Sharda Narayan Bhongade vs Surendra Jagmohan Pali And Anr.
2002 Latest Caselaw 953 Bom

JUDGMENT

V.M. Kanade, J.

1. The petitioner has sent a letter dated 6-2-2002 to this Court which was converted into a Criminal Writ Petition. Initially on 4-3-2002, the learned A.P.P. had taken two weeks time to take instructions in the said matter and an affidavit was filed on behalf of the Government on 16-3-2002. On 18-3-2002, Mrs. Maldhure, Advocate was appointed in this case to represent the petitioner and a direction was given to the office to supply all the relevant papers to the learned Advocate. Mrs. Maldhure, thereafter took instructions on behalf of the petitioner and filed an affidavit stating the grievances of the petitioner on oath which was solemnly affirmed on 5-4-2002. Thereafter, the learned counsel appearing on behalf of the petitioner and respondents were heard and Rule was granted in this petition and it was made returnable in the second week of June, 2002.

2. In spite of the notice issued by this Court, the respondent No. 1 who is the concerned Police Officer and who had investigated the matter, did not remain present and, therefore, directions were given by this Court to the concerned Superintendent of Police to ensure that respondent No. 1 remains present on the next date before this Court. On 28-6-2002, respondents 3 and 4 were deleted as in fact they were not necessary parties in the petition and no relief was claimed against them. The matter was thereafter finally heard at length and we have heard the learned advocate appearing on behalf of the petitioner as also the respondents.

3. The brief facts of the present case are as under :

The petitioner has approached this Court by sending a letter which was converted into the criminal Writ Petition under Article 226 of the Constitution of India. The petitioner is a housewife and she is residing at Manegaon (Bazar), Tah. and Distt. Bhandara for the last 15 years with her family. Her husband Narayan Bhongade is working as Laboratory Assistant at a local School viz. Chaityanaya Vidyalaya, Manegaon (Bazar). The case of the petitioner is that her family consisted of 8 persons which consists of 3 daughters, one son, husband and her mother-in-law and father-in-law and that salary of her husband is the only source of income on which she has to maintain her large family. The petitioner is a housewife and was not concerned at any time with any political activity or was never a worker of any political party.

4. It is the case of the petitioner that on 5-3-1998 the Police from Bhandara Police Station came to her residence with an arrest warrant from the Court of Judicial Magistrate, First Class, Kuhi and the petitioner was shocked to see the arrest warrant. The petitioner's case is that she has been a law abiding citizen and has never done anything for which an offence could be registered against her.

5. The petitioner attended the Court of Judicial Magistrate, First Class, Kuhi along with her husband on 30-3-1998 and enquired about the complaint which was registered against her. The petitioner was shocked and surprised to know that an offence under Section 143 of the Indian Penal Code was registered against her for participation in Morcha that was taken out at Ambhora (Khurd) on 21-11-1995. From the complaint which was lodged by the Police Station Officer, Veltur, Post: Veltur, Tan. Kuhi, Distt. Nagpur, it revealed that on 21-11-1995 an inaugural function was arranged at the Gose Lift Irrigation Project at Ambhora (Khurd) at the hands of the Hon'ble Minister Shri Mahadeorao Shivankar at 12.00 O'clock and about 15 to 20 residents of Ambhora (Khurd) took out a Morcha on 21-11-1995 at about 3.30 p.m. and shouted slogans of "Murdabad" against the Hon'ble Minister and an offence was registered against the participants under Section 143 of the Indian Penal Code. It is an admitted position that apart from shouting slogans "Murdabad" none of the said participants had done anything or had acted in a violent manner,

6. It is the case of the petitioner that she was not concerned in any way with the aforesaid Morcha and that the place where the Morcha had arranged was 125 KM from her residence and that she had been residing at Manegaon (Bazar) for the last 15 to 16 years along with her husband and, therefore, she was not concerned or had gone at any time to the said village Ambhora (Khurd) which was at the distance of more than 125 to 150 KM. It is the case of the petitioner that the petitioner was not informed about the registration of the said offence against her. The petitioner was neither communicated anything by the Police nor she received any notice or summons from the Court of the Judicial Magistrate, First Class, Kuhi during the said period from 21-11-1995 to 5-3-1998 in the case No. 85/98/143 registered by the Police Station, Veltur.

7. It is the case of the petitioner that the Investigating Officer had falsely implicated her name in the said charge-sheet without making any inquiry into the matter and neither had taken any care to summon her for the purpose of enquiry to find out whether she was really involved in the said offence and blindly and by total non-application of mind had included her name in the charge-sheet. It is an admitted position that in the F.I.R. which was lodged, her name was not mentioned at any time. It is the case of the petitioner that as a result of this false implication of her name in the charge-sheet, she had to attend the Court on each date from 30-3-1998 and travel the distance of almost 125 KM from Manegaon (Bazar) to Kuhi and return back and thus had to travel the distance of 250 KM to and fro on each date of the case along with her husband. The grievance of the petitioner is that she, thus, incurred lot of unnecessary expenses and she was affected mentally and financially by the said harassment. It is the case of the petitioner that the registration of the offence had caused mental disturbance to her and her family. The petitioner's grievance is that though she was not found remotely concerned with the said procession and she was staying at most

125 KM away from the said village and, she had been arrained as an accused. It was very embarrassing for her to attend the Court as an accused person though she was not at all concerned with the aforesaid Morcha. It is the petitioner's contention that because she had been arrained as an accused, her children and her in-laws also suffered mentally and physically.

8. After she attended Kuhi Court, she made enquiries and took inspection of the Court record and came to know that on 21-11-1995 about 15 to 20 persons had participated in the said Morcha. However, respondent No. 1 Surendra Jagmohan Pali, Police Station Officer, Veltur at the relevant time instead of taking down the names of the persons who actually participated on the day of incident, on the next day met Bhaskar Ratiram Bhongade and Arun Tulshiram Bhoyar, both r/o : Ambhora (Khurd), Tah. Kuhi, Dist. Nagpur who are the leaders of the Morcha and sought the names of the persons participated in the said Morcha. The said persons taking advantage of the said opportunity, did not give names of their family members who had actually participated in the Morcha and mentioned the name of the persons who are residing elsewhere. The grievance of the petitioner is that the Police Station Officer in utter negligence of his duty and without carrying out further investigation as to identify the persons who had actually participated in the Morcha, straightway filed the case in the Court of Judicial Magistrate, First Class, Kuhi. It is the case of the petitioner that in fact one Sau. Subhadra Narayan Bhongade who was the relative of the said leader Bhaskar Ratiram Bhongade, who is residing at Ambhora (Khurd), Tah. Kuhi, had actually participated, in the Morcha. However, instead of her name, Bhaskar Ratiram Bhongade in revengeful attitude intentionally mentioned the name of the petitioner though he knew very well that the petitioner was permanently residing at Manegaon (Bazar) for the last 15 to 16 years.

9. The petitioner thereafter made an application for discharge on 30-4-2001 and the learned Magistrate, First Class, Kuhi passed an order on 7-12-2001 discharging the petitioner from the complaint observing therein that not a single witness had stated the name of the deponent in their statement that she was a member of unlawful assembly and also further observed that there was no identification parade held in respect of the deponent.

10. The petitioner, being aggrieved by the said callous attitude of the Investigating Officer which had resulted in causing great mental agony as well as financial loss and hardship of requiring to travel a distance of about 250 KM to and fro from Manegaon (Khurd) to Kuhi by crossing river and nala by ST. Bus route at odd hours and sometimes during the night also had to incur unnecessary expenses and loss of time along with mental tension. It is the submission of the petitioner that had the Investigating Officer carried out his duty with due care and honestly she would not have suffered monetary loss as well as mental tension throughout from the date of receipt of arrest of warrant till she was discharged from the complaint vide order dated 7-12-2001 passed by the Court of Judicial Magistrate, First Class, Kuhi.

11. The petitioner has, therefore, filed this petition on the ground that there was a violation of her fundamental right of personal liberty and, therefore, she was entitled to receive compensation of Rs. 1.50 lacs for the wrongful registration of the offence against her from the State which had caused great injustice to her.

12. We have heard the learned counsel appearing on behalf of the petitioner and learned A.P.P. appearing on behalf of the State at length. We have perused the letter sent by the petitioner and subsequent affidavit filed by her as also the affidavit filed by the respondent State as also an affidavit filed by respondent No. 1. We have called for the Original Record in respect of the said criminal case which was pending in the Court of judicial Magistrate, First Class, Kuhi. Perusal of the said record and Rojnama shows that no summons was ever served on the petitioner at any time and no date was intimated to the petitioner about the proceedings in respect of the criminal case pending in the Court. On 20-2-1996 the Judicial Magistrate, First Class, Kuhi passed an order for issue of summons to the accused persons. Some of the accused appeared on 23-9-1996 and they filed an application for bail and bail bonds were taken from these accused who appeared. However, from the record, it is clear that the petitioner was not served with the said summons which was issued. The next date in the Rojanama is dated 18-11-1996. Though it is mentioned that the accused Nos. 1, 3 and 13 to 18 are present, the petitioner who is attained as accused No. 15 could not have appeared because no summons was served on her which is apparent from the summons which is attached to the record and even if she had appeared the Court would have taken bail bond from her. This obviously shows that the Rojnama was not properly recorded on 18-11-1996. Thereafter, no fresh summons was issued by the judicial Magistrate, First Class, Kuhi and the petitioner was shown as absent on each and every date and for the first time on 11-6-1997 a non-bailable warrant was issued against the petitioner. On the said non-bailable warrant being served on the petitioner, she appeared before the Court on 5-3-1998 and executed the bail bond. From the Rojnama of the Court, therefore, it is clear that even the Judicial Magistrate, First Class, Kuhi did not ask as to whether the petitioner was, in fact, served with the summons or not and straightway issued the non-bailable warrant against her. We have also examined the record in respect of the said criminal case. The petitioner has filed statements of number of residents of village Ambhora in which they have stated that the petitioner was not the resident of village Ambhora and that she was the resident of village Manegaon and that she was not present in the village or had not participated in the Morcha which had taken place on 21-11-1995. The petitioner had also filed a statement of number of the persons who have stated that the petitioner was the resident of village Manegaon and that she was in the house from the morning for the whole day on 21-11-1995. The Police Patil, Manegaon has also given a certificate to that effect. We have examined the station diary maintained by the Police wherein it is stated that the respondent No. 1 had gone to the site and four persons viz. Arun Tulshiram Bhoyar, Yashwant Ghodeswar, Bhaskar Bhongade and about 15 to 20 people had taken out a Morcha and had given slogans of "Murdabad". Similarly, a list of the names of the persons is attached and it is mentioned that the list was prepared at the scene of offence. However, neither in the spot panchnama nor in the statement of the respondent No. 1 the name of the petitioner is mentioned. It is pertinent to note that in respect of the alleged list which is prepared at the scene of offence, so far as the petitioner is concerned, her name appears to have been subsequently added and the initial name has been scored out.

13. The respondent-Police Station, Officer, Veltur filed an affidavit dated 16-3-2002. However, the only information which was given in the said affidavit is that the petitioner was discharged by the Court by an order dated 7-12-2001 and, therefore, she was not entitled to claim compensation in the form of damages and that she can approach an appropriate forum for redressal of the grievances by proving that she was maliciously prosecuted and falsely implicated in the said offence. After we had directed the respondent No. 1 to remain present in the Court and asked him to file an affidavit, he thereafter filed an affidavit on 27-6-2002. In his affidavit in para No. 1 he has stated that he had prepared a list of the persons who had participated in the Morcha and that all the 18 persons present on the spot have given their names voluntarily. If the said names have been given voluntarily by the 18 persons, the respondent No. 1 could have obtained their signatures on the said statement or against their names for the purpose of identification. However, this has not been done which clearly shows that the statement of respondent No. 1 in affidavit is patently false. It is, thus, obvious that these names were recorded by respondent No. 1 on information which was given by some third party. It was the duty of the Investigating Officer before filing the charge-sheet to investigate as to whether really same persons had participated in the Morcha. It was his duty to hold identification parade and to get the persons identified. However, Investigating Officer - respondent No. 1 has not taken any steps whatsoever and has blindly and without discharging obligation which is cast on him by law, has put the names of the innocent persons in the said list. In our view, after examining the facts of the case and perusing the affidavit of the petitioner and original record of the case including the orders passed by discharging the petitioner, we are satisfied that the Investigating Officer has included the name of the petitioner in the charge-sheet without any kind of verification or investigation and as such has violated the personal liberty of the petitioner as a result of which she has suffered mental agony and financial loss. The Police Officers are supposed to be the custodian and guardians of the citizens of this country. However, from the facts of this case, it appears that the respondent No. 1 instead of protecting the interest of the citizens has callously and negligently implicated the petitioner in the aforesaid criminal case. The petitioner is, therefore, be justified in seeking compensation from the respondents.

14. Article 21 of the Constitution of India which guarantees the right to life and personal liberty, will be rendered nugatory and its significance would become blunt if the powers of the Courts were limited to passing the orders of release from the illegal detention. One of the method of preventing the violation of Article 21 and ensuring its due compliance is to grant compensation to the victim who has suffered at the behest of the State Authorities or its instrumentalities which act in the name of public interest and yet abuse the very process of law which they are supposed to protect. The Apex Court way back in the case of Rudul Sah v. State of Bihar directed the State of Bihar to pay the petitioner a sum of Rs. 30,000/- as compensation as he remained in jail for more than 14 years even after his acquittal. The Apex Court also granted compensation to the heirs of the persons who died in custody of the Army authorities. In the case of Sebastain M. Hongray v. Union of India, reported in AIR 1984 SC 1026 Apex Court awarded exemplary cost to the tune of Rs. 1 lac each to the petitioners.. The Apex Court in the case of Saheli a Womens' Resources Centre v. Commissioner of Police, Delhi and Ors. directed that the compensation should be paid to the mother of a 9 years old child who died because of beating and assault by the Police Officer. Similarly, in the case of Ravikant Patil, the Supreme Court rejected the appeal of the State against the decision of the Bombay High Court directing that the compensation be paid for parading of a undertrial prisoner, by handcuffing him, in the street on the ground that the Police Officers were guilty of violation of fundamental right under Article 21. The Apex Court in the case of Nilabati Behera v. State of Orissa, reported in Judgment Today, 1993 (2) SC 502 held that the defence of sovereign immunity was not available to the State for violation of fundamental right and that in such cases there would be strict liability against the State. The Apex Court expressed the need of the Court to evolve "new tools" to give relief in public law by moulding it according to the situation with a view to preserve and protect the rule of law. The Apex Court in the case of D. K. Basu v. State of West Bengal, has observed as follows :

"Thus, to sum up, it is now a well accepted proposition in most of the jurisdiction, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the Criminal Courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortuous act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong doer, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damage in a civil suit."

15. In our view, the respondent No. 1 has not only acted in a negligent and casual manner but has shown blatant disregard to the rule of law and without

investigation arrayed the petitioner as an accused who had to suffer mental and physical agony and monetary loss including the loss of self esteem till she was discharged by the Judicial Magistrate, First Class, Kuhi. This is a clear case of violation of Article 21 of the Constitution. If a Police Officer is permitted to act in such a manner, he could implicate any innocent person in any criminal case. It will not be open for the Police Authorities to take shield and protection of the act if it is shown and demonstrated that there is a blatant abuse of due process of law. Under these circumstances, we feel that this is a fit case where the State Government be directed to pay the compensation of Rs. 25,000/- to the petitioner. The State Government may recover half of the amount from the delinquent Police Officer viz. respondent No. 1.

16. In the result, the writ petition is allowed. The State Government is directed to pay compensation to the petitioner to the tune of Rs. 25,000/- which shall be paid within a period of 4 weeks from the date of communication of this order and thereafter may recover half of the said amount from the respondent No. 1. Rule is made absolute in the abovesaid terms.