B.V. Seetaram vs The State of Karnataka and Others

Anand Byrareddy, J.—Heard the learned counsel for the petitioner.

The petitioner is before this court in the following circumstances:

"It is stated that the petitioner is the director and chairman of a private company, namely, M/s. Chitra Publications Private Limited, which is said to be the owner of four newspapers including a periodical in English called ''Canara Times'' and the other news dailies owned by the petitioner are ''Karavali Ale'', Sajeya Ale'' and ''Kannada Janaantaranga''. The newspapers above mentioned are edited, printed and published by different persons and not by the petitioner. The petitioner claims to be wedded to secularism and rationalism enshrined in the Constitution of India and is opposed to the ideas of communalization of the politics and fascist trend, which the petitioner has noticed in society, threatening the rule of law and the mandate of the Constitution."

The petitioner alleges that there was conspiracy in carrying out repeated attacks on Karavali Ale newspaper as already stated, run by the petitioner, whereby the paper bundles were stolen in different parts of Mangalore and Udupi and the vendors and the staff members, were attacked and there were complaints lodged before different Police Stations against the miscreants. Though the Police had registered a case, had not taken any action against the culprits.

It is alleged that on 17.11.2008, the printing press belonging to M/s. Chitra Publications Private Limited was attacked and ransacked by an activist of Bajrang Dal and a First Information Report has been registered in relation to the incident. It is alleged that in order to liquidate the petitioner, a plan was said to have been hatched to implicate the petitioner in several criminal cases and to cause his arrest repeatedly. It is claimed that a non-bailable warrant was issued by the Court of the Judicial Magistrate I Class in Udupi, on the basis of a private complaint of the year 2006 and it was in relation to the alleged offence of defamation. Though summons was not served on him and the court having been mislead, a non-bailable warrant was issued against the petitioner. And on the evening of 4.1.2009, several Police Vehicles armed with Police Constables had descended on the residence of the petitioner and it transpires that the Police party was accompanied by others in private vehicles, who were wearing sporting saffron scarfs, thereby indicating that they were activists of Bajrang Dal. The petitioner was said to be not present at home.

It transpires that the Police Officers intimidated the son of the petitioner and had pushed him aside and other private parties had also entered the house on the pretext of searching the petitioner and the house was ransacked and the furniture and other items in the house were destroyed. The petitioner, who was moving in his car, was intercepted and 30 armed Police Constables had arrested the petitioner without an arrest warrant. He was taken to the residence of the Jurisdictional Magistrate who remanded the petitioner to judicial custody.

The jail authorities, on a complaint of illness by the petitioner, had referred him to a Government Hospital, where he was admitted as an inpatient. And thereafter the petitioner was shifted to Mangalore jail and the jail authorities on complaints of ill health, had admitted the petitioner in Wenlock Hospital and on 9.1.2009, the Police suddenly shifted the petitioner to Mangalore Jail, and the jail authorities had also referred him to K.R. Hospital, for treatment. On the petitioner furnishing security, he was granted bail. Though the court granted bail to the petitioner, he preferred to remain in judicial custody since he apprehended danger to his life on release and the court had remanded the petitioner to judicial custody till 17.1.2009. On the night of 9.1.2009, he was suddenly shifted to the Mysore Central Jail, without a judicial order and the Mysore Jail authority had also referred to K.R. Hospital for treatment. On 17.1.2009, the petitioner preferring freedom had furnished a personal bond before the JMFC Court, Udupi. The Court had directed his immediate release, but the petitioner was not released from jail on the plea that there are body warrants pending execution against him.

While the petitioner was being taken to Mysore jail from Mangalore, the vehicle was being driven in rash and negligent manner and when the driver of the vehicle applied brake, on account of the jerk, the petitioner had sustained fracture of his leg. Therefore, the wife of the petitioner had approached this court in a Habeas Corpus Petition and this court had directed production of petitioner before the court by order dated 2.2.2009 and he was presented before the court on 3.2.2009 and he was set at liberty. By a judgment dated 11.2.2009, it had been declared by this court that the petitioner''s detention from 19.1.2009 to 3.2.2009 was illegal and the Habeas Corpus Petition was allowed making the release of the petitioner absolute. The Court has also granted costs of Rs. 10,000/-.

It is thereafter that the present petition is filed seeking compensation for such illegal detention which finding of fact has attained finality.

The question as to the basis for the compensation Rs. 50.00 lakh sought by the petitioner is lacking in the petition. In similar circumstances, in cases where persons are illegally detained, depriving them of their fundamental right and freedom, the Supreme Court has time and again held that such cases ought to be relegated to civil court for determination and rightly so, as the basis for such claim for compensation would vary from case to case and there can be no hard and fast rule as to the quantum of compensation to be granted for depravation of such liberty, whether it is for a short period or a long period. As for instance in the case of Rudul Sah Vs. State of Bihar and Another, , the apex court dealt with the situation in the following fashion:

"9. It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of Courts, Civil and Criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32 ,, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right. The instant case is illustrative of such cases. The petitioner was detained illegally in the prison for over 14 years after his acquittal in a full-dressed trial. He filed a Habeas Corpus petition in this Court for his release from illegal detention. He obtained that relief our finding being that his detention in the prison after his acquittal was wholly unjustified. He contends that he is entitled to be compensated for his illegal detention and that we ought to pass appropriate order for the payment of compensation in this Habeas Corpus petition itself.

We cannot resist this argument. We see no effective answer to it save the stale and sterile objection that the petitioner may, if so advised, file a suit to recover damages from the State Government. Happily, the State''s Counsel has not raised that objection. The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders to release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulctits violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilization is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner''s rights. It may have recourse against those officers.

Taking into consideration the great harm done to the petitioner by the Government of Bihar, we are of the opinion that, as an interim measure, the State must pay to the petitioner a further sum of Rs. 30,000 (Rupees thirty-thousand) in addition to the sum of Rs. 5,000 (Rupees five thousand) already paid by it. The amount shall be paid within two weeks from today. The Government of Bihar agrees to make the payment though, we must clarify, our order is not based on their consent."

As can be seen, that was a case where a person was illegally detained in prison for 14 years. It is thereafter that he had filed a petition under Article 32 . The Supreme Court while holding that it was for the victim to have preferred a civil suit and establish his claim for compensation, had thought it fit to grant Rs. 30,000/- in addition to Rs. 5,000/- that was already awarded to him.

In the present case on hand, though the petitioner has claimed a large sum of Rs. 50,000/- to which he may indeed be entitled, if there is basis furnished in that regard, it would be appropriate since this petition was entertained by this court and has remained on board for over six years, that some amount of compensation be granted even without the petitioner having laid foundation for such claim. Though it is found as a fact that the petitioner was illegally detained for 15 days, the quantum of compensation would necessarily have to be established by the petitioner by adducing relevant evidence. But in the exercise of discretion by this court under Article 226 of the Constitution of India, this court thinks it fit to award a nominal compensation of Rs. 1,00,000/- to be paid by the State forthwith, in any event, within a period of four weeks as a tentative compensation, subject to a formal suit to be filed by the petitioner before a civil court insofar as the compensation claimed by him is concerned.

Since the petition was filed before this court in the bona fide belief that it was the appropriate remedy for the petitioner and since this court entertained the writ petition and is disposing of the same, the question of limitation insofar as the period spent in these proceedings before this court would have to be excluded in considering the claim of the petitioner. Therefore, the petitioner shall, with due expedition, file any such suit, if he is so inclined, in order to avoid the question of limitation being a hurdle to his case.

The petition is accordingly disposed of in terms as above.

The failure on the part of the State to pay the sum of Rs. 1,00,000/- ordered as above would entail interest on the said amount accruing at the rate of 10% per annum from the date of default till the date of payment.