Illegal Detention; O.P. Gandhi Vs. PIO, Tihar Jail [Central Information Commission, 25-07-2016]

Right to Information Act, 2005 – Compensation for the extra 18 days detained in jail – It is the duty of state and Jail authorities to have the policy of paying compensation for breach of their own remission policy resulting in deprivation of liberty of citizen. The Jail authorities have a duty not to drive the citizen to courts. They know that legal rights of prisoners to be released on due date, after meticulously calculating the remissions are under violation.

Compensation

Held, An ordinary citizen like appellant cannot afford to either go to civil court nor Constitutional Court for ordinary damages or exemplary damages. The state should have a remedy within its policy. Either the department of Jails or Home or the Government in general should come up with a policy of compensating the prisoners who suffer wrongs at the Jail including extra­ illegal­ detention. Jail authorities cannot plead helplessness quoting absence of policy as an excuse and drive them to courts of law.


CENTRAL INFORMATION COMMISSION

(Room No.315, B­Wing, August KrantiBhawan, BhikajiCama Place, New Delhi 110 066)

Prof. M. Sridhar Acharyulu (Madabhushi Sridhar)

Central Information Commissioner CIC/SA/A/2016/000884

O P Gandhi v. PIO, Tihar Jail

Decision: 25.07.2016

1. Appellant is present. None represented the Public authority.

FACTS :

2. Appellant sought information on the following:

a. When shall I receive compensation for the extra 18 days detained in jail?

b. Is the government in agreement with the Commission order no. 431 and 432 dated 04.07.2015?

c. Does the government agree with the reply given by Central Jail­5 to the Commission by letter number F­5/SCJ­5/EJ­5/NTI/2015/ dated 06.08.15?

d. Does the Government agree with the Judgment of

Rudul Shah v. State of Bihar, AIR 1983 SC 1086

3. The PIO replied on 25.01.2016. FAA directed the PIO, CJ­5 to send reply to the appellant within 10 days. Appellant approached the Commission.

4. Appellant’s submission:

The appellant was convicted under Section 138 of the Negotiable Instruments Act for dishonour of cheque for insufficiency, etc., of funds in the account. He was first arrested on 23rd November 2010 and was granted bail on 24th December 2010. The trial went on for 3 years and the appellant was convicted on 26 th November 2013 on the above grounds for a period of one year simple imprisonment and fine.

Month Total Remission Government Special Special Remission Admission by Jail days of as per jail Remission Remission by by Director Authorities to Remiss rules Superinten­dent General Remissionsion

December 2013 2 2 ­ ­ ­ Yes

January 20 5 15 ­ ­ Yes

February 5 5 ­ ­ ­ Yes

March 5 5 ­ ­ ­ Yes

April 5 5 ­ ­ ­ Yes

May 5 5 ­ ­ ­ Yes

June 5 5 ­ ­ ­ Yes

July 5 5 ­ ­ ­ Yes

August 15 ­ 15 ­ ­ Yes

Other 16 ­ ­ 15 1 Yes

Remission Remission

5. As per the term of imprisonment, he was supposed to be released on 24th October 2014. However, the appellant contended the release date to be 2nd August 2014 as per the remissions provided by the Jail authorities and others. The appellant filed 36 RTI applications concerning the gross injustice meted out to him in Jail. As per Commission’s order number CIC/SA/A/2015/000640 dated 23.6.2015, the appellant was supposed to compile all his complaints and file the same with the Jail authorities for comprehensive redressal. The authorities were asked to respond to the same within 30 days. The jail authorities, in reply to the various RTI applications, have admitted to all the remissions as provided below, which sets the release date at 2nd August 2014 as contended by the appellant. Note: Scanned copy of the response by the jail authorities attached herewith.

6. Seeking timely release of appellant, his son wrote to the Jail authorities intimating them about the exact release date. Further, the appellant also wrote to the authorities on 4th August 2014, two days after the supposed release date. The Jail authorities have denied receipt of any such letter. The Jail authorities did not inquire about the appellant’s bail status in an on­going case in the court of Judicial Magistrate Ist Class, Faridabad, Haryana which was required as per law before the release of the convict which has further delayed the release of the appellant. Vicarious liability of state for wrongs of employees:

7. Whether the Government should be made liable for the wrongs of its employees that caused damage to the citizen? This question generated lot of debate and jurisprudence by wisdom of learned judges of Constitutional Courts in India.

8. In the case of

State of Rajasthan v Mst. Vidhyawati & Anr, 1962 AIR 935

the court stated that:

“Now that we have by a constitution established a republican form of government and one of the objectives is to establish a socialistic state with its varied industrial and other activities, employing a large army of servants, there is no justification, in principle or in public interest that the State should not be held liable vicariously for the tortious acts of its servants.”

9. This was real justice needed in democracy. But almost at the same time, a ridiculous state of affairs prevailed as reflected in

Kasturilal vs. State of U.P., AIR 1962 SC 933

In this case a gold merchant Kasturilal was suspected by police to be a thief, was detained and his gold ornaments were put in safe chest. When a police constable stole them and fled the country, Kasturilal sought return of gold or cost of it. State pleaded immunity saying it was not liable for theft committee by its constable. The Chief Justice of Supreme Court Justice Gajendra Gadkar has unfortunately laid down that if constable had committed wrong while exercising his sovereign police function, state was not liable. But understanding the most unjustifiable nature of this rule, CJI advocated for policy of state liability of such wrongs committed by its employees including police. The archaic principle of state immunity is criticised and removed by the Supreme Court in several orders. Now there is no state immunity and state is in principle liable. But unfortunately the state in practice is escaping from its liability and enjoying virtual immunity by not having any policy to pay compensation to victims like appellant. This injustice is going on because state is exploiting the poverty of prisoners, increased cost and time of litigation and burden of pendency on courts which almost denies the remedy. 10. In plethora of cases, the Supreme Court has generated prisoner rights jurisprudence valuing the life and liberty of unfortunate people. Prisoner’s rights have been recognized not only to protect them from physical discomfort or torture in person, but also to save them from mental torture. The Right to Life and Personal Liberty enshrined in Article 21 cannot be restricted to mere animal existence. In