The Bombay HC has directing inquiry against the errant officers who kept a 28 year old in police custody after the court’s order given to hand him to judicial custody, after ordering the State’s Government to pay compensation of Rs.20,000 to be paid in four months to the illegally detained. The police’s contention that the transfer did not occur due to the non-availability of Covid 19 testing and of police vans as well was refused by the division bench of Justices SS Shinde and NJ Jamadar and the bench observed, “The constitutional and legal rights of a person cannot be sacrificed at the altar of such flimsy explanations.”
The Court found the excuse of negative testing untenable as the detainee was vaccinated after being remanded to the judicial custody and soon after being sent to jail was registered into a temporary prison. The Court observed that the accused was detained in blatant violation of the order passed by the Metropolitan Magistrate and this had violated his constitutional and legal rights.
Background
A Habeas Corpus petition was filed under Article 226 of the Indian Constitution by Sadiqua Shaikh, through advocate Adil Khatri, alleging that the petitioner’s husband, after being arrested for theft, under section 380 of IPC, 1860, on 26 July 2021, was presented before the Court on 28, i.e., post the mandatory 24 hour window, by the Deonar Police, and nor any notice under section 41A of CrPC was given to her.
She also contended that her husband was detained in police custody even after the Magistrate declined any further police custody and remanded judicial custody on 30th July.
Observation
Though the Bench rejected the first contention, it observed that the accused was kept in police custody wrongfully and stated that a mere declaration of violation constitutional rights wasn’t enough.
The Court said that the police’s act of detaining a person in police custody despite express order of the Magistrate of transferring him to judicial custody, can’t be forgotten about as an aberration, and further added, “The statutory provisions, which limit the period of police custody, would be rendered illusory if the accused is detained in police custody, in spite of a reasoned and conscious order passed by the Magistrate declining the same."
The court listed a variety of judgements and noted that the public law domain is mainly concerned with the disputes arising between the citizen and the State and it is adopted to preserve the rule of law.
The court, for redressal of such injury, empowered the constitutional courts to award compensation under the public law domain and observed, “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."
-Malaika Kadam