SC Sets Aside Orissa High Court’s Grant Of Compensation For Illegal Custody After Acquittal [Read Order]

In 2015, Justices Vinod Prasad and S.K.Sahoo of Orissa High Court granted Rs.20 lakhs as compensation to Duleswar Barik, kept under illegal custody for seven long years, even though he was acquitted for the offence of murdering six persons, on the ground that he was suffering from insanity (Section 84 of IPC).

On March 20, the Supreme Court bench of justices Adarsh Kumar Goel and Uday Umesh Lalit, set aside the High Court’s order granting compensation to Barik, accepting the plea of the Orissa Government that it was not responsible for his illegal custody.

Barik, who was initially suffering from insanity, when he committed the offence in 2003, had substantially recovered subsequently. He was under the supervision of psychiatrist, Circle Jail, Sambalpur, Orissa. His father had requested his release so that he could provide proper treatment to him. Barik was the only son of his parents, and the High court found him to be searching for their love and affection.

The High Court acquitted him in 2007, invoking section 84 of the Indian Penal Code. Although his erroneous conviction and sentence by the trial court was set aside, he could be released from prison only in 2014.

The bizarre order from the Supreme Court strangely attributes to the High Court, what it had explicitly denied in its judgment. The Supreme Court’s order states that the High Court itself had directed that till medical opinion allowed Barik’s being set free, he should be treated without being freed from custody.

However, a careful reading of the High court’s judgment clearly shows that the words “without being freed from custody” were not to be found in it.

Orissa Government had claimed to the High Court that no release order was issued to the jail authority for his release from jail custody, despite his acquittal.

In 2014, the High Court examined Barik personally, and recorded its satisfaction of his almost complete recovery. The High Court thus recorded: “In such a view, since we find that a sane man who is not dangerous to the society at all, has been illegally detained by the authorities inside the jail and was robbed of all the fruits of life for a long period of seven years, in fragrant violation of Section 362 Cr.P.C. and Articles 14, 19, and 21 of the Constitution of India, we would like to get him adequate compensation for illegal confinement, while directing his release forthwith.”

The high court relied on Rudul Sah v State of Bihar, of the Supreme Court, which also dealt with a case of detention after acquittal. The State’s counsel in that case had not raised any objection, when the Court directed compensation of Rs.35,000 to the victim of illegal detention. The judgment in Rudul Sah was consistently followed in several cases subsequently.

The High Court reasoned: “It cannot be said that since the petitioner is poor, his compensation should also be poorly assessed; It cannot be gainsaid that if the petitioner would have been allowed to become free earlier, he could have established himself as an important member of the community in the meantime and would have recovered much more quicker in a caring and healthy atmosphere and we are of further view that the State is liable to pay compensation for the illegal and unjustified detention of Barik inside jail barrack.”

The Supreme Court appears to have completely ignored the following, while concluding that Barik was not entitled to compensation:

1. The State authorities did not take Barik to Nimhans, Bangalore, for taking a final opinion, although it was recommended by the doctors who examined him.


2. The High Court had clearly mentioned in its 2015 judgment as follows: “There was no direction (in 2007 by the High Court) to keep the petitioner in Jail custody even if the expert gives negative opinion regarding his release.”

The State of Orissa was represented by Sharmila Upadhyay, while Barik was represented by Aishwarya Bhati, T.Gopal, Jaideep Singh and Adarsh Kumar Tiwari.

Read the Order here.