JUDGMENT Hon’ble Amitava Lala, J.—The present writ petition is filed by the petitioner for the purpose of issuance of writ in the nature of habeas corpus in connection with production of body of Gulab, husband of the petitioner, and releasing the same; taking penal action by way of writ of mandamus as regards responsible persons for fake encounter and also compensation of Rs.5 lacs or whatever sum is to be fixed by the High Court along with incidental prayers. As because this Court was sitting in criminal writ jurisdiction in which the writ of habeas corpus is not assigned, the Court was about to release the matter when Mr. Yogesh Agrawal, learned Counsel appearing for the petitioner, did not press relief as regards writ of habeas corpus. Therefore, such prayer is deleted from the writ petition. The remaining prayers are about taking penal action against the responsible person and payment of compensation. 2. Mr. Neeraj Kant Verma, learned A.G.A., contended before this Court that there was no occasion of any encounter. Exchange of fire was made in between the police and criminals as a result whereof the death occurred. By relying upon the counter affidavit he said that after the encounter and post mortem, the family members were informed but they did not turn up to collect the body. Accordingly the same was cremated as per Hindu rites on the State expenses. He further contended that the petitioner’s husband had the criminal history, which will be available from the paragraph-4 of the counter affidavit and the annexures. Learned A.G.A. further contended that a final report has been filed before the appropriate Court of Magistrate, which was also accepted by such Court. 3. Mr. Agrawal relied upon a judgment reported in AIR 1988 SC 2181 , Bharat Singh and others v. State of Haryana and others and said that in the cases of writ petition, unlike the civil suit, there should be pleadings of evidence about the availability of post mortem, final report etc. 4. Under such circumstances, we have directed the State to file supplementary affidavit annexing the post mortem report and final report etc. We have also directed the concerned Magistrate through Registry of the High Court as well as the District Judge to produce the case diary under a sealed cover. 4. Under such circumstances, we have directed the State to file supplementary affidavit annexing the post mortem report and final report etc. We have also directed the concerned Magistrate through Registry of the High Court as well as the District Judge to produce the case diary under a sealed cover. On 27th July, 2006 on the date of further hearing supplementary affidavit on behalf of the State as well as the case diary under sealed cover were made available to the Court. We have seen the annexures to the supplementary affidavit about the post mortem and final report and compared the same with the case diary of the Court of Magistrate and found both are identical. Therefore, procedural technicalities are no longer available for the Court. 5. Now, as a natural consequence, the question arise whether the writ Court will proceed with the matter in spite of final report and taking cognizance in connection thereto or not. 6. Mr. Agrawal relied upon a judgment reported in AIR 1993 SC 1960 , Smt. Nilabati Behera alias Lalita Behera v. State of Orissa and others and contended that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right. 7. Mr. Verma relied upon a judgement reported in JT 2006 (2) SC 235, Sube Singh v. State of Haryana and others and unreported judgment of the Division Bench following the aforesaid judgement in Criminal Misc. Writ Petition No. 365 of 2003 (Smt. Rama Devi v. State of U.P. and others). According to Mr. Verma, the Supreme Court arrived at a situation in connection with the custodial torture. The Supreme Court held where there is no independent evidence of custodial torture and where there is neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of human right violation, by persons having criminal records in a routine manner for awarding compensation. The Supreme Court held where there is no independent evidence of custodial torture and where there is neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of human right violation, by persons having criminal records in a routine manner for awarding compensation. That may open the floodgates of false claims, either to mulct money from the State or as to prevent or thwart further investigation. Courts should, therefore, while jealously protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable Police to discharge their duties fearlessly and effectively. If allegation is not supported by any medical report or other corroborative evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, Courts may not award compensation as a public law remedy under Article 32 or 226, but relegate the aggrieved party to the traditional remedies by way of appropriate civil/criminal action. 8. Therefore, according to us, the aforesaid judgement is supplement to the earlier judgement of AIR 1993 SC 1960 (supra). Of course, the ratio of the judgement on principle has been accepted by the subsequent similar Bench. Our observations are that the case of encounter/fake encounter is far more worse case than the custodial torture. In the case of custodial torture there might be a possibility of collecting an evidence which cannot be available in case of encounter/fake encounter. In the instant case there should be a proof of fake encounter at first thereafter the question of payment of compensation will arise. But since the police has already submitted a report finally before the learned Magistrate and he has accepted, how this Court can run a parallel enquiry to collect the evidence is unknown. One should know what is the prescribed remedy. The remedy is that if the complainant is aggrieved by a final report he can lodge a protest before the learned Magistrate in respect of such final report. The learned Magistrate has four powers to do— (I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. The remedy is that if the complainant is aggrieved by a final report he can lodge a protest before the learned Magistrate in respect of such final report. The learned Magistrate has four powers to do— (I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or (II) He may take cognizance under Section 190 (1) (b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police there is sufficient ground to proceed; or (III) He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner, or (IV) He may, without issuing process or dropping the proceedings decided to take cognizance under S.190 (1) (a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Ss. 200 and 202, Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued. Hence the petitioner cannot be said to be remediless even now. There is no limitation of lodging protest which has been stated by the learned A.G.A. very fairly. 9. Therefore, we are of the view that no relief can be granted to the petitioner in this writ petition now with regard to payment of compensation. Question of encounter or fake encounter has to be evidently proved before the learned Magistrate. The writ Court can only expedite the proceedings if the protest is filed by the petitioner before the Magistrate at the earliest. 10. Hence the writ petition is treated to be disposed of with the direction upon the petitioner to lodge a protest before the Magistrate as expeditiously as possible preferably within a period of fortnight from this date and in such case learned Magistrate will proceed with the same as expeditiously as possible and finalize the issue preferably within a period of three months from the date of lodging such protest. 11. No order is passed as to costs. Honble Shiv Shanker, J.—I agree. Order Accordingly. ———