Illegal Detention; Sunderlal Patel Vs. High Court of Chhattisgarh [11-04-2016]

Constitution of India, 1950 – Article 21 – Illegal detention – Deprivation of personal liberty – Quantum of compensation – A person detained in jail despite the order of release by the appellate Court is entitled for compensation of his illegal detention for breach of his fundamental right.

Petitioners convicted under Narcotic Drugs and Psychotropic Substances Act – Conviction upheld by High court but sentence reduced to already under gone – Petitioners, however, not released from jail in-spite of certified copy of order received by respondent Nos. 2 and 3 – Petitioners remained in jail for 113 days – Petitioner agricultural labourers – Lost earnings as per Minimum Wages Act – Petitioners directed to be paid Rs. 50,000/ by State.


HIGH COURT OF CHHATTISGARH, BILASPUR

Hon’ble Shri Justice Sanjay K. Agrawal

11/04/2016

Writ Petition (Cr.) No.29 of 2014

1. Sunderlal Patel, aged 34 years, S/o Shri Koduram Patel, 2. Bahorikram Bhatt, aged 54 years, S/o Shri Sukhram Bhatt, Both are residents of Village Sarmandi, P.O. Solounikala, P.S./Tahsil Bhatgaon, District Balodabazar-Bhatapara (C.G.) —- Petitioners Versus 1. The High Court of Chhattisgarh, through the Registrar General, Chhattisgarh High Court, Bilaspur, P.S./P.O. Chakarbhata, Tahsil Bilha, District Bilaspur (C.G.) 2. The Sessions Judge-cum-Special Judge, Janjgir, P.S./P.O./ Tahsil Janjgir, District Janjgir-Champa (C.G.) 3. The Superintendent of Central Jail, Bilaspur, P.S. Civil Line, P.O./Tahsil/District Bilaspur (C.G.) 4. The State of Chhattisgarh, through the Secretary, Ministry of Law, Mahanadi Bhawan, New Raipur, P.O./P.S./Tahsil/ District Raipur (C.G.) —- Respondents For Petitioners: Mr. Somnath Verma, Advocate. For Respondents No.1 and 2: – Mr. Praveen Das, Advocate. For the State/Respondents No.3 and 4: – Mr. Dheeraj Kumar Wankhede, Govt. Adv. Amicus Curiae: Mr. Saurabh Dangi, Advocate.

CAV Order

1. Father of our Nation said: –

“To deprive a man of his natural liberty and to deny to him the ordinary amenities of life is worse than starving the body; it is starvation of the soul, the dweller in the body.”

“Mahatma Gandhi”

2. Complaining infringement of their fundamental right guaranteed under Article 21 of the Constitution of India i.e. protection of life and personal liberty, the petitioners herein, who are two in numbers, have filed this writ petition stating inter alia that they have been unlawfully and illegally detained by respondents No.2 and 3 for 113 days depriving them of their personal liberty and therefore, they are entitled for monetary compensation from the respondents jointly and severally, and also seek a direction for holding departmental action for illegal detention against respondent No.2/respondent No.3.

3. The writ petitioners have sought the above-stated relief(s) on the following factual backdrop: —

3.1) The petitioners herein were charge-sheeted and prosecuted for commission of offence under Section 20(b)(i)(ii) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 in Special Case No.1/2011. The Special Judge (NDPS) respondent No.2 herein by its judgment delivered on 27-7-2011 convicted them for the above-stated offence and sentenced them to undergo R.I. for five years and further sentenced them to pay a fine of ₹ 5,000/- each, in default to further undergo RI for six months.

3.2) Feeling aggrieved and dissatisfied against the judgment of conviction recorded and sentence awarded for five years and fine, the petitioners preferred criminal appeal under Section 374(2) of the CrPC before this Court bearing Cr.A.No.657/2011 titled as Sunderlal and another v. The State of Chhattisgarh. This Court ultimately upon hearing to the parties, delivered judgment on 18-6-2013 and upheld the conviction but the jail sentences awarded to the petitioners were reduced to the period already undergone by them.

3.3) In compliance of the judgment of this Court as required under the criminal rules and orders, the Registry of the High Court by its memo dated 25-6-2013 endorsed the copy of the judgment duly certified to the Special Judge, NDPS Act, JanjgirChampa – respondent No.2 herein and to the respondent No.3 herein – Superintendent of Central Jail and also to the petitioners herein through the Superintendent, Central Jail, Bilaspur for information and necessary action. The certified copy of the judgment of this Court (High Court) was duly received in the Court of Special Judge (NDPS)/respondent No.2 herein, but no release/super-session warrant was issued directing the jail authorities to release the petitioners upon the jail sentence held to be undergone by this Court and thereafter, some how, the petitioners made an application only on 9-10- 2013 before the Court of Session, Janjgir-Champa and on the same day, they were released, but in the meanwhile, from 18-6-2013 to 8-10-2013 = 113 days, they remained in jail, even though their jail sentences were reduced to the period already undergone, by this Court. 4. The petitioners herein feeling aggrieved by the said detention, have filed this writ petition alleging that their illegal and unlawful detention of 113 days after the jail sentence having been held to be undergone by the High Court, is clearly unauthorized and has occurred on account of carelessness on the part of the Presiding Officer of respondent No.2 and respondent No.3 which resulted in violation of their fundamental right guaranteed under Article 21 of the Constitution of India for which they are entitled for monetary compensation from the respondents particularly, respondents No.3 and 4, and an appropriate departmental action be directed to be initiated against the official respondents who may be found responsible for negligence in duty and illegal detention of the petitioners. It has been further pleaded that the petitioners have suffered monetary loss on account of their illegal detention apart from mental, physical and psychological pain and suffering and as such, appropriate writ(s) be issued against the respondents herein.

5. Respondents No.1 and 2 have filed joint return stating inter alia that the petitioners’ jail sentences were directed to be undergone by this Court by judgment dated 18-6-2013 passed in Cr.A.No.657/2011 by partly allowing the appeal and upholding the conviction. The Registry of respondent No.1 immediately, on 25-6-2013, dispatched the copy of the judgment dated 18-6-2013 to the Special Judge (NDPS Act), Janjgir-Champa; to the Chief Judicial Magistrate, Janjgir; and to the Superintendent, Central Jail, Bilaspur, where the accused persons/petitioners herein were confined; and also to the accused persons through the Superintendent, Central Jail, Bilaspur which was duly received by the Reader of the Special Judge, NDPS Act on 12-7-2013, but the Reader of the Special Judge Shri Anil Singh did not place the judgment duly received by him before the Sessions Judge, Janjgir-Champa and the said judgment remained with him. On 9-10-2013, an application was moved on behalf of the petitioners herein before the Court of Session, Janjgir for releasing them. The Sessions Judge immediately issued release order and thus, the petitioners were released on the same day. It was further pleaded that the Court of Special Judge, NDPS Act, Janjgir was functioning till 30-3-2013 and thereafter, on 1-4-2013, Shri J.V. Nimonkar was appointed as Additional Sessions Judge (FTC), Janjgir-Champa, however, the Court of Additional Sessions Judge (NDPS Act) was lying vacant. On 3-7-2013, the District Judge transferred the NDPS matters to the Fast Track Court for hearing and disposal in accordance with law. Shri Anil Singh was posted as Reader to the Additional Sessions Judge (FTC) and in that capacity, on 12-7-2013, he received the certified copy of the judgment dated 18-6-2013 but he did not produce the same before the District Judge or before the Additional Sessions Judge (FTC), who was hearing the NDPS matters, for release of the petitioners and that resulted in unfortunate delay in releasing the petitioners and there is no delay attributed to either respondent No.1 or respondent No.2 which resulted in release of the petitioners. It has been further pleaded that for misconduct committed by Shri Anil Singh, a departmental enquiry has been instituted and charge-sheet has been issued to him on 1-9-2015 and departmental proceeding is pending consideration, as such, the writ petition against respondents No.1 and 2 deserves to be dismissed.

6. Respondents No.3 and 4 – the State Government have filed their separate return stating inter alia that respondent No.3 has acted faithfully and diligently in accordance with law complying the provisions contained in Section 425 of the CrPC as well as Rule 768 of the Jail Manual and on receipt of super-session/ release warrant on 9-10-2013, respondent No.3 with utmost promptness released the petitioners on the same day on 9-10- 2013 as such, the writ petition deserves to be dismissed against respondents No.3 and 4.

7. Mr. Somnath Verma, learned counsel appearing for the writ petitioners, would vehemently submit that the petitioners’ jail sentences having been held to be undergone by this Court on 18-6-2013, it was the duty on the part of respondents No.2 and 3 to release the petitioners immediately thereafter by taking minimal time in issuing the super-session warrant, but the presiding officer of respondent No.2 and respondent No.3 even after getting the order passed by the High Court duly certified under Section 425 of the CrPC, did not act promptly and failed to take steps for releasing the petitioners by which they remained in jail for 113 days which resulted in violation of their fundamental right provided under Article 21 of the Constitution of India which is plainly unauthorized in law. The presiding officer of respondent No.2 and respondent No.3/Jail Superintendent are responsible for the alleged unlawful act of illegal detention of the petitioners for 113 days for which respondent No.4 being the employer is liable to make payment of compensation and this Court in exercise of jurisdiction under Article 226 of the Constitution of India can grant such compensation. Mr. Verma would further submit that apart from grant of compensation, necessary direction as the Court deems fit be issued for prosecuting the responsible officer(s) for the alleged violation of the fundamental right of the petitioners by allowing this writ petition with cost(s).

8. Mr. Praveen Das, learned counsel appearing for respondents No.1 and 2, would stoutly submit that respondent No.1 with utmost promptness certified the judgment of the High Court under Section 425 of the CrPC read with Rule 315 of the Criminal Courts—Rules and Orders and has promptly sent to respondent No.2 but the Reader of respondent No.2 did not produce the copy of the judgment/certified order before the presiding officer of respondent No.2 – NDPS Court which resulted in non-issuance of release warrant right in time, but ultimately, when an application was moved on behalf of the petitioners on 9-10-2013, release warrant was immediately issued by the presiding officer of respondent No.2 and the petitioners were released without any delay. Mr. Das would further submit that for the lapse committed by Shri Anil Singh, Reader of respondent No.2, regular disciplinary proceeding has already been initiated and charge-sheet has also been served upon him, as such, there is no carelessness or delay on the part of respondents No.1 and 2 in releasing the petitioners upon jail sentence held to be undergone by this Court. Mr. Das would also submit that the writ petition as framed and filed claiming compensation is not at all maintainable and the petitioners be relegated to the remedy of traditional civil suit for the alleged violation, if any, as such, the public law remedy under Article 226 of the Constitution of India cannot be invoked by the petitioners. Therefore, the writ petition deserves to be dismissed.

9. Mr. Dheeraj Kumar Wankhede, learned Government Advocate appearing for the State/respondents No.3 and 4, would submit that the super-session/release warrant was issued by respondent No.3 only on 9-10-2013 and the petitioners were released on the same day i.e. on 9-10-2013 acting promptly and complying the super-session/ release warrant confirming to Rule 768 of the Jail Manual and Section 425 of the CrPC issued by respondent No.2 NDPS Court and as such, respondents No.3 and 4 cannot be held liable and the writ petition against them deserves to be dismissed. 10.Mr. Saurabh Dangi, learned amicus curiae, would submit that the petitioners remained in jail for 113 days after their jail sentences were held to be undergone by the High Court on 18- 6-2013 and their continuance in jail thereafter till 9-10-2013 was completely unauthorized and illegal which has resulted in violation of their fundamental right for which they are entitled for monetary compensation from respondents No.3 and 4 in the writ petition filed, which is maintainable in law for such an unauthorized act by respondents No.2 to 4. 11.I have heard learned counsel for the parties and considered their rival submissions made by either side herein and also gone through the record with utmost circumspection.

12. After hearing learned counsel for the parties and after going through the record, following questions emerge for consideration: –