Criminal Writ No.239 of 2006 Binod Kumar son of Shri Nanku Mahto, R/O Village-Kundua, P.S. Magadh Medical, District-Gaya. .... …. …. ….Petitioner Versus 1. The State Of Bihar 2. Home Commissioner, Bihar Patna. 3. Director General of Police, Gaya. 4. Superintendent of Police, Gaya. 5. Officer-in-Charge, Magadh Medical P.S. Distt-Gaya….. Respondent/s ========== For the Petitioner : Mr. Sajid Salim Khan, Adv. For the Respondent/s : Mr. ========= P R E S E N T HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI . Aditya Kumar Trivedi, J. Petitioner, Binod Kumar has filed instant petition of writ praying for grant of appropriate compensation on account of illegal apprehension and remand in connection with Magadh Medical P.S. Case No. 27 of 2004. 2. Magadh Medical P.S. Case No.27 of 2004 was registered on the basis of written report of one Babita Kumari D/o Ramchandra Prasad disclosing therein that her marriage was solemnized on 9.7.2000 with Binod Kumar. Just after her arrival at her Sasural, her Sasuralwala including her husband, Binod Kumar began to torture her with regard to facilitating Rs. 1 Lac. They have also threatened to eliminate her Naiharwala if the amount is not paid. 2 The aforesaid allegation attracted application of Section 498A of the IPC as well as ¾ of Dowry Prohibition Act. 3. Petitioner had filed Cr. Misc. No. 18163 of 2005 before the Hon‟ble Court for grant of anticipatory bail whereupon following order was passed after acknowledging arrest of petitioner in utter violation of earlier intermediary order whereby coercive step was restrained:- “ Heard learned counsel for the petitioner and learned counsel for the State. This criminal miscellaneous petition was filed by the petitioner for anticipatory bail in Magadh Medical P.S. Case No. 27 of 2004 for the alleged offences punishable under Section 498A of the Penal Code and ¾ of the Dowry Prohibition Act pending before the Chief Judicial Magistrate, Gaya. While considering this petition this Court by order dated 24.6.2005 directed that the informant be added as opposite party no.2 and notice be issued to her within one week peremptory and in the meantime no coercive steps shall be taken against the petitioner in the aforesaid case. It transpires from the record that the informant was impleaded as opposite party no.2 and requisites for notice to her was filed within time on 29.6.2005, whereafter the said order was sent to the Chief Judicial Magistrate, Gaya, who received the same on 5.7.2005(Annexure-4), who in turn sent the same to the Superintendent of Police, Gaya, who received it and sent to the officer-in-charge of Magadh Medical police station on 08.7.2005, which was received by the officer-in-charge of the said police station on 11.7.2005(Annexure-3). Learned counsel for the petitioner submits that inspite of the aforesaid facts the petitioner was arrested on 19.7.2005, which was clearly violation of the specific orders of this Court. Hence he filed a petition before the learned Chief Judicial Magistrate, Gaya, who refused the prayer and remanded the petitioner to the Judicial custody on the ground that he has not furnished any satisfactory 3 document of the Hon’ble High Court in support of his contention. The said order of the learned Chief Judicial Magistrate is absolutely bad as the order of this Court dated 24.6.2005 was sent to him and after receiving the same he had himself sent it to the Superintendent of Police for compliance of the said order. But when the said order was not complied and the order of this Court was violated, it was the duty of the Chief Judicial Magistrate to take appropriate action in that regard so that the order of this Court is made effective. In the said circumstances, learned Chief Judicial Magistrate, Gaya is directed to immediately order for release of the petitioner Binod Kumar and recall the processes against him, so that the position as on 24.6.2005, when this Court passed its order, is restored. Only thereafter this petition for anticipatory bail can be heard on its merit.” 4. The aforesaid order dated 24/06/2005 passed by the Hon‟ble Court in Cr.Misc. No. 15163 of 2005 was communicated by the Chief Judicial Magistrate, Gaya to S.P. vide memo no. 1664 dated 5.7.2005 and the S.P. had communicated the order to the O/C, Magadh Medical P.S. vide memo no. 3468 C.R. dated 8.7.2005 (Annexure-3). 5. Learned counsel for the petitioner submits that inspite of the aforesaid facts the petitioner was arrested on 19.7.2005, which was clearly violation of the specific order of this Court. Hence he filed a petition before the learned Chief Judicial Magistrate, Gaya, who refused the prayer and remanded the petitioner to the Judicial custody on the ground that he has not furnished any satisfactory 4 document in support of his contention. 6. The said order of the learned Chief Judicial Magistrate was absolutely bad as the order of this Court dated 24.6.2005 was sent to him and after receiving the same, he had himself transmitted it to the Superintendent of Police for compliance of the said order. But when the said order was not complied and the order of this Court was violated, it was the duty of the Chief Judicial Magistrate to take appropriate action in that regard so that the order of this Court is made effective. 7. In the said circumstances, learned Chief Judicial Magistrate, Gaya was directed to immediately order for release of the petitioner Binod Kumar and recall the processes against him, so that the position as on 24.6.2005, when this Court passed its order, is restored. Only thereafter this petition for anticipatory bail can be heard on its merit.(Annexure-2)” 8. It has been further pleaded that in spite of the aforesaid order was in operation, the O/C of Magadh Medical P.S. apprehended the petitioner and got him remanded in this case flouting the same. The matter was brought to the notice of the Hon‟ble Court wherefrom vide order dated 25.8.2005 a direction was given to the learned Chief Judicial Magistrate to release the petitioner at once. So submitted that there has been intentional laches on the 5 part of the Investigating Officer of Magadh Medical P.S. Case No. 27 of 2004 whereunder he apprehended the petitioner illegally disobeying the order of the Court and that compelled illegal remand as well as illegal detention of the petitioner from 19.7.2005. Because of the fact that there has been disobedience on the part of the Investigating Officer of Magadh Medical P.S. Case No. 27 of 2004 who happens to be the employee of the State, therefore, the authority concerned along with State is liable for compensation to be paid to the petitioner in lieu of illegal detention. 9. There has been counter affidavit filed on behalf of the State as well as on behalf of the then S.P. The State had replied that it happens to be a case under the banner of cognizable offence and further the allegation was found true during the course of investigation as well as supervision during the course of which the I/O was directed to apprehend the petitioner and in case of non apprehension, necessary steps for proclamation followed with attachment as prescribed under Section 82 and 83 of the Cr.P.C be taken against the petitioner. It has further been submitted that during the course of investigation, the I/O apprehended the accused and produced him before the learned Chief Judicial Magistrate wherefrom he was remanded. It has also been submitted that the petitioner was granted anticipatory bail vide order dated 5.5.2006 in 6 Cr.Misc. No. 18163/2005. 10. The supplementary counter affidavit filed on behalf of the then S.P., Syed Manauwar Fakhruddin shows that the S.P. had pleaded that there is no willful negligence on his part nay intentionally disobeyed the order of the Court. Then submitted that petitioner was apprehended on 19.7.2005 and was produced before Chief Judicial Magistrate, Gaya and got remanded in this case being an FIR named accused. So there has been valid, legal detention. 11. The learned counsel for the petitioner submits that when the order impugned had already been served upon the authority concerned, then in that event they have fully acknowledged the order of the Hon‟ble Court by which coercive steps against the petitioner has been forbidden and then during continuance of the aforesaid order, apprehension of the petitioner and getting him forwarded and remanded in this case by the police authority happens to be in violation of direction of the Hon‟ble Court. Not only this, the police machinery by their illegal action infringed the valuable right of the right of life and further had also violated the mandate of Article 21 of the Constitution. 12. So submitted that the aforesaid misdeeds of the authority concerned by which petitioner has been illegally detained gives a cause to the petitioner to ask for compensation from the State 7 and the authorities concerned. 13. On the other hand, learned counsel appearing for the State submitted that apprehension of petitioner was legal, just and proper as he happens to be an accused of cognizable offence. Then submitted that there happens to be no illegal detention by any act of the State or its machinery nay there has been violation of the order of the Court rather it was only effected on account of misunderstanding. The instant writ with the relief sought for is not maintainable and is accordingly, fit to be dismisses. 14. From the rival averments as well as different annexures it is admitted that vide Annexure-2, the Hon‟ble Court had directed that no coercive steps shall be taken against the petitioner meanwhile and further it is admitted one that the order impugned was already acknowledged by the authorities concerned. It is also an admitted fact that petitioner was apprehended while Annexure-2 was in operation and that happens to be reason behind that vide order dated 25.8.2005 the Hon‟ble Court had directed the Chief Judicial Magistrate, Gaya to release the petitioner at once and then thereafter, on different date he was granted anticipatory bail vide Cr. Misc. No. 18163 of 2005. So remanding of petitioner having been under custody in violation of Court‟s order certainly comes within the purview of illegal detention. Whether such activity can only draw a 8 contempt of court or the petitioner is liable to be compensated for his illegal detention, for that I would like to refer 1984(3) SCC 81. After dealing the issue under paragraph-4,5, in 6 it has been held that:- “ Civil contempt is punishable with imprisonment as well as fine. In a given case, the court may also penalize the party in contempt by ordering him to pay the costs of the application. A fine can also be imposed upon the contemner. 7. Now in the facts and circumstances of the case, we do not propose to impose imprisonment nor any amount as and by way of fine but keeping in view the torture, the agony and the mental oppression through which Mrs. C. Thingkhuila, wife of Shri C. Daniel and Mrs C. Vangamla, wife of Shri C. Paul had to pass and they being the proper applicants, the formal application being by Sebastian M. Hongray, we direct that as a measure of exemplary costs as is permissible in such cases, respondents 1 and 2 shall pay Rs.1 lac to each of the aforementioned two women within a period of four weeks from today. 15. The Hon‟ble Apex Court had in another decision reported in (1990) 1 SCC 422 had taken into consideration the factum of tort and further whether State be held responsible for the fault committed by their employee and under para-12, 13 and 14 it has been properly dealt with which are as follows:- “It is convenient to refer in this connection the decision in Joginder Kaur v. Punjab State 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 tortuous acts committed by its employees in the course of their employment.” 13.In State of Rajasthan v. Vidhyawati it has been 9 held that(SCR p.1007) “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 tortuous 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 authorising 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.” 14. In Peoples’ Union for Democratic Rights v. Police Commissioner, Delhi Police Headquarters 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 injuries. 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.” 16. The illegal detention curtailing the constitutional right of life and liberty enshrined under Article 21 has been taken into consideration in a decision reported in (1994) 4 SCC 260. Paragraphs 9,10,11 and 12 are as follows:- 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; of meeting the challenges which Mr. Justice Cardozo so forthrightly met when he wrestled with a similar task of 10 balancing individual rights against society‟s rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not got free because the constable blundered. In people v. Defore Justice Cardozo observed: “The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Adams Case (People v. Adams) strikes a balance between opposing interest. We must hold it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass.” 10. To the same effect is the statement by Judge Learned Hand, in Fried Re3: “ The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten. Perfection is impossible; like other human institutions criminal proceeding must be a compromise.” The quality of a nation‟s civilization can be largely measured by the methods it uses in the enforcement of criminal law. 11. This Court in Nandini Satpathy v. P.L. Dani (AIR at p. 1032) quoting Lewis Mayers stated: (SCC p. 433, para 15) “ The paradox has been put sharply by Lewis Mayers: „To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law- enforcement machinery on the other is a perennial problem of statecraft. The pendulum over the years has swung to the right.‟ ” Again (in AIR para 21, at p. 1033) it was observed: (SCC p. 436, para 23) “ We have earlier spoken of the conflicting claims requiring reconciliation. Speaking pragmatically, there exists a rivalry between societal interest in effecting crime detection and constitutional rights which accused individuals possess. Emphasis 11 may shift, depending on circumstances, in balancing these interests as has been happening in America. Since Miranda there has been retreat from stress on protection of the accused and gravitation toward society‟s interest in convicting law breakers. Currently, the trend in the American jurisdiction according to legal journals, is that „respect for (constitutional) principles is eroded when they leap their proper bounds to interfere with the legitimate interest of society in enforcement of its laws….‟ (Couch v. United States). Our constitutional perspective has, therefore, to be relative and cannot afford to be absolutist, especially when torture technology, crime escalation and other social variables affect the application of principles in producing humane justice.” 12. The National Police Commission in its Third Report referring to the quality of arrest by the police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails. The said Commission in its Third Report at p.31 observed thus: “ It is obvious that a major portion of the arrests were connected with very minor prosecutions and cannot, therefore, be regarded as quite necessary from the point of view of crime prevention. Continued detention in jail of the persons so arrested has also meant avoidable expenditure on their maintenance. In the above period it was estimated that 43.2 per cent of the expenditure in the connected jails was over such prisoners only who in the ultimate analysis need not have been arrested at all.” As on today, arrest with or without warrant depending upon the circumstances of a particular case is governed by the Code of Criminal Procedure.” 17. After analyzing the different judgments on this score in a decision reported in (1993) 2 SCC 746 at para-22 it has 12 been held:- “ The above discussion indicates the principle on which the court‟s power under Articles 32 and 226 of the Constitution is exercised to award monetary compensation for contravention of a fundamental right. This was indicated in Rudul Sah and certain further observations therein adverted to earlier, which may tend to minimize the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of this Court in Rudul Sah and others in that line have to be understood and Kasturilal distinguished therefrom. We have considered this question at some length in view of the doubt raised, at times, about the propriety of awarding compensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is a clear case for award of compensation to the petitioner for the custodial death of her son.” 18. In another decision reported in (2011) (1) SCC (Crl) 171 wherein Human Rights State Commission had granted compensation as is evident from para-14 of the judgment, at para-20 it has been held as follows:- “Having regard to the special emphasis laid by Mr. Rai on Baban‟s antecedents, we have carefully considered the order of the Commission which was upheld by the High Court and we see no reason to differ with the same. There is sufficient material, which has been duly looked into by the Commission and the High Court that the son of Respondent 1 had been physically tortured while in custody in violation of the norms relating to custody of persons arrested or detained in connection with any offence. It is not for us to appraise the evidence further since two forums have had a chance to look into the same. Except for a bare denial, there is no material on record to refute the complainant of torture of Baban by the petitioner and Respondent 3 to 5. It is clear that for whatever 13 reasons, which could also include his antecedents, he was treated differently from Abbas Ali against whom he had come to make a complainant and ended up being the accused”. 19. In another decision reported in 2011 1 SCC (Crl) 1109, the illegal act of police known as police atrocity leading to custodial death was taken into consideration and ex-gratia amount of Rs. 10 Lacs was granted. 20. As such, the detention of petitioner during the course of having the shield prescribed by the judicial order passed by this Court certainly covers the terms „illegal detention‟ and because of the fact that it has been on the part of the State machinery, hence State is liable to compensate. Accordingly, Rs. 1 Lac is granted by way of compensation to be paid to the petitioner by the State within three months from the date of order. The State will be at liberty to realize the amount from its employee who is found negligent therefore. 21. Let a copy of this order be handed over to the learned counsel for the State for its strict compliance. Patna High Court Dated the 23rd of November 2011 Md. Perwez Alam/AFR. ( Aditya Kumar Trivedi, J.)