Orissa High Court
Prabir Kumar Das vs State Of Orissa And Ors. on 20 August, 2007
Equivalent citations: 2007(II)OLR435, 2008 CRI. L. J. (NOC) 5 (ORI.), 2008 (1) AJHAR (NOC) 238 (ORI.)
Bench: Chief Justice, Indrajit Mahanty
JUDGMENT A.K. Ganguly, C.J.
1. The writ petitioner Prabir Kumar Das is an Advocate and claims to be a human right activist. He has filed this writ petition praying for a direction upon the State of Orissa to pay compensation of Rs. 10 lakhs to the victim Pratap Naik in the facts and circumstances mentioned herein below:
2. Pratap Naik was an accused alongwith others in Sessions Trial No. 47 of 1989 in the Court of Sessions Judge, Phulbani and was found guilty under Sections 147/337/323 read with Section 149, IPC. He was also found guilty under Section 302, IPC. On account of conviction on all these counts, Pratap Naik was sentenced to undergo R.I. for two years, six years, one year and life respectively and the sentences were directed to run concurrently. In the present case this Court is not concerned with the sentences which were awarded against other accused persons. Thereafter an appeal registered as Criminal appeal No. 5 of 1990 was filed by Pratap Naik and others jointly in this Court while all of them were in jail. During pendency of that appeal, Pratap Naik was granted bail by this Court by its order dated 31.1.1991, but he could not file the bail-bond in view of his financial stringency. Ultimately this Hon'ble Court was pleased to set aside the conviction and sentence of Pratap Naik and all others by a judgment and order dated 31.10.1994. The said judgment and order of this Court was sent to the Sessions Judge, Phulbani vide a memo dated 8.12.1994 and the same was received in the office of the Sessions Judge, Phulbani on 17.1.1995. But, Pratap Naik was not released from custody though he was acquitted by this Hon'ble Court vide its judgment and order dated 31.10.1994. Ultimately Pratap Naik, was released from illegal detention by order of the Sessions Judge, Phulbani only on 22.1.2003. Therefore, Pratap was kept in detention illegally from 1.11.1994 till 21.1.2003, which is for more than eight years. About said illegal detention of Pratap Naik, Sessions Judge, Phulbani passed an order on 25.1.2003 to the following effect:
The case record is placed before me today on my return to headquarters. Perused the orders passed by the C.J.M., Phulbani in charge of Sessions Judge on 22.1.2003 and 23.1.2003.
I have examined the case record and the relevant entries in R.5 and R.23. It is clear that the detention of Pratap Naik was illegal. It is further clear that the appellate order from the Hon'ble High Court was received in this Court on 17.11.1995. So release order should have been issued to the jail on that day. Since there is gross illegality in the judicial record, the matter should be enquired into thoroughly and the person responsible for committing such illegality should be punished. Office to examine the manner and put up the same before me on 27.1.2003 on the administrative side for further action.
Sd/ Sessions Judge.
3. The petitioner being a human rights activists states that he took up the cause of Pratap Naik as Pratap was not aware of his right and because of his poverty and ignorance he was not in a position to assert his human rights which are fundamental rights under the Constitution. The petitioner claims to have initially written a letter to the Hon'ble Chief Justice of this Court praying for an inquiry into the illegal detention of Pratap Naik and seeking compensation for the same. That letter was received by the Hon'ble Chief Justice on 14.1.2005, but nothing happened. The petitioner thereafter claimed to have met Pratap Naik and his parents at Ghimuhani and came to know about his suffering and the plight of his family. The petitioner has annexed the photographs about his meeting with Pratap Naik. The petitioner thereafter sent a petition dated 18.1.2005 to the Hon'ble Chief Justice of Supreme Court praying for initiation of some inquiry and seeking compensation for the victim. The petitioner also addressed a letter to the Assistant Registrar (PIL Cell), Supreme Court of India on the aforesaid subject. The petitioner was informed by the Registry of the Hon'ble Supreme Court on 18.3.2005 that nothing can be done on the petition written by him as the same was not made under the PIL guidelines and the petitioner was advised to move the High Court of Orissa. Thereafter the petitioner on 23.3.2005 filed a PIL before this Hon'ble Court which was numbered as W.P.(C) No. 4149 of 2005 seeking compensation of Rs. 10 lakhs and for direction of an inquiry for the illegal detention of Pratap Naik for the purpose of fixing the responsibilities on the erring persons. The said writ petition was dismissed by this Court on 12.4.2005, inter alia on the ground that the petitioner cannot maintain the petition as he is a stranger. Ultimately against the said order of this Hon'ble Court, an SLP was filed by the petitioner before the Hon'ble Supreme Court and the SLP was numbered as SLP (Civil) No. 12943 of 2005. The SLP came up for hearing before the Hon'ble Supreme Court and the Hon'ble Supreme Court was pleased to pass an order on 18.7.2005 whereby the SLP was dismissed, but the petitioner was given liberty to file a fresh writ petition before the High Court of Orissa and it was made clear that the High Court would dispose of the matter on merits without being influenced by its previous order. Thereafter the present petition was filed.
4. The aforesaid facts which have been stated are not disputed. in this matter, a counter affidavit has been filed by the State wherein the facts stated herein before have not been controverted. It has only been said that it is the fault of the Sessions Clerk and in view of his fault Pratap Naik was illegally detained in custody from 17.1.1995 to 22.1.2003 and the said Sessions Clerk has been departmentally proceeded against. Therefore, no further inquiry is required.
5. On further inquiry by the Court, it appeared that a departmental enquiry was held against the Sessions Clerk Shri Sarat Kumar Misra and he was penalized with stoppage of two consecutive annual increments with cumulative effect and his period of suspension was treated as the period spent on suspension. However, the imposition of punishment of stoppage of two consecutive increments on the Sessions Clerk does not absolve the State of its liability to compensate the victim Pratap Naik.
6. The right to get compensation in a proceeding under Article 226 of the Constitution has been accepted by the Hon'ble Supreme Court in various decisions. As early as in the case of M.C.Mehta v. Union of India, , the Supreme Court held that the power of the Court to grant remedial relief under Article 32 includes the power of the Court to award compensation in appropriate cases. By "appropriate cases" the Court meant those cases where the infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring. In the instant case, the right to liberty of Pratap Naik under Article 21 of the Constitution has been grossly violated in the hands of the State agencies. There is no dispute that Pratap's appeal against the order of conviction succeeded and against that judgment and order of acquittal passed by this Court no appeal was filed before the Hon'ble Supreme Court. Therefore, the judgment and order acquitting Pratap along with others passed by this Court became final. In spite of the said order of acquittal, Pratap Naik remained behind the bars for more than eight years. Thus, Pratap's fundamental right to liberty under Article 21 of the Constitution was violated and this fact of his illegal detention has remained uncontroverted. In such cases compensation under Article 226 of the Constitution can be granted
7. Same view was taken by the Hon'ble Supreme Court in the case of Rudul Sah v. State of Bihar . In that case also Rudul was acquitted by the Sessions Court on 3.6.1968 but he was released only on 6.10.1982, that is, after 14 years. In that case the Hon'ble Supreme Court held that the right to compensation is some palliative for the unlawful acts of the instrumentalities. The Supreme Court said that the State must repair the damage done by its officers to the petitioner's right and the State may take recourse against those officers and so far as the petitioner is concerned his rights cannot be trampled upon. The decision in Rudul Sah's case was followed in the case of Bhim Singh v. State of J & K , and in Peoples' Union for Democratic Rights v. Police Commissioner, Delhi Police Headquarters . The law to grant compensation in a proceeding under Article 226 or under Article 32 of the Constitution was further established in our Constitutional Jurisprudence in the case of Nilabati Behera v. State of Orissa . The relevant portion of the said judgment is set out below:
Award of compensation in a proceeding under Article 32 of this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort.
Enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention.".
8. The payment of compensation in such cases as has been explained by the Supreme Court is not to be understood, as it is generally taken in a civil action for damages under the private law, but this compensation has to be taken in the broader sense of providing relief by an order of a writ Court for making monetary amends under the Public law for the wrong done due to breach of public duty by 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. Similar principles have been reiterated by the Hon'ble Supreme Court in the case of D.K.Basu v. State of West Bengal . It has been categorically held by the Hon'ble Supreme Court in the case of Chairman, Railway Board and Ors. v. Chandrima Das and Ors. that the Government should be held vicariously liable for the damages done by its employees.
9. In the instant case, Pratap suffered erosion of his right in view of the callous attitude of the employees of the State. Therefore, the State must compensate him. It may be that after paying the compensation to Pratap, the State may initiate appropriate proceedings for recovery of the same from the employees, who are responsible for causing injury to Pratap.
10. For the reasons aforesaid, this Court finds that Pratap lost prime period of his life behind the bars, though he was acquitted in the appeal by this Court. He was born in 1975 and he was released by the judgment of this Court on 31.10.1994. Therefore, at the time when Pratap was released he was only 19 years old, but thereafter he was behind the bars for more than eight years even though he was a free man. It has come on record that Pratap Naik was physically suffering from various ailments and he is coming from a very poor family. It cannot be said that since Pratap is poor, his compensation should also be poorly assessed. Nobody can say if he would have been allowed to become free in the prime age of his life he could have established himself as an important member of the community. But, that was not possible in view of the callous attitude of the State. So for eight years of illegal detention, the State must pay compensation of Rs. 8 lakhs (Rupees eight lakhs) to Pratap Naik. This Court, therefore, directs the State to deposit a sum of Rs. 8 lakhs by way of bank draft drawn in the name of Pratap Naik with the Registrar (Judicial) of this Court on or before 17.9.2007. After the aforesaid deposit is made, the Registrar (Judicial) of this Court will issue notice to Pratap Naik, son of Rahaso Naik of village Ghimuhani, P.S.Purunakatak, District Phulbani to appear before him. It the Registrar (Judicial) is satisfied about the identity of Pratap Naik, he shall open a fixed deposit account in the name of Pratap Naik in any nationalised bank for the aforesaid sum of Rs. 8 lakhs for a period of ten years. Pratap Naik will be allowed to draw 75% of the interest accrued on the aforesaid fixed deposit every month. After maturity of the fixed deposit, Pratap will be at liberty to withdraw the principal amount of Rs. 8 lakhs along with the balance interest.
With the aforesaid direction, this writ petition is allowed.
Indrajit Mahanty, J.
11. I agree.