The unlawful arrest of n unlettered, penniless tribal, Husan, aged 68 years, by the Madhya Pradesh Police, who was then presented before a magistrate, who then mechanically sent him to prison came in for sharp criticism and corrective measures by the MP HC recently.
Following a Habeous Corpus petition filed before the Court, his son Kamlesh sought the release of his father arguing that the police had arrested his innocent father who had committed no crime. The Court rapped the knuckles of state of MP’s officers for arguing in support of their illegal actions and of a Sub Divisional Officer (Police) for giving false information on affidavit. It ordered a separate contempt case against all officers involved. (Kamlesh S/o Husan v/s The State of Madhya Pradesh & Others-Writ Petition No.26923/2019)
The counsel for the petitioner brought the facts before the court that there was one life convict named Husna, also known as ‘Bada Husna’, who was out on parole. He had been convicted of committing murder and had died on September 10, 2016 while on parole. The police arrested Husan instead of Husna and presented him before the Station House Officer, Bar, who mechanically arrested Husan and produced him before the Chief Judicial Magistrate Dhar. The Magistrate issued a jail warrant and Husanwas sent to jail without even being given a proper hearing as is required under law. The poor Adivasi begged the police for mercy and cried that he had not murdered anyone. His cries were unheard.
The Sub Divisional Officer (Police) submitted a report in the matter to the High Court stating categorically that the person who has beensent to Jail is Husana who was convicted in Session Trial No. 41/1976.
The court ordered an immediate inquiry in the matter by Principal Secretary Home Department based upon the finger prints and other materials on record to ascertain whether an innocent person has been sent to jail or not? Was it the father of the petitioner who was convicted in the Sessions Trial No. 41/1976?
Stressing the fact that the case involves the personal liberty of an individual who has stated that he has been jailed without any crime being committed on his part, the court gave the Principal Secretary Home Department an extremely short period of seven days to conduct the enquiry and ascertain the facts. In case of inability to do so, the Secretary Home was ordered to be present before the court personally at the next date of hearing.
The Secretary Home submitted that the person arrested (Husan) by the Police and the person sought by the Police (Husna) are two different persons. While Husna is dead, Husan is an innocent person. The result was arrived at by simple comparison of fingerprints. The finger prints of the convict Husna from when he was first lodged in Jail, did not match the fingerprints of Husan. Therefore, an innocent person is languished in jail for the last four months. He was sent to jail on October 18, 2019 and until the date of the hearing of the petition, was still in Jail. The court remarked that “It is really unfortunate that while filing a return in the present case, an attempt was made by the State of Madhya Pradesh that the person who is in jail is a convict in respect of Session Trial No. 41/1976.”
In a refreshing turn of events, the court took cognizance of the fact that the Sub Divisional Magistrate (Police) made an incorrect statement on affidavit, and ordered a separate case of contempt to be registered against the SDM. The court went a step ahead and ordered that “Not only this, a contempt case be also registered against all those persons who have made various entries in the Rojnamcha dated 18-10-2019 stating that the father of the petitioner is Husna and he has been arrested.”
The Court used the Jurisprudential concept of ‘Constitutional Tort’, and said that since the State has arrogantly deprived an innocent person of his Liberty, the aggrieved person must be compensated for the loss of it. Observing a poor tribal aged about 68 years, was detained illegally by the State Government and all attempts were made to justify his illegal custody as legal custody, no amount of monetary compensation is going to compensate the poor tribal. However, since it is in the interest of justice to compensate the Husan, that court said that the “State Government shall pay a compensation of Rs.5,00,000/- (Rupees Five Lakh Only) to the father of the petitioner.”
The doctrine of ‘Constitutional Tort’ became a widely celebrated principle in Indian Jurisprudence specially from the case of Rudul Sah vs State Of Bihar And Another(1983 AIR 1086)where, the Apex court was dealing with the illegal incarceration of one Rudul Sah, who was went in Prison even after his acquittal for a terrifying period of 14 years. The Apex Court had observed through Justice Y.V. Chandrachud that:
“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 mulct its 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.”
In the present case of illegal incarceration of Husan, the court passed directions to ensure that such an error is not committed again and said that “The present case is an example of arresting innocent people without identifying them properly, and therefore, it is directed that in all cases, where an arrest is made, the authorities shall identify the persons so arrested on the basis of Bio-metric as well as other documents in order to ensure their identity, in order to ensure that no innocent person like the father of the present petitioner, Husan go to jail again.”
On basis of the above case of Rudul Sah, it is also open for Husan to claim further damages from the State of Madhya Pradesh in a Civil Court by proving the necessary facts. The further quantum of compensation from the Civil Court shall not be reduced on the ground that a compensation of ₹5 Lakhs has already been given by the High Court.
The Kamlesh s/o Husan v/s state of MP judgement may be read here:
The Rudul Sah vs State Of Bihar judgement may be read here: