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CASE NO.: Appeal (civil)  1276 of 2003

PETITIONER: S.P.S. Rathore

RESPONDENT: State of Haryana & Ors.

DATE OF JUDGMENT: 06/05/2005

BENCH: Y.K.Sabharwal & Tarun Chatterjee

JUDGMENT: J U D G M E N T

Y.K. Sabharwal, J.

The challenge in this appeal is to the impugned judgment and order  of the High Court directing the District Judge to conduct an enquiry to  ascertain the truth of the averments made by Ashu Girhotra, respondent  No.5 in his affidavit dated 3rd December, 2001 to the effect that he was  implicated in false criminal cases and harassed by the police at the  instance of the appellant, a police officer. The brief facts are as follows:

A news report published in Chandigarh News Line dated 5th  December, 2000 stated that between 6th September,1992 and 30th August,  1993 six first information reports were registered in police station,  Panchkula in State of Haryana against Ashu Girothra, respondent No.5,  his friend Sandeep Verma, respondent No.6 and Gajinder Singh in car  theft cases. The police after investigation dropped the proceedings against  respondent Nos.5 and 6 in two cases. The Chief Judicial Magistrate,  Panchkula by order dated 30th April, 1997 discharged respondent Nos.5  and 6 in the aforementioned cases on the ground that there was no prima- facie material for framing charges against them. The news report also  stated that the cases beared an uncanny coincidence that seemed to  suggest that respondent No.5 was systematically framed in the car theft  cases by making him sign confessional statements.  

The High Court on 8th December, 2000 took suo motu cognizance of  the aforesaid news report and the judgment dated 30th April, 1997  delivered by the Chief Judicial Magistrate, Panchkula discharging  respondent Nos.5 and 6 in the aforementioned cases of car thefts. In its  order dated 8th December, 2000, the High Court has observed that it  seems the police officials posted at police station, Panchkula were let  loose on respondent Nos.5 and 6 by the appellant, a senior police officer  belonging to Indian Police Service, Haryana cadre in order to pressurize  the sister of respondent No.5 to withdraw the complaint lodged by her  against him for the offences under Section 354 of Indian Penal Code. The  Court issued notices to the appellant, State of Haryana and others calling  upon them to show cause as to why they should not be burdened with  compensation to be paid to respondent No.5 for the harassment caused to  him by falsely implicating him in car theft cases.  

Neither the news report nor judgment dated 30th April, 1997 nor any  other material was on record either making any insinuation against the  appellant or even naming him when suo motu cognizance was taken.  On  what basis notice was directed to be issued by the High Court to the  appellant has not been explained by learned counsel for the respondents  despite our repeated queries.   

After about one year of publication of news report and taking of

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cognizance, an affidavit dated 3rd December, 2001, was filed by  respondent No.5 in the High Court narrating the incidents that led to the  filing of complaint by his sister against the appellant for offences under  Section 354 of Indian Penal Code. He stated that his sister was a member  of the Haryana Lawn Tennis Association, of which the appellant was the  President.  He stated that his sister was molested by the appellant on 12th  August, 1990. Their parents took up the matter with the higher authorities  and an inquiry was marked to the then Director General of Police,  Haryana, who in his inquiry found that there was prima facie material to  proceed against the appellant.  In spite of this, no case was registered  against him for several years.  Then a writ petition was filed by Mrs. Madhu  Prakash, their mother who is said to have been present with her daughter  when the alleged incident of molestation took place. The writ petition was  allowed by an order dated 21st August, 1998 directing registration of case  against the appellant and handing over of the investigation to Central  Bureau of Investigation.  Pursuant to order of the Court, first information  report was registered under Sections 354 and 509 Indian Penal Code on  29th December, 1999.  It was stated that, since the alleged incident of  molestation took place and till the registration of the case against the  appellant, the family of respondent No.5 was harassed and pressurized by  the police at the instance of the appellant to withdraw the complaint lodged  against him. It was during this time the six FIRs were registered against  respondent No.5.  He was arrested on 25th October, 1993 and was tortured  by the police and was forced to sign the confessional statements. He was  so much terrorized that he could not even speak about the harassment by  the police, when he was produced before the Magistrate. He was released  on 29th December, 1993 the day on which his sister committed suicide.

The appellant in his affidavit before the High Court refuted the  allegations made against him. He described the alleged incident of  molestation as false and fabricated. He further stated that he was not  involved in the registration of FIRs against respondent No.5 and that he  has not used his position to pressurize the family of respondent No.5 to  persuade respondent No.5’s sister to withdraw the FIR lodged against him.  He stated that during the time the cases were registered and investigated  upon, the concerned police officials were not working under his  administrative control and that there is no material to show that he has  used his position to implicate respondent No.5 in the cases.

In the impugned judgment and order, the High Court recorded a  finding that mere fact that six FIRs were lodged against respondent No.5,  two of which were dropped by the Police after investigation and he was  discharged in the other four cases by the Chief Judicial Magistrate,  Panchkula, by itself is not enough to hold that he had been falsely  implicated in criminal cases in order to put pressure on him to persuade his  sister to withdraw the complaint lodged against the appellant. The Court  further came to the conclusion that the allegations were indeed serious  and if they are true, there may be a case for awarding compensation to  respondent No.5 against the State and against the police officers as well.   The Court held that since the averments in the affidavit of respondent No.5  have been emphatically denied by the appellant, in order to ascertain the  true facts, it would be necessary to allow the parties to lead their evidence.  Accordingly the matter was remitted to the District Judge, Patiala with a  direction that he should himself record the evidence of the parties and  submit a report to the High Court as to,

(1)    Whether the averments made by  respondent No.5 in his affidavit  are true  or not;

(2)    Whether respondent No.5 was harassed  by the police at the instance of petitioner;

(3)    Whether FIRs lodged against respondent  no.5 were false and

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(4)    Whether those FIRs were lodged at the  instance of petitioner, as alleged.

The learned counsel appearing for the appellant submits that there  was nothing on record to show the involvement of the appellant in the  matter at the time of taking suo motu cognizance. Neither the news report  nor the judgment discharging respondent No.5 in the car theft cases made  any mention about the involvement of the appellant.  Further, the appellant  had no control over the police officials who registered the FIRs against  respondent No.5 and subsequently investigated the case, as he was  posted on deputation and was not part of the regular police machinery at  that relevant point of time. It was submitted that after recording a finding  that there was no material to come to the conclusion that respondent No.5  was harassed by the police at his instance, it was not correct to order an  enquiry so as to direct payment of compensation to respondent No.5. It  was submitted that Court can order payment of compensation only when  there is a prima facie or established violation of fundamental right  guaranteed by the Constitution of India. When the foundational fact itself is  in dispute the Court cannot order payment of compensation. The scope of  the enquiry ordered by the High Court is not to find out whether there was  any harassment or not, but to find out whether the appellant is responsible  for the harassment of respondent No.5 It was submitted that respondent  No.5 kept quiet for all years upto 2001 and for the first time in his affidavit  filed on 3rd December, 2001 made false allegations about torture and  harassment by the police at the instance of the appellant.

The learned counsel appearing for respondent No.5 in support of the  impugned judgment submits that there is no infirmity in the order of the  High Court. Since the matter was of serious nature involving violation of  fundamental rights of respondent No.5, the Court has deemed it proper to  direct an enquiry to find out the truth of the matter.  No doubt, the Courts while exercising jurisdiction under Articles 32  and 226 can award compensation for the violation of fundamental rights  guaranteed by the Constitution but such a power should not be lightly  exercised.  In Rudul Sah v. State of Bihar & Anr. [(1983) 4 SCC 141],  where compensation was awarded, this Court was faced with a situation  where the petitioner who was acquitted by the Court of Session was  released from jail more than 14 years after he was acquitted. The  petitioner approached the Court asking for his release on the ground that  his detention in the jail was unlawful and claimed compensation for the  illegal incarceration. The petitioner was released from jail and as regards  the compensation for illegal detention the Court held that though 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, however, in order to rectify the grave injustice  perpetrated upon the petitioner by illegally detaining him in jail for 14 years  after his acquittal, which violated his fundamental right to life and liberty  guaranteed under Article 21 of the Constitution of India, the Court in the  exercise of its jurisdiction under Article 32, 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. This principle  has been consistently followed in the subsequent line of cases. Sebastian  M. Hongray v. Union of India (1984) 3 SCC 82; Bhim Singh, MLA v.  State of J&K & Ors. (1985) 4 SCC 677; Peoples’ Union For Democratic  Rights & Anr. v. Police Commissioner, Delhi Police Headquarters &  Anr. (1989) 4 SCC 730; State of Maharashtra & Ors. v. Ravikant S.  Patil (1991) 2 SCC 373; Peoples’ Union For Democratic Rights v. State  of Bihar& Ors. (1987) 1 SCC 265; Saheli, A Women’s Resources  Centre & Ors. v. Commissioner of Police, Delhi Police Headquarters &  Ors. (1990) 1 SCC 422; Arvinder Singh Bagga v. State of U. P. & Ors.  (1994) 6 SCC 565; P.Rathinam v. Union of India & Ors. 1989 Supp (2)  SCC 716; In re Death of Sawinder Singh Grover 1995 Supp (4) SCC  450; Inder Singh v. State of Punjab & Ors. (1995) 3 SCC 702; D. K.

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Basu v. State of W. B. (1997) 1 SCC 416; Chairman, Railway Board &  Ors. v. Chandrima Das (Mrs.) & Ors. (2000) 2 SCC 465). In Nilabati Behera v. State of Orissa & Ors.(1993) 2 SCC 746] a  writ petition was filed under Article 32 of the Constitution for determining  the claim of compensation consequent upon the death of petitioner’s son in  police custody. In view of the denial by the State that death was due to  police harassment when the deceased was in police custody, this Court  gave a direction to the District Judge, Sundergarh in Orissa, to hold an  inquiry into the matter and submit a report. The District Judge reached the  conclusion that it was a case of custodial death. In view of the dispute as  to the correctness of the findings in the report of the District Judge, the  matter was examined afresh by this Court in the light of the objections  raised. This Court also reached the same conclusion on a reappraisal of  the evidence adduced at the enquiry. On this conclusion, the question  arose as to the liability of the State for payment of compensation for  custodial death. The Court held 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 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 Court further observed that:   

"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  justified 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 rights is claimed  by resort to the remedy in public law under the  Constitution by recourse to Articles 32 and 226  of the Constitution."  

Justice A.S. Anand (as His Lordship then was) in concurring opinion  observed that:

"The public law proceedings serve a different  purpose than the private law proceedings. The  relief of monetary compensation, as exemplary  damages, in proceedings under Article 32 by or  under Article 226, for established infringement of  the indefeasible right guaranteed under Article  21 of the Constitution 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 interest  as and preserve their rights. Therefore, when the

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Court moulds the relief by granting compensation  in proceedings under Article 32 or 226 of the  Constitution seeking enforcement or protection of  fundamental rights, it does so under the public  law by way of penalising 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, of not protecting the fundamental  rights of the citizen. the compensation is in the  nature of exemplary damages awarded against  the 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."  

It was further observed that:  

"This Court and the High Courts, being the  protectors on the civil liberties of the citizen, have  not only the power and jurisdiction but also an  obligation to grant relief in exercise of its  jurisdiction under Articles 32 and 226 of the  Constitution to the victim or the heir of the victim  whose fundamental rights under Article 21 of the  Constitution of India are established to have  been flagrantly infringed by calling upon the  State to repair the damage done by its officers to  the fundamental rights of the citizen,  notwithstanding the right of the citizen to the  remedy by way of a civil suit or criminal  proceedings. The State, of course has the right  to be indemnified by and take such action as  may be available to it against the wrongdoer in  accordance with law - through appropriate  proceedings. Of course, relief in exercise of the  power under Article 32 or 226 would be granted  only once it is established that there has been an  infringement of the fundamental rights of the  citizen and no other from of appropriate  redressal by the court in the facts and  circumstances of the case, is possible\005. It is a  sound policy to punish the wrongdoer and it is in  that spirit that the courts have moulded the relief  by granting compensation to the victims in  exercise of their writ jurisdiction. In doing so the  courts take into account not only the interest of  the applicant and the respondent but also the  interest of the public as a whole with a view to  ensure that public bodies or officials do not act  unlawfully and do perform their public duties  properly particularly where the fundamental right  of a citizen under Article 21 is concerned."

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This legal position has been reiterated in D. K. Basu v. State Of  W.B. [(1997) 1 SCC 416].  

Compensation can be awarded for violation of fundamental rights in  public law domain, but the facts of the case in hand do not justify the  directions given in the impugned judgment for conducting of an enquiry by  the District Judge so as to determine the compensation to be awarded to  respondent No.5.

As already noticed, the news report as well as the judgment of  discharge neither mentioned anything about the appellant’s involvement in  the registration of FIRs against respondent No.5 and harassment by the  police at his instance nor refers to the complaint by respondent No.5’s  sister alleging molestation by the appellant. The High Court went beyond  the material on record while taking suo motu cognizance of the matter.   What made the High Court to issue notice to the appellant while taking suo  motu cognizance has not been explained to us despite repeated queries to  learned counsel for the respondents.

Further, the validity of the directions of the High Court has to be  seen in the light of the silence of respondent No.5 for more than seven  years after release from jail.  The allegations of harassment by the police  at the instance of the appellant were made for the first time by filing of the  affidavit before the High Court on 3rd December, 2001.  Respondent No.5  is neither illiterate nor any other factor has been brought to our notice  which compelled him to remain silent for number of years. The alleged  incident of molestation of respondent 5’s sister took place on 12th August,  1990. The FIRs implicating respondent No.5 in the car theft cases were  registered during the period between 6th September, 1992 and 30th August,  1993. Respondent No.5 was discharged in the car theft cases by the Chief  Judicial Magistrate, Panchkula on 30th April, 1997.  How the news report  suddenly came to be published after so many years is again a mystery.  From the date of the registration of FIRs till the date of the filing of the  affidavit before the High Court, respondent No.5 made no complaint that  he was harassed by the police at the instance of the appellant.

There is a serious dispute as to factum of harassment by police at  the instance of the appellant. Not only the fundamental fact itself but also  the very basis of issue of notice to the appellant is in serious dispute.

In Chairman, Grid Corporation of Orissa Ltd. (Gridco) & Ors. v.  Sukamani Das (Smt.) & Anr. [(1999) 7 SCC 298] the question which  arose for consideration was, can the High Court under Article 226 of the  Constitution award compensation for death caused due to electrocution on  account of negligence, when the liability was emphatically denied on the  ground that the death had not occurred as a result of negligence, but  because of an act of God or of acts of some other persons. The Court held  that it is the settled legal position that where disputed questions of facts  are involved, a petition under Article 226 of the Constitution is not a proper  remedy. Therefore, questions as to whether death occurred due to  negligence or due to act of god or of some third person could not be  decided properly on the basis of affidavits only, but should be decided by  the civil court after appreciating the evidence adduced by the parties. In  Tamil Nadu Electricity Board v. Sumathi & Ors. [(2000) 4 SCC 543], it  was held that when a disputed question of fact arises and there is clear  denial of any tortuous liability, remedy under Article 226 of the Constitution  may not be proper. The Court carved out exception to this general rule by  observing that, it should not be understood that in every case of tortuous  liability, recourse must be had to a suit. When there is negligence on the  face of it and infringement of Article 21 is there, it cannot be said that there  will be any bar to proceed under Article 226 of the Constitution.  

In Khatri & Ors. (IV) v. State Of Bihar & Ors. [(1981) 2 SCC 493],  it was held that in order to succeed in claiming relief under Article 32,  violation of fundamental right has to be established and that is the

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foundational fact which must be established before the petitioners can  claim relief under Article 32.  The Court observed that:

"The court is not helpless to grant relief in a  case of violation of the right to life and personal  liberty, and it should be prepared ’to forge new  tools and devise new remedies’ for the purpose  of vindicating these precious fundamental rights.  It was also indicated that the procedure suitable  in the facts of the case must be adopted for  conducting the inquiry, needed to ascertain the  necessary facts, for granting the relief, as the  available mode of redress, for enforcement of the  guaranteed fundamental rights."  

In Nilabati Behera v. State of Orissa & Ors. [(1993) 2 SCC 746],  the Court has also broadly specified the situations in which the remedy of  providing compensation for violation of fundamental rights available under  the domain of public law has to be invoked. The Court held that:

"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 have-nots,  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."     

It was further held that:  

"Law is in the process of development and the  process necessitates developing separate public  law procedures as also public law principles. It  may be necessary to identify the situations to  which separate proceedings and principles apply  and the courts have to act firmly but with certain  mount of circumspection and self- restraint, lest  proceedings under Article 32 or 226 are misused  as a disguised substitute, for civil action in  private law."  

The sparing exercise of power under Article 32 or Article 226 of  Constitution of India for issue of directions to conduct enquiry to determine  compensation in glaring and clear cases of rape by police officials, custody  death, illegal detention of poor and helpless cannot be resorted to in the  case of present nature.

There were no such circumstances which necessitated the exercise  of such a power.

Having regard to the facts of the case and the legal principles noted  above, the impugned judgment directing the District Judge to conduct  enquiry cannot be sustained. Therefore, the impugned judgment is set  aside and the appeal allowed.