DR.MEHMOOD NAYYAR AZAM Vs STATE OF CHATTISGARH
Bench: K.S. RADHAKRISHNAN,DIPAK MISRA
Case number: C.A. No.-005703-005703 / 2012
Diary number: 35547 / 2010
Advocates: NIRAJ SHARMA Vs
MRIDULA RAY BHARADWAJ
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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 5703/2012 (Arising out of SLP (C) No. 34702 of 2010)
Dr. Mehmood Nayyar Azam ….. Appellant
Versus
State of Chattisgarh and Ors. … Respondents
J U D G M E N T
Dipak Misra, J
Leave granted.
2. Albert Schweitzer, highlighting on Glory of Life,
pronounced with conviction and humility, “the reverence of life
offers me my fundamental principle on morality”. The
aforesaid expression may appear to be an individualistic
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expression of a great personality, but, when it is understood in
the complete sense, it really denotes, in its conceptual
essentiality, and connotes, in its macrocosm, the fundamental
perception of a thinker about the respect that life commands.
The reverence of life is insegragably associated with the dignity
of a human being who is basically divine, not servile. A
human personality is endowed with potential infinity and it
blossoms when dignity is sustained. The sustenance of such
dignity has to be the superlative concern of every sensitive
soul. The essence of dignity can never be treated as a
momentary spark of light or, for that matter, ‘a brief candle’,
or ‘a hollow bubble’. The spark of life gets more resplendent
when man is treated with dignity sans humiliation, for every
man is expected to lead an honourable life which is a splendid
gift of “creative intelligence”. When a dent is created in the
reputation, humanism is paralysed. There are some
megalomaniac officers who conceive the perverse notion that
they are the `Law’ forgetting that law is the science of what is
good and just and, in very nature of things, protective of a
civilized society. Reverence for the nobility of a human being
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has to be the corner stone of a body polity that believes in
orderly progress. But, some, the incurable ones, become
totally oblivious of the fact that living with dignity has been
enshrined in our Constitutional philosophy and it has its
ubiquitous presence, and the majesty and sacrosanctity
dignity cannot be allowed to be crucified in the name of some
kind of police action.
3. The aforesaid prologue gains signification since in the
case at hand, a doctor, humiliated in custody, sought public
law remedy for grant of compensation and the High Court,
despite no factual dispute, has required him to submit a
representation to the State Government for adequate relief
pertaining to grant of compensation after expiry of 19 years
with a further stipulation that if he is aggrieved by it, he can
take recourse to requisite proceedings available to him under
law. We are pained to say that this is not only asking a man
to prefer an appeal from Caesar to Caesar’s wife but it also
compels him like a cursed Sisyphus to carry the stone to the
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top of the mountain wherefrom the stone rolls down and he is
obliged to repeatedly perform that futile exercise.
4. The factual matrix as uncurtained is that the appellant,
an Ayurvedic Doctor with B.A.M.S. degree, while practising in
West Chirmiri Colliery, Pondi area in the State of
Chhattisgarh, used to raise agitations and spread awareness
against exploitation of people belonging to weaker and
marginalized sections of the society. As a social activist, he
ushered in immense awareness among the down-trodden
people which caused discomfort to the people who had vested
interest in the coal mine area. The powerful coal mafia, trade
union leaders, police officers and other persons who had fiscal
interest felt disturbed and threatened him with dire
consequences and pressurized him to refrain from such
activities. Embedded to his committed stance, the petitioner
declined to succumb to such pressure and continued the
activities. When the endeavor failed to silence and stifle the
agitation that was gaining strength and momentum, a
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consorted maladroit effort was made to rope him in certain
criminal offences.
5. As the factual narration further unfolds, in the initial stage,
cases under Section 110/116 of the Criminal Procedure Code
were initiated and thereafter crime No. 15/92 under Section
420 of the Indian Penal Code (for short ‘the IPC’) and crime
No. 41/92 under Sections 427 and 379 of the IPC were
registered. As the activities gathered further drive and became
more pronounced, crime No. 62/90 was registered for an
offence punishable under Section 379 of the IPC for alleged
theft of electricity. In the said case, the appellant was taken
into custody.
6. Though he was produced before the Magistrate on
22.9.1992 for judicial remand and was required to be taken to
Baikunthpur Jail, yet by the time the order was passed, as it
was evening, he was kept in the lock up at Manendragarh
Police Station. On 24.9.1992, he was required to be taken to
jail but instead of being taken to the jail, he was taken to
Pondi Police Station at 9.00 a.m. At the police station, he was
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abused and assaulted. As asseverated, the physical assault
was the beginning of ill-treatment. Thereafter, the SHO and
ASI, the respondent Nos. 3 and 4, took his photograph
compelling him to hold a placard on which it was written :-
“Main Dr. M.N. Azam Chhal Kapti Evam Chor Badmash Hoon”. (I, Dr. M. N. Azam, am a cheat, fraud, thief and rascal).
7. Subsequently, the said photograph was circulated in
general public and even in the revenue proceeding, the
respondent No. 5 produced the same. The said atrocities and
the torture of the police caused tremendous mental agony and
humiliation and, hence, the petitioner submitted a complaint
to the National Human Rights Commission who, in turn,
asked the Superintendant of Police, District Koria to submit a
report. As there was no response from the 2nd respondent the
Commission again required him to look into the grievances
and take proper action. When no action was taken by the
respondent or the police, the petitioner was compelled to
invoke the extraordinary jurisdiction of the High Court of
Judicature at Bilaspur, Chattisgarh with a prayer for
punishing the respondent Nos. 4, 5 & 7 on the foundation that
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their action was a complete transgression of human rights
which affected his fundamental right especially his right to live
with dignity as enshrined under Article 21 of the Constitution.
In the Writ Petition, prayer was made for awarding
compensation to the tune of Rs. 10 lakhs.
8. After the return was filed, the learned single Judge
passed a detailed order on 3.1.2003 that the Chief Secretary
and the Director General of Police should take appropriate
steps for issue of direction to the concerned authorities to take
appropriate action in respect of the erring officers. Thereafter,
some developments took place and on 24.3.2005, the Court
recorded that the writ petitioner was arrested on 22.9.1992
and his photograph was taken at the police station. The
learned single Judge referred to Rule 1 of Regulation 92 of
Chhattisgarh Police Regulations which lays down that no
Magistrate shall order photograph of a convict or other person
to be taken by the police for the purpose of Identification
under Prisoners Act, 1920, unless he is satisfied that such
photograph is required for circulation to different places or for
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showing it for the purpose of identification to a witness who
cannot easily be brought to a test identification at the place
where the investigation is conducted or that photograph is
required to be preserved as a permanent record. Thereafter,
the learned single Judge proceeded to record that not only the
photograph of the writ petitioner had been taken with the
placard but had also been circulated which had caused great
mental agony and trauma to his school going children.
Thereafter, he referred to Regulation 737 of the Chhattisgarh
Police Regulations which relates to action to be taken by the
superior officer in respect of an erring officer who ill-treats an
accused.
9. After referring to various provisions, the learned single
Judge called for a report from the Chief Secretary. On
18.11.2005, the Court was apprised that despite several
communications, the Chief Secretary had not yet sent the
report. Eventually, the report was filed stating that the
appellant was involved in certain cases including grant of
bogus medical certificate and regard being had to the
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directions issued in 1992 that the photograph of the offender
should be kept on record, the same was taken and affixed
against his name and after 7.9.1992, it was removed from the
records. It was also stated that the Sub-Inspector had been
imposed punishment of “censure” by the Superintendent of
Police on 19.11.2001. It was also set forth that on 3.5.2003, a
charge-sheet was served on all the erring officers and a
departmental enquiry was held and in the ultimate eventuate,
they had been imposed major penalty of withholding of one
annual increment with cumulative effect for one year
commencing 27.5.2004. That apart, on 19.7.2005, a case had
been registered under Section 29 of the Police Act against the
erring officers.
10. It is apt to note here that when the matter was listed for
final hearing for grant of compensation, the learned single
Judge referred the matter to be heard by a Division Bench.
11. The Division Bench referred to the prayer clause and
various orders passed by the learned single Judge and
eventually directed the appellant to submit a representation to
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the Chief Secretary for grant of compensation. We think it
appropriate to reproduce the relevant paragraphs of the order
passed by the Division Bench: -
“4. Learned counsel for the petitioner submits that during the pendency of the writ petition, Relief Clause No. 7.3 was fulfilled under the directions of this court and now only the compensation part, as claimed in Relief Clause No. 7.5A, remained there.
5. In the instant case, it is an admitted position that the respondent State authorities have taken cognizance of the harassment meted out to the petitioner by the erring personnel of the police department and initiated departmental enquiry against them in which they were found guilty and punishment has also been awarded to them.”
12. After issuing notice, this Court, on 17.2.2012, thought it
apposite that the appellant should submit a representation
within a week which shall be considered by the respondents
within four weeks therefrom.
13. In pursuance of the aforesaid order, the appellant
submitted a representation which has been rejected on
19.3.2012 by the OSD/Secretary, Government of
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Chhattisgarh, Home (Police) Department. In the rejection
order, it has been stated as follows: -
“In the aforesaid cases, the arrest and the action regarding submission of chargesheet in the Hon’ble Court was in accordance with law.
(2) On 24.9.92 the police officers taking your photograph and writing objectionable words thereon was against the legal procedure. Considering this, action was taken against the concerned guilty police officers in accordance with law and two police officers were punished.
(3) In your representation, compensation has been demanded on the following two grounds:
A. Defamation was caused due to the police officers taking photograph.
B. Your wife became unwell mentally. She is still unwell.
C. Difficulty in marriage of daughter.
Regarding the aforesaid grounds, the actual position is as follows:
A. Defamation is such a subject, the decision on which is within jurisdiction of the competent court. No decision pertaining to defamation has been received from the court of competent jurisdiction. Therefore, it would not be proper for the State Government to take a decision in this regard.
B. Regarding mental ailment of your wife, no such basis has been submitted by you,
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on the basis of which any conclusion may be drawn.
C. On the point of there being no marriage of children also no such document or evidence has been produced by you before the Government along with the representation, on the basis of which any decision may be taken.
Therefore, in the light of the above, the State Government hereby rejects your representation and accordingly decides your representation.”
14. Mr. Niraj Sharma, learned counsel appearing for the
appellant, submitted that when the conclusion has been
arrived at that the appellant was harassed at the hands of the
police officers and in the departmental enquiry they have been
found guilty and punished, just compensation should have
been awarded by the High Court. It is further urged by him
that this Court had directed to submit a representation to
grant an opportunity to the functionaries of the State to have a
proper perceptual shift and determine the amount of
compensation and grant the same, but the attitude of
indifference reigned supreme and no fruitful result ensued. It
is canvassed by him that it would not only reflect the non-
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concern for a citizen who has been humiliated at the police
station, but, the manner in which the representation has been
rejected clearly exhibits the imprudent perception and heart
of stone of the State. It is argued that the reasons ascribed by
the State authority that defamation is such a subject that the
issue of compensation has to be decided by the competent
court and in the absence of such a decision, the Government
cannot take a decision as regards the compensation clearly
reflects the deliberate insensitive approach to the entire fact
situation inasmuch as the High Court, in categorical terms,
had found that the allegations were true and the appellant
was harassed and thereby it did tantamount to custodial
torture and there was no justification to adopt a hyper-
technical mode to treat it as a case of defamation in the
ordinary sense of the term and requiring the appellant to take
recourse to further adjudicatory process and obtain a decree
from the civil court.
15. Mr. Atul Jha, learned counsel appearing for the State,
has supported the order of the High Court as well as the order
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passed by the competent authority of the State who has
rejected the representation on the foundation that when the
appellant puts forth a claim for compensation on the ground
of defamation, he has to take recourse to the civil court and,
therefore, no fault can be found with the decision taken either
by the High Court or the subsequent rejection of the
representation by the authority of the State.
16. The learned counsel appearing for the private
respondents has submitted that they have already been
punished in a disciplinary proceeding and, therefore, the
question of grant of compensation does not arise and even if it
emerges, the same has to be determined by the civil court on
the base of evidence adduced to establish defamation.
17. At the very outset, we are obliged to state that five
aspects are clear as day and do not remotely admit of any
doubt. First, the appellant was arrested in respect of the
alleged offence under Indian Penal Code, 1860 and the
Electricity Act, 2003; second, there was a direction by the
Magistrate for judicial remand and thereafter instead of taking
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him to jail the next day he was brought to the police station;
third, self-humiliating words were written on the placard and
he was asked to hold it and photographs were taken; and
fourth, the photographs were circulated in general public and
were also filed by one of the respondents in a revenue
proceeding; and five, the High Court, in categorical terms, has
found that the appellant was harassed.
18. In the aforesaid backdrop, the singular question required
to be posed is that whether the appellant should be asked to
initiate a civil action for grant of damages on the foundation
that he has been defamed or this Court should grant
compensation on the bedrock that he has been harassed in
police custody.
19. At this juncture, it is condign to refer to certain
authorities in the field. In D.K. Basu v. State of W.B.1 it has
been held thus: -
“10. “Torture” has not been defined in the Constitution or in other penal laws. “Torture” of a human being by another human being is essentially an instrument to impose the will of
1 AIR 1997 SC 610 : (1997) 1 SCC 416
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the “strong” over the “weak” by suffering. The word torture today has become synonymous with the darker side of human civilization.
“Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself.”
- Adriana P. Bartow
11. No violation of any one of the human rights has been the subject of so many Conventions and Declarations as “torture” – all aiming at total banning of it in all forms, but in spite of the commitments made to eliminate torture, the fact remains that torture is more widespread now than ever before. “Custodial torture” is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward – flag of humanity must on each such occasion fly half- mast.
12. In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock- up. Whether it is physical assault or rape in
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police custody, the extent of trauma, a person experiences is beyond the purview of law.”
20. We have referred to the aforesaid paragraphs to highlight
that this Court has emphasized on the concept of mental
agony when a person is confined within the four walls of police
station or lock-up. Mental agony stands in contradistinction
to infliction of physical pain. In the said case, the two-Judge
Bench referred to Article 5 of the Universal Declaration of
Human Rights, 1948 which provides that “No one shall be
subjected to torture or to cruel, inhuman or degrading
treatment or punishment”. Thereafter, the Bench adverted to
Article 21 and proceeded to state that the expression “life or
personal liberty” has been held to include the right to live with
human dignity and thus, it would also include within itself a
guarantee against torture and assault by the State or its
functionaries. Reference was made to Article 20(3) of the
Constitution which postulates that a person accused of an
offence shall not be compelled to be a witness against himself.
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21. It is worthy to note that in the case of D.K. Basu (supra),
the concern shown by this Court in Joginder Kumar v. State
of U.P.2 was taken note of. In Joginder Kumar’s case, this
Court voiced its concern regarding complaints of violation of
human rights during and after arrest. It is apt to quote a
passage from the same: -
“The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violations of human rights because of indiscriminate arrests. How are we to strike a balance between the two?
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…”
22. After referring to the case of Joginder Kumar (supra),
A.S. Anand, J. (as his Lordship then was), dealing with the
2 (1994) 4 SCC 260
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various facets of Article 21, stated that any form of torture or
cruel, inhuman or degrading treatment would fall within the
ambit of Article 21 of the Constitution, whether it occurs
during investigation, interrogation or otherwise. If the
functionaries of the Government become law-breakers, it is
bound to breed contempt for law and would encourage
lawlessness and every man would have the tendency to
become law unto himself thereby leading to anarchy. No
civilized nation can permit that to happen, for a citizen does
not shed off his fundamental right to life, the moment a
policeman arrests him. The right to life of a citizen cannot put
in abeyance on his arrest. The precious right guaranteed by
Article 21 of the Constitution of India cannot be denied to
convicts, undertrials, detenus and other prisoners in custody,
except according to the procedure established by law by
placing such reasonable restrictions as are permitted by law.
23. At this juncture, it becomes absolutely necessary to
appreciate what is meant by the term “harassment”. In P.
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Ramanatha Aiyar’s Law Lexicon, Second Edition, the term
“harass” has been defined, thus: -
“Harass. “injure” and “injury” are words having numerous and comprehensive popular meanings, as well as having a legal import. A line may be drawn between these words and the word “harass” excluding the latter from being comprehended within the word “injure” or “injury”. The synonyms of “harass” are: To weary, tire, perplex, distress tease, vex, molest, trouble, disturb. They all have relation to mental annoyance, and a troubling of the spirit.”
The term “harassment” in its connotative expanse includes
torment and vexation. The term “torture” also engulfs the
concept of torment. The word “torture” in its denotative
concept includes mental and psychological harassment. The
accused in custody can be put under tremendous
psychological pressure by cruel, inhuman and degrading
treatment.
24. At this juncture, we may refer with profit to a two-Judge
Bench decision in Sunil Gupta and others v. State of
Madhya Pradesh and others3. The said case pertained to
3 (1990) 3 SCC 119
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handcuffing where the accused while in judicial custody were
being escorted to court from jail and bound in fetters. In that
context, the Court stated that the escort party should record
reasons for doing so in writing and intimate the court so that
the court, considering the circumstances may either approve
or disapprove the action of the escort party and issue
necessary directions. The Court further observed that when
the petitioners who had staged ‘Dharna’ for public cause and
voluntarily submitted themselves for arrest and who had no
tendency to escape, had been subjected to humiliation by
being handcuffed, such act of the escort party is against all
norms of decency and is in utter violation of the principle
underlying Article 21 of the Constitution of India. The said act
was condemned by this Court to be arbitrary and
unreasonably humiliating towards the citizens of this country
with the obvious motive of pleasing ‘someone’.
25. In Bhim Singh, MLA v. State of J & K4, this Court
expressed the view that the police officers should have greatest
regard for personal liberty of citizens as they are the
4 (1985) 4 SCC 677
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custodians of law and order and, hence, they should not flout
the law by stooping to bizarre acts of lawlessness. It was
observed that custodians of law and order should not become
depredators of civil liberties, for their duty is to protect and
not to abduct.
26. It needs no special emphasis to state that when an
accused is in custody, his Fundamental Rights are not
abrogated in toto. His dignity cannot be allowed to be
comatosed. The right to life is enshrined in Article 21 of the
Constitution and a fortiorari, it includes the right to live with
human dignity and all that goes along with it. It has been so
stated in Francis Coralie Mullin v. Administrator, Union
Territory of Delhi and others5 and D.K. Basu (supra).
27. In Kharak Singh v. State of U. P.,6 this court approved
the observations of Field, J. in Munn v. Illinois7:-
“By the term “life” as here [Article 21] used something more is meant than mere animal existence. The inhibition against its
5 (1981) 1 SCC 608 6 (1964) 1 SCR 332 7 (1877) 94 US 113
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deprivation extends to all those limbs and faculties by which life is enjoyed.”
28. It is apposite to note that inhuman treatment has many a
facet. It fundamentally can cover such acts which have been
inflicted with an intention to cause physical suffering or severe
mental pain. It would also include a treatment that is inflicted
that causes humiliation and compels a person to act against
his will or conscience.
29. In Arvinder Singh Bagga v. State of U.P. and others8,
it has been opined that torture is not merely physical but may
even consist of mental and psychological torture calculated to
create fright to submit to the demands of the police.
30. At this stage, it is seemly to refer to the decisions of some
of the authorities relating to a man’s reputation which forms a
facet of right to life as engrafted under Article 21 of the
Constitution.
8 AIR 1995 SC 117
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31. In Smt. Kiran Bedi v. Committee of Inquiry and
another9, this Court reproduced an observation from the
decision in D. F. Marion v. Davis10:-
“The right to enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property.”
32. In Board of Trustees of the Port of Bombay v.
Dilipkumar Raghavendranath Nadkarni and others11, it
has been ruled that right to reputation is a facet of right to life
of a citizen under Article 21 of the Constitution.
33. In Smt. Selvi and others v. State of Karnataka12,
while dealing with the involuntary administration of certain
scientific techniques, namely, narcoanalysis, polygraph
examination and the Brain Electrical Activation Profile test for
the purpose of improving investigation efforts in criminal
cases, a three-Judge Bench opined that the compulsory
9 (1989) 1 SCC 494 10 55 ALR 171 11 (1983) 1 SCC 124 12 AIR 2010 SC 1974
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administration of the impugned techniques constitute ‘cruel,
inhuman or degrading treatment’ in the context of Article 21.
Thereafter, the Bench adverted to what is the popular
perception of torture and proceeded to state as follows: -
“The popular perceptions of terms such as ‘torture’ and ‘cruel, inhuman or degrading treatment’ are associated with gory images of blood-letting and broken bones. However, we must recognize that a forcible intrusion into a person’s mental processes is also an affront to human dignity and liberty, often with grave and long-lasting consequences. [A similar conclusion has been made in the following paper: Marcy Strauss, ‘Criminal Defence in the Age of Terrorism – Torture’, 48 New York Law School Law Review 201-274 (2003/2004)].”
After so stating, the Bench in its conclusion recorded as
follows: -
“We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to ‘cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms.”
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34. Recently in Vishwanath S/o Sitaram Agrawal v. Sau.
Sarla Vishwanath Agrawal13, although in a different
context, while dealing with the aspect of reputation, this Court
has observed as follows: -
“……..reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is extremely delicate and a cherished value this side of the grave. It is a revenue generator for the present as well as for the posterity.”
35. We have referred to these paragraphs to understand how
with the efflux of time, the concept of mental torture has been
understood throughout the world, regard being had to the
essential conception of human dignity.
36. From the aforesaid discussion, there is no shadow of
doubt that any treatment meted out to an accused while he is
in custody which causes humiliation and mental trauma
corrodes the concept of human dignity. The majesty of law
protects the dignity of a citizen in a society governed by law. It
cannot be forgotten that the Welfare State is governed by rule
of law which has paramountcy. It has been said by Edward 13 2012 (6) SCALE 190
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Biggon “the laws of a nation form the most instructive portion
of its history.” The Constitution as the organic law of the land
has unfolded itself in manifold manner like a living organism
in the various decisions of the court about the rights of a
person under Article 21 of the Constitution of India. When
citizenry rights are sometimes dashed against and pushed
back by the members of City Halls, there has to be a rebound
and when the rebound takes place, Article 21 of the
Constitution springs up to action as a protector. That is why,
an investigator to a crime is required to possess the qualities
of patience and perseverance as has been stated in Nandini
Sathpaty v. P. L. Dani14.
37. In Delhi Judicial Services Association v. State of
Gujarat15, while dealing with the role of police, this Court
condemned the excessive use of force by the police and
observed as follows:-
“The main objectives of police is to apprehend offenders, to investigate crimes and to prosecute them before the courts and also to prevent commission of crime and above all to
14 AIR 1978 SC 1025 15 (1991) 4 SCC 406
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ensure law and order to protect citizens’ life and property. The law enjoins the police to be scrupulously fair to the offender and the Magistracy is to ensure fair investigation and fair trial to an offender. The purpose and object of Magistracy and police are complementary to each other. It is unfortunate that these objectives have remained unfulfilled even after 40 years of our Constitution. Aberrations of police officers and police excesses in dealing with the law and order situation have been subject of adverse comments from this Court as well as from other courts but it has failed to have any corrective effect on it. The police has power to arrest a person even without obtaining a warrant of arrest from a court. The amplitude of this power casts an obligation on the police and it must bear in mind, as held by this Court that if a person is arrested for a crime, his constitutional and fundamental rights must not be violated.”
38. It is imperative to state that it is the sacrosanct duty of
the police authorities to remember that a citizen while in
custody is not denuded of his fundamental right under Article
21 of the Constitution. The restrictions imposed have the
sanction of law by which his enjoyment of fundamental right is
curtailed but his basic human rights are not crippled so that
the police officers can treat him in an inhuman manner. On
the contrary, they are under obligation to protect his human
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rights and prevent all forms of atrocities. We may hasten to
add that a balance has to be struck and, in this context, we
may fruitfully quote a passage from D. K. Basu (supra): -
“There can be no gainsaying that freedom of an individual must yield to the security of the State. The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statutes has been upheld by the Courts. The right to interrogate the detenus, culprits or arrestees in the interest of the nation, must take precedence over an individual’s right to personal liberty. …….… The action of the State, however, must be “right, just and fair”. Using any form of torture for extracting any kind of information would neither be ‘right nor just nor fair’ and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated-indeed subjected to sustain and scientific interrogation- determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third degree methods or eliminated with a view to elicit information, extract confession or derive knowledge about his accomplishes, weapons etc. His constitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal.”
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39. In the case at hand, the appellant, while in custody, was
compelled to hold a placard in which condemning language
was written. He was photographed with the said placard and
the photograph was made public. It was also filed in a
revenue proceeding by the 5th respondent. The High Court has
recorded that the competent authority of the State has
conducted an enquiry and found the erring officers to be
guilty. The High Court has recorded the findings in the favour
of the appellant but left him to submit a representation to the
concerned authorities. This Court, as has been indicated
earlier, granted an opportunity to the State to deal with the
matter in an appropriate manner but it rejected the
representation and stated that it is not a case of defamation.
We may at once clarify that we are not at all concerned with
defamation as postulated under Section 499 of the IPC. We
are really concerned how in a country governed by rule of law
and where Article 21 of the Constitution is treated to be
sacred, the dignity and social reputation of a citizen has been
affected.
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40. As we perceive, from the admitted facts borne out on
record, the appellant has been humiliated. Such treatment is
basically inhuman and causes mental trauma. In “Kaplan &
Sadock’s Synopsis of Psychiatry”, while dealing with torture,
the learned authors have stated that intentional physical and
psychological torture of one human by another can have
emotionally damaging effects comparable to, and possibly
worse than, those seen with combat and other types of
trauma. Any psychological torture inflicts immense mental
pain. A mental suffering at any age in life can carry the brunt
and may have nightmarish effect on the victim. The hurt
develops a sense of insecurity, helplessness and his self-
respect gets gradually atrophied. We have referred to such
aspects only to highlight that in the case at hand, the police
authorities possibly have some kind of sadistic pleasure or to
“please someone” meted out the appellant with this kind of
treatment. It is not to be forgotten that when dignity is lost,
the breath of life gets into oblivion. In a society governed by
rule of law where humanity has to be a laser beam, as our
compassionate constitution has so emphasized, the police
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authorities cannot show the power or prowess to vivisect and
dismember the same. When they pave such path, law cannot
become a silent spectator. As Pithily stated in Jennison v.
Baker16:-
“The law should not be seen to sit by limply, while those who defy if go free, and those who seek its protection lose hope.”
41. Presently, we shall advert to the aspect of grant of
compensation. The learned counsel for the State, as has been
indicated earlier, has submitted with immense vehemence that
the appellant should sue for defamation. Our analysis would
clearly show that the appellant was tortured while he was in
custody. When there is contravention of human rights, the
inherent concern as envisaged in Article 21 springs to life and
enables the citizen to seek relief by taking recourse to public
law remedy.
42. In this regard, we may fruitfully refer to Nilabati Behera
v. State or Orissa17 wherein it has been held thus: -
16 (1972) 1 All ER 997, 1006 17 (1993) 2 SCC 746
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“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 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 the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.”
43. Dr. A.S. Anand J., (as his Lordship then was), in his
concurring opinion, expressed that the relief of monetary
compensation, as exemplary damages, in proceedings under
Article 32 by the Supreme Court or under Article 226 by the
High Courts for established infringement of the indefeasible
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right guaranteed under Article 21 is a remedy available in
public law and is based on the strict liability for contravention
of the guaranteed basic and indefeasible rights of the citizen.
The purpose of public law is not only to civilize public power
but also to assure the citizen that they live under a legal
system which aims to protect their interests and preserve their
rights. Therefore, when the court moulds the relief by
granting ‘compensation’ in proceedings under Article 32 or
226 seeking enforcement or protection of fundamental rights,
it does so under the public law by way of penalizing the
wrongdoer and fixing the liability for the public wrong on the
State which has failed in its public duty to protect the
fundamental rights of the citizen. The payment of
compensation in such cases is not to be understood, as it is
generally understood in a civil action for damages under the
private law but in the broader sense of providing relief by an
order of making ‘monetary amends’ under the public law for
the wrong done due to breach of public duty, by not protecting
the fundamental rights of the citizen. The compensation is in
the nature of ‘exemplary damages’ awarded against the
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wrongdoer for the breach of its public law duty and is
independent of the rights available to the aggrieved party to
claim compensation under the private law in an action based
on tort, through a suit instituted in a court of competent
jurisdiction or/and prosecute the offender under the penal
law.
44. In Sube Singh v. State of Haryana18, a three-Judge
Bench of the Apex Court, after referring to its earlier decisions,
has opined as follows: -
“It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under Section 357 of Code of Civil Procedure.”
18 AIR 2006 SC 1117
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45. At this stage, we may fruitfully refer to the decision in
Hardeep Singh v. State of Madhya Pradesh.19 The
appellant therein was engaged in running a coaching centre
where students were given tuition to prepare for entrance test
for different professional courses. On certain allegation, he
was arrested and taken to police station where he was
handcuffed by the police without there being any valid reason.
A number of daily newspapers published the appellant’s
photographs and on seeing his photograph in handcuffs, the
appellant’s elder sister was so shocked that she expired. After
a long and delayed trial, the appellant, Hardeep Singh, filed a
writ petition before the High Court of Madhya Pradesh at
Jabalpur that the prosecution purposefully caused delay in
conclusion of the trial causing harm to his dignity and
reputation. The learned single Judge, who dealt with the
matter, did not find any ground to grant compensation. On an
appeal being preferred, the Division Bench observed that an
expeditious trial ending in acquittal could have restored the
appellant’s personal dignity but the State instead of taking
19 (2012) 1 SCC 748
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prompt steps to examine the prosecution witnesses delayed
the trial for five long years. The Division Bench further held
there was no warrant for putting the handcuffs on the
appellant which adversely affected his dignity. Be it noted, the
Division Bench granted compensation of Rs. 70,000/-. This
Court, while dealing with the facet of compensation, held
thus:-
“Coming, however, to the issue of compensation, we find that in light of the findings arrived at by the Division Bench, the compensation of Rs. 70,000/- was too small and did not do justice to the sufferings and humiliation undergone by the appellant. In the facts and circumstances of the case, we feel that a sum of Rs. 2,00,00/- (Rupees Two Lakhs) would be an adequate compensation for the appellant and would meet the ends of justice. We, accordingly, direct the State of Madhya Pradesh to pay to the appellant the sum of Rs. 2,00,000/-(rupees Two Lakhs) as compensation. In case the sum of Rs.70,000/- as awarded by the High Court, has already been paid to the appellant, the State would naturally pay only the balance amount of Rs.1,30,000/- (Rupees One Lakh thirty thousand)”.
Thus, suffering and humiliation were highlighted and amount
of compensation was enhanced.
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46. On a reflection of the facts of the case, it is luculent that
the appellant had undergone mental torture at the hands of
insensible police officials. He might have agitated to
ameliorate the cause of the poor and the downtrodden, but,
the social humiliation that has been meted out to him is quite
capable of destroying the heart of his philosophy. It has been
said that philosophy has the power to sustain a man’s
courage. But courage is based on self-respect and when self-
respect is dented, it is difficult even for a very strong minded
person to maintain that courage. The initial invincible mind
paves the path of corrosion. As is perceptible, the mindset of
the protectors of law appears to cause torment and insult and
tyrannize the man who is helpless in custody. There can be
no trace of doubt that he is bound to develop stress disorder
and anxiety which destroy the brightness and strength of the
will power. It has been said that anxiety and stress are slow
poisons. When torment is added, it creates commotion in the
mind and the slow poisons get activated. The inhuman
treatment can be well visualized when the appellant came out
from custody and witnessed his photograph being circulated
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with the self-condemning words written on it. This withers
away the very essence of life as enshrined under Article 21 of
the Constitution. Regard being had to the various aspects
which we have analysed and taking note of the totality of facts
and circumstances, we are disposed to think that a sum of
Rs.5.00 lacs (Rupees five lacs only) should be granted towards
compensation to the appellant and, accordingly, we so direct.
The said amount shall be paid by the respondent State within
a period of six weeks and be realized from the erring officers in
equal proportions from their salary as thought appropriate by
the competent authority of the State.
47. Consequently, the appeal is allowed to the extent
indicated above. However, in the facts and circumstances of
the case, there shall be no order as to costs.
……………………………….J. [K. S. Radhakrishnan]
……………………………….J. [Dipak Misra]
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New Delhi; August 03, 2012.