# DR. MEHMOOD NAYYAR AZAM v. STATE OF CHATTISGARH AND ORS

- **Citation:** [2012] 8 S.C.R. 651
- **Court:** Supreme Court of India
- **Decided:** 2012-08-03
- **Bench:** K.S. Radhakrishnan, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-mehmood-nayyar-azam-v-state-of-chattisgarh-and-ors-28514
- **Pages:** 35

## Headnote

A
B
Constitution of India, 1950 - Article 21 - Right to life -
Custodial torture - Compensation for - Appellant-doctor
arrested in respect of alleged criminal offences and sent to
C
police custody - Self-humiliating words were written on a
placard and the appellant was asked to hold it and
photographs were taken - The photographs were circulated in
general public and were also filed by one of the respondents
in a revenue proceeding - Appellant sought public law remedy
D
for grant·of compensation - High Court arrived at the finding
that appellant was indeed subjected to custodial torture and
accordingly directed him to submit representation to the State
Government for grant of compensation - Appellant submitted
such representation, but the State Government rejected the
E
same - Appellant thus did not receive any compensation for
number of years - On appeal, held: The precious right
guaranteed by Article 21 of the Constitution cannot be denied
to convicts, undertrials, detenus and other prisoners in
custody, except according to the procedure established by law
F
by placing such reasonable restrictions as permitted by law -
When an accused is in custody, his Fundamental Rights are
not abrogated in toto - Any treatment meted out to an accused
while he is in custody which causes humiliation and mental
trauma corrodes the concept of human dignity - On facts,
G
clearly the appellant underwent mental torture at the hands
of insensible police officials and was subjected to social
humiliation - The inhuman treatment can be well visualized
when the appellant came out from custody and witnessed his
651
H
652
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A photograph being circulated with the self-condemning words
written on it - This withers away the very essence of life as
enshrined under Article 21 of the Constitution - Jn the facts
and circumstances of the case, appellant entitled to Rs.5
lakhs as compensation - Respondent-State directed to grant
B such amount and later recover it from the salary of the erring
officials - Human Rights - Universal Declaration of Human
Rights, 1948 - Article 5 -Police - Duty of the police authorities.
Constitution of India, 1950 - Articles 32 and 226 - Writ
proceedings seeking enforcement or protection of
C fundamental rights - Grant of 'compensation' in such
proceedings - Nature of - Held: When the court moulds the
relief by granting 'compensation' in proceedings under Article
32 or 226 seeking enforcement or protection of fundamental .
rights, it does so under the public law by way of penalizing the
D wrongdoer and fixing the liability for the ..public wrong on the
State which has failed in its public duty to protect the
fundamental rights of the citizen - The payment of
compensation in such cases is not to be understood, as it is
generally understood in a civil action for damages under the
E private law but in the broader sense of providing relief by an
order of making 'monetary amends' under the public Jaw for
the wrong done due to breach of public duty, by not protecting
the fundamental rights of the citizen - The compensation is
in the nature of 'exemplary damages' awarded against the
F wrongdoer for the breach of its public Jaw duty and is
independent of the rights available to the aggrieved party to
claim compensation under the private law in an action based
on tort, through a suit instituted in a court of competent
jurisdiction or/and prosecute the offender under the penal law
G - Public Law remedy.
H
Words and Phrases - "harassment" and "torture" -
Meaning of.
The appellant, an Ayurvedic Doctor with a B.A.M.S.
DR. MEHMOOD NAYYAR AZAM v. STATE OF
653
CHATTISGARH
degree, used to raise agitations and spread awareness
A
against exploitation of people belonging to weaker and
marginalized sections of the society which apparently
hurt the vested interests of the local coal mafia, trade
union leaders, police officers and other groups. He was
arrested in respect of the alleged offence under Indian
B
Penal Code

## Text

_Characters 0–39,749 of 65,411. This is a partial read: ask again with offset=39749 for what follows._

[2012] 8 S.C.R. 651
DR. MEHMOOD NAYYAR AZAM
v.
STATE OF CHATTISGARH AND ORS.
(Civil Appeal Noo. 5703 of 2012)
AUGUST 03, 2012
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.)
A
B
Constitution of India, 1950 - Article 21 - Right to life -
Custodial torture - Compensation for - Appellant-doctor
arrested in respect of alleged criminal offences and sent to
C
police custody - Self-humiliating words were written on a
placard and the appellant was asked to hold it and
photographs were taken - The photographs were circulated in
general public and were also filed by one of the respondents
in a revenue proceeding - Appellant sought public law remedy
D
for grant·of compensation - High Court arrived at the finding
that appellant was indeed subjected to custodial torture and
accordingly directed him to submit representation to the State
Government for grant of compensation - Appellant submitted
such representation, but the State Government rejected the
E
same - Appellant thus did not receive any compensation for
number of years - On appeal, held: The precious right
guaranteed by Article 21 of the Constitution cannot be denied
to convicts, undertrials, detenus and other prisoners in
custody, except according to the procedure established by law
F
by placing such reasonable restrictions as permitted by law -
When an accused is in custody, his Fundamental Rights are
not abrogated in toto - Any treatment meted out to an accused
while he is in custody which causes humiliation and mental
trauma corrodes the concept of human dignity - On facts,
G
clearly the appellant underwent mental torture at the hands
of insensible police officials and was subjected to social
humiliation - The inhuman treatment can be well visualized
when the appellant came out from custody and witnessed his
651
H
652
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A photograph being circulated with the self-condemning words
written on it - This withers away the very essence of life as
enshrined under Article 21 of the Constitution - Jn the facts
and circumstances of the case, appellant entitled to Rs.5
lakhs as compensation - Respondent-State directed to grant
B such amount and later recover it from the salary of the erring
officials - Human Rights - Universal Declaration of Human
Rights, 1948 - Article 5 -Police - Duty of the police authorities.
Constitution of India, 1950 - Articles 32 and 226 - Writ
proceedings seeking enforcement or protection of
C fundamental rights - Grant of 'compensation' in such
proceedings - Nature of - Held: When the court moulds the
relief by granting 'compensation' in proceedings under Article
32 or 226 seeking enforcement or protection of fundamental .
rights, it does so under the public law by way of penalizing the
D wrongdoer and fixing the liability for the ..public wrong on the
State which has failed in its public duty to protect the
fundamental rights of the citizen - The payment of
compensation in such cases is not to be understood, as it is
generally understood in a civil action for damages under the
E private law but in the broader sense of providing relief by an
order of making 'monetary amends' under the public Jaw for
the wrong done due to breach of public duty, by not protecting
the fundamental rights of the citizen - The compensation is
in the nature of 'exemplary damages' awarded against the
F wrongdoer for the breach of its public Jaw duty and is
independent of the rights available to the aggrieved party to
claim compensation under the private law in an action based
on tort, through a suit instituted in a court of competent
jurisdiction or/and prosecute the offender under the penal law
G - Public Law remedy.
H
Words and Phrases - "harassment" and "torture" -
Meaning of.
The appellant, an Ayurvedic Doctor with a B.A.M.S.
DR. MEHMOOD NAYYAR AZAM v. STATE OF
653
CHATTISGARH
degree, used to raise agitations and spread awareness
A
against exploitation of people belonging to weaker and
marginalized sections of the society which apparently
hurt the vested interests of the local coal mafia, trade
union leaders, police officers and other groups. He was
arrested in respect of the alleged offence under Indian
B
Penal Code, 1860 and the Electricity Act, 2003. There was
a direction by the Magistrate for judicial remand but
thereafter instead of taking him to jail, the next day he was
brought to the police station. In police custody, selfhumiliating words were written on a placard and the c
appellant was asked to hold it and photographs were
taken. The photographs were circulated in general public
and were also filed by one of the respondents in a
revenue proceeding.
The appellant filed writ petition before the High Court D
with a prayer for punishing the erring officials 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 enshrined under
Article 21 of the Constitution. In the writ petition, prayer
E
was also made for awarding him compensation to the
tune of Rs.10 lakhs.
The High Court found that the appellant was
harassed at the hands of police officers and thereby it did
F
tantamount to custodial torture and eventually directed
the appellant to submit a representation to the State
Government for grant of compensation. It is an admitted
position that the State authorities had taken cognizance
of the harassment meted out to the appellant by the
G
erring personnel of the police department and initiated
departmental enquiry against them in which they were
found guilty and punishment had also been awarded to
them.
H
654
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A
Subsequently,
the
appellant
submitted
a
representation but the State Government rejected the
same stating that the appellant had put forth the claim of
compensation on the ground of defamation; and being
a case of defamation, the issue of compensation could
B only be determined by a court of competent jurisdiction,
and the State Government could not take any decision
in this regard.
The question which therefore arose for consideration
in the instant appeal was whether the appellant should
C be asked to initiate a civil action for grant of damages on
the foundation that he was defamed or he should be
granted compensation on the bedrock that he was
harassed in police custody.
D
Allowing the appeal, the Court
HELD:1.1. The reverence of life is insegragably
associated with the dignity of a human being who is
basically divine, not servile. The spark of life gets more
E resplendent when man is treated with dignity sans
humiliation, for every man is expected to lead an
honourable life which is a splendid gift of "creative
intelligence". When a dent is created in the reputation,
humanism is paralysed. Living with dignity has been
enshrined in our Constitutional philosophy and it has its
F ubiquitous presence, and the majesty and sacrosanct
dignity cannot be allowed to be crucified in the name of
some kind of police action. The aforesaid prologue gains
signification since in the case at hand, a doctor,
humiliated in custody, sought public law remedy for grant
G of compensation and the High Court, despite no factual
dispute, has required him to submit a representation to
the State Government for adequate relief pertaining to
grant of compensation after expiry of 19 years with a
further stipulation that if he is aggrieved by it, he can take
H recourse to requisite proceedings available to him under
DR. MEHMOOD NAYYAR AZAM v. STATE OF
655
CHATTISGARH
law. This is not only asking a man to prefer an appeal
A
from Caesar to Caesar's wife but it also compels him like
a cursed Sisyphus to carry the stone to the top of the
mountain wherefrom the stone rolls down and he is
obliged to repeatedly perform that futile exercise. [Paras
2, 3] [662-E-H; 663-A-D]
B
1.2. As a social activist, the appellant ushered in
immense awareness among the down-trodden people
which caused discomfort to the people who had vested
interest in the coal mine area. The powerful coal mafia,
C
trade union leaders, police officers and other persons
who had fiscal interest felt disturbed and threatened him
with dire consequences and pressurized him to refrain
from such activities. Embedded to his committed stance,
the appellant declined to succumb to such pressure and
continued the activities. When the endeavor failed to
D
silence and stifle the agitation that was gaining strength
and momentum, a consorted maladroit effort was made
to rope him in certain criminal offences. [Para 4] [663-FH]
E
2. If the functionaries of the Government become lawbreakers, it is bound to breed contempt for law and
would encourage lawlessness and every man would
have the tendency to become law unto himself thereby
leading to anarchy. No civilized nation can permit that to
F
happen, for a citizen does not shed off his fundamental
right to life, the moment a policeman arrests him. The
right to life of a citizen cannot be put in abeyance on his
arrest. The precious right guaranteed by Article 21 of the
Constitution of India cannot be denied to convicts, G
undertrials, detenus and other prisoners in custody,
except according to the procedure established by law by
placing such reasonable restrictions as are permitted by
law. [Para 22] [672-E-H]
D.K. Basu v. State of WB. AIR 1997 SC 610: (1997) 1
H
656
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A SCC 416 and Joginder Kumar v. State of UP. (1994) 4 SCC
260 - relied on.
3. The term "harassment" in its connotative expanse
includes torment and vexation. The term "torture" also
8 engulfs the concept of torment. The. word "torture" in its
denotative concept includes mental and psychological
harassment. [Para 23] [673-D]
c
P. Ramanatha Aiyar's Law Lexicon, Second Edition -
referred to.
4. When an accused is in custody, his Fundamental
Rights are not abrogated in toto. His dignity cannot be
allowed to be comatosed. The right to life is enshrined
in Article 21 of the Constitution and a fortiorari, it includes
0 the right to live with human dignity and all that goes along
with it. Inhuman treatment has many a facet. It
fundamentally can cover such acts which have been
inflicted with an intention to cause physical suffering or
severe mental pain. It would also include a treatment that
E is inflicted that causes humiliation and compels a person
to act against his will or conscience. A man's reputation
forms a facet of right to life as engrafted under Article 21
of the Constitution. There is no shadow of doubt that any
treatment meted out to an accused while he is in custody
which causes humiliation and mental trauma corrodes
F the concept of human dignity. The majesty of law protects
the dignity of a citizen in a society governed by law. It
cannot be forgotten that the Welfare State is governed by
rule of law which has paramountcy. The Constitution as
the organic law of the land has unfolded itself in manifold
G manner like a living organism in the various decisions of
the court about the rights of a person under Article 21 of
the Constitution of India. When citizenry rights are
sometimes dashed against and pushed back by the
members of City Halls, there has to be a rebound and
H when the rebound takes place, Article 21 of the
DR. MEHMOOD NAYYAR AZAM v. STATE OF
657
CHATTISGARH
Constitution springs up to action as a protector. That is
A
why, an investigator to a crime is required to possess the
qualities of patience and perseverance. It is the
sacrosanct duty of the police authorities to remember that
a citizen while in custody is not denuded of his
fundamental right under Article 21 of the Constitution.
B
The restrictions imposed have the sanction of law by
which his enjoyment of fundamental right is curtailed but
his basic human rights are not crippled so that the police
officers can treat him in an inhuman manner. On the
contrary, they are under obligation to protect his human c
rights and prevent all forms of atrocities. A balance has
to be struck. [Paras 26, 28, 30, 36 and 38] [675-D-G; 676A-B-C; 677-C-E; 678-E-F]
Suni/ Gupta and others v. State of Madhya Pradesh and
others (1990) 3 SCC 119: 1990 (2) SCR 871; Bhim Singh,
D
MLA v. State of J & K (1985) 4 SCC 677; Francis Coralie
Mullin v. Administrator, Union Territory of Delhi and others
(1981) 1 SCC 608: 1981 (2) SCR 516; D.K. Basu v. State of
WB. AIR 1997 SC 610 : (1997) 1 SCC 416; Kharak Singh
v. State of U. P. (1964) 1 SCR 332; Arvinder Singh Bagga v.
E
State of U.P. and others AIR 1995 SC 117: 1994 (4) Suppl.
SCR 310; Smt. Kiran Bedi v. Committee of Inquiry and
another (1989) 1 SCC 494: 1989 (1) SCR 20; Board of
Trustees of the
Port of Bombay
v.
Dilipkumar
Raghavendranath Nadkarni and others (1983) 1 SCC 124:
F
1983 (1) SCR 828; Smt. Se/vi and others v. State of
Karnataka AIR 2010 SC 1974: 2010 (5) SCR 381;
Vishwanath Slo Sitaram Agrawal v. Sau. Sar/a Vishwanath
Agrawal 2012 (6) SCALE 190; Nandini Sathpaty v. P. L. Dani
AIR (1978) SC 1025: 1978 (3) SCR 608 and Delhi Judicial G
Services Association v. State of Gujarat (1991) 4 SCC 406:
1991 (3) SCR 936 - relied on.
Munn v. Illinois (1877) 94 US 113 and D. F. Marion v.
Davis 55 ALR 171 - referred to.
_ H
658
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A
5.1. In the case at hand, the appellant, while in
custody, was compelled to hold a placard in which
condemning
language
was
written.
He
was
photographed with the said placard and the photograph
was made public. It was also filed in a revenue proceeding
B by the 5th respondent. The High Court recorded that the
competent authority of the State has conducted an
enquiry and found the erring officers to be guilty. The
High Court recorded the findings in the favour of the
appellant but left him to submit a representation to the
c concerned authorities. This Court granted an opportunity
to the State to deal with the matter in an appropriate
manner but it rejected the representation. This Court is
really concerned how in a country governed by rule of
law and where Article 21 of the Constitution is treated to
0 be sacred, the dignity and social reputation of a citizen
has been affected. [Para 39] [679-D-G]
5.2. As perceived from the admitted facts borne out
on record, the appellant has been humiliated. Such
treatment is basically inhuman and causes mental
E trauma. Any psychological torture inflicts immense
mental pain. A mental suffering at any age in life can carry
the brunt and may have nightmarish effect on the victim.
The hurt develops a sense of insecurity, helplessness
and his self-respect gets gradually atrophied. In the case
F at hand, the police authorities possibly have some kind
of sadistic pleasure or to "please someone" meted out
the appellant with this kind of treatment. It is not to be
forgotten that when dignity is lost, the breath of life gets
into oblivion. In a society governed by rule of law where
G humanity has to be a laser beam, as our compassionate
constitution has so emphasized, the police authorities
cannot show the power or prowess to vivisect and
dismember the same. When they pave such path, law
cannot become a silent spectator. [Para 40] [679-H; 680H A-E]
DR. MEHMOOD NAYYAR AZAM v. STATE OF
659
CHATTISGARH
Jennison v. Baker (1972) 1 All ER 997 1006 - referred
A
to.
"Kaplan & Sadock's Synopsis of Psychiatry" - referred
to.
6.1. It is clear that the appellant was tortured while he
was in custody. When there is contravention of human
rights, the inherent concern as envisaged in Article 21
springs to life and enables the citizen to seek relief by
taking recourse to public law remedy. [Para 41] [680-GH]
B
c
6.2. The purpose of public law is not only to civilize
public power but also to assure the citizen that they live
under a legal system which aims to protect their interests
and preserve their rights. Therefore, when the court D
moulds the relief by granting 'compensation' in
proceedings ul!der Article 32 or 226 seeking enforcement
or protection of fundamental rights, it does so under the
public law by way of penalizing the wrongdoer and fixing
the liability for the public wrong on the State which has
failed in its public duty to protect the fundamental rights
of the citizen. The payment of compensation in such
cases is not to be understood, as it is generally
understood in a civil action for damages under the private
law but in the broader sense of providing relief by an
order of making 'monetary amends' under the public law
E
F
for the wrong done due to breach of public duty, by not
protecting the fundamental rights of the citizen. The
compensation is in the nature of 'exemplary damages'
awarded against the wrongdoer for the breach of its
public law duty and is independent of the rights available
G
to the aggrieved party to claim compensation under the
private law in an action based on tort, through a suit
instituted in a court of competent jurisdiction or/and
prosecute the offender under the penal law. [Para 43]
[681-G-H; 682-A-D]
H
660
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A
6.3. On a reflection of the facts of the case, it is
luculent that the appellant had undergone mental torture
at the hands of insensible police officials. He might have
agitated to ameliorate the cause of the poor and the
downtrodden, but, the social humiliation that has been
B meted out to him is quite capable of destroying the heart
of his philosophy. It has been said that philosophy has
the power to sustain a man's courage. But courage is
based on self-respect and when self-respect is dented,
it is difficult even for a very strong minded person to
c maintain that courage. The initial invincible mind paves
the path of corrosion. As is perceptible, the mindset of
the protectors of law appears to cause torment and insult
and tyrannize the man who is helpless in custody. There
can be no trace of doubt that he is bound to develop
0 stress disorder and anxiety which destroy the brightness
and strength of the will power. It has been said that
anxiety and stress are slow poisons. When torment is
added, it creates commotion in the mind and the slow
poisons get activated. The inhuman treatment can be well
visualized when the appellant came out from custody and
E witnessed his photograph being circulated with the selfcondemning words written on it. This withers away the
very essence of life as enshrined under Article 21 of the
Constitution. Regard being had to the various aspects
and taking note of the totality of facts and circumstances,
F a sum of Rs.5.00 lacs (Rupees five lacs only) should be
granted towards compensation to the appellant and,
accordingly, it is so directed. The said amount shall be
paid by the respondent State within a period of six weeks
and be realized from the erring officers in equal
G proportions from their salary as thought appropriate by
the competent authority of the State. [Para 46] [684-C-H;
685-A]
Nilabati Behera v. State or Orissa (1993) 2 SCC 746:
H 1993 (2) SCR 581; Sube Singh v. State of Haryana AIR 2006
DR. MEHMOOD NAYYAR AZAM v. STATE OF
661
CHATTISGARH
SC 1117: 2006 (2) SCR 67 and Hardeep Singh v. State of A
Madhya Pradesh (2012) 1 SCC 748 - relied on.
Case Law Reference:
(1997) 1 sec 416
relied on
Para 19, 21,
26, 38
B
(1994) 4 sec 260
relied on
Para 21, 22
1990 (2) SCR 871
relied on
Para 24
(1985) 4 sec 677
relied on
Para 25
c
1981 (2) SCR 516
relied on
Para 26
(1964) 1 SCR 332
relied on
Para 27
(1877) 94 us 113
referred to
Para 27
D
1994 (4) Suppl. SCR 310relied on
Para 29
1989 (1) SCR 20
relied on
Para 31
55 ALR 171
referred to
Para 31
1983 (1) SCR 828
relied on
Para 32
E
2010 (5) SCR 381
relied on
Para 33
2012 (6) SCALE 190
relied on
Para 34
1978 (3) SCR 608
relied on
Para 36
F
1991 (3) SCR 936
relied on
Para 37
1972 1 All ER 997 1006 referred to
Para 40
1993 (2) SCR 581
relied on
Para 42
G
2006 (2) SCR 67
relied on
Para 44
(2012) 1 sec 748
relied on
Para 45
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5703 of 2012.
H
662
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A
From the Judgment & Order dated 3.8.2010 of the High
Court of Chhattisgarh at Bilaspur in W.P. No. 1156 of 2001.
Niraj Sharma for the Appellant.
Dr. Rajesh Pandey, Mahesh Pandey, Mridula Ray
B
Bharadwaj, Atul Jha, Sandeep Jha, Dharmendra Kumar Sinha,
Arvind Kumar, Jogy Scaria for the Respondents.
c
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted.
2. Albert Schweitzer, highlighting on Glory of Life,
pronounced with conviction and humility, "the reverence of life
offers me my fundamental principle on morality". The aforesaid
expression may appear to be an individualistic expression of
D a great personality, but, when it is understood in the complete
sense, it really denotes, in its conceptual essentiality, and
connotes, in its macrocosm, the fundamental perception of a
thinker about the respect that life commands. The reverence
of life is insegragably associated with the dignity of a human
E
being who is basically divine, not servile. A human personality
is endowed with potential infinity and it blossoms when dignity
is sustained. The su~tenance of such dignity has to be the
superlative concern of every sensitive soul. The essence of
dignity can never be treated as a momentary spark of light or,
F
for that matter, 'a brief candle', or 'a hollow bubble'. The spark
of life gets more resplendent when man is treated with dignity
sans humiliation, for every man is expected to lead an
honourable life which is a splendid gift of "creative intelligence".
When a dent is created in the reputation, humanism is
G
paralysed. There are some megalomaniac officers who
conceive the perverse notion that they are the 'Law' forgetting
that law is the science of what is good and just and, in very
nature of things, protective of a civilized society. Reverence for
the nobility of a human being has to be the corner stone of a
H
body polity that believes in orderly progress. But, some, the
DR. MEHMOOD NAYYAR AZAM v. STATE OF
663
CHATTISGARH [DIPAK MISRA, J.)
incurable ones, become totally oblivious of the fact that living
A
with dignity has been enshrined in our Constitutional philosophy
and it has its ubiquitous presence, and the majesty and
sacrosanctity dignity cannot be allowed to be crucified in the
name of some kind of police action.
3. The aforesaid prologue gains signification since in the
case at hand, a doctor, humiliated in custody, sought public law
remedy for grant of compensation and the High Court, despite
no factual dispute, has reeiuired him to submit a representation
B
to the State Government for adequate relief pertaining to grant C
of compensation after expiry of 19 years with a further
stipulation that if he is aggrieved by it, he can take recourse to
requisite proceedings available to him under law. We are
pained to say that this is not only asking a man to prefer an
appeal from Caesar to Caesar's wife but it also compels him
like a cursed Sisyphus to carry the stone to the top of the D
mountain wherefrom the stone rolls down and he is obliged to
repeatedly perform that futile exercise.
4. The factual matrix as uncurtained is that the appellant,
an Ayurvedic Doctor with B.A.M.S. degree, while practising in
E_
West Chirmiri Colliery, Pondi area in the State of Chhattisgarh,
used to raise agitations and spread awareness against
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
F
caused discomfort to the people who had vested interest in the
coal mine area. The powerful coal mafia, trade union leaders,
police officers and other persons who had fiscal interest felt
disturbed and threatened him with dire consequences and
pressurized him to refrain from such activities. Embedded to G
his committed stance, the petitioner declined to succumb to
such pressure and continued the activities. When the endeavor
failed to silence and stifle the agitation that was gaining
strength and momentum, a consorted maladroit effort was
made to rope him in certain criminal offences.
H
664
SUPREME COURT REPORTS
(2012] 8 S.C.R.
A
5. 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
B
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.
c
6. Though he was produced before the Magistrate on
22.9.1992 for judicial remand and was required to be taken to
Baikunthpur Jail, yet by the time the order was passed, as. it
was evening, he was kept in the lock up at Manendragarh
Police Station. On 24.9.1992, he was required to be taken to
D jail but instead of being taken to the jail, he was taken to Pondi .
Police Station at 9.00 a.m. At the police station, he was abused
and assaulted. As asseverated, the physical assault was the
beginning of ill-treatment. Thereafter, the SHO and ASI, the
respondent Nos. 3 and 4, took his photograph compelling him
E
to hold a placard on which it was written :-
F
"Main Dr. M.N. Azam Chhal Kapti Evam Chor Badmash
Hoon". (I, Dr. M. N. Azam, am a cheat, fraud, thief and
rascal).
7. Subsequently, the said photograph was circulated in
general public and even in the revenue proceeding, the
respondent No. 5 produced the same. The said atrocities and
the torture of the police caused tremendous mental agony and
humiliation and, hence, the petitioner submitted a complaint to
G the National Human Rights Commission who, in turn, asked the
Superintendant of Police, District Koria to submit a report. As
there was no response from the 2nd respondent the
Commission again required him to look into the grievances
and take proper action. When no action was taken by the
H
DR. MEHMOOD NAYYAR AZAM v. STATE OF
665
CHATIISGARH [DIPAK MISRA, J.]
respondent or the police, the petitioner was compelled to
A
invoke the extraordinary jurisdiction of the High Court of
Judicature at Bilaspur, Chattisgarh 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
B
enshrined under Article 21 of the Constitution. In the Writ
Petition, prayer was made for awarding compensation to the
tune of Rs. 10 lakhs.
8. After the return was filed, the learned single Judge
passed a detailed order on 3.1.2003 that the Chief Secretary . C
and the Director General of Police should take appropriate
steps for issue of direction to the concerned authorities to take
appropriate action in respect of the erring officers. Thereafter,
some developments took place and on 24.3.2005, the Court
recorded that the writ petitioner was arrested on 22.9.1992 and
D
his photograph was taken at the police station. The learned
single Judge referred to Rule 1 of Regulation 92 of Chhattisgarh
Police Regulations which lays down that no Magistrate shall
order photograph of a convict or other person to be taken by
the police for the purpose of Identification under Prisoners Act,
E
1920, unless he is satisfied that such photograph is required
for circulation to different places or for showing it for the purpose
of identification to a witness who cannot easily be brought to a
test identification at the place where the investigation is
conducted or that photograph is required to be preserved as
F
a permanent record. Thereafter, the learned single Judge
proceeded to record that not only the photograph of the writ
petitioner had been taken with the placard but had also been
circulated which had caused great mental agony and trauma
to his school going children. Thereafter, he referred to
G
Regulation 737 of the Chhattisgarh Police Regulations which
relates to action to be taken by the superior officer in respect
of an erring officer who ill-treats an accused.
9. After referring to various provisions, the learned single
H
666
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A Judge called for a report from the Chief Secretary. 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 grant of bogus medical
B certificate and regard being had to the directions issued in
1992 that the photograph of the offender should be kept on
record, the same was taken and affixed against his name and
after 7.9.1992, it was removed from the records. It was also
stated that the Sub-Inspector had been imposed punishment
c 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 erring officers and a departmental enquiry was held
and in the ultimate eventuate, they had been imposed major
penalty of withholding of one annual increment with cumulative
0 effect for one year commencing 27.5.2004. That apart, on
19.7.2005, a case had been registered under Section 29 of
the Police Act against the erring officers.
10. It is apt to note here that when the matter was listed
for final hearing for grant of compensation, the learned single
E Judge referred the matter to be heard by a Division Bench.
11. The Division Bench referred to the prayer clause and
various orders passed by the learned single Judge and
eventually directed the appellant to submit a representation to
F the Chief Secretary for grant of compensation. We think it
appropriate to reproduce the relevant paragraphs of the order
passed by the Division Bench: -
G
H
"4. Learned counsel for the petitioner submits that during
the pendency of the writ petition, Relief Clause No. 7.3 was
fulfilled under the directions of this court and now only the
compensation part, as claimed in Relief Clause No. 7.5A,
remained there.
5.
In the instant case, it is an admitted position that the
respondent State authorities have taken cognizance of the
DR. MEHMOOD NAYYAR AZAM v. STATE OF
667
CHATTISGARH [DIPAK MISRA, J.]
harassment meted out to the petitioner by the erring
A
personnel of the police department and initiated
departmental enquiry against them in which they were
found guilty and punishment has also been awarded to
them."
12. After issuing notice, this Court, on 17.2.2012, thought
it apposite that the appellant should submit a representation
within a week which shall be considered by the respondents
within four weeks therefrom ..
B
13. In pursuance of the aforesaid order, the appellant
C
submitted a representation which has been rejected on
19.3.2012 by the OSD/Secretary, Government of Chhattisgarh,
Home (Police) Department. In the rejection order, it has been
stated as follows: -
"In the aforesaid cases, the arrest and the action
regarding submission of chargesheet in the Hon'ble Court
was in accordance with law.
D
(2) On 24.9.92 the police officers taking your photograph
and writing objectionable words thereon was against the
E
legal procedure. Considering this, action was taken
against the concerned guilty police officers in accordance
with law and two police officers were punished.
(3) In your representation, compensation has been
F
demanded on the following two grounds:
A. Defamation was caused due to the police officers
taking photograph.
B. Your wife became unwell mentally. She is still unwell.
G
C. Difficulty in marriage of daughter.
Regarding the aforesaid grounds, the actual position
is as follows:
H
668
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A
A.
Defamation is such a subject, the decision on which
is within jurisdiction of the competent court. No
decision pertaining to defamation has been
received from the court of competent jurisdiction.
Therefore, it would not be proper for the State
B
Government to take a decision in this regard.
B.
Regarding mental ailment of your wife, no such
basis has been submitted by you, on the basis of
which any conclusion may be drawn.
C
C.
On the point of there being no marriage of children
also no such document or evidence has been
produced by you before the Government along with
the representation, on the basis of which any
D
decision may be taken.
Therefore, in the light of the above, the State
Government hereby rejects your representation and
accordingly decides your representation."
14. Mr. Niraj Sharma, learned counsel appearing for the
E appellant, submitted that when the conclusion has been arrived
at that the appellant was harassed at the hands of the police
officers and in the departmental enquiry they have been found
guilty and punished, just compensation should have been
awarded by the High Court. It is further urged by him that this
F Court had directed to submit a representation to grant an
opportunity to the functionaries of the State to have a proper
perceptual shift and determine the amount of compensation
and grant the same, but the attitude of indifference reigned
supreme and no fruitful result ensued. It is canvassed by him
G that it would not only reflect the non-concern for a citizen who
has been humiliated at the police station, but, the manner in
which the representation has been rejected clearly exhibits the
imprudent perception and heart of stone of the State. It is
argued that the reasons ascribed by the State authority that
H defamation is such a subject that the issue of compensation
DR. MEHMOOD NAYYAR AZAM v. STATE OF
669
CHATTISGARH [DIPAK MISRA, J.)
has to be decided by the competent court and in the absence
A
of such a decision, the Government cannot take a decision as
regards the compensation clearly reflects the deliberate
insensitive approach to the entire fact situation inasmuch as the
High Court, in categorical terms, had found that the allegati9ns
were true and the appellant was harassed and thereby it did
tantamount to custodial torture and there was no justificatinn to
adopt a hyper-technical mode to treat it as a case of defamation
B
in the ordinary sense of the term and requiring the appellant to
take recourse to further adjudicatory process and obtain a
decree from the civil court.
15. Mr. Atul Jha, learned counsel appearing for the State,
has supported the order of the High Court as well as the order
passed by the competent authority of the State who has rejected
c
the representation on the foundation that when the appellant puts
forth a claim for compensation on the ground of defamation,
D
he has to take recourse to the civil court and, therefore, no fault
can be found with the decision taken either by the High Court
or the subsequent rejection of the representation by the
a_uthority of the State.
16. The learned counsel appearing for the private
respondents has submitted that they have already been
punished in a disciplinary proceeding and, therefore, the
question of grant of compensation does not arise and even if
it emerges, the same has to be determined by the civil court
on the base of evidence adduced to establish defamation.
E
F
17. At the very outset, we are obliged to state that five
aspects are clear as day and do not remotely admit of any
doubt. First, the appellant was arrested in respect of the alleged
offence under Indian Penal Code, 1860 and the Electricity Act,
G
2003; second, there was a direction by the Magistrate for
judicial remand and thereafter instead of taking him to jail the
next day he was brought to the police station; third, selfhumiliating words were written on th.e placard and he was
asked to hold it and photographs were taken; and fourth, the
H
670
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A photographs were circulated in general public and were also
filed by one of the respondents in a revenue proceeding; and
five, the High Court, in categorical terms, has found that the
appellant was harassed.
18. In the aforesaid backdrop, the singular question
8
required to be posed is that whether the appellant should be
asked to initiate a civil action for grant of damages on the
foundation that he has been defamed or this Court should grant
compensation on the bedrock that he has been harassed in
police custody.
c
D
E
19. At this juncture, it is condign to refer to certain
authorities in the field. In D.K. Basu v. State of WB. 1 it has been
held thus: -
"10. "Torture" has not been defined in the Constitution or
in other penal laws. "Torture" of a human being by another
human being is essentially an instrument to impose the will
of the "strong" over the "weak" by suffering. The word
torture today has become synonymous with the darker side
of human civilization.
"Torture is a wound in the soul so painful that
sometimes you can almost touch it, but it is also so
intangible that there is no way to heal it. Torture is anguish
squeezing in your chest, cold as ice and heavy as a stone,
F
paralyzing as sleep and dark as the abyss. Torture is
despair and fear and rage and hate. It is a desire to kill
- _ and destroy including yourself."
-Adriana P. Bartow
G
11. No violation of any one of the human rights has been
the subject of so many Conventions and Declarations as
"torture" - all aiming at total banning of it in all forms, but
in spite of the commitments made to eliminate torture, the
H
1.
AIR 1997 SC 610 : (1997) 1 sec 416
DR. MEHMOOD NAYYAR AZAM v. STATE OF
671
CHATTISGARH [DIPAK MISRA, J.]
fact remains that torture is more widespread now than ever A
before. "Custodial torture" is a naked violation of human
dignity and degradation which destroys, to a very large
extent, the individual personality. It is a calculated assault
on human dignity and whenever human dignity is wounded,
civilization takes a step backward - flag of humanity must B
on each such occasion fly half-mast.
12. In all custodial crimes what is of real concern is not only
infliction of body pain but the mental agony which a person
undergoes within the four walls of police station or lockC
up. Whether it is physical assault or rape in police custody,
the extent of trauma, a person experiences is beyond the
purview of law."
20. We have referred to the aforesaid paragraphs to
highlight that this Court has emphasized on the concept of D
mental agony when a person is confined within the four walls
of police sta'tion or lock-up. Mental agony stands in
contradistinction to infliction of physical pain. In the said case,
the two-Judge Bench referred to Article 5 of the Universal
Declaration of Human Rights, 1948 which provides that "No one
E
shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment". Thereafter, the Bench adverted to
Article 21 and proceeded to state that the expression "life or
personal liberty" has been held to include the right to live with
human dignity and thus, it would also include within itself a
F
guarantee against torture and assault by the State or its
functionarie.s. Reference was made to Article 20(3) of the
Constitution which postulates that a person accused of an
offence shall not be compelled to be a witness against himself.
21. It is worthy to note that in the case of O.K. Basu (supra),
G
the concern shown by this Court in Joginder Kumar v. State of
U.P2. was taken note of. In Joginder Kumar's case, this Court
voiced its concern regarding complaints of violation of human
2.
(1994) 4 sec 2so.
H
672
SUPREME COURT REPORTS
(2012] 8 S.C.R.
A
rights during and after arrest. It is apt to quote a passage from
the same: -
B
c
D
"The horizon of human rights is expanding. At the
same time, the crime rate is also increasing. Of late, this
Court has been receiving complaints about violations of
human rights because of indiscriminate arrests.