Judgment :- Janarthanam, J.: The Protection of Human Rights Act, 1993 (ActNo.X of 1994 -For short ‘P.H.R.A.") is an innovation in the Indian Context at the global level. 2. The objectivity indeed laudable - it appears - of this Act, which emerges from the preamble - is for better protection of Human Rights and for matters connected therewith or incidental thereto. 3. Such an objectivity is sought to be achieved by providing for the constitution of: .(1) NATIONAL HUMAN RIGHTS COMMISSION (N.H.R.C.); .(2) STATE HUMAN RIGHTS COMMISSION (S.H.R.C); and .(3) HUMAN RIGHTS COURT (H.R.C.) 4. The Central Government, of course, in a bid to realise such a noble objectivity, constituted a N.H.R.C. under Sec.3 of P.H.R.A. However, response from many a State Government for the constitution of S.H.R.C. under Sec.21 of P.H.R.A. cannot be said to be overwhelming, for reasons best known. Similar is the fate and no exception can be taken as to the constitution of H.R.C, as well. However, H.R.C. in this State - Tamil Nadu - had been constituted under Sec.30 of P.H.R.A. specifying a court of Session in each and every district, as a Special Court of Session, by a notification, of course, after complying with due and necessary procedure, contemplated therefor, for the purpose of providing speedy trial of offences arising out of violation of Human Rights, before ever S.H.R.C. was constituted. 5. Human Rights Courts, though constituted in this State, it is said, are yet to function effectively, in the sense of satisfying the legitimate expectations, not only of lay public in general, but also of Human Rights Activists, in particular. The reason for such state of affairs to have come into existence is that the novel idea of violation of Human Rights, sought to be dealt with by this P.H.R.A. under various provisions contained therein, is unable to be understood in the proper perspective, not only by the lay public, but also by the subordinate Judicial Officers, who are personnel engaged in the trial of offences for violation of Human Rights day in - and day-out apart from professionally trained minds. 6. This sort of an ineffective or defective functioning of Human Rights Courts, this Court seized knowledge of, from a petition presented by the Tamil Nadu Pazhangudi Makkal Sangam, before the Court of the Chief Judicial Magistrate (C.J.M.), Erode, designated as H.R.C. on 13. 1996. 7. 6. This sort of an ineffective or defective functioning of Human Rights Courts, this Court seized knowledge of, from a petition presented by the Tamil Nadu Pazhangudi Makkal Sangam, before the Court of the Chief Judicial Magistrate (C.J.M.), Erode, designated as H.R.C. on 13. 1996. 7. In this petition, one V.P. Gunasekaran, Joint Secretary of the aforesaid organisation, filed an affidavit, stating that the Special Task Force (STF), constituted to nab the sandalwood smuggler Veerappan, subjected the tribals in that area to torture and in human treatment. He referred to certain incidents of assaults against the villagers, which took place on 17.02.1996 at about 3 A.M. in the interior hamlets of Solakkar Thotti and Allapuram Thotti and Kalmandipuram of Thalavadi hills. Some of them, it is said, were also illegally detained by STF. He prayed for the appointment of a proper person to investigate into the matter, besides seeking a direction to the Government of Tamil Nadu represented by the Home Secretary, Director General of Police incharge of STF Madras and the Superintendent of Police, Periyar District, Erode to stop the atrocities and release the persons illegally detained. 8. The petition so presented was returned by C.J.M. on 13. 1996 with queries as below: “(i) Under what provision, the petition is filed should be stated?; (ii) It appears the prayers are not within the jurisdiction of this Court, though the court is appointed as Human Rights Court and therefore such remedies cannot be given; and (iii) Under what provision, this Court is empowered to appoint a person for investigation should be stated?” 9. In view of this, one Mr.S. Balamugugan, B.A., B.L., Advocate, Bhavani-Secretary, People’s Union of Civil Liberties (PUCL), Periyar District addressed a letter to the Honourable Mr.Justice V.R. Krishna Iyer, former Judge Supreme Court of India; the Honourable Mr.Justice Ranganath Mishra, the then Chair Person of N.H.R.C.; Mr.K.G. Kannabhiran, learned Senior Advocate and National President, PUCL; the Honourable Mr.Justice V.M. Tarkunde, Adviser, PUCL, bringing to their notice the inadequacy of the equipment of Human Rights Courts and matters allied thereto. 10. 10. The Honourable Mr.Justice V.R. Krishna Iyer addressed a letter dated 11th November, 1996, enclosing with it the letter received from the aforesaid Mr.Balamurugan, Advocate, Bhavani and Secretary, PUCL, Periyar District to the Honourable Mr.K.A. Swamy, then Chief Justice of this Court, which reflected as below: “I am forwarding a letter received by me from an advocate in Bhavani. He complains that Human Rights Courts have not taken off yet and the situation is deplorable. Justice Ahmadi, CJI, rightly stresses the need for Human Rights Courts. Therefore, I am forwarding the letter received by me to you as one deeply concerned with human rights functionalism. Whatever action you take in making the infrastructure efficient will be a contribution to Human Rights Legal system.” 11. Pursuant to this, the then Honourable the Chief Justice of this Court, the Honourable Mr.K.A. Swamy contacted the Erode PUCL Unit and directed them to furnish the necessary papers to this Court. The direction so issued had been complied with. This apart, Dr.V. Suresh, the Joint Secretary of PUCL, Tamil Nadu and Pondicherry gave a representation to the then Honourable the Chief Justice of this Court explaining the lacunae in P.H.R.A. and the difficulties it poses in the functioning of the Human Rights Courts in this State. 12. In such a backdrop and setting, the Honourable the Chief Justice of this Court, the Honourable Mr.K.A. Swamy directed the Registry to take on file the petition filed by the Tamil Nadu Pazhangudi Makkal Sangam as suo motu Criminal Revision Case No.868 of 1996 - the present action under Art.227 of the Constitution of India (for short ‘Constitution’) and place the same before this Bench for laying down the law authoritatively regarding the scope, nature of jurisdiction and functioning of Human Rights Courts in this State and if necessary, to devise the forms, and registers to be maintained etc., by the said courts. [Paras. 13 to 25 - omitted. - Ed] 26. [Paras. 13 to 25 - omitted. - Ed] 26. From the pith and substance of the compelling or impelling reasons, which served as the basis for the Constitution of this Bench, the tentative reflections of our mind, at the stage of initial hearing, being given vent to learned Members of the Bar and the submissions of various learned Counsel, as referred to above, the points, as below, emerge meriting consideration: .(1) Whether it can - on the face of the statutory provisions under Sec.2(1)(d) defining ‘Human Rights’ and Sec.30 of P.H.R.A. dealing with Constitution of Human Rights Courts for trial of offences, arising out of violation of ‘Human Rights’ - be stated that there is no clear guidance in P.H.R.A. as to what can be regarded as ‘offences arising out of violation of Human Rights’? .(2) Whether there is any need or desirability to amend P.H.R.A. and specify the offences, arising out of violation of Human Rights, which can be tried by Human Rights Courts? .(3) (a) Whether all refractions or violations of ‘Human Rights’ embodied either in International Covenants or in the Constitution are enforceable by courts? and .(b) Whether all such violations or refractions amount to ‘offences’, giving else to a cause of action for initiation of prosecution proceedings before a H.R.C.? .(4) Whether violation of Human Rights, as recognised by International Treaty, Covenant or agreement, to which India is a party-in the absence of any law, made by the Parliament therefor, under the statutory provisions adumbrated in Art.253 read with Art.51(c) and Entry Nos. 12 to 14 and 95 of List I and Entry No.65 of List II of the Seventh Schedule of the Constitution-can be reckoned with and given effect, either by H.R.C. or superior courts of jurisdiction - High Courts and Supreme Court - creatures of the Constitution? .(5) Whether H.R.C. is not a Court or Tribunal constituted under Art.323-A or 323-B of the Constitution of India? .(6) Whether the constitution and designation of a Court of Session, in each and every District, as H.R.C. - a Special Court - with powers of a court of Original jurisdiction - for trial of all offences, arising out of violation of Human Rights, irrespective of their classification into various categories of offences - First Class, Second Class or exclusively triable by a Court of Session is permissible in law? .(7) Is it legally permissible for the relevant provisions of the Code to be swung into operation for the trial of offences arising out of violation of Human Rights, excepting matters in respect of which specific provisions had been made in P.H.R.A., by virtue of the sanguine provisions, in the shape of Secs.4, 5 and 26 of the Code? (8) Whether it is desirable to expressly provide for an appeal/revision in RH.R.A. to the High Court against a decision of H.R.C? .(9) Whether it is necessary for this Court to make and issue General rules and prescribe Forms etc., for regulating the practice and proceedings of H.R.C. under Art.227 of the Constitution? .(10) Whether it is desirable to incorporate a specific provision in P.H.R.A. as to the inapplicability of anticipatory bail provision, as contained in the Code? .(11) Whether it is desirable to frame a rule fixing a time-limit for trial and disposal of cases, arising under P.H.R.A.? .(12) Is it not incorrect to state that H.R.C, being a Criminal Court, has no power to grant compensation, except under Sec.357 of the Code? .(13) Whether it is desirable or necessary that Human Rights Courts are empowered to grant compensation subject to a prescribed limit to the victims by excluding the jurisdiction of the civil Courts, with a discretion for such courts to permit the Government Central or State, as the case may be - to recover the whole or part of the compensation so awarded from the Officer(s), who are found guilty and to award interim compensation to the victims, befitting such reliefs? (14) Is it not incorrect to state that the Scheme of P.H.R.A. in constituting N.H.R.C, S.H.R.C and H.R.C. indicates, in no uncertain terms, that N.H.R.C. and S.H.R.C are akin to Commissions of Inquiry set up under CIA and have no powers to give a definitive judgment in respect of offences, arising out of violation of Human Rights and are constituted with the object of creating awareness of Human Rights at the Governmental level and public at large, except the fact that they are permanent Standing Commissions, while, in sharp contrast, the only institution, which could inquire into, adjudicate upon and punish for violation of Human Rights is the H.R.C. first of its type anywhere in the world? .(15) Whether Human Rights Commissions-N.H.R.C and S.H.R.C. have powers to pass interim orders, pending inquiry by them? .(15) Whether Human Rights Commissions-N.H.R.C and S.H.R.C. have powers to pass interim orders, pending inquiry by them? .(16) Is it correct to state that P.H.R.A. recognises the principle that locus standi must stand expanded, in the sense of allowing or permitting, apart from the aggrieved party, anyone on his/ her behalf to move H.R.C. for redressal of his/ her grievances? .(17) Is it correct to state that the rigidity of IEA does not bind H.R.C., because human justice is not to be fettered by Sir James Pitt Stephen’s prescription of yore? .(18) Whether Human Rights Courts are required to have a change in the outlook, particularly involving custodial crimes and exhibit more sensitivity and adopt a realistic rather than a narrow and technical approach? .(19) Whether the usage of the expression, ‘specify a Public Prosecutor’, in Sec.31 of P.H.R.A. can be read to mean a Public Prosecutor, appointed under Sec.24 of the Code? .(20) Whether a direction can be issued to the Government for the appointment of a Special Prosecutor, in accordance with the salutary provisions adumbrated under Sec.31 of P.H.R.A., within a time frame, if no such attempts have been made till now? .(21) Whether - by taking into consideration the sordid fact of signal importance that the victims of Human Rights violation are - on the face of application of the relevant provisions of the Code relatable to lodging of a complaint or information, in respect of a cognizable offence - to approach the very same agency for investigating their complaint, which in the first instance got involved in the commission of Human Rights offences against them - a facet going against the very essence of natural justice and fair - play - it is permissible to find a solution in the existing state of affairs for the constitution of a SIT for investigation of Human Rights offences of cognizable nature by purposeful and meaningful interpretation of Sec.37 of P.H.R.A. for the purpose of advancement and in aid of implementing the objectivity sought to be achieved thereby? (22) Since the very enactment of P.H.R.A. is mainly for curbing Human Rights violations and for punishing the perpetrators of Human Rights offences, who are noneelse than public servants, is it correct to state that the provisions of Sec.197 of the Code cannot be made applicable, inasmuch as the same must have to be construed to have been dispensed with? (22) Since the very enactment of P.H.R.A. is mainly for curbing Human Rights violations and for punishing the perpetrators of Human Rights offences, who are noneelse than public servants, is it correct to state that the provisions of Sec.197 of the Code cannot be made applicable, inasmuch as the same must have to be construed to have been dispensed with? .(23) Is it necessary for a label or a report to be affixed to the complaint of offences arising out of violation of Human Rights that it is a fit case for launching prosecution, before Human Rights Courts - a condition precedent for the wheels of Criminal Law to be set in motion? .(24) Is it legally permissible for this Court in case, it comes to the conclusion that P.H.R.A. is materially defective in such a way, as is not possible to implement its provisions in ‘as is where is state’ for achieving the object, for which the same had been enacted - to issue a mandamus to the Union Government to formulate and frame adequate statutory provisions for giving succour and relief to the citizens of this country, whose rights, it is said, are being violated day-in and day-out? and (25) Whether the Court of C.J.M., Periyar District at Erode - a designated H.R.C. has the necessary and requisite power under P.H.R.A. to entertain the petition of the Tamil Nadu Pazhangudi Makkal Sangam represented by Mr.V.P.Gunasekaran, B.E., General Secretary? 27.Point Nos.1 to 4: Before embarking our attention to the arena of discussion, as to what can be regarded as offences, arising out of violation of Human Rights and incidental or allied matters therefor, grouped together in a compendious fashion here, with a view to avoid jarring repetition of projection of the ideas, which would otherwise happen, better it is, we feel, to trace the evolution of ‘Human Rights’, in a sharp and incisive fashion, besides certain decisions, emerging from superior courts of jurisdiction High Courts and Apex Court of this country - delving on violation of Human Rights, for a better understanding of such rights, which will enable us to give a proper thrust and focus to the various points, we are called upon to discuss and decide in this action. [Paras. 28 to 48 - omitted - Ed] 49. In the absence of contrary legislation, municipal Courts in India would respect rules of International Laws. (Vide: Gramophone Co. [Paras. 28 to 48 - omitted - Ed] 49. In the absence of contrary legislation, municipal Courts in India would respect rules of International Laws. (Vide: Gramophone Co. Ltd. v. Birendra, A.I.R. 1984 S.C.667: para-6: (1984)2 S.C.C.534: 1984 S.C.C. (Crl.) 313: (1984)1 Com.L.J. 362. 50. But, if there is any express legislation, contrary to a rule of International Law, Indian Courts are bound to give effect to Indian law. (Ali Akbar v. (UAR, A.I.R. 1966 S.C.230, para - 30, Moti Lal v.U.P., A.I.R. 1951 All. 257 (KB.), State of West Bengal v. Jugal, A.I.R. 1969 S.C. 1171, para - 6; and Gramaphone Co., A.I.R. 1984 S.C. 687. 51. Thus, Rules of International law as to immunity of a foreign State from being sued in India has been modified by the provisions of the Code of Civil Procedure, 1908, (Act V of 1908) - e.g., Sec.86 Ali Akbar, A.I.R. 1966 S.C. 230. 52. In interpreting ia statute, the court would so construe it, if possible, as will not violate any established principles of International law. (Vide: Cf. Maxwell (13th Edition pp. 183186). 53. Worthy it is to note at this juncture, the position of law, as has been spelt out correctly in a Kerala ruling Xavier v. Canara Bank Ltd., 1969 K.L.T. 927 at 931, 933, to which the Apex Court affixed its seal of approval and quoted in its judgment in the case of Jolly George Varghese v. Bank of Cochin, A.I.R. 1980 S.C. 470. The said Kerala ruling dealt with the effect of International Law and the enforceability of such law at the instance of individuals within the State and observation made therein is quoted at page 474 of the judgment of the Apex Court as below; "The remedy for breaches of International Law in general is not to be found in the law courts of the State because International Law ber se or proprio vigore has not the force or authority of civil law, till under its inspirational impact actual legislation is undertaken. I agree that the Declaration of Human Rights merely sets a common standard of achievement for all peoples and all nations but cannot create a binding set of rules. I agree that the Declaration of Human Rights merely sets a common standard of achievement for all peoples and all nations but cannot create a binding set of rules. Member States may seek, through appropriate agencies, to initiate action when these basic rights are violated, but individual citizens cannot complain about their breach in the municipal courts even if the country concerned has adopted the covenants and ratified the operational protocol. The individual cannot come to court but may complain to the Human Rights Committee, which, in turn, will set in motion other procedures. In short, the basic human rights enshrined in the International Covenants above referred to may at best inform judicial institutions and inspire legislative action within member States, but apart from such deep reverence, remedial action at the instance of an aggrieved individual is beyond the area of judicial authority. While considering the international impact of international covenants on municipal law, the decision concluded: “Indeed the construction I have adopted of Sec.51, C.P.C. has the flavour of Art. 11 of the Human Rights Covenants. Counsel for the appellant insisted that law and justice must be on speaking terms - by justice he meant, in the present case, that a debtor unable to pay must not be detained in civil prison. But my interpretation does put law and justice on speaking terms. Counsel for the respondent did argue that International Law is the vanishing point of jurisprudence is itself is vanishing in a world where humanity is moving steadily, though slowly, towards a world order, led by that intensely active, although yet ineffectual body, the United Nations Organisation. Its resolutions and covenants mirror the conscience of mankind and inseminate, within the member States, progressive legislation, but till this last step of actual enactment of law takes place, the citizen in a world of sovereign States, has only inchoate rights in the domestic Courts under these International covenants.” 54. Its resolutions and covenants mirror the conscience of mankind and inseminate, within the member States, progressive legislation, but till this last step of actual enactment of law takes place, the citizen in a world of sovereign States, has only inchoate rights in the domestic Courts under these International covenants.” 54. The prime question of importance that fell for consideration in the case of People’s Union for Civil Liberties (PUCL) v. Union of India, (1997)1 S.C.C. 301 was-as to whether ‘right of privacy’ - which, by itself has not been identified, under the Constitution, but the same has been embodied as a ‘Human Right’ under Art. 17 of the International Covenants on Civil and Political Rights, 1966 - to which, India is a signatory-which is almost on similar terms with Art. 12 of the Universal Declaration of Human Rights, 1948is a part of the right to ‘life’, and ‘personal liberty’ enshrined under Art21 of the Constitution, while considering the question of interception of telegraphic messages-tapping of telephonic conversation under Sec.5 (2) of the Telegraphic Act, 1885. (a) The scintillating discussion entered into in this regard is getting reflected in paragraphs 12 to 26 (pages 308-312), which read as under; “12. The word”life“and the expression”personal liberty“in Art.21 were elaborately considered by this Court in Kharak Singh case, (1964)1 S.C.R. 332 .A.I.R. 1963S.C. 1295. The majority read”right to privacy“as part of the right to life under Art.21 of the Constitution on the following reasoning: "We have already extracted a passage from the judgment of Field, J. in Munn v. Illinois, 94 U.S. 113 at 142 (1877)24 L. Ed. 77, where the learned Judge pointed out that life’ in the 5th arid 14th Amendments of the US Constitution Corresponding to Art.21, means not merely the right to the continuance of a person’s animal existence, but a right to the possession of each of his organs -his arms and legs etc. We do not entertain any doubt that the word ‘life’ in Art.21 bears the same signification. Is then the word ‘personal liberty; to be construed as excluding from its purvive wan invasion on the part of the police of the sanctity of a man’s home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal? Is then the word ‘personal liberty; to be construed as excluding from its purvive wan invasion on the part of the police of the sanctity of a man’s home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal? It might not be inappropriate to refer here to the words of the preamble to the Constitution that it is designed to ‘assure the dignity of the individual’ and therefore of those cherished human values as the means of ensuring his full development and evolution. We are referring to these objectives of the fram-ers merely to draw attention to the concepts underlying the Constitution which would point to such vital words as ‘personal liberty’ having to be construed in a reasonable manner and to be attributed that sense which would promote and achieve those objectives and by no means to stretch the meaning of the phrase. To square with any preconceived notions or doctrinaire constitutional theories, Frankfurter, J. observed in Wolf v. Colorado, 338 U.S. 25: "The security of one’s privacy against arbitrary intrusion by the police... is basic to a free society. It is therefore implicit in ‘the concept of ordered liberty’ and as such enforceable against the States through the Due Process Clause. The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English -speaking peoples... We have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment." Murphy, J. considered that such invasion was against ‘the very essence of a scheme of ordered liberty’. We have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment." Murphy, J. considered that such invasion was against ‘the very essence of a scheme of ordered liberty’. It is true that in the decision of the U.S. Supreme Court from which we have made these extracts, the Court had to consider also the impact of a violation of the Fourth Amendment which reads: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." and that our Constitution does not in terms confer any like constitution guarantee. Nevertheless, these extracts would show that an unauthorised intrusion into a person’s home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man an ultimate essential of ordered liberty, if not of the very concept of civilisation. An English Common Law maxim asserts that ‘every man’s house is his castle’ and in Semayne case, (1604)5 Co. Rep. 91a: (1949) 93 L.Ed. 1782, where this was applied, it was stated that ‘the house of everyone is to him as his castle and fortress as well as for his defence against injury and violence as for his repose’. We are not unmindful of the fact that Semayane case was concerned with the law relating to executions in England, but the passage extracted has a validity quite apart from the context of the particular decision. It embodies an abiding principle which transcends mere protection of property rights and expounds a concept of ‘personal liberty’ which does not rest on any element of feudalism or on any theory of freedom which has ceased to be of value. In our view clause (b) of Regulation 236 is plainly violative of Art.21 and as there is no ‘law’ on which the same could be justified it must be struck down as unconstitutional." 13. In our view clause (b) of Regulation 236 is plainly violative of Art.21 and as there is no ‘law’ on which the same could be justified it must be struck down as unconstitutional." 13. Subba Rao, J., (as the learned Judge then was) in his minority opinion also came to the conclusion that right to privacy was a part of Art.21 of the Constitution but went a step further and struck down Regulation 236 as a whole on the following reasoning: "Further the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person’s house, where he lives with his family, is his ‘castle’; it is his rampart against his encroachment on his personal liberty. The pregnant words of that famous Judge, Frankfurther J., in Wolf v. Colorado, 338 U.S. 25 pointing out the importance of the security of one’s privacy against arbitrary intrusion by the police, could have no less application to an Indian home as to an American one. If physical restraints on a person’s movements affect his personal liberty, physical encroachments on his private life would affect it in a larger degree. Indeed, nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy. We would, therefore, define the right of personal liberty in Art.21 as a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures. If so understood, all the acts of surveillance under Regulation 236 infringe the fundamental right of the petitioner under Art.21 of the Constitution." 14. Art.21 of the Constitution has, therefore, been interpreted by all the seven learned Judges in Kharak Singh case, (1964)1 S.C.R. 132: A.I.R. 1963 S.C. 1295 (majority and the minority opin ions) to include that ‘right to privacy’ as a part of the right to ‘protection of life and personal liberty’ guaranteed under the said Article.“ 15. In Gobindv. Art.21 of the Constitution has, therefore, been interpreted by all the seven learned Judges in Kharak Singh case, (1964)1 S.C.R. 132: A.I.R. 1963 S.C. 1295 (majority and the minority opin ions) to include that ‘right to privacy’ as a part of the right to ‘protection of life and personal liberty’ guaranteed under the said Article.“ 15. In Gobindv. State of M.P., (1975) 2 S.C.C.: 1975 S.C.C. (Crl.) 468, a three Judge Bench of this Court considered the constitutional validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations which provided surveillance by way of of several measures indicated in the said Regulations. This Court upheld the validity of the regulations by holding that Art.21 was not violated because the impugned regulations were”procedure established by law“in terms of the said Article. 16. In R. Rajagopal v. State of Tamil Nadu, (1994) 6 S.C.C. 632 , Jeevan Reddy, J. speaking for the Court observed that in recent times right to privacy has acquired constitutional status. The learned Judge referred to Kharak Singh’s case, (1964)1 S.C.R. 332 : A.I.R. 1963 S.C. 1295, Gobind case, (1975) 2 S.C.C.: 1975 S.C.C. (Crl.) 468 and considered a large number of American and English cases and finally came to the conclusion that”the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of the country by Art.21. It is a ‘right to be let alone’. A citizen has a right “to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters.” 17. We have therefore, no hesitation in holding that right to privacy is a part of the right to “life” and “personal liberty” enshrined under Art.21 of the Constitution. Once the facts in a given case constitute a right to privacy, Art.21 is attracted. The said right cannot be curtailed “except according to procedure established by law.” 18. The right to privacy by itself has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold as telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold as telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is part of modern man’s life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone conversation in the privacy of one’s home or office. Telephone tapping would, thus, infract Art.21 of the Constitution of India, unless it is permitted under the procedure established by law. 19. Right to freedom of speech and expression is guaranteed under Art.l9(1)(a) of the Constitution. This freedom means the right to express one’s convictions and opinions freely by word of moth, writing, printing, picture, or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expression. Telephone tapping unless it comes within the grounds of restrictions under Art. 19(2) would infract Art. 19(1)(a) of the Constitution. 20. India is a signatory to the International Covenant on Civil and Political Rights, 1966. Art. 17 of the said covenant is as under: “Art. 17: (1) No one shall be subject to arbitrary or unlawful interference with his privacy, family, human or correspondence, nor to lawful attacks on his honour and reputation. (2) Everyone has the right to the protection of the law against such interference or attacks.”Art. 12 of the Universal Declaration of Human Rights, 1948 is almost in similar terms.“ 21. International law today is not confined to regulating the relations between the States. Scope continues to extend. Today matters of social concern, such as health, education and economics apart from human rights fall within the ambit of International Regulations. International law is more than ever aimed at individuals. 22. It is almost an accepted proposition of law that the rules of customary international law which are not contrary to the municipal law shall be deemed to be incorporated in the domestic law. .23. International law is more than ever aimed at individuals. 22. It is almost an accepted proposition of law that the rules of customary international law which are not contrary to the municipal law shall be deemed to be incorporated in the domestic law. .23. Art.51 of the Constitution directs that the State shall endeavour to inter alia, foster respect for international law and treaty obligation in the dealings of organised peoples with one another. Relying upon the said Article, Sikri, C.J. in Kesavananda Bharathi v. State of Kerala, (1973) 4 S.C.C.225: (1975)2 S.C.R. (Supp.) I (S.C.C.333 - para 51) observed as follows: ."...it seems to me that, in view of Art.51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all a municipal law, in the light of the United National character and the solemn declaration subscribed to by India." .24. In A.D.M. v. Shivakant Shukla, (1971)2 S.C.C 521 , 754, para 542, Khanna, J. in his minority opinion observed as under: ."Equally well established is the rule of construction that if there be a conflict between the municipal law on one side and the international law or the provisions of any treaty obligations on the other, the courts would give effect to municipal law. If, however, two constructions of the municipal law are possible, the courts should lean in favour of adopting such construction as would make the provisions of the municipal law to be in harmony with the international law or treaty obligations. Every statute, according to this rule, is interpreted, so far as its language permits, so as not to be inconsistent with the comity of nations, or the established rules of international law, and the court will avoid a construction which would give rise to such inconsistency unless com-pelled to adopt it by plain and unambiguous language." .25. In Jolly George Varghese v. Bank of Cochin, (1980)2 S.C.C. 360 : A.I.R. 1980 S.C. 470, Krishna Iyer, J. posed the following question: "From the perspective of international law the question posed is whether it is right to enforce a contractual liability by imprisoning a debtor in the teeth of Art.11 of the International Covenant on Civil and Political Rights. In Jolly George Varghese v. Bank of Cochin, (1980)2 S.C.C. 360 : A.I.R. 1980 S.C. 470, Krishna Iyer, J. posed the following question: "From the perspective of international law the question posed is whether it is right to enforce a contractual liability by imprisoning a debtor in the teeth of Art.11 of the International Covenant on Civil and Political Rights. The Article reads:" No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation." [Italics added] .The learned Judge interpreted Sec.51 of the Code of Civil Procedure consistently with Art.11 of the International Covenant. 26. Art.17 of the International Covenant - quoted above -does not go contrary to any part of our municipal law. Art.21. of the Constitution has, therefore, been interpreted in conformity with international law." 55. The Supreme Court, in a recent decision in the case of Shri D.K. Basu v. State of West Bengal, (1996)4 Crimes 233 (S. C), happened to consider the question as to whether any form of torture or cruel, inhuman or degrading treating would fall within the inhibition of Art.21 of the Constitution and what the court said in this regard is getting reflected in paragraph 21 (pages 243-244), the relevant portion of which reads as under: "21. Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. The rights inherent in Arts, 21 and22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Art.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 policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic ‘No’. The precious right guaranteed by Art.21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law." 56. The answer, indeed, has to be an emphatic ‘No’. The precious right guaranteed by Art.21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law." 56. From the discussion, as above, it is thus crystal clear that the enforceability of human rights depend upon the following factors: ‘Human Rights’ embodied in any International covenant, treaty etc., to which India is a party: .(1) either gets incorporated asa justiciable right or the same to be as part and parcel of a right in any of the justiciable rights adumbrated in Part III of the Constitution; .(2) gets reflected either by way incorporated or transformation in the municipal law of this country by way of legislation by the Parliament in respect of matters, which are permissible and not opposed to fundamental rights, as guaranteed under Part III of the Constitution, in the manner contemplated by Art.253 read with Art.51(c) and Entry Nos.12 to 14 and 95 of List I and Entry No.65 of List II of the Seventh Schedule of the Constitution. .(3) gets implemented by the exercise in the executive power of the Union under Art.73 in so far as it concerns matters, in respect of which legislative or constitutional amendment is not required. .(4) Violation of ‘Human Rights’-either recognised by the Constitution as justiciable rights or recognised by municipal law may occur at the instance of private individuals or the instrumentalities of the State-so to say-public servants etc. It is only such violations of Human Rights’ of justiciable nature, which occurred at the instance of the instrumentalities of the State that get attracted the jurisdiction of the High Court under Art.226 or of the Supreme Court under Art.3.2, Constitution; and violations of such rights, if occurred, at the instance of private individuals, there is no other go for the affected individual, except to seek his remedy under the ordinary law of the land. 57. In order to highlight the principles, as stated above, useful reference may now be made to a few decisions emerging from the Apex Court of this country. 57. In order to highlight the principles, as stated above, useful reference may now be made to a few decisions emerging from the Apex Court of this country. (i) What Their Lordships of the Supreme Court said in paragraphs 6 and 7 (pages 109110) in the case Vidya Verma v. Shiv Narain A.I.R. 1956 S.C. 108, as respects the forum, before which violation of the right of personal liberty by a private individual can be adjudged is relevant and the said paragraphs read as under: "(6) As the question that arises here has been discussed at length in two earlier decisions of this Court we need not examine the matter in any detail. The fundamental right that is said to be infringed is the one conferred by Art.21: the right to personal liberty In A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27, four of the six learned Judges who were in that case held that the word "law" in Art.21 referred to State - made law and not to law in the abstract. They rejected the contention that this was the same as the due process clause in the American Constitution. One learned Judge dissented and one expressed no opinion on this point. Patanjali Sastri, J. (as he then was) said at p.74 that as a rule constitutional safeguards are directed against the State and its organs and that protection against violation of rights by individuals must be sought in the ordinary law; and S.R. Das, J. dealing with the question of preventive detention said at pp. 120-121 I that Art.21 protects a person against preventive detention by the executive without the sanction of a law made by the legislature. (7) This principle was applied to Art. 19(1)(f) and 31(1) by a Bench of five Judges in P.D. Shamdasani v . Central Bank of India, A.I.R 1952 S. C. 59, who held that violation of rights of property by a private individual is not within the purview of these Articles, therefore, a person whose rights of property are infringed by a private individual must seek his remedy under the ordinary law and not under Art.32. Art.21 was not directly involved but the learned Judges referring to Art.31(1) said at page 60. Art.21 was not directly involved but the learned Judges referring to Art.31(1) said at page 60. "It is clear that it is a declaration of the fundamental right of private property in the same negative form in which Art.21 declares the fundamental right to life and liberty. There is no express reference to the State in Art.21. But could it be suggested on that account that article was intended to afford protection to life and personal liberty against violation by private individuals? The words ‘except by procedure established by law’ plainly exclude such a suggestion." They held that the language of Art.31(1) was similar and decided that Art.31(1) did not apply to invasions of a right by a private individual and consequently no writ under Art.32 would lie in such a case. For the same reasons, we hold that the present petition which is founded on Art.21 does not lie under Art.32. It is accordingly dismissed." (ii) In P.D. Shamdasani v. Central Bank of India, A.I.R. 1952 S.C. 59, what their Lordships of the Supreme Court said in paragraphs 3 to 5 (at pages 59-60) on the question under discussion is relevant and the said paragraphs read as under: "(3)... Neither Art.l9(1)(f) nor Art.31(1) on its true construction was intended to prevent wrongful individual acts or to provide protection against merely private conduct, Art.19 deals with the ‘right to freedom’ and by clause (1) assures to the citizen certain fundamental freedoms including the freedom "to acquire, hold and dispose of property" subject to the power of the State to impose restrictions on the exercise of such rights to the extent and on the grounds mentioned in clauses (2) to (6). The language and structure of Art.19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in The legitimate exercise of its power to regulate private rights in the public interest. Violation of rights of property by individuals is not within the purview of the article. .(4) The position is no better under Art.31(1). Violation of rights of property by individuals is not within the purview of the article. .(4) The position is no better under Art.31(1). The petitioner has urged that clause (1) should be construed apart from and independently of the rest of the article, and, if so construed, its language is wide enough to cover infringements of rights of property by private individuals, he laid emphasis on the omission of the word "State" in clause (1) while it was used in clause (2) of the same article as well as in many other articles in Part III. Referring to Entry No.33 of the Union List, Entry No.36 of the State List and Entry No.42 of the Concurrent List of the seventh schedule to the Constitution, he also argued that, while these Entries read with Art.246 empowered Parliament and the State Legislature to make laws regarding acquisition or requisitioning of property for the purposes of the Union or the State, as the case may be, no power was conferred to make laws regarding "deprivation of property" by the State so that the "deprivation" contemplated in clause (1) could only be deprivation by individuals. Sub-sec.(1) of Sec.299, Government of India Act, 1935, corresponding to clause (1) of Art.31 was, it was pointed out, omitted in the draft Art.19 (later numbered as Art.31) which retained in a modified from only the provision contained in Sub-sec.(2) of that section relating to compulsory acquisition of property for public purposes. But, clause (1) was subsequently restored and Art.31 was enacted in its present form as recommended in Drafting Committee’s Report and this, it was claimed, showed that clause (1) was intended to operate as a district provision apart from clause (2). We see no force in any of these arguments. (5) In support of the argument that clause (1) should be construed in isolation from the rest of the article, the petitioner relied on certain observations of our learned brother Das in Charanjit Lal v. The Union of India, 1950S.C.R. 869, where the view was expressed that clause (1) enunciated the general principle that no person should be deprived of his property except by authority of law and laid down no condition for payment of compensation, while clause (2) dealt with deprivation of property brought about by acquisition or taking possession of it and required payment of compensation. In other words, deprivation referred to in clause (1) must be taken to cover deprivation otherwise than by acquisition or requisitioning of property dealt with in clause (2). We consider it unnecessary for the question. Even assuming that clause (1) has to be read and construed, apart from clause (2), it is clear that it is a declaration of fundamental right of private property in the same negative form in which Art.21 declares the fundamental right to life and liberty. There is no express reference to the State in Art.21. But could it be suggested on that account that article was intended to afford protec-‘ tion to life and personal liberty against violation by private individuals? The words "except by procedure established by law" plainly exclude such a suggestion. Similarly, the words "save by authority of law" in clause (1) of Art.31 show that it is a prohibition of unauthorised governmental action against private property, as there can be no question of one private individual being authorised by law to deprive another of his property". 58. In the light of the discussion that we have entered into and the enunciation of the principles relating to ‘Human Rights’ as above, let us make an endeavour to understand as to what the concepts of ‘Human Rights’ and ‘Offences’ arising out of violation of ‘Human Rights’, mean under the relevant provisions of P.H.R.A. 59. (a) Sec.2(1)(d) of P.H.R.A. defines ‘Human Rights’, as extracted in paragraph 15(i) supra. (b) "International Covenant" is defined in Sec.2 (1) (f) thus: "International Covenants’ means the International Covenants on Civil and Political Rights and the International Covenants on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on the 16th December, 1966." .(c) The definition of ‘Human Rights’ is a "means definition" and not an "inclusive definition." Such being the case, it goes without saying that ‘Human Rights’ cannot mean anything other that which has been specifically mentioned therein. To put it in an emphatic fashion, according to the said definition, ‘Human Rights’ cannot mean anything other than the rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the Internation Covenants and enforceable by Courts in India. To put it in an emphatic fashion, according to the said definition, ‘Human Rights’ cannot mean anything other than the rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the Internation Covenants and enforceable by Courts in India. .(d) The analysis of the definition will reveal that it consists of the ingredients as below: .(i) ‘Human Rights’ must relate to any of the following, namely, .(a) Life; .(b) Liberty; .(c) Equality; and .(d) Dignity of the individual, .(ii) Those rights must be guaranteed by the Constitution or embodied in the International Covenants; and (iii) Those rights are enforceable by Courts in India. 60. It is thus crystal clear that from the broad spectrum of Human Rights horizon, a specific segment has been carved out accommodating certain ‘Human Rights’ alone under the purview of RH.R.A. 61. RH.R.A. does not enumerate, of course, Human Rights offences. However, P.H.R.A. does contain definite indications as to what would be construed as such offences. Such indications are available in Sec.30 of P.H.R.A., as extracted in paragraph 15 (ii) supra. 62. The Phraseology, "offences arising out of violation of Human Rights," as contained in Sec.30, if read in the light of "Human Rights’, defined in Sec.2 (1) (d) of P.H.R.A. would throw sufficient light, as respects the necessary and requisite parameters for identifying such offences. Pertinent it is at this structure to refer to the definition of ‘offence’ under Sec.2(n) of the Code, as already extracted in paragraph 15 (iii) (a) supra. 63. In the light of definition of ‘offences’, as contained in Sec.2(n) of the Code, the offences arising out of violation of ‘Human Rights’, as mentioned in Sec.30 of P.H.R.A., will, in the context of the definition of ‘Human Rights’, under Sec.2(1)(d) thereof, means that such act or omission on the part of the instrumentalities of the State, that is to say, public servants, punishable by law for the time being in force, as relatable to life, liberty, equality and dignity of the individuals and nothing else. 64. One may conceive and perceive that I.P.C. may cover a major portion of such offences, besides other laws. In this view of the matter, the jurisdiction of H.R.Cs. pertains to the offences of the categories, as mentioned above. 65. 64. One may conceive and perceive that I.P.C. may cover a major portion of such offences, besides other laws. In this view of the matter, the jurisdiction of H.R.Cs. pertains to the offences of the categories, as mentioned above. 65. We are of the view that the parameters for identifying offences, arising out of violation of ‘Human Rights’ got reflected adequately in the salient provisions adumbrated under Secs.2(1)(d) and 30 of P.H.R.A. and if any attempt is made to enumerate such offences, it is nothing but redundancy and duplication. We cannot remain silent, but to appreciate the intellectual ingenuity, dexterity and skill and legislative wisdom of the parliamentarians in encompassing the parameters for identifying offences out of violation of ‘Human Rights’, with consummate ease in a capsule form in Secs.2 (1) (d) and 30 of P.H.R.A. (b) If, in any quarter, there is a feeling that ‘torture’ in any form - the commission of which undermines the dignity and respect of the individual - has not been defined and included as an offence in I.P.C., steps may have to be taken to include the offence of ‘torture’ also, besides such other conceivable offences, falling within the horizon of ‘violation of Human Rights’ therein and efforts towards that direction, if made and got fructified, in the sense of bringing out necessary and requisite amendments to I.P.C, solace may be brought to the minds and hearts of one and all interested in the progress of a free and fair society. 66. For reasons, as above, we record our findings respectively on Point Nos.1 to 4 as below: .(a) Point No. 1: There is a clear guidance in P.H.R.A. as to what can be regarded as ‘offences’ arising out of violation of ‘Human Rights’ .(b) Point No.2: There is no need or desirability to amend P.H.R.A. and specify the ‘offences’ arising out of violation of ‘Human Rights’, which can be tried by H.R.Cs. .(c) Point No.3(a): It is only such violations of ‘Human Rights’ as embodied in International Covenants, treatise etc., either incorporated etc., either incorporated in the Constitution, as justiciable right or incorporated or transformed in municipal law, at the instance of the instrumentalities of the State that get attracted the jurisdiction of the High Court under Art.226 or the Supreme Court under Art.32 of the Constitution. The violation of such rights, if occurred at the instance of private individuals, there is no other go for the affected individual, except to seek his remedies under the ordinary law of the land. .(b) In the light of the definition of ‘offence’, as contained in Sec.2(n) of the Code, ‘offence’ arising out of violation of ‘Human Rights’, as mentioned in Sec.30 P.H.R.A., in the context of the definition of ‘Human Rights’ in Sec.2(1)(d) of P.H.R.A., means such act or omission on the part of the instrumentalities of the State, that is to say, public servants, punishable by law for the time being in force, as relatable to life, liberty, equality and dignity of the individual and nothing else. .(d) Point No.4: Violation of ‘Human Rights’, as recognised by International treaty, covenant or agreement, to which India is a party, in the absence of any law made by the Parliament therefor under the salutary provisions adumbrated under Art.253 read with Art.51(c) and Entry Nos.12 to 14 and 95 of List 1 and Entry No.65 of List II of the Seventh Schedule of the Constitution cannot be reckoned and given effect to either by H.R.Cs. or superior courts of jurisdiction-High Courts and the Apex Court creatures of the Constitution. However, there can be no prohibition for the Courts in India to apply the principles underlying such covenants, treatise etc., in the process of interpretation, if they are not in conflict with municipal law or not opposed to fundamental rights of Chapter III of the Constitution. 67.Point Nos.5 to 11: Designation a Court of Session in each District to be a H.R.C. - a Special Court-for trial of offences arising out of violation of Human Rights can, by no stretch of imagination, be construed as a tribunal or court constituted under Art.323-A or 323-B of the Constitution. The reason is obvious. These two articles, inserted by the constitution (42nd Amendment) Act, 1976 empower the legislature to set up Administrative to set up Administrative Tribunals for adjudication of disputes between the State and the individual relating to certain specific matters and to lay down the jurisdiction and powers of such tribunals. They open a new Chapter in the Indian Constitutional and Administrative Law, by substantially excluding the judicial review of administrative decisions. They open a new Chapter in the Indian Constitutional and Administrative Law, by substantially excluding the judicial review of administrative decisions. ‘Offences arising out of violation of Human Rights’ do not fall under anyone of the enumerated matters in those articles for adjudication of which the tribunals are constituted. Such being the case, it cannot be said that H.R.C. is a Court or Tribunal constituted either under Art.323-A or 323-B of the Constitution. .68. Sec.30 of RH.R.A. empowers the State Government, with the concurrence of the Chief Justice of the High Court, by a notification to specify for each district, a Court of Session, to be a H.R.C. a Special Court with the powers of a Court o9f original jurisdiction to try ‘offences’ arising out of violation of Human Rights. Except this sort of constitution of H.R.Cs., by designating a Court of session, in each and every district, under Sec.30 of P.H.R.A. and making provision for appointment of a Special Public Prosecutor under Sec.31 thereof, P.H.R.A. does not contain any provision relatable to the procedure for the trial of offences, arising out of violation of Human Rights. To the tentative reflection of ours -as to the applicability of the Code in respect of trial of offences under any other laws - given vent to by way vocal expression to learned Members of the Bar - to kindle their fiery imagination and thought process, in exploring nuances of law at the time of initial hearing of the present action - which have been penned down in a detailed fashion by us in the foregoing discussion learned Members of the Bar, who participated in the discussion, did not strike even a slightest discordant note. But on the other hand, all of them in one chorus voice emphatically said that such sort of tentative reflection of ours, depicted the correct legal position. Such being the case, there is no difficulty for us to tread safely on the path, laid down by us, by way of tentative reflections, in the sense of affixing our seal of approval to the said tentative reflections. 69. Such being the case, there is no difficulty for us to tread safely on the path, laid down by us, by way of tentative reflections, in the sense of affixing our seal of approval to the said tentative reflections. 69. Once this sort of a conclusion is arrived at, it goes without saying that the procedure prescribed for the trial of various categories of offences under the Code will be applicable for the trial of ‘offences arising out of violation of Human Rights’ before the Court of Session designated as H.R.C. - a Special Court. 70. No doubt, a Court of Session has been designated as H.R.C. - a Special Court with the powers of a court of original jurisdiction. From this, it cannot be stated that in all eventualities and situations, the procedure prescribed for trial before the said court under Chapter XVIII, Secs.225 to 237 of the Code will be applicable. The reason is rather obvious. ‘Offences’ arising out of violation of ‘Human Rights’ may fall under various categories, such as Second Class, First Class or exclusively triable by a Court of Session. Further, depending upon the gravity and extent of the punishment and the nature of the case instituted, that is to say, whether instituted on a police report or otherwise than on a police report, the procedure prescribed there, is not one and the same. 71. Chapter XIX deals with trial of warrant cases by Magistrates. Secs.238 to 243 and Secs.244 to 247 respectively deal with the procedure relatable to cases instituted on police report and cases instituted, otherwise than on police report, while Secs.248 to 250 are relatable to the procedure regarding the conclusion of trial applicable to both categories. 72. Chapter XX deals with trial of summons cases by Magistrates Secs.251 to 259. .73. The peculiarity of P.H.R.A., as already indicated, is that all ‘offences’ arising out of violation of ‘Human Rights’ - whether of the Second Class, First Class or exclusively triable by a Court of Session - are required to be tried by a H.R.C. - a Special Court which is in the cadre of a Court of Session. 74. If the procedure prescribe for trial before a Court of Sessions under Chapter.XVIII is to be followed in respect of ‘offences arising out of violation of Human Rights’, it will lead to absurdities. 74. If the procedure prescribe for trial before a Court of Sessions under Chapter.XVIII is to be followed in respect of ‘offences arising out of violation of Human Rights’, it will lead to absurdities. If the ‘offences arising out of violation of Human Rights’ is of, .(1) such a nature, as is required to be tried exclusively by a Court of Session, the procedure prescribed under Chapter XVIII of the Code has to be follows; .(2) a warrant case, either instituted on a police report or otherwise than on a police report, the requisite procedure, as the case may be, as prescribed under Chapter XIX of the Code has to be followed; and .(3) a summons case, the procedure prescribed under Chapter XX of the Code has to be followed. 75. If the trial of ‘offences’ arising out of violation of Human Rights belonging to the category of Second of First Class takes place before H.R.C. - a Special Court, which is in the cadre of a Court of Session and results in conviction and consequent appropriate sentence, right to appeal to affected party will be lost and he can, if at all, prefer a revision against such conviction and sentence before the High Court. The affected party, even in such a situation, cannot have any grievance, inasmuch as he had been given the fullfledged opportunity of his defence before the trial court. The right of appeal cannot be claimed as a matter of right and denial of such a right is of no consequence, when especially audi alteram partem rule had been complied with in full measure during the course of trial. 76. Further, there is no need at all to expressly provide for an appeal/ revision before the High Court the decisions of H.R.Cs., inasmuch as there are adequacy of provisions in the Code in that regard. 77. 76. Further, there is no need at all to expressly provide for an appeal/ revision before the High Court the decisions of H.R.Cs., inasmuch as there are adequacy of provisions in the Code in that regard. 77. Once the Code is applicable to the trial of offences arising out of violation of Human Rights, there is no need at all to make and issue general rules and prescribe forms etc., for regulating the practice and proceedings of H.R.C., which is in the nature of things, a Criminal Court, dealing with special type of offences relatable to violation of ‘Human Rights.‘In such an eventuality, Criminal Rules Practice and Orders, 1931 (C.R.P.), which had been framed in the exercise of powers conferred by Art.227 of the Constitution for the guidance of Criminal Courts in the State will be applicable for regulating the practice and proceedings of H.R.Cs. Further, Sec.476 of the Code prescribes, “subject to the power conferred by Art.227 of the Constitution, the forms set forth in the Second Schedule, with such variations as the circumstances of each case require, may be used for the respective purposes therein mentioned, and if used shall be sufficient.” 78. If we turn to the Second Schedule, pursuant to Sec.476 of the Code, Form Nos.1 to 56 had been prescribed for regulating the practice and proceedings of the Criminal Courts. Such being the case, there is no need at all, we rather feel, to make and issue General Rules and prescribe Forms etc., for regulating the practice and proceedings of H.R.Cs. 79. A voice was heard from certain quarters of Human Rights Activists that it is desirable to incorporate a specific provision in P.H.R.A. as to the inapplicability of the anticipatory bail provision, as contained in the Code to offenders involved in offences, arising out of Human Rights violations, at the instance of the instrumentalities of the State, that is to say, ‘public servants’ etc. We, on our part, are unable to affix our seal of approval to such a voice. Arrest is not a must, in all eventualities and situations. Arrest and detention in prison of the person accused of an offence is necessary to see that such a person is available for trial. Further, if he is available outside as a freelance, there is every likehood of the evidence being tampered with. Arrest is not a must, in all eventualities and situations. Arrest and detention in prison of the person accused of an offence is necessary to see that such a person is available for trial. Further, if he is available outside as a freelance, there is every likehood of the evidence being tampered with. The two contingencies, as above, may be contained by the imposition of appropriate conditions, while granting anticipatory bail to such offenders. In this view of the matter, we feel that it is now desirable to incorporate a specific provision in P.H.R.A. as to the inapplicability of the anticipatory bail provision, as contained in the Code, to offenders - instrumentalities of the State - committing offences, arising out of violation of Human Rights. 80. Anxious concern was also expressed in some quarters to frame a rule fixing the time limit for trial and disposal of cases arising under P.H.R.A.. Though we are able to understand and appreciate the anxious concern so expressed, yet, we rather feel that it is not desirable to fix a time-limit for the trial and disposal of cases arising under P.H.R.A. Fixing of a time limit for trial and disposal of such cases alone is not going to solve the problem, it is not as if a separate H.R.C. has been constituted in the cadre of a Court of Session in each and every district for trial of offences, arising out of violation of Human Rights. The sordid fact is that the existing Court, in the cardre of a Court of Session in each and every district, has been designated as a H.R.C. for trial and disposal of such offences, that is to say, such Courts have to bear the brunt of the additional burden of disposal of ‘Human Rights’ cases, apart from the disposal of other cases, pending on their file. Judicial notice has to be taken note of the fact that there is heavy pendency in almost all the courts in the State and Court of Session is no exception. Further, the Presiding Deity of the existing Court of Session, not having been provided with necessary and adequate band of staff, cannot be expected to carry the load do work beyond a particular level. Further, the Presiding Deity of the existing Court of Session, not having been provided with necessary and adequate band of staff, cannot be expected to carry the load do work beyond a particular level. Such being the position, fixing a time-limit for trial and disposal of ‘Human Rights’ cases cannot be anyone, other than an Utopian ideology with ‘nil’ result to be produced. Better it is, in such circumstances, no such time-limit is fixed for trial and disposal of cases, though an emphasis is made that every earnest effort is to be taken to try and dispose of those cases as expeditiously as possible. 81. For the reasons above, we record our findings respectively on Point Nos.5 to 11 as below: .(a) Point No. 5: H.R.C. is not a Court or Tribunal of a Court constituted under Art.323-A or 323-B of the Constitution. But it is a Court constituted under Sec.30 of P.H.R.A., as a ‘Special Court’ in the cadre of a Court of Session with powers of a Court of original jurisdiction. .(b) Point No.6: The Constitution and designation of a ‘Court of Session’ in each and every district as H.R.C. - a ‘Special Court’ - with powers of a court of original jurisdiction for trial of all offences arising out of violation of ‘Human Rights’, irrespective of their classification into various categories of offences First Class, Second Class or exclusively triable by Court of Session is permissible under law. (c) Point No. 7: It is legally permissible for the relevant provisions of the Code to be swung into operation for the trial of offences arising out of violation of ‘Human Rights’, excepting matters in respect of which specific provisions had been made in P.H.R.A., by virtue of sanguine provisions, in the shape of Secs.4, 5 and 26 of the Code. .(d) Point No. 8: There is no need at all to expressly provide for an appeal/ revision in P.H.R.A. to the High Court against the decisions of H.R.Cs. .(e) Point No. 9: There is no necessity or need for this Court to make and issue General Rules and prescribe Forms etc., for regulating the practice and proceedings of H.R.Cs. under Art.227 of the Constitution. .(f) Point No. 10: It is not at all desirable to incorporate a specific provision in P.H.R.A. as to the inapplicability of anticipatory bail provision in the Code. under Art.227 of the Constitution. .(f) Point No. 10: It is not at all desirable to incorporate a specific provision in P.H.R.A. as to the inapplicability of anticipatory bail provision in the Code. and (g) Point No.11: It is not desirable to frame a rule fixing a time limit for trial and disposal of cases arising under P.H.R.A., except to make an emphasis that every earnest effort shall be taken to try and dispose of those cases as expeditiously as possible. 82.Point Nos. 12 and 13: The discussion required to be made here involves consideration and finding solutions to certain moot and knotty questions- .(1) Whether a H.R.C., being a Criminal Court, has no power to grant compensation, except under Sec.357 of the Code? and .(2) Whether it is desirable to empower H.R.C. to grant compensation, subject to a prescribed limit to the victims of ‘Human Rights violations’, by excluding the jurisdiction of the Civil Court, with a discretion for such Court to permit the Government - Central or State, as the case may be -to recover the whole or part of the compensation so awarded from the officer(s), who are found guilty and to award interim compensation to the victims befitting such relief? 83. Worthwhile it is to note at this juncture that P.H.R.A. does not contain any provision to award compensation to the victims of Human Rights violation. Equally true it is, the Constitution also does not contain any provision relatable to payment of compensation to the victims of Human Rights violation of a justiciable nature. Till about a few decades before, the liability of the Government for tortious act of its public servants was 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 own play. For the violation of the fundamental right to life, or the basic Human Rights, the Apex Court, however, took the view that the defence of sovereign immunity is not available to the State for the tortious acts of public servants and for the established violation of the rights guaranteed by Art.21 of the Constitution. 84. For the violation of the fundamental right to life, or the basic Human Rights, the Apex Court, however, took the view that the defence of sovereign immunity is not available to the State for the tortious acts of public servants and for the established violation of the rights guaranteed by Art.21 of the Constitution. 84. The discussion entered into by His Lordship, Dr.A.S.Anand, J of the Supreme Court, speaking for the Bench in the case of Shri D.K. Basu v. State of West Bengal, 1996 Crimes 233 (S.C.), while giving vent by way of vocal expression to such a proposition is scintillating and the same, if penned down here, is bound to untie the knot put to the knotty questions passed for consideration, as above, thereby reliving the brunt of burden slided on our shoulders, to find out the answers to such questions and such discussion gets reflected in paragraphs 35 to 42 (pages 251-256), which read as under: PUNIVTIVE MEASURES “35. UBI JUS IBI REMEDIUM: There is no wrong without a remedy. The law wills that in every case where a 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. 36. Some punitive provisions are contained in the India Penal Code which seek to punish violation of right to life. Sec.220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a corrupt or malicious motive. Secs.330 and 331 provide for punishment of those who inflict injury or grievous hurt on a person to extort confession or information in regard to commission of an offence. Illustrations (a) and (b) to Sec.330 make police office guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Sec.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. Sec.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, not 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. 37. Art.9(5) of the International Covenant provides that”anyone who has been the victim of unlawful arrest of detention shall have enforceable right to compensation.“Of course, the Government of India at the time of its ratification (of I.C.C.P.R.) 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 a party to the covenant. That reservation, however, has now lost its relevance in view of the law laid down by this Court in a number of cases awarding compensation for the infringement of the fundamental right to life of a citizen. (See: with advantage Rudal Shah v. State of Bihar, (1983)4 S.C.C. 141 , Sebastian M.Hongrey v. Union of India, (1984)3 S.C.C. 339 , Bhim Singh v. State of J. & K., 1984 S.C.C. (Supp.) 504, Saheli v. Commissioner of Police, Delhi, (1980)1 S.C.C. 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 to compensation in cases of established unconstitutional deprivation of personal liberty or life. (See: Neelabati Bahera v. State, (1990)1 S.C.C. 422 . 38. 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 to compensation in cases of established unconstitutional deprivation of personal liberty or life. (See: Neelabati Bahera v. State, (1990)1 S.C.C. 422 . 38. Till about two decades ago the liability of the Government for the Government for tortious act of its public servants was 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 acts of the public servants and for the established violation of the rights guaranteed by Art.21 of the Constitution of India. In Nilabati Behara v. State, (1990)1 S.C.C. 422 , the decision of this Court in Kasturi Lal Ralia Ram Jain v. State of U.P., (1965)1 S.C.R. 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 scheme and is no defence to the Constitutional remedy under Arts.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 compensation. The decisions of this Court in Rudul Shah and others, (1983)4 S.C.C.141, in that line relate to award of compensation for contravention of fundamental rights, in the Constitutional remedy under Arts.32 and 226 of the Constitution. The decisions of this Court in Rudul Shah and others, (1983)4 S.C.C.141, in that line relate to award of compensation for contravention of fundamental rights, in the Constitutional remedy under Arts.32 and 226 of the Constitution. On the other hand, Kasturilal, related to the value of the goods seized and not returned to the owner due to the fault of the Government servants, the claim being of damages for 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." 39. 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 for 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 Art.21 of the Constitution is a 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 Art.32 or 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Art.21, is an exercise of the Courts under the Public law jurisdiction for penalising the ‘wrong doer 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. 40. 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 aspiration of the citizens because the courts 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 damages is a long drawn and cumbersome judicial process. 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 damages is a long drawn and cumbersome judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right go life of the citizen is, therefore, a 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, (1990)1 S.C.C. 422 , 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 Art.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 Art.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 can suppose that the executive will never be guilty of the sins that are common on all of us. You may be sure that they will sometimes do things which they ought not 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, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal. 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, our 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 of 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." 41. 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 courts in Ireland from developing remedies, including the award of damages, not only against individuals guilty of infringement, but against the State itself. 42. The informative and educative observations of O’Dalaign C.J. in The State (At the Prosecution of Quinn) v. Ryan, (1965) I.R. 70, 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 substance were being assured to the individual and that the courts were the custodians of those rights. 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 substance were being assured to the individual and that the courts were the custodians of those rights. As a necessary corollary, it follows that on one can with impunity set these rights at nought or circumvent them, and that the court’s powers in this regard are as ample as the defence of the Constitution requires." [Emphasis supplied] In Byrne v. Ireland, (1972) I.R. 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 to 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 if there has been a failure to discharge the constitutional obligation imposed." [Emphasis supplied] In Maharaj v. Attorney General of Trinidad and Tobago, (1972) I.R. 241, the Privy Council while interpreting Sec.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 minority said: "It was argued on behalf of the Attorney General that Sec.6 (2) does not permit of an order for monetary compensation despite the fact that this kind of redress was ordered in Janudoo v. Attorney General of Guyana. Reliance was placed on the reference in the sub-section to enforcing, or securing its enforcement of, any of the provisions of the said foreging section and 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. Reliance was placed on the reference in the sub-section to enforcing, or securing its enforcement of, any of the provisions of the said foreging section and 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 an order for payment of compensation when a right protected under Sec. 1 ‘has been’ contravened is clearly a form of ‘redress’ which a person is entitled to claim under Sec.6(1) and may well be the 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 Sec.6(2), viz., jurisdiction ‘to hear and determine any application made by any person in pursuance of Sub-sec.(1) of this section.‘ The very wide powers to make orders, issue writs and give directions are axicillary to this." Lord Diplock then went to observe (at page 680): "Finally, their Lordships would say something about the measure of monetary compensation recoverable under Sec.6 where the contravention of the claimant’s constitutional rights consists of deprivation of liberty otherwise than 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 v. Attorney General (Baigent ‘s case), 1994 N.Z.L.R.667, the Court of Appeal in New Zealand 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 than 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 that 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 and effective remedied 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 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 judgments of the Irish Courts, the Privy Council and referred to the law laid down in Nilabati Behara v. State, (1990)1 S.C.C. 422 thus: “Another valuable authority comes from India, where the constitution empowers the Supreme Court to enforce rights guaranteed under it. In Nilabati Behera v. State of Orissa, 1993 Crl.L.J. 2899, the Supreme Court awarded damages against the State 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 one 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 contravention of fundamental rights to which the principle of sovereign immunity does not apply. These observation 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 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 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 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 power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights.“Each of the five members of the Court of Appeal in Simpson’s case 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.” 85. His Lordship Dr.A.S. Anand, J. summed up the legal position emerging from the discussion in paragraph 43, which reveals factors, as below, in no uncertain terms: .(1) It most of the jurisdiction, 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; .(2) The claim of the citizen is based upon the principle of strict liability to which the defence of sovereign immunity is not available; .(3) The citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer; .(4) In the assessment of compensation, emphasis him to be on the compensation and not on punitive element; .(5) The objective is to apply balm to the wounds and not to punish the transgressor or 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 bound to do; .(6) The award of compensation in 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; .(7) 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; .(8) The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is thus, in addition to the traditional remedies and not in derogation of them; and .(9) 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. 86. 86. Thus, the law laid down by the apex Court regarding jurisdiction of courts relatable to award of compensation bristles to these: (a) The primary source of public law proceedings srtrems form the prerogative writs and the citizens complaining infringement of indefeasible right under Art.21 of the Constitution cannot be said that for the established violation of fundamental right to life, he cannot get the relief under the public law by the Courts exercising writ jurisdiction High Courts and the Supreme Court. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen under public law jurisdiction is in addition to the traditional remedies and not in derogation of them. This means that the jurisdiction of the criminal court for payment of compensation to the victims under Sec.357 of the Code and the right to action in damages by way of civil suit under Sec.9 of the Code of Civil Procedure are kept intact. 87. P.H.R.A. as already indicated, does not contain any provision relatable to payment of compensation to the victims of ‘Human rights’ offences. ‘Human Rights offences’ are, however, treble by H.R.C. - a Special Court, in the cadre of a Court of Session, exercising the powers of a court of original jurisdiction. A finding has been recorded by us that the Code is applicable to the trial of such offences before the said courts in respect of all matters, except the matters, for which provisions for the constitution of H.R.C. under Sec.30 and appointment of a Special Public Prosecutor under Sec.31 of P.H.R.A. have been made therein. Therefore H.R.C., exercising the powers under the Code as a Criminal Court must be construed to have such powers under Sec.357 of the Code, for the award of compensation to the victims of ‘Human Rights offences." [Paras. 88 and 89, where the provisions of Secs.357, 421 and 431 of Criminal Procedure Code has been quoted-omitted.-Ed.] 90. From the provisions quoted above, it is discernible that at the time of awarding compensation in any subsequent civil suit relating to the same matter, the court shall take into account any sum paid or recovered as compensation under that section. 91. From the provisions quoted above, it is discernible that at the time of awarding compensation in any subsequent civil suit relating to the same matter, the court shall take into account any sum paid or recovered as compensation under that section. 91. It is thus abundantly clear that the compensation payable to the victims for violation of human rights of a justiciable nature is one and indivisible and the compensation paid to such victims either in public law jurisdiction by Writ Courts - High Courts and Supreme Court - or by H.R.C. a Criminal Court will be taken into account in a subsequent civil suit to be filed before a Civil Court relating to the same matter. 92. To have jurisdiction in the matter of award of compensation to victims of Human Rights offences before various forums Writ Courts -High Courts and Supreme Court in public law jurisdiction - H.R.C. -a Criminal Court - and a Civil Court - an ultimate authority is neither desirable nor advisable, inasmuch as such conferment of jurisdiction on various forums results in incalculable hardship to the said victims, in the sense of dragging them from pillar to post for unduly long, besides making them to incur expenditure in a large measure, in their quest for realisation of the fruits of the litigation. That such a situation requires to be avoided is the need of the hour. That can be done-with ease and grace with by the conferment of jurisdiction on that aspect of the matter on one and only forum. The best of the forums, on which conferment of such jurisdiction may be invested, cannot be anyone, other than H.R.C. constituted under Sec.30 of P.H.R.A. For such conferment of jurisdiction, P.H.R.A. For such conferment of jurisdiction, P.H.R.A. requires to be amended. By the amendment to be so brought in, H.R.C. must have to be invested with exclusive jurisdiction, in the matter of award of compensation to victims of Human Rights offences, ousting the jurisdiction of the civil court, besides vesting public law jurisdiction available to Writ Courts - High Courts and Supreme Court - relatable only to the award of compensation for violation of fundamental rights of a citizen under Art.32(3) of the Constitution. This, if, done, will being solace to the victims of Human Rights offences. 93. This, if, done, will being solace to the victims of Human Rights offences. 93. It is not desirable or advisable, while vesting such jurisdiction to limit the power of H.R.C. to grant compensation upto a particular limit. The quantum of compensation will vary, depending upon the peculiar facts of each case and no strait jacket formula or limit can be made in that behalf. 94. There can be no doubt whatever that the State shall have a right to be indemnified by the wrongdoer-public servant. This aspect of the matter has been stated in crystal clear terms by the Apex Court in the case of Shri D.K. Basu, (1996)4 Crimes 233. Such being the case, while bringing necessary amendment to P.H.R.A., it is desirable that a clear-cut provision is made empowering the State to recover the whole or part of the compensation so awarded from the officer(s), who were found guilty. There is nothing wrong or illegal for making a provision, by way of amendment for payment of interim compensation to the victims of violations of Human Rights befitting such a relief. 95. Until the amendments to P.H.R.A., on the lines, as we indicated above, are made, it goes without saying that the existing jurisdiction on the aforesaid three forums, in the matter of award of compensation to the victims of Human Rights offences will not get affected and continue to operate. 96. For the reasons, as above, we record our findings respectively on .(a) Point No. 12: It is correct to state that H.R.C, being a Criminal Court has no power to grant compensation, except under Sec.357 of the Code. .(b) Point No. 13: It is desirable and necessary that H.R.C., by way of amendment to be brought in, must have to be invested with the exclusive jurisdiction, in the matter of award of compensation to the victims of Human Rights offences, without prescribing any limit therefor, ousting the jurisdiction of civil court and vesting public law jurisdiction inhering in Writ Courts - High Courts and Supreme Court - relatable only to the award of compensation for violation of fundamental rights of citizens - with a discretion for such courts to permit the Government - Central or State - to recover whole or part of compensation from the officers), who are found guilty and to award interim compensation to the victims, befitting such a relief. Until necessary amendments to RH.R.A. on such lines are made, the existing jurisdiction of various forums in the matter of award of compensation to the victims of Human Rights offences will not get affected and continue to operate. 97.Point Nos. 14 and 15: RH.R.A. contemplates setting up of three institutions for tackling the issue of Human Rights violations in this country. One is N.H.R.C, the second is S.H.R.C. and the third is H.R.C. (a) Elaborate provisions have been made so far as N.H.R.C. and S.H.R.C. are concerned. The provisions dealing with constitution, composition and the powers of the Commission at the National level are set out in Chapter II and at the State level in Chapter V. The State level Commission is the exact replication of the National Commission at the state level, except with a minimal difference, getting reflected by Sec.29 dealing with application of certain provisions relatable to N.H.R.C. to S.H.R.C. The said section reads as under: “29. Application of certain provisions relating to national human rights commission to state commissions: The provisions of Secs.9,10,12, 13, 14, 15, 16, 17 and 18 shall apply to State Commission and shall have effect, subject to the following modifications, namely, .(a) references to”Commissions“shall be construed as reference to”State Commission“; .(b) in Sec.10, in Sub-sec.(3), for the word”Secretary-General,“the word”Secretary“shall be substituted; .(c) in Sec.12, clause (f) shall be omitted; .(d) in Sec.17, in clause (i), the word”Central Government or any“shall be omitted.” 98. From a cursory perusal of the said section, as extracted above, it is rather crystal clear that provisions of Secs.9, 10, and 12 to 18 pertaining to N.H.R.C are made applicable to State Commissions, with certain modifications of inconsequential nature, as indicated in clauses (a) and (b), wherein it is specifically mentioned that references to “Commission” shall be construed as references to “State Commission” and under Sec.10 in sub-Sec.(3) for the word, “Secretary General”, the word, “Secretary” shall be substituted, besides making certain other modifications, as found mentioned in Clauses .(c) and (d) of some consequence to flow, in the sense of pointing out that the power of N.H.R.C, and S.H.R.C. not one and the same in respect of certain matters. .(a) Sec.12 deals with the functions of the Commission. The Commission shall perform all or any of the functions indicated in Clauses (a) to (j) therein. .(a) Sec.12 deals with the functions of the Commission. The Commission shall perform all or any of the functions indicated in Clauses (a) to (j) therein. One of the functions of the commission in Clause (f) pertains to study treaties and other international instruments on human rights and make recommendations for their effective implementation. This sort of a function is taken away from the purview of the State Commission. This is made abundantly clear by Clause (c) of Sec.29, which prescribes that "In Sec. 12, Clause (f) shall be omitted." .(b) Sec.17 deals with "Inquiry into complaints". Under Clause (1) of the said section, the Commission while inquiring into the complaints of violations of human rights may call for information or report from the Central Government or any State Government or any other authority or organisation subordinate thereto within such time as may be prescribed by it. This sort of a power inhering in the Commission is not wholly available to the State Commission and this is made clear in an explicit fashion in Clause (d) of Sec.29, which provides that "in Sec. 17, in clause (i) the words "Central Government or any" shall be omitted, meaning thereby that the State Commission has no power at all to call for a report in relation to violation of the Human Rights in the process of inquiry into such complaints from the Central Government or from any other State Government, other than the State Government in relation to which the State Commission has been constituted. 99. A cursory glance or glimpse at the provisions, dealing with Commission’s powers would enable us that it has the power of inquiry set up under the C.I.A. Its purpose seems to be to inform the Government of the status of the Human Rights of the country or the State, as the case may be. It has no power to give a definitive judgment and is constituted with the object of creating awareness of Human Rights at the Governmental level and the public at large. In fact, N.H.R.C. and S.H.R.C. are conceived as Standing Commissions of Inquiry into Human Rights violation principally. 100. In sharp contrast, the only institution, which can inquire into, adjudicate, upon and punish for Human Rights Violations is the H.R.C. set out in Chapter V of P.H.R.A, about which, we have made elaborate discussion, while considering Point Nos. In fact, N.H.R.C. and S.H.R.C. are conceived as Standing Commissions of Inquiry into Human Rights violation principally. 100. In sharp contrast, the only institution, which can inquire into, adjudicate, upon and punish for Human Rights Violations is the H.R.C. set out in Chapter V of P.H.R.A, about which, we have made elaborate discussion, while considering Point Nos. 1 to 4 and recorded definite findings thereon. We therefore confine our attention in examining the issue as to whether the Commission has the power to give a definitive judgment, in respect of the complaints of Human Rights violations, after due inquiry by it, in the light of the provisions adumbrated in P.H.R.A. 101. The examination of such an issue or question and finding an answer therefor is feasible, by looking into the provisions contained in Chapters III and IV of P.H.R.A. .(a) Chapter III dealing with functions and powers of the Commission consists of five sections, namely, Secs.12 to 16, while Chapter IV dealing with the procedure consists of four sections, namely, Secs.17 to 20. .(b) Sec.12 (a), relevant for our present purpose, is couched in the following terms: ."12. Functions of the Commission: The commission shall perform all or any of the following functions, namely, .(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, into complaint of .(i) violation of human rights or abatement thereof, or .(ii) negligence in the presentation of such violation, by a public servant." .(c) From Clause (a) of Sec. 12, as extracted above, it is discernible that the Commission has the power to inquire into the complaints of violation of .(1) Human Rights; or .(2) abatement thereof; or .(3) negligence in the prevention of such violation, by a public servant. Such a power may be exercised either .(1) suo motu; or .(2) on a petition presented to it by a victim; or .(3) any person, on behalf of the victim. On peculiar feature is that all complaints without any exception whatever in respect of Human Rights violations, amounting to offences, can be lodged before the Commission, either by the victim or by any person on behalf of the victim and the Commission is competent to inquire into the same. On peculiar feature is that all complaints without any exception whatever in respect of Human Rights violations, amounting to offences, can be lodged before the Commission, either by the victim or by any person on behalf of the victim and the Commission is competent to inquire into the same. There are no fetters or restrictions in lodging such complaints, that is to say, the complaints in respect of Human Rights violations, amounting to offences being cognizable or noncognisable can be lodged before the Commission. .(d) The Commission is, however, given the powers to regulate its own procedure in respect of such complaints under Sec. 10(2) of P.H.R.A. As a matter of fact, the Commission, in exercise of the powers conferred by the said sub-section has made the National Human Rights Commission (Procedure) Regulations, 1994 (for short "Regulations’) .[Extract of Regulation 8 omitted-Ed.] .(e) (i) Sec.13 of P.H.R.A. deals with powers relating to inquiries. The Commission shall, for all practical purposes, be deemed to be a civil court and have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 in particular in respect of the following matters: .(a) summoning and enforcing the attendance of witnesses and examining them on oath; .(b) discovery and production of any document; .(c) receiving evidence on affidavits; .(d) requisitioning any public record or copy thereof from any court or office; .(e) issuing commissions for the examination of witnesses or documents; and .(f) any other matter, which may be prescribed. .(ii) The commission shall have power to require any person, subject to any privilege, which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject matter of the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of Sec.176 and Sec.177 of the Indian Penal Code. (iii) The commission or any other officer, not below the rank of a Gazetted Officer, specially authorised in this behalf by the Commission may enter any building or place where the Commission has reason to believe that any document relating to the subject matter of the inquiry may be found, and may seize any such document or take extracts or copies therefrom, subject to the provisions of Sec.100 of the Code in so far as it may be applicable. .(iv) The Commission shall be deemed to be a civil court and when any offence as is described in Sec.175, Sec.178, Sec.179, Sec.180 or Sec.228 of the Indian Penal Code is committed in the view or presence of the Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused, as provided for in the Code, forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case has been forwarded to him under Sec.346 of the Code. .(v) Every proceedings before the Commission shall be deemed to be a judicial proceeding with the meaning of Secs.193 and 228 and for the purposes of Sec.196, I.P.C. and the Commission shall be deemed to be a civil court for all purposes of Sec.195 and Chapter XXVI of the Code. .(f) Sec.14 is relatable to investigation to be undertaken by the Commission. .(i) The Commission may, for the purpose of conducting any investigation pertaining to the inquiry, utilise the services of any officer or investigation agency of the Central Government or any State Government, with the concurrence of the Central Government or the State Government, as the case may be. .(ii) For the purpose of investigating not any matter, pertaining to the inquiry, any officer or agency whose services are utilised under Sub-sec.(1) may, subject to the direction and control of the Commission: .(a) summon and enforce the attendance of any person and examine him; .(b) require the discovery and production of any document; and .(c) requisition any public record or copy thereof from any office. (iii) The provisions of Sec.15 shall apply in relation to any statement made by a reason before any officer or agency, whose services are utilised under Sub-sec.(1), as they apply in relation to any statement made by a person, in the course of giving evidence before the Commission. .(iv) The officer or agency, whose services are utilised under Sub-sec.(1) shall investigate into any matter pertaining to the inquiry and submit a report thereon to the Commission, within such period, as may be specified by the Commission in this behalf. .(v) The Commission shall satisfy itself about the correctness of the facts stated and the conclusion, if any, arrived at in the report submitted to it under Sub-sec.(4) and for this purpose, the Commission may make such inquiry, (including the examination of the person or persons, who conducted or assisted in the investigation), as it thinks fit. .(g) Sec. 15 pertains to statement made by persons to the Commission. No statement made by a person, in the course of giving evidence before the Commission shall subject him to, or be used against him, in any civil or criminal proceeding, except a prosecution for giving false evidence by such statement. The said statement is subject to two conditions as below: The statement-(a) is made in reply to the question which is required by the Commission to answer; or .(b) is relevant to the subject matter of the inquiry. .(h) Sec.16 deals with the right of persons likely to be prejudicially affected to be heard. If, at any stage of the inquiry, the Commission considers it necessary to inquire into the conduct of any person, or is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, it shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence. It, however, provides that nothing in the said section applies where the credit of the witness is impeached. .(i) Sec.17 relates to inquiry into complaints. .(i) The Commission, while inquiring into the complaints of violations of human rights may, under Clause (i) thereof, call for information or report from the Central Government or any State Government or any authority or organisation subordinate thereto within such time, as may be specified by it. .(i) Sec.17 relates to inquiry into complaints. .(i) The Commission, while inquiring into the complaints of violations of human rights may, under Clause (i) thereof, call for information or report from the Central Government or any State Government or any authority or organisation subordinate thereto within such time, as may be specified by it. If the information or report is not received within the time stipulated by the Commission, it may proceed to inquire into the complaints on its own. If, on receipt of information or report, the Commission is satisfied either that no further inquiry is required or that the required action has been initiated or taken by the concerned Government or authority, it may not proceed with the complaint and inform the complaint accordingly. .(ii) Clause (ii) thereof specifically provides that without prejudice to anything contained in Clause (i), if it considers necessary, having regard to the nature of the complaint, initiate an inquiry. .(j) Sec.18 contains provisions relatable to steps, after inquiry. The Commission may take any of the following steps upon the completion of an inquiry held under P.H.R.A. as indicated in Clause (1) to (6) thereof. .(j) Sec.18 contains provisions relatable to steps, after inquiry. The Commission may take any of the following steps upon the completion of an inquiry held under P.H.R.A. as indicated in Clause (1) to (6) thereof. There are: .(1) Where the inquiry discloses, the commission of violation of human rights or negligence in the prevention of violation of human rights by a public servant, it may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons; .(2) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;‘ .(3) recommend to the concerned Government or authority for the grant of Such immediate interim relief to the victim or the members of his family as the Commission may consider necessary; .(4) subject to the provisions of clause (5), provide a copy of the inquiry report to the petitioner or his representative; .(5) the Commission shall send a copy of its inquiry report together with its recommendations to the concerned Government or authority and the concerned Government or authority shall, within a period of one month, or such further time as the Commission may allow, forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission; and .(6) the commission shall publish its inquiry report together with the comments of the concerned Government or authority, if any, and the action taken or proposed to be taken by the concerned Government or authority on the recommendations of the Commission. .(k) Sec.19 is relatable to procedure with respect to armed forces. .(i) under Sub-sec.(1), notwithstanding anything contained in P.H.R.A. while dealing with complaints of violation of human rights by members of the armed forces, the Commission shall adopt the following procedure, namely, .(a) it may, either on its own motion or on receipt of a petition, seek a report from the Central Government; .(b) after the receipt of the report, it may, either not proceed with the complaint or, as the case may be, make its recommendations to that Government. .(ii) Sub-sec.(2) provides that the Central Government shall inform the Commission of the action taken on the recommendations, within three months or such further time, as the Commission may allow. .(ii) Sub-sec.(2) provides that the Central Government shall inform the Commission of the action taken on the recommendations, within three months or such further time, as the Commission may allow. (iii) Sub-sec.(3) specifies that the Commission shall publish its report, together with its recommendations made to the Central Government and the action taken by the Government on such recommendations. (iv) Sub-sec.(4) prescribes that the Commission shall provide a copy of the report published under Sub-sec.(3) to the petitioner or his representative. 102. From the conspectus of the various provisions, referred to above, the Commission simpliciter is having powers to recommend to the concerned Government or any authority to initiate proceedings for prosecution or such other action, as the Commission may deem fit, against the concerned person or persons, in case of inquiry into the complaints of violation of Human Rights, at the instance of the instrumentalities of the State, that is to say, public servants. It can also, in such cases, recommend to the concerned Government or authority for grant of such immediate interim relief to the victim or the members of his family, as the Commission may consider necessary. 103. As respects the complaints of violation of Human Rights by members of the armed forces, the Commission shall after receipt of the report from the Central Government, may, either not proceed with the complaint or as the case may be, make its recommendations to that Government for the grant of such interim relief to the victim or members of his family, as the Commission may consider necessary, as in the case of inquiry into the complaint of violation of Human Rights of individual citizens of this country. The classification so made is beyond one’s comprehension. 104. It is thus crystal clear that N.H.R.C. and S.H.R.C. are not having powers to give a definitive judgment as in the case of H.R.C. and therefore, to say that they are conceived as Standing Commissions of Inquiry, constituted with the object of creating awareness of Human Rights at the Government level and public at large is not shorn of the realities of the situation. 105. The reason why N.H.R.C. and S.H.R.C. are not given the powers to give definite judgment is rather quite obvious. 105. The reason why N.H.R.C. and S.H.R.C. are not given the powers to give definite judgment is rather quite obvious. In the very nature of things, the materials gathered or collected during the course of inquiry into the complaints of violation of Human Rights, amounting to offences by the Commission as against public servants and members of armed forces cannot at all from or furnish the basis for a definitive and final judgment, in the sense of finding them guilty, resulting in conviction and consequent appropriate sentence or the passing of the award of compensation - final or interim - at the hands of the Commission, inasmuch as such a procedure, if adopted, is to result in violation of audi alteram partem rule, in the sense of the delinquent/accused-public servants and members of armed forces, not having been given adequacy of opportunity to defend them by adoption of procedure - fair and reasonable-giving copies of statements, documents etc., recovered or seized, as the case may be, during inquiry, to inform them, as to the case put forward against them, which they have to meet - engaging a counsel of their choice, in their defence to put questions in cross-examination of the witnesses to bring to surface the truth of the matter - offering explanation to the incriminating circumstances, if any, against them during the questioning, after the examination of the witnesses for the prosecution right to adduce evidence of rebuttal by the examination of the defence witnesses, procuring or obtaining sanction from the concerned Government, in accordance with the procedure established by law etc., the violation of which, the Apex Court elevated as infringement of fundamental rights - an undisputed proposition of law, indeed. 106. The Constitution of N.H.R.C. and S.H.R.C. as Standing Commissions cannot, however, be under -estimated or belittled, if we take into account the violations of Human Rights, at the instance of the instrumentalities of the State taking place day-in and day-out, which do not attract the attention of the public at large, but for the publication of such news by the Fourth Estate-PRESS. The existence of N.H.R.C. and S.H.R.C. as Standing Commissions of Inquiry into Human Rights violations - we rather feel -in the long run - is going to be a balm and not a bane to the society and this conclusion of ours can very well be reinforced by a look at certain provisions of P.H.R.A. 107. The instrumentalities of the State hereafter will have to necessarily think twice before every they are to indulge in violation of Human Rights, amounting to offences, inasmuch as Democle’s sword of the watchful eyes of the Commission will be hanging over their heads. As already indicated, the Commission may cause an inquiry into the complaints and the steps taken after the inquiry may result in recom- mendation to the concerned Government or authority, the initiation of proceedings for prosecution or such other action, as it may deem fit against the concerned person(s), besides the grant of interim relief to victims of violations of such rights. No doubt rue it is that such a recommendation is not binding upon the concerned Government. The concerned Government may or may not accept such recommendation. There is no binding force for accepting the recommendation so made. Despite such a legal position, the concerned Government is normally expected to accede to such recommendation, in the absence of compelling reasons of security involving the country, taking into account the fact that the recommendation emanates from the Commission, which consists of elite and eminent class of dignitaries, who occupied high positions in life against whom, nothing could be said except while doing so, they are motivated to activate to usher in for a society to live in peace and harmony, enjoying the full freedom from fear, without in the least, being affected~by violation of their inalienable, immordial and basic ‘Human Rights’ at the hands of the instrumentalities of the State and to protect, preserve and maintain the rule of law an invaluable asset to the citizen of a democratic set up of a country, like India. This apart, the concerned being Government may not tend to refuse to accept such recommendations in view of the fact that the annual reports and special reports, if any, filed for reasons of urgency and importance by N.H.R.C. and S.H.R.C., are required to be laid by the Central and the State Government before each House of Parliament and State Legislatures, as the case may be, along with the recommendations of the action taken or proposed to be taken on the recommendations of the Commission and the reasons for the non-acceptance of the recommendations, if any, under the salient provisions adumbrated under Secs.20 and 28 of RH.R.A, the former relatable to N.H.R.C. and the latter relatable to S.H.R.C. The concerned Government cannot remain a silent spectator in not accepting the recommendations without giving valid and tenable reasons and the likelihood of absence of such reasons, in almost all cases, cannot be ruled out of consideration. Such being the case, the concerned Government has to face ostracism or criticism from all quarters - not only from the citizens of this country but also from the citizens at glo-bal level and such fear psychosis - never fading and ever pervading in the mind of the concerned Government will prove to be a factor of such deterrence as t make it (Government) not to desist from accepting such recommendations. 108. The signal significance and paramount importance of the Constitution of the ‘Commission’ can be highlighted from the other functions of the Commission, as catalogued in Clause (a) to (j) of Sec.12 of RH.R.A. They read as under: “12. 108. The signal significance and paramount importance of the Constitution of the ‘Commission’ can be highlighted from the other functions of the Commission, as catalogued in Clause (a) to (j) of Sec.12 of RH.R.A. They read as under: “12. Functions of the Commission: The commission shall perform all or any of the following functions, namely: .(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, into complaint of .(i) violation of human rights or abatement thereof or .(ii) negligence in the presentation of such violation, by a public servant; .(b) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court; .(c) visit, under intimation to the State Government, any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates and make recommendations thereon; (d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation; .(e) review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures; .(f) study treaties and other international instruments on human rights and make recommendations for their effective implementation; .(g) undertake and promote research in the filed of human rights; .(h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means; .(i) encourage the efforts of non-governmental organisations and institutions working in the field of human rights; .(j) such other functions as it may consider necessary for the promotion of human rights.” 109. The functions of the Commission, as catalogued in Clauses (a) to (j) of Sec.12 are self-explanatory and no further elucidation is necessary. 110. The expression or terminology, “human rights”, figures in Clauses (a) and (b) and (d) to (j) of Sec.12. The meaning to be ascribed to the said expression or terminology in Clauses (a) and (b) cannot be the same to such an expression in Clauses (d) to (j) thereof. 110. The expression or terminology, “human rights”, figures in Clauses (a) and (b) and (d) to (j) of Sec.12. The meaning to be ascribed to the said expression or terminology in Clauses (a) and (b) cannot be the same to such an expression in Clauses (d) to (j) thereof. Clauses (a) and (b) are relatable to Human Rights, the violation of which resulted in either inquiry before the Commission or terminated by way of proceedings, pending before court, in which the Commission seeks to intervene with the approval of such court. Clauses (d) to (j) thereof speak of ‘Human Rights’ in general terms. ‘Human Rights’ referred to in Clauses (a) and (b) may take the contour, complexion, shape and shade of meaning in tune with the apparent tenor and terms of Sec.2(l) (d) read with Sec.30 of RH.R.A., while the meaning to be ascribed to the very same expression ‘Human Rights’, occurring in Clauses (d) to (j) may not be the same. On such aspect of the matter, we may now enter into arena of discussion. 111. Useful reference may now be made, in order to highlight this aspect of the matter, to the case of Gramophone Company of India Ltd., (1984)2 S. C. C. 524:1984 S.C.C. (Crl.) 313: (1984)1 Comp.L.J. 362: A.I.R. 1984 S.C. 667, wherein Their Lordships of the Supreme Court said in the relevant portion of paragraph 22 (at page 678) as under: “...the same word may mean different things in different enactments and in different contexts. It may even mean different things at different places in the same statute. It all depends on the sense of the provisions where it occurs. Reference to dictionaries is hardly of any avail, particularly in the case of words of ordinary parlance, with a variety of well known meanings. Such words take colour from the context. Appeal to the Latin root won’t help. The appeal must be to the sense of the statute.” 112. The delineation of the functions of the Commission, as relatable to ‘Human Rights’ in Clauses (d) to (j), if understood in the proper perspective, there can be no difficulty whatever that the expression ‘Human Rights’ referred to therein means very differently from the usage of the very expression in Clauses (a) and (b). The delineation of the functions of the Commission, as relatable to ‘Human Rights’ in Clauses (d) to (j), if understood in the proper perspective, there can be no difficulty whatever that the expression ‘Human Rights’ referred to therein means very differently from the usage of the very expression in Clauses (a) and (b). The expression ‘Human Rights’ is a dynamic ever expanding concept growing intune with the march of civilisation and refinement of the culture of the people at the global level. This sort of a dynamic concept of ‘Human Rights’ as contemplated in Clauses (d) to (j) require the Commission to suggest measures for the promotion of ‘Human Rights’ and recommend measures for their effective implementation by undertaking necessary and requisite exercise as devised in those clauses. 113. Thus, we are of the view that the Constitution of N.H.R.C. and S.H.R.C. as Standing Commissions, is obviously, for achieving the purpose, we have indicated as above - promotion of the society to live in peace and harmony, eliminating the fear psychosis created by the instrumentalities of the State day-in and day-out in the discharge of their functions, for reasons best known to them. 114. For reasons, as above, we record our findings respectively on point Nos. 14 and 15 as below: (a) Point No. 14: It is correct to state that the Scheme of RH.R.A. in constituting N.H.R.C, S.H.R.C. and H.R.C. indicates, in no uncertain terms, that N.H.R.C. and S.H.R.C. are akin to the Commission of Inquiry set up under C.I.A. and have no powers to give a definitive judgment in respect of offences arising out of violation of Human Rights and are constituted with the object of creating awareness of Human Rights at the Governmental level and the public at large excepting the fact that they are permanent Standing Commissions, while in sharp contrast, the only institution which can inquire into, adjudicate upon and punish for violation of Human Rights is H.R.C. first of its kind, anywhere in the world. (b) Point No.15: The Human Rights Commission - N.H.R.C. and S.H.R.C. have only powers to recommend to the concerned Government for interim relief to the victims of human Rights violation and definitely have no powers to pass orders-interim or final, pending inquiry. 115. (b) Point No.15: The Human Rights Commission - N.H.R.C. and S.H.R.C. have only powers to recommend to the concerned Government for interim relief to the victims of human Rights violation and definitely have no powers to pass orders-interim or final, pending inquiry. 115. Point No.16: This point takes in its fold the question as to whether RH.R.A. recognise the principle that locus standi must stand expanded, in the sense of allowing or permitting, apart from the aggrieved party, anyone on his/her behalf, to move H.R.Cs. for redressal of his/her grievances. We shall now proceed to consider the question so posed, in the light of the provisions contained in P.H.R.A. 116. There is no express or explicit provision in RH.R.A. as to locus standi in the matter of approaching H.R.C. for redressal of the grievances of the affected party. However, there is a provision of Clause (a) Sec.12 of P.H.R.A. empowering the Commission to inquire into the complaints of violation of ‘Human Rights’, amounting to offences either suo motu or on a petition presented to it by a victim or any person on his/her behalf. Therefore, it is crystal clear that the Commission can be moved, not only by the victim, but also by any person on his behalf for redressal of grievances, in respect of violation of Human Rights, amounting to offences, apart from suo motu action - power therefor vesting in the Commission. Worthy it is to note here the Commission has power to entertain complaints relatable to Human Rights Offences - whether cognizable or non-cognizable - by anyone of the three modes, as stated above. Thus, it is abundantly clear that this Act RH.R.A. - to a certain extent relaxes the Rule relatable to locus standi in the matter of lodging or preference of a complaint before the Human Rights Commission. 117. There is no specific provision in RH.R.A. as to locus standi in the matter of approaching H.R.Cs, for redressal of grievances in relation to violation of Human Rights, amounting to offences whether cognizable or non-cognisable. In the absence of such a provision, H.R.C., being a criminal court, as we have found earlier, has to necessarily follow the procedure as laid down in the Code. 118. In the absence of such a provision, H.R.C., being a criminal court, as we have found earlier, has to necessarily follow the procedure as laid down in the Code. 118. In respect of Human Rights Offences of a cognizable nature, any person seizing knowledge of Commission of such an offence, can lodge an information under Sec.154 of the Code, to set the wheels of Criminal Law in motion and there is no necessity at all for the aggrieved or affected party to lodge an information for such a purpose. The reason is rather obvious. The Code recognises the commission of an offence of a cognizable nature, as a crime against society. Action against such an offender is taken by the State even at the instance of third parties, notwithstanding the fact, the aggrieved or affected party, is not worried about prosecuting the offender. 119. In respect of an offence of a non-cognizable nature, an information or complaint, if lodged by the affected or aggrieved party, before the Station House officer (S.H.O.), of a competent police station, such an information or complaint will not be entertained and the question of investigation of such an offence by police officer will never arise for consideration. However, a provision has been made in Sub-sec.(2) of Sec.155 of the Code, for investigation of such an offence by a police officer. The said sub-section provides in a negative form that no police officer shall investigate on non-cognizable case without the order of the Magistrate having power to try such case or commit the case for trial. In other words, the police officer is empowered to investigate such a case and file a final report before court, after obtaining the requisite and necessary permission from the Magistrate, having power to try such a case or commit the case for trial. 120. Apart from lodging an information before a competent police station in respect of commission of offences of a cognizable nature, it is also possible for lodging a complaint before a competent court seeking redressal of grievances. Courts take cognizance of offences and not offenders. 120. Apart from lodging an information before a competent police station in respect of commission of offences of a cognizable nature, it is also possible for lodging a complaint before a competent court seeking redressal of grievances. Courts take cognizance of offences and not offenders. Therefore, even if a complaint of cognizable offence is given by a person, other than the affected party, such a complaint is capable of being taken cognizance of by court, even though the allegations of statement of such a complaint do not disclose the names of the offenders, inasmuch as it is permissible for such a court, after taking cognizance of such offences, either refer the same under Sec.156(3) of the Code for investigation and report or inquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding under Sec.202 of the Code. 121. It may, however, be mentioned here that in respect of non-cognizable offences, a private complaint by a person, other than an aggrieved or affected party, is not maintainable, since such a person cannot assume the role of the State in prosecution of offenders of crimes of a non-cognizable nature and such complaints have to be preferred only by the affected party concerned. 122. From what has been stated above, it is crystal clear that this Act - RH.R.A. - to a certain extent relaxes the Rule relating to locus standi, in the matter of lodging or preference of a complaint before Human Rights Commission, in Sub-clause (a) of Sec.12 thereof, as we have indicated earlier. However, the locus standi principle is kept in tact in the matter of approaching H.R.Cs. for redressal of grievances of affected parties. This point is answered accordingly. 123.Point No. 17: We are now called upon to decide the question as to whether the rigidity of I.E.A. does or does not bind H.R.C. The view of Human Rights Activists appears to be that strict rules of evidence, as prescribed in I.E.A., ought not to be allowed to have a sway in the trial of Human Rights offences, before H.R.Cs and the reason therefor, they would advance is that human justice is not to be fettered by James pert Stephen’s prescription of yore. Such a projection of hue of view rather appears to sound well for hearing. But, the utter untenability of such a hue of view should get exposed, if a little bit of a probe is made into the import and purport of such a hue of view. Commission of Human Rights offences may take place at the hands of the individuals and at the hands of the instrumentalities of the State as well. Human justice is required to be rendered to individuals affected by Human Rights offences, either at the hands of the individual citizens or at the hands of the instrumentalities 6f the State. As such, violators of Human Rights offences are either individual citizens or the instrumentalities of the State, that is to say, public servants. Is it permissible, in the existing state of Law of Evidence, to apply different standards and yardsticks relatable to the evidence as to the proof of offences against them? The answer to such a question cannot be anyone, other than an emphatic ‘No’. “It extends to the whole of India except the State of Jammu and Kashmir and applies to all judicial proceedings in or before nay court, including Courts-martial, other than Courts-martial convened under the Army Act, the Naval Discipline Act or the Indian Navy (Discipline) Act, 1934, or the Air Force Act, but not to affidavits presented to any Courts or Officer, nor to proceedings before an arbitrator.” 124. It is discernible from the ‘extent’, that I.E.A. applies to all judicial proceedings in or before any Court. (a) Sec.2(i) of the Code defines ‘Judicial proceeding’ and it reads as under: “2. Definitions: In this Code, unless the context otherwise requires; (i)”judicial proceeding“includes any proceeding in the course of which evidence is or may be legally taken on oath.” 125. On the face of Sec.2 (i) of the Code defining ‘Judicial proceeding’, it cannot at all be stated that the proceeding before H.R.Cs. is not a judicial proceeding. Once a conclusion is reached that the proceedings before H.R.C. is a judicial proceeding, it cannot at all be stated that I.E.A. is not at all applicable to the proceedings before H.R.C. The moment I.E.A. is applicable to such proceedings, the rules of evidence contained therein will have a full sway in the matter of determination of questions arising for consideration in such proceedings. 126. 126. In the present state of Law of Evidence, an insurmountable difficulty or obstacle will be there for the proof of Human Rights offences. It is one’s common knowledge that majority of human rights offences occur in lock-ups at police stations or in jails. If such offences are committed inside lock-ups and jails, away from the purview of the public, the commission of such an offence is capable of being proved by the examination of witnesses acquainted with such occurrence. The witnesses acquainted with such occurrences cannot be anyone other than police officials and jailors. To expect an independent witness, in such a place, is nothing but expectation of existence of someone in utopia. The police officials, jailors and other officers, placed in such a position will be emboldened to commit such offences, thinking that it is not easily possible or feasible for the proof of such offences and consequently, they can escape from the clutches of law. The only way of proving such an offence is to let in circumstantial evidence of such a nature as to point out that the police officer or jailor, in whose custody the victim was available at the relevant point of time alone and none-else could have committed the offences alleged against such victims. To procedure such circumstantial evidence is rather remote in most of the cases. Such being the case, Law of Evidence, as of now available is rather inadequate to meet the situation and therefore it is, certain amendment is called for to I.E.A. in order to contain recurrence of occurrence in police lock-ups and jails that emanated at the hands of the instrumentalities of the State. 127. The Law Commission in its 113th Report recommended insertion of Sec. 114-B to I.E.A. The recommendation of the Law Commission was 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 that 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, which the Magistrate may have recorded. But, unfortunately, the suggested amendment has not been incorporated in the statute so far. Such an amendment, we feel, is the need of the hour. Until the amendment, as suggested by the Law Commission, in its 113th report, is brought about, the victims of Human Rights offences have to face concomitant obstacles in proof of such offences before H.R.Cs. This point is answered accordingly. 128. Point No. 18: H.R.Cs are yet to take off-in the real sense of the term - in the State of Tamil Nadu, despite constitution of such courts, by designation a ‘Court of Session’ in each district, long time back. This suo motu revision itself had been entertained, since such courts, it is said, were groping in darkness, as to the procedure to be adopted in the trial of cases before them. No case involving major crimes, such as custodial deaths has been disposed of by any of H.R.Cs. in this State attracting the attention of this Court. Such being the case, the outlook of such courts in the disposal of such cases, is beyond one’s comprehension and therefore, the question of issuing guidelines for change of outlook will never arise for consideration. We, however, trust and hope that H.R.Cs in the State will exhibit more sensitivity and adopt realistic - rather than - narrow and technical approach in the disposal of such cases in the future ahead. This point is thus answered. 129. Point Nos.19 and 20: Sec.31 of P.H.R.A. provides for specifying a Special Prosecutor for the purpose of conducting cases in H.R.Cs. The power is vested in the State Government to specify by notification, a Public Prosecutor or appoint an advocate with seven years’ experience as Special Public Prosecutor for the purpose of conducting cases before H.R.Cs. Thus, an option is given to the Government to make such appointments. 130. The power is vested in the State Government to specify by notification, a Public Prosecutor or appoint an advocate with seven years’ experience as Special Public Prosecutor for the purpose of conducting cases before H.R.Cs. Thus, an option is given to the Government to make such appointments. 130. Such an option has to be exercised, keeping in view the object and purpose of P.H.R.A. If an existing Public Prosecutor or Additional Public Prosecutor, appointed under Sec.24 of the Code for conducting trial of Sessions Cases is specified as a special Public Prosecutor for the purpose of conducting cases in H.R.Cs, an awkward situation may arise for him to prosecute the very same police agency, in charge of investigation of cognizable offences, when a complaint/ information lodged by the accused/ complaint against such agency for the alleged commission of Human Rights offences, culminates in a final report under Sec.173(2) of the Code. He cannot change his role and colour as a chameleon, in the process of conducting trial for the prosecution of those cases. Justice must not only be done, but it must also appear to be done -a concept or principle of natural justice. This principle is likely to be violated in almost all Human Rights cases, if a Public Prosecutor or Additional Public Prosecutor appointed under Sec.24 of the Code for conducting trial of cases in a Court of Session, is specified as Special Prosecutor for the purpose of conducting cases in H.R.Cs. Such being the case, it would be better for the State Government to appoint an advocate, who has been in practice as an advocate for not less than seven years, as Special Public Prosecutor for the purpose of conducting cases in H.R.Cs., instead of specifying an existing Public Prosecutor or Additional Public Prosecutor appointed under Sec.24 of the Code, for conducting trial in the Court of Session. 131. We are told that the State Government so far has not issued any notification specifying a Public Prosecutor by appointing an advocate having the requisite qualification as Special Public Prosecutor for the purpose of conducting cases in H.R.Cs. The moot question that arises for consideration, in such a situation, is as to whether financial constraints or any other reason may stand in the way of appointment of Special Public Prosecutor for conducting cases in H.R.Cs. The moot question that arises for consideration, in such a situation, is as to whether financial constraints or any other reason may stand in the way of appointment of Special Public Prosecutor for conducting cases in H.R.Cs. Such reasons we rather feel, cannot at all be advanced by the State Government for not making such appointments. 132. This sort of a question came up for consideration in the case of P.M. Sunny v. State of Kerala, 1986 Crl.L.J. 1517, wherein what their Lordships of the Kerala High Court said in paragraphs 19 and 20 (at pages 1520-1521), which is relevant now, is getting reflected as below: "19. "Justice delayed is justice denied" is the cry of the century. A speedy trial of criminal cases is a constitutional requirement the content of the fundamental right guaranteed under Art.21. The State cannot stop or stay a criminal trial by refusing to appoint a prosecutor. The appointment of a prosecutor is a compelling constitutional necessity, obligatory under the Code of Criminal Procedure also. The State is therefore wrong if it ever assumed that there is no administrative necessity to make appointment of prosecutors now. 20. "Financial constraints" seem to be the second reason advanced for not making the appointments. Financial constraints cannot absolve the State of its constitutional obligations. Moreover, there is no case that the Government have not created posts in recent times in spite of financial strain. The Government can create posts; the Government do crete posts. But it shall be so done with due regard to financial commitments. That seems to be the principle underlying the temporary ban on making appointments. It does not mean that when there is a compelling necessity, when there is a constitutional demand, when there is a statutory obligation, the Government cannot create posts. If functioning of criminal courts, is a necessity, the post of a prosecutor to conduct the prosecution is an absolute necessity. Just as abolition of all courts due to "financial constraints" cannot even be visualised, so also, the non-appointment of a Prosecutor to conduct cases in criminal courts cannot be tolerated. Moreover, if no Prosecutor is appointed, Chief Judicial Magistrate may have to direct the appointment of a Prosecutor for each Case. This is the mandate of Sec.25 of the Code. This will only be an additional financial burden." 133. Moreover, if no Prosecutor is appointed, Chief Judicial Magistrate may have to direct the appointment of a Prosecutor for each Case. This is the mandate of Sec.25 of the Code. This will only be an additional financial burden." 133. Without a Special Public Prosecutor, as contemplated under Sec.31 of P.H.R.A, H.R.Cs. cannot at all function. Such being the case, it behaves upon the State Government to take immediate steps for the appointment of a Special Public Prosecutor for conducting cases in H.R.Cs. We can definitely issue a direction for the appointment of a Special Public prosecutor for conducting cases in H.R.Cs., within a time frame. However, we are not issuing any such direction, in the fond trust and hope that the State Government, even without issuance of any such direction in this regard, would hasten and complete the appointment of Special Public Prosecutors to all H.R.Cs. in this State in accordance with law, within a period of two months from the date of receipt of a copy of this order We answer both the points accordingly. 134.Point No.21: P.H.R.A. as already indicated, contains provisions in Chapters III and IV, as rentable to inquiries of complaints of Human Rights offences presented to the Commission by a victim or any person on his/her behalf and making of a report to the concerned Government recommending initiation of proceedings for prosecution or such other action, as the Commission may deem fit, against the concerned person(s). P.H.R.A. does not, however, contain any provision, as respects lodging of a complaint before S.H.O. of a concerned police station in relation to Human Rights offences of a cognizable nature committed by public servants. We, however, found on point No.7 that it is legally permissible for the relevant provisions of the Code to be swung into operation for trial offences arising out of violation of Human Rights, excepting matters, in respect of which specific provisions have been made in P.H.R.A. by virtue of the provisions contained, in the shape ofSecs.4, 5 and 26 the Code. Therefore, it is perfectly open to the victim of Human Rights offences to lodge a complaint on information to S.H.O. of the concerned police station and it is incumbent upon such S.H.O to register a case, in case the allegations, in such an information/complaint, make out a cognizable offences(s) and take out further investigation, which may lead to the filing of a final report - positive or negative under Sec. 173(2) of the Code, in case the materials collected during such investigation warrant such a course. 135. A major hitch for the prosecution of persons under P.H.R.A. is the fact that the victims an complaints are once again driven to approach the very same agency for investigating their complaints, which in the first instance, was involved in the commission of Human Rights offences against them. This goes against the very essence of natural justice and against the well-established norms of fairplay. The question that arises for consideration, in such a situation is as to whether all is permissible to find an amicable solution for the constitution of a S.I.T. or teams for investigation of Human Rights offences of a cognizable nature by a purposeful and meaningful interpretation of Sec.37 of P.H.R.A. for the purpose of advancing and in aid of implementing the objectivity sought to be achieved by P.H.R.A. 136. Sec.37 of P.H.R.A. provides for the constitution of S.I.Ts. It reads as under: "Notwithstanding anything contained in any other law for the time being in force, where the Government considers it necessary so to do, it may constitute one or more special investigation teams, consisting of such police officers as it thinks necessary for purposes of investigation and prosecution of offences arising out of violations of human rights." 137. A reading of the said section, as extracted above, shows that it starts with a non obstante clause, "Notwithstanding anything contained in any other law for the time being in force." Such a non obstante clause clothes the Government with a power to constitute one or more special investigation teams consisting of such police officers, as it thinks necessary for purposes of investigation and prosecution of offences arising out of violations of Human Rights. Axiomatic a proposition of law it is that when a particular clause leaves any discretion to the Government to take any action, it must be understood that such a discretion is to be exercised for the purpose of advancing and in aid of implementing and not impeding the objectivity sought to be achieved by P.H.R.A. 138. In order to get over the difficulties, we have pointed out, it would be better in the interests of all concerned, for the Government to constitute S.I.Ts., in such numbers as would be necessary to meet the situation. We trust and hope that the Government would initiate necessary steps for the constitution of S.I.Ts., as expeditiously as possible. This point is answered accordingly. 139.Point No. 22: No doubt, P.H.R.A. has been en-acted for curbing Human Rights violations and for punishing the perpetrators of Human Rights offences, who are noneelse than public servants. In such a situation, can it be said that the provisions of Sec. 197 of the Code are not applicable, since the same must be construed to have been dispensed with? We have already found, during the course of discussion on Point No.7 that the provisions of the Code are applicable for the trial of Human Rights offences, excepting matters in respect of which, specific provision has been made in P.H.R.A, by virtue of sanguine provisions, in the shape of Secs.4,5 and 26 of the Code. Such being the case, to say that the provisions of Sec. 197 of the Code are not applicable, inasmuch as the same must be construed to have been dispensed with, cannot at all be countenanced. 140. The object of the said section is to guard against vexatious proceedings against Judges, Magistrates and public servants and to secure the opinion of superior authority whether it is desirable that there should be a prosecution and to see that no proceeding is started against them, unless there are good reasons to suppose that there is some foundation for the charges. But it is no part of the policy to set an official above the common law. If he commits a common offence, he has no peculiar privilege. But it is no part of the policy to set an official above the common law. If he commits a common offence, he has no peculiar privilege. But if only one of his official acts is alleged to be an offence, the State will not allow him to be prosecuted, without its sanction, for the obvious reason that otherwise the official action would be set by private prosecutions, Judges would be charged with defamation, policemen with wrongful restraint and distrainors with theft. This section, as such, embodies one of the exceptions to the general rule laid down under Sec. 190 of the Code that any offence may be taken cognizance of by the Magistrates enumerated therein. 141. Art.14 of the Constitution does not render Sec.197 of the Code ultra vires, as the discrimination is based upon a rational classification. Public servants have to be protected from harassment in the discharge of official duties, while ordinary citizens, not so engaged, do not require this safeguard. Before the said section can be invoked, two conditions have to be satisfied, viz., .(1) that the accused was a public servant, who was removable from office, only with the sanction of the State Government or the Central Government; and .(2) that he must be accused of an offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty. 142. Sec. 2(y) of the Code provides that all words and expressions used in the Code and defined in I.P.C., but not defined in the Code, shall be deemed to have the meanings respectively attributed to them in I.P.C. The term ‘public servant’ is not defined in the Code and therefore, must be deemed to have the same meaning, as given in the definition of that term in I.P.C. (Vide: Sec.21, I.P.C.) 143. The very same meaning of ‘Public servant’, as given in Sec.21, I.P.C, is attributable to ‘public servants’ in relation to P.H.R.A. and this is made clear by the salutary provisions contained in Sec.2(1)(m) of P.H.R.A. 144. The words, "not removable from office....", etc., have reference only to the expression ‘public servant’ and not to ‘Judges. The principle is well-established that where an authority has a power to sanction the appointment, the person so appointed cannot be removed without the sanction of that authority. The words, "not removable from office....", etc., have reference only to the expression ‘public servant’ and not to ‘Judges. The principle is well-established that where an authority has a power to sanction the appointment, the person so appointed cannot be removed without the sanction of that authority. This is now made clear by the wording of the present section. So, the sanction of the Government is necessary for the prosecution of any Judge, if a complaint is made against him as a Judge. 145. (i) In construing Sec.197 of the Code, a line has to be drawn between the narrow inner circle of strict official duties and acts outside, the scope of official duties (Vide: B.P.Srivastava v. N.P.Mishra, A.I.R. 1970 S.C. 1661. (ii) The test laid down by the Apex Court bristles to this: "There must be a reasonable connection between the act and the discharge of official duty. The act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful, claim that he did it in the course of performance of his duty. (Vide; Pukhraj v. State of Rajasthan, (1973)2 S.C.C. 701 .) 146. This sort of a protection to public servants, as envisaged by Sec.197 of the Code, if we say, as has been said by the protagonists of Human Rights, must be construed to have been dispensed with in ‘Human Rights offences’, cocksure it is, that ‘public servants’ - especially the police in India, will be deterred - to a great extent - in the performance of their duties and deleterious consequence is likely to ensure, affecting the society at large. 147. What the Apex Court said, in the relevant portion of paragraph 27 (at page 248) in the case of Shri D.K. Basu, (1986)4 Crimes 233, relatable to a difficult and delicate task performed by the police force, in the present situation is relevant and it reads as under: “...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 extremists, the terrorists, drug peddlers, smugglers who have organised gangs, have taken strong roots in the society. Many hard core criminals like extremists, 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 the crimes committed by such categories of hardened criminals by soft peddling interrogation. It is felt in those quarters that if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may go scot free without exposing any element or iota of criminality with the result, the crime and would go unpunished and in the ultimate analysis, the society would suffer. The concern is genuine and the problem is real. The deal with such a situation, a balanced approach is needed to meet the needs of justice. This is 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 worse than the disease itself.” 148. For the reasons above, we answer this point by stating that it is not correct to state that Sec.197 of the Code cannot be made applicable, inasmuch as the same must be construed to have been dispensed with in prosecution of cases, arising out of Human Rights offences. 149. Point No.23: A voice is heard from certain quarters that the wheels of criminal law can be set in motion as against offenders - public servants - in respect of the commission of Human Rights offences, either by N.H.R.C. or S.H.R.C. after due inquiry into such complaints and making a report therefor, which will serve as a launching-pad for prosecution and not until then. This voice, we rather feel, is not getting necessary support from the various provisions contained in P.H.R.A. If that be the intention of the farmers of P.H.R.A., specific provision ought to have been made towards that direction. Absence of any such provision is a clear and positive indication for such sort of an intention not having been entertained in their minds. Absence of any such provision is a clear and positive indication for such sort of an intention not having been entertained in their minds. This sort of a view will get further reinforced, if we examine the functions and powers of the Commission and procedure to be adopted by it, in respect of inquiry into the complaints of Human Rights offences contained in Chapters HI and IV of P.H.R.A. From the conspectus of the various provisions in those Chapters, we have already recorded our findings on Point No.14 that the Commission is having powers simpliciter to recommend to the concerned Government or any authority to initiate proceedings for prosecution or such other action, as the Commission may deem fit against the concerned person(s) in cases of inquiry into complaints of Human Rights offences at the instance of the instrumentalities of the State, that is to say, public servants apart from recommending to the concerned Government or authority for the grant of interim relief to the victim or members of his family, as the Commission may consider necessary. The concerned Government, of course, after taking into consideration the implications of the report, on due application of mind, may accord sanction for prosecution. 150. Of course, nothing is mentioned in P.H.R.A. regarding the rights of the victims of Human Rights offences, in the matter of other forums of redressal of their grievances, either by the preference of a private complaint, in relation to offences-cognizable or otherwise before H.R.Cs. or lodging of an information in respect of cognizable offences to S.H.O. of the concerned police station. We have already found on point No.7 that it is legally permissible for the relevant provisions of the Code to be swung into operation for the trial of offences, arising out of the violation of Human Rights, excepting matters in respect of which specific provision has been made in P.H.R.A. Once the Code comes into operation, as stated above, it goes without saying that the wheels of criminal law can be set in motion by the victims of Human Rights offences, in accordance with the procedure laid won in the Code itself. 151. A question in this action may crop up for consideration as to what is the procedure to be followed by H.R.Cs., in case simultaneous inquiry or investigation is conducted in respect of Human Rights offences both by the police as well as the Commission. 151. A question in this action may crop up for consideration as to what is the procedure to be followed by H.R.Cs., in case simultaneous inquiry or investigation is conducted in respect of Human Rights offences both by the police as well as the Commission. In cases, where final reports under Sec. 173(2) of the Code are filed by the police, leading to taking cognizance, is it necessary for H.R.C. to wait, without proceeding further with the trial, for the prosecution from launching pad of a report of the Human Rights Commission? 152. As to what should be the procedure, that should be followed, in such a situation, is traceable to the provision contained in Sec.210 of the Code, which reads as under: “210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence: (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence, which is the subject-matter, of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. .(2) If a report is made by the investigating police officer under Sec.173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. .(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him in accordance with the provisions of this Code.” 153. This section is new, as having been introduced in 1978, by way of an amendment to the Code. It is intended to secure that a case instituted otherwise man on a police report, referred to as a complaint case, does not interfere with the course of justice. This section is new, as having been introduced in 1978, by way of an amendment to the Code. It is intended to secure that a case instituted otherwise man on a police report, referred to as a complaint case, does not interfere with the course of justice. According to the Joint Select Committee, when a serious case is under police investigation, some of the persons concerned sometimes file a complaint and quickly get an order of acquittal, either by collusion or otherwise. The investigation of the case becomes infructuous and leads to miscarriage of justice in some cases. To avoid this, the Committee provided that where a complaint is filed and the police investigation also goes on for the same offence, the Magistrate shall stay the complaint case. If the police report is received, the two cases should be tried together. If no such report is received, the Magistrate would be free to dispose of the complaint case. 154. We may point out here that the contingency as contemplated by the Joint Select Committee, in introducing such a provision, may not be these in cases of prosecution emerging from the launching pad of a report by the Commission, for obvious reasons, which needs no elucidation. 155. For the reasons as above, we are persuaded to hold the view on this point that it is not necessary for a label of a report to be affixed to the complaint of offences, arising out of violation of Human Rights that this is a fit case for prosecution before H.R.Cs. a condition precedent for me wheels of criminal law to be set in motion. 156.Point No.24: Our findings so far do not at all disclose that RH.R.A. is materially defective in such a way as is not possible to implement its provisions in “as is where is state” for achieving the object, for which the same had been enacted. We, however, found that certain deficiencies, numbering three or thereabouts were attributed in this P.H.R.A and if those deficiencies stand rectified by way of amendments by adding or creating a new offence of ‘torture’, which affects me dignity of the individual in I.P.C. and introducing a new provision, in the shape of Sec.114-B in I.E.A. revising the burden of proof regarding Human Rights Offences, as indicated by the Law Commission in its 113th report, besides investing power of exclusive jurisdiction with H.R.Cs. to make award of compensation to the victims of Human Rights offences, prescribing no limits, ousting the jurisdiction of Civil Court and vesting public law jurisdiction, inhering in Writ Courts - High Courts and Supreme Court - relatable only to the award of compensation for violation of fundamental rights of a citizen-with a discretion for such courts to permit the Government Central, a State to recover the whole or part of it form the officers), who are found guilty and to award interim compensation befitting such relief, by making suitable provision in P.H.R.A. by way of amendment, the implementation of P.H.R.A will stand on a better pedestal. We trust and hope that the Union Government will very soon bring necessary amendments to I.P.C., I.E.A. and P.H.R.A. as we have indicated for giving succour arid relief, in a better way, to the citizens of this country, whose Human Rights, it is said, are being violated day-in and day-out. We may, however, point out that it is not legally permissible for this Court to issue a mandamus to the Union Government to bring in amendments to the enactments, as we have indicated. We answer this point Accordingly. 157.Point No.25: The court of C.J.M., Erode, H.R.C., a Criminal Court, not having any powers of writ jurisdiction under Art.226 of the constitution, cannot at all entertain the petition presented before it by the Tamil Nadu Pazhangudi Makkal Sangam represented by V.P. Gunasekaran, Joint Secretary for the relief of a nature grantable in writ jurisdiction. This point is accordingly answered. 158. We are emboldened to state that by the exercise undertaken in this action, we have poured, by our hands some purposeful meaning in the empty vessels of words, used in P.H.R.A, with the sole object of the same being implemented to the satisfaction of one and all. The result of such an exercise of ours, with the active co-operation of learned Members of the Bar, is that everything is made clear at the end, as it appeared to be not so at the beginning and no question, we rather feel, is allowed to be left hanging. [Paras. 159 and 160- omitted - Ed.] 161. The result of such an exercise of ours, with the active co-operation of learned Members of the Bar, is that everything is made clear at the end, as it appeared to be not so at the beginning and no question, we rather feel, is allowed to be left hanging. [Paras. 159 and 160- omitted - Ed.] 161. The present action has been mainly initiated to clear the clouds operating not only in the minds of the subordinate Judicial Officers, but also the professionally trained minds, besides lay public in relation to the novel idea of violation of ‘Human Rights’ sought to be dealt with by P.H.R.A. under the various provisions contained therein, in the sense of those provisions, not being understood in the proper perspective by them. The information, relatable to the exercise we have have undertaken in clearing such clouds, requires to be passed on to all the Judicial Officers, particularly the Presiding Deities of H.R.Cs. Such information, we feel, can be passed on thus: (a) Instead of the Registry taking copies of this order and circulating the same to all the Subordinate Judicial Officers in the State of Tamil Nadu, which in fact is a stupendous task, we feel, such number of copies of the orders as are necessary for communicating to the Sessions Judges and Additional Sessions Judge-cum- Chief Judicial Magistrates in the State of Tamil Nadu could be taken-which may not pose any serious problem to the administration of this Court and circulated to those Sessions Judge and Additional Sessions Judges-cum-Chief Judicial Magistrates with a direction to them that after receipt of a copy of such order, they should take xerox copies of the same and circulate them to all the Subordinate Judicial Officers in their respective Divisions/ Units, (b) The best course, we feel, in the circumstances, would be for the the Registry to immediately place a note before Our Lord the Honourable the Chief Justice on this aspect of the matter and get necessary approval and thereafter take such number of copies of this order, as are necessary and despatch the same to all those intended officers without any loss of time. 162. There is, to be sure, one condition that must exist in order to assure the effectiveness of ‘Human Rights’, namely, an independent judiciary and a courageous and independent Bar. 162. There is, to be sure, one condition that must exist in order to assure the effectiveness of ‘Human Rights’, namely, an independent judiciary and a courageous and independent Bar. With these, ‘Human Rights’, can build the deepest aspirations of the people into the structure of their common life. 163. This criminal revision case is thus answered.