BHOLA KUMHAR versus STATE OF CHHATTISGARH

[2022] 7 S.C.R.

BHOLA KUMHAR

STATE OF CHHATTISGARH

(Criminal Appeal No. 937 of 2022)

BMAY 09, 2022

[AJAY RASTOGI AND C. T. RAVIKUMAR, JJ.]

Constitution of India – Art. 19(1)(d), 21 – Illegal detention –Accused kept in prison beyond the Period of Imprisonment – Theappellant was convicted for the offence punishable u/s. 376 of IPCCand Sections 3(ii)(v) and 3(1)(xii) of the Scheduled Castes andScheduled Tribes (Prevention of Atrocities) Act, 1989 – He wassentenced to undergo rigorous imprisonment for period of 12years and to pay fine of Rs.10,000/- and in default, to undergoimprisonment for one more year – High Court in appeal, confirmedDthe conviction but reduced his sentence of 12 years rigorousimprisonment to 7 years imprisonment – Further, it was ordered tocompensate the victim by paying Rs.15,000/- within period of sixmonths – The appellant has undergone rigorous imprisonment for10 years 03 months and 16 days with remission – The appellantwas detained in custody exceeding the period of imprisonment inEterms of the judgment of the High Court – Appellant approachedSupreme Court, seeking compensation for being kept in prisonbeyond the period of sentence – Held: There is no justification fornot complying with the judgment of the High Court reducing thesentence of the appellant – Violation of not only Art. 19(1)(d) butFalso Art. 21 of the Constitution of India – Appellant entitled to becompensated in terms of money – Compensation to the tune of Rs.7.5Lakhs to be paid by the State holding that it is vicariously liable forthe act/omission committed by its officers – Code of CriminalProcedure, 1973 – ss. 386, 357 – Madhya Pradesh Jail Manual,1968 - Rule 2(g) – Madhya Pradesh Prison Rules, 1968 - Rule 715.G

Disposing of the appeal, the Court

HELD: This Court is not oblivious of the fact that theappellant herein was held guilty in grave offence. But then,when competent court, upon conviction, sentenced an accusedHand in appeal, the sentence was modified upon confirmation of

the conviction and then the appellate judgment had become final,the convict can be detained only up to the period to which he canbe legally detained on the basis of the said appellate judgment.When such convict is detained beyond the actual release dateit would be imprisonment or detention sans sanction of law andwould thus, violate not only Article 19(d) but also Article 21 ofthe Constitution of India. This is what was suffered by the appellantfor very long period. Considering the fact that the appellant is ayouth, this long and illegal imprisonment beyond the period ofsentence, taking into account the long and illegal deprivation ofthe right to move freely and thereby, the violation of right underArticle 19 (d) of the Constitution of India, the violation of right tolife and personal liberty under Article 21 of the Constitution ofIndia and the mental agony and pain caused due to such extra,illegal detention, this Court of the view that the appellant isentitled to be compensated in terms of money. [Para 17][1188-C-F]

Rudul Sah vs. State of Bihar & Anr. (1983) 4 SCC 141: [1983] 3 SCR 508; Ambica Quarry Works Vs. State ofGujarat AIR 1987 SC 1073 : [1987] 1 SCR 562; A.R.Antulay V. R.S. Nayak (1988) 2 SCC 602 : [1988] 1

Suppl. SCR 1 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.937 of 2022.

From the Judgment and Order dated 11.07.2018/19.07.2018 ofthe High Court of Chhattisgarh at Bilaspur in Criminal Appeal No.110 of2015.

A. Sirajudeen, Sr. Adv., Tilak Raj Pasi, Parnam Prabhakar, E.Keerthi, H. Rajasekar, Satyapal Khushal Chand Pasi, Advs. for theAppellant.

Sourav Roy, Dy. A.G., Mahesh Kumar, Prabudh Singh, KaushalSharma, Srinivasa Kumar Bogisam, Ms. Devika Khanna, Mrs. V.D.Khanna, VMZ Chambers, Advs. for the Respondent.

1178SUPREME COURT REPORTS

AThe Judgment of the Court was delivered by

C. T. RAVIKUMAR, J.

This Special Leave Petition is filed assailing the judgment andorder dated 19.7.2018 of the High Court of Chhattisgarh at Bilaspur inCriminal Appeal No. 110/2015 whereby and whereunder the convictionBof the petitioner under Section 376 of the Indian Penal Code (for short‘IPC’) was confirmed, but the sentence therefor, was reduced from 12years to 7 years of rigorous imprisonment. Notice was issued on04.03.2022. However, the said order and the subsequent order dated21.03.2022 would reveal that it was, in troth, limited one.

CLeave Granted, accordingly.

short prelude may be profitable for proper consideration ofthe limited question (which we intend to go into) viz., whether the appellantis entitled to compensation for being kept in prison beyond the period ofsentence and thereby sustained deprival of personal liberty.D1. While parting with the decision in Rudul Sah’s case[1], thisCourt made fervent hope -

“This order will not preclude the petitioner from bringing asuit to recover appropriate damages from the state and its erringofficials. The order of compensation passed by us is, as we saidEabove, in the nature of palliative. We cannot leave the petitionerpenniless until the end of his suit, the many appeals and theexecution proceedings. full-dressed debate on the nice pointsof fact and law which takes place leisurely in compensation suitswill have to await the filing of such suit by the poor Rudul Sah.The Leviathan will have liberty to raise those points in that suit.FUntil then, we hope, there will be no more Rudul Sahs in Bihar orelsewhere.”

(Emphasis added)

That was case where Rudul Sah, despite being acquitted by theCourt of Sessions, Muzaffarpur, Bihar, on 03.06.1968 was released fromGthe jail only on 16.10.1982, idest, more than 14 years since his acquittal.A Habeas Corpus petition was then filed before this Court seeking hisrelease on the ground that his detention in the jail is unlawful. Ancillaryreliefs were also sought for. When the said writ petition was taken up on

H1 Rudul Sah vs. State of Bihar & Anr. (1983) 4 SCC 141

22.11.1982, the learned counsel for the State of Bihar informed this Courtthat the appellant was released from the jail. Though the prayer forrelease from the jail had become infructuous, this Court went ontoconsider the writ petition in regard to the other reliefs sought for andheld that his detention after his acquittal was wholly unjustified. Thereupon,this Court held: “Therefore, the State must repair the damage done byits officers to the petitioner’s rights. It may have recourse against thoseofficers.” It is thereafter that the said writ petition was disposed of inthe aforesaid manner and with the fervent hope extracted above.2. True that the appellant cannot be said to be another Rudul Sahinasmuch as his case never ended in his acquittal, but only in confirmationof conviction with reduction in period of imprisonment. Nonetheless, hiscase, to be unravelled hereinbelow, would reveal continuance ofcontumacious act on the part of State Government (of course, itsofficials) in keeping convict in incarceration beyond the period ofsentence of imprisonment, unmindful of the final verdict of the Court.Such an act is injudicious and indefensible when his/her continuedconfinement is uncalled for in connection with any other case. This kindof levity cannot be viewed with laxity and it is time to consider it on thelegit. Freedom of movement can be curtailed or taken away byimprisonment or detention ordained after due process of law and inaccordance with law. Imprisonment or detention sans sanction of lawwould violate Article 19(d) as well as the right under Article 21, of theConstitution of India.

3. In the case on hand the appellant Bhola Kumhar was made tostand the trial for the offence punishable under Section 376 of the IndianPenal Code (for short, “IPC”) and Sections 3(ii)(v) and 3(1)(xii) of theScheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989. He was convicted and sentenced to undergo rigorous imprisonmentfor period of 12 years and to pay fine of Rs.10,000/- for the convictionfor offence punishable under Section 376 IPC. He took up the matter inappeal and in Criminal Appeal No.110/2015 the High Court ofChhattisgarh at Bilaspur confirmed the conviction, but reduced hissentence of 12 years rigorous imprisonment to 7 years imprisonment.Further, it was ordered to compensate the victim in terms of the provisionsunder Section 357 of the Code of Criminal Procedure, 1973, by payingRs.15,000/- within period of six months. The sentence to pay fine ofRs.10,000/- and in default, to undergo imprisonment for one more yearwas ordered to remain as it is. The orders dated 4.3.2022 and 21.3.2022

Apassed in the SLP are reflective on the disinclination to interfere withthe conviction and the sentence imposed therefor, but indicative ofinclination to make probe on the question as to why the appellant wasdetained in custody exceeding the period of judicial custody in terms ofthe judgment of the High Court dated 19.07.2018.

B4. When the matter came up for consideration on 04.03.2022, thisCourt condoned the delay in filing the Special Leave Petition and tooknote of the submission made by the learned senior counsel appearing forthe appellant (in fact, Amicus Curiae) that despite suffering the fullsentence in terms of the judgment impugned, the appellant was notreleased. This Court passed the following order:-C

“Learned senior counsel for the petitioner submits that the petitionerwas convicted for offence punishable under Section 376 IPC andsentence for 7 years R.I. by the High Court under the impugnedjudgment dated 19.07.2018 and despite the petitioner hasundergone the full sentence in terms of the judgment impugned,Dstill he has not been released and it appears that the SuperintendentCentral Jail, Ambikapur, Surguja (C.G.) has not updated their jailrecords as it reveals from the certificate placed on record.

Issue notice, returnable on 14.03.2022.

ECopy of the petition be served additionally to the Standing Counselfor the State of Chhattisgarh.”

5. On 21.03.2022 this Court passed the following order:-

“The records indicate that the petitioner had undergone 10 years03 months and 16 days of custody as revealed from the custodyFcertificate dated 09th November, 2021 and the High Court whileupholding conviction, reduced the sentence to 07 years rigorousimprisonment(RI).

The submission of the counsel for the petitioner was recordedby this Court on 4th March, 2022 that despite the petitioner hasGundergone full sentence of 7 years RI in terms of the judgmentimpugned by the High Court, still he has not been released andafter the notice of the present petition came to be served, theconcerned authorities have released the petitioner on 16th March,2022. This may not be the end of the matter. What is being reflectedto this Court needs further probe.

Let the counsel for the State file an affidavit and tender anexplanation as to why the petitioner was detained in custodyexceeding the period of judicial custody in terms of the judgmentimpugned of the High Court dated 19th July, 2018. At the sametime, the State may also collect the data from all over the Stateand furnish report to this Court of such of the incident of whichreference has been made in the present petition.

Copy of this order may also be sent to the Secretary, StateLegal Services Authority, Chhattisgarh for taking appropriate stepsand compliance report.”

(Emphasis added)

6. In compliance with the said order dated 21.03.2022, an affidavitwas filed by the Superintendent of Central Jail, Ambikapur, purportedlyto explain the reason for detaining the appellant in custody exceedingthe period of judicial custody. We find no reason to accept so-calledjustification and we will explain the raison d’etre for our disinclinationand also for our inclination to grant compensation.

7. The order dated 21.03.2022 itself would reveal that on behalfof the appellant it was contended that he was made to undergo rigorousimprisonment for 10 years 03 months and 16 days with remission. Now,in resistance the respondent would contend that the total sentenceundergone by the appellant (excluding the remission period) was only 8years 01 month and 29 days. It is stated in the affidavit that since theappellant had failed to pay the compensation of Rs.15,000/- to the victim,as directed under the impugned judgment, he was to undergoimprisonment by one year over and above the period of 7 years.

8. The counsel for the appellant, in the afore-stated circumstancescontended that the appellant was detained illegally beyond the legallypermissible period of imprisonment. To be precise, the contention is thatthe appellant had suffered imprisonment for period of 10 years 03months and 16 days with remission, as is revealed from the custodycertificate dated 09.11.2021. In this context it is relevant to refer to thecertificate of custody in detail issued by the very deponent, viz., theSuperintendent of Central Jail, Ambikapur. The entries therein againstserial numbers 7 to 12 are relevant for the purpose of the case and theyread thus:-

1182SUPREME COURT REPORTS

[2022] 7 S.C.R.

A“7]Sentence- 12 years

8] Court’s Name- Hon’ble Special Judge, (ScheduledCaste and Scheduled Tribe PreventionOf Atrocities Act), Jashpur (C.G.)

B9] Under trial period- Year- 00, Month- 10, Day- 1010] Conviction period- Year- 06, Month- 11, Day- 1011] Jail Remission- Year- 02, Month- 05, Day- 2612] Total Conviction- Year- 10, Month- 03, Day- 16Cperiod as on

09-11-2021"

9. The above extract would reveal that the total conviction periodas on 09.11.2021 was 10 years 03 months and 16 days. It would alsoreveal that the appellant is entitled to remission and further that 02 yearsD05 months and 26 days was the jail remission period as on that date.Bearing in mind afore aspects, the statements made in paragraphs 16and 17 of the affidavit have to be looked into. They read thus:-

“16. That the Hon’ble High Court vide the Impugned Order hadreduced the sentence of the Petitioner to seven (7) years rigorousEimprisonment and fine of Rs.10,000/- (Rupees Ten ThousandOnly) or to undergo one (1) year imprisonment in default of thesame and to pay Rs.15,000/- (Rupees Fifteen Thousand Only) ascompensation to the victim to undergo one (1) year imprisonmentin default. It is submitted that the actual sentence undergone byFthe Petitioner (excluding the remission period) is as under:

a.Under trial period : 10 months and 10 days

b.Conviction period (from 29[th] November 2014 to 16[th]March 2022) : 7 years 3 months and 19 days.

17. That therefore the total sentence undergone by the PetitionerG(excluding the remission period) is 8 years 1 month and 29 days.It is submitted that the Petitioner had not paid the compensationof Rs. 15,000/- to the victim as directed by the Hon’ble HighCourt therefore he had to further undergo an imprisonment ofone (1) year, over and above the period of seven (7) years held byHthe Hon’ble High Court.”

10. Going by afore-extracted statements in the affidavit filed bythe respondent in compliance with the order dated 21.03.2022 excludingthe remission period the appellant was under actual imprisonment for aperiod of 08 years 01 month and 29 days. It is stated therein that byvirtue of the default on the part of the appellant to pay compensation tothe victim, in terms of the impugned judgment, he was to undergoimprisonment for 01 year more in addition to the term of imprisonmentwhich he had to suffer by virtue of the impugned judgment. The tenor ofthe affidavit revealed from the aforesaid paragraphs would go to showthe stand of the respondent that over and above the period of 7 years theappellant was to undergo an additional one year of imprisonment onaccount of his default in payment of the amount of fine. It is in theaforesaid manner that the respondent is attempting to justify the detentionof the appellant beyond the period of imprisonment awarded by the HighCourt in substitution of the sentence imposed by the Sessions Court. Wewill deal with this issue further.

11. For proper consideration of this issue it is apposite to refer tothe following aspects:-

As per Adaptation of Laws Order, 2001 issued as per NotificationNo. F-2/13/Jail/2001 dated the 14[th] June, 2001, in exercise of the powersconferred under Section 79 of the Madhya Pradesh Reorganisation Act,2000 (28 of 2000) the State Government passed an order called“Adaptation of Laws Order, 2001”, which came into force in the wholeState of Chhattisgarh on the 1[st] day of November, 2000. The schedulethereunder would reveal that the Madhya Pradesh Jail Manual, 1968was adopted by the State of Chhattisgarh. It is still in force. Rule 1 ofPart-I of Madhya Pradesh Jail Manual, 1968 reveals the name of theRules as ‘Madhya Pradesh Prison Rules, 1968.’ Rule 2 (g) thereof defines‘sentence’ as hereunder:

“2(g). “Sentence” means sentence as finally fixed on appeal,revision or otherwise, and includes an aggregate of more sentencesthan one and committal to or detention in prison in default offurnishing security to keep the peaceor good behaviour.”

12. Thus, it is evident that in the State of Chhattisgarh, the MadhyaPradesh Prison Rules, 1968 is in force and thereunder the term ‘sentence’takes the meaning sentence as finally fixed on appeal, revision orotherwise and it includes an aggregate of more sentences than one and

Acommittal to or detention in prison in default of furnishing security tokeep the peace or good behaviour. As stated hereinbefore, in the instantcase the Court of Special Judge the Scheduled Castes and ScheduledTribes (Prevention of Atrocities) Act, Jashpur, which tried the appellantconvicted him for the offence punishable under Section 376 IPC andsentenced him to undergo rigorous imprisonment for 12 years and to payBa fine of Rs. 10,000/- and in default of its payment to undergo additionalone year rigorous imprisonment. In the appeal, while confirming theconviction, the High Court reduced the sentence to rigorous imprisonmentfor 07 years under Section 376 IPC and retained the order of paymentof fine of Rs.10,000/- as it is. Additionally, it was ordered that the appellantCshould compensate the victim in terms of the provisions of Section 357Cr.P.C. by paying Rs.15,000/-. In the aforesaid circumstances, theindisputable position is that the sentence finally fixed on the appellantwas 7 years of rigorous imprisonment. It is true that he was also tosuffer one more year of imprisonment in default of payment of fine. But,what is disturbing us is the purposeful omission to make any mentionDabout the period of remission to which the appellant was entitled to inthe affidavit dated 24.4.2022. This requires to be taken seriously notsolely due to the applicability of the afore-mentioned Prison Rules but onaccount of certain other aspects as well. Whatever be the actual periodof remission to which the appellant was entitled to, the factum is that hisEentitlement to remission is indisputable in the circumstances mentionedabove. Going by the custody certificate the period of jail remission as on9.11.2021 was 2 years, 5 months and 26 days. It is pertinent to note thatthe deponent of the affidavit dated 24.04.2022 who himself issued theCustody Certificate, did not dispute the entitlement of the appellant forremission. What exactly was the period of imprisonment undergone byFthe appellant with remission was not mentioned at all in the said affidavitthough in the order dated 21.03.2022 this Court recorded that going bythe records the appellant had suffered, 10 years, 3 months and 16 daysof custody as per the Custody Certificate dated 9[th] November, 2021.Add to it, even going by the affidavit dated 24.04.2022 the appellant hadGsuffered imprisonment in excess of what was he was to suffer legally.In paragraph 17 of the said affidavit what is stated :

“That the total sentence undergone by the petitioner (excludingthe remission period) is 8 years 1 month and 29 days.”

(Emphasis added)

13. We will, now, consider another serious aspect. scanning ofthe affidavit dated 24.04.2022 would reveal that the respondent is feigningignorance about the judgment of the High Court dated 19.07.2018.According to the respondent though the High Court had communicatedthe judgment to the District and Sessions Judge, Jashpur on 30.07.2018,the same was not communicated to jail authorities and on beingcommunicated the order dated 4[th] March, 2022 passed by this Court on10[th] March, 2022 immediate action was taken. We have no hesitation tohold that the very statement made in the said affidavit dated 24.04.2022and the documents annexed therewithal would reveal the hollowness ofthe said contentions. How can the respondent feign ignorance about thejudgment of the High Court dated 19.7.2018, reducing the sentenceimposed on the appellant.

14. In Annexure-A1, which is the letter dated 20.01.2020 of theSuperintendent of Central Jail, Ambikapur, to Secretary of the High CourtLegal Service Committee, reference was made as follows:

“Ref : Letter No.F.No.2477 / CGSLSA / CONVICT PRISNOERS/ 2018 / BILASPUR DATE 28-092018 ad letter No. L/24/2018 –Petitioner / dated 27.09.2018 of the petitioner received throughemail.”

Even after making such reference, purposefully or otherwise,the respondent has not chosen to produce those letters along with theaffidavit dated 24.04.2022. Annexure A-1 dated 20.01.2020 producedalong with the affidavit dated 24.04.2022 reads thus:-

OFFICE OF THE JAIL SUPERINTENDENT, CENTRAL

JAIL, AMBIKAPUR, SARGUJA (C.G)

Letter No. – 590/Kalyan/2020, Ambikapur,

Dated: 20.01.2020

The Secretary,

High Court Legal Service Committee,High Court Compound, Bodri, Bilaspur(C.G)

1186SUPREME COURT REPORTS

[2022] 7 S.C.R.

ASub: Filing Special Leave to Appeal (Crl.) of the Convicted PrisonerBhola Kumar, son of Barju Ram Kumhar in the Hon’ble SupremeCourt- reg.

Ref: Letter No. F.No. 2477/CGSLSA/CONVICT PRISONERS/2018/BILASPUR DATE 28-092018 and Letter NO. L/24/2018-BPetitioner/dated 27.09.2018 of the petitioner received throughemail.

Sir,

It is submitted with regard to the above cited subject and referencethat the convicted prisoner Bhola Kumar son of Barju RamCKumhar, resident of Village Tamamunda Farsabahar, PoliceStation Farsabahar, District Jashpur (C.G) being convicted inSessions Trial No. 04/2014 under Section 376 IPC by the Courtof Ld. Special Judge, District Jashpur (C.G) on 29.11.2014 withan award of Life Imprisonment and on dismissal of his CriminalDAppeal No. 110/2015 by the Hon’ble High Court of Chhattisgarhat Bilaspur on 19.07.2018, he is undergoing the sentence in thisjail. The convicted prisoner wants to prefer his Special Leave toAppeal (Crl) in the Hon’ble Supreme Court through the LegalAid.

ETherefore, by forwarding the related documents (01) Vakalatnama,(02) Affidavit for S.L.P., (03) Jail Detention Certificate, (04)Affidavit for Legal Aid, (05) Application for condonation of delay,(06) F.I.R., Copy of the Judgment Passed by the Ld. Trial Courtand copies of other deposition documents, (07) Application forLegal Service, toward you, it is most respectfully submitted thatFby supplying all the rest documents (01) Judgment of the Hon’bleHigh Court (02) Paper Book of the Hon’ble High Court and (03)English Translation, please file the Special Leave to Appeal (Crl)in the Hon’ble Supreme Court.

Sd/- IllegibleJail SuperintendentCentral Jail AmbikapurSarguja ChhattisgarhEndorsement No. 590-A/Welfare/2020, Ambikapur,Date: 20.01.2020

Copy forwarded to the Secretary, District Legal Aid ServiceCommittee, District Sarguja, Ambikapur (C.G.) for respectfulinformation.

Sd/-Illegible

Jail SuperintendentCentral Jail AmbikapurSarguja Chhattisgarh(Emphasis added)

15. After having written such letter on 20.01.2020 and specificallymaking request to the High Court Legal Services Committee to fileSpecial Leave Petition before the Supreme Court against judgment ofdismissal by the High Court of Chhattisgarh in Criminal Appeal No.110/2015 the Superintendent of Central Jail, Ambikapur could not have feignedignorance about the action to be initiated in the absence of furtherinterference with the judgment dated 19.7.2018 in Criminal Appeal No.110of 2015 and at any rate, on the expiry of the permissible period of theimprisonment on the strength of the said judgment. There is no justificationfor not complying with the judgment dated 19.07.2018. If on receipt ofthe order of this Court dated 4[th] March, 2022 action could be takenswiftly, as has been explained in paragraphs 11 to 13 of the affidavitdated 24.4.2022, why such recourse was not done immediately beforeor, at least immediately after the expiry of permissible period ofimprisonment. If he was to get 2 years remission, as stated in the custodycertificate, of course in terms of the relevant Prison Rules on expiry ofthe period of sentence less the period of remission thus earned and theadditional period of imprisonment of one year on account of default inpayment of fine he should have been released much before the actualincarceration period of 8 years, 1 month and 29 days.

16. There is no case for the respondent that it or the victim hadchallenged the judgment of the High Court of Chhattisgarh dated 19/07/2018 successfully. In the said circumstances, it can only be taken thatthe deponent was unscrupulously telling untruth. There was absolutelyno justifiable reason, in the said circumstances, for the lapse in takingappropriate action to comply with the said judgment and to release theappellant on expiry of the legally permissible period of sentence. Thereis absolutely no case for the respondent that the appellant herein wasnot entitled to remission. In the light of the Certificate of Custody issued

Aby the Superintendent of Central Jail, Ambikapur, as also in the light ofthe provisions in the Prison Rules, referred hereinbefore, applicable inthe State of Chhattisgarh the entitlement of the appellant for remission isindisputable and in fact, it is not at all disputed by the respondent. Rule715 of the afore-mentioned Prison Rules, 1968 provides that the totalremission awarded to prisoner under the said rules shall not, withoutBthe special sanction of the State Government, exceed one third of hissentence. In other words, that is the maximum remission normallyawardable.17. We are not oblivious of the fact that the appellant herein washeld guilty in grave offence. But then, when competent court, uponCconviction, sentenced an accused and in appeal, the sentence wasmodified upon confirmation of the conviction and then the appellatejudgment had become final, the convict can be detained only up to theperiod to which he can be legally detained on the basis of the said appellatejudgment. When such convict is detained beyond the actual releaseDdate it would be imprisonment or detention sans sanction of law andwould thus, violate not only Article 19(d)but also Article 21 of theConstitution of India. This is what was suffered by the appellant for avery long period. Considering the fact that the appellant is youth, thislong and illegal imprisonment beyond the period of sentence, taking intoaccount the long and illegal deprivation of the right to move freely andEthereby, the violation of right under Article 19 (d) of the Constitution ofIndia, the violation of right to life and personal liberty under Article 21 ofthe Constitution of India and the mental agony and pain caused due tosuch extra, illegal detention, we are of the view that the appellant isentitled to be compensated in terms of money.F

18. We are aware that the present proceeding is not one underArticle 32 of the Constitution of India. It is one under Article 136 of theConstitution. We are of the view that reference to Section 386 of theCode of Criminal Procedure (for short ‘Cr.P.C.’) would be apposite.Clause (a) thereof, deals with appellate powers available in an appealGfrom an order of acquittal whereas clause (b) deals with appellate powerin an appeal from conviction. Clause (c) deals with the appellate powerin appeal for enhancement of sentence and clause (d) deals with theappellate power in an appeal from any other order.

Now, clause (e), unlike clause (a) to (d), does not say as to whatHparticular nature of appeal that the power to make any amendment or

any consequential or incidental order that may be just or proper may bepassed in invocation of the power thereunder. The conclusion that canbe reached in the absence of such specific mention is that the powerspecified under clause (e) would be available, of course in appropriatecases falling under any of the four categories of appeals mentioned underclauses (a) to (d). Our view is fortified by the fact that the twin provisosunder clause (d) carry restrictions in the matter of exercise of powerunder clause (e), with respect to enhancement of sentence and inflictionof punishment. According to us, the power thereunder can be exercisedonly in rare cases. In this case, we found that the appellant was keptillegally in prison far in excess of the legally permissible period ofincarceration despite coming to know about the appellate judgment ofthe High Court dated 19.07.2018. As noted above, he was released onlyon 16.03.2022, which is much beyond the permissible period of sentencein terms of the said judgment dated 19.07.2018. In other words, he servedout the period of permissible period of imprisonment on the basis of thejudgment dated 19.07.2018. The appellant is youth and he sufferedlong and illegal deprivation of fundamental rights besides the mental agonyand pain on account of such extra, illegal detention. Is it not caseinviting consequential or incidental order that may be just or proper. Inthe decision of Ambica Quarry Works Vs. State of Gujarat (AIR 1987SC 1073), this court held that ‘all interpretations must subserve andhelp implementation of the intention of the Act’. This possession isapplicable while interpreting any provision in any statute especially whenthe power under that provision is conferred to pass orders that may bejust or proper.19. It is also apposite to refer to the decision of this court in A.R.Antulay V. R.S. Nayak [(1988) 2 SCC 602] in the context of thiscase. Going by the same this Court can grant appropriate relief whenthere is some manifest illegality or where some palpable injustice is shownto have resulted. Such power, going by the decision, can be tracedeither to Article 142 of the Constitution of India or powers inherent asguardian of the Constitution.

Without making any observation as to his civil remedy, we think itonly just and proper to pass an order granting compensation to the tuneof Rs.7.5 Lakhs (Rupees Seven Lakhs and Fifty Thousand) to be paidby the State holding that it is vicariously liable for the act/omission

Acommitted by its officers in the course of employment. We also make itclear that while holding the State vicariously liable as above the Statemust have recourse against the erred officer(s).

The appeal is disposed of in the above terms.

BPending applications, if any, stand disposed of.

Ankit Gyan

(Assisted by : Rahul Rathi, LCRA)

Appeal disposed of.