Calcutta High Court
P. Viswanathan vs Dr. A.K. Burman And Anr. on 8 October, 2002
Equivalent citations: 2003CRILJ949
Author: Kalayan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
JUDGMENT Kalayan Jyoti Sengupta, J.
1. This appeal is directed against the judgment and order of the learned single Judge of this Court dated 21st August 2000 rendered in Writ Petition No. 99 of 1999. By this judgment and order the learned single Judge granted part relief to the writ petitioner being the respondent No. 1 by directing the respondent No. 2 to pay a sum of Rs. 2 lakhs as compensation with liberty to realize this amount of compensation or a part thereof from the respondent No. 2, viz., the appellant herein. Further liberty has been granted to the writ petitioner/respondent No. 1 to file a suit for damages against the respondents, viz., the appellant and the respondent No. 2 herein or any other officer against whom personal acts of malice, misfeasance or malfeasance might be pleaded and proved.
2. This case has chequered history which is put in a narrow compass as follows :--
The respondent No. 1 at the relevant time was a registered medical practitioner and on the date of filing of the writ petition he had completed his practice for 16 years in a chamber situated at Kalpana Medical Store at Goalghar in the town of Port Blair. Pursuant to a complaint lodged by the then Superintendent of Police being the appellant the writ petitioner was arrested. The complaint was lodged purported to be under Sections 420 and 120-B of the Indian Penal Code as well as Section 4 of the Terrorist and Disruptive Activities (Prevention) Act 1987 (TADA for short). After being arrested the petitioner was placed in confinement followed by raid in his house. The petitioner had to remain in custody for about 100 days before he was granted bail by the Court on 13th December, 1993. Even after being released on bail the case of the petitioner remained pending for more than four years as no charge-sheet was submitted. On submission of charge-sheet the learned Chief Judicial Magistrate, Port Blair upon considering the charges and the materials in support thereof produced declined to frame any charge holding that no case had been made out for proceeding against the petitioner.
3. The petitioner could get himself released by the aforesaid order dated 13th December, 1993 as he filed a writ petition for quashing of the FIR. The said writ petition was heard finally by the Division Bench of this Court on a reference of the learned single Judge before whom the matter was pending for hearing. It is appropriate to record that in the writ petition the entire FIR was challenged, however, the Division Bench did not quash the FIR so far as it related to the complaint under Sections 420 and 120-B of the Indian Penal Code but the complaint with regard to Sections 3 and 4 of TADA was set aside.
4. The learned Chief Judicial Magistrate, Port Blair discharged the writ petitioner/respondent by his order dated 25th February, 1998. It was observed while discharging, by the learned CJM that FIR was totally silent about a case that the petitioner did anything against any student or any person, which would be coming within the ambit of the offence punishable under Section 420 of Indian Penal Code. The allegations made in the written complaint leading to First Information Report involving the accused suffers from inherent infirmities to embroil the accused. The criminal case can be said to have been wrongful and inordinate delay in investigation by efflux of more than four years has no doubt contributed some percentage of mental agony towards the accused. He also held that there was no prima facie case as against the accused for commission of offence under Section 420 of the Indian Penal Code as also Section 17 of the Medicine Control Council Act has been made out.
5. After discharge, the writ petitioner filed a writ petition herein sometime in the month of March 1999 against the Lieutenant Governor praying for issuance of a writ in the nature of Mandamus directing the Lieutenant Governor to accord sanction for prosecution against the police officer in terms of Section 197 of the Criminal Procedure Code. The said writ petition was disposed of by an order dated 13th May, 1999 by the Hon'ble Mr. Justice Section B. Sinha (as His Lordship then was). By this order Justice Sinha was pleased to direct the Lieutenant Governor to consider and dispose of the application for according sanction.
6. Pursuant to the aforesaid order of Justice Sinha dated 13th May, 1999 the Lieutenant Governor refused to accord sanction for prosecution as prayed for under Section 197 of the Criminal Procedure Code at that stage. However, the Lieutenant Governor accorded sanction for proceeding with the case by the CBI.
7. After the aforesaid order was passed the writ petition being No. 99 of 1999 on which the impugned order was passed, was filed praying for compensation of Rs. 1 crore alleging flagrant infringement of fundamental rights guaranteed under Articles 21, 22 and 14 of the Constitution of India and for a Writ of Certiorari for quashing and setting aside of the impugned order refusing to grant sanction. The said writ petition was originally filed against the Lieutenant Governor only. Subsequently the present appellant was added as a party respondent.
8. In the writ petition the petitioner narrating the aforesaid case of wrongful confinement and detention pursuant to the said complaint and partial quashing of FIR so far as it related to complaint under Sections 3 and 4 of TADA and further order of discharge of the learned CJM aforesaid relief was claimed. It was stated that the writ petitioner/respondent was severely affected and his fundamental right was infringed by the wrongful and malicious action by the State and/or its officials. It is also stated that the then Superintendent of Police had hatched up a deep rooted conspiracy against him and the member of his family with a view to extort money and with that evil design a First Information Report was lodged purported to be under Sections 420 and 120-B of the Indian Penal Code as well as Section 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 without any sanction from the Government. A raid in his house was also conducted pursuant to the said complaint. According to the petitioner, with the knowledge that his only daughter is also a Doctor practising in Medicine and two of his sons are at present living in Belarush in Russia and he was financially sound and his children were well placed and further that with one of his sons the management of Daghestan State University had entered into a contract for sponsoring students from India for higher studies in the University, the said criminal case was initiated with a view to extort money. Illegal steps had allegedly been taken to show that he is a member of some extremist organization like ULFA but having failed to extort money from the petitioner the above FIR was lodged. The summation of grievance of the petitioner is that action of the State respondent and its official by arrest and prosecution is, malicious and wrongful, so he has suffered damages and injury.
9. To get redressal of the above grievance before commencement of the Constitution one had no other alternative but to file a civil suit for damages. However, that was possible only in a limited sphere or the subject, which did not tantamount to sovereign act. In other words, the concept of judicial review of administrative action and decision in the public law field was almost unknown in India. After commencement of the Constitution judicial review of administrative decision and action in the public law field has been made absolutely certain and indeed it has been guaranteed in the Constitution by virtue of Article 32 and 226 or 227 of the Constitution of India.
9A. We are now concerned with the case whether the learned trial Judge was justified in awarding compensation under Article 226 of the Constitution of India in the public law field or not. The Apex Court by this time, settled the position of the law which has rightly been noted and observed by the learned trial Judge, that in a established case of infringement or violation of the Fundamental Right of the citizen by any State action, the damage caused and injury inflicted to the person aggrieved can be compensated in the public law field and the superior Courts in exercise of their jurisdiction under Articles 32 and 226 of the Constitution of India can award compensation and damages and for which civil suit may or may not be necessary to be filed. The following decisions of the Supreme Court on these points are referable in this connection :
(i) State of Gujarat v. Memon Mahomad Haji Hasan, AIR 1967 SC 1185
(ii) Basawa Kom Dyamangouda Patil v. State of Mysore,
(iii) Rudul Sah v. State of Bihar,
(iv) Bhim Singh v. State of J. and K.
(v) Saheli, a Women's Resources Centre v. Commr. of Police,
(vi) Peoples' Union for Democratic Rights v. Police Commissioner, Delhi,
(vii) Sebastian M. Hongray v. Union of India, .
10. The Apex Court has awarded exemplary compensation for the damage caused and injury inflicted to the person aggrieved in a case where State's act and/or negligence and/or inaction arise.
11. In those cases the Supreme Court has granted relief both in case of tortious liability arising from exercise of sovereign power and in case of violation and infringement of the fundamental right guaranteed in the Constitution of India.
12. In the case of Rudul Sah v. State of Bihar, (1983 Cri LJ 1644) the Supreme Court has awarded damages for infringement of fundamental right under Article 32 of the Constitution of India. Following the aforesaid decisions subsequently the Supreme Court is of consistent view which is completely departure from the principle laid down in the earlier Supreme Court decision in the case of Kasturi Lal Ralia Ram Jain v. State of U.P., that where on account of tortious act of the sovereign State a person's fundamental right to life and liberty was violated the Court will grant compensation for damages suffered by that person. The liability is based on the provisions of the Constitution and is a new liability, which is not hedged in by any limitation including the doctrine of 'sovereign immunity'.
13. In the case of Nilabati Behera v. State of Orissa, the Supreme Court has awarded compensation for damage after having satisfied the victim concerned died in police custody, because of torture and thus it was an explicit case of violation of fundamental right and in that case while exercising jurisdiction under Article 32 of the Constitution of India the aforesaid redressal was possible.
14. In the decision of the Supreme Court in Common Cause, A Registered Society v. Union of India , the theory of awarding compensation in the public law field has been reiterated and recognized only when it is found that the fundamental right of the person or citizen is infringed because of the State's act or omission and/or negligence.
15. In the case of Chairman, Railway Board v. Chandrima Das the Apex Court approved and affirmed the judgment of the Calcutta High Court holding amongst others that not only citizen of this country but also the foreigner as well is entitled to get compensation for damages caused or injury inflicted by act and omission or negligence of the employee of the State which tantamounts to violation of Article 21 of the Constitution of India. It is true the aforesaid pronouncements are very encouraging and people oriented still then the Supreme Court has not forgotten to lay down and/or maintain the line of distinction between the sovereign act and the act other than sovereign in nature.
16. In the case of Kasturi Lal Ralia Ram Jain v. State of U.P. the then Chief Justice Gajendragadkar, observed that (Para 29) :
"The act or negligence was committed by the police officers while dealing with the property of Ralia Ram which they had seized in the exercise of their statutory powers. Now, the power to arrest a person, to search him. and to seize property found with him, are powers conferred on the specified officers by statute and in the last analysis, there are powers which can be properly characterized as sovereign powers; and so, there is no difficulty in holding that the act which gave rise to the present claim for damages has been committed by the employee of the respondent during the course of its employment; but the employment in question being of the category which can claim the special characteristic of sovereign power, the claim cannot be sustained."
17. The aforesaid decision, was neither followed nor approved by the Supreme Court in its subsequent decisions even then in another subsequent decision of the Supreme Court in N. Nagendra Rao and Co. v. State of A.P., , Justice R. M. Sahai observed in Paragraph 24 "The demarcating line between sovereign and non-sovereign powers for which no rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity."
"What are traditional sovereign function of the State was considered by this Court in State of Bombay v. Hospital Mazdoor Sabha. and Corpn. of the City of Nagpur v. Its Employees, and in both these decisions, observations of Lord Watson in Richard Coomber v. Justices of the Country Berks, (1883-84) 9 AC 61 that traditional sovereign functions were the making of laws, the administration of justice, the maintenance of order, the repression of crime, carrying on of war, making of treaties and peace and other consequential functions, were approved."
18. Therefore, we are of the view action of servant of the welfare State run by a constitution take in relation to the sovereign function under a lawful command which may be given by appropriate legislation, is immuned from challenge before the Court of law for any loss or damage suffered by any person.
19. But then it may not be construed that any or every act or omission of servant of the State even if in purported exercise of the sovereign act are immuned from judicial review. The whole point is whether the employee concerned had or has acted under the due and lawful command and authority or not, and if not there comes question of tortuous liability.
20. The learned trial Judge has correctly observed and set out the principle of law as to when and where the tortuous liability of the State or negligent act of its employee will arise and also question of payment of compensation for damages caused by any such negligent act both of the State as well as by the employee concerned. For the seek of clarity and better understanding we feel the principles needs to be reiterated.
" 'Tort' has been derived from the Latin word 'tortious' which means 'twisted' or 'crooked'. In its original and most general sense, 'tort' is a wrong. Jowitt's Dictionary of English Law defines tort as under :
" 'Tort' signifies an act which gives rise to a right or action, being a wrongful act or injury consisting in the infringement of a right created otherwise than by a contract. Torts are divisible into three classes, according as they consist in the infringement of jus in rem, or in the breach of duty imposed by law on a person towards another person, or in the breach of a duty imposed by law on a person towards the public.
The first class includes (a) torts to the body of a person, such as assault, or to his reputation, such as libel, or to his liberty, such as false imprisonment; (b) torts to real property, such as ouster, trespass, nuisance, waster, subtraction, disturbance; (c) torts to personal property, consisting (i) in the unlawful taking or detaining or damage to corporeal personal property or chattels; or (ii) in the infringement of a patent, trademark, copyright, etc. (d) slander of title; (e) deprivation of service and consortium.
The second class includes deceit and negligence in the discharge of a private duty.
The third class includes those cases in which special damage is caused to an individual by the breach of duty to the public."
Winfield defined 'tort' in another way :
"Tortuous liability arises from the breach of duty primarily fixed by the law; such duty is towards persons generally and its breach is redressable by an action for unliquidated damages."
21. The officers of the Government would also be liable in damages for their wrongful acts provided the act does not fall within the purview of "act of the State". So also, the administrative bodies or authorities, which deal in administrative matters and take decisions specially for the Implementation of the government policies have to act fairly and objectively and may in some cases also be required to follow the principles of natural justice. It is the basic principle of administrative law that if certain powers are conferred on the authorities, then that power must be exercised in good faith and the administrative decision must be made after taking into account all matters relevant for the exercise of that power. The authority must not be influenced by irrelevant matters and if the order is likely to prejudicially affect the rights, or reasonable expectation of person, the principles of natural justice must be followed and the person likely to be affected must be given an opportunity of hearing. Thus, the decision of an administrative authority can be challenged on the grounds, inter alia, of illegality irrationality and procedural impropriety. The aforesaid observation of ours is laid down from the decision of right from the English Court and approved by our Supreme Court in various cases.
22. In order to charge the officers or of the Government with the tort the question of misfeasance in public office comes in. In Administrative Law by Sir William Wade, 8th Edn. (page 765) "misfeasance in public office" has been defined inclusively as malicious abuse of power, deliberate mal-administration and other unlawful acts causing injury. It is further contended in the same book that "misfeasance in public office" is the name now given to the tort of deliberate abuse of power. After discussing various decided cases Sir Wade commented (at page 768 of the same edition) "This and other authorities, including the last-mentioned decision of the House of Lords, were held to establish that the tort of misfeasance in public office goes at, least to the length of imposing liability on a public officer who does an act which to his knowledge amounts to an abuse of his office and which causes damage."
23. In his commentary (page 769) we find.
"There are now indications that the Courts will not award damages against public authorities merely because they have made some order which turns out to be ultra vires, unless there is malice or conscious abuse. Where an Australian local authority had passed resolutions restricting building on a particular site without giving notice and fair hearing to the landowner and also in conflict with the planning ordinance, the Privy Council rejected the owner's claim for damages for depreciation of his land in the interval before the resolutions were held to be invalid. The well-established tort of misfeasance by a public officer, it was held, required as a necessary element either malice or knowledge by the council of the invalidity of its resolutions. In New Zealand also, a company failed in a claim for damages resulting from Minister's refusal of permission of it to obtain finance from a Japanese concern. The Minister's refusal was quashed as ultra-virus, but it was held that this alone was not a cause of action. Nor does it appear that claims of this kind can be strengthened by pleading breach of statutory duty.
The Court of Appeal reinforced these decisions in a case of Bourgoin Case. A ministerial revocation order had prohibited the import of turkey meat from France and was held unlawful by the European Court as being in breach of Article 30 of the Treaty of Rome, which is binding in British law under the European Communities Act. 1972. French traders who have suffered losses under the ban then sued the Ministry for damages. On preliminary issues it was held that they had no cause of action merely for breach of statutory duty, as already related. Likewise there was no cause of action merely because the Minister's order was unlawful: it could be quashed or declared unlawful on judicial review, but there was no remedy in damages for single excess of power. There would be such a remedy, well knowing that his order was breach of Article 30 and would injure the plaintiffs' business. It was alleged that his conscious purpose was to protect English turkey producers rather than to prevent the spread of disease, and that he knew that he has made an unlawful order. The element of bad faith, or malice as Judges have often called it, seems now to be established as the decisive factor."
24. Sir Wade goes on to comment in his book which we think is relevant to reproduce here :
"The principle of liability seems now to be emerging clearly. It can be said that administrative action which is ultra vires but not actionable merely as a breach of duty will found an action for damages in any of the following situations :
1. if it involves the commission of a recognized tort such as trespass, false imprisonment or negligence,
2. if it is actuated by malice, e.g. personal spite or a desire to injure for improper reasons;
3. if the authority knows that it does not possess the power to take the action in question or is recklessly indifferent to its existence,
4. if the case is governed by Community law and that law would allow reparation.
The decision suggest that there is unlikely to be liability in the absence of all these elements, for example where a licensing authority cancels a licence in good faith but invalidly, perhaps in breach of natural justice or for irrelevant reasons. Since loss of livelihood by cancellation of licence is just as serious an injury as many forms of trespass or other torts, it may seem illogical and unjust that it should not be equally actionable in damages; and in obiter dicta in a dissenting judgment Denning LJ once suggested that it was. Some cases of this kind may involve breach of statutory duty, but that head of liability is now confined as explained above. In general it seems probable that public authorities and their officers will be held to be free from liability so long as they exercise their discretionary powers in good faith and with reasonable care. Losses caused by bona fide but mistaken acts of government may have to be suffered just as much when they are invalid as when they are valid. This unjust doctrine is in need of reform."
25. In Halsbury's Laws of England, Vol. I (I) 4th Edn. (reissue), (para 203) we find a very relevant and useful annotation, which is as follows :
"Deliberate abuse of public office or authority.-- Bad faith on the part of a public officer or authority will result in civil liability where the act would constitute a tort but for the presence of statutory authorization, as Parliament intends statutory powers to be exercised in good faith and for the purpose for which they were conferred. Proof of improper motive is necessary in respect of certain torts and may negative a defence of qualified privilege in respect of defamation, but this is not peculiar to public authorities. There exists an independent tort of misfeasance by a public officer or authority which consists in the infliction of loss by the deliberate abuse of a statutory power, or by the usurpation of a power which the officer or authority knows he does not possess, for example by procuring making of compulsory purchase order, or by refusing, or cancelling or procuring the cancellation of licence, from improper concealing procuring the cancellation of licence, from improper motives. However, where there has been no misfeasance, the fact that a public officer or authority makes an ultra vires order or invalidly exercises statutory powers will not of itself found an action for damages."
26. We find from the textbook of De Smith in Judicial Review of Administrative Action, while speaking of tort of misfeasance in public office, says as under :
"a public authority or person holding a public office may be liable for the tort of misfeasance in public office where :
(1) there is an exercise or non-exercise of public power, whether common law, statutory or from some other source;
(2) which is either (a) affected by malice towards the plaintiff or (b) the decision maker knows is unlawful; and (3) the plaintiff is in consequence deprived of a benefit or suffers other loss.
"A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Where misfeasance is alleged against a decision-making body, it is sufficient to show that a majority of its members present had made the decision with the object of damaging the plaintiff. Often there may be no direct evidence of the existence of malice, and in these circumstances the Court may make adverse inferences, e.g. from the fact that a decision was unreasonable, that it could only be explained by the presence of such a motive. A Court will not entertain allegation of bad faith or malice made against the repository of a power unless it has been expressly pleaded and properly particularized."
In this connection reference may be made to the decision of the High Court of Australia, Northern Territory v. Mengel, (1995) 69 Aust LJR 527 in which it was observed as under :
"A number of elements must combine to make a purported exercise of administrative power wrongful. The first is that the purported exercise of power must be invalid either because there is no power to be exercised or because a purported exercise of the power has miscarried by reason of some matter which warrants judicial review and a setting aside of the administrative action. There can be no tortuous liability for an act or omission which is done or made in valid exercise of a power. A valid exercise of power by a public officer may inflict on another an unintended but foreseeable loss-or even an intended loss -- but, if the exercise of the power is valid the other's loss is authorized by the law creating the power. In that case, the conduct of the public officer does not infringe an interest which the common law protects. However, a purported exercise of power is not necessarily wrongful because it is ultra vires. The history of the tort shows that public officer whose action has caused loss and who has acted without power is not liable for the loss merely by reason of an error in appreciating the power available. Something further is required to render wrongful an act done in purported exercise of power when the act is ultra vires."
27. While explaining the words Mental Element, the High Court of Australia observed as follows :
"The further requirement relates to the state of mind of the public officer when the relevant act is done or the omission is made. An early case is Ashby v. White, (1703) 2 Ld Ray 938 in which Ashby complained that the constables of the borough in which an election was held had refused to permit him to vote 'fraudulently and maliciously intending to damnify him'. Lord Holt, C.J., whose judgment ultimately prevailed in the House of Lords, held that malice was essential to the action malice has been understood to mean an intention to injure. In this context, the 'injury' intended must be something which the plaintiff would not or might have suffered if the power available to the public officer had been validly exercised. (it is in that sense that I use the term 'injury' hereafter). In more recent times, the scope of the tort has not been limited to cases in which a public officer has acted maliciously. It has now been accepted that if public officer engages in conduct in purported exercise of a power but with actual knowledge that there is no power to engage in that conduct, the conduct may amount to an abuse of office."
28. In the said decision in the case of Ashby v. White, (1703 (2) Ld. Raym 938) it was observed as follows :
"The mental element is satisfied either by malice (in the sense stated) or by knowledge. That is to say, the mental element is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. These are states of mind, which are inconsistent with an honest attempt by a public officer to perform the functions of the office. Another state of mind inconsistent with an honest attempt to perform the functions of a public officer is reckless indifferent as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce. The state of mind relates to the character of the conduct in which the public officer is engaged -- whether it is within power and whether it is calculated (that is, naturally adapted in the circumstances) to produce injury. In my opinion, there is no additional element which requires the identification of the plaintiff as a member of a class to whom the public officer owes a public duty though the position of the plaintiff may be relevant to the validity of the public officers conduct. For example, the officer's administrative act may be invalid because he or she did not treat the plaintiff with procedural fairness. It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office. Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff. Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power, the character of abuse of or misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete."
29. In Dunlop v. Woollahara Municipal Council reported in (1981) 1 All ER 1202 (PC) it was held as follows :
"................ mere invalidity of the order would not give rise to any liability for payment of damages in an action in tort to the aggrieved party. It was, however, held in the same case that if the action of the authority is actuated by malice, it would amount to "tort of misfeasance by a public officer". In Asoka Kumar David v. M. A. M. M, Abdul Cader reported in (1963) 1 WLR834 : (1963) 3 All ER 579 (PC) it was held that the tort of misfeasance will also be committed even in the absence of malice if the public officer knew both what he was doing was invalid and that it will injure,the plaintiff. In Jones v. Swansea City Council reported in (1989) 3 All ER 162 (CA) it was held that if the public officer acts with malice, i.e. with an intent to injure and thereby damage results, the liability would arise and the officer could be sued for the tort of misfeasance in public officer. The legal propositions in that case were not dissented from by the House of Lords, through the Court of Appeal's decision was reversed on facts."
30. In another decision of the English Case that is Three Rivers District Council v. Bank of England reported in (1996) 3 All ER 558 it was held as follows :
" 'Misfeasance in public office' was concerned with a deliberate and dishonest wrongful abuse of the power given to a public officer and the purpose of the tort was to provide compensation for those who suffered loss as a result of improper abuse of power.
******* So far as malice is concerned, while actual malice, if proved, would render the defendant's action both ultra vires and tortious, it would not be necessary to establish actual malice in every claim for misfeasance in public office. In Bourgoin -- Section A. v. Ministry of Agriculture, Fisheries and Food reported in (1985) 3 All ER 585 (CA) the plaintiffs were French turkey farmers who had been banned by the Ministry from exporting turkeys to England on the ground that they would spread disease. The Ministry, however, subsequently conceded that the true ground was to protect British Turkey farmers and they had committed breach of Article 30 of the EEC Treaty which prohibited unjustifiable import restrictions. The defendants denied the liability for misfeasance claiming that they were not actuated by any intent to injure the plaintiffs but by a need to protect British interest. It was held by Mann, J., which was upheld by the Court of Appeal, that proof of actual malice, ill will or specific intent to injure is not essential to the tort. It was enough If the plaintiff established that the defendant acted unlawfully in a manner foreseeably injurious to the plaintiff. In another decision in Bennett v. Commr. of Police of the Metropolis, (1995 (2) All ER 1) (at pp. 13 and 14), which was considered in the Three Rivers case it was held that the tort of misfeasance in public officer required express intent to injure."
31. In the case of Lucknow Development Authority v. M. K. Gupta, the Apex Court considered the question of tort of misfeasance in public office. In that case the learned Judges relying upon an Administrative Law by Prof. Wade, were pleased to allow exemplary damages to a consumer who had initiated proceeding under the Consumer Protection Act. 1986. It was held amongst other that the officers of the Lucknow Development Authority were not immuned from tortuous liability and then proceeded to say that the National Consumer Disputes Redressal Commission was not only entitled to award value of the goods or services but also to compensate a consumer for injustice suffered by him. The Court, therefore, upheld the award of Rs. 10,000/- as compensation allowed by the Commission on the ground that the action of the appellant amounted to harassment, mental torture and agony of the respondent. The Apex Court observed in Paragraph 10 (SCC pp. 261-62 at p. 798 of AIR) as under :--
"But when the sufferance is due to mala fide or oppressive or capricious acts etc. of a public servant, then the nature of liability changes. The Commission under the Act could determine such amount if in its opinion the consumer suffered injury due to what is called misfeasance of the officers by the English Courts. Even in England where award of exemplary or aggravated damages for insult etc. to a person has now been held to be punitive, exception has been carved out if the injury is due to, 'oppressive, arbitrary or unconstitutional action by servants of the Government'."
32. The foregoing comments and the quotations have been considered in to by the Apex Court in the case of Common Cause v. Union of India . Therefore, it is clear from the aforesaid discussion, question of payment of compensation for the damage caused or injury inflicted to the person by the misfeasance of the public servant can be considered by the Courts only when it is found that the public servant has acted maliciously and with an intention to injure the person. Such element of malice and further intent to injure would be apparent when the public servant concerned acts without the authority of law or in sheer abuse of the power vested under the law; and in such situation the public officer concerned be made personally liable to pay such damages as will compensate sufferer. But in case when the Government servant while acting within the framework of law bona fide in all stages causes any damage or inflicts injury to any person he or she shall be indemnified by the State from any loss or damages, notwithstanding such action is later on found to be invalid.
33. In the light of the aforesaid discussion of ours now it has to be found in this case whether the respondent No. 2 acted mala fide or not or for that matter whether he acted beyond the power given to him or not. From the records it appears, he lodged a complaint disclosing prima facie offences against the writ petitioner, under the provisions of Sections 3 and 4 of TAD A and Sections 420 and 120(b) of the Indian Penal Code. Pursuant to this complaint an FIR was lodged, investigation was followed by another officer (not by the respondent No. 2) and the said officer is not a party to this proceeding. The action taken by the appropriate officials pursuant to the said complaint is not an unauthorized act of the police officers within the provisions of Section 154 of the Cr. P.C. read with Sections 3 and 4 of the TADA. He was empowered thereunder to proceed with the investigation, once information of committing cognizable cases is disclosed. It is settled position of law the arrest of a person against whom complaint has been lodged is part of the investigation, so the initial action of the investigating officer pursuant to the said complaint was not at all unauthorized one. At that stage the investigating officer or for that matter police officials are not supposed to ascertain the truthfulness and correctness of the complaint and this can be done after investigation is complete.
34. It is not that police official did not ever produce the writ petitioner before any Magistrate, he indeed was produced before the learned CJM and who having satisfied was pleased to allow to confine the writ petitioner in Judicial custody for hundred days. It is said that non-production of the writ petitioner before the designated Court under TADA (here the learned Sessions Judge) tantamount to acts of negligence and/or forbearance in discharging the statutory duty. In our view it cannot be an act of negligence of the police officials alone, it was also the omission on the part of the learned CJM, who ought not to have entertained and rather could have sent the writ petitioner to the learned Sessions Judge. In our view this is bona fide omission as there were two charges -- one was under TADA and another was under Section 420 of the Indian Penal Code. In ordinary course accused under Section 420 of Indian Penal Code is produced before the learned SDJM or CJM. It is, therefore, natural there may be mistake bona fide in production of accused before appropriate Court. For this reason neither the Judicial Officer nor the police officials should be personally held responsible of any loss or damages, unless of course element of malice and intent to injure are established.
35. In the observation of the Division Bench of this Court while releasing the petitioner we do not find the learned Judges recorded any fault or mala fide in the action of the police authority, nor there is any finding of malice at all. Rather the Division Bench allowed the investigation as regard Section 420 of the Indian Penal Code to continue. It was merely observed by their Lordships that at the relevant time there were no materials to maintain a case under TADA. As such the writ petitioner was enlarged on bail. As far as the order of discharge of the learned CJM is concerned in our view having regard to the provision of Section 227 of the Cr. P.C. the order of discharge does not tantamount to acquittal of an accused. Section 227 of the Cr. P.C. is quoted hereunder for better appreciation.
"Section 227 -- If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submission of the accused and the prosecution in this behalf the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
36. Therefore, it is clear from the aforesaid Section that an accused is released on the ground of non-availability of the materials collected by the Officer during investigation, at that stage the Court does not absolve the accused from the charges. Discharge may be due to inept investigation and inquiry, however, subsequently upon proper investigation and collection of relevant materials the discharged person can again be charged. The basic intention of the legislature is that one should not be subjected to judicial process or investigation without any foundation.
37. The observation of the learned CJM while passing an order of discharge do not ipso facto entitle the writ petitioner to recover damages personally against the complainant or for that matter investigating officer without having any proof of personal malice and intent to injure the writ petitioner by sheer abuse of their power. The proof of malice and further intention to injure a person cannot usually be established in a writ jurisdiction and it can only be done in this case in the usual private law field.
38. It seems the learned trial Judge has been influenced and/or swayed by the large number of Supreme Court's decisions while awarding damages not only against the respondent No. 1 but also against the respondent No. 2 personally. The Supreme Court in its various decisions has awarded exemplary damages not only against the Government but the person involved in action or omission in violation of fundamental right guaranteed under Part III of the Constitution of India.
39. To our mind the learned trial Judge with great respect, fell in error, for His Lordship has misapplied remedy in public law field, in pure case of private law field. In our view the superior Court can grant exemplary relief against the wrongdoer only in clear case of infringement of Fundamental Rights and not otherwise. We shall now analyse the cases on which the learned trial Judge relied heavily while granting relief.
40. In the case of D. K. Basu v. State of West Bengal, , the Supreme Court found that it was a case of custodial death because of torture inflicted by the police official in custody. So it was a clear case of infringement of Fundamental Right as no police official is authorized to take the life of any person or to inflict torture on the body in the name of interrogation of an accused in custody. The police officials are authorized to arrest any person when there is necessity under law of detention. So the Supreme Court awarded exemplary damages in that case.
41. In the case of Death of Sawinder Singh Grower (1995 Supp (4) SCC 450) it was also a case of the custodial death of Sawinder Singh Grower who was arrested by the police officials and later he was put to death by torture in custody. So the Supreme Court granted exemplary damages while entertaining a writ petition under Article 32 of the Constitution of India.
42. In case of Inder Singh v. State of Punjab , it was a case of abduction of the 7 persons by the high police officials in suspicion of a case of abduction of the brother of a police officials. Those seven persons were detained and thereafter they could not be traced. So it was presumed that the police officials must have killed those persons. Therefore, it was a clear case of infringement of fundamental right guaranteed under Article 21 of the Constitution of India.
43. In another case, Saheli, a Women's Resources Centre v. Commr. of Police the Apex Court granted compensation in case of death of a child in police custody due to beating and assault by the police officer. Thus it was a case of loss of life by the accused without any authority of law by the police officials. Obviously that was the case of gross infringement of Fundamental Right of the citizen.
44. In case of Peoples' Union for Democratic Rights v. State of Bihar the Supreme Court granted compensation for death of 21 people who assembled for holding a peaceful meeting at a place in Bihar and without any justification the police opened fire and as a result whereof they died. So this compensation was awarded because of death of those people which amounted to infringement of fundamental right.
45. In another case of Peoples' Union for Democratic Rights v. Police Commissioner, Delhi Police Headquarters the Supreme Court granted compensation against illegal and unauthorized act of the police officials for forcing the labourers to do hard work without any payment and further outraging of modesty of women labourers. No doubt, it was a case of infringement of Fundamental Right as guaranteed under Article 21 of the Constitution of India.
46. In case of P. Rathinam v. Union of India reported in 1989 Supp (2) SCC 716 the Supreme Court awarded compensation to a victim of an offence of rape committed by police officials. It was a clear case of infringement of Fundamental Right by the police officials.
47. It is absolutely manifest that the learned 1st Court with great respect, misunderstood the ratio of the aforesaid decisions and thus inappropriately applied in this case. His Lordship had equated the principle of granting compensation in case of breach of fundamental right without any justification, with the case of improper application of law by the police officials without any concrete proof of malice. In our view in this case since there exists no proof of any malice or ill motive on part of the appellant for abortive action under provision of TADA as well as Indian Penal Code read with Criminal Procedure Code, awarding compensation personally against the appellant is unjustified and improper, this can only be decided in the suit, which is pending.
48. It was improper for the learned trial Judge to award compensation in the writ jurisdiction where prima facie it was not a case of, absolute breach of Fundamental Right or, the action having been taken without any authority of law. In the writ jurisdiction the learned trial Judge has committed grave error by giving direction upon the government to realize the amount of compensation from the officer concerned without ascertaining the element of malice and ill motive in lodging complaint under TADA and section 420 of Indian Penal Code. More so, when the Government approved the action of the police authority.
49. We are told that the amount of compensation has been paid by the Government but we are not directing the Government to ask for refund of the same for the time being and we simply set aside the direction of the Learned Trial Judge for recovery of the same from the respondent No. 2. The appeal is allowed to the extent as above.
50. All points are kept reserved for decision in the suit and the payment which has been made pursuant to the order of the Learned Trial Judge will abide by the result of the suit.
51. There will be no order as to costs.
52. Let the records together with judgment of this case delivered today be sent to the Circuit Bench of this Court at Port Blair by the Registrar General of this Court as early as possible after the judgment is signed.
Sujit Barman Roy, J.
53. I agree. Order accordingly.