Calcutta High Court | While observing that “there is a need to remind ourselves that rights of individuals is the citadel of democracy and every violation would be an attack on civilized society”, Shampa Sarkar*, J. directed the West Bengal government to pay ₹2 lakh compensation to the family of a man arrested without following the due procedure.
The Court observed that if the State becomes the law breaker, the courts should not hesitate to compensate the laches and lapses.
“If the State becomes a law breaker, the writ court should not hesitate to compensate for the laches and the lapses.”
In the present matter, the accused(alleged victim) was illegally detained by the police in Titagarh Police Station on 09-03-2022 and afterwards a false FIR was registered against the accused under S. 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) on 10-03-2022 at 06.15 hours. Aggrieved by the mala fide exercise of power by the police authority, mother of the accused filed a writ petition under Art. 226 of the Constitution of India before this Court against the police atrocities and abuse of power by the police subjected on the accused by illegally detaining, seeking enforcement of the right to personal liberty and dignity guaranteed under Article 21 of the Constitution. The petitioner also prayed for investigation by an independent agency beyond the control of the State of West Bengal and for a court monitored investigation of the NDPS case and for seizure and preservation of CCTV footages of Titagarh Police Station dated 09-03-2022 and 10-03-2022.
The petitioner contended that not only the accused was subjected to abuse of powers by the police authority, but also the petitioner being the family member of the victim was subjected with abuse of powers by the police authority by alleged wrongful confinement of the accused/alleged victim and by implicating the accused in a false criminal case which led to indignity, mortification and social embarrassment. The petitioner further contended that such detention for the whole day and false implication of accused under NDPS case were in gross violation of Art. 21 of the Constitution of India.
The petitioner contended that due to political reasons, the accused was implicated in a false criminal case because he did not withdraw his support as an election agent for his cousin who was a candidate backed by the Indian National Congress in the municipal elections of 2022, even after he was constantly threatened by the police.
The State contended that the accused was arrested on 09-03-2022 by a police officer under S. 151 of CrPC in order to prevent the commission of a cognizable offence as he had threatened the complainant to withdraw a pending criminal case registered against him under Ss. 341, 325 and 34 of the IPC and was released on the same day upon acceptance of a bail bond. The State further contended that the accused was lawfully arrested on 10-03-2022 after 2.5 Kg of codeine mixture was recovered from him based on a piece of secret information.
The State also contended that the appointment of an independent investigating agency for the investigation of the NDPS case should not be allowed because an accused cannot choose the investigating agency.
Whether the Police authorities deprived the petitioner and accused of the right to dignity, personal liberty and denied the right of a free and fair investigation?
“Every trial is a voyage of discovery, in which truth is the quest.”
The Court observed that mother of the accused has the right to seek a fair and impartial investigation. The Court stated that
“Mother of the accused has a right to approach the constitutional court for protection of the right to dignity and personal liberty guaranteed to her son under Article 21 of the Constitution and also, to uphold the dignity of the family members. She has the right to seek a fair and impartial investigation so that truth can be unearthed.”
The Court observed that the right to fair and impartial investigation is an important ingredient of Right to life and personal liberty. The Court stated that
“Right to life and personal liberty and also the right to dignity enshrined under Article 21 of Constitution of India have a much wider connotation and the right to fair and impartial investigation is an important ingredient of such right.”
The Court observed that the principles enshrined in D.K. Basu v. State of W.B., (2015) 8 SCC 744, 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.”, Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, that the prisoners and detenues are not deprived of their fundamental rights under Art. 21 of the Constitution of India, Romila Thapar v. Union of India, (2018) 10 SCC 753, reiterating the principles of fair investigation, is application in the present case.
The Court observed that Writ Court has the jurisdiction to enquire regarding the violation of accused/alleged victim’s right to personal liberty and human dignity by the police authorities. The Court further observed that “Dignity of the family members is also a guaranteed right.” The Court opined that a responsibility is casted on the State as the guardian of law to protect the rights of their citizen and the Court can require whether such responsibility is fulfilled. The Court stated that the State is always accountable to the citizens, for any lapse.
The Court observed that the police authorities did not comply with Paramvir Singh Saini v. Baljit Singh, (2021) 1 SCC 184 and Shafhi Mohammad v. State of H.P., (2018) 5 SCC 311, with regards to use of videography in the crime scene and preservation of CCTV footages for a period of 18 months. The Court opined that the CCTV footage would serve as an evidentiary advantage to the defence as well as the prosecution. The Court further observed that the manner method and the way the accused/alleged victim was taken into custody and records available regarding the incident have several discrepancies.
The Court observed that there is nothing in the affidavit to show that the police authorities had the knowledge of the fact that the accused/alleged victim had made any attempt to commit a cognizable offence. The Court stated that “The police cannot arrest a person merely on an apprehension of the breach of peace or on an apprehension that an offence was likely to be committed.” The Court opined that the conduct of the police authorities in the present matter demonstrates abuse of power by the police.
Accepting the State’s contention that an accused cannot choose the investigating agency, the Court observed that “once the investigation in the NDPS case is complete and charge sheet has been filed, the question of transferring the investigation to any other investigating agency does not arise.”
The Court observed that the accused have effective alternative remedy under CrPC, and all the points can be urged at the Trial, therefore the Court does not deem it fit and proper to quash the charge sheet, moreover, neither the registration of the FIR nor the investigation by the police were challenged in this petition.
In the light facts and circumstances of the case, discrepancies and irregularities, it is clear that the police authorities had failed to discharge their duty in accordance with law and therefore “this Court can mould the relief and award compensation to the affected parties for various lapses and for failure of the State to uphold the dignity and personal liberty of an individual, as enshrined in Article 21 of the Constitution.”
“The award of compensation in a proceeding under Article 226 of the Constitution of India is a remedy available in public law, based on strict liability, for contravention of law and for violation of the rights guaranteed by the Constitution of India.”
While denying the reliefs prayer by the petitioner, the Court orders awards compensation of Rs. 2,00,000/- to the entire family for the stigma, social embarrassment and indignity suffered by each of them and the accused/alleged victim.
“Such compensation is “a balm on the wound” for violation of human dignity and for the failure of the police to instill confidence that the investigation was fair, impartial and a quest for the truth.”
The Court directed that the CCTV cameras should be installed within two months in all police stations and units with at least one year back up capacity for the time being and videography of seizure of commercial quantity of narcotics in all cases should be mandatorily done.
[Sunita Shukla v. State of W.B., 2023 SCC OnLine Cal 957, decided on 25-04-2023]
*Judgment by Justice Shampa Sarkar
Advocates who appeared in this case:
Mr. Pratik Dhar (Sr. Adv.), Mr. Koustav Bagchi, Mr. Anirudhya Bhattacharyya, Mr. Debayan Ghosh, Ms. Priti Kar, Ms. Cardina Roy., Counsel for the Petitioner;
Mr. Amitesh Banerjee (Sr. Standing Counsel), Ms. Ipsita Banerjee, Mr. Suddhadev Adak, Counsel for the Respondent/State;
Mr. Billwadal Bhattacharyya (Dy. Solicitor Gen.) and Mr. Kallol Monda, Counsel for the CBI.