THE COUNTS OF SHIVPURI!!!
Alexander Dumas grippingly narrate the trial and conviction of an innocent person in his count of Monte Cristo. The story has a lot of twists and turns. The convict, Edmund Dante, escapes from a dreaded prison called Château d’if. He reaches the mainland, assumes a new identity, Count of Monte Cristo and then starts extracting revenge on his friends. The reason for the revenge is that it was these friends, who jealous of his marrying his childhood sweetheart, falsely framed him and got him incarcerated. All this reads very nice when found in a book. If it were to happen in real life, the system would be blamed for being primitive and unresponsive the needs of its citizens. The protection against such illegal trials and imprisonment is said to be a hierarchically organised judicial system. If despite such system being in place, if a person has to undergo the ordeal of wrong imprisonment, the words are not sufficient to describe the suffering of the individual who had been unfairly imprisoned. Such an incident has recently occurred in India. It was to a case of an innocent being framed but a case of an acquitted being sent to prison.
The tale is set in the heartland of India, Shivpuri. Before it was made a district by the British rulers, it was the summer capital of the Scindias, the Rulers of Gwalior. It gets its name because of a famous temple dedicated to Lord Shiva. It was here that Tantya Tope, one of the architects of the First War of Independence in 1857 was hung. It is to the sessions court of Shivpuri that eight persons, Sughar Singh, Laxman, Onkar, Ramesh, Bhoja, Raghubir, Puran and Balbir were sent for trial. The trial judge found them guilty of offences of murder and rioting and sentenced them to life imprisonment.
Feeling aggrieved by the conviction and sentence, all the eight accused filed an appeal to the Madhya Pradesh High Court. The Gwalior Bench of the High Court found the prosecution had not proved the case beyond doubt and acquitted all of them. Until here, the narration is extremely straightforward. The twists start only hereafter.
The State of Madhya Pradesh filed an appeal to the Supreme Court against the order of acquittal. For some reason, the respondents to this appeal were only the first four of the eight accused namely, Sughar Singh, Laxman, Onkar and Ramesh. The remaining four were not even made parties to the appeal.
By a lengthy judgment, a bench consisting of Justices Dr. Arijit Pasayat, C.K. Thakker and L.S. Panta allowed the appeal on 07.11.2008. The judgment is reported in AIR 2009 SC 586 = (2008) 15 SCC 442.
The Supreme Court allowed the appeals, convicted the accused, and further directed them to undergo rigorous imprisonment. The state swung into action and put all into the jail. It did not occur to the authorities, even for a moment that they had confined to prison persons, whose acquittal was not challenged before the Supreme Court. This is not the end of the tale.
The successful appellants before the high court moved the Supreme Court by way of a review. They specific case was they were not parties and so not heard and still found guilty. The review petitions were dismissed!!!!
Facing the end of the road, Raghuvir used the latest weapon developed by the litigation factory, namely, the judicially evolved but constitutionally absent procedure called Curative petitions. This procedure was evolved by the Supreme Court in a judgment titled Rupa Ashok Hurra v. Ashok Hurra, AIR 2002 SC 177.
It was a case where a constitutional bench headed by S.P. Bharucha C.J held a writ petition does not lie against an order passed by the Supreme Court. Nevertheless, in order to create an avenue of relief for litigants who feel aggrieved by its order, it was laid down that the Supreme Court could be moved again by a “curative petition”. The grounds for moving the court should be that the judgment should suffer from
(1) violation of principles of natural justice in that he was not a party to the lis but the judgement adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and
(2) Where in the proceedings a learned Judge failed to disclose his connection with the subject matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner.
The twist becomes a twister[1] now.
On 09.02.2010, four judges of the Supreme Court entertained the curative petition and allowed the same. It recalled the order passed on 7th of November 2008. The content of the order is
“We see that there is a serious violation of principles of natural justice as the acquittal of all the accused has been set aside even though only four of them were made respondents before this court and the others were not heard. We, are therefore, constrained to recall the November 7, 2008 judgment. Consequently the accused Sughar Singh, Laxman, Onkar and Ramesh, if they are in custody, are directed to be released forthwith.”
It is heartening to read the curative petitions being entertained and allowed. The unfortunate part of the order was that the Supreme Court had released persons who were parties to the Supreme Court and had not spoken a word about the petitioners, whose acquittal by the High court had become final. They continued to languish in prison. It was then they filed a modification petition to the curative petition. Fortunately, it was not dismissed holding there is no such provision.
They sought for urgent hearing of the petitions. It was rejected by a bench presided over by the Former Chief justice K.G. Balakrishnan. The petitions were directed to be listed a fortnight later in May, 2010.
Speaking about imprisonments, Salmond in his 14th edition on law of torts at Page 178 said a person is under false imprisonment if
“The act of arresting or imprisoning any person without lawful justification, or otherwise preventing him without lawful justification from exercising his right of leaving the place in which he is”
The clock cannot be put back. Luckily, the law of the country is clear and unambiguous. In cases where the persons are detained in prison for no fault of theirs, they have to be compensated. The principles laid down in England in Maharaj v. Attorney General of Trinidad and Tobago, (1978) 2 All ER 670. Our courts have applied this principle. Jeevan Reddy J, as a judge of the Andhra Pradesh High court held in C. Ramkonda Reddy v. State, AIR 1989 AP 235 : -
The fundamental rights are sacrosanct. They have been variously described as basic, inalienable, and indefeasible. The founding-fathers incorporated the exceptions in the Articles themselves - wherever they were found advisable, or appropriate. No such exception has been incorporated in Art.21, and we are not prepared to read the archaic concept of immunity of sovereign functions, incorporated in Art.300(1), as an exception to Art.21. True it is that the Constitution must be read as an integrated whole; but, since the right guaranteed by Art.21 is too fundamental and basic to admit of any compromise, we are not prepared to read any exception in to it by a process of interpretation. We must presume that, if the founding fathers intended to provide any exception, they would have said so specifically in Part- III itself.
Maybe, the petitioners would be more than happy if they are released from jail. Yet, if the judicial system has to restore itself to its constitutional promise, in addition to the order of release, the court should award adequate compensation for violation of their fundamental right to liberty. The courts have awarded compensation for imprisonments at the hands of the executive. To name a few instances, Rudul Sah v. State of Bihar, AIR 1983 SC 1086, Sebastian Hongray v. Union of India, AIR 1984 SC 1026 and in Bhim Singh v. State of J & K, AIR 1986 SC 494. The imprisonment of an individual is no less comforting because it flows out of a judgment. A loss is a loss.
Perhaps, the State of Madhya Pradesh should be called upon to bear the damage, if the issue as to who should pay arises. For it is the state, which appointed its prosecutors in the Supreme Court, and they were partly responsible for the present situation.
Would you not agree if Dumas were to live in India today, he would have penned a book called "The counts of shivpuri"?
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