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1984 DIGILAW 83 (GAU)

Robin Duara v. State of Assam and Others

1984-06-18

B.L.HANSARIA, T.S.MISHRA

body1984
Misra, C. J.- By this petition under Article 226 of the Constitution of India, the petitioner has claimed Rs. 50,000/- as compensation from the respondents for violation of his funda­mental rights as well as for mental and physical pain and loss of human dignity. The facts giving rise to this petition are these : The petitioner was arrested on 16.12.83 at about 11 P.M. He was brought to the Teok Police Station where he was told the grounds for his taking into custody. The petitioner was produced before the learned Additional Chief Judicial Ma­gistrate, Jorhat on 17.12.83 in Teok P.S. Case No. 163/83 under section 302, Indian Penal Code. The learned Additional Chief Judicial Magistrate in his order dated 17.12.83 observed that the petitioner as well as other two accused persons who were produced before him appeared to have been suffering from pain arising out of multiple injuries on their persons. He, therefore, directed the Jail Doctor to extend all possible medical aid to them. The petitioner filed petition before the learned Sessions Judge, Jorhat, complaining about the assault and maltreatment meted out to him at the hands of the respondents while he was in police custody. The learned Sessions Judge directed that the petitioner be afforded medical treatment in Civil Hospital. An application for grant of bail was moved which allowed by the learned Sessions Judge on 26.12.83 and the petitioner was released on bail on furnishing security for Rs. 5.000/-. On these facts, the petitioner has alleged that his fundamental right as contained in Article 22 of the Constitution had been infringed, and as he was subjected to physical and mental torture, he should be paid a sum of Rs. 50,000/- by way of compensation. In support of his claim, the petitioner has placed reliance on two decisions of the Supreme Court in Khatri vs. State of Bihar, AIR 1981 SC 1068 and State of Madhya Pradesh vs. Ramashankar Raghuvanshi, AIR 1983 SC 374 . 2. An affidavit-in-opposition has been Sled by the Sub-Inspector of Police, 2nd Officer of Teok Police Station denying the fact of tortute. In para 5 of his affidavit, the Sub-Inspector has averred that the present petitioner and his bro­thers were not assaulted, nor were they forced to crawl on the floor, nor any injury was caused to them by the res­pondents. An affidavit-in-opposition has been Sled by the Sub-Inspector of Police, 2nd Officer of Teok Police Station denying the fact of tortute. In para 5 of his affidavit, the Sub-Inspector has averred that the present petitioner and his bro­thers were not assaulted, nor were they forced to crawl on the floor, nor any injury was caused to them by the res­pondents. He has also averred that, in fact, while evading arrest the petitioner and his brothers "broke open the wall of their house and in the process, they sustained injuries". He denied that the petitioner had ever became unconscious as a result of the alleged beating by the respondents. 3. The learned Counsel for the petitioner submitted that on the facts averred by the petitioner in his petition, it was quite plain that the petitioner has been subjected to mental and physical torture and as he was not informed of the grounds of his arrest immediately at the time of arrest his fundamental right under Article 21 of the Constitution has been violated. Before we consider the contentions raised on behalf of the petitioner, we would like to point out that it is under Article 22 and not under Article 21 of the Constitution that a person who is arrested must be informed as soon as possible of the grounds for such arrest. Article 22 mandates that no person who is arrested shall be detained in custody without being in­formed as soon as may be of the grounds for such arrest. The learned Counsel submitted that as the petitioner was not informed of the grounds for arrest as soon as he was arrested, but was informed of those grounds at the Police Station, his right under Article 22 of the Constitution had been infringed. Article 22, as painted out hereinabove, requires that the person who is arrested must be informed of the grounds of arrest "as soon as may be ". It does not say that the grounds must be com­municated to the person concerned immediately at the time of arrest. Of course, those grounds must be brought to his knowledge with the greatest despatch and as soon as possible. In the case in hand, the grounds of arrest were bro­ught to the knowledge of the petitioner as soon as he was brought to the Police Station. Of course, those grounds must be brought to his knowledge with the greatest despatch and as soon as possible. In the case in hand, the grounds of arrest were bro­ught to the knowledge of the petitioner as soon as he was brought to the Police Station. According to the petitioner, he was arrested on 16.12.83 at about 11 PM; he was brought to the Police Station on 17.12.83 at about 5.30AM where he was informed of the grounds of arrest. It is not a case where the detenu was not at all informed of the grounds of arrest. The petitioner was produced before the Additional Chief Judicial Magistrate Jorhat on 17th December 1983. The contention of the petitioner that he was subjected to inhuman treatment and his limbs were broken, physical injuries were caused and he was not given any medical treatment in the Civil Hospital is dis­puted by the opposite parties. The Sub-Inspector of Police in his counter-affidavit has averred that the petitioner was not at all assaulted by the respondents nor was he forced to crawl on the floor at the behest of the respondent No. 5, nor an injury was caused to the petitioner and his brothers by the res­pondents. It was stated that the petitioner sustained injuries because he wanted to run away by breaking open the wall of his own house and, in the process, he sustained injuries. There is thus a serious dispute on a question of fact which obviously can be decided only on evidence that may be adduced by the parties. 4. The learned Counsel for the petitioner submits that this Court in exercise of its jurisdiction under Article 226 of the Constitution is competent to grant compensation to the petitioner for deprivation of his fundamental right. Referring to Rudal Shah vs. State of Bihar, AIR 1983 SC 1086 , the learned Counsel for the petitioner submitted that he should be awarded Rs. 50,000/- as compensation. On the other hand, the learned Government Advocate, Assam appearing on behalf of the res­pondents submitted that the petitioner should not, on the facts of the present case, be awarded any compensation in an appli­cation under Article 226 of the Constitution. In Rudal Shah's case the petitioner had filed a petition under Article 32 of the Constitution for his release on the ground that his detention in the jail was unlawful. In Rudal Shah's case the petitioner had filed a petition under Article 32 of the Constitution for his release on the ground that his detention in the jail was unlawful. He alleged that he was detained ille­gally in prison for over 14 years after his acquittal in a full-dressed trial. Hence, he asked for an ex-gratia payment for his rehabilitation as also compensation for his illegal detention in the jail for over 14 years. In that case, the State Govern­ment had argued that the petitioner should not be awarded any compensation under Article 32 of the Constitution and if he had any claim, he should be asked to file a civil suit in a competent court. Examining the submissions made on behalf of the parties in that case and in the light of the facts and circumstances thereof, the Supreme Court observed :- "It is true that Article 32 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. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under Article 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 fundamental right. The instant case is illustrative of such cases. The peti­tioner was detained illegally in the prison for over four­teen years after his acquittal in a full-dressed trial. He filed a Habeas Corpus petition in this Court for his release from illegal detention. He obtained that relief, our finding being that his detention in the prison after his acquittal was wholly unjustified. He contends that he is entitled to be compensated for his illegal de­tention and that we ought to piss an appropriate order for the payment of compensation in this Habeas Corpus petition itself". Again in paragraph 10 of the report, the Supreme Court observed :- "The petitioner could have been relegated to the ordi­nary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. Again in paragraph 10 of the report, the Supreme Court observed :- "The petitioner could have been relegated to the ordi­nary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate in the absence of evidence the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensa­tion in favour of the petitioner will be doing, mere lip-service to his fundamental right of liberty which the State Government has so grossly violated. Article 21 which guarantee the right to life and liberty will be denued of its significant content if the power of this Court were limited to passing orders of release from illegal detention." Hence, on peculiar facts in Rudal Shah's case the State was directed to repair the damage done by its officers to him. 5. The facts of the present case are distinguishable. Here, the petitioner was arrested on 16. 12. 83 at about 11 PM. He was brought to the Teok Police Station on 17. 12. 83 at about 5 AM and was produced before the Magistrate on the same day. He alleged that he was mercilessly beaten up by the police authorities and was subjected to inhuman treatment inasmuch as he was made to crawl on the floor. The Sub-Inspector has "stoutly" denied the facts that the petitioner was beaten up by the police authorities, or that he was asked to crawl on the floor, or that he was subjected to any inhuman treatment. There is, therefore, a serious controversy about the facts on the basis of which compensation is being claimed. The grounds of arrest were told to the petitioner at the Police Station within 6(six) hours of his arrest. We would not like to comment at this stage whether the communication of the grounds was inordinately delayed as a result of which the petitioner's fundamental right under Article 22 of the Constitution was violated. The petitioner was released on bail by the Sessions Court. We would not like to comment at this stage whether the communication of the grounds was inordinately delayed as a result of which the petitioner's fundamental right under Article 22 of the Constitution was violated. The petitioner was released on bail by the Sessions Court. On the facts and Circumstances set out hereinabove we are of the view that the claim for compensation can be enforced efficaciously through the ordinary process of courts by filing a suit in a Civil Court compe­tent to try it. Whether the fundamental right of the petitioner under Article 22 of the Constitution was violated and whether he was subjected to any physical and mental injury would be considered on the basis of the evidence that the parties may adduce. It is not possible to arrive at any conclusion on these controversial facts in a petition under Article 226 of the Consti­tution. It may be that in a fit case compensation may be awarded to a person whose fundamental rights are Violated in the exer­cise of jurisdiction under Article 226 of Constitution but the instant case is not of that nature, where the facts have been seriously disputed and evidence will have to be recorded to reach a definite conclusion with respect to the same. This can be efficaciously done by the Civil Court. The petitioner has, thus, an alternative efficacious remedy. It is, in our view, not a fit case to exercise extra-ordinary jurisdiction under Article 226 of the Constitution to award compensation, as claimed by the petitioner. 6. In the result, the petition is dismissed, but without costs.