Madhya Pradesh High Court
Avijit Sharma vs The State Of Madhya Pradesh on 28 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-JBP:3856
1 WP. No.28981 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
WRIT PETITION No. 28981 of 2024
AVIJIT SHARMA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
______________________________________________________________
Appearance:
Shri Shivam Chhalotre - Advocate for petitioner.
Shri Harpreet Singh Ruprah - Additional Advocate General along with
Shri Akash Malpani-Panel Lawyer for respondents/State.
Shri Anoop Nair, Senior Advocate with Ms. Devyani Singh - Advocate
for respondent no.5
Shri Sampat Upadhyay - Superintendent of Police, Jabalpur, present in
person.
______________________________________________________________
Reserved on : 17.01.2025
Pronounced on : 28.01.2025, through Video Conferencing from Gwalior
______________________________________________________________
ORDER
This petition, under Article 226 of Constitution of India, has been filed seeking following relief(s):
"a. Appropriate writ in the nature of mandamus and prohibito, the Respondents be directed to restrain from baring the Petitioner to transit abroad merely on account of the impugned LOC issued against him.
b. Appropriate Writ in the nature of mandamus, the Respondent Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 2 WP. No.28981 of 2024 No.2 and 5 be directed to ensure no hindrance or inconvenience is caused to the Petitioner in his upcoming travel to USA scheduled on 21.09.2024 via flight EK0529 as well as future transits taken in accordance with law and permission of the competent court. c. Appropriate Writ in the nature of mandamus, the impugned LOC issued against the Petitioner concerning Crime No. 108/21 be quashed for being illegal and Respondent No.1 & No.2 be directed to broadcast the same to the notice of public authority so as to prevent any restrains arising out of impugned LOC in future. d. Appropriate Writ in the nature of mandamus, the Respondent No.1 be directed to enquire the matter concerning illegal issuance of LOC and take strict action against the erring officers.
e. Appropriate Writ in the nature of mandamus, the Respondent No.1 be directed to take deterrent action against the Respondent Nos.2 & 3 for not conferring their timely consent when sought by the officials of Respondent No.5 resulting in illegal detention of Petitioner.
f. Appropriate Writ in the nature of mandamus, the Respondent No.1 and No.4 be directed to assess the loss caused to the Petitioner by his illegal restraint and detention and recover the same from erring officials.
g. Appropriate Writ in the nature of mandamus, the Respondent No.1, No.4 and No.5 be directed to issue proper instructions to its officials for not mechanically discarding the order of the Court of Law if produced expressly allowing the passenger to travel.
h. Appropriate Writ in the nature of mandamus, the Respondent No.1, No.4 be directed to set-up proper communication modes and channels in such emergent matters involving restraint on travel so as to ensure such violations does not repeat in future.
i. Appropriate direction be issued to instituted criminal contempt proceeding against the Respondents for lowering and degrading the authority of Court of Law by willfully contravening and discarding the order dated 29.07.2024 passed in RCT No. 964 of 2022 by the Court of Law.
j. Costs of this Petition be awarded.Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM
NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 3 WP. No.28981 of 2024 k. Any other appropriate relief, which this Hon'ble court may deem fit, be awarded to the Petitioner."
2. The facts of the case, necessary for disposal of present petition, in short, are that petitioner is working in Google Company and presently posted in Hyderabad Office. He is facing trial for offences under Sections 498A, 506 read with Section 34 of IPC as well as under Sections 3 and 4 of Dowry Prohibition Act arising out of FIR registered at Mahila Thana, Jabalpur. A notice under Section 41-A of Cr.P.C. was issued to petitioner and was served at his residence in Hyderabad. After investigation was over, charge-sheet was filed. Thereafter, petitioner appeared before the concerned Magistrate who granted bail to him. Charges have been framed. FIR as well as charge-sheet filed against mother of petitioner was quashed by this Court in M.Cr.C. No.30092/2022. It is the case of petitioner that even after warrant was issued against complainant, she is avoiding to appear before the Trial Court for recording of her evidence and on account of dilatory tactics adopted by the complainant, trial is pending for the last two years for recording of her evidence. It is the claim of petitioner that complainant belongs to very influential family having strong political and bureaucratic contacts and accordingly, she got a Look Out Circular (for short "LOC") issued against petitioner. It is the case of petitioner that the said LOC was neither in his knowledge nor it was ever communicated to him. It is the case of petitioner that he is employed in multi-national projects of the Company and accordingly he is required to visit abroad. Accordingly, he moved an application for grant of permission in RCT No.964/2022. It is the case of petitioner that vide order dated 29.07.2024, the Trial Court granted him permission to travel abroad. In terms of the permission granted to petitioner as well as in the light of fundamental rights guaranteed to him by Constitution Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 4 WP. No.28981 of 2024 of India, petitioner made all necessary arrangements for his journey to USA including return ticket for 08.10.2024. Petitioner reached Hyderabad International Airport at about 02:00 am IST on 20.09.2024 for boarding flight (Emirate Flight No.EK-525). After completing the security check-in, in the immigration check, he was restrained and detained by immigration officers at Hyderabad International Airport. On enquiry, he was informed by the immigration officials that an LOC was issued by SHO, Mahila Thana Jabalpur in Crime No.108/2021 by the order of Superintendent of Police, Jabalpur (M.P.). It is the case of petitioner that for the first time, he came to know about LOC when he was informed by the immigration officers. It is claimed that despite his request, neither copy of LOC was provided to him nor any more details were provided including date and number of said LOC by the immigration officers. Petitioner also provided them a copy of order passed by the Trial Court by which he was permitted to travel abroad. However, the airport authorities denied to allow him to board the plane. The representative of petitioner also personally visited the office of respondent No.3 and respondent No.2, where no responsible person was available. On insistence to at least inform respondent No.3, the staff available there informed that SHO of Mahila Thana is occupied in Ganesh Visarjan and will be informed once she returns. Consequent to this negligent attitude of SHO, Police Station Mahila Thana, Jabalpur, petitioner was not allowed to board the plane. At about 05:00 am, a phone call was received in the immigration office of respondent No.5 and thereafter he was allowed to return to his home. It is claimed that since petitioner is working on a project, therefore, his presence in company's office at USA is necessary and the absence of petitioner may result in termination of his services. Therefore, under compelling circumstances, petitioner booked another Air Ticket for travelling Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 5 WP. No.28981 of 2024 to USA on 21.09.2024 by Flight No.EK0529. It is claimed in the writ petition that even respondent No.2/S.P. Jabalpur expressed his ignorance about the LOC and although he assured for redressal of grievance of petitioner but no order has been passed. It is submitted that conduct of respondents in issuing LOC, smacks of malafide and ulterior motive because once notice under Section 41-A of Cr.P.C. was issued, then, it is clear that there was no possibility of petitioner to run away from the clutches of investigating agency. Furthermore, petitioner appeared before the Trial Court and obtained the bail order. Later on, he was also granted permission to travel abroad and under these circumstances issuance of LOC as well as non-withdrawal of the same at the appropriate time has resulted in utter violation of fundamental rights of petitioner and accordingly present petition has been filed.
3. On 27.09.2024, when this case was taken up for the first time, the case was passed-over by the Court at the request of counsel for the State and after seeking instructions from respondents it was submitted by counsel for the State that on 26.09.2024, Superintendent of Police, Jabalpur, has written a letter to Deputy Director, Bureau of Immigration, East Block VIII, R.K. Puram, New Delhi, pointing out that the LOC issued against petitioner be closed as he is not required. However, considering the fact that petitioner was not allowed to travel on 20.09.2024, notices were issued.
4. Respondents have filed their return and submitted that LOC issued against petitioner has been withdrawn and Bureau of Immigration, Government of India, has also, by its letter dated 27.09.2024, informed that LOC has been completed at their end. It is further submitted that the SHO, namely, Ms. Shabana Parvez, who is presently posted in Katni and at the relevant time was SHO of Mahila Thana of Jabalpur, has been issued show cause notice dated 04.10.2024 and she has been placed under suspension by Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 6 WP. No.28981 of 2024 order dated 10.10.2024. It is further pleaded that the inaction on the part of Ms. Shabana Pervez in not withdrawing the LOC is now being looked into by the authority by holding departmental enquiry in accordance with law, expeditiously. It was further stated that the relief claimed by petitioner in respect of LOC issued in the year 2022 has rendered academic and steps for taking action against concerned person has already been initiated. Thereafter, the case was taken up on 16.01.2025. The reply submitted by respondents was not found to be satisfactory and under the apprehension that respondents/police officers may not take any effective action, this Court directed the Superintendent of Police, Jabalpur, to remain present along with the record of departmental action which according to him is being taken against the erring official.
On 17.01.2025, Shri Sampat Upadhyay - Superintendent of Police, Jabalpur, appeared in person but his response was shocking. He submitted that he has not brought the record of departmental action because it has not attained finality. It was also submitted by Shri Sampat Upadhyay that preliminary enquiry is going on at Katni and record has not been received from the office of S.P. Kani and accordingly the following order was passed:
"Dated: 17-01-2025 Shri Shivam Chhalotre - Advocate for the petitioner. Shri Anoop Nair, Senior Advocate with Ms. Devyani Singh - Advocate for the respondent no.5 Shri Harpreet Singh Ruprah - Additional Advocate General along with Shri Akash Malpani, Panel Lawyer for the respondents/State.
Shri Sampat Upadhyay - Superintendent of Police, Jabalpur, present in person.
"On 16.01.2025, following order was passed by this Court :-Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM
NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 7 WP. No.28981 of 2024 "The Superintendent of Police, Jabalpur shall remain present before this Court tomorrow along with the record of the departmental action which according to him is taken against the erring officers. The Superintendent of Police, Jabalpur is also directed to point out as to whether the petitioner is entitled for compensation for gross violation of his fundamental rights or not and if yes, then what may be the compensation which may be granted to the petitioner.
List this case tomorrow, i.e., on 17.01.2025. The case shall be taken up at 10:30 a.m. irrespective of the serial number at which it might be listed."
It is submitted by Shri Sampat Upadhyay, Superintendent of Police, Jabalpur that departmental enquiry is pending at Katni. Since it is incomplete, therefore, he has not brought the record.
Yesterday, this Court had an apprehension and suspicion that the police will make every attempt to manipulate the record and will make every attempt to violate the valuable fundamental rights of the citizens of this Country as enshrined under Article 21 of the Constitution of India. Katni is hardly 90 Kms away from Jabalpur and the record of the departmental enquiry could have been produced but it has not been produced deliberately which shows that Shri Sampat Upadhyay has no respect for the citizens of the country and he has no respect for the law of the land. Shri Upadhyay should not forget that being a citizen of the country he is also entitled for the protection of law as enshrined under Article 21 of the Constitution of India.
Accordingly, Shri Upadhyay is directed to explain under what circumstances he can violate the orders passed by this Court by not producing the record and whether he can violate the valuable rights of the citizens of India as enshrined under Article 21 of the Constitution of India.
At this stage, it is submitted by Shri Upadhyay that he may be granted two hours time to file reply to the above observations made by this Court as well as to produce the record of the departmental enquiry.
Call this case at 12:45 p.m. today itself.
Shri Sampat Upadhyay shall remain personally present along with the record of the departmental enquiry as well as with reply to Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 8 WP. No.28981 of 2024 the observations made in earlier part of this order. Later On:
17.01.2025.
Arguments heard.
Reserved for orders."
Shri Sampat Upadhyay - Superintendent of Police, Jabalpur, filed his reply tendering his apology for not producing the record of enquiry and mentioned that he would make the record available at 12:45 pm. When the case was taken up at 12:45 pm again, Shri Sampat Upadhyay submitted that the record has not been received and it will be received in 15 minutes. Be that as it may be. Still, the record was not voluntarily produced and at 01:00 pm when the court insisted that the record be produced, then one person who was already standing outside the court room in the gallery with the record and was visible through the window came inside the Court room with the record. Shri Sampat Upadhyay was directed to go through the record and to make a submission as to whether any action has been taken against Ms. Shabana Pervez or not? It is submitted by Shri Sampat Upadhyay that on 04.10.2024 a show-cause notice was issued to her. However, she sought time to file reply by mentioning that she would submit the reply after going through the case diary. Thereafter, on 18.10.2024, her suspension order was revoked. On 19.10.2024, another show-cause notice was issued to Ms. Shabana Pervez who again submitted that she would submit the reply after going through the diary. Thereafter, nothing has been done by the Investigating Officer. Although Shri Sampat Upadhyay had submitted that preliminary enquiry is going on at Katni, but from the show-cause notice dated 04.10.2024 it is clear that the same was issued by Superintendent of Police, Jabalpur, to be served through Superintendent of Police, Katni.
5. Be that whatever it may be.
Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PMNEUTRAL CITATION NO. 2025:MPHC-JBP:3856 9 WP. No.28981 of 2024
6. During the course of the day, it was once again submitted by Shri Sampat Upadhyay that preliminary enquiry is pending at Katni and Additional Superintendent of Police posted in Katni is conducting the preliminary enquiry. Accordingly, Shri Sampat Upadhyaya as well as Shri Harpreet Ruprah, Additional Advocate General were asked to explain as to whether any part of cause of action had arisen within the territorial jurisdiction of Superintendent of Police, Katni or not? It is fairly conceded by Shri Sampat Upadhyay - Superintendent of Police, Jabalpur as well as Shri Ruprah that the FIR was lodged at Jabalpur. LOC was issued from Jabalpur, it has been withdrawn from Jabalpur, charge-sheet has been filed in Jabalpur, permission to travel abroad has been granted by the Court situated at Jabalpur and no part of cause of action has arisen in Katni. However, it was submitted by Shri Sampat Upadhyay that in a routine manner the preliminary enquiry has been transferred to Katni.
7. At this stage, Shri Ruprah- Additional Advocate General, by raising his voice and in a very aggressive manner submitted that even petitioner had not approached the Court with clean hands. He has made false submission before this Court that he was allowed to travel abroad by order dated 29.07.2024. In fact, he was never allowed to travel abroad and he has filed this writ petition on false grounds. However, he fairly conceded that LOC has been withdrawn by respondents themselves. During the course of arguments, the State counsel himself provided copy of order dated 19.09.2024 passed by the Trial Court which mentions that petitioner has submitted tickets etc. and he would appear before the Trial Court immediately after returning from abroad. Shri Ruprah started criticizing the order passed by the Trial Court and submitted that although the trial Court has mentioned that petitioner shall appear before the Trial Court after returning from abroad, but it is not mentioned specifically Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 10 WP. No.28981 of 2024 that permission is granted. Therefore, it is submitted that the trial Court has dealt with the issue in a very casual manner. Although this Court was dealing with a sensitive issue as to whether fundamental right of petitioner, as enshrined under Article 21 of Constitution of India, has been violated and even after voluntarily withdrawing the LOC issued against petitioner, counsel for respondents was arguing in a very aggressive manner and putting the blame on the court of not passing a very clear order of permitting petitioner to travel abroad. Accordingly, Shri Ruprah was directed to read the order dated 19.09.2024 along with the order dated 29.07.2024 and also to point out as to whether petitioner was detained at Hyderabad International Airport on account of violation of terms and conditions of the bail order or he was detained on account of LOC. The manner in which Shri Ruprah was showing aggression, this Court thought it appropriate to stop giving opportunity of hearing to Shri Sampat Upadhyay, Superintendent of Police, Jabalpur and directed Shri Ruprah to confine his arguments to the legal position only. It was fairly conceded by Shri Ruprah that in case of violation of conditions of the bail order, the Police cannot detain a person on its own and the only remedy available to the Police is to move an application for cancellation of bail. He fairly conceded that petitioner was not detained on account of violation of bail order, but he was detained on account of pendency of LOC. Accordingly, Shri Ruprah was directed to point out the provision of law in which the LOC was issued and he was also directed to show that LOC which was issued against petitioner in compliance of which petitioner was detained in Hyderabad International Airport. Shri Ruprah was again and again requested to provide copy of LOC which was issued against petitioner but it was submitted by Shri Ruprah that at present he is not in possession of the same. The whole attempt of the respondents/Authorities was to somehow get Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 11 WP. No.28981 of 2024 the matter adjourned and they did not co-operate during hearing.
8. Be that whatever it may be
9. Once violation of fundamental right of a person is in question and if he was detained at Hyderabad International Airport and was treated like a criminal, then the case cannot be adjourned just for the sake of convenience of respondents and accordingly, this Court proceeded further with the hearing.
10. During the course of arguments, Shri Ruprah provided copy of Office Memorandum (O.M.) dated 22.02.2024 issued by Government of India, Ministry of Home Affairs, Foreigners Division (Immigration Section).
11. It was fairly submitted by Shri Ruprah that Superintendent of Police is the competent authority to make a request for issuance of LOC. At this stage, Shri Ruprah, expressed that he was shocked when he was informed in the morning by Shri Sampat Upadhyay that he has not brought the record of departmental proceedings which according to him have been initiated against Ms. Shabana Pervez. He further submitted that this act of Shri Sampat Upadhyay is unpardonable. He further submitted that in fact the LOC should have been reviewed periodically by Superintendent of Police, Jabalpur as well as by the SHO, Police Station Mahila Thana, Jabalpur but that was not done. It is further submitted that after having issued notice under Section 41-A of Cr.P.C. there was no occasion for the SHO, Mahila Thana, Jabalpur, to have an apprehension that petitioner may flee away. Furthermore, after the bail was granted by the Trial Court therefore, the apprehension of fleeing away which might have been in the mind of SHO should have come to an end and thus she should have withdrawn the LOC but that was not done. After going through the order dated 29.07.2024 and 19.09.2024 passed by the Trial Court, it is submitted by Shri Ruprah that although the words "Petitioner is permitted to travel abroad" are not specifically mentioned in the order dated 19.09.2024 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 12 WP. No.28981 of 2024 but the direction that after returning from abroad petitioner must attend the court is sufficient to draw an inference that petitioner was granted permission to travel abroad and fairly conceded that petitioner was detained at Hyderabad International Airport not on account of violation of bail conditions but it was on account of pendency of LOC.
12. Heard learned counsel for the parties.
Whether LOC issued against petitioner is required to be quashed or not?
13. Since the respondents have already withdrawn LOC and information has also been given by the Bureau of Immigration, Government of India, by its letter dated 27.09.2024 that the request for deletion of LOC against the subject(s) has/have been completed at their end, this Court is of the considered opinion that now as the LOC issued against petitioner has lost its life on 27.09.2024, therefore, no further direction in that regard is required. Look Out Circulars:
14. LOCs are not governed by any specific penal provision. These are issued under administrative and executive orders of Ministry of Home Affairs. The primary object is to prevent an individual from leaving the country to evade legal proceedings and the legal basis of LOCs can be found in different statutes which are meant to regulate immigration and preventing the individuals from absconding during investigation. Some of the Act are like Passports Act, 1967, Foreigners Act, 1946. Cr.P.C. does not provide for issuance of any LOC. However, Police may use its power to arrest an individual for preventing him from absconding during the course of investigation. The guidelines for issuance of LOC are prescribed through OMs issued by Ministry of Home Affairs from time to time. The very purpose of issuing LOC is to create co-ordination between multiple government agencies and it is initiated on the request from an originating agency.
Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PMNEUTRAL CITATION NO. 2025:MPHC-JBP:3856 13 WP. No.28981 of 2024 However, the basic purpose of issuing LOC is to prevent a person from leaving the country so that he may not run away from the clutches of investigating agency.
15. In the present case, notice under Section 41A of Cr.P.C. was served on petitioner. It is not the case of SHO, Mahila Thana, Jabalpur, that petitioner was avoiding his arrest and the notice could not be served on him. The service of notice on petitioner clearly indicates that he was available with the police and was co-operating with the investigation.
16. Be that whatever it may be.
17. Once the charge sheet was filed and petitioner had appeared before the Trial Court and was granted bail, then it is clear that the investigation had already come to an end and further movement of petitioner was to be regulated by the orders of the Court. The Trial Court had granted bail to petitioner and one of the conditions was that he will not leave the country.
18. Now, the only question for consideration is as to whether petitioner was granted permission to leave the country or not?
19. It is well established principle of law that for getting passport issued prior permission of the Court in which the trial is pending is not required but for leaving the limits of the country or in other words for travelling abroad the permission is required. Accordingly, by order dated 29.07.2024 and 19.09.2024 permission was granted to petitioner to travel to USA, then by no stretch of imagination it can be said that on 20.09.2024 when petitioner was stopped at Hyderabad International Airport, he was trying to avoid his arrest or he was trying to run away from the country. In fact, petitioner claims himself to be an employee of Google Company and was required to travel to USA in connection with his service conditions. Petitioner had also submitted his return tickets before the Trial Court and only then the Trial Court had Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 14 WP. No.28981 of 2024 observed that petitioner after returning back from abroad shall appear before the Trial Court.
20. Now, the only question for consideration is as to whether petitioner could have been detained at Hyderabad International Airport and if it has been wrongly done then whether it is in violation of fundamental rights of petitioner or not?
21. Before considering the aforesaid aspect, this Court would like to consider some legal propositions of law:
Right to Privacy
22. The Supreme Court in the case of K.S. Puttaswamy (Privacy-9J.) v. Union of India, reported in (2017) 10 SCC 1 has held as under :
30. Accordingly, the approval of minority view of Subba Rao, J. in Kharak Singh by Maneka Gandhi set the matter at rest on the status of the right to privacy as a fundamental right. It is therefore incorrect to contend that the issue as to the status of the right to privacy is res integra.
* * * *
32. Thus, the status of the right to privacy as a fundamental right has been settled by a catena of judgments, not only of two and three judges, but also by Constitution Benches as well. Thus, A.K. Gopalan being held as bad law by an eleven-Judge Bench in Rustom Cavasjee Cooper the foundation and the basis of M.P. Sharma and Kharak Singh, which were premised on Gopalan, by necessary implication could not be good law and therefore the subsequent Benches have rightly disregarded the same and held that the right to privacy is a fundamental right emanating from Article 21.
33. In view of the above, it is submitted that these judgments which have rightly held the field should not be unsettled as Lord Coke aptly described that "those things which have been so often adjudged ought to rest in peace".
34. Even otherwise, as pointed out hereinabove, the right to privacy has to be delineated and understood in the context of the current Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 15 WP. No.28981 of 2024 advances made by society in the field of technology and communications and not merely from the paradigm of issues of search and seizure arising in M.P. Sharma or personal surveillance issues in Kharak Singh.
* * *
Privacy as a travelling right
412. I have already shown that the right to privacy is as inalienable as the right to perform any constitutionally permissible act. Privacy in all its aspects constitutes the springboard for the exercise of the freedoms guaranteed by Article 19(1). Freedom of speech and expression is always dependent on the capacity to think, read and write in private and is often exercised in a state of privacy, to the exclusion of those not intended to be spoken to or communicated with. A peaceful assembly requires the exclusion of elements who may not be peaceful or who may have a different agenda. The freedom to associate must necessarily be the freedom to associate with those of one's choice and those with common objectives. The requirement of privacy in matters concerning residence and settlement is too well known to require elaboration. Finally, it is not possible to conceive of an individual being able to practise a profession or carry on trade, business or occupation without the right to privacy in practical terms and without the right and power to keep others away from his work.
413. Ex facie, privacy is essential to the exercise of freedom of conscience and the right to profess, practise and propagate religion vide Article 25. The further right of every religious denomination to maintain institutions for religious and charitable purposes, to manage its own affairs and to own and administer property acquired for such purposes vide Article 26 also requires privacy, in the sense of non-interference from the State. Article 28(3) expressly recognises the right of a student attending an educational institution recognised by the State, to be left alone. Such a student cannot be compelled to take part in any religious instruction imparted in any such institution unless his guardian has consented to it.
414. The right to privacy is also integral to the cultural and educational rights whereby a group having a distinct language, script or culture shall have the right to conserve the same. It has also always been an integral part of the right to own property and has been treated as such in civil law as well as in criminal law vide all the offences and torts of trespass known to law.Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM
NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 16 WP. No.28981 of 2024
415. Therefore, privacy is the necessary condition precedent to the enjoyment of any of the guarantees in Part III. As a result, when it is claimed by rights bearers before constitutional courts, a right to privacy may be situated not only in Article 21, but also simultaneously in any of the other guarantees in Part III. In the current state of things, Articles 19(1), 20(3), 25, 28 and 29 are all rights helped up and made meaningful by the exercise of privacy. This is not an exhaustive list. Future developments in technology and social ordering may well reveal that there are yet more constitutional sites in which a privacy right inheres that are not at present evident to us.
Whether there can be reasonable restrictions on right to privacy or not ?
23. The Supreme Court in the case of K. Puttuswami (Supra) has held as under :
259. The Constitution has evolved over time, as judicial interpretation, led to the recognition of specific interests and entitlements. These have been subsumed within the freedoms and liberties guaranteed by the Constitution. Article 21 has been interpreted by this Court to mean that life does not mean merely a physical existence. It includes all those faculties by which life is enjoyed. The ambit of "the procedure established by law" has been interpreted to mean that the procedure must be fair, just and reasonable. The coalescence of Articles 14, 19 and 21 has brought into being a jurisprudence which recognises the interrelationship between rights. That is how the requirements of fairness and non-
discrimination animate both the substantive and procedural aspects of Article 21. These constitutional developments have taken place as the words of the Constitution have been interpreted to deal with new exigencies requiring an expansive reading of liberties and freedoms to preserve human rights under the Rule of Law. India's brush with a regime of the suspension of life and personal liberty in the not too distant past is a grim reminder of how tenuous liberty can be, if the judiciary is not vigilant. The interpretation of the Constitution cannot be frozen by its original understanding. The Constitution has evolved and must continuously evolve to meet the aspirations and challenges of the present and the future. Nor can Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 17 WP. No.28981 of 2024 Judges foresee every challenge and contingency which may arise in the future. This is particularly of relevance in an age where technology reshapes our fundamental understanding of information, knowledge and human relationships that was unknown even in the recent past. Hence as Judges interpreting the Constitution today, the Court must leave open the path for succeeding generations to meet the challenges to privacy that may be unknown today.
260. The impact of the decision in Cooper is to establish a link between the fundamental rights guaranteed by Part III of the Constitution. The immediate consequence of the decision is that a law which restricts the personal liberties contained in Article 19 must meet the test of permissible restrictions contemplated by clauses (2) to (6) in relation to the fundamental freedom which is infringed. Moreover, since the fundamental rights are interrelated, Article 21 is no longer to be construed as a residue of rights which are not specifically enumerated in Article 19. Both sets of rights overlap and hence a law which affects one of the personal freedoms under Article 19 would, in addition to the requirement of meeting the permissible restrictions contemplated in clauses (2) to (6), have to meet the parameters of a valid "procedure established by law"
under Article 21 where it impacts on life or personal liberty. The law would be assessed not with reference to its object but on the basis of its effect and impact on the fundamental rights. Coupled with the breakdown of the theory that the fundamental rights are watertight compartments, the post-Maneka jurisprudence infused the test of fairness and reasonableness in determining whether the "procedure established by law" passes muster under Article 21. At a substantive level, the constitutional values underlying each article in the Chapter on Fundamental Rights animate the meaning of the others. This development of the law has followed a natural evolution. The basis of this development after all is that every aspect of the diverse guarantees of fundamental rights deals with human beings. Every element together with others contributes in the composition of the human personality. In the very nature of things, no element can be read in a manner disjunctive from the composite whole. The close relationship between each of the fundamental rights has led to the recognition of constitutional entitlements and interests. Some of them may straddle more than one, and on occasion several, fundamental rights. Yet others may reflect the core value upon which the fundamental rights are founded. Even at the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 18 WP. No.28981 of 2024 birth of the Constitution, the Founding Fathers recognised in the Constituent Assembly that, for instance, the freedom of speech and expression would comprehend the freedom of the press. Hence the guarantee of free speech and expression has been interpreted to extend to the freedom of the press. Recognition of the freedom of the press does not create by judicial fiat, a new fundamental right but is an acknowledgment of that, which lies embedded and without which the guarantee of free speech and expression would not be complete. Similarly, Article 21 has been interpreted to include a spectrum of entitlements such as a right to a clean environment, the right to public health, the right to know, the right to means of communication and the right to education, besides a panoply of rights in the context of Criminal Law and Procedure in matters such as handcuffing and speedy trial. The rights which have been held to flow out of Article 21 include the following:
(i) The right to go abroad -- Satwant Singh Sawhney v. D. Ramarathnam.
(ii) The right against solitary confinement -- Sunil Batra v. Delhi Admn.
(iii) The right of prisoners against bar fetters -- Charles Sobraj v. Supt., Central Jail.
(iv) The right to legal aid -- M.H. Hoskot v. State of Maharashtra.
(v) The right to speedy trial -- Hussainara Khatoon (1) v. State of Bihar.
(vi) The right against handcuffing -- Prem Shankar Shukla v. Delhi Admn
(vii) The right against custodial violence -- Sheela Barse v. State of Maharashtra.
(viii) The right against public hanging -- Attorney General of India v. Lachma Devi.
(ix) Right to doctor's assistance at government hospitals -- Paramanand Katara v. Union of India.
(x) Right to shelter -- Shantistar Builders v. Narayan Khimalal Totame
(xi) Right to a healthy environment -- Virender Gaur v. State of Haryana.
(xii) Right to compensation for unlawful arrest -- Rudul Sah v. State of Bihar.
(xiii) Right to freedom from torture -- Sunil Batra v. Delhi Admn.Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM
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(xiv) Right to reputation -- Umesh Kumar v. State of A.P.
(xv) Right to earn a livelihood -- Olga Tellis v. Bombay Municipal Corpn.
* * *
290. The constitutional history surrounding the drafting of Article 21 contains an abundant reflection of a deliberate and studied decision of the Constituent Assembly to delete the expression "due process of law" from the draft Constitution when the Constitution was adopted. In the Constituent Assembly, the Drafting Committee chaired by Dr B.R. Ambedkar had included the phrase but it came to be deleted after a careful evaluation of the vagaries of the decision-making process in the US involving interpretation of the due process clause. Significantly, present to the mind of the Framers of our Constitution was the invalidation of social welfare legislation in the US on the anvil of the due process clause on the ground that it violated the liberty of contract of men, women and children to offer themselves for work in a free market for labour. This model evidently did not appeal to those who opposed the incorporation of a similar phrase into the Indian Constitution. Yet the debates in the Constituent Assembly indicate that there was a substantial body of opposition to the deletion of the due process clause, which eventually led Dr B.R. Ambedkar to objectively sum up the rival viewpoints for decision by the House. Evidently "due process" was substituted with the expression "procedure established by law".
"Liberty" was qualified by "personal".
291. Having noticed this, the evolution of Article 21, since the decision in Cooper indicates two major areas of change. First, the fundamental rights are no longer regarded as isolated silos or watertight compartments. In consequence, Article 14 has been held to animate the content of Article 21. Second, the expression "procedure established by law" in Article 21 does not connote a formalistic requirement of a mere presence of procedure in enacted law. That expression has been held to signify the content of the procedure and its quality which must be fair, just and reasonable. The mere fact that the law provides for the deprivation of life or personal liberty is not sufficient to conclude its validity and the procedure to be constitutionally valid must be fair, just and reasonable. The quality of reasonableness does not attach only to the content of the procedure which the law prescribes with reference to Article 21 but to the content of the law itself. In other Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 20 WP. No.28981 of 2024 words, the requirement of Article 21 is not fulfilled only by the enactment of fair and reasonable procedure under the law and a law which does so may yet be susceptible to challenge on the ground that its content does not accord with the requirements of a valid law. The law is open to substantive challenge on the ground that it violates the fundamental right.
292. In dealing with a substantive challenge to a law on the ground that it violates a fundamental right, there are settled principles of constitutional interpretation which hold the field. The first is the presumption of constitutionality which is based on the foundational principle that the legislature which is entrusted with the duty of law- making best understands the needs of society and would not readily be assumed to have transgressed a constitutional limitation. The burden lies on the individual who asserts a constitutional transgression to establish it. Secondly, the courts tread warily in matters of social and economic policy where they singularly lack expertise to make evaluations. Policy-making is entrusted to the State.
** *
325. Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the threefold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.
* * * Test : Principle of proportionality and legitimacy
638. The concerns expressed on behalf of the petitioners arising from the possibility of the State infringing the right to privacy can be met by the test suggested for limiting the discretion of the State:
"(i) The action must be sanctioned by law;
(ii) The proposed action must be necessary in a democratic society Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 21 WP. No.28981 of 2024 for a legitimate aim;
(iii) The extent of such interference must be proportionate to the need for such interference;
(iv) There must be procedural guarantees against abuse of such interference."
The restrictions
639. The right to privacy as already observed is not absolute. The right to privacy as falling in Part III of the Constitution may, depending on its variable facts, vest in one part or the other, and would thus be subject to the restrictions of exercise of that particular fundamental right. National security would thus be an obvious restriction, so would the provisos to different fundamental rights, dependent on where the right to privacy would arise. The public interest element would be another aspect.
640. It would be useful to turn to the European Union Regulation of 2016. Restrictions of the right to privacy may be justifiable in the following circumstances subject to the principle of proportionality:
(a) Other fundamental rights : The right to privacy must be considered in relation to its function in society and be balanced against other fundamental rights.
(b) Legitimate national security interest.
(c) Public interest including scientific or historical research purposes or statistical purposes.
(d) Criminal offences : The need of the competent authorities for prevention investigation, prosecution of criminal offences including safeguards against threat to public security;
(e) The unidentifiable data : The information does not relate to identified or identifiable natural person but remains anonymous.
The European Union Regulation of 2016 refers to "pseudonymisation" which means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person;
(f) The tax, etc. : The regulatory framework of tax and working of financial institutions, markets may require disclosure of private information. But then this would not entitle the disclosure of the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 22 WP. No.28981 of 2024 information to all and sundry and there should be data protection rules according to the objectives of the processing. There may however, be processing which is compatible for the purposes for which it is initially collected.
Whether a person has a right to live with dignity or not?
24. Life has been defined by Supreme Court in the case of Francis Coralie Mullin v. Administrator, Union Territory of Delhi, reported in (1981) 1 SCC 608 has held as under :
7. Now obviously, the right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. In Kharak Singh v. State of U.P. Subba Rao, J. quoted with approval the following passage from the judgment of Field, J. in Munn v. Illinois to emphasize the quality of life covered by Article 21 : "By the term "life" as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world"
and this passage was again accepted as laying down the correct law by the Constitution Bench of this Court in the first Sunil Batra case. Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiorari, this would include the faculties of thinking and feeling. Now deprivation which is inhibited by Article 21 may be total or partial, neither any limb or faculty can be totally destroyed nor can it be partially damaged. Moreover it is every kind of deprivation that is hit by Article 21, whether such deprivation be permanent or temporary and, furthermore, deprivation is not an act which is complete once and for all: it is a continuing act and so long as it lasts, it must be in accordance with procedure established by law. It is therefore clear that any act which damages or injures or interferes with the use of, any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21.
8. But the question which arises is whether the right to life is Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 23 WP. No.28981 of 2024 limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights. Now obviously, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21. It would thus be seen that there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the International Covenant on Civil and Political Rights. This right to live which is comprehended within the broad connotation of the right to life can concededly be abridged according to procedure established by law and therefore when a person is lawfully imprisoned, this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration. The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can he socialise at his free-will with persons outside the jail. But, as part of the right to live with human dignity and therefore as a necessary component of the right to life, he would be entitled to have interviews with the members of his family and friends and no Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 24 WP. No.28981 of 2024 prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and friends can be upheld as constitutionally valid under Articles 14 and 21, unless it is reasonable, fair and just.
25. Thus, life does not mean existence like an animal. It includes right to live with dignity and self esteem.
26. Now the next question for consideration is that whether right to travel abroad is a Fundamental Right/Human Right or not and whether it can be curtailed or not?
27. The Supreme Court in the case of Satwant Singh Sawhney v. D. Ramarathnam, reported in AIR 1967 SC 1836 has held as under :
11. But the Supreme Court of America for the first time had defined the scope of passport in Kent v. Dullas4. There the Secretary of State refused to issue passport to each of the two plaintiffs because of the refusal to file affidavit concerning their membership in the Communist Party. To obtain the passport each of the plaintiffs instituted an action against the Secretary of State in the United States District Court for the District of Columbia. In due course the case went up to the Supreme Court. Mr Justice Douglas described the nature of the passport thus:"A passport not only is of great value
-- indeed necessary -- abroad; it is also an aid in establishing citizenship for purposes of re-entry into the United States". At p.
1212 he went on to say that the document involved more "in part, of course, the issuance of the passport carries some implication of intention to extend the bearer diplomatic protection, though it does no more than "request all whom it may concern to permit safely and freely to pass, and in case of need to give all lawful and protection to this citizen of the United States. But that function of the passport is subordinate. Its crucial function today is control over exit". While in the earlier judgment the emphasis was laid on the request to protect the citizen, this judgment says that the main function of a passport is to control the exit. So a passport, whether in England or in the United States of America serves diverse purposes; it is a "request for protection", it is a document of Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 25 WP. No.28981 of 2024 identity, it is prima facie evidence of nationality, in modem times it not only controls exit from the State to which one belongs, but without it, with a few exceptions, it is not possible to enter another State. It has become a condition for free travel.
12. The want of a passport in effect prevents a person leaving India. Whether we look at it as a facility given to a person to travel abroad or as a request to a foreign country to give the holder diplomatic protection, it cannot be denied that the Indian Government, by refusing a permit to a person residing in India, completely prevents him from travelling abroad. If a person living in India, whether he is a citizen or not, has a right to travel abroad, the Government by withholding the passport can deprive him of his right. Therefore, the real question in these writ petitions is : Whether a person living in India has a fundamental right to travel abroad?
* * * * *
28. A full Bench of the Kerala High Court in Francis Manjooran v. Government of India, Ministry of External Affairs, New Delhi held that the expression "personal liberty" took in the right to travel. M.S. Menon, C.J., observed:
"The right to travel, except to the extent provided in Article 19(1)
(d), is within the ambit of the expression "personal liberty" as used in Article 21...."
Raman Nayar, J., held that the right of free movement whether within the country or across its frontiers, either in going out or in coming in, was a personal liberty within the meaning of Article 21. Gopalan Nambiyar, J., observed that the right to travel beyond India, or at least to cross its frontiers was within the purview of Article 21 and that personal liberty in Article 21 was not intended to bear the narrow interpretation of freedom from physical restraint.
29. Tarkunde, J., of the Bombay High Court in Choithram Verhomal Jethawani v. A.G. Kazi held that the compendious expression "personal liberty" used in Article 21 included in its ambit the right to go abroad and a person could not be deprived of that right except according to procedure established by law as laid down in Article 21. On Letters Patent Appeal a division Bench of the same High Court in A.G. Kazi v. C.V. Jethwani came to the same conclusion. Tambe, C.J., after elaborately considering the relevant case law on the subject, came to the conclusion that the expression "personal liberty" occurring in Article 21 included the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 26 WP. No.28981 of 2024 right to travel abroad and to return to India.
30. A Division Bench of the Mysore High Court in Dr S.S. Sadashiva Rao v. Union of India came to same conclusion. Hegde, J., as he then was, expressed his conclusion thus:
"For the reasons mentioned above, we are of the opinion : (i) the petitioners have a fundamental right under Article 21 to go abroad;
(ii) they also have a fundamental right to come back to this country...."
But a full Bench of the High Court of Delhi in Rabindernath Malik v. Regional Passport Officer, New Delhi came to a contrary conclusion. Dua, Acting C.J., speaking for the Court, was unable to agree, on a consideration of the language of the Constitution and its scheme. He held that "personal liberty" guaranteed by Article 21 was not intended to extend to the liberty of going out of India and coming back. He was mainly influenced by the fact that Article 21 applied to non-citizens also and that the Constitution not having given a limited right to move throughout the territories to non- citizens under Article 19(1)(d) could not have given a higher right to them under Article 21.
31. For the reasons mentioned above we would accept the view of Kerala, Bombay and Mysore High Courts in preference to that expressed by the Delhi High Court. It follows that under Article 21 of the Constitution no person can be deprived of his right to travel except according to procedure established by law. It is not disputed that no law was made by the State regulating or depriving persons of such a right.
28. The Supreme Court in the case of Maneka Gandhi Vs. Union of India reported in (1978) 1 SCC 248 has held that right to travel is a part of Fundamental Right as enshrined under Article 21 of Constitution of India.
29. The Supreme Court in the case of Satish Chandra Verma IPS Vs. Union of India, through its Secretary, decided on 9-4-2019 in C.A. No. 3802 of 2019 has held as under :
The right to travel abroad is an important basic human right for it nourishes independent and self-determining creative character of the individual, not only by extending his freedoms of action, but Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 27 WP. No.28981 of 2024 also by extending the scope of his experience. The right also extends to private life; marriage, family and friendship are humanities which can be rarely affected through refusal of freedom to go abroad and clearly show that this freedom is a genuine human right. (See: Mrs. Maneka Gandhi v. Union of India and Another (1978) 1 SCC 248). In the said judgment, there is a reference to the words of Justice Douglas in Kent v. Dulles 357 US 116 which are as follows:
"Freedom to go abroad has much social value and represents the basic human right of great significance." In the instant case, the appellant who is a member of the All India Services has paid leave to his credit and has applied to go to U.S.A. and France to visit members of his family who are residing there. On an earlier occasion this Court permitted him to travel to U.S.A. in the year 2017 and he promptly came back. We are of the opinion that pendency of departmental proceedings cannot be a ground to prevent the appellant from travelling abroad.
30. The Bombay High Court in the case of Viraj Chetan Shah Vs. Union of India reported in 2024 SCC Online Bom 1195 has held as under ;
"L. CONCLUSIONS
194. For these reasons, we believe the Petitions will succeed in part. We return to the questions we had formulated at the beginning, with our answers against each.
S.No. Question Finding
I Can the right to travel abroad, No
part of the fundamental right to
life under Article 21 of the
Constitution of India, be
curtailed by an executive action
absent any governing statute or
controlling statutory provision?
II Is the entire field of controlling The field is not
entry and exit from India's fully occupied
borders already fully occupied by the
by a statute, viz., the Passports Passports Act.
Act, 1967 and, if so, can the The OMs may
OMs authorise the issuance of validly
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28 WP. No.28981 of 2024
such LOCs de hors the authorise the
Passports Act? issuance of
LOCs in cases
other than the
ones under
consideration
in the cases
before us (for
instance, at the
request of
another agency
or following an
order of a
Court
III Are the OMs per se arbitrary No
and unconstitutional as ultra
viresNo 2 WP-5001-2024
NEUTRAL CITATION NO.
2024:MPHC-IND:29476
Articles 14 and 21 of the
Constitution of India?
IV Is the inclusion of On all these
Chairman/Managing grounds and
Directors/CEOS of all public others as
sector banks in Clause 6(B)(xv) analysed
of the 22 nd February 2021 above, YES
OM, effected by the previous
amendment, bad in law and
liable to be struck down on the
ground of (a) arbitrariness; (b)
unreasonableness; (c) improper
and invalid classification; or (d)
conferment/delegation of
uncanalised and excessive
power?
V Is Clause 6(L) of the 22 nd Is not required
February 2021 OM to the to be decided.
extent it is applied to PSBs
ultra vires Articles 14 and 21 of
the Constitution of India, as
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29 WP. No.28981 of 2024
also arbitrary, unreasonable and
disproportionate inter alia
because the financial interests
of a particular bank or even a
group of banks or all public
sector banks together cannot
reasonably, rationally or
logically be equated with or be
placed on the same level as the
'economic interests of India'?
VI Is Clause 6(J) of the 22nd No
February 2021 OM liable to be
quashed in its entirety as being
ultra vires Articles 14 and 21 of
the Constitution of India, as
also per se and manifestly
arbitrary, unreasonable and
disproportionate because it
allows LOCs to continue until
cancelled instead of providing a
fixed term for them?
VI Are the impugned LOCs--
I
i ultra vires the OMs; Does not arise
ii ultra vires Articles 14 and 21 of Yes
the Constitution of India
(including for infringing a
fundamental right except
according to a procedure
established by law; and a
failure to abide by mandated
minimum procedural norms;
unreasonableness; arbitrariness;
want of proportionality), and
iii Arbitrary, unreasonable and Does not
disproportionate in equating the require to be
financial interest of a public decided.
sector bank with the "the
economic interests of India".
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31. It is not out of place to mention here that aforesaid judgment is under challenge before Supreme Court and following order has been passed in the case of Union of India Vs. Viraj Chetan Shah reported in 2024 SCC Online SC 2136 :
1. Issue notice to the respondents.
2. Issue notice on the interim stay also.
3. Learned counsel, Mr. Manish Tiwari and Mr. Dharmesh S. Joshi accept notice for the respondents-caveators.
4. Pending consideration of these Special Leave Petitions on the interim stay, the private respondents/writ petitioners before the High Court shall seek permission from the High Court in the event they wish to travel abroad.
5. It is needless to observe that if such an application is filed before the High Court in the disposed of writ petitions, the same shall be considered and disposed of expeditiously.
6. The pendency of these Special Leave Petitions before this Court would not come in the way of the petitioners herein formulating a fresh Office Memorandum (OM), if found necessary.
7. List on 14.10.2024.
32. Thus, the right to travel abroad is a Fundamental Right as enshrined under Article 21 of Constitution of India. However, the said right is subject to reasonable restrictions.
Office Memorandum issued by Ministry of Home Affairs for issuance of Look Out Circular (LOC)
33. Clause 6 of Office Memorandum (O.M.) dated 22.02.2024 issued by Government of India, Ministry of Home Affairs, Foreigners Division (Immigration Section) reads as under:
"6. The existing guidelines with regard to issuance of Look Out Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 31 WP. No.28981 of 2024 Circulars (LOC) in respect of Indian citizens and foreigners have been reviewed by this Ministry. After due deliberations in consultation with various stakeholders and in supersession of all the existing guidelines issued vide this Ministry's letters/ O.M. referred to in para 1 above, it has been decided with the approval of the competent authority that the following consolidated guidelines shall be followed henceforth by all concerned for the purpose of issuance of Look Out Circulars (LOC) in respect of Indian citizens and foreigners:-
(A) The request for opening an LOC would be made by the Originating Agency (OA) to the Deputy Director, Bureau of Immigration (Bol), East Block- VIII, R.K. Puram, New Delhi-
110066 (Telefax: 011-26192883, email: [email protected]) in the enclosed Proforma.
(B) The request for opening of LOC must invariably be issued with the approval of an Originating Agency that shall be an officer not below the rank of-
(i) Deputy Secretary to the Government of India; or
(ii) Joint Secretary in the State Government; or
(iii) District Magistrate of the District concerned; or
(iv) Superintendent of Police (SP) of the District concerned; or
(v) SP in CBI or an officer of equivalent level working in CBI; or
(vi) Zonal Director in Narcotics Control Bureau (NCB) or an officer of equivalent level [including Assistant Director (Ops.) in Headquarters of NCB]; or
(vii) Deputy Commissioner or an officer of equivalent level in the Directorate of Revenue Intelligence or Central Board of Direct Taxes or Central Board of Indirect Taxes and Customs; or
(viii) Assistant Director of Intelligence Bureau/Bureau of Immigration (Bol); or Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 32 WP. No.28981 of 2024
(ix) Deputy Secretary of Research and Analysis Wing (R&A W); or
(x) An officer not below the level of Superintendent of Police in National Investigation Agency; or
(xi) Assistant Director of Enforcement Directorate; or
(xii) Protector of Emigrants in the office of the Protectorate of Emigrants or an officer not below the rank of Deputy Secretary to the Government of India; or
(xiii) Designated officer of Interpol; or
(xiv) An officer of Serious Fraud Investigation Office (SFIO), Ministry of Corporate Affairs not below the rank of Additional Director (in the rank of Director in the Government of India); or
(xv) Chairman/ Managing Directors/ Chief Executive of all Public Sector Banks.
(C) LOCs can also be issued as per directions of any Criminal Court in India. In all such cases, request for opening of LOC shall be initiated by the local police or by any other Law Enforcement Agencies concerned so that all parameters for opening LOCs are available.
(D) The name and designation of the officer signing the Proforma for requesting issuance of an LOC must invariably be mentioned without which the request for issuance of LOC would not be entertained.
(E) The contact details of the Originator must be provided in column VI of the enclosed Proforma. The contact telephone/ mobile number of the respective control room should also be mentioned to ensure proper communication for effective follow up action. Originator shall also provide the following additional information in column VI of the enclosed Proforma to ensure proper communication for effective follow up action:-
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(i) Two Gov/NIC email Ids
(ii) Landline number of two officials
(iii) Mobile numbers of at least two officials, one of whom shall be the originator (F) Care must be taken by the Originating Agency to ensure that complete identifying particulars of the person, in respect of whom the LOC is to be opened, are indicated in the Proforma mentioned above. It should be noted that an LOC cannot be opened unless a minimum of three identifying parameters viz. name & parentage, passport number or Date of Birth are available. However, LOC can also be issued if name and passport particulars of the person concerned are available. It is the responsibility of the originator to constantly review the LOC requests and proactively provide additional parameters to minimize harassment to genuine passengers. Details of Government identity cards like PAN Card, Driving License, Aadhaar Card, Voter Card etc. may also be included in the request for opening LOC.
(G) The legal liability of the action taken by the immigration authorities in pursuance of the LOC rests with the originating agency.
(H) Recourse to LOC is to be taken in cognizable offences under IPC or other penal laws. The details in column IV in the enclosed Proforma regarding 'reason for opening LOC' must invariably be provided without which the subject of an LOC will not be arrested/detained.
(I) In cases where there is no cognizable offence under IPC and other penal laws, the LOC subject cannot be detained/arrested or prevented from leaving the country. The Originating Agency can only request that they be informed about the arrival/ departure of the subject in such cases.
(J) The LOC opened shall remain in force until and unless a deletion request is received by Bol from the Originator itself. No LOC shall be deleted automatically. Originating Agency must keep Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 34 WP. No.28981 of 2024 reviewing the LOCs opened at its behest on quarterly and annual basis and submit the proposals to delete the LOC, if any, immediately after such a review. The BOI should contact the LOC.
Originators through normal channels as well as through the online portal. In all cases where the person against whom LOC has been opened is no longer wanted by the Originating Agency or by Competent Court, the LOC deletion request must be conveyed to Bol immediately so that liberty of the individual is not jeopardized.
(K) On many occasions, persons against whom LOCs are issued, obtain Orders regarding LOC deletion/quashing/ suspension from Courts and approach ICPs for LOC deletion and seek their departure. Since ICPs have no means of verifying genuineness of the Court Order, in all such cases, orders for deletion/ quashing/ suspension etc. of LOC, must be communicated to the Bol through the same Originator who requested for opening of LOC. Hon'ble Courts may be requested by the Law Enforcement Agency concerned to endorse/convey orders regarding LOC suspension/ deletion/ quashing etc. to the same law enforcement agency through which LOC was opened.
(L) In exceptional cases, LOCs can be issued even in such cases, as may not be covered by the guidelines above, whereby departure of a person from India may be declined at the request of any of the authorities mentioned in clause (B) above, if it appears to such authority based on inputs received that the departure of such person is detrimental to the sovereignty or security or integrity of India or that the same is detrimental to the bilateral relations with any country or to the strategic and/or economic interests of India or if such person is allowed to leave, he may potentially indulge in an act of terrorism or offences against the State and/or that such departure ought not be permitted in the larger public interest at any given point in time.
(M) The following procedure will be adopted in case statutory bodies like the NCW, the NHRC and the National Commission for Protection of Children's Rights request for preventing any Indian/ foreigner from leaving India. Such requests along with full necessary facts shall be brought to the notice of law enforcement agencies like the police. The Superintendent of Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 35 WP. No.28981 of 2024 Police (S.P.) concerned will then make the request for issuance of an LOC upon an assessment of the situation, and strictly in terms of the procedure outlined for the purpose. The immigration/emigration authorities will strictly go by the communication received from the officers authorized to open LOCs as detailed in clause (B) above.
(N) For effective and better interception of LOC subjects, following guidelines shall be followed by the Originator:-
(i) Specific action to be taken by the Immigration authorities on detection must be indicated in the filled LOC proforma
(ii) In case of any change in parameters/ actions/ investigating officer/ Originator contact details or if any court order is passed in the case, the same should be brought to the notice of the Bol immediately by the originating agency concerned for making necessary changes in the LOC.
(iii) For-LOCs originated on court orders, the concerned PS/-IO should send the identifying parameters of the subject to the Bol as court orders contain only name and parentage of the subject.
(iv) In case an LOC is challenged and stayed by the concerned court or a court issues any directive with regard to the LOC, the originator must inform the Bol urgently and accordingly seek amendment/ deletion of the LOC,
(v) Whenever the subject of LOC is arrested or the purpose of the LOC is over, a deletion request shall be sent by the Originator immediately to the Bol.
(vi) The Originator must respond promptly whenever the subject/ likely match is detected at the ICP. The confirmation regarding the identity of the subject and action to be taken must be informed immediately to the ICP.
(vii) The BOI would form a team to coordinate matters regarding the LOC. This team would contact the LOC issuing agencies to get the status of LOC updated.Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM
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(viii) Each LOC Originating Agency referred in para 6 (B) above will appoint a Nodal officer as indicated in Annexure-I for coordination/updation of LOC status with BoI. The said team of Bol [as mentioned in para 6 (N)
(vii)] would remain in constant touch with this Nodal Officer."
34. Thus, it is clear that it is the duty of the originating agency to review the LOC on quarterly or yearly basis and whenever any order by the Court is passed requiring deletion or suspension of LOC, then it is the duty of the originating agency to immediately inform the immigration office and all the duties arising out of the execution of LOC shall be of the originating agency. Shri Ruprah, Additional Advocate General in a very aggressive manner tried to submit that the petitioner did not give any breathing time to the originating agency to inform the immigration office with regard to permission and the permission was granted by the Trial Court on 19-9-2024 and the Petitioner tried to leave the Country in the night of 20-9-2024, therefore, if the order of the Court could not be communicated to the immigration office, then no liability can be fastened on the originating agency.
35. Considered the submissions made by Counsel for the respondents. As pointed out, it is clearly mentioned in the LOC that it is the duty of the originating agency to inform the immigration department about the order of the Court urgently. Thus, Shri Ruprah was asked to point out the date on which the originating agency got an information about the permission granted by the Trial Court.
36. It is submitted by Shri Ruprah, that the Public Prosecutor did not inform the originating agency.
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37. However, Shri Ruprah was not in a position to inform that whether Ms. Shabana Parvez, ever contacted the Public Prosecutor to find out the status of the case which is pending in the Trial Court or not?
38. Now the question for consideration is that when the State Agencies are being represented by their Public Prosecutors, then whether the originating agency can claim ignorance of order or not?
39. In the present case, two orders were passed by the Trial Court, i.e., dated 29-7-2024 and 19-9-2024. Therefore, it is clear that the originating agency was aware of the fact that an application has already been filed seeking permission to leave the Country well in advance. Therefore, Shri Ruprah was directed to point out that why the originating agency did not keep a track of the Court proceedings and why they did not remain in touch with the Public Prosecutor?
40. When a specific question was put to Shri Ruprah that why the investigating officer, did not try to review the LOC and why did not remain in touch with the Public Prosecutor, then it was submitted by Shri Ruprah that even Superintendent of Police Jabalpur did not comply his direction to keep the record of departmental proceedings available in the light of the direction given by this Court.
41. Thus, it is clear that even Additional Advocate General had expressed his helplessness in getting the orders of the Court executed and indirectly expressed that the investigating agency is functioning as per its own whims and wishes without giving any respect to the orders of the Court.
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42. If this is the situation of Jabalpur Police, then it is the high time for the Director General of Police to decide that whether the Jabalpur Police can be allowed to work as a dictator having no respect for the Fundamental Rights of the Citizens of India as well as no intentions to implement the orders of the Court or not? But one thing is clear that the originating agency after having got the LOC issued, did not do any thing and did not review the necessity of LOC and thus, has miserably failed in discharging its duty even in accordance with OM issued to Ministry of Home Affairs.
Whether violation of Fundamental Right can be compensated in monetary form ?
43. The Supreme Court in the case of Sebastian M. Hongray v. Union of India, reported in (1984) 3 SCC 82 has held as under :
7. Now in the facts and circumstances of the case, we do not propose to impose imprisonment nor any amount as and by way of fine but keeping in view the torture, the agony and the mental oppression through which Mrs C. Thingkhuila, wife of Shri C. Daniel and Mrs C. Vangamla, wife of Shri C. Paul had to pass and they being the proper applicants, the formal application being by Sebastian M. Hongray, we direct that as a measure of exemplary costs as is permissible in such cases, Respondents 1 and 2 shall pay Rs 1 lac to each of the aforementioned two women within a period of four weeks from today.
44. The Supreme Court in the case of Bhim Singh v. State of J & K, reported in (1985) 4 SCC 677 has held as under :
........The manner in which the orders were obtained i.e. at the residence of the Magistrate and the Sub-Judge after office hours, indicates the surreptitious nature of the conduct of the police. The Executive Magistrate and the Sub-Judge do not at all seem to have been concerned that the person whom they were remanding to custody had not been produced before them. They acted in a very Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 39 WP. No.28981 of 2024 casual way and we consider it a great pity that they acted without any sense of responsibility or genuine concern for the liberty of the subject. The police officers, of course, acted deliberately and mala fide and the Magistrate and the Sub-Judge aided them either by colluding with them or by their casual attitude. We do not have any doubt that Shri Bhim Singh was not produced either before the Magistrate on 11th or before the Sub-Judge on 13th, though he was arrested in the early hours of the morning of 10th. There certainly was a gross violation of Shri Bhim Singh's constitutional rights under Articles 21 and 22(2). Earlier we referred to the circumstance that though Shri Khajuria, Inspector General of Police stated that information was sent to Superintendent of Police, Anantnag through the Police Control Room, Srinagar on September 10, 1985, Shri Mir, the Superintendent of Police, Anantnag stated that on September 9, 1985 at 11.30 p.m., he was informed by the Police Control Room, Srinagar that Shri Bhim Singh was required to be apprehended as he was wanted in a case registered under Section 153-A of the Ranbir Penal Code. Nobody cared to explain why it was thought that Bhim Singh would pass through Qazi Kund in Anantnag District on the night of September 9-10. Nobody thought fit to explain how and why the Senior Superintendent of Police, Udhampur came to direct his officers to escort Bhim Singh. It has not been explained how and when the Senior Superintendent of Police, Udhampur came to know of the arrest of Bhim Singh and who required him to arrange for the "safe passage" of Bhim Singh through Udhampur District. To our minds, it appears as if it was expected that Bhim Singh would proceed from Jammu to Srinagar on the intervening night of September 9-10, 1985 as there was a meeting of the Assembly on September 11 and the police were alerted to arrest him when sighted en route to Srinagar and take him back to prevent him from proceeding to Srinagar to attend the session of the Legislative Assembly. We can only say that the police officers acted in a most high-handed way. We do not wish to use stronger words to condemn the authoritarian acts of the police. If the personal liberty of a Member of the Legislative Assembly is to be played with in this fashion, one can only wonder what may happen to lesser mortals ! Police officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to such bizarre acts of lawlessness. Custodians of law and order should not Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 40 WP. No.28981 of 2024 become depredators of civil liberties. Their duty is to protect and not to abduct. However the two police officers, the one who arrested him and the one who obtained the orders of remand, are but minions, in the lower rungs of the ladder. We do not have the slightest doubt that the responsibility lies elsewhere and with the higher echelons of the Government of Jammu and Kashmir but it is not possible to say precisely where and with whom, on the material now before us. We have no doubt that the constitutional rights of Shri Bhim Singh were violated with impunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but suitably and adequately compensated, he must be. That we have the right to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of this Court in Rudul Sah v. State of Bihar and Sebastian M. Hongray v. Union of India. When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case. We direct the first respondent, the State of Jammu and Kashmir to pay to Shri Bhim Singh a sum of Rs 50,000 within two months from today. The amount will be deposited with the Registrar of this Court and paid to Shri Bhim Singh.
45. The Supreme Court in the case of Saheli v. Commr. of Police, reported in (1990) 1 SCC 422 has held as under :
11. An action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death. In case of assault, battery and false imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity, loss of liberty and death. As we have held hereinbefore that the son of Kamlesh Kumari aged 9 years died due to beating and assault by the SHO, Lal Singh and as such she is entitled to get the damages for the death of her son. It is well settled now that the State is responsible for the tortious acts of its employees.
Respondent 2, Delhi Administration is liable for payment of compensation to Smt. Kamlesh Kumari for the death of her son due Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 41 WP. No.28981 of 2024 to beating by the SHO of Anand Parbat Police Station, Shri Lal Singh.
12. It is convenient to refer in this connection the decision in Joginder Kaur v. Punjab State wherein it has been observed that:
"In the matter of liability of the State for the torts committed by its employees, it is now the settled law that the State is liable for tortious acts committed by its employees in the course of their employment."
13. In State of Rajasthan v. Vidhyawati it has been held that: (SCR p. 1007) "Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such as any other employer. The immunity of the Crown in the United Kingdom, was based on the old feudalistic notions of justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could not be sued in his own courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the Common Law immunity never operated in India."
14. In Peoples' Union for Democratic Rights v. Police Commissioner, Delhi Police Headquarters one of the labourers who was taken to the police station for doing some work and on demand for wages was severely beaten and ultimately succumbed to the injuries. It was held that the State was liable to pay compensation and accordingly directed that the family of the deceased labourer will be paid Rs 75,000 as compensation.
15. On a conspectus of these decisions we deem it just and proper to direct the Delhi Administration, respondent 2 to pay compensation to Kamlesh Kumari, mother of the deceased, Naresh a sum of Rs 75,000 within a period of four weeks from the date of this judgment. The Delhi Administration may take appropriate steps for recovery of the amount paid as compensation or part thereof from the officers who will be found responsible, if they are so advised. As the police officers are not parties before us, we state that any observation made by us in justification of this order shall not have any bearing in any proceedings specially criminal prosecution Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 42 WP. No.28981 of 2024 pending against the police officials in connection with the death of Naresh. The writ petitions are disposed of accordingly.
46. The Supreme Court in the case of People's Union for Democratic Rights v. Police Commr., reported in (1989) 4 SCC 730 has held as under :
2. It is an unfortunate case where the police collected poor people and took them to the police station for doing some work. They were asked to work without labour charges. On demand they were beaten and it appears that one of them Ram Swaroop succumbed to the injuries and the body has also been disposed of. Petitioner 2 Patasi, as alleged, was also stripped of her clothes and was thrashed in the police station. The other eight persons namely (1) Dandwa (2) Ram Prasad (3) Jaipal (4) Mahavir (5) Kannu (6) Munsjia (7) Hukka and (8) Pratap were also beaten up rather than they should have been paid for the work they did at the police station.
3. We are happy and we record our appreciation that Mr A.S. Khan, Deputy Commissioner of Police in his affidavit has frankly accepted the atrocity committed by the police officers and it also appears some action has been taken and Station House Officer has been arrested. The matter is being investigated for criminal prosecution. It is unfortunate that the police to whom the citizen can approach for protection and help acted in such a manner.
4. Under the above circumstances we direct that the family of Ram Swaroop who is dead will be paid Rs 50,000 as compensation, which will be invested in some scheme under the Life Insurance Corporation, so that the destitute family may get some amount monthly and the money may also be kept secured. It is also directed that Petitioner 2 Patasi who was stripped of her clothes at the police station, shall be paid Rs 500 as compensation and the 8 other persons namely (1) Dandwa (2) Ram Prasad (3) Jaipal (4) Mahavir (5) Kannu (6) Munsjia (7) Hukka and (8) Pratap, who were taken in the police station without being paid for their work, will be paid Rs 25 each. It is directed that after investigation and inquiry officers who are found guilty, the amount paid as compensation or part thereof may be recovered from these persons out of their salaries after giving them opportunity to show cause.Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM
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5. This order will not prevent any lawful action for compensation. But in case some compensation is ordered by a competent court, this will be given credit to.
47. The Supreme Court in the case of Rudul Sah v. State of Bihar, reported in (1983) 4 SCC 141 has held as under:
9. It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of courts, civil and criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a Court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right. The instant case is illustrative of such cases.
The petitioner was detained illegally in the prison for over 14 years after his acquittal in a full-dressed trial. He filed a habeas corpus petition in this Court for his release from illegal detention. He obtained that relief, our finding being that his detention in the prison after his acquittal was wholly unjustified. He contends that he is entitled to be compensated for his illegal detention and that we ought to pass an appropriate order for the payment of compensation in this habeas corpus petition itself.
10. We cannot resist this argument. We see no effective answer to it save the stale and sterile objection that the petitioner may, if so advised, file a suit to recover damages from the State Government. Happily, the State's counsel has not raised that objection. 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 files a suit to recover damages for his illegal detention, a decree for damages would have to be passed 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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 44 WP. No.28981 of 2024 the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of 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 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot 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 act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others too well known to suffer mention, it is 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.
48. The Supreme Court in the case of D.K Basu Vs. State of W.B. reported in AIR 1997 SC 610 has held as under :
9. The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the citizens. Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-
up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law-enforcing officers is a matter of deep concern in a free society. These petitions raise important issues concerning police powers, including whether monetary compensation should be awarded for established infringement of the Fundamental Rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental.
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10. "Torture" has not been defined in the Constitution or in other penal laws. "Torture" of a human being by another human being is essentially an instrument to impose the will of the "strong" over the "weak" by suffering. The word torture today has become synonymous with the darker side of human civilisation.
"Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself."
-- Adriana P. Bartow
11. No violation of any one of the human rights has been the subject of so many Conventions and Declarations as "torture" -- all aiming at total banning of it in all forms, but in spite of the commitments made to eliminate torture, the fact remains that torture is more widespread now than ever before. "Custodial torture" is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward -- flag of humanity must on each such occasion fly half-mast.
12. In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma, a person experiences is beyond the purview of law.
13. "Custodial violence" and abuse of police power is not only peculiar to this country, but it is widespread. It has been the concern of international community because the problem is universal and the challenge is almost global. The Universal Declaration of Human Rights in 1948, which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights, stipulates in Article 5 that:"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Despite the pious declaration the crime continues unabated, though every civilised nation shows its concern and takes steps for its eradication.
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40. Ubi jus, ibi remedium.--There is no wrong without a remedy. The law wills that in every case where a man is wronged and endamaged he must have a remedy. A mere declaration of invalidity of an action or finding of custodial violence or death in lock-up, does not by itself provide any meaningful remedy to a person whose fundamental right to life has been infringed. Much more needs to be done.
41. Some punitive provisions are contained in the Penal Code, 1860 which seek to punish violation of right to life. Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a corrupt or malicious motive. Sections 330 and 331 provide for punishment of those who inflict injury or grievous hurt on a person to extort confession or information in regard to commission of an offence. Illustrations (a) and (b) to Section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330, therefore, directly makes torture during interrogation and investigation punishable under the Penal Code, 1860. These statutory provisions are, however, inadequate to repair the wrong done to the citizen. Prosecution of the offender is an obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, not by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience.
42. Article 9(5) of the International Covenant on Civil and Political Rights, 1966 (ICCPR) provides that "anyone who has been the victim of unlawful arrest or detention shall have enforceable right to compensation". Of course, the Government of India at the time of its ratification (of ICCPR) in 1979 and made a specific reservation to the effect that the Indian legal system does not recognise a right to compensation for victims of unlawful arrest or detention and thus did not become a party to the Covenant. That reservation, however, has now lost its relevance in view of the law laid down by this Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 47 WP. No.28981 of 2024 Court in a number of cases awarding compensation for the infringement of the fundamental right to life of a citizen. (See with advantage Rudul Sah v. State of Bihar; Sebastian M. Hongray v. Union of India; Bhim Singh v. State of J&K; Saheli, A Women's Resources Centre v. Commr. of Police.) There is indeed no express provision in the Constitution of India for grant of compensation for violation of a fundamental right to life, nonetheless, this Court has judicially evolved a right to compensation in cases of established unconstitutional deprivation of personal liberty or life. (See Nilabati Behera v. State)
43. Till about two decades ago the liability of the Government for tortious acts of its public servants was generally limited and the person affected could enforce his right in tort by filing a civil suit and there again the defence of sovereign immunity was allowed to have its play. For the violation of the fundamental right to life or the basic human rights, however, this Court has taken the view that the defence of sovereign immunity is not available to the State for the tortious acts of the public servants and for the established violation of the rights guaranteed by Article 21 of the Constitution of India. In Nilabati Behera v. State the decision of this Court in Kasturilal Ralia Ram Jain v. State of U.P. wherein the plea of sovereign immunity had been upheld in a case of vicarious liability of the State for the tort committed by its employees was explained thus :
(SCC p. 761, para 14) "In this context, it is sufficient to say that the decision of this Court in Kasturilal upholding the State's plea of sovereign immunity for tortious acts of its servants is confined to the sphere of liability in tort, which is distinct from the State's liability for contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the constitutional scheme, and is no defence to the constitutional remedy under Articles 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights, when the only practicable mode of enforcement of the fundamental rights can be the award of compensation. The decisions of this Court in Rudul Sah and others in that line relate to award of compensation for contravention of fundamental rights, in the constitutional remedy under Articles 32 and 226 of the Constitution. On the other hand, Kasturilal related to the value of goods seized and not returned to the owner due to the fault of government servants, the claim being of damages for the tort of Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 48 WP. No.28981 of 2024 conversion under the ordinary process, and not a claim for compensation for violation of fundamental rights. Kasturilal is, therefore, inapplicable in this context and distinguishable."
44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.
45. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim -- civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family.
46. In Nilabati Behera case, it was held : (SCC pp. 767-68, para 32) "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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 49 WP. No.28981 of 2024 Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortious act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve 'new tools' to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law. 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 of 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.' "
47. A similar approach of redressing the wrong by award of monetary compensation against the State for its failure to protect the fundamental rights of the citizen has been adopted by the Courts of Ireland, which has a written constitution, guaranteeing fundamental rights, but which also like the Indian Constitution contains no provision of remedy for the infringement of those rights. That has, however, not prevented the Courts in Ireland from developing remedies, including the award of damages, not only against individuals guilty of infringement, but against the State itself.
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54. Thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.
49. The Supreme Court in the case of State of Maharashtra v. Ravikant S. Patil reported in (1991) 2 SCC 373 has held as under :
4. Having gone through the entire record we are unable to disagree with some of the findings of the High Court regarding the handcuffing and we do not propose to interfere with the order directing the payment of compensation. But we think that Shri Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 51 WP. No.28981 of 2024 Prakash Chavan, Inspector of Police, appellant 2 herein, cannot be made personally liable. He has acted only as an official and even assuming that he has exceeded his limits and thus erred in taking the undertrial prisoner handcuffed, still we do not think that he can be made personally liable. In Rudul Sah v. State of Bihar, this Court directed the State to pay compensation to the person illegally detained. The High Court also having noted this decision observed that the court can order payment of compensation either by the State or persons acting on behalf of the State. Having so observed, the High Court, however, held Shri Prakash Chavan, Inspector of Police personally liable and directed him to pay the compensation.
We are of the view that in the instant case also a similar order as one passed in Rudul Sah case, will meet the ends of justice. Then the High Court has also directed that an entry should be made in his service record to the effect that he was guilty of violation of fundamental right of an undertrial prisoner. So far this direction is concerned, it is submitted that such an adverse entry cannot straightway be made without giving the Inspector of Police, appellant 2 herein, an opportunity of being heard. We find considerable force in this submission and accordingly we modify the order of the High Court as follows.
5. The compensation of Rs 10,000 as awarded by the High Court, shall be paid by the State of Maharashtra. The concerned authorities may, if they think it necessary, hold an enquiry and then decide whether any further action has to be taken against Shri Prakash Chavan, Inspector of Police. Subject to the above directions, this appeal is disposed of.
50. The Supreme Court in the case of Nilabati Behera v. State of Orissa, reported in (1993) 2 SCC 746 has held as under :
16. Lord Hailsham while dissenting from the majority regarding the liability for compensation in that case, concurred with the majority opinion on this principle and stated at page 687, thus:
"... I am simply saying that, on the view I take, the expression 'redress' in sub-section (1) of Section 6 and the expression 'enforcement' in sub-section (2), 'although capable of embracing damages where damages are available as part of the legal consequences of contravention, do not confer and are not in the context capable of being construed so as to confer a right of Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 52 WP. No.28981 of 2024 damages where they have not hitherto been available, in this case against the State for the judicial errors of a judge."
Thus, on this principle, the view was unanimous, that enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention.
17. It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights.
18. A useful discussion on this topic which brings out the distinction between the remedy in public law based on strict liability for violation of a fundamental right enabling award of compensation, to which the defence of sovereign immunity is inapplicable, and the private law remedy, wherein vicarious liability of the State in tort may arise, is to be found in Ratanlal & Dhirajlal's Law of Torts, 22nd Edition, 1992, by Justice G.P. Singh, at pages 44 to 48.
19. This view finds support from the decisions of this Court in the Bhagalpur Blinding cases : Khatri (II) v. State of Bihar and Khatri (IV) v. State of Bihar wherein it was said that the court is not helpless to grant relief in a case of violation of the right to life and Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 53 WP. No.28981 of 2024 personal liberty, and it should be prepared "to forge new tools and devise new remedies" for the purpose of vindicating these precious fundamental rights. It was also indicated that the procedure suitable in the facts of the case must be adopted for conducting the inquiry, needed to ascertain the necessary facts, for granting the relief, as the available mode of redress, for enforcement of the guaranteed fundamental rights. More recently in Union Carbide Corpn. v. Union of India Misra, CJ. stated that "we have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future ... there is no reason why we should hesitate to evolve such principle of liability ...". To the same effect are the observations of Venkatachaliah, J. (as he then was), who rendered the leading judgment in the Bhopal gas case with regard to the court's power to grant relief.
20. We respectfully concur with the view that the court is not helpless and the wide powers given to this Court by Article 32, which itself is a fundamental right, imposes a constitutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available. The power available to this Court under Article 142 is also an enabling provision in this behalf. The contrary view would not merely render the court powerless and the constitutional guarantee a mirage, but may, in certain situations, be an incentive to extinguish life, if for the extreme contravention the court is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence, and recovery of damages under private law, by the ordinary process. If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have-nots, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate.
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51. Thus, it is clear that in case of violation of Fundamental Rights, the Constitutional Courts can award monetary compensation with liberty to avail statutory remedy under Civil Law for claiming compensation.
Conclusion
52. If the facts and circumstances of the case are considered, then it is clear that the Trial Court had granted permission to the Petitioner to travel abroad and on the very same day, the petitioner was detained at Hyderabad International Airport in execution of LOC issued by Jabalpur Police. The Petitioner had already surrendered before the Trial Court and he was granted bail. Once, the Petitioner had appeared before the Trial Court and had obtained bail, therefore, it is clear that Petitioner was not running away from the clutches of the investigating agency and there was no possibility of fleeing away from the Court requiring issuance of LOC. Further more, the LOC was issued at the stage of investigation and once, the petitioner had appeared before the Trial Court and he was granted bail, then the Jabalpur Police should have withdrawn the LOC but nothing was done. Further more, it is not the case of the respondents that they were periodically reviewing the necessity of LOC and for any good or bad reason, the right of the petitioner to travel abroad was required to be curtailed.
53. The facts of this case have already been discussed in detail. Although it is submitted by counsel for the State that on the next date petitioner went to USA but this Court is not concerned with the fact as to whether petitioner was ultimately allowed to travel to USA or not? The basic concern of this Court is as to whether the fundamental right of petitioner was violated on 20.09.2024 when he was detained by the immigration officials at Hyderabad International Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 55 WP. No.28981 of 2024 Airport.
54. This Court, after considering various judgments of Supreme Court, has already come to a conclusion that right to travel abroad is a fundamental right but the said fundamental right is not absolute and is subject to reasonable restrictions and can be curtailed by following procedure laid down in law. This Court has already considered and held that LOC which was issued against petitioner was illegally kept pending and should have been withdrawn by the Investigating Officer through Superintendent of Police, Jabalpur, as petitioner was taken in judicial custody and he was granted bail and petitioner never absented himself from the Trial Court and subsequently he was also granted permission to travel abroad. This Court has also come to the conclusion that violation of fundamental right of an individual would invite criminal action, civil liability as well as departmental action against the wrongdoer. Further more, in the present case, apart from violation of Fundamental Right as enshrined under Article 21 of Constitution of India, the respondents have also violated the Fundamental Right of the Petitioner as enshrined under Article 19 of Constitution of India, as the petitioner was intending to go abroad in connection with his duties. However, the manner in which the things were subsequently manipulated by the respondents coupled with the fact that the respondents went to the extent of criticizing the Trial Court by alleging that specific order of granting permission to travel abroad was not passed, therefore, it is held that the State Government must compensate petitioner and, in exercise of power under Article 226 of Constitution of India, it is directed that the State Government shall pay a compensation of Rs.5,00,000/- (Rupees five lacs only) to the petitioner within a period of one month from today. The compensation shall be deposited in the Registry of this Court and petitioner shall be free to withdraw the same. It is Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 56 WP. No.28981 of 2024 made clear that in case if the compensation amount is not deposited within a period of one month, then the Registrar General shall not only initiate proceedings for recovery of compensation amount, but shall also register a Contempt Petition for contempt of this Court under Article 215 of Constitution of India and Sections 10 and 12 of the Contempt of Courts Act against respondents.
55. The State Govt. shall recover the same from the Salary of Ms. Shabana Parvez and the erring Superintendent of Police, Jabalpur. Further, liberty is extended to petitioner that if he is not satisfied with the compensation amount awarded by this Court, then he may institute civil suit for recovery of damages.
56. Before concluding, the conduct of the police officers during the pendency of this writ is also required to be considered. Whether the Superintendent of Police Jabalpur, Superintendent of Police Katni and Investigating Officer have tried to play fraud on the Court by projecting that preliminary enquiry has been instituted and thereafter did not do any thing to illegally protect the investigating officer ?
57. Violation of Fundamental Right would invite prosecution of the wrongdoer apart from compensation in monetary form. Therefore, the stand which was taken by the respondents in their reply, that departmental enquiry has been initiated against the then S.H.O., Police Station Mahila Thana, Jabalpur was in accordance with law. However, the subsequent conduct of Superintendent of Police, Jabalpur in giving undue protection to Ms. Shabana Parvez is not only contrary to law but it is a clear attempt on the part of the police officers to play fraud on the Court. The real intention of the respondents is not to punish the wrongdoer and their attempt in filing false and misleading return in the Court was with full knowledge that they are not Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 57 WP. No.28981 of 2024 intending to take any action against Ms. Shabana Parvez. By adopting such tactics, in fact the police department is making every sincere effort to destroy its own reputation, credibility in the eyes of the Civilized Society and the Courts. The police department is meant for maintaining law and order, but unfortunately, now the Jabalpur Police is trying its level best to lose its credibility and efficiency by following the path of Police Terrorism. On multiple occasions, it was found that the police department by claiming itself to be a disciplined force in uniform, had rejected the candidature of persons for their appointment in police department on the ground that they are not of impeachable reputation. Even the candidatures of those candidates, who had committed some offence during their minority and inspite of clear provision that it would not be a disqualification, the police department is regularly rejecting their candidatures in utter violation of provisions of Section 24 of Juvenile Justice (Care and Protection) Act, 2015. But unfortunately, once a person is appointed in the police department, then the respondents are encouraging indiscipline, inefficiency and depotism in the police department. This dual criteria which has been adopted by the Police Department is beyond understanding and tolerance.
58. Thus, it is held that the Superintendent of Police, Jabalpur has played fraud on the Court by wrongly projecting that they are taking sincere action against Ms. Shabana Parvez, but thereafter, they are extending illegal protection to her.
Whether Preliminary Enquiry can be done at Katni whereas the entire cause of action has arisen within the territorial jurisdiction of Jabalpur Police ?
59. It was submitted by Shri Sampat Upadhyaya, Superintendent of Police, Jabalpur, that preliminary enquiry is being done in Katni. Accordingly, Shri Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 58 WP. No.28981 of 2024 Upadhyaya, Superintendent of Police, Jabalpur and Shri Ruprah, Additional Advocate General, were directed to address this Court that whether the Departmental Enquiry is to be conducted at a place where the cause of action has arisen or where the delinquent officer is posted? 60 It is submitted by Shri Ruprah that there is no specific guidelines in M.P. Civil Services (Classification, Control and Appeal) Rules, 1966.
61. In the present case, the entire cause of action has arisen within the territorial jurisdiction of Superintendent of Police, Jabalpur. The Superintendent of Police is the disciplinary authority as Ms. Shabana Parvez had committed misconduct while She was posted in Mahila Thana, Jabalpur. Merely because Ms. Shabana Parvez was subsequently transferred to Katni, would not give any jurisdiction to Superintendent of Police, Katni to act as a disciplinary officer. The Show cause notice dated 4-10-2024 was issued by Superintendent of Police Jabalpur but when and why the Preliminary enquiry was transferred to Katni has not been explained by Shri Sampat Upadhyaya, Superintendent of Police Jabalpur. Thus, it is clear that the Police Department is taking care of convenience of Ms. Shabana Parvez and inspite of the fact that not only the entire cause of action arose in Jabalpur and the entire record is in Jabalpur, but still in order to avoid any inconvenience to Ms. Shabana Parvez transferred the departmental proceedings to Katni. Further more, it is clear that enquiry officer and the Superintendent of Police Katni also ensured that no action is taken against Ms. Shabana Parvez and kept the preliminary enquiry pending without any rhyme or reason.
Whether direction can be given to the Director General Of Police, State of Madhya Pradesh to take action against Aditya Pratap Singh, the then Superintendent of Police, Jabalpur, Shri Sampat Upadhyaya, present Superintendent of Police, Superintendent of Police Katni, the Additional Superintendent of Police, Katni who is conducting Preliminary Enquiry and the investigating officer Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 59 WP. No.28981 of 2024
62. The Supreme Court in the case of Nilabati Behera (Supra) has held as under :
34. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting "compensation" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer 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.
(Underline Supplied)
63. The conduct of Shri Aditya Pratap Singh, the then Superintendent of Police Jabalpur, conduct of Shri Sampat Upadhyaya, present Superintendent of Police Jabalpur, conduct of present Superintendent of Police Katni, Additional Superintendent of Police, Katni who is conducting the Preliminary Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 60 WP. No.28981 of 2024 Enquiry has already been mentioned in the previous paragraphs.
64. It is clear that these officers are also liable to be prosecuted either under Criminal Law or under Service Jurisprudence or both. In fact an impression was also given by respondents by filing false affidavit that they are taking disciplinary action against Ms. Shabana Parvez, but that reply was with a clear intention to play fraud on the Court and in fact every effort is being made not only to protect her but also to keep her convenience in mine. Therefore, the Director General of Police is directed to review the entire matter and shall take a decision that whether the above mentioned police officers are required to be prosecuted under criminal law/Service jurisprudence or not and shall submit his report before the Registrar General of this Court latest by 5th of March, 2025.
Whether revocation of Suspension Order of Ms. Shabana Parvez, the then Investigating officer is proper or not specifically when She is not co- operating in Preliminary Enquiry ?
65. It is submitted by Shri Sampat Upadhyaya, Superintendent of Police, Jabalpur, that Enquiry officer issued a show cause notice to Ms. Shabana Parvez on 4-11-2024 who sought time to file reply. Thereafter her suspension order was revoked on 18-11-2024. Thereafter another show cause notice was issued on 19-11-2024, and Ms. Shabana Parvez again replied that She would file her reply after going through the case diary. Shri Upadhyaya fairly conceded that thereafter, nothing was done by the enquiry officer. Thus, it is clear that not only the enquiry officer is negligent in discharging his duties, but even the suspension order of Ms. Shabana Parvez was revoked inspite of the fact that She is not co-operating with the enquiry officer. Thus, it is clear that suspension order of Ms. Shabana Parvez was nothing but it was a camaflouge done with an intention to file a misleading affidavit that the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:3856 61 WP. No.28981 of 2024 respondents are serious in the matter. If the respondents were not interested in taking any action on account of utter violation of Fundamental Rights of the Petitioner, then they should have filed a reply that they would not take any action against the wrongdoer. However, from the conduct of the respondents, it is clear that although they never had any intention to take action against the wrongdoer i.e., the investigating officer, but in order to falsely show their sincerity they filed false affidavit that they are taking action on account for utter violation of Fundamental Rights. Further more, when this Court called the file of enquiry, then every attempt was made to suppress the same and only after a strict view was taken by this Court, the file the brought. This action of the Superintendent of Police Jabalpur was clearly with a view to protect the Superintendent of Police, Katni who un-authorizedly took over the preliminary enquiry in his hand and thereafter ensured that no action is taken. Similarly, the enquiry officer, also did not do anything. It is really shocking that on one hand the police officers were ashamed of facing Court but at the same time, they did not hesitate in working against the law of the land.
66. The police officers must not forget that protection of Fundamental Rights of Citizens of India is essential for dignified existence of mankind and civilized society.
67. However, it appears that Police Department is not ready to correct itself and doesnot hesitate in working contrary to law and even they went to the extent of making an attempt to play fraud on the Court.
68. Therefore, under the facts and circumstances of this case, this Court is of the considered opinion, that when Ms. Shabana Parvez is not co-operating in the preliminary/departmental enquiry, then revocation of her suspension order was not proper.
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69. Further in the light of the findings given by this Court in the previous paragraphs, the holding of preliminary enquiry is no more required.
70. Thus, the Director General of Police is directed to immediately institute a Departmental Enquiry against Ms. Shabana Parvez, the then investigating officer by appointing a responsible officer as enquiry officer not below the rank of Superintendent of Police. The Director General of Police is also directed to give a specific finding that whether Departmenal Enquiry against Superintendent of Police, Jabalpur under whose orders the LOC was issued and Superintendent of Police, Jabalpur who failed to review the LOC inspite of the fact that the petitioner was appearing before the Trial Court is essential or not? If he comes to a conclusion that no departmental enquiry is required then he shall pass a reasoned order after giving a specific finding with regard to role of Superintendent of Police as mentioned in OM issued by Ministry of Home Affairs with regard to issuance and review of LOC. It is directed that any police officer posted whether presently or on previous occasion in District Jabalpur or Katni should not be appointed as enquiry officer. The Departmental Enquiry be concluded within a period of 6 months from today.
71. The Director General of Police is also directed to keep a copy of this order in the Service book of Ms. Shabana Parvez, the then investigating officer, Shri Sampat Upadhyaya, the Superintendent of Police and all other erring police officers and submit his report in this regard before the Registrar General of this Court within a period of one month from today.
Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PMNEUTRAL CITATION NO. 2025:MPHC-JBP:3856 63 WP. No.28981 of 2024
72. With aforesaid observations, the petition stands Allowed.
(G.S. Ahluwalia) Judge (and) Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 1/28/2025 6:11:46 PM