UNIVERSITY OF PETROLEUM & ENERGY STUDIES

COLLAGE OF LEGAL STUDIES

Project On

RUDAL SHAH V/S STATE OF BIHAR

AIR 1983 SC 1086

Submitted to:- Submitted by:- Radhe Shyam Aman Agrawal Assistant Prof. 500012437 COLS Prof. Sec.:- A

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AKNOWLEGEMNT

I owe my sincere thanks to my concerned subject teacher Mr. Radhe Shyam Sir who helped me in selecting the project topic, helped me in successful completion of this project and corrected it at every step.

I would also like to thank my friends and respective teacher who help and motivated me during the project completion.

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INDEX

1. CASE NOTE ………………………………...……………………………………………4

2. JUDGMENT ………………………………………………………………………..4-11

3. INTRODUCTION 0F FALSE IMPRESONMENT .......……………………………….12

4. WHO IS LIABLE FOR FALSE IMPRISONMENT ………………………………..12-13

5. INGREDIENTS OF TORT OF FALSE IMPRISONMENT ………………………..13-14

6. REMEDIES ………………………………………………………………………….14-16

7. CASE REFERRED ………………………………………………………………….16-19

8. BIBLIOGRAPHY ………………………………………………………………………20

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Rudal Shah V. State of Punjab

Case Note:

Constitution illegal detention Article 32 of Constitution of India petitioner detained for 15

years in spite of acquittal petition filed under Article 32 whether under Article 32

Supreme Court can pass Order of compensation for infringement of fundamental right of

compensation palliative for unlawful act of instrumentalities of State to repair damage

done by officers State to pay compensation as interim measure petitioner without

prejudice to interim compensation awarded may bring suit for damages against State.

JUDGMENT

1. This Writ Petition discloses a sordid and disturbing state of affairs. Though the

petitioner was acquitted by the Court of Sessions, Muzaffarpur, Bihar, on June 3,

1968 he was released from the jail on October 16, 1982, that is to say, more than

14 years after he was acquitted. By this Habeas Corpus petition, the petitioner

asks for his release on the ground that his detention in the jail is unlawful. He

also asked for certain ancillary reliefs like rehabilitation, reimbursements of

expenses which he may incur for medical treatment and compensation for the

illegal incarceration.

2. This petition came up before us on November 22, 1982 when we were informed

by Shri Goburdhan, counsel for the State of Bihar, that the petitioner was

already released from the jail. The relief sought by the petitioner for his release

thus became infructuous but despite that, we directed that a Notice to show

cause be issued to the State of Bihar regarding prayers 2, 3 and 4 of the petition.

By prayer No. 2 the petitioner asks for medical treatment at Government

expense, by prayer No. 3 he asks for an ex gratia payment for his rehabilitation,

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while by prayer No. 4 he asks for compensation for his illegal detention in the

jail for over 14 years.

3. We expected a prompt response to the Show Cause Notice from the Bihar

Government at least at this late stage, but they offered no explanation for over

four months. The Writ Petition was listed before us on March 31, 1983 when

Shri Goburdhan restated that the petitioner had been already released from the

jail. We passed a specific order on that date to the effect that the release of the

petitioner cannot be the end of the matter and we called upon the Government of

Bihar to submit a written explanation supported by an affidavit as to why the

petitioner was kept in the jail for over 14 years after his acquittal. On April 16,

1983, Shri Alakh Deo Singh, Jailor, Muzaffarpur Central Jail, filed an affidavit

in pursuance of that order. Shorn of its formal recitals, the affidavit reads thus :

a) That the petitioner was received on 25.3.67 from Hazaribagh Central Jail and

was being produced regularly before the Additional Sessions Judge,

Muzaffarpur and on 30.8.68 the learned Judge passed the following order The

accused is acquitted but he should be detained in prison till further order of the

State Government and I.G. (Prisons), Bihar. (A true copy of the same is attached

as Annexure I).

b) That accused Rudul Sah was of unsound mind at the time of passing the above

order. This information was sent to the Law Department in letter No. 1838 dated

10.5.74 of the Superintendent, Central Jail, Muzaffarpur through District

Magistrate, Muzaffarpur.

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c) That the Civil Surgeon, Muzaffarpur, reported on 18.2.77 that accused Rudul

Sah was normal and this information was communicated to the Law Department

on 21.2.77.

d) That the petitioner, Rudul Shah was treated well in accordance with the rules in

the Jail Manual, Bihar, during the period of his detention.

e) That the petitioner was released on 16.10.82 in compliance with the letter No.

11637 dated 14.10.82 of the Law Department.

4. The Writ Petition came up before us on April 26, 1983 when we adjourned it to

the first week of August 1983 since it was not clear either from the affidavit

filed by the Jailor or from the order of the learned Additional Sessions Judge,

Muzaffarpur, which is annexed to the affidavit as Annexure I, as to what was the

basis on which it was stated in the affidavit that the petitioner was of unsound

mind or the reason why the learned Additional Sessions Judge directed the

detention of the petitioner in jail, until further orders of the State Government

and the Inspector General of Prisons.

5. The writ petition has come up for hearing once again before us today. If past

experience is any guide, no useful purpose is likely to be served by adjourning

the petition in the hope that the State authorities will place before us satisfactory

material to explain the continued detention of the petitioner in jail after his

aquittal. We apprehend that the present state of affairs, in which we are left to

guess whether the petitioner was not released from the prison for the benign

reason that he was insane, is not likely to improve in the near future.

6. The Jailor's affidavit leaves much to be desired. It narrates with an air of

candidness what is notorious, for example, that the petitioner was not released

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from the jail upon his acquittal and that he was reported to be insane. But it

discloses no data on the basis of which he was adjudged insane, the specific

measures taken to cure him of that affliction and, what is most important,

whether it took 14 years to set right his mental imbalance. No medical opinion is

produced in support of the diagnosis that he was insane nor indeed is any jail

record produced to show what kind of medical treatment was prescribed for and

administered to him and for how long. The letter (No. 1838) dated May 10, 1974

which, according to paragraph 3 of the affidavit, was sent to the 1aw Department

by the Superintendent of the Central Jail, Muzaffarpur, is not produced before

us. There is nothing to show that the petitioner was found insane on the very

date of his acquittal. And, if he was insane on the date of acquittal, he could not

have been tried at all for the simple reason that an insane person cannot enter

upon his defence. Under the CrPC, insane persons have certain statutory rights

in regard to the procedure governing their trial. According to paragraph 4 of the

affidavit, the Civil Surgeon, Muzaffarpur, reported on February 18, 1977 that the

petitioner was normal and that this information was communicated to the Law

Department on February 21, 1977. Why was the petitioner not released for over

5 1/2 years thereafter? It was on October 14, 1982 that the Law Department of

the Government of Bihar directed that the petitioner should be released. Why

was the Law Department so insensitive to justice ? We are inclined to believe

that the story of the petitioner's insanity is an afterthought and is exaggerated out

of proportion. If indeed he was insane, at least a skeletal medical record could

have been produced to show that he was being treated for insanity. In these

circumstances, we are driven to the conclusion that, if at all the petitioner was

found insane at any point of time, the insanity must have supervened as a

consequence of his unlawful detention in jail. A sense of helplessness and

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frustration can create despondency and persistent despondency can lead to a

kind of mental imbalance.

7. The concerned Department of the Government of Bihar, could have afforded to

show a little more courtesy to this Court and to display a greater awareness of its

responsibilities by asking one of its senior officers to file an affidavit in order to

explain the callousness which pervades this case. Instead, the Jailor has been

made a scapegoat to own up vicariously the dereliction of duty on the part of the

higher officers who aught to have known better. This is not an isolated case of

its kind and we feel concerned that there is darkness all around in the prison

administration of the State of Bihar. The Bhagalpur blindings should have

opened the eyes of the Prison Administration of the State. But that bizarre

episode has taught no lesson and has failed to evoke any response in the Augean

Stables. Perhaps, a Hercules heas to be found who will clean them by diverting

two rivers through them, not the holy Ganga though. We hope (and pray) that

the higher officials of the State will find time to devote their personal attention

to the breakdown of Prison Administration in the State and rectify the grave

injustice which is being perpetrated on helpless persons. The High Court of

Patna should itself examine this matter and call for statistical data from the

Home Department of the Government of Bihar on the question of unlawful

detentions in the State Jails. A. tabular statement from each jail should be called

for, disclosing how many convicts have been in jail for more than 10 years, 12

years, 14 years and for over 16 years. The High Court will then be in a position

to release prisoners who are in unlawful detention in the jails and to ask the State

Government to take steps for their rehabilitation by payment of adequate

compensation wherever necessary.

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8. That takes us to the question as to how the grave injustice which has been

perpetrated upon the petitioner can be rectified, in so far as it lies within our

power to do in the exercise of our writ jurisdiction under Article 32of the

Constitution. That article confers power on the Supreme Court to issue

directions or orders or writs, including writs in the nature of habeas corpus,

mandamus, prohibition, quo warranto and certiorari, whichever may be

appropriate, for the enforcement of any of the rights conferred by Part III. The

right to move the Supreme Court by appropriate proceedings for the

enforcement of the rights conferred by Part III is "guaranteed", that is to say, the

right to move the Supreme Court under Article 32 for the enforcement of any of

the rights conferred by Part III of the Constitution is itself a fundamental right.

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 cave is

illustrative of such cases. The petitioner was detained illegally in the prison for

over fourteen 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.

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10.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 mulct its violaters 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 civilisation 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.

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11.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.

12.This order will not preclude the petitioner from bringing a suit to recover

appropriate damages from the state and its erring officials. The order of

compensation passed by us is, as we said above, in the nature of a palliative. We

cannot leave the petitioner penniless until the end of his suit, the many appeals

and the execution proceedings. A full-dressed debate on the nice points of fact

and law which takes place leisurely in compensation suits will have to await the

filing of such a suit by the poor Rudul Sah. The Leviathan will have liberty to

raise those points in that suit. Until then, we hope, there will be no more Rudul

Sahs in Bihar or elsewhere.

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INTRODUCTION 0F FALSE IMPRESONMENT

This project has required consultation to an assorted range of books and websites that are

a part of the secondary sources. Some research papers and journals too have been

referred to. The various sites referred to include the official sites of Supreme Court of

India and Manupatra for research on cases of Indian origin, while the other cases can be

traced back to various books referred to thereby.

Explanation:-

1. Introduction : This section briefly high lights the basics of what is false

imprisonment and who can be held liable for the tort of false imprisonment.

2. False imprisonment as a Tort : This part has been included to explain the concept

of false imprisonment as a tort with the help of various case laws, both Indian and

Foreign.

3. Ingredients of false imprisonment : This section focuses on explaining the

elements of false imprisonment as a tort, i.e., of what constitutes the tort of false

imprisonment.

4. Remedies : This division seeks to list out the available remedies for the tort of

false imprisonment and of when and how they can be availed.

5. Conclusion : This component endeavours to summarise the project as a whole and

to give the concluding remarks and opinion about the topic, i.e., “False

Imprisonment and its Remedies”

WHO IS LIABLE FOR FALSE IMPRISONMENT

A person may be liable for false imprisonment not only when he directly arrests or

detains the plaintiff, but also when he was “active in promoting or causing” the arrest or

detention . Apart from this liability can be fastened vicariously, or through

instrumentality of some officer. Also, if a person gets another arrested by police on a

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false complaint, he is liable for damages of false imprisonment . In cases where the

plaintiff was arrested on a charge of theft on bona fide but wrong information given by a

shop detective and here the police officers gave evidence that they had exercised their

own judgement in arresting the plaintiff, the shop-owner would not be held liable.

The plaintiff is arrested without a warrant and produced before a Magistrate who

remands him in custody; his remedies for detention before and after the remand are

different. For detention prior to the remand he can sue for trespass for false

imprisonment whereas after it he can sue for malicious prosecution. When a wrong

person is arrested and imprisoned under a decree to which he is not a party, the person

setting the court in motion is not liable for false imprisonment.

In case of false imprisonment the burden to prove justification lies on the defendant who

made or caused the arrest.

INGREDIENTS OF TORT OF FALSE IMPRISONMENT

To ask at the outset if a convicted prisoner enjoys in law „residual liberty‟, as if the

extent of any citizen‟s right to liberty were a species of rights in rem or a matter of

status, is to ask the wrong question. The action for false imprisonment is maintainable in

personam. The various constituents of false imprisonment include:

1. PERIOD OF CONFINEMENT Whatever may be the period of confinement, the tort of

false imprisonment arises. But time period is of essence while determining the amount of

compensation to be awarded to the injured party. An otherwise lawful detention may

become unlawful if the detention is prolonged for an unreasonable period of time.

2. THE INTENTION FACTOR There are very few torts that consider the intension

(“mens rea”) of the defendant, and false imprisonment is one of these i.e., a person is not

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liable for false imprisonment unless his or her act is done for the purpose of imposing a

confinement. To reveal the element of intent, the defendant must only intend to

accomplish the act that causes the confinement, and need not contend that the

confinement was unlawful; as the defendant‟s actual motives are immaterial. Even

negligent acts of confinement amount to false imprisonment.

3. KNOWLEDGE OF THE PLAINTIFF There is no requirement that the plaintiff

alleging false imprisonment was aware of the restraint on his freedom at the time of his

confinement, e.g., the Meering Case discussed earlier. If the person is confined in a room,

with one of the entries known to the plaintiff closed, and the room has more than one

entry exit door, but the plaintiff has no knowledge about the same, the defendant will

still be held liable. Thus, the person confined does not have to be aware of the

confinement or be harmed by it as it is actionable per se - Meering v GrahameWhite

Aviation Co

4. PLACE OF CONFINEMENT To constitute the wrong, there may be no actual

imprisonment in the ordinary sense- i.e. incarceration. Any confinement in the ordinary

sense whether be it prison or any place used temporarily for the purpose of confinement

constitutes false imprisonment. An unlawful arrest too amounts to false imprisonment.

REMEDIES

1. Action for Damages Damages in false imprisonment are those which flow from the

detention. A person injured is entitled to compensatory damages. The damages for false

arrest are to be measured only to the time of arraignment or indictment. There is no legal

rule for the assessment of the damages and this is entirely left on the court to measure

damages. Elements of the injury to the person which are included in the purview of

recovery of damages include injury to the person and physical suffering, mental suffering

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and humiliation, loss of time earnings and interruption of businesses, reasonable and

necessary expenses incurred, injury to the reputation and generally the deprivation of any

right caused by the loss of liberty such as the plaintiffs loss of the family company during

the period of arrest.

2. Nominal and Compensatory DamagesThe general rule in personal tort action is that the

plaintiff is entitled to recover such a sum that shall be fair and just, in the absence of

circumstances justifying an award for exemplary damages. The mere unlawful detention

constitutes the basis for the recovery of at least nominal damages, but an award of only

nominal damages may be insufficient and flawed where the facts proved indicate a right

to greater damages.It has been held now that the person can now be imprisoned without

knowing it. In such cases the plaintiff might obtain only nominal damages.Mental

suffering including fright, shame and mortification from the indignity and disgrace,

consequent upon an illegal detention, is usually considered an injury for which

compensation may be made in an action for false arrest or false imprisonment. The fact

that no physical injury was inflicted on one complaining of false imprisonment has been

said to be no grounds for denying the recovery of reasonable compensation for mental

suffering.

3. Punitive, Exemplary and Aggravated Damages If an imprisonment is affected

recklessly, oppressively, insultingly and maliciously with a design to oppress and injure,

the court may award exemplary or punitive damages. Punitive damages are awarded in

cases where the defendants conduct is recklessly indifferent to the rights of others or in

intentional or wanton violation of those rights, and such damages are awarded to give a

deterrent. In some circumstances exemplary damages may be provided as when there is

abuse of power by the state. Aggravated damages may be awarded in a proper case as

when the imprisonment in itself of a nominal character is offensive or hurt fell to the

plaintiffs feelings. Courts have often held that malice will warrant an award for

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exemplary or punitive damages in an action for false imprisonment or false arrest.

Punitive or exemplary damages will not be allowed where the false imprisonment was

brought about in good faith, without malice in fact or in law and where there is no

element of wantonness or oppression.

4. Writ of Habeas Corpus This writ is considered to be a golden remedy by the English

Law. The Supreme Court of India and High Court of states issue this writ under article 32

and 226 respectively.Subject to the rules framed by the High Courts, an application for

habeas corpus can be made by the person in confinement or by any person on his behalf.

The writ of habeas corpus is effective means of immediate release from unlawful

detention, whether in prison or private custody. Where an unlawful detention is

continuing the plaintiff may seek this writ. This writ is also used in criminal cases of

false imprisonment.

5. Self Help A person who is unlawfully detained may use self-help to escape including

reasonable force so as to defend him from unlawful arrest. The force used must be

proportionate in the circumstances. This is risky course since the power to arrest is likely

to depend upon not only in the commission of offence but in the alternative, in a

reasonable suspicion thereof. Hence an innocent person who forcibly resists may be

liable for battery if the arrester had reasonable grounds for his suspicion.

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Case Referred

In India the first case to be brought into light and decided upon by the Supreme Court

with respect to false imprisonment was the A. K. Gopalan v. State of Madras. Union of

India that highlighted the seminal significance regarding the interpretation of

fundamental rights and their interplay.

The petitioner was detained under the Preventive Detention Act (Act IV of 1950) and he

applied under Art. 32 of the Constitution for a writ of habeas corpus and for his release

from detention, on the ground that the said Act contravened the provisions of Arts. 13,

19, 21 and 22 of the Constitution and was consequently ultra vires and that his detention

was therefore illegal, and it was held that the Prevention Detention Act, 1950, with the

exception of Sec. 14 thereof did not contravene any of the Articles of the Constitution

and, the invalidity of Sec. 14 did not affect the validity of the Act as a whole, and the

detention of the petitioner was not illegal. In the Hussainara Khatoon(I) v. State of Bihar

case, it was held that speedy trial is an integral part of fundamental right of life and

liberty as enshrined in Article 21of the constitution. Further it laid down norms for

speedy disposal of cases, after analyzing the fact that a large number of men and women

had been held behind bars awaiting trial, for longer than periods that they would have to

serve if their offence was proved, thereby depriving them of their freedoms.

In Mathew Areeparmtil and other v. State of Bihar and other the court ordered that the

cases which involve tribal accused concerning imprisonment of more than 7 yrs. should

be released on execution of a personal bond. In the case where trial has started accused

should be released on bail on execution of a personal bond. In case where no proceedings

at all have taken place in regard to the accused within three yrs., from he date of the

lodging of FIR, the accused should be released forthwith under S.169 Cr. P.C. if there are

cases in which neither charge-sheet have been submitted nor investigation has been

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completed during the last three years, the accused should be released forthwith subject to

reinvestigation to the said cases on the fresh facts and they should not be arrested without

the permission of the magistrate

In D.K. Basu v. State of West Bengalthe petitioners raised important issues concerning

the police powers and if monetary compensation should be awarded for established

infringement of Fundamental Rights, as under Article 21 and 22 of our constitution. The

court held that Custodial violence, including torture and death in the lock ups, strikes a

blow at the Rule of Law, which demands that the powers of the executive should not only

be derived from law but also that the same should be limited by law. To check the abuse

of police power, transparency of action and accountability were the two safeguards laid

down by the court. The D.K. Basu’s case contained 11 path-breaking directives where the

court spelt out, in mandatory terms, the rights of an arrestee or a detainee and the manner

in which the arresting or detaining authority is expected to behave, including the written

record of arrest, informing of arrestee‟s family of his arrest, medical examination on

request, among the others.

The case also high-lightened the power of arrest and whether monetary compensation

should be awarded for established infringement of fundamental rights guaranteed by

Articles 21 & 22. The Court laid down requirements of power of arrest in para 36 of the

judgment and declared monetary or pecuniary compensation is an appropriate and indeed

an effective and sometime perhaps the only suitable remedy for redressal of the

established infringement of the fundamental right to life of a citizen by the public

servants and the State is victoriously liable for their acts.

Sunil Batra v. Delhi Administration, looked into the Article 32 of the constitution and

determined the power and responsibility of the court to intervene and protect prisoners

from the torture they are put through by the jail authorities (“hands off doctrine”). The

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case also drew attention on the right against solitary confinement, along with the

principle that said required a Prison Manual to be made available to the prisoners, in

addition to keeping of grievance boxes in prisons and remedial action on grievances by

the Session‟s judge. The Supreme Court also recognized the right of the prisoners to be

visited by their friends and relatives, and favoured their visits but subject to search and

discipline and other security criteria.

In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others, the

Supreme Court ruled that the right to life and liberty includes the right to live with human

dignity and therefore a detainee would be entitled to have interviews with family

members, friends and lawyers, and as under article 14 and 21, the regulations must be

reasonable and non-arbitrary, without severe restrictions. The cased focused on death of a

suspect in police custody, and use of third degree measures by police in investigation.

In Sebasitian M. Hongray two persons were taken into custody by the Army authority in

Manipur, but were not produced in obedience to a writ of habeas corpus and it was held

that those persons must have met an unnatural death while in army custody. The Supreme

Court directed the Union of India to pay exemplary damages for the action of the army

authorities in murdering the two persons.

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Bibliography

1. Manupatra.com

2. http://works.bepress.com/cgi/viewcontent.cgi

3. http://www.legalservicesindia.com/articles/dct.htm

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