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)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE JURISDICTION
CRIMINAL WRIT PETITION NO.1545 OF 2016
Mr. Satish Banwarilal Sharma.
Vs
Union Territory of Diu, Daman and
Dadra & Nagar Haveli and Others.
CORAM : A.S. OKA & A.A. SAYED, JJ
Dated: 22ND DECEMBER 2016
1. 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 highhanded action of the police of the
said Union Territory. According to the Petitioner, he exposed illdeeds 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.
5. Based on the findings recorded by the learned Principal
District & Sessions Judge, the reliefs in the present Petition have been
prayed.
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
Administration1
. Paragraphs 22 to 27 of the said decision read thus:
1 (1980)3 SCC 526
“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)
11. In the case of Citizens for Democracy v. State of Assam2
,
the Apex Court reiterated the law as under:
2 (1995) 3 SCC 743
“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 Others3
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
3 (1993)2 SCC 746
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
Haryana4
, 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 twoandahalf decades.
4 (2006) 3 SCC 178
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.P5
, 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 illdeeds 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
5 (2012)1 SCC 748
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.
16. As the Petitioner was driven to file this Petition, we propose
to award costs to him quantified at Rs.25,000/.
17. Accordingly, we pass the following order:
ORDER:
(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.
( A.A. SAYED, J) ( A.S. OKA, J )
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