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RUDULSAH

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v.

STATE OF BIHAR AND ANOTHER

August 1, 1983

(Y. V. CHANDRACHUD, C.J., AMARENDRA NATH SEN

AND RANGANATH MISRA, JJ;J

Constitution Of lndia-Arl. 32-Scope of-Whether in a lulbeas corpus'

petition under Art. 32 Supreme Court can grant compensation for . deprivation of a

fundamental right.

CorJstifUtion of India-Ari. 21-Scope of-Whethei covers right to

compensation for its violation.

The petitioner who was detained in prison for over 14 years after his

acquittal filed a habeas corpus petition under Art. 32 of the Constitution

praying for his release on the-ground that his detention in the jaiJ was unlaw­

ful. He also asked for certain other reliefs including compensation for his

·'· illegal detention. When the petition came up for hearing the Court was

informed

by the respondent

State that ·the petitioner had already been released

from the jail.

Allowing the petition,

HELD : The petitioner's detention in the prison after his acquittal was

wholly unjustified.

Article 32 confers power on the Supren1e Court to issue directions or

orders or appropriate writs for the enforcement of any of the rights conferred

by Part III of the Constitution. Article 21 which guarantees the right to life

and liberty will be denuded of its significant content if the power of this Court

were limited io passing orders of felease from illega I detention. One of the

teliing ways in which the violation of that right can reasonably be prevented

and due compliance with the rnaridate

of Article

~1 secured, is to mulct its

violators in the payme11;t of monetary compensation. The right. to compensation

is some palliative for the Unlawful acts of instrumentalities which act in the

name of public interest and which preSent for their protection the powers of

the State as a shield. Respect-for the rights of illdividuals is the true baStion

of demoCracy. Therefore, the State must repair the damage done by its officers

to their rights. [513 A-C, 514 B-EJ

In the circumstances of the instant case the refusal to pass an order of

compensation in favour of the petitiorier wHl be doing mere lip-service to his

fundamental right to liberty which t~e State Government has so grossly

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!ltiriUL SAH v. BIHAR (Chandrachud, C.J.) 5o9

Violated. Therefore, as an interim measure the State must pay to the prti·

tioner a further sum of Rs. 30,000 in addition to the Sum Of Rs. 5,000 already A

paid by it. This order will not preclude the petidoner from bringing a suit to re.:

criver appropr_iate damages from the State ind its erring officials. [514 B, F, HJ

ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 1987

of 1982.

(Under Article 32 of tM Constitution of India)

Mrs. K. Hingorani for the Petitioner.

D. Goburdhan for the Respondent. . .

The Judgment of the Court was delivered by .

CllANDRACHUD, C.J. : This Writ Petition discloses a sordid

and disturbing state

of affairs. Though the petitioner

was acquitted

by the Court

of Sessions, Muzaffarpur, Bihar,

on June 3, 1968 he

was released from the jail on October

16, 1982, that is to say, more

than

14 years after he was acquitted. By this Habeas Corpus

petition, the petitioner asks for his release on the gro.und

that his

detention in the jail

·is unla-wful. He has also as"ked for certain

ancillary reliefS like ·rehabilitation, reimbursements of expenses which

he may incur for medical treatment and compensation for the illegal

incarceration.

This petition came up before us on' November 22, 1982 when

we were informed by

Shri Goburdhan, counsel for the State of Bihar,

that the petitioner was already released from the jail. The relief

sought by. the petitioner for his release thus became infructuous but

despite that,

we directed that a Notice to show cause be issued to

the

State of Bihar regarding prayers 2, 3 and 4 of the petition. By '

prayer No. 2 the petitioner asks for medical treatment at Government

expense, by prayer. No. 3 he asks for an ex gratia payment for his

rehabilitation, while by prayer No. 4 he asks· for compensation for

his illegal detention in the jail for over

14 years.

We expected a prompt _respon.se to the

Show Cause Notice

from the Bihar Government at least at this late stage, but they

offered no explanation for over four months. The Writ Petition

was listed before us on March 31,

1983 when

Shri Goburdhan

restated that the petitioner had been already released from the jail.

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We passed a specific order on that date to the effect that the release

of the petitioner canno.t be the end of the matter and we called upon

the Government

of Bihar to submit a written explanation supported

by an affidavit as to

why the petitioner was kept in the jail for over

14 years after his acquittal.

On April 16, 1983, Shri -Alakh Deo

Singh, Jailor, Muzaffarpur Central Jail,

filed an affidavit in pursuance

of that order.

Shorn of its formal recitals, the affidavit reads thus :

"2. That the petitioner was received on 25.3.67

from Hazaribagh Central Jail and

was being produced

regularly before the Additional Sessions Judge,

Muzaffarpur and on

30.8.68 the learned Judge passed the

C following order :

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"The accused is acquitted but he should 'be

detained

in prison till further order of the

State

Government and I.G. (Prisons), Bihar."

(A true copy of the same is attached as

Annexure I).

3. That accused Rudul

Sah was of unsound mind ·at

the time of passing the above order. This infor-

,,. mation was sent to the Law Department in letter

No.

1838 dated

10.5.74 of the Superintendent,

Central Jail, Muzaffaqiur through District Magis·

trate, Muzaffarpur.

4. That the Civil Surgeon, Muzaffarpur, reported ori

18.2.77 that accused Rudul Sah was normal and

this information was communicated

to the

'Law

Department on 21.2. 77.

S. That the petitioner, Rudul Shah was treated well in

accordance with the rules in

.the Jail Manual, Bihar,

during the period

of his detention.

6. That the petitioner

was released on 16.10.82 in

compliance with the letter No.

11637 dated 14.10.82

of the Law

Department."

The Writ Petition came up before us on April 26, 1983 when

we adjourned it to the first week of August 1983 since it was n9t

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RUDUL SAH v. BIHAR (Chandrachud, C.J.) 511

clear either from the affidavit filed hy the Jailor . or from the order

of the learned Additional Sessions Judge, Muzaffarpur, which is

annexed to the affidavit as Annexure I, as· to what was the basis on

which it was stated in the affidavit that the petitioner was of unsound

mind or the reason

why the learned Additional

Sessions Judge

directed the detention

of the petitioner . in jail, until further orders

of the

State Government and the Inspector General of Prisons.

The writ petition bas come up for hearing once again before

us today.

If past experience is any guide, no

·useful purpose is

·likely to be served by adjourning the petition in th~ hope that the

State authorities will place before us satisfactory material to explain

the conti~ued detention of the petitioner in jail after bis aquittal.

We apprehend that the present state of affairs, in which we are left

to guess whether the petitioner was not released from the prison

for the benign reason that he was insane,

is not likely to improve

in the near future.

The Jail

or" s affidavit leaves much to be desired. It narrates

with an air

of candidness what is notorious, for example, that the

petitioner

was not released from the jail upon his acquittal and that

. he was reported to

be insane. But it discloses no data on the basis

·

of which he was adjudged insane, the specific measures taken to clire

him

of that

affliction and, what is most important, whether it took

14 years to set right bis mental imbalance. No medical opinion is

. produced in support' of the diagnosis that be was insane nor indeed

js any jail record produced to show what kind of me'tlieal treatment

was prescribed for and administered to him and for hew long. The

letter (No. 1838) dated May 10, 1974 which, according to paragraph

3

of the affidavit, was sent to the I aw Department by the

Superin­

tendent of the Central fail, Muzaffarpur, is not produced before us.

There is nothing to show that the petitioner was found insane on

the very date

of his acquittal. And, if he was insane on the date of

acquittal, he

co~ld not have been tried at all for the simple reason

that an insane person cannot enter upon bis defence. Under the

Code

of Criminal

Procedure, insane persons have certain statutory

rights

in regard to the procedure governing_ their trial. According

io paragraph'.4

of the affidavit, the Civil

Surgeon, Muzaffarpur,

reported on February

18, 1977 that the petitioner was normal and

that this information·was communicated to the Law Department on

February 21,

1977. Why was the petitioner not released for over

St years thereafter? It was on October 14, 1982 that the Law

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512 SUPREME COURT REPORTS [1983} 3 S.C.R.

Department of the. Government of Bihar directed that the petitioner

should

be released. Why was the Law Department so insensitive

to justice?

We are

inclined to believe that the story of the peti·

tioner's insanity is an afterthought and is exaggerated out of prop~r­

tion. If indeed he was insane, at least a skeletal medical record

could have been produced to show that

he was

l:>eing treated for

insanity.

In these circumstances, we are driven

"to the coni:Iusion

that, if at all the p~titioner was found insane at any point of time,

t]le insanity must have supervened as a consequence of his unlawful

detention in jail. -A sense of helplessness and frustration can create

despondency and persistent despondency can lead to a kind

of mental

imbalance.

The concerned Department

of the Government of Bihar could

have afforded to

show a little more courtesy to this Court and to

display a greater ·awareness

of its responsibilities by asking one of

its senior officers to file ari affidavit in order to explain the

callous­

ness which pervades this case. Instead,_ the Jailor has been made a

·scapegoat to own up vicariously the dereliction of -duty on the part

of the higher officers who ought to have known better. This is not

an isolated case of its kind and we feel concerned that there is dark·

ness all around in the prison administration of the State of Bihar.

The Bhagalpur blindings should have opened the

eyes of the

Prison

Administration of the State. But that bizarre episode has taught no

lesson and has failed to evoke any response in· ·the Augean Stables.

Perhaps, a Herculs heas to be found who will clean them by diverting

two rivers through them, not the holy Ganga though.

We hope (and

pray) that tlie higher officials

of the

State will find time to devote

their personal attention to the breakdown of Prison Administration

in the State and re~tify the grave injustice which is being perpetrated

on helpless persons. The High Court

of

Patna should itself examine

this matter and call for statistical data from the Home Department

of the Government of Bihar

·on the question of_ unlawful detentions

in the State fails. A tabular statement from each jail should be

called for, disclosing how many convicts have been in jail for more

than 10 years, 12 years, f4 years and for over 16 years. The High

Court will then be in a positiou to release prisoners who are in un­

lawful detention in the jails and to ask the Stat~ Government to take

steps for their rehabilitation

by payment of adequate compensation

wherever necessary:

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RUDUL SAH v. BIHAR (Chandrachud, C.J.) 513

That takes us to the question as to how the grave injustice

which has been perpetrated upon the petitioner can be rectified, in so

far as it lies within our power to do in the exercise of our writ

jurisdiction under Article 32 of the Constitution. That article confers

power on the Supremt'. Court to issue directions or orders or writs,

including writs in the nature of habeas corpus, mandamus, prohibition,

quo warranto and certiorari, whichever may

be appropriate, for the

enforcement of any of the rights conferred

by

Part III. The right to

-move the Supreme Court by appropriate proceedings for the enforce­

ment of the rights conferred by Part III is "guaranteed", that is to

say, the right to

move the

Supreme Court under Article 32 for the

enforcement

of any of the rights conferred by

Part III of the Consti­

tution is itself a fundamental right.

It is true that Article·32 cannot be used as a substitute for the

enforcement of rights and obligations which can be enforced

efficaciously through the ordinary processes

of Courts, Civil and

Criminal. A money claim has therefore

to· be agitated in and adjudi­

cated upon in a suit instituted in a court of lowest grade competent

to try it. But the important question for our consideration

is whether

in the exercise of its jurisdiction under article

32, this Court can pass

an order for the payment

of money if such an order is in the nature

of compensation consequential upon the deprivation of a fundamental

right. The instant case

is illustrative of such cases. The petitioner

·was detained illegally in the prison for over fourteen years after his

acquittal in a fult-dressed trial.

He filed a Habeas Corpus petition

in this Court for his release from illegal detention. He obtained that

relief, our finding being that

his detention in the prison after his

acquittal was wholly unjustified. He contends that he is entitled to

.. be compensated for his illegal detention and that .we ought to pass

appropriate order for the payment of compensation in this Habeas

Corpus petition itself.

We cannot resist this argument. We see no effective answer to

it save the stale and sterile objection that the petitioner may,

if so

advised, file a suit to recover damages from the

State Government.

Happily, the State's Counsel has not raised that objection, The

petitioner could have been relegated to the ordinary remedy of a suit

if his claim to compensation was factually controversial, in the sense

that a civil court may or may not have upheld his clail"· But w~

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514 SUPREME COURT REPORTS [1983) 3 S.C.R.

have no doubt that if the petitioner files a suit to recover damages for

his illegal detention, a decree for damages would have to be passed

in that suit; though it

is not possible to predicate, in the absence of

evidence, the precise amount which would

be decreed in his favour.

In these circumstances, the refusal of this Court to pass an order of

compensation in favour of the petitioner will

be doing mere lip-service

to his fundamental right to liberty which the State Government has

so grossly violated. Article

21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this

Court were limited to passing orders to release from illegal detention.

One of the telling ways in which the violation of that right can

reasonably be prevented and due compliance with the mandate

of

Article 21 secured, is to mulct its violaters in the payment of monetary

compensation. Administrative sclerosis leading to flagrant

infringe­

ments of fundamental rights cannot be corrected by any other method

open to the judiciary to adopt. The ·right to compensation is some

·palliative for the unlawful acts of instrumentalities which act in the

name

of

public interest and which present for their protection the

powers

of the

State as a shield. If civilisation is not to perish in this

country

as it has perished in some others too well-known to suffer

mention, it

is neeessary to educate ourselves into accepting that,

respect for the rights

of individuals is the true bastion of democracy.

Therefore, the

State must repair the .damage done by its officers

to the petitioner's rights. It may have recourse against those

officers.

Taking into consideration the great harm

done_ to the petitioner

by the Government of Bihar, we are of the opinion that, as an interim

measure, the State must pay to the petitioner a further sum

of

· Rs. 30,000 (Rupees thirty-thousand) in addition to the sum of

Rs. 5,000 (Rupees five thousand) already paid by it. The amount shall

be paid within two weeks from today. The Government of Bihar

agrees to make the payment though,

we must clarify, our order is not

based on their consent.

This order

will not preclude the petitioner from bringing a suit

to recover appropriate damages from the state and its erring officials.

The order

of compensation passed by us is, as we said above, in the

nature of a palliative.

We cannot leave the petitioner penniless until

the end of his suit, the many appeals and the execution proceedings.

/ full-dre?sed debate on the nice points of fact and law which takes

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RUDUL SAil v. BIHAR (Chandrachud, C.J.) 515

place leisurely in compensation suits will have to await the filing of

such a suit by the poor Rudul Sah. The Leviathan will have liberty

to raise those points in that suit. Until then.

we hope, there will be

no more Rudul Sahs in Bihar or elsewhere.

H.L.C. Petition allowed.

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