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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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rpa 8/88 cr.wp-3960-15.docpetitioner 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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rpa 10/88 cr.wp-3960-15.docdirect 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;::: Uploaded on - 05/05/2017 07/05/2017 00:55:27 :::
rpa 11/88 cr.wp-3960-15.doc(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
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rpa 12/88 cr.wp-3960-15.docfrom 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 forruining 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::: Uploaded on - 05/05/2017 07/05/2017 00:55:27 :::
rpa 13/88 cr.wp-3960-15.docCourt 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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rpa 14/88 cr.wp-3960-15.doc9 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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rpa 15/88 cr.wp-3960-15.docdeprived 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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rpa 16/88 cr.wp-3960-15.docdirected 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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rpa 17/88 cr.wp-3960-15.docmachinery 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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rpa 18/88 cr.wp-3960-15.doccommitted. 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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rpa 19/88 cr.wp-3960-15.docofficers 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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rpa 20/88 cr.wp-3960-15.docJune, 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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rpa 21/88 cr.wp-3960-15.doc15 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
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rpa 22/88 cr.wp-3960-15.doc(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
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rpa 23/88 cr.wp-3960-15.docthat 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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rpa 24/88 cr.wp-3960-15.doceverything 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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rpa 25/88 cr.wp-3960-15.docpolice 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:27 :::
rpa 26/88 cr.wp-3960-15.docand 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:27 :::
rpa 27/88 cr.wp-3960-15.docBench 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.::: Uploaded on - 05/05/2017 07/05/2017 00:55:27 :::
rpa 28/88 cr.wp-3960-15.doc19 In M.C. Mehta Vs. Union of India17, a
Constitution Bench of this Court while
considering the question whethercompensation 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 should17 1987 (1) SCC 395
::: Uploaded on - 05/05/2017 07/05/2017 00:55:27 :::
rpa 29/88 cr.wp-3960-15.docappear 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)
::: Uploaded on - 05/05/2017 07/05/2017 00:55:27 :::
rpa 30/88 cr.wp-3960-15.docIn 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::: Uploaded on - 05/05/2017 07/05/2017 00:55:27 :::
rpa 31/88 cr.wp-3960-15.doc15.1.94 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::: Uploaded on - 05/05/2017 07/05/2017 00:55:27 :::
rpa 32/88 cr.wp-3960-15.docincontrovertible 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 rightsguaranteed under Article 21 is established,
courts may award compensation in a
proceeding under Article 32 or 226. However,::: Uploaded on - 05/05/2017 07/05/2017 00:55:27 :::
rpa 33/88 cr.wp-3960-15.docbefore 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::: Uploaded on - 05/05/2017 07/05/2017 00:55:27 :::
rpa 34/88 cr.wp-3960-15.docscars. 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:27 :::
rpa 35/88 cr.wp-3960-15.docof 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::: Uploaded on - 05/05/2017 07/05/2017 00:55:27 :::
rpa 36/88 cr.wp-3960-15.docpractice. 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::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 37/88 cr.wp-3960-15.docthem. 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 38/88 cr.wp-3960-15.doccompensation 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 39/88 cr.wp-3960-15.docHon'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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 40/88 cr.wp-3960-15.docproved 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 41/88 cr.wp-3960-15.docparade 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 42/88 cr.wp-3960-15.docfalse 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 43/88 cr.wp-3960-15.docapprehended 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.::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 44/88 cr.wp-3960-15.doc
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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 45/88 cr.wp-3960-15.docexercising 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 46/88 cr.wp-3960-15.docfollows:
"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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 47/88 cr.wp-3960-15.docstatement 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 48/88 cr.wp-3960-15.docfind 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 49/88 cr.wp-3960-15.docCourt 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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rpa 50/88 cr.wp-3960-15.docidentification 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 51/88 cr.wp-3960-15.docof 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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rpa 52/88 cr.wp-3960-15.dochis 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 53/88 cr.wp-3960-15.docPriti 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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rpa 54/88 cr.wp-3960-15.dococcurrence 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 55/88 cr.wp-3960-15.docsubsequently 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 56/88 cr.wp-3960-15.docabove, 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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rpa 57/88 cr.wp-3960-15.docsustain 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 58/88 cr.wp-3960-15.docdetention, 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::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 59/88 cr.wp-3960-15.docestablished 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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rpa 60/88 cr.wp-3960-15.docRule 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::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 61/88 cr.wp-3960-15.doc" 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::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 62/88 cr.wp-3960-15.docthat 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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rpa 63/88 cr.wp-3960-15.docunfairly 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 64/88 cr.wp-3960-15.docfabricated 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 65/88 cr.wp-3960-15.docof 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 66/88 cr.wp-3960-15.doclodged 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 67/88 cr.wp-3960-15.docgirl 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,
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 68/88 cr.wp-3960-15.doc2011 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 69/88 cr.wp-3960-15.docthe 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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rpa 70/88 cr.wp-3960-15.docdetention. 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::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 71/88 cr.wp-3960-15.docother 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.
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 72/88 cr.wp-3960-15.docNarayan 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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rpa 73/88 cr.wp-3960-15.docdiary 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
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 74/88 cr.wp-3960-15.docpowers 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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rpa 75/88 cr.wp-3960-15.docthe 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.
::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 76/88 cr.wp-3960-15.doc46 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 difficult31 1997 SC (Cri.) Page 92
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rpa 77/88 cr.wp-3960-15.docand 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,::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 78/88 cr.wp-3960-15.dochowever, 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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rpa 79/88 cr.wp-3960-15.docproceedings 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::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 80/88 cr.wp-3960-15.docconstitutional 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::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 81/88 cr.wp-3960-15.docindicated 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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rpa 82/88 cr.wp-3960-15.doc
"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."::: Uploaded on - 05/05/2017 07/05/2017 00:55:28 :::
rpa 83/88 cr.wp-3960-15.doc
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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rpa 84/88 cr.wp-3960-15.docparagraph 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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rpa 85/88 cr.wp-3960-15.docthe 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.
::: Uploaded on - 05/05/2017 07/05/2017 00:55:29 :::
rpa 86/88 cr.wp-3960-15.doc50 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::: Uploaded on - 05/05/2017 07/05/2017 00:55:29 :::
rpa 87/88 cr.wp-3960-15.docshow 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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rpa 88/88 cr.wp-3960-15.docthat 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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