BHOLA KUMHARversusSTATE OF CHHATTISGARH

1176                       [2022]
                SUPREME COURT     7 S.C.R. 1176
                               REPORTS                       [2022] 7 S.C.R.


 A                              BHOLA KUMHAR
                                         v.
                          STATE OF CHHATTISGARH
                         (Criminal Appeal No. 937 of 2022)
 B                                 MAY 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 – The
       appellant was convicted for the offence punishable u/s. 376 of IPC
 C
       and Sections 3(ii)(v) and 3(1)(xii) of the Scheduled Castes and
       Scheduled Tribes (Prevention of Atrocities) Act, 1989 – He was
       sentenced to undergo rigorous imprisonment for a period of 12
       years and to pay a fine of Rs.10,000/- and in default, to undergo
       imprisonment for one more year – High Court in appeal, confirmed
 D     the conviction but reduced his sentence of 12 years rigorous
       imprisonment to 7 years imprisonment – Further, it was ordered to
       compensate the victim by paying Rs.15,000/- within a period of six
       months – The appellant has undergone rigorous imprisonment for
       10 years 03 months and 16 days with remission – The appellant
       was detained in custody exceeding the period of imprisonment in
 E
       terms of the judgment of the High Court – Appellant approached
       Supreme Court, seeking compensation for being kept in prison
       beyond the period of sentence – Held: There is no justification for
       not complying with the judgment of the High Court reducing the
       sentence of the appellant – Violation of not only Art. 19(1)(d) but
 F     also Art. 21 of the Constitution of India – Appellant entitled to be
       compensated in terms of money – Compensation to the tune of Rs.7.5
       Lakhs to be paid by the State holding that it is vicariously liable for
       the act/omission committed by its officers – Code of Criminal
       Procedure, 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 the
       appellant herein was held guilty in a grave offence. But then,
       when a competent court, upon conviction, sentenced an accused
 H     and in appeal, the sentence was modified upon confirmation of
                                        1176
       BHOLA KUMHAR v. STATE OF CHHATTISGARH                              1177


the conviction and then the appellate judgment had become final,          A
the convict can be detained only up to the period to which he can
be legally detained on the basis of the said appellate judgment.
When such a convict is detained beyond the actual release date
it would be imprisonment or detention sans sanction of law and
would thus, violate not only Article 19(d) but also Article 21 of
                                                                          B
the Constitution of India. This is what was suffered by the appellant
for a very long period. Considering the fact that the appellant is a
youth, this long and illegal imprisonment beyond the period of
sentence, taking into account the long and illegal deprivation of
the right to move freely and thereby, the violation of right under
Article 19 (d) of the Constitution of India, the violation of right to    C
life and personal liberty under Article 21 of the Constitution of
India and the mental agony and pain caused due to such extra,
illegal detention, this Court of the view that the appellant is
entitled to be compensated in terms of money. [Para 17][1188-C-
F]
                                                                          D
       Rudul Sah vs. State of Bihar & Anr. (1983) 4 SCC 141
       : [1983] 3 SCR 508; Ambica Quarry Works Vs. State of
       Gujarat 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                                 E
[1983] 3 SCR 508                  referred to             Para 1
[1987] 1 SCR 562                  referred to             Para 18
[1988] 1 Suppl. SCR 1             referred to             Para 19
       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                  F
No.937 of 2022.
       From the Judgment and Order dated 11.07.2018/19.07.2018 of
the High Court of Chhattisgarh at Bilaspur in Criminal Appeal No.110 of
2015.
       A. Sirajudeen, Sr. Adv., Tilak Raj Pasi, Parnam Prabhakar, E.      G
Keerthi, H. Rajasekar, Satyapal Khushal Chand Pasi, Advs. for the
Appellant.
       Sourav Roy, Dy. A.G., Mahesh Kumar, Prabudh Singh, Kaushal
Sharma, Srinivasa Kumar Bogisam, Ms. Devika Khanna, Mrs. V.D.
Khanna, VMZ Chambers, Advs. for the Respondent.
                                                                          H
1178                SUPREME COURT REPORTS                          [2022] 7 S.C.R.


 A               The Judgment of the Court was delivered by
                 C. T. RAVIKUMAR, J.
              This Special Leave Petition is filed assailing the judgment and
       order dated 19.7.2018 of the High Court of Chhattisgarh at Bilaspur in
       Criminal Appeal No. 110/2015 whereby and whereunder the conviction
 B     of the petitioner under Section 376 of the Indian Penal Code (for short
       ‘IPC’) was confirmed, but the sentence therefor, was reduced from 12
       years to 7 years of rigorous imprisonment. Notice was issued on
       04.03.2022. However, the said order and the subsequent order dated
       21.03.2022 would reveal that it was, in troth, a limited one.
 C               Leave Granted, accordingly.
               A short prelude may be profitable for a proper consideration of
       the limited question (which we intend to go into) viz., whether the appellant
       is entitled to compensation for being kept in prison beyond the period of
       sentence and thereby sustained deprival of personal liberty.
 D           1. While parting with the decision in Rudul Sah’s case1, this
       Court made a fervent hope -
                        “This order will not preclude the petitioner from bringing a
                 suit to recover appropriate damages from the state and its erring
                 officials. The order of compensation passed by us is, as we said
 E               above, in the nature of a palliative. We cannot leave the petitioner
                 penniless until the end of his suit, the many appeals and the
                 execution proceedings. A full-dressed debate on the nice points
                 of fact and law which takes place leisurely in compensation suits
                 will have to await the filing of such a suit by the poor Rudul Sah.
                 The Leviathan will have liberty to raise those points in that suit.
 F               Until then, we hope, there will be no more Rudul Sahs in Bihar or
                 elsewhere.”
                                                                  (Emphasis added)
               That was a case where Rudul Sah, despite being acquitted by the
       Court of Sessions, Muzaffarpur, Bihar, on 03.06.1968 was released from
 G
       the 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 his
       release on the ground that his detention in the jail is unlawful. Ancillary
       reliefs were also sought for. When the said writ petition was taken up on
       1
 H         Rudul Sah vs. State of Bihar & Anr. (1983) 4 SCC 141
        BHOLA KUMHAR v. STATE OF CHHATTISGARH                                    1179
                 [C. T. RAVIKUMAR, J.]

22.11.1982, the learned counsel for the State of Bihar informed this Court       A
that the appellant was released from the jail. Though the prayer for
release from the jail had become infructuous, this Court went onto
consider the writ petition in regard to the other reliefs sought for and
held that his detention after his acquittal was wholly unjustified. Thereupon,
this Court held: “Therefore, the State must repair the damage done by
                                                                                 B
its officers to the petitioner’s rights. It may have recourse against those
officers.” It is thereafter that the said writ petition was disposed of in
the aforesaid manner and with the fervent hope extracted above.
       2. True that the appellant cannot be said to be another Rudul Sah
inasmuch as his case never ended in his acquittal, but only in confirmation
of conviction with reduction in period of imprisonment. Nonetheless, his         C
case, to be unravelled hereinbelow, would reveal continuance of
contumacious act on the part of a State Government (of course, its
officials) in keeping a convict in incarceration beyond the period of
sentence of imprisonment, unmindful of the final verdict of the Court.
Such an act is injudicious and indefensible when his/her continued               D
confinement is uncalled for in connection with any other case. This kind
of levity cannot be viewed with laxity and it is time to consider it on the
legit. Freedom of movement can be curtailed or taken away by
imprisonment or detention ordained after due process of law and in
accordance with law. Imprisonment or detention sans sanction of law
would violate Article 19(d) as well as the right under Article 21, of the        E
Constitution of India.
       3. In the case on hand the appellant Bhola Kumhar was made to
stand the trial for the offence punishable under Section 376 of the Indian
Penal Code (for short, “IPC”) and Sections 3(ii)(v) and 3(1)(xii) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,            F
1989. He was convicted and sentenced to undergo rigorous imprisonment
for a period of 12 years and to pay a fine of Rs.10,000/- for the conviction
for offence punishable under Section 376 IPC. He took up the matter in
appeal and in Criminal Appeal No.110/2015 the High Court of
Chhattisgarh at Bilaspur confirmed the conviction, but reduced his               G
sentence of 12 years rigorous imprisonment to 7 years imprisonment.
Further, it was ordered to compensate the victim in terms of the provisions
under Section 357 of the Code of Criminal Procedure, 1973, by paying
Rs.15,000/- within a period of six months. The sentence to pay fine of
Rs.10,000/- and in default, to undergo imprisonment for one more year
was ordered to remain as it is. The orders dated 4.3.2022 and 21.3.2022          H
1180            SUPREME COURT REPORTS                            [2022] 7 S.C.R.


 A     passed in the SLP are reflective on the disinclination to interfere with
       the conviction and the sentence imposed therefor, but indicative of
       inclination to make a probe on the question as to why the appellant was
       detained in custody exceeding the period of judicial custody in terms of
       the judgment of the High Court dated 19.07.2018.
 B           4. When the matter came up for consideration on 04.03.2022, this
       Court condoned the delay in filing the Special Leave Petition and took
       note of the submission made by the learned senior counsel appearing for
       the appellant (in fact, Amicus Curiae) that despite suffering the full
       sentence in terms of the judgment impugned, the appellant was not
       released. This Court passed the following order:-
 C
             “Learned senior counsel for the petitioner submits that the petitioner
             was convicted for offence punishable under Section 376 IPC and
             sentence for 7 years R.I. by the High Court under the impugned
             judgment dated 19.07.2018 and despite the petitioner has
             undergone the full sentence in terms of the judgment impugned,
 D           still he has not been released and it appears that the Superintendent
             Central Jail, Ambikapur, Surguja (C.G.) has not updated their jail
             records as it reveals from the certificate placed on record.
             Issue notice, returnable on 14.03.2022.

 E           Copy of the petition be served additionally to the Standing Counsel
             for the State of Chhattisgarh.”
             5. On 21.03.2022 this Court passed the following order:-
                “The records indicate that the petitioner had undergone 10 years
             03 months and 16 days of custody as revealed from the custody
 F           certificate dated 09th November, 2021 and the High Court while
             upholding conviction, reduced the sentence to 07 years rigorous
             imprisonment(RI).
                 The submission of the counsel for the petitioner was recorded
             by this Court on 4th March, 2022 that despite the petitioner has
 G           undergone full sentence of 7 years RI in terms of the judgment
             impugned by the High Court, still he has not been released and
             after the notice of the present petition came to be served, the
             concerned authorities have released the petitioner on 16th March,
             2022. This may not be the end of the matter. What is being reflected
             to this Court needs a further probe.
 H
        BHOLA KUMHAR v. STATE OF CHHATTISGARH                                  1181
                 [C. T. RAVIKUMAR, J.]

         Let the counsel for the State file an affidavit and tender an         A
      explanation as to why the petitioner was detained in custody
      exceeding the period of judicial custody in terms of the judgment
      impugned of the High Court dated 19th July, 2018. At the same
      time, the State may also collect the data from all over the State
      and furnish a report to this Court of such of the incident of which
                                                                               B
      reference has been made in the present petition.
         Copy of this order may also be sent to the Secretary, State
      Legal Services Authority, Chhattisgarh for taking appropriate steps
      and compliance report.”
                                                        (Emphasis added)       C
       6. In compliance with the said order dated 21.03.2022, an affidavit
was filed by the Superintendent of Central Jail, Ambikapur, purportedly
to explain the reason for detaining the appellant in custody exceeding
the period of judicial custody. We find no reason to accept so-called
justification and we will explain the raison d’etre for our disinclination     D
and also for our inclination to grant compensation.
       7. The order dated 21.03.2022 itself would reveal that on behalf
of the appellant it was contended that he was made to undergo rigorous
imprisonment for 10 years 03 months and 16 days with remission. Now,
in resistance the respondent would contend that the total sentence             E
undergone by the appellant (excluding the remission period) was only 8
years 01 month and 29 days. It is stated in the affidavit that since the
appellant had failed to pay the compensation of Rs.15,000/- to the victim,
as directed under the impugned judgment, he was to undergo
imprisonment by one year over and above the period of 7 years.
                                                                               F
       8. The counsel for the appellant, in the afore-stated circumstances
contended that the appellant was detained illegally beyond the legally
permissible period of imprisonment. To be precise, the contention is that
the appellant had suffered imprisonment for a period of 10 years 03
months and 16 days with remission, as is revealed from the custody
certificate dated 09.11.2021. In this context it is relevant to refer to the   G
certificate of custody in detail issued by the very deponent, viz., the
Superintendent of Central Jail, Ambikapur. The entries therein against
serial numbers 7 to 12 are relevant for the purpose of the case and they
read thus:-
                                                                               H
1182             SUPREME COURT REPORTS                           [2022] 7 S.C.R.


 A           “7]Sentence               - 12 years
             8] Court’s Name           - Hon’ble Special Judge, (Scheduled
                                          Caste and Scheduled Tribe Prevention
                                          Of Atrocities Act), Jashpur (C.G.)
 B           9] Under trial period     - Year- 00, Month- 10, Day- 10
             10] Conviction period - Year- 06, Month- 11, Day- 10
             11] Jail Remission        - Year- 02, Month- 05, Day- 26
             12] Total Conviction      - Year- 10, Month- 03, Day- 16
 C               period as on
                 09-11-2021"
              9. The above extract would reveal that the total conviction period
       as on 09.11.2021 was 10 years 03 months and 16 days. It would also
       reveal that the appellant is entitled to remission and further that 02 years
 D     05 months and 26 days was the jail remission period as on that date.
       Bearing in mind afore aspects, the statements made in paragraphs 16
       and 17 of the affidavit have to be looked into. They read thus:-
             “16. That the Hon’ble High Court vide the Impugned Order had
             reduced the sentence of the Petitioner to seven (7) years rigorous
 E           imprisonment and a fine of Rs.10,000/- (Rupees Ten Thousand
             Only) or to undergo one (1) year imprisonment in default of the
             same and to pay Rs.15,000/- (Rupees Fifteen Thousand Only) as
             compensation to the victim to undergo one (1) year imprisonment
             in default. It is submitted that the actual sentence undergone by
 F           the Petitioner (excluding the remission period) is as under:
                 a.     Under trial period : 10 months and 10 days
                 b.     Conviction period (from 29th November 2014 to 16th
                        March 2022) : 7 years 3 months and 19 days.
             17. That therefore the total sentence undergone by the Petitioner
 G
             (excluding the remission period) is 8 years 1 month and 29 days.
             It is submitted that the Petitioner had not paid the compensation
             of Rs. 15,000/- to the victim as directed by the Hon’ble High
             Court therefore he had to further undergo an imprisonment of
             one (1) year, over and above the period of seven (7) years held by
 H           the Hon’ble High Court.”
        BHOLA KUMHAR v. STATE OF CHHATTISGARH                                    1183
                 [C. T. RAVIKUMAR, J.]

       10. Going by afore-extracted statements in the affidavit filed by         A
the respondent in compliance with the order dated 21.03.2022 excluding
the remission period the appellant was under actual imprisonment for a
period of 08 years 01 month and 29 days. It is stated therein that by
virtue of the default on the part of the appellant to pay a compensation to
the victim, in terms of the impugned judgment, he was to undergo
                                                                                 B
imprisonment for 01 year more in addition to the term of imprisonment
which he had to suffer by virtue of the impugned judgment. The tenor of
the affidavit revealed from the aforesaid paragraphs would go to show
the stand of the respondent that over and above the period of 7 years the
appellant was to undergo an additional one year of imprisonment on
account of his default in payment of the amount of fine. It is in the            C
aforesaid manner that the respondent is attempting to justify the detention
of the appellant beyond the period of imprisonment awarded by the High
Court in substitution of the sentence imposed by the Sessions Court. We
will deal with this issue further.
       11. For a proper consideration of this issue it is apposite to refer to   D
the following aspects:-
       As per Adaptation of Laws Order, 2001 issued as per Notification
No. F-2/13/Jail/2001 dated the 14th June, 2001, in exercise of the powers
conferred under Section 79 of the Madhya Pradesh Reorganisation Act,
2000 (28 of 2000) the State Government passed an order called                    E
“Adaptation of Laws Order, 2001”, which came into force in the whole
State of Chhattisgarh on the 1st day of November, 2000. The schedule
thereunder would reveal that the Madhya Pradesh Jail Manual, 1968
was adopted by the State of Chhattisgarh. It is still in force. Rule 1 of
Part-I of Madhya Pradesh Jail Manual, 1968 reveals the name of the
Rules as ‘Madhya Pradesh Prison Rules, 1968.’ Rule 2 (g) thereof defines         F
‘sentence’ as hereunder:
       “2(g). “Sentence” means a sentence as finally fixed on appeal,
       revision or otherwise, and includes an aggregate of more sentences
       than one and committal to or detention in prison in default of
       furnishing security to keep the peaceor good behaviour.”                  G
      12. Thus, it is evident that in the State of Chhattisgarh, the Madhya
Pradesh Prison Rules, 1968 is in force and thereunder the term ‘sentence’
takes the meaning sentence as finally fixed on appeal, revision or
otherwise and it includes an aggregate of more sentences than one and
                                                                                 H
1184             SUPREME COURT REPORTS                              [2022] 7 S.C.R.


 A     committal to or detention in prison in default of furnishing security to
       keep the peace or good behaviour. As stated hereinbefore, in the instant
       case the Court of Special Judge the Scheduled Castes and Scheduled
       Tribes (Prevention of Atrocities) Act, Jashpur, which tried the appellant
       convicted him for the offence punishable under Section 376 IPC and
       sentenced him to undergo rigorous imprisonment for 12 years and to pay
 B
       a fine of Rs. 10,000/- and in default of its payment to undergo additional
       one year rigorous imprisonment. In the appeal, while confirming the
       conviction, the High Court reduced the sentence to rigorous imprisonment
       for 07 years under Section 376 IPC and retained the order of payment
       of fine of Rs.10,000/- as it is. Additionally, it was ordered that the appellant
 C     should compensate the victim in terms of the provisions of Section 357
       Cr.P.C. by paying Rs.15,000/-. In the aforesaid circumstances, the
       indisputable position is that the sentence finally fixed on the appellant
       was 7 years of rigorous imprisonment. It is true that he was also to
       suffer one more year of imprisonment in default of payment of fine. But,
       what is disturbing us is the purposeful omission to make any mention
 D
       about the period of remission to which the appellant was entitled to in
       the affidavit dated 24.4.2022. This requires to be taken seriously not
       solely due to the applicability of the afore-mentioned Prison Rules but on
       account of certain other aspects as well. Whatever be the actual period
       of remission to which the appellant was entitled to, the factum is that his
 E     entitlement to remission is indisputable in the circumstances mentioned
       above. Going by the custody certificate the period of jail remission as on
       9.11.2021 was 2 years, 5 months and 26 days. It is pertinent to note that
       the deponent of the affidavit dated 24.04.2022 who himself issued the
       Custody Certificate, did not dispute the entitlement of the appellant for
       remission. What exactly was the period of imprisonment undergone by
 F
       the appellant with remission was not mentioned at all in the said affidavit
       though in the order dated 21.03.2022 this Court recorded that going by
       the records the appellant had suffered, 10 years, 3 months and 16 days
       of custody as per the Custody Certificate dated 9th November, 2021.
       Add to it, even going by the affidavit dated 24.04.2022 the appellant had
 G     suffered 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 (excluding
              the remission period) is 8 years 1 month and 29 days.”
                                                                  (Emphasis added)
 H
        BHOLA KUMHAR v. STATE OF CHHATTISGARH                                 1185
                 [C. T. RAVIKUMAR, J.]

       13. We will, now, consider another serious aspect. A scanning of       A
the affidavit dated 24.04.2022 would reveal that the respondent is feigning
ignorance about the judgment of the High Court dated 19.07.2018.
According to the respondent though the High Court had communicated
the judgment to the District and Sessions Judge, Jashpur on 30.07.2018,
the same was not communicated to jail authorities and on being
                                                                              B
communicated the order dated 4th March, 2022 passed by this Court on
10th March, 2022 immediate action was taken. We have no hesitation to
hold that the very statement made in the said affidavit dated 24.04.2022
and the documents annexed therewithal would reveal the hollowness of
the said contentions. How can the respondent feign ignorance about the
judgment of the High Court dated 19.7.2018, reducing the sentence             C
imposed on the appellant.
      14. In Annexure-A1, which is the letter dated 20.01.2020 of the
Superintendent of Central Jail, Ambikapur, to Secretary of the High Court
Legal Service Committee, a reference was made as follows:
      “Ref : Letter No.F.No.2477 / CGSLSA / CONVICT PRISNOERS                 D
      / 2018 / BILASPUR DATE 28-092018 ad letter No. L/24/2018 –
      Petitioner / dated 27.09.2018 of the petitioner received through
      email.”
       Even after making such a reference, purposefully or otherwise,
the respondent has not chosen to produce those letters along with the         E
affidavit dated 24.04.2022. Annexure A-1 dated 20.01.2020 produced
along with the affidavit dated 24.04.2022 reads thus:-
         OFFICE OF THE JAIL SUPERINTENDENT, CENTRAL
                JAIL, AMBIKAPUR, SARGUJA (C.G)
                                                                              F
      Letter No. – 590/Kalyan/2020, Ambikapur,


                                                       Dated: 20.01.2020
      To
                                                                              G

      The Secretary,
      High Court Legal Service Committee,
      High Court Compound, Bodri, Bilaspur(C.G)
                                                                              H
1186      SUPREME COURT REPORTS                          [2022] 7 S.C.R.


 A     Sub: Filing Special Leave to Appeal (Crl.) of the Convicted Prisoner
       Bhola Kumar, son of Barju Ram Kumhar in the Hon’ble Supreme
       Court- reg.
       Ref: Letter No. F.No. 2477/CGSLSA/CONVICT PRISONERS/
       2018/BILASPUR DATE 28-092018 and Letter NO. L/24/2018-
 B     Petitioner/dated 27.09.2018 of the petitioner received through
       email.
       Sir,
       It is submitted with regard to the above cited subject and reference
       that the convicted prisoner Bhola Kumar son of Barju Ram
 C     Kumhar, resident of Village Tamamunda Farsabahar, Police
       Station Farsabahar, District Jashpur (C.G) being convicted in
       Sessions Trial No. 04/2014 under Section 376 IPC by the Court
       of Ld. Special Judge, District Jashpur (C.G) on 29.11.2014 with
       an award of Life Imprisonment and on dismissal of his Criminal
 D     Appeal No. 110/2015 by the Hon’ble High Court of Chhattisgarh
       at Bilaspur on 19.07.2018, he is undergoing the sentence in this
       jail. The convicted prisoner wants to prefer his Special Leave to
       Appeal (Crl) in the Hon’ble Supreme Court through the Legal
       Aid.

 E     Therefore, 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 Court
       and copies of other deposition documents, (07) Application for
       Legal Service, toward you, it is most respectfully submitted that
 F     by supplying all the rest documents (01) Judgment of the Hon’ble
       High 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/- Illegible
 G                                                   Jail Superintendent
                                                  Central Jail Ambikapur
                                                   Sarguja Chhattisgarh
       Endorsement No. 590-A/Welfare/2020, Ambikapur,
 H                                                      Date: 20.01.2020
        BHOLA KUMHAR v. STATE OF CHHATTISGARH                                  1187
                 [C. T. RAVIKUMAR, J.]

      Copy forwarded to the Secretary, District Legal Aid Service              A
      Committee, District Sarguja, Ambikapur (C.G.) for respectful
      information.
                                                               Sd/-Illegible
                                                      Jail Superintendent
                                                   Central Jail Ambikapur      B
                                                    Sarguja Chhattisgarh
                                                        (Emphasis added)
       15. After having written such a letter on 20.01.2020 and specifically
making a request to the High Court Legal Services Committee to file            C
Special Leave Petition before the Supreme Court against judgment of
dismissal by the High Court of Chhattisgarh in Criminal Appeal No.110/
2015 the Superintendent of Central Jail, Ambikapur could not have feigned
ignorance about the action to be initiated in the absence of further
interference with the judgment dated 19.7.2018 in Criminal Appeal No.110
of 2015 and at any rate, on the expiry of the permissible period of the        D
imprisonment on the strength of the said judgment. There is no justification
for not complying with the judgment dated 19.07.2018. If on receipt of
the order of this Court dated 4th March, 2022 action could be taken
swiftly, as has been explained in paragraphs 11 to 13 of the affidavit
dated 24.4.2022, why such a recourse was not done immediately before           E
or, at least immediately after the expiry of permissible period of
imprisonment. If he was to get 2 years remission, as stated in the custody
certificate, of course in terms of the relevant Prison Rules on expiry of
the period of sentence less the period of remission thus earned and the
additional period of imprisonment of one year on account of default in
payment of fine he should have been released much before the actual            F
incarceration period of 8 years, 1 month and 29 days.
       16. There is no case for the respondent that it or the victim had
challenged the judgment of the High Court of Chhattisgarh dated 19/07/
2018 successfully. In the said circumstances, it can only be taken that
the deponent was unscrupulously telling untruth. There was absolutely          G
no justifiable reason, in the said circumstances, for the lapse in taking
appropriate action to comply with the said judgment and to release the
appellant on expiry of the legally permissible period of sentence. There
is absolutely no case for the respondent that the appellant herein was
not entitled to remission. In the light of the Certificate of Custody issued   H
1188             SUPREME COURT REPORTS                            [2022] 7 S.C.R.


 A     by the Superintendent of Central Jail, Ambikapur, as also in the light of
       the provisions in the Prison Rules, referred hereinbefore, applicable in
       the State of Chhattisgarh the entitlement of the appellant for remission is
       indisputable and in fact, it is not at all disputed by the respondent. Rule
       715 of the afore-mentioned Prison Rules, 1968 provides that the total
       remission awarded to a prisoner under the said rules shall not, without
 B
       the special sanction of the State Government, exceed one third of his
       sentence. In other words, that is the maximum remission normally
       awardable.
              17. We are not oblivious of the fact that the appellant herein was
       held guilty in a grave offence. But then, when a competent court, upon
 C
       conviction, sentenced an accused and 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 can be legally detained on the basis of the said appellate
       judgment. When such a convict is detained beyond the actual release
 D     date it would be imprisonment or detention sans sanction of law and
       would thus, violate not only Article 19(d)but also Article 21 of the
       Constitution of India. This is what was suffered by the appellant for a
       very long period. Considering the fact that the appellant is a youth, this
       long and illegal imprisonment beyond the period of sentence, taking into
       account the long and illegal deprivation of the right to move freely and
 E
       thereby, the violation of right under Article 19 (d) of the Constitution of
       India, the violation of right to life and personal liberty under Article 21 of
       the Constitution of India and the mental agony and pain caused due to
       such extra, illegal detention, we are of the view that the appellant is
       entitled to be compensated in terms of money.
 F
              18. We are aware that the present proceeding is not one under
       Article 32 of the Constitution of India. It is one under Article 136 of the
       Constitution. We are of the view that reference to Section 386 of the
       Code of Criminal Procedure (for short ‘Cr.P.C.’) would be apposite.
       Clause (a) thereof, deals with appellate powers available in an appeal
 G     from an order of acquittal whereas clause (b) deals with appellate power
       in an appeal from conviction. Clause (c) deals with the appellate power
       in appeal for enhancement of sentence and clause (d) deals with the
       appellate power in an appeal from any other order.
             Now, clause (e), unlike clause (a) to (d), does not say as to what
 H     particular nature of appeal that the power to make any amendment or
        BHOLA KUMHAR v. STATE OF CHHATTISGARH                                    1189
                 [C. T. RAVIKUMAR, J.]

any consequential or incidental order that may be just or proper may be          A
passed in invocation of the power thereunder. The conclusion that can
be reached in the absence of such specific mention is that the power
specified under clause (e) would be available, of course in appropriate
cases falling under any of the four categories of appeals mentioned under
clauses (a) to (d). Our view is fortified by the fact that the twin provisos     B
under clause (d) carry restrictions in the matter of exercise of power
under clause (e), with respect to enhancement of sentence and infliction
of punishment. According to us, the power thereunder can be exercised
only in rare cases. In this case, we found that the appellant was kept
illegally in prison far in excess of the legally permissible period of
incarceration despite coming to know about the appellate judgment of             C
the High Court dated 19.07.2018. As noted above, he was released only
on 16.03.2022, which is much beyond the permissible period of sentence
in terms of the said judgment dated 19.07.2018. In other words, he served
out the period of permissible period of imprisonment on the basis of the
judgment dated 19.07.2018. The appellant is a youth and he suffered              D
long and illegal deprivation of fundamental rights besides the mental agony
and pain on account of such extra, illegal detention. Is it not a case
inviting a consequential or incidental order that may be just or proper. In
the decision of Ambica Quarry Works Vs. State of Gujarat (AIR 1987
SC 1073), this court held that ‘all interpretations must subserve and
                                                                                 E
help implementation of the intention of the Act’. This possession is
applicable while interpreting any provision in any statute especially when
the power under that provision is conferred to pass orders that may be
just or proper.
        19. It is also apposite to refer to the decision of this court in A.R.   F
Antulay V. R.S. Nayak [(1988) 2 SCC 602] in the context of this
case. Going by the same this Court can grant appropriate relief when
there is some manifest illegality or where some palpable injustice is shown
to have resulted. Such a power, going by the decision, can be traced
either to Article 142 of the Constitution of India or powers inherent as
guardian of the Constitution.                                                    G

       Without making any observation as to his civil remedy, we think it
only just and proper to pass an order granting compensation to the tune
of Rs.7.5 Lakhs (Rupees Seven Lakhs and Fifty Thousand) to be paid
by the State holding that it is vicariously liable for the act/omission
                                                                                 H
1190              SUPREME COURT REPORTS                          [2022] 7 S.C.R.


 A     committed by its officers in the course of employment. We also make it
       clear that while holding the State vicariously liable as above the State
       must have recourse against the erred officer(s).
              The appeal is disposed of in the above terms.

 B            Pending applications, if any, stand disposed of.


       Ankit Gyan                                                 Appeal disposed of.
       (Assisted by : Rahul Rathi, LCRA)


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