JUDGMENT Ruma Pal, J. 1. Budhan Sabar was a tribal. The writ petitioner, as its name suggests, is interested in the welfare of tribals such as Budhan. A letter dated 22.2.98 was written by the writ petitioner to the Chief Justice of this Court alleging the torture by the police and resultant death in jail custody of Budhan Sabar. The letter was directed to be treated as a writ petition. Mr. P.K. Roy, an Advocate of this Court was requested to represent the complainant. He has done so very ably and the Court, at the very outset, records its appreciation for the assistance rendered by Mr. Roy to Court. 2. The complaint as made in the letter is set out verbatim: "2. The events are as narrated: (a) On 10.02.98 at 4 p.m., Budhan Sabar and his wife Shyamali Sabar were going to visit a relative in Barrabazar P.S. area on a bicycle. (b) As they were buying 'paan', Ashok Roy, O.C. Barrabazar picked Budhan up on a motor cycle and took him to Barrabazar Police Station. (c) Barrabazar P.S. recorded the date of his arrest as 11.02.98, though his wife's appeal to the same P.S. mentioned the date as 10.02.98. (d) Budhan was brutally beaten, denied food and water till 12.02.98 morning. (e) On 13.02.98 early morning the S.P.; the D.S.P. (Headquarters); the O.C., Kenda; the O.C. of Barrabazar; searched Akarbaid village for supposedly stolen goods. All the time Budhan was in a Jeep. The villagers saw and talked to him. 3.(a) On 12.02.98 Barrabazar O.C. produced Budhan at Purulia Court and took him back for further enquiries. (b) On 16.02.98 Barrabazar P.S. handed over Budhan over to Court and he was sent to jail custody. (c) On 12.02.98 Sreedhar Sabar of Fatehpur village under Barrabazar P.S. was summarily arrested at midnight and on 13.02.98 brought him to Barrabazar P.S. He found Budhan groaning and saying he was being beaten non-stop. (d) On 13.02.98 Sreedhar was produced at Purulia Court at 5 p.m. and he was sent to jail custody. 4.(a) On 16.02.98 Monday evening Sreedhar saw Budhan being dragged to jail. Budhan told Sreedhar that from 13.02.98-16.02.98 he has been further tortured. In fact, he could neither walk, nor talk properly. Budhan was put in a cell with other prisoners. (b) On 17.02.98, after roll-call Sreedhar was asked to distribute tiffin, and go to gate. 4.(a) On 16.02.98 Monday evening Sreedhar saw Budhan being dragged to jail. Budhan told Sreedhar that from 13.02.98-16.02.98 he has been further tortured. In fact, he could neither walk, nor talk properly. Budhan was put in a cell with other prisoners. (b) On 17.02.98, after roll-call Sreedhar was asked to distribute tiffin, and go to gate. Budhan was asked to sweep the yard. Suddenly Sreedhar heard Budhan screaming, 'Save me'. Sreedhar ran and found Budhan lying on the ground. A jamadar (jail police rank), with 3 V' marks on his uniform was beating Budhan with a stick. The jail police did not allow other prisoners to help Budhan. (c) Then 3/4 U.T. prisoners dragged Budhan and put him on the floor of degree cell No.2 of No.12 Ward. Sreedhar went to serve him milk but found him lying still. The jail police sent him and other inmates in the cell and locked it up. Budhan, immobile still, lay in a solitary lock-up cell. (d) Budhan did not come for midday meal. (e) In the evening it was said that Budhan hanged himself with his 'gamchha' or country-towel. (f) According to Budhan's wife, he did not have a gamchha with him on 10.02.98. According to Sreedhar Budhan did not have one either on 10.02.98 at Barrabazar P.S., or 16th evening at Purulia Jail." 3. On the basis of this allegation the petitioner has made the following prayers: "(a) May the Honourable High Court order for a second medical opinion to identify and ascertain from external and internal wounds the direct or indirect causes of death of Budhan Sabar; (b) Demand, from Purulia Police authorities an unedited video tape of the postmortem done on Budhan Sabar; (c) An impartial inquiry into Budhan's death, as, Asoke Roy, O.C. of Barrabazar P.S. from 1992 has been killing Sabars including a woman, and torturing them framing them in false cases just because Kheria Sabars are a denotified primitive sub-tribe; (d) Proper and examplary punishment of Barrabazar P.S. O.C. Asoke Roy, and demand explanation (by High Court) from S.P. Purulia for such malfunction of district police; Your honour, your order for exhumation and second medical opinion is urgently necessary, as time is of value. Budhan was found dead on 17.2.98." 4. The matter was taken up by this Court on 23rd February, 1998 after notice to the State which was represented by the Government Pleader. Budhan was found dead on 17.2.98." 4. The matter was taken up by this Court on 23rd February, 1998 after notice to the State which was represented by the Government Pleader. According to the State, Budhan had committed suicide on 17.2.98 by hanging himself in his cell. It was said that an inquest was held as also a post mortem. It was said that after the post mortem, Budhan's body had been buried at Budhan's village under the supervision of the police. In order was accordingly passed directing exhumation of Budhan's body and for a second medical examination by the Chief Medical Officer, Purulia. The police were also directed to produce the post mortem reports and the unedited video tape said to have been made of the postmortem conducted on Budhan after his death and prior to the burial of his body (referred to as Tape A). 5. The exhumation was done. It was found that the villagers apprehending that the police would destroy the body before the Court could enquire into the matter, had disinterred the body and reburied it in Budhan's mud hut. The body of Budhan was subjected to a second postmortem. The entire procedure was video taped (referred to as Tape B). A second postmortem report was prepared. 6. Pursuant to an order dated 11th March, 1998 the two postmortem reports as well as the video tapes were sent to the Central Forensic Science Laboratory (CFSL) for a report. The Jail Superintendent, the S.D.O. Purulia and the Superintendent of Police, Purulia were directed to produce all relevant records relating to the confinement and subsequent death of Budhan. 7. By order dated 23rd March, 1998 an Expert Medical Committee of Dr. R.N. Bose, Professor and Head of the Department of Forensic Medicine, of the Nil Ratan Sarkar Medical College, Dr. A.K. Gupta, Professor and Head of the Department of Forensic Medicine, Calcutta Medical College, Dr. Indrajit Roy, Reader in Forensic Medicine, National Medical College and Dr. M.S. Rao, Director, Central Forensic Science Laboratory, was appointed to scrutinise whether the post mortem was conducted properly and whether there could be said to be any evidence which would support the case of the jail authorities that Budhan had died by hanging himself. 8. Indrajit Roy, Reader in Forensic Medicine, National Medical College and Dr. M.S. Rao, Director, Central Forensic Science Laboratory, was appointed to scrutinise whether the post mortem was conducted properly and whether there could be said to be any evidence which would support the case of the jail authorities that Budhan had died by hanging himself. 8. In the meanwhile the viscera had been sent to the Forensic Science Laboratory, Government of West Bengal (FSL) for examination at the instance of the Superintendent of Sadar Hospital, Purulia. On 27th February, 1998 the Court directed the report to be placed before it by the FSL. FSL reported on 17.3.98 that there was no evidence of poisoning. Nothing was said as to whether the viscera supported the case of hanging. By an order dated 23rd March, 1998 the Central Forensic Science Laboratory was directed to re-examine the viscera and ascertain whether there was any evidence to negate the report of the jail authorities. The Forensic Science Laboratory, West Bengal did not handover the viscera to the CFSL for such subsequent examination despite an order of this Court dated 1st April, 1998. 9. The CFSL had also been directed by the order dated 23rd March, 1998 to submit a report to the Court after investigating and inspecting the place of occurrence and the wearing apparel of the deceased and as to whether there was any evidence which would negate the report of the jail authorities that Budhan had died by hanging himself. 10. By an order dated 11th May, 1998 the Chief Secretary, West Bengal, Home Secretary, West Bengal, I.G. (Prisons), District Magistrate, Purulia, S.D.O. (East), Purulia, the Superintendent of Police, Purulia, Officer in Charge, Barrabazar Police Station, Purulia, the jail doctor of Purulia were formally added as party respondents. It was stated by the Government Pleader that he represented all the said respondents. The respondents were given liberty to take copies of the reports and to inspect the records which formed part of the proceedings. A copy of the application dated 22nd February, 1998 initiating the proceeding was also made available to them. Liberty was granted to each of the respondents to file affidavits. The respondents were given liberty to take copies of the reports and to inspect the records which formed part of the proceedings. A copy of the application dated 22nd February, 1998 initiating the proceeding was also made available to them. Liberty was granted to each of the respondents to file affidavits. However, being prima facie satisfied on the basis of the report submitted to the Court by the High Power Medical Committee as well as CFSL that Budhan had not committed suicide but otherwise met his death in jail custody this Court directed the State to pay ad interim relief of Rs. 15,000/- to the widow of Budhan by 15th May, 1998. The payment has been made. 11. The police as well as the jail authorities produced original registers containing G.D. entries, copies of the case diaries, Gate Entry Register, the minute book of the medical officers of the jail and the jail administration register. It was said that there was no diet register maintained by the jail authorities. The original records of the SDJM, Purulia in connection with the case in respect of which Budhan had been arrested by the police was also directed to be produced and parties were also given liberty to inspect the records produced. 12. On 24th June, 1998 submissions were made by the Counsel appearing on behalf of the petitioner as well as by the respondents. 13. The respective stands on the factual aspect of the matter can be conveniently considered in three parts: (I) the arrest and the alleged torture of Budhan while in the custody of Barrabazar Police Station; (II) the period during which Budhan was in the jail custody of the jail authorities and his death in such custody; and (III) action subsequent to the death of Budhan culminating in the first postmortem report. 14. Re. I: The arrest and detention of Budhan in Police Custody. The case of the petitioner as well as Budhan's wife is that Budhan had been arrested by Ashoke Roy, the Officer-in-charge of Barrabazar Police Station, Purulia on 10th February, 1998 at 4 p.m. This has been denied by Ashoke Roy. According to him Budhan was arrested on 11.2.98. The General Diary Book (referred to as GD) which was produced by the Officer-in-charge show that Budhan's signature was not taken at the time of his arrest. According to him Budhan was arrested on 11.2.98. The General Diary Book (referred to as GD) which was produced by the Officer-in-charge show that Budhan's signature was not taken at the time of his arrest. According to the police, Budhan refused to put his signature on the arrest memo. 15. It is unbelievable that Budhan who was according to the records, 5 feet tall weighing 40 kg. and who has been described even in the inquest report as weakly built would have had the courage to refuse to put a thumb impression on the memo of arrest. No copy of the arrest memo was made over to him nor was any relative or friend of Budhan informed of such arrest, nor was he told that he could have someone informed of his arrest. 16. As far as the GD Book is concerned, there is an inexplicable overwriting in the number of the entries from the afternoon of 11.2.98 which was originally numbered as 218. The original number from 11th February, 1998 onwards serially upto 498 at 4 O'clock on 21st February, 1998 has apparently been overwritten. It is only from the entry No.561 on 21st February, 1998 that the correct numbers have been put. In other words the 'mistake' was discovered on 21.2.98. No explanation has been given for this overwriting which covers only the crucial period pertaining to this case. The document is therefore prima facie suspect. 17. The GD entry recording the arrest of Budhan on 11.2.98 reads as follows: "By this time A.S., Ajoy Sen also returned to P.S. from village Gosaidi after making enquiry with deposition of ........ (illegible) ........ P.S. order of D.M. Purulia and reported that Hem Mahato had gone to Purulia & deposit his gun in a licensed gun shop. He also brought under arrest one Budhan Sabar S/o Shadev of Akarbaid P.S. Kenda also was wanted (illegible) Barrabazar P.S. Case No. 37/97 dt. 15.9.91 under section 395 IPC is arrested the said person as per my requisition from Bamundiha village. During arrest A.S.I. Ajay Sen prepared memo of arrest in presence of witness Himangshu Sekhar Chatterjee and Haradhan Dutta of Bamundiha and asked the accused to put his signature or thumb impression in the memo of arrest but the accused refused to sign. I examined the accused Budhan Sabar whether any ill treatment by A.S.I. during arrest but accused replied no." 18. I examined the accused Budhan Sabar whether any ill treatment by A.S.I. during arrest but accused replied no." 18. Significantly in connection with other arrests such a meticulous statement of the- preparation of the memo of arrest has not been made. 19. According to Ashoke Roy when Budhan was taken into custody the following action was taken as recorded in the G.D. Book: "I interrogated accused Budhan Sabar thoroughly when he voluntarily disclosed that he alone with Jagan Sabar, Kalipada Sabar, Paru Kirtan Sabar and others of one Akarbaid and neighbouring villages had committed dacoity at Balaji Bus about five months ago and sold the stolen articles and Kalipada Pramanick, Kartick Pramanick and others of Akarbaid. I recorded his statements u/s. 161 Cr.P.C. with a view to work out his confession after taking him in the police remand from the Ld. Court of S.D.J.M. Purulia for the interest of investigation. Physically checked the accused but found no marks of injury on his person, put him into thana lock up observing hajat rules. Security alerted. Took charge of P.S. P.S. with all Govt. properties." 20. In D.K. Basu vs. State of West Bengal, 1997 (1) SCC 416 the Supreme Court has laid down the requirements to be followed in all cases of arrest. Eleven such requirements have been laid down. The Supreme Court has also said failure to comply with the requirements shall "apart from renderings the official concerned liable for departmental action, also render him liable to be punished for contempt of Court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter." 21. Amongst the requirements at least the following have been violated by Ashoke Roy in arresting and detaining Budhan namely: "(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest." "(5) The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is." [See also: Joginder Kumar vs. State of U.P., AIR 1994 SC 1349 ] The GD Entry No. 272 records none of this. 22. According to the GD Entry the bringing of Budhan by the ASI, his subsequent interrogation, his confession and the recording of the confession, and his physical check up and look up, all took place within an hour of Budhan's entry into the Barrabazar P.S. i.e. between 17.05 and 18.00 hours on 11.02.98. It is unbelievable that Budhan who was reluctant even to sign the memo of arrest prepared by Ajoy Sen, A.S.I., should have, within an hour upon interrogation by Ashoke Roy voluntarily and obligingly 'confessed' the crime, giving particulars of other 'criminals' etc. Within the same hour the statement under section 161 Cr.P.C. was also recorded. This would lead one to believe that Budhan was in fact arrested on 10.2.98 as alleged by the petitioner and kept in custody during which period he was 'persuaded' to confess. Strangely the section 161 Cr.P.C. statement of Budhan which was forwarded on 12th February, 1998 to the SDJM shows that the section 161 statement was recorded by Ashok Roy on 12th February, 1998 and not on 11.2.98 at all. 23. Coming to the aspect of torture in custody it appears, at least prima facie, that the allegations of the petitioner are correct. According to Ashoke Roy, Budhan was medically examined by the medical officer at 9.15 a.m. on the next day i.e. 12.2.98, and was found in good condition. However the entry in the GD Book "accused checked by M.O., Barrcbazar P.H.C." appears to be subsequently interpolated. Furthermore the entry in the GD Book shows that Budhan was forwarded to the SDJM's Court at 9.25 in the morning from the lock up. However the entry in the GD Book "accused checked by M.O., Barrcbazar P.H.C." appears to be subsequently interpolated. Furthermore the entry in the GD Book shows that Budhan was forwarded to the SDJM's Court at 9.25 in the morning from the lock up. But the medical officer's certificate shows that Budhan was examined in the hospital at 9.15 a.m. There is no explanation for this discrepancy. While Budhan was in the lock up an incident is recorded in the GD Book as having taken place on 14.2.98 at 23.35p.m. The entry which is in Bengali, roughly translated, records that at that time the sentry Thakur Nath Majhi informed the police officer on duty that the prisoner in the lock up was trying to cut the iron bars of the window on the way leading to the urinal. Having got this information the police officer went to the spot himself and found that Budhan was kicking the wall and by doing that was removing the bricks of the wall one by one. Seeing this the police officer and the sentry asked him to stop whereupon Budhan becoming very excited came near the door of the jail and said "I will disclose the names of all the persons involved in the bus dacoity, let me go". Having said this Budhan allegedly started kicking the wall again and taking one brick started smashing his own head with it. According to the entry, the police officer and sentry then entered the cell and removed all the bricks and remained alert to make sure that he could not escape. 24. The story is intrinsically improbable and appears to be a preemptive cover up to explain physical injuries that might be subsequently found on Budhan. According to the police, Budhan had already made a statement under section 161 Cr.P.C. on 12.2.98 in which he allegedly gave the names of all the persons involved. Why should he again offer to disclose their names? Furthermore it is highly unlikely that a weakly built man like Budhan would be able to dislodge the bricks in the cell wall merely by kicking it. What is most curious is that according to the police that very night, a few hours later, at about 3 a.m., Ashoke Roy, Ajay Sen and other police officers say that they took Budhan and conducted a raid at Budhan's village at Akarbaid. What is most curious is that according to the police that very night, a few hours later, at about 3 a.m., Ashoke Roy, Ajay Sen and other police officers say that they took Budhan and conducted a raid at Budhan's village at Akarbaid. The Case Diary which is maintained in loose sheets, records that Budhan took the police to the house of Mihir Pramanik and identified him as the person to whom stolen goods were sold. The recovery was of two pieces of pant-cloth and one blanket. According to the Case Diary and G.D. Entry, the police together with Budhan left Akarbald village at 8.15 a.m. on 15th February, 1998 and returned to Barrabazar P.S. at 9.55 a.m. of 15th February, 1998. 25. This recording is wholly belied by the medical certificate of the Emergency Ward of the Hospital regarding Budhan. The medical certificate which is dated 15.2.98 shows that Budhan was taken to the Emergency Department of the hospital at 7.35 in the morning of the 15th February, 1998. 26. Thus the recording in the Case Diary that at 7.30 a.m. on the 15th February, 1998, Budhan was in Akarbaid is false and the raid must have been held earlier i.e. on 13th February as stated by the petitioner, and before Budhan 'injured' himself. 27. That Budhan suffered injury is indicated by the medical certificate dated 15.2.98. The hospital ticket reads as follows: "H/o - Headache - Anorexia Olex - Pt. is Conscious. Tongue -Moist. Pulse -82/minute Chest NAD No any external(sic) injury. Adv (1) Tab. Brufen. 2002 tab B.D.A.C. x 2 days (2) Tab. B. Complex -(10) 1 tab B.D.A.C. x 5 days (3) Sirp. Eugadine 2 TSp B.D.A.C. x 15 days". 28. If the man was normal why was it necessary to record that he was conscious? If Budhan had beaten his head with a brick the previous night it is surprising that no external injury was found the very next morning. Strangely also there is no entry in the GD Book of the medical check up of Budhan held on the 15th February, 1998 at all. 29. Evidence of torture is also available from the statement under section 161 Cr.P.C. of the Deputy Jailor who admitted Budhan. This is discussed in more detail under the second head. 30. Strangely also there is no entry in the GD Book of the medical check up of Budhan held on the 15th February, 1998 at all. 29. Evidence of torture is also available from the statement under section 161 Cr.P.C. of the Deputy Jailor who admitted Budhan. This is discussed in more detail under the second head. 30. Ashoke Roy sought to rely on the fact that Budhan had been produced before the Sub-Divisional Judicial Magistrate before remanding him to prison custody on 12.2.98 and to jail custody on 16.2.98 to contend that Budhan had not been tortured in police custody. It is doubtful whether Budhan was in fact produced before the Magistrate at any stage although under section 167(1) the Sub-Divisional Judicial Magistrate could not have authorised the detention of Budhan in custody unless Budhan was produced before him. The order dated 16th February, 1998 merely records: "Accd. Budhan Sabar is produced by O/C Barrabazar PS in this case today. He is taken into custody. I.O. prays for police record the said accd. person for 7 days for the interest of investigation and the said prayer is forwarded by Dy. S.P. HQ. Purulia. Seen the prayer of I.O. considered. Prayer for P.C. is allowed for 5 days in the interest of investigation. To 16.2.98 for production. Inform the learned CJM". 31. In the original case records there is an interpolation on the Order Sheet in Bengali which translated reads: "I have explained to the accused Budhan Sabar." This is signed by Ranjit Majumdar, ASI Police on 12.2.98. Apart from the fact that the attested copy of the SDJM's order dated 12.2.98 which was produced before this Court did not bear any such endorsement, it is inconceivable that a police officer could make any such inscription on the order-sheet of a Court. It is to be noted, that accordingly to the Order it was Ashoke Roy also had produced Budhan. 32. The order dated 16.2.98 of the SDJM reads: "Accused Budhan is produced by O/C. Barrabazar Police Station from police remand today. He is taken into custody and remanded to jail custody till 27th February, 1998." Explanation II to section 167 makes it clear that if any question arises whether an accused person was produced before the Magistrate as required under section 167(2)(b) the production of the accused may be proved by his signature on the order authorising detention. He is taken into custody and remanded to jail custody till 27th February, 1998." Explanation II to section 167 makes it clear that if any question arises whether an accused person was produced before the Magistrate as required under section 167(2)(b) the production of the accused may be proved by his signature on the order authorising detention. There is no such signature or thumb print on either of the orders of the Magistrate remanding Budhan to police custody and subsequently to jail custody. 33. There is also no indication that the Magistrate either examined Budhan or complied with the directive of the Supreme Court to inform Budhan that if he was unable to engage the service of a lawyer on account of poverty or indigence he was entitled to free legal service at the cost of the State. The Magistrate was also obliged to satisfy himself that Budhan had been informed that he could have one friend or relative or other persons who is known to him or likely to take an interest in his welfare that he had been arrested and where he was being detained (See: Joginder Kumar vs. State of U.P., AIR 1994 SC 1349 ). The Magistrate was obliged to do this when Budhan was produced before him initially on 12.2.98 and at least on 16.2.98 (Khatri vs. State of Bihar, AIR 1981 SC 928 ; Sukdas vs. Union Territory of Arunachal Pradesh, AIR 1986 SC 991 ). He did none of this. Had he done so it might have established that Budhan was in fact produced before him. 34. Thirdly the fact that the alleged confession made by Budhan on 12.2.98 was not sought to be recorded under section 164 of the Cr.P.C. before the Magistrate on 12th February, 1998 or 16th February, 1998 when the confessions of two other accused namely, Kalipada Pramanik and Mihir Pramanick was asked to be recorded also indicate that Budhan was not produced before the Magistrate at all. 35. Having regard to these facts that Budhan was not bodily produced before the SDJM at all. His non-production is consistent with the allegation of torture in custody made by the complainant. 36. These are some of the obvious contradictions/inconsistencies and lacunae in the records produced by the police. There are many more. 37. 35. Having regard to these facts that Budhan was not bodily produced before the SDJM at all. His non-production is consistent with the allegation of torture in custody made by the complainant. 36. These are some of the obvious contradictions/inconsistencies and lacunae in the records produced by the police. There are many more. 37. There is thus prima facie evidence that the documents maintained by the police at the Barrabazar P.S., Purulia have been tampered with and fabricated. There is also prima facie evidence that Budhan suffered injury while in the police lock-up. There is also evidence that the police have acted in violation of the law in effecting the arrest and detention of Budhan. 38. Ashoke Roy has been in Purulia District for the last fifteen years. Apart from the fact that on the facts as stated he is liable for departmental action, he must not be kept in the District any longer. According to the petitioner, two other cases alleging torture by Ashoke Roy of prisoners in custody are pending. Be that as it may, the possibility of his continued presence in the District might influence witnesses and the tampering with the evidence cannot be ruled out. 39. Re. II: Jail Custody and death According to the Jail Superintendent, Budhan Sabar was lodged in the jail at 6.20 p.m. According to the Jail Superintendent's evidence before this Court the lock up on 17th February, 1998 was taken "at about 5.00 p.m. to 5.15 or 5.20 p.m." This admission was in violation of the Jail Code. Chapter IX Rule 496 of Jail Code provides: "496. The Jailor shall ordinarily admit new prisoners into the jail at any time after the opening of the jail up to the hour of lock-up, which takes place at sunset. After lock-up he shall not receive any prisoner except on the special written order (in addition to the warrant) of a Judge or a Magistrate, and in the case of the Presidency Jail also of an officer of the High Court acting under this discretion of a Judge of that Court. No newly convicted prisoner shall be admitted into the convict wards after lock-up. A prisoner brought to the Jail upon conviction after lock-up shall be confined in a cell for the night or in the undertrial ward." 40. No newly convicted prisoner shall be admitted into the convict wards after lock-up. A prisoner brought to the Jail upon conviction after lock-up shall be confined in a cell for the night or in the undertrial ward." 40. There was no special written order of the Magistrate and yet Budhan Sabar was admitted after sunset. 41. The admission register was produced by the Jail Superintendent. The admission register is required to be maintained under Rule 511 of the Jail Code. Rule 511 reads: "511. In the admission register shall be recorded, for the purpose of identification, a full personal description of every prisoner, giving a general account of his physiognomy, complexion and habit of body, and a note or any special marks on his person. The personal description shall be entered by the Medical Subordinate or, at Central Jails, by a Deputy Jailor, when a Medical Subordinate cannot be spared for this duty." 42. The relevant extract from the statement of Deputy Jailor Prahalad Chandra Mahato recorded in Bengali under section 161 Cr.P.C. on 18.2.98 by Dhirendra Nath Mondal, ASI of Police, Purulia Town P.S. in connection with the unnatural death case stated on Budhan's death being Purulia Town P.S.U.D. Case No. 25/98 dt. 17.2.98, roughly translated reads: "As per your question I say that when I received Budhan Sabar on 16.2.98 at 6 in the evening, then there was no mark of any injury. When he came, he was limping. I asked his name. He said my name is Budhan alias Budhu Sabar. The name of my wife is Shyamali Sabar. My son's name is Bhudev. He was directed to be kept in No.5 Amdani Cell." 43. Why Budhan was limping was not enquired into. This statement is in keeping with Sreedhar's statement in the complaint, that Budhan could not walk and corroborates the allegation in the complaint, that Budhan had been injured in police custody. However, inexplicably, no entry was made in the Admission Register to this effect. 44. Although there is no scope for the Superintendent of the Jail to make any entry in the Admission Register, the Superintendent under the head of "the date of admission" in the admission register has made an undated entry which reads: "Mentally unsound?" According to the Jail Superintendent he made this entry the next day i.e. on 17.2.98. 44. Although there is no scope for the Superintendent of the Jail to make any entry in the Admission Register, the Superintendent under the head of "the date of admission" in the admission register has made an undated entry which reads: "Mentally unsound?" According to the Jail Superintendent he made this entry the next day i.e. on 17.2.98. In his affidavit the Jail Superintendent, says that he made this comment when in the course of identifying process he found Budhan's answers to his queries as "erratic and disjointed". 45. According to the affidavit of the medical officer he had checked Budhan at 10.20 a.m. when he found that he was in all agitated mood very much excited and very mentally disturbed. According to the doctor, he advised the Jail Authorities to keep Budhan in proper isolation and watch and also advised the Jail Authorities to have Budhan checked up by a psychiatrist. 46. Significantly Budhan was perfectly sane while in police custody according to the police. He gave a coherent statement under section 161 Cr.P.C. according to Ashoke Ray. According to the police he was rational enough when the raid on Akarbaid took place allegedly between 14.2.98 and 15.2.98. Was Budhan then mentally unsound when he was brought to Jail? If the statements of Dr. Mitra and the Jail Superintendent are to be accepted the case in the complaint that Budhan was so badly tortured by the police that he could not walk. Otherwise what turned a sane/normal person in Police Custody into an mentally sound one when he came to Jail? What physical if not mental torture was he subjected to? As said in D.K. Basu vs. State of West Bengal (supra) : '10."Torture" has not been defined in the Constitution or in other penal laws. "Torture" of a human being by another human being is essentially an instrument to impose the will of the "strong" over the "weak" by suffering. The word torture today has become synonymous with the darker side of human civilisation. Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezzing in your chest, cold as ice and heavy as a stone, paralyzing as sleep and dark as the abuse. Torture is despair and fear and rage and hate. Torture is anguish squeezzing in your chest, cold as ice and heavy as a stone, paralyzing as sleep and dark as the abuse. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself.' 47. However the Deputy Jailor did not find him mentally unsound when he was admitted. Again the inquiry officer's report shows that the warder had said that Budhan had taken his mid-day meal and evening meal as usual and was normal and alive at about 5.30 p.m. on 17th February, 1998. Superintendent has also stated in his affidavit not only that Budhan took his mid-day meals, he also accepted "Khaini" from another prisoner namely, Baij Majhi. There is however no evidence of Budhan taking ally meal on 17.2.98. According to the Jail Superintendent, no diet register was maintained by the jail. If this is true, the failure to do so is a violation of Chapter XXXVI Rules 1093 and 1105 as well as Chapter XLII Rule 1385. These rules provide: "1093. All prisoners shall have three meals a day-the early morning meal before the hour of labour, a mid-day meal and an evening meal before they are locked up for the night. 1105. The following registers shall be maintained in respect of the issue of food :- Nos. 36A and 36B, Diet Rolls for ordinary prisoners, (Rule 1095) and Divisions I and II convicts and Division I undertrials. The careful keeping up of these rolls is very necessary. Many prisoners who are released during the day, or come into jail in the afternoon can take respectively only either the morning or the evening meal. A detailed account of the number of prisoners fed at each meal is necessary to afford a correct check upon the issue of food in full quantity according to scale - a matter of great importance in maintaining their health; it is also necessary for checking over-issue or peculation. The Superintendent should compare this calculation with the actual issues recorded in the Stock Book No.33. 1385. The following Registers and Books are prescribed: C. No. 30A Diet Roll of ordinary 1105 W.B.F. No.5012 Prisoners C. No. 36B Diet Roll of Divisions 1105 W.B.F. No.5013 I and II prisoners." 48. If this evidence is to be accepted then it is clear that the Medical Officer, the Superintendent and the Jailor are lying. 49. 1385. The following Registers and Books are prescribed: C. No. 30A Diet Roll of ordinary 1105 W.B.F. No.5012 Prisoners C. No. 36B Diet Roll of Divisions 1105 W.B.F. No.5013 I and II prisoners." 48. If this evidence is to be accepted then it is clear that the Medical Officer, the Superintendent and the Jailor are lying. 49. Unfortunately no proper medical records appear to be maintained in the jail. In particular Rule 507 of the Jail Code has been violated in this case. It reads as follows: "507. All newly-admitted persons shall be brought before the Medical Officer usually on the morning following their admission, and he shall then make, or cause to be made, in the admission register and prisoner's history ticket, a record in respect of each prisoner, of his or her age, health on admission, with such particulars of previous illness as may be known to him, weight on admission, marks of wounds, if any, on the person, and (in the case of a prisoner sentenced to rigorous imprisonment) the class of labour for which the prisoner is fit, with any other observations he may think necessary. If a prisoner is in bad or indifferent health, the Medical Officer should enter the general cause, such as enlarged spleen, anemia, etc. He shall also record whether a prisoner has been vaccinated or inoculated or has had small-pox." 50. Not only was there no proper medical check up, no record as required to be maintained under Rule 507 was produced. The observation of the Supreme Court in State of M.P. vs. Shyamsunder Trivedi & Ors., (1995) 4 SCC 262 , are particularly apt in this context: "Generally speaking, it would be police officials alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues." 51. But whichever way the facts are seen, the involvement of the authorities in Budhan's death is apparent. If he was mentally disturbed/unsound, they made him so. If he was not, then there is no explanation why Budhan was kept in isolation so that he could conveniently hang himself. 52. But whichever way the facts are seen, the involvement of the authorities in Budhan's death is apparent. If he was mentally disturbed/unsound, they made him so. If he was not, then there is no explanation why Budhan was kept in isolation so that he could conveniently hang himself. 52. In his letter to the Officer-in-Charge dated 17th February, 1998 the Superintendent wrote: "UTP was advised (sic) by Medical Officer on 17.2.98 morning for his segregation to his cell due to unsound nature. Thus he was kept at Cell No.2." Incidentally, the jail authorities have also said that prior to Budhan's isolation on medical advice, he was isolated. But the statements in the three affidavits filed in this context are contradictory and again unsupported by records. According to Kumaresh Roy's, (the Jailor) affidavit, Budhan had attacked one of the co-prisoners at 8.30 of the morning of 17th February, 1998. The Jailor had said that he was informed by the warder of the incident over telecom. The Jailor's further case is that he instructed the warden over the telecom to confine Budhan in the cell. The Superintendent on the other hand has referred to the incident by saying that the Jailor on hearing the commotion rushed to the spot himself and directed that Budhan Sabar should be kept isolated in a separate cell. The Jail doctor, Dr. Utpal Kumar Mitra, on the other hand does not refer to this incident at all in his affidavit. There is also no reference to this alleged incident in the inquiry report of the S.D.O. which was held on 18th February, 1998. All that the report says is that the Medical Officer on a routine medical check up of the newly admitted prisoners had "found Budhan Sabar mentally agitated and accordingly advised to arrange for keeping Budhan in a proper isolation ward. Accordingly Budhan Sabar was admitted to cell confinement on Cell No.2 of the jail at about 12 noon". If Budhan was examined by the Medical Officer and advised isolation at 10.20 a.m. why was he put into solitary confinement at 12 noon? 53. Assuming Budhan was mentally unsound and the jail doctor had advised him to be kept under watch, clearly none of the jail personnel did so. This is particularly reprehensible in view of Rule 740 of the Jail Code which provides: "740. 53. Assuming Budhan was mentally unsound and the jail doctor had advised him to be kept under watch, clearly none of the jail personnel did so. This is particularly reprehensible in view of Rule 740 of the Jail Code which provides: "740. A strict watch shall be kept over all prisoners confined in cells to prevent them from committing suicide or injuring themselves......." 54. No direction was even given by the Superintendent for keeping a special watch on Budhan even though, according to him he personally found Budhan to be mentally unsound. Even without such direction the Head Warder, Baij Nath Singh was duty bound under Rule 318 of the Jail Code to: "(s) keep constantly moving about amongst the prisoners while on day duty supervising the work, security and discipline of the jail; similarly, visit every part of the jail while on night duty and also visit frequently both by day and night the prisoners in condemned and other cells, so that the warders and convict are always kept on the alert;" 55. The Jail Superintendent, Biplab Kumar Dasgupta, has sought to shift responsibility on Kumaresh Roy, the Jailor by citing Rules 248 and 249 of the Jail Code which provide: "Rule 248. Duties of the Jailor.- His chief duties are to secure the safe custody of prisoners, to enforce discipline among prisoners and his subordinates, to ensure that prisoners sentenced to rigorous imprisonment do the work assigned to them, and to maintain a high standard of health among them so far as this can be secured by strict compliance with the rules and orders with this object -------- He shall visit every part of the jail daily, including cells and hospital, and see every prisoner at least once in every 24 hours. Rule 249. It shall be his duty to be always present when the prisoners are locked up at night and taken out of the wards in the morning, and this duty cannot be delegated except by permission of the Superintendent, unless the Jailor is sick and unfit for duty........." 56. Rule 249. It shall be his duty to be always present when the prisoners are locked up at night and taken out of the wards in the morning, and this duty cannot be delegated except by permission of the Superintendent, unless the Jailor is sick and unfit for duty........." 56. According to Biplab Dasgupta, his own duties are limited to those specified in Rule 72 of the Jail Code, namely: "Rule 72.- Subject to orders of the Inspector General, the Superintendent shall manage the prison in all matters relating to discipline, labour, expenditure, punishment and control." If, indeed his duties ended there why did he make the entry on the Admission Register of the jail. 57. These failures on the part of the jail authorities to watch Budhan, the failure to produce the diet registers, coupled with the contradictory stories relating the cause of Budhan's isolation lend credence, to the charge of the petitioner in its complaint, that Budhan was beaten into unconsciousness and then locked up separately. This would explain why no diet register was produced and why it was not thought necessary by anyone to watch him in his isolation cell despite the Rules and the advice of the Medical Officer. This would also explain the bleeding in Budhan's right ear found when the inquest was held. It may be noted here that according to the complaint, the person who beat Budhan in the morning had three V marks in his shirt. According to the respondents, only the Jail Warder has these stripes. The Warder on duty was Baijnath Singh. Baijnath had significantly left his post at 5.30 p.m. and was not only duty when his relief, Gopal Chandra Panda arrived at 6 p.m. (Vide Statement under section 161 Cr .P.C. of Gopal Chandra Panda in UD case No. 25/98). 58. Coming to the actual hanging, according to S.D.O.'s Enquiry Report the Warder, Baij Nath Singh had said Budhan was last seen alive at 5.30 p.m. after taking his evening meal. His body was found at 6.08 p.m. according to Gopal Chandra Panda, statement under section 161 Cr.P.C. Yet the post mortem shows that Budhan's stomach contained semi digested matters. 58. Coming to the actual hanging, according to S.D.O.'s Enquiry Report the Warder, Baij Nath Singh had said Budhan was last seen alive at 5.30 p.m. after taking his evening meal. His body was found at 6.08 p.m. according to Gopal Chandra Panda, statement under section 161 Cr.P.C. Yet the post mortem shows that Budhan's stomach contained semi digested matters. Again if a person were intending to commit suicide would he have had a hearty meal, behaved normally till 5.30 p.m. and then immediately string himself up with the highest rod over the cell door and die within eight minutes? Not only does the story lack credibility but it is practically impossible. It is significant that the Medical Officer in his affidavit has said that hanging does not cause immediate death except in judicial hangings. 59. What took place thereafter was in violation of Rule 805A of the West Bengal Jail Code. This specifically requires: "805A. Whenever a sudden or violent death or death from suicide has taken place in a jail, immediate notice shall be sent to the Jailor and the Medical Officer, and the body shall be left in the position in which it was found, pending inspection by these officers and also the Superintendent. The body shall be kept also for the inspection and orders of the officer holding the inquest. Should there be any uncertainty as to whether death has occurred, measures shall at once be taken to restore animation and for this purpose, the body may be removed, immediately on its discovery, from the position in which it was found." 60. The Jail Superintendent has said that on the expectation that the man so hanging may be still alive, the said Akbar Ali Molla, Prasanta Karmakar and Manick Adhikari released Budhan Sabar from the knot of the Gamchha and laid him on the floor at about 6.18 p.m. Dr. Mitra examined Budhan's body at 6.25 p.m. and found he was lying on the floor, dead. According to the Jail Superintendent he then rushed to his office and informed the District Magistrate. The District Magistrate in his affidavit says he was informed at 6.45 p.m. The statements of none of the persons who are said to have taken the body of Budhan down and which were recorded by the S.D.O. have been produced before this Court. According to the Jail Superintendent he then rushed to his office and informed the District Magistrate. The District Magistrate in his affidavit says he was informed at 6.45 p.m. The statements of none of the persons who are said to have taken the body of Budhan down and which were recorded by the S.D.O. have been produced before this Court. The SDO's report only encloses the statements of the Medical Officer, the Superintendent of the District Jail, the Jailor and the Deputy Jailor. 61. The Medical Officer of the jail, Dr. Mitra, did not confirm the time of the death of Budhan although he saw the body at 6.25 p.m. He did not record any evidence of hanging such as protruding tongue, bulging of eyes, clenching of hands or salivation. He did not even examine the ligature mark because according to him, the inquest was yet to be done and he did not want to disturb the position of the body. He ignored the fact that according to the respondents the position of the body had already been disturbed by being taken down and laid on the floor. 62. However, Dr. Mitra did not say that Budhan died by hanging. In fact he has given no opinion in this regard. His very silence speaks volumes. The SDM in his report said: "I saw the body lying on the floor of the Cell No.2. He wore a shabby trousers and shirt. He was weakly built. No foul play behind the death of UTP appeared to me on preliminary examination. However, I suggest inquest and post mortem to reveal the cause of death." The inquest was held at 7.25 a.m. on 18.2.98. Section 176(4) Cr.P.C. requires: "176(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry. Explanation.- In this section, the expression 'relative' means parents, children, brothers, sisters and spouse." 63. No attempt was made to notify the relatives of Budhan at all. 64. The Inquest Report in so far it is relevant shows that "the eye lids were closed, nostrils full of froths, dribbling of saliva on the right side of mouth...... The body was stiff and cold. Light, irregular black marks were found at the neck of the corpse. No attempt was made to notify the relatives of Budhan at all. 64. The Inquest Report in so far it is relevant shows that "the eye lids were closed, nostrils full of froths, dribbling of saliva on the right side of mouth...... The body was stiff and cold. Light, irregular black marks were found at the neck of the corpse. Bleeding was noticed clotted seemingly within his ears........the actual cause of death will be ascertained after post mortem". In other words, there was no opinion expressed even at the inquest as to the cause of death. 65. The Jail Superintendent has suggested "that the finding of the Inquest Magistrate as to trickling of saliva from the right side of the mouth is a positive identification that the death of the said Budhan Sabar was caused by hanging". Apart from the fact that the Medical Officer had not noted this himself what was the explanation for the blood in the right ear? The closed eyes and other indicia hegatioing suicidal hanging? Besides, all that the evidence relied on by the respondents at the highest shows that Budhan was found hanging. The question is did he hang himself? Or was his unconscious body strung up to make it appear as suicide? The evidence before me favours an affirmative answer to the last question. 66. The report which was submitted by the experts from the CFSL headed by Dr. M.S. Rao, its Director, to the Court on 22nd April, 1998 pursuant to the Courts order dated 28.3.98, noted that the "Gamchha" with which Budhan allegedly hung himself did not contain any thread replacement. The CFSL also noted the statements made by three persons who claimed to have brought down Budhan's body that the legs of Budhan were bent when it was hanging. On the basis of the statements made, a scrutiny of the place, the 'gamchha' and wearing apparel, the opinion of CFSL was that Budhan had hot and could not have hung himself and that the evidence was consistent with his unconscious body being hung up. Incidentally the CFSL were of the view that the said three witnesses were tutored and should be subjected to a lie detector test. 67. All the respondents' affidavits contain criticisms of the report of CFSL although none of them claim to be specifically trained for this purpose. Incidentally the CFSL were of the view that the said three witnesses were tutored and should be subjected to a lie detector test. 67. All the respondents' affidavits contain criticisms of the report of CFSL although none of them claim to be specifically trained for this purpose. They have imputed motives to the CFSL experts for giving the report without specifying what possible motive a body of experts could have for giving the opinion they did. I have found their report to be well reasoned and on the basis of the date recorded, unimpeachable. 68. Budhan was taken to the jail directly from the Court according to the police. The police records do not show that Budhan was carrying a "gamchha" at any time. The CFSL have found the gamchha to be new. It is not the case of the jail authorities that the gamchha was issued to Budhan. Where did the gamchha come from? It is true that in the column headed "'private property received with the prisoner" it has been written full pant, G. Shirt, Punjabi and Gamchha. But the word "Gamchha" appears to have been subsequently inserted. Besides, it appears a trifle unlikely that a prisoner would be, allowed to retain his own gamchha in the jail. Interestingly, there is no note of the Punjabi in Budhan's cell. In the articles seized from the cell in connection with the Unnatural Death Case No.25/98 on 18th February, 1998 (1) one yellowish ganji; (2) one purple trouser; (3) one zangia sky coloured and (4) one blue and white napkin seized approximately 6'/2' were seized. No mention was made of any punjabi. 69. Several other contradictions and inconsistencies in the affidavits were pointed out by Mr. Roy appearing for the petitioners. It is not necessary to note all of them. Souffie it to say that there is no credible evidence of the alleged suicide of Budhan. 70. Re. III. The Post Mortem The postmortem evidence supports the view of the CFSL experts. It is however dealt with separately for the sake of convenience. 71. Dr. D. Marjit, Deputy Director of Central Forensic Science Laboratory (CFSL) after examining the video tapes submitted a report dated 26th March, 1998 to the effect that Tape A was incomplete in that after showing the picture of the body of Budhan in the cell there was a blank portion for about 38 seconds. 71. Dr. D. Marjit, Deputy Director of Central Forensic Science Laboratory (CFSL) after examining the video tapes submitted a report dated 26th March, 1998 to the effect that Tape A was incomplete in that after showing the picture of the body of Budhan in the cell there was a blank portion for about 38 seconds. The next shot had no continuity with the first and he opined that some portion of the post mortem examination was missing. He also observed that there was a repair of the tape between the two shots which was torn/cut and stuck together with some adhesive/glue. 72. Both the video tapes were thereafter examined in open Court after Court hours in the presence of Counsel for the respective parties as well as the representative of CFSL. As far as Tape A is concerned it is evident that the same has been tampered with. The tape starts with blurred images of the body of Budhan on the floor of the cell. This abruptly ends. The next shot shows the body of Budhan lying on the floor in a room after the post mortem was well underway. No explanation was forthcoming as to the reason why the earlier portion of the post mortem was not on the tape nor was any explanation given why the tape had been clearly edited. Incidentally Tape A was submitted to Court unsealed and unsigned. Such an edited tape renders the actions of the respondents suspicious. A post mortem is video-taped to ensure that it is properly conducted and to record the evidence before the Autopsy Surgeons. An incomplete and edited video tape therefore suggests not only that the post mortem was not properly conducted but also that inconvenient parts of the evidence were obliterated. 73. It was also seen from the video that the post mortem was not conducted personally by any Doctor. A person who appeared to be untrained was cutting the body. He did not have any instrument apart from a knife and was acting on the instructions being issued, presumably by the Autopsy Surgeons. It also did not appear that the Doctor examined Budhan's body prior to cutting the body of Budhan to check whether he had any external injury. This was particularly necessary because bleeding from the right ear and a suffused red eye might indicate a head injury. It also did not appear that the Doctor examined Budhan's body prior to cutting the body of Budhan to check whether he had any external injury. This was particularly necessary because bleeding from the right ear and a suffused red eye might indicate a head injury. The first post mortem report again noted that there was clotted blood in Budhan's right ear. The post mortem also noted his right conjunctiva was blood shot. No attempt was made to find out the cause for this. The post mortem categorically found that there was no evidence of dribbling saliva from any angle of the mouth. It was also found that the ligature mark was incomplete. 74. The video Tape A showed that the manner which the post mortem was conducted was unprofessional. Not only was the post mortem negligently done, but the Doctors, who were conducting the said postmortem by remote control, as it were, appeared to have no knowledge of the factors which would indicate physical injury or whether death took place by hanging and/or of the factors which would differentiate between an ante mortem and post mortem hanging. What is most surprising is that the possible time of death was not given although this was vital. The first postmortem report did not also find that Budhan's death was suicide by hanging. In fact, no opinion as to the cause of death was given. 75. According to the Jail Superintendent the ligature mark could have been made by a Gamchha and that it depended how the victim had tied the gamchha around his neck. However, nothing is said about how the gamchha was in fact tied round the neck. The Medical Officer has said that the incomplete ligature mark on the body of Budhan could happen "if sufficient time is not given for hanging". In other words, it indicates that Budhan did not die of hanging. 76. The Expert Medical Committee duly examined the inquest report, the tapes A & B and the two post mortem reports. In their report it has been said that the first post-mortem was improperly conducted by the autopsy surgeons. They were also not satisfied with the method in which the second post mortem was conducted after exhumation. They also found contradiction between the inquest report and the first postmortem report. In their report it has been said that the first post-mortem was improperly conducted by the autopsy surgeons. They were also not satisfied with the method in which the second post mortem was conducted after exhumation. They also found contradiction between the inquest report and the first postmortem report. However what is most noteworthy is that they opined that the "napkin" (Gamchha) noted as the ligature material was not consistent with the breadth of the ligature mark on Budhan's throat. The Expert Committee concluded that the contention of the jail authorities that the deceased Budhan died by hanging himself was not corroborated by the facts as noted in the first post mortem report. IV. Conclusion 77. The burden is on the respondents to explain the death of Budhan in their custody and unless a plausible explanation is given by the respondents which is consistent with their innocence, the obvious inference is that Budhan died from the actions of the respondents [Nilabati Behera vs. State of Orissa, 1993 (2) SCR 581). 78. No plausible explanation has been given by the respondents for Budhan's death in their custody. In fact the evidence on record is consistent with the case made out in the complaint. However, the matter is required to be further investigated. When the persons accused are the police themselves, it would be inadvisable to allow them to conduct the investigation. There has been in fact a consistent attempt by the police and Jail Officers to cover up and confuse as noted earlier. 79. As said in State of M.P. vs. Shyamsunder Trivedi (supra) : "The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilised society, governed by the rule of law and poses a serious threat to an orderly Civilised society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in 'Khaki' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading onwards perishing. Unless stern measures are taken to check the malady, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading onwards perishing. The courts must, therefore, deal with such cases in a realistic manner with the sensitivity which they deserve, otherwise the common man may issue faith in the judiciary itself, which will be a sad day." 80. Keeping these observations in view and having regard to the facts of the case it is clear that Budhan's death must be investigated thoroughly and the guilty prosecuted. 81. Where serious allegations are levelled against the officers/officials of the police it has been held by the Supreme Court in M/s. Paramjit Kaur vs. State of Punjab & Ors., JT 1995(8) SC 418 that it would be an interest of justice that the investigation is handed over to an independent authority. It is necessary to instil confidence in the mind of the public and do justice to the concerned parties (See also Inder Singh vs. State of Punjab & Ors., AIR 1995 SC 812 ; Kashmeri Devi vs. Delhi Administration, AIR 1988 SC 1323 ). "It is futile to expect an independent and wholly objective investigation by the State police. Even otherwise, the people will have little confidence in the investigation no matter how honest and objective the investigation be [See Secretary, Hailakandi Bar Association vs. State of Assam & Anr., 1995 Supp (3) SCC 736). 82. It would be appropriate in the circumstances of this case to entrust the matter to the Central Bureau of Investigation (CBI). The State police has not initiated an investigation as yet into the matter despite the fact that the complaint had been made to the State authorities as well as by the petitioner. Although no argument was advanced on this aspect it is clear that section 6 of the Delhi Special Police Establishment Act, 1946 does not apply when the Court gives a direction to the CBI to conduct an investigation [State of West Bengal vs. Sampatlal, AIR 1985 SC 195 ; See also Rajalakshmi vs. Union Territory of Pondichery, 1992 Supp. (2) SCC 27). It is accordingly directed that :- (1) the Central Bureau of Investigation should undertake the investigation of the death of Budhan Sabar. (2) SCC 27). It is accordingly directed that :- (1) the Central Bureau of Investigation should undertake the investigation of the death of Budhan Sabar. The Registrar (A.S.) is directed to forward a copy of this judgment and order to the Director of CBI to take immediate steps and complete the investigation for bringing the real culprits to book. Let all records produced before this Court be sealed except the admission Register in a separate box and handed over by the Registrar (A.S.) to the authorised officer of the CBI. As far as the admission Register is concerned, two copies of the relevant pages are to be kept with the records. (2) Departmental proceedings are directed to be initiated by the Inspector General of Police against Ashoke Roy, Officer-in-Charge, Barrabazar P.S., Purulia, the Jail Superintendent, Biplab Kumar Dasgupta for violations of the Jail Code, Baij Nath Singh the Warder on duty in the morning shift of 17.2.98 in the District Purulia Jail and such other persons who he may think appropriate on the basis of the prima facie findings in this judgment. (3) The Inspector General of Police is directed to transfer the said Ashoke Roy forthwith from the District of Purulia. Baij Nath Singh, Warder, who is said to be suspended shall also be transferred from Purulia forthwith. (4) The concerned department of the State Government is directed to ensure that postmortems are carried out by Autopsy Surgeons themselves and issue and circulate necessary directives within 8 weeks from the date of communication of this judgment by publication or otherwise to all Government hospitals. 83. The last question is that of compensation. Given the fact that there is a prima facie finding that death is traceable to the act of omission and commission of the concerned authorities compensation may be awarded (Charanjit Kaur vs. Union of India, AIR 1984 SC 1491) and the liability of the State to pay compensation in such a case has been affirmed by the Supreme Court in several decisions [See: Rudal Sah vs.. State of Bihar & Anr., (1983) 3 SCR 508 ; Sebastian M. Hongray vs. Union of India & Ors., (1984) 1 SCR 904 and (1984) 3 SCR 544 ; Bhim Singh vs. State of J & K, (1984) Supp. SCC 504 and (1985) 4 SCC 677 ; Saheli, A Women's Resources Centre and Ors. State of Bihar & Anr., (1983) 3 SCR 508 ; Sebastian M. Hongray vs. Union of India & Ors., (1984) 1 SCR 904 and (1984) 3 SCR 544 ; Bhim Singh vs. State of J & K, (1984) Supp. SCC 504 and (1985) 4 SCC 677 ; Saheli, A Women's Resources Centre and Ors. vs. Commissioner of Police, Delhi Police Headquarters and Ors., (1990) 1 SCC 422 and State of Maharashtra & Ors. vs. Rauikant S. Patil, (1991) 2 SCC 373 ; Nilabati Behara vs. State of Orissa, AIR 1993 SC 1960 : 1993 Cr. L.J. 2899]. 84. Budhan was 28 years when he died. There is no evidence before me that he was employed, but the loss caused by his death to his parents, his widow and minor son must be compensated. By the brutal acts of the police his young family have been deprived of any future means of subsistence and his parents of any support. Budhan's widow has been paid Rs. 15,000/- by the State. Having regard to the nature of Budhan's death and to deter in the police from lightly intervening with the life of those in their custody, particularly those who are indigent and ignorant of their rights, I direct the State to pay a further sum of Rs. 85,000/- to the widow and parents of Budhan to be adjusted against any future compensation that they may obtain from any Civil Court. It will be open to the State to recover the amount so paid from such of its officers who may be found guilty upon prosecution. Writ petition allowed.