"Complete Police Raj In Bihar, Loss Of Liberty Of Person Of Humble Means At Par With That Of Affluent Person": Supreme Court

"Their life is defined by great hardship and sacrifice. They are under constant pressure to complete long journeys in short durations; operate under conditions of extreme lack of sleep; lack proper sanitation along highways and roads; have improper access to food and water, and have to spend most of their time away from their families. Along with these gruelling adversities, they are at constant odds with the police and State authorities, while trying to protect themselves from the continuous threat of highway robberies," it observed.

It thus stated that there is an immediate need to improve the conditions of truck drivers in the State of Bihar as well as across the country, and issued a series of directions for protection and welfare of truck drivers, reproduced at the end of this report.

Role & Problems of Truck Drivers

The Bench observed that the extreme vulnerabilities faced by truck drivers in India often makes them prone to derelictions of the dark side of human civilization. It noted that whereas truck drivers act as the backbone of the national economy, they are amongst the most vulnerable sections of our society.

The Bench remarked,

"The backbone of the national economy is dependent upon the untiring and ever driving efforts and labour of the poor, mostly illiterate and the vulnerable. In the absence of the hard work and toil of truck drivers, economic activity throughout the country is bound to come to a standstill.

Truck drivers are faced with a great deal of high stress and pressure as part of their job. The introduction of the additional hassle and trauma, perpetuated by the authorities, through the use of hostility and torture is akin to grave human injustice. Such practices are a clear violation of the human rights guaranteed to every citizen of the world."

It observed that the government institutions must understand that in any democracy, the right to live with dignity and self-worth, cannot be defiled within the ambit of Rule of Law and good governance.

The Court rooted for proper education for truck drivers and focus on their healthcare, as they are undeniably invaluable to the prosperity and development both of the State and the Nation.

In this context, the Court has directed the State of Bihar to make efforts towards improving the conditions of the truck drivers and consider issues about their healthcare; access to food; working hours; payment of wages; literacy and access to technology.

"The truck drivers face constant problems with the authorities during their course of travel. They have to cross several checkpoints while crossing states/UTs. The authorities can be particularly discriminatory at these checkpoints against the truck drivers. The lack of literacy among the truck drivers and significant disparity across state laws can be a huge barrier in their compelling journey. The drivers at the ground level are required to deal with the authorities, and lack of proper knowledge gives the latter enough leverage to harass and haggle these former while stopping the movement of trucks altogether. This unnecessary practise causes a tremendous amount of time lost to the National Economy as well as the Economy of the State.

It is apparent that they are invaluable to the movement of the Economy and face widespread discrimination and constant hardships. The State ought to consider constituting a body to address these issues. There is an immediate need to address the human rights violations faced by them," the Bench emphasized.

Background

The petition was filed by the Truck owner, alleging that the Police illegally detained his vehicle (milk tanker) along with its driver, namely, Jitendra Kumar, without lodging of any FIR and/or following the appropriate procedures of recording the detention of the individual or impounding the vehicle, rendering the seizure unlawful and detention illegal.

As per the Police version, the milk tanker and the detenue were apprehended on account of an accident injuring the pedestrian. Allegedly, the detenue fled from the spot of the accident and later on the vehicle intercepted by the officials of another Police Station i.e. Dariapur Police Station and handed over to the officials of Parsa Police Station. The FIR was not filed promptly as the officers-in-charge could not track down the injured person. Further, the driver (detenue) was never detained and he willingly sat inside the vehicle parked outside the police compound.

As per the detenu however, the tanker vehicle was seized in the jurisdiction of Parsa Police Station. The tanker was taken to a nearby dairy for milk to be extracted and thereinafter detained at the police station where the detenue was detained in extra-judicial custody.

Findings

Illegal Detention and Breach of Fundamental Rights

The Court observed that the Police version of the said incident was quite 'unplausible' inasmuch as it failed to answer several essential questions, leaving holes in their story, viz.:

(i) why did the Police not register the FIR immediately when the vehicle driven by the detenue was intercepted

(ii) Why was the vehicle not impounded?

(iii) why was the drive not produced before the Court?

(iv) when there was no statement of a person witnessing the occurrence of the accident, then how did the Police get to know of such facts?

In this backdrop the Court observed that the instant case indicated a grim state of affairs where the police officials have acted in contravention and violation of the procedure established by law.

"The vehicle and detenue were detained and kept in police custody for more than 35 days without either filing of FIR or following any other procedure of arrest prescribed in law, ensuring constitutional protections to all persons," the Court observed.

It held that such illegal detention of the detenu truck driver directly infringed his right to personal liberty enshrined under Article 21 of the Constitution and thus, he is entitled to compensation under public law remedy.

Procedure of Arrest required to be followed

The Court observed that there was no statement of any person witnessing the occurrence of the accident. Thus, the Police had no suspicion of the detenue having committed any non-cognizable offence, as mandatorily required of initiating action under Section 41 CrPC. "There was neither any complaint nor any credible information warranting detention without the order of any Magistrate," the bench noted.

It further observed that no FIR was registered against the accused, in contravention of Section 154 of CrPC and the mandatory directions of the Supreme Court in Lalita Kumari v. Govt. of Uttar Pradesh, (2014) 2 SCC 1. Father, the detenue was not produced before the Magistrate within 24 hours, as required under Section 56 of CrPC; the information of his arrest was not supplied to a friend, relative or close person or entry made in the book, as required under Section 56A CrPC; and the accused was not informed of the ground of arrest, as required under Section 50 CrPC, thus depriving him of his right seeking bail.

Furthermore, the Police did not serve notice under Section 41A CrPC, either upon the owner of the vehicle or the person driving at the time of occurrence of the alleged accident. Thus, there was an infraction of not only the said provision but also Section 41B CrPC which requires the memo of arrest to be prepared furnishing correct and complete information, as available, and witnessed by any independent person.

Moreover, the valuable right of the accused of seeking legal advice envisaged under Section 41D CrPC stood infringed.

Inter alia, the guidelines of arrest and detention laid down by the Supreme Court in DK Basu v. State of West Bengal, AIR 1997 SC 610, Joginder Kumar v. State of UP, (1994) 4 SCC 260, and Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, were also violated.

The detenu's right to a fair investigation, which was held to be a facet of a fair trial under Article 21 of the Constitution by the Supreme Court in Gangadhar @ Gangaram v. State of Madhya Pradesh, 2020 SCCC OnLine SC 623, was also said to be violated.

Noting such rampant violations of the law, the Court remarked that the concerned Police officers are liable for prosecution under Section 166 IPC.

"In our considered view, simply taking up action of initiation of disciplinary proceedings is not enough. The entire Police Force needs to be sensitized of the constitutional and statutory rights of the detenue/accused, also from the angle of human rights," the Bench added.

Detention of Vehicle without FIR or Seizure Memo, Power and procedure for detaining vehicles

The Court observed that the manner in which the police officers apprehended the milk tanker/ vehicle was in complete violation of the procedure for seizure established by law.

It noted that the concern officers paid no heed to the mandate under Section 102 of CrPC (power to seize on suspicion of commission of any offense); Section 207 of the Motor Vehicle Act (power to seize vehicle if it is found to be in contravention of the Act); and the procedure for seizure, described under Section 457 of CrPC.

However, the Court refrained from taking any decision thereof and granted liberty to the Petitioner to seek remedy before the appropriate forum, under private law.

Right to Compensation under Articles 32 & 226 of the Constitution of India for Violation of Fundamental Rights

Since the Court concluded that the Police officials had violated the detenu's fundamental rights, it proceeded to observe that the instant case is fit for hefty compensation to be levied on the State.

It directed the State of Bihar to pay an amount of Rs.5,00,000/- as compensation to the detenue, within a period of six weeks, for the violation of his fundamental right under Article 21 of the Constitution of India.

The Court referred to a number of precedents to clarify that relief of monetary compensation, as exemplary damages, can be granted in writ proceedings under Article 32 or under Article 226, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution. It observed,

"The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the Court moulds the relief by granting "compensation" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen."

The Court further observed that the purpose of this compensation is to restore the confidence of the citizen in the system where their rights and interests are preserved.

"The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is like 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty. It is independent of the rights available to the aggrieved party to claim compensation under the private law in action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law," the Court added.

The Court has clarified that the right of the detenu to seek compensation under public law is independent of his right to claim other damages as private law remedy.

Directions:

• The State of Bihar shall pay compensation to the detenue, namely, Mr. Jitendra Kumar @ Sanjay Kumar, an amount of Rs.5,00,000/- (Rupees Five lac) for the violation of his fundamental right under Article 21 of the Constitution of India. This amount shall positively be paid within a period of six weeks from today.
• This compensation would be without prejudice to and independent of any remedy for damages in private law that the petitioner and/or detenue may wish to avail.
• Appropriate disciplinary action/disciplinary proceedings already stands initiated against the erring police officers, which proceedings be expedited and positively concluded within a period of three months from today. Action taken report be filed in the Registry on or before 30th of April, 2021.
• The Director General of Police, Government of Bihar shall ensure initiation of criminal proceedings against the erring police officers and file compliance report on his personal affidavit within a period of four weeks from today.
• The Director General of Police, Government of Bihar shall ensure that proceedings under the other Laws, including Bihar police Manual, 1978 applicable in the State of Bihar are immediately initiated against the erring officials.
• The Director General of Police, Government of Bihar shall ensure that appropriate action for sensitizing the entire police force, especially, the constabulary in Bihar, with special focus on safeguarding the fundamental rights of citizens is taken.
• The Director General of Police, Government of Bihar shall ensure proper and effective functioning of a Complaint Redressal Mechanism, easily accessible to the general public, especially illiterate and the marginalized people of the State.
• The appropriate authorities take the eye opening facts of this case, of the instances of abuse of process in the State of Bihar, as an opportunity to ensure better supervision over the Police Stations, preventing reoccurrence of such cases of constitutional violations.
• The Director General of Police, Government of Bihar shall get a report prepared, with respect to the number and the nature of the complaints filed against the police officers/officials, and take remedial measures preventing repeated occurrence of such misconduct.
• The State of Bihar shall consider forming a body to represent the views of the truck drivers and provide them with a complaint redressal mechanism.
• The State of Bihar shall make efforts towards improving the conditions of the truck drivers. They must consider issues about their healthcare; access to food; working hours; payment of wages; literacy and access to technology.
• Engage the Civil Society in generally building goodwill of the entire police force amongst the residents of Bihar.