Criminal Writ Petition No. 285 of 2011

2nd August, 2011

Petitioner Counsel: Miss T.H. Udeshi
Respondent Counsel: Shri T.A. Mirza

Cases Cited:
Rudul Sah Vs. State of Bihar and another, AIR 1983 SC 1086(1) [Para 12,15]
Smt. Nilabati Behera alias Lalita Behera Vs. State of Orissa & Ors., AIR 1993 SC 1960 [Para 14]

JUDGMENT

M. L. Tahaliyani, J. :- Rule returnable forthwith. Heard by consent.

2. The petitioner has stated that he was apprehended by Gadchiroli Police on 5th August, 2009 and was shown arrested in three cases. During the course of his detention he was acquitted in one of the said three cases and was ordered to be released on bail in second case. As far as third and last case i.e. Crime No.03/2007 of Kasansoor Police Station under Section 302 of the Indian Penal Code is concerned, it is stated by the petitioner that he was tried and the case was fixed for judgment on 28th March, 2011. The petitioner was not physically produced before the Court on that day, nor was he produced through electronic video linkage. However, a police constable had carried his warrant to the Court to get endorsement of the Officer of the Court on the warrant in respect of result of the case or the next date of hearing, as the case may be. The petitioner, however, was not intimated as to what happened on 28th March, 2011. It is on 2nd April, 2011, when his brother had visited him in Prison, that the petitioner came to know that he had been acquitted in Crime No.03/2007 (Sessions Case No.126/2009) on 28th March, 2011. As such the petitioner should have been released from the prison in the morning of 29th March, 2011.

3. The petitioner was in prison on 2nd April, 2011 when his brother had visited him. The purpose of his brother's visit was only to find out as to why the petitioner had not been released from the prison despite the fact that he was no more required in prison. The petitioner had addressed this letter dated 02-4-2011 to this Court ventilating his grievance and praying for relief, which has been treated as criminal writ petition. The petitioner has prayed that (1) he be released from the prison immediately, (2) appropriate punitive action might be taken against respondent Nos.1 and 2, and (3) respondent No.3 might be directed to pay compensation to the petitioner at the rate of Rs.5000/- per day of illegal detention.

4. Though the letter addressed to this Court by the petitioner is dated 2nd April, 2011, the same was dispatched from the prison on 19th April, 2011 and was received by this Court on 26th April, 2011. As already stated, the said letter has been treated as writ petition.

5. We have heard the learned Counsel for the petitioner and learned Additional Public Prosecutor for the respondents. Respondent No.1 is the Superintendent of Nagpur Prison, respondent No.2 is the Superintendent of Police, Gadchiroli District and respondent No.3 is the State of Maharashtra. An affidavit has been filed by acting Superintendent of Police, Gadchiroli on behalf of respondent No.2. No affidavit has been filed by the Superintendent of Nagpur Central Prison.

6. From the affidavit of respondent No.2- Superintendent of Police, Gadchiroli, it is abundantly clear that most of the facts stated by the petitioner in his petition are not disputed. It is admitted that the petitioner was acquitted in Sessions Case No.126/2009 on 29th March, 2011. It is also admitted that the petitioner was not produced either in person or through electronic video linkage before the Court either on 28th March, 2011 or on 29th March, 2011. Though the petitioner has stated that he was acquitted on 28th March 2011, respondent No.2 has stated that the order of acquittal was passed on 29th March, 2011. It is stated by respondent No.2 that the order could not be communicated to the prison due to negligence on the part of Police constable Dilip Kumre. The said Police Constable Dilip Kumre was assigned the duty to attend the Court and was further asked to carry warrants from the prison to the Court and deposit the same back to the prison after obtaining necessary endorsements on the warrants.

7. The jail warrant of the petitioner was admittedly in custody of the said Police Constable Dilip Kumre on 29th March, 2011 and it was presented before the concerned Court. It is not disputed that the Court had made necessary endorsement on the warrant in respect of the final judgment in the said Sessions case. As such, had the said warrant, with Court endorsement, reached the prison on 29th March, 2011, the petitioner would have been released on 29th March, 2011 evening itself or at the most on 30th March, 2011. It is stated in the affidavit of respondent No.2 that the enquiry conducted by his office revealed that the jail warrant with endorsement of the Court was not returned to the prison which had resulted in detention of the petitioner despite his acquittal in the said sessions case. It is not disputed that there was no case except Sessions Case No.126/2009 against the petitioner in which he was under trial prisoner. It is also not the case that the petitioner was undergoing any imprisonment. As such the petitioner was entitled to be set at liberty in the evening of 29th March, 2011 or at the most on 30th March, 2011 morning. The gross negligence on the part of Police Constable Dilip Kumre has been admitted by respondent No.2. Respondent No.2 has also stated that a regular departmental enquiry would be taken against Shri Kumre and he would be punished in accordance with law.

8. However, the claim of the petitioner for compensation is resisted on the ground that it required at least two days to carry warrant from Gadchiroli to Nagpur Central Prison.

9. The detention of the petitioner beyond 29th March, 2011 is admitted. Respondent No.2 has claimed that it takes two days to carry warrant from Gadchiroli Court to Nagpur Central Prison. As such according to respondent No.2, the warrant could have reached Nagpur Central Prison on 1st April, 2011, had the Police Constable discharged his duty diligently. Admittedly, the warrant had not reached Nagpur Central Prison on 1st April, 2011 also. It had reached the prison on 3rd April, 2011 that too only when the petitioner made complaint after getting intimation of his acquittal in Sessions Case No.126/2009.

10. We have considered the affidavit of respondent No.2 and heard the learned Additional Public Prosecutor. We do not accept the submission that it takes two days to reach from Gadchiroli to Nagpur. Gadchiroli is 160 Kms. away from Nagpur and there are at least 10 to 12 bus services daily from Gadchiroli to Nagpur. The contention of respondent No.2 that it takes two days needs to be rejected immediately. Journey period by road from Gadchiroli to Nagpur is of four hours. In case of a private vehicle, it should not be more than three hours. Assuming for the sake of argument that the Police Constable Dilip Kumre got the warrant with endorsement in the evening of 29th March, 2011 from Gadchiroli Court, the said warrant should have reached Nagpur Central Prison on 30th March, 2011 and the petitioner should have been, at any cost, released before the evening of 30th March, 2011. The petitioner has remained in prison without valid warrant from the evening of 30th March, 2011 till 3rd April, 2011. As such what can be seen from the petition and the affidavit of respondent No.2 is that the factual dispute is with regard to total number of excess days only. We have already said that by giving all concessions to the respondents the warrant should have reached Nagpur Central Prison latest by 30th March, 2011. We reject the contention of respondents that it takes two days to reach Nagpur from Gadchiroli.

11. The next question that arises for our determination is that as to whether the petitioner is entitled for compensation under Article 226 of the Constitution of India or he should be relegated to the regular civil Court to file a civil suit for the tort committed by employee of respondent No.3 i.e. State of Maharashtra.

12. The question as to whether grant of monetary relief is one of ways to prevent violation of fundamental right and to secure compliance of mandate of Article 21 came up for consideration before the Hon'ble Supreme Court in the case of Rudul Sah v. State of Bihar and another reported in AIR 1983 SC 1086(1). The Hon'ble Supreme Court while dealing with this issue at para 9 of the said judgment has observed as under :-

" 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 fourteen 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."

13. The Hon'ble Supreme Court has further observed in para 10 as under :-

" 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 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 violaters 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." (emphasis ours)

14. Similar issue was raised before the Hon'ble Supreme Court in the case of Smt. Nilabati Behera alias Lalita Behera v. State of Orissa and others reported in AIR 1993 SC 1960(1). In the said case, the Additional Solicitor General did not dispute claim of the petitioner for compensation for custodial death of her son, in view of the Supreme Court judgment in Rudal Sah. The Hon'ble Supreme Court, however, thought it appropriate to spell out clearly the principle on which the liability in public law is based and also thought it appropriate to draw a distinction between the liability under public law and the liability in private law for payment of compensation. The relevant portion of the judgment in the case of Smt. Nilabati Behera is at Para 16, which is reproduced as under:-

" 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 on 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 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 of 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 (AIR 1983 SC 1086) 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."

15. We have noted that in the case of Rudul Sah (Supra) the Hon'ble Supreme Court has said that 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 might or might not have upheld his claim. But there was no doubt that if the petitioner filed a suit to recover damages for his illegal detention, a decree for damages would have been passed in that suit, though it was not possible to predicate, in the absence of evidence, the precise amount which would have been decreed in his favour. The Supreme Court felt that the refusal of the Court to pass an order of compensation in favour of the petitioner in the circumstances of the case would be doing mere lip-service to his fundamental right to liberty which the State Government had so grossly violated.

16. In the present case also the factual position is not controverted. There is no fact in issue which needs determination by civil Court. The fact that the petitioner was detained in prison beyond the period he was liable to be detained is admitted. The only contentious issue is the time required to reach warrant to Nagpur Prison from Gadchiroli Court. In our opinion, Gadchiroli is not far away from Nagpur to take two days to send intimation. Considering the modes of communication including e mail and fax even the period consumed by the bus journey also could have been saved, particularly when the personal liberty of a person was at stake. We, therefore, reject the contention of the learned Additional Public Prosecutor that the case is not made out for grant of compensation. In our considered opinion, when violation of Article 21 is clear on the face of it and is not in controversy, this Court in exercise of its powers under Article 226 of the Constitution of India must grant compensation. This is one of the modes of preventing breach of fundamental right and secure compliance of mandate of Article 21 of Constitution of India. This relief obviously is in addition to any other relief available to the petitioner under private law. It will not be out of place to mention here that in case the petitioner sues the respondents in any other proceedings for grant of compensation, the compensation which we may grant in this proceeding will be subject to adjustment.

17. As such the last question which arises for determination is as to what should the quantum of compensation. We do not have any data as to the daily or monthly income of the petitioner. As far as personal liberty is concerned, it is very difficult to assess the pecuniary value of personal liberty of any citizen. However, the principle of reasonableness in our opinion will meet the ends of justice.

18. We, therefore, conclude that the petitioner was detained in prison from the evening of 30th March, 2011 till the morning of 3rd April, 2011 without there being any authority of law. As such, he was detained in prison for four days (31st March, 2011, 1st April, 2011, 2nd April, 2011 and one half each of 30th March, 2011 and 3rd April, 2011). The petitioner has claimed compensation at the rate of Rs.5000/- per day of illegal detention. In our opinion, the claim of the petitioner is not unreasonable, and no detail discussion on that issue is required.

19. Since the petitioner has been released from prison on 3rd April, 2011 the prayer Clause (a) does not survive. As far as prayer clause (b) is concerned, respondent No.2 has stated in the affidavit that a departmental enquiry would be initiated against the erring official and necessary action would be taken against him in accordance with law. Therefore, the said grievance stands redressed. As regards prayer Clause (c), we have come to the conclusion that claim of the petitioner for grant of compensation at the rate of Rs.5000/- for each day of illegal detention is most reasonable and there is no scope for rejecting or reducing the same. Hence, we pass the following order.

i) We direct that the Collector of Gadchiroli shall take necessary steps and shall ensure that an amount of Rs.20,000/- is paid to the petitioner by the respondent No.3 by pay order or demand draft at his residential address within thirty days of communication of this order to the office of Collector, Gadchiroli. The Collector, Gadchiroli shall submit his compliance report to this Court within fifteen days of compliance of this order.

ii) Office of the Public Prosecutor, High Court of Judicature at Bombay, Nagpur Bench, Nagpur shall communicate this order to the Collector, Gadchiroli within one week from the date of receipt of copy of this order.

iii) Copy of this order be supplied to the office of Public Prosecutor free of costs, as early as possible.

Rule made absolute accordingly.

Petition allowed.