Delhi District Court
Nagendra Kishore Gupta vs Union Of India on 4 September, 2012
IN THE COURT OF SH. AJAY PANDEY : SCJ-CUM-RC (Central): TIS
HAZARI COURTS, DELHI
Suit no. 378/06/99
NAGENDRA KISHORE GUPTA, Advocate,
S/o Late Sh. Ram Niwas,
R/o 3148, Lal Darwaja,
Bazar Sita Ram, Delhi. ........... Plaintiff
Versus
UNION OF INDIA, THROUGH HOME SECRETARY,
Govt. of India, New Delhi.
DELHI ADMINISTRATION, THROUGH CHIEF SECRETARY,
Sham Nath Marg, Delhi.
THE POLICE COMMISSIONER, POLICE HEAD QUARTERS,
I.P. Estate, New Delhi.
THE SUPERINTENDENT, CENTRAL JAIL NO. 4,
Tihar, New Delhi.
THE STATION HOUSE OFFICER,
P.S. Kauz Qazi, Delhi. ......... Defendants
Date of filing of the suit : 31/03/1993
Date of hearing arguments : 23/08/2012
Date of judgment : 04/09/2012
Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 1
SUIT FOR PERMANENT INJUNCTION AND DAMAGES
1. This is a suit for permanent injunction and damages filed by the plaintiff
with the following relief:-
(i). A decree for permanent injunction with costs may be
passed in favour of the plaintiff and against the defendants,
restraining them from arresting or preventing the plaintiff to
participate the plaintiff on the occasions of Ram Navmi or on any
other occasion on account of his being a member of National
Political Party, the B.J.P. and in any way interfering in his day to
day legal activities both as a citizen of India and as an Advocate.
(ii). A decree for Rs. 10/- may be passed in favour of the
plaintiff and against the defendants on account of symbolic
damages/compensation for the reason mentioned in the plaintiff
above.
2. It is inter-alia stated in the plaint that the plaintiff is an Advocate practicing
at District Courts and Hon'ble High Court of Delhi and a law abiding citizen
residing under the jurisdiction of defendant no. 5 i.e. S.H.O. Police Station Hauz
Qazi, Delhi. On 21/02/1993 at about 12.00 noon some police officials under the
control and command of defendant no. 5, at the instance of defendants, came to
the residence of plaintiff and illegally tress passed into his house and started
manhandling the plaintiff. The plaintiff asked them to show any kind of warrants
from competent authority, they did not show any warrants or authority and
dragged the plaintiff from his house to Police Station Hauz Qazi. From there the
plaintiff was taken to Police Station Pahar Ganj where he was further abused,
manhandled and tortured. The plaintiff was detained there till about 8:30 p.m.
and then he was removed to Central Jail No. 4 at Tihar. During his detention at
Police Station Hauz Qazi and Pahar Ganj, he was maltreated, humiliated,
tortured and pressurized and was not told any reason for taking his custody nor
Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 2
his family members were informed about his whereabouts. In the Central Jail,
Tihar, the plaintiff was not provided proper facilities and neither any meal,
breakfast or lunch was given to him nor any bedding. He was also given
torturous treatment while treating him with the other prisoners of general
category. He suffered a heart attack during his detention in Central Jail No. 4 and
was taken to Deen Dayal Upadhyay Hospital. From there he was discharged on
the evening of same day and further kept in the general ward of the jail. He
remained under constant ailments without proper treatment till he was ultimately
released on 26/02/1993. After his release from the Central Jail, the plaintiff
inquired into the matter and came to know from some resources that the plaintiff,
who was the Vice President of 'Lal Darwaza Mandal of the B.J.P. and Executive
member of the District Chandni Chowk (BJP), was taken into custody on the
behest of Ruling Party of the Country with the sole motive to prevent him to
participate in the proposed Rally on 25/02/1993 and to discourage the active
party members of the B.J.P. The plaintiff further came to know that the defendants
were further contemplating to arrest B.J.P. workers including the plaintiff on the
occasion of Ram Navmi i.e. 1st April, 1993 as was done on 21st February, 1993 to
prevent them to participate in the party activities. The plaintiff therefore,
apprehended that he would be arrested by the defendants on the date of filing of
the suit or a day after i.e. 31/03/1993 or on 01/04/1993. Hence, this suit.
3. Defendants No. 1, 2 3 & 5 filed their common written statement taking
preliminary objections that the suit is barred U/Sec. 140 of Delhi Police Act and
that on 21/02/1993 SI Rajinder Kumar, was on petrolling along with ASI Giri Raj
Sharma, HC Sher Khan No. 231/C, Const. Ajab Singh No. 1486/C and Const.
Arun Kumar No. 1129/C when they reached near House No. 3148, Lal Darwaza,
they saw a crowd in which one Nagendra Kishore Gupta son of Sh. Ram Niwas
Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 3
Gupta r/o 3148, Lal Darwaza was shouting that on 25/02/1993 a rally of BJP is to
be held and he was to make it successful. The plaintiff further said, he would see
how Delhi Police and Congress Government would stop them. The S.I. tried to
pacify him and make him understand, but all his efforts went in vain and the said
Mr. Nagendra Kishore Gupta continued with his instigations, which caused
immediate apprehension of breach of peace. The facts were brought to the
notice of the SHO, Sh. Data Ram, on telephone and with a sheer intention to
maintain peace and tranquility in the area and to avoid any untoward incident as
the area is very sensitive on such occasions, the plaintiff was arrested. He was
produced before Sh. B. K. Singh, S.D.M, Central District on the same day who
remanded him to judicial custody. Later on, on 26/02/1993 the plaintiff was
released.
4. In reply on merits it is admitted that to the knowledge of the defendants,
there is no criminal case against the plaintiff. The allegations under para-2 of the
preliminary objections are reasserted and it is stated that there was no malafide
intention or motives on the part of the answering respondents nor they misused
their official powers nor acted under political influence. It is stated that the plaintiff was arrested as a preventive measures for maintaining peace and tranquility in the area. Allegations of illegal arrest of the plaintiff as well as allegations regarding his cumulative tortures, assault to plaintiff or tresspass into his house are denied and dismissal of the suit is prayed.
5. Defendant no. 4 in its separate written statement took preliminary objections that the suit is not maintainable as no notice U/Sec. 80 CPC was served upon him and that there is no cause of action against defendant no. 4 and that the plaintiff has suppressed material facts from the court. It was stated in Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 4 reply that plaintiff was put in jail no. 4 on 21/02/1993 as an agitator along with other BJP agitators (incorrectly written in the written statement as 'agitation'). It is further stated that as per jail manual, agitators are lodged separately from the general category of prisoners and the facilities like food, cloth, bedding etc. are also provided separately to them. The plaintiff and other agitators were lodged in a separate ward and all the required facilities were provided to them on time. On 23/02/1993, the plaintiff had complained about chest problems, breathing problems and he was immediately referred to the Deen Dayal Upadhyay hospital by the Medical officer of the jail after medical examination. He was given required medical treatment at DDU hospital. A medical report of R.M.O and other medical documents pertaining to the medical treatment given to the plaintiff are lying with jail records. After providing necessary medical treatment, the plaintiff was sent back to the jail on 23/02/1993 where all the facilities which were required, were provided to the plaintiff. The plaintiff has made false and fabricated allegations against the defendant with ulterior motive to claim damages. The plaintiff was given best treatment and facilities within the purview of Jail Manual. It is further stated that this discharge summary of hospital was handed over to the plaintiff at the time of his release from jail and dismissal of suit is prayed.
6. On 25/09/1996 a preliminary issue was framed in the case as follows:-
"Preliminary issue:- whether the suit is not maintainable in the present form in absence of notice U/Sec. 140 Delhi Police Act served on the defendants."
7. This issue was decided by my learned predecessor Ms. Shail Jain on 25/01/1997 holding that the plaintiff was granted permission for filing the present suit without giving notice and the suit is not liable to be dismissed U/Sec. 80 CPC Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 5 or U/Sec. 140 of Delhi Police Act.
8. After decision on preliminary issue, defendants were proceeded ex-parte on 15/07/1998. The plaintiff examined himself in his ex-parte evidence. The ex- parte evidence of the plaintiff was closed on 15/01/1999. Thereafter, the case was dismissed by the learned predecessor Sh. Ramesh Kumar, the then Learned Civil Judge by his judgment on 08/12/1999 holding that though the same was not bad for want of notice U/Sec. 140 of D.P. Act but the plaintiff had failed to prove that he was illegally and unlawfully arrested by the local police on 21/02/1993.
9. In RCA No. 26/2003 (old RCA no. 620/2000), this judgment and decree dated 08/12/1999 was set aside by the then learned ADJ and this order of learned ADJ was upheld by Hon'ble High Court of Delhi in its order dated 09/01/2007 and the case was remanded back to the trial court to proceed in accordance with law after giving sufficient opportunities to both the parties to contest their case. It was directed that trial Court could frame issues on merits of the case and shall afford sufficient opportunities to both the sides to lead their respective evidence.
10. After decision of learned ADJ on 25/08/2003, the issues were framed by the then learned predecessor on 29/01/2004 as follows:-
1. Whether the plaintiff is entitled to decree of permanent injunction as prayed for ? (OPP)
2. Whether the plaintiff is entitled to decree for damages for a sum of Rs. 10/- as prayed for ?(OPP)
3. Relief.
Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 6
11. After framing of these issues on 29/01/2004, the matter was stayed by the Hon'ble High Court till the passing of order dated 09/01/2007 by His Lordship HMJ Pradeep Nandrajog.
12. On 09/04/2010 following issues were again framed:-
1. Whether the defendants can be restrained from arresting the plaintiff as prayed for ? OPP
2. Whether the damages of Rs. 10/- can be awarded to the plaintiff by the defendant ? OPP
3. Whether there is no cause of action to file present suit ? OPD
13. On perusal of the issues framed on 29/01/2004 and 09/04/2010, it is observed that the issues are almost identical and the relief of permanent injunction has been specifically narrated in the issue no. 1 as framed on 09/04/2010. The parties have agreed that the Court should pronounce this judgment on the issues framed on 09/04/2010.
14. During the course of arguments, the plaintiff has submitted that the relief regarding restrain against the arrest has become infructuous. The plaintiff apprehended his arrest on 31/03 or 01/04/1993. These dates have already expired and at present the plaintiff does not see any imminent danger against him for his arrest and after filing of the suit, he has not been arrested by the defendants. It is further submitted by the plaintiff that he is dropping his relief of permanent injunction as prayed in the plaint with liberty to file separate suit if there is any fresh cause of action in his favour.
15. The court has gone through the evidence and material available on record Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 7 and has considered the arguments advanced by the parties.
Issue wise findings of the court are as under:-
Issue No.1:-
Whether the defendants can be restrained from arresting the plaintiff as prayed for ? OPP It is submitted by the plaintiff that the relief against his imminent arrest on the occasion of Ram Navmi in the year 1993 has become infructous and, therefore, he is not pressing the relief prayed by him against his arrest. Accordingly, no relief is required to be granted in favour of plaintiff by way of restraining the defendants from his arrest on the occasion of Ram Navmi in the year 1993 as this relief has already become infructuous.
Issue No.3:-
Whether there is no cause of action to file present suit ? OPD The onus to prove this issue was upon the defendants. No witness has been examined by either of defendants. Even the plaintiff has not been cross examined. Even otherwise the cause of action for filing any suit has to be seen from the plaint. The plaint in question depicts a clear cause of action in favour of plaintiff. The plaintiff has alleged his illegal and malicious arrest under the political influence by the defendants. The plaint disclosed a clear cause of action. This issue is accordingly decided in favour of plaintiff and against the defendants.
Issue No. 2:-
Whether the damages of Rs. 10/- can be awarded to the plaintiff by the Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 8 defendant ? OPP In his evidence, the plaintiff has testified all facts stated by him in his plaint. The Plaintiff also proved the certificate of his admission into jail on 21/02/1993 and his release on 26.02.93 as Ex PW-1/2. He further proved his application for release of medical report/documents addressed to the Superintendent, Central Jail, Tihar as Ex PW-1/3. In this application, the plaintiff was seeking his medical report and other connected documents prepared during his admission and treatment at DDU hospital New Delhi .
No cross examination of plaintiff has been conducted on behalf of defendants. No witness has been examined by defendants in their defence. Evidence of plaintiff remained unrebutted. It is rightly submitted by plaintiff that non-cross examination of plaintiff and absence of defence witnesses amounts to admission of the testimony of plaintiff and in the facts and circumstances of the case, the Court has no option but to believe the statement of the plaintiff that he was lifted from his house without any justification or authority.
Even if for the sake of arguments, the contents of the written statement of the defendants no.1 ,2,3 and 5 are considered at their face value, they do not make any justification for his arrest and detention.
It is stated in the WS of defendants No. 1,2, 3 and 5 that on 21.02.93 SI Rajinder Kumar was on petrolling along with ASI Giri Raj Sharma, HC Sher Khan No. 231/C, Const. Ajab Singh No. 1486/C and Const. Arun Kumar No. 1129/C and when they reached near house no. 3148, Lal Darwaza, they saw the crowd in which the plaintiff was shouting that on 25.02.93 a rally of BJP is going to be Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 9 held and that he has to make it successful. The plaintiff further stated that he would see how Delhi Police and Congress Govt. would stop them. The police official, tried to pacify him but all efforts went in vain and the plaintiff continued with his instigation which caused immediate apprehension of breach to peace, hence, the plaintiff was arrested in consultation with the area SHO Sh. Data Ram to maintain peace and tranquility in the area.
Even these averments in WS do not make any ground for the arrest and detention of plaintiff. This is not a case of defendants that there was any order of prohibition of meetings in the area passed by either of the defendants or any other competent authority. It is no bar in the Parliamentary Democracy to mobilize support for any meeting or rally of a Nationalised Political Party . Even if, the plaintiff was stating that he has to make the rally of a Nationalised party successful, this cannot be termed as a crime and the plaintiff would not have been prohibited from pledging his support to any particular nationalised party. It can not be said to be a crime to express willingness to make any rally successful. It has not been explained how there was apprehension of breach of peace. It is not the case that the so called rally or the party organising the rally was banned by Government.
It is not the case of of the defendants that the rally was being organised to spread disharmony between the different communities. The words as allegedly spoken by the plaintiff, further do not have the capacity to create feeling of enemities or disharmony between the communities. It is rightly submitted by the plaintiff that the fundamental rights of freedom of speech and expression as enshrined in Article 19 (1) (a) & (b) would cover peaceful and oral demonstration by any person or group of persons. The Administration can make rules or pass Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 10 appropriate orders for regulating such demonstration or speech. In Kameshwar and Others Vs. State of Bihar and Anr. AIR 1962 SC 1166, while dealing with the right to make a demonstration, the Hon'ble Supreme Court held as under:-
"13. The first question that falls to be considered is whether the right to make a demonstration is covered by either or both of the two freedoms guaranteed by article 19 (1)(a). A demonstration is defined in the Concise Oxford dictionary as an out word exhibition of feeling, as an exhibition of opinion on political or other question especially a public meeting or procession. In Webster it is defined as public exhibition by a party, sect of society....... as by a parade or mass-meeting. Without going very much into the niceties of language it might be broadly stated that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one's ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of the speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech. It is however to be recognized that the argument before us is confined to the rule prohibiting demonstration which is form of the speech and expression or of a mere assembly and speeches therein and not other forms of demonstration which do not fall within the content of article 19 (1)(a) & 19 (1) (b) . A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles. It necessarily follows that there are forms of demonstration which would fall within the freedoms guaranteed by article 19 (1)(a) & (b). It is need less to to add that from the very nature of things a demonstration may take various forms; it may be noisy and disorderly, for instance stone throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within article 19 (1)(a) or (b). It can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances."
In the case in hand, there is nothing in the Written Statements of defendants to suggest the number of persons in the crowd to which the plaintiff Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 11 was allegedly addressing. There is nothing to suggest the behaviour of the persons in the said crowd. There is nothing to suggest under what circumstances breach of peace in the area was apprehended. Nobody has appeared on behalf of the defendants to state under what provision of law, the plaintiff was detained.
Though the defendants do not write specifically in their written statement under what provisions, the plaintiff was arrested and detained but the plaintiff has proved on record a certificate from the Deputy Superintendent, Central Jail no.4, Tihar, New Delhi, certifying that the plaintiff was admitted in jail on 21/02/1993 U/Sec. 107/151 Cr.P.C., Police Station Hauz Qazi and was released on 26/02/1993. Both the Sections are reproduced herein below :-
Sec. 107. (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond *( with or without sureties;) for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.
(2). Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act as aforesaid beyond such jurisdiction.
Sec. 151. (1) A police officer knowing of a design to commit any cognizable offence may arrest, without orders from Magistrate and without a warrant, the person so designing, if it appears to such Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 12 officer that the commission of the offence can not be otherwise prevented.
(2) No person arrested under sub-section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of this Code or of any other law for the time being in force.
A bare reading of Section 107 makes it clear that under this section an Executive Magistrate can demand execution of a bond from any person who is likely to commit a breach of peace or disturb the public tranquility. Even the procedure U/Sec. 107 was not followed in the case of plaintiff. No bond was demanded from him. The plaintiff was straightaway sent to jail without intimating him about the reason of his arrest. There is not an iota in the W.S. of defendants No. 1 to 5 that the plaintiff was ever asked to execute a bond for keeping the peace for any period whatsoever. U/Sec. 111 of Cr.P.C., it is obligatory upon an Executive Magistrate acting U/Sec. 107 to make an order in writing, stating forth the substance of information received by him, amount of bond to be executed by the person brought before him U/Sec. 107 as well as the number, nature and class of sureties, if any. In the case in hand, the plaintiff was not given any chance or direction even to execute any bond. The directions for execution of the bond are required to be passed by following the procedure U/Sec. 116 of the Cr.P.C. giving an opportunity of hearing to the plaintiff. In no case the plaintiff can be outrightly sent to custody.
Hence the arrest and detention of the plaintiff can not even be said to be U/Sec. 107 Cr.P.C. or atleast the procedure mandated U/Sec. 107 Cr. P.C. was not followed during the arrest and detention of the plaintiff.
Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 13 Reading of Sec. 151 Cr.P.C. further makes it clear that the arrest under the said section can be made by police officer to avoid the commission of any cognizable offence. In the case in hand, the Police or the Govt. of India has miserably failed to bring on record what cognizable offence might have been committed by the plaintiff. As per Written Statement, the plaintiff was just pledging support for some proposed rally which was being organised by a nationalised party. The said rally was not banned nor it was designed to violate any law. In the case of Medha Patkar Vs. State of M.P. 2008 Cr.LJ 47 (MP) DB; Hon'ble High Court of Madhya Pradesh held that the arrest of the petitioner was unconstitutional and violative of article 19 and 21 of the Constitution and the state was directed to pay compensation to all arrested persons. The Hon'ble High Court upheld the right of peaceful demonstration of agitators and held that the petitioner and other project affected people were squatting on the road, shouting slogans demanding rehabilitation and demanding rehabilitation measures. They had no design to commit any cognizable offence. There was nothing on record to raise apprehension that they would disturb public peace or public order. So, their arrest under Sec. 151 Cr.P.C. was held to be unconstitutional being violative of Articles 19 and 21 of the Constitution. For such illegal arrest and detention in jail of the petitioner and other agitators Hon'ble High Court directed the State to pay petition and other arrested persons, compensation of Rs. 10,000/- each. Liberty was given to the State to recover the sums awarded as compensation from the erring police officers responsible for such illegal arrest.
In the case of Balraj Vs. Union of India AIR 1967 Delhi 31; hon'ble High Court of Delhi has held that Section 151 Cr. P.C. Can not be used merely on an apprehension of breach of peace for which other provisions may be available.
Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 14 There must be a design to commit a cognizable offence, in order to arrest a person U/Sec. 151 Cr.P.C.
Sub-section 2 of Sec. 151 Cr.P.C. specifies that no person arrested under Section 1 shall be detained in custody for a period exceeding 24 hours from the time of his arrest unless his further detention is required or authorised under any other provision of Indian Penal Code or any other law.
In the case in hand, the plaintiff was detained for a period of about 05 days without intimating what cognizable offence he was likely to commit and without intimating the section of the Indian Penal Code or any other law which requires his detention apart from Sec. 151 Cr.P.C.
Therefore, the arrest and detention of the plaintiff can not even be said to be U/Sec. 151 Cr.P.C.
Hence, the arrest and detention of the plaintiff by defendant no. 1 and/or its officers was illegal. The procedure required under the law was not followed by the authorities.
The proposition of law is very well settled that a citizen is entitled to compensation for violation of fundamental right or for Torts committed by the employees of the state. In this connection, a reference can safely be made to; Rudal Sah Vs. State of Bihar and anr. AIR 1983 SC 1086; People's union of Democratic rights Vs. State of Bihar and others, AIR 1987 SC; Saheli Vs. Commissioner of police, Delhi, AIR 1990 SC 513; M.C. Mehta & Anr. Vs. Union of Nidia & Ors., AIR 1987 SC 1086; Kommineni Sanjeeva Rao Vs. SI of Police and Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 15 Ors. 1997 Crl. L.J. 3109. Medha Patkar Vs. State of M.P. 2008 Cr.L.J. 47 (M.P.) D.B. In Rudal Sah Vs. State of Bihar and anr. (Supra) the petitioner was illegally detained in the prison. He claimed compensation for illegal incarceration. While dealing with the quantum of compensation, payable to the petitioner, for his illegal and unlawful confinement in the jail, the Supreme Court held that though article 32 could not be a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary process of courts, civil and criminal, it was held that money claimed can be agitated in and adjudicated upon in a suit instituted in a court of lowest grade competent to try it. In para-10, Hon'ble Supreme Court held as under:-
"10........ the petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil Court may or may not have upheld his claim. But we have no doubt that if the petitioner filed a suit to recover damages for his illegal detention, a decree for damages would have to be pased in that suit, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this court to pass an order of compensation in favour of the petitioner will be doing mere lip service to his fundamental right to liberty which the State government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this court were limited to passing orders to release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of article 21 is secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights can not be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which acted in the name of public and which present for their protection the powers of the state as a shield. I civilisation is not to perish in this country as it has perished in some others too well known to suffer mention, it is Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 16 necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the state must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers."
Hence, there is no doubt to hold that the plaintiff is entitled to be compensated for his illegal arrest and detention as well as for the flagrant violation of law and use of force against him.
The next question to be decided, is as to what compensation the plaintiff is entitled to ?
The plaintiff is a practicing advocate in Delhi Courts on the date of incident. The Plaintiff had a right to participate in the peaceful demonstration as an extention of the right of freedom of speech and expression as enshrined in Art. 19 (1) (a) & (b) of the Constitution. There was also violation of fundamental rights of personal liberty of the Plaintiff by illegal arrest and detention in jail. The dignity of the plaintiff was lowered and he was humiliated and insulted by the police officers of P.S. Hauz Qazi.
In an action for recovery of damages, in case of personal injuries, the pliantiff would be entitled to pecuniary as well as non-pecuniary damages. Pecuniary damages are in respect of loss suffered by the Plaintiff, which may be the (i) consequential expenses in respect of injuries; (ii) cost of care and medication and (iii) loss of earnings. On the other hand, non-pecuniary damages would cover the damages for pain, suffering loss to amenities and loss of expectation of life.
While awarding the damages, the court has to take into consideration the Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 17 status, trade and profession of the party injured as well as the person who caused the injury. The Court has to consider the humiliation, harassment, the loss of self-esteem of the person injured. In this particular case the plaintiff was/is a practicing advocate in Delhi Courts. It is difficult to compensate him for his bruised feelings and loss of reputation because whenever, the plaintiff would be taking up the case, he would have a feeling that he was unable to protect himself in the very premises where he is residing or professing to fight for the right and dignity of others. What could be the greater insult to the plaintiff when he was arrested and tortured by a policeman in and outside his own work place. It is difficult to arrive at a sum which may actually compensate the plaintiff. However, the plaintiff has claimed the symbolic damages of Rs. 10/- only. It appears that the suit has not been filed by the plaintiff for any monetary gain and the same has been preferred in order to console the deep wounds felt by him by the illegal exercise of state machinery and power. Though the scars received in the psych and soul of the plaintiff can hardly be removed but the faith of the plaintiff can atleast be maintained to believe that the truth triumphs at last and his injuries might not be healed but are atleast understood by the justice delivery system of the country. In this plaint the fight of the plaintiff appears to be for his dignity and establishment of his fundamental rights.
Hence, the court finds no reason to decline the compensation/damages as claimed by the plaintiff.
This issue is accordingly decided in favour of the plaintiff and against the defendants and plaintiff is held to be entitled for symbolic damages/ compensation of Rs. 10/- in his favour as claimed by him in the plaint. All the defendants are jointly and severally held liable to award the plaintiff symbolic Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 18 damages to the tune of Rs. 10/-.
Further there is no rebuttal by defendant no.4 about the allegations of maltreatment by him in the Central Jail, Tihar. The plaintiff has proved on record the communication addressed by him to the defendant no. 4 for supply of his medical record and documents to him, but the defendant no. 4 has not cross examined the plaintiff nor has examined any witness to suggest that the record was ever supplied to plaintiff. The defendant no. 4 has admitted that plaintiff was admitted to the DDU hospital after his illness in jail. Even in his W.S., defendant no. 4 has stated that it has supplied the copy of discharge summary to the plaintiff, but the test report and other documents were not supplied to the plaintiff. It is rightly submitted by the plaintiff that he had great difficulty in his further treatment. The defendant no. 4 was expected to atleast supply the documents or the copy thereof to the plaintiff in order to enable the plaintiff to get further medical treatment.
Relief:-
In view of aforesaid discussion of Court, the suit of the plaintiff is jointly and severally decreed for a decree of damages of Rs.10/- against all the defendants. Defendant no. 4 is further directed to supply copy of the tests reports/treatment of the plaintiff in the DDU hospital during his detention w.e.f. 21/02/1993 to 26/02/1993. Decree sheet be drawn accordingly. File be consigned to record room.
(AJAY PANDEY) SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER (CENTRAL)/DELHI Announced in the open court Dated: 04/09/2012 Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 19 Suit no. 378/06/99 NAGENDRA KISHORE GUPTA, ADVOCATE VS. U.O.I. & Ors.
04/09/2012 Present: Plaintiff in person.
Vide separate judgment of even date, the suit of the plaintiff is jointly and severally decreed for a decree of damages of Rs.10/- against all the defendants. Defendant no. 4 is further directed to supply copy of the tests reports/treatment of the plaintiff in the DDU hospital during his detention w.e.f. 21/02/1993 to 26/02/1993. Decree sheet be drawn accordingly. File be consigned to record room.
(AJAY PANDEY) SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER (CENTRAL)/DELHI Suit no. 378/2006 Nagender Kishore Gupta Vs. U.O.I. 20