Raj Kumar Choudhary vs State of Bihar and Others

R.S. Garg, J.—By this petition under Article 226 of the Constitution of India, the petitioner prays for award of suitable compensation for his wrongful detention in execution of a warrant which was meant for another person but the petitioner was arrested and detained.

The facts in nutshell are that in Excise Case No. 24/99 one Rajo Choudhary S/o. Late Sukar Chaudhary was shown as an accused. According to the petitioner, Rajo Chaudhary is the nick name of Rajendra Chaudhary who happens to be the real brother of the petitioner Raj Kumar Chaudhary. In the said case non-bailable warrant was issued against Rajo Chaudhary. The petitioner says and submits that this father Sukar Chaudhary has five sons, namely, Munshi Chaudhary, Mathura Chaudhary, Raj Kumar Chaudhary (the petitioner), Rajendra Chaudhary @ Rajo Chaudhary (against whom the non-bailable warrant was issued) and Chando Chaudhary. Accordingly to the petitioner in execution of the warrant issued by the trial Court, the respondent No. 3, Officer-in-Charge of Govindpur Police Station came to petitioner''s house and illegally arrested the petitioner on 27.10.2000 despite protest made by the present petitioner that he was not Rajo Chaudhary. The petitioners says that the petitioner himself and others including his family members, neighbours and Mahal Chaukidar made repeated requests to the respondent No. 3, that the petitioner is Raj Kumar and not Rajo Chaudhary but, however, their attempts failed and the present petitioner was taken into custody. The petitioner thereafter, was kept in police lock up and as alleged illegal gratification was demanded for setting him free. The petitioner and his family being downtrodden people could not afford to satisfy the illegal demand made by the respondent No. 3, therefore, the petitioner had to suffer the police wrath under the hands of respondent No. 3.

On 28.10.2000 at the time of remand the petitioner made an application before the Court mentioning all the facts specially that he is not Rajo Chaudhary. On his application the learned Magistrate issued notice to the respondent No. 3 to show cause and state before the Magistrate that whether the petitioner is Raj Kumar Chaudhary or accused Rajo Chaudhary. The petitioner repeated his application on 9.11.2000 praying therein that real accused Rajo Chaudhary @ Rajendra Chaudhary be taken into custody and the petitioner be released. The respondent No. 3 filed his show cause stating therein that Raj Kumar Chaudhary and Rajendra Chaudhary are same person and they are known as Rajo Chaudhary. According to the petitioner this false reply was filed by the respondent No. 3 to take revenge from the petitioner as the illegal demand was not satisfied by the petitioner or his family.

It is further contended that Smt. Savitri Devi wife of the petitioner sent a request letter to the Superintendent of Police, Nawada for taking appropriate action in the matter but no action was taken, therefore, Chando Chaudhary, brother of the petitioner reported the entire matter to the Director General of Police, Hon''ble the Chief Justice of High Court, the President, Human Rights Commission and the Chief Justice of India on 6.11.2002. The matter was given wide publicity and also appeared in the daily newspaper on 7.11.2000.

According to the petitioner, the respondent No. 3 recorded a false FIR for offence punishable u/s 47-A of the Excise Act on 15.11.2000 against Manoj Chaudhary and Sanjay Chaudhary, sons of Chando Chaudhary and one Mathura Chaudhary because Chando and Mathura are brothers of the present petitioner. According to the petitioner, in view of the compliant made by the petitioner the respondent No. 3 was acting with vengeance and was trying to intimidate the relations of the applicant-petitioner. The petitioner submits that the explanation submitted by the respondent No. 3 in response to the notice issued by the Court was a concocted and false reply in view of the records of right wherein names of all five sons of Sukar Chaudhary were shown. The petitioner says that no proper investigation was made by the respondent No. 3 and for the reasons best known to him the warrant was executed upon him instead of the real accused. The petitioner says that when no action was taken on his application he filed Cr. W.J.C. No. 42/ 2001 before this Court for his immediate release. The said petition was heard and disposed of by the Division Bench of this Court on 18.1.2001 with the direction to the concerned Magistrate to dispose of the enquiry at this earliest.

During the course of the enquiry number of the witnesses were examined including respondent No. 3. Most of the witnesses supported the case and cause of the petitioner that he is Raj Kumar Chaudhary, who was not an accused in the excise matter and the real accused Rajo Chaudhary @ Rajendra Chaudhary was a different person. The learned Magistrate after going through the oral as well as documentary evidence recorded a finding in favour of the present petitioner that the petitioner is Raj Kumar Chaudhary and not Rajo Chaudhary on whom the arrest warrant was to be executed. Vide his order dated 28.2.2001 (Annexure-2) the learned Judicial Magistrate ordered release of the petitioner. The petitioner says that he had to remain in jail for the period between 28.10.2000 to 28.2.2001 because of the wrong and illegal acts of the respondent No. 3, who despite knowing that the petitioner is not Rajo Chaudhary purposefully arrested the petitioner and filed wrong applications in the Court that the petitioner was Rajo Chaudhary. The petitioner says and submits that the respondent No. 3 illegally and to suit his designs arrested the petitioner and created a situation of petitioner''s detention for almost about four months. The petitioner now says that this wrongful detention created number of problems in his family and to his family members including his wife and children; they all were disturbed, apprehensive and agitated. The wife of the petitioner was on the verge of immolating herself and the other family members had also suffered agony to a great deal. The petitioner says that in accordance with law when a warrant of arrest is to be executed, the person proposing to execute the warrant is as to take due care and caution and cannot casually execute the warrant. It is also said that when a protest is raised that the person on whom the warrant is to be executed is not the same person then the degree of care and caution should still be more. According to the petitioner in cases of wrongful detention/illegal arrest the fundamental rights stand violated and as such victim is entitled to compensation. The petitioner says that he is entitled to the compensation and this Court must intervene in the matter and direct prosecution of the respondent No. 3, for his illegal acts.

On a show cause notice the respondent Nos. 2 and 3 submitted that the said respondent No. 3 along with Chawkidar, Ram Briksha Paswan and other Chawkidars of the continuous area visited the village to execute the warrant. On their arrival one man wanted to flee away and, therefore, being suspicious, the police party took him into custody. The area Chawkidar Ram Brikasha Paswan identified the said person as Raj Kumar Chawdhary @ Rajo Chawdhary. It is also contended that the identity of the said person was confirmed by the area Dafadar, Dilip Singh and another Chawkidar of Govindpur Bazar namely Saroj Sharma. According to them the petitioner was identified as Rajo Chawdhary, therefore, he executed the warrant and placing reliance upon the statements of the Chawkidars, Dafadar etc., he submitted before the Court that the person arrested in execution of the warrant in fact was Rajo Chaudhary. Before the Court it is contended that there were no lapses on the part of the respondent No. 3 and as the village Chawkidar and others identified the petitioner as Rajo Chawdhary, the respondent No. 3 was justified in executing the warrant. The other allegations made by the petitioner have been denied by the respondent No. 3. The said respondent No. 3 despite allthose findings has still asserted before this Court that Rajendra Chawdhary is not Rajo Chawdhary but his nick name or alias name is Sira. He says that the petitioner was trying to change his identity and in fact Raj Kumar Chawdhary is Rajo Chawdhary. It is also contended in the counter reply that Raj Kumar Chawdhary and Rajendra Chawdhary both are known as Rajo Chawdhary. The respondent Nos. 2 and 3 wish to submit before this Court that the action taken by them was bona fide one and in any case present is not a case where the respondent No. 3 deserves to be prosecuted or the petitioner should be compensated. Protection of Section 76, IPC has also been taken to contend that when a wrong act is done bona fide under mistake of fact then such personer cannot be prosecuted.

In the show-cause notice dated 10.4.2002 the said Sanjeev Kumar has reiterated his earlier defences and submitted before the Court that he did not commit any wrong. On 31.7.2002 yet one more supplementary affidavit was filed by the respondent No. 3. In the said supplementary affidavit it is contended that against the findings/order dated 28.2.2001 passed by the learned Judicial Magistrate 1st Class, Nawada he has preferred an appeal u/s 341 of the Code of Criminal Procedure.

During the course of arguments learned Counsel for the petitioner submitted that in view of the admitted position and the findings recorded by the learned Judicial Magistrate 1st Class, this Court must hold that the respondent No. 3 illegally arrested the applicant and with his illegal designs filed wrong and fabricated documents in the Court, raised false defences to see that the applicant remains in custody. The thrust of the argument is that the petitioner should be compensated properly and the respondent No. 3 be directed to be prosecuted.

Learned Counsel for the respondent No. 3 contended that though an appeal has been filed by him u/s 341 of the Code of Criminal Procedure but the said appeal would not be maintainable. He, therefore, submitted that the matter can be heard and disposed of, It was contended by him that the present petitioner though according to the findings is not Rajo Chawdhary but no lapses can be found against the respondent No. 3 because the respondent No. 3, who was unknown to the said Rajo Chawdhary with the help and assistance of the village folks, Dafadars and Chawkidars arrested the petitioner and, if there was wrong identification on the part of those persons then the respondent No. 3 cannot be held liable. Kis submission is that in any case present is a matter of mis-identification and not a case of vengeance or so.

Learned Counsel for the State Government, however, submitted that the action taken by the respondent No. 3 cannot be held to be bad or mala fide and as the respondent No. 3 was obliged and duty bound to executed the warrant on Rajo Chawdhary and as the petitioner was identified as Rajo Chawdhary, he was justified in ext ,. g the warrant on the present petitioner. He, however, submits that the question of compensation should be within the sole discretion of this Court.

Before coming to the findings recorded by the learned trial Court it would be necessary to refer to the statements of Sanjeev Kumar, respondent No. 3, recorded by the trial Court on 26.2.2001. In the said statements annexed at Annexure-4, the said respondent No. 3 has stated that Sukar Chawdhary was blessed with five sons, namely, Munshi Chawdhary, Mathura Chawdhary, Raj Kumar Chawdhary, Rajendra Chawdhary and Chando Chawdhary. He also said that all the five were residing in different houses. In paragraph 3 the respondent No. 3 stated that out of the said five brothers, Rajendra Chawdhary is a man of criminal antecedents and he was earlier arrested. In paragraph 4 he categorically stated that when he inquired from the neighbours, he was informed that Rajendra Chawdhary is Rajo Chawdhary. From this statement it would clearly appear that the respondent No. 3 was informed by the village people that Rajendra Chawdhary is Rajo Chawdhary.

The statements of the other witnesses are simply to say that a protest was raised but the petitioner was arrested, Saroj Sharma, Dilip Singh and Ram Brikasha Paswan have stated that they had identified the present applicant as Rajo Chawdhary. The details of that evidence are not required to be considered at this stage in view of the findings recorded by the learned Judicial Magistrate 1st Class, Nawada. Learned Magistrate in his order has observed that Rajendra Chawdhary in fact was Rajo Chawdhary. He also found that Raj Kumar Chawdhary and Rajendra Chawdhary are different persons and there was strong possibility that Rajo Chawdhary was Rajendra Chawdhary. By his order dated 28.2.2001 he directed release of the accused from the jail. It is not in dispute before me that the said findings have not been challenged by the State Government and the appeal filed by the respondent No. 3 is deemed to be not maintainable by their own Counsel.

Be that as it may, the fact remains that the finding dated 28.2.2001 that Raj Kumar Chawdhary, the present petitioner is not Rajo Chawdhary is a final finding. From the records it would clearly appear that because of the wrong execution of the warrant the present petitioner had to remain in jail for four months. When a person is arrested because he has committed some wrong then he cannot claim compensation but in a case where a person is arrested for no cause without any rhyme and reason and despite his protest that he is not the person on whom the warrant is to be executed then after arrest such person suffers a great deal of termination and undergoes such a process of psychic fear which may cause deep apprehensions and anxiety in his mind. It cannot be doubted that family of such a person is disturbed, when the bread earner goes to jail then virtually the bread is removed from the mouth. When a person remains in jail his family is affected, the reputation of the family is affected, and his wife and children are the suffers of the first grade. The petitioner had to remain in jail for a period of four months for none of his faults. The Officers of the State Government may say very causally that this was done because of wrong identification but can the respondents No. 3 be freed from his responsibility that despite a protest raised by the present petitioner, he did not seek a second opinion rather and started spying persistently that the present petitioner was rightly arrested. After he received the records and received further in formations that Raj Kumar Chawdhary and Rajendra Chawdhary are different persons then at least the wisdom could have dawned upon him. Whether the respondent No. 3 should be prosecuted or not, I would leave this issue to the discretion of the authorities of the State Government but I do not think that present is a case where the respondent No. 3 should go scot-free. If for his acts he can make the State Government answerable to the claim of the petitioner then he must also share the burden of it.

In the opinion of this Court the petitioner must get a sum of Rs. 50,0007-(Fifty thousand) as compensation for his wrongful detention. Though in some other cases for a shorter period of wrongful detention the Supreme Court has awarded larger amounts but taking into consideration the totality of the circumstances and the statute of the present petitioner and the society from which he comes, I am of the opinion that an amount of Rs. 50,000/- (Fifty thousand) as compensation would fully compensate the petitioner for his wrongful and illegal detention of more than 120 days. I would direct the State Government to pay a sum of Rs. 40,000/-(Forty thousand) as compensation and I would require the respondent No. 3 to pay a sum of Rs. 10,000/- (Ten thousand) as compensation. The State Government is being held liable because although it had been protecting the respondent No. 3. The Officers and the other authorities of the State Government did not look into the complaints made by the petitioner, his relations and wife; all were in fact protecting and provoking the respondent No. 3 to go on with the matter in the manner in which the respondent No. 3 has been protected by the State Government would show that the State Government was absolutely indifferent to the plights and perils of the person who was lodged in prison. In a case of wrongful detention when the person under detention raises a plea that he is not the said accused but is a different man then such a plea should immediately warn the State authorities and send a signal of alarm to the authorities that the fundamental rights of a particular person are in jeopardy under the hands of a subordinate Officer. The Rule of Law cannot be assassinated by any person, whosoever he may be. We live in the rule of law and not under the police rule where whatever is done by the police is taken to be absolutely correct.

The petition is allowed with the directions/observations aforesaid. The amount be paid within two months from to day.