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CASE NO.:

Appeal (civil) 1276 of 2003

PETITIONER:

S.P.S. Rathore

RESPONDENT:

State of Haryana & Ors.

DATE OF JUDGMENT: 06/05/2005

BENCH:

Y.K.Sabharwal & Tarun Chatterjee

JUDGMENT:

J U D G M E N T

Y.K. Sabharwal, J.

The challenge in this appeal is to the impugned judgment and order

of the High Court directing the District Judge to conduct an enquiry to

ascertain the truth of the averments made by Ashu Girhotra, respondent

No.5 in his affidavit dated 3rd December, 2001 to the effect that he was

implicated in false criminal cases and harassed by the police at the

instance of the appellant, a police officer.

The brief facts are as follows:

A news report published in Chandigarh News Line dated 5th

December, 2000 stated that between 6th September,1992 and 30th August,

1993 six first information reports were registered in police station,

Panchkula in State of Haryana against Ashu Girothra, respondent No.5,

his friend Sandeep Verma, respondent No.6 and Gajinder Singh in car

theft cases. The police after investigation dropped the proceedings against

respondent Nos.5 and 6 in two cases. The Chief Judicial Magistrate,

Panchkula by order dated 30th April, 1997 discharged respondent Nos.5

and 6 in the aforementioned cases on the ground that there was no prima-

facie material for framing charges against them. The news report also

stated that the cases beared an uncanny coincidence that seemed to

suggest that respondent No.5 was systematically framed in the car theft

cases by making him sign confessional statements.

The High Court on 8th December, 2000 took suo motu cognizance of

the aforesaid news report and the judgment dated 30th April, 1997

delivered by the Chief Judicial Magistrate, Panchkula discharging

respondent Nos.5 and 6 in the aforementioned cases of car thefts. In its

order dated 8th December, 2000, the High Court has observed that it

seems the police officials posted at police station, Panchkula were let

loose on respondent Nos.5 and 6 by the appellant, a senior police officer

belonging to Indian Police Service, Haryana cadre in order to pressurize

the sister of respondent No.5 to withdraw the complaint lodged by her

against him for the offences under Section 354 of Indian Penal Code. The

Court issued notices to the appellant, State of Haryana and others calling

upon them to show cause as to why they should not be burdened with

compensation to be paid to respondent No.5 for the harassment caused to

him by falsely implicating him in car theft cases.

Neither the news report nor judgment dated 30th April, 1997 nor any

other material was on record either making any insinuation against the

appellant or even naming him when suo motu cognizance was taken. On

what basis notice was directed to be issued by the High Court to the

appellant has not been explained by learned counsel for the respondents

despite our repeated queries.

After about one year of publication of news report and taking of

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cognizance, an affidavit dated 3rd December, 2001, was filed by

respondent No.5 in the High Court narrating the incidents that led to the

filing of complaint by his sister against the appellant for offences under

Section 354 of Indian Penal Code. He stated that his sister was a member

of the Haryana Lawn Tennis Association, of which the appellant was the

President. He stated that his sister was molested by the appellant on 12th

August, 1990. Their parents took up the matter with the higher authorities

and an inquiry was marked to the then Director General of Police,

Haryana, who in his inquiry found that there was prima facie material to

proceed against the appellant. In spite of this, no case was registered

against him for several years. Then a writ petition was filed by Mrs. Madhu

Prakash, their mother who is said to have been present with her daughter

when the alleged incident of molestation took place. The writ petition was

allowed by an order dated 21st August, 1998 directing registration of case

against the appellant and handing over of the investigation to Central

Bureau of Investigation. Pursuant to order of the Court, first information

report was registered under Sections 354 and 509 Indian Penal Code on

29th December, 1999. It was stated that, since the alleged incident of

molestation took place and till the registration of the case against the

appellant, the family of respondent No.5 was harassed and pressurized by

the police at the instance of the appellant to withdraw the complaint lodged

against him. It was during this time the six FIRs were registered against

respondent No.5. He was arrested on 25th October, 1993 and was tortured

by the police and was forced to sign the confessional statements. He was

so much terrorized that he could not even speak about the harassment by

the police, when he was produced before the Magistrate. He was released

on 29th December, 1993 the day on which his sister committed suicide.

The appellant in his affidavit before the High Court refuted the

allegations made against him. He described the alleged incident of

molestation as false and fabricated. He further stated that he was not

involved in the registration of FIRs against respondent No.5 and that he

has not used his position to pressurize the family of respondent No.5 to

persuade respondent No.5's sister to withdraw the FIR lodged against him.

He stated that during the time the cases were registered and investigated

upon, the concerned police officials were not working under his

administrative control and that there is no material to show that he has

used his position to implicate respondent No.5 in the cases.

In the impugned judgment and order, the High Court recorded a

finding that mere fact that six FIRs were lodged against respondent No.5,

two of which were dropped by the Police after investigation and he was

discharged in the other four cases by the Chief Judicial Magistrate,

Panchkula, by itself is not enough to hold that he had been falsely

implicated in criminal cases in order to put pressure on him to persuade his

sister to withdraw the complaint lodged against the appellant. The Court

further came to the conclusion that the allegations were indeed serious

and if they are true, there may be a case for awarding compensation to

respondent No.5 against the State and against the police officers as well.

The Court held that since the averments in the affidavit of respondent No.5

have been emphatically denied by the appellant, in order to ascertain the

true facts, it would be necessary to allow the parties to lead their evidence.

Accordingly the matter was remitted to the District Judge, Patiala with a

direction that he should himself record the evidence of the parties and

submit a report to the High Court as to,

(1) Whether the averments made by

respondent No.5 in his affidavit are true

or not;

(2) Whether respondent No.5 was harassed

by the police at the instance of petitioner;

(3) Whether FIRs lodged against respondent

no.5 were false and

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(4) Whether those FIRs were lodged at the

instance of petitioner, as alleged.

The learned counsel appearing for the appellant submits that there

was nothing on record to show the involvement of the appellant in the

matter at the time of taking suo motu cognizance. Neither the news report

nor the judgment discharging respondent No.5 in the car theft cases made

any mention about the involvement of the appellant. Further, the appellant

had no control over the police officials who registered the FIRs against

respondent No.5 and subsequently investigated the case, as he was

posted on deputation and was not part of the regular police machinery at

that relevant point of time. It was submitted that after recording a finding

that there was no material to come to the conclusion that respondent No.5

was harassed by the police at his instance, it was not correct to order an

enquiry so as to direct payment of compensation to respondent No.5. It

was submitted that Court can order payment of compensation only when

there is a prima facie or established violation of fundamental right

guaranteed by the Constitution of India. When the foundational fact itself is

in dispute the Court cannot order payment of compensation. The scope of

the enquiry ordered by the High Court is not to find out whether there was

any harassment or not, but to find out whether the appellant is responsible

for the harassment of respondent No.5 It was submitted that respondent

No.5 kept quiet for all years upto 2001 and for the first time in his affidavit

filed on 3rd December, 2001 made false allegations about torture and

harassment by the police at the instance of the appellant.

The learned counsel appearing for respondent No.5 in support of the

impugned judgment submits that there is no infirmity in the order of the

High Court. Since the matter was of serious nature involving violation of

fundamental rights of respondent No.5, the Court has deemed it proper to

direct an enquiry to find out the truth of the matter.

No doubt, the Courts while exercising jurisdiction under Articles 32

and 226 can award compensation for the violation of fundamental rights

guaranteed by the Constitution but such a power should not be lightly

exercised. In Rudul Sah v. State of Bihar & Anr. [(1983) 4 SCC 141],

where compensation was awarded, this Court was faced with a situation

where the petitioner who was acquitted by the Court of Session was

released from jail more than 14 years after he was acquitted. The

petitioner approached the Court asking for his release on the ground that

his detention in the jail was unlawful and claimed compensation for the

illegal incarceration. The petitioner was released from jail and as regards

the compensation for illegal detention the Court held that though 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, however, in order to rectify the grave injustice

perpetrated upon the petitioner by illegally detaining him in jail for 14 years

after his acquittal, which violated his fundamental right to life and liberty

guaranteed under Article 21 of the Constitution of India, the Court in the

exercise of its jurisdiction under Article 32, 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. This principle

has been consistently followed in the subsequent line of cases. Sebastian

M. Hongray v. Union of India (1984) 3 SCC 82; Bhim Singh, MLA v.

State of J&K & Ors. (1985) 4 SCC 677; Peoples' Union For Democratic

Rights & Anr. v. Police Commissioner, Delhi Police Headquarters &

Anr. (1989) 4 SCC 730; State of Maharashtra & Ors. v. Ravikant S.

Patil (1991) 2 SCC 373; Peoples' Union For Democratic Rights v. State

of Bihar& Ors. (1987) 1 SCC 265; Saheli, A Women's Resources

Centre & Ors. v. Commissioner of Police, Delhi Police Headquarters &

Ors. (1990) 1 SCC 422; Arvinder Singh Bagga v. State of U. P. & Ors.

(1994) 6 SCC 565; P.Rathinam v. Union of India & Ors. 1989 Supp (2)

SCC 716; In re Death of Sawinder Singh Grover 1995 Supp (4) SCC

450; Inder Singh v. State of Punjab & Ors. (1995) 3 SCC 702; D. K.

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Basu v. State of W. B. (1997) 1 SCC 416; Chairman, Railway Board &

Ors. v. Chandrima Das (Mrs.) & Ors. (2000) 2 SCC 465).

In Nilabati Behera v. State of Orissa & Ors.(1993) 2 SCC 746] a

writ petition was filed under Article 32 of the Constitution for determining

the claim of compensation consequent upon the death of petitioner's son in

police custody. In view of the denial by the State that death was due to

police harassment when the deceased was in police custody, this Court

gave a direction to the District Judge, Sundergarh in Orissa, to hold an

inquiry into the matter and submit a report. The District Judge reached the

conclusion that it was a case of custodial death. In view of the dispute as

to the correctness of the findings in the report of the District Judge, the

matter was examined afresh by this Court in the light of the objections

raised. This Court also reached the same conclusion on a reappraisal of

the evidence adduced at the enquiry. On this conclusion, the question

arose as to the liability of the State for payment of compensation for

custodial death. The Court held 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 Court further observed that:

"The defence of sovereign immunity being

inapplicable and alien to the concept of

guarantee of fundamental rights, there can be no

question of such a defence being available in the

Constitutional remedy. It is this principle which

justified 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 rights is claimed

by resort to the remedy in public law under the

Constitution by recourse to Articles 32 and 226

of the Constitution."

Justice A.S. Anand (as His Lordship then was) in concurring opinion

observed that:

"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 or

under Article 226, 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 interest

as and preserve their rights. Therefore, when the

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Court moulds 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 exemplary damages awarded against

the wrongdoer 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 prosecute the offender under

the penal law."

It was further observed that:

"This Court and the High Courts, being the

protectors on 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 fundamental rights of the

citizen and no other from of appropriate

redressal by the court in the facts and

circumstances of the case, is possible\005. It is a

sound policy to punish the wrongdoer and it is in

that spirit that the courts have moulded 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

interest 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 right

of a citizen under Article 21 is concerned."

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This legal position has been reiterated in D. K. Basu v. State Of

W.B. [(1997) 1 SCC 416].

Compensation can be awarded for violation of fundamental rights in

public law domain, but the facts of the case in hand do not justify the

directions given in the impugned judgment for conducting of an enquiry by

the District Judge so as to determine the compensation to be awarded to

respondent No.5.

As already noticed, the news report as well as the judgment of

discharge neither mentioned anything about the appellant's involvement in

the registration of FIRs against respondent No.5 and harassment by the

police at his instance nor refers to the complaint by respondent No.5's

sister alleging molestation by the appellant. The High Court went beyond

the material on record while taking suo motu cognizance of the matter.

What made the High Court to issue notice to the appellant while taking suo

motu cognizance has not been explained to us despite repeated queries to

learned counsel for the respondents.

Further, the validity of the directions of the High Court has to be

seen in the light of the silence of respondent No.5 for more than seven

years after release from jail. The allegations of harassment by the police

at the instance of the appellant were made for the first time by filing of the

affidavit before the High Court on 3rd December, 2001. Respondent No.5

is neither illiterate nor any other factor has been brought to our notice

which compelled him to remain silent for number of years. The alleged

incident of molestation of respondent 5's sister took place on 12th August,

1990. The FIRs implicating respondent No.5 in the car theft cases were

registered during the period between 6th September, 1992 and 30th August,

1993. Respondent No.5 was discharged in the car theft cases by the Chief

Judicial Magistrate, Panchkula on 30th April, 1997. How the news report

suddenly came to be published after so many years is again a mystery.

From the date of the registration of FIRs till the date of the filing of the

affidavit before the High Court, respondent No.5 made no complaint that

he was harassed by the police at the instance of the appellant.

There is a serious dispute as to factum of harassment by police at

the instance of the appellant. Not only the fundamental fact itself but also

the very basis of issue of notice to the appellant is in serious dispute.

In Chairman, Grid Corporation of Orissa Ltd. (Gridco) & Ors. v.

Sukamani Das (Smt.) & Anr. [(1999) 7 SCC 298] the question which

arose for consideration was, can the High Court under Article 226 of the

Constitution award compensation for death caused due to electrocution on

account of negligence, when the liability was emphatically denied on the

ground that the death had not occurred as a result of negligence, but

because of an act of God or of acts of some other persons. The Court held

that it is the settled legal position that where disputed questions of facts

are involved, a petition under Article 226 of the Constitution is not a proper

remedy. Therefore, questions as to whether death occurred due to

negligence or due to act of god or of some third person could not be

decided properly on the basis of affidavits only, but should be decided by

the civil court after appreciating the evidence adduced by the parties. In

Tamil Nadu Electricity Board v. Sumathi & Ors. [(2000) 4 SCC 543], it

was held that when a disputed question of fact arises and there is clear

denial of any tortuous liability, remedy under Article 226 of the Constitution

may not be proper. The Court carved out exception to this general rule by

observing that, it should not be understood that in every case of tortuous

liability, recourse must be had to a suit. When there is negligence on the

face of it and infringement of Article 21 is there, it cannot be said that there

will be any bar to proceed under Article 226 of the Constitution.

In Khatri & Ors. (IV) v. State Of Bihar & Ors. [(1981) 2 SCC 493],

it was held that in order to succeed in claiming relief under Article 32,

violation of fundamental right has to be established and that is the

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foundational fact which must be established before the petitioners can

claim relief under Article 32. The Court observed that:

"The court is not helpless to grant relief in a

case of violation of the right to life and personal

liberty, and it should be prepared 'to forge new

tools and devise new remedies' for the purpose

of vindicating these precious fundamental rights.

It was also indicated that the procedure suitable

in the facts of the case must be adopted for

conducting the inquiry, needed to ascertain the

necessary facts, for granting the relief, as the

available mode of redress, for enforcement of the

guaranteed fundamental rights."

In Nilabati Behera v. State of Orissa & Ors. [(1993) 2 SCC 746],

the Court has also broadly specified the situations in which the remedy of

providing compensation for violation of fundamental rights available under

the domain of public law has to be invoked. The Court held that:

"If 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-nots,

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."

It was further held that:

"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

mount of circumspection and self- restraint, lest

proceedings under Article 32 or 226 are misused

as a disguised substitute, for civil action in

private law."

The sparing exercise of power under Article 32 or Article 226 of

Constitution of India for issue of directions to conduct enquiry to determine

compensation in glaring and clear cases of rape by police officials, custody

death, illegal detention of poor and helpless cannot be resorted to in the

case of present nature.

There were no such circumstances which necessitated the exercise

of such a power.

Having regard to the facts of the case and the legal principles noted

above, the impugned judgment directing the District Judge to conduct

enquiry cannot be sustained. Therefore, the impugned judgment is set

aside and the appeal allowed.