Hukam Singh vs State (Thru. Delhi ...
1993 Latest Caselaw 466 Del

JUDGMENT

Y.K. Sabharwal, J.

(1) The personal liberty of the petitioner was deprived for over a month is not in dispute. There is also no dispute about the facts which in brief are:-

(2) In 1983 one Hukam Singh was arrested for offence under Section 406 Indian Penal Code. That Hukam Singh was enlarged on bail by Court. During trial the said Hukam Singh jumped bail. He was declared pro-claimed offender. Non-bailable warrants were issued for his arrest. On the holiday for Independence Day for the year 1991, the petitioner whose name also happens to be Hukam Singh was arrested taking him to be the person who had jumped bail. Unfortunately, for the petitioner, there was similarity in the names of their father. The petitioner is son of Ram Chander. The other Hukam Singh is son of Ram Singh. Further, to the bad luck of the petitioner, the absconding Hukam Singh used to live in the year 1983 in the same locality where the petitioner was residing though in house bearing different municipal number. On 16th August, 1991, petitioner moved an application for grant of bail in the Court of Metropolitan Magistrate. It was dismissed. On 17th August, 1991. A.S.I, 0m Prakash of Police Station Kashmiri Gate moved an application in the Court of Metropolitan tan Magistrate for issue of production warrants against the petitioner for showing/effecting his formal arrest in the c?se in which Hukam Singh had been declared proclaimed offender. That application was duly forwarded by the in charge Police Post On 19thAugust, 1991,formal arrest of petitioner Hukam Singh was made the case in which Hukam Singh was declared proclaimed offender and the petitioner was remanded to judicial custody.

(3) Hukam Singh, the petitioner is employed as an Assistant Mistri in Hindustan Vegetable Oil Corporation Ltd., a Government of India Undertaking. The respondent/State has not pleaded that this Hukam Singh had any past criminal record. He is not stated to be involved in any criminal case. Hukam Singh claims that he has clean antecedents and belongs to a respectable family and has four sons and two daughters. His gross salary is about Rs.3,000.00 per month and carry home salary, after deductions, is about Rs.2,000.00 per month. He has been issued identity card by his employers.

(4) An application for grant of bail was filed by Petitioner Hukam Singh also in the Court of Session. That too was dismissed but learned Additional Sessions Judge directed the Metropolitan Magistrate to make enquiry as to grouse and grievance of the petitioner that he is not that Hukam Singh whom the police wanted to apprehend. The petitioner Hukam Singh had pleaded before the Additional Sessions Judge that neither the name of his father is Ram Singh nor is he resident of house shown in the charge sheet and in the person search memo. The specimen signatures and thumb impressions of the petitioner were sent to Central Forensic Science Laboratory for comparison with the finger prints of the real culprit. The said laboratory gave report dated 11 th September, 1991 slating that the finger prints of the real culprit were faint and blurred and do not admit of comparison. Hukam Singh, the petitioner again moved an application for grant of bail in the Court of Session. On 21st September, 1991, after noticing that the petitioner is seriously disputing his involvement on the ground that some other Hukam Singh was accused and it was a case of mistaken identity, luckily another Additional Sessions Judge came to petitioner's rescue and he was ordered to be released on bail upon his executing personal bond in the sum of Rs.5,000.00 with two sureties in the like amount. Petitioner's agony of custody, however, came to an end on 23rd September, 1991 when he was released on bail.

(5) During the course of enquiry being conducted by Metropolitan Magistrate pursuant to the direction of the Additional Sessions Judge referred to above, the Investigating Officer who had arrested Hukam Singh in 1983 was summoned. His statement was recorded. He stated that the petitioner is not the person whom he had arrested in 1983 and if real person is produced he would be able to identify him. The Metropolitan Magistrate by orders made on 26th September, 1992 has held that this Hukam Singh is not the same person who was arrested in the year 1983 and who has been declared pro-claimed offender. The petitioner has been discharged and the file has been consigned to record room to be taken out when the actual person is apprehended.

(6) The petitioner was illegally detained. He was deprived of personal liberty for one month and nine days. The liability of the State to pay and the jurisdiction of this Court,in exercise of power under Article 226 of the Constitution, to award damages to a citizen whose personal liberty guaranteed by Article 21 has been infringed, is no longer resintegra.

(7) In a recent decision of Supreme Court in Nilabati Behera @ Lalita Behera Vs. State of Orissa & Ors. 50 ( 1993) Delhi Law Times 303 (SC) after considering various earlier decisions of the Apex Court including the decision in case of Rudul Sah Vs. State of Bihar And Another , Bhim Stngh Vs. State of J&K And Others and State of Maharashtra and Others Vs. Ravikants Patil , it has been held that the Supreme Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of jurisdiction under Article 32 and 226 of the Constitution to the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the rights of the citizen to the remedy by way of a civil suit or criminal proceedings.

(8) In Rudul Sah's case while awarding damages for violation of petitioner's right of ' personal liberty guaranteed under Article 21 of the Constitution, the Supreme Court said that the State must repair the damage done by its officers to the petitioner's rights. The Supreme Court further said that if civilisation 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.

(9) In Bhim Singh's case, after finding that the petitioner had been arrested and kept in illegal detention by police for four days and noticing that when the matter came up before Court the-petitioner was no longer in detention and had been set at liberty, the Supreme Court while awarding compensation of Rs.50,000.00 opined that the mischief or malice and the invasion may not be washed away or wished away by petitioner's being set free and in appropriate cases Supreme Court has the jurisdiction to award monetary compensation by way of exemplary cost or otherwise.

(10) In Ravi Kant Patil's case violation of Article 21 of the Constitution was found as Ravi Kant Patil had been Handcuffed and taken through the streets in a procession by police during investigation and the award of compensation of Rs. 10,000.00 by the High Court was upheld, by the Supreme Court.

(11) The facts of the case noticed by us earlier have not been refuted by the State. The petitioner was admittedly kept in illegal custody for one month and nine days. If the police officers had been little more careful in discharge of their duties, the petitioner would not have been deprived of his liberty. Why should they bother? What if one is illegally detained? How does it matter, the court will release if a wrong person is arrested? This approach has to change. The petitioner was crying at the top of his voice that, he is not that Hukam Singh, who may be absconding. The police officer did not pay any heed. The very next day after arrest, i.e.on 16th April 1991 he again said same thing but his bail application was rejected by the Magistrate and few days later bail application was dismissed by Additional Sessions Judge though an enquiry was directed as already noticed above. The enquiry proved that the petitioner was right. If the police officers had not been casual and irresponsible in their approach, and if they would have made attempts to ascertain real facts in the beginning they would have know the said facts without much difficulty and the petitioner would not have been deprived of his liberty. But it is big 'If' which causes problems. It is a clear case of flagrant violation of right of liberty of the petitioner. Clearly, the petitioner was deprived of his liberty because of casual, irresponsible, careless and negligent acts of the police officers. Everyone including the police has to be careful and cautious about the rights of the personal liberty of a citizen. The awareness that how important and sacrosanct the liberty of a citizen is has to come to the members of the police force, which we feel is lacking. Had this awareness been there the arrest of this Hukam Singh for that of the real Hukam Singh, could have been avoided.

(12) Apart from the mental and physical agony which the petitioner must have suffered during period of his detention, we can also well appreciate the mental agony and humiliation, the family members of the petitioner would have been subjected to during the period of petitioner's detention. In our Society humiliation and stigma does not come to an end on release of such a person. The humiliation and stigma are likely to be continued even after release. Neither is it possible to explain to every relation or all others in social circle or at place of work etc. the circumstances which may have led to acitizen's illegal detention nor sizeable number of such persons are likely to believe the explanation. The degradation which citizen and his family members may suffer, under these circumstances, in the eyes of the relations, friends and others is not easy to be wiped out. Besides that, the petitioner must have spent certain amounts in making applications before court of Metropolitan Magistrate and Court of Session. In these matters the payment of monetary compensation may not be a complete solace, but the way life is, it is some solace. We feel it is fit case for awarding monetary compensation. In our view, a sum of Rs. 20,000.- as compensation would be just and reasonable. In case the petitioner initiates any other action for recovery of damages, the amount awarded by us would be kept in view while deciding that action.

(13) Accordingly, we allow the writ petition, make the rule absolute and direct the respondent to pay a sum of Rs. 20,000.00 to the petitioner within a period of one month. It would be open to the respondent to fix the responsibility and recover from officer or officers at fault the amount directed to be paid to the petitioner and to also take any action against such persons as may be permissible in law. The respondent would also pay to the petitioner a sum ofRs. 1100.00 as cost of these proceedings.