JUDGMENT [ENTITY], J.
1. This is a petition under [SECTION] of the [ACT] filed by the petitioner, who has been arrested in connection with a murder of one [ENTITY], which took place in Solapur on 2nd of August, 1989. The petition seeks to censure the 3rd and 4th respondents for the action which they have taken against the petitioner, described hereinafter in greater details. The 1st respondent is the [ENTITY], while the 2nd respondent is the [ENTITY]. We will not refer to these two respondents in this judgment because ultimately what we are called upon to decide is whether the action of the 4th respondent is such as to merit censure and also such as to result in the payment of compensation to the petitioner. The 3rd respondent is the [ENTITY] According to the petitioner, the acts complained of by the petitioner against the 4th respondent were at the instance of the 3rd respondent. After going through the material on record, it has not been possible for us to accept the case of the petitioner that it was at the instance and the behest of the 3rd respondent that the 4th respondent committed the acts of which complaint has been made in this petition. Hence, we will also not be referring to the 3rd respondent in this judgment. The 4th respondent is the Inspector of Police, who was at the relevant time in charge of Faujdar Chavadi Police Station, Solapur.
2. Facts which have been clearly established on the basis of the material brought on record through the affidavits may be straightaway stated. We have already mentioned above that one [ENTITY] was murdered on 2nd of August, 1989. First Information Report in connection with that murder did not include the name of the petitioner as one of the suspects. However, during the course of the investigation, the police suspected that the petitioner was a party to the said murder and naturally he was to be arrested. The petitioner was in fact arrested later at a place called Tumkur in Karnataka State and was brought to Solapur in the early hours of 17th of August, 1989. The police allege that the murder of [ENTITY] was a culmination of a warfare between two gangs in Solapur. One [ENTITY] had already been arrested in connection with the said murder of [ENTITY].
3. A paper called [ENTITY], published from Solapur, carried in its issue of 17th of August, 1989 a news item submitted by its correspondent which said that the petitioner would be taken in a procession or a parade from Faujdar Chavadi Police Station through the main squares of the city for the purpose of investigation. This is somewhat unusual because the story is datelined 16th of August, 1989; the accused was brought to Solapur, according to the affidavit of the 4th respondent, half an hour after midnight of 16th and 17th of August, 1989. It may be that the correspondent of this newspaper had come to know that the petitioner had been arrested at Tumkur as mentioned above. The fact that there was a news that the petitioner would be taken out in a parade from Faujdar Chavadi Police Station through the main squares of Solapur is of some significance. There are several other facts mentioned in this copy filed by the correspondent of this paper. However, we are not taking any cognisance of the same because they are strictly of no evidentiary value as far as this petition is concerned.
4. On 17th of August, 1989, as provided by the paper, '[ENTITY]', the petitioner was handcuffed and both his arms were tied by a rope and he was taken through the streets and squares of Solapur. This fact is admitted on behalf of the respondents. In the middle part of paragraph 9 of his affidavit in reply, the 4th respondent has stated as follows :-
"It is true that the petitioner was handcuffed and tied with rope while he was taken to the above referred places for investigation purpose."
The places referred to will be mentioned by us in a short while and when we do so, it would be clear that they are all prominent places in Solapur, being main squares and leading streets. With this admitted fact, namely the fact that the petitioner was handcuffed and roped and then taken through the streets and main squares of Solapur, and with the further admitted fact that this phenomenon was witnessed by large number of people in the city, one has to consider the question as to whether this was done by the 4th respondent for the purpose of subjecting the petitioner to indignity and humiliation or for the purpose of investigation, as he contends in his affidavit-in-reply. The 4th respondent says that the petitioner was so taken through the streets and squares of Solapur for the purpose of investigation. He insists that the petitioner was not paraded. However, it was necessary to subject him to the restraints of handcuffs and ropes for the purpose of preventing his escape if the petitioner intended. It has also been mentioned by him that in some of the areas through which the petitioner was to be taken, there were members of the gang to which the petitioner belonged and there was apprehension that the said members of the gang could make an attempt to secure the release of the petitioner. We will have to examine whether these contentions of the 4th respondent are true or not.
5. Before we proceed to examine the material in this regard, we may briefly mention that the 4th respondent has in several paragraphs mentioned that the petitioner has a long criminal record. Several cases in which the petitioner is alleged to be an accused have been referred to in his affidavit. We may, however, note that the 4th respondent has not stated that the petitioner has been convicted even in a single case. The 4th respondent, of course, is free to refer to the fact that several criminal cases are pending against the petitioner, but that itself, in our opinion, would not entitle an officer of the rank of the Inspector of Police incharge of a police station to subject a person to the indignity and humiliation to which the petitioner has been subjected in this case. It has also been mentioned by the 4th respondent that the murder of [ENTITY] was the result of enmity between two gangs and the petitioner belonged to one gang. This also, in our opinion, has nothing to do with the necessity of handcuffing and roping the petitioner and then taking him through the main streets and squares of Solapur. If the murder of [ENTITY] was the result of a gang warfare, we thought that the 4th respondent would particularly see that the person of the petitioner would not be exposed in the public, as it has been done when the petitioner was paraded. By taking the petitioner openly, walking through the streets, the 4th respondent in fact took the risk of exposing the person of the petitioner to any possible attack by the members of the rival gang. Here the 4th respondent has committed an act which is devoid of proper caution expected of a senior police officer.
6. Now, we will proceed to examine whether it was necessary for the 4th respondent to take the petitioner through the streets and squares of Solapur city for the purpose of the Investigation. What was in fact an investigation which was to be conducted by the 4th respondent in the morning of 17th of August, 1989 ? The petitioner had been brought to Solapur city from Tumkur in the early hours of 17th of August, 1989, he was yet to be produced before the Magistrate for the first remand in the afternoon. What was the urgency of any steps in the investigation that were contemplated by the 4th respondent ? In order to find answer to this question, we will rely independently upon the facts disclosed by the 4th respondent himself. In the second sub-paragraph of paragraph 9 of the affidavit in reply, the 4th respondent says that the petitioner was interrogated by him in connection with the offence and, during the course of the said interrogation, the petitioner disclosed that some of the accused were goondas from Bombay and Pune and they were brought by him and lodged in Parijat Lodge, Station Road, Solapur. According to the 4th respondent, the petitioner stated that he would point out the said place. It is also stated that he would point out the house of accused [ENTITY] at Ramlal Chowk and the houses of some other persons at Lobha Master Chawl at Panjarapol Chowk and of another accused at Patra Talim area and the house of another accused near [ENTITY].
7. With the object of enabling the petitioner to point out all these places, he was taken from the Police Station first to his bungalow and then to Parijat Lodge and then to various other places as mentioned in paragraph 9 of the affidavit of the 4th respondent. Sai Prasad Lodge owned by [ENTITY] was examined by the 4th respondent and his other staff on being shown by the petitioner. The petitioner was taken to Ramlal Chowk, Panjarapol Chowk, Lobha Master Chawl via Bhayya Chowk and Mechanic Chowk. Further he was taken to what is called Patra Talim area and [ENTITY]. He was also taken to Paras Estate, Datta Chowk, Laxmi Market and the Zilla Parishad office. The houses of the persons to be identified by the petitioner were all situated, as the affidavit of the 4th respondent himself shows, at prominent places and Chowks. It is a sad commentary on the efficiency of this police officer to require the assistance of an accused person to find out the houses of other persons who were already arrested in connection with the offence - houses which are all situated in prominent squares. We presume that these squares are connected with each other by regular streets through which the petitioner was obviously taken. We do not believe that the 4th respondent is so incompetent as to require the assistance of an accused person to identify the houses of these persons who were otherwise connected with the offence into which the 4th respondent was investigating. This explanation given by the 4th respondent is, therefore, wholly unacceptable to us.
8. This is for the additional reason that no contemporaneous record of the so called investigation done with the assistance of the petitioner has been relied upon by the 4th respondent. It has not been relied upon for the simple reason that no such record exists. We asked the learned Public Prosecutor, Mr. [ENTITY], who appears for all the respondents, as to whether there is any such contemporaneous record. The answer was in the negative. Was anything recovered ? Was anything discovered ? Was anything attached during the course of this investigation ? Answers to all these questions are in the negative. It is thus crystal clear to us that the explanation of the investigation, which is now being put forth by the 4th respondent, is a false explanation. It is false also because no panchanamas were made of the investigation; the police party which took the petitioner through the streets and squares of Solapur was not accompanied by panchas. There is not even a scrap of writing to the effect that the investigation was to be made with the assistance of the petitioner.
9. Normally, if an investigation is to be done, the accused is taken in a quiet and an inconspicuous manner to the place where any investigation is to be made. One would expect that when such a dangerous character as the petitioner is to be taken to some places in the city in which, according to the police, he is playing havoc, he would be taken in a vehicle quietly without inviting the attention of the persons in the area. What has been done in the instant case is exactly the reverse of it. The petitioner was taken openly; he was taken walking; he was taken through the streets accompanied undoubtedly by a large posse of policemen. The petitioner says that there were 100 police constables, but we accept the conservative estimate given by the 4th respondent, namely that at best there were 10 to 15 policemen accompanying the petitioner and the 4th respondent, who was leading the party.
10. It is also an admitted position that behind the petitioner there was a police van. The 4th respondent says that that police van was belonging to the State Reserve Police over which he had no control. But why was that police van following him ? No answer is available in the affidavit of the 4th respondent to this question. Obviously, the 4th respondent must have requisitioned the said police van. Why was the petitioner not put into that police van ? The answer of the 4th respondent is that that police van accommodated members of the State Reserve Police and it also contained ammunitious. We do not see how despite this, if the ostensible purpose of taking the petitioner to various places was for the purpose of investigation, the petitioner could not have been accommodated for a short time in the said police van. Assuming that the explanation of the 4th respondent that the petitioner could not have been carried in the van belonging to the State Reserve Police is true, we still refuse to accept the necessity of taking the petitioner through the streets and squares of the city of Solapur in an open manner and by handcuffing him and roping him. The petitioner has annexed copies of news items on which he relies. In some of them, photographs of the incident have been published. In the issue of a paper called 'Sanchar' dated 18th of August, 1989, two photographs have been published. One of them shows the 3rd respondent, namely the Superintendent of Police, looking at the petitioner, who had already been handcuffed in the police station. The second photograph shows the petitioner right in the middle of the road surrounded by policemen in uniform and following the 4th respondent with his two hands raised in such a manner that it appears that he was leading a parade of some importance. In our opinion, this was a highly irresponsible manner in which a person accused of an offence is to be taken to whatever destination that may be.
11. We have already mentioned above that by doing this, the 4th respondent exposed the petitioner to possible retaliatory attacks by members of the rival gang. We are sure that he did not intend to do so because he had taken the trouble of surrounding the petitioner with large number of police constables who were, in turn, accompanied by a police van in which armed members of the State Reserve Police were travelling. It is inconceivable that such a large number of policemen were necessary to prevent the escape of one individual like the petitioner.
12. The explanation given by the 4th respondent, therefore, is unacceptable to us. We have already noted that [ENTITY] had already been arrested. Yet the 4th respondent says that the petitioner was taken out in order to point out the house of [ENTITY]. This and other explanations which have been given by the 4th respondent are so hopelessly implausible that no Court will ever accept the same. If some measure of plausibility were to be found in the explanation given by the 4th respondent, may be certain excessive action on his part could have been considered in a lenient manner. Looking at the incident in the context of a news item appearing in a paper of Solapur on 17th of August, 1989, which predicted that there would be a parade of the petitioner through the main squares of Solapur city starting from Faujdar Chavadi Police Station, the conduct of the 4th respondent shows nothing but an eagerness on his part to satisfy the morbid curiousity of a section of the citizens of Solapur. Probably, he won the admiration and applause of such citizens as the Bhagalpur Police won the admiration and applause of some citizens of Bhagalpur for their cruel act towards the undertrial prisoners at Bhagalpur by blinding them. It is not the function of a police officer to play to the gallery or to tickle the popular whims and to do such acts as would gain appreciation or applause from the members of the public. The primary and probably the only function of a police officer is to carry out the investigation as quickly and as efficiently as possible and to collect evidence which would commend itself to the Court for the purpose of securing a proper and legal conviction by the Court. By treating undertrial prisoners in the manner in which it has been done by the 4th respondent in the instant case, he has brought the system of investigation into disrepute.
13. The 4th respondent has subjected the petitioner to wholly unwarranted humiliation and indignity - which cannot be done to any citizen of India irrespective of whether he is accused of a minor offence or of a major offence. The nature of the offence will attract the appropriate punishment from the Court. The past history of a particular undertrial prisoner is wholly irrelevant to the question as to whether he has to be handcuffed and roped in the manner in which the petitioner has been subjected to. It is possible that a particular prisoner might have shown proclivity of escaping from police custody. In such a case, probably the handcuffing to the extent it is necessary to prevent an attempt at escaping may be justified. It has not been contended by the 4th respondent nor is there any material before us to show that the petitioner had at any time made an attempt to escape from police custody.
[SECTION]. The finding, therefore, we record is that the 4th respondent has without any justification taken out the petitioner from Faujdar Chavadi Police Station. He has handcuffed the petitioner without any reason for the same. He has roped the petitioner without any justification for the same. He has also paraded the petitioner through the main streets and squares of Solapur city. This parade attracted large number of citizens of the city either out of curiosity or out of morbidity. This probably earned some popularity for the 4th respondent, but the action was wholly unwarranted. We are specifically recording a finding that the petitioner was taken out of the Police Station and paraded through the streets and squares of Solapur there being no need at all for the same. We are also recording a finding that there was no investigation to be carried out and in fact no investigation was carried out from the time the petitioner was taken out of the Police Station to the time he was produced before the Magistrate for the first order of remand.
15. The law relating to the treatment of prisoners, especially undertrial prisoners, has been laid down with sufficient precision by the Supreme Court in [PRECEDENT], . It is not necessary for us to discuss this judgment in greater details. It is sufficient for the purpose of this petition only to refer to certain propositions which have been laid down in the said judgment. In the first place it has been laid down, recalling the judgment of the Supreme Court in [PRECEDENT], , that imprisonment of a prisoner ipso facto does not eclipse the fundamental rights of a citizen under [SECTION], [SECTION] and [SECTION] of the [ACT]. Secondly, it has been laid down (see paragraph 23) that insurance against escape does not compulsorily require handcuffing unless no other way is practicable. It has been suggested by the Supreme Court that some increase in the number of escorts is an alternative which ought to be considered.
16. From the facts of the case before us we notice that there was practically an army which was following the petitioner. This shows that handcuffing was totally unnecessary. The Supreme Court has further stated that the reasons for handcuffing must be recorded contemporaneously. It has not been shown to us in the present case that such a course had been adopted by the 4th respondent. What is of more significance in the admonition of the Supreme Court is that merely calling a person desperate and dangerous is not sufficient justification for handcuffing. Labels such as "desperate" and "dangerous" are themselves dangerous and should not be used freely for satisfying the punitive passion for retribution through the process of parading undertrial prisoners cruelly clad in hateful irons.
17. These are the propositions which we have culled from the leading judgment delivered by [ENTITY], J. on behalf of himself and [ENTITY], J. The other judgment is delivered by [ENTITY], J., which was inclined to give greater latitude to the persons to whom the custody of prisoners is entrusted. Even then [ENTITY], J. has observed as follows "The rule, I think, should be that the authority responsible for the prisoners' custody, should consider the case of each prisoner individually and decide whether the prisoner is a person who having regard to his circumstances, general conduct, behaviour and character will attempt to escape or disturb the peace by becoming violent."
18. In the light of the finding which we have recorded above that the 4th respondent had in fact decided to parade the petitioner with a view to satisfy the curiosity and the perverse interest of a section of the citizens of Solapur, another finding which must follow as the necessary corollary is that the handcuffing and the roping of the petitioner was wholly unnecessary. This is apart from the fact that there is no material on record to show that the petitioner would have escaped from the custody of the police especially when he was surrounded by large posse of policemen and followed by a van of State Reserve Police which carried apart from the members of the State Reserve Police a large quantity of ammunitions. The duty to impose a restraint should not be utilised as an opportunity for exposing an undertrial prisoner to public ridicule and humiliation.
19. [SECTION] of the [ACT] declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. We have no hesitation in holding that life and liberty of a citizen guaranteed under this Articles includes life with dignity and liberty with dignity. Liberty must mean freedom from humiliations and indignities at the hands of the authorities to whom the custody of a person may pass temporarily or otherwise under the law of the land. We have already noticed the limitations on the power of the police in respect of handcuffing of undertrial prisoners. That we must regard as the law of the land. Any provision in the Rules which are inconsistent with [SECTION] of the [ACT], as interpreted by the Supreme Court, will have to be held to be invalid.
20. The 4th respondent has relied upon certain rules to be found in the [ACT] which, he thinks, permit him to handcuff undertrial prisoners. [SECTION] deals with a situation where a prisoner has to be taken in custody from a Court premises to a Jail or a Borstal School or vice versa. It provides that whenever a prisoner is to be taken, he shall not be handcuffed or bound unless the Court otherwise directs. However, if the police officer escorting such prisoner considers it necessary to do so in exceptional circumstances, then he may handcuff or bind such prisoner after leaving the Court premises. It is also provided that if the officer in charge of the escort finds that a prisoner is violent after going a few steps from the Court, he can handcuff him, but he is under an obligation to rush back to the Court and obtain an order from the Court. No prisoner shall be handcuffed or bound while being taken from a jail or Borstal School to the Court premises, unless the Jailor otherwise directs in writting. Here the question does not arise because the petitioner has been taken from the lock-up to the Court of the Magistrate for obtaining an order of remand.
[SECTION]. Mr. [ENTITY] has contended that the 4th respondent should be regarded as the one in charge of the petitioner and he must also be regarded as the head of the escort party. Therefore, the 4th respondent was free to use his discretion after judging the facts and circumstances of the transfer of the petitioner from the Police Station to the Court. Even if we accept this contention of the learned Public Prosecutor, on the facts noticed above and in the context of the findings which we have recorded above, we fail to appreciate the so-called discretion exercised by the 4th respondent.
22. [SECTION] mentions that in securing a prisoner under escort, the primary issue is that the policemen in charge should remain alert. If there be negligence in this respect, no amount or method of tying or handcuffing will prevent a prisoner's escape. For securing prisoners, certain methods are recommended to be ordinarily adopted. They need not be discussed at this stage. It is sufficient, however, to notice that even the [ACT] did make provisions to treat prisoners in a humane way. The rules insisted that the prisoners should not be subjected to unnecessary and inhuman restraint. All this has been provided in the rules. Least of all, the rules cannot permit the subjection of a prisoner to ridicule and humiliation in front of large number of people - this is what has been done by the 4th respondent in the instant case.
23. We may also refer to another rule to which our attention has been drawn by Mr. [ENTITY]. It is [SECTION]. It mentions, among other things, that undertrial prisoners should be treated with such reasonable consideration as is compatible with their safe custody and production before the Court. Their status and the probability of their attempting to escape should be taken into account in deciding the necessity or otherwise of the use of handcuffs and allowing them the use of a conveyance at their expense. The provisions relating to the conveyance for the transport of the prisoners are to be found in [SECTION] and [SECTION]. In the instant case, the 4th respondent never made any attempt to secure a vehicle to carry the petitioner if at all it was necessary to carry him to the various places for the purpose of investigation, the purpose which, we have discarded after considering the explanation given by the 4th respondent. The 4th respondent says that there was no vehicle available at 10.30 a.m. In that case, was it necessary to take out the prisoner at 10.30 a.m. itself from the Police Station ? It has not been mentioned by the 4th respondent that no vehicle was going to be available for some time and because of this the so-called investigation which the 4th respondent has invented would have been defeated or delayed. We have, therefore, no hesitation in holding that the 4th respondent has trampled upon the right conferred upon the petitioner as a citizen of this country under [SECTION] of the [ACT].
24. We have also no hesitation in holding that the 4th respondent has done this by disregarding the very rules according to which he must act. Those rules are to be found in the [ACT]. The necessity of handcuffing and the necessity of roping the petitioner and the necessity of taking him through the streets and squares of Solapur have not been demonstrated in the smallest measure. On the other hand, the 4th respondent has done the impugned acts without there being any necessity for the same. We have already stated above that this has been done probably for the purpose of winning the applause of the citizens of Solapur, but by doing it he has subjected the petitioner to unnecessary, unwarranted and illegal humiliation and indignity. The character of the petitioner is not in question before us. That will be decided by the Courts which will try his cases. The character of the 4th respondent is before us because it is his conduct that is the subject-matter of this petition and we find that conduct wholly unbecoming of an officer of the rank of an Inspector in charge of a Police Station. He has acted outside the scope of the law and outside the scope of the authority which has been vested in him as an officer in charge of a Police Station. We may incidentally mention that there is no bravery or heroism involved in parading an undertrial prisoner, secured by handcuffing and roping, through the streets of a city. This does not reflect well on the qualities of an officer of a Police Station, such as the 4th respondent.
25. Having come to these findings, can we direct the 4th respondent to pay compensation to the petitioner while exercising our jurisdiction under [SECTION] of the [ACT]. There is an authority for the proposition that when the fundamental right of a citizen is infringed without excuse and in a manner not warranted by the law of the land, compensation can be directed to be paid. In [ENTITY] v. State of Jammu and Kashmir, , the Supreme Court held that the police obtaining remand of arrested person and not producing him before the Magistrate within the requisite period was gross violation of the rights of the arrested person under [SECTION] and [SECTION] of the [ACT]. Refraining from using stronger words to condemn the authoritarian acts of the police, the Supreme Court held that the custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct. In [ENTITY]'s case, an M.L.A. was arrested and not produced before the Magistrate as required by law within the specified time. The Supreme Court observed that if the personal liberty of a Member of the Legislative Assembly is to be played with in this fashion, one can only wonder what may happen to lesser mortals. The State of Jammu and Kashmir was directed to pay to the petitioner before the Supreme Court a sum of Rs. 50,000/-. This order was passed by the Supreme Court in a petition under [SECTION] of the [ACT], which Article is for the protection of the fundamental rights of the citizens of this country.
26. In another case, namely, [PRECEDENT]., , it was found that a person had been kept in illegal detention for nearly [SECTION] years after his release had been ordered. Taking into consideration that great harm had been done to the petitioner before the Supreme Court by the Government of Bihar, the Supreme Court ordered the State Government, as an interim measure, to pay to the petitioner a sum of Rs. 30,000/ - in addition to the sum of Rs. 5,000/- which had already been paid. The order which was passed by the Supreme Court, it was made clear, did not preclude the petitioner from bringing a suit to recover appropriate damages from the State and its erring officials. The order of compensation passed by the Supreme Court was in the nature of a palliative.
27. It is, therefore, clear to us that the Court which has got the power of enforcing the observance of the fundamental rights has also got powers to award compensation to the aggrieved party - a party whose fundamental rights have been violated by the State or the officers of the State. [SECTION] of the [ACT] is also a provision which empowers the High Court to issue directions, orders or writs for the enforcement of fundamental rights. This must necessarily imply a power to give appropriate relief in a case where a fundamental right of a citizen has been violated either by the State or by any official of the State.
28. [SECTION] of the [ACT] specifically provides that the High Court may issue to any person or authority directions for the enforcement of any of the rights conferred by [SECTION] and for any other purpose. The 4th respondent is a person. He is also a person in whom authority is vested under the [ACT]. He has abused that authority. He has acted outside the scope of that authority. He has acted outside the scope of the law which gives him that authority. He has acted outside the rules which he must follow while exercising that authority. We have, therefore, no hesitation in holding that in exercise of the powers of this Court under [SECTION] of the [ACT], we can also direct that compensation shall be paid by the State or a person acting on behalf of the State to a citizen whose fundamental rights have been trampled upon.
29. Having heard Mr. [ENTITY] and the learned Public Prosecutor, Mr. [ENTITY], on the amount of compensation which the 4th respondent should pay to the petitioner and considering the fact that part of the action of 4th respondent was the result of overenthusiasm, we think that an amount of Rs. 10,000/- should be paid by way of compensation by the 4th respondent to the petitioner. We also direct that the fact that the 4th respondent has been found guilty of violation of the fundamental right of an undertrial prisoner under [SECTION] of the [ACT] should be entered in the service record of the 4th respondent. The 1st respondent in this petition shall inform this Court within two months from the date on which this order is communicated to the 1st respondent that such entry has been made in the service record of the 4th respondent. A copy of this judgment shall be forwarded by the office to the 1st respondent through the learned Public Prosecutor, Mr. [ENTITY], who has represented him before us. The compensation shall be paid by the 4th respondent to the petitioner on or before 25th of April, 1990.
30. Petition allowed.