Judgment The first petitioner is the father and the second petitioner is the wife of Bhikari Paswan who until the alleged disappearance was a worker of Victoria Jute Mills at Telinipara, District-Hooghly. They have moved this Court under Article 226 of the Constitution of India alleging inter alia that the management of the mills was not making payment or the due wages/salaries and other dues to the workers for a long period of time and workers were ventilating their grievance by agitating from time to time. When their wages, according to the petitioners were not paid before Durga Puja of the year 1993, workers intensified their agitation irrespective of their affiliation to any recognised trade union, because, according to the petitioners, since it was felt by the workers of the said jute mills that the trade unions were giving false hopes to the workers, the workers were also aggrieved against the trade unions operating in the laid mills. On 21.10.93 the workers of the said jute mills held demonstration against the management as also against the trade union leaders operating at the said jute mills. The police authorities, without any provocation, resorted to athi charge the workers and then resorted to firing without any justifiable cause at all. The administration also did not take any steps compelling the management to make payment of the legal dues of the workers of the jute mills. 2. On 30.10.93, the petitioners have alleged, at the instance of the District Magistrate, Hooghly, some payments were made to the workers of the said jute mill by the management. The administration also did not take any steps compelling the management to make payment of the legal dues of the workers of the jute mills. 2. On 30.10.93, the petitioners have alleged, at the instance of the District Magistrate, Hooghly, some payments were made to the workers of the said jute mill by the management. Bhikari Paswan went to the mill premises on that date for receiving payment and returned after receiving some payment around 7.30 p.m. to his house Around 12.30 a.m. in the night of 30/31.10.93 it is alleged, the second petitioner heard that some persons were knocking on the door of their residence calling for Bhikari Paswan and on opening the door of the premises found that Samar Dutta, Sub-Inspector of Police (respondent No. 8) who was earlier posted at Telinipara Police Outpost and presently posted at Srirampore P.S. and one Swapan (9th respondent) a constable and commonly called as Dack Babu of Telinipara Outpost were standing in uniform outside the said premises along with other Police Officers, 8th respondent and 9th respondent asked the second petitioner to call Bhikari when the petitioner No. 2 told them that Bhikari Paswan was sleeping. They rudely asked the petitioner No. 2 to wake up Bhikari Paswan and call him immediately. The second petitioner then informed Bhikari Paswan that the said two Police Officers, who were in their uniform, were calling him. Bhikari Paswan, who was wearing nothing but a towel at that point of time, came out to the main door of the premises along with the writ petitioners. The petitioners, have thereafter alleged that the said two Police Officers named Samar Dutta and Swapan caught hold of the neck of Bhikari and started assaulting him ruthlessly in presence or the petitioners. By reason of such assault, Bhikari Paswan started bleeding from his mouth and nose. In the meantime, some of the neighbours who woke up from their sleep, came out and saw that Bhikari Paswan was being ruthlessly assaulted and beaten up by the said two police personnel. Samar Dutta and Swapan arrested Bhikari Paswan and dragged him with them in presence of the petitioners. In the meantime, some of the neighbours who woke up from their sleep, came out and saw that Bhikari Paswan was being ruthlessly assaulted and beaten up by the said two police personnel. Samar Dutta and Swapan arrested Bhikari Paswan and dragged him with them in presence of the petitioners. Further events, according to the petitioners that followed the alleged arrest of Bhikari Paswan were as follows:- The first petitioner went to the Telinipara Town Outpost where he found that Bhikari Paswan was kept in the lock up and from outside of the said outpost he saw that Bhikari Paswan was lying on the floor and heard 'faint crying' of Bhikari Paswan. He requested the Sentry at the outpost for permission to talk to Bhikari Paswan but he was not allowed to talk to him. The Additional Superintendent of Police, Hooghly, H.P. Singh (respondent No. 5) was present at, Telinipara Town Outpost at that point of time. The first petitioner requested him for permission to talk to Bhikari Paswan. The Additional Superintendent of Police also refused the request. "...............on the contrary asked your petitioner No. 1 ruthlessly to immediately leave Telinipara Police Outpost otherwise severe consequences will follow and asked him to come in the morning at the outpost. The first petitioner obediently returned to come next morning i.e. in the morning of 31.10.93 to the police outpost. On 31.10.93 in the morning the constable at the said outpost informed him that "Bhikari Paswan have been taken by senior police officials of the said outpost in the past night". The first petitioner immediately thereafter contacted the Lawyers of the Chandannagore Court of the local area so that he could secure bail from the Court for his son Bhikari Paswan. He learnt, however, that Bhikari Paswan had not been produced before the Chandannagore Court while all other arrested persons were produced before the said Court. The first petitioner, then searched for Bhikari Paswan at Bhadreswar Police Station as well as at Srirampore Police Station, but no trace of Bhikari Paswan could be found. The first petitioner met the Officer-in-Charge, Bhadreswar Police Station on 2nd and 3rd November, 1993 and requested him to lodge diary against such detention of Bhikari Paswan by the said two Police Officers but the Officer-in-Charge, Bhadreswar P.S. refused to receive any diary from the first petitioner. The first petitioner met the Officer-in-Charge, Bhadreswar Police Station on 2nd and 3rd November, 1993 and requested him to lodge diary against such detention of Bhikari Paswan by the said two Police Officers but the Officer-in-Charge, Bhadreswar P.S. refused to receive any diary from the first petitioner. The first petitioner then met the Additional Superintendent of Police, Hooghly, who also did not receive any complaint from him regarding illegal detention of Bhikari Paswan by the said two Police Officers and the fact that Bhikari Paswan was kept at Telinipara Police Outpost at 1 a.m. on 31.10.93. On the other had the Additional Superintendent of Police, Hooghly, asked the petitioner No. 1 to writ-on plain blank paper that his son was missing. Since the Officer-in-Charge, Bhadreswar Police Station did not accept the complaint/diary of the petitioner No.1 and since the Additional Superintendent of Police also did not receive such complaint, on 9.11.93 the petitioner No. 1 lodged a complaint to the Hon'ble Chief Minister, West Bengal, with a copy to the Home Secretary, Writers Building, Superintendent of Police, Hooghly wherein the petitioner No.1 pointed out that his son Bhikari Paswan, 32 years of age, had been taken away by the police from the residence on 30.10.93 at night and a police party under the leadership of the Additional Superintendent of Police, Hooghly, came to the petitioner No. 1's residence on 30.10.93 at night had his son arrested for reason known to the police, when his son had been sleeping with a gamcha (desi towel) and the police even did not allow Bhikari Paswan to change his dress. In the said complaint the petitioner No. 1 further stated that the petitioner No. 1 went to the Chandannagar Court to trace his son out, be came to know that he was not sent to Court, when the petitioner No.1 approached Bhadreswar P.S. the police denied the arrest of the petitioner No. 1's son. This compelled the petitioner No.1 to approach the Additional Superintendent of Police who also denied the arrest of the son of the petitioner and on the contrary, forced the petitioner No. 1 to write a letter about his missing son which the petitioner No.1 refused to give and informed the Additional Superintendent concerned that such as allegation was not correct at all because of the fact that his son had been taken away by the police. It is alleged that second respondent was in a family way since marriage and Bhikari is the father of two children. The petitioner's request, however, for action against those who are responsible for illegal arrest and detention of Bhikari Paswan and for other steps had failed in deaf ears. The petitioners, have moved this Court for alleged violation of rights under Articles 21 and 22 of the Constitution of India as also Section 57 of the Code of Criminal Procedure and prayed for a writ in the nature of habeas corpus for production of Bhikari Paswan before the Court and for his release forthwith. Direction was issued calling upon the respondents to show cause. Respondent Nos. 1 to 7 and 10 in their common affidavit have accepted that workers of the Victoria Jute Mill were agitating because they were not receiving their wages in full regularly and for which reason several crores of rupees has fallen due as wages and bonus to the workers. The mill authorities by taking advantage of the situation had declared lock out/suspension of work etc. on a number of occasions. This had contributed to some extent, according to those respondents, to law and order problem in the area. In the month of September 1993, there was agitation twice due to deferment of dates for fortnightly payment of the wages to workers. In the month of October 1993, also scheduled date of payment of wages for the fortnight ending September 30, 1993, was fixed on October 19, 1993. Accordingly token slips for payment of wages were issued on October 18, 1993, to the individual workers/staffs to receive their payment but subsequently the payment was not made. This caused grave situation and it was explosive when the local police had to tackle the situation somehow and the major law and order problem could be avoided. These respondents have further added that as the workers of the jute mills were not getting their wages since a long period, they looted properties and ransacked the houses of the union leaders irrespective of any political colour on the night of October 20, 1993, viz. house of Narsingh Chowdhury of B.M.S., Ram Nath Sah of H.M.S., Bihari Lal Show of I.N.T.V.C., Sital Chander Show of R.C.M.U., Jogendra Shah of I.N.T.U.C. and houses of Ram Prasad Chowdhury of I.N.T.U.C. and Md. house of Narsingh Chowdhury of B.M.S., Ram Nath Sah of H.M.S., Bihari Lal Show of I.N.T.V.C., Sital Chander Show of R.C.M.U., Jogendra Shah of I.N.T.U.C. and houses of Ram Prasad Chowdhury of I.N.T.U.C. and Md. Israel of C.I.T.I. Accordingly on the basis of complaint of one Kanai Lal Chowdhury and Narsingh Chowdhury, Bhadreswar P.S. Case No. 238 of 1993 dated 21.10.93 under Sections 147, 148, 341, 379, 427, 447, 448, 323, 506 of the Indian Penal Code was started. Kanai Lal Chowdhury is the son of Narsingh Chowdhury who is an employee of Victoria Jute Mill and President of local B.M.S., unit Bhadreswar. Investigation started, Police held raid in the night of October 20/21, 1993, in Telinipara area and arrested the following persons:- 1. Bharat Chaudhury, son of Ram Khelon Chaudhury of Mansatala, Telinipara. 2. Gabbar Singh, son of Lowta Das, house of Ram Nath Shat of R.B. Lane, Telinipara. 3. Jaharlal Shat, son of Late Gobindalal Shat of Mansatala, Telinipara. 4. Jyotilal Shah, son of Sri Jaharlal Shah of Mansatala, Telinipara. 5. Ram Sunder Chaudhury, son of Sekku Chaudhury of Mansatala, Telinipara. 6. Hiralal Chaudhury, son of Harihar Chaudhury, house of Jagadish Chaudhury of Malapara, Telinipara. 7. Ram Bhaglu Chaudhury, son of Adhari Bhaglu, house of Sitaram Chaudhury, all of Police Station, Bhadreswar. 8. Kanai Ram, son of Durga, house of Bhola Shah. 1 to 7 were arrested on October 21, 1993, and forwarded to Court on the same day, Sl. No. 8 was arrested on October 23, 1993, and forwarded the lame day. 3. These respondents have also stated that after the arrest of the above named persons an irate mob of about 1500 including a good number of mill workers assembled in front of Telinipara Town Outpost at about 7 hours on October 21, 1993, in protest against the arrests and demanded their unconditional release. On arrival of Circle inspector, Chandannagar and Officer-in-Charge, Bhadreswar Police Station with enforcement, the mob gradually melted away. Simultaneously a group 300/400 miscreants/mill workers armed with iron rod, lathi etc. damaged the Union Offices of C.I.T.U., A.I.T.U.C., I.N.T.U.C. and B.M.S. at Telinipara extensively. The miscreants also put fire on the A.I.T.U.C., Union Office, Police party consisting of one Assistant Sub-inspector and two Constables who were on picket duty at Mansatala area tried to prevent the mob from causing mischief at B.M.S. Office at Ferry Ghat Station, Telinipara. damaged the Union Offices of C.I.T.U., A.I.T.U.C., I.N.T.U.C. and B.M.S. at Telinipara extensively. The miscreants also put fire on the A.I.T.U.C., Union Office, Police party consisting of one Assistant Sub-inspector and two Constables who were on picket duty at Mansatala area tried to prevent the mob from causing mischief at B.M.S. Office at Ferry Ghat Station, Telinipara. But the miscreants attacked the police party with brick bats as a result of which C/2021 Balram Singh sustained injuries on his head and person. According to the respondents to save their lives and to disperse the unruly mob police fired 9 rounds. But this could not scare the unruly mob which continued chasing the police patty with brick bat, iron rod etc. During retreat C/2021 Balram Singh was isolated from the rest of the police party due to severe injuries on his head and was caught by the miscreants who assaulted him brutally with intent to kill him. However, rest of the police party could return to Telinipara Town Outpost. Receiving the information Circle Inspector. Chandannagar and Officer-in-Charge, Bhadreswar P.S. with available Officers and force rushed to the spot and found C/2021 Balram Singh lying on the side of R.P.M. Road unconcious with severe bleeding injuries on his head. He was immediately shifted to Chandannagar Sub-Divisional Hospital where he succumbed to his injuries on the same day at 11.00 hours. At this instance Bhadreswar Police Station Case No. 239 of 1993 dated October 21, 1993, under Sections 147/148/341/447/427/353/326/307 read with Section 302 of the Indian Penal Code was started on the basis of complaint of Ainul Haque, Assistant Sub-Inspector of Telinipara Town Outpost against 22 miscreants and 300/400 others. Further on the complaint of Abani Ganguly, another Bhadreswar P.S. Case No. 240 of 1993 under Sections 147/148/149/447/427/435 of Indian Penal Code was started for damaging 4 union offices. Since, however, to give in some detailed information as to how to combat the situation the police administration geared up, the District Magistrate, Hooghly, Superintendent of Police, Hooghly, Additional Superintendent of Police, Hooghly, Sub-Divisional Officer, Chanadannagar, and many Superior Officers of the district also camped at Telinipara to combat the situation. A list of names of miscreants arrested for such riots by the police is also given in the affidavit. Agitation that followed such raids and arrest and how miscreants attacked police personnel while agitating is also narrated in the affidavit. A list of names of miscreants arrested for such riots by the police is also given in the affidavit. Agitation that followed such raids and arrest and how miscreants attacked police personnel while agitating is also narrated in the affidavit. Details in this behalf shows that those who were agitating could not be controlled in spite of prohibitory orders and all efforts of the local administration. Respondents have pointed out how after great persuasion management of the mills was made ready to pay some wages to the employees and thus wages were made available to the workers which they received on October 30, 1993. Since Bhikari Paswan, according to the petitioners was picked up in the night of 30/31.10.93 the respondents' version in this behalf is relevant which is as follows:- "I state that consequent to apprehension of serious law and order problem and in view of disbursement of wages a strong police arrangement was made on October 30, 1993, at different place of Victoria Jute Mill including the main sate (Gate No. 2) of the mill. The Sub-Inspector Samar Dutta, Assistant Sub-Inspector, A. Haque with two sections of S.A.P. force were deputed to perform duty at the main gate of Victoria Jute Mill from 15.00 hours under direct supervision of Sub-Divisional Police Officer, Circle Inspector, Chandannagar and Officer-in-Charge, Bhadreswar P.S. till the payment of salary/wages to the workers is completed. It appears also from Telinipara Outpost General Diary Entry No. 743 dated October 31, 1993, that S.I. Samar Dutta and force returned to Telinipara Town Outpost at 02.05 hours on the night of October 31, 1993, after performing duties. It may also be mentioned here that all the material items from 15.00 hrs. on October 30, 1993, till 02.05 hours on October 31, 1993, S.I. Samar Dutta had been performing his duty at the main gate of Victoria Jute Mill under over all charge of the Sub-Divisional Police Officer, Chandannagar and direct supervision of Circle Inspector, Chandannagar and O.C., Bhadreswar. Further I say that disbursement of wages was completed and all other formalities were completed by 01.30 hours on the night of October 30/31, 1993, and thereafter the District Magistrate, Hooghly, left Victoria Jute Mill for Chinsurah. Further I say that disbursement of wages was completed and all other formalities were completed by 01.30 hours on the night of October 30/31, 1993, and thereafter the District Magistrate, Hooghly, left Victoria Jute Mill for Chinsurah. I say that District Magistrate, Hooghly, myself and Sub-Divisional Police Officer, Chandannagar were present in the mill when the payment of wages to the workers was in process and S.I. Samar Dutta was in his duty place at the main gate of the said mill. No absent report in respect of Sub-Inspector Samar Dutta from his duty place has been received by me." 4. 5th respondent who has sworn the affidavit has in particular made specific denial of the allegations that are levelled against him and generally denied all other allegations and statements in the writ petition except those which are admitted and are referable to any of those respondents other than respondent Nos. 8 and 9. 5. Speaking generally, however, on behalf or all the respondents the 5th respondent has stated 'I state that Bhikari Paswan was never arrested or takes into custody by police at night or any other time on October 30/31, 1993 or any other day as alleged'. In this affidavit the 5th respondent has denied generally the allegations of the first petitioner excepting admitting 'I state that on November 3, 1993, the petitioner. No.1 met me (the Additional Superintendent of Police, Hooghly) at my office and stated that his son, Sri Bhikari Paswan was missing for the last 2/3 days. He also stated that his son was dealer or illicitly distilled liquor (chulai mod). Immediately thereafter I contacted Officer-in-Charge, Bhadreswar P.S. over phone and enquired if any one by name of Bhikari Paswan had been arrested during last 2/3 days but Officer-in-Charge, Bhadreswar P.S. told me that none by the name of Bhikari Paswan was arrested for any offence. Thereafter, I informed the petitioner No. 1 accordingly." 6. Separate returns have been filed on behalf of 8th and 9th respondents. 8th respondent in his affidavit has admitted about his posting at Bhadreswar and transfer to Srirampore Police Station and his posting at Telinipara Towa Outpost. He has stated that during his stay at Telinipara Town Outpost he performed law and order dufies and was always accompanied by Superior Officers. 8th respondent in his affidavit has admitted about his posting at Bhadreswar and transfer to Srirampore Police Station and his posting at Telinipara Towa Outpost. He has stated that during his stay at Telinipara Town Outpost he performed law and order dufies and was always accompanied by Superior Officers. On the questions, whom did he accompany and about his presence on 30.10.1993, that is, the day on which Bhikari Paswan was allegedly picked up, he has stated as follows :- " ………………. As the situation around the Jute Mill area was tense, a strong police arrangement was made in different places and at different gates of the said Mill. I was detailed to perform duty at the main gate of Victoria Jute Mill from 15.00 hus. on 30.10.93 under the over all charge of Sub-Divisional Police Officer, Chandannagar and supervision of Circle Inspector of Police, Chandannagar till the payment was completed by the Management of the Mill and the District Magistrate, Hooghly. The payment of salary and other formalities were completed by 01.30 hrs. on the night of 30/31.10.93 and thereafter the District Magistrate, Hooghly left the Victoria Jute Mill for Chinsurah." According to him, he was performing his duty at the main gate of Victoria Jute Mill under direct supervision of Circle Inspector of Police, Chandannagar and the Officer-in-Charge, Bhadreswar Police Station and was at the main gate at night even after 12.00 hours until 1.30 hours. According to him:- "On 31.10.1993, I was cither inside the Mill premises at the Wage Disbursement Counters or at the main gate of the said Mill. All along, whether at the counters or at the main gate, I was in the company of Circle Inspector of Police, Chandannagar of the Officer-in-Charge, Bhadreswar Police Station. Only after 01.30 hours, when the District Magistrate left the Victoria Jute Mill, I accompanied by the Circle Inspector of Police, Chandannagar and the Officer-in-Charge, Bhadreswar Police Station left the place of my duty." 7. Ninth respondent, in his affidavit, has pleaded ignorance and alleged that allegations against him are false, baseless and motivated. He has stated that on the night of 30/31.10.1993 he was not detailed for duty outside Telinipara Outpost. However, he was on stand-by duty at the said post, under charge of S.I. Tarakeswar Das. Ninth respondent, in his affidavit, has pleaded ignorance and alleged that allegations against him are false, baseless and motivated. He has stated that on the night of 30/31.10.1993 he was not detailed for duty outside Telinipara Outpost. However, he was on stand-by duty at the said post, under charge of S.I. Tarakeswar Das. He thus has denied to have participated in any raid on the house of Bhikari Paswan at any point of time. 8. We have culled out the facts in controversy only for the purpose of identifying the area of judicial intervention in the matter in exercise of the Courts power under Article 226 of the Constitution of India. The Courts in England and the Judges of the High Courts in India before independence, exercised the power of the Judges of the Queen's Bench, and followed, in exercise of their power under Letters Patent, whenever occasions came for exercising jurisdiction in matters pertaining to illegal detention, the normal practice of issuing notice upon the respondents with a view to affording them opportunity to file affidavit/evidence-in-reply. If the facts were controverted by the respondents appearing is response to the notice, by filing affidavit/evidence, Court proceeded to investigate the fact to determine whether there was substance in the petition. If on investigation of facts the Court was not satisfied, it dismissed the petition and if affidavit/evidence of the respondents it found unsatisfactory, issued writ of Habeas Corpus for the return. A full-fledged enquiry, thus, on denial by affidavit/evidence of the allegation of illegal detention was required because the Court, before finally finding that the truth of detention was established, took care that no one who was charged of violating law, was denied opportunity to defend oneself. Leading judgment of the House of Lords of the later part of the last century in the ease of (1) Thomas John Barnardo v. Mary Ford, 1892 AC 326 is noticed by the Supreme Court of India in the case of (2) Sebastian M. Hongray v. Union of India and Others, AIR 1984 Supreme Court 571. The House of Lords in the said case held that even if upon a notice of motion, it is contended by the person against whom the writ is sought, that the person alleged to be in the custody of the respondents has long since left the custody, a writ can be issued and return insisted upon. The House of Lords in the said case held that even if upon a notice of motion, it is contended by the person against whom the writ is sought, that the person alleged to be in the custody of the respondents has long since left the custody, a writ can be issued and return insisted upon. After referring to the facts of the said case, the Supreme Court has noted that before the decision in the case of Thomas John Barnardo (supra) the Court of Appeal decided (3) Reg. v. Barnardo Tye's case, (1889) 23 QBD 305 in which it was laid down that it was not an excuse for non-compliance with the writ that the defendant had parted with the custody of the person detained to another person if he had done so wrongfully. To explain further the above rule in Bernardo Tye's case, the Supreme Court in Sebastian M. Hongray (supra) has taken notice of the rule which was applied in the petition for a writ of Habeas Corpus as stated in Halsbury's Laws of England, 4th Edition, Vol. II, paragraph 1482. Preliminary investigation of facts thus, before Rule was issued for the return by the respondents, the Court followed and when it was not satisfied with the affidavit/evidence, that was filed in response to the notice the Rule was issued for filing the return. 9. We shall advert to the facts of the case a little liter, for before we do so, we propose to clear some of the preliminaries which appear to us irrelevant, yet, since they have alone created many confusions in the instant proceedings, they have to be cleared first. The Court or first instance or the Court of original jurisdiction is always possessed of all equipments, if necessary, for a summary investigation of facts and if necessary, for a full-dress trial. Jurisdiction under Article 226 of the Constitution of India is such power of a superior Court in India which is plenary and original and thus, this Court is competent to hold either a summary investigation of facts or a full-dress trial. Jurisdiction under Article 226 of the Constitution of India is such power of a superior Court in India which is plenary and original and thus, this Court is competent to hold either a summary investigation of facts or a full-dress trial. While acknowledging such power of the Court under Article 226 of the Constitution, it has invariably been expressed by the High Courts and the Supreme Court of India that whenever facts are in dispute and the ordinary law of the land has such mechanism which call be more efficacious and expedient, extraordinary procedure of investigation of facts, more so, by way of a full-dress trial should be avoided. It has often been pointed out by the Courts that Article 226 of the Constitution of India gives to the Court extraordinarily and original power to issue to any person or authority including in appropriate cases any Government orders or Writs including the five well-known prerogatives, Habeas Corpus, Mandamus, Prohibition, Quo Warranto or Certiorari for the enforcement of any of the rights conferred by Part-III and for any other purpose. The Courts exercise this power as their duty for the enforcement of any of the rights conferred by Part-III of the Constitution and Ex. Debito Justitiae for other purposes in their discretion to meet the ends of Justice. All the provisions in Part-III, however, of the Constitution, do not constitute its basic feature. Articles 14 and 21 of the Constitution, which are in Part- III of the Constitution are in the nature of guarantees of the right of equality before the law and the equal protection of the laws and of life and personal liberty. In the case of enforcement of the rule of equality, Courts accept as a corollary and thus in Article 14 itself the existence of the rule that such laws which are introduced or such actions which are intended to help unequals to become equals, are not discriminatory. Such laws or executive acts which appear to discriminate, but in essence strike at discrimination, are not invalid. For being in, the teeth of Article 14 of the Constitution discrimination must be shown to be hostile and/or arbitrary. In the case of the right under Article 21 of the Constitution, the Courts read in it that anything intended to affect life or personal liberty which is not in accordance with the procedure established by law is impermissible and invalid. In the case of the right under Article 21 of the Constitution, the Courts read in it that anything intended to affect life or personal liberty which is not in accordance with the procedure established by law is impermissible and invalid. The expression ‘procedure established by law’ in Article 21 of the Constitution is read as the procedure which is reasonable and conforms to the requirements of the principles of natural Justice such as the rule of Audi Alteram Partem. Anything that is done without confirming to the procedure established by law and without being reasonable and confirming to the requirements of the principles of natural Justice is impermissible and illegal. Article 22 of the Constitution speaks of the right of a person who is arrested and detained in custody and provides that no one can be defended in custody without being informed, as soon as may be, of the grounds for his or her arrest nor shall he or she be denied the right to consult and to be defended by legal practitioner of his or her choice and that :- 'every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.' The Courts' power to issue a prerogative under Article 226 of the Constitution, as we have noticed above, does not confine to the types of writs mentioned in the Article, but other types of orders and directions depending upon the facts and circumstances of the case and when a Mandamus is the appropriate relief on the facts that are presented before the Court, if Habeas Corpus is asked for, the Court can always mould the relief and issue Mandamus instead of Habeas Corpus. Similarly, Mandamus and Certiorari are interchangeable. An order of prohibition in the nature of a writ may eater into the arena of Mandamus and the Court in this behalf is not restricted by any command of the Constitution or the laws of the land to keep itself within the confines of a procedure of a particular prerogative. Similarly, Mandamus and Certiorari are interchangeable. An order of prohibition in the nature of a writ may eater into the arena of Mandamus and the Court in this behalf is not restricted by any command of the Constitution or the laws of the land to keep itself within the confines of a procedure of a particular prerogative. It is one thing to say that when the Court would decide to issue a writ of Habeas Corpus it would follow a particular procedure and another to say that when Habeas Corpus is not found to be a proper type of writ, the Court shall conclude the proceedings without looking into the facts whether any other writ or order or direction be issued in the matter. This aspect of the case has been dealt with by one of us sitting with Anand, C.J. (as His Lordships then was) in Madras High Court in the case of (4) Dr. S. Balasundaram and Tamil Nadu Agricultural University v. Dr. S. Mahadevan in Writ Appeal Nos. 865 and 949 of 1986, dated 26.7.1990. The principle stated in the said judgment is reiterated in another judgment of Madras High Court in the case of (5) Natarajan v. The Registrar of Co-operative Societies, Madras 1992 (1) MLJ 63 . Thus, it can be said without hesitation that the Courts' power under Article 226 of the Constitution has to be exercised as a sovereign duty for the enforcement of rights under Articles 21 and 14 of the Constitution of India as well as Ex Debito Justitiae. The Court can determine the issue of its own jurisdiction and in the ends of Justice, if the facts and circumstances warrant, issue any writ, order or direction, and adopt or develop its own procedure for enquiry into the facts and circumstances of the case and shall abide as far as practicable to the norms that are set forth by judicial precedent for the enquiry in respect of the type of order/direction or writ it would propose to issue and/or finally issue. 10. Adverting to the facts, the alleged atrocities upon Bhikari Paswan were brought before this Court by the Association of People for Democratic Rights on 19.11.1993. Lakhi Chand, the father and Smt. Lalti, the wife of Bhikari Paswan filed the instant petition on 22.11.1993. 10. Adverting to the facts, the alleged atrocities upon Bhikari Paswan were brought before this Court by the Association of People for Democratic Rights on 19.11.1993. Lakhi Chand, the father and Smt. Lalti, the wife of Bhikari Paswan filed the instant petition on 22.11.1993. On 25.11.1993 a Beach of this Court directed the Director General of Police, West Bengal, to make urgent enquiry and file a report and also directed the respondents including respondents Nos. 8 and 9 to file affidavits separately. On 6.12.1993 the Director General of Police, as directed, filed report of some sort of enquiry under his orders by his subordinates in the matter. The Bench, which on the said date heard the matter, directed the petitioners to file supplementary affidavit vis-a-vis the Police report and granted liberty to the respondents to file reply, if any. On 13.12.1993, the State and also the respondents Nos. 8 and 9 filed their separate affidavits. On 5.1.1994, the Bench ordered that the application by the Association of People for Democratic Rights would not be entertained, however, permitted them to render assistance to Lakhi Chand and Smt. Lalti Devi in their application. On this date, in view of denial as aforementioned and quoted, of the allegations against the respondents that Bhikari Paswan was picked up by the respondents nos. 8 and 9 and others in the night of 30/31.10.1993, that he was kept at Telinipara Outpost when he was last seen by Lakhi Chand and that Bhikari had been physically assaulted by the men in uniform, ordered that the issue whether Bhikari was at all arrested and taken into custody on the date and at the hour alleged, would be tried on evidence. The above order was made in our view justly, treating the affidavits not enough for the dismissal/discharge of the writ petition and thus asking for the return to the Rule nisi and trial on evidence, after the return. Between 14.1.1994 to 11.4.1994, five witnesses were examined on behalf of the petitioners and 8 witnesses were examined on behalf of the respondents. One more witness, that is, the ninth witness tendered on behalf of the respondents, was being examined when 'the proceeding got adjourned. Between 14.1.1994 to 11.4.1994, five witnesses were examined on behalf of the petitioners and 8 witnesses were examined on behalf of the respondents. One more witness, that is, the ninth witness tendered on behalf of the respondents, was being examined when 'the proceeding got adjourned. It commenced again on 8.6.1994 when a Bench of this Court passed the following order :- 'The question is whether Bhikari Paswan alias Amritlal Paswan was at all arrested by the Police or taken into the custody of the Police at about 12.30 hours in the Right between the nights of 30th & 31st October, 1993 from his residence at R.P.M Street, Telinipara, within Police Station, Bhadreswar. We have heard the evidence at length. We are of the view that in order to decide this question it is necessary to investigate the matter by an independent agency and so we direct the C.B.I. to investigate the matter and, report whether Bhikari Paswan was at all arrested or taken into the custody of Police on the aforesaid date. The C.B.I. is directed to make a report within six weeks from the date of communication of this order. The Registrar (A.S.) shall communicate this order to C.B.I. Both the parties will co-operate with the C.B.I. ............' 11. C.B.I. report was filed and copies thereof were served on the parties on 12.6.1995. Respondents, it appears, desired to contest the report of investigation by the C.B.I. and on 26.6.1995 a Bench of this Court gave liberty to the respondents to file objection to the report and to file a list of further witnesses if they intended to examine any more witnesses. Once again, examination of witnesses started and as many as five witnesses were examined on behalf of the respondents between 21.7.1995 and 8.8.1995. The Court, at this stage, at the request of the respondents directed for examination of Shri Sharad Kumar, S.P., C.B.I. as a witness in the proceeding. After one adjournment, an application was made on behalf of the C.B.I. Officer that he should not be made a witness as he carried out the directions of this Court and submitted his report. A contest then followed-What is the effect of the report of C.B.I. which has been filed pursuant to the order of the Court, dated 8.6.1994 quoted above? Arguments were heard on more than one day. A contest then followed-What is the effect of the report of C.B.I. which has been filed pursuant to the order of the Court, dated 8.6.1994 quoted above? Arguments were heard on more than one day. On 11.10.1996, however, the Court made a detailed order on the question whether C.B.I's report was relevant within the meaning of Section 35 of the Evidence Act or otherwise could be taken into consideration in the instant proceeding. The Bench hearing the matter on the said date, that is, on 11.10.1996, ordered that-in view of the peculiar facts, since trial of the matter had been taken upon evidence, and the evidence of both the parties have already been recorded at length in which the parties have duly participated :- 'The report submitted by the CBI in terms of the Court's aforesaid earlier order dated 8.6.94 would also be another piece of evidence, when brought into evidence, which is required to be considered by the Court, along with the other evidence on record, for deciding the issue raised herein. The probative and evidentiary value of the report has to be considered in the light of the other evidence on record............' The Court accordingly directed Shri Sharad Kumar, S.P., C.B.I. to appear before the Court on 28.11.1996 at 2.00 p.m. for testifying in the case in terms of the order of the Court. The said order was challenged before the Supreme Court. Disposing of the Special Leave Petition, the Supreme Court only clarified as follows:- It would suffice to clarify that the C.B.I. Officer who submitted the report can be examined as a Court; witness and we see no objection to it. We, therefore, dispose of this Special Leave Petition. It appears, thereafter, some dates were fixed for examination of the C.B.I. witness and finally on 8.12.1997 when the matter was placed before us, we fixed a date for further hearing and also ordered as follows :- "Heard the learned Counsel appearing for the parties. Put up the matter on 6th January, 1998 at the top of the list for further hearing. Any order as to examination in Court of the Officer of C.B.I. Mr. Sharad Kumar is deferred for the present." 12. Put up the matter on 6th January, 1998 at the top of the list for further hearing. Any order as to examination in Court of the Officer of C.B.I. Mr. Sharad Kumar is deferred for the present." 12. On 13.2.1998, after hearing the learned Advocates for the parties, we passed an order indicating how in the instant proceedings the Court proposed to deal with the evidence and activate the proceedings in respect of the allegations in accordance with the procedure established by law. The relevant portion of the order reads as follows :- When, however, allegation of the alleged arrest by the above named persons were denied before this Court, the Court felt that it was necessary to have at least some prima facie evidence for its satisfaction so that appropriate order be made in the proceedings and in course of the hearing of the instant petition on several dates in the past some evidence has been recorded, report of a Senior Police Officer of the State is obtained and finally a C.B.I. Officer is entrusted with the enquiry whose report is also on the record. Instead of closing the case before this Court on such prima facie satisfaction which the Court desired when the report of the C.B.I. Officer is brought on record, respondents resistance that the report of the C.B.I. be treated at par with the report of any Commissioner appointed by the Court and he be permitted to be examined by them before his report is looked into, the Court has made such an order. In course of further hearing of the case, however, we have been persuaded to think that any evidence that has been recorded be fore this Court or the reports aforementioned are at best in the nature of materials only for prima facie satisfaction whether any action in accordance with law is required to be taken for the alleged offence that are disclosed in the proceedings allegedly to have been committed by some of the respondent and others. Any attempt to convert the proceeding before this Court into full-dress trial to decide upon the truth or otherwise of the allegation or counter-allegation will be undesirable. Any attempt to convert the proceeding before this Court into full-dress trial to decide upon the truth or otherwise of the allegation or counter-allegation will be undesirable. Appropriate course in such a case will be to decide whether there is such evidence, which, if taken in course of the proceeding in accordance with law and believed, would result in the proof of the charge of an offence or offences which allegedly are committed by some of the respondents and others and if that be so, whether proceedings to prosecute in accordance with law be launched. Proceeding as defined in the Code of Criminal Procedure, 1973 includes any investigation of a case as well as judicial proceeding which start in the shape of enquiry before the charge is taken for trial as well as the proceeding in trial. Incidentally, however, before any decision is taken whether- 1. The Court should direct for registration of a case for investigation by the Police and if so, whether the State Police would be competent to do so ; 2. On the facts and in the circumstances of the case, the Court should direct for investigation by some agency independent of the control of the State Government; 3. Instead of the direction to register tae case for investigation, the Court should direct for registration of a case for enquiry under Section 202 of the Code of Criminal Procedure by a Court of Magistrate of competent jurisdiction. It is transpired that the State Government has taken its stand in support of the Officers and others who are alleged to have offended the law by illegally picking up Bhikari Paswan from his house and keeping him in detention, at the Police Station where he was allegedly seen by the petitioner No. 1 and some other witnesses who are examined in course of the instant proceeding and throughout in course of the proceeding before this Court it has shown its intentions against the allegations by the petitioners. Law of the land has envisaged the rule of the State as the prosecutor. After the stand as above, has the State not gone against law that it has to strike against the offence and apprehend and arrest the offenders and bring them before the Court for prosecution in accordance with law? Law of the land has envisaged the rule of the State as the prosecutor. After the stand as above, has the State not gone against law that it has to strike against the offence and apprehend and arrest the offenders and bring them before the Court for prosecution in accordance with law? The learned Advocate General, has, however, contended that in a proceeding in the nature of Habeas Corpus the State has a duty to defend its Officers more so when such an allegation can be demonstrated as malicious and false. We are of the view, however, that the State's capacity to defend its servants is limited to their acts which are in discharge of their official duty and at the best to the extent they are said to have acted in colour of their office. When we indicated as above, learned Advocate General has sought for adjournment to bring before us such provision of law including case law and principles which would show that while in such proceeding and particularly on the facts and in the circumstances of the instant case, the State has not gone beyond the bounds of law. Put up, as prayed for, for orders on 17th February, 1998.' 13. Put up, as prayed for, for orders on 17th February, 1998.' 13. The State and the respondents have chosen, however, to strike at the above order and wanted modification of the same on grounds as stated in the petition filed by the laid parties that :- (1) The said order dated 13.2.98 contains incorrect interpretation of orders passed herein by the successor/predecessor Division Benches and to that extent, operates as a review or appeal of the orders of a Court of co-ordinate jurisdiction ; (2) The said order dated 13.2.98 is contrary to orders passed herein by the Hon'ble Supreme Court; (3) Though this order passed by the Predecessor Division Benches indicate that a trial on evidence as to question in issue, namely, "whether Bhikari Paswan alias Amritlal Paswan was at all arrested by the Police or taken into custody of the Police at about 12.20 hours in the night between the night of 30th and 31st October, 1993" was continuing and had not been concluded, the order dated 13.2.1998, contrary to the said earlier orders, indicates a presumption as to the said question ; (4) The said order dated 13.2.1998 in passing the question whether on the facts and circumstances of the instant case, "the State has not gone against the offence and apprehends and arrest the offenders" and also in expressing the opinion that "the State's capacity to defend its servants is limited to their acts which are in discharge of their official duty and at the best to the extent, they are saw to have acted in colour to their office", not only indicates a presumption, contrary to the earlier Division Bench orders and orders of the Supreme Court, as no such question was raised in course of the proceedings before either of the said Courts. 14. In course of the hearing learned Advocate General has developed the above contentions which need no more than a dismissive consideration by us. Review of an earlier order, if at all there is any review of the last order or any earlier order of the Court, is always permissible. True judicial discipline demands that order palled by a learned Single Judge should be reviewed by the Judge if he is available or by any other Single Judge if he is not available. Review of an earlier order, if at all there is any review of the last order or any earlier order of the Court, is always permissible. True judicial discipline demands that order palled by a learned Single Judge should be reviewed by the Judge if he is available or by any other Single Judge if he is not available. Order passed by a Division Beach should be reviewed by the same Division Bench if the Beach is available or by a larger Bench if the situation so demands. A larger Beach, decision should not/cannot be reviewed by a Beach/Judge in lesser number. In cases where review is asked for an application by either party the Court considers whether any case for review is made out and if it is found necessary to meet the ends of Justice and if it is not a final adjudication in the sense that it is a judgment in the teeth of Article 20 or the Constitution of India or Section 362 of the Code of Criminal Procedure review is made. In order to constitute judgment within the meaning of Section 362, there must be an investigation of the merits of the case in evidence and after hearing the arguments. Where the order is passed summarily in course' of proceeding without consideration of the entire evidence, such as, in the case of an order of discharge in a Criminal case it is not a judgment in the teeth of Section 362 of the Code of Criminal Procedure. Learned Advocate General, however, has shown State's objection to the observations in the aforementioned order:- "Instead of closing the case before this Court on such prima facie satisfaction which the Court desired, when the report of the C.B.I. Officer is brought on record.........................." in our view, on a gross misreading of the said observation of the Court. In the judicial discipline as we are we have noted with due deference the earlier order of the Court in course of the hearing of the matter and found a sincere effort of the Court to solve the mystery of the disappearance of Bhikari Paswan. In answer to the show cause when the very basis upon which it can be decided whether respondents are responsible for Bhikari Paswan's disappearance it was/is felt that evidence would be needed, the Court proceeded to do so. In answer to the show cause when the very basis upon which it can be decided whether respondents are responsible for Bhikari Paswan's disappearance it was/is felt that evidence would be needed, the Court proceeded to do so. After such evidence which the petitioners produced, respondents were given opportunity to adduce evidence, if any. They have led quite some evidence. Still the Court at one stage felt, investigation by C.B.I. was necessary. It is not difficult to read between the lines that respondents' resistance was such that the Court could not, but for some independent agency investigating into the matter, form necessary opinion and decide how Bhikari Paswan was taken away as alleged by the petitioners from his house, kept in confinement at a Police Outpost and assaulted variously. When the C.B.I. got the matter investigated and sent the report, respondents, have chosen to object and wanted to lead further evidence. Some more evidence, the proceedings reveal have been taken on behalf of the respondents. We, however, have felt persuaded that – for the reason of the disputed facts, until whereabouts of Bhikari Paswan were not known, it would be impractical to proceed with any further enquiry into the matter by this Court and thus we passed the above order saying instead of closing the case before this Court on such prima facie satisfaction ..... no party to a proceeding can dictate the procedure that be followed by the Court. If there is a known and prescribed procedure of law and adherence to such prescribed procedure of law is necessary to avoid any infringement of the principles of natural Justice and/or of any right of a party and/or to avoid prejudice, to the interest of any party, the Court would adhere to such established procedure. We have already indicated above that superior Courts decide to follow the procedure which they, in the interest of justice, think would be proper. No fault is found with the orders earlier made by the Court under which it has decided that it should afford opportunity to the parties to lead to file affidavit/evidence. In support of their respective allegations of fact. No defect is noticeable in the order of the Court that information by independent investigation be obtained for the purpose of knowing what happened to Bhikari Paswan. In support of their respective allegations of fact. No defect is noticeable in the order of the Court that information by independent investigation be obtained for the purpose of knowing what happened to Bhikari Paswan. We have felt however that this proceeding be not allowed to be bogged down in exploring the niceties of laws and evidence. Right to life and liberty of Bhikari Paswan allegedly abducted from his house and kept in detention at a Police Outpost cannot and should not be forgotten. If the law is such a stick which is used only for bitting the bush and is soulless robot, the Rule of law will be lifeless and administration of Justice will be illusory. Article 21 of the Constitution, it has been repeatedly pointed out by the Courts. If read literally is a colourless Article and would be satisfied the moment, it is established by the State that there is a law which provides a procedure which has been followed. For us it is not so because procedure established by law we have already indicated, means a procedure which is reasonable, fair and just. Can it be said to be just and fair procedure on the facts and in the circumstances of the instant case, that the Court keeps itself engaged in deciding the issue whether as alleged by the petitioners. Bhikari Paswan was forcibly taken away from his house by respondents Nos. 8 and 9 and others; that he was kept in confinement at a Police Outpost when the first petitioner saw him last and when the Court of the Magistrate was approached, petitioners were informed that Bhikari Paswan was not taken in custody in connection with any case and that he had not been produced before any Magistrate. Petitioners have moved this Court seeking the body of Bhikari Paswan. To the question where is he, their knowledge is limited to the facts as narrated by the second petitioner (wife) as to what happened in the house until the first petitioner joined her and by the first petitioner as to what happened thereafter sad what did he see at the Police Outpost and what did he learn in the Court and from Police Officers and others. Respondents, more particularly, respondents Nos. Respondents, more particularly, respondents Nos. 8 and 9 who are named by the petitioners to have entered the house of Bhikari Paswan and picked him up and assaulted him and others who kept him allegedly in confinement at the Police Outpost, are person who have to face the allegations. If the established procedure of law is to be followed they have to stand as accused of the offence of assaulting and abducting Bhikari Paswan as well as other ancillary charges. If the circumstance of last scene is taken to complete the chain of circumstances, even more serious charges may be seen and disclosed including the charge of culpable homicide, may be, amounting to murder. Should there be, however, any enquiry or proceeding which, if concluded would provide to the petitioners evidence to prove the charges or to the respondents Nos. 8 and 9 and others who ultimately be accused, evidence to defend themselves and establish that they are innocent. If the right which either party shall have within the prescribed/established procedure of law is going to be denied to either of them, it is better avoided. Cases in which arrest and custody is not denied but it is said that the person who had been taken in custody has been released or has since gone out of the custody as in Sebastian's case (supra) stand on a different footing altogether. If there is submissions to the custody or when body of a person is actually touched and is just taken in charge by any person be (the former) has to be given to the Police for lawful custody and any person who is taken in lawful custody by the Police, is required to be produced before the nearest Magistrate, as contemplated under Article 22(1) of the Constitution within twenty-four hours. When a person is taken into custody, and, production is not made as required under Article 22(1) of the Constitution, the enquiry by the Court in a proceeding in a writ in the nature of Habeas Corpus is quite meaningful and purposeful. When arrest is alleged and some evidence is shown and in return, arrest is not denied and the issue where custody was lawful or not is the proper issue, enquiry in a proceeding of this nature is likely to be fruitful. When arrest is alleged and some evidence is shown and in return, arrest is not denied and the issue where custody was lawful or not is the proper issue, enquiry in a proceeding of this nature is likely to be fruitful. However, in a case of this nature in which arrest is alleged but denied, if investigation into facts is taken up, the idea, as learned Advocate General has submitted, and, in our view, rightly, is to see the records only for the prima facie satisfaction as to truth or otherwise of the allegation and not for any adjudication as to the truth or otherwise, as is done in a case of a full-fledged trial. How fruitless, however, the effort of this Court in this behalf has been is demonstrated by the results uatil now achieved. 15. This Court at the first instance directed for enquiry and report by the Director General of Police. When report came from the Director General of Police, the Court noted that the cause shown would not be enough to exonerate the respondents of the responsibility and thus a show cause must issue for affidavit/evidence. When the Court has entered into the evidence all issues of fact have been hotly contested. As noticed by us above, a stage reached when the Court found that the issues were not going to be resolved merely by affidavit/evidence which was being brought in by the parties before it and thus it preferred an independent investigation by its elected agency, the C.B.I. The C.B.I. report has fallen in controversy as respects its evidentiary value. Method, the Court has evolved to take on the record of the instant proceedings the materials collected in course of investigation by the C.B.I. Officer has ended in a futile exercise. Suppose we proceed as demanded by the respondents with the cross-examination of the Officer who has investigated the matter on behalf of the C.B.I. and take further evidence that the respondents lead, where do we lead to, C.B.I. Officer has given the report of his findings on the question whether Bhikari Paswan was taken in custody as alleged. Statements of witnesses recorded by him or any other material collected by him shall not be taken in evidence. Investigation by him is not one for the purposes of the report under Section 173(2) of the Code of Criminal Procedure, 1973. Statements of witnesses recorded by him or any other material collected by him shall not be taken in evidence. Investigation by him is not one for the purposes of the report under Section 173(2) of the Code of Criminal Procedure, 1973. He is not a person who is appointed to investigate a case for which order under Section 202 of the Cr. P.C. has been made. Investigation by him and report are intended for the benefit of this Court for a prima facie opinion whether petitioners have made correct allegations. This, however, will not lead to the discovery of the body of Bhikari Paswan. All that has been done may be legally permissible. But it has no bearing on the search and production of the body of Bhikari Paswan. A proceeding only for deciding the issue whether he was abducted or not before this Court, in our view, shall be misconceived, Abduction leading to an offence is a matter in respect of which, if at all any enquiry has to be held, it has to be as contemplated under Section 202 of the Code of Criminal Procedure, 1973 and if materials so far disclose commission of a cognizable offence, a case has to be registered under Section 156 of the Code. One can, on the facts of this case, be persuaded to think that persons who are identified as culprits by the petitioners, are sheltered by those who are expected to book them for their respective offences State, no one can doubt and the Police in the State are duty bound to arrest, investigate and prosecute the offenders, who so ever they are, high or low, rich or poor, whether officials, civilians, army-men, Police-men or anybody. Petitioners have been complaining that the course of Justice has almost deflected and the real issue has been ignored by the administrative hierarchy in the Police of the state. Since Police Officers are blamed and sought to be charged for serious offences no one was ready to entertain their complaint. In this Court, according to the petitioners, the state as well as Senior Police Officers have chosen to defend the alleged culprits. They have, for the said reason have been asking for handing over the case, according to them, the offence being cognizable, for Investigation to C.B.I. Their request is not without precedent. In this Court, according to the petitioners, the state as well as Senior Police Officers have chosen to defend the alleged culprits. They have, for the said reason have been asking for handing over the case, according to them, the offence being cognizable, for Investigation to C.B.I. Their request is not without precedent. Courts in such cases have ordered for investigation by the C.B.I. We have, however, given our anxious thoughts to the matter whether in this case we should ask C.B.I. to register a case and investigate and proceed to submit report under Section 173(2) Cr. P.C. Our attention is drawn, however, on behalf of the respondents to Section 6 of the Delhi Special Police Establishment Act and it is urged that the consent of the State Government is necessary before any investigation is contemplated by the C.B.I. which is a Police establishment under the said Act. We are, aware, however, that notwithstanding the requirements of Section 6, Courts in similar situation have ordered for investigation even though the consent as required under Section 6 of the Act is not given by the State Government. We, however, have also the information that the question as to the consent of the Government of the state to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a state cannot be easily ignored and unless there are such compelling circumstances that without recourse to investigation by the Delhi Special Police Establishment the real offender may not be brought to book, before the jurisdiction of the Delhi Special Police Establishment is extended, the State Government's consent be insisted upon. 16. In the instant case there is one more reason for us to be hesitant to order for investigation by the C.B.I. Before, we, however, state the said reason; we explain to ourselves why we do not propose to proceed further with the trial on evidence of the matter before us. Trial on evidence has proceeded no doubt in the instant case quite substantially. Nothing, however, is on the record to show that at any stage there is any analysis of the evidence that has been adduced on behalf of the parties. Trial on evidence has proceeded no doubt in the instant case quite substantially. Nothing, however, is on the record to show that at any stage there is any analysis of the evidence that has been adduced on behalf of the parties. We have, however, good reason to hold that any analysis of evidence by this Court, shall be prejudicial to the interest of one or the other party in the event of a regular proceeding for a charge in a Court. If after analysing the evidence which is adduced by the parties we come to the conclusion that Bhikari Paswan was abducted as alleged by the petitioners and was kept in detention at Police Outpost where he was severely beaten and was last seen by the petitioner No. 1 and some other persons, we may not leave any scope for their defence if they are charger and put on trial. We shall be pronouncing without trial that they are guilty. If on the other hand, we come to the conclusion that Bhikari Paswan was not abducted as alleged by them (petitioners) we almost write a judgment of acquittal in favour of respondents nos. 8 and 9 and others or at least of discharge as contemplated in respect of criminal charges which are brought against the alleged offenders in the Court. If we do such a thing after taking into account the evidence which has been laid on behalf of the respondents, we deny to the petitioners a right of bringing a charge in the Court against any offender on the basis of such evidence which they might adduce. A Magistrate is empowered to take cognizance of any offence-(1) upon receiving a complaint of facts which constitute such offence, (2) upon Police report of such facts, and (3) upon information received from any person other than a Police Officer of upon his own knowledge that such offence has been committed by Section 190 of the Code of Criminal Procedure. The Police report is filed as contemplated under Sections 169 and 170 of the Code of Criminal Procedure and in the prescribed from as under Section 173(2) of the Code. There is no obligation of the Magistrate to accept the report if he dies not agree with the opinion formed by the Police. The Police report is filed as contemplated under Sections 169 and 170 of the Code of Criminal Procedure and in the prescribed from as under Section 173(2) of the Code. There is no obligation of the Magistrate to accept the report if he dies not agree with the opinion formed by the Police. If the Magistrate still after receiving the report suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the Police to take cognizance under Section 190(1)(c) of the Code. The other alternative available to the Magistrate is to direct for further investigation and after receiving the report of further investigation to proceed to decide whether cognizance of the offence be taken or not. The law in this connection was first stated by the Supreme Court in the case of (6) Abhinandan Jha's case, AIR 1968 SC 117 with reference to the Code of 1908 and reiterated in (7) Bhagwan Singh's case, AIR 1985 SC 1285 with reference to the new Code. These aspects were discussed by one of us as a Judge of the Madras High Court in the case of (8) Padmini v. State of T.N., 1993 Criminal Law Journal 1964 Complaint is defined under Section 2(d) of the Code of Criminal Procedure to mean any allegation made orally or in writing to a Magistrate with a view to his taking action under, the Code that some person whether known or unknown has committed offence but does not include a Police report. Where a complaint is filed by a person interested in the prosecution, it is open to the Magistrate to direct the Police to register a case for investigation or to proceed as envisaged under Section 200 of the Code to examine the complainant on solemn affirmation, and to summon the accused for trial or to postpone process and proceed in accordance with the procedure under Section 202 Cr. P.C. 18. It is well settled that under Section 190 of the Code of Criminal Procedure the Magistrate takes cognizance of the offence whether on the Police report or otherwise. If after taking cognizance Magistrate has no doubts as to who the offenders are he issues the process for trial. He holds, however, enquiry under Section 202 or asks for investigation if offenders are to be found out. In such enquiry or investigation, accused has not been given any right to participate. If after taking cognizance Magistrate has no doubts as to who the offenders are he issues the process for trial. He holds, however, enquiry under Section 202 or asks for investigation if offenders are to be found out. In such enquiry or investigation, accused has not been given any right to participate. He can be present but cannot formally defend himself. His right to defend is recognized where he is summoned or brought before the Court to receive the charge and to admit or deny the allegations and if he denies the charge. He only in trial can cross-examine the prosecution witness and may adduce evidence in defence. When the facts of the report of the C.B.I. Officer is so determined in the instant proceedings it can, at the best, be corroborative evidence or evidence for contradiction. However, the C.B.I. Officer is not the investigating Officer and materials collected by him do not come under Section 162 of the Code. How far such materials shall be evidence as contemplated under Section 145 of the Evidence Act, will have to be tested. Thus analyzing we find ourselves reluctant to enter into the fact finding exercise and pronouncements which either side may find denying to it some legal right. C.B.I. which has investigated the case as ordered by the Court if asked to investigate again after registering the case may, not inspire confidence and respondents nos. 8 and 9 and other persons who know about the investigation already done by the C.B.I. may not treat them as impartial agent. Course that appears to us proper is to direct for registration of a complaint case by a competent Court of Judicial Magistrate and as required by law to proceed to hold enquiry under Section 202 of the Code. Yet in some part, as fact finding investigation is necessary and Section 202 Cr. P.C. Permits such investigation and the Magistrate can order for such investigation, we think, thus to supplement the enquiry such investigation too should be ordered. Sometimes Courts find themselves unknowingly entering into such alleys which do not reach the destination and instead divert the attention. Such a thing has happened in the instant case. P.C. Permits such investigation and the Magistrate can order for such investigation, we think, thus to supplement the enquiry such investigation too should be ordered. Sometimes Courts find themselves unknowingly entering into such alleys which do not reach the destination and instead divert the attention. Such a thing has happened in the instant case. Worried father and a more worried wife and, we have reasons without entering into conjecture to accept, similarly placed children have knowing the doors of almost all executive-heads, and finally moved the highest Court of the State for locating and production of the body of Bhikari Paswan. Bhikari Paswan is still traceless. Although the instant proceeding has remained pending for a long period of time, it is still not known whether Bhikari is deed or alive. Some evidence is already taken and some further evidence may further be taken. Ultimately, some finding may be recorded by the Court. That however, be of no comfort for the petitioners. The State and its Officers and agencies who have the responsibility of looking into the grievances of the people have done nothing to find out the whereabouts of Bhikari paswan, who was allegedly abducted, and detained illegally. It is indeed a denial of Justice to the petitioners by the Superior Police Officers who washed their hands off by making a telephone call to Bhadreswar Police Station and when told that no one of the name of Bhikari Paswan was detained in connection with any case at the said Police Station, telling the first petitioner that Bhikari was not arrested or taken to the Police Outpost/Police Station. Nothing is produced before us from which we can find that any sincere effort was made by any person in the Police hierarchy of the State to at least find out what happened to Bhikari Paswan. If the respondents nos. 8 and 9 and others as alleged did not abduct him, if he was not kept in illegal confinement as alleged or assaulted by them, has be kept himself in hiding somewhere? Has he eloped and left his wife and children at home? Has be set up his father and the wife to bring false allegations against the respondents? Records do not show at all that the first petitioner of the second petitioner have any motive to make false accusations. Has he eloped and left his wife and children at home? Has be set up his father and the wife to bring false allegations against the respondents? Records do not show at all that the first petitioner of the second petitioner have any motive to make false accusations. Protracted proceedings in this Court are of no benefit to the victims who are the petitioners and the children of Bhikari Paswan. Their sufferings shall not be met by nice and delicate exposition of the principals of law. A petition before this Court on such facts as above, in our view, must be examined-(1) for the legal issues on the one hand, and (2) for protection of the right of the victims on the other hand. Heaven will not fall if legal issues are deferred for proceedings in enquiry and investigation as indicated above and are taken in the Court after formalities as to charge etc. are completed and something is done to see that the petitioners get back Bihkari Paswan in their home or they are informed that he is no more and if he is otherwise hiding himself and he has decided not to stay with the petitioners, they are so told by the competent authorities. It is not disputed before us that the first petitioner was more than 70 years in the year 1990 when the instant petition was filed. The second petitioner was the mother of two children and was having one in her womb when Bhikari Paswan was allegedly abducted. Bhikari Paswan was their bread-winner. If the offence, as alleged, is proved and respondents nos. 8 and 9 are found to be guilty for the offence which for and person will be serious act of moral turpitude and an offence against the society, they shall be punished for human rights violations, under the Protection of Human Rights Act, 1993. In such a case dependants of Bhikari deserve fullest attention of the State and the Court. They (the State and the Court) cannot keep a way, they must bear and be sensitive to the cries of the victims. Respondents-State and its Officers representing the administration, have, however, but themselves in almost a confused state of affairs in the proceeding before us. They have lost altogether the independent character of the person who can stand and say, come what may, I stand to uphold the human rights. Respondents-State and its Officers representing the administration, have, however, but themselves in almost a confused state of affairs in the proceeding before us. They have lost altogether the independent character of the person who can stand and say, come what may, I stand to uphold the human rights. By joining the defence of the persons who are alleged to have committed offence against human rights, they have compromised the interest of the society at large with the interest of the individuals who are accused of committing offences. Mr. Advocate General, however, in course of bearing though after initial resistance has accepted that in case there are such lingering doubts in the minds of the petitioners, the State would agree if investigation as stated above is required, to the appointment of any person including a Police Officer in whom petitioners have confidence and in case regular Public Prosecutor is not the likely choice of the petitioners to provide to the petitioners (complainant) in the event of any proceeding in the Court either under Section 202 of the Code of Criminal Procedure or thereafter in any enquiry or trial, Counsel of their choice as the Prosecutor. 19. To the proposals as above, the learned Counsel for the petitioners have responded expressing that the petitioners would not have confidence in any of the Officers of the State be it investigation under Section 156 of the Code of Criminal Procedure or under Section 202 Cr. P.C. Learned Advocate General has, however, given names of four very Senior Officers of the rank of Additional Director General of Police for making the choice. Learned Counsel for the petitioners, however, has not agreed to accept any one of them as the Officer who can be asked to investigate. In course of further bearing, however, learned Counsel for the petitioners has named Mr. Nazrul Islam, an Officer in the rank of Deputy Commissioner of Police, Calcutta, and stated in case investigation is handed over to any Officer of the State, his preference would be Mr. Nazrul Islam. 20. In course of further bearing, however, learned Counsel for the petitioners has named Mr. Nazrul Islam, an Officer in the rank of Deputy Commissioner of Police, Calcutta, and stated in case investigation is handed over to any Officer of the State, his preference would be Mr. Nazrul Islam. 20. In the case of Padmini v. State of Tamil Nadu, 1993 Criminal Law Journal 1964, after investigation was held by the Officer belonging to the Criminal investigation Department if the State and the report was not filly in favour of the petitioners serious objections were raised and it was urged that the case be referred to C.B.I. for registration and investigation. In the said judgment of the Madras Court by a beach of which one of us was a member it is clarified that any lacuna in the investigation cannot be a ground for such want of confidence and it shall always be open to the complainant to bring in evidence that he proposes to adduce in the enquiry before the Court even after the report of the Police is brought on the record if it (the report) does not satisfactorily establish the changes or stand as proof of the charge, which are leveled against the accused. How in such a situation the complainant can appear at the time of taking cognizance and shall be heard is also explained in the said judgment. Where as the person who is accused of the offence his no right of hearing at the time of taking cognizance, the complainant has such right. This aspect of the law is explained by the Supreme Court in Bhagwan Singh (supra) and in some detail in Padmini's case (supra). We see no good reason for any apprehension of prejudice to the petitioners if investigation is done by the Officer of the State. 21. Before we come to the direction that we propose to issue in the instant case we are constrained to reiterate that the response of the Officers of the State Government has not been proper and adequate to the information that Bhikari Paswan was missing. We do not see any reason why when such information is received and the State Government has well oiled machinery, no steps were taken to find him out. None of the complications could have arisen had proper care would have been taken for searching out Bhikari. We do not see any reason why when such information is received and the State Government has well oiled machinery, no steps were taken to find him out. None of the complications could have arisen had proper care would have been taken for searching out Bhikari. None of the issues and directions we propose would have been caused or created. Even though it is lace we think a vigorous search for Bhikari has to be launched. The respondent-State shall redeem substantially if it shall launch such a search for discover, of the body of Bhikari, whether alive or dead and produce him before the Court of the Magistrate to whom we propose to send the matter for enquiry and investigation. 22. To conclude, we see no useful purpose in continuing the enquiry before this Court which has almost become adversarial trial of an issue of fact. The proper course shall be that a case is registered for enquiry into the allegations which appear to constitute offences as well as into the question as to what has happened to Bhikari Paswan and in case sufficient evidence is available to proceed strictly in accordance with law, to deal with the alleged offenders. The respondent-State Government should have been well advised to avoid any defence of the persons who are alleged to have committed offences even if they were/are its Officers as its primary role is to protect the fundamental rights of the citizens and other persons living in the State and not to defend any person who is alleged to have committed an offence. The above, however, does not mean that in any case the State shall not stand for its officers, for, if such be the law, the Officer shall be exposed to any and every type of cantankerous litigations and shall not be allowed to function freely with dignity and responsibility. The balance in this behalf can be seen in the rule that to the extent the Officers act within the bounds of the laws to perform their duties, or in colour of their office otherwise, since the State holds the responsibility ultimately to sanction prosecution in proceedings other than regular proceedings is accordance with the Code of Criminal Procedure their defence by the State may not be unwarranted. Once, however, it is disclosed that such Officers have acted outside of the limitations of their official work and duty and no colour of office will provide any cover to them for the acts which they have allegedly committed, it is the bounded duty of the State to dissociate itself from them so that they are prosecuted strictly in accordance with the law from the stage of registration of a case for investigation or registration of a complaint in accordance with law in the Court of a Magistrate of competent jurisdiction. If such a balance is maintained, the State shall successfully avoid attacks on the ground that it is not impartial or is shielding the Officers who are offenders in the eye of law. There shall be no occasions them for any person to say that it does not have faith in the State machinery. It shall, in our view, help on the one hand the State to build up its image and on the other, the public at large to feel assured and relaxed that the State in all events shall protect their interests. 13. On the facts and in the circumstances of the instant case, we dispose of the instant proceedings by the following directions:- I. The petitions and all materials on the record which are filed on behalf of the petitioners shall be forwarded to the Court of the Chief Judicial Magistrate, Alipore, 24-Parganas (South) who shall register a complaint under Section 200 of the Code of Criminal Procedure, on the basis of the allegations in the petitions before us, and shall examine the petitioners on solemn affirmation treating one of them as the complainant and the other as a witness and take statement of other witnesses of the petitioners before this Court except in cross-examination as evidence on behalf of the complainant and take in evidence all other materials that the petitioners may produce before him in accordance with law in course of the enquiry under Section 202 of the Code. Since in course of investigation as ordered by this Court and since pursuant to the directions of this Court, Shri Sharad Kumar, C.B.I. Officer has conducted investigation and reportedly seized some original documents which are still lying with the C.B.I. and/or copies and originals are filed before this Court, all such materials shall be forwarded to the Magistrate and the Magistrate shall take them into evidence in accordance with law for the purposes of the said enquiry. We do see, however, that evidence so far may sot give full information as to what bas happened to Bhikari Paswan and further investigation may be required which since we have ordered for enquiry under Section 202 of the Code of Criminal Procedure, should be an investigation as envisaged therein, the Magistrate, after receiving the records and after bearing the learned Advocates for the petitioners (Prosecutor) pass orders and appoint Shri Nazral Islam, I.P.S, Deputy Commissioner of Police, Detective Department, Calcutta Police, to investigations directed and submit report as quickly as possible in respect of all such matters which are entrusted to him (by the Magistrate). II. The petitioners shall inform the District Magistrate, 24-Parganas (South) about their choice of the Advocate as the Prosecutor. On receipt of such demand from the petitioners, the District Magistrate, 24-Parganas (South) shall forthwith pass necessary orders appointing the Advocate to prosecute and appear on behalf of the complainant in the enquiry and subsequent proceedings as Prosecutor. III. After examining the records as above and such further materials/evidence that shall be brought before the Magistrate, he shall proceed to consider whether the accused be summoned/warrant be issued for their appearance to take such changes that are leveled against them for being admitted or denied as the case may be and thereafter proceed strictly in accordance with law. And IV. Respondent No.2, Chief Secretary, Government of West Bengal is directed to issue orders forthwith for a vigorous search of Bhikari Paswan and in case an, information is available about him, whether he is dead or alive, whether he can be produced or any evidence can be produced of his bring alive and if be is dead, in respect of the cause of his death and as to who caused the death, provide the same to the Magistrate in course of the enquiry. 24. We appreciate, however, the gesture of the employers of Bhikari Paswan. 24. We appreciate, however, the gesture of the employers of Bhikari Paswan. They (Victoria Jute Mills) are not impleaded as respondent. They, however, have responded to the call of the Court when learned Advocate General has conveyed the Court's desire to them to provide to the second petitioner (Smt. Lalti Devi) compassionate appointment so that she can find some emoluments for the subsistence of the family. Mr. Sunder Lal Dugar, Chairman and Managing Director of R.D.B. Textiles Limited licensee of Victoria Jute Mill and Mr. B.C. Bardia, General Manager of the Victoria Jute Mill who are present in Court, represented by Mr. Dipayan Chowdhury, learned Advocate representing Victoria Jute Mills have assured that within a week of the application by Smt. Lalti Devi, they would give her a suitable appointment and shall ensure that she does not suffer any retrenchment as excess workforce until the proceeding as directed by us are concluded in accordance with law. They have also stated that provident fund dues of Bhikari Paswan shall be paid to Smt. Lalti Devi on the condition that the, shall have no liability of any claim by any other persons and that if any such claim would be raised the same would be a charge against the provident fund amount to Smt. Lalti Devi. In view of the above, let a direction issue to the Regional Provident Fund Commissioner, West Bengal to act accordingly and pass necessary orders. 25. Before we part with the judgment, we want to make it clear that as in the case of any Magistrate taking cognizance, any matter can be transferred to another Magistrate for enquiry under Section 192 of the Code of Criminal Procedure, in the case of the petitioners, the Chief Judicial Magistrate, Alipore, 24-Parganas (South) shall be treated as the Court of competent jurisdiction. 26. We have taken the sovereign duty of the Court, rather belatedly but sincerely to provide some source of livelihood to the second petitioner. 26. We have taken the sovereign duty of the Court, rather belatedly but sincerely to provide some source of livelihood to the second petitioner. The appointment that Victoria Jute Mills shall be giving to her however, shall not be deemed to close any claim of compensation to her which shall arise in the event of any finding as to the extent of the loss that the family has suffered, that is, if it is found that Bhikari Paswan has actually been assaulted and there are circumstances of proof that be has been done away with by any person who is a servant or agent of the Government of the State, she shall be entitled to claim compensation in accordance with law. 27. We hope and trust that after all that we have noted with concern in respect of the delay in the disposal of the instant proceedings, the Magistrate shall proceed expeditiously and he shall not give any opportunity to either, of the parties to any that delay has occurred because the Magistrate has been lax, in other words, the Magistrate shall see that proceedings are concluded as quickly as possible. The Magistrate, in this behalf, is authorized to issue summons and/or directions to any authority or persons wherever any relevant material is available. 28. With the order and the directions as above, the instant petition is disposed of. It is made clear, however, that any observations or remarks which appear to be adverse to either party in the instant judgment is made only for the purpose of the instant judgment and shall not be used against either party in any subsequent proceedings and shall not inhibit the Magistrate and any other authority to proceed in accordance with law. 29. Let this order be communicated to the Chief Judicial Magistrate, Alipore, 24-Parganas (South), to Chief Secretary, Government of West Bengal. Writers Buildings (respondent no. 2), to Shri Nazrul Islam, I.P.S, Deputy Commissioner of Police, Detective Department, Calcutta and the District Magistrate, 24-Parganas (South) forthwith. On proper compliance by the parties, let xerox certified copy of the judgment be supplied to the learned Advocates for the parties on a very urgent basis.