Mehmood Nayyar Azam v. State of Chhattisgarh

By:- Amal Singh Patel

In the Supreme Court of India

NAME OF THE CASEMehmood Nayyar Azam v. State of Chhattisgarh
CITATIONCivil Appeal No. 5703 of 2012
DATE OF THE CASEAugust 3, 2012
APPELANTMehmood Nayyar Azam
RESPONDENTState of Chhattisgarh
BENCH/JUDGEK.S.P. RADHAKRISHNAN & DIPAK MISRA
STATUTES/CONSTITUTION INVOLVEDConstitution of India; Indian Penal Code, 1860; Evidence Act, 1872; Human and Civil Rights; Criminal Procedure Code, 1973
IMPORTANT SECTIONS/ARTICLESConstitution of India — Arts. 21, 19, 14 and 32

Indian Penal Code, 1860, Ss. 499 to 502

Criminal Procedure Code, 1973 — Ss. 163, 154, 155 and 157

Evidence Act, 1872 — S. 24

Human and Civil Rights — Right against cruel, inhuman, or degrading treatment or torture

Abstract

In the present case, the appellant doctor who was spreading awareness against the exploitation of weaker and marginalised sections of society became a victim of the local coal mafia, police and persons whose interests were being affected thereby. Many criminal cases were filed against the doctor, and he was admittedly humiliated in police custody. Pursuant to the intervention by the high court, departmental proceedings were initiated, and therefore the erring officials were punished. The high court in its final order referred the concern the Chief Secretary of the State for grant of compensation. Till the present appeal i.e. after 19 years, no compensation had been paid to the appellant albeit the Supreme Court initially gave a chance to the respective state government to think about the issue of compensation.

Introduction

In India, defamation is considered both a civil & criminal offence. Civil defamation remedy is covered in the Law of Torts. An individual who is defamed can move either High Court or subordinate courts and seek damages within the sort of monetary compensation from the accused in a civil defamation case. The Indian Penal code, 1860 provides a chance for the defamed person to file a criminal case against the accused. Under sections 499 and 500 of the IPC, an individual guilty of criminal defamation is often sent for imprisonment for a term which can extend two years or fine, or both. In the present case, the writ court isn’t concerned with defamation as given under Section 499 IPC. The writ court is basically concerned with how during a country governed by the rule of law and where Article 21 of the Constitution is treated to be sacred, the dignity and social reputation of citizens have been affected.

1.   Defamation

Overview

Defamation is a statement that injures a third party’s reputation. The tort of defamation includes both libel (written statements) and slander (spoken statements). [1]

Elements

To prove prima facie defamation, a plaintiff must show four things: [2]

  • A false statement purporting to be fact.
  • Publication or communication of that statement to a third person.
  • Fault amounting to at least negligence; and
  • Damages, or some harm caused to the person or entity who is the subject of the statement.

The two-Judge bench within the case of Mehmood Nayyar vs State of Chhattisgarh Stated Article 5 of the 1948 Universal Declaration of Human Rights “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”[3] It also stated that any kind of torture, inhuman, or degrading treatment should fall within the scope of Article 21 of the Constitution, whether it is during an investigation, interrogation, or anything else.

The most valuable right given to convicts, under-trials, detained persons & other prisoners in custody by Article 21 of the Indian Constitution cannot be refused, except in compliance with the procedure laid down by law.

The custodial offences are not only causing physical pain but also the mental agony that a person faces within the lockups, which is of great concern. The degree of trauma an individual experiences in police custody whether it is physical assault or rape is outside the purview of the law.

FACTS OF THE CASE

The factual matrix, in this case, is that the appellant is a Doctor with a B.A.M.S (Ayurveda) degree, and he uses to practise in West Chirmiri Colliery, Pondi area (State of Chhattisgarh). He used to spread awareness & raise agitations against the exploitation of people belonging to weaker and marginalized sections of the society. As a social activist, he ushered in immense awareness among the down-trodden people which caused discomfort to the people such as trade union leaders, police officers and other persons who were having an interest in the coal mine area. They threatened him with horrible consequences and forced him to refrain from such activities.

The petitioner continued the activities although he was being forced to stop those activities. The agitation was gaining strength and momentum and when their attempt failed to silence him a consorted bungling effort was made to frame him in certain criminal offences.

“As the factual narration further unfolds, in the initial stage, cases under Section 110/116 of the Criminal Procedure Code were initiated and thereafter crime No. 15/92 under Section 420 of the Indian Penal Code (for short ‘the IPC’) and crime No. 41/92 under Sections 427 and 379 of the IPC were registered. As the activities gathered further drive and became more pronounced, crime No. 62/90 was registered for an offence punishable under Section 379 of the IPC for alleged theft of electricity. In the said case, the appellant was taken into custody.”[4]

“Although he was presented before the Magistrate on 22/09/1992 for judicial remand and after that, he was supposed to be taken to Baikunthpur Jail, it was evening by the time the order was passed, so he was kept in the lock-up at Manendragarh Police Station. On 24/09/1992, he was required to be shifted to jail but at 9.00 am he was taken to Pondi Police Station instead of being taken to the jail.”[5]

“He was abused and assaulted at the police station &the physical assault was the beginning of ill-treatment. After that, the SHO and ASI, the respondent No. 3 & 4, compelled him to hold a placard on which it was written: Main Dr. M.N. Azam Chhal Kapti Evam Chorr Badmash Hoon”. (I, Dr. M. N. Azam, am a cheat, fraud, thief, and rascal) and took his photograph, they circulated that photograph in public.”[6]

The petitioner submitted a complaint to the National Human Rights Commission because of the said atrocities and the torture by the police as it caused tremendous mental agony and humiliation. Hence the National Human Rights Commission, asked the Superintendent of Police, District Koria to submit a report.

“When no action was taken by the respondent or the police, the petitioner was compelled to invoke the extraordinary jurisdiction of the High Court of Judicature at Bilaspur, Chhattisgarh with a prayer for punishing the respondent Nos. 4, 5 & 7 on the foundation that their action was a complete transgression of human rights which affected his fundamental right especially his right to live with dignity as given in Article 21 of the Constitution.”[7]

“On 18.11.2005, the Court was apprised that despite several communications, the Chief Secretary had not yet sent the report. Eventually, the report was filed stating that the appellant was involved in certain cases including the grant of a bogus medical certificate.”[8]

It was also stated in the report that the Sub-Inspector had been imposed punishment of “censure” by the Superintendent of Police on 19/11/2001. It was also set forth that on 3.5.2003, a charge-sheet was served on all the officers that were guilty and a departmental enquiry was held and at last, they had been imposed a major penalty of withholding of one annual increment with cumulative effect for one year commencing 27.5.2004. Also, on 19/07/2005, a case had been registered under Section 29 of the Police Act against the officers that were found guilty.

“Pursuant to the intervention by the High Court, departmental proceedings were initiated, and the erring officials were punished. The High Court in its final order referred the matter to the Chief Secretary of the State for grant of compensation. Till the present appeal i.e., after 19 years, no compensation had been paid to the appellant even though the Supreme Court initially gave an opportunity to the State Government to consider the issue of compensation. The High Court in categorical terms has found that the appellant was harassed.”[9]

ISSUE RAISED BEFORE THE COURT

  1. Whether for the custodial humiliation and mental torture under Article 21 of the Constitution a compensation could be awarded or not?
  2. Whether the appellant should be asked to initiate a civil action for grant of damages on the foundation that he has been defamed?

ARGUMENTS FROM THE APPELANT SIDE

  • Learned counsel for the petitioner submitted that during the pendency of the writ petition, Relief Clause was fulfilled under the directions of this court and now only the compensation part, as claimed in Relief Clause remained there.
  • In the instant matter, it is an admitted position that the respondent State authorities were made aware of the harassment meted out to the petitioner by erring police officers and launched a departmental investigation into them, following which they were found guilty and sentenced.”
  • Learned counsel for the appellant argued that the High Court should have granted reasonable compensation after concluding that the appellant was harassed by police officers and that they were found guilty and disciplined in a departmental investigation.
  • It is further requested by him that the Court should have appointed the officials of the State to present themselves as representations to provide them with the opportunity to have adequate perceptive changes and determine and grant compensation, but there was no constructive outcome, and the attitude of apathy was supreme. He argues that it would not only display non-Page concern for a citizen who has been humiliated at the police station, but that the method in which the representation was denied clearly demonstrates the state’s misguided perception and stone heart.
  • Mr. Sharma argued that the State authority’s explanation that defamation is such a subject that the issue of compensation must be decided by a competent court and that, in the absence of such a decision, the Government cannot make a decision on compensation reflects a deliberate insensitive approach to the entire fact situation,  Because the High Court had found that the allegations were true and that the appellant had been harassed, which amounted to custodial torture, there was no justification to treat it as a case of defamation in the ordinary sense of the term, requiring the appellant to go through another adjudicatory process and obtain a decree from the civil court.

ARGUMENTS FROM THE RESPONDENT SIDE

  • Mr. Atul Jha, learned counsel appearing for the State, has supported the High Court’s decision as well as the decision of the State’s competent authority, which rejected the submission on the grounds that when the appellant seeks compensation for defamation, he must go to civil court, and so no fault can be found with the State.
  • The learned counsel for the private respondents has submitted that they have already been penalised in a disciplinary action, thus the issue of granting compensation does not arise, and if it does, it must be decided by the civil court based on the facts adduced to show defamation.

Related Provisions

  • Constitution of India
    • Article 21: – Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.[10]
    • Article 14: – (Equality before law) The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth[11]
    • Article 32: – Remedies for enforcement of rights conferred by this Part
      • The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed[12]
      • The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.[13]
      • Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )[14]
      • The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution[15]
    • Article 19:- Protection of certain rights regarding freedom of speech etc.[16]
  • Indian Penal Code, 1860
    • Section 499:- Defamation— Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.[17]
    • Section 500:Punishment for defamation —Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.[18]
    • Section 501:Printing or engraving matter known to be defamatory-Whoev­er prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.[19]
    • Section 502:Sale of printed or engraved substance containing defamatory matter—Whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.[20]
  • Criminal Procedure Code, 1973 — Ss. 163, 154, 155 and 157
    • Section 154: – Information in cognizable cases.
      • Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.[21]
      • A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.[22]
      •  Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.[23]
    • Section 155: – Information as to non- cognizable cases and investigation of such cases.
      • When information is given to an officer in charge of a police station of the commission within the limits of such station of a non- cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.[24]
      • No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.[25]
      • Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.[26]
      • Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable.[27]
    • Section 157: – Procedure for investigation preliminary inquiry.
      • If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender; Provided that-[28]
        • when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;[29]
        • if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.[30]
      • In each of the cases mentioned in clauses (a) and (b) of the proviso to sub- section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub- section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.[31]
    • Section 163:- No inducement to be offered.[32]
      • No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872 (1 of 1872).[33]
      • But no police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under this Chapter any statement which he may be disposed to make of his own free will: Provided that nothing in this sub- section shall affect the provisions of sub- section (4) of section 164.[34]
  • Evidence Act, 1872
    • Section 24:- A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise,1 having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.[35]

Judgement

The Hon’ble Court seriously expressed worry that the dignity and social repute of the public have been compromised in a country governed by rule of law and in which Article 21 of the Constitution is considered sacred. At the outset, the Hon’ble Court was convinced and admitted without any reasonable question that the appellant was arrested and harassed in police custody. However, the Court is more concerned with Article 21 rights than with defamation in this case.

In D.K. Basu v. State of West Bengal[36], the Hon’ble Court referred to Article 21 and stated that the term “life or personal liberty” includes the right to live in dignity, and so includes a guarantee against torture and assault by the State or its agents. The Hon’ble Court stated that if government officials breach the law, it will engender contempt for the law and will encourage lawlessness, and every man will have the tendency to become a law unto himself, resulting in chaos.

It’s worth noting that the concern expressed by this Court in Joginder Kumar v. State of U.P[37] was taken into account in the matter of D.K. Basu[38]. This Court expressed concern in Joginder Kumar’s case about charges of human rights violations during and after his arrest.

This Court held in Bhim Singh, MLA v. State of J&K[39], that police personnel, as keepers of peace and order, should have the highest regard for citizens’ personal liberty, and that they should not flout the law by engaging in odd acts of lawlessness. It was observed that custodians of law and order should not become depredators of civil liberties, for their duty is to protect and not to abduct.

Abuse, according to Arvinder Singh Bagga v. State of U.P. and others[40], does not have to be physical, but can also include mental and psychological torture designed to induce fear of the police’s demands.

On the facts of the case, it appears that the appellant was subjected to mental torture by incompetent police officers. He may have campaigned to help the poor and oppressed, but the social humiliation he has received has the potential to demolish his worldview.

There is no question that he would get stress condition and anxiety, which will rob him of his willpower’s brilliance and vigour. When the appellant was released from custody and saw his photograph distributed with self-condemning comments scribbled on it, he realised he had been subjected to inhumane treatment.

As a result, the basic essence of life, as enshrined in Article 21 of the Constitution, is eroding. With regard to the many issues that we have examined and taking into account the totality of the facts and circumstances, we are inclined to believe that a sum of Rs.5.00 lacs (Rupees five lacs only) should be awarded to the appellant as compensation, and we so direct. The respondent State must pay the sum within six weeks and recover it from the erring officers in equal proportions from their salaries, as determined by the competent authorities of the State.

Conclusion

“It is luculent that the appellant was subjected to mental torture at the hands of insensible police officials,” the Bench ruled. He may need to be stirred in order to ameliorate the explanation for the poor and thus the oppressed, but the social humiliation he has received is capable of eroding the foundations of his philosophy.”

As a result, it was decided that a monetary award for custodial humiliation and torture, whether physical or mental, impacting Article 21 rights should be made.

In my opinion, the case correctly states that police brutality is not permitted while in detention. It should be the duty and responsibility of police officials to ensure that when a person is in custody, he is not subjected to any inhumane treatment or cruelty, as no one is above the law, and no one, including the state or police authorities, has the authority to abuse or infringe on anyone’s rights. As a result, it should be a top priority to ensure that no one is denied their fundamental rights under Article 21 of the constitution.


[1] Cornell Law School, https://www.law.cornell.edu/category/keywords/defamation
(last visited August 01,2021)

[2] Cornell Law School, https://www.law.cornell.edu/category/keywords/defamation
(last visited August 01,2021)

[3] United Nations, https://www.un.org/en/about-us/universal-declaration-of-human-rights (Last Visited on August 01,2021)

[4] Indian Kanoon, https://indiankanoon.org/doc/24661153/

[5] Case Mine, https://www.casemine.com/judgement/in/5609af1fe4b0149711415abf

[6] Indian Kanoon, ¶ 6 https://indiankanoon.org/doc/24661153/

[7] Indian Kanoon, ¶ 7 https://indiankanoon.org/doc/24661153/

[8] Indian Kanoon, ¶ 8 https://indiankanoon.org/doc/24661153/

[9] Judicial Training & Research Institute, http://www.ijtr.nic.in/indexdigestjulysep12.htm (last visited on August 02, 2021)

[10] The Constitution of India, 1950, Art. 21.

[11] The Constitution of India, 1950, Art. 14.

[12] The Constitution of India, 1950, Art. 32(1).

[13] The Constitution of India, 1950, Art. 32(2).

[14] The Constitution of India, 1950, Art. 32(3).

[15] The Constitution of India, 1950, Art. 32(4).

[16] The Constitution of India, 1950, Art. 19

[17] See The Indian Penal Code, 1860, §499.

[18] See The Indian Penal Code, 1860, §500.

[19] See The Indian Penal Code, 1860, §501.

[20] See The Indian Penal Code, 1860, §502.

[21] See The Code of Criminal Procedure, 1973, §154(1).

[22] See The Code of Criminal Procedure, 1973, §154(2).

[23] See The Code of Criminal Procedure, 1973, §154(3).

[24] See The Code of Criminal Procedure, 1973, §155(1).

[25] See The Code of Criminal Procedure, 1973, §155(2).

[26] See The Code of Criminal Procedure, 1973, §155(3).

[27] See The Code of Criminal Procedure, 1973, §155(4).

[28] See The Code of Criminal Procedure, 1973, §157(1)

[29] See The Code of Criminal Procedure, 1973, §157(1)(a).

[30] See The Code of Criminal Procedure, 1973, §157(1)(b).

[31] See The Code of Criminal Procedure, 1973, §157(2).

[32] See The Code of Criminal Procedure, 1973, §163.

[33] See The Code of Criminal Procedure, 1973, §163(1).

[34] See The Code of Criminal Procedure, 1973, §163(2).

[35] See The Indian Evidence Act, 1872, §24.

[36] AIR 1997 sc 610: (1997) 1 sec 416: 1997 sec (Cri) 92

[37] (1994) 4 sec 260

[38] AIR 1997 sc 610: (1997) 1 sec 416: 1997 sec (Cri) 92

[39] (1985) 4 sec 677

[40] AIR 1995 SC 117

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