PANKAJ KUMAR SHARMA vs GOVT OF NCT OF DELHI & ORS.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 12th MARCH, 2024
IN THE MATTER OF:
+ W.P.(C) 3851/2023
PANKAJ KUMAR SHARMA ….. Petitioner
Through: Mr. Dhruv Gautam, Mr. Tushar Tyagi, Advocates with Petitioner in-person.
versus

GOVT OF NCT OF DELHI & ORS. ….. Respondents
Through: Ms. Hetu Arora Sethi, ASC for GNCTD with Ms. Kavita Nailwal and Mr. Arjun Basra, Advocates for Delhi Police.
Mr. Tanmaya Mehta, Mr. Dhananjay Sehrawat and Mr. Mukul Yadav, Advocates for R-4 with Respondent No.4 in-person.
CORAM:
HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT (ORAL)
1. The Petitioner had approached this Court by filing the instant writ petition praying for compensation for his illegal arrest and detention in police lock up on 02.09.2022 at Police Station Badarpur, New Delhi and for recovering the compensation from Respondent No.4, Respondent No.5 or any other officer who is found to have been part of the illegal and arbitrary detention of the Petitioner.
2. This Court allowed the writ petition vide Judgment dated 05.10.2023. Relevant portion of the said Judgment dated 05.10.2023 reads as under:
“14. The time spent in the lock-up by the Petitioner, even for a short while, cannot absolve the police officers who have deprived the Petitioners of his liberty without following the due procedure established by law. A punishment of censure which is not likely to have any effect on the career of the police officers will not be a sufficient deterrent to the officer. The censure should be of such nature that other officers too must not emulate such actions in future. This Court is of the opinion that a meaningful message must be sent to the authorities that police officers cannot be law unto themselves. In the facts of this case, even though the illegal detention of the Petitioner was only for about half an hour, this Court is inclined to grant compensation of Rs.50,000/- to the Petitioner, which shall be recovered from the salaries of Respondents No.4 and 5.”

3. Respondent No.4 challenged the aforesaid Judgment dated 05.10.2023 before this Court by filing an appeal being LPA No. 50/2024 and the same was disposed of by the Division Bench of this Court vide Order dated 15.01.2024 by observing as under:
“4. Keeping in view the fact that the learned Single Judge has fastened personal liability upon the appellant, this Court is of the view that the appellant should have been served personally and should have been given an opportunity to put forward his defence prior to any order being passed. Consequently, as the impugned order has been passed in violation of principles of natural justice, the impugned order qua the appellant is set aside. The matter is remanded back to the learned Single Judge for a fresh hearing qua the appellant on 02nd February, 2024.”

4. Pursuant to the aforesaid Order passed by the Division Bench, a reply has been filed by Respondent No.4 stating that the Respondent No.4 is not responsible for putting the Petitioner in the lock up.
5. The facts in brief leading to the filing of this writ petition are as under:-
i. On 02.09.2022, a complaint was received vide DD No.85A at Police Station Badarpur stating that ‘lady ko sbzi wale ne chaku maar diya h’. The said complaint was marked to SI Rajeev Gautam who reached the spot where he found one Smt. Kranti and the Petitioner herein.
ii. It is stated that the lady was not sent for any medical examination nor was her statement recorded. It is stated that SI Rajeev Gautam brought the Petitioner to the Police Station and placed him in lock-up through SI Shamim Khan, who had put the Petitioner in the lock-up at 11:01 PM and let the Petitioner out of the lock-up at 11:24 PM. Material on record also record reveals that the Petitioner was put inside the lock-up without any formal arrest/FIR or DD entry.
iii. It is stated that pursuant to the said incident, the Petitioner filed a complaint to the Commissioner of Police (Hqs.), but no action had been taken against the erring officers.
iv. Stating complete inaction on the part of the Police on the complaint made by the Petitioner regarding his illegal detention in a police lock-up without any formal arrest, the Petitioner has approached this by filing the instant writ petition claiming compensation.
6. Notice was issued on 27.03.2023. Status Report has been filed on behalf of Respondents No.1 to 3 stating that inquiry was initiated against Respondent No.4 & Respondent No.5 herein, i.e., SI Rajeev Gautam and SI Shamim Khan, and a punishment of censure has been imposed on them.
7. Material on record indicates that on the complaint filed by the Petitioner, the matter was investigated by the PG Cell/South East District, Sarita Vihar.
8. The facts of the case reveal that, even though it was for a short period of time, the Petitioner was deprived of his personal liberty, a right protected under Article 21 of the Constitution of India. It is evident that the authorities acted in a high-handed manner without respecting the Petitioner’s liberty placed him in the lock-up without following due procedure of law or the principles that have been laid down when an arrest is made.
9. The Apex Court in D K Basu v. State of West Bengal, 1997 (1) SCC 416, had directed the following requirements to be fulfilled in case of arrest. Paragraph 35 of the said judgment reads as under:-
“35. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. ”

10. This Court is deeply troubled by the fact that the Petitioner was not even arrested. He was simply picked up from the spot, brought to the Police Station and placed inside the lock-up for no rhyme or reason. The high-handed way in which the Police authorities have acted, throwing to winds the constitutional and fundamental rights of a citizen, is appalling. This Court is troubled at the way the citizens are being treated by the Police authorities who behave as if they are above the law. A punishment of censure alone is not sufficient in the facts and circumstances of this case.
11. The Apex Court in D K Basu (supra) also observed as under:-
“44. 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 tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.

xxx

46. In Nilabati Behera case [(1993) 2 SCC 746 : 1993 SCC (Cri) 527 : 1993 Cri LJ 2899] , it was held: (SCC pp. 767-68, para 32)

“Adverting to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortious act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve ‘new tools’ to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law. While concluding his first Hamlyn Lecture in 1949 under the title ‘Freedom under the Law’ Lord Denning in his own style warned:

‘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 of 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 abused they lead to a totalitarian state. None such must ever be allowed in this country.’ ”

12. Similarly, in Nilabati Behera v. State of Orisa & Ors., 1993 (2) SCC 746, while dealing with the power of a constitutional court to award compensation rather than relegating such person to file a suit for recovery of damages, the Apex Court observed as under:-
“22. The above discussion indicates the principle on which the court’s power under Articles 32 and 226 of the Constitution is exercised to award monetary compensation for contravention of a fundamental right. This was indicated in Rudul Sah [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : (1983) 3 SCR 508] and certain further observations therein adverted to earlier, which may tend to minimise the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of this Court in Rudul Sah [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : (1983) 3 SCR 508] and others in that line have to be understood and Kasturilal [(1965) 1 SCR 375 : AIR 1965 SC 1039 : (1965) 2 Cri LJ 144] distinguished therefrom. We have considered this question at some length in view of the doubt raised, at times, about the propriety of awarding compensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is a clear case for award of compensation to the petitioner for the custodial death of her son.”

13. The said principle is now well established that in cases where there can be no dispute of facts, the constitutional courts have the power to award compensation in case a person has been deprived of his life and liberty without following the procedure established by law.
14. Learned Counsel appearing for Respondent No.4 draws attention of this Court to various paragraphs of Inquiry Report and also to an Order dated 09.02.2024 passed by the Deputy Commissioner of Police who had conducted the inquiry on the complaint given by the Petitioner by which a punishment of censure was imposed upon Respondent No.4. He states that the punishment of censure was imposed primarily because the Respondent No.4 had not given any reply to the Show Cause Notice served on the Respondent No.4. It is stated that an appeal has been filed against the said Order dated 09.02.2024 which is pending.
15. It is stated by the learned Counsel for the Petitioner that the Order under appeal has made the appeal virtually infructuous and has deprived the Respondent No.4 of an opportunity to establish that he is not responsible for putting the Petitioner in the lock up.
16. Material on record does show that the Petitioner has been deprived of his liberty without following the due procedure established by law. A perusal of the material on record discloses that the Respondent No.4 is putting the entire burden on Respondent No.5 by stating that Respondent No.5 is responsible for depriving the Petitioner of his liberty and he had no role to play.
17. The time spent in the lock-up by the Petitioner, even for a short while, cannot absolve the police officers who have deprived the Petitioners of his liberty without following the due procedure established by law. A punishment of censure which is not likely to have any effect on the career of the police officers will not be a sufficient deterrent to the officer. The censure should be of such nature that other officers too must not emulate such actions in future. This Court is of the opinion that a meaningful message must be sent to the authorities that police officers cannot be law unto themselves. In the facts of this case, even though the illegal detention of the Petitioner was only for about half an hour, this Court is inclined to grant compensation of Rs.50,000/- to the Petitioner.
18. The Delhi Police is directed to pay compensation of Rs.50,000/- to the Petitioner and conduct a proper inquiry fixing the liability as to who was responsible for depriving the Petitioner of his liberty by putting him in the lock up and recover the said amount from the concerned Police Officer.
19. With these observations, the writ petition is disposed of, along with pending application(s), if any.

SUBRAMONIUM PRASAD, J
MARCH 12, 2024
S. Zakir

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