'Constitutional Rights Cannot Be Sacrificed At The Altar Of Flimsy Explanations': Bombay High Court Seeks Inquiry, Orders Compensation To Man Illegally Detained In Custody

"The constitutional and legal rights of a person cannot be sacrificed at the altar of such flimsy explanations," the bench observed while ordering Rs. Twenty thousand as compensation to be paid within four weeks.

A division bench of Justices SS Shinde and NJ Jamadar rejected the police's contention that the accused was not transferred from the lockup to the prison in time, owing to the non-availability of testing for covid-19 and a shortage of police vans to enable the transfer.

The court noted that the accused was vaccinated soon after being remanded to judicial custody and was lodged in a temporary prison soon after being taken to jail.

Therefore, the excuse of a negative test was not wholly sustainable, the court said.

"The Accused was detained in police custody in flagrant violation of the order passed by the learned Metropolitan Magistrate to lodge the Accused in prison. The constitutional and legal rights of the Accused were, thus, blatantly violated," the bench observed.

Background

Petitioner Sadiqua Shaikh filed a habeas corpus petition under Article 226 of the constitution through advocate Adil Khatri. She alleged that her husband was detained by the Deonar Police on July 26, 2021, for theft, under section 380 of the IPC, and brought to court only on 28, not within the mandatory 24-hour window.

No notice under section 41A of the CrPC was given either, Shaikh said.

Shaikh contended that even after the magistrate refused the Deonar police further custody of the accused and remanded him in judicial custody, on July 30, he was kept in the police lockup for nearly five days till August 5.

Observation

While the bench rejected the first contention, it held that Shaikh was indeed wrongly kept in custody. However, merely a declaration that constitutional rights were infringed wouldn't suffice.

"Detaining a person in police custody for five days, despite specific order by the jurisdictional Magistrate remanding the Accused to the judicial custody, cannot be brushed aside as an aberration," the court said, adding that,"The statutory provisions, which limit the period of police custody, would be rendered illusory if the accused is detained in police custody, inspite of a reasoned and conscious order passed by the Magistrate declining the same."

The court held that constitutional courts are empowered to award compensation under public law, to redress such grievances.

After listing several apex court judgements, the court noted that adjudication under pubic law domain essentially involves the resolution of disputes between the citizen, on the one hand, and State or its instrumentalities, on the other hand. And the remedy under public law domain is resorted to preserve the rule of law.

The court held that monetary compensation is the most practicable and effective measure for redressal of a wrong:

"Where a clear case of infringement of constitutional or legal rights is made out, the remedy of award of compensation under public law domain, has[is] now ingrained in our jurisprudence. In such cases, a mere declaration that the rights of the citizens were violated is of no succour. It is true, monetary compensation may not, in all cases, recuperate the injury suffered by the citizen. However, that remains the most practicable and effective measure for redressal of the wrong, to the extent possible."

Case Title: Sadiquabee Mohd. Usman Shaikh v. State of Maharashtra and Ors.

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