laim of compensation in public law on account of the violation of the fundamental rights

in Veena Sippy Major Vs. Narayan Dumbre, then Senior Inspector of Police & Ors. 2012 SCC OnLine Bom 339, this Hon’ble Court ruled as under;

“7. We have perused the petition and annexures thereto as well as the affidavits on the record. We have perused the written submissions of the petitioner appearing in person. We have heard the petitioner appearing in person. She has relied upon various decisions of this Court and Apex Court. She submitted that till the time she was taken to the police lockup, she was not even informed that she was arrested. She stated that her mother was never informed about her arrest. She stated that she was not informed by any of the respondents that she is entitled to bail as the matter of right as the offence alleged against the petitioner was a bailable offence. She submitted that the first to third respondents have committed breach of the directions issued by the Apex Court in the case of D. K. Basu (Supra). She submitted that as there is no arrest panchanama drawn, her detention firstly at the police station and thereafter, in the police lockup is completely illegal and violative of Articles 21 and 22 of the Constitution of India. She stated that after she was produced before the learned Magistrate, she was informed by someone to apply for bail in a particular manner and accordingly she wrote an application on which she was granted bail. She criticized the report dated 19th September, 2010 submitted by the Commissioner of Police. She submitted that no proper action has been taken against the first and third respondents. She pointed out that in a case where a retired Judge of the Apex Court was granted compensation of Rs.100 crores for defamation, this Court granted stay 41 subject to deposit of Rs. 20 crores which order has been confirmed by the Apex Court. She, therefore, submitted that she is entitled to compensation of Rs.1 crore.

25. As far as prayer for compensation is concerned, a reference will have to be made to the decision of the Apex Court in the case of Neelabati Behera (Smt) V/s. State of Orissa and Others [1993 (2) SCC 746]. The Apex Court dealt with a claim of compensation in public law on account of the violation of the fundamental rights. In paragraph Nos.17 and 18 of the decision, the Apex Court has held thus: '17. It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for the 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 Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to 42 the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights. 18. A useful discussion on this topic which brings out the distinction between the remedy in public law based on strict liability for violation of a fundamental right enabling award of compensation, to which the defence of sovereign immunity is inapplicable, and the private law remedy, is to be found in Ratanlal & Dhirajlal's Law of Torts, 22nd Edition, 1992, by Justice G. P. Singh, at pages 44 to 48.' 26. In paragraph Nos.20 and 22 of the said decision, it is held thus: '20. We respectfully concur with the view that the court is not helpless and the wide powers given to this Court by Article 32, which itself is a fundamental right, imposes a constitutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, wherein that is the only mode of redress, available. The power available to this Court under Article 142 is also an enabling provision in this behalf. 43 The contrary view would not merely render the court powerless and the constitutional guarantee a mirage, but may, in certain situations, be an incentive to extinguish life, if for the extreme contravention the court is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence, and recovery of damages under private law, by the ordinary process. If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the havenotes, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate.' '22. The above discussion indicates the principle on which the Court's power under Article 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 minimise 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, 44 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.' 27. Subsequently, there is a decision of the Apex Court in the case of Suber Singh V/s. State of Hariyana & Ors. [2006 (3) SCC 178]. In paragraph No.46 of the decision, the Apex Court has summarized the law on the availability of public law remedy for seeking compensation. Paragraph No.46 reads thus: 'In case where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, the Courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the Court will have to pose to itself the following questions : (a) whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of an magnitude to shock the conscience of the Court, (c) whether the custodial torture alleged has resulted in death or whether custodial torture is supported by medical report or visible marks or scars or disability. Where there is no evidence of custodial torture of a person except his own statement, and where such allegation is not supported by any medical report or other corroborative evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, the Courts may not award compensation as a public law remedy under Article 32 or 226, 45 but relegate the aggrieved party to the traditional remedies by way of appropriate civil/criminal action.' 28. There is a recent decision of the Apex Court dated 9th September, 2011 in the case of Raghuvansh Dewanchand Bhasin vs. State of Maharashtra & Anr (CRIMINAL APPEAL NO.1758 of 2011). The Apex Court has again made a reference to the law on the aspect of taking recourse to public law remedy for grant of compensation. In paragraph No.9 of the decision, the Apex Court has observed thus: '9. It needs little emphasis that since the execution of a nonbailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically, but only after recording satisfaction that in the facts and circumstances of the case, it is warranted. The Courts have to be extra-cautious and careful while directing issue of nonbailable warrant, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual's rights, liberties and privileges on the one hand, and the State on the other. In deed, it is a complex exercise. As Justice Cardozo puts it 'on the one side is the social need that crime shall be repressed. On the other hand, the social need that law shall not be flouted by the insolence of offence. There are dangers in any choice.' Be that as it may, it is for the court, which is clothed with the 46 discretion to determine whether the presence of an accused can be secured by a bailable or non-bailable warrant, to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from highhandedness at the hands of the law enforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter-alia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of the absconding.' 29. In paragraph No.19, the Apex Court has proceeded to observe thus: 'The power and jurisdiction of this Court and the High Courts to grant monetary compensation in exercise of its jurisdiction respectively under Articles 32 and 226 of the Constitution of India to a victim whose fundamental rights under Article 21 of the Constitution are violated are thus, well-established. However, the question now is whether on facts in hand, the appellant is entitled to monetary compensation in addition to what has already been awarded to him by the High Court. Having considered the case in the light of the fact situation stated above, we are of the opinion that the appellant does not deserve further monetary compensation.' 47 30. Hence, we hold that the Petitioner can seek compensation on the ground of violation of fundamental right under Article 21 of the Constitution. 31. The present case is a case of patent and uncontroverted violation of Article 21 of the Constitution of India. Now, the question is as to what should be the compensation. The Petitioner appearing in person has placed reliance on the decision of this Court in the case of Nirmal Bhavarlar Jain (Supra). This was a case where allegation was made of illegal detention in violation of the directions contained in the decision of the Apex Court in the case of D.K. Basu (Supra). This was a case where the Petitioner before the Division Bench of this Court was illegally detained on 8 September, 2000 and was enlarged on bail on 16 September, 2000. In this case where the Petitioner was unlawfully detained in the year 2000 for a period of eight days was granted compensation of Rs. 1 lac together with interest at the rate of 8% per annum from the date of illegal detention. In the case of Chandrabhan Rama Dhengle v. Indirabai Chandrabhan Dhengle [(1998) 1 Mah LJ 235] which was a case of illegal detention of the Petitioner for a period of 63 days in the year 1995, this Court directed payment of compensation of Rs. 50,000/- to the Petitioner. In the case of Prema Bangar Swamy v. State of Maharahshtra [(2004) 2 Mah LJ 993], where an accused was illegally detained for the period of 2 years and 9 months after the Petitioner was acquitted, the Division Bench directed payment of compensation of Rs. 2 lacs. We must state here that the Petitioner in person has relied upon an interim order passed by this Court in First Appeal arising out of a decree passed in a suit. The decree was passed in a suit filed by a 48 retired Judge of the Apex Court wherein he claimed compensation on account of act of defamation. Considering the evidence on record, the Trial Court passed a decree for payment of damages of Rs. 100/- crores. While admitting the Appeal and while considering the prayer for grant of stay, this Court directed the Appellant-Defendant to deposit a sum of Rs. 20/- crores in the Court and to furnish Bank Guarantee for rest of the decretal amount as a condition of grant of stay. However, this Court directed investment of the amount of Rs. 20/- crores till the disposal of the Appeal. The interim order of this Court has been confirmed by the Apex Court. The order of this Court passed in First Appeal arising out of a money decree passed by a regular Civil Court after adjudication cannot be the basis to determine compensation payable to the Petitioner. 32. In this Writ Petition under Article 226 of The Constitution of India, we cannot record evidence to quantify the amount of compensation. Notwithstanding the grant of compensation in this public law remedy, the Petitioner can always take recourse to regular remedy available for claiming compensation over and above what is granted by this Court. The Petitioner claimed compensation of Rs. 1/- crore in the written submissions. The said prayer cannot be considered as she has not amended the petition where the claim of Rs. 10,00,000/- has been made. Considering the aforesaid decisions, even the claim of Rs. 10,00,000/- appears to be on the higher side. In the present case we are dealing with the illegal detention of a woman for a period of one day in the year 2008 for commission of a bailable offence punishable with maximum fine of Rs. 1,200/-. Though the Petitioner was 49 arrested in connection with commission of an offence which was admittedly bailable, the Petitioner was not even made aware of her right to be released on bail. The Petitioner's mother was not even informed about the arrest. As stated earlier, without informing the Petitioner about the arrest and without drawing even the arrest panchanama, she was kept in the Azad Maidan police lock up. In the Petition, she has alleged that she was kept in one room along with 40 other persons. She has alleged that the toilet and bath room in the lock-up has no doors. She has alleged that she was suffocated as there was no fresh air in the lock up. These factual assertions which are found in the paragraph Nos. 43 to 49 of the Petition have not been disputed in any of the affidavits filed on record. The Petitioner who is a women had to spend a night in the police lock up along with 40 persons in inhuman conditions. Considering the aforesaid circumstances, we deem it fit to quantify the compensation payable in the present case at Rs. 2,50,000/- with interest thereon at the rate of 8% per annum from 5 April, 2008 i.e. the date from which she was illegally detained. The State Government will have to pay the compensation. We quantify the costs payable to the Petitioner at Rs. 25,000/- as the Petitioner had to appear before this Court atleast on 22 occasions. It is always open for the State Government to recover the compensation and costs amount from the erring officers after fixing their liability. 33. We make it very clear that we have expressed no opinion on the merits of the disciplinary proceedings initiated against the concerned police officers. 50 34. Hence, we pass the following order: : ORDER : i. We hold that the detention of the Petitioner by the officers of Gamdevi Police Station from 5 April, 2008 to 6 April, 2008 is illegal and there has been a gross violation of the fundamental right of the Petitioner guaranteed by Article 21 of the Constitution of India. ii. We direct the 5 Respondent-State of Maharashtra to pay compensation of Rs. 2,50,000/- to the Petitioner together with interest thereon at the rate of 8% per annum from 5 April, 2008 till the realization or payment. We direct the State Government to pay costs quantified at Rs. 25,000/- to the Petitioner. We gran time of six weeks to the State Government to pay the said amounts to the Petitioner by an account payee cheque. It will be also open for the fifth Respondent - State Government to deposit the amounts in this Court within the stipulated time. In such event it will be open for the Petitioner to withdraw the said amount. iii. We clarify that it is open for the State Government to take proceedings for recovery of the amount of compensation and costs from the officers responsible for the default, if so advised. iv. Petition stands dismissed as against the Respondent No. 4. vi. We make it clear that it will be open for the Petitioner to adopt a regular remedy for recovery of compensation/damages in addition to the amount directed to be paid under this Judgment. vii. Rule is made partly absolute on the above terms. 51 viii. We direct the office of the public prosecutor to forward a copy of this Judgment to the Director General of Police as well as to the Chief Secretary of the State Government.”