THE HIGH COURT OF MEGHALAYA AT SHILLONG. WP(C) No.66/2012 Shri. [ENTITY], S/o M Dkhar, R/o Nongkhyriem, Nongthymmai, Shillong-14. Petitioner -Vs- 1. The [ENTITY] represented by the Chief Secretary to the Govt. of Meghalaya, Shillong. 2. The [ENTITY]. 3. The [ENTITY]. 4. The [ENTITY]. 5. The [ENTITY]. 6. The [ENTITY]. 7. The [ENTITY]. 8. Shri. [ENTITY], S/o (L) S.R. Khongwir, C/o Sebastian Lyngdoh, Jaiawn Laitdom West Block-2 Shillong-793002. East Khasi Hills District, Meghalaya, Respondents. Page 1 of 29 BEFORE THE HONBLE MR JUSTICE T NANDAKUMAR SINGH For the Petitioner : Mrs. [ENTITY], Adv For the Respondents : Mr. [ENTITY], GA. Mr. [ENTITY], Adv for respdt.No.8 Date of hearing : 31.01.2014 Date of Judgment & Order : 21.03.2014 JUDGMENT AND ORDER In this case the petitioner sought for the relief:- (i) For issuing a writ of mandamus to the respondents to conduct afresh impartial enquiry into the case and to submit a report of the enquiry before the Court and further direct the State respondents to take strong action against the respondent No.8 Shri.[ENTITY] and other police personnel involved in the incident and; (ii) To award suitable compensation to the tune of Rs.10,00,000/- (Rupees ten lakhs) only to the petitioner for violation of his fundamental rights and human rights and also mental stress and strain. 2. Heard Mrs. [ENTITY], learned counsel for the petitioner as well as Mr. [ENTITY], learned GA appearing for the respondents No.1-7. Also heard Mr. [ENTITY], learned counsel for the respondent No.8. 3. Factual Matrix: The petitioner is a local taxi driver by profession plying taxi within the city of Shillong. On 09.09.2011 at 9:15 am, the petitioner was driving his local taxi bearing registration No. ML 05 D 9327 at Laitumkhrah Road, Shillong. On reaching Ramkrishna Mission Dispensary, the rider of a private two-wheeler vehicle, who was wearing civilian clothes, honked his Page 2 of 29 horn to the petitioner for allowing him to pass through. During that hour, Dhanketi - Laitumkhrah - Fire Brigade road was a one way route due to school peak hours and further, there was a traffic jam; and as a result of which, the petitioners taxi could not allow the rider of the two-wheeler vehicle to pass through. But somehow, the rider of the said two-wheeler vehicle overtook the petitioners taxi and stopped to abuse him with foul language and threatened to take him to the police station. 4. The petitioner continued to drive his taxi and on reaching Jylli- Shop, Nongthymmai, to his utter shock and surprise, one Havildar Traffic police personnel intercepted the petitioners taxi and stated that since the petitioner had committed a traffic offence, the petitioner had to accompany him to Madanriting Traffic Branch, Madanriting Police Station. The petitioner could not recall as to having committed any traffic offence. At the same time, the petitioner called upon Local Member of District Council (MDC), Mr. [ENTITY] for necessary help. The petitioner came to know that the same person, who had driven the private two-wheeler vehicle and abused and threatened him, was wearing full police uniform (respondent No.8). 5. The respondent No.8 came forward and questioned the petitioner as to why the petitioner had not allowed him to overtake. Further, the petitioner was accused of having violated the traffic rules, and the respondent No.8 without issuing challan asked the petitioner to pay a fine of Rs.500/- for the alleged violation of traffic rules despite the fact that the petitioner had never violated the traffic rules. The petitioner informed the respondent No.8 and other police personnel that as it was early morning, he had not been able to earn much money and his difficulties to pay the huge Page 3 of 29 fine of Rs.500/-. The respondent No.8 reduced fine to "Rs.200" only. The petitioner searched his money in the taxi but found only Rs.170/-, to which the respondent No.8 stated that the petitioner had an hour to get the money or else, he would have to retrieve the taxi from the court. The petitioner pleaded to the respondent No.8 that this would cause him much hardship as he was the sole bread earner of his family. The said MDC, who had come to the Police Station, went out of the Police Station compound with the intention to borrow money for the petitioner so as to pay the amount demanded by the respondent No.8. At this juncture, the respondent No.8 without any provocation whatsoever punched the petitioner on his face, and the respondent No.8 was subsequently joined by the other police personnel who together dragged the petitioner inside the Police Station building and pushed the petitioner to a corner near a toilet and kicked the petitioner viciously. The said MDC and the Officer-in-Charge (Traffic), who witnessed the entire assault, stopped the police personnel from continuing the assault to the petitioner. 6. Again the respondent No.8 took the petitioner to a room adjacent to the Officer-in-charge room, and the respondent No.8 armed with lathi started hitting the petitioner all over his body without any provocation whatsoever. On hearing the cries of the petitioner, the said MDC rushed to the room and asked the respondent No.8 to stop hitting the petitioner. As a result of the assault by the respondent No.8, the petitioner had cut injury in his left eye and there was profuse bleeding from the petitioners left eye. On seeing the profuse bleeding of the petitioners left eye, the respondent No.8 asked the petitioner to wash his wound inside the toilet and the petitioner had the opportunity to inform his wife as to what had happened. Thereafter, the petitioner was taken to Civil Hospital, Shillong for medical treatment and Page 4 of 29 medical examination. The Doctor of Civil Hospital, Shillong examined the petitioner as an Out-Patient and recorded her opinion in the Out-Patient Ticket dated 09.09.2011 that there was lacerated injury in his left eyelid, due to assault, with sub-conjunctival hemorrhage and administered tetanus toxoid injection and prescribed five different types of medicine. Thereafter, the petitioner was led to another room where the said lacerated cut injury in the upper eyelid of the petitioner was stitched. The petitioner underwent medical treatment for five days, and the discharged report dated 14.09.2011 is reproduced below:- "DISCHARGE SUMMARY Patients Name: [ENTITY] Age: 30 years Sex Male Regd.No.11/29529 Department: Surgery Date of Admission: 10.09.2011 Date of Discharge: 14.09.2011 Clinical Summary Allegedly beaten by policeman at Madanriting police station due to a conflict for giving pass to a police who was on a bike behind while he was driving his Taxi. Then he was taken to Civil Hospital where TT was given and suturing of left upper eyelid was done. Patient complaints of pain all over body and numbness over right palm and pain over left eye and orbital region. No history of loss of consciousness/vomiting ENT bleed. Patient has giddiness and blurring of vision. On examination glasscow, scoring 15/15. Patient is conscious and oriented no pallar, icteris, lymphadinapathy CVS (cardiovascular system): within normal limits. P/A (per abdomen): within normal limits. FINAL DIAGNOSIS: Local examination-swelling over B/L (bilateral) Eyebrow lacerated wound over left upper eyelid having sutures applied purplish blue bruise over right supra orbital region. Page 5 of 29 Vision is good. Advice: Bed rest for three weeks. On discharge: Tab woveran SR 100mg BD x 7 days - Chymoral forte - BD x 7 days - Review in eye and surgery OPD after two weeks." 7. The petitioners relatives sought clarification from the respondent No.7 as to why the petitioner had been assaulted by the respondent No.8, but received none. But to the utter surprise of the petitioners relatives, the petitioners sister Smti. [ENTITY] was made to sign a bail bond for the release of the petitioner from the Police Station. However, on seeing the critical conditions of the petitioner, the petitioners sister Smti. [ENTITY] signed the bail bond. The petitioners relatives asked the respondent No.7, if they could take the petitioners taxi, the respondent No.7 replied that the vehicle had nothing to do with the incident. The relatives of the petitioner took him to his house and proceeded to the office of the respondent No.5, to complain of the assault of the petitioner by the respondent No.8 and the respondent No.5 made an assurance that he would look into the matter and punish the culprit in accordance with law. 8. The petitioner also lodged an Ejahar on the same day of the incident i.e. 09.09.2011 with the [ENTITY] with a copy to the [ENTITY], the Additional Superintendent of Police Traffic and the Secretary, EKHLWTA, [ENTITY], Shillong. The copy of the Ejahar dated 09.09.2011 filed by the petitioner is also submitted to the respondent No.4 the [ENTITY], who assured that he would direct Page 6 of 29 an enquiry to be setup and the same will be headed by the respondent No.5 i.e. the Additional Superintendent of Police Traffic, East Khasi Hills, Shillong. 9. During hospitalization of the petitioner at Nazareth Hospital, Shillong on 13.09.2011, at 10:30 am, the respondent No.5 came to the Nazareth Hospital to record the statement of the petitioner and the petitioner faithfully gave a detailed statement as to the physical assault meted out to him by the respondent No.8. On 15.09.2011 at 2:00 pm, the respondent No.7 along with family members of the respondent No.8 visited the house of the petitioner, who was still in bed rest at the time of their visit. The petitioners wife, who was in her early stage of pregnancy, was also confined to bed due to mental shock and trauma of the harassment meted out to her husband and also the entire family. During their visit, the family members of the respondent No.8 tendered unconditional apology to the petitioner for the conduct of the respondent No.8 and sought for an amicable compromise. 10. The assault of the petitioner by the police personnel i.e. the respondent No.8 in the Police Station was condemned by the public. The entire incident of torture of the petitioner by the police personnel i.e. the respondent No.8 on 09.09.2011 was reported in all the leading newspapers circulating in the [ENTITY]. The people of Meghalaya also demanded immediate enquiry and to punish the police personnel involved in torture of the petitioner on 09.09.2011. The demand so made by the public for immediate enquiry was also published in the local daily i.e. the Meghalaya Guardian on 13.09.2011 under the caption "Traffic cops rough up taxi driver" and also the face of the petitioner with lacerated wound/cut wound in the left eyelid. The said news report under the caption "Traffic cops rough up taxi driver" is reproduced below:- Page 7 of 29 "Traffic cops rough up taxi driver GUARDIAN NEWS BUREAU: SHILLONG, SEPT 12: The high handedness by the men-in- uniform against a local taxi driver has drawn condemnation from several quarters. Taking strong cognizance on the matter on the matter, the Meghalaya Peoples Human Rights Council (MPHRC) has today demanded the police department to institute an inquiry and punish the police personnel involved in the act as per law. It may be mentioned on September, 9, a local taxi driver identified as [ENTITY] from Nongkhyriem, Nongthymmai was allegedly beaten up black and blue by the police without any reason. Due to injuries, [ENTITY] was admitted at the Shillong Civil Hospital and later was shifted to Nazareth Hospital. According to the family members of [ENTITY], while [ENTITY] was driving towards Laitumkhrah, some bikes were following him from behind and started blowing horns. Since there was a heavy traffic jam, [ENTITY] failed to give pass to them. However, one person from one of the bikes (flying squad) stopped [ENTITY] and started checking and threatened to take him to the police station. On reaching Jylli Shop (Nongthymmai), another traffic police man stopped [ENTITY] and got into his vehicle and directed [ENTITY] to straightway take the vehicle to Mandanriting PS which [ENTITY] has to do so. However, on reaching the police station, the same police personnel who stopped him earlier came out along with four others and without saying a word started beating him up mercilessly. "The main reason is due to the fact that [ENTITY] has refused to pay the amount of Rs.500 demanded by the police personnel identified as Constable [ENTITY] by alleging that him for violating the traffic rules", the MPHRC alleged. The MPHRC also met the East Khasi Hills Superintendent of Police [ENTITY] on the matter. "We have demanded an immediate inquiry and to punish the police personnel involved in the act", MPHRC president [ENTITY] said. He also informed that during the meeting, the SP has assured that an inquiry will be set up which will be headed by the Additional Superintendent of Police (Traffic) HG Lyngdoh and has given 10 days time to submit the report. The SP also assured that based on the report, action will be taken accordingly, [ENTITY] informed. Further condemning the act, the MPHRC has also filed a complaint with the National Human Rights Commission (NHRC) New Delhi to intervene into the matter. Page 8 of 29 Meanwhile, concerned citizens of the city have also called up this newspaper and expressed their great condemnation against the police for their high-handedness against the taxi driver and urged upon the government to take necessary action." 11. Since the health condition of the petitioner, particularly, his injured left eye was not cured, he went again to the Nazareth Hospital on 16.09.2011 for review checkup and the Doctor gave medical prescriptions for further treatment. The petitioner also filed another application dated 18.10.2011 before the respondent No.4 to obtain copy of the enquiry report conducted by the respondent No.5 but the same was flatly refused. The petitioner through his sister filed an application under the [ACT] before the Public Information Officer, Madanriting Police Station for necessary information, like medical report examined by Dr. [ENTITY] on 09.09.2011 as well as copy of the bail bond executed by his sister. Again on 24.10.2011, an application also filed before the Public Information Officer but no reply was given by the Public Information Officer. Being aggrieved, an appeal dated 28.11.2011 was filed before the Chief Information Commissioner of the [ENTITY]. On 06.12.2011, an order was passed by the Chief Information Commissioner, Shillong, directing the Public Information Officer, Madanriting Police Station to file his show cause notice as to why he did not give the reply on 19.12.2011. On 19.12.2011, after hearing the appeal, the Chief Information Commissioner vide his order dated 19.12.2011 directed the Public Information Officer, Madanriting Police Station, Shillong to furnish the medical report as well as the bail bond to the petitioner within 15 days. 12. Pursuant to the said order of the Chief Information Commissioner, the Officer-in-Charge, Madanriting Police Station by his letter Page 9 of 29 dated 09.01.2012, furnished the medical report dated 19.12.2011 to the petitioners sister. In the meanwhile, petitioners sister had also applied for Informations application dated 23.12.2011 before the Public Information Officer, Civil Hospital, Shillong and the Joint Director of Health Services, Civil Hospital vide letter dated 12.01.2012 had furnished a copy of the petitioners medical report dated 19.12.2011 to the petitioners sister. On perusal of the medical report, it appears that inspite of the date of medical examination of the petitioner is 09.09.2011, the said medical report shows that the report was prepared only on 19.12.2011. Nevertheless, the injury of the petitioner was clearly reflected in the medical report and as such, the assault on the body of the petitioner by the respondent No.8 is not disputed. 13. The harassing and torturing the petitioner within the police station by the irresponsible police personnel amount to violation of human rights and also the fundamental rights of the petitioner under [SECTION] as well as right of freedom of movement under [SECTION] of the [ACT], and for which the State respondents and the respondent No.8 are bound to compensate the petitioner in the form of money in the public law realm under the principle of strict liability. Accordingly, the petitioner filed the present application or/case under [SECTION] of the [ACT] for invoking writ jurisdiction under public law realm for directing the respondents to pay compensation. Awarding compensation in a proceeding under [SECTION] of the [ACT] by the High Court is a remedy available in public law based on strict liability for contravention of fundamental rights to which principle of sovereign immunity does not apply. 14. Respondents No.1-7 filed joint affidavit-in-opposition wherein, the State respondents are not denying the incident on 09.09.2011 of the Page 10 of 29 assault of the petitioner by the respondent No.8 on 09.09.2011. However, the respondents tried to make a justification for the assault of the petitioner by the respondent No.8 that the petitioner had driven his taxi in a rash and negligent manner causing obstruction and traffic jam. The respondents No.1- 7 in their joint affidavit clearly stated that the incident on 09.09.2011 had culminated into the institution of two criminal cases followed by an attempt to compromise the two cases and simultaneously followed by a departmental enquiry against the respondent No.8. Para 6 of the joint affidavit filed by the respondents No.1-7 reads as follows:- "6. That with regard to the statement made in paragraph 6 and 7 of the writ petition, the answering respondent begs to state regarding the allegations made against the respondent No.8 by the petitioner, the department has taken serious note of the matter and a departmental inquiry has already been initiated against the respondent No.8 and the finding is awaited and action if required would be taken in accordance to law on receipt of the findings of the inquiry officer." 15. The respondent No.8 was furnished with a show cause notice along with statement of allegation vide order dated 20.09.2011, and as his explanation to the show cause notice dated 02.10.2011 was not satisfactory a departmental enquiry was initiated and Shri.[ENTITY], MPS, Deputy Superintendent of Police was appointed as the enquiry officer vide D.O.No.3965 dated 04.11.2011 for conducting the departmental enquiry for the charge for assault of the petitioner by the respondent No.8 in police custody. 16. PWs i.e. prosecution witnesses were examined by the enquiry officer in presence of the respondent No.8 and he was also given an opportunity to examine the prosecution witnesses. The enquiry officer, after Page 11 of 29 proper appreciation of the statements of the PWs and exhibited documents, made a finding that the charge against the respondent No.8 for assaulting the petitioner "stands proved". The finding of the enquiry report that the charge of assault of the petitioner by the respondent No.8 "stands proved" had been considered by the disciplinary authority i.e. the [ENTITY] and passed an order dated 01.08.2012 for imposing penalty punishment of censor to the respondent No.8, which reads as follows:- "OFFICE OF THE SUPERINTENDENT OF POLICE EAST KAHSI HILLS DISTRICT SHILLONG ORDER
D.O. NO. 3912 DATE 1/8/2012 Perused the findings submitted by the E.O, Shri [ENTITY], MPS, Deputy Superintendent of Police (DSB), East Khasi Hills District, Shillong pertaining to DP No. 9/11 drawn up against [CASE NUMBER] of East Khasi Hills D.E.F. I agree with the findings of the E.O. The charge that on 9th September, 2011, UBC/1760 [ENTITY] assaulted Shri [ENTITY] S/o Shri. [ENTITY] of Nongthymmai, Shillong, at Madanryting Traffic Branch who is a driver of Local Taxi No. ML - 05 - D - 9327 has been proved beyond any shred of doubt.
Assault of a traffic offender within Madanryting Traffic Branch by a Law enforcer is totally unacceptable and can neither be ignored nor condoned. The Police is looked upon as a defender of the weak, the meek and the defenceless. People expect Police to come to their rescue whenever they are confronted with situations where they feel insecure and helpless. Although, the delinquent may have encountered a situation of grave provocation, he should have taken recourse to law and deal with Shri [ENTITY] legally rather than resorting to assault. Because of such unsavoury incidents, people are reluctant to approach the Police for help and the Police Station is viewed as a place of horror. We should be looked upon as defenders of the helpless and not aggressors perse and the Police Station should be viewed as a place of refuge and justice where every gets equal protection.
The assault on [ENTITY] by the delinquent has cast aspersion on the image of the Police force as a whole.
In the light of facts discussed above, I am convinced that [CASE NUMBER] had committed an act of gross misconduct.
[CASE NUMBER] is hereby Censured as a major punishment.
The period spent under Suspension is treated as on duty. He is allowed to draw all emoluments which he would have drawn had he not been placed Under Suspension.
This disposed off DP No. 09/11.
R.I. for D.O. Sd/-
[ENTITY] District, Shillong."
17. The respondent No.8 also filed affidavit-in-opposition wherein, the respondent No.8 stated that on 09.09.2011, he was passing through Laitumkhrah road near Ramakrishna Mission Dispensary and he saw that the traffic was in total chaos and being a traffic personnel, he tried to put in order the movement of vehicles. While doing this, he found that the petitioner had illegally and against traffic rules had halted his taxi in the middle of the road.
He also saw the petitioner had heated argument with his passengers and also saw that the petitioner was slightly bleeding from his eyelid. Thereafter, the respondent No.8 asked the petitioner to move his vehicle to the side of the road. When the petitioner did not obey, he informed the petitioner that he and his taxi would be taken to the concerned police station. He also stated in his affidavit that he is not acted against the law. From his affidavit, it appears that respondent No.8 is not denying that on 09.09.2011 there was an incident and in that incident, the petitioner had cut injury in his left eyelid but the respondent No.8 stated that he is not the author of the injury. But the finding of the enquiry officer and the order of the disciplinary authority show that the respondent No.8 is the author of the injury of the petitioner and it was happened while the petitioner was under his control or under his custody.
18. The present case of assault of the petitioner by the police personnel while in their control and custody is not a new one. About more than half a century ago, the Apex Court in [PRECEDENT] held that "Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such as any other employer. The immunity of the Crown in the United Kingdom, was based on the old feudalistic notions of justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorizing or instigating one, and that he could not be sued in his own courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the Common Law Immunity never operated in India."
19. Justice [ENTITY] (as he then was) in [PRECEDENT] held that third degree treatment by the investigating officer offends human rights concept and urged to take adequate measures. Paras 2, 3 & 4 of the SCC in [ENTITY] case (Supra) read as follows:-
"2. We are deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new peril when the guardians of the law gore human rights to death. The vulnerability of human rights assumes a traumatic, torturesome poignancy; the violent violation is perpetrated by the police arm of the State whose function is to protect the citizen and not to commit gruesome offences against them as has happened in this case. Police lock-up, if reports in newspapers have a streak of credence, are becoming more and more awesome cells. This development is disastrous to our human rights awareness and humanist constitutional order.
3. The State, at the highest administrative and political levels, we hope, will organize special strategies to prevent and punish brutality by police methodology. Otherwise, the credibility of the rule of law in our Republic vis vis the people of the country will deteriorate.
4. We conclude with the disconcerting note sounded by [ENTITY];
"If you once forfeit the confidence of your fellow citizens you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time."
These observations have become necessary to impress upon the State police echelons the urgency of stamping out the vice of third degree from the investigative armoury of the police."
20. The Court cannot be a helpless spectator of the torture and harassment of the citizen by the police personnel and the Court cannot be helpless in considering the relief that could be given by the Court for violation of the fundamental rights guaranteed under [SECTION] of the [ACT] and other constitutional right. In the infamous case of [ENTITY] case i.e. Khatri & Ors (II) vs. State of Bihar & Ors: (1981) 1 SCC 627, Justice [ENTITY], J. (as he then was) speaking for the Bench observed that why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of precious fundamental right to life and personal liberty. Para 4 of the SCC in [ENTITY] case (Supra) reads as follows:-
"4. The court can certainly injunct the State from depriving a person of his life or personal liberty except in accordance with procedure established by law, but if life or personal liberty is violated otherwise that in accordance with such procedure, is the court helpless to grant relief to the person who has suffered such deprivation? Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of precious fundamental right to life and personal liberty "
21. The question posed by Justice [ENTITY], J (as he then was) in [ENTITY] case ([PRECEDENT] was expanded in subsequent decision in [ENTITY] case i.e. [PRECEDENT] thus:
"If an officer of the State acting in his official capacity threatens to deprive a person of his life or personal liberty without the authority of law, can such person not approach the court for injuncting the State from acting through such officer in violation of his fundamental right under [SECTION]? Can the State urge in defence in such a case that it is not infringing the fundamental right of the petitioner under [SECTION], because the officer who is threatening to do so is acting outside the law and therefore beyond the scope of his authority and hence the State is not responsible for his action? Would this not make a mockery of [SECTION] and reduce it to nullity, a mere rope of sand, for, on this view, if the officer is acting according to law there would exconcessionis be no breach of [SECTION] and if he is acting without the authority of law, the State would be able to contend that it is not responsible for his action and therefore there is no violation of [SECTION]. So also if there is any threatened invasion by the State of the fundamental right guaranteed under [SECTION], the petitioner who is aggrieved can move the court under [SECTION] for a writ injuncting such threatened invasion and if there is any continuing action of the State which is violative of the fundamental right under [SECTION], the petitioner can approach the Court under [SECTION] and ask for a writ striking down the continuance of such action, but where the action taken by the State has already resulted in breach of the fundamental right under [SECTION] by deprivation of some limb of the petitioner, would the petitioner have no remedy under [SECTION] for breach of the fundamental right guaranteed to him? Would the court permit itself to become helpless spectator of the violation of the fundamental right of the petitioner by the State and tell the petitioner that though the [ACT] has guaranteed the fundamental right to him and has also given him the fundamental right of moving the court for enforcement of his fundamental right, the court cannot give him any relief."
In [PRECEDENT] the petitioner therein approached this Court under [SECTION] of the [ACT] alleging that though he was acquitted by the Sessions Court on 3.6.1968, he was released from jail only on 6.10.1982, after 14 years, and sought compensation for his illegal detention. This court while recognizing that [SECTION] cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of courts, civil and criminal, raised for consideration the important question as to whether in the exercise of its jurisdiction under [SECTION], this Court can pass an order for payment of money, as compensation for the deprivation of a fundamental right. This court answered the question thus while awarding compensation: (SCC pp.147-48, para 10) "[SECTION] which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of [SECTION] secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringement of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilization is not to perish in this country as it has perished in some others too well known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioners rights. It may have recourse against those officers."
The Apex Court in [ENTITY] case (Supra) held that the Court can exercise of its jurisdiction under [SECTION], to pass an order for payment of money, as compensation for the deprivation of a fundamental right.
[SECTION]. The ratio laid down in [ENTITY] case (Supra) that awarding of compensation in a proceeding under [SECTION] by the Supreme Court or by the High Court under [SECTION] of the [ACT] 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 was also followed in [ENTITY] vs. State of J & K:
(1985) 4 SCC 677. The Gist of findings in [ENTITY]'s case (Supra) reads as follows:-
"In this case the police officers in a most high-handed and authoritarian way played with the personal liberty of an MLA. They were bent upon preventing the petitioner from attending the session of the Legislative Assembly. Police officers who are custodians of law and order should have greatest respect for the personal liberty of citizens and should not become depredators of civil liberties. Their duty is to protect and not to abduct. The orders of remand were obtained first from the Executive Magistrate and then from the Sub-Judge on the applications of the police officers without production of the accused before them. And the Magistrate and the Sub-Judge also passed the remand orders without having any concern that the person whom they were remanding orders without having any concern that the person whom they were remanding to custody had not been produced before them. They acted in a very casual way and without any sense of responsibility or genuine concern for the liberty of the subject. The police officers acted deliberately and mala fide and the Magistrate and the Sub-Judge aided them either by colluding with them or by their casual attitude. However, the responsibility lies elsewhere and with the higher echelons of the Government but it is not possible to say precisely where and with whom, on the material before the Court. But undoubtedly the constitutional rights under [SECTION] and [SECTION] of the petitioner were violated with impunity.
Since the petitioner is now not in detention, there is no need to make any order to set him at liberty. But he must be suitably and adequately compensated. When a person comes before the Court with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases Supreme Court has the jurisdiction to award monetary compensation by way of exemplary costs or otherwise. The present one is an appropriate case for such compensation. Therefore, the first respondent is directed to pay to the petitioner a sum of Rs. 50,000 within two months."
23. The Apex Court Saheli, a women's Resources Centre vs. Commissioner of Police Headquarters & Ors: (1990) 1 SCC 4[SECTION] held that the State is responsible for the tortious acts committed by its agency. In that case, downtrodden tenant was mentally and physically harassed by the landlord and the police personnel SHO even kept the children of the downtrodden tenant under lockup. The minor innocent child, who came to rescue his mother from inhuman treatment meted out to his mother, had been beaten and succumbed to his injury. The State had been directed to pay compensation to the mother of child a sum of Rs.75,000/- within four weeks. Paras 11, 12, 14 & 15 of the SCC in [ENTITY] case (Supra) read as follows:-
"11. An action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical in- juries and death. In cases of assault, battery and false imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity, loss of liberty and death. As we have held hereinbefore that the son of [ENTITY] aged 9 years died due to beating and assault by the S.H.O., [ENTITY] and as such she is entitled to get the damages for the death of her son. It is well settled now that the State is responsible for the tortious acts of its employees. The respondent No. 2, [ENTITY] is liable for payment of compensation to Smt. [ENTITY] for the death of her son due to beating by the S.H.O. of Anand Parbat Police Station, Shri [ENTITY].
12. It is convenient to refer in this connection the decision in [PRECEDENT] wherein it has been observed that:
"In the matter of liability of the State for the torts committed by its employees, it is now the settled law that the State is liable for tortious acts committed by its employees in the course of their employment."
14. In [PRECEDENT] one of the labourers who was taken to the police station for doing some work and on demand for wages was severely beaten and ultimately succumbed to the in- juries. It was held that the State was liable to pay compensation and accordingly directed that the family of the deceased labourer will be paid Rs. 75,000 as compensation.
15. On a conspectus of these decisions we deem it just and proper to direct the [ENTITY], respondent No. 2 to pay compensation to [ENTITY], mother of the deceased, [ENTITY] a sum of Rs.75,000 within a period of four weeks from the date of this judgment. The [ENTITY] may take appropriate steps for recovery of the amounts paid as compensation or part thereof from the officers who will be found responsible, if they are so advised. As the Police officers are not parties before us, we state that any observation made by us in justification of this order shall not have any beating in any proceedings specially criminal prosecution pending against the police officials in connection with the death of [ENTITY]. The writ petitions are disposed of accordingly."
24. The Apex Court in [PRECEDENT] held that "the public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under [SECTION] by the Supreme Court or under [SECTION] by the High Courts, for established infringement of the indefeasible right guaranteed under [SECTION] of the [ACT] is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting compensation in proceedings under [SECTION] or [SECTION] of the [ACT] seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making monetary awards under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of exemplary damages awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort.
25. It is now well settled that award of compensation is an appropriate and effective remedy for redress of an established infringement of a fundamental right under [SECTION], of the [ACT]. This court (Justice [ENTITY]) also considered some of the important cases wherein the Apex court exercising its jurisdiction under [SECTION] awarded compensation, i.e. [PRECEDENT], [PRECEDENT] in many cases viz: (i) [PRECEDENT] [PRECEDENT] and (iii) [PRECEDENT].
26. The Apex Court in D.K. Basu Vs State of West Bengal:
(1997) 1 SCC 416 (para 9 and [SECTION] of the SCC) held as follows:
"9. The importance of affirmed rights of every human being needs no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the citizens. Custodial violence, including torture and death in the lock ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shied of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law- enforcing officers is a matter of deep concern in a free society. These petitions raise important issues concerning police powers, including whether monetary compensation should be awarded for established infringement of the Fundamental Rights guaranteed by [SECTION] and [SECTION] of the [ACT]. The issues are fundamental.
[SECTION]. Custodial death is perhaps one of the worst crimes in a civilized society governed by the rule of law. The rights inherent in [SECTION] and [SECTION] of the [ACT] require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of [SECTION] of the [ACT], whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed Issue notice calling upon the respondents to show cause as to why contempt proceedings under [SECTION] of the [ACT] read with [ACT] should not be initiated as prayed for; or why such further or other orders should for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchanism. No civilized nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policemen arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic "No". the precious right guaranteed by [SECTION] of the [ACT] cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law".
27. The Apex Court in Sube Singh vs. State of Haryana & Ors:
(2006) 3 SCC 178 held that:
"Compensation as a public law remedy
31. Though illegal detention and custodial torture were recognized as violations of fundamental rights of life and liberty guaranteed under [SECTION], to begin with, only the following reliefs were being granted in the writ petition under [SECTION] or [SECTION]:
(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 [SECTION] of the [ACT], in addition to the private law remedy under the law of torts, was evolved in the last two-and-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 [SECTION], 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, or come in the way of the criminal court ordering compensation under [SECTION] of the [ACT]."
28. The Apex Court in [ENTITY] case (Supra) further held that degree of proof required in a criminal prosecution has been softened by the earlier decisions of the Supreme Court; in writ proceedings for compensation as public law remedy for violation of [SECTION] of the [ACT].
Para 47 of the SCC in [ENTITY] case (Supra) read as follows:
"47 The public law remedy is additionally available where the conditions mentioned in the earlier paragraph are satisfied. We may also note that this Court has softened the degree of proof required in criminal prosecution relating to such matters. In [PRECEDENT], reiterated in [PRECEDENT] and [PRECEDENT], this Court observed: (SCC pp.272-73, paras 16-17) " [R]arely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available, Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues,
The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact situations and the peculiar circumstances of a given case, , often results in miscarriage of justice and makes the justice-delivery system suspect. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are in the increase, receive encouragement by this type of an unrealistic approach of the courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture."
29. The Law Commission in its 113th Report recommended for amendments to the [ACT] so as to provide that in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person while in police custody, the court may presume that injury was caused by the officer having the custody of that person during that period unless the police offer proves to the contrary. The onus to prove the contrary must be discharged by the police officer. The Apex Court in [PRECEDENT] held that:
"8. Though [SECTION] and [SECTION] of the [ACT] (for short the '[ACT]') make punishable those persons who cause hurt for the purpose of extorting the confession by making the offence punishable with sentence up to 10 years of imprisonment, but the convictions, as experience shows from track record have been very few compared to the considerable increase of such onslaught because the atrocities within the precincts of the police station are often left without much traces or any ocular or other direct evidence to prove as to who the offenders are. Disturbed by this situation the Law Commission in its 113th Report recommended amendments to the [ACT] (in short the '[ACT]') so as to provide that in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when the person was in the police custody, the court may presume that the injury was caused by the police officer having the custody of that person during that period unless the police officer proves to the contrary. The onus to prove the contrary must be discharged by the police official concerned. Keeping in view the dehumanizing aspect of the crime, the flagrant violation of the fundamental rights of the victim of the crime and the growing rise in the crimes of this type, where only a few come to light and others don't, the Government and the legislature must give serious thought to the recommendation of the Law Commission and bring about appropriate changes in the law not only to curb the custodial crime but also to see that the custodial crime does not go unpunished. The courts are also required to have a change in their outlook approach, appreciation and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime so that as far as possible within their powers, the truth is found and guilty should not escape so that the victim of the crime has the satisfaction that ultimately the majesty of law has prevailed."
30. The Apex Court in [PRECEDENT] held that the court must lean a little in favour of a victims. Para 6 of the SCC in [ENTITY] case (Supra) reads as follows:-
"6. We also understand that in an investigation of this kind based only on affidavits, with a hapless and destitute widow in utter despair on the one side and the might of the State on the other, the search for truth is decidedly unequal and the court must therefore tilt just a little in favour of the victims. We have chosen to examine this matter on this broad principle."
31. The Apex Court in [PRECEDENT] had awarded a sum of Rs.4 lakhs as compensation for custodial death and illegal detention by the police.
The Apex Court in [PRECEDENT] held that the fundamental rights under [SECTION] of the [ACT] cannot be kept in abeyance for convicts undertrials and prisoners allowing police to violate fundamental rights of such persons would amount to anarchy and lawlessness, which cannot be permitted in a civilized society. Any form of torture or cruel, inhuman or degrading treatment would fall within the ambit of [SECTION] of the [ACT], whether it occurs during investigation, interrogation or otherwise. No civilized nation can permit that to happen, for a citizen does not shed off his fundamental rights to life, the moment a policeman arrests him. The right to life of a citizen cannot be put in abeyance on his arrest.
Paras 19, 20, 21, 43 & 44 of the SCC in [ENTITY] case (Supra) read as follows:-
"19. We have referred to the aforesaid paragraphs of [ENTITY] Case (1997) 1 SCC 416: 1997 SCC (Cri) 92: AIR 1997 SC 610 to highlight that this Court has emphasized on the concept of mental agony when a person is confined within the four walls of police station or lockup. Mental agony stands in contradistinction to infliction of physical pain. In the said case, the two-Judge Bench referred to [SECTION] of the [ACT] which provides that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Thereafter, the Bench adverted to [SECTION] and proceeded to state that the expression "life or personal liberty" has been held to include the right to live with human dignity and thus, it would also include within itself a guarantee against torture and assault by the State or its functionaries. Reference was made to [SECTION] of the [ACT] which postulates that a person accused of an offence shall not be compelled to be a witness against himself.
20. It is worthy to note that in the case of [PRECEDENT], the concern shown by this Court in [ENTITY] v. State of U.P. :[PRECEDENT], was taken note of. In [ENTITY] case:
[PRECEDENT], this Court voiced its concern regarding complaints of violation of human rights during and after arrest. It is apt to quote a passage from the same: ([ENTITY] case [PRECEDENT], SCC pp. 263-64, paras 8-9) "8.The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violations of human rights because of indiscriminate arrests. How are we to strike a balance between the two?
9. A realistic approach should be made in this direction.
The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first - the criminal or society, the law violator or the law abider "
21. After referring to the case of [ENTITY]: [PRECEDENT] , [ENTITY], J. (as His Lordship then was), dealing with the various facets of [SECTION] in [ENTITY] case: [PRECEDENT], stated that any form of torture or cruel, inhuman or degrading treatment would fall within the ambit of [SECTION] of the [ACT], whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchy. No civilized nation can permit that to happen, for a citizen does not shed off his fundamental right to life, the moment a policeman arrests him. The right to life of a citizen cannot put in abeyance on his arrest. The precious right guaranteed by [SECTION] of the [ACT] cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.
43. In this regard, we may fruitfully refer to [PRECEDENT] wherein it has been held thus: (SCC pp. 762-63, para 17) "17 a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the [ACT], 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 [ACT], 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 [ACT] by recourse to [SECTION] and [SECTION] of the [ACT]."
44. Dr. [ENTITY] J., (as His Lordship then was), in his concurring opinion, expressed that: ([PRECEDENT] "34 The relief of monetary compensation, as exemplary damages, in proceedings under [SECTION] by the Supreme Court or under [SECTION] by the High Courts, for established infringement of the indefeasible right guaranteed under [SECTION] of the [ACT] is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting compensation in proceedings under [SECTION] or [SECTION] of the [ACT] seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making monetary amends under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of exemplary damages awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law."
32. In the given case, this Court is of the considered view that the relief of monetary compensation, as exemplary damages for established infringement of the indefeasible right of the petitioner guaranteed under [SECTION] of the [ACT] is required to be granted to the petitioner as such remedy is available in public law and the purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights.
Accordingly, by invoking the jurisdiction under [SECTION] of the [ACT], it is hereby directed that an amount of Rs.40,000/- (Rupees forty thousand) only in the given case considered above shall be paid jointly or/severally by the State respondents i.e. the respondent No.1 The [ENTITY] represented by the Chief Secretary to the Govt. of Meghalaya, respondent No.3 the [ENTITY] and respondent No.4 The [ENTITY] within a period of 40 days from the date of receipt of a certified copy of this judgment and order to the petitioner. The respondents are further directed that out of the said total amount of Rs.40,000/-, a sum of Rs.10,000/-
(Rupees ten thousand) only should be recovered from the salary of the respondent No.8 after payment to the petitioner.
33. The writ petition is allowed to the extent indicated above.
JUDGE Lam