IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR w. p. (C) NO. P O 2-'7- / Petitioner ^!^^ .^•"•^•^•^-••••"" ^•-": ^-^ ^.^'^•^ ^ ^ 2009 Dilsai Son of Late Budhram Panika, Aged about 35 years, Resident of Village Chikhladih, Police Station ~ Ambikapur, Distt Surguja-(C.G.) Versus Resuondents ^Q. 2. 3. r^'\ <==-c-^\ ~ ^\ : 1. r State of Chhattisgarh, Through - The Secretary, Home (Jail) Ministry, D.K.S. Bhawan, Raipur, Distt. Raipur-(C.G.) The Jail Supermtendent, Central Jail, Ambikapur, Distt. Surguja- (C.G.) PoUce Station House Officer, P.S. Ambikapur, Distt. Surguja- (C.G.) 4. T J.L.Pandey, Incharge Jailer, District JaU, Janjgir, Distt. Jaajgir Champa-(C.G.) WRIT PETITION UNDER ARTICLE 226 OFTHE CONSTITUTION OF INDIA The petitioner above named most respectfully submit as under : HIGH COURT OF CHHATTlSGARH : BiLASPUR Single Bench: Hon5bie Shri ManjnaraJ4onan Shnvastaya, J. WRIT PETITION (0 N0.2022/2009 PETSTIONER Diisai RESPONDENTS Versys State of Chhattisgarh and others ^Uiil II IIN Present: - Shri V.K.Panagey, counsei for the petitioner. Shri V.V.S. Murthy, Deputy Advocate Genera! aiong with Shri Satish Gupta, Government Advocate for the State. Shri J.P.Shukia, counse! for respondent No.4. ORAL ORDER (Passed on 25th January, 201 1) By this petition under ArtlcEe 226 of the Constitution of Endia, the petitioner has ciaimed compensation of Rs.3,00,000/- for the loss sufrered by him because of his iiiegal detention beyond the period of imprisonment which he was iiab!e to ser^/e under the law upon grant of general and speciai remission. The petitioner has also prayed for issuance of directjon to respondent/State to take appropriate action against the concerned Jaii Superintendent, Centrai Jaii, Ambikapur and the then In-charge JaEior, District JaiE, JanjgEr. 2. Facfs of the present case reveal a sordid state of afrairs. The petitioner was tried for commission of offence under Section 304 Part-ii of iPC and vide judgment of conviction and order of sentence dated 10/05/01, he was sentenced to undergo rigorous imprisonment for seven years. Upon his arrest, he remained jn jaii from 22/12/98 which was pre-trial detention untii he was convicted vide jMdgment of conviction dated 10/5/01 . Thereafter, the petitioner was undergoing R.i. under the order of conviction. The case of the petrtioner is that whiie undergoing R.l. under the judgment ofconviction and sentence, because of his good conduct, the petltioner was granted remission for totai period of 3 years 10 months and 16 days. This remission granted to the petitioner entitled him to be reieased before undergoing total period of R.i. awarded to him under the judgment of conviction and sentence. According to the petitioner, if the period of remission would have been given efrect to and consequent reduction in the totai period of imprisqnment, the petitioner wouid have been reieased on 22/2/02. However. on serious lapse committed by the jail authorities, the petitioner was iiiegaiiy detained untii the then ofricer of the jaii noticed on 10/11/04 thaton account of remission of 3 years 10 months and 16 days, the petitioner was entitied to be reieased much before. in view of thls disciosure, the petitioner was Immedlateiy reieased on 10/11/04 itseif. [iiinii iir 3. Learned counsei for the petitioner submitted that on account of lapse and cailous negiigence on the part of the concerned authorities, namely respondent No.2 and 4, the petitioner remained under iilegal detention from 22/2/02 tili 10/11/04 i.e. wo years 9 months and 10 days, resuiting in vioiation of his fundamentai right under Article 21 of the Constitution of india. Learned counsei for the petitioner argued that from the averments which have been made by the respondents in their return, it is crystal ciear that this oniy happened due to negiigence on the part of the Superintendent of the jaii, who did not make proper entries in the history ticket reguiariy after fixed periodicai intervals. He argued that this serious iapse on the part of the said machinery has resuited in gross violation of one of the most precious fundamental rights granted to the petitioner underArtide 21 ofthe Constitution of india and the petitioner being a young boy had to ianguish in the darkness of the jaii for aimost three years for which the State is under an obligation to properiy compensate him. He further submitted ^y^ that the State may be directed to hoid enquiry and fix responsibiiity on the erring officEa'ls on account of Eapse and negiigent functioning for v^hich the petitioner suffered iiiegai detention for a very fong time. 4. in support of his contention, iearned counset for the petitioner reiied upon the judgment in the case of RuduE Sah v. State of Bihar and another, AIR 1983 S.C. 1086. Bhim Sinah v. State of Jammu and Kashmir. AiR 1986 S.C. 494. NiJabati Behra v. State of Orissa. AiR 1993 S.C. 1960. D.K.Basu v. State of'West Benaai. AiR 1997 S.C. 610. 5. On the other hand, iearned Deputy Advocate Generai for the State, referring to the averments made on affid&vits In the return, submitted that the detention of the petitioner beyond 22/2/02 was due to certain misunderstanding and confusion by the Octagonai Officer, as the entries of speciai remission coutd not be entered into the history ticket of the petitioner at the relevant point of time and this was detected and entered onjy when this fact came to the notice of the Octagona! Orficer on 10/11/04. He further submits that in norma! course, the entries of speciai remission are made in the record of history ticket every quarteny but In the case ofthe petitioner, somehow, such periodical entries could not be made after every three months but ali the entries reEating to speciai remission came to be entered in the history sheet on 10/11/04 and then immediateiy thereafter and on the same day, the petitioner was reteased. He further submits that the petitioner was othervvise given the benefit of entire ordina^ remission for which he is entitied as aiso extended the benelit of good conduct remission and therefore, in his submission, there Is no malafide or deliberate omission on the part of any of the authorities and detention beyond ..-:..'^^';1-:?'5%-. ^ ^' "•? 22/2/02, was resuit of misunderstanding and confusion as the conviction of the petitioner under Section 304 Part-if iPC was, under an inadvertent mistake, by the Octagonai Officer as in case of conviction under Section 304-B of iPC, as per the order of the State Government, no speclal remission is alEowed. As soon as mistake was pointed out, immediate steps were taken and the Gay, on which the mistake was detected, the petitioner was reieased. Further submission of iearned State counsei is that there exists an efficacious remedy for the petitioner to sue for damages where the petitioner wouid be required to prove the extent of damages and ciaim of compensation and in this petition, without enquiry into disputed facts, the quantum of compensation couid not be determined. 6. Learned counsei for respondent No.4 wouid submlt that he was not responsibie for the inaction or non-entry of speciai remission in case of the petitioner as he was only Assistant Jaiier and not the Jaiier of the concerned jail. He further submits that in view of the provisions contained in Ruie 340 of the Jaii Manuai, the duty to make calculation of the date of reiease is upon the Jaiier and the Superintendent of the jaii. He further submits that the reievant entries, calcuiation in respect thereof, with regard to totai period of imprisonment which the petitioner was required to undergo, were aii required to be considered by those authorities and not by the respondent No.4. 7. I have considered the submissions made by learned counsel for the parties and perused the records. \S. The averments which have been made by the petitioner in the petition pn affidavit wlth regard to the period of detention and the period of remission have not been substantEa'iiy disputed by the respondents either in their return or during ^^•f—^^ s^ the course of arguments. indeed, iearned Deputy Advocate General falriy submitted that as far as, the tota! period of detention and the remission which the petitioner was entitied to. are not factuaiiy disputed. The certificate of reiease, issued by the Superintendent of Centrai Jaii, Ambikapur (Annexure P/2) aiso fortifles the submission made by learned counsei for the parties. The certificate, which has not been disputed, shows that the petitioner was in jail since 22/12/98 (and the remission he had earned was 3 years 10 months and 16 a'ays. The j certificate shows that he was actuaiiy reieased on 10/11/04. It is also not In dispute that under the judgment of conviction and sentence dated 10/5/01, passed in Sessions Triai No.11/99, the petitioner was sentenced to undergo R.i. for seven years. The totai period of imprisonment which the petitioner was liabie to undergo under the judgment of conviction was seven years, That wouid mean that the petitioner, but for remission, was required to serve in jaii frorn 22/12/98 upto 22/12/05. ifthe period of remission, as per certificate (Annexure P/2) i.e. a period of 3 years 10 months and 16 days is remitted, the petitioner was entitied to be reieased on 22/2/02. 9. !n the return, the respondents have candidiy admitted that though the petitioner was entitied to speciai remission but in the absence of proper entries made In the history ticket, the detention continued even beyond 22/2/02. The said mistake is sought to be justified on the statement that it was due to j confusion and misunderstanding on the part of the Octagonai Officer. At another place in the retum,it has been stated that due to inadvertent mistake, the convictlon of the petitioner was wrongiy understood as conviction under Section \ 304-B iPC whereas the petitioner was actualiy convlcted under Section 304 Part- \ il iPC. What has been stated in the return, even if it is taken on its face value, 6 cannot be said to be any bonafide mistake by any streteh of imagination. The recording of entries in the history sheet of the prisoner are to be made in the manner prescribed under the jaii manuai and non-entry after periodic inten/ais for a fairiy iong time, cannot be ignored on such submissions. Be that as it may, the serious iapse on the part of the responsible ofricers, whether it be the Jaiier or the Superintendent, the petitioner suffered iilegai detention for a fairiy iong time, which is more than faA/o years and nine months. Had the entries been made by the officers vigiiantiy in the history ticket, the situation wouid have not come in making a cltizen to suffer detention for such a iong period. Therefore, thls fairly estabiishes from the records that the petitioner was made to suffer iliegal detention for more than 2 years and 9 months. 11. The question therefore arises for consideration is whether in this petition under Articie 226 of the Constitution of india, the petitioner could beawarded compensation. The issue is no longer res integra and set at rest by the Apex Court in catena of decisions. The iiabiiity of the State to pay compensation for deprivation of the fundamental right of life and personal iiberty Is a new liabiiity in pubiic iaw created by the Constitution and not vicarious or a liabiEity in tort. The clainn which has been made by the petitioner is a claim in public law for cornpensation for deprivation of liberty aione. in the case of Rudui Sah (Supra), negativing the State's objection of existence of aiternative remedy, it was held - "9. it is true that Article 32 cannot be used as a substitute for the enforcement of rights and obiigations which can be enforced efricaciousiy through the ordinary processes of Courts, Civii and Criminai. A money ciaim has therefore to be agitated In and adjudjcated upon in a suit instituted in a Court of iowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under .^y^.. /'/"""^ ^., I ^iS^ 1 ^. ^^^ ^. %^'\^ ^a^^: Articie 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamentai right. The instant case is iiiustrative of such cases. The petitioner was detained iilegaily in the prison for over 14 years after his acquittai in a fuil-dressed triaf. He fited a Habeas Corpus petition in this Court for his reiease from iiiegai detention. He obtained that reiief, our finding being that his detention En the prison after hls acquittai was whoiiy unjustifsed. He contends that he is entitled to be compensated for his iilegai detention and that we ought to pass an appropriate order for the payment of compensation in this Habeas Corpus petition itself. 10. We cannot resist this argument. We see no effective answer to it save the staie and steriie objection that the petitioner may, if so advised, fiie a suit to recover damages from the State Government. Happily, the State's counsel has not raised that objection. The petitioner couid have been retegated to the ordinary remedy of a suit if his ciaim to compensation was factualiy controversial, in the sense that a civii court may or may not have upheid his ciaim. But we have no doubt that if the petitioner fiies a suitto recover damages for his itlegai detention, a decree for damages wouid have to be passed in that suit, though it is not possibie to predicate, in the absence of evidence, the preclse amount which wouid be decreed in his favour. in these circumstances, the refusai of this Court to pass an order of compensation in favour of the petitioner wil! be doing mere iip-service to his fundamentai right to iiberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and iiberty wili be denuded of its slgnificant content if the power of this Court wers limited to passing orders of release from iilegal detentlon. One of the teliing ways in which the vioiation of that right can reasonabiy be prevented and due compliance with the mandate of Artlcie 21 secured, is to mulct its vioiators in the payment of monetary y^^^ fls^. ^.,..3/'^'.^! t •/""'"•^i i v^^ ^J^:3^" compensation. Administrative sclerosis ieading to fiagrant infringements of fundamenta! rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the uniawful acts of instrurnentaiities which act in the name of public interest and which present for their protection the powers of the State as a shieid. if civilisation is not to perish in this country as It has perished in some others too weii known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuais is the true bastion of democracy. Therefore, the St&te must repair the damage done by its officers to the petitioners rights. it may have recourse against those ofricers." 12. in the case of Nilabati (Supra), the Supreme Court directed the State of Orissa to pay compensation. W'hiie awarding compensation, the Supreme Court observed - "9......Award of compensation in a proceeding underArticie 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy avaiiabie in pubiic iaw based on strict liability for contravention of fundamental rights to which the principie of sovereign immunity does not appiy, even though it may be avaiiabie as a defence in private iaw in an action based on tort. This is a distinction between the two remedles. " v'erma, J. further expiained that the State's plea of sovereign immunity for tortuous acts of its servants is confined to the sphere of iEability in tort, which is distinct from the State's iiabiiity for contravention of fundamenta! rights to which the doctrine of sovereign immunity has no appiication in the constitutionai scheme, and is no defence to the constitutional remedy under Articies 32 and 226 of the Constitution which enabies award of compensation for contravention of fundamental rights when the oniy practicable mode of enforcement of the fundamentai rights can be the award ^% A/ ^. s "% '^ N "-" :••'•'•••''^- £> A ^. '^:/ of compensation. Concurring with Verma, J.Dr.A.S.Anand, J. in the same case obsen/ed : "The purpose of the pubiic iaw is not oniy to civilize public power but also to assure the citizen that they live under a iegal system which aims to protect thelr interests and presen/e their rights - ThisCourt and the High Court being the protectors of the civii iiberties of the citizen, have not oniy the power and jurisdiction but aiso an obiigation to grant reiief in exercise of its jurisdiction under Artictes 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Articie 32 of the Constitution of india are estabiished to have been flagrantty infringed by calling upon the state to repair the damage done by its officers to the fundamentai rights of the citizens, notwithstanding the right of the citizen to the remedy by way of a suit or criminai proceedings. The state of course has the right to be indemnified by and take such action as miay be avaiiabie to it against the wrongdoer in accordance wih iaw through appropriate proceedings. "Dr. Anand, J. aiso observed : "There is a great responsibiiity on the poiice or prison authorities to ensure that the citizen in its custody is not deprived ofhis rightsto life." 13. The aforesaid decision again came up for consideration in the Supreme Court in the case of D.K.Basu (Supra) wherein, after reviewing eariier authorities, the Supreme Court reiterated that the reiief of compensation against the State based " on the prindpies of strict liabiiityss under the pubiic iaw is one to which the defence of sovereign immunity does not appiy and that this reiief is in addition to the traditionai remedies and the compensation awarded in a given case is adjusted against any amount awarded to the claimant by way of damages in civii suit. it was aiso heid that in the assessment of compensation under Articie 32 or \ ' ! ' 226, "the emphasis has to be on the compensatory and not on the punitive ejement. It was further heid that the objective is to apply baim on the wounds /',/ ^ .'V ^ N fe' i& 10 '^)~ and not to punish the transgressor orthe offender as awarding appropriate punishment for the offence (irrespeciive of compensation) must be ieft to the criminai court in which the offender Es prosecuted, which the State in law is duty boundtodo. IINN """^ 14. in the case of Hindustan Papers Corporation v. Ananta Bhattachariee. 2004 (6i SCC 213, Supreme Court held "The pubiic iaw remedy for the purpose of grant of compensation can be resorted to oniy when the fundamental right of a citizen under Articie 21 is vioiated and not otherwise". The Court further said that "it is not every vioiation of the provisions of the Constitution or a statute which would enabie the Court to direct grant of compensation. 15. Therefore, it is very weil settied that claim of compensation by way of filing petition under Article 226 of the Constitution of india is remedy sought in pubiic law and this Court, notwithstanding existence of ordinary dvil remedy of claiming appropriate compensation, appiying the principies iaid down by the Supreme Court in the decision referred to above may award compensation. That is aiso the view which has been taken by the Division Bench of High Court of Madhya Pradesh in the case of Pooran Sinah v. State of Madhva Pradesh an^ others. AiR 2009 SViadhva Pradesh1&3, 16. in the case of Rudui Sah (Supra), it was found that the petitioner therein had surfered iitegai detention. VVhEie rectifying grave injustice perpetrated on the petitioner, the Supreme Court awarded compensation as an interim measure obsen/ing that the award of Eump sum compensation wouid not prectude the petitioner therein from bringing a sult to recover further damages from the State 11 \ and his erring ofriciais by observing that the order of compensation is in the nature of a paiiiative. En the case of Nilabati Behra (Supra), the compensation of Rs.1,50,000/- was awarded, in a case of custodiai death. 17. Taking into consideration the age of the petitioner and the period of iiiegai detention as aiso that this detention was between the period from 22/2/02 to 10/11/04, in the opinion of this Court, the petitioner shouid be paid a quantified compensation of Rs.1,00,000/- by the State. However, if the petitioner is dissatisfied with the amount so awarded, he wiii be at iiberty to resort to traditionai remedies and the compensation as awarded in the present case, wiii be adjusted against any amount awarded to him by way of damages in civii suit, ifany, fiied byhim. 18. Before parting with this case, this Court expresses its concern that on account of gross negligence on the part of the erring officiais, the petitioner's fundamental rights under Articfe 21 of the Constitution of india were vioiated in subjecting him to illegai detention for 2 years and 9 months. it is expected that the State would do weli to prevent repetition of such instances. Therefore, it wouid be open for the State to hoid necessary enquiry to fix the responsibility on the erring officiais and if necessary, to take appropriate steps as may be necessary in the exigency of administration. The petition is accordingiy aiiowed to the extent indicated above. No order as to cost. Sd/- Manindra Mohan Shrivastava Jude