Free Legal Aid Committee, Jamshedpur v. State Of Bihar (1999) - Tortious Liability of Public Servant

• DATE OF JUDGEMENT: 26^th February, 1999
• JUDGES:  Hon'ble Mr. Justice A.N. Sen,
• Hon' ble Mr. P.N Bhagwati
• REFERENCE: (1982) 3 SCC 378
• PARTIES: Free Legal Aid Committee (Plaintiff) & State of Bihar (Respondent)

SUBJECT

The following judgement deals with the situation that can however easily be avoided because there is a provision in Section 441 Sub-section (3) of the Cr.P.C. under which bail can be granted to an accused so as to bind the person to appear before the Court of Session, in which event, on committal, the person would not have to be re-arrested and brought before the Court of Session. It is also evident from Section 209, Clause (b) of the Cr.P.C.  the Magistrate has the discretion to release the accused person out on bail "during and until completion of trial" even in cases where the offence is triable by the Court of Session. It was brings to lights about the tortious liability of the government servant in terms of both public as well as private law against the 13 year old girl.

AN OVERVIEW

1. In April 1991, in an agitation by villagers against the Icha Kharakai Bandh Yojna, a large number of agitators were detained under S.107 Cr.P.C.
2. The Juvenile Justice Act 1986 under S.23, expressly forbids proceedings under Chapter VIII being taken against a juvenile which falls under the territory of 107
3. It is not feasible to take up this writ petition for hearing just before the Dussehra holidays due to lack of time in hand. Therefore, curtailed to adjourn it to 12th October, 1981. In the meanwhile, Mr. Sibal on behalf of the petitioner has applied for certain interim directions and we propose to deal with his application in this order.
4. It was stated in the first interim that when an accused is released on bail the person need not be required to appear before the Court until the charge-sheet is filed and the process is issued by the Court.
5. It was stated that Mr. Sibal on behalf of the petitioner shed light onto us that a Bench of this Court, while disposing of Writ Petition. No. 53 of 1980, made an order on 25th July, 1980 recommending to the State Government that it should take speedy measures for reducing congestion in Sakchi Jail at Jamshedpur.
6. Sibal on behalf of the petitioner, has drawn the attention to an article in a journal complaining about the conditions in the General Hospital in Jamshedpur. It was stated to Mr. Sibal that the petitioner should file an affidavit in regard to these complaints and Mr. Sibal on behalf of the petitioner, has agreed to do so on or before 21st September, 1981. 

IMPORTANT PROVISIONS

Constitution of India

• Article 21- states that every person has an equal right to life and liberty except according to the procedure established by law.
• Article 38 (1) - avows that the state shall promote welfare of citizens by securing and protecting the social order including justice.
• Article 39(A) - It is the duty of the State to see that the legal system promotes justice on the basis of equal opportunity for all its citizens. It must therefore arrange to provide free legal aid to those who cannot access justice due to economic and other disabilities.

Penal Code

• Section 441(3) - under which bail can be granted to an accused so as to bind him to appear before the Court of Session, in which event, on committal, he would not have to be re-arrested and brought before the Court of Session
• Section S. 209 (b) - the Magistrate has the discretion to release the accused on bail "during and until completion of trial" even in cases where the offence is triable by the Court of Session. 

ISSUES

• Writ Petition. No. 53 of 1980, made an order on 25th July, 1980 suggesting that the State Government should take expeditious measures for reducing congestion in Sakchi Jail at Jamshedpur. We are not aware whether the State Government has complied with this suggestion made by the Court?
• It is not possible to take up this writ petition for hearing before the Dussehra holidays due to lack of time? 

ANALYSIS OF THE JUDGEMENT

According to the Right to Free Legal Aid which reiterates to giving free legal services to the poor and needy who are unable to afford the services of an advocate for the procedure of a case or any legal proceeding in any court, tribunal or before an Judicial authority. Article 38(1) promises that the State shall promote the welfare of the people by securing and protecting the social order including justice. In addition to that, Article 21 clearly says that every person has an equal right to life and liberty except according to the procedure established by the law.                      

1. It was seen that, it is not possible to take up this particular writ petition for hearing just before the Dussehra holidays, due to lack of time. The bench are, therefore, curtailed to adjourn the matter to 12th October, 1981. In the interim, Mr. Sibal on behalf of the petitioner applied for certain interim directions and the bench proposed to deal with his application in the aforementioned order.
2. It was seen that in the first interim direction appealed by Mr. Sibal, that when an accused is released on bail, it should not be necessary that he should have to appear in court until the charge-sheet is filed and process issued by the Court. Mr. Sibal stated that in recent times what happens in many of the Magistrates' Court in Bihar and elsewhere is that the accused is required to appear before the Court every fourteen days even though he is on bail this further causes considerable persecution onto the accused person. Mr. Sibal submits and in the view of the bench, rightly that such an action is not required by law. Further pushing the view, Mr. K. G. Bhagat, learned advocate appearing on behalf of the State of Bihar (respondent), fairly concedes that it is not vital that the law has to necessitates that the accused on bail need appear before the Court before the charge-sheet is filed and process issued by the Court. On that account, the Bench, directs that whenever an accused is released on bail that it is vital for him to appear before the Court until the charge-sheet is filed and the process is issued by the Court. There is also another issue which is put forward by Mr. Sibal which pertains to the cases triable by the Court of Session, the practice followed is that when an accused is released on bail by the Magistrate, the bail is granted to him only during the pendency of the inquiry before the Magistrate, which results to that when the case is committed to the Court of Session, the person is rearrested and brought before the Court of Session where the person has to apply again for a fresh bail. This leads to considerable amount of inconvenience to the accused person without any correlating benefit so far as the administration of criminal justice is concerned. This entire situation can easily be avoided because of the availability of the provision in 441 sub-section (3) of the Cr.P.C., under the mentioned section which bail can be granted to an accused so as to bind him to appear before the Court of Session, in which event, on committal, the person would not have to be re-arrested and brought before the Court of Session. In addition as seen from S. 209, Clause (b) of the Cr.P.C. the Magistrate has discretion to release the accused on bail "during and until completion of trial" including cases where the offence is triable by the Court of Session. The Bench therefore, feels that it would avoid the hardship caused to an accused if the Magistrate, while releasing the accused on bail, requires the execution of a bond with or without surety, as be legitimately followed by the Magistrates. It is hoped that hereafter this procedure will be followed by the Magistrates unless, there are any particular reasons for not doing so the case may be, binding the accused not only to appear as and when required before him but also to appear when called upon in the Court of Session. Mr. K. G. Bhagat on behalf of the State of Bihar also agrees that this a procedure which can come into action.
3. Sibal on behalf of the petitioner has also identified to the Bench of this Court that while getting rid of Writ Petition. No. 53 of 1980, he made an order on 25th July, 1980 recommending that the State Government should take expeditious measures for reducing congestion in Sakchi Jail at Jamshedpur. Whether the State Government has complied with this recommendation made by the Court is not known. The Bench would consequently, like the State Government to inform us by sending an appropriate affidavit as to what steps have been taken by the State Government in compliance with the order of the Court. The affidavit may be filed by the State Government on or before 15th Oct: 1981. The office will supply a copy of Writ Petition. No 53/80 to the knowledgeable advocate appearing on behalf of the State Government.
4. In closing, Mr. Sibal on behalf of the petitioner, has drawn the focus to an article in a journal opposing the conditions in the General Hospital in Jamshedpur. The Bench adviced Mr. Sibal that the petitioner must file an affidavit pertaining to these complaints and Mr. Sibal (behalf of the petitioner) agreed to do so on or before 21st Sept. 1981. The State Government will further, file a reply to this affidavit. After the affidavits are filed the Court will take into consideration whether any, and if so, what consolation should be granted to the petitioner with regard to these complaints.
5. The above mentioned writ petition was adjourned on 19^th October, 1981.

CONCLUSION

Culmination of all the points stated above, the order was given accordingly. The petitioners had placed reliance on the decision of the Apex Court in Free Legal Aid Committee, Jamshedpur v. State of Bihar. 1982 3 SCC 378, the Supreme Court took into consideration Sections 437, 441(3), 209(b) Cr.P.C, and  the above mentioned 5 points were decided by the Hon' ble Mr. A.N. Sen Justice and  Hon' ble Mr. P.N Bhagwati. Winding-up, the notion of this case propelled a small shift in both law as well as liberty. The remand was illegal and it was a violation of her fundamental rights, the court ordered that Rs. 10,000 be compensated to the girl and she was entitled to be compensated under the public law as well as under private law for damages against tortious actions of the government servant.