Beyond Rumors!

We as humans enjoy gossip. This is natural. This habit is omnibus and so banal that people not having slightest conversance with subject matter make statements and give opinion - many times on blogs, news sites etc.

Recently political atmosphere has heated up with ex minister Amit Shah joining the brigade of accused involving very serious offenses. Mr. Shah is from BJP - ruling party of the Gujarat State Government and had to step down off late recently.

The BJP claims that the investigation is Congress sponsored (a rival party to BJP and ruling the Central Government). The CBI is being misused says BJP. The Congress in turn responded by saying it had nothing to do with the issue and what happened has hapened on directions of Supreme Court of India.

The question is - What did Supreme Court say in the matter?

Answer can be found from the reportable judgment given and reproduced hereunder. For those interested beyong rumors and street gossips, the judgment is produced hereunder.

Speaking while standing apart from political stochasticity - for a moment all those not connected with politics must realize importance of respecting verdict of Supreme Court and following what it said. Politicians as they are - will remain what they and they cut across all party lines. So let us read and understand - what the Court stated.

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO.6 OF 2007

Rubabbuddin Sheikh ...Petitioner

Versus

State of Gujarat & Ors. ...Respondents

WITH

WRIT PETITION (CRL.) NO.115 OF 2007

WITH

CONTEMPT PETITION (CRL.)NO.8 OF 2007 IN WRIT PETITION (CRL.)
NO.6 of 2007


JUDGMENT

TARUN CHATTERJEE, J.

1. Acting on a letter written by the writ petitioner,

Rubabbuddin Sheikh, to the Chief Justice of India about the

killing of his brother, Sohrabuddin Sheikh in a fake encounter

and disappearance of his sister-in-law Kausarbi at the hands

of the Anti Terrorist Squad (ATS) Gujarat Police and Rajasthan

Special Task Force (RSTF), the Registry of this Court

forwarded the letter to the Director General of Police, Gujarat


to take action. This letter of the Registry of this Court was

issued on 21st of January, 2007. After about six months and

after several reminders, the Director General, Police, Gujarat,

directed Ms. Geetha Johri, Inspector General, Police (Crime),

to inquire about the facts stated in the letter. A case was

registered as Enquiry No. 66 of 2006. From 11th of September,

2006 to 22nd of January, 2007 four Interim Reports were

submitted by one V.L. Solanki, Police Inspector, working

under Ms. Johri.

2. In the present writ petition, the writ petitioner seeks a

direction for investigation by the Central Bureau of

Investigation (in short the `CBI') into the alleged abduction and

fake encounter of the brother of the writ petitioner

Sohrabuddin by the Gujarat Police Authorities. The writ

petitioner also seeks the registration of an offence and

investigation by the CBI into the alleged encounter of one

Tulsiram, a close associate of Sohrabuddin, who was allegedly

used to locate and abduct Sohrabuddin and his wife Kausarbi,

and was thus a material witness against the Police personnel.




The writ petitioner further seeks a writ of habeas corpus to

produce Kausarbi, the sister-in-law of the writ petitioner.

3. As noted herein above, out of the four interim reports

submitted by one V.L.Solanki, Police Inspector, working under

Ms. Johri, only one report was submitted initially in this

Court. It was only on 16th of May, 2007 that the other three

reports were submitted.

4. In the Report submitted on 12th of May, 2007, by

Ms.Johri, it has been stated as follows:

"However, based on the statement of various
witnesses and subsequent identification of the
photographs of Sohrabuddin and Kausarbi taken
by Inquiry Team of CID Crime there appears to
be some discrepancy regarding the presence of
Sohrabuddin and Kausarbi at Hyderabad and
Ahmedabad which needs to be further enquired
into. Further enquiry also needs to be conducted
with regards (1) who were the persons who
claimed to be police who picked up the three
passengers namely Sohrabuddin, Kausarbi and
third unknown person. (2) what happened to
Kausarbi after 22.11.2005 when the so-called
police personnel took her off the bus."


5. In the same report, Ms. Johri sought permission to

interrogate one Tulsiram who was at that time in Rajasthan

Jail. From the record, it appears that on 27th/28th of


December, 2006, an FIR was lodged in which it was stated

that when Tulsiram was sent on transit remand from

Rajasthan to Gujarat, two armed persons rescued him at gun

point and fled with Tulsiram. In the said FIR, it has been

alleged that while search was launched to locate Tulsiram

early in the next morning, he, along with two other persons,

was spotted on a highway trying to stop a matador van. It has

also been alleged, that one of the police officers who was

following the matador in which Tulsiram was traveling,

accosted him, upon which Tulsiram was said to have fired at

the Police officer and the bullet was said to have hit the

mudguard of the vehicle. The Police Officers were said to have

fired at Tulsiram in self-defence, killing him. However, the

other two persons somehow managed to escape in the

darkness.

6. One Mr. Raigar, Additional Director General of Police and

Head of CID Gujarat Police who was in-charge of the

investigation on the incident of death of Sohrabuddin and

disappearance of Kausarbi was replaced by one Mr. O.P.




Mathur, Additional Director General of Police (prison) who was

given an additional charge as Head of CID.

7. Ms. Johri was replaced by Mr. Rajneesh Rai, Deputy

Inspector General, as an Investigating Officer in respect of the

fake encounter relating to the incident of Sohrabuddin's case

and disappearance of Kausarbi.


8. The Writ Petitioner had, on an earlier occasion, filed a

petition under Article 32 of the Constitution of India, praying

for a direction to the Gujarat police to produce Kausarbi and

for a fair and impartial investigation in both the episodes by

the CBI so that the matter goes beyond the influence of the

local police. On the said application, while issuing a notice to

the Union of India, this Court on 22nd of January 2007

requested Mr. Gopal Subramanium, learned Addl. Solicitor

General for India, (as he then was) who was present in the

Court, to take instructions in the matter, in the meantime.


9. Subsequently, by another order dated 19th of March

2007, this Court issued a notice to the State of Gujarat which

was made returnable on 23rd of March 2007. It is evident from


the said order that the State of Gujarat was asked to produce

the relevant records on 23rd of March 2007. When the matter

came up before it on 23rd of March 2007, the learned senior

counsel for the respondent State submitted that as regards

some of the police officers who were involved in the alleged

acts, some of the details were collected by the State and after

the full details were available further action would be taken in

the matter. It was also submitted that the State would be

writing to the Government of Madhya Pradesh for giving

protection to the writ petitioner, residing at Village Jharnia

Sheikh, Dist Ujjain, M.P. Three weeks time was granted to the

State to file a report in a sealed cover. In the meantime, the

report submitted by the Additional Solicitor General for India,

(as he then was), was perused and placed on record. The

matter came up again on 20th of April 2007 for consideration

before this Court. A week's time was granted to enable the

State of Gujarat to make submissions on the report submitted

by Additional Solicitor General for India (as he then was), a

copy of which was ordered to be supplied to the learned

Counsel for the State of Gujarat and other parties.
10. On 27th of April 2007, the State of Gujarat submitted an

interim report on the investigation conducted by them in

pursuance of the orders of this Court dated 22nd of January,

2007, 19th of March 2007, 20th of March, 2007 and 23rd of

April 2007.


11. At that point of time, it was submitted by the learned

counsel for the State of Gujarat before this Court that if some

more time was granted, a comprehensive status report or

Action Taken Report could be submitted before this Court. The

learned Attorney General for India submitted that in view of

the serious nature of the offence in which some highly placed

police officials of the State of Gujarat were alleged to have been

involved, orders may be immediately passed directing the CBI

to take charge of the investigation and report to this Court.


12. This Court, by an order dated 3rd of May, 2007 ordered

that some more time may be granted to the State of Gujarat

before any further action was taken in the matter. However,

after going through the Interim Report of the Additional

Solicitor General and also the Interim Status Report filed by


the State of Gujarat, this Court held the view that a prima

facie case was made out for issuance of a Rule Nisi calling

upon the Union of India and the State of Gujarat to show

cause why the order prayed for should not be granted and also

as to why a writ of Habeas Corpus should not be issued to

produce Kausarbi in Court. At that stage, learned senior

counsel appearing for the State of Gujarat brought to the

notice of the court that the body of Kausarbi was disposed of

by burning it in village Illol, Sabarkantha District', which fact

was brought on record in the Action Taken Report No. 3

submitted on 30th of April, 2007. In that view of the matter at

that stage, this Court restrained itself from issuing a formal

writ. The State of Gujarat was directed to submit the final

status report within two weeks from that date. An allegation

was made that Ms.Johri was taken off the investigation for

some reasons best known to the State Authorities. The State of

Gujarat was directed to submit a report in that regard also.


13. When the matter came up for hearing before this Court

on 17th of May, 2007, Learned Attorney General for India



again submitted before us that this was a fit case where this

Court should pass an order directing handing over the

investigation from the State Investigating Agency to CBI as the

investigation would not only be made in the State of Gujarat,

but also in the States of Andhra Pradesh and Rajasthan and

for such investigation, cooperation of the State of Rajasthan

and State of Andhra Pradesh and their high police officials

may be required. Therefore, according to Attorney General for

India, it would be difficult for the Investigating Agency of the

State of Gujarat to make proper and thorough enquiry and

submit a report to this Court. Mr. Ahmadi, learned counsel

appearing on behalf of the writ petitioner also submitted that

this Court should direct the CBI to take over the investigation

at the same time permitting Ms.Johri and Mr. Rajneesh Rai to

make the investigation jointly and submit a report to this

Court. Mr. Gopal Subramanium, learned Addl. Solicitor

General for India (as he then was) also agreed with the

submissions of Mr.Ahmadi that it was a fit case for handing

over the investigation to CBI from the State of Gujarat.




14. From the Action Taken Report No. 4 submitted before

this Court on 14th of May, 2007, it was found that the

assistance of Directorate of Forensic Science, Gujarat State,

and BJ Medical College, Ahmedabad has been sought to

obtain advice on the exhibits collected from the scene of

offence. Permission of the Court was also sought for

microanalysis and other related tests in case of the accused

namely, (1) Shri D.B. Vanzara, IPS, Ex-DIG of Police, Border

Range, Kutch-Bhuj, (2) Shri Rajkumar Pandyan, Ex-SP, CID,

IB and (3) Shri Dinesh MN, IPS, SP, Alwar, Rajasthan. The

application was pending then. In Action Taken Report No. 4, it

was also stated that efforts were being made to arrest the

remaining accused officers and men against whom there was

prima facie evidence. Efforts were being made to trace the

remains of Kausarbi. A well where reportedly the remains of

Kausarbi were disposed of was dug up and samples collected

were sent to Forensic Science Laboratory, Gandhinagar for

further analysis and for comparison with the soil samples

taken from the scene where the body of Kausarbi was alleged

to have been disposed of by burning at Illol Village,


Sabarkanta District, in the State of Gujarat. From the Action

Taken Report No. 4 it appeared that the following

investigations were still awaited:


a. Andhra Pradesh Police Personnel who helped the

ATS, Gujarat in picking up the accused was yet to be

identified. Cooperation of DGP & IGP, Andhra Pradesh

was enlisted in this regard.


b. Apprehension of accused of Rajasthan for which

help of DGP & IGP Rajasthan was enlisted.


c. Reports from Directorate of Forensic Science,

Gujarat State.


d. Identification of the farm house to which Kausarbi

was shifted and method by which she might have died

and those involved in the crime, if any.


15. From the aforesaid report, it also appeared that the

charge sheet shall be filed as soon as the evidence came on

record. It was observed by this Court at that point of time that

on a perusal of the materials already brought on record, it was

difficult to conclude at that stage that the investigation was

not proceeding towards correct direction. At that stage, we did

not find it appropriate to direct the State of Gujarat to include

Mr. Raigar with Ms. Johri for completing the investigation.


16. At that stage, it was submitted before this Court by the

learned senior counsel appearing for the state of Gujarat that

the final report would be submitted within four to six weeks

from 15th of May, 2007.


17. Fifth Action Taken Report was dated 2nd of July, 2007. In

this report, taking a departure from what was stated in the

Fourth Action Taken Report, Ms.Johri stated that the Andhra

Pradesh Police authorities had denied any official involvement

of Andhra Pradesh Police Personnel. Examining 194 witnesses,

they had been able to array another six persons as accused.

Against the order of the Metropolitan Court rejecting

permission of the Court for conducting the NARCO Analysis

test of six accused persons, an appeal had been filed in the

Sessions Court.


18. The body of Kausarbi was cremated on 29th of November,

2005 in Illol village. The assistance of Directorate of Forensic

Science was sought to establish whether soil samples collected

from Illol village contained any remains of a human body. As

per FSI dated 28th of May, 2007, nothing incriminating was

found.

19. The investigation was pending with respect to i) Arrest of

two police personnel ii) To establish the identity of Andhra

Pradesh Police personnel who might have unofficially helped

ATS officials.

20. Charge sheet was proposed to be filed within prescribed

time frame against the accused who was arrested.

21. On 16th of July, 2007, this Court directed that a copy of

the charge sheet must be supplied to the Addl. Solicitor

General for India (as he then was) after taking note of the fact

that the 6th Action Taken Report dated 14th of July, 2007 was

filed in court. This Report reiterated the stand that no official

assistance was rendered by Andhra Pradesh Police to ATS

Gujarat. Charge sheet had been filed in the Court of Chief

Metropolitan Magistrate against 13 accused for Criminal

Conspiracy, abduction, wrongful confinement, murder etc. 13

have been arrested. One of the 13 accused whose names had

been listed is one Mr. N.V. Chauhan, PSI who, in the previous

ATR, had been mentioned as yet to be arrested. However, the

name of one Mr. Jadeja, Driver PC who was also supposed to

be arrested as per previous ATR, did not appear among the

names of the accused who were arrested. Evidently, he had

not been charge sheeted.

22. The motives for killings was attributed as "name, fame

and promotion", in case of Sohrabuddin's death and

"destruction of evidence", in Kausarbi's case.

23. The report expressly states that no link of Tulsiram

Prajapati had been established in this case. The third person

who was abducted was not to be said Tulsiram Prajapati.

24. Ms.Johri also stated that the investigation had been

carried on in a fair and impartial manner under her direct

supervision.

25. It was stated that the writ petitioner did not cooperate

with the investigation. It is also stated that copies of ATR

cannot be supplied as the same would help the accused.

26. On 2nd of August, 2007, the Seventh Action Taken Report

was filed, which stated that the third person who was picked

up was one Kalimuddin, who was suspected to be an informer

of Police. He could be hiding somewhere, unharmed. It again

detailed the efforts of the State CID (Crime) to make sure that

none of the accused goes scot-free. Accused Police Officers,

irrespective of their rank, had been arrested. They were

suspended or transferred to avoid their interference with the

case. Police personnel themselves had deposed against the

accused Police officers. No anticipatory bail was granted to any

of the accused.

27. Mr. Jadeja was the one who had first revealed the name

of N.K.Amin on 26th of April, 2007.

28. The accused had challenged subjecting them to NARCO

analysis and the matter was pending before the Court. The

Report submitted that analyzing the voluminous details of the

calls made by the accused, collected from various service

providers, would take time. It was also urged that the Habeus

Corpus filed by Rubabbuddin Sheikh does not survive as

Kausarbi's body was found to be cremated.

29. On 15th of September, 2008, Ms. Johri filed the Eighth

Action Taken Report. It mentioned that a supplementary

charge sheet was filed on 10th of December, 2007. It also

detailed the status of bail applications rejected or pending. The

Writ Petitioner filed an application in the Sessions Court,

which was partly allowed and the Investigating Officer Police

Inspector Shri. D.H.Trivedi, was directed to carry out further

investigation under Section 173(8) of the Code of Criminal

Procedure within 90 days.

30. The details of communication between the witnesses and

the owner of the Crane which was sent to pull out the tempo

which got bogged while carrying firewood for the cremation of

Kausarbi's body were revealed. The call details revealed the

movements of the accused, their connection between each

other, and the wrongful confinement of Kausarbi and

Sohrabbuddin in Disha farm.

31. In order to establish motive as mentioned in the charge

sheet, details of 15 criminal cases in which Sohrabbuddin was

involved were collected. Efforts were still made to trace

Kalimuddin and to identify the Police officers and men of

Andhra Pradesh who had allegedly helped the accused though

no involvement of the Police Personnel of Andhra Pradesh was

suspected. On the question of NARCO Analysis, the matter

was heard by this Court and the judgment was kept reserved.

FSL Gujarat had stated that NARCO Analysis would be

conducted only with the consent of the accused. The

Investigating Officer was asked to move the High Court in the

matter.

32. After eight Action Taken Reports were submitted and

objections thereto were also filed by the parties, the writ

petition came up for final hearing for the purpose of deciding

whether in the facts and circumstances of the present case, it

would be just and proper to transfer the case to the CBI

Authorities for the purpose of investigation into the allegations

made on behalf of the writ petitioner. On this aspect of the

matter, we have heard Mr.Dushyant Dave, learned senior

counsel for the writ petitioner and Mr.Gopal Subramanium,

learned Solicitor General for India, who appeared as Amicus

Curiae and Mr.Mukul Rohtagi, learned senior counsel for the

State of Gujarat and other learned counsel appearing for the

parties. After hearing the learned senior counsel and after

going through the eight Action Taken Reports and other

materials on record, two questions were articulated by the

learned counsel for the parties - one is whether after the

charge sheet was submitted by the police and the trial was

going on, under that circumstances whether the investigation

can be transferred to the CBI Authorities. Secondly, it was

argued that in respect of the fact that eight Action Taken

Reports were submitted but from the said reports, it would be

clear that the Police Authorities of the State of Gujarat were

not taking proper action in the matter although some of their

high police officials were taken to custody. Therefore, let us

first consider the first question, namely, whether investigation

can be transferred to CBI Authorities or any other independent

agency when the charge sheet has already been submitted. In

support of his contention that the investigation can be

transferred to the CBI Authorities when the charge sheet in

the criminal proceeding was already filed, reference was made

to in Kashmeri Devi vs. Delhi Administration & Anr. [AIR

1988 SC 1323] by the learned senior counsel for the writ

petitioner. He also relied on a decision of this court in the case

of Inder Singh vs. State of Punjab & Ors. [1994 (6) SCC

275] in which this Court held that the enquiry should be

transferred to the CBI Authorities for investigation in view of

the fact that the police authorities had not been able to locate

the whereabouts of the abducted persons. Therefore, these

decisions were cited by the learned counsel for the writ

petitioner to show that even after the charge sheet has been

filed in the Court of Competent Jurisdiction, this Court is

empowered to direct the CBI Authorities or any other

independent agency to take over the investigation from the

police authorities. The learned counsel for the writ petitioner

also placed strong reliance on a decision of this Court in the

case of Gudalure M.J.Cherian & Ors. vs. Union of India

[1992 (1) SCC 397] from which it also appears that although

the charge sheet was filed in that case, this Court directed the

CBI to hold further investigation in respect of the offence so

committed. Similar is the question raised in P & H High

Court Bar Association vs. State of Punjab & Ors. [AIR 1994

SC 1023] in which case also the investigation was handed over

to the CBI Authorities after the charge sheet was submitted in

the court. While making such order, this Court observed :

"The High Court was wholly unjustified in closing
its eyes and ears to the controversy which had
shocked the lawyer fraternity in the Region. For
the reasons best known to it, the High Court
became wholly oblivious to the patent facts on the
record and failed to perform the duty entrusted to
it under the Constitution. After giving our
thoughtful consideration to the facts and
circumstances of this case, we are of the view that
the least the High Court could have done in this
case was to have directed an independent
investigation/enquiry into the mysterious and
most tragic abduction and alleged murder of
Kulwant Singh, Advocate and his family.

We are conscious that the investigation
having been completed by the police and
charge-sheet submitted to the court, it is not
for this Court, ordinarily, to reopen the
investigation. Nevertheless, in the facts and
circumstances of the present case, to do
complete justice in the matter and to instill
confidence in the public mind it is necessary,
in our view, to have fresh investigation in
this case through a specialised agency like
the Central Bureau of Investigation (CBI)."


33. Accordingly, the learned senior counsel appearing for the

writ petitioner submitted that even if the charge sheet was

submitted it was still open to the court to direct investigation

to be made by the CBI Authorities and accordingly in view of

the above position in law, this Court, considering the facts and

circumstances of the present case, should direct the CBI

Authorities to investigate the offences alleged to have been

committed by some of the police authorities of the State of

Gujarat and submit a report if this Court is of the view that

the State Police Authorities who had already filed eight Action

Taken Reports had not done such investigation in the proper

direction nor had they investigated in a fair and proper

manner.

34. This submission of the learned senior counsel for the writ

petitioner was hotly contested by Mr.Mukul Rohtagi, learned

senior counsel who appeared for the State of Gujarat.

According to Mr. Rohtagi, after the charge sheet was

submitted in court, it was not open to the court to hand over

the investigation to the CBI or any other independent agency

and in support of that contention a decision of this Court in

the case of Vineet Narayan & Ors. vs. Union of India [1996

(2) SCC 199] was relied on. In this decision, this Court

observed:



"In case of persons against whom a prima facie
case is made out and a charge-sheet is filed in the
competent court, it is that Court which will then
deal with that case on merits, in accordance with
law.
However, if in respect of any such person the
final report after full investigation is that no prima
facie case is made out to proceed further, so that
the case must be closed against him, that report
must be promptly submitted to this Court for its
satisfaction that the authorities concerned have
not failed to perform their legal obligations and
have reasonably come to such conclusion. No such
report having been submitted by the CBI or any
other agency till now in this Court, action on such
report by this Court would be considered, if and
when that occasion arises."


35. Subsequent to the aforesaid decision of this Court,

another decision of this Court, namely, Union of India vs.

Sushil Kumar Modi [1998 (8) SCC 661] was relied on by

Mr.Rohatgi, learned senior counsel in which this Court

observed after considering and following the decision in Vineet

Narayan's case that once a charge sheet is filed, the

adequacy or otherwise of the charge sheet and the

investigation cannot be gone into by this Court under Article

32 of the Constitution of India and the only remedy which can

be pursued if any aggrieved party feels that in some areas the


investigation is inadequate is an application under Section

173 (8) of the Code of Criminal Procedure. This Court observed

as follows:


"This position is so obvious that no discussion of
the point is necessary. However, we may add that
this position has never been doubted in similar
cases dealt with by this Court. It was made clear
by this Court in the very first case, namely, Vineet
Narain v. Union of India that once a chargesheet is
filed in the competent court after completion of the
investigation, the process of monitoring by this
Court for the purpose of making the CBI and other
investigative agencies concerned perform their
function of investigating into the offences
concerned comes to an end and thereafter it is
only the Court in which the charge sheet is filed
which is to deal with all matters relating to the
trial of the accused including matters falling
within the scope of Section 173(8) of the Code of
Criminal Procedure. We make this observation
only to reiterate this clear position in law so that
no doubts in any quarter may survive. It is
therefore clear that the impugned order of the High
Court dealing primarily with this aspect cannot be
sustained."


36. Another decision of this Court which was strongly relied

on by Mr.Mukul Rohatgi, learned senior counsel appearing for

the State of Gujarat is the decision in Rajiv Ranjan Singh

`Lalan' (VIII) and Anr. Vs. Union of India & Ors. [2006 (6)


SCC 613]. In this decision referring to the case of Sushil

Kumar Modi (supra) and Vineet Narayan (supra), this court

held :

"It is thus clear from the above judgment that once
a charge-sheet is filed in the competent Court after
completion of the investigation, the process of
monitoring by this Court for the purpose of making
CBI and other investigative agencies concerned
perform their function of investigating into the
offences concerned comes to an end and
thereafter, it is only the Court in which the charge-
sheet is filed which is to deal with all matters
relating to the trial of the accused including
matters falling within the scope of Section 173(8).

We respectfully agree with the above view
expressed by this Court. In our view, monitoring of
pending trial is subversion of criminal law as it
stands to mean that the Court behind the back of
the accused is entering into a dialogue with the
investigating agency. Therefore, there can be no
monitoring, after the charge sheet is filed."



37. Mr.Rohatgi, learned senior counsel appearing for the

State of Gujarat had then drawn our attention to another

decision of this Court in the case of Hari Singh vs. State of

U.P. [(2006) 5 SCC 733] in which it was held that when there

is a remedy provided under the Code of Criminal Procedure,



1973, the CBI Authorities cannot be directed to investigate

into the matter.

38. Before we take up the decisions cited at the Bar from the

side of the writ petitioner, we may deal with the decisions cited

by Mr.Rohatgi, learned senior counsel appearing for the State

of Gujarat. The first decision is Vineet Narayan (supra). In

that case, it was alleged that the CBI and the Revenue

Authorities had failed to perform their duties and legal

obligations inasmuch as the investigation into "Jain Diaries"

seized in raids conducted by the CBI is concerned.

39. From a careful examination of this decision of this Court

relied on by the learned senior counsel appearing for the

respondent, we are not in a position to say that the said

decision has clearly held that after the charge sheet is

submitted, the question of handing over the investigation of

the criminal case to the CBI cannot arise at all. From that

decision, it is clear that the CBI and the Revenue Authority

had failed to perform their duties and legal obligations

inasmuch as the investigation into `Jain Diaries' seized in

raids conducted by the CBI was concerned. Therefore, we are

unable to accept the contention of Mr.Rohatgi that this

decision can at all help the State of Gujarat to substantiate

their argument that after the charge sheet is filed in court,

there was no question that the investigation cannot be handed

over to the CBI authorities. So far as the decision cited by

Mr.Rohatgi in Union of India vs. Sushil Kumar Modi (supra)

is concerned, it is clear that the said decision was rendered

following the decision in the case of Vineet Narayan (supra).

In view of our discussions made in respect of the Vineet

Narayan's case, we do not think that any advantage could be

taken by the State of Gujarat to hold that after the charge

sheet is submitted it was not open for the court to hand over

the investigation to an independent agency.

40. In Vineet Narayan's case (supra), the fact was that the

investigation was already with the CBI Authorities and in that

investigation charge sheet was submitted. In that context, this

Court observed that once the charge sheet has been

submitted, the CBI Authorities cannot approach the High

Court for issuance of directions in such investigation where

the charge sheet was already submitted.

41. In Sushil Kumar Modi (supra), we find that the

investigation was also with the CBI and charge sheet in that

investigation was submitted, therefore, this Court in Sushil

Kumar Modi(supra) observed that there was no occasion for

any of the officer of the CBI to approach the High Court or for

the Division Bench of the High Court to issue any directions,

oral or otherwise, for seeking the aid of the army for execution

of the warrant against Shri Lalu Prasad Yadav. Again in Para 7

of the decision in Sushil Kumar Modi's case (supra), it would

be evident that the CBI Authorities were investigating the

offences and that is the reason this Court observed that after

the charge sheet was filed, no directions can be taken by the

CBI Authorities or its officers from the High Court or this

Court as the case may be. This is not the case before us. It is

true that in the present case, the charge sheet has already

been submitted but that does not debar, in our view, this

court from handing over the investigation to the CBI

Authorities.

42. So far as Rajiv Ranjan Singh's case (supra) which was

relied on by Mr.Mukul Rohatgi, learned senior counsel for the

State of Gujarat, is concerned, we find that this decision was

also rendered relying on Sushil Kumar Modi's case (supra)

and Vineet Narayan's case (supra) as noted herein earlier. In

that case also, the process of monitoring by this Court for the

purpose of making the CBI investigating agency perform their

functions and investigate into the offence would come to an

end but it is repeated that in the present case the question is

whether an investigation can be handed over to the CBI

authorities even if the charge sheet is submitted. The question

of monitoring investigation by the CBI Authorities in all the

three cases cited by Mr.Rohatgi in the facts and circumstances

of the present case cannot arise at all.

43. It was next contended by Mr.Rohatgi, learned senior

counsel for the State of Gujarat that it was not open for this

court under Article 32 of the Constitution to direct the CBI

Authorities or any other independent agency to investigate into

the matter when the police authorities are proceeding with the

trial and charge sheet has already been submitted. Therefore,

according to Mr.Rohatgi when there is specific remedy

provided under the Code of Criminal Procedure, 1973, this

Court cannot again direct the CBI to investigate into the

offence alleged by allowing a writ petition under Article 32 of

the Constitution.

44. In support of this contention, reliance was also placed in

the case of Aleque Padamsee & Ors. vs. Union of India &

Ors. [2007 (6) SCC 171].

45. Reliance was also placed in a decision of this Court in

M.C.Mehta vs. Union of India & Ors. [2008 (1) SCC 407]

where this Court held that once the court is satisfied itself that

a proper investigation has been carried out, it would not

venture to take over the functions of the Magistrate or pass

any order which would interfere with its judicial functions.

Accordingly, Mr.Mukul Rohatgi submitted that in the absence

of any error being committed by the police authorities in

conducting the investigation, it would not be proper for this

Court to exercise its power under Article 32 of the Constitution

and direct that the CBI authorities or any other independent

agency should be given the charge of investigating the offence

alleged in this writ petition.



46. Accordingly, Mr.Mukul Rohatgi, learned senior counsel

submitted that in view of the decisions of this Court, it would

not be proper for this Court at this stage, when the

investigation has been carried out by the police without any

blemish, to hand over the investigation to the CBI authorities

or any other independent agency particularly when the charge

sheet has already been submitted.

47. Having heard the learned senior counsel appearing for

the parties and after going through the eight Action Taken

Reports submitted by the Police Authorities before this Court

and after considering the decisions of this Court cited at the

Bar and the materials on record and considering the nature of

offence sought to be investigated by the State Police

Authorities who are themselves involved in such crime, we are

unable to accept that the investigation at this stage cannot be

handed over to the CBI Authorities or any other independent

agency. We have already discussed the decisions cited by

Mr.Mukul Rohatgi, learned senior counsel appearing for the

State of Gujarat and have already distinguished the said cases

and came to a conclusion that those decisions were rendered

when CBI enquiries have already been made and at that stage

this Court held that after the charge sheet is submitted, the

CBI authorities would not be able to approach this Court or

the High Court to have issuance of directions from this Court.

48. In R.S.Sodhi vs. State of U.P. (AIR 1994 SC 38) on

which reliance was placed by the learned senior counsel

appearing for the writ petitioner, this Court observed :

"We have perused the events that have taken
place since the incidents but we are refraining
from entering upon the details thereof lest it may
prejudice any party but we think that since the
accusations are directed against the local police
personnel it would be desirable to entrust the
investigation to an independent agency like the
Central Bureau of Investigation so that all
concerned including the relatives of the deceased
may feel assured that an independent agency is
looking into the matter and that would lend the
final outcome of the investigation credibility.
However, faithfully the local police may carry out
the investigation, the same will lack credibility
since the allegations are against them. It is only
with that in mind that we having thought it both
advisable and desirable as well as in the interest
of justice, to entrust the investigation to the
Central Bureau of Investigation."
(Emphasis supplied)


49. This decision clearly helps the writ petitioner for handing

over the investigation to the CBI Authorities or any other

independent agency. It is an admitted position in the present

case that the accusations are directed against the local police

personnel in which High Police officials of the State of Gujarat

have been made the accused. Therefore, it would be proper for

the writ petitioner or even the public to come forward to say

that if the investigation carried out by the police personnel of

the State of Gujarat is done, the writ petitioner and their

family members would be highly prejudiced and the

investigation would also not come to an end with proper

finding and if investigation is allowed to be carried out by the

local police authorities, we feel that all concerned including

the relatives of the deceased may feel that investigation was

not proper and in that circumstances it would be fit and

proper that the writ petitioner and the relatives of the

deceased should be assured that an independent agency

should look into the matter and that would lend the final

outcome of the investigation credibility, however, faithfully the

local police may carry out the investigation, particularly when

the gross allegations have been made against the high police

officials of the State of Gujarat and for which some high police

officials have already been taken into custody.

50. It is also well known that when police officials of the

State were involved in the crime and in fact they are

investigating the case, it would be proper and interest of

justice would be better served if the investigation is directed to

be carried out by the CBI Authorities, in that case CBI

authorities would be an appropriate authority to investigate

the case. In Ramesh Kumari vs. State (NCT Delhi) & Ors.

[2006 (2) SCC 677], this Court at Paragraph 8 observed :

"...................We are also of the view that since
there is allegation against the police personnel,
the interest of justice would be better served if
the case is registered and investigated by an
independent agency like CBI."


51. In Kashmeri Devi vs. Delhi Administration, (supra),

this court held that in a case where the police had not acted

fairly and in fact acted in partisan manner to shield real

culprits, it would be proper and interest of justice will be

served if such investigation is handed over to the CBI

authorities or an independent agency for proper investigation

of the case. In this case, taking into consideration the grave


allegations made against the high police officials of the State in

respect of which some of them have already been in custody,

we feel it proper and appropriate and in the interest of justice

even at this stage, that is, when the charge sheet has already

been submitted, the investigation shall be transferred to the

CBI Authorities for proper and thorough investigation of the

case. In Kashmeri Devi (supra), this Court also observed as

follows : -

"Since according to the respondent charge-sheet
has already been submitted to the Magistrate we
direct the trial court before whom the charge sheet
has been submitted to exercise his powers under
Section 173(8) Cr. P.C. to direct the Central Bureau
of Investigation for proper and thorough
investigation of the case. On issue of such
direction the Central Bureau of Investigation will
investigate the case in an independent and
objective manner and it will further submit
additional charge sheet, if any, in accordance with
law."


52. In Gudalure M.J.Cherian (supra), in that case also the

charge sheet was submitted but inspite of that, in view of the

peculiar facts of that case, the investigation was transferred

from the file of the Sessions Judge, Moradabad to Sessions

Judge, Delhi. Inspite of such fact that the charge sheet was

filed in that case, this Court directed the CBI to hold further

investigation inspite of the offences committed. In this case at

Page 400 this court observed :

".........................The investigation having been
completed by the police and the charge sheet
submitted to the court, it is not for this court
ordinarily to reopen the investigation specially
by entrusting the same to a specialized agency
like CBI. We are also conscious that of late the
demand for CBI investigation even in police
cases is on the increase. Nevertheless - in a
given situation, to do justice between the
parties and to instill confidence in the public
mind - it may become necessary to ask the CBI
to investigate a crime. It only shows the
efficiency and the independence of the agency."


53. In this connection, we may reiterate the decision of this

Court in the case of P & H High Court Bar Association

(supra) strongly relied on by the learned senior counsel

appearing for the writ petitioner. A reference of the paragraph

of the said decision on which reliance could be placed has

already been made in Para No.32 from which it would be

evident that in order to do complete justice in the matter and

to instill confidence in the public mind, this court felt it



necessary to have investigations through the specialized

agency like the CBI.

54. Therefore, in view of our discussions made hereinabove,

it is difficult to accept the contentions of Mr.Rohatgi learned

senior counsel appearing for the state of Gujarat that after the

charge sheet is submitted in Court in the criminal proceeding

it was not open for this court or even for the High Court to

direct investigation of the case to be handed over to the CBI or

to any independent agency. Therefore, it can safely be

concluded that in an appropriate case when the court feels

that the investigation by the police authorities is not in the

proper direction and in order to do complete justice in the case

and as the high police officials are involved in the said crime,

it was always open to the court to hand over the investigation

to the independent agency like CBI. It cannot be said that after

the charge sheet is submitted, the court is not empowered, in

an appropriate case, to hand over the investigation to an

independent agency like CBI.

55. Keeping this discussion in mind, that is to say, in an

appropriate case, the court is empowered to hand over the

investigation to an independent agency like the CBI even when

the charge sheet has been submitted, we now deal with the

facts of this case whether such investigation should be

transferred to the CBI Authorities or any other independent

agency in spite of the fact that the charge sheet has been

submitted in court. On this ground, we have carefully

examined eight Action Taken Reports submitted by the State

Police Authorities before us and also the various materials

produced and the submissions of the learned counsel for both

the parties. From a careful examination of the materials on

record including the eight Action Taken Reports submitted by

the State Police Authorities and considering the respective

submissions of the learned senior counsel for the parties, we

are of the view that there are large and various discrepancies

in such reports and the investigation conducted by the police

authorities of the State of Gujarat and also the charge sheet

filed by the State Investigating Agency cannot be said to have

run in a proper direction. It appears from the charge sheet

itself that it does not reveal the identity of police personnel of

Andhra Pradesh even when it states that Sohrabbuddin and

two others were picked up by Gujarat Police Personnel,

accompanied by seven personnel of Hyderabad Police. It also

appears from the Chargesheet that Kausarbi was taken into

one of the two Tata Sumo Jeeps in which these police

personnel accompanied the accused. They were not even

among the people who were listed as accused. Mr.Gopal

Subramanium, Addl. Solicitor General for India (as he then

was) was justified in making the comment that an honest

investigating agency cannot plead their inability to identify

seven personnel of the Police Force of the State.

56. From the charge sheet, it also appears that the third

person was `sent somewhere'. However, it appears that the

literal translation of the Chargesheet in Gujarati would mean

that he was `anyhow made to disappear'. From this, we are

also satisfied that an attempt was made by the investigating

agency of the State of Gujarat to mislead the Court. Also there

had been no mention of Accused No. 12 (Dr.N.K.Amin) as a

part of the criminal conspiracy in the charge sheet, who

otherwise finds mention in the original charge sheet.



57. With respect to the killing of Kausarbi, it was only stated

that she was seen in the company of the ATS personnel, on

26th of November, 2005 and her dead body was taken for

cremation on 29th of November, 2005. It is not clear from the

eight Action Taken Reports filed by the police authorities of the

State of Gujarat as to what happened to Kausarbi in the

meanwhile, nor is the mode of killing stated. The investigating

agency of the State of Gujarat has made a false excuse for not

conducting the NARCO Analysis of the accused because a

judgment of this Court is pending on the matter, though the

Sessions Judge had permitted such NARCO Analysis. In our

view, it is merely an excuse for not being able to conduct the

investigation relating to mode and manner of killing of

Kausarbi.

58. It also appears from the charge sheet that it identifies the

third person who was taken to Disha farm as Kalimuddin. But

it does not contain the details of what happened to him once

he was abducted. The possibility of the third person being

Tulsiram Prajapati cannot be ruled out, although the police

authorities or the State had made all possible efforts to show

that it was not Tulsiram. In our view, the facts surrounding

his death evokes strong suspicion that a deliberate attempt

was made to destroy a human witness.

59. So far as the call records are concerned, it would be

evident from the same that they had not been analyzed

properly, particularly the call data relating to three senior

police officers either in relation to Sohrabbuddin's case or in

Prajapati's case. It also appears from the charge sheet as well

as from the eight Action Taken Reports that the motive, which

is very important in the investigation reports was not properly

investigated into as to the reasons of their killing. The motive

of conspiracy cannot be merely fame and name. No

justification can be found for the investigating officer Ms. Johri

walking out the investigation with respect to Tulsiram

Prajapati's death without even informing this Court. That

apart, the charge sheet was filed in the court of Chief

Metropolitan Magistrate, Ahmedabad against 13 persons who

were charge sheeted for criminal conspiracy, abduction,

wrongful confinement and murder etc. 13 were arrested. One

of the 13 accused whose names had been listed is one

Mr.N.V.Chauhan, PSI who in the previous Action Taken

Report, was mentioned as yet to be arrested. However, in the

5th Action Taken Report, the name of Mr.Jadeja, driver (Police

Constable) who was also supposed to be arrested as per

previous Action Taken Report was not appearing among the

names of the accused who were arrested. Evidently, he had

not been charge sheeted. From the above factual discrepancies

appearing in eight Action Taken Reports and from the charge

sheet, we, therefore, feel that the police authorities of the State

of Gujarat had failed to carry out a fair and impartial

investigation as we initially wanted them to do. It cannot be

questioned that the offences the high police officials have

committed was of grave nature which needs to be strictly dealt

with. We have observed that from the record, it was found that

Mr.V.L.Solanki, an investigating officer, was proceeding in the

right direction, but Ms.Johri had not been carrying out the

investigation in the right manner, in view of our discussions

made herein above. It appears that Ms.Johri had not made

any reference to the second report of Solanki, and that though

his first report was attached with one of her reports, the same

was not forwarded to this Court. Therefore, we are of the view

that her mentioning the criminal background of Sohrabbuddin

and the discussion among the accused officers concerning

Sohrabbuddin was meant to obfuscate the enquiry.

60. In our view , the investigation of crime was carried out de

hors the mandate contained in the Cr.P.C. and particularly

Chapter XII containing Section 154-176 of the Code. There had

been no fresh FIR filed despite primary investigation No. 66 to

make the same the basis for investigation and trial. In the case

of Sheikh Hasib alias Tabarak v. The State of Bihar [(1972)

4 SCC 773], it was held that the object of FIR, from the point of

view of the investigating authorities, is to obtain information of

the alleged criminal activity so as to take suitable steps for

tracing and bringing to book the guilty party. Admittedly, the

FIR dated 16th of November, 2005 which was filed following the

alleged encounter was a fabricated one and, therefore, it could

not have formed the basis of the real investigation to find the

truth. Ms. Geeta Johri herself in her report dated 7th of

December, 2006 had conceded that ATS was not a regular

police station in which FIR should have been filed. It was

further submitted that the investigation and charge sheet were

silent on the motive behind the `killings'. The only motive stated

is fame. In the cases of Babu Lodhi v. State of UP (1987) 2

SCC 352 and Prem Kumar and Anr. v. State of Bihar,

(1995) 3 SCC 228, it was held that motive assumes greater

significance in case where the case rests on circumstantial

evidence, as in the present case. That apart, from the Action

Taken Reports submitted by the State Police Authorities, we

also find that the State Police Authorities of the Gujarat had to

take help from the other police officials of other States, namely,

Andhra Pradesh and Rajasthan. If the investigation is

transferred to the CBI Authorities it would be fair and proper

that the other State police officials should also help the CBI

Authorities in coming to a final conclusion on the allegations

made by the writ petitioner and also on the offences alleged to

have committed by some of them.

61. Mr.Rohatgi, learned senior counsel appearing for the

State of Gujarat sought to argue that when the State of

Gujarat had completed free and professional investigation, and

also had filed periodical Action Taken Reports and since the

elaborate charge sheet had also been filed by the State

including all documentary, oral and scientific evidence, along

with the papers pertaining to the preliminary inquiry including

the periodical interim reports submitted by the Inquiry officer

to the Supervisory officer during such inquiry, it would not be

proper for this Court to transfer the investigation to any other

agency. According to Mr.Rohatgi, if this Court finds that the

investigation is incomplete in respect of lacunae in respect of

which other remedies are available, in that case it would be

open to this court to direct further investigation in respect of

lacunae to be filled up by further investigation. This was not

the position in the present case. According to Mr.Rohatgi, a

detailed charge sheet has been filed and subsequent to the

filing of the said detailed charge sheet, a supplementary

charge sheet has also been filed on 10th of December, 2007

with complete evidence including oral, documentary and

scientific evidence to bring home the guilt of the accused

before the Competent Court. Mr.Rohatgi further submitted

that the findings in the Charge-sheet have already been

summarized in the affidavit and the Investigating Agency has

collected voluminous oral & documentary evidence to ensure

that the charges leveled against them are adequately proven.

Further, the investigating agency has also taken steps

including Crime Scene Reconstruction, taking Expert Advice

and Video Recording.

62. Mr.Rohatgi, further submitted that in order to enable this

Court to decide what could be in the interests of justice, the

criminal antecedents of the Sohrabuddin, his father, and his

brother have also been enumerated. It was further submitted

that assistance from the Dept. of Police, Andhra Pradesh was

also received as ordered by this Court. However, the Andhra

Pradesh Police Officers had not been identified. It was urged

that this would not affect the conviction of the accused in any

manner. Similarly, it was submitted that non-identification of

the third person who was abducted along with Sohrabuddin

and Kausarbi would also not affect the prosecution case.

63. Mr.Rohatgi further submitted that since the charge-sheet

has already been filed, it would not be necessary to go into the

preliminary inquiry conducted prior to the registration of the

offence. Giving the aforesaid particulars on the question of

investigation by the State Police Authorities, Mr.Rohatgi

submitted that the enquiry was conducted in an independent

and impartial manner and the investigating team has been

given complete independence with respect to such an enquiry.

64. It was further contended by Mr.Rohatgi that the writ

petitioner approached the competent court under Section

173(8) of the Cr.P.C. in accordance with whose directions,

further investigation was also conducted. The report on such

investigation could not be submitted before this Court because

this Court had stayed the proceedings before the Competent

Court and the report is kept sealed with the Registrar General

of the High Court of Gujarat. The lacunae that the writ

petitioner raised during the oral submissions do not find place

in the application that he filed before the Competent

Authority. Under these circumstances and in view of the

submissions made by Mr.Rohatgi, as noted herein earlier, the

jurisdiction of this Court under Article 32 of the Constitution

would come to an end as soon as a charge sheet is filed after

conducting an investigation under the supervision and

monitoring of this Court.

65. In view of our discussions made herein earlier and the

submissions of the learned senior counsel for the parties and

the Amicus Curiae and keeping in mind the earlier various

directions given by this Court to the Police Authorities of the

State of Gujarat and the materials on record, we are of the

view that although the charge sheet was submitted but

considering the nature of crime that has been allegedly

committed not by any third party but by the police personnel

of the State of Gujarat, the investigation concluded in the

present case cannot be said to be satisfactorily held. We have

already discussed the decisions cited from the Bar on the

question that after the charge sheet being filed whether the

investigation could be handed over to the CBI Authorities or to

any other independent agency from the State police

authorities. We have already distinguished the decisions cited

by the State that they related to the power of the court to

monitor the investigation after the charge sheet was filed. The

scope of this order, however, cannot deal with the power of

this Court to monitor the investigation, but on the other hand

in order to make sure that justice is not only done, but also is

seen to be done and considering the involvement of the State

police authorities and particularly the high officials of the

State of Gujarat, we are compelled even at this stage to direct

the CBI Authorities to investigate into the matter. Since the

high police officials of the State of Gujarat are involved and

some of them had already been in custody, we are also of the

view that it would not be sufficient to instill confidence in the

minds of the victims as well as of the public that still the State

Police Authorities would be allowed to continue with the

investigation when allegations and offences were mostly

against them. In the present circumstances and in view of the

involvement of the police officials of the State in this crime, we

cannot shut our eyes and direct the State Police authorities to

continue with the investigation and the charge sheet and for a

proper and fair investigation, we also feel that the CBI should

be requested to take up the investigation and submit a report

in this Court within six months from the date of handing over

a copy of this judgment and the records relating to this crime

to them.



66. Accordingly, in the facts and circumstances even at this

stage the police authorities of the State are directed to hand

over the records of the present case to the CBI Authorities

within a fortnight from this date and thereafter the CBI

Authorities shall take up the investigation and complete the

same within six months from the date of taking over the

investigation from the State police authorities. The CBI

Authorities shall investigate all aspects of the case relating to

the killing of Sohrabuddin and his wife Kausarbi including the

alleged possibility of a larger conspiracy. The report of the CBI

Authorities shall be filed in this Court when this court will

pass further necessary orders in accordance with the said

report, if necessary.

67. We expect that the police authorities of Gujarat, Andhra

Pradesh and Rajasthan shall co-operate with the CBI

authorities in conducting the investigation properly and in an

appropriate manner.

68. The Registry shall send copies of this judgment forthwith

to the Director, CBI, the Secretary, Ministry of Home



Affairs, Government of India, and the Secretary, Home

Ministry, State of Gujarat.

Writ Petition (Crl.) No.115 of 2007 :-

So far as W.P.(Crl.) No.115 of 2007 is concerned, let this

matter be listed after eight weeks before an appropriate Bench.

Contempt Petition (Crl.) No. 8 of 2007 in Writ Petition
(Crl.) No.6/2007 :-

So far as contempt petition being Contempt Petition (Crl.)

No.8 of 2007 is concerned, we are of the view that in view of

our final order passed in the main writ petition being

W.P.(Crl.)No.6 of 2007, we do not find any reason to proceed

with this contempt application any further. Accordingly, the

contempt petition is disposed of. Notice, if there be any, stands

discharged.

............................J.
[Tarun Chatterjee]



New Delhi; .............................J.
January 12, 2010. [Aftab Alam]

Police, Death in Police Custody and PIL

Question:

Can I write a letter to Supreme Court to file a Public Interest Litigation?

Answer:

Yes. Supreme Court may treat a letter as a petition – if it wants to.

Question:

So it is better to write a letter to Supreme Court rather than going through trouble of filing petitions. Right?

Answer:

Wrong. Don’t expect Supreme Court to deal with every matter as a PIL. In rare cases Supreme Court takes up letters to be treated as a PIL.

Question:

Can you explain about custodial deaths?

Answer:

Well deaths in the custody of police are called custodial deaths.

Question:

Why do custodial deaths happen?

Answer:

Death in police custody may happen on account of any reason just as deaths can happen anywhere. However, we all know (including people who are just not connected with courts or police in any way) that police uses torture as means of extracting information or various other dubious reasons. The police in India uses force, bad treatment, abusive language, threats, physical torture and all such words that can be used to explain inhuman behavior. This leads to custodial deaths.

Question:

Is it lawful for police to torture people?

Answer:

Obviously – it is not lawful for the police to maltreat people; rather courts are very against any inhuman behavior – if they are found (and they are rarely found-out). But the fundamental make-up of courts as institution and police department as institution are basically very different. Courts have empathy and are governed by strict rule of law. The judicial officers (judges) are far more humane, they are highly educated people with a law background and on other side the police authorities particularly on the grass root are brutal.

Question:

I have often heard people say that “Human rights” are non-sense. The activist support criminals while they are demoralizing police in their work. Is that right?

Answer:

It is true to say that many times human rights are pressed with bad intentions on hind side by some people advocating them. It is equally true that police misuses its authority to protect and support real criminals while harassing totally innocent people. If both are compared the “police supported crime” is highly prevalent and “human right supporting crime” is rare. Human rights to the contrary under NHRC are absolutely necessary. You will agree with this if in India you unfortunately mess up with police some day. They will show you how bad they can be with some of their people having great ability to fiddle with law. Remember: when you are fighting against police department – you spend money from your pocket and police uses government money, government transport, government given lawyers.

No body can really have problems if terrorist or real criminals are taken to task. But that does not always happen. In fact real criminals go unabated and most of the time innocent people have to go running from pillar to post. That is what hurts most – particularly to the intelligent and justice loving people. People will have high respect for police authorities – if they become real saviors. But people are full of sarcasm for police just because of various practical experiences they have with Indian Police.

Saying that human rights are non-sense is therefore not true. With the way police authorities are functioning today – human rights are very essential in addition to courts that guard human liberty.

Question:

Is there anybody to check the police atrocities?

Answer:

Yes and no.

If you are strong enough to fight back – police can be restrained. Otherwise - no.

The basic reason behind this is very simple. Most of police authorities (particularly at grass root level) are conditioned to treat people badly. Some of them take corruption as a matter of right. Some allow crimes after accepting bribes. There is a regular wholesaler-retailer like chain in these areas. This it is so normal for them to mistreat people. I have not heard their people (police personnel) regularly receiving training on human psychology (necessary for crime prevention) and other things like human values. They simply do not know any concept of reformative punishments or reformative behavior.

In India there is a joke – it goes like this: An American said their police is so alert that they catch criminals within one hour of crime. A Briton brags that they do same thing within half an hour. An Indian said – you guys are slow. We are aware when a criminal will commit crime even before he has done it.

Second reason why police goes unchecked is slow progression of cases in Indian Courts. Third reasons, is high illiteracy. Fourth reason: fear. People fear police same way as they fear criminals. Even if police calls them or sends them a notice u/s. 160 or 91 – they will just fear. This fear is not ungrounded.

Question:

Can you explain court’s view on custodial death?

Answer:

Broadly answer is simple: Court’s frown very strongly when they find police doing hanky-panky and wrong. This happens too often.

Let us take an example from a prior Supreme Court Judgment in case of Basu Versus West Bengal (for entire judgment text, please refer to prior post). Some newspaper reported regarding custodial death. A public spirited person knowing no other way simply wrote a letter to Supreme Court of India drawing attention of the judge. The Court treated this letter as a PIL and a long spate of legal rounds went thereafter.

Supreme Court framed following guidelines in Basu's case:

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

5. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.

6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is.

7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

8. The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.

9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.

10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

11. A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render his liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.


Note:
The above guidelines (1) through (11) are part of the Judgment of Court. Remember and draw attention of authorities if you find any of the above guidelines not being complied. Not following the above, can lead to contempt of court proceedings. Police should not mistake the word guidelines as optional recommendations. According to court - these requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.


Question:

Are these guidelines being implemented?

Answer:

Yes they are always implemented on paper. In reality – they are mostly implemented! ! ! ! !

But the police custody continues to be a dreaded place for every subject of India, particularly those subjects who are innocent.

Question:

How do the Supreme Court requirements help me, if I want to do anything about custodial death?

Answer:

You get a short cut in that you can straight away apply to high court for contempt and actions on custodial death. The High Court will be obliged to follow the Supreme Court Order. You can also demand departmental actions against police officers who are responsible for custodial death. You can use this judgment to support your legal grounds and factual matrix. Entire text of judgment as stated can be found in prior post.

You get a short cut in that you can straight away apply to high court for contempt and actions on custodial death. The High Court will be obliged to follow the Supreme Court Order. You can also demand departmental actions against police officers who are responsible for custodial death. You can use this judgment to support your legal grounds and factual matrix. Entire text of judgment as stated can be found in prior post.

Question:

Does this apply to cases where there is custodial torture but not death?

Answer:

It may not apply squarely. Never mind – you still have option to fight back using the broader sense given in the judgment and ask for departmental inquiry and personal complaints against police officers joining them as party in personal capacity through routine complaint route via trial court. Kindly note that it is not as easy as it sounds while you fight in the battle ground. Personal complaints make police officers more vindictive. So when you take such legal actions, make sure you are well prepared with sufficient legal material for a sound case. Talk to your lawyer openly, prepare points and work with a responsive lawyer who is willing to explain things to your satisfaction. During your first meeting with your lawyer – make your expectations out of him very clear.


Question:

I have a similar case; can you study my papers and help me? Can you provide me judgment of XYZ Court in ABC Versus EFG?

Answer:

I cannot - please read “Specific Note” below "End Note" hereunder.

End Note:

I have received a lot from internet community and I feel I owe to this community what it gave me.

In my initial days of career, I was secretive about what I learnt. For example: if I spotted a great book that explains criminal law - I would not share the book with my friends fearing they may learn things just as easily as I could. I refrained from sharing and always opted to get knowledge from others. It is more than 10 years now as I was then. Over a period of time as my maturity continuum grew and as I have seen other people do wonderful work on internet, I have found that my knowledge is essentially not mine, it is built on lot of peoples' experience, their teaching and their kindness to enlighten me on various thought processes. So why hold and stagnate what is not mine essentially. Why not let knowledge flow? It is this process that taught me - "Knowledge Sharing" is power. If I do not share- I am a biggest loser. If I share - I get greatest benefit. So even from pure selfish point of view, sharing is essential. Without sharing "knowledge" is of no use. Without sharing- this world would be a bad place to live. Now therefore I have become a strong proponent of open source, sharing and a patent-free world.

Thanks to every netizens who have unknowlingly always helped me when-ever I wanted information of any type.

In my humble attempt - I have written this post. I also recommend the reader to share his / her experience on internet so that togeather - we can make a beautiful world.

SPECIFIC NOTE:

It is clarified that author of this blog is not available for any professional work to "non-lawyer clients" or "lawyers / solicitors without prior references" and neither gives any counsel on case-by-case basis to direct clients. Not making any inquiry is therefore highly recommended.

Shri D.K. Basu,Ashok K. Johri vs State Of West Bengal,State Of U.P on 18 December, 1996

PETITIONER:

SHRI D.K. BASU,ASHOK K. JOHRI

Vs.

RESPONDENT:

STATE OF WEST BENGAL,STATE OF U.P.

DATE OF JUDGMENT: 18/12/1996

BENCH:

KULDIP SINGH, A.S. ANAND

ACT:

HEADNOTE:

JUDGMENT:

WITH

WRIT PETITION (CRL) NO. 592 OF 1987

J U D G M E N T

DR. ANAND, J.

The Executive Chairman, Legal Aid Services, West Bengal, a non-political organisation registered under the Societies Registration Act, on 26th August, 1986 addressed a letter to the Chief Justice of India drawing his attention to certain news items published in the Telegraph dated 20, 21 and 22 of July, 1986 and in the Statesman and India express dated 17th August, 1986 regarding deaths in police lock-ups and custody. The Executive Chairman after reproducing the new items submitted that it was imperative to examine the issue in depth and to develop "custody jurisprudence" and formulate modalities for awarding compensation to the victim and/or family members of the victim for attrocities and death caused in police custody and to provide for accountability of the efforts are often made to hush up the matter of lock-up deaths and thus the crime goes unpunished and "flourishes". It was requested that the letter alongwith the new items be treated as a writ petition under "public interest litigation" category. Considering the importance of the issue raised in the letter being concerned by frequent complaints regarding custodial violence and deaths in police lock up, the letter was treated as a writ petition and notice was issued on 9.2.1987 to the respondents.

In response to the notice, the State of West Bengal filed a counter. It was maintained that the police was no hushing up any matter of lock-up death and that whereever police personnel were found to be responsible for such death, action was being initiated against them. The respondents characterised the writ petition as misconceived, misleading and untenable in law.

While the writ petition was under consideration a letter addressed by Shri Ashok Kumar Johri on 29.7.87 to the Hon'ble Chief Justice of India drawing the attention of this Court to the death of one Mahesh Bihari of Pilkhana, Aligarh in police custody was received. That letter was also treated as a writ petition and was directed to be listed alongwith the writ petition filed by Shri D.K. Basu. On 14.8.1987 this Court made the following order :

"In almost every states there are

allegations and these allegations

are now increasing in frequency of

deaths in custody described

generally by newspapers as lock-up

deaths. At present there does not

appear to be any machinery to

effectively deal with such

allegations. Since this is an all

India question concerning all

States, it is desirable to issues

notices to all the State

Governments to find out whether

they are desire to say anything in

the matter. Let notices issue to

all the State Governments. Let

notice also issue to the Law

Commission of India with a request

that suitable suggestions may be

returnable in two months from

today."

In response to the notice, affidavits have been filed on behalf of the States of West Bengal, Orissa, Assam Himachal Pradesh, Madhya Pradesh, Harayana, Tamil Nadu, Meghalaya , Maharashtra and Manipur. Affidavits have also been filed on behalf of Union Territory of Chandigarh and the Law Commission of India.

During the course of hearing of the writ petitions, the Court felt necessity of having assistance from the Bar and Dr. A.M. Singhvi, senior advocate was requested to assist the Court as amicus curiae.

Learned counsel appearing for different States and Dr. Singhvi, as a friend of the court. presented the case ably and though the effort on the part of the States initially was to show that "everything was well" within their respective States, learned counsel for the parties, as was expected of them in view of the importance of the issue involved, rose above their respective briefs and rendered useful assistance to this Court in examining various facets of the issue and made certain suggestions for formulation of guidelines by this court to minimise, if not prevent, custodial violence and kith and kin of those who die in custody on account of torture.

The Law Commission of India also in response to the notice issued by this Court forwarded a copy of the 113th Report regarding "injuries in police custody and suggested incorporation of Section 114-B in the India Evidence Act." The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the citizens. Custodial violence, including torture and death in the lock ups, strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society. These petitions raise important issues concerning police powers, including whether monetary compensation should be awarded for established infringement of the Fundamental Rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental. "Torture" has not been defined in 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 wit the darker side of human civilisation.

"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 not way to

heal it. Torture is anguish

squeezing in your chest, cold as

ice and heavy as a stone 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

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 inspite of the commitments made to eliminate torture, the fact remains that torture is more widespread not that ever before, "Custodial torture" is a naked violation of human dignity and degradation with destroys, to a very large extent, the individual personality. IT is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward-flag of humanity must on each such occasion fly half-mast. In all custodial crimes that 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 lock-up. Whether it is physical assault or rape in police custody, the extent of trauma a person experiences is beyond the purview of law.

"Custodial violence" and abuse of police power is not only peculiar to this country, but it is widespread. It has been the concern of international community because the problem is universal and the challenge is almost global. The Universal Declaration of Human Rights in 1984, which market the emergency of worldwide trend of protection and guarantee of certain basic human rights, stipulates in Article 5 that "No one shall be subjected to torture or to curel, inhuman or degrading treatment or punishment." Despite the pious declaration, the crime continues unabated, though every civilised nation shows its concern and takes steps for its eradication.

In England, torture was once regarded as a normal practice to ger information regarding the crime, the accomplices and the case property or to extract confessions, but with the development of common law and more radical ideas imbibing human though and approach, such inhuman practices were initially discouraged and eventually almost done away with , certain aberrations here and there notwithstanding. The police powers of arrest, detention and interrogation in England were examined in depth by Sir Cyril Philips Committee- 'Report of a Royal Commission on Criminal Procedure' (command - Paper 8092 of 1981). The report of the Royal Commission is, instructive. In regard to the power of arrest, the Report recommended that the power to arrest without a warrant must be related to and limited by the object to be served by the arrest, namely, to prevent the suspect from destroying evidence or interfering with witnesses or warning accomplices who have not yet been arrested or where there is a good reason to suspect the repetition of the offence and not to every case irrespective of the object sought to be achieved.

The Royal Commission suggested certain restrictions on the power of arrest on the basis of the `necessity principle'. The Royal commission said : ".... We recommend that detention

upon arrest for a offence should

continue only on one or more of the

following criteria :

(a) the person`s`s unwillingness

to identify himself so that summons

may be served upon him;

(b) the need to prevent the

continuation or repetition of that

offence;

(c) the need to protect the

arrested person`s himself or other

persons or property;

(d) the need to secure or preserve

evidence of or relating to that

offence or to obtain such evidence

from the suspect by questioning

him; and

(e) the likelihood of the person`s

failing to appear at court to

answer anycharge made against him."

The Royal Commission also suggested

:

"To help to reduce the use of

arrest we would also propose the

introduction here of a scheme that

is used in Ontario enabling a

police officer to issue what is

called an appearance notice. That

procedure can be used to obtain

attendance at the police station

without resorting to arrest

provided a power to arrest exists,

for example to be finger printed or

to participate in an identification

parade. It could also be extended

to attendance for interview at a

time convenient both to the suspect

and to the police officer

investigating the case...."

The power of arrest, interrogation and detention has now been streamlined in England on the basis of the suggestions made by the Royal Commission and incorporated in police and Criminal Evidence Act, 1984 and the incidence of custodial violence has been minimised there to a very great extent.

Fundamental rights occupy a place of pride in the India Constitution. Article 21 provides "no person shall be deprived of his life or personal liberty expect according to procedure established by law". Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression "life of personal liberty" has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and the shall not be denied the right to consult and defend himself by a legal practitioner of his choice. Clause (2) of Article 22 directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the Magistrate. Article 20(3) of the Constitution lays down that a person accused of an offence shall not be compelled to be a witness against himself. These are some of the constitutional safeguard provided to a person with a view to protect his personal liberty against and unjustified assault by the State, In tune with the constitutional guarantee a number statutory provisions also seek to project personal liberty, dignity and basic human rights of the citizens. Chapter V. of Criminal Procedure Code, 1973 deals with the powers of arrest of a person and the safeguard which are required to be followed by the police to protect the interest of the arrested person. Section 41, Cr. P.C. confers powers on any police officer to arrest a person under the circumstances specified therein without any order or a warrant of arrest from a Magistrate. Section 46 provides the method and manner of arrest. Under this Section no formality is necessary while arresting a person. Under Section 49, the police is not permitted to use more restraint than is necessary to permitted to use more restraint than is necessary to prevent the escape of the person. Section 50 enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest. The police officer is further enjoined to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the event of his arrest for a non-bailable offence. Section 56 contains a mandatory provision requiring the police officer making an arrest without warrant to produce the arrested person before a Magistrate without unnecessary delay and Section 57 echoes Clause (2) of Article 22 of the Constituion of India. There are some other provisions also like Section 53, 54 and 167 which are aimed at affording procedural safeguards to a person arrested by the police. Whenever a person dies in custody of the police, Section 176 requires the Magistrate to hold and enquiry into the cause of death.

However, inspite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidence of torture and deaths in police custody has been a disturbing factor. Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence or confession often resorts to third degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. A reading of the morning newspapers almost everyday carrying reports of dehumanising torture, assault, rape and death in custody of police or other governmental agencies is indeed depressing. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the creditibility of the Rule of Law and the administration of criminal justice system. The community rightly feels perturbed. Society's cry for justice becomes louder.

The Third Report of the National Police Commission in India expressed its deep concern with custodial demoralising effect with custodial torture was creating on the society as a whole. It made some very useful suggestions. It suggested :

".......An arrest during the

investigation of a cognizable case

may be considered justified in one

or other of the following

circumstances :-

(1) The case involves a grave

offence like murder, dacoity,

robbery, rape etc., and it is

necessary to arrest the accused and

bring his movements under restraint

to infuse confidence among the

terror stricken victims.

(ii) The accused is likely to

abscond and evade the processes of

law.

(iii) The accused is given to

violent behaviour and is likely to

commit further offences unless his

movements are brought under

restraint.

(iv) The accused is a habitual

offender and unless kept in custody

he is likely to commit similar

offences again. It would be

desirable to insist through

departmental instructions that a

police officer making an arrest

should also record in the case

diary the reasons for making the

arrest, thereby clarifying his

conformity to the specified

guidelines......"

The recommendations of the Police Commission (supra) reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. These recommendations, however, have not acquired any statutory status so far.

This Court in Joginder Kumar Vs. State [1994 (4) SCC, 260] (to which one of us, namely, Anand, J. was a party) considered the dynamics of misuse of police power of arrest and opined :

"No arrest can be made because it

is lawful for the police officer to

do so. The existence of the power

of arrest is one thing. The

justification for the exercise of

it is quite another...No. arrest

should be made without a reasonable

satisfaction reached after some

investigation about the genuineness

and bonafides of a complaint and a

reasonable belief both as to the

person's complicity and even so as

to the need to effect arrest.

Denying person his liberty is a

serious matter."

Joginder Kumar's case (supra) involved arrest of a practising lawyer who had bee called to the police station in connection with a case under inquiry on 7.1.94. On not receiving any satisfactory account of his whereabouts, the family member of the detained lawyer preferred a petition in the nature of habeas corpus before this Court on 11.1.94 and in compliance with the notice, the lawyer was produced on 14.1.94 before this court the police version was that during 7.1.94 and 14.1.94 the lawyer was not in detention at all but was only assisting the police to detect some cases. The detenue asserted otherwise. This Court was not satisfied with the police version. It was noticed that though as on that day the relief in habeas corpus petition could not be granted but the questions whether there had been any need to detain the lawyer for 5 days and if at all he was not in detention then why was this Court not informed. Were important questions which required an answer. Besides, if there was detention for 5 days, for what reason was he detained. The Court' therefore, directed the District Judge, Ghaziabad to make a detailed enquiry and submit his report within 4 weeks. The Court voiced its concern regarding complaints of violations of human rights during and after arrest. It said:

"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. How are we

to strike a balance between the

two?

...................................

A realistic approach should be made

in this direction. The law of

arrest is one of balancing

individual rights, liberties and

privileges, on the one hand, and

individual duties, obligations

weighing and balancing the rights,

liberties and privileges of he

single individual and those of

individuals collectively; of simply

deciding what is wanted and where

to put the weight and the emphasis;

of deciding with comes first-the

criminal or society, the law

violator or the abider....."

This Court then set down certain procedural "requirements" in cases of arrest.

Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. The rights inherent in Articles 21 and 22(1) of the Constitution required to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture of cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, 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 anarchanism. No civilised nation can permit that tp happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal court of human rights jurisprudence. The answer, indeed, has to be an emphatic 'No'. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicted undertrials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.

In Neelabati Bahera Vs. State of Orissa [1993 (2) SCC, 746], (to which Anand, J. was a party) this Court pointed out that prisoners and detenues are not denuded of their fundamental rights under Article 21 and it is only such restrictions as are permitted by law, which can be imposed on the enjoyment of the fundamental rights of the arrestees and detenues. It was observed :

"It is axiomatic that convicts,

prisoners or undertrials are not

denuded of their fundamental rights

under Article 21 and its is only

such restrictions, as are permitted

by law, which can be imposed on the

enjoyment of the fundamental right

by such persons. It is an

obligation of the State to ensure

that there is no infringement of

the indefeasible rights of a

citizen o life, except in

accordance with law, while the

citizen is in its custody. The

precious right guaranteed by

Article 21 of the constitution of

India cannot be denied to convicts,

undertrials or other prisoners in

custody, expect according to

procedure established by law. There

is a great responsibility on the

police or prison authorities to

ensure that the citizen in its

custody is not deprived of his

right to life. His liberty is in

the very nature of things

circumscribed by the very fact of

his confinement and therefore his

interest in the limited liberty

left to him is rather precious. The

duty of care on the part of the

State is responsible if the person

in custody of the police is

deprived of his life except

according to the procedure

established by law.

Instances have come to out notice were the police has arrested a person without warrant in connection with the investigation of an offence, without recording the arrest, and the arrest person has been subjected to torture to extract information from him for the purpose of further investigation or for recovery of case property or for extracting confession etc. The torture and injury caused on the body of the arrestee has sometime resulted into his death. Death in custody is not generally shown in the records of the lock-up and every effort is made by the police to dispose of the body or to make out a case that the arrested person died after he was released from custody. Any complaint against such torture or death is generally not given any attention by the police officers because of ties of brotherhood. No first information report at the instance of the victim or his kith and kin is generally entertained and even the higher police officers turn a blind eye to such complaints. Even where a formal prosecution is launched by the victim or his kith and kin, no direct evidence is available to substantiate the charge of torture or causing hurt resulting into death as the police lock-up where generally torture or injury is caused is away from the public gaze and the witnesses are either police men or co- prisoners who are highly reluctant to appear as prosecution witness due to fear of letaliation by the superior officers of the police. It is often seen that when a complaint is made against torture, death or injury, in police custody, it is difficult to secure evidence against the policemen responsible for resorting to third degree methods since they are incharge of police station records which they do not find difficult to manipulate. Consequently, prosecution against the delinquent officers generally results in acquittal. State of Madhya Pradesh Vs. Shyamsunder Trivedi & Ors. [ 1995 (3) Scale, 343 =] is an apt case illustrative of the observations made by us above. In that case, Nathu Bnjara was tortured at police station, Rampura during the interrogation. As a result of extensive injuries caused to him he died in police custody at the police station. The defence set up by the respondent police officials at the trial was that Nathu Banjara had been released from police custody at about 10.30 p.m. after interrogation 13.10.1986 itself vide entry EX. P/22A in the Roznamcha and that at about 7.00 a.m. on 14.10.1981, a death report Ex. P/9 was recorded at the police station, Rampura, at the instance of Ramesh respondent No. 6, to the effect that he had found "one unknown person" near a tree by the side of the tank riggling with pain in his chest and that as a soon as respondent No. 6 reached near him, the said person died. The further case set up by SI Trivedi, respondent No. 1, incharge of the police station was that after making a Roznamcha entry at 7.00 a.m. about his departure from the police station he (respondent No. 1- Shyamsunder Trivedi) and Constable Rajaram respondent proceeded to the spot where the dead body was stated to be lying for conducting investigation under Section 174 Cr.P.C. He summoned Ramesh Chandra and Goverdhan respondents to the spot and in their presence prepared a panchnama EX. P/27 of the dead body recording the opinion therein to the effect that no definite cause of death was known.

The First Additional Sessions Judge acquitted all the respondents of all the charges holding that there was no direct evidence to connect the respondents with the crime. The State of Madhya Pradesh went up in appeal against the order of acquittal and the High Court maintained the acquittal of respondents 2 to 7 but set aside the acquittal of respondent No. 1, Shyamsunder Trivedi for offences under Section 218, 201 and 342 IPC. His acquittal for the offences under Section 302/149 and 147 IPC was, however, maintained. The State filed an appeal in this court by special leave. This Court found that the following circumstances have been established by the prosecution beyond every reasonable doubt and coupled with the direct evidence of PWs 1, 3, 4, 8 and 18 those circumstances were consistent only with the hypothesis of the quilt of the respondents and were inconsistent with their innocence :

(a) that the deceased had been

brought alive to the police station

ad was last seen alive there on

13.10.81;

(b) That the dead body of the

deceased was taken out of the

police station on 14.1.81 at about

2 p.m. for being removed to the

hospital;

(c) that SI Trivedi respondent No.

1, Ram Naresh shukla, Respondent

No. 3, Raja Ram, respondent No. 4

and Ganiuddin respondent No. 5 were

present at the police station and

had all joined hands to dispose of

the dead body of Nathu-Banjara:

(d) That SI Trivedi, respondent

No. 1 created false evidence and

fabricated false clues in the shape

of documentary evidence with a view

to screen the offence and for that

matter, the offender:

(e) SI Trivedi respondent in

connivance with some of his

subordinates, respondents herein

had taken steps to cremate the dead

body in haste describing the

deceased as a 'lavaris' though the

identity of the deceased, when they

had interrogated for a sufficient

long time was well known to them.

and opined that:

"The observations of the High Court

that the presence and participation

of these respondents in the crime

is doubtful are not borne out from

the evidence on the record and

appear to be an unrealistic over

simplification of the tell tale

circumstances established by the

prosecution."

One of us (namely, Anand, J.) speaking for the Court went on to observe :

"The trial court and the High

Court, if we may say so with

respect, exhibited a total lack of

sensitivity and a 'could not

careless' attitude in appreciating

the evidence on the record and

thereby condoning the barbarous

there degree methods which are

still being used, at some police

stations, despite being illegal.

The exaggerated adherence to and

insistence upon the establishment

of proof beyond every reasonable

doubt, by the prosecution, ignoring

the ground realities, the fact

situations and the peculiar

circumstances of a given case, as

in the present case, often results

in miscarriage of justice and makes

the justice delivery system a

suspect. In the ultimate analysis

the society suffers and a criminal

gets encouraged. Tortures in police

custody, which of late are on the

increase, receive encouragement by

this type of an unrealistic

approach of the Courts because it

reinforces the belief in the mind

of the police that no harm would

come to them if an odd prisoner

dies in the lock-up, because there

would hardly be and evidence

available to the prosecution to

directly implicate them with the

torture. The Courts, must not loose

sight of the fact that death in

police custody is perhaps on of the

worst kind of crime in a a

civilised society, governed by the

rule of law and poses a serious

thereat to an orderly civilised

society."

This Court then suggested :

"The Courts are also required to

have a change in their outlook and

attitude, particularly in cases

involving custodial crimes and they

should exhibit more sensitivity and

adopt a realistic rather than a

narrow technical approach, while

dealing with the case of custodial

crime so that as far as possible

within their powers, the guilty

should not escape so that the

victim of crime has the

satisfaction that ultimately the

Majesty of Law has prevailed."

The State appeal was allowed and the acquittal of respondents 1, 3, 4 and 5 was set aside. The respondents were convicted for various offences including the offence under Section 304 Part II/34 IPC and sentenced to various terms of imprisonment and fine ranging from Rs. 20,000/- to Rs.. 50,000/-. The fine was directed to be paid to the heirs of Nathu Banjara by way of compensation. It was further directed :

"The Trial Court shall ensure, in

case the fine is deposited by the

accused respondents, that the

payment of the same is made to the

heirs of deceased Nathu Banjara,

and the Court shall take all such

precautions as are necessary to see

that the money is not allowed to

fall into wrong hands and is

utilised for the benefit of the

members of the family of the

deceased Nathu Banjara, and if

found practical by deposit in

nationalised Bank or post office on

such terms as the Trial Court may

in consultation with the heirs for

the deceased consider fit and

proper."

It needs no emphasis to say that when the crime goes unpunished, the criminals are encouraged and the society suffers. The victim of crime or his kith and kin become frustrated and contempt for law develops. It was considering these aspects that the Law Commission in its 113th Report recommended the insertion of Section 114B in the Indian Evidence Act. The Law Commission recommended in its 113th Report that in prosecution of a police officer for an alleged offence of having caused bodily injury to a person, if there was evidence that the injury was caused during the period when the person was in the custody of the police, the Court may presume that the injury was caused by the police officer having the custody of the person during that period. The Commission further recommended that the court, while considering the question of presumption, should have regard to all relevant circumstances including the period of custody statement made by the victim, medical evidence and the evidence with the Magistrate may have recorded. Change of burden of proof was, thus, advocated. In sham Sunder Trivedi's case (supra) this Court also expressed the hope that the Government and the legislature would give serious thought to the recommendation of the Law Commission. Unfortunately, the suggested amendment, has not been incorporated in the statute so far. The need of amendment requires no emphasis - sharp rise i custodial violence, torture and death in custody, justifies the urgency for the amendment and we invite Parliament's attention to it. Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of a an offence but it must be remembered that the law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation with that view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true sense purpose full to make the investigation effective. By torturing a person and using their degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No. society can permit it. How do we check the abuse of police power? Transparency of action and accountability perhaps are tow possible safeguards which this Court must insist upon. Attention is also required to be paid to properly develop work culture, training and orientation of police force consistent with basic human values. Training methodology of the police needs restructuring. The force needs to be infused with basic human values and made sensitive to the constitutional ethos. Efforts must be made to change the attitude and approach of the police personal handling investigations so that they do not sacrifice basic human values during interrogation and do not resort to questionable form of interrogation. With a view to bring in transparency, the presence of the counsel of the arrestee at some point of time during the interrogation may deter the police from using third degree methods during interrogation.

Apart from the police, there are several other governmental authorities also like Directorate of Revenue Intelligence, Directorate of Enforcement, Costal Guard, Central Reserve Police Force (CRPF), Border Security Force (BSF), the Central Industrial Security Force (CISF), the State Armed Police, Intelligence Agencies like the Intelligence Bureau, R.A.W, Central Bureau of Investigation (CBI) , CID, Tariff Police, Mounted Police and ITBP which have the power to detain a person and to interrogated him in connection with the investigation of economic offences, offences under the Essential Commodities Act, Excise and Customs Act. Foreign Exchange Regulation Act etc. There are instances of torture and death in custody of these authorities as well, In re Death of Sawinder Singh Grover [1995 Supp (4) SCC, 450], (to which Kuldip Singh, j. was a party) this Court took suo moto notice of the death of Sawinder Singh Grover during his custody with the Directorate of Enforcement. After getting an enquiry conducted by the additional District Judge, which disclosed a prima facie case for investigation and prosecution, this Court directed the CBI to lodge a FIR and initiate criminal proceeding against all persons named in the report of the Additional District Judge and proceed against them. The Union of India/Directorate of Enforcement was also directed to pay sum of Rs. 2 lacs to the widow of the deceased by was of the relevant provisions of law to protect the interest of arrested persons in such cases too is a genuine need. There is one other aspect also which needs out consideration, We are conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals, Many hard core criminals like extremist, the terrorists, drug peddlers, smugglers who have organised gangs, have taken strong roots in the society. It is being said in certain quarters that with more and more liberalisation and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation. It is felt in those quarters that if we lay to much of emphasis on protection of their fundamental rights and human rights such criminals may go scot-free without exposing any element or iota or criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot, however, be worst than the disease itself. The response of the American supreme Court to such an issue in Miranda Vs. Arizona, 384 US 436 is instructive. The Court said :

"A recurrent argument, made in

these cases is that society's need

for interrogation out-weighs the

privilege. This argument is not

unfamiliar to this Court. See. e.g.

Chambers v. Florida, 309 US 227,

240-41, 84 L ed 716, 724, 60 S Ct

472 (1940). The whose thrust of out

foregoing discussion demonstrates

that the Constitution has

prescribed the rights of the

individual when confronted with the

power of Government when it

provided in the Fifth Amendment

that an individual cannot be

compelled to be a witness against

himself. That right cannot be

abridged. "

(Emphasis ours)

There can be no gain saying that freedom of an individual must yield to the security of the State. The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statures has been upheld by the Courts. The right to interrogate the detenues, culprits or arrestees in the interest of the nation, must take precedence over an individual's right to personal liberty. The latin maxim salus populi est supreme lex (the safety of the people is the supreme law) and salus republicae est suprema lex (safety of the state is the supreme law) co-exist an dare not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however must be "right, just and fair". Using any form of torture for extracting any kind of information would neither be 'right nor just nor fair' and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated - indeed subjected to sustained and scientific interrogation determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third degree methods or eleminated with a view to elicit information, extract confession or drive knowledge about his accomplices, weapons etc. His Constitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be qualitative difference in the methods of interrogation of such a person as compared to an ordinary criminal. Challenge of terrorism must be met wit innovative ideas and approach. State terrorism is not answer to combat terrorism. State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to 'terrorism'. That would be bad for the State, the community and above all for the Rule of Law. The State must, therefore, ensure that various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves. that the terrorist has violated human rights of innocent citizens may render him liable for punishment but it cannot justify the violation of this human rights expect in the manner permitted by law. Need, therefore, is to develop scientific methods of investigation and train the investigators properly to interrogate to meet the challenge.

In addition to the statutory and constitutional requirements to which we have made a reference, we are of the view that it would be useful and effective to structure appropriate machinery for contemporaneous recording and notification of all cases of arrest and detention to bring in transparency and accountability. It is desirable that the officer arresting a person should prepare a memo of his arrest on witness who may be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. The date and time of arrest shall be recorded in The memo which must also be counter signed by The arrestee.

We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures :

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaga Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render his liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier.

These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.

The requirements mentioned above shall be forwarded to the Director General of Police and the Home Secretary of every Stare/Union Territory and it shall be their obligation to circulate the same to every police station under their charge and get the same notified at every police station at conspicuous place. It would also be useful and serve larger interest to broadcast the requirements on the All India Radio besides being shown on the National network of Doordarshan and by publishing and distributing pamphlets in the local language containing these requirements for information of the general public. Creating awareness about the rights of the arrestee would in out opinion be a step in the right direction to combat the evil of custodial crime and bring in transparency and accountability. It is hoped that these requirements would help to curb, if not totally eliminate, the use of questionable methods during interrogation and investigation leading to custodial commission of crimes.

PUNITIVE MEASURES

UBI JUS IBI REMEDIUM - There is no wrong without a remedy. The law will that in every case where man is wronged and undamaged he must have a remedy. A mere declaration of invalidity of an action or finding of custodial violence or death in lock-up does not by itself provide any meaningful remedy to a person whose fundamental right to life has been infringed. Much more needs to be done. Some punitive provisions are contained in the Indian Penal Code which seek to punish violation of right to life. Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a corrupt or malicious motive. Section 330 and 331 provide for punishment of those who inflict injury of grievous hurt on a person to extort confession or information in regard to commission of an offence. Illustration (a) and (b) to Section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330, therefore, directly makes torture during interrogation and investigation punishable under the Indian Penal Code. These Statutory provisions are, However, inadequate to repair the wrong done to the citizen. Prosecution of the offender is an obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, nor by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience.

Article 9(5) of the International convent on civil and Political Rights, 1966 (ICCPR) provides that "anyone who has been the victim of unlawful arrest or detention shall have enforceable right to compensation". of course, the Government of India as the time of its ratification (of ICCPR) in 1979 had made a specific reservation to the effect that the Indian legal system does not recognise a right to compensation for victims of unlawful arrest or detention and thus did not become party to the Convent. That reservation, however, has now lost its relevance in view of the law laid down by this Court in number of cases awarding compensation for the infringement of the fundamental right to life of a citizen. (See with advantage Rudal Shah Vs. State of Bihar [ 1983 (4) SCC, 141 ]: Sebastian M. Hongrey Vs. Union of India [ 1984 (3) SCC, 339] and 1984 (3) SCC, 82]; Bhim Singh Vs State of J & K [1984 (Supp) SCC, 504 and 1985 (4) SCC, 677] Saheli Vs. Commissioner of Police. Delhi [1990 (1) SCC 422]}. There is indeed no express provision in the Constitution of India for grant of compensation for violation of a fundamental right to life, nonetheless, this Court has judicially evolved a right o compensation in cases of established unconstitutional deprivation of person liberty or life. [See : Nilabati Bahara Vs. State (Supra)] Till about tow decades ago the liability of the government for tortious act of its public servants as generally limited and the person affected could enforce his right in tort by filing a civil suit and there again the defence of sovereign immunity was allowed to have its play. For the violation of the fundamental right to life or the basic human rights, however, this Court has taken the view that the defence of sovereign immunity is not available to the State for the tortious act of the public servants and for the established violation of the rights guaranteed by Article 21 of the Constitution of India. In Nilabati Behera Vs. State (supra) the decision of this Court in Kasturi Lal Ralia Ram Jain Vs. State of U.P. [1965 (1) SCR, 375] wherein the plea of sovereign immunity had been upheld in a case of vicarious liability of the State for the tort committed by its employees was explained thus:

"In this Context, it is sufficient

to say that the decision of this

Court in Kasturilal upholding the

State's plea of sovereign immunity

for tortious acts of its servants

is confined to the sphere of

liability in tort, which is

distinct from the State's liability

for contravention of fundamental

rights to which the doctrine of

sovereign immunity has no

application in the constitutional

remedy under Articles 32 and 226 of

the Constitution which enables

award of compensation for

contravention of fundamental

rights, when the only practicable

mode of enforcement of the

fundamental rights can be the award

of compensation. The decisions of

this court in Rudul Sah and others

in that line relate to award of

compensation for contravention of

fundamental rights, in the

constitutional remedy upon Articles

32 and 226 of the Constitution, On

the other hand, Kasturilal related

to the value of goods seized and

not returned to the owner due to

the fault of government Servants,

the claim being of damages of the

tort of conversion under the

ordinary process, and not a claim

for compensation for violation of

fundamental rights. Kasturilal is,

therefore, inapplicable in this

context and distinguishable."

The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages of tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitutions is remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or 226 of the Constitution of India for the established violation or the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrong door and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.

The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the court and the law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim - civil action for damage is a long drawn and cumber some judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim. Who may have been the bread winner of the family.

In Nilabati Bahera's case (supra), it was held: "Adverting to the grant of relief

to the heirs of a victim of

custodial death for the infraction

or invasion of his rights

guaranteed under Article 21 of the

Constitution of India, it is not

always enough to relegate him to

the ordinary remedy of a civil suit

to claim damages for the tortious

act of the State as that remedy in

private law indeed is available to

the aggrieved party. The citizen

complaining of the infringement of

the indefeasible right under

Article 21 of the constitution

cannot be told that for the

established violation of the

fundamental right to life he cannot

get any relief under the public law

by the courts exercising Writ

jurisdiction, The primary source of

the public law proceedings stems

from the prerogative writs and the

courts have therefore, to evolve '

new tools' to give relief in public

law by moulding it according to the

situation with a view to preserve

and protect the Rule of Law. While

concluding his first Hamlyn Lecture

in 1949 under the title "freedom

under the Law" Lord Denning in his

own style warned :

No one ca suppose that the

executive will never be guilty the

of the sins that are common to all

of us. Your may be sure that they

will sometimes to things which they

ought to do : and will not do

things that they ought to do. But

if and when wrongs are thereby

suffered by any of us what is the

remedy? Our procedure for securing

our personal freedom is efficient,

out procedure for preventing the

abuse of power is not. Just as the

pick and shovel is no longer

suitable for the winning of coal,

so also the procedure of mandamus,

certiorari and actions on the case

are not suitable for the winning or

freedom in the new age. They must

be replaced by new and up-to date

machinery by declarations,

injunctions and actions for

negligence... This is not the task

of Parliament... the courts must do

this. Of all the great tasks that

lie ahead this is the greatest.

Properly exercised the new powers

of the executive lead to the

welfare state : but abused they

lead to a totalitarian state. None

such must ever be allowed in this

country."

A similar approach of redressing the wrong by award of monetary compensation against the State for its failure to protect the fundamental rights of the citizen has been adopted by the Courts of Ireland, which has a written constitution, guaranteeing fundamental rights, but which also like the Indian Constitution contains no provision of remedy for the infringement of those rights. That has, however, not prevented the Court in Ireland from developing remedies, including the award of damages, not only against individuals guilty of infringement, but against the State itself.

The informative and educative observations of O' Dalaigh CJ in The State (At the Prosecution of Quinn) v. Ryan [1965] IR 70 (122) deserve special notice. The Learned Chief Justice said:

"It was not the intention of the

Constitution in guaranteeing the

fundamental rights of the citizen

that these rights should be set at

nought or circumvented. The

intention was that rights of

substances were being assured to

the individual and that the Courts

were the custodians of those

rights. As a necessary corollary,

it follows that no one can with

impunity set these rights at nought

of circumvent them, and that the

Court's powers in this regard are

as ample as the defence of the

Constitution require."

(Emphasis supplied)

In Byrne v. Ireland [1972] IR 241, Walsh J opined at p 264:

"In several parts in the

Constitution duties to make certain

provisions for the benefit of the

citizens are imposed on the State

in terms which bestow rights upon

the citizens and, unless some

contrary provision appears in the

Constitution, the Constitution must

be deemed toe have created a remedy

for the enforcement of these

rights. It follows that, where the

right is one guaranteed by the

State. It is against the State that

the remedy must be sought it there

has been a failure to discharge the

constitutional obligation impose"

(Emphasis supplied)

In Maharaj Vs. Attorney General of Trinidad and Tobago [ (1978) 2 All E.R. 670]. The Privy Council while interpreting Section 6 of the Constitution of Trinidad and Tobago held that though not expressly provided therein, it permitted an order for monetary compensation, by way of 'redress' for contravention of the basic human rights and fundamental freedoms. Lord Diplock speaking for the majority said:

"It was argued on behalf of the

Attorney General that Section 6(2)

does not permit of an order for

monetary compensation despite the

fact that this kind of redress was

ordered in Jaundoo v. Attorney

General of Guyana. Reliance was

placed on the reference in the sub-

section to 'enforcing, or securing

the enforcement of, any of the

provisions of the said foregoing

sections' as the purpose for which

orders etc. could be made. An order

for payment of compensation, it was

submitted, did not amount to the

enforcement of the rights that had

been contravened. In their

Lordships' view of order for

payment of compensation when a

right protected under Section 1

'has been' contravened is clearly a

form of 'redress' which a person is

entitled to claim under Section 6

(1) and may well be any only

practicable form of redress, as by

now it is in the instant case. The

jurisdiction to make such an order

is conferred on the High Court by

para (a) of Section 6(2), viz.

jurisdiction 'to here and determine

any application made by any person

in pursuance of sub-section (1) of

this section'. The very wide power

to make orders, issue writs and

give directions are ancillary to

this."

Lord diplock then went on to observe ( at page 680) : "Finally, their Lordships would say

something about the measure of

monetary compensation recoverable

under Section 6 where the

contravention of the claimant's

constitutional rights consists of

deprivation of liberty otherwise

that by due process of law. The

claim is not a claim in private law

for damages for the tort of false

imprisonment, under which the

damages recoverable are at large

and would include damages for loss

of reputation. IT is a claim in

public law for compensation for

deprivation of liberty alone."

In Simpson was, Attorney General [ Baigent's case ] (1994 NZLR, 667) the Court of Appeal in NewZealand dealt with the issue in a very elaborate manner by reference to a catena of authorities from different jurisdictions. It considered the applicability of the doctrine of vicarious liability for torts, like unlawful search, committed by the police officials which violate the New Zealand Bill of Rights Act, 1990. While dealing with the enforcement of rights and freedoms as guaranteed by the Bill of Rights for which no specific remedy was provided. Hardie Boys, J. observed :

"The New Zealand Bill of Rights

Act, unless it is to be no more

that an empty statement, is a

commitment by the Crown that those

who in the three branches of the

government exercise its functions,

powers and duties will observe the

rights hat the Bill affirms. it is

I consider implicit in that

commitment, indeed essential to its

worth, that the Courts are not only

to observe the Bill in the

discharge of their own duties but

are able to grant appropriate ad

effective remedies where rights

have been infringed. I see no

reason to think that this should

depend on the terms of a written

constitution. Enjoyment of the

basic human rights are the

entitlement of every citizen, and

their protection the obligation of

every civilised state. They are

inherent in and essential to the

structure of society. They do not

depend on the legal or

constitutional form in which they

are declared. the reasoning that

has led the Privy Council and the

Courts of Ireland and India to the

conclusions reached in the cases to

which I have referred (and they are

but a sample) is in my opinion

equally valid to the New Zealand

Bill of Rights Act if it is to have

life and meaning." (Emphasis

supplied)

The Court of appeal relied upon the judgment of the Irish Courts, the Privy Council and referred to the law laid down in Nilabati Behera Vs. State (supra) thus: "Another valuable authority comes

from India, Where the constitution

empowers the Supreme Court to

enforce rights guaranteed under it.

In Nilabati Bahera V. State of Orissa (1993) Cri. LJ 2899, the Supreme Court awarded damages

against the Stare to the mother of

a young man beaten to death in

police custody. The Court held that

its power of enforcement imposed a

duty to "forge new tools", of which

compensation was an appropriate on

where that was the only mode of

redress available. This Was not a

remedy in tort, but one in public

law based on strict liability for

the contravention of fundamental

rights to which the principle of

sovereign immunity does not apply.

These observations of Anand, J. at

P 2912 may be noted.

The old doctrine of only relegating

the aggrieved to the remedies

available in civil law limits the

role of the courts too much as

protector and guarantor of the

indefeasible rights of the

citizens. The courts have the

obligation to satisfy the social

aspirations of the citizens because

the courts and the law are for the

people and expected to respond to

their aspirations. The purpose of

public law is not only to civilize

public that they live under a legal

system which aims to protect their

interest and preserve their

rights."

Each the five members of the Court of Appeal in Simpson's case (supra) delivered a separate judgment but there was unanimity of opinion regarding the grant of pecuniary compensation to the victim, for the contravention of his rights guaranteed under the Bill of Rights Act, notwithstanding the absence of an express provision in that behalf in the Bill of Rights Act.

Thus, to sum up, it is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is nor available and the citizen must revive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do, That award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will. of course, depend upon the peculiar facts of each case and no strait jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under he public law jurisdiction is, in addition to the traditional remedies and not it derrogation of them. The amount of compensation as awarded by the Court and paid by the State to redress The wrong done, may in a given case , be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.

Before parting with this judgment we wish to place on record our appreciation for the learned counsel appearing for the States in general and Dr. A.M. Singhvi, learned senior counsel who assisted the Court amicus curiae in particular for the valuable assistances rendered by them.