Bombay High Court
Miss. Ezlinda Fernandes vs Mr. Chetan Sanghi, Sub-Divisional ... on 6 July, 1995
Equivalent citations: 1997(4)BOMCR641, 1997 A I H C 144, (1997) 4 BOM CR 641
Author: T.K. Chandrashekhara Das
Bench: T.K. Chandrashekhara Das
JUDGMENT
D.R. Dhanuka
1. Right to personal liberty is one of the most cherished fundamental rights guaranteed by Article 21 of the Constitution of India and is available to citizens and non-citizens both. No person can be deprived of his personal liberty even for a minute except in accordance with law. The State and its officers are enjoined to act reasonably and not arbitrarily with utmost care and caution in respect of matters likely to affect personal liberty of a person. This is one of the shocking cases where a non-lunatic was detained in the Government hospital i.e. the Institute of Psychiatry & Human Behaviour at least for a few days illegally and arbitrarily. This case involves consideration of relevant principles applicable to cases of this kind discussed below.
2. By this petition filed under Article 226 of the Constitution of India, the petitioner has complained of her illegal detention in the Institute of Psychiatry and Human Behaviour during the period commencing from 7-10-1991 until 6-11-1991 without authority of law and in breach of her fundamental right guaranteed under Article 21 of the Constitution of India. The petitioner has sought a direction from this Court to the effect that the respondents be directed to pay compensation of Rs. 1 lac to the petitioner in view of the fact that the petitioner was illegally and wrongfully detained in the hospital of the said institute without her consent, unreasonably and arbitrarily, for several days even though the petitioner was not a lunatic within meaning of the said expression 'Lunatic' as defined by section 3(5) of The Indian Lunacy Act, 1912. The respondents impleaded in this petition are :
(1) Mr. Chetan Sanghi, Sub-Divisional Magistrate, Panaji-Goa, (2) Mr. Umesh Gaonkar, P.S.I. Ribandar Police Station, (3) State of Goa, (4) The Medical Superintendent, Government of Goa, Institute of Psychiatry & Human Behaviour. It is not necessary to make reference to the two other individuals who are impleaded as respondents 5 and 6 in the said petition.
2A. The relevant facts having bearing on the subject matter of this petition are briefly summarised hereinafter.
3. The petitioner and respondents 5 and 6 were neighbours at the material time. There were disputes between the petitioner and respondents 5 and 6 as a result whereof criminal complaints were filed by one side against another at Ribandar Police Station.
4. On 6-10-1991, the respondent No. 2 called the petitioner and respondent No. 6 for inquiry at the police station. On earlier occasion also there were some police complaints against the petitioner. It is not known whether the said complaints were true or untrue. Sometime in the month of July 1991, the respondent No. 2 had recorded statements of several individuals whereby some individuals had complained rightly or wrongly that the petitioner was behaving in a strange manner towards the members of the public and the petitioner was even abusing the pedestrians.
5. On 7-10-1991, Shri A.M. Nagnuri of Ribandar Police Station filed a report before the Sub-Divisional Magistrate, Panaji in purported exercise of his powers and duties under section 13 of the Indian Lunacy Act, 1912. By the said report, the police authorities sought an order from the learned Sub-Divisional Magistrate to the effect that the petitioner be detained in the hospital of Institute of Psychiatry & Human Behaviour, Altinho, Panaji on the footing that the petitioner was a 'Lunatic'. On 7-10-1991, the Sub-Divisional Magistrate, Panaji i.e. the respondent No. 1 passed an order under section 14 of the Indian Lunacy Act, 1912 read with section 16 of the said Act after purported preliminary examination of the petitioner. The learned Sub-Divisional Magistrate declared that the petitioner was required to be kept in detention in the said institute for observation for a period of three days in order to enable the medical officer to make a report as to whether the petitioner was a lunatic. It was stated in the said order that the Superintendent of the said Institute should submit his Medical report in the form prescribed by the provisions of Indian Lunacy Act, 1912 to the Sub-Divisional Magistrate i.e. respondent No. 1 within the time specified in the said order. It was further stated in the said order that if the petitioner was not found to be lunatic, the petitioner may be produced before the Sub-Divisional Magistrate, Panaji within the period specified for her release.
6. In pursuance of the said order dated 7-10-1991, the petitioner was actually detained in the said Institute for observation and medical report on the basis of the allegation that the petitioner appeared to be a lunatic.
7. On 9-10-1991, Dr. P.J. Dukle, Medical Superintendent of the said Institute made an application to the Sub-Divisional Magistrate to extend the period of observation of the petitioner for another 10 days. On 15-10-1991, the respondent No. 1 passed his further order to the effect that the respondent No. 1 was satisfied that the petitioner was prima facie a lunatic and was a person dangerous on account of being a lunatic and the petitioner should therefore be taken charge of and detained under care and treatment of the said Institute. The period of observation in respect of the petitioner was extended by orders passed by the Sub-Divisional Magistrate. There is no material on record to indicate that the respondent No. 1 had independently applied his mind to the question as to whether the petitioner was a lunatic or that he had insisted on prompt examination of the petitioner by the medical experts forthwith. Perhaps the respondent No. 1 passed the above referred orders mechanically on application of the police. Ultimately on 30-10-1991 Dr. P.J. Dukle, Medical Superintendent made an application to the Sub-Divisional Magistrate for issue of no objection certificate for release of the petitioner from detention from the hospital attached to the Institute of Psychiatry & Human Behaviour in view of the findings recorded by Dr. D.S. Kukalekar and Dr. Rajesh Dhume to the effect that the petitioner was not suffering from any psychiatric illness and it was not necessary to detain the petitioner in the hospital of the said Institute. We interpret the said letter to mean a clear finding to the effect that the petitioner was not a 'lunatic' within meaning of Indian Lunacy Act, 1912. At this stage, the respondent No. 1 acted properly. The necessary no objection certificate was in fact received by the Institute on 1-11-1991 vide Inward No. 4875. Nevertheless the petitioner was discharged from the said hospital only on 6-11-1991. It has been explained in paragraph 4 of the affidavit of Dr. P.J. Dukle dated 10-7-1992 that 2nd and 3rd November 1991 were closed holidays and he could not therefore take action in the matter pertaining to discharge of the petitioner from the hospital until 4-11-1991. Dr. Dukle has further stated in the said affidavit dated 10-7-1992 that on 4-11-1991 he informed "the doctor incharge" that the said no objection certificate was received and the patient should be discharged. In the said affidavit it is stated that the doctor incharge thought it proper that it was safer for the patient to go home with a relative which could be arranged only on 6-11-1991. We are shocked and surprised to find that the authorities of the Govt. hospital did not consider it essential to release a non-lunatic from the hospital immediately on receipt of No objection Certificate. Merely because there were intervening holidays can be no excuse for continuous detention of a non-lunatic in the hospital. The assumption that the petitioner was a 'lunatic' was found to be totally erroneous.
8. The petitioner made a representation to this Court for examining her grievance in respect of her alleged illegal detention at the hospital of the said Institute and treat her representation as a writ petition. Ultimately the petitioner also filed a regular petition in this behalf which was numbered by this Court as Writ Petition No. 140 of 1992. Shri Ferdino Rebello, a Senior Counsel of this Court was requested to act as amicus curiae in the matter. Shri Rebello has been good enough to render valuable assistance to this Court at the hearing of the petition.
8A. The expression 'Lunatic' has been defined by section 3(5) of The Indian Lunacy Act, 1912 as under :-
"(5) Lunatic means' an idiot or a person of unsound mind".
Even if a person is of peculiar temperament and he or she quarrels with her neighbours with or without justification, he or she cannot be automatically described as a lunatic. The Court is required to come to an independent decision after careful consideration of all relevant aspects and then decide as to whether a person is a lunatic. If a normal person is detained in a lunatic asylum or a mental hospital or a Govt. Institute like Institute of Psychiatry & Human Behaviour, it leads to deprivation of personal liberty and humiliation. Unnecessary and unwarranted detention of a normal person in mental hospital also stigmatises the person in the society. If the State officials unlawfully detain a person who is not a lunatic in a mental hospital, the State is liable to pay damages to the person aggrieved for wrongful deprivation of personal liberty without authority of law leading to violation of Article 21 of the Constitution of India.
9. The first question which is required to be considered by this Court in this petition is as to whether respondent No. 1 was justified in law in passing orders dated 7-10-1991 and 15-10-1991 authorising detention of the petitioner in the hospital of the above referred institute under section 14 read with section 16 of the Indian Lunacy Act, 1912.
10. We are of the view that the Sub-Divisional Magistrate ought to have been extremely careful before passing the order for detention of the petitioner in the hospital of the said Institute, as the assumption that the petitioner appeared to be a lunatic. Even at that stage the learned Sub-Divisional Magistrate ought to have insisted on production of medical evidence or some proof which would reasonably satisfied him that such detention was necessary. It might be that the petitioner was a quarrelsome neighbour and there were some complaints and cross complaints between the petitioner and her neighbours. We express no opinion on this aspect of the controversy as it is irrelevant for the purpose of this petition. Initially the learned Magistrate had granted only three days time for observation to the Doctors of respondent No. 4. The Doctors attached to the hospital of respondent No. 4 took their own time before they could reach the conclusion that the petitioner was a non-lunatic and her detention at the institute was unnecessary. The basic question before the learned Sub-Divisional Magistrate was as to whether the petitioner prima facie appeared to be 'a lunatic' to the learned respondent No. 1 on his own assessment within the meaning of the said expression as defined under the Indian Lunacy Act, 1912. We do feel that the respondent No. 1 did not devote sufficient attention to the serious problem and did not adequately consider all the pros and cons of the matter before passing drastic orders of detention of the petitioner at the institute as if a prima facie case for detention of the petitioner under section 16 of the Act was made out. The respondent No. 1 is perhaps entitled to protection of the Judicial Officers Protection Act, 1850 and immunity under section 97 of the Indian Lunacy Act, 1912 even if respondent No. 1 has acted erroneously in the matter to the prejudice of the petitioner. We leave it at that. It was primary duty of the learned Magistrate to consider the matters under Indian Lunacy Act with special care and caution. We do feel that the respondent No. 1 acted rather casually and not with due care and caution as expected of him on a serious matter of this kind when he passed the impugned orders for detention of the petitioner at the hospital of the Institute under Indian Lunacy Act, 1912.
11. We are distressed to find that even after receipt of no objection certificate by the hospital authority on 1st November, 1991, the petitioner was unnecessarily, wrongfully and illegally detained in the hospital of the Institute upto 6th November 1991. It mattered not to respondent No. 4 and other concerned members of the staff that the petitioner was suffering humiliation and loss of liberty by her unnecessary detention in the hospital and no person could be deprived of his or her liberty even for a minute without any justification. Dr. Dukle has stated in his affidavit that the petitioner could not be discharged from hospital as 2nd and 3rd November 1991 were closed holidays. We do not appreciate this plea of Dr. Dukle. The State officials in a welfare state are not expected to take such an arbitrary plea. Once it was found that the petitioner was a normal person and the petitioner was wrongfully and illegally detained in the hospital of the Institute as later on opined by the doctors concerned, Dr. Dukle ought to have been conscious of his legal and moral obligation to discharge the petitioner from the hospital forthwith even if 2nd and 3rd November were holidays. The petitioner could be discharged from hospital on 1st November, or on 2nd and 3rd November. No one can be detained in a hospital against his or her wish even for a day. We have no doubt in our mind that the petitioner was detained in the said hospital without authority of law in any event on and after 1st November 1991. By reason of such wrongful and illegal detention, the fundamental rights of the petitioner guaranteed under Article 21 of the Constitution of India were undoubtedly infringed. The respondent No. 4 institute is a Govt. institute and is 'State' within meaning of Article 12 of the Constitution of India. The State is liable to pay reasonable compensation to the petitioner for infraction of her fundamental right under Article 21 of the Constitution of India.
12. Shri Rebello, the learned Counsel assisting the Court as amicus curiae has heavily relied on the ratio of the judgment of Bhim Singh, M.L.A. v. State of J.& K. and others, . In this case, the police had not produced the accused before the Magistrate within the requisite period as required by law. The Court held that the State had violated the fundamental rights of the petitioner guaranteed under Articles 21 and 22(2) of the Constitution. The Court held that the Police Officers who are the custodian of law and order should have the greatest respect for the personal liberty of the citizen and should not flout the law. The Court awarded compensation of Rs. 50,000/- to the petitioner for unlawful deprivation of the petitioner's liberty. This case lays down the principle applicable to such cases to the effect that even if a person is wrongly detained whether in police custody or in a mental hospital or hospital of a Govt. institute of the kind as in this case even for a minute or a day, it would lead to infraction of fundamental right guaranteed under Article 21 of the Constitution of India. In such a situation, the State is liable to pay amount of compensation to the person aggrieved for infraction of his or her right as may be quantified by the Court. We shall bear the ratio and the principle of this case in mind while passing final orders in this petition.
13. We presume that this petitioner has approached this Court for vindicating her honour and for highlighting the dignity of the citizen which must be safeguarded by the State at any cost as assured by the preamble to the Constitution of India. Once a person is found to have been illegally detained, it is paramount duty of one and all to set right the wrong forthwith. The theory of closed holidays as an excuse for not discharging the petitioner from the hospital is totally irrelevant, arbitrary and unjust. It was most improper on the part of Dr. Dukle to justify wrongful detention of the petitioner in the said hospital without authority of law merely on the ground that the 2nd and 3rd November 1991 were closed holidays.
14. After taking an overall view of the matter, we are not persuaded to award heavy damages in this case as claimed by the petitioner. The initial action of the authorities though erroneous in law was not malafide.
15. In view of the above, we direct the respondent No. 3 to pay a sum of Rs. 10,000/- as and by way of compensation to the petitioner for her wrongful detention and for breach of her fundamental right guaranteed under Article 21 of the Constitution of India. The respondent No. 3 is directed to pay the said amount to the petitioner latest within one month from today. The respondent No. 3 shall be at liberty to fix liability of officers of the Institute by holding a domestic enquiry and recover the said amount from such officers or employees who are found at fault. The respondent No. 1 and 2 are not liable to pay any compensation amount to the petitioner. The respondent No. 3 shall issue a circular for information of the entire staff of the said Institute that the person not required to be detained in the hospital of Institute must be released forthwith even if there are intervening holidays once it is found that the person detained in hospital is a non-lunatic. In urgent and grave matters of this nature, intervening holidays cannot constitute a lawful excuse for continued detention of a person.
16. Having regard to the facts and circumstances of the case, we direct respondent No. 3 to pay a sum of Rs. 1000/- towards the cost of the petition to the petitioner.
17. The Court expresses its thanks and gratitude to Mr. Rebello, the learned Counsel of this Court, for his valuable assistance to this Court as an Amicus Curiae.