Eswaran -Judgment CDJ 2010 MHC 6929.pdf - People's watch

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a petition under Article 226 of the Constitution relating to contractual matters was held not to lie, the law underwent a change by subsequent decisions and it was noticed that even though the petition may relate essentially to a contractual matter, it would still be amenable to the writ jurisdiction of the High Court under Article 226. The public law remedies have also been extended to the realm of tort. This Court, in its various decisions, has entertained petitions under Article 32 of the Constitution on a number of occasions and has awarded compensation to the petitioners who had suffered personal injuries at the hands of the officers of the Government. The causing of injuries, which amounted to tortious act, was compensated by this Court in many of its decisions beginning from Rudul Sah v. State of Bihar [(1983) 4 SCC 141] (See also Bhim Singh v. State of J&K [1985 (4) SCC 577], Peoples’ Union for Democratic Rights v. State of Bihar [1987 (1) SCC 265], Peoples’ Union for Democratic Rights v. Police Commr., Delhi Police Headquarters [1989 (4) SCC 730], Saheli, A Women’s Resources Centre v. Commr. of Police [1990 (1) SCC 422], Arvinder Singh Bagga v. State of U.P [1994 (6) SCC 565], P. Rathinam v. Union of India [1989 Supp. (2) SCC 716], Death of Sawinder Singh Grower In re [1995 Supp. (4) SCC 450], Inder Singh v. State of Punjab [1995 (3) SCC 702 and D.K. Basu v. State of W.B. [1997 (6) SCC 370]) 10. In cases relating to custodial deaths and those relating to medical negligence, this Court awarded compensation under the public law domain in Nilabati Behera v. State of Orissa [1993 (2) SCC 746], State of M.P. v. Shyamsunder Trivedi [1995 (4) SCC 262], People’s Union for Civil Liberties v. Union of India [1997 (3) SCC 433] and Kaushalya v. State of Punjab [1999 (6) SCC 754], Supreme Court Legal Aid Committee v. State of Bihar [1991 (3) SCC 482], Jacob George (Dr) v. State of Kerala[1994 (3) SCC 430], Paschim Banga Khet Mazdoor Samity v. State of W.B. [1996 (4) SCC 37] and Manju Bhatia v. New Delhi Municipal Council [1997 (6) SCC 370]. 11. Having regard to what has been stated above, the contention that Smt Hanuffa Khatoon should have approached the civil court for damages and the matter should not have been considered in a petition under Article 226 of the Constitution, cannot be accepted. Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would still be available under the public law notwithstanding that a suit could be filed for damages under private law. 12. In the instant case, it is not a mere matter of violation of an ordinary right of a person but the violation of fundamental rights which is involved. Smt Hanuffa Khatoon was a victim of
ape. This Court in Bodhisattwa Gautam v. Subhra Chakraborty [1996 (1) SCC 490] has held “rape” as an offence which is violative of the fundamental right of a person guaranteed under Article 21 of the Constitution. The Court observed as under: "Rape is a crime not only against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is violative of the victim’s most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21”. 39. In Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble reported in (2003) 7 SCC 749, the Hon'ble Supreme Court, while dealing with a case relating to custodial violence, torture and abuse of police power, in alarming proportions prevailing in this country, observed as follows: “1. “If you once forfeit the confidence of your fellow citizens you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time”, said Abraham Lincoln. This Court in Raghbir Singh v. State of Haryana [1980 (3) SCC 70], took note of these immortal observations, while deprecating custodial torture by the police. 2. Custodial violence, torture and abuse of police power are not peculiar to this country, but it is widespread. It has been the concern of the international community because the problem is universal and the challenge is almost global. The Universal Declaration of Human Rights in 1948 which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights stipulates in Article 5 that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Despite this pious declaration, the crime continues unabated, though every civilized nation shows its concern and makes efforts for its eradication. 3. If it is assuming alarming proportions, nowadays, all around, it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from rooftops to be the defenders of democracy and protectors of people’s rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace-loving puritans and
Page 1 and 2: CDJ 2010 MHC 6929 Court : Before th
Page 3 and 4: 6. The petitioner has further submi
Page 5 and 6: have also categorically found that
Page 7 and 8: 23. In Rudul Sah v. State of Bihar,
Page 9 and 10: Shri Bhim Singh a sum of Rs 50,000
Page 11 and 12: distress, indignity, loss of libert
Page 13 and 14: 30. In Nilabati Behera v. State of
Page 15 and 16: “Finally, their Lordships would s
Page 17 and 18: 31. It is axiomatic that convicts,
Page 19 and 20: 35. This Court and the High Courts,
Page 21 and 22: scant respect for the life and libe
Page 23 and 24: doubt, by the prosecution, ignoring
Page 25: 37. The requirements, referred to a
Page 29 and 30: in Raghbir Singh v. State of Haryan
Page 31 and 32: concern shown and the stern attitud
Page 33 and 34: may be realized by the State-respon
Page 35 and 36: submissions of the learned counsel

Eswaran -Judgment CDJ 2010 MHC 6929.pdf - People's watch

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