2017 ALL MR (Cri) 406
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A. S. OKA AND A. A. SAYED, JJ.
Mr. Satish Banwarilal Sharma Vs. Union Territory of Diu, Daman and Dadra & Nagar Haveli & Ors.
Criminal Writ Petition No.1545 of 2016
22nd December, 2016.
Petitioner Counsel: Shri M.K. KOCHAREKAR i/b Shri PAWAN MALI
Respondent Counsel: Ms. PURNIMA H. KANTHARIA, Shri ASHISH SINGH and Shri RAHUL SINHA i/b DSK LEGAL, Mrs. S.V. SONAWANE, APP
Constitution of India, Arts.14, 21 - Illegal hand cuffing - Claim for compensation - Petitioner was journalist and he published news items for exposing ill-deeds of Government Officers - He was paraded in hand cuffed condition from bus stand to police station by police constable - On day of incident he was already in police custody for offence u/S.384 IPC - Evidence not showing that Magistrate had permitted his hand cuffing - Hand cuffing of petitioner was in violation of fundamental rights - Amount of 4 lakh granted as compensation - Also direction given to initiate disciplinary proceedings against officers for fixing responsibility for lapse. 2012 (1) SCC 748, 2006 ALL MR (Cri) 1486 (S.C.), 2013 ALL SCR (O.C.C.) 36, 1995 (3) SCC 743, 1980 (3) SCC 526 Ref. to. (Paras 10, 11, 12, 13, 14, 15)
Prem Shankar Shukla Vs. Delhi Administration, (1980) 3 SCC 526 [Para 10]
Citizens for Democracy Vs. State of Assam, (1995) 3 SCC 743 [Para 11]
Nilabati Behera (Smt) Alias Lalita Behera (Through the Supreme Court Legal Aid Committee) Vs. State of Orissa and Others, 2013 ALL SCR (O.C.C.) 36=(1993) 2 SCC 746 [Para 12]
Sube Singh Vs. State of Haryana, 2006 ALL MR (Cri) 1486 (S.C.)=(2006) 3 SCC 178 [Para 13]
Hardeep Singh Vs. State of M.P, (2012) 1 SCC 748 [Para 14]
A.S. OKA, J. :- The case made out in the Petition is that on 2nd July 2009 after the Petitioner was remanded to the police custody remand in connection with a criminal case for the offences punishable under Sections 384 and 506 of the Indian Penal Code, from Bus Stand at Daman to Police Station Daman, he was paraded through crowded market area in handcuffed condition by three police constables. The contention is that the said act was in gross violation of the rights and liberty guaranteed to the Petitioner under Articles 14 and 21 of the Constitution of India. Therefore, the prayer in this Petition under Article 226 of the Constitution of India is for grant of compensation of Rs.5 crores. The second substantive prayer is for issuing a direction to the Administrator of Union Territory of Daman & Diu and Dadra & Nagar Haveli (for short "The Union Territory") as well as the Union of India to initiate departmental action against the second to eighth Respondents for their misconduct.
2. The Petitioner is claiming to be a Managing Editor of a daily newspaper (Savera India Times). It is claimed in the Petition that the said newspaper is widely circulated in the area of Daman, Diu, and Gujarat since the last 16 years. It is alleged that various misdeeds of the Government officials have been exposed by the Petitioner in the said newspaper without any fear or favour. It is claimed that the Petitioner has gained a reputation as a clean and honest journalist.
3. The Petitioner, as set out in the Petition, has written articles in the newspaper on the high-handed action of the police of the said Union Territory. According to the Petitioner, he exposed ill-deeds of Shri Satyagopal who was the then Administrator of the said Union Territory. He has referred to various news items published in June 2009 for exposing the alleged misdeeds of the said Shri Satyagopal (the second Respondent). The allegation is that the second Respondent got angry and got registered a false First Information Report (FIR) bearing No.31 of 2009 against the Petitioner at Diu Police Station. The FIR was registered with the Police Station at Diu making allegations of commission of offence under Sections 384, 504 and 506 of the Indian Penal Code. It is claimed by the Petitioner that he surrendered to the police after registration of the said FIR and he was arrested on 30th June 2009 at about 20.30 hrs by Diu Police Station. The allegation is that though the Petitioner was arrested by Diu Police Station, he was brought to the City of Daman in police custody which is 700 kms away from Diu area. He was taken by bus from Diu Bus Station to Daman which arrived at Daman on 2nd July 2009 at about 16.30 hrs. It is alleged that on that date, he was paraded in handcuffed condition from Daman Bus Stand to Daman Police Station. He was taken through the main and crowded market area of Daman City. It is alleged that by this conduct, the image of the Petitioner in the eyes of Society was tarnished.
4. The Petitioner made representations to various authorities. The Petitioner has referred to certain civil and criminal cases filed against him. A legal notice was issued by the Petitioner on 6th October 2009 to the second Respondent and others calling upon them to pay compensation of Rs.1 crore. The Administrator of the Union Territory appointed the Deputy Collector(HO) and SDM to conduct an inquiry into the incident of handcuffing. The said Officer came to the conclusion that the incident was not proved. The Petitioner had complained about the incident to the Press Council of India. On 17th November 2011, the Press Council of India passed a detailed order directing that a fresh inquiry be held. On the basis of that order, the Administrator of the Union Territory appointed the learned Principal District & Sessions Judge, Dadra and Nagar Haveli, Silvassa as an Inquiry Officer. After publishing a public notice, an inquiry was conducted by the learned Principal District & Sessions Judge. He recorded the statements of various witnesses and came to the conclusion that the Petitioner was paraded and handcuffed from Daman Bus Stand to the Police Station at Daman. On 11th December 2015, the Press Council of India passed an order by which the Report of the Principal District Judge was accepted.
6. The learned counsel appearing for the Petitioner while relying upon various decisions of the Apex Court submitted that the of illegal handcuffing of the Petitioner amounts to gross violation of the fundamental rights guaranteed to the Petitioner under Article 21 of the Constitution of India. He urged that apart from the police constables/police officers, even the second Respondent has played a major role in handcuffing and parading the Petitioner thereby lowering his dignity and prestige in the eyes of the members of public. He submitted that considering the gross violation of Article 21 of the Constitution of India, the Petitioner has adopted a public law remedy for seeking compensation and other reliefs. He urged that substantial amount be granted by way of compensation.
7. The learned counsel appearing for the Union Territory as well as fourth, fifth and tenth Respondents urged that the Petitioner cannot seek reliefs which are prayed for by taking recourse to the writ jurisdiction. The learned counsel appearing for the second Respondent submitted that the second Respondent has played no role in the alleged act of handcuffing and parading the Petitioner. On a query made by this Court to the learned counsel representing the Administrator of the Union Territory and the learned counsel appearing for the second Respondent, learned Counsel stated that the inquiry report dated 15th November 2014 submitted by the learned Principal District & Sessions Judge at Dadra & Nagar Haveli has not been challenged.
8. We have given careful consideration to the submissions. On the basis of the directions issued by the Press Council of India that the learned Principal District & Sessions Judge was appointed as the Inquiry Officer by the Administrator of the Union Territory. It appears that public notices of the said inquiry were issued. Copies of the public notices published in the newspapers are annexed to the Petition. Before the learned Principal District Judge, the Petitioner examined himself and various other witnesses. Paragraphs 23 to 25 of the report dated 15th November 2014 submitted by the learned Principal District Judge, read thus:
"23. All the witnesses, who are examined on behalf of the complainant in this enquiry have specifically deposed that on 02/07/2009 between 4 p.m and 5 p.m they had seen three policemen carrying complainant Satish Sharma by road from bus stand to police station Nani Daman and he was hand cuffed. Complainant has filed on record paper cuttings of Jansansar, The Territory Times, Janakrosh, The India Highlight. All these papers would show that news of hand cuffing of the complainant and paraded him in roads of Nani Daman was published in these papers.
24. Zerox copy of enquiry report of Chanchal Yadav, IAS, SDM, Daman is filed on record. There is reference of statements of ASI Shri Govind Raja, Police Head Constable Shri Bharat Devji Bamania and Police Constable Shri Kishore P. Solanki. All these police officials in their respective statement before SDM, Daman/Enquiry Officer contended that they had carried complainant Satish Sharma on 02.07.2009 to Daman from Diu in Crime No.31/2009 of Police Station Diu.
25. So taking into consideration oral evidence of the complainant referred above together with the fact that said version is supported by as many as 15 witnesses and news published in the newspapers referred above, in my opinion, the complainant has proved that after he was remanded to police custody remand in Crime No.31/2009 for the offences punishable under Sections 384, 506 of the Indian Penal Code of Police Station Diu, on 02.07.2009 he was taken to Daman from Diu and from bus stand Nani Daman to Police Station Daman, he was paraded in the streets in hand cuff condition by three police officials namely ASI Shri Govind Raja, Police Head Constable Shri Barat Devji Bamania and Police Constable Shri Kishore P. Solanki." (emphasis added)
9. It is pointed out that the Press Council of India by its Adjudication dated 11th December 2015 accepted the detailed report of the Inquiry Officer (the Principal District & Sessions Judge) running into 17 pages. The administration of the Union Territory did not dispute or challenge the report of the Learned Principal District Judge.
10. In view of the unchallenged report of the learned Principal District & Sessions Judge which is based on the appreciation of evidence of the witnesses examined before him, we will have to proceed on the footing that the Petitioner was paraded through the streets from the bus stand at Nani Daman to Daman Police Station in handcuffed condition, as found by the learned Principal District & Sessions Judge. As stated earlier, at that time, the Petitioner was an undertrial prisoner. As far as the handcuffing is concerned, the law has been laid down by the Apex Court in the decision in the case of Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526. Paragraphs 22 to 27 of the said decision read thus:
"22. Handcuffing is prima facie inhuman and, therefore, unreasonable, is overharsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict 'irons' is to resort to zoological strategies repugnant to Article 21. Thus, we must critically examine the justification offered by the State for this mode of restraint. Surely, the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonised. To prevent the escape of an under trial is in public interest, reasonable, just and cannot, by itself, be castigated. But to bind a man handandfoot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our constitutional culture. Where then do we draw the humane line and how far do the rules err in print and praxis?
23. Insurance against escape does not compulsorily require handcuffing. There are other measures whereby an escort can keep safe custody of a detenu without the indignity and cruelty implicit in handcuffs or other iron contraptions. Indeed, binding together either the hands or the feet or both has not merely a preventive impact, but also a punitive hurtfulness. Manacles are mayhem on the human person and inflict humiliation on the bearer. The Encyclopaedia Britannica, Vol. II (1973 Edn.) at p. 53 states "Handcuffs and fetters are instruments for securing the hands or feet of prisoners under arrest, or as a means of punishment". The three components of 'irons' forced on the human person must be distinctly understood. Firstly, to handcuff is to hoop harshly. Further, to handcuff is to punish humiliatingly and to vulgarise the viewers also. Iron straps are insult and pain writ large, animalising victim and keeper. Since there are other ways of ensuring security, it can be laid down as a rule that handcuffs or other fetters shall not be forced on the person of an under trial prisoner ordinarily. The latest police instructions produced before us hearteningly reflect this view. We lay down as necessarily implicit in Articles 14 and 19 that when there is no compulsive need to fetter a person's limbs, it is sadistic, capricious, despotic and demoralizing to humble a man by manacling him. Such arbitrary conduct surely slaps Article 14 on the face. The minimal freedom of movement which even a detainee is entitled to under Article 19 (see Sunil Batra [(1978) 4 SCC 494 : 1979 SCC (Cri) 155] ) cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstances so hostile to safe keeping.
24. Once we make it a constitutional mandate that no prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort - and we declare that to be the law - the distinction between classes of prisoners becomes constitutionally obsolete. Apart from the fact that economic and social importance cannot be the basis for classifying prisoners for purposes of handcuffs or otherwise, how can we assume that a rich criminal or under trial is any different from a poor or pariah convict or under trial in the matter of security risk? An affluent in custody may be as dangerous or desperate as an indigent, if not more. He may be more prone to be rescued than an ordinary person. We hold that it is arbitrary and irrational to classify prisoners, for purposes of handcuffs, into 'B' class and ordinary class. No one shall be fettered in any form based on superior class differentia, as the law treats them equally. It is brutalising to handcuff a person in public and so is unreasonable to do so. Of course, the police escort will find it comfortable to fetter their charges and be at ease but that is not a relevant consideration.
25. The only circumstance which validates incapacitation by irons - an extreme measure - is that otherwise there is no other reasonable way of preventing his escape, in the given circumstances. Securing the prisoner being a necessity of judicial trial, the State must take steps in this behalf. But even here, the policeman's easy assumption or scary apprehension or subjective satisfaction of likely escape if fetters are not fitted on the prisoner is not enough. The heavy deprivation of personal liberty must be justifiable as reasonable restriction in the circumstances. Ignominy, inhumanity and affliction, implicit in chains and shackles are permissible, as not unreasonable, only if every other less cruel means is fraught with risks or beyond availability. So it is that to be consistent with Articles 14 and 19 handcuffs must be the last refuge, not the routine regimen. If a few more guards will suffice, then no handcuffs. If a close watch by armed policemen will do, then no handcuffs. If alternative measures may be provided, then no iron bondage. This is the legal norm.
26. Functional compulsions of security must reach that dismal degree where no alternative will work except manacles. We must realise that our fundamental rights are heavily loaded in favour of personal liberty even in prison, and so, the traditional approaches without reverence for the worth of the human person are obsolete, although they die hard. Discipline can be exaggerated by prison keepers; dangerousness can be physically worked up by escorts and sadistic disposition, where higher awareness of constitutional rights is absent, may overpower the finer values of dignity and humanity. We regret to observe that cruel and unusual treatment has an unhappy appeal to jail keepers and escorting officers, which must be countered by strict directions to keep to the parameters of the Constitution. The conclusion flowing from these considerations is that there must first be well grounded basis for drawing a strong inference that the prisoner is likely to jump jail or break out of custody or play the vanishing trick. The belief in this behalf must be based on antecedents which must be recorded and proneness to violence must be authentic. Vague surmises or general averments that the under trial is a crook or desperado, rowdy or maniac, cannot suffice. In short, save in rare cases of concrete proof readily available of the dangerousness of the prisoner in transit - the onus of proof of which is on him who puts the person under irons - the police escort will be committing personal assault or mayhem if he handcuffs or fetters his charge. It is disgusting to see the mechanical way in which callous policemen, cavalier fashion, handcuff prisoner in their charge, indifferently keeping them company assured by the thought that the detainee is under "iron" restraint.
27. Even orders of superiors are no valid justification as constitutional rights cannot be kept in suspense by superior orders, unless there is material, sufficiently stringent, to satisfy a reasonable mind that dangerous and desperate is the prisoner who is being transported and further that by adding to the escort party or other strategy he cannot be kept under control. It is hard to imagine such situations. We must repeat that it is unconscionable, indeed, outrageous, to make the strange classification between better class prisoners and ordinary prisoners in the matter of handcuffing. This elitist concept has no basis except that on the assumption the ordinary Indian is a subcitizen and freedoms under Part III of the Constitution are the privilege of the upper sector of society." (emphasis added)
"KULDIP SINGH, J.-
"We clearly declare - and it shall be obeyed from the Inspector General of Police and Inspector General of Prisons to the escort constable and the jailwarder - that the rule, regarding a prisoner in transit between prison house and court house, is freedom from handcuffs and the exception, under conditions of judicial supervision we have indicated earlier, will be restraints with irons, to be justified before or after. We mandate the judicial officer before whom the prisoner is produced to interrogate the prisoner, as a rule, whether he has been subjected to handcuffs or other 'irons' treatment and, if he has been, the official concerned shall be asked to explain the action forthwith in the light of this judgment."
Ordained this Court - speaking through V.R. Krishna Iyer, J. - in Prem Shankar Shukla v. Delhi Admn. [(1980) 3 SCC 526 : 1980 SCC (Cri) 815 : (1980) 3 SCR 855]
2. In Sunil Batra v. Delhi Admn. [(1978) 4 SCC 494 : 1979 SCC (Cri) 155 : (1979) 1 SCR 392] this Court pronounced that undertrials shall be deemed to be in custody, but not undergoing punitive imprisonment. Fetters, especially bar fetters, shall be shunned as violative of human dignity, both within and without prisons. The indiscriminate resort to handcuffs when accused persons are taken to and from court and the expedient of forcing irons on prison inmates are illegal and shall be stopped forthwith save in small category of cases where an undertrial has a credible tendency for violence and escape, a humanely graduated degree of 'iron' restraint is permissible if - other disciplinary alternatives are unworkable. The burden of proof of the ground is on the custodian. And if he fails, he will be liable in law. Reckless handcuffing and chaining in public degrades and puts to shame finer sensibilities and is a slur on our culture.
3. The law declared by this Court in Shukla case [(1980) 3 SCC 526 : 1980 SCC (Cri) 815 : (1980) 3 SCR 855] and Batra case [(1978) 4 SCC 494 : 1979 SCC (Cri) 155 : (1979) 1 SCR 392] is a mandate under Articles 141 and 144 of the Constitution of India and all concerned are bound to obey the same. We are constrained to say that the guidelines laid down by this Court and the directions issued repeatedly regarding handcuffing of undertrials and convicts are not being followed by the police, jail authorities and even by the subordinate judiciary. We make it clear that the law laid down by this Court in the abovesaid two judgments and the directions issued by us are binding on all concerned and any violation or circumvention shall attract the provisions of the Contempt of Courts Act apart from other penal consequences under law. "
In the same decision very clear directions have been issued by the Apex Court in paragraphs 16 onwards which read thus:
"16. We declare, direct and lay down as a rule that handcuffs or other fetters shall not be forced on a prisoner - convicted or undertrial - while lodged in a jail anywhere in the country or while transporting or in transit from one jail to another or from jail to court and back. The police and the jail authorities, on their own, shall have no authority to direct the handcuffing of any inmate of a jail in the country or during transport from one jail to another or from jail to court and back.
17. Where the police or the jail authorities have wellgrounded basis for drawing a strong inference that a particular prisoner is likely to jump jail or break out of the custody then the said prisoner be produced before the Magistrate concerned and a prayer for permission to handcuff the prisoner be made before the said Magistrate. Save in rare cases of concrete proof regarding proneness of the prisoner to violence, his tendency to escape, he being so dangerous/desperate and the finding that no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff the prisoner.
18. In all the cases where a person arrested by police, is produced before the Magistrate and remand - judicial or nonjudicial - is given by the Magistrate the person concerned shall not be handcuffed unless special orders in that respect are obtained from the Magistrate at the time of the grant of the remand.
19. When the police arrests a person in execution of a warrant of arrest obtained from a Magistrate, the person so arrested shall not be handcuffed unless the police has also obtained orders from the Magistrate for the handcuffing of the person to be so arrested.
20. Where a person is arrested by the police without warrant the police officer concerned may if he is satisfied, on the basis of the guidelines given by us in para above, that it is necessary to handcuff such a person, he may do so till the time he is taken to the police station and thereafter his production before the Magistrate. Further use of fetters thereafter can only be under the orders of the Magistrate as already indicated by us.
21. We direct all ranks of police and the prison authorities to meticulously obey the abovementioned directions." (emphasis added)
Coming back to the facts of the case, the learned Principal District Judge found that on 1st July 2009, when the Petitioner was produced before the learned Judicial Magistrate First Class at Diu, he was remanded to Police custody till 7th July 2009. Thus, on the date of the incident of handcuffing, the Petitioner was in Police custody. It is nobody's case that the learned Magistrate had permitted his handcuffing. Hence, the action of handcuffing and parading the Petitioner through the streets is completely contrary to the directions of the Apex Court in the aforesaid decision. Moreover, this amounts to gross violation of the fundamental rights of the Petitioner. The petitioner was thus humiliated and subjected to enormous embarrassment.
12. In the case of Nilabati Behera (Smt) Alias Lalita Behera (Through the Supreme Court Legal Aid Committee) v. State of Orissa and Others (1993) 2 SCC 746 : [2013 ALL SCR (O.C.C.) 36] in Paragraphs 10 and 22, the Apex Court held thus:
"10. In view of the decisions of this Court in Rudul Sah v. State of Bihar [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : (1983) 3 SCR 508] , Sebastian M. Hongray v. Union of India [(1984) 1 SCC 339 : 1984 SCC (Cri) 87 : (1984) 1 SCR 904(I)] , Sebastian M. Hongray v. Union of India [(1984) 3 SCC 82 : 1984 SCC (Cri) 407 : (1984) 3 SCR 544(II)] , Bhim Singh v. State of J & K [1984 Supp SCC 504 : 1985 SCC (Cri) 60] , Bhim Singh v. State of J & K [(1985) 4 SCC 677 : 1986 SCC (Cri) 47] , Saheli: A Women's Resources Centre v. Commissioner of Police, Delhi Police Headquarters [(1990) 1 SCC 422 : 1990 SCC (Cri) 145] and State of Maharashtra v. Ravikant S. Patil [(1991) 2 SCC 373 : 1991 SCC (Cri) 656] the liability of the State of Orissa in the present case to pay the compensation cannot be doubted and was rightly not disputed by the learned Additional Solicitor General. It would, however, be appropriate to spell out clearly the principle on which the liability of the State arises in such cases for payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in an action on tort. It may be mentioned straightaway that award of compensation in a proceeding under Article 32 by 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. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings. We shall now refer to the earlier decisions of this Court as well as some other decisions before further discussion of this principle.
22. The above discussion indicates the principle on which the court's power under Articles 32 and 226 of the Constitution is exercised to award monetary compensation for contravention of a fundamental right. This was indicated in Rudul Sah [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : (1983) 3 SCR 508] and certain further observations therein adverted to earlier, which may tend to minimise the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of this Court in Rudul Sah [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : (1983) 3 SCR 508] and others in that line have to be understood and Kasturilal [(1965) 1 SCR 375 : AIR 1965 SC 1039 : (1965) 2 Cri LJ 144] distinguished therefrom. We have considered this question at some length in view of the doubt raised, at times, about the propriety of awarding compensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is a clear case for award of compensation to the petitioner for the custodial death of her son."
13. In its decision in the case of Sube Singh v. State of Haryana (2006) 3 SCC 178 : [2006 ALL MR (Cri) 1486 (S.C.)], the Apex Court reiterated the law on the issue of grant of compensation in a public law remedy under Article 226 of the Constitution of India on the ground of violation of fundamental rights guaranteed by Article 21. Paragraphs 31 and 38 of the said decision read thus:
"Compensation as a public law remedy
31. Though illegal detention and custodial torture were recognised as violations of the fundamental rights of life and liberty guaranteed under Article 21, to begin with, only the following reliefs were being granted in the writ petitions under Article 32 or 226:
(a) direction to set at liberty the person detained, if the complaint was one of illegal detention.
(b) direction to the Government concerned to hold an inquiry and take action against the officers responsible for the violation.
(c) if the enquiry or action taken by the department concerned was found to be not satisfactory, to direct an inquiry by an independent agency, usually the Central Bureau of Investigation.
Award of compensation as a public law remedy for violation of the fundamental rights enshrined in Article 21 of the Constitution, in addition to the private law remedy under the law of torts, was evolved in the last twoand-a-half decades.
38. It is thus now well settled that the award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in the enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under Section 357 of the Code of Criminal Procedure." (emphasis added)
14. In the case of Hardeep Singh vs State of M.P. (2012) 1 SCC 748, the Apex Court held that the compensation of Rs.70,000/- granted by a High Court on account of illegal handcuffing was inadequate. The Apex Court enhanced the amount to Rs.2,00,000/-. The incident of handcuffing in the said case was of 1992. The Petitioner has prayed for grant of compensation of Rs.5 crores. While we hold that this is a case of gross violation of the fundamental rights of the Petitioner guaranteed under Article 21 of the Constitution of India as well as gross breach of the directions of the Apex Court, we find that there is no basis set out for the compensation claimed of Rs.5 crores. Considering the fact that the Petitioner is a Journalist and claims to have published news items for exposing ill-deeds of the Government officers, we deem it appropriate to direct the Union Territory to pay compensation quantified at Rs.4 lakhs to the Petitioner. If the amount is not paid within the stipulated time, interest will have to be paid on the said amount. Moreover, for claiming additional compensation, the regular remedy of filing a suit is always available to the Petitioner.
15. As we have held that the action of the concerned Respondents was completely violative of Article 21 of the Constitution of India, needless to add that the appropriate disciplinary proceedings will have to be initiated against the erring officers. The Union Territory can always hold and inquiry for fixing the responsibility for the lapse. It is free to recover the amount from those members of the staff who are found responsible for the violations.
(a) We hold that the administration of the said Union Territory has violated the fundamental rights of the Petitioner guaranteed under Article 21 of the Constitution of India by illegally handcuffing and parading him on 2nd July 2009;
(b) We direct the Administrator of the Union Territory to initiate inquiry for fixing the responsibility for this illegality. The proceedings initiated shall be taken to the logical conclusion;
(c) We direct the Union Territory to pay compensation of Rs.4,00,000/- ( Rupees four lakhs) to the Petitioner within a period of two months from the date on which this judgment and order is uploaded. We clarify that the remedy of the Petitioner of filing a suit to recover additional compensation is kept open;
(d) In the event of the failure to pay the said amount within the stipulated time, the Union Territory shall be liable to pay interest on the said amount at the rate of 9% per annum to the Petitioner till realization from the date of this judgment and order;
(e) It will be open to the Administrator of the Union Territory to take steps for recovery of the aforesaid amount from the erring officers after following due process of law;
(f) Rule is partly made absolute on above terms;
(g) By way of costs of this Petition, we direct that the Union Territory to pay a sum of Rs.25,000/- to the Petitioner within a period of two months from today.