1. On allegation, that the subject, Abdul Rashid Wani, after being picked up by 2/8 Gorkha Rifles on 7-7-1997, is neither released nor heard of, 491 Cr.P.C. petition No. 139/1997 was filed. Union of India and Respondent No. 1 (State) filed objections, wherein arrest as well as knowledge of above disappearance of the subject was totally denied. 2. Learned Single Judge on 6-4-1999, ex-facie, finding it the case of custodial disappearance, referred the matter to Principal District and Sessions Judge Srinagar for enquiry and report. The Principal District Judge Srinagar has filed report holding as under:- "... On over all analysis of the evidence on the file, it is clear that there are circumstances which establish that Cpt. Yadov arrested Abdul Rashid Wani on 7th Jan. 1997 at Rawalpora alongwith P.W. Farooq Ahmed Bhat. Farooq Ahmed Bhat was subsequently released but Abdul Rashid Wani was detained and was never traced. In the absence of any evidence is rebuttal, the circumstances lead to the only conclusion that Cpt. Yadov is an officer from 2/8 Gorkha Rifles and he arrested Abdul Rashid Wani and is accountable for the alleged disappearances of the said Abdul Rashid Wani." 3. To this report, petitioner and officials/officers of State Government as also official respondents 1 to 4 have not taken objections. However, respondent No.3 has filed objections. In terms of the objections, the involvement of 2/8 Gorkha Rifles headed by Capt. Yadov is denied. It is asserted that the subject was never arrested by the respondent- Unit. The allegations against the Unit are baseless, false and without merit. It is wholly a fabricated case against the Unit. 4. The counsel for the parties heard. Record perused. Respondents have participated in the proceedings before the enquiry officer (Pr District and Sessions Judge Srinagar), but have failed to produce evidence. On the oral testimony of four witnesses is recorded by the Sessions Judge. After analysing and appreciating the evidence the Pr. District and Sessions Judge Srinagar has held "that there are circumstances to show that the subject Abdul Rashid Wani was detained by the respondents and was never heard thereafter. Capt Yadov is in fact the officer who arrested him." 5. The finding of the court below is that petitioner was arrested and detained by the security forces and has thereafter disappeared. Capt Yadov is in fact the officer who arrested him." 5. The finding of the court below is that petitioner was arrested and detained by the security forces and has thereafter disappeared. The name of Capt Yadov appears just a parrot like narration of his name Yadov, by the four native witnesses of the writ petitioner, who have not at all indicated their source of knowledge or the circumstances in which they have come across the name of the officer leading 2/8 Gorkha Rifles on spot, who are allegedly to have picked up and arrested the subject The part of the statement, that it was Capt. Yadov, in the face of the stout denial by the respondents, in the facts and circumstances of the case, cannot be accepted quite true. In view of the fact that Abdul Rashid Wani is shown to have been arrested and detained by the security forces and further that the said subject Abdul Rashid Wani was never heard thereafter, needs to be investigated as a case of custodial disappearance by the concerned Investigating agency. Accordingly, Police Station Soura is directed to register an FIR and investigate the matter expeditiously enroute to finalization of the case at investigation level. 6. The Ld counsel for the petitioner submits that in view of the fact that this is a case of custodial disappearance, petitioner should be awarded compensation. However, with regrets and how-so-hard it may appear to be, even adopting an attitude of benevolence, this court cannot do so for the reason that there is scanty and very little evidence to show that fundamental right of life of the subject has been taken away by the officer, allegedly named as Capt. Yadov. At the most it is alleged that exfacie the subject was arrested by 2/8 Gorkha Riffle. But the officer heading the Unit on spot to arrest and pick up the subject, is not at all identified with all possible precision and certaintity. Presumption of torture and custodial disappearance are matters to be proved by positive evidence. 7. Yadov. At the most it is alleged that exfacie the subject was arrested by 2/8 Gorkha Riffle. But the officer heading the Unit on spot to arrest and pick up the subject, is not at all identified with all possible precision and certaintity. Presumption of torture and custodial disappearance are matters to be proved by positive evidence. 7. The infringement of the fundamental right can be taken care of by awarding compensationary relief in public law jurisdiction on the basis of breach of public duty, but however, this compulsion of judicial conscious to repair the wrong done and award compensation is possible, only when there is clear evidence and finding to show such infringement and breach of public duty by the State of not protecting the fundamental right of life of the citizens. The officer(s) guilty of flagrant infringement of the fundamental right(s) has to be identified. In this case, it is not possible to award such compensation in these proceedings under the Public Law Jurisdiction, for the wrong done in breach of public duty by the State and its officials/officers and its failure to protect the fundamental right of the citizen. Obviously, the compensation in this case cannot be granted for the alleged custodial disappearance in breach of public duty, the duty failure of the Government and its agencies. The award of compensation shall have to be addressed in appropriate proceedings in general law. Under tortious liability for damages, the State is under legal duty to compensate the deceased. The dependents of the deceased in the facts and circumstances of the case, cannot succeed in activating the writ jurisdiction of this court as substitute forum to pursue the remedy available under general law before a civil court. The petitioner is free to take recourse to the remedies available to him, if so, advised. 8. In result, for the aforesaid view taken the State Government and the concerned Police agency/department shall after registration of the criminal case, properly investigate the matter to bring to justice the real culprit with expeditious despatch. Disposed of.