Sureshbhai Mangaji Padhiyar vs State Of Gujarat
2023 Latest Caselaw 1892 Guj

    R/SCR.A/3156/2020                              CAV JUDGMENT DATED: 24/02/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CRIMINAL APPLICATION NO. 3156 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI

and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2       To be referred to the Reporter or not ?

3       Whether their Lordships wish to see the fair copy
        of the judgment ?

4       Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== SURESHBHAI MANGAJI PADHIYAR Versus STATE OF GUJARAT & 4 other(s) ========================================================== Appearance:

for the Respondent(s) No. 2,3,4,5

==========================================================

CORAM:HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI and HONOURABLE MRS. JUSTICE MAUNA M. BHATT

Date : 24/02/2023

CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI)

R/SCR.A/3156/2020 CAV JUDGMENT DATED: 24/02/2023

1 This is a petition preferred under Article 226 of the

Constitution of India by the applicant, who seeks

issuance writ of habeas corpus or another appropriate

writ for obtaining the custody of his son Falgun, who is

illegally confined and detained by respondent No.5,

who happened to be the Police Inspector of

Meghaninagar police station.

2 Facts in nutshell are presented in the following factual

background:

2.1 Brother of the corpus was arrested and detained in the

custody of Meghaninagar police station as a preventive

measure by the police officer as per section 151 of the

Code of Criminal Procedure. The corpus was picked up

from his vicinity on 29.06.2020 and was made to stay

in the lock up for the entire night. It is alleged that he

was subjected to police brutality and custodial

violence. On the next day i.e. on 30.06.2020 he was

presented before the learned Magistrate and was bailed

out with other individuals, who were detained. The

complaint was made to the learned Magistrate about

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the custodial violence and the torture committed by

the police personnel of Meghaninagar. On hearing the

grievance, the learned Magistrate had directed the

Chief Medical Officer of Civil Hospital to get them

examined.

2.2 Instead of taking the corpus and others to the Civil

Hospital, the police officers of Meghaninagar police

station took them back to the Meghaninagar police

station where they were again beaten with lathi and

rods. They were specifically instructed not to reveal

these bruises and marks to the Chief Medical Officer

(CMO) by taking their clothes off and they were

deterred not to reveal the names of the police officers,

who had beaten them.

2.3 The brother of the corpus revealed his injuries to the

CMO. Learning this aspect, the police officers had

again beaten him up. This inhuman act had resulted

into calling the police control room. However, no

complaint was lodged and mere statement of the

brother of the petitioner was recorded.

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2.4 The police officer of Meghaninagar police station, with

an intention to suppress the say of the petitioner

against the custodial violence, visited the house of the

petitioner on 01.07.2020 and had taken away the

corpus along with them. He was detained in the police

custody for the entire night and on the next day when

the petitioner had again come to Meghaninagar police

station, he was being informed that the corpus is

detained and is quarantined in an isolated place.

2.5 To the shock and surprise of the petitioner, it was

informed that First Information Report was lodged

against the corpus and other relatives of the petitioner

under sections 143,147, 336 and 118 of the Indian

Penal Code, the First Information Report bearing First

Information Report No.11191033201407 of 2020.

Learning about the wrongful detention of the corpus,

the mother of the corpus had sent a representation

dated 02.07.2020 addressed to respondent No.1 for

releasing the corpus.

2.6 Another representation addressed to respondent no.3

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dated 03.07.2020, and a representation dated

04.07.2020 was sent to respondent No.5 for releasing

his son for wrongful confinement and detention.

2.7 Corpus being a boy, aged 21 years, was detained in the

Meghaninagar police station at the time of pandemic.

The petitioner suspected the conduct of the police

officer of the police station being quite suspicious,

anticipated the corpus to be exposed to the deadly

Covid-19 virus to create tyrant effect on the petitioner

and his family. The corpus, as urged by the petitioner,

cannot be detained without being produced before the

Magistrate, that too for many days, as it is beyond the

scope of the procedure of arrest, as stipulated under

sections 41 (a) to (d) of the Code of Criminal Procedure.

He was not presented before the Magistrate and was

detained in the police station in the guise of being

quarantined. Therefore, the present petition with the

following prayers:

"11. In view of the above facts and circumstances, the petitioner, therefore prays that this Hon'ble Court may:-

A. YOUR LORDSHIPS be pleased to admit and allow this application.

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B. YOUR LORDSHIPS be pleased to issue a writ of Habeas Corpus or any other appropriate writ, order or direction and be pleased to direct respondent no.5 to produce son of the petitioner i.e. Falgun @ Chirag Suresh Padhiyar before the Hon'ble Court, who is illegally confined;

C. YOUR LORDSHIPS be pleased to direct respondents to take action forthwith and get the son of the petitioner released from the illegal confinement of respondent No.5;

D. YOUR LORDSHIPS be pleased to direct the respondent no.5 to hand over the custody of Falgun @ Chirag Suresh Padhiyar to the present petitioner, pending admission, hearing and final disposal of the present petition.

E. Any other and further relief/s as may be deemed fit in the facts and circumstances of the case."

3 This Court on 30.07.2020 passed the following order:

"1. This is a petition, seeking writ of habeas corpus with the following prayers:

"A. YOUR LORDSHIPS may be pleased to admit and allow this application.

B. YOUR LORDSHIPS may be pleased to issue a writ of Habeas Corpus or any other appropriate writ, order or direction and be pleased to direct respondent no. 5 to produce son of the petitioner, i.e. Falgun @ Chirag Suresh Padhiyar before this Hon'ble Court, who is illegally confined.

C. YOUR LORDSHIPS may be pleased to direct the respondents to take action forthwith and get the son of the petitioner released from the illegal confinement of respondent No.5.

D. YOUR LORDSHIPS may be pleased to direct the respondent No.5 to hand over the custody of Falgun @ Chirag Suresh Padhyar to the present petitioner, pending admission hearing and final disposal of the present petition.

E. Before we take-up the matter for hearing, learned Advocate, Mr. Rishabh M. Kapadia, appearing with learned Advocate, Mr. N.M. Kapadia, for the petitioner has submitted that the corpus has already been released on regular bail on 05.07.2020.

However, he has brought up an issue that without any valid

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authority or sanctions of the law, the petitioner had been kept in the police custody beyond the period of 24 hours. Ordinarily, these days, even police, under the pretext of test of Covid-19 virus, continues to detain a person beyond the period of 24 hours. In this case, the petitioner was kept in the custody for four days. He, therefore, has urged that let some compensation be granted to him under Article 226 of the Constitution of India.

3. Learned APP, on preliminary instructions, submits that it is not the case as is presented by the learned Advocate for the petitioner. However, she seeks time to take the detailed instructions and to file affidavit of a responsible Sr. Officer in this regard.

4. At the request of learned APP, S.O. to 10TH AUGUST, 2020."

4 Thus, the issue of corpus having been in illegal

custody, no longer existed the day on which the matter

was taken up for hearing. However, as he was kept in

the police custody beyond the period of 24 hours

under the pretext of test of Covid-19 virus and as he

was continued to be detained there beyond the

stipulated period, he had urged that some

compensation be granted under Article 226 of the

Constitution of India and, therefore, the matter was

posted on 10.08.2020.

5 In essence, the very object of preferring this petition

under the habeas corpus had attained its objective, the

day on which this Court firstly took up the matter as

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only for the purpose of considering that others may not

be also subjected to the police custody beyond the

period of 24 hours at the time when the pandemic was

at its peak under the pretext of Covid-19 virus, so also

for the purpose of compensation as was claimed, the

matter be entertained. Thus, for the limited purpose as

to whether the circular issued by Additional Director,

Public Health Department, in relation to the test to be

carried out of the accused of Covid-19 as also for grant

of compensation, this petition had been heard at

length.

6 Mr. N.M. Kapadia, learned advocate appearing with

Mr. Nisarg Shah, learned advocate for the applicant as

well as Mr. Mitesh Amin, learned Public Prosecutor

with Ms. Jirga Jhaveri, learned Additional Public

Prosecutor for the respondents have been heard.

7 Affidavit-in-reply on the part of the State has come on

the record through ACP, "G" Division, Ahmedabad

City, wherein he has denied all the allegations,

averments and contentions. He has relied on the

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decision of this Court in the case of Writ Petition (PIL)

No.42 of 2020 passed on 27.03.2020 when the lock

down was on. Apt would be to reproduce the order

passed by this Court as under:

"13 We are also conscious of the fact that a large number of petitions / applications are being moved not only before the High Court, but also the District Courts for grant of anticipatory bails. We cannot issue a blanket order restraining the State / Police Department not to make any arrest in heinous crimes or all other non-heinous crimes, but at the same time, we are of the view that in case any arrest is made during this period and the accused is lodged in a particular jail without ascertaining whether such accused being taken into custody is clean or is a suspect or infected with the Corona Virus, lodging him into jail where already hundreds and thousands of under trial or convicts are lodged, it would be an imminent peril to all the inmates of the particular jail where any new entry suspected or infected of the Corona Virus is introduced. It may result into disastrous situation where large number of inmates inside the jail may be infected thus defeating the social distancing and the extraordinary measures being taken for control and check of the Corona Virus. Therefore, it would be appropriate to direct the Department of Home, Government of Gujarat to consider this aspect and issue necessary circular / instructions to all the Superintendents of Police / Commissioners of Police throughout the State to ensure that before any accused is arrested and sent to jail, it is confirmed that he is not a suspect or infected with Corona Virus. It is only after such confirmation that an accused be lodged in a particular jail, otherwise the same be avoided for the period of crisis."

8 Thus, on the ground that the accused when taken into

the custody if is infected with corona virus, lodging

him in jail with hundreds and thousands of

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undertrials would be an imminent peril to all inmates

and the same would result into disastrous situation

where large number of jail inmates would be infected,

which would defeat the social distancing. It was

directed to the Department of Home, Government of

Gujarat to consider this aspect and issue necessary

circular and instructions to Commissioner of Police

through the State that before the accused is arrested

and sent to jail, it is confirmed that he is not a suspect

or infected with corona virus. Therefore, according to

the respondent, this direction was issued for following

the due procedure.

9     Falgun alias Chirag Sureshbhai, resident of 18/487,

      Municipal     Slum       Quaters,       Patarwali             Chali,

Chamanpura, Meghaninagar was taken to the police

custody under sections 143, 147, 336 and 188 of the

Code of Criminal Procedure and others namely Priyank

Sureshbhai and either friends were caught and

threatened by the staff of Surveillance Squad of

Meghaninagar police station.

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10 According to the respondent, on 29.06.2020 applicant

Bharat Rajput had made an application No.955 of

2020 in Meghaninagar Police Station against 09

persons which included Padhiyar with the subject

that these opponents were mischievous and

distressing the surrounding residence in the

residential area during the night hours by shouting.

The surveillance squad of police Sub Inspector of Mr.

V.A.Harkat was handed over the inquiry and while

getting the statement, it was confirmed that the search

application was made and the accusations made in the

application were also true. Therefore, the opponents

were caught under the application and apprehended

under section 151 of the Cr.P.C. on 29.06.2020 at

20:00 hours and were kept in Meghaninagar Police

Station.

11 On 30.06.2020, the applicants were presented before

the Executive Magistrate, Court No.2 by filing Chapter

Case for getting bail of having good character under

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section 107 of the Cr.P.C. against the opponent. They

complaint to the Court about the police threshing

them with the purpose of suppressing the police

department, the Executive Magistrate directed the

medical treatment to the opponent, then the PSI

Harkhat and his staff had taken them to the Civil

Hospital after the treatment.

12 This opponent being notorious in nature, they had

harassed the resident with a view to create the

atmosphere of fear, therefore, there was a need for

preventive measures.

13 It is also contended that on 01.07.2020, the case

no.8775 of 2020 Dashrath Bhai from Municipal Slum

Quarter informed that when the boys were sitting, the

police had arrested them wrongly. On receiving this

massage, Meghaninagar Police Station reached the

place of massage and found Chirag Sureshbhai

Padhiyar and 15 other pelting the stones and fleeing

away by seeing the police personals. The complaint

was given by the police constable Rohit Kumar being

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FIR No.11191033201407 of 2020 under section 143,

147, 336, 188 of the Indian Penal Code. On

02.07.2020, after sufficient evidence against the

accused, the Falgun @ Chirag was arrested and was

produced before the Court.

14 After his arrest on 20.07.2020 the Investigating Officer

needed to produce him before the Court. Before

arresting him, there was an instruction to quarantine

the accused in the police supervision for the test of

Covid-19. Until the outcome of his report in his letter

of Principal District Judge, Ahmedabad (Rural) in his

letter dated 20.01.2020, letter of Jail Superintendent,

Sabarmati Central Jail , Ahmedabad, letter of

25.04.2020 of Mr.Mitesh Amin, Public Prosecutor,

Gujarat High Court as well as letter dated 26.04.2020

of Police Commissioner, Ahmedabad were taken into

consideration and on that basis sample of Falgun was

drawn for corona test and entry was made in the

station diary and thus, he was kept in quarantine in

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the police supervision.

15 After this corona test report was found negative on

04.07.2020, he was arrested at 2:00 hours. His family

members were informed and on 05.07.2020 and he

was presented in the Court within the stipulated time

limit. The applicant was, thus, arrested and presented

before the Judicial Magistrate as prescribed under the

Code of Criminal Procedure. Looking to the

behavioural and chequered history of the criminal

cases, the apprehension was shown that the accused

may not be afraid of law and, therefore, they were not

released from the police station and the sample was

drawn for corona test, which was necessary as per the

order of the Police Commissioner before they were

produced before the Court. It is urged that the

applicant has criminal history at Meghaninagar police

station CR.No.I-183 of 2013, CR.No.I- 223 of 2013,

CR.No.I- 390 of 2016 under the Prohibition Act and

another son of Suresh Padhiyar, Priyank was arrested

for the crime registered under the Meghaninagar police

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station. He was accused with one Dashrath alias

Dacho, who had also PASA order executed against him

in 2014-15. These people having criminal history, their

allegations are baseless against the police and,

therefore, the petition is sought to be frivolous.

Additional affidavit has been filed by Police Inspector,

Meghaninagar police station reiterating all those

details, which had been given earlier.

16 Affidavit-in-rejoinder on behalf of the petitioner to the

Additional affidavit-in-reply filed by the respondent

No.5 has been submitted where there has been a

serious challenge to the contentions raised by the

police officer. According to the petitioner, even looking

to the so-called report, no material regarding the

reasons of arrest or corona virus or its report has

been produced by the respondent. There is nothing to

initiate arrest of the corpus. Arrest itself was

completely illegal and against the settled legal position

regarding the arrest of the person. The ground of

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arrest and the grounds of not to grant bail in bailable

offence by the police has been reflected. Therefore, this

is nothing but an after thought and the same cannot

be considered as per the settled legal position. The

petitioner does not attempt to say that he was

produced before the learned Magistrate on 05.07.2020.

17 The brief summary of the case and the contentions of

the petitioner in writing have been also tendered before

this Court. It is emphatically urged that no person

under Article 21 of the Constitution of India is required

to be deprived of his life or personal liberty except,

according to the procedure established by the law.

Article 22(2) of the Constitution of India provides that

every person, who is arrested and detained in the

custody, shall be produced before the nearest

Magistrate within the period of 24 hours of such arrest

excluding the time necessary for the journey from the

place of arrest to the Court of the Magistrate and no

such person shall be detained in custody beyond the

said period without the authority of the said

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Magistrate.

18 Section 57 of the Code of Criminal Procedure provides

that no police officer shall detain in custody, a person

arrested without warrant, for a longer period than

under all the circumstances of the case is reasonable

and and such period shall not, in absence of special

order of the Magistrate under section 167, exceed 24

hours exclusively for the time necessary for the

journey from the place of arrest to the Magistrate's

Court.

19 Section 60A of the Code of Criminal Procedure

provides thus:

" No arrest shall be made except in accordance with the provisions of this Code, or any other law for the time being in force provided for arrest".

20 Article 9 (5) of the International Covenant on Civil and

Political Rights, 1966 says thus:

"Any one, who has been victim of unlawful arrest of detention shall have enforceable right to compensation".

21 Section 436 of the Code of Criminal Procedure

"enlarges a person on bail when any person other than

a person accused of non-bailable offence is arrested or

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detained without warrant by an officer in-charge of a

police station and when he appears or is brought

before a Court and is prepared at any time while in the

custody of such officer at any stage of the proceedings

before the Court to give bail". Such officer or the Court

may, if such person is indigent and is unable to

furnish surety, instead of taking bail from the person

discharge him on his executing a bond without

sureties.

22 In the case of Rasiklal vs. Kishore, 2009 (4) SCC 446,

while considering the section 436 of the Code of

Criminal Procedure, the Court has held that the police

officer or the Court is bond to release if the person

accused of bailable offence is prepared to give bail. It is

an absolute and indefeasible right of the accused and

there is no question of discretion.

22.1 Relevant paragraphs are reproduced as under:

"9. As is evident, the appellant is being tried for alleged commission of offences punishable under Sections 499 and 500 of the Indian Penal Code. Admittedly, both the offences are bailable. The grant of bail to a person accused of bailable offence is governed by the provisions of Section 436 of

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the Code of Criminal Procedure, 1973. The said section reads as under: -

"436 - In what cases bail to be taken - (1) When any person other than a person accused of a non- bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail:

Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided:

Explanation. - Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso.

Provided further that nothing in this section shall be deemed to affect the provisions of sub- section (3) of section 116 or section 446A.

(2) Notwithstanding anything contained in sub- section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section

446."

There is no doubt that under Section 436 of the Code of Criminal Procedure a person accused of a bailable offence is entitled to be released on bail pending his trial. As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the Section instead of taking bail from him.

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10. The position of persons accused of non-bailable offence is entirely different. The right to claim bail granted by Section 436 of the Code in a bailable offence is an absolute and indefeasible right. In bailable offences there is no question of discretion in granting bail as the words of Section 436 are imperative. The only choice available to the officer or the court is as between taking a simple recognizance of the accused and demanding security with surety. The persons contemplated by Section 436 cannot be taken into custody unless they are unable or willing to offer bail or to execute personal bonds. There is no manner of doubt that bail in a bailable offence can be claimed by accused as of right and the officer or the court, as the case may be, is bound to release the accused on bail if he is willing to abide by reasonable conditions which may be imposed on him."

23 In the case of Nilabati Behera (Smt) alias Lalita Behera

(Through the Supreme Court Legal Aid Committee) vs.

State of Orissa and others, 1993 (2) SCC 746, the

award of compensation is said to be a remedy available

in public law based on strict liability for contravention

of fundamental rights. The Apex Court has held that

the Supreme Court and the High Court being protector

of the civil liberties of the citizens have not only the

power and jurisdiction but also an obligation to grant

relief in exercise of its jurisdiction under Articles 32

and 226 of the Constitution of India to the victim or

the heirs of the victims whose fundamental rights

under Article 21 of the Constitution of India are

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flagrantly infringed by calling upon the State to repair

the damages.

23.1 Relevant paragraphs are reproduced as under:

"10. In view of the decisions of this Court in Rudul Sah v. State of Bihar and Another, [1983] 3 S.C.R. 508, Sebastian M. Hongray v. Union of India and Others, [1984] 1 S.C.R. 904 and [1984] 3 S.C.R. 544, Bhim Singh v. State of J&K [1984] Supp. S.C.C. 504 and [1985] 4 S.C.C. 677, Saheli, A Women's Resources Centre and Others v. Commissioner of Police, Delhi Police Headquarters and Others, [1990] 1 S.C.C. 422 and State of Maharashtra and Others v. Ravikant S.Patil, [1991] 2 S.C.C. 373, the liability of the State of Orissa in the present case to pay the compensation cannot be doubted and was rightly not disputed by the learned Additional Solicitor General. It ,would, however, be appropriate to spell out clearly the principle on which the liability of the State arises in such cases for payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in an action on tort. It may be mentioned straightaway that award of compensation in a proceeding under Article 32 by this court or by the High Court under Article 226 of the Constitution 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 defence in private law in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings. We shall now refer to the earlier decisions of this Court as well as some other decisions before further discussion of this principle.

xxx xxx xxx

17. It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inap- plicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such

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a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights.

xxx xxx xxx

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 constitutional guarantee a mirage but may, in certain situations, be an incentive to extinguish life, if for the extreme contravention the court is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence, and recovery of damages under private law, by the ordinary process. It the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have not, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate.

21. We may also refer to Article 9(5) of the International Covenant on Civil and Political Rights, 1966 which indicates that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right. Article 9(5) reads as under:-

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"Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation."

xxx xxx xxx

32. Adverting to the grant of relief to the heirs of a victim of custodial death for-the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to .the ordinary remedy of a civil suit to claim damages for the tortuous act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to fife, he cannot get any relief under the public law by the courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve 'new tools' to give relief in public law by molding it according to the situation with a view to preserve and protect the Rule of Law. While concluding his first Hamlyn Lecture in 1949 under the title 'Freedom under the Law' Lord Denning in his own style warned:

"No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up to date machinery, by declarations, injunctions and actions for negligence... This is not the task for Parliament..... the courts must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare state; but abused they lead to a totalitarian state. None such must ever be allowed in this Country."

33. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much as protector and guarantor of the indefeasible Fights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations.

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34. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court molds the relief by granting "compensation" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of exempellary damages' awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and persecute the offender under the penal law.

xxx xxx xxx

35. This 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 its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of 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 right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the

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fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, is possible. The decisions of this Court in the line of cases starting with Rudul Sah v. State of Bihar and Anr., [1983] 3 SCR 508 granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 32 or 226 of the Constitution of India, notwithstanding the rights available under the civil law to the aggrieved party where the courts found that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in that spirit that the Courts have molded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental rights of a citizen under Article 21 is concerned. 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 situations 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 disguised substitute for civil action in private law. Some of those situations have been identified by this Court in the cases referred to by Brother Verma, J."

24 In the case of D.K.Basu vs. State of West Bengal, 1997

(1) SCC 416, directions have been issued in order to

curb the custodial torture in addition to the initiation

of departmental inquiry against the erring officer. The

Supreme Court emphasized the need for penal

provisions of the custodial torture not enough to curb

the menace and the compensation under the public

law jurisdiction is given for breach of public duty of not

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protecting the fundamental rights:

24.1 Relevant paragraphs are reproduced as under:

"10. "Torture" has not been defined in Constitution or in other penal laws. 'Torture' of a human being by another human being is essentially an instrument to impose the will of the 'strong' over the 'weak' by suffering. The word torture today has become synonymous wit the darker side of human civilisation.

"Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is not way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone paralyzing as sleep and dark as the abyss.

Torture is despair and fear and rage and hate. It is a desire to kill and destroy includingyourself."

Adriana P. Bartow

11. No violation of any one of the human rights has been the subject of so many Conventions and Declarations as 'torture'- all aiming at total banning of it in all forms, but inspite of the commitments made to eliminate torture, the fact remains that torture is more widespread not that ever before, "Custodial torture" is a naked violation of human dignity and degradation with destroys, to a very large extent, the individual personality. IT is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward-flag of humanity must on each such occasion fly half-mast.

12. In all custodial crimes that is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma a person experiences is beyond the purview of law.

xxx xxx xxx

22. Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. The rights inherent in Articles 21 and 22(1) of the Constitution required to be jealously and scrupulously protected. We cannot wish away the problem.

Any form of torture of cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound

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to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchanism. No civilised nation can permit that tp happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal court of human rights jurisprudence. The answer, indeed, has to be an emphatic 'No'. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicted undertrials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.

xxx xxx xxx

35. We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures :

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock- up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

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(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaga Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board."

xxx xxx xxx

36. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render his liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.

xxx xxx xxx

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41. Some punitive provisions are contained in the Indian Penal Code which seek to punish violation of right to life. Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a corrupt or malicious motive. Section 330 and 331 provide for punishment of those who inflict injury of grievous hurt on a person to extort confession or information in regard to commission of an offence. Illustration (a) and (b) to Section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330, therefore, directly makes torture during interrogation and investigation punishable under the Indian Penal Code. These Statutory provisions are, However, inadequate to repair the wrong done to the citizen. Prosecution of the offender is an obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, nor by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience.

42. Article 9(5) of the International convent on civil and Political Rights, 1966 (ICCPR) provides that "anyone who has been the victim of unlawful arrest or detention shall have enforceable right to compensation". of course, the Government of India as the time of its ratification (of ICCPR) in 1979 had made a specific reservation to the effect that the Indian legal system does not recognise a right to compensation for victims of unlawful arrest or detention and thus did not become party to the Convent. That reservation, however, has now lost its relevance in view of the law laid down by this Court in number of cases awarding compensation for the infringement of the fundamental right to life of a citizen. (See with advantage Rudal Shah Vs. State of Bihar [ 1983 (4) SCC, 141 ]: Sebastian M. Hongrey Vs. Union of India [ 1984 (3) SCC, 339] and 1984 (3) SCC, 82]; Bhim Singh Vs State of J & K [1984 (Supp) SCC, 504 and 1985 (4) SCC, 677] Saheli Vs. Commissioner of Police. Delhi [1990 (1) SCC 422]}. There is indeed no express provision in the Constitution of India for grant of compensation for violation of a fundamental right to life, nonetheless, this Court has judicially evolved a right o compensation in cases of established unconstitutional deprivation of person liberty or life. [See : Nilabati Bahara Vs. State (Supra)]

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xxx xxx xxx

44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages of tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitutions is remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or 226 of the Constitution of India for the established violation or the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrong door and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.

45. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the court and the law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim - civil action for damage is a long drawn and cumber some judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim. Who may have been the bread winner of the family."

25 In the case of Joginder Kumar vs. State of U.P, 1994(4)

SCC 260, the Apex Court has held and observed that

the arrest and detention in police lock up can cause

incalculable harm to the reputation and self-esteem.

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25.1 Relevant paragraphs are reproduced as under:

"20. In India, Third Report of the National Police Commission at p. 32 also suggested: "An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:

(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terrorstricken victims.

(ii) The accused is likely to abscond and evade the processes of law.

(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.

(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.

It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines......"

The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do."

26 In the case of Putta Swami vs. Union of India, 2017(10)

SCC 1, the Court held that the life and personal liberty

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are inalienable rights. These are the rights, which are

inseparable from the dignified human existence. The

dignity of individual equity between human beings and

the quest for liberty are the foundational pillars of the

Indian Constitution. His rights are recognised by the

Constitution as inherent in each individual.

27 In the case of Rizwana Salim vs. State of Gujarat,

Special Criminal Application No. 677 of 2014, it is held

that in the case of habeas corpus petition, the Court

took strict view against the illegal detention and

torture and imposed cost on the respondent and also

directed initiation of departmental proceedings against

the erring officer.

28 In the case on hand, the offences alleged in the First

Information Report are all bailable in nature. It is not

in dispute that the corpus was not granted the bail

and was kept in custody.

29 The defence on the part of the respondent is of order of

this Court in Suo Motu Writ Petition No.42 of 2020.

      The           Court   considering       the        extraordinary






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circumstances, had directed for the safety of many jail

inmates and otherwise to allow the detention of any

person beyond the constitutional time limit of 24

hours. The order of this Court was to be given an effect

before a person is sent to judicial custody. Thus, after

the production of the accused before the Magistrate

after the bail is granted, then the Covid-19 test of the

accused, according to the petitioner, was to be

undertaken and again, according to him, this order

was directed towards the persons, who are to be sent

to the judicial custody and not towards the person like

the corpus, the option of Rapid Anti-Gen Test also was

available, which was followed across the country.

30 Two aspects are glaringly emerging. The order of this

Court in Suo Motu Writ Petition NO.42 of 2020 was

the reason for various authorities to have directed the

carrying out of the Covid-19 test before the person is

sent to custody so as not to infect others. Four

separate authorities had issued directions for

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compliance of the order of this Court, namely,

Principal District Judge, Ahmedabad (Rural),

Superintendent, Central Jail, Sabarmati, Public

Prosecutor of High Court of Gujarat and Police

Commissioner, Ahmedabad. The petitioner has rightly

insisted that even if this would have an applicability,

the option of Rapid Anti-Gen Test was available, but

the Court cannot be oblivious of the fact that if the test

of Rapid Anti-Gen Test comes positive, there would

not be any requirement of further testing, but if it

comes negative, that would not mean that the person

would not be infected by corona virus, as Rapid Anti-

Gen Test was not the surest to rule out the infection.

Moreover, it was an unprecedented time when there

was so much apprehension in the minds of one and

all. It was a stage when people were dying and the

entire world had come to the grinding halt. At the

same time, no authority could have interpreted it in

the manner that the Police Inspector would be

permitted beyond the period of 24 hours as prescribed

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under the statute. There could be no justifiable reason

to detain any one beyond the period of 24 hours. This

Court, while issuing direction could have never meant

that and that was again meant for those persons, who

were not granted the bail by the learned Magistrate

when produced before him. At the same time,

considering the kind of directions issued by various

authorities insisting on the corpus to undergo the test

of corona virus, it was a misinterpretation of the order

of this Court. No Court, as rightly contended, in the

country can pass any order on judicial or

administrative side against the constitutional

provisions. Therefore, any direction contrary to that

would be beyond the required mandate of law. The

circular when is considered, it is essentially meant for

Sabarmati jail and, therefore, its applicability would

come only when the accused is not released on bail.

31 While recognizing this breach, in the communications

sent by various authorities to the police and its putting

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forth for its defence, the circulars issued by the

Commissioner of Police, this Court cannot be oblivious

of the circumstances, which existed. They were

unprecedented and extraordinary in nature while

emphasizing the need for constitutional provisions to

be upheld and treated as sacrosanct and not

permitting any authority to, in any manner, act

contrary to the same. This Court is of the opinion that

for the breach, the amount of compensation sought

can be accepted.

32 There surely appears to be a serious lapse in

interpretation of the order passed by this Court and to

read it beyond the requirement of the mandate of the

Constitution, which resulted into keeping the corpus

detained for four days, although it has been alleged to

be a mala fide act to pressurize the family of the

petitioner to withdraw the complaint made against the

police officials of the Meghaninagar police station

regarding illegal assault in the police custody in

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relation to the First Information Report, which was

lodged against another son of the petitioner and eight

other persons before two days immediately preceding

the illegal arrest of the corpus and cleverly connected

the First Information Report with the present incident

with a view to mislead the Court.

33 We notice that there is no denial in the Additional

Affidavit-in-reply filed on behalf of respondent No.5

that the initiation of the chapter proceedings under

section 151 of the Code of Criminal Procedure was on

29.06.2020 and all the opponents of the application

were arrested on 29.06.2020 at 8:20 hrs. Necessary

station diary entry in this regard was entered at Diary

No.30 of 2020 at 20:10 hours and Police Sub-Inspctor

V.A. Harkat submitted the report of arresting all the

nine opponents Police Officer, Meghaninagar police

station, this included the real brother of the petitioner.

34 On 01.07.2020, Meghaninagar police station received

the telephonic message about the resident of Patravali

Challi about the boys being wrongly apprehended by

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the police. Meghaninagar police went to the place and

found that certain persons were rioting and were

throwing stones and the police lodged First

Information Report for offences punishable under

sections 143, 147, 336 and 118 and also under section

3 of the Pandemic Disease Act as well as section 51 of

the Disaster Management Act against the petitioner

and four others. Chirag was apprehended on

02.06.2020 at around 14 hours and other accused

were arrested. On he being apprehended was subjected

to Covid-19 text and was taken to Civil Hospital on

02.07.2020. Meghaninagar police Sub-Inspector and

the Investigating Officer had produced Falgun along

with the arrest memo and other required documents

before the Court of learned Additional Chief

Metropolitan Magistrate Court.

35 No.13. Along with the report addressed to the learned

Additional Chief Metropolitan Magistrate, a report was

tendered showing requirement and necessity of

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arresting the accused. This was submitted before the

Court of learned Additional Chief Metropolitan

Magistrate on 05.07.2020 at around 13:45 hours. The

Court of learned Additional Metropolitan Magistrate

had accepted the custody of these accused along with

the report of the arrest order, which is also produced

on the record. All other accused are said to be having

strong criminal antecedents which are in the nature of

rape, kidnapping, attempt to murder, prohibition,

assault, rioting etc. Even while accepting that the

Courts cannot direct anything against the

constitutional provision and neither on judicial or

administrative side, any such order could be passed,

which would breach the mandate of the Constitution

and even recognizing the fact that the direction issued

by the Court noticing the unprecedented

circumstances of Covid-19 virus, the custody of the

police beyond 24 hours could never have been in the

mind of the Court and such interpretation would

amount to complete breach of law.

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36 In view of above, particularly when the Corpus was

released on regular bail on 5.7.2020, the prayer of the

petitioner in relation to production of Corpus before

this Court would not survive. Further, considering the

report addressed to the learned Additional Chief

Metropolitan Magistrate showing Corpus along with

other accused persons, having strong criminal

antecedents with the charges alleged of serious nature,

we are not in agreement with the submissions made on

behalf of learned advocate for the petitioner that the

petitioner may be provided with appropriate

compensation, therefore, the submission made in

relation to providing compensation to the petitioner is

hereby rejected in the present proceedings.

37 Be that as it may, however, we cannot loose sight of

the action taken by the Police Inspector (respondent

No.5) of keeping the Corpus in custody beyond the

provisions of law. As observed earlier, the action taken

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by respondent No.5 is contrary to the provision of law

and that too by a public officer, who is required to

maintain law and order situation in the city. This, in

our opinion, is to be viewed seriously, because the

same may amount to misuse of power and, for which,

we at this stage deemed it appropriate on account of

noticing unprecedented time to direct that an

explanation for the action taken, shall be given by

respondent No.5 to the Director General of Police

(Respondent No.4) in this regard and within a period of

four weeks from the copy of receipt of this order, the

Director General of Police upon receipt of the

explanation shall look into the same and if deemed fit,

to take appropriate action in accordance with law.

39. With these observations, the petition stands disposed

of.

(SONIA GOKANI,CJ)

(MAUNA M. BHATT,J) SUDHIR