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2011 DIGILAW 639 (HP)

Satvir Kaur v. State of Himachal Pradesh

2011-02-24

R.B.MISRA, RAJIV SHARMA

body2011
JUDGMENT : Rajiv Sharma, Judge. A letter dated 1.11.2010 addressed by the petitioner to Hon’ble the Chief Justice has been treated as Criminal Writ Petition. 2. Material facts necessary for the adjudication of this criminal petition are that petitioner’s marriage was solemnized with one Sh. Vijender Singh. Petitioner is permanent resident of Jagatpur, Post Office Joghon. Petitioner’s husband Sh. Vijender Singh was attacked by respondents No. 6 to 11, as per the averments contained in the letter dated 1.11.2010. He received multiple injuries on his body. Petitioner alongwith her husband went to Police Post Joghon to lodge the complaint and also for medical examination in the evening. The couple was made to sit in the Police Post till 5.00 P.M. They were told by the police to go to Nalagarh for medical examination. The couple left for Nalagarh around 5-6 P.M. They were also chased by the private respondents. They reached Police Station, Nalagarh and persisted for the registration of an F.I.R. as well as medical examination. The Police personnel, present in the Police Station, were reluctant to register the F.I.R. and also to get the petitioner’s husband medically examined. It was after the great persuasion that the petitioner’s husband was sent for medical examination. He was medically examined and found to have received injuries on his body, as mentioned in daily diary dated 6.6.2010 at page 11 of the paper book. Further investigation was not carried out only on the pretext that the X-ray was to be conducted. 3. Petitioner’s husband left his house on 6.6.2010 on his tractor for refueling. He came back and was seen by the Pradhan of the Gran Panchayat. He was also seen in conversation with the priest at 11.00 P.M. The private respondents were also seen by the villagers around the place where the petitioner’s husband was in conversation with the priest. Petitioner’s husband never came back and the petitioner suspected that her husband has been kidnapped and after killing him, his body has been disposed of. The incident was brought to the notice of police personnel posted at Police Post, Joghon on 7.6.2010. Petitioner met Sub Divisional Police Officer, Nalagarh on 22.6.2010 and thereafter made representation to the Sub Divisional Magistrate, Nalagarh on 24.6.2010. She also narrated the incident to the Superintendent of Police, Baddi on 26.6.2010. She again went to see the Deputy Superintendent of Police on 3.7.2010. Petitioner met Sub Divisional Police Officer, Nalagarh on 22.6.2010 and thereafter made representation to the Sub Divisional Magistrate, Nalagarh on 24.6.2010. She also narrated the incident to the Superintendent of Police, Baddi on 26.6.2010. She again went to see the Deputy Superintendent of Police on 3.7.2010. She went to the Police Station on 11.7.2010 and lodged the complaint. The copy of the complaint is at page 8 of the paper book. However, the fact of the matter is that no F.I.R. was registered even on the basis of complaint dated 11.7.2010 disclosing commission of cognizable offence. 4. Case of the petitioner, in a nutshell, is that despite her best efforts by bringing to the notice of the police that cognizable offence has been committed, no F.I.R. has been registered till date. The Court had directed the Superintendent of Police, Baddi to file his affidavit. The affidavit has been filed by him, sworn on 1.1.2011. 5. We have gone through the contents of the affidavit. Sum and substance of the affidavit is that efforts were made to search the husband of the petitioner. There is no averment why F.I.R. was not registered. Petitioner’s husband was beaten up by the private respondents, as is evident from daily diary dated 6.6.2010. The F.I.R. was required to be registered either at Police Post Joghon or Police Station, Nalagarh. Petitioner was made to sit at Police Post Joghon till 5.00 P.M. and thereafter told to go to Nalagarh. It was with great difficulty that petitioner’s husband was medically examined. Petitioner’s husband has received injuries as per the contents of daily dairy dated 6.6.2010. Petitioner’s husband went missing on 6.6.2010. He was seen alive by the Pradhan of the Gram Panchayat and he was also seen in conversation with the local priest. Private respondents were seen by the villagers around the temple. Petitioner has filed the complaint with the Police Post Joghon on 7.6.2010, as noticed above, met the Sub Divisional Police Officer, Nallagarh on 22.6.2010. The Sub Divisional Magistrate concerned was informed on 24.6.2010 and the Superintendent of Police, Baddi was also informed on 26.6.2010. She again visited the office of Deputy Superintendent of Police on 3.7.2010. Petitioner has filed the complaint with the Police Post Joghon on 7.6.2010, as noticed above, met the Sub Divisional Police Officer, Nallagarh on 22.6.2010. The Sub Divisional Magistrate concerned was informed on 24.6.2010 and the Superintendent of Police, Baddi was also informed on 26.6.2010. She again visited the office of Deputy Superintendent of Police on 3.7.2010. Ultimately, she filed written complaint on 11.7.2010 at page 8 of the paper book at Police Station, Nalagarh mentioning specifically therein that she suspected that her husband has been kidnapped by private respondents and after killing him his body has been disposed of. 6. The facts enumerated hereinabove read with contents of daily diary and complaint dated 11.7.2010 disclose commission of cognizable offence. It was bounden duty of the police to register F.I.R. and to investigate the matter. The affidavit filed by the Superintendent of Police, Baddi does not inspire confidence. It conceals more and reveals less. 7. It is no more res integra that duty is cast upon the police concerned to register the case on receiving information disclosing cognizable offence and genuineness and credibility of the information is not a condition precedent for registration of a case [See (2006) 2 SCC 677]. 8. Their Lordships of the Hon’ble Supreme Court in Lalita Kumari versus Government of Uttar Pradesh and others, (2008) 7 SCC 164 have taken a serious view where there was inaction on the part of police to record F.I.R. Their Lordships have held as under: “4. It is a matter of experience of one of us (B.N. Agrawal, J.) while acting as Judge of the Patna High Court, Chief Justice of the Orissa High Court and Judge of this Court that in spite of law laid down by this Court, the police authorities concerned do not register FIRs unless some direction is given by the Chief Judicial Magistrate or the High Court or this Court. Further, experience shows that even after orders are passed by the courts concerned for registration of the case, the police does not take the necessary steps and when matters are brought to the notice of the inspecting Judges of the High Court during the course of inspection of the courts and Superintendents of Police are taken to task, then only FIRs are registered. In a large number of cases investigations do not commence even after registration of FIRs and in a case like the present one, steps are not taken for recovery of the kidnapped person or apprehending the accused person with reasonable dispatch. At times it has been found that when harsh orders are passed by the members of the judiciary in a State, the police becomes hostile to them, for instance, in Bihar when a bail petition filed by a police personnel, who was the accused was rejected by a member of the Bihar Superior Judicial Service, he was assaulted in the courtroom for which contempt proceeding was initiated by the Patna High Court and the erring police officials were convicted and sentenced to suffer imprisonment. 8. On the other hand, there are innumerable cases that where the complainant is a practical person, FIRs are registered immediately, copies thereof are made over to the complainant on the same day, investigation proceeds with supersonic jet speed, immediate steps are taken for apprehending the accused and recovery of the kidnapped persons and the properties which were the subject-matter of theft or dacoity. In the case before us allegations have been made that the Station House Officer of the police station concerned is pressurising the complainant to withdraw the complaint, which, if true, is a very disturbing state of affairs. We do not know, there may be innumerable such instances. 9. In view of the above, we feel that it is high time to give directions to the Governments of all the States and Union Territories besides their Director Generals of Police/Commissioners of Police as the case may be to the effect that if steps are not taken for registration of FIRs immediately and copies thereof are not made over to the complainants, they may move the Magistrates concerned by filing complaint petitions to give direction to the police to register case immediately upon receipt/production of copy of the orders and make over copy of the FIRs to the complainants, within twenty-four hours of receipt/production of copy of such orders. It may further give direction to take immediate steps for apprehending the accused persons and recovery of kidnapped/abducted persons and properties which were the subject-matter of theft or dacoity. It may further give direction to take immediate steps for apprehending the accused persons and recovery of kidnapped/abducted persons and properties which were the subject-matter of theft or dacoity. In case FIRs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the Magistrate concerned would be justified in initiating contempt proceeding against such delinquent officers and punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them inasmuch as the disciplinary authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same. 10. Keeping these facts in mind, we are of the view that notices should be issued to the Government of all the States and Union Territories besides the Director Generals of Police/Commissioners of Police, as the case may be. 11. Issue notice to the Chief Secretaries of all the States and Union Territories and the Director Generals of Police/Commissioners of Police, as the case may be, to show cause as to why aforesaid directions be not given by this Court. 12. Their Lordships of the Hon’ble Supreme Court in Lallan Chaudhary and othersversus State of Bihar and another, (2006) 12 SCC 229 have held that section 154 of the Code of Criminal Procedure casts a statutory duty upon the police officer to register the case, as disclosed in the complaint, and then to proceed with the investigation. Their Lordships have held as under: “2. This appeal is preferred by the accused, nine in numbers, against the judgment and order dated 8.10.2002 passed by the High Court whereby the High Court directed the concerned Magistrate to proceed in the matter in accordance with law as contained in Section 209 of the Code of Criminal Procedure. 8. Section 154 of the Code thus casts a statutory duty upon police officer to register the case, as disclosed in the complaint, and then to proceed with the investigation. The mandate of Section 154 is manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station, such police officer has no other option except to register the case on the basis of such information. 13. In the case of Ramesh Kumari v. State (NCT of Delhi) and Ors. The mandate of Section 154 is manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station, such police officer has no other option except to register the case on the basis of such information. 13. In the case of Ramesh Kumari v. State (NCT of Delhi) and Ors. (2006) 2 SCC 677 this Court has held that the provision of Section 154 is mandatory. Hence, the police officer concerned is duty-bound to register the case on receiving information disclosing cognizable offence. Genuineness or credibility of the information is not a condition precedent for registration of a case. That can only be considered after registration of the case. 14. The mandate of Section 154 of the Code is that at the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence, the police officer concerned cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not relevant or credible. In other words, reliability, genuineness and credibility of the information are not the conditions precedent for registering a case under Section 154 of the Code. 15. In the present case, undisputedly, the cognizable offences disclosed in the complaint, were under Sections 147, 148, 149, 448, 452, 323 and 395 IPC. The complaint was filed before the Sub-Divisional Judicial Magistrate and the same was endorsed to SHO of concerned Police Station for registering the FIR under Section 154 of the Code. The concerned SHO of the Police Station registered the case only under Sections 452/380/323/34 IPC. Section 395 IPC, which had been disclosed in the complaint, was excluded from the purview of the FIR and resultantly no investigation was carried out by the Police in terms of Section 156 and 157 of the Code of Criminal Procedure. It is well settled principle of law that in criminal trial, investigation is preceded by an FIR on the basis of written complaint or otherwise disclosing the offence said to have been committed by the accused. In the present case, a grave miscarriage of justice has been committed by the SHO of concerned Police Station by not registering an FIR on the basis of offence disclosed in the complaint petition. In the present case, a grave miscarriage of justice has been committed by the SHO of concerned Police Station by not registering an FIR on the basis of offence disclosed in the complaint petition. The concerned police officer is statutorily obliged to register the case on the basis of the offence disclosed in the complaint petition and proceed with investigation in terms of procedure contained under Sections 156 and 157 of the Code. The FIR registered by the Police would clearly disclose that the complaint for offence under Section 395 IPC has been deliberately omitted and, therefore, no investigation, whatsoever, was conducted for the offence under Section 395 IPC. 16. It is unfortunate that the Trial Magistrate has failed to notice that in the complaint filed before the Sub-Divisional Judicial Magistrate an offence under Section 395 IPC has been disclosed, amongst others. The Trial Magistrate accepted the charge framed under Sections 452/323/34 IPC mechanically without application of mind. The District and Sessions Judge also failed to take notice the miscarriage of justice by the Trial Judge. It is, in these circumstances that the High Court has, in our view, justly corrected the error committed by two Courts. In our view, therefore, the impugned order of the High Court does not suffer from any infirmities. 10. In the instant case, Mr. R.K. Sharma, learned Senior Additional Advocate General has only argued that few persons were interrogated. The police has put the cart before the horse. The F.I.R. was required to be registered at the first instance and thereafter the matter was to be investigated. 11. The sequence of events shows complete insensitivity, callousness and apathy on the part of the police. The young lady has been made to run from pillar to post even for registration and investigation of the case. It is the duty cast upon the Senior Police Officers to supervise their subordinates and to see periodically whether the F.I.Rs. are being registered with promptitude and the matter are being investigated in accordance with law or not. In the case in hand, petitioner has visited the offices of Superintendent of Police, Sub Divisional Magistrate and Sub Divisional Police Officer merely for the registration of F.I.R. She has given minute details the manner in which her husband was beaten up by private respondents on 5.6.2010. In the case in hand, petitioner has visited the offices of Superintendent of Police, Sub Divisional Magistrate and Sub Divisional Police Officer merely for the registration of F.I.R. She has given minute details the manner in which her husband was beaten up by private respondents on 5.6.2010. She has narrated the manner in which her husband disappeared on 6.6.2010 after the private respondents were seen on the spot. It was a serious matter and did not brook any delay. Petitioner has inherent right to protect her life as most as the life of her husband, as envisaged under Article 21 of the Constitution of India. The police has shown scant regard to the mandatory provisions of section 154 of the Code of Criminal Procedure and most cherished Article of liberty, i.e. Article 21 of the Constitution of India. It is a case, which requires merely not directing the police to register a case but also to compensate the petitioner for the agony, pain and harassment, she has undergone due to inaction on the part of the police. 17. Their Lordships of the Hon’ble Supreme Court in Nilabati Behera (Smt.) alias Lalita Behera (through the Supreme Court Legal Aid Committee)versus State of Orissa and others, (1993) 2 SCC 746 have held that enforcement of the Constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention. Award of compensation in a proceeding 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. Their Lordships have held as under: “10. In view of the decisions of this Court in Rudul Sah v. State of Bihar (1983) 3 SCR 508 : (AIR 1983 SC 1086), Sebastian M. Homgray v Union of India (1984) 1 SCR 904 : (AIR 1984 SC 571) and (1984) 3 SCR 544 : (AIR 1984 SC 1026), Bhim Singh v. State of J. & K., 1984 (Supp) SCC 504 and (1985) 4 SCC 677 : (AIR 1986 SC 494), Saheli, A Women's Resources Centre v. Commr. of Police, Delhi Police Headquarters (1990) 1 SCC 422 : (AIR 1990 SC 513) and State of Maharashtra v. Ravikant S. Patil (1991) 2 SCC 373 : (1991 AIR SCW 871) the liability of the State of Orissa in the present case to pay the compensation cannot be doubted and was rightly not disputed by the learned Additional Solicitor General. it would, however, be appropriate to spell out clearly the principle on which the liability of the State arises in such cases for payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in an action on tort. It may be mentioned straightway that award of compensation in a proceeding under Art. 32 by this Court or by the High Court under Art. 226 of the Constitution 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. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings. We shall now refer to the earlier decisions of this Court as well as some other decisions before further discussion of this principle. 16. Lord Hailsham while dissenting from the majority regarding the liability for compensation in that case, concurred with the majority opinion on this principle and stated at page 687, thus :".............. I am simply saying that, on the view I take, the expression 'redress' in sub-s. (1) of S. 6 and the expression 'enforcement' in sub-s. (2), 'although capable of embracing damages where damages are available as part of the legal consequences of contravention, do not confer and are not in the context capable of being construed so as to confer a right of damages where they have not hitherto been available, in this case against the state for the judicial errors of a judge ................." Thus, on this principle, the view was unanimous, that enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention. 17. 17. It follows 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 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 State 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 to Arts. 32 and 226 of the Constitution. This is what was indicated in Rudul Sah (AIR 1983 SC 1086) and is the basis of the subsequent decisions in which compensation was awarded under Arts. 32 and 226 of the Constitution, for contravention of fundamental rights. 22. The above discussion indicates the principle on which the Court's power under Arts. 32 and 226 of the Constitution is exercised to award monetary compensation for contravention of a fundamental right. This was indicated in Rudul Sah (AIR 1983 SC 1086) and certain further observations therein adverted to earlier, 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 this Court in Rudul Sah and others in that line have to be understood and Kasturilal (AIR 1965 SC 1039) distinguished therefrom. We have considered this question at some length in view of the doubt raised, at times, about the propriety of awarding compensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. We have considered this question at some length in view of the doubt raised, at times, about the propriety of awarding compensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is a clear case for award of compensation to the petitioner for the custodial death of her son.” 18. Similarly, their Lordships of the Hon’ble Supreme Court in Punjab and Haryana High Court Bar Associationversus State of Punjab and others(1996) 4 SCC 742 have held as under: “2. The abduction and murder of Kulwant Singh and his family was the most heinous crime against humanity. It has taken a mysterious and an extremely shocking turn by the finding of the CBI that Harpreet Singh Lucky has been falsely implicated in the case. The CBI report indicates that under pressure from the police and finding no other alternative to save his life he agreed to their proposal to accept the murder of Kulwant Singh and his family members. Mr Navkiran Singh has rightly contended that the least this court can do at this stage is to compensate the old parents of Kulwant Singh. J.S. Verma, J. speaking for this court in Nilabali Behera v. State of orissa held as under "It follows 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 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. 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. 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 State 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 to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights * * * WE respectfully concur with the view that the court is not helpless and the wide powers given to this court by Article 32, which itself is a fundamental right, imposes a constitutional obligation on this 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 this 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 the 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. 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 be 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 We may also refer to Article 9(5 of the International Covenant on Civil and Political Rights, 1966 which indicates that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right, Article 9(5 reads as under: 'Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.' " We direct the Punjab government through secretary to government, Home Department to pay a sum of Rs. 10,00,000.00 (ten lakhs) to the parents (father and mother) of Kulwant Singh, Advocate as compensation. The payment shall be made within two months of the receipt of this order. 3. Regarding Harpreet Singh Lucky the CBI reached the following conclusion: "Facts emerging from the investigation lead us unequivocally and decisively to conclude that Harpreet Singh Lucky is not responsible for the abduction or murder of Kulwant Singh, Advocate and his family." The police officers falsely implicated Harpreet Singh Lucky in the case. We direct that he be released from jail forthwith. 19. We further direct the Punjab government through secretary to government, Home Department to pay a sum of Rs. 2,00,000.00 (two lakhs) to Harpreet Singh Lucky as compensation for the sufferings caused to him because of the false implication in the case in particular his remaining in jail for a long period, a The amount of compensation shall be paid within two months of the receipt of this order. We further direct the Home secretary, State of Punjab to provide security, if he considers it necessary, to Harpreet Lucky. We further direct that in the event of conviction of the police officers, the amount of compensation paid to Harpreet Lucky shall be recovered from them personally.” 14. We further direct the Home secretary, State of Punjab to provide security, if he considers it necessary, to Harpreet Lucky. We further direct that in the event of conviction of the police officers, the amount of compensation paid to Harpreet Lucky shall be recovered from them personally.” 14. In D.K. Basu versus State of West Bengal, (1997) 1 SCC 416, their Lordships of the Hon’ble Supreme Court have held that custodial violence, torture, rape, death in police custody/lock infringes Article 21 of the Constitution of India as well as basic human rights and strikes a blow at rule of law. Their Lordships have reiterated earlier principles for established breach of fundamental rights and held that compensation can be granted under public law by the Supreme Court and by the High Courts in addition to private law remedy for tortiuous action and punishment to wrongdoer under criminal law. Their Lordships have held as under: “40. - There is no wrong without a remedy. The law wills that in every case where a man is wronged and endamaged he must have a remedy. A mere declaration of invalidity of an action or finding of custodial violence or death in lock-up, does not by itself provide any meaningful remedy to a person whose fundamental right to life has been infringed. Mush more needs to be done. 42. Article 9(5) of the International Covenant on Civil and Political Rights, 1966 (ICCPR) provides that "anyone who has been the victim of unlawful arrest or detention shall have enforceable right to compensation". Of course, the Government of India at the time of its ratification (of ICCOR) in 1979 had made a specific reservation to the effect that the Indian legal system does not recognise a right to compensation for victims of unlawful arrest or detention and thus did not become a party to Covenant. That reservation, however, has now lost its relevance in view of the law laid down by this Court in a number of cases awarding compensation for the infringement of the fundamental right to life of a citizen. That reservation, however, has now lost its relevance in view of the law laid down by this Court in a number of cases awarding compensation for the infringement of the fundamental right to life of a citizen. (See with advantage Rudal Shah v. State of Bihar, (1983) 4 SCC 141 : (AIR 1983 SC 1086; Sebastian M. Hongrey v. Union of India; Rajendra Singh v. Smt. Usha Rani, (1984) 3 SCC 339 : (AIR 1984 SC 956), (1984) 3 SCC 82 : (AIR 1984 SC 1026); Bhim Singh v. state of Jammu and Kashmir 1984 (Supp) SCC 504 and (1985) 4 SCC 677 : (AIR 1986 SC 494), Saheli v. Commissioner of Police, Delhi, (1990) 1 SCC 422 : (AIR 1990 SC 513). There is indeed no express provision in the Constitution of India for grant of compensation for violation of a fundamental right to life, nonetheless, this Court has judicially evolved a right to compensation in cases of established unconstitutional deprivation of personal liberty or life. (See : Neelabati Behera v. State (1993 AIR SCW 2366) (supra)). 44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to he claim available in private law for damages for tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrong doer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen. 45. 45. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the Courts too much, as the protector and custodian of the indefeasible rights of the citizen. The Courts have the obligation to satisfy the social aspirations of the citizen because the Courts and the law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim - civil action for damages is a long drawn and cumbersome judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, a useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the bread winner of the family. 54. Thus, to sum up, it is now a well accepted proposition in most of the jurisdiction, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the Criminal Courts in which the offender is prosecuted, which the State, in law, is duly bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortuous act committed by the functionaries of the State. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortuous act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.” 20. Similarly, in versus, (1997) 3 SCC 433, their Lordships of the Hon’ble Supreme Court in a case of custodial death had directed the Manipur State to pay ` one lakh each to the families of each of the deceased. Their Lordships have held as under: “9. In Nilabati Behera alias Lalita Behera v. State of Orissa, (1993) 2 SCC 746 : (1993 AIR SCW 2366), this Court [J.S.Verma, Dr. A.S.Anand and N.Venkatachala, JJ.] held that award of compensation in a proceeding under Article 32 by the Supreme Court or under Article 226 by the High Court is a remedy available in public law based on strict liability for contravention of fundamental rights. It is held that the defence of sovereign immunity does not apply in such a case even though it may be available as a defence in private law in an action based on tort. It is held further that the award of damages by the Supreme Court or the High Court in a writ proceeding is distinct from and in addition to the remedy in private law for damages. It is one mode of enforcing the fundamental rights by this Court or High Court. It is held further that the award of damages by the Supreme Court or the High Court in a writ proceeding is distinct from and in addition to the remedy in private law for damages. It is one mode of enforcing the fundamental rights by this Court or High Court. Reliance is placed upon Article 9(5) of the International Covenant on Civil and Political Rights, 1966 which says, "anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation." The two opinions rendered by J.S.Verma, J. and Dr.A.S. Anand, J. are unanimous on the aforesaid dicta. The same view has been reiterated very recently by a Bench comprising Kuldip Singh and Dr. A.S. Anand, JJ. in D. K. Basu v. State of West Bengal [1996(9) SCALE 298]. The observations in Para 56 of the judgment are apposite and may be quoted: "Thus, to sum up, it is now a well accepted proposition in most of the jurisdiction, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometime perhaps the only suitable remedy for redressal of the established infringement of the fundamental right of life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal Courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damage which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortuous act committed by the functionaries of the State. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damage which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortuous act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizens, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit." 14. Now coming to the facts of the case, we are of the opinion that award of compensation of Rs.1,00,000/-[ Rupees one lakh only] to the families of each of the deceased would be appropriate and just. The same shall be paid by the Government of Manipur. The Collector/ District Magistrate, Churachandpur shall hand over the cheques to the respective families of the deceased, namely Lalbeiklien and Saikaplien, whithin two months from today. The writ Petition is disposed of accordingly. The people's Union for Civil Liberties, which has filed this writ petition and pursued it all these years shall be entitled to its costs, assessed at Rs.10,000/-[Rupees ten thousand only] payable by the State of Manipur within the same period.” 21. Their Lordships of the Hon’ble Supreme Court in P.A. Narayanan versus Union of India and others, (1998) 3 SCC 67, in a case of rape, robbery and murder in running train, Railways like all carriers were held liable to owe common law duty to take reasonable care. Railways were held liable for complete dereliction of duty of its staff and the deceased’s husband was held entitled to compensation instead of relegating him to Claims Tribunal or civil court after a lapse of 17 years. Their Lordships have held as under: “8. There is a common law duty of taking reasonable care which must be attached to all carriers including the railways. Their Lordships have held as under: “8. There is a common law duty of taking reasonable care which must be attached to all carriers including the railways. In this case, there has been a breach of that duty and the negligence on the part of the railway staff is writ large. Had the train been stopped and first-aid provided when the alarm chain was pulled, the possibility that the deceased may not have met her death, even after the assault in the course of robbery, is a possibility which we cannot totally rule out. The manner in which the guard and the motorman acted exposes a total casual approach on their part. Because of the failure of those railway officials, a precious life has been lost. 10. Mr. Goswami, learned counsel appearing for the railway administration does not dispute that under the new Act, there is statutory liability on the railways but submits that the 1989 Act does not have any retrospective operation. We do not wish to go into that question in this case and leave that issue open. We are resting our case on the breach of common law duty of reasonable care, which lies upon all carriers including the railways. The standard of care is high and strict. It is not a case where the omission on the part of the railway officials can be said to be wholly unforeseen or beyond their control. Here there has been a complete dereliction of duty which resulted in a precious life been taken away, rendering the guarantee under Article 21 of the Constitution illusory. Had the deceased not pulled the alarm chain with a view to stop the train, the position might have been different. Liability in this case is fault based. Such a liability is not inconsistent with the scheme of the Railways Act of 1890 either (Refer Section 80 with advantage). The proof of a fault in this case is strong and Mr. Goswami has not rightly challenged it either. To relegate the appellant to approach the Railway Claims Tribunal or the Civil Court, as suggested by Mr. Goswami, does not appear to us to be proper. More than 17 years have already gone by since the occurrence and, therefore, it appears appropriate to us to give a quietus to this litigation now. 11. To relegate the appellant to approach the Railway Claims Tribunal or the Civil Court, as suggested by Mr. Goswami, does not appear to us to be proper. More than 17 years have already gone by since the occurrence and, therefore, it appears appropriate to us to give a quietus to this litigation now. 11. In the established facts and circumstances of this particular case, keeping in view the evidence of the guard and the motorman, and with a view to do complete justice between the parties, it appears appropriate to us to award a sum of Rupees 2,00,000/-(Rupees two lakhs) as compensation to the appellant for the death of his wife. This amount shall be in addition to Rs. 50,000 (Rupees fifty thousand) which had been given by the State Government in 1981 as exgratia in favour of the son of the appellant. The amount of Rs. 2 lakhs shall be paid to the appellant on or before 31st March, 1998.” 22. Similarly, their Lordships of the Hon’ble Supreme Court in Murti Devi versus State of Delhi and others, (1998) 9 SCC 604 in a case where the under-trial prisoner has died in jail, a compensation of Rs. 2,50,000/- was directed to be paid to the deceased’s mother by the State. Their Lordships have held as under: “1. Heard Mr Sodhi, learned counsel appearing for the appellant and Mr Subba Rao, the learned counsel for the respondent-State of Delhi. This writ petition has been presented by the petitioner Murti Devi for appropriate compensation for the death of an undertrial prisoner Raj Kumar who while kept in judicial custody in Tihar Jail had been seriously assaulted inside the jail and on account of injuries suffered by him died after being admitted in a Delhi hospital. Initially, the jail authorities made an attempt to assert that the said undertrial prisoner Raj Kumar was a drug addict and presumably as a consequence of withdrawal symptoms had suffered some injuries and also on account of an old injury in kidney, he had died. Such case of the jail authorities had been demonstrated to be false by the post-mortem report indicating that there were no such withdrawal symptoms andme doctor who held post-mortem examination had noticed a number of injuries on the person of the deceased. Such case of the jail authorities had been demonstrated to be false by the post-mortem report indicating that there were no such withdrawal symptoms andme doctor who held post-mortem examination had noticed a number of injuries on the person of the deceased. It appears that later on the jail authorities came up with a case that the said undertrial prisoner was assaulted by some of the convicts in the jail for which a criminal case has been initiated against the offending convicts. It has also been established that prompt and appropriate action in rendering medical aid in a hospital was also not given to the said deceased. Whether the said undertrial prisoner had really been assaulted by the convicts or he was assaulted by the Jail Warden and his associates may be ultimately decided in the criminal case stated to be pending. We may only indicate that the pending criminal case should be conducted with utmost seriousness and should be completed as early as practicable. There is no manner of doubt that because of the gross negligence on the part of the jail authorities, the said Raj Kumar, an undertrial prisoner in Tihar Jail, was subjected to serious injuries inside the jail which ultimately caused his death. It has been stated by the petitioner, Murti Devi, the mother of the said deceased, that the said Raj Kumar was the only bread-earner in the family and today she has become a helpless widow with three sons to be maintained. As it was the bounden duty of the jail authorities to protect the life of an undertrial prisoner lodged in the jail and as in the instant case such authorities had failed to ensure safety and security to the said unfortunate undertrial accused, we direct the respondent to pay a sum of Rs. 2,50,000.00 to the petitioner Murti Devi within a period of six weeks from today. Out of the said amount, rupees two lakhs should be kept in fixed deposit in the name of the said Murti Devi in a nationalised bank for a period of five years so that she can maintain herself and members of the family out of the interest accruing on the said fixed deposit. The balance sum of Rs. 50,000.00 should be handed over to the said Murti Devi within the period of six weeks from today against proper receipts. The balance sum of Rs. 50,000.00 should be handed over to the said Murti Devi within the period of six weeks from today against proper receipts. After the said period of five years the petitioner Murti Devi or her legal heirs and successors as the case may be will be free to utilise the said sum of rupees two lakhs according to their desire.” 23. Their Lordships of the Hon’ble Supreme Court in Chairman, Railway Board and others versus Chandrima Das (Mrs.) and others, (2000) 2 SCC 465 have held that the public law remedies have also been extended to the realm of tort and the Court can award compensation to petitioners who suffer personal injuries amounting to tortiuous acts at the hand of officers of the Government. Their Lordships have held as under: “9. Various aspects of the Public Law field were considered. It was found that though initially a petition under Article 226 of the Constitution relating to contractual matters was held not to lie, the law underwent a change by subsequent decisions and it was noticed that even though the petition may relate essentially to a contractual matter, it would still be amenable to the writ jurisdiction of the High Court under Article 226. The Public Law remedies have also been extended to the realm of tort. This Court, in its various decisions, has entertained petitions under Article 32 of the Constitution on a number of occasions and has awarded compensation to the petitioners who had suffered personal injuries at the hands of the officers of the Govt. The causing of injuries, which amounted to tortious act, was compensated by this Court in many of its decisions beginning from Rudul Sah v. State of Bihar, (1983) 3 SCR 508 : (1983) 4 SCC 141 : AIR 1983 SC 1086. [See also Bhim Singh v. State of Jammu and Kashmir, (1985) 4 SCC 577 : AIR 1986 SC 494; People's Union for Democratic Rights v. State of Bihar, (1987) 1 SCR 631 : (1987) 1 SCC 265 : AIR 1987 SC 355; People's Union for Democratic Rights Thru. Its Secy. [See also Bhim Singh v. State of Jammu and Kashmir, (1985) 4 SCC 577 : AIR 1986 SC 494; People's Union for Democratic Rights v. State of Bihar, (1987) 1 SCR 631 : (1987) 1 SCC 265 : AIR 1987 SC 355; People's Union for Democratic Rights Thru. Its Secy. v. Police Commissioner, Delhi Police Headquarters, (1989) 4 SCC 730 : 1989 (1) SCALE 598; Saheli, A Women's Resources Centre v. Commissioner of Police, Delhi, (1990) 1 SCC 422 : 1989 Supp (2) SCR 488 : AIR 1990 SC 513; Arvinder Singh Bagga v. State of U. P., (1994) 6 SCC 565 : AIR 1995 SC 117 : (1994 AIR SCW 4148); P. Rathinam v. Union of India, 1989 Supp (2) SCC 716; In Re: Death of Sawinder Singh Grower, (1995) Supp (4) SCC 450 : (1992) 6 JT (SC) 271 : 1992 (3) SCALE 34 (2); Inder Singh v. State of Punjab, (1995) 3 SCC 702 : AIR 1995 SC 1949 : (1995 AIR SCW 3037); D. K. Basu v. State of West Bengal, (1997) 1 SCC 416 : AIR 1997 SC 610 : (1997 AIR SCW 233)]. 11. Having regard to what has been stated above, the contention that Smt. Hanuffa Khatoon should have approached the Civil Court for damages and the matter should not have been considered in a petition under Article 226 of the Constitution, cannot be accepted. Where public functionaries are involved and the matter relates to the violation of Fundamental Rights or the enforcement of public duties, the remedy would still be available under the Public Law notwithstanding that a suit could be filed for damages under Private Law. 12. In the instant case, it is not a mere matter of violation of an ordinary right of a person but the violation of Fundamental Rights which is involved. Smt. Hanuffa Khatoon was a victim of rape. This Court in Bodhisattwa v. Ms. Subhra Chakraborty, (1996) 1 SCC 490 : (1996 AIR SCW 325 : AIR 1996 SC 922) has held "rape" as an offence which is violative of the Fundamental Right of a person guaranteed under Article 21 of the Constitution. The Court observed as under (Para 10 of AIR): "Rape is a crime not only against the person of a woman, it is a crime against the entire society. The Court observed as under (Para 10 of AIR): "Rape is a crime not only against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Rape is therefore the most hated crime. It is a crime against basic human rights and is violative of the victims most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21." 24. Accordingly, in view of the observations and discussions made hereinabove, the criminal petition is allowed. Respondent No.3 is directed to register F.I.R. on the basis of contents of complaint dated 11.7.2010. This direction has been issued to the Superintendent of Police to record the F.I.R. since respondents No.4 and 5 are remiss in discharge of their duties. The investigation shall be carried out by a person not below the rank of Deputy Superintendent of Police to be specially nominated by respondent No.2. The investigation shall be completed within a period of three weeks from today and on the completion of the investigation, challan shall be put up in the competent court of jurisdiction. The petitioner is held entitled to compensation amounting to Rs. 1,00,000/- to be paid by the respondent-State. However, liberty is reserved to the respondent-State to recover this amount from the salary of erring officials/officers. No costs.