Rudul Sah Vs. State of Bihar & ANR
 INSC 87 (1 August 1983)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) SEN, AMARENDRA NATH (J) MISRA RANGNATH
CITATION: 1983 AIR 1086 1983 SCR (3) 508 1983
SCC (4) 141 1983 SCALE (2)103
CITATOR INFO :
F 1986 SC 494 (3) RF 1987 SC1086 (7)
Constitution of India-Art. 32-Scope
of-Whether in a habeas corpus petition under Art. 32 Supreme Court can grant
compensation for deprivation of a fundamental right.
Constitution of India-Art. 21-Scope
of-whether covers right to compensation for its violation.
The petitioner who was detained in prison for
over 14 years after his acquittal filed a habeas corpus petition under Art. 32
of the Constitution praying for his release on the ground that his detention in
the jail was unlawful. He also asked for certain other reliefs including
compensation for his illegal detention. When the petition came up for hearing
the Court was informed by the respondent State that the petitioner had already
been released from the jail.
Allowing the petition, ^
HELD: The petitioner's detention in the
prison after his acquittal was wholly unjustified.
Article 32 confers power on the Supreme Court
to issue directions or orders or appropriate writs for the enforcement of any
of the rights conferred by Part III of the Constitution. Article 21 which
guarantees the right to life and liberty will be denuded of its significant
content if the power of this Court were limited to passing orders of release
from illegal detention. One of the telling ways in which the violation of that
right can reasonably be prevented and due compliance with the mandate of
Article 21 secured, is to mulct its a violators in the payment of monetary
compensation. The right to compensation is some palliative for the unlawful
acts of instrumentalities which act in the name of public interest and which
present for their protection the powers of the State as a shield.
Respect for the rights of individuals is the
true bastion of democracy. Therefore, the State must repair the damage done by
its officers to their rights. [513 A-C, 514 B-E] In the circumstances of the
instant case the refusal to pass an order of compensation in favour of the
petitioner will be doing mere lip-service to his fundamental right to liberty
which the State Government has so grossly 509 violated. Therefore, as an
interim measure the State must pay to the petitioner a further sum of Rs.
30,000 in addition to the sum of Rs 5,000 already paid by it. This order will
not preclude the petitioner from bringing a suit to recover appropriate damages
from the State and its erring officials. [514 B,F,H]
ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 1987 of 1982.
(Under Article 32 of the Constitution of
India) Mrs. K. Hingorani for the Petitioner.
D. Goburdhan for the Respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, C.J.: This Writ Petition discloses a sordid and disturbing state
of affairs. Though the petitioner was acquitted by the Court of Sessions,
Muzaffarpur, Bihar, on June 3, 1968 he was released from the jail on October
16, 1982, that is to say, more than 14 years after he was acquitted. By this
Habeas Corpus petition, the petitioner asks for his release on the ground that
his detention in the jail is unlawful. He has also asked for certain ancillary
reliefs like rehabilitation, reimbursements of expenses which he may incur for
medical treatment and compensation for the illegal incarceration.
This petition came up before us on November
22, 1982 when we were informed by Shri Goburdhan, counsel for the State of
Bihar, that the petitioner was already released from the jail. The relief
sought by the petitioner for his release thus became infructuous but despite
that, we directed that a Notice to show cause be issued to the State of Bihar
regarding prayers 2, 3 and 4 of the petition. By prayer No. 2 the petitioner
asks for medical treatment at Government expense, by prayer No. 3 he asks for
an ex gratia payment for his rehabilitation, while by prayer No 4 he asks for
compensation for his illegal detention in the jail for over 14 years.
We expected a prompt response to the Show
Cause Notice from the Bihar Government at least at this late stage, but they H
offered no explanation for over four months. The Writ Petition was listed before
us on March 31, 1983 when Shri Goburdhan restated that the petitioner had been
already released from the jail.
510 We passed a specific order on that date
to the effect that the release of the petitioner cannot be the end of the
matter and we called upon the Government of Bihar to submit a written
explanation supported by an affidavit as to why the petitioner was kept in the
jail for over 14 years after his acquittal. On April 16, 1983, Shri Alakh Deo
Singh, Jailor, Muzaffarpur Central Jail, filed an affidavit in pursuance of
that order. Shorn of its formal recitals, the affidavit reads thus:
"2. That the petitioner was received on
25.3.67 from Hazaribagh Central Jail and was being produced regularly before
the Additional Sessions Judge, Muzaffarpur and on 30.8.68 the learned Judge
passed the following order:
"The accused is acquitted but he should
be detained in prison till further order of the State Government and I.G.
(Prisons), Bihar." (A true copy of the same is attached as Annexure I).
3. That accused Rudul Sah was of unsound mind
at the time of passing the above order. This information was sent to the Law
Department in letter No. 1838 dated 10.5.74 of the Superintendent, Central
Jail, Muzaffarpur through District Magistrate, Muzaffarpur.
4. That the Civil Surgeon, Muzaffarpur,
reported on 18.2.77 that accused Rudul Sah was normal and this information was
communicated to the Law Department on 21.2.77.
5. That the petitioner, Rudul Shah was
treated well in accordance with the rules in the Jail Manual, Bihar, during the
period of his detention.
6. That the petitioner was released on
16.10.82 in compliance with the letter No. 11637 dated 14.10 82 of the Law
Department." The Writ Petition came up before us on April 26, 1983 when we
adjourned it to the first week of August 1983 since it was not 511 clear either
from the affidavit filed by the Jailor or from the order of the learned
Additional Sessions Judge, Muzaffarpur, which is annexed to the affidavit as
Annexure I, as to what was the basis on which it was stated in the affidavit
that the petitioner was of unsound mind or the reason why the learned
Additional Sessions Judge directed the detention of the petitioner in jail,
until further orders of the State Government and the Inspector General of Prisons.
The writ petition has come up for hearing
once again before us today. If past experience is any guide, no useful purpose
is likely to be served by adjourning the petition in the hope that the State
authorities will place before us satisfactory material to explain the continued
detention of the petitioner in jail after his aquittal. We apprehend that the
present state of affairs, in which we are left to guess whether the petitioner
was not released from the prison for the benign reason that he was insane, is
not likely to improve in the near future.
The Jailor s affidavit leaves much to be
desired. It narrates with an air of candidness what is notorious, for example,
that the petitioner was not released from the jail upon his acquittal and that
he was reported to be insane.
But it discloses no data on the basis of
which he was adjudged insane, the specific measures taken to cure him of that
affliction and, what is most important, whether it took 14 years to set right
his mental imbalance. No medical opinion is produced in support of the
diagnosis that he was insane nor indeed is any jail record produced to show
what kind of medical treatment was prescribed for and administered to him and
for how long. The letter (No. 1838) dated May 10, 1974 which, according to
paragraph 3 of the affidavit, was sent to the Law Department by the
Superintendent of the Central Jail, Muzaffarpur, is not produced before us.
There is nothing to show that the petitioner was found insane on the very date
of his acquittal. And, if he was insane on the date of acquittal, he could not
have been tried at all for the simple reason that an insane person cannot enter
upon his defence Under the Code of Criminal Procedure, insane persons have
certain statutory rights in regard to the procedure governing their trial.
According to paragraph 4 of the affidavit, the Civil Surgeon, Muzaffarpur,
reported on February 18, 1977 that the petitioner was normal and that this
information was communicated to the Law Department on February 21, 1977. Why was
the petitioner not released for over 5&1/2 years thereafter ? It was on
october 14, 1982 that the Law 512 Department of the Government of Bihar
directed that the petitioner should be released. Why was the Law Department so
insensitive to justice ? We are inclined to believe that the story of the
petitioner's insanity is an afterthought and is exaggerated out of proportion.
If indeed he was insane, at least a skeletal medical record could have been
produced to show that he was being treated for insanity. In these
circumstances, we are driven to the conclusion that, if at all the petitioner
was found insane at any point of time, the insanity must have supervened as a
consequence of his unlawful detention in jail. A sense of helplessness and
frustration can create despondency and persistent despondency can lead to a
kind of mental imbalance.
The concerned Department of the Government of
Bihar could have afforded to show a little more courtesy to this Court and to
display a greater awareness of its responsibilities by asking one of its senior
officers to file an affidavit in order to explain the callousness which
pervades this case. Instead, the Jailor has been made a scapegoat to own up
vicariously the dereliction of duty on the part of the higher officers who
ought to have known better. This is not an isolated case of its kind and we
feel concerned that there is darkness all around in the prison administration
of the State of Bihar. The Bhagalpur blindings should have opened the eyes of
the Prison Administration of the State. But that bizarre episode has taught no
lesson and has failed to evoke any response in the Augean Stables. Perhaps, a
Hercules heas to be found who will clean them by diverting two rivers through
them, not the holy Ganga though. We hope (and pray) that the higher officials
of the State will find time to devote their personal attention to the breakdown
of Prison Administration in the State and rectify the grave injustice which is
being perpetrated on helpless persons. The High Court of Patna should itself
examine this matter and call for statistical data from the Home Department of
the Government of Bihar on the question of unlawful detentions in the State
Jails A tabular statement from each jail should be called for, disclosing how
many convicts have been in jail for more than 10 years, 12 years, 14 years and
for over 16 years. The High Court will then be in a position to release
prisoners who are in unlawful detention in the jails and to ask the State
Government to take steps for their rehabilitation by payment of adequate
compensation wherever necessary.
513 That takes us to the question as to how
the grave injustice which has been perpetrated upon the petitioner can be
rectified, in so far as it lies within our power to do in the exercise of our
writ jurisdiction under Article 32 of the Constitution. That article confers
power on the Supreme Court to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and
certiorari, whichever may be appropriate, for the enforcement of any of the
rights conferred by Part III. The right to move the Supreme Court by
appropriate proceedings for the enforcement of the rights conferred by Part III
is "guaranteed", that is to say, the right to move the Supreme Court
under Article 32 for the enforcement of any of the rights conferred by Part III
of the Constitution is itself a fundamental right.
It is true that Article 32 cannot be used as
a substitute for the enforcement of rights and obligations which can be
enforced efficaciously through the ordinary processes of Courts, Civil and
Criminal. A money claim has therefore to be agitated in and adjudicated upon in
a suit instituted in a court of lowest grade competent to try it.
But the important question for our
consideration is whether in the exercise of its jurisdiction under article 32,
this Court can pass an order for the payment of money if such an order is in
the nature of compensation consequential upon the deprivation of a fundamental
right. The instant case is illustrative of such cases. The petitioner was
detained illegally in the prison for over fourteen years after his acquittal in
a full-dressed trial. He filed a Habeas Corpus petition in this Court for his
release from illegal detention. He obtained that relief, our finding being that
his detention in the prison- after his acquittal was wholly unjustified. He
contends that he is entitled to be compensated for his illegal detention and
that we ought to pass appropriate order for the payment of compensation in this
Habeas Corpus petition itself.
We cannot resist this argument. We see no
effective answer to it save the stale and sterile objection that the petitioner
may, if so advised, file a suit to recover damages from the State Government.
Happily, the State's Counsel has not raised that objection. The petitioner
could have been relegated to the ordinary remedy of a suit if his claim to
compensation was factually controversial, in the sense that a civil court may
or may not have upheld his claim. But we 514 have no doubt that if the
petitioner files a suit to recover damages for his illegal detention, a decree
for damages would have to be passed in that suit, though it is not possible to
predicate, in the absence of evidence, the precise amount which would be
decreed in his favour. In these circumstances, the refusal of this Court to
pass an order of compensation in favour of the petitioner will be doing mere
lip-service to his fundamental right to liberty which the State Government has so
grossly violated. Article 21 which guarantees the right to life and liberty
will be denuded of its significant content if the power of this Court were
limited to passing orders to release from illegal detention. One of the telling
ways in which the violation of that right can reasonably be prevented and due
compliance with the mandate of Article 21 secured, is to mulct its violaters in
the payment of monetary compensation.
Administrative sclerosis leading to flagrant
infringements of fundamental rights cannot be corrected by any other method
open to the judiciary to adopt. The right to compensation is some palliative
for the unlawful acts of instrumentalities which act in the name of public
interest and which present for their protection the powers of the State as a
shield. If civilization is not to perish in this country as it has perished in
some others too well-known to suffer mention, it is necessary to educate
ourselves into accepting that, respect for the rights of individuals is the
true bastion of democracy. Therefore, the State must repair the damage done by
its officers to the petitioner's rights.
It may have recourse against those officers.
Taking into consideration the great harm done
to the petitioner by the Government of Bihar, we are of the opinion that, as an
interim measure, the State must pay to the petitioner a further sum of Rs.
30,000 (Rupees thirty- thousand) in addition to the sum of Rs. 5,000 (Rupees
five thousand) already paid by it. The amount shall be paid within two weeks
from today. The Government of Bihar agrees to make the payment though, we must
clarify, our order is not based on their consent.
This order will not preclude the petitioner
from bringing a suit to recover appropriate damages from the state and its
erring officials. The order of compensation passed by us is, as we said above,
in the nature of a palliative. We cannot leave the petitioner penniless until
the end of his suit, the many appeals and the execution proceedings. A
full-dressed debate on the nice points of fact and law which takes 515 place
leisurely in compensation suits will have to await the filing of such a suit by
the poor Rudul Sah. The Leviathan will have liberty to raise those points in
that suit. Until then, we hope, there will be no more Rudul Sahs in Bihar or
H.L.C. Petition allowed.