P. Sujanapal v. State of Kerala and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 3RD DAY OF SEPTEMBER 2014/12TH BHADRA, 1936** **WP(C).No. 19651 of 2013 (R) -----------------------------------** **PETITIONER(S): -----------------------** **P. SUJANAPAL, AGED 59 YEARS, S/O. LATE SEKHARAN, PALANGADATH HOUSE, AREEKKADU, NALLALAM P.O., KOZHIKODE.** **BY ADVS.SRI.A.X.VARGHESE SRI.A.V.JOJO SRI.C.M.VIVEK SRI.A.V.PAUL** **RESPONDENT(S): -------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** ## **2. THE REGISTRAR GENERAL,** - **HIGH COURT OF KERALA, ERNAKULAM - 682 031.** ## **3. B. VIJAYAN,** - **ADDITIONAL SESSIONS JUDGE ADHOC - III, PATHANAMTHITTA - 689 645.** **BY SENIOR GOVERNMENT PLEADER SMT.ANITHA RAVEENDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** **WP(C).No. 19651 of 2013 (R) ---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** ## **EXHIBIT-P1-TRUE COPY OF THE PETITION DATED 25/01/2011.** **EXHIBIT-P2TRUE COPY OF THE ORDER DATED 25/01/2011 IN C.M.P 348/2011. EXHIBIT-P3TRUE COPY OF THE F.I.R. NO. 370/2011 DATED 01/02/2011. EXHIBIT-P4TRUE COPY OF THE REMAND REPORT DATED 19/03/2011. EXHIBIT-P5TRUE COPY OF THE FIRST PAGE OF THE CHARGE SHEET IN CRIME 307/2011 OF ERNAKULAM CENTRAL POLICE STATION.** **EXHIBIT-P6TRUE COPY OF THE JUDGMENT IN O.P (CRL)1599/2011 DATED 31/10/2011. EXHIBIT-P7TRUE COPY OF THE ORDER DATED 02/08/2011. EXHIBIT-P8TRUE COPY OF THE ORDER DATED 14/08/2012 OF THE KOCHI CITY POLICE COMMISSIONER.** **EXHIBIT-P9TRUE COPY OF THE GOVERNMENT ORDER DATED 27/10/2012. EXHIBIT-P10- TRUE COPY OF THE ORDER DATED 20/09/2012 OF THE KERALA STATE HUMAN RIGHTS COMMISSION. EXHIBIT-P11TRUE COPY OF THE COMPLAINT DATED 25/04/2013.** **EXHIBIT-P12- TRUE COPY OF THE INFORMATION DATED 24/05/2013.** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** ## **NIL** **/TRUE COPY/** ## **P.S. TO JUDGE** **msv/** ## **A.M.SHAFFIQUE, J** ## *** * * * * * * * * * * * *** W.P.C.No.19651 of 2013 ---------------------------------------- Dated this the 3[rd] day of September 2014 ## **J U D G M E N T** This writ petition is filed for a direction to the 1[st] respondent to pay the petitioner Rs.10 lakhs as compensation and to realise the same from the 3[rd] respondent. Further direction sought for is to initiate disciplinary action against the 3[rd] respondent. 2. The facts involved in the writ petition would disclose that on 25/01/2011, a complaint came to be filed against the petitioner before the Chief Judicial Magistrate Court, Ernakulam at the instance of one Sri.Shahul Hameed.M.P. Offences alleged were under Section 466, 469, 471 and 500 of the Indian Penal Code. It is contended by the petitioner that the 3[rd] respondent Judicial Officer forwarded the complaint to the Station House Officer, Central Police Station under Section 156(3) of the Code of Criminal Procedure. Ext.P1 is the said complaint against the W.P.C.No.19651/2013 2 petitioner. It is contended that since the offences alleged included Section 500 of I.P.C, there was a bar under Section 199 Cr.P.C for registering a crime. The Central Police Station, Ernakulam registered F.I.R.No.370/2011 against the petitioner on 01/02/2011. Petitioner was arrested on 18/03/2011 and on production before the 3[rd] respondent, he was remanded. He was granted bail only on 23/03/2011. Petitioner approached this Court by filing O.P.(Crl) No.1599/2011 for quashing Crime No.370/2011 of Ernakulam Central Police Station. In the meantime, 3[rd] respondent took cognizance of the case as C.C.No.133/2011 and issued summons to the petitioner. Ext.P5 is the 1[st] page of the charge sheet. By judgment dated 31/10/2011, this Court allowed O.P.(Crl) 1599/2011 quashing crime No.370/2011 with liberty to the petitioner to initiate legal proceedings, if so advised. 3. Petitioner submitted a complaint before the Human Rights Commission and by order dated 20/09/2012, W.P.C.No.19651/2013 3 there was a direction to the 1[st] respondent to pay the petitioner Rs.50,000/- as compensation. The said amount was disbursed only on 31/07/2013. Ext.P10 is the said order. The Human Rights Commission has observed that the compensation is for illegal detention by the petitioner on a frivolous complaint. It is further indicated that petitioner is at liberty to approach the civil court for proper damages treating the same as interim relief (wrongly written as under relief). 4. Petitioner thereafter submitted a complaint before the 2[nd] respondent against the 3[rd] respondent in which it is inter alia contended that while exercising power under Section 156(3) or Section 200 of Cr.P.C, the Magistrate is required to apply his mind. There is failure on the part of the 3rd respondent in taking proceedings under Section 156(3) and 200 Cr.P.C. In the said circumstances, since proper enquiry was not conducted before issuing the process, the petitioner had to suffer imprisonment for five W.P.C.No.19651/2013 4 days for no purpose and therefore he is entitled to seek compensation. Despite service of notice, no counter affidavit is filed in this case. 5. Heard the learned counsel for the petitioner and the Learned Government Pleader. 6. The fact that the petitioner had suffered imprisonment on account of a mistaken order passed by the 3[rd] respondent cannot be disputed. The offences alleged in the complaint Ext.P1 was under Sections 456, 469, 471 and 500 of I.P.C. As per Section 199 of Cr.P.C, no court shall take cognizance of an offence punishable under Chapter XXI of the I.P.C except upon a complaint made by a person aggrieved by the offence. This Court, in the judgment dated 31/10/2011 in O.P.(Crl) No.1599/2011, quashed crime No.370/2011, as baseless. Hence it is clear that the petitioner was wrongfully confined in prison, which amounts to violation of Article 21 of the Constitution of India. W.P.C.No.19651/2013 5 7. The position of law in the matter regarding award of compensation by writ court under Article 226 of the Constitution of India is well settled. The entire case law on the subject is considered by a Division Bench of this Court in **Vibin v. State of Kerala** [2013(1)KLT 103] in which this Court held as under: _“20. The propositions laid down in Rudul Shah v. State of Bihar ((1983) 4 SCC 141) and Nilabati Behra v. State of Orissa ((1993) 2 SCC 746) have been followed in P.A.Narayanan v. Union of India & Ors. (1998 (1) KLT SN 57 (C.No. 54) SC = AIR 1998 SC 1659), M.S. Grewal v. Deep Chand Sood ((2001) 8 SCC 151), Bhim Singh v. State of J. & K. & Ors. (AIR 1986 SC 494), Smt. Kumari v. State of Tamil Nadu & Ors. (AIR 1992 SC 2069), Saheli, a Woman's Resources Centre v. Commissioner of Police ((1990) 1 SCC 422), Union Carbide Corporation & Ors. v. Union of India and others ((1991) 4 SCC 585), Vypin Vishamadhya Koottakola Virudha Samithy v. State of Kerala & Ors. (2005 (1) KAJ 547)._ _21. 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 v. State of Orissa ((1993) 2 SCC 746) and extracted below:_ W.P.C.No.19651/2013 6 _“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 abused they lead to a totalitarian State. None such must ever be allowed in this country.”_ _22. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much as protector and guarantor of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations, the Supreme_ W.P.C.No.19651/2013 7 _Court reminds us._ _23. Therefore, in view of the case law set out on this point under Art.141 of the Constitution of India, it is very clear in our mind that notwithstanding the right to remedies under Civil suits or Criminal proceedings, this Court can grant compensation in exercise of jurisdiction under Art.226 of the Constitution of India under public law to the victims who suffered infringement of their right to life and personal liberty guaranteed under the Constitution.”_ 8. Now the question would be the quantum of compensation. Admittedly petitioner is already paid Rs.50,000/- as compensation. Whether it amounts to sufficient compensation for the wrong done and if not, what would be the reasonable compensation is the only question that remains to be considered. 9. The learned Government pleader submits that having regard to the facts and circumstances, Rs.50,000/already paid is sufficient compensation. Petitioner has not made mention of any particulars regarding his social status in the society or any other particulars regarding his W.P.C.No.19651/2013 8 credentials. He has only stated that the wrongful act has resulted in lowering his image among public, relatives and friends. For the wrongful act, he is already paid Rs.50,000/. No compensation is paid for the suffering he had to undergo in prison. He has suffered imprisonment for 5 days for which I estimate the compensation at Rs.25,000/-, which the first respondent is liable to pay. Other reliefs sought for cannot be adjudicated in this proceedings and hence denied. In the result, the writ petition is allowed and 1[st] respondent is directed to pay the petitioner an amount of Rs.25,000/- (Rupees twenty five thousand only) within a period of two months from the date of receipt of a copy of this judgment. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.19651/2013 9