Important point
The sparing exercise of power under Article 32 or 226 of Constitution of India for issue of directions to conduct enquiry to determine compensation in glaring and clear cases of rape by police officials, custody death, illegal detention of poor and helpless cannot be resorted to in cases where there is a serious dispute as to factum of harassment by police.

Headnote:Constitution of India—Articles 32 and 226—Compensation claim—Harassment by police—Allegations of false implication and harassment by the police at the instance of appellant, a policy officer—Respondent 5 made allegations for the first time by filing of affidavit before the High Court after more than seven years after release from jail—Respondent 5 is neither illiterate nor any other factor stated which compelled him to remain silent for number of years—FIRs implicating respondent 5 in car theft cases were registered during the period between 6-9-1992 and 30-8-1993—Respondent 5 was discharged on 30-4-1997—News report published in Chandigarh News line on 5-12-2000 stating that respondent 5 was systematically framed in criminal cases—High Court took suo motu cognizance of news report—Respondent 5 filed an affidavit after about one year of publication of news report narrating the incidents that led to filing of complaint by his sister against appellant for molestation on 12-8-1990—There is a serious dispute as to factum of harassment by police at the instance of appellant—Whether High Court was right in directing District Judge to conduct enquiry to ascertain the truth—(No)—There were no such circumstances which necessitated exercise of such a power—Impugned judgment of the High Court cannot be sustained.
       Held : No doubt, the Courts while exercising jurisdiction under Articles 32 and 226 can award compensation for the violation of fundamental rights guaranteed by the Constitution but such a power should not be lightly exercised (Para 10)
       Compensation can be awarded for violation of fundamental rights in public law domain, but the facts of the case in hand do not justify the directions given in the impugned judgment for conducting of an enquiry by the District Judge so as to determine the compensation to be awarded to respondent No.5. As already noticed, the news report as well as the judgment of discharge neither mentioned anything about the appellant’s involvement in the registration of FIRs against respondent No.5 and harassment by the police at his instance nor refers to the complaint by respondent No.5’s sister alleging molestation by the appellant. The High Court went beyond the material on record while taking suo motu cognizance of the matter. What made the High Court to issue notice to the appellant while taking suo motu cognizance has not been explained to us despite repeated queries to learned counsel for the respondents. Further, the validity of the directions of the High Court has to be seen in the light of the silence of respondent No.5 for more than seven years after release from jail. The allegations of harassment by the police at the instance of the appellant were made for the first time by filing of the affidavit before the High Court on 3rd December, 2001. Respondent No.5 is neither illiterate nor any other factor has been brought to our notice which compelled him to remain silent for number of years. The alleged incident of molestation of respondent 5’s sister took place on 12th August, 1990. The FIRs implicating respondent No.5 in the car theft cases were registered during the period between 6th September, 1992 and 30th August, 1993. Respondent No.5 was discharged in the car theft cases by the Chief Judicial Magistrate, Panchkula on 30th April, 1997. How the news report suddenly came to be published after so many years is again a mystery. From the date of the registration of FIRs till the date of the filing of the affidavit before the High Court, respondent No.5 made no complaint that he was harassed by the police at the instance of the appellant. There is a serious dispute as to factum of harassment by police at the instance of the appellant. Not only the fundamental fact itself but also the very basis of issue of notice to the appellant is in serious dispute. (Paras 15 to 18)
       Neither the news report nor judgment dated 30th April, 1997 nor any other material was on record either making any insinuation against the appellant or even naming him when suo motu cognizance was taken. On what basis notice was directed to be issued by the High Court to the appellant has not been explained by learned counsel for the respondents despite our repeated queries. (Para 4)
       The sparing exercise of power under Article 32 or Article 226 of Constitution of India for issue of directions to conduct enquiry to determine compensation in glaring and clear cases of rape by police officials, custody death, illegal detention of poor and helpless cannot be resorted to in the case of present nature. There were no such circumstances which necessitated the exercise of such a power. (Paras 22 and 23)

Judgment

Y.K. Sabharwal, J.—The challenge in this appeal is to the impugned judgment and order of the High Court directing the District Judge to conduct an enquiry to ascertain the truth of the averments made by Ashu Girhotra, respondent No. 5 in his affidavit dated 3rd December, 2001 to the effect that he was implicated in false criminal cases and harassed by the police at the instance of the appellant, a police officer.

2. The brief facts are as follows:

A news report published in Chandigarh News Line dated 5th December, 2000 stated that between 6th September, 1992 and 30th August, 1993 six first information reports were registered in police station, Panchkula in State of Haryana against Ashu Girothra, respondent No. 5, his friend Sandeep Verma, respondent No. 6 and Gajinder Singh in car theft cases. The police after investigation dropped the proceedings against respondent Nos. 5 and 6 in two cases. The Chief Judicial Magistrate, Panchkula by order dated 30th April, 1997 discharged respondent Nos. 5 and 6 in the aforementioned cases on the ground that there was no prima-facie material for framing charges against them. The news report also stated that the cases beared an uncanny coincidence that seemed to suggest that respondent No. 5 was systematically framed in the car theft cases by making him sign confessional statements.

3. The High Court on 8th December, 2000 took suo motu cognizance of the aforesaid news report and the judgment dated 30th April, 1997 delivered by the Chief Judicial Magistrate, Panchkula discharging respondent Nos. 5 and 6 in the aforementioned cases of car thefts. In its order dated 8th December, 2000, the High Court has observed that it seems the police officials posted at police station, Panchkula were let loose on respondent Nos. 5 and 6 by the appellant, a senior police officer belonging to Indian Police Service, Haryana cadre in order to pressurize the sister of respondent No. 5 to withdraw the complaint lodged by her against him for the offences under Section 354 of Indian Penal Code. The Court issued notices to the appellant, State of Haryana and others calling upon them to show cause as to why they should not be burdened with compensation to be paid to respondent No. 5 for the harassment caused to him by falsely implicating him in car theft cases.

4. Neither the news report nor judgment dated 30th April, 1997 nor any other material was on record either making any insinuation against the appellant or even naming him when suo motu cognizance was taken. On what basis notice was directed to be issued by the High Court to the appellant has not been explained by learned counsel for the respondents despite our repeated queries.

5. After about one year of publication of news report and taking of cognizance, an affidavit dated 3rd December, 2001, was filed by respondent No. 5 in the High Court narrating the incidents that led to the filing of complaint by his sister against the appellant for offences under Section 354 of Indian Penal Code. He stated that his sister was a member of the Haryana Lawn Tennis Association, of which the appellant was the President. He stated that his sister was molested by the appellant on 12th August, 1990. Their parents took up the matter with the higher authorities and an inquiry was marked to the then Director General of Police, Haryana, who in his inquiry found that there was prima facie material to proceed against the appellant. In spite of this, no case was registered against him for several years. Then a writ petition was filed by Mrs. Madhu Prakash, their mother who is said to have been present with her daughter when the alleged incident of molestation took place. The writ petition was allowed by an order dated 21st August, 1998 directing registration of case against the appellant and handing over of the investigation to Central Bureau of Investigation. Pursuant to order of the Court, first information report was registered under Sections 354 and 509 Indian Penal Code on 2

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2005 Supreme(SC) 810

Cases Referred (16)