TMI Blog2012 (12) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... treatment. Ext. P1 is the paper report with photograph of the petitioner describing the incident published in Deccan Chronicle dated 16/04/2012. Ext. P2 is the photograph showing profuse bleeding from the teeth socket of the upper jaw of the petitioner and blood splashed on the motor bike. The action of the police is an infringement of the right to life of the petitioner guaranteed under Article 21 of the Constitution of India. By the police action, the petitioner's right to carry out profession guaranteed under Section 19(i)(g) of the Constitution of India also is infringed. The petitioner has done nothing as against any law or Rule. The interception of the police was deliberate, wilful with a malicious intention to inflict injury on the petitioner. The above act of the respondents 5 to 7 causing injury is an infringement upon human rights also. Since the culprits are police officers, the possibility to bring the offenders before law is remote and interference of this Court is warranted. Hence filed this writ petition. Though several reliefs are sought for, arguments advanced at the bar were mainly focused on the relief seeking a direction to the 1st, 4th, 5th, 6th and 7th re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anent employees of the Government. Since the 7th respondent is a home guard only, Government is not having any vicarious liability for the untoward incident anything happened due to his action. 2. The respondents 5 to 7 filed counter affidavits separately raising identical contentions. The common contention inter-alia raised by all these respondents is that the injury was sustained when the 7th respondent tried to stop the motor vehicle by stretching and waiving his lathi and that resulted in injuries and the losing of five teeth of the petitioner. According to them, a fair and full fledged investigation was conducted and also a detailed enquiry was conducted by Special Branch Deputy Superintendent of Police. In the enquiry as well as in the investigation, there was no allegation against the respondents 5 and 6. After a full fledged investigation by the Superior Officers, Crime No. 644/2012 of Njarakkal police station was registered against the 7th respondent and final report was already submitted and the same is pending consideration before the Judicial First Class Magistrate. According to them, they were doing their official duty. 3. The petitioner filed reply affidavits se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment is keeping vigil over the investigation. Therefore, there is no circumstance warranting interference of this Court. The 7th respondent was arrested immediately, remanded to judicial custody and released on bail only after 34 days. Regarding the liability of the State for the Act done by the 7th respondent, he contended that he is not a permanent employee of the police and he was being employed for ₹ 350/- per day only. Since he is not a permanent employee, the State is not vicariously liable for the wrongful act. I Question 7. In view of the rival contentions, the prime question to be considered is notwithstanding the right to seek remedy available under the civil law or criminal law to the petitioner as a victim of police torturing, can this Court direct the State to grant monetary compensation to the petitioner for the infringement of fundamental right guaranteed under Article 21 of the Constitution of India, in the writ jurisdiction under Article 226 of the Constitution of India? Sovereign immunity 8. Let us examine the pedigree of law granting the right to sue against State for its liability to people. The King can do no wrong and the King cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the decision in State of Bihar v. Abdul Majid, AIR 1954 SC 245, the Supreme Court has departed from the common law Rule that civil servant cannot maintain a suit against the Crown. The Apex Court recognised the right of a Government servant to sue the Government for recovery of arrears of salary. When the Rule of Immunity in favour of the Crown based on common law in the United Kingdom, has disappeared from the land of its birth, there is no legal warrant for holding that it has any validity in this country , the Apex Court observed: 12. In State of Rajasthan v. Mst. Vidhyawati and another, 1962 SC 933 the driver of a jeep, owned and maintained by the State of Rajasthan for the official use of the Collector of a District, drove it rashly and negligently while bringing it back from the workshop after repairs and knocked down a pedestrian who fatally injured and died. While upholding liability of the State to grant compensation, the Supreme Court observed that: Now that we have by our 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd by the Crown Proceedings Act, 1947. 14. After 34 years, a three Judges Bench of the Apex Court in Common Cause, a Registered Society v. Union of India did not follow the decision in Kasturi Lal's (supra) case and observed that the efficaciousness of this decision as a binding precedent has been eroded and the theory of sovereign power which was propounded in Kasturilal's case has yielded new theories and is no longer available in a welfare state. 15. In Rudul Sah v. State of Bihar, (1983) 4 SCC 141, the petitioner filed a habeas corpus petition under Article 32 seeking his release from detention in jail on the ground that his detention after his release by the Sessions Court on June 3, 1968 was illegal, and also seeking ancillary reliefs viz. compensation for his illegal detention in jail for over 14 years, his medical treatment at government expense and ex gratia payment for his rehabilitation. The Supreme Court completely departed from the old doctrine of Crown Immunity and observed as follows: The Apex court held that: Although Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (emphasis supplied) 17. In D.K. Basu v. State of West Bengal, 1997 (1) SCC 416, the Supreme Court again considered the question of claim for damages in case of violation of rights guaranteed under Article 21 of the Constitution, while laying down certain principles to be followed in all cases of arrest and detention which was made applicable to this entire country. The Supreme Court held that: 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 for tortuous acts of the public servants. Public law proceedings serve a different purpose than the private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20. We must remind ourselves the anguish and hope that expressed by Lord Denning in 1949 in his Lecture under the title Freedom under the Law which was referred to in Nilabati Behra Vs. State of Orissa, 1993 (2) SCC 746 and extracted below: 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 abuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to such extent as may be prescribed. Lastly according to Section 14, Home Guards acting under the Act shall be deemed to be public servants within the meaning of section 21 of the Indian Penal code. 25. On a conjoint reading of the above provisions, it could be seen that the 'Home Guards' acting under the police force is a body constituted by the Government and its members are determined by the Government. They have same powers, privilege and protection as that of an officer of the police force. Their status as an employee acting under the Government is declared by Government by including them in the definition of 'Public Servant' under Section 21 of the Indian Penal Code. Therefore, undoubtedly we find that the Government is liable for the act or omission made by the Home Guards in the course of their employment while employed by the Government. The act done by the Home Guards in the course of their duty under the Police force shall be deemed to be an act done in the course of employment under the State and State shall be held liable for such act as if it had been done by the police force. Therefore, we reject the contention raised by the 3rd respondent denyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of respondents 6 and 7. We are not considering these disputed issues. These are 'facts in issue' which fall under the domain of criminal court or Civil Court in whose jurisdiction the act was done. We are considering the question of granting compensation by the State for the infringement of fundamental right in view of the admitted and indisputable facts only and leaving all remaining above said controversies to competent courts as the case may be. 27. The next point which was urged before us by the learned Addl. Advocate General is that Police Complaint Authority is the proper and competent forum under whose jurisdiction a complaint alleging physical attack of police would lie. Our attention was drawn to a Judgment of a Division Bench of this Court in Aslam v. State of Kerala, 2011 (2) KLT 601. We would think that the principle was laid down, no doubt, inter alia, that the provisions in Section 17E of the Police Act, 1960 contain sufficient teeth to protect life and liberty of citizens who complain about police harassment. We notice that, that was a case where the Writ Petition was filed on the allegation that the petitioners were being harassed on the instruction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n act of God or acts of some other persons. In view of that factual controversy, Supreme Court found that interference under Article 226 of the Constitution of India was not justifiable. In the instant case, it is admitted that injury was caused by the act of the 7th respondent in the course of his duty while employed by the State. Therefore, in the absence of factual controversy we find that the above decision is not applicable to the instant case. 29. The learned counsel for the petitioner drew our attention to the status of the petitioner as a 'Lawyer' in the society, highlighted the majesty and dignity of the legal profession and its members with a view to vindicate the right and entitlement of compensation and cited in Haniraj. L. Chulani v. Bar Council of Maharashtra and Goa, AIR 1996 SC 1708 and O.P. Sarma and Others v. High Court of Punjab and Hariyana, 2011 (6) SCC 86, Harish Uppal v. Union of India, 2003 (2) SCC 45. We also agree with the dignity and majesty of the legal profession in Indian society and status of a lawyer as the officer of the court. But, we may say when considering the right and entitlement of fundamental rights especially the right to life un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh v. State of U.P., AIR 1963 (SC) 1295 the Supreme Court held that unwarranted domiciliary visit by the police can be held to be violative of Article 21. 32. It is implicit that a person must be free from fear and threat to life inasmuch as life under fear and threat of death will be no life at all. The right to life would include right to live with human dignity. (Chameli Singh v. State of U.P., AIR 1996 SC 1051) and Olga Tellis Case (AIR 1986 SC 180). 33. There is a great responsibility on the police to ensure that citizen in its custody is not deprived of his right to life. Wrongdoer is answerable to the victim and the State. State is responsible to the person, if the person is deprived of his life except according to the procedure established by law. Right to Life and police interference 34. Protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society. The fundamental issue in this writ petition is whether monetary compensation should be awarded to the victims against the same for established infringement of the fundamental rights guaranteed by Article 21 of the Constitution of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has judicially evolved that such victims are entitled to get compensation under public law in addition to remedies under private law. We find that the petitioner is entitled to get compensation from the first respondent/State for the infringement of his right to life and personal liberty at the hands of the respondents 5 to 7. Compensation: An order of payment of compensation would amount to enforcement of the rights that had been contravened. It is clearly a form of redress and it will be the only practicable form of redress. The enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention. 37. Lastly, what is the quantum of compensation? We feel that when considering quantum of compensation, his status, as a lawyer also having some relevancy, particularly when the act done by the respondents infringed his right to practice, his profession at least for a short period. Moreover permanent damages caused on the face of the petitioner is not denied by the respondents, and he is aged only 25. Replacement of 5 teeth is an expensive treatment also. None of the respondent disputed the life background ..... X X X X Extracts X X X X X X X X Extracts X X X X
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