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PETITIONER: RUDUL SAH

       Vs.

RESPONDENT: STATE OF BIHAR AND ANOTHER

DATE OF JUDGMENT01/08/1983

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) SEN, AMARENDRA NATH (J) MISRA RANGNATH

CITATION:  1983 AIR 1086            1983 SCR  (3) 508  1983 SCC  (4) 141        1983 SCALE  (2)103  CITATOR INFO :  F          1986 SC 494  (3)  RF         1987 SC1086  (7)

ACT:      Constitution of  India-Art. 32-Scope  of-Whether  in  a habeas corpus petition under Art. 32 Supreme Court can grant compensation for deprivation of a fundamental right.      Constitution of  India-Art. 21-Scope  of-whether covers right to compensation for its violation.

HEADNOTE:      The petitioner  who was  detained in prison for over 14 years after  his acquittal  filed a  habeas corpus  petition under Art. 32 of the Constitution praying for his release on the ground  that his  detention in the jail was unlawful. He also asked  for certain other reliefs including compensation for his  illegal detention.  When the  petition came  up for hearing the  Court was informed by the respondent State that the petitioner had already been released from the jail.      Allowing the petition, ^      HELD: The  petitioner’s detention  in the  prison after his acquittal was wholly unjustified.      Article 32  confers power on the Supreme Court to issue directions  or   orders  or   appropriate  writs   for   the enforcement of  any of  the rights  conferred by Part III of the Constitution.  Article 21  which guarantees the right to life and  liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from  illegal detention.  One of the telling ways in which  the   violation  of  that  right  can  reasonably  be prevented and  due compliance with the mandate of Article 21 secured, is  to mulct  its a  violators in  the  payment  of monetary compensation.  The right  to compensation  is  some palliative for  the unlawful acts of instrumentalities which act in  the name  of public  interest and  which present for their protection  the powers  of  the  State  as  a  shield. Respect for the rights of individuals is the true bastion of democracy. Therefore,  the State must repair the damage done by its officers to their rights. [513 A-C, 514 B-E]      In the circumstances of the instant case the refusal to

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pass an  order of  compensation in  favour of the petitioner will be  doing mere  lip-service to his fundamental right to liberty which the State Government has so grossly 509 violated. Therefore,  as an  interim measure  the State must pay to  the petitioner  a  further  sum  of  Rs.  30,000  in addition to  the sum  of Rs  5,000 already  paid by it. This order will  not preclude the petitioner from bringing a suit to recover appropriate damages from the State and its erring officials. [514 B,F,H]

JUDGMENT:      ORIGINAL JURISDICTION:  Writ  Petition  (Criminal)  No. 1987 of 1982.      (Under Article 32 of the Constitution of India)      Mrs. K. Hingorani for the Petitioner.      D. Goburdhan for the Respondent.      The Judgment of the Court was delivered by      CHANDRACHUD,  C.J.:  This  Writ  Petition  discloses  a sordid  and   disturbing  state   of  affairs.   Though  the petitioner  was   acquitted  by   the  Court   of  Sessions, Muzaffarpur, Bihar, on June 3, 1968 he was released from the jail on October 16, 1982, that is to say, more than 14 years after he  was acquitted. By this Habeas Corpus petition, the petitioner asks  for his  release on  the  ground  that  his detention in  the jail  is unlawful.  He has  also asked for certain    ancillary     reliefs    like     rehabilitation, reimbursements of  expenses which  he may  incur for medical treatment and compensation for the illegal incarceration.      This petition  came up  before us  on November 22, 1982 when we  were informed  by Shri  Goburdhan, counsel  for the State of  Bihar, that  the petitioner  was already  released from the  jail. The  relief sought by the petitioner for his release  thus   became  infructuous  but  despite  that,  we directed that  a Notice to show cause be issued to the State of Bihar  regarding prayers  2, 3  and 4 of the petition. By prayer No.  2 the  petitioner asks  for medical treatment at Government expense, by prayer No. 3 he asks for an ex gratia payment for his rehabilitation, while by prayer No 4 he asks for compensation  for his  illegal detention in the jail for over 14 years.      We expected  a prompt response to the Show Cause Notice from the  Bihar Government  at least at this late stage, but they H offered no explanation for over four months. The Writ Petition was  listed before  us on  March 31, 1983 when Shri Goburdhan restated  that the  petitioner  had  been  already released from the jail. 510 We passed  a specific  order on that date to the effect that the release  of the  petitioner cannot  be the  end  of  the matter and  we called upon the Government of Bihar to submit a written  explanation supported  by an  affidavit as to why the petitioner  was kept in the jail for over 14 years after his acquittal.  On April  16, 1983,  Shri Alakh  Deo  Singh, Jailor, Muzaffarpur  Central Jail,  filed  an  affidavit  in pursuance of  that order.  Shorn of its formal recitals, the affidavit reads thus:           "2.  That  the  petitioner  was  received  on      25.3.67 from Hazaribagh Central Jail and was being      produced regularly  before the Additional Sessions      Judge, Muzaffarpur  and  on  30.8.68  the  learned      Judge passed the following order:                "The accused  is acquitted but he should

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         be detained  in prison  till further order of           the  State  Government  and  I.G.  (Prisons),           Bihar."                (A true  copy of  the  same  is  attached  as           Annexure I).      3.    That accused Rudul Sah was of unsound mind at the           time of  passing the above order. This information           was sent  to the Law Department in letter No. 1838           dated 10.5.74 of the Superintendent, Central Jail,           Muzaffarpur    through     District    Magistrate,           Muzaffarpur.      4.    That  the Civil Surgeon, Muzaffarpur, reported on           18.2.77 that accused Rudul Sah was normal and this           information was communicated to the Law Department           on 21.2.77.      5.    That  the petitioner, Rudul Shah was treated well           in accordance  with the  rules in the Jail Manual,           Bihar, during the period of his detention.      6.    That  the petitioner  was released on 16.10.82 in           compliance with  the letter  No. 11637 dated 14.10           82 of the Law Department."      The Writ  Petition came  up before us on April 26, 1983 when we  adjourned it to the first week of August 1983 since it was not 511 clear either  from the affidavit filed by the Jailor or from the  order   of  the   learned  Additional  Sessions  Judge, Muzaffarpur, which  is annexed  to the affidavit as Annexure I, as  to what  was the  basis on which it was stated in the affidavit that  the petitioner  was of  unsound mind  or the reason why  the learned  Additional Sessions  Judge directed the detention  of the  petitioner  in  jail,  until  further orders of  the State Government and the Inspector General of Prisons.      The writ  petition has  come up  for hearing once again before us  today. If past experience is any guide, no useful purpose is likely to be served by adjourning the petition in the hope  that the  State authorities  will place  before us satisfactory material  to explain the continued detention of the petitioner in jail after his aquittal. We apprehend that the present  state of affairs, in which we are left to guess whether the  petitioner was not released from the prison for the benign  reason that  he was  insane, is  not  likely  to improve in the near future.      The Jailor  s affidavit  leaves much  to be desired. It narrates with  an air  of candidness  what is notorious, for example, that  the petitioner was not released from the jail upon his  acquittal and  that he  was reported to be insane. But it  discloses no  data on  the basis  of  which  he  was adjudged insane,  the specific measures taken to cure him of that affliction and, what is most important, whether it took 14 years  to set  right his  mental  imbalance.  No  medical opinion is  produced in support of the diagnosis that he was insane nor  indeed is  any jail record produced to show what kind  of   medical  treatment   was   prescribed   for   and administered to  him and for how long. The letter (No. 1838) dated May  10, 1974  which, according  to paragraph 3 of the affidavit,  was   sent  to   the  Law   Department  by   the Superintendent of  the Central  Jail,  Muzaffarpur,  is  not produced before us. There  is   nothing  to  show  that  the petitioner  was  found  insane  on  the  very  date  of  his acquittal. And,  if he  was insane on the date of acquittal, he could  not have  been tried  at all for the simple reason that an  insane person  cannot enter  upon his defence Under the Code  of Criminal Procedure, insane persons have certain

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statutory rights  in regard to the procedure governing their trial. According  to paragraph 4 of the affidavit, the Civil Surgeon, Muzaffarpur, reported on February 18, 1977 that the petitioner  was   normal  and   that  this  information  was communicated to the Law Department on February 21, 1977. Why was  the  petitioner  not  released  for  over  5&1/2  years thereafter ? It was on october 14, 1982 that the Law 512 Department of  the Government  of Bihar  directed  that  the petitioner should be released. Why was the Law Department so insensitive to justice ? We are inclined to believe that the story of the petitioner’s insanity is an afterthought and is exaggerated out  of proportion.  If indeed he was insane, at least a  skeletal medical record could have been produced to show that  he was  being  treated  for  insanity.  In  these circumstances, we  are driven  to the conclusion that, if at all the  petitioner was  found insane  at any point of time, the insanity  must have  supervened as  a consequence of his unlawful detention  in jail.  A sense  of  helplessness  and frustration   can    create   despondency   and   persistent despondency can lead to a kind of mental imbalance.      The concerned  Department of  the Government  of  Bihar could have  afforded to  show a little more courtesy to this Court  and   to  display   a  greater   awareness   of   its responsibilities by  asking one  of its  senior officers  to file an  affidavit in order to explain the callousness which pervades this  case. Instead,  the Jailor  has been  made  a scapegoat to  own up  vicariously the dereliction of duty on the part  of the  higher officers  who ought  to have  known better. This is not an isolated case of its kind and we feel concerned that  there is  darkness all  around in the prison administration  of   the  State   of  Bihar.  The  Bhagalpur blindings  should   have  opened  the  eyes  of  the  Prison Administration of  the State.  But that  bizarre episode has taught no lesson and has failed to evoke any response in the Augean Stables.  Perhaps, a  Hercules heas  to be  found who will clean  them by  diverting two  rivers through them, not the holy  Ganga though.  We hope  (and pray) that the higher officials of  the State  will  find  time  to  devote  their personal attention to the breakdown of Prison Administration in the  State and rectify the grave injustice which is being perpetrated on  helpless persons.  The High  Court of  Patna should itself  examine this  matter and call for statistical data from  the Home Department of the Government of Bihar on the question  of unlawful  detentions in  the State  Jails A tabular statement  from each  jail  should  be  called  for, disclosing how many convicts have been in jail for more than 10 years, 12 years, 14 years and for over 16 years. The High Court will  then be  in a  position to release prisoners who are in  unlawful detention in the jails and to ask the State Government to take steps for their rehabilitation by payment of adequate compensation wherever necessary. 513      That takes  us to  the question  as to  how  the  grave injustice which has been perpetrated upon the petitioner can be rectified, in so far as it lies within our power to do in the exercise  of our  writ jurisdiction  under Article 32 of the Constitution.  That article confers power on the Supreme Court to  issue directions  or orders  or  writs,  including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto  and certiorari,  whichever may be appropriate, for the  enforcement of  any of the rights conferred by Part III. The  right to  move the  Supreme Court  by  appropriate proceedings for  the enforcement  of the rights conferred by Part III  is "guaranteed", that is to say, the right to move

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the Supreme  Court under  Article 32  for the enforcement of any of  the rights conferred by Part III of the Constitution is itself a fundamental right.      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 pass appropriate  order for  the payment  of compensation in this Habeas Corpus petition itself.      We cannot  resist this  argument. We  see no  effective answer to  it save  the stale and sterile objection that the petitioner may,  if so  advised,  file  a  suit  to  recover damages from  the State  Government.  Happily,  the  State’s Counsel has  not raised that objection. 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 514 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 to liberty which the  State Government has so grossly violated. Article 21 which  guarantees the  right to  life and liberty will be denuded of  its significant  content if  the power  of  this Court were limited to passing orders to release from illegal detention. One of the telling ways in which the violation of that right  can reasonably  be prevented  and due compliance with the  mandate of  Article 21  secured, is  to mulct  its violaters  in   the  payment   of   monetary   compensation. Administrative sclerosis  leading to  flagrant infringements of fundamental  rights cannot  be  corrected  by  any  other method  open  to  the  judiciary  to  adopt.  The  right  to compensation is  some palliative  for the  unlawful acts  of instrumentalities which  act in  the name of public interest and which  present for  their protection  the powers  of the State as  a shield. If civilization is not to perish in this country as  it has perished in some others too well-known to suffer mention,  it is  necessary to  educate ourselves into accepting that, respect for the rights of individuals is the true bastion  of democracy. Therefore, the State must repair the damage  done by its officers to the petitioner’s rights. It may have recourse against those officers.      Taking into  consideration the  great harm  done to the petitioner by the Government of Bihar, we are of the opinion

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that, as  an interim  measure, the  State must  pay  to  the petitioner a  further sum  of  Rs.  30,000  (Rupees  thirty- thousand) in  addition to  the sum of Rs. 5,000 (Rupees five thousand) already  paid by  it. The  amount  shall  be  paid within two  weeks from today. The Government of Bihar agrees to make  the payment  though, we  must clarify, our order is not based on their consent.      This  order  will  not  preclude  the  petitioner  from bringing a  suit to  recover appropriate  damages  from  the state and  its erring  officials. The  order of compensation passed by  us is,  as we  said above,  in the  nature  of  a palliative. We  cannot leave  the petitioner penniless until the end  of his  suit, the  many appeals  and the  execution proceedings. A  full-dressed debate  on the  nice points  of fact and law which takes 515 place leisurely in compensation suits will have to await the filing of  such a  suit by the poor Rudul Sah. The Leviathan will have  liberty to raise those points in that suit. Until then, we  hope, there will be no more Rudul Sahs in Bihar or elsewhere. H.L.C.                                     Petition allowed. 516