseverance as has been stated in Nandini Sathpaty v. P. L. Dani.
37. In Delhi Judicial Services Association v. State of Gujarat, while dealing with the role of police, this Court condemned the excessive use of force by the police and observed as follows:-
"The main objectives of police is to apprehend offenders, to investigate crimes and to prosecute them before the courts and also to prevent commission of crime and above all to ensure law and order to protect citizens' life and property. The law enjoins the police to be scrupulously fair to the offender and the Magistracy is to ensure fair investigation and fair trial to an offender. The purpose and object of Magistracy and police are complementary to each other. It is unfortunate that these objectives have remained unfulfilled even after 40 years of our Constitution. Aberrations of police officers and police excesses in dealing with the law and order situation have been subject of adverse comments from this Court as well as from other courts but it has failed to have any corrective effect on it. The police has power to arrest a person even without obtaining a warrant of arrest from a court. The amplitude of this power casts an obligation on the police and it must bear in mind, as held by this Court that if a person is arrested for a crime, his constitutional and fundamental rights must not be violated."
38. It is imperative to state that it is the sacrosanct duty of the police authorities to remember that a citizen while in custody is not denuded of his fundamental right under Article 21 of the Constitution. The restrictions imposed have the sanction of law by which his enjoyment of fundamental right is curtailed but his basic human rights are not crippled so that the police officers can treat him in an inhuman manner. On the contrary, they are under obligation to protect his human rights and prevent all forms of atrocities. We may hasten to add that a balance has to be struck and, in this context, we may fruitfully quote a passage from D. K. Basu (AIR 1997 SC 610) (supra): -
"There can be no gainsaying that freedom of an individual must yield to the security of the State. The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statutes has been upheld by the Courts. The right to interrogate the detenus, culprits or Page 10 of 26 HC-NIC Page 10 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT arrestees in the interest of the nation, must take precedence over an individual's right to personal liberty. .......... The action of the State, however, must be "right, just and fair". Using any form of torture for extracting any kind of information would neither be 'right nor just nor fair' and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated-indeed subjected to sustain and scientific interrogation determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third degree methods or eliminated with a view to elicit information, extract confession or derive knowledge about his accomplishes, weapons etc. His constitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal."
39. In the case at hand, the appellant, while in custody, was compelled to hold a placard in which condemning language was written. He was photographed with the said placard and the photograph was made public. It was also filed in a revenue proceeding by the 7th respondent. The High Court has recorded that the competent authority of the State has conducted an enquiry and found the erring officers to be guilty. The High Court has recorded the findings in the favour of the appellant but left him to submit a representation to the concerned authorities. This Court, as has been indicated earlier, granted an opportunity to the State to deal with the matter in an appropriate manner but it rejected the representation and stated that it is not a case of defamation. We may at once clarify that we are not at all concerned with defamation as postulated under Section 499 of the IPC. We are really concerned how in a country governed by rule of law and where Article 21 of the Constitution is treated to be sacred, the dignity and social reputation of a citizen has been affected.
40. As we perceive, from the admitted facts borne out on record, the appellant has been humiliated. Such treatment is basically inhuman and causes mental trauma. In "Kaplan & Sadock's Synopsis of Psychiatry", while dealing with torture, the learned authors have stated that intentional physical and psychological torture of one human by another can have emotionally damaging effects comparable to, and possibly worse than, those seen with combat and other types of trauma. Any psychological torture inflicts immense mental pain. A mental suffering at any age in life Page 11 of 26 HC-NIC Page 11 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT can carry the brunt and may have nightmarish effect on the victim. The hurt develops a sense of insecurity, helplessness and his self- respect gets gradually atrophied. We have referred to such aspects only to highlight that in the case at hand, the police authorities possibly have some kind of sadistic pleasure or to "please someone" meted the appellant with this kind of treatment. It is not to be forgotten that when dignity is lost, the breath of life gets into oblivion. In a society governed by rule of law where humanity has to be a laser beam, as our compassionate constitution has so emphasized, the police authorities cannot show the power or prowess to vivisect and dismember the same. When they pave such path, law cannot become a silent spectator. As Pithily stated in Jennison v. Baker:-
"The law should not be seen to sit by limply, while those who defy if go free, and those who seek its protection lose hope."
10. In the above said case, compensation was asked for violation of fundamental rights on the ground that the petitioner had suffered custodial torture at the hands of the police.
11. In the case of Sube Singh V. State of Haryana, reported in (2006) 3 SCC 178 while examining the question whether on the facts and circumstances of the case, compensation could be awarded to the petitioner of the said case his family members as a public law remedy for violation of their fundamental rights under Article 21 of the Constitution, Hon'ble Supreme Court has held and observed in paragraphs No.31, 38 to 47, 50 and 51 as under:
31. Though illegal detention and custodial torture were recognised as violations of the fundamental rights of life and liberty guaranteed under Article 21, to begin with, only the following reliefs were being granted in the writ petitions under Article 32 or 226:
(a) direction to set at liberty the person detained, if the Page 12 of 26 HC-NIC Page 12 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT complaint was one of illegal detention.
(b) direction to the Government concerned to hold an inquiry and take action against the officers responsible for the violation.
(c) if the enquiry or action taken by the department concerned was found to be not satisfactory, to direct an inquiry by an independent agency, usually the Central Bureau of Investigation.
Award of compensation as a public law remedy for violation of the fundamental rights enshrined in Article 21 of the Constitution, in addition to the private law remedy under the law of torts, was evolved in the last two-and-a-half decades.
38. It is thus now well settled that the award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a Civil Court, in the enforcement of the private law remedy in tort, nor come in the way of the Criminal Court ordering compensation under Section 357 of the Code of Criminal Procedure.
39. This takes us to the next question as to whether compensation should be awarded under Articles 32/226 for every violation of Article 21 where illegal detention or custodial violence is alleged.
Whether compensation should be awarded for every violation of Article 21
40. In M.C. Mehta V. Union of India a Constitution Bench of this Court while considering the question whether compensation can be awarded in a petition under Article 2, observed thus: (SCC pp. 408-09, para 7) "We must, therefore, hold that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32. The power of the Court to grant such remedial relief may include the power to award compensation in Page 13 of 26 HC-NIC Page 13 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT appropriate cases. We are deliberately using the words 'in appropriate cases' because we must make it clear that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the Court in a petition under Article 32. the infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the Civil Courts. Ordinarily, of course, a petition under Article 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of Civil Court. It is only in exceptional cases of the nature indicated by us above, that compensation may be awarded in a petition under Article 32. ... If we make a fact analysis of the cases where compensation has been awarded by this Court, we will find that in all the cases, the fact of infringement was patent and incontrovertible, the violation was gross and its magnitude was such as to shock the conscience of the Court and it would have been gravely unjust to the person whose fundamental right was violated, to require him to go to the Civil Court for claiming compensation."
41. In Nilabati Behera this Court put in a word of caution thus:
(SCC p. 769, para 35) "Of course, relief in exercise of the power under Article 32 of 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. ... Law is in the process of development an the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the Courts have to act firmly but with certain amount of circumspection and self-restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law."
42. In D.K. Basu this Court repeatedly stressed that Page 14 of 26 HC-NIC Page 14 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT compensation can be awarded only for redressal of an established violation of Article 21. This Court also drew attention to the following aspect: (SCC p.434, para 31) "31. There is one other aspect also which needs our consideration. We are conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals. Many hardcore criminals like extremists, terrorists, drug peddlers, smugglers who have organised gangs, have taken strong roots in the society. It is being said in certain quarters that with more and more liberalization and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation. It is felt in those quarters that if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may go scot-free without exposing any element or iota of criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot, however, be worse than the disease itself."
43. In Shakila Abdul Gafar Khan V. Vasant Raghunath Dhoble and Munshi Singh Gautam V. Stat of M.P. this Court warned against non-genuine claims: (Munshi Singh Gautam case, SCC p.639, para 9) "9. But at the same time there seems to be a disturbing trend of increase in cases where false accusations of custodial torture are made, trying to take advantage of the serious concern shown and the stern attitude reflected by the Courts while dealing with custodial violence. It needs to be carefully examined whether the allegations of custodial violence are genuine or are sham attempts to gain undeserved benefit masquerading as victims of custodial violence."
44. In Dhananjay Sharma V. State of Haryana this Court refused compensation where the petitioner had exaggerated the incident and had indulged in falsehood. This Court held: (SCC pp.782-83, Page 15 of 26 HC-NIC Page 15 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT para 54) "54. Since, from the report of CBI and our own independent appraisal of the evidence recorded by CBI, we have come to the conclusion that Shri Dhananjay Sharma and Sushil Kumar had been illegally detained by respondents No.3 to 5 from the afternoon of 15-1-1994 to 17-1-1994, the State must be held responsible for the unlawful acts of its officers and it must repair the damage done to the citizens by its officers for violating their indefeasible fundamental right of personal liberty without any authority of law in an absolutely high-handed manner. We would have been, therefore, inclined to direct the State Government of Haryana to compensate Dhananjay Sharma and Sushil Kumar but since Sushil Kumar has indulged in falsehood in this Court and Shri Dhananjay Sharma has also exaggerated the incident by stating that on 15-1-1994 when he was waylaid along with Sushil Kumar and Shri S.C. Puri, Advocate, two employees of Respondents 6 and 7 were also present with the police party, which version has not been found to be correct by CBI, they both have disentitled themselves from receiving any compensation, as monetary amends for the wrong done by Respondents 3 to 5, in detaining them. We, therefore, do not direct the payment of any compensation to them."
45. Cases where violation of Article 21 involving custodial death or torture is established or is incontrovertible stand on a different footing when compared to cases where such violation is doubtful or not established. Where there is no independent evidence of custodial torture and where there is neither medical evidence about any injury or disability, resulting from custodial torture, not any mark/scar, it may not be prudent to accept claims of human rights violation, by persons having criminal records in a routine manner for awarding compensation. That may open the floodgates for false claims, either to mulct money from the State or as to present or thwart further investigation. The Courts should, therefore, while zealously protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable the police to discharge their duties fearlessly and effectively. While custodial torture is not infrequent, it should be borne in mind that every arrest and detention does not lead to custodial torture.
46. In cases where custodial death or custodial torture or other Page 16 of 26 HC-NIC Page 16 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT violation of the rights guaranteed under Article 21 is established, the Courts may award compensation in a proceeding under Article 32 of 226. However, before awarding compensation, the Court will have to pose to itself the following questions: (a) whether the violation of Article 21 is patent and incontrovertible,
(b) whether the violation is gross and of a magnitude to shock the conscience of the Court, (c) whether the custodial torture alleged has resulted in death or whether custodial torture is supported by medical report or visible marks or scars or disability. Where there is no evidence of custodial torture of a person except his own statement, and where such allegation is not supported by any medical report or other corroborative evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, the Courts may not award compensation as a public law remedy under Article 32 or 226, but relegate the aggrieved party to the traditional remedies by way of appropriate civil/criminal action.
47. We should not, however, be understood as holding that harassment and custodial violence is not serious or worthy of consideration, where there is no medical report or visible marks or independent evidence. We are conscious of the fact that harassment or custodial violence cannot always be supported by a medical report or independent evidence or proved by marks or scars. Every illegal detention irrespective of its duration, and every custodial violence, irrespective of its degree or magnitude, is outright condemnable and per se actionable. Remedy for such violation is available in civil law and criminal law. The public law remedy is additionally available where the conditions mentioned in the earlier paragraph are satisfies. We may also note that this court has softened the degree of proof required in criminal prosecution relating to such matter. In State of M.P. V. Shyamsunder Trivedi, reiterated in Abdul Gafar Khan and Munshi Singh Gautam, this Court observed: (SCC pp. 272-73 paras 16-17) "[R]arely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available, .... Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues,....
... The exaggerated adherence to and insistence upon the Page 17 of 26 HC-NIC Page 17 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact situations and the peculiar circumstances of a given case, ..., often results in miscarriage of justice and makes the justice-delivery system suspect. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the Courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture."
50. In this case, there is no clear or incontrovertible evidence about custodial torture, not any medical report of any injury or disability. The grievance of the petitioner and his relatives is against different officers in different police stations at different points of time. More importantly, several of the allegations are proved to be exaggerated and false. We, therefore, do not consider this to be a fit case for award of compensation. All reliefs which should be granted in such a case, have already been granted by ordering an inquiry by CBI and ensuring that the police officers named are prosecuted. The law will have to take its own course.
51. This order will not come in the way of any Civil Court awarding compensation in an action in tort or the Criminal Court awarding compensation under Section 357 CrPC in the pending prosecution against any of the officers, if the charges are established. With the said observations, we dispose of this petition, as no further reliefs/directions are called for."
12. In the case of State of Rajasthan V. Jainudeen Shekh, reported in (2016) 1 SCC 514, the State of Rajasthan had challenged the order made by learned Special Judge granting compensation of Rs.1,50,000/- to each of the respondents therein who had been arraigned as accused for the offences punishable under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 on the ground that there was a delay of obtaining report from the Forensic Page 18 of 26 HC-NIC Page 18 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT Science Laboratory and the report shows that the seized items did not contain any contraband article and, therefore, the accused had suffered illegal custody. Examining such challenge made by the State of Rajasthan, Hon'ble Supreme Court has held and observed in paragraphs No.7 to 14 as under:
"7. We have heard Mr. S.S. Shamshery, learned AAG for the State of Rajasthan. Despite notice, there has been no appearance on behalf of the respondents.
8. Section 250 of the Code confers powers on the Magistrate to grant compensation on certain conditions being satisfied. A procedure has been engrafted in the said provision. There are certain cases in which the learned Sessions Judge can grant compensation. In this context we may refer with profit to the decision in Daulat Ram v. State of Haryana. The appellant therein was convicted by the learned Additional Sessions Judge under Section 25 of the Arms Act, 1959 read with Section 6(1) of the Terrorist & Disruptive Activities (Prevention) Act, 1985 (for short, 'TADA"). The defence taken by the accused was that he had been falsely implicated at the instance of one Hans Raj Lambardar of the village. He had examined four witnesses in his defence. He was acquitted under Section 6 of the TADA but convicted under Section 25 of the Arms Act. The Court analyzing the evidence on record and taking note of the plea of the defence, dislodged the judgment of conviction and while doing so, this Court opined that: (SCC p.713, para 3) "3. .... It is unfortunate that the police officers, namely, Head Constable, Randhir PW 2 and the then Head Constable Jai Dayal, PW 3 foisted a false case on the appellant for reasons best known to them, which is a very serious matter. We are informed that the appellant was in custody for a few days in connection with this case. We, therefore, direct the respondent-State to pay a sum of Rs. 5000 as compensation to the appellant within two months. The respondent State may however recover the said amount from the police officials, Randhir PW 2 and Jai Dayal, PW 3 (Rs. 2500 each), who are responsible for false implication of the appellant."Page 19 of 26
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9. In Mohd. Zahid v. Govt. (NCT of Delhi), the appellant had preferred an appeal under Section 19 of the TADA. The designated court had found him guilty and convicted him for the offence under Section 5 of TADA and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs.1,000/- and, in default of payment of fine, to undergo rigorous imprisonment for two months more. The Court allowed the appeal and recorded an order of acquittal. In course of analysis, the Court has opined that certain documents had been interpolated, the evidence of certain witnesses was absolutely false and that the appellant therein made a victim of prolonged illegal incarceration due to machination of PWs 5 and 6 and other police personnel and accordingly directed payment of Rs.50,000/- as compensation.
10. In this context reference to certain other decisions would be appropriate. In State v. N.M.T. Joy Immaculate, a three- Judge Bench was dealing with the judgment and order passed by the learned Single Judge of the High Court of Madras in a Criminal Revision which was allowed and revision was disposed of with certain directions. The High Court had granted Rs.1 lakh compensation on the basis of an affidavit. G.P. Mathur, J., speaking for the learned Chief Justice and himself, after quashing the order of the High Court has opined that: (SCC p.742, para 18) "18. The High Court has also awarded Rs. 1 lakh as compensation to the accused on the ground that she was illegally detained in the police station and the police personnel committed acts of molestation, obscene violation, etc. It is noteworthy that after investigation, the police has submitted charge-sheet against accused Joy Immaculate. Her application for bail was rejected by the learned Sessions Judge and thereafter by the High Court on 18-1-2002 prior to the decision of the revision. There is absolutely no justification for awarding compensation to a person who is facing prosecution for a serious offence like murder even before the trial has commenced. This direction, therefore, deserves to be set aside."
11. Dr. A.R. Lakshmanan, J. in his concurring opinion has laid down: (N.M.T. Joy Immaculate case, SCC p.744, para 25) "25. Above all, the learned Judge has committed a grave error in awarding a compensation of Rs 1 lakh on the ground that the police personnel committed acts of obscene Page 20 of 26 HC-NIC Page 20 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT violation, teasing the respondent herein. The learned Judge has relied upon only on the basis of the affidavit filed in the case for coming to the conclusion and also on the basis of the assumption that the respondent was not involved in the incident which will foreclose the further enquiry ordered by the learned Judge in the matter. There is no justification for awarding compensation to a person who is facing prosecution for a serious offence like murder even before the trial has started."
12. In this context, we may usefully refer to a two-Judge Bench decision in Hardeep Singh v. State of Madhya Pradesh. In the said case, the appellant was engaged in running a coaching centre where students were given tuition to prepare them for entrance tests for different professional courses. The appellant was arrested and a case under Section 420 read with Section 34 IPC and other sections was instituted. He was brought to the police station in handcuffs and his photographs in handcuffs appeared in the local newspapers. The trial went on for several years and eventually, he was acquitted after 12 years. Thereafter he filed a complaint before the Magistrate which was dismissed for lack of sanction. The High Court being moved had held that complaint was not maintainable and dismissed the same in limini. Thereafter, the victim moved the Government for grant of sanction under Section 197 CrPC for prosecuting the Collector and other government servants which was refused. The said order of refusal came to be assailed in W.P. No.4777 of 2007. The writ petition was dismissed by the High Court. On an intra-court appeal preferred, the High Court dismissed the same.
13. Be it stated, after the acquittal, the appellant had filed writ petition no. 4368 of 2004 contending, inter alia, that he was taken to the police station and was kept there in custody in the night handcuffed by the police without there being any valid reason and his photographs in handcuffs in daily newspapers were published as a consequence of which his elder sister who loved him like a son, died due to shock. It was also contended that the prosecution knew from the beginning that the cases registered against him were false and it purposefully caused delay in conclusion of the trial causing great harm to his dignity and reputation and violating his fundamental right to speedy trial guaranteed under Article 21 of the Constitution. A learned Single Judge of the High Court Page 21 of 26 HC-NIC Page 21 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT had admitted the writ petition on the limited question of grant of compensation to the appellant for the delay in conclusion of the criminal case against him. Another Single Judge who finally heard the matter opined that there was no case for compensation. In intra-court appeal, the Division Bench reversed the same and granted compensation of Rs.70,000/- which was enhanced by this Court to Rs.2 lakhs. The analysis made by the Division Bench which has been approved by this Court is to the following effect: (Hardeep Singh case, SCC p.752, para 13) "13. The Division Bench further held that there was no warrant for putting the appellant under handcuffs. His handcuffing was without justification and it had not only adversely affected his dignity as a human being but had also led to unfortunate and tragic consequences."
And while enhancing the compensation, the Court held that:
(Hardeep Singh case, SCC p.752, para 17) "17. .... we find that in the light of the findings arrived at by the Division Bench, the compensation of Rs 70,000 was too small and did not do justice to the sufferings and humiliation undergone by the appellant."
14. Regard being had to the aforesaid enunciation of law, the factual matrix of the case at hand is required to be appreciated. On a close scrutiny of the judgment of the learned trial Judge, it is evident that he has been guided basically by three factors, namely, that the State Government has not established Forensic Science Laboratories despite the orders passed by this Court; that there has been delay in getting the seized articles tested; and that the seizing officer had not himself verified by using his experience and expertise that the contraband article was opium. As far as the first aspect is concerned, it is a different matter altogether. As far as the delay is concerned that is the fulcrum of the reasoning for acquittal. It is apt to note that the police while patrolling had noticed the accused persons and their behaviour at that time was suspicious. There is nothing on record to suggest that there was any lapse on the part of the seizing officer. Nothing has been brought by way of evidence to show that the prosecution had falsely implicated them. There is nothing to remotely suggest that there was any malice. The High Court, Page 22 of 26 HC-NIC Page 22 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT as is noticed, has not applied its mind to the concept of grant of compensation to the accused persons in a case of present nature. There is no material whatsoever to show that the prosecution has deliberately roped in the accused persons. There is no mala fide or malice like the fact situation which are projected in the case of Hardeep Singh. Thus, the view expressed by the learned trial Judge is absolutely indefensible and the affirmance thereof by the High Court is wholly unsustainable.
13. Thus as held by Hon'ble Supreme Court, the compensation could be granted in public law remedy for violation of fundamental rights under Article 21 of the Constitution either because of the mala fide action of the police for lodging false prosecution or because of the humiliation, torture by the police in police custody or custodial death of a citizen. In a given case while rendering the order of acquittal, the Court may record that the accused has suffered violation of his fundamental rights because the police falsely implicated him in criminal case or because the accused has suffered humiliation, harassment, or torture in custody of police.
14. It is the case of the petitioner that he made representations to various authorities of the State Government pointing out that he was falsely implicated in the offences as a part of political rivalry. However, the fact remains that in connection with the FIR lodged against the petitioner and three other accused on completion of the investigation, the chargesheet was filed and the petitioner was put to trial with other accused. In trial, on appreciation of evidence, the Court of learned Additional Sessions Judge acquitted the petitioner and other accused by giving benefit of Page 23 of 26 HC-NIC Page 23 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT doubt vide order dated 17.05.1996 in Session Case No.27 of 1991.
15. Learned advocate Mr. SK Patel for the petitioner, however, submitted that the benefit of doubt was given to the petitioner and other accused, not because the prosecution could not prove the case beyond reasonable doubt against the petitioner and other accused but on recording the finding that the witnesses twisted the evidence to falsely involve the petitioner and other accused in the offences alleged and though there was no evidence as regards the intention of the petitioner and other accused to commit serious offence, the police by adding Section 307 gave a colour of seriousness to the offence alleged and falsely implicated the petitioner in the said offence.
16. The Court, having gone through the judgment and order of acquittal, finds that as regards offences charged under the Atrocity Act, the trial Court has observed in the order that the evidence of the complainant could not be relied as it doesn't get support from the complaint and by calculated efforts, the complainant tried to bring new evidence for the first time in the Court. As regards other offences, trial Court has recorded that a story of giving blow with knife by the petitioner was got up as after treatment from doctor, the manner of giving the complaint appeared to have been planned out. It is also observed that though one witness Dhanagovind appeared to have correct information in connection with the alleged incident, he was kept away from the police investigation and also from the trial and only because of such dishonest police investigation, the accused became entitled to acquittal.
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Having appreciated the evidence of the prosecution witnesses and having considered the contradictions in the evidence, the trial Court has recorded reasonable doubt that on account of some unknown reason, the accused are implicated in the offences by making whimsical changes in the happening of the events by the witnesses and, therefore, none of the accusations against the accused is proved beyond reasonable doubt. On above such examination of evidence, the accused are acquitted by giving benefit of doubt.
17. It is not the case that the petitioner has alleged any torture, harassment, humiliation or any bad treatment by the police in police custody. It also doesn't appear from the representations made by the petitioner to the higher authorities of the State Government as also to this Court that the petitioner ever alleged that he was illegally confined in police custody or was meted out any inhuman treatment by police. Though the petitioner has made grievance in his representations that on account of political rivalry, false complaint was filed against him and his family members and that if the inquiry was properly made as requested by him, it could have been known that a false complaint was filed against him and his family members, however what would have been the outcome of inquiry would not be the consideration at this stage. However, as stated in representation of the petitioner at Annexure-A, the petitioner was released on bail after ten days of his arrest by the Session Court with a condition of keeping himself 10kms away from his village. The Court finds that nowhere the trial Court has observed in the acquittal order that the police had in any manner violated the fundamental rights of the petitioner Page 25 of 26 HC-NIC Page 25 of 26 Created On Sat Aug 12 15:55:16 IST 2017 R/SCR.A/377/2009 JUDGMENT either by keeping the petitioner in illegal custody or by torturing him or humiliating him in any manner not permitted by the canons of law. Therefore, when the petitioner has not suffered custodial torture, humiliation or any violation of his fundamental rights at the hands of the police and when on appreciation of the evidence, the trial Court has acquitted the petitioner and other accused by giving benefit of doubt, the State cannot be made liable to pay compensation to the petitioner by public law remedy in exercise of powers under Article 226 of the Constitution of India.
18. The petition is, therefore, dismissed. It is accordingly dismissed. Rule discharged.
(C.L.SONI, J.) Gupta* Page 26 of 26 HC-NIC Page 26 of 26 Created On Sat Aug 12 15:55:16 IST 2017