Free Legal Aid Committee vs State of Bihar and Another

A.K. Prasad, J.—Free Legal Aid Committee, Jamshedpur, a voluntary registered social organisation (for short petitioner-Organisation) has brought this writ petition by way of Public Interest Litigation to award compensation of Rs. 10,000/- (ten thousand) only against the respondents to be paid to Sukumati Mai Kudada, D/o Sri Gondo, of village Darkundia, P.S. Mujassil, Chaibasa, district Singhbhum (now West Singhbhum), ajuvenile, then aged about 13 years, who was remanded to Seraikella Jail by the Sub-Divisional Magistrate, Seraikella in Misc. Case No. 198 of 1991, a proceeding u/s 107, Cr. P.C., which was in violation of the provisions of Juvenile Justice Act, 1986 (hereinafter to be referred to as the Act''), and she was released from the jail after remaining in illegal custody for about a month and half. It is stated that she, along with others, was taken into custody due to the agitation against Khadi Kharakai Bandh Yojna. The matter came to the light when the Secretary and other members of the petitioner-Organisation visited Seraikella Jail on 7-5-1991 and interviewed Sukumati Mai Kudada.

The Sub-Divisional Magistrate, Seraikella, is the respondent in the writ petition, on whose behalf, a counter-affidavit has been filed sworn by Daud Burh, an Executive Magistrate at Seraikella, who has admitted therein that on 11-4-1991 he acted as I/c. Sub-Divisional Magistrate, Seraikella, and on that date he had remanded said Sukumati Mai Kudada, a minor girl, to jail, and she was released on 14-5-1991 from the jail/ custody. He has further stated that there was agitation of the villagers against Icha Kharakai Bandh Yojna and large number of agitators were on roads and there was apprehension of breach of peace and in Misc. Case No. 198 of 1991, 63 persons, men and women, were arrested by the Officer-in-Charge, Rajnagar Police Station, and at about 10 p.m. he was ordered by the Sub-Divisional Magistrate to act as In-charge Sub-Divisional Magistrate and to remand the arrested persons to jail custody and at about 2 a.m. on 12-4-1991 the arrested persons were brought in a bus and produced before him for remand by the Police Officer. He has given explanation in the counter-affidavit that there was power failure and darkness inside and outside the room and in candle light, he had to do the work and in meagre light he could not see the features and faces of the arrested persons, who were remanded by him and their age had not been mentioned in the police report, and in the circumstances, it could not be known to him whether the minor girl, aged between 12-14 years, was in the lot, remanded by him. He has further stated in the counter-affidavit that after 11-4-1991 the regular Sub-Divisional Magistrate, held Court and on 25-4-1991 the girl, namely, Sukumati Mai Kudada, was not physically produced before him, though her custody warrant had been placed, and, ultimately, on 14-5-1991 she was released from jail custody. His further stand in the counter-affidavit is that the writ petition at the behest of the petitioner-Organisation is not maintainable, and Sukumati Mai Kudada or her family members have made no grievance of violation of fundamental right and by mistake she had been remanded in the proceeding without any mala fide intention on the part of the respondent, and he undertakes not to commit such mistake in future.

Mr. B.P. Jaiswal, learned Counsel for the petitioner-Organisation, Mr. A.B. Mahto, J.C. to learned Government Pleader No. II, appearing on behalf of the respondents, have already been heard.

It is admitted position that Sukumati Mai Kudada, a minor girl, aged about 13 years, was remanded by Daud Burh (who was I/c Sub-Divisional Magistrate at the relevant time), an Executive Magistrate, Seraikella, to jail custody on 11-4-1991 in a proceeding u/s 107, Cr. P.C. It is not disputed that" the said girl was released on 14-5-1991.

The Act came into force with effect from 2nd of October, 1986. Section 2(h) of the Act defines a juvenile and a girl who has not attained the age of 18 years falls within this definition. Section 23 of the Act reads as under:

Proceeding under Chapter VIII of the Code of Criminal Procedure not competent against juvenile.-Not withstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), no proceeding shall be instituted and no order shall be passed against a juvenile under Chapter VIII of the said Code.

A proceeding u/s 107 of the Cr. P.C. is covered by Chapter VIII of the Cr. P.C. thus Section 23 of the Act mandates that no proceeding shall be instituted and no order shall be passed against a juvenile in a proceeding u/s 107, Cr. P.C. It is axiomatic that remand of the minor girl to jail custody in a proceeding u/s 107, Cr, P.C. is in violation of the prohibition imposed by the Act and as such it was illegal, and still more unfortunate is that she had to remain in illegal detention in consequence of it for a month or so. Thus, her liberty has been infringed, and there has been violation of her fundamental right. The explanation of the acting Sub-Divisional Magistrate concerned that for want of adequate light he could not mark the features and face of the girl nor could assess her age is not tenable to condone the wrong done to the girl, whose fundamental right has been infringed. The girl is entitled to compensation under the Public Law in addition to the remedy available under the private law for the damages for tortious action of the Government servant. This proposition of law has been laid down by the apex Court in series of decisions and one may cite the decisions reported in D.K. Basu Vs. State of West Bengal, and Bhim Singh, MLA Vs. State of Jammu & Kashmir and Others,

The State Government is liable for the infringement of fundamental rights of a citizen by its officer. The writ petition for awarding compensation to the said girl for infringement of her fundamental right cannot be thrown out on the technical ground that it has been brought by an organisation like the petitioner herein. It is significant to note once again that it is a public interest litigation. It has been brought by the petitioner-Organisation to vindicate the wrong done to the girl and for awarding compensation.

The girl by now must have attained majority.

In the facts and circumstances stated above, and for the ends of justice, I think it proper to award a compensation of Rs. 10,000/- (ten thousand) only to be paid by the State of Bihar for infringement of fundamental rights of the said girl (Sukumati Mai Kudada) by the illegal Act of the said Executive Magistrate, Seraikella. The State of Bihar is directed to make available the compensation amount of Rs. 10,000/- (ten thousand) to the Deputy Commissioner, West Singhbhum, within a month of this order and when the amount is made so available, the Deputy Commissioner, West Singhbhum, shall locate the girl, named above, and pay the amount to her within a fort-night. Let a copy of this judgment/order be handed over to the learned Government Pleader No. II forthwith, for communication to the Chief Secretary, Government of Bihar, Patna, for compliance of the aforesaid direction. No costs.

R.A. Sharma, J.

I agree.