Gopal S/O. Ramdas Shetye vs The State Of Maharashtra on 5 May, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO. 3960 OF 2015
ALONGWITH
CRIMINAL APPLICATION NO.92 OF 2016

Gopal s/o. Ramdas Shetye,
Aged – 40 years,
Occupation – Service,
R/at. Hut No.281, Nityanand Nagar
Hutment, Vaitangwadi, Ghatkopar,
Mumbai. .. Petitioner
Vs.
The State of Maharashtra,
through its Secretary,
Home Department, Mantralaya,
Mumbai – 32. .. Respondent

……
Mr. Nilesh C. Ojha a/w. Mr. Rajesh Panchal and Dr. Preeti
Brahmania, Advocate for the Petitioner.
Mr. J.P. Yagnik, APP for the Respondent – State.
……

CORAM : S.C. DHARMADHIKARI AND
PRAKASH D. NAIK, JJ.

DATE OF RESERVE : MARCH 30, 2017.

DATE OF PRONOUNCEMENT : MAY 5, 2017.

JUDGMENT (PER PRAKASH D. NAIK, J.) :

The petitioner has invoked the writ jurisdiction of this

Court under Article 226 of the Constitution of India and the

inherent powers of this Court under Section 482 of the Code of

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Criminal Procedure. The principal prayer of the petitioner is to

direct the respondent no.1 to pay an amount of Rs.200 crores

towards compensation for ruining the life of the petitioner in the

matter of his illegal arrest, detention and wrongful confinement

for a long period of seven years though he is not responsible for

the commission of offence of which he was charged.

2 The petitioner had also preferred criminal application

no.92 of 2016 and seeking interim compensation in the sum of

Rs.100 crores during the pendency of the petition before this

Court.

3 The factual matrix relevant for determining the issues

raised in this petition and the reliefs sought by the petitioner is as

follows:

(a) The petitioner was arrested in connection with C.R.No.168

of 2009, registered with Kurla Railway Police Station for

the offence punishable under Section 376 of the Indian

Penal Code (for short “IPC“). According to the prosecution

he was arrested on 29 th July, 2009 which is disputed by the

petitioner as according to him he was arrested prior

thereto. The first information report (for short “FIR”) was

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lodged on the basis of the statement of complainant

namely Priti Ashok Dethe, recorded on 19th July, 2009.

According to the complainant, on the date of incident she

was sleeping on the bridge of the Ghatkopar railway

station. At about 3.30 hours, the accused caught hold of

her and forcibly had sexual intercourse with her. During

the process, she sustained some injuries. The complainant

had further stated that the person who ravished her has

given his name as Gopi.

(b) After registration of the FIR, the police machinery

commenced the investigation and the accused was

arrested purportedly on the basis of the recordings in the

C.C.T.V. footage. According to the prosecution, the

identification parade was conducted wherein the accused

was identified. On completing the investigation, the

charge-sheet is filed in the concerned Court. The case was

thereafter committed to the Court of Sessions.

(c) The prosecution examined five witnesses. On completing

the evidence, statement of the accused was recorded

under Section 313 of the Code of Criminal Procedure (for

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short “Cr.P.C.”).

(d) The case was numbered as Sessions case No.594 of 2009.

The Ad-hoc Additional Sessions Judge at Sewree, Mumbai

by judgment and order dated 31 st May, 2010 convicted the

accused/petitioner for the offence punishable under

Section 376 of the IPC and he was sentenced to suffer R.I.

for seven years and fine of Rs.400/- and in default of

payment of fine to suffer R.I. for one month. The petitioner

– accused was in custody from the date of his arrest during

the course of trial.

(e) The petitioner – accused preferred an Appeal before this

Court viz. Criminal Appeal No.525 of 2010. During the

pendency of the Appeal, the petitioner had preferred an

application for bail which was rejected by this Court and

the petitioner continued to remain in custody.

(f) The Appeal preferred by the petitioner was finally heard

and by judgment and order dated 10 th June, 2015, the

Appeal of the petitioner was allowed and the impugned

judgment and order of conviction was set aside and,

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thereby the petitioner was acquitted. The petitioner had

however undergone the sentence of imprisonment awarded

by the trial court.

(g) The petitioner has thereafter preferred the present petition

seeking damages for his arrest and detention in the

aforesaid proceedings.

4 During the pendency of this petition on 15th April,

2016, learned APP had submitted before this Court that the State

Government is in the process of filing a Special Leave Petition

against the judgment and order dated 10 th June, 2015 delivered

by this Court in Criminal Appeal No.525 of 2010. The said

statement was recorded in order dated 15 th April, 2016. In the

said order it was further directed that the application for interim

compensation to be heard at the time of final hearing of main

writ petition, hearing of which has already been expedited. On

9th August, 2016, the learned APP again stated before this Court

that the State has taken steps to file Special Leave Petition in the

Apex Court. The learned APP was directed to intimate the status

of the Special Leave Petition. On 21st October, 2016, the learned

APP submitted that he had received telephonic instructions that

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the SLP preferred by the State challenging the aforesaid decision

has been dismissed and the official communication will be placed

on record. On 22nd December, 2016 none appeared for petitioner.

The petition was adjourned to 16th March, 2017. On 27th January,

2017, the petition was directed to be placed for direction on

supplementary board on 17th February, 2017. The petition was

thereafter adjourned to 8th March, 2017. On 8th March, 2017, the

petition was adjourned to 15th March, 2017 at the request of

learned public prosecutor and to enable him to take instructions

only on the point of filing a short affidavit so as to oppose the writ

petition. It was further directed that the petition be listed for

“directions/hearing”. On 15th March, 2017, the petition was

placed for Directions. The learned APP appearing for the State

prayed for further time to file affidavit-in-reply. He submitted

that the affidavit-in-reply could not be filed as the officials are

busy in ongoing legislative assembly session. The request was

opposed by the petitioner’s advocate on the ground that sufficient

time was already granted by this Court and in view of the

communication made by the petitioner’s advocate to the office of

the public prosecutor with regards to the filing of the affidavit-in-

reply. This Court vide order dated 15th March, 2017 expressed its

displeasure with regard to the stand of the respondent-State and

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granted adjournment at the request of learned APP till 30 th

March, 2017, subject to payment of costs which was quantified at

Rs.5000/- as condition precedent which is directed to be paid to

the petitioner’s advocate before the returnable date. The

respondent thereafter filed the affidavit-in-reply which is on

record.

5 The petition was initially heard on 3rd February, 2016

and Rule was issued. The hearing was expedited. On the same

day, the learned counsel for the petitioner sought leave to delete

respondent nos.2 to 8 which was granted and the petitioner was

directed to carry out necessary amendment. The order reads as

follows:

“1 Learned counsel appearing for the petitioner
seeks leave to delete respondent nos. 2 to 8.

Leave granted. Necessary amendment be
carried out within two weeks from today.

2 Heard Mr. Ojha, learned counsel appearing for
the petitioner. Rule. Hearing of the writ
petition is expedited.”

In view of the order dated 3 rd February, 2016, the

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petitioner carried out the requisite amendment by deleting

respondent nos. 2 to 8 and also altering and deleting certain

prayer clauses.

6 The petitioner had initially made the following

prayers in the petition:

“(i) by suitable Writ, order or direction be pleased
to direct the respondent no.1 to appoint an
independent agency i.e. C.B.I. in view of law
laid down by Hon’ble Supreme Court in the case
of 1995 Cri. L.J. 3612 for the purpose of
registration of prosecution against the
respondents, for the offences punishable under
Sections 166, 167, 188, 219, 193, 194, 199, 200,
201, 211, 465, 467, 468, 471, 474 read with
Section 120(B) 34 of the Indian Penal Code,
and U.Sec. 145(2), 146, 147 of Maharashtra
Police Act and to proceed against them in
accordance with law;

(ii) by suitable writ order or direction be pleased to
direct the respondent nos. for initiating
enquiry against the respondent nos.__ in the
matter of violation of provisions of law, and to
take action against them;

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(iii) by suitable writ, order or direction be pleased to

direct the respondent no.1 to file and initiate
contempt proceedings against the respondents
police officers for disobeying the law laid down
by the Hon’ble Supreme Court of India and this
Hon’ble Court from time to time in the matter;

(iv) by suitable writ, order or direction be pleased to
direct the respondent no.1 State to forthwith
suspend the respondents, including the
respondent Adhoc Sessions Judge and
Magistrate concerned;

(v) by suitable writ, order or direction be pleased to
direct the respondent Commissioner of Police to
immediately suspend the police officials and
investigating officer for not performing their
duties in the manner required;

(vi) direct the respondent no.1 to pay an amount of
Rs.200 Crores towards compensation for

ruining the whole life of the petitioner in the
matter of his illegal arrest, detention, and
wrongful confinement for a long period of 7
years, though he is not responsible for the
commission of offence of which he was charged
with;

(vii) by suitable writ, order or direction be pleased to

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direct the independent agency i.e. C.B.I. to
complete the proceedings/enquiry as early as
possible and in any case within a period of one
month from the date of the order of this Hon'ble
Court;

(viii) pending hearing and final disposal of the
present petition by appropriate interim relief be
pleased to direct the respondents to deposit an
amount of Rs.100 Crores with this Hon'ble
Court towards interim compensation to the
petitioner, with permission to withdraw the
same;

(ix) pending hearing and final disposal of the
present petition by appropriate interim relief be
pleased to suspend the respondent police
officers and Magistrate for acting in total
derogation of their powers;

(x) grant ad-interim relief in terms of prayer clause

(vii) and (vii) above;

(xi) pass appropriate directions to the home
ministry to frame rules so as to avoid such false
implications of citizens at the hands of corrupt
criminal minded Police personals;

               (xii)    to allow the petition with costs;

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(xiii) to grant any other relief's to which the

petitioner is found entitled in the facts and
circumstances of the case."

7 Amended prayer clauses of the petition read as under:

"(i) by suitable Writ, order or direction be pleased
to direct the respondent no.1 to appoint an
independent agency i.e. C.B.I. in view of law
laid down by Hon'ble Supreme Court in the case
of 1995 Cri. L.J. 3612 for the purpose of
registration of prosecution for the offences
punishable under Sections 166, 167, 188, 219,
193, 194, 199, 200, 201, 211, 465, 467, 468,
471, 474 read with Section 120(B) 34 of the
Indian Penal Code, and U.Sec. 145(2), 146, 147
of Maharashtra Police Act and to proceed
against them in accordance with law;

(ii) by suitable writ order or direction be pleased to
direct the respondent nos. for initiating
enquiry in the matter of violation of provisions
of law, and to take action against them;

(iii) by suitable writ, order or direction be pleased to
direct the respondent no.1 to file and initiate
contempt proceedings against police officers for
disobeying the law laid down by the Hon'ble
Supreme Court of India and this Hon'ble Court

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from time to time in the matter;

               (iv)     ..... deleted.....

(v) by suitable writ, order or direction be pleased to

direct the respondent Commissioner of Police to
immediately suspend the police officials and
investigating officer for not performing their
duties in the manner required;

(vi) direct the respondent no.1 to pay an amount of
Rs.200 Crores towards compensation for

ruining the whole life of the petitioner in the
matter of his illegal arrest, detention, and
wrongful confinement for a long period of 7
years, though he is not responsible for the
commission of offence of which he was charged
with;

(vii) by suitable writ, order or direction be pleased to
direct the independent agency i.e. C.B.I. to
complete the proceedings/enquiry as early as
possible and in any case within a period of one
month from the date of the order of this Hon'ble
Court;

(viii) pending hearing and final disposal of the
present petition by appropriate interim relief be
pleased to direct the respondents to deposit an
amount of Rs.100 Crores with this Hon'ble

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Court towards interim compensation to the
petitioner, with permission to withdraw the
same;

(ix) pending hearing and final disposal of the
present petition by appropriate interim relief be
pleased to suspend the respondent police
officers and Magistrate for acting in total
derogation of their powers;

(x) grant ad-interim relief in terms of prayer clause

(vii) and (vii) above;

(xi) pass appropriate directions to the home
ministry to frame rules so as to avoid such false
implications of citizens at the hands of corrupt
criminal minded Police personals;

               (xii)    to allow the petition with costs;

(xiii) to grant any other relief's to which the

petitioner is found entitled in the facts and
circumstances of the case."

8 In view of the earlier directions, the petition was

taken up for final hearing and disposal. We have heard Shri Ojha,

the learned counsel appearing for the petitioner and Shri Y.P.

Yagnik, learned APP appearing for the respondent - State.

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9 The learned advocate for the petitioner submitted

that the petitioner has been falsely implicated in the case and he

had to undergo detention for a period of seven years. He

submitted that the petitioner had to undergo mental agony on

account of his detention in custody in connection with the

criminal proceedings which were subsequently quashed and set

aside by this Court. He submitted that this Hon'ble Court had

acquitted the petitioner by setting aside the order of conviction.

He submitted that the observations made by this Court while

acquitting the petitioner from the said prosecution makes it

apparent that the petitioner was falsely implicated in the case

and had to suffer because of the incarceration of the petitioner in

custody for a long period of time. He submitted that the

petitioner and his family had to suffer on account of the said

criminal proceedings which were launched against him and due

to which there was illegal detention in the custody for a long

span of time. He submitted that after his arrest he continued to

remain in custody as he was not granted bail. He has undergone

the sentence imposed on him by the trial court which was set

aside by this Court in the Appeal preferred by the petitioner. The

order of acquittal confirms that he was innocent and was

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deprived of his liberty on account of the false prosecution. He,

therefore, submitted that violation of his freedom and mental

torture which he had undergone and the suffering of the

petitioner and his family, the State should be directed to pay

damages to the petitioner as prayed by him in the petition. He

submitted that during his custody in the said proceedings, he lost

his father, his daughters were required to be kept in the

orphanage. His wife had left him and got married to some other

person. He lost his family life. He is an educated person and

was earning his livelihood by honest means and due to his

detention and custody he had lost his employment as well

damage was caused to his reputation. He relied upon an

observations made by this Court in the Appeal preferred by the

petitioner. The learned counsel pointed out the observations of

this Court in the judgment dated 10th June, 2015 made in

paragraphs 6 and 8 to 17. He submitted that on account of his

detention in custody there is violation of petitioner's personal

liberty which infringes his fundamental right guaranteed under

Article 21 of Constitution of India.

10 In addition to the prayer for compensation, the

learned counsel for the petitioner had also prayed that the CBI be

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directed to conduct the inquiry with regards to the false

implication of the petitioner in the criminal case by the police.

He submitted that there was a conspiracy to falsely implicate the

petitioner which has to be investigated. During the course of

argument he also submitted that the action be initiated against

the erring police officers for not performing their duties in the

manner required. He also submitted that the conduct of the

learned Public Prosecutor appearing in this petition was not fair

and that he had committed contempt of the Court.

11 The learned APP submitted that he is discharging his

duty as a prosecutor and has assisted the court from time to time.

He submitted that he has not committed any act amounting to

contempt of the Court. He submitted that the submissions made

by the petitioner's counsel are devoid of any merits. He

submitted that the petitioner was arrested on 29 th July, 2009. He

was prosecuted before the trial Court by following the procedure

and was convicted by the trial Court. He submitted that it is true

that the appellant was acquitted by this Court in the appeal

preferred by the petitioner. However, this is not the case where

the compensation can be awarded to the petitioner. He submitted

that there are no malafides on the part of the investigating

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machinery in prosecuting the petitioner in the said proceedings.

He submitted that as observed by the appellate court in the

appeal preferred by the petitioner, the benefit of doubt was given

to the petitioner. He placed reliance upon the observations of the

appellate court made in paragraph no.17 of the judgment and

order dated 10th June, 2015. He further submitted that in the

operative part of judgment of trial Court it is stated that C.D.

being part of evidence, it be kept in record of proceedings. He

relied upon the submissions reflected in the affidavit in reply filed

by the State. He placed reliance upon the decision of the Apex

Court in the case of State of Rajasthan Vs. Jainudeen Shekh

Anr.1

12 It would be pertinent to refer to certain averments in

the petition while adjudicating the prayer in this petition. In

ground "L" of the petition it is stated that because of the false

implications of the petitioner he has suffered immensely and

irreparably. A loss caused to the petitioner can never be

compensated. Father of the petitioner had expired due to the

shock that the petitioner has been awarded sentence to suffer

seven years of imprisonment for the offence which he has not

1 (2016) 1 SCC 514

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committed. The daughters of petitioner were required to be

admitted in an orphanage. The petitioner's mother was required

to go back to her village and his wife divorced him and married

another person, thus, depriving the petitioner of his entire

matrimonial life. He lost his job. He was working in a Five Star

Hotel and earning Rs.50,000/- salary per month. In ground "O" it

is stated that the police officers, learned Magistrate, learned APP

have committed serious offences of violating the provisions of law

and not performing their duties. In ground "H" it has been stated

that the trial court was aware of the fact that the police has

fabricated the evidence against the petitioner and it was its duty

to direct the prosecution to place all the facts and materials

before the court in order to undertake a free and fair trial. The

trial judge has entered into the conspiracy by not performing its

duties in accordance with law and, therefore, liable to be

prosecuted and punished under Section 120B of the IPC. It is

further stated that the materials on record were more than

sufficient to establish that the police has falsely implicated the

petitioner in the said crime. Even though the learned Sessions

Judge has convicted the petitioner, therefore, an inference can be

drawn from the illegal acts committed by the learned Judge that

he had subsequently joined with the conspirators i.e. the police

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officers and therefore liable to be prosecuted and punished in

accordance with the provisions of Section 120B. In fairness to the

petitioner, we must state that the Sessions Judge who was party

respondent to the petition has been deleted in pursuant to the

order dated 3rd February, 2016. However, these averments were

not deleted from the memo of this petition.

13 In ground "Y" it is stated that as per the law laid

down by the Hon'ble Supreme Court, the petitioner was required

to be released on bail by the Appellate Court since he had

suffered more than half of the awarded sentence. This principle is

made available to the hardened criminals also and they were

released on bail. However, in the instant case, though the Appeal

was pending and request was made to grant bail, his Appeal was

not heard and he was made to suffer imprisonment of seven years

which is violation of Articles 14 and 21 of the Constitution of

India.

14 Apart from the oral submissions advanced by the

learned advocate for the petitioner, from the tenor of the

averments made in the petition the grievance of the petitioner

appears to be that the alleged incident had taken place on 19 th

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June, 2009 and the petitioner was arrested on 29 th July, 2009, he

was placed for identification parade on 7th August, 2009, he was

shown to the victim at the police station before the parade which

is also observed by the appellate court which is one of the ground

for acquittal. The petitioner has contended that the identity of the

accused - petitioner was not established, the C.C.T.V. footage was

not produced before the Court and that he was falsely implicated.

It is also contended that the petitioner was kept in the custody for

three days without producing him before the concerned court and

was shown arrested thereafter on 29th July, 2009 thereby violating

the provisions of Section 167 of the Cr.P.C. In paragraph 15 of

the petition it is also stated that the Magistrate was duty bound

to comply with the procedure and provisions in accordance with

law and any derogation would make him liable to be dealt with

under Section 220 of the IPC. It is also contended that while

recording statement under Section 313 of the Cr.P.C., petitioner

had disclosed to the Court that offence is committed by some

other person which was not verified by the Court by directing

further investigation. According to the petitioner, in view of the

observations made by the appellate court while acquitting the

petitioner, it is clear that the petitioner was falsely implicated in

the said case.

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15 The learned counsel for the petitioner submitted a

compilation of judgments, however, he places reliance upon the

following decisions in support of his submissions.

(i) Niraj Ramesh Jariwala Ors. Vs. Mahadeo
Pandurang Nikam Ors.2;

(ii) Ram Sarup (Since deceased) through his LRs-

Dharma, Reshma, Ramratti, Sakhtula Sona
Vs. State of Haryana Ors.3;

(iii) Rudul Sah Vs. State of Bihar Anr.4;

                (iv)    O.P. Gandhi Vs. Tihar Jail5;
(v) Miss Veena Sippy Vs. Mr. Narayan Dumbre
Ors.6;
(vi) Uma Shankar Sitani Vs. Commissioner of Police
Delhi Ors.7;

(vii) State of Gujarat Vs. Kishanbhai Ors.8;

(viii) Prempal Ors. Vs. Commissioner of Police
Ors.9;

(ix) Nachhatar Singh @ Khanda Ors Vs. State of
Punjab10;

                (x)     S. Krishnamurthy Vs. State of Tamilnadu
Ors.11
2 2013 ALL MR (Cri.) 1
3 CWP No.7697/99 dated 3.2.2016
4 AIR 1983 SCC 1086
5 CIC/SS/A/2016/000884 decided on 27.09.2016
6 2012 ALL MR (Cri.) 1263
7 1995 CRI. L. J. 3612
8 2014 (5) SCC 108
9 2010 ILR 4 Delhi 416
10 2009(4) RCR (Cri.) 409
11 2008 (1) LW (Cri.) 229

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(xi) Perumal Vs. Janaki12
(xii) Jugal Kishor Vs. State of M.P.13;

(xiii) Bharat Salvi Ors. Vs. State of Maharashtra14.

16 We have hereinafter referred to the materials on

record of the Trial Court as also of this Court (Appellate Court)

only because Mr. Ojha learned advocate appearing for the

petitioner would read some paragraphs of this Court's judgment

and order acquitting the petitioner accused, in isolation. We had

to explain the whole background only because the judgment of

this court would have to be read as a whole. After reading all

paragraphs together, it is not possible to agree with the

Petitioner's advocate that the acquittal of the Petitioner was

founded on false implication or any deliberate leave alone

malafide act of the prosecution. It is a judgment acquitting the

Petitioner on the grounds and for the reasons indicated by us

above.

17 It is in these circumstances that there are limitations

on this Court's power to award damages/compensation for that is

a remedy ordinarily available when the confinement and

detention in custody is wrongful and illegal. We hasten to add
12 (2014) 5 SCC 377
13 1990 Cr.L.J. 2257
14 Criminal W.P. No.1252 of 2015

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that such damages may be awarded even after an acquittal from

a criminal case, but the grounds for awarding such damages in

public law would have to be distinct and clear. A false implication

in a criminal case resulting in a person's liberty being taken away

contrary to the mandate of Article 21 of the Constitution of India,

that such false implication led to his arrest and later on subjected

him to a full-fledged trial to await his eventual acquittal could be

one of the grounds but then there ought not be any factual

dispute. Further, when orders of acquittal in criminal cases are

passed based on which claims for compensation and damages are

instituted, then, it would have to be decided whether the

acquittal is clear and doubtless. A acquittal by giving benefit of

doubt is not an honourable acquittal. As held by the Hon'ble

Supreme Court in Commissioner of Police vs. Mehar Singh 15

that quite often criminal cases end in acquittal because witnesses

turn hostile. Such acquittals are not on merit. Several instances

of this nature are set out by the Hon'ble Supreme Court. Even

when such acquittals are challenged in higher courts, the

challenge fails. In an appropriate case and depending upon

several factors and circumstances, such damages can be

awarded. However, no general rule can be laid down and

15 (2013) 7 SCC 689

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everything depends upon the facts and circumstances of each

case. The inherent or summary powers or the summary remedy

under Article 226 of the Constitution of India read with section

482 of the Code of Criminal Procedure, 1908 cannot be invoked

as a matter of right and in every case merely because there is an

acquittal of a arrested person accused of a crime, after a full-

fledged trial. The reasons for such acquittal together with other

factors would have to be taken into consideration.

18 This aspect has been clarified by the Hon'ble

Supreme Court of India while discussing and ruling upon this

Court's power to issue a writ of mandamus awarding

compensation for illegal and wrongful arrest and detention or

subjecting a person to such treatment as would deprive him of his

life and personal liberty guaranteed by Article 21 of the

Constitution of India.

19 Broadly and without being exhaustive, it has been

noticed that claims for compensation in monetary terms have

been accepted and the amounts awarded in cases of custodial

torture, custodial death, police excesses, police atrocities in the

sense when police officers are guilty of illegal arrest, torture in

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police station etc. In that, the Courts must guard themselves

against claims, which are false, motivated and frivolous. Mere

allegations of the above nature would not be enough. There have

to be satisfactory, cogent and reliable materials placed before the

court. Further, the Court exercising powers under Article 226 of

the Constitution of India and considering the cases of the above

nature cannot be expected to hold a full-fledged trial. Such

claims, which can be considered and decided on affidavits, would

be possibly entertained. Therefore, even in instances of

handcuffing, keeping a person under surveillance by watching his

movements may not amount to deprivation of his personal liberty,

but in the event there is something tangible and direct, then, the

Hon'ble Supreme Court of India has not hesitated to intervene.

We have, therefore, to consider such claims carefully. We have

also to bear in mind that each and every case of this nature

cannot be allowed. More so, when the Hon'ble Supreme Court

has already clarified that this remedy does not bar additional

claim for compensation in private law or a Criminal Court

ordering compensation under section 357 of the Code of Criminal

Procedure, 1973.

20 In the case of Sube Singh vs. State of Haryana

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and Ors.16, a three Judge Bench of the Hon'ble Supreme Court of

India clarified the legal position as under:-

"12 Though illegal detention and custodial torture
were recognized as violations of the fundamental
rights of life and liberty guaranteed under Article
21, to begin with, only the following reliefs were
being granted in writ petitions under Article 32
or 226 :

a) direction to set at liberty the person detained, if
the complaint was one of illegal detention.

b) direction to the concerned Government to hold
an inquiry and take action against the officers
responsible for the violation.

c) If the enquiry or action taken by the concerned
department was found to be not satisfactory, to
direct an inquiry by an independent agency,
usually the Central Bureau of Investigation.

Award of compensation as a public law remedy for
violation of the fundamental rights enshrined in Article
21 of the Constitution, in addition to the private law
remedy under the Law of Torts, was evolved in the last
two and half decades."

After referring to all the decisions in the field, the

16 AIR 2006 SC 1117

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Bench in paragraph 17 concluded as under:-

"17 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."

Thereafter, from paragraphs 18 to 23, the Hon'ble

Supreme Court held as under:-

"18 This takes us to the next question as to whether
compensation should be awarded under Article
32/226, for every violation of Article 21 where
illegal detention or custodial violence is
alleged.

Whether compensation should be
awarded for every violation of Article 21.

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19 In M.C. Mehta Vs. Union of India17, a
Constitution Bench of this Court while
considering the question whether

compensation can be awarded in a petition
under Article 32, observed thus :-

"We must, therefore, hold that Article 32
is not powerless to assist a person when
he finds that his fundamental right has
been violated. He can in that event seek
remedial assistance under Article 32.

The power of the court to grant such
remedial relief may include the power to
award compensation in appropriate
cases. We are deliberately using the
words "in appropriate cases" because
we must make it clear that it is not in
every case where there is a breach of a
fundamental right committed by the
violator that compensation would be
awarded by the court in a petition under
Article 32. The infringement of the
fundamental right must be gross and
patent, that is, incontrovertible and ex
facie glaring and either such
infringement should be on a large scale
affecting the fundamental rights of a
large number of persons, or it should

17 1987 (1) SCC 395

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appear unjust or unduly harsh or
oppressive on account of their poverty
or disability or socially or economically
disadvantaged position to require the
person or persons affected by such
infringement to initiate and pursue act
in the civil courts. Ordinarily, of course,
a petition under Article 32 should not be
used as a substitute for enforcement of
the right to claim compensation for
infringement of a fundamental right
through the ordinary process of civil
court. It is only in exceptional cases of
the nature indicated by us above, that
compensation may be awarded in a
petition under Article 32.

If we make a fact analysis of the
cases where compensation has been
awarded by this Court, we will find that
in all the cases, the fact of infringement
was patent and incontrovertible, the
violation was gross and its magnitude
was such as to shock the conscience of
the court and it would have been
gravely unjust to the person whose
fundamental right was violated, to
require him to go to the civil court for
claiming compensation."

(emphasis supplied)

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In Shakila Abdul Gafar Khan V. Vasant

Raghunath Dhoble18 and Munshi Singh Gautam
V. State of M.P.19, this Court warned against non-
genuine claims:

"But at the same time there seems to be a
disturbing trend of increase in cases where
false accusations of custodial torture are
made, trying to take advantage of the
serious concern shown and the stern
attitude reflected by the courts while dealing
with custodial violence. It needs to be
carefully examined whether the allegations
of custodial violence are genuine or are
sham attempts to gain undeserved benefit
masquerading as victims of custodial
violence."

In Dhananjay Sharma Vs. State of Haryana20, this
Court refused compensation where the petitioner had
exaggerated the incident and had indulged in
falsehood. This Court held :

"Since, from the report of the CBI and our
own independent appraisal of the evidence
recorded by the CBI we have come to the
conclusion that Shri Dhananjay Sharma and
Sushil Kumar had been illegally detained by
respondents 3 to 5 from the afternoon of
18 2003 (7) SCC 749
19 2005 (9) SCC 631
20 1995(3) SCC 757

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15.1.94 to 17.1.94, the State must be held
responsible for the unlawful acts of its
officers and it must repair the damage done
to the citizens by its officers for violating
their indivisible fundamental right of
personal liberty without any authority of law
in an absolutely high-handed manner. We
would have been, therefore, inclined to
direct the State Government of Haryana to
compensate Dhananjay Sharma and Sushil
Kumar but since Sushil Kumar has indulged
in false-hood in this Court and Shri
Dhananjay Sharma, has also exaggerated the
incident by stating that on 15.1.94 when he
was way laid along with Sushil Kumar and
Shri S.C. Puri, Advocate, two employees of
respondents 6 and 7 were also present with
the police party, which version has not been
found to be correct by the CBI, they both
have disentitled themselves from receiving
any compensation, as monetary amends for
the wrong done by respondents 3 to 5, in
detaining them. We, therefore do not direct
the payment of any compensation to them."

[Emphasis supplied]

20 Cases where violation of Article 21 involving
custodial death or torture is established or is

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incontrovertible stand on a different footing
when compared to cases where such violation is
doubtful or not established. Where there is no
independent evidence of custodial torture and
where there is neither medical evidence about
any injury or disability, resulting from custodial
torture, nor any mark/scar, it may not be
prudent to accept claims of human right
violation, by persons having criminal records in
a routine manner for awarding compensation.
That may open the floodgates for false claims,
either to mulct money from the State or as to
prevent or thwart further investigation. Courts
should, therefore, while jealously protecting the
fundamental rights of those who are illegally
detained or subjected to custodial violence,
should also stand guard against false, motivated
and frivolous claims in the interests of the
society and to enable Police to discharge their
duties fearlessly and effectively. While custodial
torture is not infrequent, it should be borne in
mind that every arrest and detention does not
lead to custodial torture.

21 In cases where custodial death or custodial
torture or other violation of the rights

guaranteed under Article 21 is established,
courts may award compensation in a
proceeding under Article 32 or 226. However,

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before awarding compensation, the Court will
have to pose to itself the following questions :

(a) Whether the violation of Article 21 is patent
and incontrovertible, (b) whether the violation
is gross and of a magnitude to shock the
conscience of the court, (c) whether the
custodial torture alleged has resulted in death
or whether custodial torture is supported by
medical report or visible marks or scars or
disability. Where there is no evidence of
custodial torture of a person except his own
statement, and where such allegation is not
supported by any medical report or other
corroboration evidence, or where there are
clear indications that the allegations are false
or exaggerated fully or in part, courts may not
award compensation as a public law remedy
under Article 32 or 226, but relegate the
aggrieved party to the traditional remedies by
way of appropriate civil/criminal action.

22 We should not, however, be understood as
holding that harassment and custodial violence is
not serious or worthy of consideration, where
there is no medical report or visible marks or
independent evidence. We are conscious of the
fact that harassment or custodial violence cannot
always be supported by a medical report or
independent evidence or proved by marks or

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scars. Every illegal detention irrespective of its
duration, and every custodial violence,
irrespective of its degree or magnitude, is
outright condemnable and per se actionable.
Remedy for such violation is available in civil law
and criminal law. The public law remedy is
additionally available where the conditions
mentioned in the earlier para are satisfied. We
may also note that this Court has softened the
degree of proof required in criminal prosecution
relating to such matters. In State of M.P. Vs.
Shyamsunder Trivedi21, reiterated in ABDUL
GAFAR KHAN and MUNSHI SINGH GAUTAM
(supra), this Court observed :-

"Rarely in cases of police torture or
custodial death, direct ocular evidence of
the complicity of the police personnel
would be available...... Bound as they are
by the ties of brotherhood, it is not
unknown that the police personnel prefer
to remain silent and more often than not
even pervert the truth to save their
colleagues.......... The exaggerated
adherence to and insistence upon the
establishment of proof beyond every
reasonable doubt, by the prosecution,
ignoring the ground realities, the fact-

situations and the peculiar circumstances

21 1995 (4) SCC 262

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of a given case....., often results in
miscarriage of justice and makes the
justice delivery system a suspect. In the
ultimate analysis the society suffers and a
criminal gets encouraged. Tortures in
police custody, which of late are on the
increase, receive encouragement by this
type of an unrealistic approach of the
Courts because it reinforces the belief in
the mind of the police that no harm would
come to them, if an odd prisoner dies in
the lock-up, because there would hardly
be any evidence available to the
prosecution to directly implicate them
with the torture."

Improving the present situation

23 Unfortunately, police in the country have given
room for an impression in the minds of public,
that whenever there is a crime, investigation
usually means rounding up all persons
concerned (say all servants in the event of a theft
in the employer's house, or all acquaintances of
the deceased, in the event of a murder) and
subjecting them to third-degree interrogation in
the hope that someone will spill the beans. This
impression may not be correct, but instances are
not wanting where police have resorted to such a

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practice. Lack of training in scientific
investigative methods, lack of modern
equipment, lack of adequate personnel, and lack
of a mindset respecting human rights, are
generally the reasons for such illegal action. One
other main reason is that the public (and men in
power) expect results from police in too short a
span of time, forgetting that methodical and
scientific investigation is a time consuming and
lengthy process. Police are branded as inefficient
even when there is a short delay in catching the
culprits in serious crimes. The expectation of
quick results in high-profile or heinous crimes
builds enormous pressure on the police to
somehow 'catch' the 'offender'. The need to have
quick results tempts them to resort to third
degree methods. They also tend to arrest
"someone" in a hurry on the basis of incomplete
investigation, just to ease the pressure. Time has
come for an attitudinal change not only in the
minds of the police, but also on the part of the
public. Difficulties in criminal investigation and
the time required for such investigation should
be recognized, and police should be allowed to
function methodically without interferences or
unnecessary pressures. If police are to perform
better, the public should support them,
Government should strengthen and equip them,
and men in power should not interfere or belittle

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them. The three wings of the Government should
encourage, insist and ensure thorough scientific
investigation under proper legal procedures,
followed by prompt and efficient prosecution. Be
that as it may."

Therefore, we are of the considered view that the

Hon'ble Supreme Court having laid down these binding principles

and applied them to cases of police excess, custodial deaths,

custodial torture, illegal and unlawful detention, then, all the

more when the petitioner is complaining that he was involved

deliberately and falsely in a criminal case and put in prison, tried,

but later on found not guilty, he should be compensated by the

State. In cases of every acquittal such claims would be raised

and without any inquiry or investigation they would have to be

necessarily granted. Though such claims are doubtful or

disputed and unclear, this public law remedy would be resorted

to obtain undue monetary and other benefits. Hence, all the

more and as the Hon'ble Supreme Court observes, a balanced

approach is necessary. While the Court must be zealous in

safeguarding and protecting the fundamental rights and

particularly the right to life and liberty guaranteed by Article 21

of the Constitution of India, at the same time, it cannot award

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compensation merely because the prosecution fails to establish

the guilt of the accused. Every acquitted accused then, upon his

release, can resort to such remedies and by relying on the orders

of acquittal and their confirmation by higher court, as of right,

claim compensation. That, with greatest respect, cannot be the

law.

21 The Hon'ble Supreme Court of India has time and

again, cautioned that the fundamental right, particularly of a

under-trial prisoner, under Article 21 of the Constitution of India,

is not absolute. Such a fundamental right is circumscribed by the

Prison Manual and other statutes imposing reasonable

restrictions on such right. These provisions have equally been

upheld. Therefore, in Kalyan Chandra Sarkar vs. Rajesh

Ranjan Alias Pappu yadav and Anr.22, the Hon'ble Supreme

Court held that a convict or a under-trial cannot insist on being

lodged in a particular prison and not transferred. Further, the

Hon'ble Supreme Court exercised its power under Article 142 of

the Constitution of India so as to render complete justice.

22 Though reliance can be placed on the judgment of the

22 AIR 2005 SC 972

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Hon'ble Supreme Court of India in the case of the State of

Andhra Pradesh vs. Challa Ramkrishna Reddy and Ors. 23,

even in that case, the Hon'ble Supreme Court has not deviated in

any manner from the general law. It held that the right to live is

one of the basic human rights and it is guaranteed to every

person by Article 21 of the Constitution of India. Not even the

State has the authority to violate that right. A prisoner when

lodged in jail continues to enjoy certain rights on being convicted

of a crime and deprived of their liberty in accordance with the

procedure established by law, prisoners still retain the residue of

constitutional rights.

23 Therefore, it is not every confinement, every

detention and every arrest is flawed much less illegal. A person

seeking compensation by resorting to public law remedy will have

to establish and prove that the constitutional mandate is flouted

brazenly, highhandedly and contrary to the scheme of the

Constitution of India. Persons picked up at odd hours dragged to

the police station confined therein illegally and contrary to the

provisions of the Code of Criminal Procedure, 1973, not allowed

to seek legal assistance and protection of law would have to be

23 AIR 2000 SC 2083

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proved by reliable materials. By resorting to such remedies and

without placing any material, none can succeed in obtaining any

relief in money.

24 Precisely, these are the guidelines which would

enable us to decide this petition.

25 We are not in the process of scanning the evidence

before the court as we are exercising the powers under Article

226 of the Constitution of India and this is not the stage to

evaluate the prosecution case and the evidence laid before the

trial Court. However, to appreciate the submissions made by the

petitioner while seeking damages, it would be necessary to touch

certain factual aspects of the case for the limited purpose and as

stated herein above. The first information report was registered

on 19th July, 2009 on the basis of the statement of victim Priti

Dethe. In the FIR, she has referred to the sexual assault, injuries

caused to her and name of the accused as Gopi which was

allegedly referred to her by the said accused himself.

Supplementary statement of the victim was recorded on 25 th July,

2009. According to prosecution, the identification parade was

conducted on 7th August, 2009. The memo of test identification

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parade has been included in evidence vide Exhibit-30. P.W.1

Kumari Priti Dethe in her evidence has narrated the incident. In

paragraph 5 of her evidence, it is stated as under :

"Today, accused is produced in the court after a gap
of more than two months. Witness identified
accused person before the court. At the time of
identification parade, I had identified the accused in
jail. Said identification parade was held 17-18 days
after the incident. At that time seven persons were
standing in a row and I had identified the accused
amongst them. Accused had taken me to the hospital
as I had sustained injuries while he was pulling me.
My clothes were seized by the police. One sealed
bundle is opened in the presence of APP and Shri
Bankar, advocate for accused."

In paragraph 8 of her evidence it is stated that "PSI

Smt. Sutar had called me in the police station. PSI Smt. Sutar

had shown me accused in the police station. It is not true to say

that I could not identify the accused in the police station. It is not

true to say that I had identified accused in the police station at

the instance of PSI Smt. Sutar. Twice I went to the police station.

Once for recording my statement and second time, for

identifying the accused. It is not true to say that I am deposing

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false on the say of Smt. Sutar."

26 The prosecution has also examined P.W.4 Sainath

Mangaonkar, Special Executive Officer. The memo of parade was

exhibited in evidence at his instance. He was cross-examined by

the prosecution which is as follows:

"02 I went to Byculla jail alongwith P.S.I. Smt. Sutar
at 10.55 a.m. P.S.I. Smt. Sutar had called two
panchas. Details about the place where
identification parade was held, is not
mentioned in identification parade panchanama
Exh.30. Six dummies were provided by the jail
official. Those six dummies were of different
colour, height, hair style and built up. PW-1
Priti was present outside Byculla jail. It is not
true to say that identification parade
panchanama Exh.30 was prepared as per
requirement of P.S.I. Smt. Suar. It is not true to
say that I did not conduct identification parade
on 07/08/2009 at Byculla jail. It is not true to
say that I am deposing false."

Investigating officer was examined as P.W.No.5. FIR

was exhibited in evidence. She has stated in her evidence that

since the accused had seen that he started running and he was

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apprehended by them and brought to the police station. The

cross-examination of the said witness read as under:

"06 A.S.I. Shri Kale had received message from
Rajawadi Hospital about rape on Priti at
Vidyavihar railway station. Entry to that effect
was taken by A.S.I. Shri Kale in station diary. I
did not record statement of A.S.I. Shri Kale. I
had not collected entry taken by A.S.I. Shri Kale
in station diary. Similarly, I did not collect entry
taken by E.P.R. constable in Rajawadi Hospital. I
did not record statement of medical officer,
who had examined PW-1 Priti in the very
beginning.

07 Ghatkopar railway station comes within
jurisdiction of Kurla Railway police station. I do
not remember the names of police constables,
who were on duty at Ghatkopar railway station
on the night of 18/07/2009. Now says, I had
recorded statements of A.S.I. Shri Kale and
E.P.R. constable, who was on duty at Rajawadi
Hospital. I had recorded statement of home
guard who was on duty at Ghatkopar railway
station on the night of incident. Incident had
not taken place on the platform, but it was in
the corner of over bridge. Doctor had given
clothes and swab etc. in three sealed bundles.

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As per version of complainant PW-1 Priti, sketch
of accused was prepared. Detection staff had
informed me about presence of accused in
Nityanand Nagar area on 29/07/2009. PW-1
Priti was called in the police station thrice. It is
not true to say that clothes of accused seized
vide seizure memo Exh.37, do not belong to
him. It is not true to say that identification
parade was conducted in order to suit the case.
It is not true to say that accused has been
falsely implicated in this case."

From the cross-examination it is apparent that there

was no suggestion to the said witness about the accused being

shown to the victim, no suggestion regarding conspiracy to

implicate the accused and no suggestion of malafides in

implicating the petitioner in the said crime.

27 The decision of the trial Court to convict the

petitioner was based on the observations made by the said court

in paragraphs 23 to 33 of the judgment and the order passed

dated 31st May, 2010. The trial court had primarily relied upon

the version of the victim and the identification of the accused by

her. We are conscious of the fact that the said judgment and

order dated 31st May, 2010 has been set aside by this court while

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exercising its appellate jurisdiction vide judgment and order

dated 10th June, 2015 passed in criminal appeal no.525 of 2010

and that the judgment of the appellate court has attained finality

after dismissal of the SLP preferred by the State of Maharashtra.

We are aware of the fact that it is not open to this Court now to

scan the evidence or to re-appreciate the evidence adduced

before the trial court or the findings given by the trial court and

the appellate court. However, in order to award public law

damages, it would be appropriate to look into the factual aspects,

nature of evidence and the reasons assigned by the Court while

acquitting the petitioner accused. The appellate court has no

doubt acquitted the accused and it is not within the domain of

this Court in this proceeding to reassess the finding of the

appellate Court. The reasons for acquittal are incorporated in the

paragraphs which are highlighted by the learned counsel for the

petitioner in support of his submissions that the petitioner was

falsely implicated in the proceedings and, hence, for the mental

agony suffered by him and being in custody for a long period of

time, the compensation be awarded.

28 In paragraph 17 of the judgment and order dated 10 th

June, 2015, while acquitting the petitioner, it was observed as

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follows:

"17 In my opinion, this was a case where the
identity of the appellant as the culprit had not
been satisfactorily established. In my opinion,
there was indeed a real substantial doubt about
the identity of the appellant as the culprit. The
trial Court ought to have been given the benefit
of the doubt to the appellant and should have
acquitted him."

29 Thus, it is apparent that the acquittal is primarily

based on the finding that there was indeed a real and substantial

doubt about identity of the appellant as a culprit and that the trial

court ought to have given benefit of that doubt to the appellant

and that he should have been acquitted.

30 The learned judge in the judgment and order dated

10th June, 2015 in paragraph 9 has observed that the incident had

taken place on 19th July, 2009. The appellant was arrested on 29 th

July, 2009 and the identification parade was conducted on 7th

August, 2009. However, admittedly the appellant was shown to

the victim at the police station before the parade was held. It is

further observed that the identification was brought on record as

and by way of note made by the learned judge and not a

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statement made by the victim. Such a procedure is uncalled for

and if victim had identified the appellant, it was the assertion

made by her before the court that ought to have been recorded. It

is further observed that considering the fact that the appellant

was shown to the victim after arresting and before the parade

which fact was admitted to be suppressed by the investigating

agency as also the fact that social status of the victim and her

position was such so as to render her susceptible to the

suggestions, it would be unsafe to hold that it must be the

appellant who had committed rape on the victim. It is also

observed that the incident had taken place on 19 th July, 2009 and

the appellant came to be arrested on 29th July, 2009. It appears

that the victim had learnt the name of the culprit to be "Gopi"

and had given that name to the police. The name of the appellant

is Gopal Shetye and that his name is "Gopal alias Gopi" appears

to have been theory introduced by the investigating agency itself

as there is no evidence to indicate that the appellant was known

as Gopi. The appellate court has also observed that the C.C.T.V.

footage was held back because the images contained in that were

not visible or clear which also creates doubt about the

correctness of the identification of the appellant as a culprit. The

investigation is not satisfactory and there was no serious effort to

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find out the truth. It was not safe to convict the appellant on such

a piece of evidence because the identification is not satisfactorily

reflected from the notes of evidence and finds a place by way of

an observations or note made by the learned trial Judge, rather

than being reflected as a statement made by the victim before the

Court. It was, therefore, concluded that the identity of the

appellant as a culprit has not been satisfactorily established and

the benefit of doubt ought to have been given to the appellant.

31 On perusal of the aforesaid observations in the

judgment of the appellate court, it is apparent that on account of

infirmities in the evidence or inaction on the part of investigating

agency and for all the reasons stipulated in the judgment, the

appellate court was pleased to acquit the accused/petitioner by

setting aside the judgment of the trial court with a reasoning that

the trial Court ought to have given benefit of doubt to him.

32 It is pertinent to note that the defence has not

established that there was no incident of sexual assault upon the

victim on 19th July, 2009. The evidence of the victim about the

incident of rape has not been discarded. However, on account of

the infirmities in the evidence of the prosecution, the Appellate

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Court has opined that the benefit of doubt has to be given to the

petitioner. The Appellate Court in paragraph no.8 of the

judgment of acquittal has observed as follows:

"8 It is not necessary to examine whether that the
incident of rape had actually taken place as alleged
by the victim was satisfactorily established. It is
because the real question that needs determination
is whether the identity of the appellant as the person
who committed rape on the victim was satisfactorily
proved during the trial."

The appellate court has disbelieved the

prosecution case qua identification of the accused on the ground

that the appellant was shown the victim at the police station

before the parade was held. Thus, the evidence of identification

parade was not accepted by the appellate court. It is pertinent to

note that the victim had given account of the incident and has

also stated the name of the assailant which was allegedly given

by the assailant himself. The accused was thereafter arrested. It

is pertinent to note that according to the victim, the accused was

with her for long period of time. He was identified by the victim

in the court. However, the appellate court has criticised the

manner of recording of the statements with regard to

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identification by the trial court. In the circumstances, it is clear

that on account of doubt about the involvement of the

accused/petitioner, he was acquitted. It is cardinal principle of

criminal jurisprudence that the prosecution has to establish its

case beyond all reasonable doubt. In the event of any infirmities

in the evidence, the benefit always goes to the accused. It is

settled law that even if two views are possible with regard to

involvement of the accused, one which favours the accused

should be accepted. In the present case, the observation of the

appellate court in the concluding paragraph of the judgment of

acquittal makes it crystal clear that in view of the discrepancies

in evidence, the benefit of doubt being given to the

accused/petitioner. The appellate court has clearly stated that the

trial Court ought to have given the benefit of doubt to the

accused on account of the said infirmities in the case of the

prosecution.

33 The petitioner has taken recourse to the remedy of

public law damages by invoking the extra ordinary jurisdiction of

this Court under Article 226 of the Constitution of India for

claiming the compensation of Rs.200 crores. It is not established

by the petitioner that there were malafides or malice on the part

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of prosecution in implicating him in the case. Evidence on record

do not establish that he was falsely implicated in exercise of

malafides by the investigating agency. The investigating officer or

the other witnesses had no reason to implicate the petitioner.

During the course of trial, the defence has not established the

malafide on the part of the investigating machinery to falsely

implicate the petitioner-accused. The petitioner has contended in

paragraph 15 of the petition that during the trial, the statement

of the petitioner was recorded under Section 313 of Cr.P.C.

through video conferencing in jail. It is further stated that the

petitioner has specifically disclosed to the learned judge that he

has not committed any such offence and the said offence was

committed by one "Ambya" working as a loader/coolie at platform

no.4 at Ghatkopar railway station. However, the learned judge

has not taken any pains to verify the statement made or direct the

police machinery to get the same tested by making further

investigation assuming that the petitioner - accused had adopted

such defence while recording his statement under Section 313 of

Cr.P.C. It was not the stage to direct any police investigation to

enquire into such an aspect which was taken as an excuse by the

accused. There is nothing on record to show that at any point of

time the petitioner had made any grievance in that regard about

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his false implication and commission of an offence by the

aforesaid person, during the course of trial or prior to that. In

any case, the said defence was not put to the witnesses in the

cross-examination. However, on perusal of the statement under

Section 313 of the Cr.P.C. also there is no reference of any such

statement being made by the accused/petitioner. The question

no.42 recorded in exercise of the powers under Section 313 of

Cr.P.C. was put to the accused. Whether he wants to say anything

more about this case, which was answered by him by stating that

he is falsely implicated in this case. In the other question put to

him also there is no reference to the assertion by the accused

that the offence is committed by one Ambya. Thus, the said

statement is coming for the first time in the form of averments in

this petition. On perusal of the statement under Section 313 of

Cr.P.C. it is further clear that the accused had not put up the case

of malafides against the investigating machinery or the victim to

falsely implicate him in the said proceedings. A reference can be

given to question no.8 which was put to the petitioner accused

under Section 313 of the Cr.P.C. with regards to the identification

parade which is as follows:

"Q.8 It has further come in t he evidence of PW-1

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Priti that identification parade was held after
17-18 days from the incident. At the time of
identification parade, she had identified you in
the jail. In the court also, she has identified you.
What have you to say about it?

Ans. It is true."

The purpose for quoting the aforesaid statement is

not to suggest that the petitioner was proved to be guilty of the

said offence but only to point out that on account of the

deposition of the complainant that the accused was shown to her

at the police station, the evidence of identification parade which

was under the clouds of doubt was discarded and the petitioner

was acquitted. Therefore, this fact also reiterates that the

judgment of acquittal is based on the benefit of doubt. The

appellate court has extended the benefit of doubt by pointing out

circumstances like improper identification parade, lapse on the

part of investigating officer to collect the C.C.T.V. footage as

observed in paragraph 11,12 and 14of the said judgment passed

by the appellate court. The conclusion in paragraph 17 of the

judgment is based on the said infirmities which has resulted into

acquittal. It is pertinent to note that the version of the

prosecutrix was not shaken. From the examination-in-chief and

cross examination it is apparent that she has deposed about

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occurrence of incident which is not discarded. The prosecution

had adduced evidence of P.W.2 Dr. Ranjit Kale who examined the

victim, P.W.3 Narayan Pujari, panch to the spot of incident, who

has not supported the prosecution case and was declared hostile,

P.W.4 Sainath Mangaokar who conducted identification parade

and P.W.5 Smt. Lata Sutar, Investigating officer.

34 As referred hereinabove, the petitioner has raised

several contentions in the petition that there was a conspiracy

amongst the investigating machinery as well as Sessions Judge

who had convicted the petitioner and that they are liable to be

prosecuted in accordance with provisions of Section 120-B of the

IPC. It is also contended that the APP has failed to perform duty

before the trial Court and has violated the provisions of law. The

police officers, magistrate, learned Judge, APP have committed

serious offences of violating the provisions of law and by not

performing their duties have committed several offences

including the offences punishable under Section 191, 166, 182,

192, 211, 471, 472, 474 read with Section 120-B and 34 of IPC.

As noted hereinabove, the petitioner had sought deletion of the

respondent nos.2 to 8 and the said respondents were ordered to

be deleted vide order dated 3rd February, 2016. The petitioner

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subsequently carried out amendment and by deleting the said

respondents, the petitioner has also amended the prayer clause

partly. Those deleted included Ad-hoc Additional Sessions Judge,

Sewree who passed the judgment and order convicting the

petitioner, the Executive Magistrate and Naib Tahasildar, the

Commissioner of Police Mumbai, the Police Inspector, Kurla

Railway Station, the investigating officer Smt. Lata Sutar and the

Additional Public Prosecutor from the trial Court. In view of the

order deleting the said respondents, the grievance of the

petitioner as against the said respondents in the above mentioned

paragraph is not tenable in law. The petitioner had consciously

deleted the said respondents. It was submitted by the petitioner

that apart from compensation, this Court may direct investigation

by CBI. As the police machinery was instrumental in falsely

implicating him by hatching conspiracy, which is required to be

investigated. We do not find any merit in the said submission as

there is nothing to be investigated at this stage. The petitioner

was charge-sheeted and prosecuted for the alleged offence which

resulted into conviction and subsequent acquittal by the appellate

court which is confirmed by the Apex Court. It was submitted that

the investigation, to unearth the role of the persons who have

implicated the petitioner requires to be investigated. As stated

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above, on account of deleting the respondents, such a prayer

cannot be entertained. Even otherwise the investigation as

sought by the petitioner is not warranted.

35 The petitioner has also contended in the petition that

there was violation of Section 167 of Cr.P.C. as he was arrested

and kept in police station for three days without producing him

before the concerned Court and, he is shown to have been

arrested on 29th June, 2009. Thus, according to the petitioner the

detention beyond the period of 24 hours by the police was illegal

detention and gross violation of the rights guaranteed to a person

under Article 21 of Constitution of India. It is also stated that the

said fact was disclosed by the petitioner to the Magistrate. But

the same was not taken into consideration thereby violating a

fundamental right of the petitioner. It is further averred that the

Magistrate was duty bound to comply with the procedure

enunciated and dictated by law and the derogation is not

permissible and thereby the Magistrate is liable to be dealt with

under Section 220 of the IPC. Except the bald statement, there is

nothing on record to corroborate the version of the petitioner.

Apparently, the assertion being made belatedly is after thought.

The petitioner has not produced any contemporaneous record to

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sustain the fact of the alleged illegal detention. Thus, the said

contention is devoid of any substance.

36 The petitioner submitted that there is violation of

Articles 21 of the Constitution of India. In paragraph 29 of the

petition it is stated that the rights conferred by the constitution of

India includes a fundamental right to live a safe and protected life

and that is the reason the Apex Court has held that Article 21 of

the Constitution of India casts obligation on the State to preserve

life. What is guaranteed under Article 21 is a safe life and,

therefore, there is a corresponding obligation vesting in the State

to protect and save life of citizens on whom fundamental rights

have been conferred. In case of deprivation or contravention of

fundamental rights by the State, a public law remedy is available

for seeking compensation. We have given anxious consideration

to the submissions advanced at the instance of the petitioner as

we are conscious of the fact that the petitioner had undergone

imprisonment for a period of seven years in the prosecution

which had resulted into an acquittal. In several judicial

pronouncements, it has been laid down time and again that even

an accused/convict/prisoner is entitled to certain fundamental

rights. Instances like handcuffing of the accused, illegal

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detention, assaulting accused while in custody, arresting the

accused without following due process of law etc., are settled

instances of violation of fundamental rights. In the present case,

the petitioner was arrested in connection with the alleged

offence, he was produced before the Court, he was remanded to

custody by orders of the Court, charge-sheet was filed against

him, he was represented by an advocate during the trial. He has

exhausted all the remedies available in law. He defended himself

by cross-examining the witnesses through his advocate. He was

given an opportunity to tender an explanation while recording the

statement under Section 313 of the Cr.P.C. It is not his case that

he was subjected to ill treatment in custody. Except the bald

assertion that he was produced belatedly before the Court which

was beyond 24 hours of his detention. There was no evidence to

corroborate the same. The petitioner has not made out any case

of violation of fundamental rights.

37 Article 21 of the Constitution of India reads as

follows:

"21 Protection of life and personal liberty:

No person shall be deprived of his life or
personal liberty except according to procedure

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established by law."

Thus, Article 21 guarantees protection of life and

personal liberty. No one can be deprived of his life or personal

liberty except in accordance with procedure established by the

law. As stated hereinabove, the petitioner was subjected to trial

by following the provisions of law. It is true that he was acquitted

by the Appellate Court which acquittal has been confirmed by the

Apex Court. However, the acquittal was based on the cardinal

principles of criminal jurisprudence that no person can be

convicted unless prosecution proves its case beyond all

reasonable doubt. Thus, it cannot be said that he was detained in

custody without following the procedure established by law.

38 The origin of Article 21 of the Constitution of India

can be traced back to the Magna Carta, 1215 which King John

was forced to sign in which it was demanded that "no man shall

be taken or imprisoned, diseased or outlawed or exiled or in any

way destroyed, save by the lawful judgment of his peers or by or

by the law of land". The demand was repeated in the Petition of

Grievances of 1610 and the Petition of Rights of 1628 and

thereafter the observance of this principle is established as the

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Rule of Law of England. In America, the 5 th amendment of the

Constitution provided that "No person shall be deprived of his

life, liberty or property, without due process of law". Similarly,

Article 40(4) of the Constitution of Eire stated that "No citizen

shall be deprived of his personal liberty save in accordance with

law." In many respects, Article 21 of the Constitution is very

similar to Article 31 of the Japanese Constitution which is as

follows:

"No person shall be deprived of life or liberty nor
shall any other criminal penalty be imposed, except
according to procedure established by law."

The only difference is that the Japanese provision

includes other criminal penalty, which is absent in Article 21.

In the decision of the Apex Court in case of

Makkhansingh Tarsikka Vs. State of Punjab24 Chief Justice

Patanjali Shashri has observed that person is deprived of his life

or personal liberty, the procedure established by law must be

strictly complied with and must not be departed from to the

disadvantage of the individual affected. In Munn Vs. Illinois25 It

was observed by the Field, J. as follows:

      24 AIR 39 1952 SCC 27
25 94 US 113

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" By the term 'life' as here used something more

is meant than mere animal existence. The inhibition
against its deprivation extends to all those limbs and
faculties by which life is enjoyed. The provision
equally prohibits the mutilation of the body by the
amputation of an arm or leg, or the putting out of an
eye, or the destruction of any other organ of the body
through which the soul communicates with the outer
world."

39 The Hon'ble Supreme Court has quoted the above

opinion in the case of Kharak Singh Vs. State of UP 26 and the

same was further expanded in Fancies Coralie Vs. Union

Territory of Delhi27 wherein it was held that 'any act', which

damages or injuries or interferes with the use of any limb or

faculty of a person, either permanently or even temporarily,

would be within the inhibition of Article 21.

40 The learned counsel for the petitioner relied upon

several decisions as referred to herein above. He relied upon the

Hon'ble Supreme Court decision in the case of State of Gujarat

Vs. Kishanbhai (Supra). In the said decision, it was observed

26 AIR 1963 SCC 1295
27 AIR 1981 SCC 796a

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that every acquittal should be understood as a failure of the

justice delivery system, in serving the cause of justice. Likewise,

every acquittal should ordinarily lead to the inference, that an

innocent person was wrongfully prosecuted. It is, therefore,

essential that every State should put in place a procedural

mechanism, which would ensure that the cause of justice is

served, which would simultaneously ensure the safeguard of

interest of those who are innocent. The Court, therefore, directed

to Home Department of every State to examine all orders of the

acquittal and to record the reasons for the failure of each

prosecution case. It was further directed that on acquittal, the

concerned investigating agency responsible for such acquittal

must necessarily be identified. A finding need to be recorded in

each case whether the lapse was innocent or blameworthy. The

Home Department of every State was directed to formulate a

procedure taking action against erring investigating/prosecuting

officer. Thus, the Apex Court has formulated a mechanism which

would ensure that the cause of justice is served. The decision

does not deal with the issue of grant of public law damages. In

another decision of the High Court of Delhi in the case of

Prempal Ors. Vs. Commissioner of Police Ors. (Supra),

it was observed that the petitioner therein was unreasonably,

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unfairly treated by the police and his fundamental rights under

Article 21 were violated by the respondents. The respondents

were directed to pay the compensation to the petitioner therein.

The petitioner had approached the Court for undue harassment

caused to him and his family members at the hands of the police.

It was observed that after analyzing the evidence, the trial Court

come to the conclusion that the petitioner therein was not

involved in rape of the child and he was treated unreasonably,

unfairly by police and his fundamental rights were violated. It

was observed that the police force has persons of criminal

characters which damage the institution. It was recommended

that all police officers who are involved in framing the petitioner

in different cases be given exemplary punishment. From the

facts, it is apparent that he was implicated in several cases. After

acquittal in one case, he was falsely implicated in another case.

His family members were also arraigned as accused and all of

them had to undergo imprisonment. It is in this circumstance,

the Court was pleased to grant compensation to the petitioner

therein. A clear case of false implication was made out. Such is

not the position before us. In the case of Nachhatar Singh @

Khanda Ors Vs. State of Punjab (Supra) the High Court of

Punjab and Haryana had dealt with the issue of false and

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fabricated case registered against the appellant therein and a

compensation of Rs.1 crore was awarded to the victim. The

accused who were implicated in the case of murder were

convicted by the trial Court and sentenced to imprisonment for

life. The court had observed that a false and fabricated case was

registered against the appellant. The victim in the said case was

shown to be murdered but in fact he had ran away and was alive

and inspite of that the charge under Section 302 was framed

against the accused. False evidence was procured and a false

story was built up to convict the appellants/accused and a

personal enmity was the sole driving force to implicate them. In

the said decision it was further observed that going through the

statements of the witnesses given in Court it is clear that

prosecution witnesses knew that they were stating falsehood

before the learned trial Court with the sole purpose to falsely

implicate the appellants therein so that they may be convicted

which they succeeded in doing so. In the circumstances, it was

observed by the court that the prosecution of the offender is an

obligation of State in case of every crime. But the victim of crime

needs to be compensated monetarily also. It was further observed

that the claim in public law for compensation for unconstitutional

deprivation of fundamental right to life and liberty the protection

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of which is guaranteed under the Constitution is a claim based on

strict liability and is an addition to the claim available in private

law for damages for tortures acts of the public servants. Award of

compensation for established infringement of the indefeasible

rights guaranteed under Article 21 of the Constitution is a

remedy available in public law since the purpose of public law is

not only to civilize public power but also to assure the citizens

that they live under a legal system wherein their rights and

interests are protected. In the facts and circumstances of the said

case the Court therefore awarded Rs.20 lakhs each to the

appellants therein as a compensation to be paid by the State of

Punjab within a stipulated time.

41 In another decision relied upon by the petitioners in

the case of S. Krishnamoorthy and K. Palani Vs. the State of

Tamil Nadu28, it was observed by the Madras High Court that,

there was violation of human rights and the accused who were

charged for the alleged offences were entitled for compensation

to be paid to them by the State. In the said decision, the facts

were that the victim girl was allegedly missing from the residence

of the complainant. The First Information Report came to be

28 2008(1) LW (Cri.) 229

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lodged that she is being kidnapped by the accused persons. The

investigating machinery then recorded the confessional

statements of the accused wherein they purportedly admitted

that they had kidnapped the victim and she was raped and

murdered by them. On the basis of the said confessional

statements they were charge-sheeted in the court of law. The

accused preferred an application under Section 482 of the

Criminal Procedure Code before the High Court of Madras and

contended that they have been falsely implicated in those

proceedings by extorting the confessional statements. They

prayed that the compensation may be awarded to them on

account of their false implication in the proceedings. It was also

pointed out that the victim girl who was allegedly murdered was

alive and she is present before the Court. The victim girl

thereafter filed an affidavit before the Court and stated that the

accused were not concerned with the said crime and on the basis

of the said statement and the circumstances that the confessional

statements were recorded by the police, the High Court observed

that this is in gross violation of the fundamental rights of the

applicants therein and, therefore, directed the State to award

compensation to the said persons. It is pertinent to note that the

alleged role of the petitioners therein was falsified by the victim

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girl and the admission of the victim girl completely exonerates

the said accused persons from the said proceedings. It is also

pertinent to note that the case of the prosecution that the victim

was raped and murdered was falsified as the victim was alive and

was present before the Court and has also stated that there was

no sexual assault on her.

42 In another decision of the Division Bench of this

Court in the case of Niraj Zariwalla it was observed that the

accused were subjected to illegal detention in police custody for

35 hours and it is a gross violation of Articles 21 and 22 of the

Constitution of India and gross violation of Section 41-B of the

Criminal Procedure Code. This Court, therefore, relying upon

several decision of the Apex Court had come to the conclusions

that the petitioners who were aged persons were arrested on 2 nd

December, 2011 at Aurangabad and were brought at Navghar

Police Station at Mulund Mumbai from Aurangabad on 3 rd

December, 2011. They were taken from Aurangabad and they

reached Navghar Police Station, Mulund, Mumbai nearly after 22

hours. They were shown arrested in the morning on 4th December,

2011 and were released on bail in the afternoon. Though the said

petitioners were arrested just before 20.50 on 2nd December,

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2011 at Aurangabad they were shown as arrested in Mumbai at

8.10 on 4th December, 2011. Thus, they were illegally detained by

the police nearly for 35 hours and 40 minutes and, therefore,

there was gross violation of Articles 21 and 22 of the Constitution

of India. In the decision of Ram Swarup Vs. State of Haryana

delivered by the Punjab and Haryana High Court, the Court was

considering a review application preferred at the instance of the

State to test the correctness of the order passed by the said Court

in its jurisdiction under Article 226 of the Constitution of India

granting compensation of Rs.5 lakh to the petitioner. In the said

Review Petition, it was observed that the petitioner/accused was

not responsible for the death of the child but he was the first

complainant and a false case had been foisted on him to screen

some persons connected to politically strong individuals of the

State. In the Review Petition the State had contended that at the

time when decision was rendered by the said Court, the

petitioner therein had already died and that information had not

been suppressed from the Court. The ground for review was that

the compensation for personal injury and humiliation is in the

nature of personal damages which cannot survive to the legal

representatives in terms of Section 306 of the Indian Succession

Act. The Court, therefore, in the Review Petition had considered

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the issue that whether the compensation can be awarded to the

legal representatives after the death of the petitioner therein in

view of the fetters of Section 306 of the Indian Succession Act. It

was observed that the compensation for violation of human right

transcends the frontiers of tort claim and hence the fetters of

Section 306 of Indian Succession Act, cannot apply. It was further

observed that false imputation of rape and murder and

consequential incarceration constitute humiliation to the whole

family and violation of human right. It is pertinent to note that the

petitioner therein was granted compensation in the

circumstances that the said petitioner was falsely implicated in

the case with a view to shield certain politically connected strong

persons and it is in the said circumstances, the Court was pleased

to award compensation which was under challenge by way of

Review Petition before the Punjab and Haryana High Court.

43 In the decision of the Supreme Court in the case of

Rudul Shah Vs. State of Bihar29 it was observed that the

petitioner was detained illegally in the prison for over 14 years

after his acquittal in a full fledged trial. He filed a habeas corpus

petition in the Supreme Court for his release from illegal

29 AIR 1983 SC 1086

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detention. His detention in prison after his acquittal was wholly

unjustified. He contended that he was entitled to be compensated

for his illegal detention and that the Supreme Court ought to pass

an appropriate order for the payment of compensation in the

habeas corpus petition itself. Taking into consideration the great

harm done to the petitioner by the Government of Bihar, the

Supreme Court was pleased to order the State to pay the

petitioner a sum of Rs.30,000/- by way of the interim measure in

addition to the sum of Rs.5,000/- already paid by it. The order of

compensation was in the nature of palliative and it did not

preclude the petitioner from filing a suit to recover appropriate

damages for the State and its erring officer. In the said decision it

was observed as follows:

"10 We ..........

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 violaters in the payment
of monetary compensation. Administrative
sclerosis leading to flagrant infringements of
fundamental rights cannot be corrected by any

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other method open to the judiciary to adopt.
The right to compensation is more 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."

The reliance placed on the order passed by the

Central Information Commission by the petitioner is misplaced.

First of all such an order is not binding on this Court. Secondly, it

is pertinent to note that the appellant therein has asked for the

compensation for the extra detention in jail which had undergone.

The information commissioner therefore placing reliance upon

the several decisions of the Apex Court had awarded

compensation to the said person for undergoing detention in

custody although he was entitled to be released at the earlier

point of time. In the case of Miss. Veena Sippy Vs. Mr.

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Narayan Dumbre and Ors.30, the Division Bench of this Court

considered the issue of illegal detention and awarded

compensation to the aggrieved person. In the said case the

petitioner, a woman was arrested for having committed offence

under Section 117 read with Section 112 of the Bombay Police

Act which was admittedly bailable. No arrest memorandum or

panchanama was drawn, not even an intimation of arrest was

given to the petitioner. The petitioner was also not informed

about her right of seeking bail. This was a case of gross breach of

directions issued by the Apex Court in D.K. Basu's case and also

case of gross and flagrant violation of fundamental right of life

and liberty. The Court further observed that detention of the said

petitioner in police custody was totally unlawful which amounts

to violation of Article 21 of Constitution of India and for illegal

detention the compensation was directed to be awarded to the

petitioner. In the case of Uma Shankar Sitani Vs.

Commissioner of Police, Delhi, the issue was with regards to

the false implication of the petitioner therein. The accused had

contended that he has been falsely implicated in the case on

account of business rivalry. The address of complainant noted in

police station was found to be non-existent. The entry in police

30 2012 All MR (Cri.) 1263

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diary was supporting the plea of the accused that the complaint

was lodged at the instance of business rival. The Supreme Court

therefore directed that the matter may be investigated by the CBI

to find out the truth.

44 In Perumal's case the Hon'ble Supreme Court

observed that it was an appropriate case where High Court ought

to have exercised the powers under Section 195 of Cr.P.C. for an

action under Section 211 of I.P.C. The police officers therein had

filed a charge-sheet against the accused with an allegation that

the survivor was pregnant, inspite of definite medical opinion that

she was not pregnant. The accused was tried for offences under

sections 417, 506(1) of I.P.C. and was acquitted by the trial Court.

In the circumstances, it was observed that the power of

superintendence like any other impliedly carries an obligation to

exercise powers in an appropriator case to maintain the majesty

of the judicial process and the purity of legal system. The

appellant therein had alleged that he had been prosecuted on the

basis of a palpably false statement coupled with the further

allegation that the respondent therein did so far extraneous

considerations. In the case of Jugal Kishore, the Madhya Pradesh

High Court had quashed the criminal proceedings in exercise of

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powers under Section 482 of Cr.P.C. It was observed that the

proceedings were vexatious, oppressive and based on one sided

investigation. The accused was prosecuted for an offence of

criminal trespass, whereas, he claimed to be the tenant of the

premises. It was thus stated that to put an accused person to

long lasting trial on an incomplete and one sided investigation

and promise to consider full facts only when they are brought

before Court at defence stage amounts to ignoring default of

investigating officer and clothe him with authority to harass the

accused.

In the case of Bharat Salvi, relied upon by the

petitioner, the Division Bench of this Court has dealt with

situation where directions of Hon'ble Supreme Court in Arnesh

Kumar have not been followed. The petitioner nos. 3 and 4

therein were arrested without ascertaining their complicity and

although the offences were bailable, they were produced before

Court and were remanded to custody from time to time. Their bail

applications were not heard by Sessions Court for long time. It

was, further observed that, despite the offences being bailable,

the police and courts were responsible for detaining the said

accused in custody. The Court, therefore, ordered enquiry against

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the errant police officers and concerned judicial officers in

accordance with directions of Apex Court in Arnesh Kumar's case.

We are of the opinion that the said decisions were rendered in the

facts and circumstances of those cases, which are not applicable

in the present case.

45 From the observations made by the Courts in all the

aforesaid decisions, it is clear that the compensation was

awarded to the aggrieved person therein in the facts and

circumstances of the said cases. The cases related to illegal

detention or undergoing an extra detention, although, some of

the petitioners were released by the Court. The cases also related

to the false implication of the accused therein which was spelt out

by the evidence on record. It is pertinent to note that in some of

the cases which are relied upon by the petitioner although it was

the prosecution case that the victim was murdered it was

revealed that the victim was alive and, therefore, the Court found

that there was gross violation of the fundamental right of the

petitioner therein and, hence for violation of fundamental rights,

the compensation was awarded.

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46 In the case of D.K. Basu Vs. State of Bengal31, the

Supreme Court was pleased to observe that for established

breach of fundamental rights, the compensation can be granted

under public law by the Supreme Court and by the High Courts in

addition to private remedy for tortious action and punishment to

wrongdoers under criminal laws. It was further observed that

custodial violence including torture and death in the lockups

strikes a blow at the rule of law which demands that the powers

of the executive should not only be derived from law but also that

the same should be limited by law. Custodial violence is a matter

of concern. It is aggravated by the fact that it is committed by

persons who are supposed to be the protectors of the citizen. It is

committed under the shield of uniform and authority in the four

walls of the police station or lockup. The victim being totally

helpless. The protection of an individual from torture and abuse

by the police and other law enforcing officers is a matter of deep

concern in a free society. However, in paragraph 31 of the said

decision it was observed as follows:

"31 There is one other aspect also which needs out
consideration, We are conscious of the fact that
the police in India have to perform a difficult

31 1997 SC (Cri.) Page 92

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and delicate task, particularly in view of the
deteriorating law and order situation, communal
riots, political turmoil, student unrest, terrorist
activities, and among others the increasing
number of underworld and armed gangs and
criminals, Many hard core criminals like
extremist, the terrorists, drug peddlers,
smugglers who have organized gangs, have
taken strong roots in the society. It is being said
in certain quarters that with more and more
liberalisation and enforcement of fundamental
rights, it would lead to difficulties in the
detection of crimes committed by such
categories of hardened criminals by soft
peddling interrogation. It is felt in those
quarters that if we lay to much of emphasis on
protection of their fundamental rights and
human rights such criminals may go scot-free
without exposing any element or iota or
criminality with the result, the crime would go
unpunished and in the ultimate analysis the
society would suffer. The concern is genuine and
the problem is real. To deal with such a
situation, a balanced approach is needed to
meet the ends of justice. This all the more so, in
view of the expectation of the society that police
must deal with the criminals in an efficient and
effective manner and bring to book those who
are involved in the crime. The cure cannot,

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however, be worst than the disease itself."

From the observations made by the Apex Court

and this Court in the various decisions referred to hereinabove, it

is implicit that gross violation of fundamental rights of the

petitioners/ victim/victims therein would result into violation of

Article 21 of Constitution of India. For the reasons which are

narrated hereinabove it is ample clear that the petitioner herein

cannot claim compensation by stating that there is violation of

Article 21 of the Constitution of India. There is no infringement

of fundamental right. It is already observed hereinabove that the

petitioner was acquitted by the appellate court on the ground

that there was a doubt in the prosecution case, and, therefore,

benefit of doubt given to him. He was subjected to prosecution

by following procedure established by law. We have not found

that this is a case wherein compensation can be awarded to the

petitioner by holding that there is violation of his fundamental

right guaranteed under the Constitution of India.

47 In the case of Neelabati Behera alias Lalita

Behera Vs. State of Orissa and Ors.32, the Apex Court has

observed that the award of compensation in public law

32 1993 SCC (Cri.) page 527

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proceedings the object of which is different from compensation in

private tort law and action. In case of violation of fundamental

right by the State's instrumentalities or servants, Court can

direct the State to pay compensation to the victim or his heir by

way of 'monetary amends' and redressal. In the said case, the

mother of the victim had filed a petition alleging death of his son

aged 22 years in police custody in violation of Article 21 and,

thus, had claimed compensation for the custodial death which

was established. In paragraphs 20 and 22 of the said decision it

was observed as follows:

"20 We respectfully concur with the view that. the
court is not helpless and the wide powers
given to this Court by Article 32, which itself is
a fundamental right, imposes a constitutional
obligation on this Court to forge such new
tools, which may be necessary for doing
complete justice and enforcing the
fundamental rights guaranteed in the
Constitution, which enable the award of
monetary compensation in appropriate cases,
where that is the only mode of redress
available. The power available to this Court
under Article 142 is also an enabling provision
in this behalf The contrary view would not
merely render the court powerless and the

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constitutional guarantee a mirage but may, in
certain situations, be an incentive to
extinguish life, if for the extreme
contravention the court is powerless to grant
any relief against the State, except by
punishment of the wrongdoer for the resulting
offence, and recovery of damages under
private law, by the ordinary process. It 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 not, 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.

21......

22 The above discussion indicates the principles
on which the Court's power under Articles 32
and 226 of the Constitution is exercised to
award monetary compensation for
contravention of a fundamental right. This was

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indicated in Rudul Sah and certain further
observations therein adverted to earlier, which
may tend to minimize the effect of the
principle indicated therein, do not really
detract from that principle. This is how the
decisions of this Court in Rudul Sah and
others in that line have to be understood and
Kasturilal distinguished therefrom. We have
considered this question at some length in
view of the doubt raised, at times, about the
propriety of awarding compensation in such
proceedings, instead of directing the claimant
to resort to the ordinary process of recovery of
damages by recourse to an action in tort. In
the present case, on the finding reached, it is
a clear case for award of compensation to the
petitioner for the custodial death of her son."

In the said case, the deceased was arrested by

the police, handcuffed and kept in police custody. The next day,

his dead body was found on a railway track.

It would be significant to reproduce the

relevant observations of the Apex Court in paragraphs 10 and 35

of the said decision which are as follows:

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"10 Award of compensation in a proceedings under
Article 32 this Court or by the High Court
under Article 226 of the Constitution of
India is a remedy available in public law,
based on strict liability for contravention
of fundamental rights, to which the principle
of sovereign immunity does not apply, even
though it may be available as a defense in
private law in action based on tort.

35 Of course, relief in exercise of the power
under Article 32 or 226 of the Constitution
of India would be granted only once it is
established that there has been an
infringement of the fundamental rights of
the citizens and no other form of
appropriate redressal by the court in the
facts and circumstances of the case is
possible........... 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 situation to which
separate proceedings and principles apply and
the Courts have to act firmly but with certain
amount of circumspection and self restraint,
lest proceedings under Article 32 or 226 are
misused as a disquisition substitute for civil
action in private law."

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In paragraph 31 of the same decision, it is observed

that, "convicts, prisoners or under trial are not denuded of their

fundamental rights under Article 21 and it is only such

restrictions, as are permitted by law, which can be imposed on

the enjoyment of the fundamental rights by such persons.

It is an obligation of the State to ensure that there is no

infringement of indefeasible rights of a citizen to life except in

accordance with law, while the citizen is in its custody. The

precious right guaranteed by Article 21 of the Constitution of

India cannot be denied to convicts, under-trials or other persons

in custody, except according to procedure established by law."

48 The decision relied upon by the learned APP is very

significant in the present case. In the said decision in the case of

State of Rajasthan Vs. Jainuddin Shaikh, the Apex Court was

pleased to consider the issue of grant of compensation to the

accused persons. In the said case, the trial Court had awarded

compensation of an amount of Rs.1,50,000/- to each of the

accused therein who were prosecuted for the offences under

Narcotic Drugs and Psychotropic Substances Act, 1985 (for short

"NDPS Act"). The said decision was confirmed by the High Court

which was challenged by the State before the Apex Court. The

facts as emanated from the said proceedings were quoted in

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paragraph 4 of the said decision which is reproduced herein-

below:

"4 The prosecution in order to establish the
charges, examined six witnesses. Be it noted,
the sample that was sent for examination to the
forensic science laboratory on 8-11-2011,
chemical analysis thereof was done on 9-9--
2013 and the report was submitted to the Court
on 28-9-2013 and it was exhibited as Ext. P-11.
The said document revealed that the sample
contained "caffeine" and "Paracetamol" and it
did not contain diacety Imorphine (heroin) or
alkaloid of "afeem" (opium). As the report
indicated that the said items were not covered
under the category of intoxicant under the
NDPS Act, the trial court came to the
conclusion that the charges were not
established in any manner."

49 The trial Court in the aforesaid case observed that the

case is not made out against the accused therein and in exercise

of the powers under Section 250 of the Criminal Procedure Court,

compensation was awarded to him for malicious prosecution and,

accordingly, directed the payment of Rs.1,50,000/- each to the

accused persons. The trial Court while recording the conclusion

observed that, it is a matter of concern that the officer executing

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the seizure has no experience with respect to intoxicant material.

P.W.5 had found the material as intoxicant merely by checking. It

shows ignorance of the officer about identification of intoxicant

who executed the seizure. No attempt was made by the officer

making seizure that he should have either tested the material,

which was seized or same should have been provided to other

persons, who were present at the time of seizure, to ensure

whether such material is intoxicant or not. It is the responsibility

of State Government to send the material for chemical analysis.

The report of forensic laboratory was submitted to court

belatedly by subjecting it to chemical analysis after two years. It

cannot be held as just and proper procedure. The Apex Court set

aside the orders passed by the subordinate Courts and was

pleased to observe that there is nothing to remotely suggest that

there was any malice. It was further observed that nothing has

been brought by way of evidence to show that the prosecution

had falsely implicated the accused person. There is no material

whatsoever to show that the prosecution has deliberately roped

in the accused person. Thus, the Apex Court had set aside the

order of compensation awarded to the accused persons by the

trial Court which was confirmed by the High Court.

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50 The observations in paragraph 14 are quoted

hereinbelow which are as follows:

"Regard being had to the aforesaid enunciation of
law, the factual matrix of the case at hand is required
to be appreciated. On a close scrutiny of the
judgment of the learned trial Judge, it is evident that
he has been guided basically by three factors,
namely, that the State Government has not
established Forensic Science Laboratories despite
the orders passed by this Court; that there has been
delay in getting the seized articles tested; and that
the seizing officer had not himself verified by using
his experience and expertise that the contraband
article was opium. As far as the first aspect is
concerned, it is a different matter altogether. As far
as the delay is concerned that is the fulcrum of the
reasoning for acquittal. It is apt to note that the
police while patrolling had noticed the accused
persons and their behaviour at that time was
suspicious. There is nothing on record to suggest
that there was any lapse on the part of the seizing
officer. Nothing has been brought by way of evidence
to show that the prosecution had falsely implicated
them. There is nothing to remotely suggest that
there was any malice. The High Court, as is noticed,
has not applied its mind to the concept of grant of
compensation to the accused persons in a case of
present nature. There is no material whatsoever to

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show that the prosecution has deliberately roped in
the accused persons. There is no malafide or malice
like the fact situation which are projected in the case
of Hardeep Singh (supra). Thus, the view expressed
by the learned trial Judge is absolutely indefensible
and the affirmance thereof by the High Court is
wholly unsustainable."

51 We have already made observations hereinabove that

the petitioner has not succeeded in attributing any malafides or

malice to the investigating machinery or to the victim who had

impleaded him as an accused in the said proceedings. The

attributes of malafides or malice are not reflected either in the

cross-examination of the prosecution witnesses at the instance of

the defence, nor in the statement of the accused which was

recorded under Section 313 of the Criminal Procedure Code. Nor

there were any arguments in that regard before the trial Court or

before the Appellate Court. It is reiterated hereinabove. We have

already observed that the petitioner was entitled for the benefit

of doubt as observed by the Appellate Court on account of

infirmities in the evidence or the doubt expressed by the Court

with regard to the identification of the petitioner - accused. It is

well settled that relief in exercise of powers under Article 226 of

Constitution of India can be granted only when it is established

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that there was or has been infringement of fundamental right of

the citizen and no other form of appropriate redressal by the

Court in the facts and circumstances of the case is possible. It is

well settled that the Courts are empowered to award the

compensation where it is a established fact that infringement was

patent and incontrovertible and the violation was gross. The

petitioner was subjected to trial by following procedure

established by law. For all the reasons mentioned hereinabove,

we are not inclined to award compensation as prayed by the

petitioner and, we are, therefore, of the opinion that the

petitioner is not entitled to any relief as prayed in the petition.

The grant of compensation or the relief sought by the petitioner

seeking investigation is also not warranted in the present

proceeding.

52 We, therefore, pass the following order:

:: O R D E R ::

(i) Writ Petition stands dismissed;

(ii) Criminal Application No.92 of 2016 is rejected;

(ii) No order as to costs.

(PRAKASH D. NAIK, J.) (S.C. DHARMADHIKARI, J.)

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