A. P. LAVANDE:- By this petition under Article 226 of the Constitution of India. the petitioners seek direction against respondent no. 1 to pay compensation of Rs. Ten lakhs to the heirs of the deceased Inderjitsingh Anantsingh Chauhan, the son of petitioner no. 1 and brother of petitioner no.2 for the custodial death of Inderjitsingh. 2. Briefly, the case of the petitioners is as under:- Inderjitsingh was working with Nagar Parishad, Pusad as peon in the year 2004 and was earning gross salary of Rs. 5893/- He was having three children namely Master Pavankumar, Ku. Pooja and Master Suraj. who were aged 17 years, 16 years and 12 years respectively at the relevant time. The wife of Inderjitsingh had already expired 67 years back. Inderjitsingh was arrested on 24.10.2003 for offence under Section 307 of the Indian Penal Code alleged to have been committed by him and he was taken in custody by Officer Incharge of Pusad Police Station. The Policy Custody remand was obtained till 28.10.2003. lnderjitsingh was ill-treated in police custody and, therefore, he was referred for medical examination the next day and he was sent to Yavatmal Medical College and brought back to the Police Station on 26.10.2003. On 27.10.2003 Inderjitsingh told petitioner no.2 that he was suffering ill-treatment at the hands of the Police in the Police Station and he was not provided with food by Police. Petitioner no.2 was called at about 2.00 a. m. on 28.10.2003 on the ground that Inderjitsingh was not keeping well. He was taken to Yavatmal Medical College at 4.00 a. m. The Medical Officer on duty at the hospital noted that InderJitsingh was brought dead. The body was sent for post-mortem examination, which was conducted on 28.10.2003 by panel of doctors. The post - mortem report revealed that deceased had antemortem injuries. Since the deceased had died in policy custody, the investigation was taken up by C.I.D. Yavatmal and offence punishable under Section 302 of the Indian Penal Code was registered against ten police officers respondents 5 to 14. On account of custodial death of Inderjitsingh at the hands of police personnel. writ petition was initially filed by the petitioners against respondents 1 to 4 seeking compensation of Rs. Ten lakhs and direction to respondent no.3 to complete investigation expeditiously. Thereafter respondents 5 to 14 were added as parties to the petition. 3. On 7.9.2004 affidavit of Amitesh Kumar. On account of custodial death of Inderjitsingh at the hands of police personnel. writ petition was initially filed by the petitioners against respondents 1 to 4 seeking compensation of Rs. Ten lakhs and direction to respondent no.3 to complete investigation expeditiously. Thereafter respondents 5 to 14 were added as parties to the petition. 3. On 7.9.2004 affidavit of Amitesh Kumar. Superintendent of Police. Yavatmal was filed. [n the said affidavit it has been stated that deceased Inderjitsingh was habitual and harden criminal and he was in habit of committing offences like assault, criminal intimidation and property offences. There were seven offences registered against him at Pusad police station. It is further stated that on 24.10.2003 Inderjitsingh was arrested for offences punishable under Sections 307. 353 read with Section 34 of the Indian Penal Code registered vide Crime No.260/2003 in Pusad police station. pursuant to the report lodged by Kailash Nimbarte. Since Inderjitsingh died accidental death A.D. 31/2003 was registered and since it was a case of custodial death, inquest panchanama was conducted by Tahsildar and the body was referred for the examination to Government Medical College, and the post-mortem was conducted by panel of three doctors. Thereafter the investigation in Crime No. 260/2003 was handed over to C.I.D. Crime. Yavatmal. During investigation of the crime, respondent no.3 registered offences punishable under Sections 302 and 201 of the Indian Penal Code vide Crime No.94/2004 against respondents 5 to 14. It was further stated that the investigation was In progress. 4. On 8th September, 2004 respondent no.3 filed return. In para 6 of the return, it has been stated that during the investigation of the crime, it was revealed that Inderjitsingh died in custody on account of ill-treatment given to him while in police custody and. therefore. Crime no.94/2004 was registered under Sections 302 and 201 of the Indian Penal Code against the respondents 5 to 14. It has been further stated in paragraph 7 of the return that Inderjitsingh expired on account of beating in the police station. which took place on 27.10.003 between 14.30 hours to 23.00 hours. 5. On behalf of respondent no.5 return has been filed contesting the claim of the petitioners. It is the case of respondent no.5 that deceased Inderjitsingh suffered bodily injuries in the incident which had taken place on 24.10.2003. 6. On behalf of respondent nos. which took place on 27.10.003 between 14.30 hours to 23.00 hours. 5. On behalf of respondent no.5 return has been filed contesting the claim of the petitioners. It is the case of respondent no.5 that deceased Inderjitsingh suffered bodily injuries in the incident which had taken place on 24.10.2003. 6. On behalf of respondent nos. 6 to 14 submissions have also been filed denying the claim of the petitioners. 7. Mr. Marathe, learned counsel for the petitioners submitted that since Inderjitsingh died while in police custody of Pusad police station on account of injuries suffered by him at the hands of the police officers. the petitioners and children of Inderjitsingh arc entitled to compensation. He further submitted that respondent no.1 be directed to pay compensation of Rs. Ten lakhs to the heirs of deceased on account of custodial death without prejudice to their rights to claim compensation by resorting to appropriate remedies under ordinary laws. In support of his submission that the petitioners and children of the deceased are entitled to compensation from the respondent no.1 Mr. Marathe relied upon the following authorities:- (i) Nilabati Behera Vs. State of Orissa and others: (1993)2 SCC 746 ; (ii) State of Maharashtra Vs. Christian Community Welfare Council of India and another: (2003)8 SCC 546 ; (iii) S.P.S. Rathore Vs. State of Haryana & others: (2005)10 SCC 1 : (iv) Sube Singh Vs. State of Haryana and others: (2006)3 SCC 178 : and (v) Pratibha Manoj Verma & others Vs. State of Maharashtra and others (unreported judgment dated 21.10.2009 passed by the Division Bench of this Court.) 8. Mrs. Dangre, learned Additional Public Prosecutor for respondents 1 to 4 submitted that charge-sheet was filed against respondents 5 to 14 for offences punishable under Sections 302 and 201 of the Indian Penal Code and the trial is pending against respondents 5 to 14 before the Additional Sessions Judge. Pusad. She further submitted that the compensation claimed by the petitioners is highly excessive and. therefore. they are not entitled to the compensation claimed. In the alternative. Mrs. Dangre submitted that in the event respondent no. 1 is directed to pay compensation. as may be fixed by this Court, liberty be granted to respondent no. 1 to recover the compensation from the erring officers responsible for causing death of Inderjitsingh after holding an inquiry. 9. Mr. Dhore, learned counsel for respondents 5 and Mr. In the alternative. Mrs. Dangre submitted that in the event respondent no. 1 is directed to pay compensation. as may be fixed by this Court, liberty be granted to respondent no. 1 to recover the compensation from the erring officers responsible for causing death of Inderjitsingh after holding an inquiry. 9. Mr. Dhore, learned counsel for respondents 5 and Mr. Deshmukh learned counsel for respondents 6 to 14 submitted that since Sessions Trial is pending against respondents 5 to 14 and the offences have not yet been established against them, the heirs of deceased Inderjitsingh are not entitled to any compensation from them. 10. We have carefully considered the submissions made by learned counsel for the parties and perused record and the judgments relied upon. 11. The returns filed by respondents 2 and 3 to which we have made reference herein above clearly discloses that it is the case of respondents 1 to 4 that deceased Inderjitsingh died on account of the injuries suffered by him while in police custody at Pusad police station between 14.30 hours to 23.00 hours and the charge-sheet has been filed under Sections 302 and 201 of the Indian Penal Code against respondents 5 to 14 and the trial is pending before the Additional Sessions' Judge, Pusad. Therefore, the case of the petitioners that deceased InderJitsingh died while in custody on account of injuries inflicted is established. The defence taken by respondent no.2 that Inderjitsingh was criminal and several cases were pending against him cannot be of any consequence since even a criminal has a right to protect his liberty and his liberty cannot be interfered with on the spacious plea that he is a criminal. 12. In the case of Nilabati Bchera (supra) the Apex Court acting upon the letter sent by Smt. Nilabati Behera bringing to the notice of the Apex Court death of his son Suman while in police custody, held that Suman had died while in police custody and awarded compensation of Rs. 1.50.000/- to the petitioner against the State of Orissa on account of custodial death of Suman. In the said judgment, the Apex Court observed as under:- "Enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequence of its contravention. 1.50.000/- to the petitioner against the State of Orissa on account of custodial death of Suman. In the said judgment, the Apex Court observed as under:- "Enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequence of its contravention. A ward of compensation in a proceeding under Article 32 by the Supreme Court or by the High Court under Article 32 by the Supreme Court or by the High Court under Article 226 is a remedy available in public law; based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. '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 rights 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. The defence of sovereign Immunity being inapplicable. and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the Stale or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse of Articles 32 and 226. This is what was indicated in Rudul Shah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226, for contravention of fundamental rights. Certain further observations in Rudul Sah which may tend to minimise the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of the Supreme Court in Rudul Shah and others in that line have to be understood and Kasturilal distinguished therefrom. Certain further observations in Rudul Sah which may tend to minimise the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of the Supreme Court in Rudul Shah and others in that line have to be understood and Kasturilal distinguished therefrom. The Court is not helpless and the wide powers given to the Supreme Court by Article 32. which itself is a fundamental right, imposes a constitutional obligation on the Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available The power available to the Supreme Court under Article 142 is also an enabling provision in this behalf. The contrary view would not merely render the Court powerless and the constitutional guarantee a mirage, but may, in certain situations, be an incentive to extinguish life, if for the extreme contravention the Court is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence and recovery of damages under private law, by ordinary process. If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to he more readily available when invoked by the have-nots, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies. where more appropriate. Article 9(5) of the International Convenant on Civil and Political Rights, 1966 (which reads "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation also indicates that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right". 13. where more appropriate. Article 9(5) of the International Convenant on Civil and Political Rights, 1966 (which reads "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation also indicates that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right". 13. In the case of Christian Community Welfare Council of India and another (supra) the Division Bench of this Court directed the State Government to pay compensation Rs.1 ,50,000/- to the widow of the deceased Junious Adam Illamatti, resident of Ajini Railway Colony, who died while in police custody. The Apex Court upheld the order of this Court and directed the payment of compensation. However, the Apex Court held that whether the compensation paid by the State can be recovered from erring police officers concerned would depend upon the fact whether the alleged misdeed by the officer concerned was committed in the course of the discharge of his lawful duties, beyond or in excess of the same which will have to be determined in a proper inquiry. 14. In the case of S.P.S. Rathore (supra) the Apex Court held that the High Courts and the Supreme Court are entitled to award compensation for violation of fundamental rights but such a power should not be lightly exercised. The Apex Court considered the various authorities dealing with the power of the High Courts and the Supreme Court to award compensation for violation of the fundamental rights. 15. In the case of Sube Singh (supra) the Apex Court reiterated that the Supreme Court and the High Courts while exercising power under Article 32 and 226 of the Constitution of India may award compensation in cases of violation under Article 21 of the Constitution involving custodial death or torture if the same is established and further held that If the same is not established by medical evidence or other corroborative evidence, the aggrieved party must he relegated to traditional remedies available under civil/ criminal law. The Apex Court further held that the award of compensation would not affect the right to claim additional compensation by way of civil or criminal action. In the said case, the Apex Court held that there was no clear incontrovertible evidence about custodial torture and. therefore, did not grant any compensation. 16. The Apex Court further held that the award of compensation would not affect the right to claim additional compensation by way of civil or criminal action. In the said case, the Apex Court held that there was no clear incontrovertible evidence about custodial torture and. therefore, did not grant any compensation. 16. The Division Bench of this Court in the case of Pratibha Manoj Verma (supra) granted compensation of Rs.Seven lakhs to the petitioner, the wife of Manoj, who died in the custody of Police Station, Ganeshpeth. Similar defence that deceased Mano] was history sheeter and that about 26 cases were pending against hi m were taken. This Court held that such a plea could not be a defence to a charge of custodial death. 17. The judgments of the Apex Court and the Division Bench of this Court to which we have made reference herein above clearly establish that the High Court in exercise of jurisdiction under Article 226 of the Constitution of lndia is entitled to award compensation in case custodial death of the person arrested is established. In the present case, it is the case of respondents 1 to 4 that deceased Inderjitsingh died while in police custody on account of injuries suffered by him between 14.30 hours to 23.00 hours on account of assault. Therefore, custodial death of Inderjitsingh is clearly established. Therefore. in the light of principles laid down by the Apex Court in the above referred judgments, the heirs of deceased are entitled to compensation from respondent no. 1. 18. The next question which arises for consideration is what would be just compensation, which deserves to be awarded in favour of the heirs of deceased Inderjitsingh. The salary slip issued by Nagar Parishad. Pusad discloses that at the relevant time deceased Inderjitsingh was serving as Peon and was earning monthly gross salary of Rs. 5893/- and he was aged about 40 years. Considering the age of deceased Inderjitsingh and his monthly salary. we .are of the considered opinion that it would be just and proper to award compensation of Rs. Five lakhs in favour of heirs of the deceased Inderjitsingh, Besides the petitioners, his three children Pavankumar, Poop and Suraj are also entitled to compensation. We hold that the petitioners and three children of deceased Inderjitsingh are entitled to compensation of Rs. Five lakhs. We direct respondent no. Five lakhs in favour of heirs of the deceased Inderjitsingh, Besides the petitioners, his three children Pavankumar, Poop and Suraj are also entitled to compensation. We hold that the petitioners and three children of deceased Inderjitsingh are entitled to compensation of Rs. Five lakhs. We direct respondent no. I to deposit the amount of Rs. Five lakhs in this Court within a period of three months. It is made clear that the award of compensation will not affect any other liability of the respondents or any other person flowing from the custodial death of Inderjitsingh. However, if any other proceeding is taken by the petitioners or the children of lnderjitsingh, the amount warded shall be taken into account for adjustment. 19. Mr. Marathe, learned counsel for the petitioners submitted that the petitioners are not in a position to travel all the way to Nagpur to collect the amount or the interest thereon If the amount IS ordered to be invested 111 a Bank. We, therefore, direct the Registry of this Court to forthwith transfer the amount after the same is deposited in this Court to the Court of Additional District Court, Pusad. The Additional District Judge. Pusad shall pay an amount of Rs. 50.000/- to petitioner no. 1 and Rs.30.000/- to petitioner no. 1 for and on behalf of the children of deceased Inderjitsingh to meet their educational and other daily needs. An amount of Rs.20.000/- shall be paid to petitioner no.2. The balance amount of Rs.4.00.000/- shall be invested in any Nationalised Bank in equal shares in the names of petitioners and the children of deceased Inderjitsingh. Insofar as Master Suraj. who IS presently minor, is concerned. the amount shall be invested in joint name of petitioner no. 1 and Master Suraj in any Nationalised Bank for a period of three years. Yearly interest shall be paid to the respective parties and insofar as Master Suraj is concerned, the interest shall be paid to petitioner no.1. The parties are at liberty to apply for withdrawal of the part of the amount invested in their names. if the need arises. The Additional District judge shall verify the need if it is genuine before permitting the parties to withdraw the amount. 20. We have directed respondent no.1 to pay compensation of Rs. Five Lakhs to the heirs of the deceased Inderjitsingh. if the need arises. The Additional District judge shall verify the need if it is genuine before permitting the parties to withdraw the amount. 20. We have directed respondent no.1 to pay compensation of Rs. Five Lakhs to the heirs of the deceased Inderjitsingh. In view of judgment in the case of Christian Community Welfare Council of India(supra) we have not directed respondent nos. 5 to 14 to pay any compensation since their liability to pay compensation has not yet been established. We direct respondent no. 1 to hold an enquiry to find out the police officials responsible for the custodial death of Inderjitsingh and recover the compensation from the concerned police officials after giving them opportunity of being heard. The enquiry shall be conducted by a responsible officer to be appointed by respondent no.1. Respondent no.1 shall file compliance report in this Court regarding recovery of the amount from erring police officials on or before 30th June, 2010. Respondent no. 1 shall pay costs of Rs.5,000/• to the petitioners. 21. Rule IS made absolute in the aforesaid terms.