https://bombayhighcourt.nic.in/data/judgements/2012/CRWP85612.pdf
ash 1 wp-856.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.856 OF 2012
1. Niraj Ramesh Jariwala, )
Age: 35 years, Occ: Service, )
2. Ramesh Vitthaldas Jariwala, )
Age: 66 years, Occ: Retired. )
3. Hansa Ramesh Jariwala, )
Age : 62 years, Occ: Household, )
All residing at Tirupati Supreme )
Enclave, K/29, Jalidar Nagar, )
Paithan Road, Aurangabad. )
4. Ravindra Dagadu Gaikwad, )
Age : 38 years, Occ: Chairman of )
Bharat Ratna Indira Gandhi )
Engineering College, Solapur, )
Residing at 65, Antroli Nagar1, )
Solapur. )
5. Anamika Ravindra Gaikwad, )
Age : 32 years, Occ: Director of )
Bharat Ratna Indira Gandhi )
Engineering College, Solapur. )
Residing at 65, Antroli Nagar1, )
Solapur. ).. Petitioners
( Orig. Accused )
Versus
1. Mahadeo Pandurang Nikam, )
Police SubInspector, )
Navghar Police Station, Mumbai )
2. The Senior Inspector of Police, )
Navghar Police Station, Mumbai. )
3. Sheetal Niraj Jariwala, )
Age : Adult, Occ: Household, )
Residing at Plot No.1001, )
Manisha Tower, Tata Colony, )ash 2 wp-856.12
Navghar Road, Mulund (East), )
Mumbai – 400 081. )
4. The Commissioner of Police, )
For Greater Bombay, at Bombay. )
5. The State of Maharashtra, )
( Notice to be served upon A.P.P., )
High Court, A.S., Mumbai.) ).. Respondents
( Respondent No.3/
Orig.Complainant)
–
Shri Sachin Deokar i/by Shri V.V. Purwant for the Petitioners.
Shri D.B. Shukla i/by Shri Yogesh D. Dalvi for Respondent No.1.
Shri A.S. Gadkari, APP for the State.
CORAM : A.S. OKA & S.S. SHINDE, JJ
DATE ON WHICH SUBMISSIONS WERE HEARD : 3RD DECEMBER, 2012
DATE ON WHICH JUDGMENT IS PRONOUNCED: 21ST DECEMBER,2012
JUDGMENT ( PER A.S.OKA, J)
1. This is one more glaring case of gross violation of Article
21 of the Constitution of India and that also at the hands of the Police
machinery which is supposed to be protector of common man. The
victims are the second and third Petitioners who are senior citizens.
2. We may note here that by an order dated 31st October,
2012, we directed that the Writ Petition shall be heard and disposed of
finally. This Court noted in the said order that what survives for
consideration is the prayer Clauses (b) and (d) which concern illegalash 3 wp-856.12
detention of the second and third Petitioners. The first Petitioner and
the third Respondents are husband and wife. The Second and third
Petitioners are parents of the first Petitioner. On 29th November, 2011,
at the instance of the third Respondent, the first Information Report was
registered with Navghar Police Station, Mumbai, complaining about the
offences under Sections 498A, 406, 323, 504 read with Section 34 of
the Indian penal Code against the Petitioners. As far as the arrest of
the Second and third Petitioners is concerned, following are the
admitted facts which are borne out from the record.
(i) The Respondent No.1 who was at the relevant time
SubInspector of Police attached to Navghar Police
Station, Mumbai was deputed to Aurangabad under
the permission of the Assistant Commissioner of
Police, Mulund Region. The station diary entry to that
effect has been recorded at 10.40 on 2nd December,
2011.
(ii) The first Respondent took the second and third
Petitioners into custody at 22.50 on 2nd December
2011 at Aurangabad, but were not shown as arrested.
The first Respondent brought them to Bombay. ash 4 wp-856.12
(iii) The station diary entry dated 3rd December, 2011
records that at 20.20, the second and third Petitioners
were produced before the Senior Inspector of Police
Shri Bhorde of Navghar police station. It is recorded
that the first Respondent was investigating into the
offence. It is recorded that the Second and third
Petitioners were placed in the custody of the two
Police Constables bearing buckle Nos.97015 and
8040305.
(iv) The Station Diary entry of 4th December 2011 at 08.10
shows that the second and third Petitioners were
shown as arrested and the information about their
arrest was conveyed to one Manoj Baburao Nishandar,
Solapur on his cell phone.
(v) On 4th December 2011, the second and third Petitioners
were taken from the Police station at 10.45 for
producing them before the Court of the learned
Metropolitan Magistrate. They were actually
produced before the learned Metropolitan Magistrate
at 15.05 on 4th December 2011 and they were
enlarged on bail. ash 5 wp-856.12
(vi) We must note that the aforesaid facts are admitted
facts.
3. We may note here that the order dated 19th June 2012 of
this Court records that the investigation of the case has been transferred
to Vikhroli Police Station and, therefore, the notice was issued only as
regards the prayer clauses (b) to (d). The prayer (b) is for issuing
direction to take action against the first Respondent for noncompliance
with the directions issued by the Apex Court in the case of D.K. Basu Vs.
State of West Bengal [(1997) 1 SCC 416 ]. Prayer (c) is for grant of
compensation on account of illegal arrest. Prayer (d) is for directing
the fourth Respondent to initiate disciplinary proceedings against the
first Respondent. The learned counsel appearing for the Petitioners
pointed out that going by the record, the first Respondent took the
second and third Petitioners into the custody at 20.50 on 2nd December
2011 at Aurangabad. The first Respondent brought them to Navghar
Police Station at 20.20 on 3rd December 2011. However, till 8.10 on 4th
December 2011, they were not shown as arrested though they were in
custody continuously from 20.50 on 2nd December 2011. It is urged that
this action is patently illegal and is in violation of Articles 21 and 22 of
the Constitution of India as well as Section 57 Code of Criminal
Procedure, 1973 ( hereinafter referred to as “the CRPC”). He pointed
out various allegations made in the Petition as regards inhumanash 6 wp-856.12
treatment meted out to the second and third Petitioners in the onward
journey from Aurangabad to Navghar Police Station at Mulund. He
pointed out that both the second and third Petitioners were senior
citizens on the relevant date. His submission is that apart from
initiating action in accordance with law, in view of gross violation of the
guidelines laid down by the Apex Court in the case of D.K. Basu (supra)
and in view of violation of Articles 21 and 22 of the Constitution of
India, the Petitioners are entitled to substantial amount by way of
compensation.
4. The learned counsel appearing for the first Respondent,
apart from the earlier affidavit dated 2nd April 2012, has tendered
additional affidavit affirmed on 3rd December 2012. His submission is
that the first Respondent has acted as per the instructions of the Senior
Inspector of Police of Navghar Police Station and as per the instructions
of the said officer, he brought the second and third Petitioners to the
Navghar Police Station and has made an entry in the station diary in the
night of 3rd December 2011 showing that they were produced before the
Senior Inspector of Police who in turn handed over their custody to the
two Police Constables. He submitted that all further actions at the
police station are by the Senior Inspector of Police and the first
Respondent has merely followed his directions. He denied the
allegations made in the Petition. He pointed out that though theash 7 wp-856.12
second and third Petitioners were taken into custody at 20.50 on 2nd
December 2011, onward journey from Aurangabad to Mumbai took 20
hours and, therefore, if the period of 20 hours is excluded, the second
and third Petitioners were produced before the learned Magistrate
within 24 hours from the time of arrest. His submission is that neither
there is any violation of Articles 21 and 22 of the Constitution of India
nor Section 57 of the CRPC. He urged that all the guidelines laid down
in the case of D.K. Basu (supra) have been complied with. He,
therefore, submitted that there is no illegality committed by the first
Respondent.
5. The learned APP has produced the station diary and all the
relevant documents before this Court. He pointed out that all the
relevant station diary entries were made by the first Respondent and the
illegality has been committed by the first Respondent. As regards
compliance with the directions in the case of D.K. Basu (supra), he
urged that the station diary records that the reasons for arrest were
informed to the second and third Petitioners and their close relatives.
However, he could not show us any Memorandum of Arrest drawn in
compliance with the directions in the case of D.K. Basu (surpa). He
urged that as the entire default is on the part of the first Respondent,
even if this Court is inclined to direct compensation to be paid, the
same will have to be made payable by the first Respondent. ash 8 wp-856.12
6. Before dealing with the factual aspects, it will be necessary
to make a reference to the directions issued by the Apex Court in the
case of D.K. Basu (supra). Paragraphs 35 to 38 thereof read thus :
35. We, therefore, consider it appropriate to
issue the following requirements to be
followed in all cases of arrest or detention
till legal provisions are made in that behalf
as preventive measures:
(1) The police personnel carrying out the
arrest and handling the interrogation of
the arrestee should bear accurate, visible
and clear identification and name tags
with their designations. The particulars
of all such police personnel who handle
interrogation of the arrestee must be
recorded in a register.
(2) That the police officer carrying out
the arrest of the arrestee shall
prepare a memo of arrest at the time
of arrest and such memo shall be
attested by at least one witness, who
may either be a member of the family
of the arrestee or a respectable
person of the locality from where the
arrest is made. It shall also be
countersigned by the arrestee and
shall contain the time and date of
arrest.
(3) A person who has been arrested or
detained and is being held in custody
in a police station or interrogation
centre or other lockup, shall be
entitled to have one friend or relative
or other person known to him or
having interest in his welfare being
informed, as soon as practicable, thatash 9 wp-856.12
he has been arrested and is being
detained at the particular place,
unless the attesting witness of the memo
of arrest is himself such a friend or a
relative of the arrestee.
(4) The time, place of arrest and venue of
custody of an arrestee must be notified
by the police where the next friend or
relative of the arrestee lives outside the
district or town through the Legal Aid
Organisation in the District and the
police station of the area concerned
telegraphically within a period of 8 to
12 hours after the arrest.
(5) The person arrested must be made
aware of this right to have someone
informed of his arrest or detention as
soon as he is put under arrest or is
detained.
(6) An entry must be made in the diary at
the place of detention regarding the
arrest of the person which shall also
disclose the name of the next friend of
the person who has been informed of
the arrest and the names and particulars
of the police officials in whose custody
the arrestee is.
(7) The arrestee should, where he so
requests, be also examined at the time
of his arrest and major and minor
injuries, if any present on his/her body,
must be recorded at that time. The
“Inspection Memo” must be signed both
by the arrestee and the police officer
effecting the arrest and its copy
provided to the arrestee.
(8) The arrestee should be subjected to
medical examination by a trained doctor
every 48 hours during his detention inash 10 wp-856.12
custody by a doctor on the panel of
approved doctors appointed by Director,
Health Services of the State or Union
Territory concerned. Director, Health
Services should prepare such a panel for
all tehsils and districts as well.
(9) Copies of all the documents including
the memo of arrest, referred to above,
should be sent to the Illaqa Magistrate
for his record.
(10) The arrestee may be permitted to meet
his lawyer during interrogation, though
not throughout the interrogation.
(11) A police control room should be
provided at all district and State
headquarters, where information
regarding the arrest and the place of
custody of the arrestee shall be
communicated by the officer causing the
arrest, within 12 hours of effecting the
arrest and at the police control room it
should be displayed on a conspicuous
notice board.
36. Failure to comply with the requirements
hereinabove mentioned shall apart from
rendering the official concerned liable for
departmental action, also render him liable
to be punished for contempt of court and
the proceedings for contempt of court may be
instituted in any High Court of the country,
having territorial jurisdiction over the matter.
37. The requirements, referred to above flow
from Articles 21 and 22(1) of the
Constitution and need to be strictly
followed. These would apply with equal force
to the other governmental agencies also to
which a reference has been made earlier.ash 11 wp-856.12
38. These requirements are in addition to the
constitutional and statutory safeguards and do
not detract from various other directions given
by the courts from time to time in connection
with the safeguarding of the rights and dignity
of the arrestee.
(emphasis added)
7. It is also necessary to make a reference to what is laid
down in Paragraph 4 of the decision of the Apex Court in the case of
Sheela Barse Vs. State of Maharashtra [(1983)2 SCC 96]. In
Paragraph 4 of the said decision, it is held thus:
“4. We may now take up the question as to how
protection can be accorded to women prisoners in
police lockups. We put forward several suggestions to
the learned Advocate appearing on behalf of the
petitioner and the State of Maharashtra in the course
of the hearing and there was a meaningful and
constructive debate in court. The State of Maharashtra
offered its full cooperation to the Court in laying down
the guidelines which should be followed so far as
women prisoners in police lockups are concerned and
most of the suggestions made by us were readily
accepted by the State of Maharashtra. We propose to
give the following directions as a result of
meaningful and constructive debate in court in
regard to various aspects of the question argued
before us:
(i) We would direct that four or five police lock
ups should be selected in reasonably good
localities where only female suspects should be
kept and they should be guarded by female
constables. Female suspects should not be kept
in a police lockup in which male suspects are
detained. The State of Maharashtra has
intimated to us that there are already threeash 12 wp-856.12
cells where female suspects are kept and are
guarded by female constables and has assured
the Court that two more cells with similar
arrangements will be provided exclusively for
female suspects.
(ii) We would further direct that interrogation of
females should be carried out only in the
presence of female police officers/constables.
(iii) Whenever a person is arrested by the police
without warrant, he must be immediately
informed of the grounds of his arrest and in
case of every arrest it must immediately be
made known to the arrested person that he
is entitled to apply for bail. The Maharashtra
State Board of Legal Aid and Advice will
forthwith get a pamphlet prepared setting out
the legal rights of an arrested person and the
State of Maharashtra will bring out sufficient
number of printed copies of the pamphlet in
Marathi which is the language of the people in
the State of Maharashtra as also in Hindi and
English and printed copies of the pamphlet in
all the three languages shall be affixed in each
cell in every police lockup and shall be read
out to the arrested person in any of the three
languages which he understands as soon as he
is brought to the police station.
(v) We would direct that in the City of Bombay, a
City Sessions Judge, to be nominated by the
principal Judge of the City civil court,
preferably a lady Judge, if there is one, shall
make surprise visits to police lockups in the
city periodically with a view to providing the
arrested persons an opportunity to air their
grievances and ascertaining what are the
conditions in the police lockups and whether
the requisite facilities are being provided and
the provisions of law are being observed and
the directions given by us are being carried
out. If it is found as a result of inspection that
there are any lapses on the part of the police
authorities, the City Sessions Judge shall bringash 13 wp-856.12
them to the notice of the Commissioner of
Police and if necessary to the notice of the
Home Department and if even this approach
fails, the City Sessions Judge may draw the
attention of the Chief Justice of the High Court
of Maharashtra to such lapses. This direction in
regard to police lockups at the district
headquarters shall be carried out by the
Sessions Judge of the district concerned.
(vi) We would direct that as soon as a person is
arrested, the police must immediately
obtain from him the name of any relative or
friend whom he would like to be informed
about his arrest and the police should get in
touch with such relative or friend and
inform him about the arrest; and lastly....”
( emphasis supplied)
8. It will be also necessary to make a reference to the decision
of the Apex Court in the case of Siddharam Satlingappa Mhetre v. State
of Maharashtra, [(2011)1 SCC 694] and in particular paragraph 118
which reads thus :
“118. In case the arrest is imperative, according to
the facts of the case, in that event, the arresting
officer must clearly record the reasons for the
arrest of the accused before the arrest in the case
diary, but in exceptional cases where it becomes
imperative to arrest the accused immediately, the
reasons be recorded in the case diary immediately
after the arrest is made without loss of any time.”
(emphasis added)
It will be also necessary to make a reference to the decisions
of the Apex Court in the case of M.C. Abraham v. State of Maharashtraash 14 wp-856.12
[(2003)2 SCC 649]. In Paragraph 14 of the said decision, the Apex
Court held thus:
“14. Tested in the light of the principles aforesaid, the
impugned orders dated 1012002 and 1112002
must be held to be orders passed by overstepping the
parameters of judicial interference in such matters. In
the first place, arrest of an accused is a part of the
investigation and is within the discretion of the
investigating officer. Section 41 of the Code of
Criminal Procedure provides for arrest by a police
officer without an order from a Magistrate and
without a warrant. The section gives discretion to the
police officer who may, without an order from a
Magistrate and even without a warrant, arrest any
person in the situations enumerated in that section. It
is open to him, in the course of investigation, to arrest
any person who has been concerned with any
cognizable offence or against whom reasonable
complaint has been made or credible information has
been received, or a reasonable suspicion exists of his
having been so concerned. Obviously, he is not
expected to act in a mechanical manner and in all
cases to arrest the accused as soon as the report is
lodged. In appropriate cases, after some investigation,
the investigating officer may make up his mind as to
whether it is necessary to arrest the accused person. At
that stage the court has no role to play. Since the
power is discretionary, a police officer is not
always bound to arrest an accused even if the
allegation against him is of having committed a
cognizable offence. Since an arrest is in the nature
of an encroachment on the liberty of the subject
and does affect the reputation and status of the
citizen, the power has to be cautiously exercised. It
depends inter alia upon the nature of the offence
alleged and the type of persons who are accused of
having committed the cognizable offence. Obviously,
the power has to be exercised with caution and
circumspection.”
(emphasis added) ash 15 wp-856.12
9. In the light of the aforesaid law laid down by the Apex
Court, now the facts of the case will have to be appreciated. The
station diary entry made at 22.50 hours on 2nd December 2012 by the
Usmanpura Police Station, Aurangabad records that the first
Respondent who was the Sub Inspector of Police of Navghar Police
Station, Mumbai, informed that he was taking the second and third
Petitioners from their residence at Aurangabad for the purposes of
investigation of the offence registered at the instance of the third
Respondent. It will be necessary to make a reference to the version of
the first Respondent in the first affidavit dated 2nd April 2012. In
Paragraph 5 of the said affidavit, he has stated thus:
“5. I say that after the registration of the offence,
investigation commence and pursuant whereof, the
Petitioner No.2 & 3 were taken into in the
custody for purpose of the investigation and I
have visited the house of the Petitioner and take
them to local police station and accordingly the
concern police station was informed for taking
them to Mumbai for the purpose of investigation
and entry in police Station Usmanpura at
Aurangabad was made.”
(emphasis added)
10. Thus, the first Respondent himself has admitted that he
had taken the second and third Petitioners into custody for the purposes
of investigation. Thus, there is no doubt that in the night of 2nd
December 2011 at about 22.50, the first Respondent took the secondash 16 wp-856.12
and third Petitioners into custody at Aurangabad and the first
Respondent brought them to Navghar Police Station at Mulund,
Mumbai. The station diary entry at 20.20 of 3rd December 2011 of
Navghar Police Station, Mumbai records that the first Respondent
produced the second and third Petitioners before the Senior Inspector of
Police Shri Bhorde. It also records that the Accused (Second and third
Petitioners ) were handed over in the custody of the two Police
Constables. As far as this aspect is concerned, the version of the first
Respondent in his first affidavit is very vague. The same reads thus:
“After reaching to the Mumbai to concern Police
Station i.e. Navghar Police Station they have
produced before Senior Police Officer. During
course of initial investigation reveal the
involvement of the Petitioner Nos. 2 and 3 and
therefore, they were come to be arrested.
Accordingly they have been produced before the
concern Court and Hon’ble Court was pleased
enlarge them on bail.”
(emphasis added)
The version of the first Respondent in the subsequent affidavit reads
thus:
“The Petitioner and Respondent reached to
Mumbai at about 8.20 pm. by that time Court
hours are over. The Respondent No.1 produced
the Petitioner Nos.1 & 2 before the Senior
Officer and accordingly diary made. The Senior
Officer directed the respondent No.1 to keep
them in rest room as the accused cannot be
produced before the court even if there would
take decision of their arrest save and except on
next day. Therefore, the senior P.I personally made
an enquiry with the Accused. The copy of Stationash 17 wp-856.12
House diary entry at Sr. No.46 dated 3.12.2011 is
annexed hereto and marked as Exhibit “D”.”
(emphasis added)
Undisputedly only on 4th December 2011 at 08.10, the second and third
Petitioners were shown as arrested and were produced before the
learned Metropolitan Magistrate, Bhoiwada at 15.05 on the same day.
11. Thus, the arrest of the second and third Petitioners made
by the first Respondent at Aurangabad is just before 20.50 on 2nd
December 2011. At that time no entry of arrest was made in the
station diary at Usmanpura Police Station, Aurangabad in terms of the
guidelines laid down by the Apex Court. There was no Arrest Memo
drawn at Aurangabad. In terms of the decision in the case of Sheela
Barse (supra), though the third Petitioner is a woman, she was not
informed about her right to apply for bail. Within 24 hours from 20.50
on 2nd December 2011, they were not produced before the nearest
Magistrate. In fact, the first Respondent ought to have produced them
before the learned Magistrate at Aurangabad. Moreover, though they
were brought to Navghar Police Station at Mumbai at 20.20 on 3rd
December 2011, they were illegally detained in the police station
without showing them arrested and were ultimately shown as arrested
on the next day morning at 08.10. Shockingly after admitting in the
first affidavit that he had taken the second and third Petitioners into theash 18 wp-856.12
custody at Aurangabad for investigation, in the second affidavit in reply
in Paragraph 4, the first Respondent has come out with the following
excuse:
“Hence, it is submitted that the accused/ petitioner
No.2 and 3 were produced within 24 Hours if
journey period is excluded as contemplated under
Section 57 of the Code of the Criminal Procedure.”
12. In so many words, the first Respondent has stated in the
first affidavit that the second and third Petitioners have been taken into
custody for the purposes of investigation. There is no other mode of
taking the Accused into the custody for investigation save and except by
arresting them. Thus, the said Petitioners were arrested just before
20.50 on 2nd December 2011 at Aurangabad. But they were shown as
arrested in Mumbai at 08.10 on 4th December 2011. They were thus
illegally detained by the Police nearly for 35 hours and 40 minutes. The
decision in the case of Siddharam Satlingappa Mhetre (supra) was not
followed. There is no entry made in the station diary as to why they
were arrested. Memorandum of arrest was not drawn. Entry of arrest
was not made in the station diary of Usmanpura Police station at
Aurangabad. Therefore, this is a case of gross violation of the directions
issued by the Apex Court in the case of D.K. Basu (supra), Sheela Barse
(supra) and Siddharam Satlingappa Mhetre (supra). This is also a
case of gross violation of the Articles 21 and 22 of the Constitution ofash 19 wp-856.12
India as the directions in the case of D.K. Basu (supra) flow from the
Articles 21 and 22. It is shocking to note that 12 years after the
decision in the case of D.K. Basu (supra) under which directions were
issued which were already a part of the earlier decisions of the Apex
Court, the officers of the Maharashtra Police have shown a complete
disrespect and disregard to the binding directions. We may note here
that by introducing Section 41B in CRPC by Section 6 of Amendment
Act No.5 of 2009, the directions in the case of D.K. Basu (supra) have
been incorporated in the Statute .
13. Thus, there is a violation of fundamental rights of the
second and third Petitioners guaranteed under Article 21 of the
Constitution of India. There is also a violation of clauses (1) and (2) of
the Article 22 of the Constitution of India. This case of blatant violation
of human rights shocks the conscience of the Court.
14. Now the other issue is regarding grant of compensation. In
the case of Nilabati Behera v. State of Orissa [(1993)2 SCC 746], the
issue regarding grant of compensation in a public law remedy was
considered by the Apex Court. In Paragraphs 17 and 22, it was held
thus:
“17. 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 theash 20 wp-856.12
Constitution, is an acknowledged remedy for
enforcement and protection of 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
in 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 or 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 Sah1 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.”
“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
Sah1 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 Sah1 and others in that line
have to be understood and Kasturilal8
distinguished therefrom. We have considered
this question at some length in view of theash 21 wp-856.12
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.”
15. In the case of Suber Singh v. State of Haryana [(2006)3
SCC 178], in Paragraph 46, the Apex Court held thus:
“46. In cases where custodial death or custodial
torture or other violation of the rights guaranteed
under Article 21 is established, the courts may award
compensation in a proceeding under Article 32 or 226.
However, before awarding compensation, the Court
will have to pose to itself the following questions: (a)
whether the violation of Article 21 is patent and
incontrovertible, (b) whether the violation is gross and
of a magnitude to shock the conscience of the court,
(c) whether the custodial torture alleged has resulted
in death or whether custodial torture is supported by
medical report or visible marks or scars or disability.
Where there is no evidence of custodial torture of a
person except his own statement, and where such
allegation is not supported by any medical report or
other corroborative evidence, or where there are clear
indications that the allegations are false or
exaggerated fully or in part, the courts may not award
compensation as a public law remedy under Article 32
or 226, but relegate the aggrieved party to the
traditional remedies by way of appropriate
civil/criminal action.”
16. Lastly, on this aspect, it will be necessary to make a
reference to the decision of the Apex Court dated 9th September 2011 in
the case of Raghuvansh Dewanchand Bhasin v State of Maharashtra &
Another ( in Criminal Appeal No.1758 of 2011). In Paragraph 19 of theash 22 wp-856.12
said decision, the Apex Court held thus:
“The power and jurisdiction of this Court and the
High Courts to grant monetary compensation in
exercise of its jurisdiction respectively under
Articles 32 and 226 of the Constitution of India
to a victim whose fundamental rights under
Article 21 of the Constitution are violated are
thus, well established. However, the question now
is whether on facts in hand, the appellant is entitled
to monetary compensation in addition to what has
already been awarded to him by the High Court.
Having considered the case in the light of the fact
situation stated above, we are of the opinion that
the appellant does not deserve further monetary
compensation.”
(emphasis added)
18. Coming back to the facts of the present case, by taking the
affidavits of the first Respondent as it is and going by the record of the
Police Station in the form of station diary entries, this is a case where
virtually it is an admitted position that the directions contained in the
decision in the case of D.K. Basu (supra) were breached. Though the
Petitioners were in fact arrested at Aurangabad, they were illegally
detained for about 36 hours before they were actually shown as
arrested and few hours thereafter, they were produced before the
learned Metropolitan Magistrate. Thus, there is gross violation of
Articles 21 and clauses (1) and (2) 0f Article 22 of the Constitution of
India. As we have narrated earlier, there is no dispute on facts and the
aforesaid conclusions follow from the facts which are not disputed.
Therefore, this is a case where the second and third Petitioners can seekash 23 wp-856.12
compensation on the ground of violation of fundamental rights
guaranteed under Articles 21 of the Constitution of India in a public
law remedy. At this stage, it will be necessary to make a reference to
the decision of the Division Bench of this Court in the case of Veena
Sippy Vs. Narayan Dumbre (2012) ALL MR (Cri) 1263) to which one of
us ( Shri A.S. Oka, J ) is a party . This Court considered various
decisions of the Apex Court in which the compensation on account of
illegal detention was granted when the public law remedy was adopted.
This was a case where the Petitioner who was a woman was illegally
detained in contravention of the directions of the Apex Court in the case
of D.K. Basu (supra). The said judgment shows that the Petitioner
therein was illegally detained in police custody from the evening of 4th
April 2008 till 12.30 noon of 5th April 2008. In the said decision, this
Court granted compensation of Rs.2,50,000/ with interest thereon at
the rate of 8% per annum from the date of illegal detention. This Court
also directed payment of costs of Rs.25,000/. The State Government
has complied with the directions given in the said decision by accepting
the same.
19. In the present case, the age of both the Petitioners (second
and third Petitioners) is above 60 years. They were arrested at 20.50
on 2nd December 2011 at Aurangabad and were brought to Navghar
Police Station, Mulund, Mumbai from Aurangabad at 20.20 on 3rdash 24 wp-856.12
December 2011. They were taken from Aurangabad at 22.50 and they
reached Navghar Police Station, Mulund, Mumbai, nearly after 22
hours. They were shown as arrested in the morning of 4th December
2011 and were released on bail in the afternoon. Though the said
Petitioners were arrested just before 20.50 0n 2nd December 2011 at
Aurangabad, they were shown as arrested in Mumbai at 08.10 on 4th
December 2011. They were thus illegally detained by the Police nearly
for 35 hours and 40 minutes. As they were not shown as arrested for
a period over 35 hours, they could not apply for bail. Apart from gross
violation of their fundamental rights, there is a gross breach of the
directions issued by the Apex Court from time to time. There is no
dispute about the facts. Therefore, in the present case, both the second
and third Petitioners are entitled to reasonable compensation of
Rs.2,50,000/ each. Interest payable on the said amount will be at the
rate of 8% per annum from the date of filing of the present Petition i.e.
28th February 2012.
20. The other issue is whether the compensation should be
made payable by the first Respondent. The first Respondent has
submitted that he has acted as per the instructions of the Senior
Inspector of Police. Here we may note that the station diary entry
made at 20.20 on 3rd December 2011 of Navghar Police Station records
that the first Respondent produced the second and third Petitionersash 25 wp-856.12
before the Senior Inspector of Police Shri Bhorde. Thus, the Senior
Inspector of Police was aware at that time regarding illegal detention of
the second and third Petitioners. Notwithstanding this, on the next
date in the morning at 08.10 hours, the second and third Petitioners
were shown as arrested.
21. Whether the first Respondent acted as per the instructions
of the Senior Inspector of Police and whether the Senior Inspector of
police has played any role are the matters which cannot be decided in
writ jurisdiction. Suffice it to say that when the gross violation of
fundamental rights under Articles 21 of the Constitution of India at the
hands of the police officers of the State is established, the compensation
will have to be paid by the State Government and it will be open for the
State Government to recover the same from the officers found guilty of
dereliction of duty by following due process of law. It is also necessary
to direct the Commissioner of Police, Mumbai, to nominate either a
Joint Commissioner of Police or Additional Commissioner of Police to
hold an inquiry for ascertaining as to who is responsible for violation of
fundamental rights of the second and third Petitioners guaranteed
under Article 21 of the Constitution of India. On the basis of the report,
the State Government will have to initiate appropriate proceedings
against the concerned erring police officers in accordance with law. ash 26 wp-856.12
22. Before parting with the judgment, we may record here that
the learned APP has fairly assisted the Court by pointing out correct
factual position and by showing all the relevant entries in the station
diary.
23. Accordingly, we dispose of the Petition by passing the
following order:
ORDER :
(a) We hold that the detention of the second and third
Petitioners by the officers of Navghar Police Station,
Mulund, Mumbai, from 2nd December 2011 till 4th
December 2011 is illegal and there has been a gross
violation of the fundamental right of the second and
third Petitioners guaranteed under Article 21 of the
Constitution of India;
(b) We direct the Fifth Respondent – State of
Maharashtra to pay compensation of Rs.2,50,000/
each to the second and third Petitioners together
with interest thereon at the rate of 8% per annum
from 28th February 2012 till realisation or payment.
We grant time of eight weeks from today either toash 27 wp-856.12
pay the amount directly to the second and third
Petitioners or to deposit the same in the Court;
(c) We make it clear that it will be open for the State
Government to initiate appropriate proceedings for
recovery of the said amounts from the erring police
officials who are responsible for the illegalities;
(d) We direct the Commissioner of Police, Mumbai, to
appoint an appropriate higher officer not below the
rank of Joint Commissioner of Police or Additional
Commissioner of Police to hold an inquiry for fixing
the responsibility for the illegalities committed by
the police officers of Navghar Police Station,
Mulund, Mumbai. We keep open all the issues in
that behalf ;
(e) The inquiry shall be completed within a period of
three months from today. On the basis of the
inquiry report, the State Government shall initiate
necessary action against the erring Police Officials;ash 28 wp-856.12
(f) We direct the State Government to pay costs of this
Petition quantified at Rs.25,000/ to the second and
third Petitioners within eight weeks from today;
(g) Costs shall be paid directly to the second and third
Petitioners or deposited in this Court within a period
of eight weeks from today;
(h) In the event the amount of compensation as well as
the amount of costs is deposited in this Court, it will
be open for the second and third Petitioners to
withdraw the said amounts;
(i) Rule is made partly absolute on above terms;
(j) All concerned to act on authenticated copy of
Judgement.
( S.S. SHINDE, J ) ( A.S. OKA, J )
