Persons Under Illegal Detention Shall Be Paid Compensation By State




It is a matter of great solace, immense satisfaction and tremendous happiness to note that in a latest, learned, laudable and landmark judgment titled Shiv Kumar Verma and Another v. State of U.P. and 3 Others in Criminal Misc. Writ Petition No. – 16386 of 2020, while underscoring in no uncertain terms that the award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil, the Allahabad High Court has most commendably directed the State Government to strictly implement its policy of granting compensation to a citizen (25k), who has been illegally detained. What also cannot be missed out is that the Bench of Justice Surya Prakash Kesarwani and Justice Shamim Ahmed also unanimously, unhesitatingly and unconditionally appreciated the State Government for coming up with a policy decision to pay compensation of Rs 25,000/- for illegal detention of any citizen by any Officer of the State Government and initiation of disciplinary proceedings against such officer. The Court was dealing with the illegal detention of 2 persons who continued to be under detention despite submitting personal bond and other papers as directed under the pretext of verification and thus they challenged their illegal detention before the Court.

To start with, the ball is set rolling in para 2 of this brief, brilliant, balanced and bold judgment authored by Justice Surya Prakash Kesarwani for himself and Justice Shamim Ahmed wherein it is put forth that, “This writ petition has been filed praying for the following reliefs: 

“i) Issue a writ, order or direction in the nature of mandamus directing the respondents to give compensation to the petitioners in lieu of illegal detention from 12.10.2020 to 21.10.2020 in connection with Case Crime No.624 of 2020, State vs. Shiv Kumar Verma and another, under Section 151, 107 and 116 Cr.P.C., Police Station Rohania, District Varanasi.””

While stating the facts of the present case, the Bench then observes in para 3 that, “Briefly stated, facts of the present case are that there was some dispute relating to ancestral property between the petitioners and their family members. In paragraph 3 of the writ petition, it has been stated that some tiff arose between the petitioners and other family members, namely, Rajendra Prasad, Shiv Kumar Verma and Raj Kumar Verma regarding partition of an ancestral land and in apprehension of breach of public peace, the police arrested the petitioners under Section 151 Cr.P.C. on 08.10.2020. A Challani Report dated 08.10.2020 was submitted by the Sub Inspector, Police Station Rohania, District Varanasi to the Sub Divisional Magistrate, District Varanasi under Section 151/107/116 Cr.P.C., which was in printed form and merely name of the petitioners and others, name of village and “land dispute” have been filled by ink in the aforesaid Challani Report. On receipt of the Challani Report, the Sub Divisional Magistrate registered the case as Case No.624 of 2020 (State vs. Shiv Kumar Maurya and others) and passed the following order on 08.10.2020” which to put it shortly reveals that the petitioners were sent to jail for not submitting personal bonds and other papers.”

Shortly put, the Bench then states in para 4 that, “It appears that on 12.10.2020 the petitioners submitted personal bond and other papers but the respondent no.3 has not released them and instead, under the pretext of verification, directed the file to be placed on 21.10.2020.”

As a corollary, the Bench then discloses in para 5 that, “Thereafter, on 21.10.2020 the petitioners were released. Aggrieved with the arbitrary and illegal action of the respondents and illegal detention, the petitioners have filed the present writ petition praying for the relief as afore-quoted.”

As we see, the Bench then to put it shortly states in para 7 that, “In paragraph 8 of the counter affidavit dated 02.02.2021, the respondent no.1 has stated that the State Government has taken corrective action in the matter vide letters/circulars dated 30th January, 2021 and 31st January, 2021.”

Needless to say, the Bench then specifies in para 8 that, “In compliance to the afore-quoted Government Order dated 30.01.2021, the Director General of Police, Uttar Pradesh has issued a Circular being letter No. DG-8-94 (Order) 2021, dated 31.01.2021 to all the Zonal Additional Director General of Police, Uttar Pradesh, and all the Police Commissioners, Uttar Pradesh and directed them to ensure strict compliance of the afore-quoted Government order.” 

As is quite ostensible, the Bench then lays bare in para 9 that, “From the facts briefly noted above and the counter affidavit of respondent no.1, it stands admitted that the police authorities are arbitrarily and illegally submitting Challani Reports under Sections 107/116 Cr.P.C. Since the respondent no.1 has taken steps to correct the mistakes and illegalities, therefore, we do not propose to issue any further direction in that regard, except that the afore-quoted Circulars dated 30th January, 2021 and 31st January, 2021 shall be strictly implemented in the whole of the State of Uttar Pradesh.”

To say the least, the Bench then envisages in para 10 that, “In the counter affidavit dated 01.02.2021, the respondent no.3 has stated in paragraph 5 and 8 that "the petitioners submitted the applications through their counsel that they are ready to furnish personal bonds as well as bail bonds, therefore, they may be released on bail and the answering respondent directed the concerned Tehsildar to verify the revenue records produced by the sureties and on verification the petitioners shall be released on 21.10.2020 on bail.” 

Truth be told, the Bench then lays down in para 11 that, “In his counter affidavit, the respondent no.3 has tried to justify his arbitrary action and clear breach of statutory duty cast upon him as well as the fundamental rights guaranteed under Article 14 and 21 of the Constitution of India. In this regard, it would be appropriate to refer to the provisions of Sections 107, 111 and 116 of the Code of the Criminal Procedure, 1973, which are reproduced below: 

“107. Security for keeping the peace in other cases. 

(1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.

(2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction. 

“111. Order to be made. When a Magistrate acting under section 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required.”

“116. Inquiry as to truth of information. 

(1) When an order under section 111 has been read or explained under section 112 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued under section 113, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary.

(2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons- cases.

(3) After the commencement, and before the completion, of the inquiry under sub- section (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order under section 111 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded: Provided that- 

(a) no person against whom proceedings are not being taken under section 108, section 109, or section 110 shall be directed to execute a bond for maintaining good behaviour;

(b) the conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order under section 111. 

(4) For the purposes of this section the fact that a person is an habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the community may be proved by evidence of general repute or otherwise.

(5) Where two or more persons have been associated together in the matter under inquiry, they may be dealt with in the same or separate inquiries as the Magistrate shall think just. 

(6) The inquiry under this section shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so completed, the proceedings under this Chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs: Provided that where any person has been kept in detention pending such inquiry, the proceeding against that person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention. 

(7) Where any direction is made under sub- section (6) permitting the continuance of proceedings, the Sessions Judge may, on an application made to him by the aggrieved party, vacate such direction if he is satisfied that it was not based on any special reason or was perverse.””

For the sake of clarity, the Bench then lays bare in para 12 that, “Section 107 Cr.P.C. requires the Magistrate receiving the information that any person is likely to commit a breach of peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceeding, he may, in the manner provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. Perusal of the order dated 08.10.2020, passed by the respondent no.3 would reveal that there is no such satisfaction recorded by the respondent no.3. The aforesaid order dated 08.10.2020 would further reveal that the respondent no.3 has not required the petitioners to show cause that why they should not be ordered to execute a bond with or without sureties. Thus, the respondent no.3 has committed clear breach of mandate of Section 107 Cr.P.C.”

Simply put, the Bench then states in para 13 that, “Section 111 Cr.P.C. provides that when a Magistrate acting under section 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth (i) the substance of the information received, (ii) the amount of the bond to be executed, (iii) the term for which it is to be in force, and (iv) the number, character and class of sureties (if any) required. These necessary ingredients of Section 111 Cr.P.C. are totally absent in the order dated 08.10.2020 passed by the respondent no.3. Thus, it is evident on record that the respondent no.3 has acted arbitrarily and illegally.” 

Be it noted, the Bench then seeks to point out in para 14 that, “It would further be relevant to note that admittedly the petitioners have submitted personal bond on 12.10.2020 although the order passed by the respondent no.3 dated 08.10.2020 does not specify the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties, if any, required. Despite submission of personal bond and other papers on 12.10.2020 by the petitioners before the respondent no.3, they were not released by the respondent no.3 and that too against his own order dated 08.10.2020 that the petitioners shall be detained till presentation of personal bond/bail bond. Non release of the petitioners by the respondent no.3 even after submission of personal bond/bail bond and other papers, is a clear breach of Article 21 of the Constitution of India, by the respondent no.3 which resulted in illegal detention of the petitioners at least since 12.10.2020 to 21.10.2020.”

Adding more to it, the Bench then puts forth in para 15 that, “On 02.02.2021 this Court noted the statement made by the State Government in Paragraph 15 of the order dated 02.02.2021 as under:

“15. Learned Additional Advocate General and the Secretary, Home, U.P. Lucknow jointly state that the State Government shall develop a mechanism and shall also issue appropriate guidelines so as to ensure that such instances may not repeat again. They further state that the State Government shall consider to grant monetary compensation to the petitioners for breach of their fundamental rights under Article 21 of the Constitution of India.””

Furthermore, it is then illustrated in para 16 that, “In pursuance to the statement made on own behalf of the State government as noted in the afore-quoted paragraph 15 of the order dated 02.02.2021, the State Government filed an affidavit of compliance dated 24.03.2021 of Sri Tarun Gauba, Secretary, Home Affairs, Uttar Pradesh, in which in paragraph 10 it has been stated as under :

“That it is most respectfully submitted that the State Government has issued directions to all District Magistrates and all Executive and Special Magistrates who are sub ordinate to the District Magistrates, to exercise their power under Section 107, 116 Cr.P.C. for maintenance of public peace and public tranquility in their territorial jurisdiction. They have been further advised that each and every case under the aforesaid proceedings shall be decided on its own merit with the application of judicial mind and in accordance with the established law & procedure to ensure that the fundamental rights of citizens are protected. The State Government has directed all the District Magistrates of the State to ensure strict compliance of the policy/guideline dated 23rd March, 2021. The State Government has reformulated the earlier policy dated 02.03.2021 and after including the aforementioned issues it has re-issued policy/guideline dated 23rd March, 2021. For kind perusal of this Hon’ble Court copy of policy/guideline dated 23rd March, 2021 is being filed herewith and marked as Annexure-1 to this affidavit.””

While citing the relevant case law, the Bench then remarks in para 18 that, “In the case of Lucknow Development Authority Vs. M.K. Gupta (1994) 1 SCC 243 (Paras 8, 10, 11 and 12 Hon'ble Supreme Court observed that under our Constitution Sovereignty vest in the people. Every limb of the constitutional machinery is obliged to be people oriented. No functionary in exercise of statutory power can claim immunity, except to the extent protected by the statute itself. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour before authorities created under the statute like the commission or the courts entrusted with responsibility of maintaining the rule of law.”

Most remarkably, the Bench then minces no words to state simply, shortly yet strongly in para 19 that, “An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. The servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service. A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it. But when it arises due to arbitrary or capricious behaviour then it loses its individual character and assumes social significance. Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it. Therefore, the award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil.”

Equally remarkable is what is then stipulated in para 20 that, “In a modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match the inaction in public oriented departments gets frustrated which erodes the credibility in the system. Where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under protective cover. The test of permissive form of grant is over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. It is the tax payers' money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law.”

Most laudably, the Bench then seeks to make it clear in para 21 that, “Once it is found by the competent authority that a complainant is entitled for compensation for inaction of those who are entrusted under the Act to discharge their duties in accordance with law, then payment of the amount may be made to the complainant from the public fund immediately but it may be recovered from those who are found responsible for such unparadonable behaviour. This legal position is reflected from the law laid down by the Apex Court in Lucknow Development Authority's case (supra). In the said case it was further observed by the Apex Court that the Administrative law of accountability of public authorities or their arbitrary and even ultra vires actions has taken many strides and it is now accepted both by this Court and English Courts that State is liable to compensate for loss or injury suffered by a citizen due to arbitrary action of its employees.”

Equally commendable is that while citing all the relevant case laws, the Bench then states in para 22 that, “The legal principles as enumerated in foregoing paragraphs Nos. 18, 19, 20 & 21 also finds support of the law laid down by Hon'ble Courts in the case of Lucknow Development Authority (supra); Jay Laxmi Salt Works (P) Ltd. Vs. State of Gujarat (1994) 4 SCC 1; N. Nagendra Rao & Co. Vs. State of A.P. (1994) 6 SCC 205; State of Maharashtra and others Vs. Kanchanmala Vijaysing Shirke and others (1995) 5 SCC 659; Chief Conservator of Forests and another (1996) 2 SCC 293; S.P. Goel vs Collector Of Stamps, Delhi (1996) 1 SCC 573; Common Cause A. Registered Society Vs. Union of India JT 1999 (5) SC 237: AIR 1999 SC 2979; Shiv Sagar Tiwari Vs. Union of India and others (1996) 6 SCC 558; Chairman, Railway Board and others Vs. Chandrima Das (Mrs.) and others (2000) 2 SCC 465; State of A.P. Vs. Challa Ramkrishna Reddy and others (2000) 5 SCC 712; Research Foundation for Science (10) Vs. Union of India (2005) 13 SCC 659; M.C. Mehta Vs. Union of India and Others (2006) 3 SCC 399; Union of India Vs. Prabhakaran Vijaya Kumar and others (2008) 9 SCC 527; Action Committee, Unaided Private Schools and others Vs. Director of Education, Delhi and others (2009) 10 SCC; Delhi Jal Board Vs. National Campaign for Dignity and Rights of Sewerage and Allied Workers and others (2011) 8 SCC 568; Municipal Corporation of Delhi, Delhi Vs. Uphaar Tragedy Victims Association and others (2011) 14 SCC 481.”

On a candid note, the Bench then is generous enough to observe in para 23 that, “We record our appreciation for the State Government to take the afore-quoted policy decision dated 23.03.2021 for payment of compensation of Rs.25,000/- for illegal detention of any citizen by any Officer of the State Government and initiation of disciplinary proceedings against such officer. Since the State Government itself has taken a policy decision and has paid compensation to the petitioners herein, therefore, no further direction for payment of compensation is required to be issued in the present writ petition.”

To put it shortly, the Bench then holds in para 24 that, “In view of the aforesaid, this writ petition is disposed of with the following directions :- 

(i) The State Government shall ensure that the provisions of the Cr.P.C. as referred in the policy decision dated 23.03.2021 are strictly followed/observed by all the concerned officers. 

(ii) The State Government shall further ensure that paragraph 12 of the policy decision dated 23.03.2021 is strictly implemented.

(iii) The State Government shall publish Para 12 of its Policy decision dated 23.03.2021 in all largely circulated National Level Newspaper having circulation in the State of Uttar Pradesh and shall also display it on display board at prominent places within public view, in all blocks, Tehsil Headquarters, Police Stations and in campus of District Collectorate in the whole of the State of Uttar Pradesh. 

(iv) Copy of this order shall be sent by the State Government to all District level and Tehsil level Bar Associations in the whole of the State of Uttar Pradesh.”

Finally, the Bench then holds in para 25 that, “Let a copy of this order be sent by the Registrar General of this Court to the Chief Secretary of the State of Uttar Pradesh and the Additional Chief Secretary, Home, for strict compliance.”

In essence, it is a judgment which deserves generous praise straight from the bottom of heart. It mandates that persons under illegal detention shall be paid compensation by the State. Illegal detention which is the worst violation of human rights and so also custodial torture which we keep hearing time and again not sparing even senior Army Officers as we saw in case of Lt Col Shrikant Purohit who was illegally arrested, illegally detained and illegally tortured most brutally deserves the most stringent punishment by all those who were behind it as we are now leaving in a democratic India and not in British India where Britishers called Indians as “You bloody Indians” as was pointed out once by famous cricketer Farrukh Engineer! 

There has to be zero tolerance against all forms of custodial violence and illegal detention by those in uniform! Of course, the most dangerous, most despicable and most dastardly tendency to protect men in uniform who commit the worst crime leaving behind even criminals has to be shunned completely now and they too like others have to be taken to task at the earliest if we really want our country to be truly democratic whenever they do anything wrong! No denying!

Sanjeev Sirohi

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