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Petitioner: Dr. MEHMOOD NAYYAR AZAM VS Respondent: STATE OF CHHATTISGARH and others
Court Name: Supreme Court of India Judge(s): Dipak Misra, K. S. Radhakrishnan Title: Dr. MEHMOOD NAYYAR AZAM vs STATE OF CHHATTISGARH and others Case No.: Civil Appeal No,5703 of 2012 Date of Judgment:2012-08-03 Reported As: 2013 SCMR 66 Result: Appeal allowed
JUDGMENT
JUDGMENT ' DIPAK MISRA, J.---Leave granted. 2. Albert Schweitzer, highlighting on Glory of Life, pronounced with conviction and humility, the reverence of life offers me my fundamental principle on morality". The aforesaid expression may appear to be an individualistic expression of a great personality, but when it is understood in the complete sense, it really denotes, in its conceptual essentiality, and connotes, in its macrocosm, the fundamental perception of a thinker about the respect that life commands. The . Reverence of life is insegragably associated with the dignity of, a human being who is .Basically divine, not servile. A human personality is endowed with potential infinity and it blossoms when dignity is sustained. The sustenance of such dignity has to be the superlative concern of every sensitive soul. The essence of dignity can never be treated as a momentary spark of light or, for that matter; 'a brief candle', or 'a hollow bubble'. The spark of life gets more resplendent when man is treated with dignity sans humiliation, for every man is expected to lead an honourable life which is a splendid gift of "creative intelligence". When a dent is created in the reputation, humanism is paralysed. There are some megalomaniac officers who conceive the perverse notion that they are the 'Law' forgetting that law is the science of what is good and just and, in very nature of things, protective of a civilized society. Reverence for the nobility of a human being has to be the corner stone of a body polity that believes in orderly progress. But, some, the incurable ones, become totally oblivious of the fact that living with dignity has been enshrined in our Constitutional philosophy and it has its ubiquitous presence, and the majesty and sacrosanctity of dignity cannot be allowed to be crucified in the name of some kind of police action.
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3. The aforesaid prologue gains signification since in the case at hand, a doctor, humiliated in custody, sought public law remedy for grant of compensation and the High Court, despite no factual dispute, has required him to submit a representation to the State A Government for adequate relief pertaining to grant of compensation after expiry of 19 years with a further stipulation that if he is aggrieved by it, he can take recourse to requisite proceedings available to him under law. We are pained to say that this is not only asking a man to prefer an appeal from Caesar to Caesar's wife but it also compels him like a cursed Sisyphus to carry the stone to the top of the mountain wherefrom the stone rolls down and he is obliged to repeatedly per form that futile exercise. 4. The factual matrix as un-curtained is that the appellant, an Ayurvedic Doctor with B.A.M.S. Degree, while practising in West Chirmiri Colliery, Pondi area in the State of Chhattisgarh, used to raise agitations and spread awareness against exploitation of people belonging to weaker and marginalized sections of the society. As a social activist, he ushered in immense awareness among the down-trodden people which caused discomfort to the people who had vested interest in the coal mine area. The powerful coal malaria, trade union leaders, police officers and other persons who had fiscal interest felt disturbed and threatened him with dire consequences and pressurized him to refrain from such activities. Embedded to his committed stance, the petitioner declined to succumb to such pressure and continued the activities. When the endeavor failed to silence and stifle the agitation that was gaining strength and momentum, a consorted maladroit effort was made to rope him in certain criminal offences. 5. As the factual narration further unfolds, in the initial stage, cases under -sections 110/116 of the Criminal Procedure Code were initiated and thereafter Crime No,15 of 1992 under section 420 of the Indian Penal Code (for short 'the I.P.C.) and Crime No,41 of 1992 under sections 427 and 379 of the I.P.C. Were registered. As the activities gathered further drive and became more pronounced, Crime No,62 of 1990 was registered for an offence punishable under section 379 of the I.P.C. For alleged theft of electricity. In the said case, the appellant was taken into custody. 6. Though he was produced before the Magistrate on 22-9-1992 for judicial remand and was required to be taken to Baikunthpur Jail, yet by the time the order was passed, as it was evening, he was kept in the lockup at Manendragarh Police Station. On 24-9-1992 he was required to be taken to jail but instead of being taken to the jail, he was taken to Pondi Police Station at 9-00 a.m. At the police station, he was abused and assaulted. As asseverated, the physical assault was the beginning of ill-treatment. Thereafter, the SHO and ASI, the respondents Nos,4 and 5, took his photograph compelling him to hold a placard on which it was written:- `'Main Dr. M.N. Azam Chhal Kapti Evam Chor Badmash Hoon. (I. Dr. M. N. Azam, am a cheat, fraud, thief and rascal). 7. Subsequently, the said photograph was circulated in general public and even in the revenue proceeding, the respondent No,7 produced the same. The said atrocities and the torture of the police caused tremendous mental agony and humiliation and, hence, the petitioner submitted a complaint to the National Human Rights Commission who in turn, asked the Superintendant of Police, District Koria to submit a report. As there was no response from the 2nd respondent the Commission again required him to look into the grievances and take proper action. When no action was taken by the respondent or the police, the petitioner was compelled to invoke the extraordinary jurisdiction of the High Court of Judicature at Bilaspur, Chhattisgarh with a prayer for punishing the respondents Nos,4, 5 and 7 on the foundation that their action was a complete transgression of human rights which affected his fundamental right especially his right to live with dignity as enshrined under Article 21 of the Constitution. In the Writ Petition, prayer was made for awarding compensation to the tune of Rs,10 lakhs.
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8. After the return was filed,' .The learned single. Judge .Passed a detailed order on 3-1-2003 that the Chief Secretary and the Director-General of Police should take appropriate steps for issue of direction to the concerned authorities to take appropriate action in respect of the erring officeRs, Thereafter, some developments took place and on 24-3-2005, the Court recorded that the writ petitioner was arrested on 22-9-1992 and his photograph was taken at the police station. The learned single Judge referred to Rule 1 of Regulation 92 of Chhattisgarh Police Regulations which lays down that no Magistrate shall order photograph of a convict or other person to be taken by the police for the purpose of Identification under Prisoners Act, 1920, unless he is satisfied that such photograph is required for circulation to different places or for showing it for the purpose of identification to a witness who cannot easily be brought to a test identification at the place where the investigation is conducted or that photograph is required to be preserved as a permanent record. Thereafter, the learned single Judge proceeded to record that not only the photograph of the writ petitioner had been taken with the placard but had also been circulated which had caused great mental agony and trauma to his school going children. Thereafter, he referred to Regulation 737 of the Chhattisgarh Police Regulations which relates to action to be taken by the superior officer in respect of an erring officer who ill-treats an accused. 9. After referring to various provisions, the learned single Judge called for a report from the Chief Secretary. On 18-11-2005, the Court was apprised that despite several communications, the Chief Secretary had not yet sent the report. Eventually, the report was filed stating that the appellant . Was involved in certain cases including grant of bogus medical certificate and regard being had to the directions issued in 1992 that the photograph of the offender should be kept on record, the same was taken and affixed against his name and after 7-9-1992, it was removed from the records. It was also stated that the Sub-Inspector had been imposed punishment of "censure" by the Superintendent of Police on 19-11-2001. It was also set forth that on 3-5-2003, a charge-sheet was served on all the erring officers and 'a departmental enquiry was held and in the ultimate eventuate, they had been imposed major penalty of withholding of one annual increment with cumulative effect for the year commencing 27-5-2004. That apart, on 19-7-2005, a case, had been registered under section 29 of the Police Act against the erring officeRs, 1,0. It is apt to note here that when the matter was listed for final hearing for grant of compensation, the learned single Judge referred the matter to be heard by a Division Bench. 11. The Division. Bench referred to the prayer clause and various orders passed by the learned single Judge and eventually directed the appellant to submit .a representation to the Chief Secretary for grant of compensation. We think it appropriate to reproduce the relevant paragraphs of the order passed by the Division Bench:-- "(4) Learned counsel for the petitioner submits that during the pendency of the writ petition, Relief Clause No,7.3 was fulfilled under the directions of this court and now only the compensation part, as claimed in Relief Clause No,7.5A, remained there. (5) In the instant case, it is an admitted position that the respondent State authorities have taken cognizance of the harassm ent meted out to the petitioner by the erring personnel of the police department and initiated departmental enquiry against them in which they were found guilty and punishment has also been awarded to them." 12. After issuing notice, this Court, on 17-2-2012, thought it apposite that the appellant should submit a representation within a week which shall be considered by the respondents within four weeks therefrom. 13. In pursuance of the aforesaid order, the appellant submitted a representation which has been rejected on 19-3-2012 by the OSD/Secretary, Government of Chhattisgarh. Home (Police) Department. In the rejection order, it has been stated as follows:-
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"In the aforesaid cases, the arrest and the action regarding submission of charge- sheet in the Hon'ble Court was in accordance with law. (2) On 24-9-92 the police officers taking your photograph and writing objectionable words thereon was against the legal procedure. Considering this, action was taken against the concerned guilty police officers in accordance with law and two police officers were punished. (3) In your representation, compensation has been demanded on the following two grounds: A. Defamation was caused due to the police officers taking photograph. B. Your wife became unwell mentally. She is still unwell. C. Difficulty in marriage of daughter. ' Regarding the aforesaid grounds the actual position is as follows:-- ' Defamation is such a subject, the decision on which is within jurisdiction of the competent court. No decision pertaining to defamation has been received from the court of competent jurisdiction. Therefore, it would not be proper for the State Government to take a decision in this regard. ' Regarding mental ailment of your wife, no such basis has been submitted by you, on the basis of which any conclusion may be drawn. C. On the point of there being no marriage of children also no such document or evidence has been produced by you before the Government along with the representation, on the basis of which any decision may be taken. ' Therefore, in the light of the above, the State Government hereby rejects your representation and accordingly decides your representation." 14. Mr. Niraj Sharma, learned counsel appearing for the appellant, submitted that when the conclusion has been arrived at that the appellant was harassed at the hands of the police officers and in the departmental enquiry they have been found guilty and punished, just compensation should have been awarded by the High Court. It is further urged by him that this Court had directed to submit a representation to grant an opportunity to the functionaries of the State to have a proper perceptual shift and determine the amount of compensation and grant the same, but the attitude of indifference reigned supreme and no fruitful result ensued. It is canvassed by him that it would not only reflect the non-concern for a citizen who has been humiliated at the police station, but, the manner in which the representation has been rejected clearly exhibits the imprudent perception and heart of stone of the State. It is argued that the reasons ascribed by the State authority that defamation is such a subject, that the issue of compensation has to be decided by the competent court and in the absence of such a decision, the Government cannot take a decision as regards the compensation clearly reflects the deliberate insensitive approach to the entire fact situation inasmuch as the High Court, in categorical terms, had found that the allegations were true and the appellant was harassed and thereby it did tantamount to custodial torture and there was no justification to adopt a hypertechnical mode to treat it as a case of defamation in the ordinary sense of the term and 'requiring the appellant to take recourse to further adjudicatory process and obtain a decree from the civil court. 15. Mr. Atul Jha, learned counsel appearing for the State, has supported the order of the High Court as well as the order passed by the competent authority of the State who has rejected the representation on the foundation that when the appellant puts forth .a claim for compensation on the ground of defamation, he has to take recourse to the civil court and, therefore, no fault can be found with the decision taken either by the High Court or the subsequent rejection of the representation by the authority of the State. 16. The learned counsel appearing for the private respondents has submitted that they have already been punished in a disciplinary proceeding and, therefore, the question of grant of compensation does not arise and even if it emerges, the same has to be determined by the civil court on the base of evidence adduced to establish defamation. 17. At the very outset, we are obliged to state that five aspects are clear as day and do not remotely admit of any doubt. First, the appellant was arrested in respect of the alleged offence under Indian
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Penal Code, 1860 and the Electricity Act, 2003; second, there was a direction by the Magistrate for judicial remand and thereafter instead of taking him to jail the next day he was brought to the police station; third, self- humiliating words were written on the placard and he was asked to hold it and photographs were taken; and fourth, the photographs were circulated in general public and were also filed by one of the respondents in a revenue proceeding; and five, the High Court, in categorical terms, has found that the appellant was harassed. 18. In the aforesaid backdrop, the singular question required to be posed is that whether the appellant should be asked to initiate a civil action for grant of damages on the foundation that he has been defamed or this Court should grant compensation on the bedrock that he has been harassed in police custody. 19. At this juncture, it is condign to refer to certain authorities in the field. In D.K Basu v. State of W.B. (AIR 1997 SC 610: (1997) 1 SCC 416) it has been held thus:-- "(10) "Torture" has not been defined in the Constitution or in other penal laws. "Torture" of a human being by another human being is essentially an instrument to impose the will of the "strong" over the "weak" by suffering. The word torture today has become synonymous with the darker side of human civilization. "Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself." Adriana P. Bartow (11) No violation of any one of the human rights has been the subject of so many Conventions and Declarations as "torture" - all aiming at total banning of it in all forms, but in spite of the commitments made to eliminate torture, the fact remains that torture is more widespread now than ever before. "Custodial torture" is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward - flag of humanity must on each such occasion fly half mast (20) In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma, a person experiences is beyond the purview of law." 20. We have referred to the aforesaid paragraphs to highlight that this Court has emphasized on the concept of mental agony when a person is confined within the four walls of police station or lock-up. Mental agony stands in contradistinction to infliction of physical pain. In the said case, the two-Judge Bench referred to Article 5 of the Universal Declaration of Human Rights, 1948 which provides that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Thereafter, the Bench adverted to Article 21 and proceeded to state that the expression "life or personal liberty" has been held to include the right to live with human dignity and thus, it would also include within itself a guarantee against torture and assault by the State or its functionaries. Reference was made to Article 20(3) of the Constitution which postulates that a person accused of an offence shall not be compelled to be a witness against himself. 21. It is worthy to note that in the case of D.K. Basu, (AIR 1997 SC 610) (supra), the concern shown by this Court in Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : (AIR 1994 SC 1349) was taken note of. In Joginder Kumar's case, this Court voiced its concern regarding complaints of violation of human rights during and after arrest. It is apt to quote a passage from the same:-- "The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violations of human rights because of
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indiscriminate arrests. How are we to strike a balance between the two? A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first - the criminal or society, the law violator or the law abider..." 22. After referring to the ease of Joinder Kumar, (AIR 1994 SC 1349) (supra), A.S. Anand, J. (as his Lordship then was), dealing with the various facets of Article 21, stated that any form of torture or cruel, inhuman or degrading treatment would fall within the ambit of Article. 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become lawbreakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchy. No civilized nation can permit that to happen, for a citizen does not shed off his fundamental right to life, the moment a policeman arrests him. The right to life of a citizen cannot be put in abeyance on his arrest. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. 23. At this juncture, it becomes absolutely necessary to appreciate what is meant by the term "harassm ent". In P. Ramanatha Aiyar's Law Lexicon, Second Edition, the term "harass" has been defined, thus:- "Harass. "injure" and "injury" are words having numerous and comprehensive popular meanings, as well as having a legal import. A line may be drawn between these words and the word "harass" excluding the latter from being comprehended within the word "injure" or "injury". The synonyms of "harass" are To weary, tire, perplex, distress, tease, vex, molest, trouble, disturb. They all have relation to mental annoyance, and a troubling of the spirit." ' The term "harassm ent" in its connotative expanse includes torment and vexation. The term "torture' also engulfs the concept of torment. The word "torture" in its denotative concept includes mental and psychological harassm ent. The accused in custody can be put under tremendous psychological pressure by cruel, inhuman and degrading treatment. 24. At this juncture., we may refer with profit to a two-Judge Bench decision in Sunil Gupta and others v. State of Madhya Pradesh and others (1990) 3 SCC 119. The said case pertained to handcuffing where the accused while in judicial custody were being escorted to court from jail and bound in fetteRs, In that context, the Court stated that the escort party should record reasons for doing so in writing and intimate the court so that the court, considering the circumstances may either approve or disapprove the action of the escoFt party and issue necessary directions. The Court further observed that when the petitioners who had staged Dharna' for public cause and voluntarily submitted themselves for arrest and who had no tendency to escape, had been subjected to humiliation by being handcuffed, such act of the escort party is against all norms of decency and is in utter violation of the principle underlying Article 21 of the Constitution of India. The said act was condemned by this Court to be arbitrary and unreasonably humiliating towards the citizens of this country with the obvious motive of pleasing 'someone'. 25. In Blum Singh, MLA v. State of J & K (1985) 4 SCC 677 : (AIR 1986 SC 494), this Court expressed the view that the police officers should have greatest regard for personal liberty of citizens as they are the custodians of law and order and, hence, they should not flout the law by stooping to bizarre acts of lawlessness. It was observed that custodians of law and order should not become depredators of civil liberties,. For their duty is to protect and not to abduct.
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26. It needs no special emphasis to state that when an accused is in custody, his Fundamental Rights are not abrogated in toto. His dignity cannot be allowed to be comatosed. The right to life is enshrined in Article 21 of the Constitution and a fortiori, it includes the right to live D with human dignity and all that goes along with it. It has been so stated in Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others (1981) 1 SCC 608 : (AIR 1981 SC 746) and D.K. Basu (AIR 1997 SC 610) (supra). 27. In Kharak Singh v. State of U. P., (1964) 1 SCR 332: (AIR 1963 SC 1295) this court approved the observations of Field, J. In Munn v. Illjnois (1876) 94 US 113:-- "By the term "life" as here [Article 21] used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed." 28. It is apposite to note that inhuman treatment has many a facet. It fundamentally can cover such acts which have been inflicted with an intention to cause physical suffering or severe mental pain. It would also include a treatment that is inflicted that causes humiliation and compels a person to act against his will or conscience. 29. In Arvinder Singh Bagga v. State of U.P. And others AIR 1995 SC 117, it has been opined that torture is not merely physical but may even' consist of mental and psychological torture calculated to create fright to submit to the demands of the police. 30. At this stage, it is…
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