JUDGMENT : Rajiv Sharma, J. 1. King John was forced to sign the Magna Carta in 1215 and it was demanded that: "Ne Corpus liberi hominis capiatur nec imprisonetur nec dissaisetur nec utlagetur nec exuletur nec aliquot modo destruator nec vex eat vel mittat super eum vi nisi per judicium parium suorum vel per legem terre" which means, "No free man shall be taken, or imprisoned or disseised or outlawed or banished or any ways destroyed, nor will the King pass upon him or commit him to prison, unless by the judgment of his peers or the law of the land. In the petition of grievances, 1610, it was stated thus: Among many other points of happiness and freedom which your Majesty's subjects have enjoyed under your royal progenitors, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of law,....and not by any arbitrary form of government... Out of this root hath grown the indubitable right of the people of this kingdom, not to be made subject to any punishment... other than such as are ordained by the common laws of this land, of the statutes made by their common consent in Parliament. 2. Petitioner No. 2 was working as a Guide with Vatika Hotel. Petitioner No. 1 is the wife of petitioner No. 2 and petitioner No. 3 is their son. According to the reply filed by respondents No. 1 and 2, petitioner No. 2 fell down from the railing of A.G. Office. It was seen by a traffic Police Constable. He was taken to I.G.M.C. on 21.01.2008. An information was received at the Police Control Room at 12:45 p.m. on 22.01.2008 that petitioner No. 2 was creating problems in Vatika Hotel. A.S.I. Tej Ram and four Constables went to Vatika Hotel. The matter was compromised at Police Control Room, Shimla. Police got the information on 22.01.2008 that a man was lying injured in Middle Bazaar, Shimla. HC Man Dass was deputed to the spot and he brought petitioner No. 2 to the Police Station. He was got medically examined by Sub Inspector Kanwar Singh on 22.01.2008 at 7:40 p.m.. He was medically examined by Dr. Payal Gupta at D.D.U. Hospital, Shimla. Dr. HC Man Dass was deputed to the spot and he brought petitioner No. 2 to the Police Station. He was got medically examined by Sub Inspector Kanwar Singh on 22.01.2008 at 7:40 p.m.. He was medically examined by Dr. Payal Gupta at D.D.U. Hospital, Shimla. Dr. Payal Gupta in M.L.C. conducted on 22.01.2008 has found the following injuries on local examination: (a) Blueish black bruise over right eye and around right eye. Local swelling present and (b) Reddish brown abrasion over lateral aspect of right pinna. Ear and TM (Tympanic Membrane) normal. No other injury was present. 3. The blood sample of the petitioner was also taken and it was sent to F.S.L. Junga for chemical examination. According to Dr. Payal Gupta, the nature of the injuries was simple, the probable duration of the injuries was less than 24 hours and the kind of weapon used was blunt. The final opinion was given by Dr. Payal Gupta on 09.05.2008 after receiving the report from F.S.L., Junga. According to the report, there was no content of poison or alcohol in the blood of petitioner No. 2. He was brought back to Police Station, Sadar, Shimla at 7:30/8:00 p.m. Thereafter, vide daily diary report No. 68, dated 22.1.2008, petitioner No. 2 was discharged. 4. Petitioner No. 1 received a telephonic call from Vatika Hotel that her husband was creating problems in the Hotel. She was asked to come to Vatika Hotel and take care of her husband. A call was also received by the petitioner from Police Station, Sadar, Shimla from phone No. 2652860. Petitioner No. 1 left Chintpurni in the morning and reached Shimla in the evening. She went to Police Station, Sadar, Shimla. In the meantime, petitioners' brother also received three calls from telephone number of ASI Rattan Singh at 1:40 p.m., 141 p.m. and 143 p.m. on 23.01.2008. The telephone number of ASI Rattan Singh was 94181-62860. HC Mohinder Kumar arranged an ambulance by using his telephone number, i.e., 94183-76513. Thereafter, petitioner No. 2 was taken to I.G.M.C. in ambulance. 5. A second M.L.C. was conducted by Dr. Rahi on 23.01.2008 at 7:15 p.m. The M.L.C. reports of Dr. Payal Gupta and Dr. Rahi have been reproduced in verbatim in Annexure P-8 at page No. 61 of the paper-book. There was no smell of alcohol or any other chemical in breath of petitioner No. 2. Dr. 5. A second M.L.C. was conducted by Dr. Rahi on 23.01.2008 at 7:15 p.m. The M.L.C. reports of Dr. Payal Gupta and Dr. Rahi have been reproduced in verbatim in Annexure P-8 at page No. 61 of the paper-book. There was no smell of alcohol or any other chemical in breath of petitioner No. 2. Dr. Rahi has noticed 7 injuries on the person of petitioner No. 2. The probable duration of injuries No. 1 and 2 was within 24-48 hours and injuries No.3 to 7 was within 12-36 hours. The final opinion was given by Dr. Rahi on 27.06.2008. According to him, injuries No. 1 to 3 were grievous and dangerous to life as there was head injury. All other injuries were found to be simple in nature. Petitioner No. 2 was referred to PGI, Chandigarh by Dr. Rahi. He remained admitted in PGI. The PGI has issued disability certified Annexure IX (a), which is at page No. 70(a) of the paper-book. According to the disability certificate, the petitioner was physically handicapped to the extent of 100%. There was impairment in relation to his whole body. The condition was found non-progressive and even the re-assessment was not recommended. This certificate was issued by the Postgraduate Institute of Medical Education and Research, Chandigarh on 31.07.2009. On the basis of persistent demand raised by the petitioners, FIR bearing No. 115 /2008, under Sections 307, 326 & 201 of the Indian Penal Code, was registered on 08.05.2008 at Police Station Sadar, Shimla. Initially, the investigation was carried out by Shri Madan Lal, Deputy Superintendent of Police, Shimla and thereafter by Shri Mohinder Singh, Additional Superintendent of Police, Shimla. Thereafter, the investigation was handed over to CID in the month of September, 2008. Case was transferred to Ms. Rani Bindu, Additional Superintendent of Police on 16.02.2009. The Additional Superintendent of Police (City), Shimla submitted an application to the Professor and Head, Department of Forensic Medicine on 07.07.2008 for the constitution of a Medical Board. The request was made to examine the MLCs. dated 22.01.2008 and 23.01.2008 and to give the following opinion: (i) whether the duration of all injuries mentioned in M.L.Cs. is same or otherwise and (ii) whether all the injuries can be caused due to accidental fall exclusively. 6. Respondent No. 5, i.e., Principal has filed the reply. The request was made to examine the MLCs. dated 22.01.2008 and 23.01.2008 and to give the following opinion: (i) whether the duration of all injuries mentioned in M.L.Cs. is same or otherwise and (ii) whether all the injuries can be caused due to accidental fall exclusively. 6. Respondent No. 5, i.e., Principal has filed the reply. It has come in the reply that the Medical Board was constituted and the Medical Board has given its opinion vide Annexure P-8 on 16.07.2008, which is at page No. 61 of the paper-book. The relevant extract of the report of the Medical Board reads thus: Discussions of the case: As far as the injuries on 1st and 2nd MLCs. done approximately 24 hours apart injuries mentioned by Dr. Payal Gupta on 22.1.08 at 7:40 p.m. coincide with injury No. 1 & 3 of the MLC done by Dr. Rahi on 23.01.08 at 7:15 p.m. which are grievous or dangerous to life on the basis of case summary submitted by PGIMER, Chandigarh and as per the final opinion of Dr. Rahi. Dr. Payal Gupta has not given any dimensions of the injury but color and exact site of injury is mentioned. In January there is extreme cold in this region and thorough search may not have been done by the 1st doctor on concealed parts of the body regarding injury No. 6 & 7 which are small contusions in which no distance and exact site with direction whether vertical or oblique or transverse is mentioned. It is not mentioned that what was the condition of the intervening skin in two contusions; however the possibility of the fall cannot be ruled out qua these injuries. Usually the second examination if at all is to be done, which is necessarily could have been done by the same doctor to reveal the deep seated contusions which are known as delayed contusions after 48 hours. Also stated that these injuries are simple in nature. According to Text book of Forensic Medicine and Toxicology by Krishna Viz the color of the bruise/contusion "within a few hours, it becomes blueish and changes to blueish-purple by the second day, blueish black by the third day and continues as such till fourth day." Meaning thereby the contusion retains blueish hue from within few hours to 3-4 days. According to Text book of Forensic Medicine and Toxicology by Krishna Viz the color of the bruise/contusion "within a few hours, it becomes blueish and changes to blueish-purple by the second day, blueish black by the third day and continues as such till fourth day." Meaning thereby the contusion retains blueish hue from within few hours to 3-4 days. According to this authority the injury which was found on the person of the Rajesh Kumar by both the doctors appears to be within the range of the blue contusion. Even in the 1st MLC done by Dr. Payal Gupta the contusion is blueish black on and around right eye so on 22nd January at 7:45 p.m., the injury can be around 24 hours old and on 23rd January at 7:15 p.m. the injury remains blue so is around 48-72 hours. When the abrasion is reddish brown the age of the abrasion mentioned in the abovesaid book is 2-3 days. No other characteristic of the injuries are mentioned in either of the MLCs. (related with injury No. 2 of both MLCs.). We don't know as to what is the basis of both the doctors doing MLCs. while opining about the probable duration of the injuries. It is pertinent to mention here that if Glasgow Coma Scale is applied to the patients neurological condition after the first day MLC it comes E-3, V-4 and M-5, which becomes 12 and scores more than 11 indicate only sedated condition. In our opinion the duration of the main injuries around the eye and head which are grievous in nature or dangerous to life are of the same duration. 1. Injury present on head, i.e., 1, 2 & 3 are possible only in case of fall and possibility of assault can be ruled out and there is no confusion regarding the age of these injuries. 2. Injury No. 4 & 5 could be iatrogenic or could be possible with fall or appear delayed due to deep seated contusions. 3. Injury No. 6 & 7 could be possible with fall. Due to difference in the dimensions of above mentioned injuries possibility of the assault can be ruled out. Injury No. 1 & 3 are grievous in nature. Rest all injuries are simple in nature singly or collectively. This is for your information and further necessary action. 3. Injury No. 6 & 7 could be possible with fall. Due to difference in the dimensions of above mentioned injuries possibility of the assault can be ruled out. Injury No. 1 & 3 are grievous in nature. Rest all injuries are simple in nature singly or collectively. This is for your information and further necessary action. The Medical Board, as per the reply, has reiterated its earlier stand when the second opinion was sought. 7. Ms. Ambika Kotwal, learned counsel for petitioner No. 2 has strenuously argued that the petitioner No. 2 has received injuries due to merciless beatings given by the police personnel, including respondent No. 3, when he remained in the illegal custody/detention at Police Station Sadar, Shimla w.e.f. 22.01.2008 to evening of 23.01.2008. The theory of fall is contrary to the facts. She then argued that the petitioners are entitled to get compensation for a sum of Rs. 15 lac due to unconstitutional and illegal acts of the respondents, more particularly, when the petitioner No. 2 has been declared 100% handicap. She further contended that the disciplinary proceedings be initiated against all the persons who have detained the petitioner No. 2 and given beatings to him, resulting in 100% disability. She also contended that the trial Court be directed to hear and decide the case expeditiously. She then argued that the general directions be issued to the State Government to ensure that no person is tortured/beaten up/maltreated/harassed in the police custody. 8. Mr. Rajender Dogra, learned Additional Advocate General has argued that the challan has been put up in the case and the disciplinary proceedings are also being instituted against the defaulting officials. 9. Mr. Naresh Thakur, learned Senior Advocate for respondent No. 3 and Mr. Suneet Goel, learned counsel for respondent No. 4 have argued that their clients are not in any way responsible for the injuries caused to petitioner No. 2. Mr. Naresh Thakur, learned Senior Advocate submitted that in fact petitioner No. 2 earlier has fallen near the A.G. Office and thereafter he fell down again in the Middle Bazaar, resulting in injuries. Mr. Suneet Goel, learned counsel for respondent No. 4, in addition, has argued that there was some dispute with regard to non-payment of dues, which has been settled and the matter was compromised on 21.01.2008 in Police Control Room, Shimla. 10. Mr. Suneet Goel, learned counsel for respondent No. 4, in addition, has argued that there was some dispute with regard to non-payment of dues, which has been settled and the matter was compromised on 21.01.2008 in Police Control Room, Shimla. 10. I have heard the learned counsel for the parties and gone through the pleadings carefully. 11. It is not in dispute that the petitioner No. 2 was working for Vatika hotel. There was some dispute with regard to non-payment of dues, which led to the owner calling the police. The police visited the Vatika hotel on 22.01.2008. The team was led by ASI Tej Ram and other four Constables. They went to Vatika hotel and found the petitioner No. 2 lying on the cot. The matter was compromised at Police Control Room, Shimla. Thereafter, as per the version of respondents No. 1 and 2, petitioner No. 2 was found injured in Middle Bazaar on 22.01.2008. He was brought to the Police Station by Head Constable Man Dass. Thus, it establishes that petitioner No. 2 was brought to the Police Station Sadar, Shimla on 22.01.2008. He was medically examined by Dr. Payal Gupta. He was got medically examined by SI Kanwar Singh at DDU Hospital, Shimla. Dr. Payal Gupta has only noticed two injuries on the person of petitioner No. 2. The medical examination was carried out at 7:40 p.m. His blood sample was also taken and it contained no alcohol as per F.S.L. report. The final opinion was given by Dr. Payal Gupta after receiving the report from F.S.L. The probable duration of these two injuries was within 24 hours. These injuries were simple. In the meantime, petitioner No. 1 received telephonic call from Police Station Sadar, Shimla and from the owner of Hotel Vatika. She was informed to come to Shimla to take care of her husband. Petitioner went to Police Station and found her husband in an injured state. The ambulance was arranged by HC Mohinder Kumar by using his mobile telephone number, i.e., 94183-76513. Petitioners' brother has also received three calls from telephone number of ASI Rattan Singh at 1:40 p.m., 141 p.m. and 143 p.m. on 23.01.2008. The telephone number of ASI Rattan Singh was 94181-62860. The ambulance was arranged by HC Mohinder Kumar by using his mobile telephone number, i.e., 94183-76513. Petitioners' brother has also received three calls from telephone number of ASI Rattan Singh at 1:40 p.m., 141 p.m. and 143 p.m. on 23.01.2008. The telephone number of ASI Rattan Singh was 94181-62860. The calls made by ASI Rattan Singh and MC Mohinder Singh, prima facie, establishes that petitioner No. 2 was in the Police Station between the afternoon of 22.1.2008 and evening of 23.1.2008. 12. It will be apt at this stage to take into consideration paragraphs No. 13, 14 and 17 of the reply filed by respondents No. 1 and 2, which read thus: 13. That as per the investigation, the call details of her mobile phone proves that she was contacted from Police Station on the evening of 22.1.2008 through the land line number of Police Station. On 23.1.2008 A.N. she was contacted from the mobile phone of ASI Ram Rattan who at the relevant time was posted in Police Station, Sadar. 14. That with regard to taking of the victime Rajesh to IGMC in the ambulance, the record was obtained from various agencies that provide ambulance services. It has been revealed that an ambulance of Home Guard department No. HP-03-2914 has been identified which was called telephonically from mobile No. 94183-76513 and this mobile belongs to Constable Mohinder Lal who was posted as M.C. in Police Station, Sadar at the relevant time. Constable Mohinder Lal was interrogated during investigation of the case but he was not able to give any satisfactory reply and submitted that he has not called for the ambulance at 6:45 p.m. Further as per Log Book entries of said ambulance it reveals that name of patient was revealed as Sanjeev Sharma who was taken from Lower Bazar to IGMC Hospital. However, as per record of OPD register of IGMC Hospital no patient by name of Sanjeev Sharma had arrived during relevant period which causes suspicion that in the said ambulance Rajesh was taken to IGMC but incorrect name was told to conceal the identity. 17. However, as per record of OPD register of IGMC Hospital no patient by name of Sanjeev Sharma had arrived during relevant period which causes suspicion that in the said ambulance Rajesh was taken to IGMC but incorrect name was told to conceal the identity. 17. That the phone call from the land line phone of Police Station Sadar, Shimla on 22.1.2008 and call made from mobile phone of ASI Rattan Singh to the petitioner No. 1 vis a vis the call from the cell phone of Constable Mohinder Singh to call the ambulance indicate that victim Rajesh might have been present in Police Station during the night of 22.1.2008 and day time of 23.1.2008 afternoon as there is no justification in making call by ASI Rattan Singh on 23.1.2008 afternoon to the petitioner and the submission of Constable Mohinder Pal that he does not know that who called for ambulance from his mobile phone is also devoid of any merit. The hotel owner Nanak Ram Jindani who has also been made an accused has stated in his interrogations that he had gone to Police Station, Sadar, Shimla on 23.1.2008 with the petitioner No. 1 but at times says that Rajesh Sharma was sitting on the Bench outside the Police Station and also says that Rajesh came walking from outside the Police Station after a short while and states that Sakshi took him along from there and he also came back and they did not meet anyone in the Police Station. His interrogation does indicate that Rajesh was taken from the Police Station by the petitioner No. 1. Apart from the above no other evidence has come on record inspite of detailed investigation and interrogation of accused and other relevant persons. However, the case is still under investigation and the statement of Rajesh is essential to finalise the investigation but he has not been found fit to make statement. Further action in the matter shall be taken as per law. 13. What clearly emerges from paragraphs No. 13, 14 and 17 of the reply, is that petitioner No. 1 was contacted by land line phone of Police Station on 22.1.2008 and on 23.1.2008 from mobile phone of ASI Ram Rattan, who was at the relevant time posted at Police Station, Sadar. 13. What clearly emerges from paragraphs No. 13, 14 and 17 of the reply, is that petitioner No. 1 was contacted by land line phone of Police Station on 22.1.2008 and on 23.1.2008 from mobile phone of ASI Ram Rattan, who was at the relevant time posted at Police Station, Sadar. According to the contents of paragraph No. 14, Constable Mohinder Lal was interrogated during investigation, but he was not able to give any satisfactory reply that he has not called the ambulance at 6:45 p.m. According to the Log-book entries of the said ambulance, the name of the patient, who was taken from Lower Bazar to IGMC Hospital, was Sanjeev Sharma. However, it has been categorically stated in paragraph No. 14 of the reply that as per the record of OPD register of IGMC Hospital, no patient by the name of Sanjeev Sharma had arrived during the relevant period. In these circumstances, it was Rajesh Kumar, who was taken to IGMC and not Sanjeev Sharma. The police personnel have tried to conceal the identity of Rajesh Kumar. It has come in paragraph No. 17 of the reply that Rajesh Kumar might have been present in the Police Station during the night of 22.1.2008 and day time of 23.1.2008 afternoon on the basis of telephone call made by ASI Rattan Singh to petitioner No. 1 and the mobile phone call made by Constable Mohinder Singh to arrange the ambulance. Another startling revelation made in paragraph No. 17 of the reply is that respondent No. 4, Nanak Ram Jindani, owner of the hotel, during his interrogations, stated that he had gone to Police Station, Sadar Shimla on 23.1.2008 with petitioner No. 1, but at times he stated that Rajesh Sharma was sitting on the bench outside the Police Station and at times stated that Rajesh came walking from outside the Police Station after a short while and stated that petitioner No. 1 took him from there and he also came back and they did not meet anyone in the Police Station. His interrogation did indicate that Rajesh Kumar was taken from Police Station by petitioner No. 1. 14. According to the M.L.C. conducted by Dr. Payal Gupta, only two injuries were found on the person of petitioner No. 2. There was no alcoholic content in the blood sample of petitioner No. 2 as per the report of F.S.L., Junga. His interrogation did indicate that Rajesh Kumar was taken from Police Station by petitioner No. 1. 14. According to the M.L.C. conducted by Dr. Payal Gupta, only two injuries were found on the person of petitioner No. 2. There was no alcoholic content in the blood sample of petitioner No. 2 as per the report of F.S.L., Junga. The probable duration of the injuries given in the M.L.C. was less than 24 hours. These injuries were simple in nature. 15. Now, as far as the M.L.C. conducted by Dr. Rahi is concerned, he has noticed 7 injuries on the person of petitioner No. 2. According to him, the probable duration of injuries No. 1 and 2 was within 24-48 hours and injuries No. 3 to 7 was within 12-36 hours. No alcohol or any other chemical was found in his breath as per the M.L.C. In these circumstances, there was no occasion for the Additional Superintendent of Police to move an application for the constitution of Medical Board on 07.07.2008. In case there was some confusion with regard to the duration of period of injuries, the doctors, who have conducted the MLCs. on 22.01.2008 and 23.01.2008, namely, Dr. Payal Gupta and Dr. Rahi should have been contacted. The entire exercise has been undertaken by the Investigating Officer to shield the accused. It has come on record that Dr. Payal Gupta has not noticed the third injury, which according to her was concealed. The third injury received by the petitioner was a contusion about 4 cm. x 3 cms. & Blueish in color on right side of forehead. It could not have been missed by Dr. Payal Gupta. Dr. Payal Gupta has not followed medical ethics by opining that she has not noticed the 3rd injury during the course of investigation. The duration of injuries No. 1 and 2 given by Dr. Rahi was within 24-48 hours and injuries No. 3 to 7 was within 12-36 hours. It proves that injuries No. 1 and 2 were caused on 22.01.2008 and injuries No. 3 to 7 were caused when the petitioner No. 2 was in the Sadar Police Station. According to Dr. Rahi, injuries No. 1 and 3 were grievous and dangerous to life. It proves that injuries No. 1 and 2 were caused on 22.01.2008 and injuries No. 3 to 7 were caused when the petitioner No. 2 was in the Sadar Police Station. According to Dr. Rahi, injuries No. 1 and 3 were grievous and dangerous to life. The Medical Board constituted at the request of Additional Superintendent of Police (City), Shimla vide letter dated 07.07.2008, has projected the duration of injury No. 3 as 48-72 hours. There are no cogent and convincing reasons assigned why the probable duration of injury No. 3 could be 48-72 hours, when specifically Dr. Payal Gupta has given the probable duration of injuries No. 1 and 2 as less than 24 hours and Dr. Rahi has reiterated the same by stating that probable duration of injuries No. 1 and 2 was 24-48 hours and injuries No. 3 to 7 was 12-36 hours. 16. It is also intriguing to note that Additional Superintendent of Police (City), Shimla vide letter dated 07.07.2008, has formulated tailor made questions for constitution of Medical Board. There was absolutely no necessity to constitute a Medical Board in view of the final opinions give by Dr. Payal Gupta and Dr. Rahi. The entire exercise, as noticed above, has been undertaken to help the accused, by giving them the benefit that injury No. 3 was not caused at the Police Station between the afternoon of 22.1.2008 and evening of 23.1.2008. The Medical Board is remiss in discharge of its duties. The Medical Board has exceeded its authority by even stating that the injuries present on the head, i.e., injuries No. 1 to 3 were possible only in case of fall and the possibility of assault could be ruled out as there was no confusion regarding the age of these injuries. There was absolutely no confusion/conflict with regard to the injuries as per the opinions given by Dr. Payal Gupta and Dr. Rahi, who examined the patient. The Medical Board has given the opinion contrary to the facts by not even examining the patient. The P.G.I. has issued a certificate, whereby the disability of petitioner No. 2 has been assessed to be 100%. Where was the occasion for the Medical Board to opine that the possibility of assault was ruled out. Similarly, the Medical Board has opined that injuries No. 6 and 7 were possible due to fall. The P.G.I. has issued a certificate, whereby the disability of petitioner No. 2 has been assessed to be 100%. Where was the occasion for the Medical Board to opine that the possibility of assault was ruled out. Similarly, the Medical Board has opined that injuries No. 6 and 7 were possible due to fall. The Medical Board has though opined that injuries No. 1 & 3 were grievous in nature and rest all the injuries were simple. The Medical Board has recorded a wrong finding that the third injury being concealed could not be detected by Dr. Payal Gupta. The third injury was a contusion about 4 cm. x 3 cms. & Blueish in colour on right side of forehead. 17. Now, the Court will examine in detail the theory of "fall", propounded by the Investigating Officer and substantiated by the Medical Board, constituted at the behest of Investigating Officer on 07.07.2008. The case projected by the respondents, is that petitioner No. 2 earlier fell near A.G. Office on 21.01.2008. There is no medical report placed on record dated 21.01.2008, disclosing any injuries on the person of petitioner No. 2. The second theory of fall tried to be proved by the respondents, is that petitioner No. 2 was found injured in the stairs of Middle Bazaar near Guptajees restaurant and he was brought to the Police Station by Constable Man Dass. He was medically examined at 7:45 p.m. The blood of petitioner No. 2 was taken to see the contents of alcohol or poison in his blood. In the report of F.S.L., neither there was any poison nor alcoholic contents in the blood of petitioner No. 2 as per the report. The final opinion was given by Dr. Payal Gupta after receiving the report from the F.S.L. This is a concocted story that the petitioner No. 2 received injuries when he fell on the stairs in Middle Bazaar. The second theory of fall has also been projected to help the accused. Petitioner No. 2 was medically examined by Dr. Rahi on 23.1.2008 at 7:15 p.m. It has again come in the M.L.C. issued by Dr. Rahi that there was no smell of alcohol. It further belies the story of frequent falls of petitioner No. 2. 18. The second theory of fall has also been projected to help the accused. Petitioner No. 2 was medically examined by Dr. Rahi on 23.1.2008 at 7:15 p.m. It has again come in the M.L.C. issued by Dr. Rahi that there was no smell of alcohol. It further belies the story of frequent falls of petitioner No. 2. 18. The fact of the matter is that petitioner No. 2 has been detained in the Police Station, Sadar Shimla from 22.01.2008 to evening of 23.01.2008 and he has received injuries due to the beatings given to him while he was unconstitutionally and illegally detained in the Police Station. The theory of fall has been further tried to be fortified by taking a tailor made opinion from the Medical Board by referring whether all the injuries could be caused due to accidental fall exclusively. This letter has been written by the Additional Superintendent of Police (City), Shimla to the Professor and Head, Department of Forensic Medicine, I.G.M.C., Shimla to help the accused and to establish that the injuries were received by petitioner No. 2 by way of a fall. It is reiterated that there was no conflict in the medical opinions rendered by two qualified doctors, i.e., Dr. Payal Gupta and Dr. Rahi. The Court deprecates the attempt made on behalf of the Officer, that too, of the rank of Additional Superintendent of Police (City), Shimla, to dilute the accusations against the persons, who were responsible for detaining the person in the Police Station unconstitutionally and illegally. 19. In the instant case, the FIR should have been registered immediately when the facts were brought to the notice of the Police instead of delaying it. The date of incident is 22/23.01.2008 and FIR No. 115/2008 has only been registered on 08.05.2008. The reading of DD No. 68 dated 22.01.2008 is also a ploy to show that the petitioner No. 2 was discharged from the Police Station. According to the facts discussed hereinabove, it is amply established that petitioner No. 2 has remained in the illegal police custody of police w.e.f. 22.01.2008 to evening of 23.01.2008. 20. There is no merit in the contention of Mr. Naresh Thakur, learned Senior Advocate that his client has tried to help the petitioner No. 2 on humanitarian ground by arranging ambulance etc. 20. There is no merit in the contention of Mr. Naresh Thakur, learned Senior Advocate that his client has tried to help the petitioner No. 2 on humanitarian ground by arranging ambulance etc. His client was Station House Officer and he, instead of protecting the liberty of petitioner No. 2, has compromised the same by detaining him in illegal custody at Police Station and given beatings to him. There is also no merit in the contention of Mr. Naresh Thakur, learned Senior Advocate that the police was not involved in the episode. The police was informed and ASI Tej Ram has visited Vatika Hotel on 22.01.2008 and thereafter the matter was also compromised at Police Control Room. Even as per the reply filed by respondent No. 4, it is apparent that the petitioner No. 2 was taken to Police Station where he was detained unconstitutionally and illegally and was given beatings as is duly established from the M.L.Cs. conducted on 22.01.2008 and 23.01.2008. This factum is also substantiated by the affidavits placed on record vide Annexures P-11 to P-13. The complicity of respondent No. 4, in these circumstances, can also not be overruled in the entire episode. His role ought to have been probed by the Investigating Officer. 21. The police has no jurisdiction/authority to adjudicate upon the matters of civil nature. These matters are to be decided by the Civil Courts. The matters, if compromised in the Police Stations, would be against the public policy and, thus, cannot be enforced. 22. It has come in the affidavits Annexures P-11 and P-13 that the police personnel and respondent No. 3 have given beatings to Rajesh Kumar. It further strengthens the case that the petitioner No. 2 was given beatings by the police personnel, including respondent No. 3. The respondents have not rebutted the contents of the affidavits. There is no reason why these persons, namely, Hari Dass, Chet Ram, Sita Ram, Kishan Bahadur would give false affidavits, that too, against the S.H.O. and other police personnel. It has also been deposed in affidavits that petitioner No. 2 was thrown in a drain. Petitioner No. 2 has spent the entire night in the drain, that too, in the month of January. 23. It has also been deposed in affidavits that petitioner No. 2 was thrown in a drain. Petitioner No. 2 has spent the entire night in the drain, that too, in the month of January. 23. The duty of the police officials is to protect the life and limb of the citizen and not to put the same at peril by themselves by detaining the persons unconstitutionally and illegally and by beating a person to such an extent that he becomes 100% physically handicapped. On 20.04.2011, the Director General of Police was directed to file a fresh reply. He filed an affidavit, which is at page No. 271 of the paper-book. According to the affidavit, the investigation was complete and police report u/s 173, Cr. P.C. was filed in the Court, under Sections 341, 342, 323, 325, 218 and 120B of the Indian Penal Code against the accused Shiv Chaudhary, Deputy Superintendent of Police (the then SHO), S.I. Kanwar Singh, ASI Rattan Singh and Constable Mahendar Singh. 24. On 28.09.2011, this Court has directed the respondent-State to file a supplementary affidavit clarifying therein whether the disciplinary proceedings were under consideration against respondent No. 3 or not. In sequel thereto, a detailed affidavit has been filed by the Director General of Police on 09.11.2011. According to the affidavit filed by respondent No. 2, the matter with regard to taking action against respondent No. 3 was examined and the matter was taken up with respondent No. 1 vide letter dated 20.10.2011. The respondent No. 1 vide letter dated 25.10.2011 has asked the Director General of Police to send draft article of charges alongwith copy of CWP and order passed by this Court. The documents have been furnished to respondent No. 1 along with the draft articles of charges. 25. Now, as far as Shri Kanwar Singh is concerned, he has retired from service on 30.06.2011. As per the affidavit filed by the Director General of Police, ASI Rattan Singh was transferred to Mandi District and Constable Mahender Singh has been transferred to 5th India Reserve Battalion on promotion on 11.03.2011. Accordingly, the Additional D.G., CID was directed to take action against SI Kanwar Singh in accordance with the provisions contained in Rules 8 & 9 of the CCS (Pension) Rules and submit findings to the Govt. Accordingly, the Additional D.G., CID was directed to take action against SI Kanwar Singh in accordance with the provisions contained in Rules 8 & 9 of the CCS (Pension) Rules and submit findings to the Govt. with regard to ASI Rattan Singh and Mahender Singh, S.P. Mandi and Commandant 5th India Reserve Battalion have been directed to take action against them as per letter dated 04.11.2011, Annexure RA/3. 26. The petitioner No. 2 has been deprived of his liberty enshrined under Article 21 of the Constitution of India. He is permanently disabled and can not make both ends meet. His wife and son are dependent on him and in these circumstances, it is the responsibility of the State to compensate the petitioners. Petitioner No. 2 was hale and hearty before this incident and was earning his livelihood as a Guide. 27. It is apparent from the facts that the petitioner No. 2 was taken to Police Station, Sadar Shimla in the afternoon on 22.01.2008. He was released from the Police Station, Sadar only when the petitioner No. 1 visited the Police Station in the evening on 23.01.2008. Petitioner No. 2 was examined by the doctor. It was the duty cast upon respondent No. 3 that the petitioner No. 2 is produced before the Magistrate within 24 hours. There is no explanation why the petitioner No. 2 was not produced by the police before the Magistrate as per the mandates of Article 22(2) of the Constitution of India. 28. According to Section 57 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Act' for the sake of brevity) no police officer shall detain in custody a person arrested without warrant for a period longer than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate u/s 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. In the instant case, petitioner No. 2 was required to be produced before the Illaqua Magistrate within a period of 24 hours, which the respondent No. 3 has failed to do. 29. In the instant case, petitioner No. 2 was required to be produced before the Illaqua Magistrate within a period of 24 hours, which the respondent No. 3 has failed to do. 29. According to Section 54 of the Act, when any person is arrested, he is to be examined by a Medical Officer in service of Central or State Governments and in case the medical officer is not available by a registered medical practitioner soon after the arrest is made and where the arrested person is a female, the examination of body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner. Under sub section (2) of Section 54 of the Act, it is the duty cast upon the medical officer or a registered medical practitioner examining the arrested person to prepare the record of examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted. A copy of the report of such examination is to be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person. In the instant case, the petitioner No. 2 has not been examined immediately after his arrest. 30. The General Assembly of the United Nations adopted the declaration for protection of persons from being subjected to torture and other crime of inhuman or degrading treatment or punishment on December 9, 1975. Article 5 of the Declaration requires comprehensive training of law enforcement officers against torture. Article 7 contemplates a system of review of the interrogation, methods and practices as well as custodial arrangements. Article 9 obligates the States to ensure that the acts of torture are made offences under national criminal law. The Declaration also provides that victims shall be afforded redress and compensation. 31. The U.N. Convention against torture and other cruel, inhuman or degrading treatment or punishment of 1984, came into force on 26th June, 1987. The Convention comprises 33 articles divided into three parts. Part 1 of the Convention defines torture, prohibits acts of torture and allied concepts and obliges State parties to the Convention to ensure that all the acts of torture are punished. The Convention comprises 33 articles divided into three parts. Part 1 of the Convention defines torture, prohibits acts of torture and allied concepts and obliges State parties to the Convention to ensure that all the acts of torture are punished. Part II provides for the machinery for the enforcement of the above prohibition. Part III relates to formal matters. 32. Article 2 of the U.N. Convention against Torture (1984) obligates the State parties to the Convention to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. No exceptional circumstances whatsoever, whether a State of war or a threat of war, international political instability or any other public emergency, can be invoked as a justification of torture. An order from a superior officer or a public authority may not be invoked as a justification for torture. 33. Article 41 reads thus: Each State party shall ensure that all acts of torture are offence under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. Each State party makes these offences punishable by appropriate penalties which take into account their grave nature. 34. Article 10 of the Conventions also requires that each State Party shall keep, under systematic review of rules, instructions methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any case of torture. 35. The act of beatings and custodial violence is neither authorized under the Criminal Procedure Code nor under the Police Act. The police functionaries are saviors of law and not destroyers. It is the duty cast upon them to ensure while maintaining law and order and investigating the criminal cases that there is no transgression of fundamental and legal rights of the citizens/persons. The approach of police functionaries must change with the changing times and emphasis now should be scientific investigation instead of adopting prehistoric out dated methods of investigation. The police cannot resort to torture and other crime of inhuman or degrading treatment by giving beating, hanging and whipping the persons in police custody. The investigation/interrogation must be psychological, rather than physical. The approach of police functionaries must change with the changing times and emphasis now should be scientific investigation instead of adopting prehistoric out dated methods of investigation. The police cannot resort to torture and other crime of inhuman or degrading treatment by giving beating, hanging and whipping the persons in police custody. The investigation/interrogation must be psychological, rather than physical. The police resort to these methods to get quick results instead of having patience and perseverance. The adoption of third degree methods brutalizes the police force. It affects the criminal justice system. It is, thus, the need of the hour that the police is to be re-modelised and there should be a separate wing for investigation and maintaining the law and order. The persons employed in a particular wing would acquire expertise and the criminal justice system would be benefited. 36. There should not be any distrust between the police and citizens and all out efforts are required to be made to bridge the gap between the police and the common citizen. It is equally true that the respondent-State is required to improve the conditions of service of police personnel to remove the stress in the entire police force. A high power committee is required to be constituted comprising highest ranked Officers to improve the conditions of service of police personnel by providing them time bound promotions, increments, incentives and housing etc. The police personnel, who improves their educational qualification and acquire specialized skills in F.S.L. and investigation, may be provided with one or two increments to improve efficiency in the police force. The police personnel should not be posted for more than eight hours duty at a stretch. 37. It has also come in the record that an attempt was made to get the statement of Rajesh Sharma, petitioner No. 2 recorded u/s 164 of the Cr. P.C., however, due to deterioration of health, it could not be recorded. 38. Mr. Suneet Goel, learned counsel for respondent No. 4 has also brought to the notice of the Court that a petition has been filed under the Workmen Compensation Act, seeking compensation. The present petition has been filed primarily by the petitioners against the beatings given by the police personnel by detaining petitioner No. 2 in illegal custody/detention. 39. 38. Mr. Suneet Goel, learned counsel for respondent No. 4 has also brought to the notice of the Court that a petition has been filed under the Workmen Compensation Act, seeking compensation. The present petition has been filed primarily by the petitioners against the beatings given by the police personnel by detaining petitioner No. 2 in illegal custody/detention. 39. It is now duly established that petitioner No. 2 was detained by the police at Police Station, Sadar Shimla and was given beatings during his illegal custody, which led to his 100% disablement. In these circumstances, the petitioners are to be compensated by reasonable compensation. 40. The Investigating Officer has tried to shield the delinquent officials by propounding two stories, which were contrary to the facts. He has tried to portray that injury No. 3 was present at the time when first M.L.C. was undertaken on 22.01.2008. This attempt has been made by the Investigating Officer to favour the delinquent officials. The second point formulated by the Investigating Officer that the injury has resulted due to fall, was also an attempt to shield the accused person. The theory of fall is contrary to the facts. 41. Mr. Rajender Dogra, learned Additional Advocate General has argued that harsh measures are required to be taken against hard criminals. This plea cannot be accepted. This contention was also raised before the Hon'ble Supreme Court in Smt. Selvi and Others Vs. State of Karnataka, (2010) 7 SCC 263 in a narcotic analysis case and the same was rejected. 42. The House of Lords in 1964 (1) of All England Law Reports have held that English Law recognized the awarding of exemplary damages, that is, damages whose object was to punish or deter and which were distinct from aggravated damages (whereby the motives and conduct of the defendant aggravating the injury to the plaintiff would be taken into account in assessing compensatory damages); and there were two categories of cases in which an award of exemplary damages could serve a useful purpose, viz., in the case of oppressive, arbitrary or unconstitutional action by the servants of the government, and in the case where the defendant's conduct had been calculated by him to make a profit for himself, which might well exceed the compensation payable to the plaintiff. Their Lordships have held as under: In my opinion, therefore, the appeal should succeed and the judgment of SACHS, J. (129) on liability should be restored. Counsel for the respondents has submitted that it ought not be restored in its entirety. He asks for a new trial on damages on the ground that the learned judge misdirected the jury on this issue. The cardinal feature of the summing-up on this part of the case was a direction to the jury that they might (counsel for the respondents submits that it amounted almost to "must") award exemplary damages and your lordships have therefore listened to a very penetrating discussion about the nature of exemplary damages and the circumstances in which an award is appropriate. The Court of Appeal, having found for the respondents on liability, did not consider this issue, so your lordships must begin at the beginning. Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter. It may well be thought that this confuses the civil and criminal functions of the law; and indeed, so far as I know, the idea of exemplary damages is peculiar to English law. There is not any decision of this House approving an award of exemplary damages and your lordships therefore have to consider whether it is open to the House to remove an anomaly from the law of England. In Benson V. Frederick (136) the plaintiff a common soldier, obtained damages of Rs. 150 against his colonel who had ordered him to be flogged so as to vex a fellow officer. LORD MANSFIELD, C.J., said (137) that the damages "were very great, and beyond the proportion of what the man had suffered". But the sum awarded was upheld as damages in respect of an arbitrary and unjustifiable action and not more than the defendant was able to pay. These authorities clearly justified the use of the exemplary principle; and for my part I should not wish, even if I felt at liberty to do so, to diminish its use in this type of case where it serves a valuable purpose in restraining the arbitrary and outrageous use of executive power. These authorities clearly justified the use of the exemplary principle; and for my part I should not wish, even if I felt at liberty to do so, to diminish its use in this type of case where it serves a valuable purpose in restraining the arbitrary and outrageous use of executive power. My lords, I express no view on whether the Copyright Act, 1956, authorizes an award of exemplary, as distinct from aggravated damages. But there are certainly two other Acts of Parliament which mention exemplary damages by name. The Law Reform (Miscellaneous Provisions) Act, 1934, S. 1(2)(a), provides that where a cause of action survives for the benefit of the estate of a deceased person, the damages recoverable shall not include any exemplary damages. The Reserve and Auxiliary Forces (Protection of Civil Interests) Act, 1953, s. 13(2), provides that in any action for damages for conversion in respect of goods falling within the statute the court may take into account the defendant's conduct and award exemplary damages. These authorities convince me of two things. First, that your lordships could not without a complete disregard of precedent, and indeed of statute, now arrive at a determination that refused altogether to recognize the exemplary principle. Secondly, that there are certain categories of cases in which an award of exemplary damages can serve a useful purpose in vindicating the strength of the law, and thus affording a practical justification for admittigninto the civil law a principle which ought logically to belong to the criminal. I propose to state what these two categories are; and I propose also to state three general considerations which, in my opinion, should always be borne in mind when awards of exemplary damages are being made. I am well aware that what I am about to say will, if accepted, impose limits not hitherto expressed on such awards and that there is powerful, though not compelling, authority for allowing them a wider range. I shall not therefore conclude what I have to say on the general principles of law without returning to the authorities and making it clear to what extent I have rejected the guidance which they may be said to afford. The first category is oppressive, arbitrary or unconstitutional action by the servants of the government. I shall not therefore conclude what I have to say on the general principles of law without returning to the authorities and making it clear to what extent I have rejected the guidance which they may be said to afford. The first category is oppressive, arbitrary or unconstitutional action by the servants of the government. I should not extend this category, -I say this with particular reference to the facts of this case, -to oppressive action by private corporations or individuals. Where one man is more powerful than another, it is inevitable that he will try to use his power to gain his ends; and if his power is much greater than the other's, he must of course pay for his illegality in the ordinary way; but he is not to be punished simply because he is the more powerful. In the case of the government it is different, for the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service. It is true that there is something repugnant about a big man bullying a small man and very likely the bullying will be a source of humiliation that makes the case one for aggravated damages, but it is not in my opinion punishable by damages. Case in the second category are those in which the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff. I have quoted the dictum of ERLE, C.J., in Bell V. Midland Ry. Co. (161). MAULE, J., in Williams V. Currie (162), suggests the same thing; and so does MARTIN, B., in an obiter dictum in Crouch V. Great Northern Ry. Co. (163). It is a factor also that is taken into account in damages for libel; one man should not be allowed to sell another man's reputation for profit. Where a defendant with a cynical disregard for a plaintiff's rights has calculated that the money to be made out of his wrongdoing will probably exceed the damages at risk, it is necessary for the law to show that it cannot be broken with impunity. This category is not confined to moneymaking in the strict sense. Where a defendant with a cynical disregard for a plaintiff's rights has calculated that the money to be made out of his wrongdoing will probably exceed the damages at risk, it is necessary for the law to show that it cannot be broken with impunity. This category is not confined to moneymaking in the strict sense. It extends to cases in which the defendant is seeking to gain at the expense of the plaintiff some object, -perhaps some property which he covets,-which either he could not obtain at all or not obtain except at a price greater than he wants to put down. Exemplary damages can properly be awarded whenever it is necessary to teach a wrongdoer that tort does not pay. To these two categories, which are established as parat of the common law, there must of course be added any category in which exemplary damages are expressly authorized by statute. 43. Their Lordships of the Hon'ble Supreme Court in Dagdu and Others Vs. State of Maharashtra, (1977) 3 SCC 68 have held that the police, with their wide powers, are apt to overstep their zeal to detect crimes and are tempted to use the strong arm against those who happen to fall under their secluded jurisdiction. Their Lordships have held as under: 88. It is plain commonsense that suspects are seldom willing to furnish a quick and correct clue to the crimes for which they are arrested. A certain amount of coaxing and promising has inevitably to be done in order to persuade the accused to disclose at least the outlines of the crime. But the use of strong methods of investigation, apart from raising problems concerning the observance of decency in public affairs and of human dignity, is fraught with the danger that the very process by which evidence is collected may become suspect and fail to inspire confidence. Ganpat, the approver, was driven to admit that he was tortured while in the lock-up and we have serious doubts whether the injury caused on his head was, as alleged by the police, self-inflicted. A witness called Ramchandra also admitted that while under interrogation the police pulled out his pig-tail. We have resisted the failing which tempts even judicially trained minds to revolt against such methods and throw the entire case out of hand. A witness called Ramchandra also admitted that while under interrogation the police pulled out his pig-tail. We have resisted the failing which tempts even judicially trained minds to revolt against such methods and throw the entire case out of hand. But we must, with hopes for the future, utter a word of warning that just as crime does not pay, so shall it not pay to resort to torture of suspects and witnesses during the course of investigation. History shows that misuse of authority is a common human failing and, therefore, Courts must guard against all excesses. The police, with their wide powers, are apt to overstep their zeal to detect crimes and are tempted to use the strong arm against those who happen to fall under their secluded jurisdiction. That tendency and that temptation must, in the larger interests of justice, be nipped in the bud. Goswami, J.:- 88. I am in agreement with the judgment proposed by my brother Chandrachud which is a piece of conspicuous clarity after marshalling and compressing a mass of evidence. I also agree with the views expressed therein on the legal questions raised in these appeals. Even so I feel obliged to add a few lines. 44. The Apex Court in Raghbir Singh Vs. State of Haryana, AIR 1980 SC 1087 has held that the State, at the highest administrative and political levels, must organize special strategies to prevent and punish brutality by police methodology. Otherwise, the credibility of the rule of law in our Republic vis-a-vis the people of the country will deteriorate. Their Lordships have also held that the vulnerability of human rights assumes a traumatic, torture some poignancy; the violent violation is perpetrated by the police arm of the State whose function is to protect the citizen and not commit gruesome offences against them. Their Lordships have held as under: 2. We are deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new peril when the guardians of the law gore human rights to death. The vulnerability of human rights assumes a traumatic, torture some poignancy (when) the violent violation is perpetrated by the police arm of the State whose function is to protect the citizen and not to commit gruesome of fences against them as has happened in this case. The vulnerability of human rights assumes a traumatic, torture some poignancy (when) the violent violation is perpetrated by the police arm of the State whose function is to protect the citizen and not to commit gruesome of fences against them as has happened in this case. Police lock-up if reports in newspapers have a streak of credence, are becoming more and more awesome cells. This development is disastrous to our human rights awareness and humanist constitutional order. 3. The State, at the highest administrative and political levels, we hope, will organise special strategies to prevent and punish brutality by police methodology. Otherwise, the credibility of the rule of law in our Republic vis-a-vis the people of the country will deteriorate. 45. Their Lordships of the Hon'ble Supreme Court again in Kishore Singh Ravinder Dev and Others Vs. State of Rajasthan, (1981) 1 SCC 503 have held that nothing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights. Their Lordships have held as under: 5. Thereafter, the medical report, of which we have been apprised by Shri Parekh, the report against the constables concerned, reported to us by Shri Sharma, are taking their course. We do not make any observations thereon as that is the subject of a separate enquiry. Even so, no police life-style which relies more on fists than on wits, on torture more than on culture can control crime because means boomerang on ends and re-fuel the vice which it seeks to extinguish. Secondly, the State must re-educate the constabulary cut of their sadistic arts and inculcate a respect for the human person-a process which must begin more by example than by precept if the lower rungs are really to emulate. Thirdly, if any of these escort policemen are found to have misconducted themselves, no sense of police solidarity or in-service comity should induce the authorities to hide the crime. Condign action, quickly taken is surer guarantee of community credence than bruiting about that 'all is well with the police, the critics are always in the wrong, Nothing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights. We believe the basic pathology which makes police cruelty possible will receive Government's serious attention. Who will police the police What psychic stress and social deprivation of the constabulary's life-style need corrective healing? When will 'wits, not fists' become a police kit? When will the roots of 'third degree' be plucked out and the fresh shoots of humanist respect put out? We make these observations in the humane hope that Art. 21, with its profound concern for life and limb, will become dysfunctional unless the agencies of the law in the police and prison establishments have sympathy for the humanist creed of that Article. 46. Their Lordships of the Hon'ble Supreme Court in Rudul Sah Vs. State of Bihar and Another, AIR 1983 SC 1086 have further held that compensation for illegal detention can be granted under Article 32 without affecting his right to sue for damages. Their Lordships have held as under: 9. It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of Courts, Civil and Criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a court of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right. The instant case is illustrative of such, cases. The petitioner was detained illegally in the prison for over fourteen years after his acquittal in a full-dressed trial. He filed a Habeas Corpus petition in this Court for his release from illegal detention. He obtained that relief, our finding being that his detention in the prison after his acquittal was wholly unjustified. He contends that he is entitled to be compensated for his illegal detention arid that we ought to pass an appropriate order for the payment of compensation in this Habeas Corpus petition itself. 10. We cannot resist this argument. We see no effective answer to it save the stale, and sterile objection that the petitioner may, if so advised, file a suit to recover damages from the State Government. Happily, the State's counsel has not raised that objection. 10. We cannot resist this argument. We see no effective answer to it save the stale, and sterile objection that the petitioner may, if so advised, file a suit to recover damages from the State Government. Happily, the State's counsel has not raised that objection. The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violaters in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers. 47. Their Lordships of the Hon'ble Supreme Court in Bhim Singh, MLA Vs. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers. 47. Their Lordships of the Hon'ble Supreme Court in Bhim Singh, MLA Vs. State of Jammu & Kashmir and Others, (1985) 4 SCC 677 have held that police officers should have greatest regard for personal liberty of citizens. Their Lordships have condemned the mala fide, high-handed and authoritarian conduct in depriving the personal liberty of a person. Their lordships have held as under: 2. From the affidavits filed by the several police officers, it transpires that an FIR under S. 153A of the Ranbir Penal Code was registered against Shri Bhim Singh on Sept. 9, 1985 at Police Station, Pacca Danga, Jammu on the allegation that he had delivered an inflammatory speech at a public meeting held near Parade Ground, Jammu at 7.00 P. M. on Sept. 8, 1985. The Officer-in-charge of Police Station, Pacca Danga brought the matter to the notice of the Senior Superintendent of Police, Jammu, who in turn informed the Deputy Inspector General of Police of Jammu range. On 10th Sept., 1985, requisition for the arrest of Shri Bhim Singh was sent to the Superintendent of Police, Anantnag through. the Police Control Room Srinagar. This fact is sworn to by Shri M. M. Khajuria, Inspector General of Police, Jammu & Kashmir. Shri M. A. Mir, Superintendent of Police, Anantnag has, however, stated in his affidavit that on Sept. 9, 1985 at about 11.30 P.M. he was informed by the Police Control Room Srinagar that Shri Bhim Singh MLA was required to be apprehended as he was wanted in a case registered under S. 153A of Ranbir Penal Code According to him he immediately directed the Office-in-charge of Police Station, Qazi Kund that Shri Bhim Singh may be apprehended as and when he reached his jurisdiction. He further instructed him that he should be brought to the District Headquarters, Anantnag after his arrest. These statements are obviously untrue in view of the affidavit of Shri Khajuria, Inspector General of Police that the information to the Superintendent of Police, Anantnag was conveyed through the Police Control Room, Srinagar on 10th Sept., 1985. Shri Mir has not chosen to explain why he expected Shri Bhim Singh to pass through Qazi Kund that night. These statements are obviously untrue in view of the affidavit of Shri Khajuria, Inspector General of Police that the information to the Superintendent of Police, Anantnag was conveyed through the Police Control Room, Srinagar on 10th Sept., 1985. Shri Mir has not chosen to explain why he expected Shri Bhim Singh to pass through Qazi Kund that night. Quite obviously even before he had received any information from the Police Control Room about the alleged case registered against Shri Bhim Singh Shri Mir had instructed the Officer-in-charge, Police Station, Qazi Kund to arrest Shri Bhim Singh if he came within his jurisdiction. Whether he did it on his own and if so, for what reason or whether he did it on other instructions received by him is a matter which requires our consideration. At about 3.00 A. M., according to Shri Mir, Shri Bhim Singh was arrested at Qazi Kund by the Officer-in- charge of Police Station, Qazi Kund and brought to the District Headquarters where it appears Shri Bhim Singh was provided with facilities for rest, wash breakfast, etc. It is necessary to mention here that no affidavit has been filed before us by the Officer-in-charge of Police Station, Qazi Kund, the officer who arrested Shri Bhim Singh It appears that under the orders of the Superintendent of Police, Anantnag, Shri Bhim Singh was taken from Anantnag by Shafi Laigroo, Inspector of Police, District Police Lines, Anantnag in a Matador at about 7.30 A.M. on 10th September, 1985. They reached according to Mohd Shafi Laigroo, Batota at 2.00 P.M. where Bhim Singh was provided with lunch. They reached Udhampur at 5.00 P. M. where Bhim Singh was provided with tea and finally they reached Jammu city Police Station at 7.30 P.M. There they learnt that Bhim Singh was wanted in connection with a case registered by the police of Pacca Danga Station. He was, therefore. taken to Pacca Danga Police Station and handed over to the Officer-in-charge of Pacca Danga Police Station. Mohd. Amin Amjum. Deputy Superintendent of Police Headquarters, Udhampur and Shri Rajender Gupta, Probationary Deputy Superintendent of Police, Udhampur were directed by the Senior Superintendent of Police, Udhampur to see to the safe passage of Bhim Singh through Udhampur District. They were informed that Bhim Singh was taken from Anantnag to Jammu in a Matador. Mohd. Amin Amjum. Deputy Superintendent of Police Headquarters, Udhampur and Shri Rajender Gupta, Probationary Deputy Superintendent of Police, Udhampur were directed by the Senior Superintendent of Police, Udhampur to see to the safe passage of Bhim Singh through Udhampur District. They were informed that Bhim Singh was taken from Anantnag to Jammu in a Matador. So they followed the Matador in which Bhim Singh was being taken from Chenani Police Station to Jammu and thereafter returned to their respective stations. According to the Inspector General of Police, Shri Bhim Singh was taken to Police Station Pacca Danga at about 9.30 P. M. On 11th Sept. 1985, a remand to police custody for two days was obtained from an Executive Magistrate First Class. A copy of the application for remand made in Urdu with the endorsement of the Executive Magistrate First Class has been filed as an annexure to the affidavit of Shri Khazuria. The endorsement says, "Remanded for two days with effect from 11th instant." It is signed by the Magistrate and dated 11th Sept., 1985. Neither the application nor the endorsement shows that Shri Bhim Singh was produced before the Magistrate when remand was sought. Shri Bhim Singh expressly denied that he was produced before any Magistrate on 11th With reference to the remand obtained on 11th Sept., 1985, Shri Khajuria does not state in his affidavit that Shri Bhim Singh was produced before the Executive Magistrate, First Class on 11th Sept I 1985. But in very careful and guarded language he says, "A remand to police custody for two days was obtained by Pacca Danga Police Station from Executive Magistrate, First Class on 11th Sept., 1985." The Officer-in-charge Police Station Pacca Danga has not filed any affidavit. It has to be mentioned here that Shri Bhim Singh moved an application before the Executive Magistrate on 24th Oct., 1985 to be informed as to the time when remand was obtained from the Magistrate. The Magistrate made the following endorsement on the application of Shri Bhim Singh: Returned in original to the applicant with the remarks that the remand application was moved before me by the SHO Pacca Danga Jammu on 11th September, 1985 after office hours in the evening at my residence and the (illegible) remanded the applicant in police custody for a period of two days alone. On the expiry of the remand of two days granted by the Executive Magistrate, a further remand was obtained for one day, this time, not from the Executive Magistrate, First Class, but, from the Sub-Judge. It was probably thought not wise to go before the same Magistrate and ask for a second remand The application made in Urdu to the Sub-Judge with the endorsement of the Sub-Judge has also been filed as an annexure to the Affidavit of Shri Khajuria. The endorsement of the Sub-Judge reads: Application for police remand has been moved by Shri Bansi Lal (illegible) S. H. O. P/ S Pacca Danga with the submission that the accused Shri Bhim Singh is sick (Medical Certificate attached) and he be removed to the Police lock up as the investigation in the case is still in progress. Perused the police diaries with the SHO and also the medical (illegible) examination slip. The accused is authorised to be left in police lock up for one day. The accused be produced in the court by tomorrow for further necessary remand orders. The endorsement is signed by the Sub-Judge and is dated 13th Sept., 1985. We have again to mention here that Shri Bhim Singh requested the Magistrate to give him a copy of the Medical certificate purported to have been submitted by the S. H. O. Pacca Danga. On this application, the Sub-Judge made the following endorsement: Shri Bhim Singh has moved an application requesting this Court to certify the time when the police remand application was moved before me by Police P/S Pacca Danga on 13-9-85. The application is also accompanied with a photostat copy of the remand order passed by me on 13-9-85 as a duty Magistrate. The application in original was forwarded to the I/C Police Station Pacca Danga for report and production of case diaries of the case for perusal, but it has been reported that the case diaries are with SHO who is out on law and order duty. From the perusal of the photostat copies of the remand order and from my recollection, it is certified that the remand application was moved before me at my residence after court hours in the evening Shri Bhim Singh swears in his rejoinder affidavit that he was not produced before the Sub-Judge on 13th nor was he examined at any time by any doctor. Shri Khajuria in his affidavit again uses very careful language and says, "On the expiry of this remand, an application for further remand was submitted before the Sub-Judge (Judicial Magistrate First Class) on 13th Sept., 1985, who extended the remand by one day." Shri Khajuria does not say a word about Shri Bhim Singh having been examined by any doctor. He makes no reference to the production of any medical certificate before the Sub-Judge. As already mentioned, the Officer-in-charge of the Pacca Danga Police Station has not filed any affidavit before us. Thereafter on 14th Sept., 1985, Shri Bhim Singh was produced before the Sub-Judge and was remanded to judicial custody for two days with a direction to produce him before the Sessions Judge, Jammu on 16th Sept., 1985. He was accordingly taken to the Court of the Sessions Judge on 16th Sept., 1985, but as the Sessions Judge was absent, he was produced before the Additional Sessions Judge. He was released on bail on his personal bond by the Additional Sessions Judge. That he was produced before the Magistrate on 14th, remanded to judicial custody for two days, produced before the Additional Sessions Judge on 16th and released on bail are facts which are not disputed by Shri Bhim Singh. In his affidavit when he refers to the events of 14th and 16th September, 1985, Shri Khajuria takes good care to use the words "produced before the Sub-Judge" and "produced before the Additional Sessions Judge". As mentioned by us earlier, with reference to the events on 11th and 13th Sept., 1985, Shri Khajuria very carefully refrained from using the word "produced". He merely said, remand was obtained". Shri Bhim Singh in his supplemental and rejoinder affidavits has stated certain facts relating to alleged further harassment by the police. We are not concerned with those further facts for the purposes of this case. We are only concerned with the detention of Shri Bhim Singh from 3.00 A.M. on 10th Sept., 1985 until he was produced before the Sub-Judge on 14th Sept., 1985. The two remand orders said to have been made by the Executive Magistrate First Class and Sub-Judge on 11th and 13th Sept., 1985 respectively do not contain any statement that Shri Bhim Singh was produced either before the Executive Magistrate First Class or before the Sub-Judge. The two remand orders said to have been made by the Executive Magistrate First Class and Sub-Judge on 11th and 13th Sept., 1985 respectively do not contain any statement that Shri Bhim Singh was produced either before the Executive Magistrate First Class or before the Sub-Judge. The applications for remand also do not contain any statement that Shri Bhim Singh was being produced before the Magistrate or the Sub-Judge. Shri Khajuria, the Inspector General of Police has very carefully chosen his words and stated in the affidavit that remand orders were obtained. He refrained from stating that Shri Bhim Singh was produced before the Magistrate or the Sub-Judge on 11th and 13th. The Medical Certificate referred to in the application dated 13th Sept. 1985 has also not been produced and Shri Khajuria makes no reference to it in his affidavit. In addition we have, the important circumstance that no affidavit of the officer in charge of the Police Station Pacca Danga has been filed before us. Nor has the affidavit of the officer, who arrested Shri Bhim Singh been filed before us. At the time of hearing the petition on 19th Nov. 1985, Shri E. C. Aggarwal stated to us that the affidavits of the two police officers had been got ready but were mislaid. He tried to show us some photostat copies of the alleged affidavits and prayed that the case might be adjourned for filing the affidavits of the two police officers. We refused to accede to the request. There was ample time for the respondents to file the affidavits of the two police officers after we issued notice to the respondents, It is not disputed that right from the beginning, they were aware of the writ petition filed in this Court. The affidavits of Shri Khajuria and others were filed as far back as 16th Oct., 1985 and there was no reason whatsoever for not filing the affidavits of the two police officers at that time. When the complaint was of illegal arrest and detention, the least one would expect the respondents to do is to file the affidavits of the officer who arrested the petitioner and the officer who produced him before the Magistrate for the purpose of obtaining orders of remand. Instead of filing their affidavits, several inconsequential affidavits were filed perhaps only to confuse the issue. Instead of filing their affidavits, several inconsequential affidavits were filed perhaps only to confuse the issue. Shri Khajuria, the Inspector General of Police filed a lengthy affidavit containing statements of fact, most of which he could not be personally aware. However, he chose to use careful language, as pointed out by us, whenever he referred to the remand of Shri Bhim Singh or his production before a Magistrate or Sub-Judge. We are convinced that the failure to file the affidavits of the officers, who arrested Shri Bhim Singh and the Sub-Inspector, incharge of Pacca Danga Police Station was deliberate. They were to be kept back until there was dire necessity. We do not have the slightest hesitation in holding that Shri Bhim Singh was not produced before the Executive Magistrate First Class on 11th and was not produced before the Sub-Judge on 13th. Orders of remand were obtained from the Executive Magistrate and the Sub-Judge on the applications of the police officers without the production of Shri Bhim Singh before them. The manner in which the orders were obtained, i.e. at the residence of the Magistrate and the Sub-Judge after office hours, indicates the surreptitious nature of the conduct of the police. The Executive Magistrate and the Sub-Judge do not at all seem to have been concerned that the person whom they were remanding to custody had not been produced before them. They acted in a very casual way and we consider it a great pity that they acted without any sense of responsibility or genuine concern for the liberty of the subject., The police officers, of course, acted deliberately and mala fide and the Magistrate and the Sub-Judge aided them either by colluding with them or by their casual attitude. We do not have any doubt that Shri Bhim Singh was not produced either before the Magistrate on 11th or before the Sub-Judge on 13th, though he was arrested in the early hours of the morning of 10th. There certainly was a gross violation of Shri Bhim Singh's constitutional rights under Arts. 21 and 22(2). Earlier we referred to the circumstance that though Shri Khajuria, Inspector General of Police stated that information was sent to Superintendent of Police, Anantnag through the Police Control Room, Srinagar on 10th Sept. There certainly was a gross violation of Shri Bhim Singh's constitutional rights under Arts. 21 and 22(2). Earlier we referred to the circumstance that though Shri Khajuria, Inspector General of Police stated that information was sent to Superintendent of Police, Anantnag through the Police Control Room, Srinagar on 10th Sept. 1985, Shri Mir, the Superintendent of Police, Anantnag stated that on 9th Sept., 1985 at 11.30 P.M., he was informed by the Police Control Room, Srinagar that Shri Bhim Singh was required to be apprehended as he was wanted in a case registered u/s 153A of the Ranbir Penal Code. Nobody cared to explain why it was thought that Bhim Singh would pass through Qazi Kund in Anantnag District on the night of September 9-10. Nobody thought fit to explain how and why the Senior Superintendent of Police, Udhampur came to direct his officers to escort Bhim Singh. It has not been explained how and when the Senior Superintendent of Police, Udhampur came to know of the arrest of Bhim Singh and who required him to arrange for the "safe passage" of Bhim Singh through Udhampur District. To our minds, it appears as if it was expected that Bhim Singh would proceed from Jammu to Srinagar on the intervening night of 9-10 September, 1985 as there was a meeting of the Assembly on 11th September and the police were alerted to arrest him when sighted en route to Srinagar and take him back to prevent him from proceeding to Srinagar to attend the Session of the Legislative Assembly. We can only say that the Police Officers acted in a most highhanded way. We do not wish to use stronger words to condemn the authoritarian acts of the police. If the personal liberty of a Member of the Legislative Assembly is to be played with in this fashion, one can only wonder what may happen to lesser mortals! Police Officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to such bizarre acts of lawlessness. Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct. Police Officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to such bizarre acts of lawlessness. Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct. However the two police officers, the one who arrested him and the one who obtained the orders of remand, are but minions in the lower rungs of the ladder. We do not have the slightest doubt that the responsibility lies elsewhere and with the higher echelons of the Government of Jammu and Kashmir but it is not possible to say precisely where and with whom, on the material now before us. We have no doubt that the constitutional rights of Shri Bhim Singh were violated with impunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but suitably and adequately compensated, he must be. That we have the right to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of this Court in Rudul Sah Vs. State of Bihar and Another, (1983) 4 SCC 141 and Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026 . When a person comes to us with the complaint that he has been arrested and imprisoned with mischevous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case. We direct the first respondent, the State of Jammu and Kashmir to pay to Shri Bhim Singh a sum of Rs. 50,000/-within two months from today. The amount will be deposited with the Registrar of this Court and paid to Shri Bhim Singh. 48. In a case of police atrocities, their Lordships of the Supreme Court in Peoples' Union for Democratic Rights through its Peoples' Union For Democratic Rights Through Its Secretary and Another Vs. Police Commissioner, Delhi Police Headquarters and Another, (1989) 4 SCC 730 have awarded a sum of Rs. 50,000/- in case of the petitioner and a sum of Rs. 48. In a case of police atrocities, their Lordships of the Supreme Court in Peoples' Union for Democratic Rights through its Peoples' Union For Democratic Rights Through Its Secretary and Another Vs. Police Commissioner, Delhi Police Headquarters and Another, (1989) 4 SCC 730 have awarded a sum of Rs. 50,000/- in case of the petitioner and a sum of Rs. 500/- to the lady who was stripped of her clothes at the Police Station. Their Lordships have held as under: 4. Under the above circumstances we direct that the family of Ram Swaroop who is dead will be paid Rs. 50,000.00 as compensation, which will be invested in some scheme under the Life Insurance Corporation, so that the destitute family may get some amount monthly and the money may also be kept secured. It is also directed that petitioner 2 Patasi who was stripped of her clothes at the police station, shall be paid Rs. 500.00 as compensation and the 8 other persons namely (1 Dandwa (2 Ram Prasad (3 Jaipal (4 Mahavir (5 Kannu (6 Munsjia (7 Hukka and (8 Pratap, who were taken in the police station without being paid for their work will be paid Rs. 25.00 each. It is directed that after investigation and inquiry officers who are found guilty, the amount paid as compensation or part thereof may be recovered from these persons out of their salaries after giving them opportunity to show cause. 49. Their Lordships of the Hon'ble Supreme Court in SHELI, a Women's Resources Centre through Saheli, A Women's Resources center, Through Ms Nalini Bhanot and Others Vs. Commissioner of Police Delhi Police Headquarters and Others, AIR 1990 SC 513 have held that in a case where a 9 years old child died of beatings and assault by police officer, the State Government was directed to pay a sum of Rs. 75,000/- as compensation to mother of victim. Their Lordships have further held that in a case of death due to police atrocities, the State is liable to pay compensation. Their Lordships have held as under: 10. 75,000/- as compensation to mother of victim. Their Lordships have further held that in a case of death due to police atrocities, the State is liable to pay compensation. Their Lordships have held as under: 10. It is now apparent from the report dated 5-12-1987 of the Inspector of the Crime Branch, Delhi as well as the counter-affidavit of the Deputy Commissioner of Police, Delhi on behalf of the Commissioner of Police, Delhi and also from the fact that the prosecution has been launched in connection with the death of Naresh, son of Kamlesh Kumari showing that Naresh was done to death on account of the beating and assault by the agency of the sovereign power acting in vilation and excess of the power vested in such agency. The mother of the child, Kamlesh Kumari, in our considered opinion, is so entitled to get compensation for the death of her son from the respondent No. 2, Delhi Administration. 11. An action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death. In cases of assault, battery and false imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity, loss of liberty and death. As we have held hereinbefore that the son of Kamlesh Kumari aged 9 years died due to beating and assault by the S.H.O., Lal Singh and as such she is entitled to get the damages for the death of her son. It is well settled now that the State is responsible for the tortious acts of its employees. The respondent No. 2, Delhi Administration is liable for payment of compensation to Smt. Kamlesh Kumari for the death of her son due to beating by the S. H. O. of Anand Parbat Police Station, Shri Lal Singh. 15. On a conspectus of these decisions we deem it just and proper to direct the Delhi Administration, respondent No. 2 to pay compensation to Kamlesh Kumari, mother of the deceased, Naresh a sum of Rs. 75,000/- within a period of four weeks from the date of this Judgment. The Delhi Administration may take appropariate steps for recovery of the amount paid as compensation or part thereof from the officers who will be found responsible, if they are so advised. 75,000/- within a period of four weeks from the date of this Judgment. The Delhi Administration may take appropariate steps for recovery of the amount paid as compensation or part thereof from the officers who will be found responsible, if they are so advised. As the Police Officers are not parties before us, we state that any observation made by us in justification of this order shall not have any bearing in any proceedings specially criminal prosecution pending against the police officials in connection with the death of Naresh. The writ petitions are disposed of accordingly. 50. Their Lordships of the Hon'ble Supreme Court in Saheli, A Women's Resources center, Through Ms Nalini Bhanot and Others Vs. Commissioner of Police Delhi Police Headquarters and Others, AIR 1990 SC 513 , have held that State is liable for tortuous act committed by its agency. In this case, the child was done away to death on account of beating and assault by the police acting in violation and excess of power vested in them. Their Lordships have held that mother of the child was entitled to exemplary compensation of Rs. 75,000/-from State for death of the child. Their Lordships have held as under: 11. An action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death. In cases of assault, battery and false imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity, loss of liberty and death. As we have held hereinbefore that the son of Kamlesh Kumari aged 9 years died due to beating and assault by the S.H.O., Lal Singh and as such she is entitled to get the damages for the death of her son. It is well settled now that the State is responsible for the tortious acts of its employees. The respondent No. 2, Delhi Administration is liable for payment of compensation to Smt. Kamlesh Kumari for the death of her son due to beating by the S. H. O. of Anand Parbat Police Station, Shri Lal Singh. 15. On a conspectus of these decisions we deem it just and proper to direct the Delhi Administration, respondent No. 2 to pay compensation to Kamlesh Kumari, mother of the deceased, Naresh a sum of Rs. 75,000/- within a period of four weeks from the date of this Judgment. 15. On a conspectus of these decisions we deem it just and proper to direct the Delhi Administration, respondent No. 2 to pay compensation to Kamlesh Kumari, mother of the deceased, Naresh a sum of Rs. 75,000/- within a period of four weeks from the date of this Judgment. The Delhi Administration may take appropariate steps for recovery of the amount paid as compensation or part thereof from the officers who will be found responsible, if they are so advised. As the Police Officers are not parties before us, we state that any observation made by us in justification of this order shall not have any bearing in any proceedings specially criminal prosecution pending against the police officials in connection with the death of Naresh. The writ petitions are disposed of accordingly. 51. Their Lordships of the Hon'ble Supreme Court again in Gauri Shanker Sharma etc. Vs. State of U.P. etc., AIR 1990 SC 709 have held that it is generally difficult in cases of deaths in police custody to secure evidence against the policemen responsible for resorting to third degree methods since they are in charge of police station records which they do not find difficult to manipulate. 52. Their Lordships of the Hon'ble Supreme Court in Sham Kant Vs. State of Maharashtra, AIR 1992 SC 1879 , in a case of custodial violence have held as under: 27. In a case of this nature, one cannot expect direct evidence from independent witnesses as the most unfortunate and shameful incident took place both in the police station and the temple in secrecy while the undertrial prisoners were under the custody of the police. 53. A Division Bench of Orissa High Court in Golakha Chandra Jena Vs. Director General of Police and Others, (1992) CriLJ 2901 has held that if death is only due to police torture, the State is liable to pay compensation. Their Lordships have held as under: 13. The death of Pramod was, therefore, violative of Article 21 of the Constitution. So, it is a fit case where ap0propriate compensation should be awarded to the petitioner. The question is about the quantum of compensation. In Saheli, A Women's Resources center, Through Ms Nalini Bhanot and Others Vs. Commissioner of Police Delhi Police Headquarters and Others, AIR 1990 SC 513 , the State Government was directed to pay a sum of Rs. So, it is a fit case where ap0propriate compensation should be awarded to the petitioner. The question is about the quantum of compensation. In Saheli, A Women's Resources center, Through Ms Nalini Bhanot and Others Vs. Commissioner of Police Delhi Police Headquarters and Others, AIR 1990 SC 513 , the State Government was directed to pay a sum of Rs. 75,000/- as compensation to the mother of the victim of police torture who was aged about 9 years. In Peoples' Union for Democratic Rights Vs. State of Bihar and Others, AIR 1987 SC 355 the Court had, however, granted a sum of Rs. 20,000/- to the victim of police firing. 14. In the present case what we find is that according to the petitioner Pramod had been married just two months earlier and he was the only member of the house looking after agriculture. The loss to the wife of Pramod cannot really be compensated by money. This apart, as he was said to be the only member of the house looking after agriculture, the financial hardship of the family can well be imagined; more so, when the petitioner belongs to the lower strata of the society. 54. The third degree treatment to an arrested person by the police has been deprecated by the their Lordships of the Hon'ble Supreme Court in Bhagwan Singh and another Vs. State of Punjab, (1992) 3 SCC 249 . Their Lordships have held that the police must adopt some scientific methods than resorting to physical torture. Their Lordships have further held that if the custodians of law themselves indulge in committing crimes then no member of the society is safe and secure. Their Lordships have further held that if police officers who have to provide security and protection to the citizens indulge in such methods they are creating a sense of insecurity in the minds of the citizens. It is more heinous than a game-keeper becoming a poacher. Their Lordships have held as under: 7. A case cannot be thrown out merely on the, ground that the dead body is not traced when the other evidence clinchingly establishes that the deceased met his death at the hands of the accused. It is more heinous than a game-keeper becoming a poacher. Their Lordships have held as under: 7. A case cannot be thrown out merely on the, ground that the dead body is not traced when the other evidence clinchingly establishes that the deceased met his death at the hands of the accused. It may be a legitimate right of any police officer to interrogate or] arrest any suspect on some credible material] but it is needless to say that such an arrest must be in accordance with the law and the interrogation does not mean inflicting injuries. It should be in its true sense and purposeful namely to make the investigation effective. Torturing a person and using third degree methods are of medieval nature and they are barbaric and contrary to law. The police would be accomplishing behind their closed doors precisely what the demands of our legal order forbid. In Dagdu and Others Vs. State of Maharashtra, (1977) 3 SCC 68 this Court observed as under (Para 87 of AIR): The police, with their wide powers are apt to overstep their zeal to detect crimes and are tempted to use the strong arm against those who happen to fall under their secluded jurisdiction. That tendency and that temptation must in the larger interest of justice be nipped in the bud. 8. It is a pity that some of the police officers, as it has happened in this case, have not shed such methods even in the modern age. They must adopt some scientific methods than resorting to physical torture. If the custodians of law themselves -Indulge in committing crimes then no member of the society is safe and secure. If police officers who have to provide security and protection to the citizens indulge in such methods they are creating a sense of insecurity in the minds of the citizens. It is more henious than a game keeper becoming a poacher. 55. Their Lordships of the Hon'ble Supreme Court in Nilabati Behera (Smt) alias Lalita Behera (through the Supreme Court Smt. Nilabati Behera alieas Lalita Behera Vs. It is more henious than a game keeper becoming a poacher. 55. Their Lordships of the Hon'ble Supreme Court in Nilabati Behera (Smt) alias Lalita Behera (through the Supreme Court Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, AIR 1993 SC 1960 have held that convicts, prisoners and under trials also have right under Article 21 of the Constitution of India and the State has strict duty to ensure that a citizen in custody of police or prison is not deprived of his right under Article 21, except in accordance with law. Their Lordships have further held that award of compensation in proceedings for enforcement of fundamental rights under Articles 32 and 226 is a remedy available in public law. The Lordships have held as under 8. The doctor deposed that all the injuries were caused by hard and blunt object; the injuries on the face and left temporal region were post-mortem while the rest were ante-mortem. The doctor excluded the possibility of the injuries resulting from dragging of the body by a running train and stated that all the ante-mortem injuries could be caused by lathi blows. It was further stated by the doctor that while all the injuries could not be caused in a train accident, it was possible to cause all the injuries by lathi blows. Thus, the medical evidence comprising the testimony of the doctor, who conducted the post-mortem, excludes the possibility of all the injuries to Suman Behera being caused in a train accident while indicating that all of them could result from the merciless beating given to him. The learned Additional Solicitor General placed strong reliance on the written opinion of Dr. K. K. Mishra, Professor & Head of the Department of Forensic Medicine, Medical College, Cuttack, given on 15-2-1988 on a reference made to him wherein he stated on the basis of the documents that the injuries found on the dead body of Suman Behera could have been caused by rolling on the railway track in between the rail and by coming into forceful contact with projecting part of the moving train/engine. While adding that it did not appear to be a case of suicide, he indicated that there was more likelihood of accidental fall on the railway track followed by the running engine/ train. In our view, the opinion of Dr. While adding that it did not appear to be a case of suicide, he indicated that there was more likelihood of accidental fall on the railway track followed by the running engine/ train. In our view, the opinion of Dr. K. K. Mishra, not examined as a witness, is not of much assistance and does not reduce the weight of the testimony of the doctor who conducted the post-mortem and deposed as a witness during the inquiry. The opinion of Dr. K. K. Mishra is cryptic, based on conjectures for which there is no basis, and says nothing about the injuries being both ante-mortem and post-mortem. We have no hesitation in reaching this conclusion and preferring the testimony of the doctor who conducted the post-mortem. 9. We may also refer to the Report dated 19-12-1988 containing the findings in a joint inquiry conducted by the Executive Magistrate and the Circle Inspector of Police. This Report is stated to have been made under S. 176, Cr. P.C. and was strongly relied on by the learned Additional Solicitor General as a statutory report relating to the cause of death. In the first place, an inquiry under S. 176, Cr. P.C. is contemplated independently by a Magistrate and not jointly with a police officer when the role of the police officer itself is a matter of inquiry. The joint finding recorded is that Suman Behera escaped from police custody at about 3 a.m. on 2-12-1987 and died in a train accident as a result of injuries sustained therein. There was handcuff on the hands of the deceased when his body was found on the railway track with rope around it. It is significant that the Report dated 11-3-1988 of the Regional Forensic Science Laboratory (Annexure 'R-8', at p. 108 of the paper book) mentions that the two cut ends of the two pieces of rope which were sent for examination do not match with each other in respect of physical appearance. This finding about the rope negatives the respondents' suggestion that Suman Behera managed to escape from police custody by chewing off the rope with which he was tied. This finding about the rope negatives the respondents' suggestion that Suman Behera managed to escape from police custody by chewing off the rope with which he was tied. It is not necessary for us to refer to the other evidence including the oral evidence adduced during the inquiry, from which the learned District Judge reached the conclusion that it is a case of custodial death and Suman Behera died as a result of the injuries inflicted to him voluntarily while he was in police custody at the Police Outpost Jeraikela. We have reached the same conclusion on a reappraisal of the evidence adduced at the inquiry taking into account the circumstances, which also support that conclusion. This was done in view of the vehemence with which the learned Additional Solicitor General urged that it is not a case of custodial death but of death of Suman Behera caused by injuries sustained by him in a train accident, after he had managed to escape from police custody by chewing off the rope with which he had been tied for being detained at the Police Outpost. On this conclusion, the question now is of the liability of the respondents for compensation to Suman Behera's mother, the petitioner, for Suman Behera's custodial death. 10. In view of the decisions of this Court in Rudul Sah Vs. State of Bihar and Another, (1983) 4 SCC 141 . Sebastian M. Hongray Vs. Union of India (UOI) and Others, and (1984) 3 SCR 544 : ( AIR 1984 SC 1026 ), Bhim Singh Vs. State of Jammu & Kashmir, (1985) 4 SCC 677 and Bhim Singh, MLA Vs. State of Jammu & Kashmir and Others, (1985) 4 SCC 677 , Saheli, A Women's Resources center, Through Ms Nalini Bhanot and Others Vs. Commissioner of Police Delhi Police Headquarters and Others, AIR 1990 SC 513 and State of Maharashtra and Others Vs. Ravikant S. Patil, (1991) 2 SCC 373 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 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. 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. 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 Vs. State of Bihar and Another, (1983) 4 SCC 141 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 Vs. State of Bihar and Another, (1983) 4 SCC 141 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 Kasturilal Ralia Ram Jain Vs. State of Uttar Pradesh, AIR 1965 SC 1039 distinguished therefrom. 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 Kasturilal Ralia Ram Jain Vs. State of Uttar Pradesh, 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. 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. 56. Their Lordships of the Hon'ble Supreme Court in Pratul Kumar Sinha Vs. State of Bihar and another, (1994) Supp. (3) SCC 100 have ordered to pay ex gratia payment of Rs. 25,000/- to family of deceased, who has died due to atrocities committed by the police. Their Lordships have further held that the State Government may recover this amount from the tort-feasors. Their Lordships have held as under: 2. However, because of the atrocities committed by the police, three young lives were lost. One of them was a bachelor while the other two were married and left behind their young widows. We think that in order to ensure that they do not have difficulty on account of this loss some ex-gratia payment must be made to them. We direct that an ex-gratia payment of Rs. 25,000.00 each be paid to the widows of the married persons and the parents of the bachelor. In order to ensure that this money is not frittered away, we direct the District Judge concerned of Jagannathpur to ensure that proper arrangements are made so far as the utilisation of the amount is concerned. We, therefore, direct the State Government to deposit the money with the District Judge of the area comprising Jagannathpur Police Station who will inform the beneficiaries about this court's order and make such arrangement as he considers appropriate after ascertaining the views of the beneficiaries in regard to this ex-gratia amount. If the State Government so desires it will be free to take such action as it considers necessary to recover this amount from the tort-feasors. The amount should be deposited with the District Judge within six weeks from today. If the State Government so desires it will be free to take such action as it considers necessary to recover this amount from the tort-feasors. The amount should be deposited with the District Judge within six weeks from today. With these observations, we dispose of this writ petition. 57. Their Lordships of the Hon'ble Supreme Court in Arvinder Singh Bagga Vs. State of U.P. and Others, (1994) 6 SCC 565 in a case where a married women was caused physical, mental and psychological torture by the police officers, the State Govt. was directed to launch prosecution against the police officers concerned and to pay compensation of Rs. 10,000/- to the victim woman and her husband and Rs. 5000/- to each of the other victims. 58. Their Lordships of the Hon'ble Supreme Court in Inder Singh Vs. State of Punjab and others, (1995) 3 SCC 702 have held that the primary duty of those in uniform is to uphold law and order and protect the citizen. If members of a police force resort to illegal abduction and assassination, if other members of that police force do not record and investigate complaints in this behalf for long periods of time, if those who had been abducted are found to have been unlawfully detained in police stations in the State concerned prior to their probable assassination, the case is not one of errant behaviour by a few members of that police force, it betrays scant respect for the life and liberty of innocent citizens and exposes the willingness of others in uniform to lend a helping hand to one who wreaks private vengeance on mere suspicion. Their Lordships have further held that when the police force of a State acts as the Punjab Police has in this case, the State whose arm that force is must bear the consequences. The State of Punjab was directed to pay to the legal representatives of each of the said seven persons an amount of Rs. 1.50 lakhs within two weeks. Their Lordships have further directed that the prosecution launched against the erring officials was to be expeditiously conducted and disciplinary inquiries were ordered to be initiated against the accused persons. Their Lordships have held as under: 9. 1.50 lakhs within two weeks. Their Lordships have further directed that the prosecution launched against the erring officials was to be expeditiously conducted and disciplinary inquiries were ordered to be initiated against the accused persons. Their Lordships have held as under: 9. The Punjab Police would appear to have forgotten that it was a police force and that the primary duty of those in uniform is to uphold law and order and protect the citizen. If members of a police force resort to illegal abduction and assassination, if other members of that police force do not record and Investigate complaints in this behalf for long periods of time, if those who had been abducted are found to have been unlawfully detained in police stations in the concerned State prior to their probable assassination, the case is not one of errant behaviour by a few members of that police force. Who do not see that "constitutional culture", as Mr. Tulsi put it, had percolated to the Punjab Police. On the contrary it betrays scant respect for the life and liberty of innocent citizens and exposes the willingness of others in uniform to lend a helping hand to one who wreaks private vengeance on mere suspicion. 12. Disciplinary inquiries must be started against the aforesaid accused as also the said Sita Ram and the then DIG, Border Range, Amritsar. Others responsible for delaying the registration of the complaint and inquiry thereon must also be identified and proceeded against. 59. Their Lordships of the Hon'ble Supreme Court in Kewal Pati (Smt) Vs. State of U.P. and Others, (1995) 3 SCC 600 in a case where the convict serving out the sentence was killed by a co-accused in jail, have held that killing in jail resulted in deprivation of life of the convict contrary to law, jail authorities having failed to ensure life and safety of the convict in jail, hence, widow and children of the deceased who were deprived of company and affection of the deceased are entitled to compensation. Their Lordships have ordered to pay a sum of Rs. 1 lakh to the widow and children of the deceased. Their Lordships have held as under: 3. In the result this petition is allowed by directing that the State of U.P. shall deposit a sum of Rs. 1,00,000.00 within three months from today, with the Registrar of this court. A sum of Rs. 1 lakh to the widow and children of the deceased. Their Lordships have held as under: 3. In the result this petition is allowed by directing that the State of U.P. shall deposit a sum of Rs. 1,00,000.00 within three months from today, with the Registrar of this court. A sum of Rs. 50,000.00 out of this amount shall be deposited in fixed deposit in any nationalised bank and the interest of it shall be paid to the wife and the children. The remaining amount shall be paid to the wife by the Registrar after being satisfied about the identification of the petitioner. The amount in deposit shall be paid to the wife on her option after all the children become major. In case of petitioner's death prior to the children becoming major, the amount shall be divided equally between the surviving children. 60. Their Lordships of the Hon'ble Supreme Court in State of M.P. Vs. Shyamsunder Trivedi and Others, (1995) 4 SCC 262 in a case of custodial death by police torture have held that generally when ocular and other evidence is not available, it would be police officials alone who can only explain the circumstances in which a person in their custody had died. Their Lordships have further held that the exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact-situations and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect. Their Lordships have further held that the Court must adopt a realistic rather than a narrow technical approach. Their Lordships have held as under: 17. From our independent analysis of the materials on the record, we are satisfied that Respondents 1 and 3 to 5 were definitely present at the police station and were directly or indirectly involved in the torture of Nathu Banjara and his subsequent death while in the police custody as also in making attempts to screen the offence to enable the guilty to escape punishment. The trial court and the High court, if we may say so with respect, exhibited a total lack of sensitivity and a "could not care less" attitude in appreciating the evidence on the record and thereby condoning the barbarous third degree methods which are still being used at some police stations, despite being illegal. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact-situations and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system a suspect. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilised society, governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in 'Khaki' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading towards perishing. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may lose faith in the judiciary itself, which will be a sad day. 18. In its 4th Report of June 1980, The National Police Commission noticed the prevalence of custodial torture etc. and observed that nothing is so dehumanising as the conduct of police in practising torture of any kind on a person in their custody. 18. In its 4th Report of June 1980, The National Police Commission noticed the prevalence of custodial torture etc. and observed that nothing is so dehumanising as the conduct of police in practising torture of any kind on a person in their custody. The Commission noticed with regret that the police image in the estimation of the public has badly suffered on account of the prevalence of this practice in varying degrees over the past several years and noted with concern the inclination of even some of the supervisory ranks in the police hierarchy to countenance this practice in a bid to achieve quick results by short-cut methods. Though S. 330 and 331 of the Indian Penal Code make punishable those persons who cause hurt for the purpose of extorting the confession, by making the offence punishable with sentence up to 10 years of imprisonment, but the convictions, as experience shows us, have been very few because the atrocities within the precincts of the police station are often left without any ocular or other direct evidence to prove who the offenders are. Disturbed by this situation, the Law Commission in its 113th Report recommended amendments to the Indian Evidence Act so as to provide that in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when the person was in the police custody, the court may presume that the injury was caused by the police officer having the custody of that person during that period unless, the police officer proves to the contrary. The onus to prove the contrary must be discharged by the police official concerned. The recommendation, however, we notice with concern, appears to have gone unnoticed and the crime of custodial torture etc. flourishes unabated. The onus to prove the contrary must be discharged by the police official concerned. The recommendation, however, we notice with concern, appears to have gone unnoticed and the crime of custodial torture etc. flourishes unabated. Keeping in view the dehumanising aspect of the crime, the flagrant violation of the fundamental rights of the victim of the crime and the growing rise in the crimes of this type, where only a few come to light and others don't, we hope that the government and Legislature would give serious thought to the recommendation of the Law Commission (supra) and bring about appropriate changes in the law not only to curb the custodial crime but also to see that the custodial crime does not go unpunished. The courts are also required to have a change in their outlook and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime so that as far as possible within their powers, the guilty should not escape so that the victim of the crime has the satisfaction that ultimately the majesty of law has prevailed. 61. Their lordships of the Hon'ble Supreme Court in Death of Sawinder Singh Grover In re: have ordered to pay a sum of Rs. 2,00,000/- by way of ex gratia payment. 62. Their Lordships of the Hon'ble Supreme Court in Punjab and Haryana High Court Bar Association Vs. State of Punjab and Others, (1996) 4 SCC 742 , in a case of abduction and alleged murder of an advocate, his wife and minor child and report of CBI showing involvement of certain police officers have directed the State Government to pay compensation of Rs. 10,00,000/- to the parents of the Advocate. The person who was falsely implicated, was also directed to be released forthwith and a sum of Rs. 2,00,000/- was paid to him for the sufferings caused to him and his remaining in jail for a long period. Their Lordships have further directed the Home Secretary of the State to suspend those police officers during the course of trial and the action was also directed to be taken by the DIG in the light of the findings of the CBI. Their Lordships have held as under: 2. Their Lordships have further directed the Home Secretary of the State to suspend those police officers during the course of trial and the action was also directed to be taken by the DIG in the light of the findings of the CBI. Their Lordships 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. 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. 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. 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. 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. 63. Their Lordships of the Hon'ble Supreme Court in People's Union for Civil Liberties Vs. Union of India and another, (1997) 3 SCC 433 have awarded a sum of Rs. 1,00000/- to the family of each deceased who were killed by the police. Their Lordships have held as under: 9. In Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, AIR 1993 SC 1960 , 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 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. 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 Vs. State of West Bengal, AIR 1997 SC 610 . The observations in Para 56 of the judgment are apposite and may be quoted: Thus, to sum up, it is now a well accepted 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 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 tortious 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. 10. The reference to and reliance upon Article 9(5) of the International Covenant on Civil and Political Rights, 1966 in Nilabati Behera, (1993 AIR SCW 2366) raises an interesting question, viz., to what extent can the provisions of such international covenants/ conventions be read into national laws. This issue has been the subject-matter of a recent decision in Australia, viz., Minister for Immigration and Ethnic Affairs v. Teoh, (1995)69 ALJ 423. The United Nations Convention on the Rights of the Child was ratified by the Commonwealth Executive in December 1990 and had force in Australia from January 16, 1991 pursuant to a declaration made, on December 22, 1992, by the Attorney General pursuant to Section 47 (1) of the Human Rights and Equal opportunity Commission Act, 1986 to the effect that the said convention is an international instrument relating to human rights. Respondent Teoh, a Malaysian citizen was found to have imported and be in possession of heroin, for which he was convicted. A deportation order was passed on that basis. Respondent Teoh, a Malaysian citizen was found to have imported and be in possession of heroin, for which he was convicted. A deportation order was passed on that basis. The Immigration Review Panel opined that deportation of Teoh would deprive his young children [who were Australian citizens] of their only financial support, landing them in bleak misery. Article 3 of the aforesaid Convention provides that "1. In all actions concerning children, whether undertaken by public or private social welfare institutions, Courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration". Teoh invoked this Article to ward off his deportation. The matter was carried to High Court where the question of enforceability of the Convention by the national Courts was thoroughly debated. Mason, CJ., speaking for himself and Dean,J., stated the position in the following words: It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. [Chow Hung Ching v. The King, (1948) 77 CLR 449 at 478; Bradley v. The Commonwealth, (1973 128 CLR 557 at 582; Simsek v. Macphee, (1982) 148 CLR 636 at 641-642; Koowarta v. Bjelke-Petersen, (1982) 153 CLR 168 at 211-212, 224-225; Kioa v. West, (1985) 159 CLR 550 at 570; Dietrich v. The Queen, (1992) 177 CLR 292 at 305; J. H. Rayner Ltd. v. Dept. of Trade, (1990) 2 AC 418 at 500. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive.[Simsek v. Macphee, (1982) 148 CLR, at 641-642]. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. In this case, it is common ground that the provisions of the Convention have not been incorporated in this way. It is not suggested that the declaration made pursuant to S. 47(1) of the Human Rights and Equal Opportunity Commission Act has this effect. In this case, it is common ground that the provisions of the Convention have not been incorporated in this way. It is not suggested that the declaration made pursuant to S. 47(1) of the Human Rights and Equal Opportunity Commission Act has this effect. But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the Courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party [Chu Kheng Lim v. Minister for Immigration, (1992) 176 CLR 1 at 381, at least in those cases in which the legislation is enacted after, or, in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law. It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law [Polites v. The Commonwealth,(1945 70 CLR 60 at 68-69, 77,80-81... Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the Courts of the common law. The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the Courts as a legitimate guide in developing the common law [Mabo v. Queensland (No.2), (1991) 175 CLR 1 at 42, per Brennan, J.(with whom Mason CJ and McHugh J. agreed); Dietrich v. The Queen, (1992) 177 CLR, at 321, per Brennan J.; at 360, per Toohey J.Jago v. District Court of New South Wales, (1988) 12 NSWLR 558 at 569, per Kirby P; Derbyshire County Council v.Times Newspapers Ltd., ( 1992 QB 770 ]. But the Courts should act in this fashion with due cirumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a back door means of importing an unincorporated convention into Australian law. But the Courts should act in this fashion with due cirumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a back door means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the Courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials [Lamb v. Cotogno, (1987 164 CLR 1 at 11-12]. Much will depend upon the nature of relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of our domestic law. 64. Their Lordships of the Hon'ble Supreme Court in D.K. Basu Vs. State of West Bengal, AIR 1997 SC 610 have held that torture, rape, death in police custody/lock-up infringes Article 21 as well as basic human rights and strikes a blow at the rule of law. Their Lordships have further held that torture involves not only physical suffering but also mental agony. Their Lordships have further held that victim of custodial violence and in case of his death in custody, his family members are entitled to compensation under public law in addition to the remedy available under private law for damages for tortuous act of the police personnel. Their Lordships have held as under: 9. The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the citizens. Custodial violence, including torture and death in the lock ups, strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society. These petitions raise important issues concerning police powers, including whether monetary compensation should be awarded for established infringement of the Fundamental Rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental. 10. "Torture" has not been defined in the Constitution or in other penal laws. 'Torture' of a human being by another human being is essentially an instrument to impose the will of the 'strong' over the 'weak' by suffering. The word torture today has become synonymous with the darker side of human civilisation. Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself. Adriana P. Bartow 11. No violation of any one of the human rights has been the subject of so many Conventions and Declarations as 'torture' - all aiming at total banning of it in all forms, but in spite of the commitments made to eliminate torture, the fact remains that torture is more widespread now than ever before. "Custodial torture" is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward - flag of humanity must on each such occasion fly half-mast. 12. In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. 12. In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma, a person experiences is beyond the purview of law. 17. Fundamental rights occupy a place of pride in the Indian Constitution. Article 21 provides "no person shall be deprived of his life or personal liberty except according to procedure established by law". Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression "life or personal liberty" has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and he shall not be denied the right to consult and defend himself by a legal practitioner of his choice. Clause (2) of Article 22 directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate. Article 20(3) of the Constitution lays down that a person accused of an offence shall not be compelled to be a witness against himself. These are some of the constitutional safeguards provided to a person with a view to protect his personal liberty against any unjustified assault by the State. In tune with the constitutional guarantee a number of statutory provisions also seek to protect personal liberty, dignity and basic human rights of the citizens. Chapter V of Criminal Procedure Code, 1973 deals with the powers of arrest of a person and the safeguards which are required to be followed by the police to protect the interest of the arrested person. Section 41, Cr. P. C. confers powers on any police officer to arrest a person under the circumstances specified therein without any order or a warrant of arrest from a Magistrate. Section 46 provides the method and manner of arrest. Section 41, Cr. P. C. confers powers on any police officer to arrest a person under the circumstances specified therein without any order or a warrant of arrest from a Magistrate. Section 46 provides the method and manner of arrest. Under this Section no formality is necessary while arresting a person. u/s 49, the police is not permitted to use more restraint than is necessary to prevent the escape of the person. Section 50 enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest. The police officer is further enjoined to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the event of his arrest for a non-bailable offence. Section 56 contains a mandatory provision requiring the police officer making an arrest without warrant to produce the arrested person before a Magistrate without necessary delay and Section 57 echoes Clause (2) of Article 22 of the Constitution of India. There are some other provisions also like Sections 53, 54 and 167 which are aimed at affording procedural safeguards to a person arrested by the police. Whenever a person dies in custody of the police, Section 176 requires the Magistrate to hold an enquiry into the cause of death. 22. Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. The rights inherent in Articles 21 and 22 (1) of the Constitution require to be jealously and scrupulously protected. We cannot whisk away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchanism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic "No". No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic "No". the precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by laws. 33. There can be no gain saying that freedom of an individual must yield to be security of the State. The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statutes has been upheld by the Courts. The right to interrogate the detenus, culprits or arrestees in the interest of the nation, must take precedence over an individual's right to personal liberty. The latin maxim salus populi est suprema lex (the safety of the people is the supreme law) and salus republicae est suprema lex (safety of the State is the Supreme law) co-exist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be "right, just and fair". Using any form of torture for extracting any kind of information would neither be 'right nor just nor fair' and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated - indeed subjected to sustained and scientific interrogation - determined in accordance with the provision of law. He cannot, however, be tortured or subjected to third degree methods or eliminated with a view to elicit information, extract confession or drive knowledge about his accomplices, weapons etc. His Constitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal. Challenge of terrorism must be met with innovative ideas and approach. State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to 'terrorism'. Challenge of terrorism must be met with innovative ideas and approach. State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to 'terrorism'. That would be bad for the State, the community and above all for the Rule of Law. The State must, therefore, ensure that various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves. That the terrorist has violated human rights of innocent citizens may render him liable for punishment but it cannot justify the violation of his human rights except in the manner permitted by law. Need, therefore, is to develop scientific methods of investigation and train the investigators properly to interrogate to meet the challenge. 40. UBIJUS IBI REMEDIUM -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. (See with Rudul Sah Vs. State of Bihar and Another, (1983) 4 SCC 141 , Rajendra Singh Vs. Smt. Usha Rani and Others, AIR 1984 SC 956 , Sebastian M. Hongray Vs. Union of India (UOI), AIR 1984 SC 1026 ; Bhim Singh Vs. State of Jammu & Kashmir, (1985) 4 SCC 677 and Bhim Singh, MLA Vs. State of Jammu & Kashmir and Others, (1985) 4 SCC 677 , Saheli, A Women's Resources center, Through Ms Nalini Bhanot and Others Vs. Union of India (UOI), AIR 1984 SC 1026 ; Bhim Singh Vs. State of Jammu & Kashmir, (1985) 4 SCC 677 and Bhim Singh, MLA Vs. State of Jammu & Kashmir and Others, (1985) 4 SCC 677 , Saheli, A Women's Resources center, Through Ms Nalini Bhanot and Others Vs. Commissioner of Police Delhi Police Headquarters and Others, 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. 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. 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 pvnitive 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 tortious 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 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. 55. Before parting with this judgment we wish to place on record our appreciation for the learned counsel appearing for the States in general and Dr. A. M. Singhvi, learned senior counsel who assisted the Court amicus curiae in particular for the valuable assistance rendered by them. Their Lordships have also issued the following directions: We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures : (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or and through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. (8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the (sic) Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous police board. 65. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous police board. 65. Their Lordships have also directed that the arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. The Director, Health Services should prepare such a panel for all tehsils and districts as well. 66. Their Lordships of the Hon'ble Supreme Court in Murti Devi Vs. State of Delhi and Others, (1998) 9 SCC 604 have awarded a sum of Rs. 2,50,000/- to the deceased's mother by the State in a case where an undertrial prisoner has died in jail. 67. Their Lordships of the Hon'ble Supreme Court in State of Haryana Vs. Bhagirath and Others, AIR 1999 SC 2005 have held that the opinion of the medical expert is not binding on Court and the Court has to form its own opinion. Their Lordships have further held that if the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. Their Lordships have further held that if one doctor forms one opinion and another doctor forms a different opinion on the same facts, it is open to the Judge to adopt the view which is more objective or probable. Their Lordships have held as under: 17. The opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the Court. If the opinion is bereft of logic or objectivity, Court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the judge to adopt the view which is more objective or probable. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the Court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject. 68. In the case in hand, since petitioner No. 2 has been examined by Dr. Payal Gupta and Dr. Rahi, their opinions are to be given primacy over the opinion of the Board, which has no occasion to physically examine the petitioner No. 2. The Medical Board was rather asked to give an opinion on a tailor made points. 69. Their Lordships of the Hon'ble Supreme Court in The Chairman, Railway Board and Others Vs. Mrs. Chandrima Das and Others, (2000) 2 SCC 465 have held that the State has vicarious liability to pay compensation for tortuous acts of its employees. Their Lordships have further held that the doctrine of sovereign power not applicable in welfare State where functions of the State now extend to various fields which cannot be strictly related to sovereign power. 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 Vs. The causing of injuries, which amounted to tortious act, was compensated by this Court in many of its decisions beginning from Rudul Sah Vs. State of Bihar and Another, [See also Bhim Singh, MLA Vs. State of Jammu & Kashmir and Others, (1985) 4 SCC 677 ; Peoples' Union for Democratic Rights Vs. State of Bihar and Others, ; Peoples' Union For Democratic Rights Through Its Secretary and Another Vs. Police Commissioner, Delhi Police Headquarters and Another, (1989) 4 SCC 730 , Saheli, A Women's Resources center, Through Ms Nalini Bhanot and Others Vs. Commissioner of Police Delhi Police Headquarters and Others, AIR 1990 SC 513 , Arvinder Singh Bagga Vs. State of U.P. and Others, (1994) 6 SCC 565 ; P. Rathinam v. Union of India; Death of Sawinder Singh Grover In re:; Inder Singh Vs. State of Punjab and others, (1995) 3 SCC 702 ; D.K. Basu Vs. State of West Bengal, AIR 1997 SC 610 . 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 Shri Bodhisattwa Gautam Vs. Miss Subhra Chakraborty, (1996) 1 SCC 490 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. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Rape is therefore the most hated crime. 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. 14. The main contention of the learned counsel for the appellants is that Mrs. Chandrima Das was only a practising advocate of the Calcutta High Court and was, in no way, connected or related to the victim, Smt. Hanuffa Khatoon and, therefore, she could not have filed a petition under Article 226 for damages or compensation being awarded to Smt. Hanuffa Khatoon on account of the rape committed on her. This contention is based on a misconception. Learned counsel for the appellants is under the impression that the petition filed before the Calcutta High Court was only a petition for damages or compensation for Smt. Hanuffa Khatoon. As a matter of fact, the reliefs which were claimed in the petition included the relief for compensation. But many other reliefs as, for example, relief for eradicating anti-social and criminal activities of various kinds at Howrah Railway Station were also claimed. The true nature of the petition, therefore, was that of a petition filed in public interest. 15. The existence of a legal right, no doubt, is the foundation for a petition under Article 226 and a bare interest, may be of a minimum nature, may give locus standi to a person to file a Writ Petition, but the concept of "Locus Standi" has undergone a sea change, as we shall presently notice. In Dr. Satyanarayana Sinha Vs. S. Lal and Company (P) Ltd., (1973) 2 SCC 696 , it was held that the foundation for exercising jurisdiction under Article 32 or Article 226 is ordinarily the personal or individual right of the petitioner himself. In writs like Habeas Corpus and Quo Warranto, the rule has been relaxed and modified. 17. In the context of Public Interest Litigation, however, the Court in its various judgments has given widest amplitude and meaning to the concept of locus standi. In People's Union for Democratic Rights and Others Vs. In writs like Habeas Corpus and Quo Warranto, the rule has been relaxed and modified. 17. In the context of Public Interest Litigation, however, the Court in its various judgments has given widest amplitude and meaning to the concept of locus standi. In People's Union for Democratic Rights and Others Vs. Union of India (UOI) and Others, AIR 1982 SC 1473 , it was laid down that Public Interest Litigation could be initiated not only by filing formal petitions in the High Court but even by sending letters and telegrams so as to provide easy access to Court. (See also Bandhua Mukti Morcha Vs. Union of India (UOI) and Others, (1984) 3 SCC 161 and State of Himachal Pradesh Vs. A Parent of a Student of Medical College, Simla and Others, AIR 1985 SC 910 , on the right to approach the Court in the realm of Public Interest Litigation). In Bangalore Medical Trust Vs. B.S. Muddappa and others, AIR 1991 SC 1902 , the Court held that the restricted meaning of aggrieved person and narrow outlook of specific injury has yielded in favour of a broad and wide construction in the wake of Public Interest Litigation. The Court further observed that public-spirited citizens having faith in the rule of law are rendering great social and legal service by espousing causes of public nature. They cannot be ignored or overlooked on technical or conservative yardstick of the rule of locus standi or absence of personal loss or injury. There has, thus, been a spectacular expansion of the concept of locus standi. The concept is much wider and it takes in its stride anyone who is not a mere "busy-body". 18. Having regard to the nature of the petition filed by respondent Mrs. Chandrima Das and the relief claimed therein it cannot be doubted that this petition was filed in public interest which could legally be filed by the respondent and the argument that she; could not file that petition as there was nothing personal to her involved in that petition must be rejected. 70. In R.D. Upadhyay Vs. State of A.P. and Others, (2001) 1 SCC 437 , their Lordships of the Hon'ble Supreme Court have held that money award cannot, however, renew a physical frame that has been battered and shattered due to the callous attitude of others. 70. In R.D. Upadhyay Vs. State of A.P. and Others, (2001) 1 SCC 437 , their Lordships of the Hon'ble Supreme Court have held that money award cannot, however, renew a physical frame that has been battered and shattered due to the callous attitude of others. All that the courts can do in such cases is to award such sums of money, which may appear to be giving of some reasonable compensation, assessed with moderation, to express the court's condemnation of the tortuous act committed by the State. Their Lordships have held as under: 5. We could have directed some interim compensation to be paid to Ajoy Ghosh but considering his present state of mental and physical health, that would not be of any avail. He has no known relatives either. We are conscious of the fact that money award can be calculated only to make good financial loss. It is not an award for the sufferings already undergone which are incapable of calculation in terms of money. Money compensation may be awarded so that something tangible may be procured to replace something of the like nature which has been distroyed or lost. Money award cannot, however, renew a physical frame that has been battered and shattered due to callous attitude of others. All that the courts can do in such cases is to award such sums of money, which may appear to be giving of some reasonable compensation, assessed with moderation, to express court's condemnation of the tortious act committed by the State. 71. Their Lordships of the Hon'ble Supreme Court in Smt. Shakila Abdul Gafar Khan Vs. Vasant Raghunath Dhoble and another 2003 Cr. L.J. 4548 have held that the torture and custodial violence by men in 'Khaki'/State/or its functionaries cannot be permitted to defy constitutional right and in case direct evidence is rarely available, brotherhoodties permit other police witnesses to feign ignorance about the whole matter. Their Lordships have further held that insistence of establishment of proof beyond reasonable doubt results in miscarriage of justice. Their Lordships have further held that the custodial crime mostly goes unpunished. Their Lordships have further held that insistence of establishment of proof beyond reasonable doubt results in miscarriage of justice. Their Lordships have further held that the custodial crime mostly goes unpunished. Their Lordships have further held that the Courts are also required to have a change in their outlook, approach, appreciation and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime so that as far as possible within their powers, the truth is found and guilty should not escape so that the victim of the crime has the satisfaction that ultimately the majesty of law has prevailed. Their Lordships have held as under: 6. Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues -and the present case is an apt illustration - as to how one after the other police witnesses feigned ignorance about the whole matter. 7. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach at times of the Courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock-up because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The Courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/under-trial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in & apos;Khaki' to consider themselves to be above the law and sometimes even to become law into themselves. Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading, towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The Courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of judiciary itself, which if it happens will be a sad day, for any one to reckon with. 8. Though Sections 330 and 331 of the Indian Penal Code, 1860 (for short the 'IPC') make punishable those persons who cause hurt for the purpose of extorting the confession by making the offence punishable with sentence up to 10 years of imprisonment, but the convictions, as experience shows from track record have been very few compared to the considerable increase of such onslaught because the atrocities within the precincts of the police station are often left without much traces or any ocular or other direct evidence to prove as to who the offenders are. Disturbed by this situation the Law Commission in its 113th Report recommended amendments to the Indian Evidence Act, 1872 (in short the ' Evidence Act') so as to provide that in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when the person was in the police custody, the Court may presume that the injury was caused by the police officer having the custody of that person during that period unless the police officer proves to the contrary. The onus to prove the contrary must be discharged by the police official concerned. Keeping in view the dehumanizing aspect of the crime, the flagrant violation of the fundamental rights of the victim of the crime and the growing rise in the crimes of this type, where only a few come to light and others don't, the Government and the legislature must give serious thought to the recommendation of the Law Commission and bring about the appropriate changes in the law not only to curb the custodial crime but also to see that the custodial crime does not go unpunished. The Courts are also required to have a change in their outlook approach, appreciation and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime so that as far as possible within their powers, the truth is found and guilty should not escape so that the victim of the crime has the satisfaction that ultimately the majesty of law has prevailed. 72. Their Lordships of the Hon'ble Supreme Court in Munshi Singh Gautam (D) and Others Vs. State of M.P., AIR 2005 SC 402 , have held that rarely in cases of police torture or custodial death, direct ocular evidence is available of the complicity of the police personnel, who alone can only explain the circumstances in which a person in their custody had died. State of M.P., AIR 2005 SC 402 , have held that rarely in cases of police torture or custodial death, direct ocular evidence is available of the complicity of the police personnel, who alone can only explain the circumstances in which a person in their custody had died. Their Lordships have further held that the exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case, often results in miscarriage of justice and makes the justice-delivery system suspect and vulnerable. Their Lordships have held as under: 3. If it is assuming alarming proportions, now a days, all around it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from roof tops to be the defenders of democracy and protectors of peoples' rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace loving puritans and saviours of citizens' rights. 6. Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues -and the present case is an apt illustration - as to how one after the other police witnesses feigned ignorance about the whole matter. 7. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. In the ultimate analysis the society suffers and a criminal gets encouraged. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach at times of the Courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock-up because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The Courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/under-trial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in 'Khaki' to consider themselves to be above the law and sometimes even to become law into themselves. Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading, towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The Courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of judiciary itself, which if it happens will be a sad day, for any one to reckon with. 73. Their Lordships of the Hon'ble Supreme Court in K.H. Shekarappa and Others Vs. State of Karnataka, (2009) 17 SCC 1 , have held that inspite of condemnation of such acts by this Court and the High Courts, certain police officials conduct themselves in a manner resulting into gruesome torture and death of suspects in the police custody. Their Lordships have held as under: 2. Though several constitutional and statutory provisions have been enacted to safeguard the personal liberty and life of citizens, incidents of torture and death in the police custody are ever on the rise. Their Lordships have held as under: 2. Though several constitutional and statutory provisions have been enacted to safeguard the personal liberty and life of citizens, incidents of torture and death in the police custody are ever on the rise. In spite of condemnation of such acts by this Court and High Courts, certain police officials conduct themselves in a manner resulting into gruesome torture and death of suspects in the police custody. There is no manner of doubt that these are the most heinous crimes committed by persons, who claim to be the protectors of the citizens. What is distressing to note is that the incidents of torture and death in the police custody take place under the shield of uniform and authority, in the four walls of a police station or in the lock-up, where the victims are totally helpless. 74. Their Lordships of the Hon'ble Supreme Court in Rubabbuddin Sheikh Vs. State of Gujrat and others (2009) 17 S CC 653, in a case of fake encounter, have ordered ex gratia payment of Rs. 10 lakhs to LRs. of deceased. 75. Their Lordships of the Hon'ble Supreme Court in Smt. Selvi and Others Vs. State of Karnataka, (2010) 7 SCC 263 have held that one of the main functions of constitutionally prescribed rights is to safeguard the interests of citizens in the interactions with the Government. Their Lordships have further held that as the guardians of these rights, we will be failing in our duty if we permit any citizen to be forcibly subjected to the tests in question. Their Lordships have also discussed the concept of torture in this judgment. Their Lordships have held as under: 199. Having surveyed these materials, it is necessary to clarify that we are not absolutely bound by the contents of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) [Hereinafter Rs. Torture Convention'] This is so because even though India is a signatory to this Convention, it has not been ratified by Parliament in the manner provided under Article 253 of the Constitution and neither do we have a national legislation which has provisions analogous to those of the Torture Convention. However, these materials do hold significant persuasive value since they represent an evolving international consensus on the nature and specific contents of human rights norms. 200. However, these materials do hold significant persuasive value since they represent an evolving international consensus on the nature and specific contents of human rights norms. 200. The definition of torture indicates that the threshold for the same is the intentional infliction of physical or mental pain and suffering, by or at the instance of a public official for the purpose of extracting information or confessions. Rs. Cruel, Inhuman or Degrading Treatment' has been defined as conduct that does not amount to torture but is wide enough to cover all kinds of abuses. Hence, proving the occurrence of Rs. cruel, inhuman or degrading treatment' would require a lower threshold than that of torture. In addition to highlighting these definitions, the counsel for the appellants have submitted that causing physical pain by injecting a drug can amount to Rs. Injury' as defined by Section 44 of the IPC or Rs. Hurt' as defined in Section 319 of the same Code. 201. In response, the counsel for the respondents have drawn our attention to literature which suggests that in the case of the impugned techniques, the intention on part of the investigators is to extract information and not to inflict any pain or suffering. Furthermore, it has been contended that the polygraph examination or the BEAP test does not involve a condemnable degree of Rs. physical pain or suffering'. Even though some physical force may be used or threats may be given to compel a person to undergo the tests, it was argued that the administration of these tests ordinarily does not result in physical injuries. [See: Linda M. Keller, Rs. Is Truth Serum Torture?' 20 American University International Law Review 521-612 (2005)] However, it is quite conceivable that the administration of any of these techniques could involve the infliction of Rs. mental pain or suffering' and the contents of their results could expose the subject to physical abuse. When a person undergoes a narcoanalysis test, he/she is in a half-conscious state and subsequently does not remember the revelations made in a drug-induced state. In the case of polygraph examination and the BEAP test, the test subject remains fully conscious during the tests but does not immediately know the nature and implications of the results derived from the same. When a person undergoes a narcoanalysis test, he/she is in a half-conscious state and subsequently does not remember the revelations made in a drug-induced state. In the case of polygraph examination and the BEAP test, the test subject remains fully conscious during the tests but does not immediately know the nature and implications of the results derived from the same. However, when he/she later learns about the contents of the revelations, they may prove to be incriminatory or be in the nature of testimony that can be used to prosecute other individuals. We have also highlighted the likelihood of a person making incriminatory statements when he/she is subsequently confronted with the test results. The realisation of such consequences can indeed cause Rs. mental pain or suffering' for the person who was subjected to these tests. The test results could also support the theories or suspicions of the investigators in a particular case. These results could very well confirm suspicions about a person's involvement in a criminal act. For a person in custody, such confirmations could lead to specifically targeted behaviour such as physical abuse. In this regard, we have repeatedly expressed our concern with situations where the test results could trigger undesirable behaviour. 205. It is undeniable that during a narcoanalysis interview, the test subject does lose Rs. awareness of place and passing of time'. It is also quite evident that all the three impugned techniques can be described as methods of interrogation which impair the test subject's Rs. capacity of decision or judgment'. Going by the language of these principles, we hold that the compulsory administration of the impugned techniques constitutes Rs. cruel, inhuman or degrading treatment' in the context of Article 21. It must be remembered that the law disapproves of involuntary testimony, irrespective of the nature and degree of coercion, threats, fraud or inducement used to elicit the same. The popular perceptions of terms such as Rs. torture' and Rs. cruel, inhuman or degrading treatment' are associated with gory images of blood-letting and broken bones. However, we must recognise that a forcible intrusion into a person's mental processes is also an affront to human dignity and liberty, often with grave and long-lasting consequences. [A similar conclusion has been made in the following paper: Marcy Strauss, Rs. Criminal Defence in the Age of Terrorism - Torture', 48 New York Law School Law Review 201-274 (2003/2004)] 220. However, we must recognise that a forcible intrusion into a person's mental processes is also an affront to human dignity and liberty, often with grave and long-lasting consequences. [A similar conclusion has been made in the following paper: Marcy Strauss, Rs. Criminal Defence in the Age of Terrorism - Torture', 48 New York Law School Law Review 201-274 (2003/2004)] 220. One of the main functions of constitutionally prescribed rights is to safeguard the interests of citizens in their interactions with the government. As the guardians of these rights, we will be failing in our duty if we permit any citizen to be forcibly subjected to the tests in question. One could argue that some of the parties who will benefit from this decision are hardened criminals who have no regard for societal values. However, it must be borne in mind that in constitutional adjudication our concerns are not confined to the facts at hand but extend to the implications of our decision for the whole population as well as the future generations. Sometimes there are apprehensions about judges imposing their personal sensibilities through broadly worded terms such as Rs. substantive due process', but in this case our inquiry has been based on a faithful understanding of principles entrenched in our Constitution. In this context it would be useful to refer to some observations made by the Supreme Court of Israel in Public Committee Against Torture in Israel v. State of Israel, H.C. 5100 / 94 (1999), where it was held that the use of physical means (such as shaking the suspect, sleep-deprivation and enforcing uncomfortable positions for prolonged periods) during interrogation of terrorism suspects was illegal. Among other questions raised in that case, it was also held that the Rs. necessity' defence could be used only as a post factum justification for past conduct and that it could not be the basis of a blanket pre-emptive permission for coercive interrogation practices in the future. Ruling against such methods, Aharon Barak, J. held at p. 26: ... This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rs. Ruling against such methods, Aharon Barak, J. held at p. 26: ... This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rs. Rule of Law' and recognition of an individual's liberty constitutes an important component in its understanding of security. 76. Their Lordships of the Hon'ble Supreme Court in Prakash Kadam and Vs. Ramprasad Vishwanath Gupta and Another, (2011) 6 SCC 189 have taken a serious view in the case of fake encounter. Their Lordships have held that where fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare case. Their Lordships have held as under: 27. We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake Rs. encounters' are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties. 28. We warn policemen that they will not be excused for committing murder in the name of Rs. encounter' on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that Rs. orders are orders', nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake Rs. encounter', it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death. The Rs. encounter' philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of Rs. encounter' and get away with it should know that the gallows await them. 77. Their Lordships of the Hon'ble Supreme Court in Mehboob Batcha and Others Vs. State rep. by Supdt. The Rs. encounter' philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of Rs. encounter' and get away with it should know that the gallows await them. 77. Their Lordships of the Hon'ble Supreme Court in Mehboob Batcha and Others Vs. State rep. by Supdt. of Police, (2011) 7 SCC 45 have held that custodial violence in police custody is in violation of directives issued in D.K. Basu Vs. State of West Bengal, AIR 1997 SC 610 . Their Lordships have issued a warning to all the policemen in the country that this will not be tolerated. Their Lordships have also held that the policemen must learn how to behave as public servants in a democratic country, and not as oppressors of the people. Their Lordships have held as under: 15. Before parting with this case, we once again reiterate that custodial violence in police custody is in violation of this Court's directive in D.K. Basu Vs. State of West Bengal, AIR 1997 SC 610 , and we give a warning to all policemen in the country that this will not be tolerated. The graphic description of the barbaric conduct of the accused in this case shocks our conscience. Policemen must learn how to behave as public servants in a democratic country, and not as oppressors of the people. 78. Their Lordships of the Hon'ble Supreme Court in Deputy Commissioner, Dharwad District, Dharwad and others Vs. Shivakka (2) and others (2011) 12 SCC 419 have held that where departmental proceedings having been initiated against erring police officers involved in beating deceased in custody and deceased having died in custody and criminal case pending and the High Court entertained the writ petition, the same was held as maintainable. Their Lordships have further held that the compensation awarded by the High Court was less than just. The High Court should have taken note of the fact that the only breadwinner of the family was killed in a barbaric manner and awarded adequate compensation. Their Lordships, while dismissing the S.L.P., directed the petitioners to pay total compensation of Rs. 10 lakhs to the respondents added therein. Their Lordships have held as under: 16. The High Court should have taken note of the fact that the only breadwinner of the family was killed in a barbaric manner and awarded adequate compensation. Their Lordships, while dismissing the S.L.P., directed the petitioners to pay total compensation of Rs. 10 lakhs to the respondents added therein. Their Lordships have held as under: 16. In view of the proposition laid down in the aforementioned judgments, we have no hesitation to hold that the learned Single Judge did not commit any error by entertaining the writ petition filed by respondent No. 1 and the direction given by him for payment of compensation to respondent Nos. 1 to 5 was rightly affirmed by the Division Bench of the High Court. At the same time, we are of the view that the compensation awarded by the High Court is less than just. The High Court should have taken note of the fact that the only bread winner of the family was killed in a barbaric manner and awarded adequate compensation keeping in view the ratio of the judgments of this Court including Chairman, Railway Board, v. Chandrima Das (supra). 17. Therefore, while dismissing the special leave petition, we deem it proper to exercise power of this Court under Article 142 of the Constitution and direct the petitioners to pay total compensation of 10 lacs to respondent Nos. 1 to 5. The petitioners are directed to pay the amount of compensation within two months by getting prepared a demand draft in the name of respondent No.1 from a nationalised bank. 18. Liberty is given to the petitioners to withdraw the amount already deposited in the Registry of the High Court. 79. Their Lordships of the Hon'ble Supreme Court in Prithipal Singh etc. Vs. State of Punjab and Another etc., (2012) 1 SCC 10 , have held that police atrocities are always violative of the constitutional mandate, particularly, Articles 21 and 22. Such provisions ensure that arbitrary arrest and detention are not made. Their Lordships have further held that tolerance of police atrocities, would amount to acceptance of systematic subversion and erosion of the rule of law. Their Lordships have further held that the Court cannot be a silent spectator where the stinking facts warrant interference in order to serve the interest of justice. Their Lordships have further held that tolerance of police atrocities, would amount to acceptance of systematic subversion and erosion of the rule of law. Their Lordships have further held that the Court cannot be a silent spectator where the stinking facts warrant interference in order to serve the interest of justice. Their Lordships have further held that if there is material on record, the Court must take action against the erring police officials. Their Lordships have also held that in cases of custodial violence or deaths, it is difficult to get evidence against the policemen responsible for such deaths since police personnel prefer to remain silent and even pervert truth to save colleagues. Their Lordships have further held that in case abduction by police and illegal detention and torture of deceased is established by witnesses, the reversal of burden of proof is on the police to explain what happened to deceased. Their Lordships have held as under: 26. The right to life has rightly been characterised as " Rs. supreme' and Rs. basic'; it includes both so-called negative and positive obligations for the State". The negative obligation means the overall prohibition on arbitrary deprivation of life. In this context, positive obligation requires that State has an overriding obligation to protect the right to life of every person within its territorial jurisdiction. The obligation requires the State to take administrative and all other measures in order to protect life and investigate all suspicious deaths. 27. The State must protect victims of torture, ill-treatment as well as the human rights defender fighting for the interest of the victims, giving the issue serious consideration for the reason that victims of torture suffer enormous consequences psychologically. The problems of acute stress as well as a post-traumatic stress disorder and many other psychological consequences must be understood in correct perspective. Therefore, the State must ensure prohibition of torture, cruel, inhuman and degrading treatment to any person, particularly at the hands of any State agency/police force. 28. In addition to the protection provided under the Constitution, the Protection of Human Rights Act, 1993, also provide for protection of all rights to every individual. It inhibits illegal detention. Torture and custodial death have always been condemned by the courts in this country. 28. In addition to the protection provided under the Constitution, the Protection of Human Rights Act, 1993, also provide for protection of all rights to every individual. It inhibits illegal detention. Torture and custodial death have always been condemned by the courts in this country. In its 113th report, the Law Commission of India recommended the amendment to the Indian Evidence Act, 1872 (hereinafter called "Evidence Act"), to provide that in case of custodial injuries, if there is evidence, the court may presume that injury was caused by the police having the custody of that person during that period. Onus to prove contrary is on the police authorities. Law requires for adoption of a realistic approach rather than narrow technical approach in cases of custodial crimes. (Vide: Dilip K. Basu Vs. State of West Bengal and others, AIR 1997 SC 3017 , N.C. Dhoundial Vs. Union of India (UOI) and Others, (2004) 2 SCC 579 and Munshi Singh Gautam (D) and Others Vs. State of M.P., AIR 2005 SC 402 . 53. In State of West Bengal Vs. Mir Mohammad Omar and Others etc., (2000) 8 SCC 382 , this Court held that if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for prosecution to prove certain facts particularly within the knowledge of accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. (See also: Shambu Nath Mehra Vs. The State of Ajmer, AIR 1956 SC 404 , Sucha Singh Vs. State of Punjab, and Sahadevan @ Sagadevan Vs. State rep. by Inspector of Police, (2001) 4 SCC 375 . 75. (See also: Shambu Nath Mehra Vs. The State of Ajmer, AIR 1956 SC 404 , Sucha Singh Vs. State of Punjab, and Sahadevan @ Sagadevan Vs. State rep. by Inspector of Police, (2001) 4 SCC 375 . 75. In a case where the person is alleged to have died in police custody, it is difficult to get any kind of evidence. Rarely in cases of police torture or custodial death, direct ocular evidence is available of the complicity of the police personnel, who alone can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues 79. Both the courts below have found that the accused/appellants have abducted Shri Jaswant Singh Khalra. In such a situation, only the accused person could explain as what happened to Shri Khalra, and if he had died, in what manner and under what circumstances he had died and why his corpus delicti could not be recovered. All the accused/appellants failed to explain any inculpating circumstance even in their respective statements u/s 313 Cr.P.C. Such a conduct also provides for an additional link in the chain of circumstances. The fact as what had happened to the victim after his abduction by the accused persons, has been within the special knowledge of the accused persons, therefore, they could have given some explanation. In such a fact-situation, the Courts below have rightly drawn the presumption that the appellants were responsible for his adduction, illegal detention and murder. 85. After appreciating the evidence on record, and considering the judgments of the courts below, we approve their following conclusions: (i) Jaswant Singh Khalra, being a human right activist, had taken the task to expose the mis-deeds of police in Districts Amritsar and Taran killing innocent people under the pretext of being terrorists and cremating them without any identification and performing any ritual. (ii) The Police authorities did not like such activities of Shri Khalra and tried to desist him from the same. Shri Khalra was being threatened over the telephone by the police officials. (ii) The Police authorities did not like such activities of Shri Khalra and tried to desist him from the same. Shri Khalra was being threatened over the telephone by the police officials. (iii) Jaswant Singh Khalra informed a large number of persons about the threats and being watched by unidentified suspicious persons, who had been wandering around his house and had been followed by such elements. (iv) Jaswant Singh Khalra was able to generate public pressure against the police authorities which was a source of anger and pressure upon the police. (v) Ajit Singh Sandhu, SSP, hatched a conspiracy with appellants and some other police personnel to abduct Jaswant Singh Khalra and eliminate him or to put him in danger of being murdered. (vi) At the time of abduction, the accused did not permit Jaswant Singh Khalra even to change his clothes. One of the witnesses, namely, Rajiv Singh (PW.15) was pushed away. (vii) Rajiv Singh (PW.15) immediately informed various persons including Smt. Paramjit Kaur (PW.2) and Justice Ajit Singh Bains (PW.5) about the incident of kidnapping. (viii) In spite of the best efforts made by Smt. Paramjit Kaur (PW.2), wife of the deceased and others particularly, Rajiv Singh (PW.15) who went from pillar to post, whereabouts of Jaswant Singh Khalra were not made known to them. (ix) The police authorities did not cooperate in helping the complainant, though the witnesses had named the persons involved in the abduction of Shri Khalra. (x) Report (Ex.PA) dated 6.9.1995 submitted by Smt. Paramjit Kaur had not properly been recorded by the SHO Police Station, Islamabad. The version therein had been different from what she had reported. It so happened because of connivance of police officials. (xi) The accused in the case had been high police officials and there was every possibility that statement of the complainant Smt. Paramjit Kaur (Ex.PA) had not been recorded as reported by her. (xii) Before approaching this Court by filing a Habeas Corpus Writ Petition, Smt. Paramjit Kaur (PW.2) had approached the National Human Rights Commission at New Delhi in respect of the incident. However, she was advised to approach this Court. (xiii) This Court passed several orders in a writ petition filed by Smt. Paramjit Kaur, wife of the deceased, but whereabouts of Jaswant Singh Khalra could not be known and in view thereof, investigation of the case was transferred to the CBI. However, she was advised to approach this Court. (xiii) This Court passed several orders in a writ petition filed by Smt. Paramjit Kaur, wife of the deceased, but whereabouts of Jaswant Singh Khalra could not be known and in view thereof, investigation of the case was transferred to the CBI. (xiv) In spite of transfer of the investigation of the case to the CBI, the Punjab police officials did not cooperate with the CBI and were not lending proper support in conducting the investigation. The police officials of Punjab united in an unholy alliance as their colleagues were involved and the case was going to tarnish the image of Punjab police. The witnesses named the police officials in their statements before the CBI and they identified the accused persons in the court. (xv) In order to find out the whereabouts of Shri Khalra, the CBI made public appeal by putting his photographs in electronic media. A large number of posters having his photograph had been affixed on the walls of the cities particularly in Taran, Majitha and Amritsar and made a declaration that person giving information about him, would be rewarded with a sum of Rs. 1 lakh. (xvi) The witnesses were so scared/terrified of the action of the police atrocities/criminal intimidation that they could not muster the courage to reveal the truth. The witnesses could not name the accused while filing affidavits in this Court in the writ petition. (xvii) The appellants and other accused police officials attempted to prevent the testimony of the witnesses by threatening, harassing and involving them in false criminal cases and physical intimidation. A large number of false documents had been created by one of the witnesses because of police threats and fear put by the accused. (xviii) The witnesses had been acquitted by the courts as they had falsely been involved in criminal cases of a very serious nature. This was so done only to prevent them to support the prosecution. The witnesses suffered with criminal intimidation at the hands of the police officials. Even the complaints filed by the witnesses against other witnesses had been found to be false. This was so done only to prevent them to support the prosecution. The witnesses suffered with criminal intimidation at the hands of the police officials. Even the complaints filed by the witnesses against other witnesses had been found to be false. (xix) The depositions made by the witnesses in the court had been consistent with their statements recorded u/s 161 Cr.P.C. (xx) The depositions of all the witnesses including Kulwant Singh (PW.14) and Kuldip Singh (PW.16) are worth acceptance in spite of all the discrepancies pointed out by the accused/appellants. (xxi) All the accused had taken the plea of alibi to show that none of them was present at the place of occurrence on the relevant date. However, none of them could successfully prove the same and the plea of alibi taken by them was found to be false. This points towards their guilt. (xxii) Charges had been framed prior to recording the statements of Kuldip Singh (PW.16) and in such a fact-situation the trial court ought to have altered the charges. (xxiii) Sufficient evidence is available on record in respect of abduction of Shri Jaswant Singh Khalra and the witnesses, particularly, Smt. Paramjit Kaur (PW.2), Rajiv Singh (PW.15) and Kirpal Singh Randhawa (PW.7) have identified the appellants as the persons who have abducted Shri Khalra. Kulwant Singh (PW.14) has deposed about his illegal detention in Police Station Jhabal. In such a fact-situation, the burden shifts on the respondents to disclose as what happened to Shri Jaswant Singh Khalra. (xxiv) Though the dead body of Shri Jaswant Singh Khalra could not be recovered from the canal as the investigation commenced after a long time, recovery of the dead body is not a condition precedent for conviction of the accused for murder. 86. Police atrocities are always violative of the constitutional mandate, particularly, Article 21 (protection of life and personal liberty) and Article 22 (person arrested must be informed the grounds of detention and produced before the Magistrate within 24 hours). Such provisions ensure that arbitrary arrest and detention are not made. Tolerance of police atrocities, as in the instant case, would amount to acceptance of systematic subversion and erosion of the rule of law. Therefore, illegal regime has to be glossed over with impunity, considering such cases of grave magnitude. Such provisions ensure that arbitrary arrest and detention are not made. Tolerance of police atrocities, as in the instant case, would amount to acceptance of systematic subversion and erosion of the rule of law. Therefore, illegal regime has to be glossed over with impunity, considering such cases of grave magnitude. 87 In view of the above, we do not find any reason to interfere with the well reasoned judgment and order of the High Court. The facts of the case do not warrant review of the findings recorded by the courts below. The appeals lack merit and are accordingly dismissed. 80. Now, the moot question is the compensation, to which the petitioners are entitled. Their Lordships of the Hon'ble Supreme Court in Yadava Kumar Vs. The Divisional Manager, National Insurance Co. Ltd. and Another, (2010) 10 SCC 341 , have held that the Court must be liberal and not niggardly inasmuch as in a free country law must value life and limb on a generous scale. Their Lordships of the Hon'ble Supreme Court in Raj Kumar Vs. Ajay Kumar and Another, (2011) 1 SCC 343 have laid down the following principles for assessment of loss of future earnings on account of permanent disability: 9. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%. 12. If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%. 12. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. 19. 19. We may now summarise the principles discussed above: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. Their Lordships have further held in this judgment that there is no need to deduct one-third or any other percentage from out of the income, towards the personal and living expenses. Their Lordships have held as under: 27. In the case of an injured claimant with a disability, what is calculated is the future loss of earning of the claimant, payable to claimant, (as contrasted from loss of dependency calculated in a fatal accident, where the dependent family members of the deceased are the claimants). Therefore there is no need to deduct one-third or any other percentage from out of the income, towards the personal and living expenses. Their Lordships of the Hon'ble Supreme Court in Sanjay Batham Vs. Munnalal Parihar and others (2011) 10 SCC 665 have held that while computing compensation a tribunal or court is required to do some guesswork, some hypothetical consideration and sympathy for disability caused with objective standards. Their Lordships of the Hon'ble Supreme Court in Govind Yadav Vs. Their Lordships of the Hon'ble Supreme Court in Sanjay Batham Vs. Munnalal Parihar and others (2011) 10 SCC 665 have held that while computing compensation a tribunal or court is required to do some guesswork, some hypothetical consideration and sympathy for disability caused with objective standards. Their Lordships of the Hon'ble Supreme Court in Govind Yadav Vs. New India Insurance Company Limited (2011) 10 SCC 683 have held that if the victim is suffering from permanent disability, then adequate compensation should be awarded not only for physical injury and treatment but also for loss of earning and inability of victim to lead normal life and enjoy amenities. Their Lordships of the Hon'ble Supreme Court in Sri Ramachandrappa Vs. The Manager, Royal Sundaram Alliance Insurance Company Limited, AIR 2011 SC 2951 , have further held that functional disability or loss of earning capacity to be the determining criterion for pecuniary loss. Their Lordships have held as under: 7. The compensation is usually based upon the loss of the claimant's earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the injury. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper. In the instant case, the petitioner No. 2 has become permanently disabled and has, thus, lost the future earning capacity permanently. Their Lordships of the Hon'ble Supreme Court in Ramlila Maidan Incident, in Re (2012) 5 SCC have awarded compensation and have also ordered registration of criminal cases against the erring officials and also for initiation of disciplinary proceedings 286.17. In the instant case, the petitioner No. 2 has become permanently disabled and has, thus, lost the future earning capacity permanently. Their Lordships of the Hon'ble Supreme Court in Ramlila Maidan Incident, in Re (2012) 5 SCC have awarded compensation and have also ordered registration of criminal cases against the erring officials and also for initiation of disciplinary proceedings 286.17. Thus, while directing the State Government and the Commissioner of Police to register and investigate cases of criminal acts and offences, destruction of private and public property against the police officers/personnel along with those members of the assembly, who threw bricks at the police force causing injuries to the members of the force as well as damage to the property, I issue the following directions: 286.17 (a) Take disciplinary action against all the erring police officers/personnel who have indulged in brick-batting, have resorted to lathi charge and excessive use of tear gas shells upon the crowd, have exceeded their authority or have acted in a manner not permissible under the prescribed procedures, rules or the standing orders and their actions have an element of criminality. This action shall be taken against the officer/personnel irrespective of what ranks they hold in the hierarchy of police. 286.17(b) The police personnel who were present in the pandal and still did not help the evacuation of the large gathering and in transportation of sick and injured people to the hospitals have, in my opinion, also rendered themselves liable for appropriate disciplinary action. 286.17(c). The police shall also register criminal cases against the police personnel and members of the gathering at the Ramlila ground (whether they were followers of Baba Ramdev or otherwise) who indulged in damage to the property, brick-batting etc. All these cases have already been reported to the Police Station Kamla Market. The police shall complete the investigation and file a report u/s 173 of the Cr.P.C. within three months from today. 286.18. I also direct that the persons who died or were injured in this unfortunate incident should be awarded ad hoc compensation. Smt. Rajbala, who got spinal injury in the incident and subsequently died, would be entitled to the adhoc compensation of Rs. 5 lacs while persons who suffered grievous injuries and were admitted to the hospital would be entitled to compensation of Rs. Smt. Rajbala, who got spinal injury in the incident and subsequently died, would be entitled to the adhoc compensation of Rs. 5 lacs while persons who suffered grievous injuries and were admitted to the hospital would be entitled to compensation of Rs. 50,000/- each and persons who suffered simple injuries and were taken to the hospital but discharged after a short while would be entitled to a compensation of Rs. 25,000/- each. 81. According to the disability certificate placed on record, issued by the Postgraduate Institute of Medical Education and Research, Chandigarh, the petitioner No. 2 has suffered head injury with severe left upper & lower limb weakness with very severe urinary incontinence with speech problem with inability to see. He was physically handicapped and has suffered 100% impairment in relation to his whole body. There is no direct evidence of the age of petitioner No. 2. However, at the time of filing of the petition, the age of petitioner No. 1 was 39 years in 2009. Thus, it can safely be presumed that the age of the petitioner No. 2 at the relevant time was 41/42 years. He was working as a Guide in Vatika Hotel. But, now he cannot work as a Guide, since he cannot see and he has speech problem. There is weakness in lower limb with very severe urinary incontinence. The petitioner No. 2, with this disability, cannot have any alternative employment. The Postgraduate Institute of Medical Education and Research, Chandigarh has given in the certificate 100% impairment in relation to his whole body. The Second Schedule u/s 163A of the Motor Vehicles Act, 1988 gives a structured formula for the calculation of compensation in accident cases. Note 5 of the Schedule deals with disability in non-factal accidents and reads as follows: 5. Disability in non-fatal accidents The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents: Loss of income, if any, for actual period of disablement not exceeding fifty-two weeks. Note 5 of the Schedule deals with disability in non-factal accidents and reads as follows: 5. Disability in non-fatal accidents The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents: Loss of income, if any, for actual period of disablement not exceeding fifty-two weeks. PLUS either of the following- (a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation, or (b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under Item (a) above. Injuries deemed to result in permanent total disablement/permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923. In the instant case, the petitioner No. 2 has not earned anything between the date of his admission in the hospital and his treatment in the hospital. As per the certificate issued by the Postgraduate Institute of Medical Education and Research, Chandigarh, the petitioner No. 2 has suffered permanent disablement. He cannot see and he has problem with speech, coupled with lower limb weakness. Petitioner No. 2 was working as a Guide with Vatika Hotel and it can safely be presumed that he was earning about Rs. 7,000/- per month. In his case, since he has suffered permanent disablement, the loss of future earning per annum would be Rs. 84,000/-. Since the petitioner No. 2 was about 41 years of age, the multiplier of 11 would be appropriate. Thus, by multiplying Rs. 84,000/- by 11, the total amount comes to Rs. 9,24000/-. Petitioner No. 2 is also entitled to future medical expenses. Though no document has been placed on record in this regard, but the Court can take judicial notice that since petitioner No. 2 has suffered serious injuries and is under treatment, he would at least require about Rs. 2 lacs for future medical expenses. Petitioners and petitioner No. 2, more particularly, have suffered pain, sufferings and trauma as a consequence of the injuries and they are entitled to Rs. 2 lacs under this head. Petitioners, over and above, the pecuniary damages and non-pecuniary damages, as assessed hereinabove, are entitled to be awarded a sum of Rs. 2 lacs for future medical expenses. Petitioners and petitioner No. 2, more particularly, have suffered pain, sufferings and trauma as a consequence of the injuries and they are entitled to Rs. 2 lacs under this head. Petitioners, over and above, the pecuniary damages and non-pecuniary damages, as assessed hereinabove, are entitled to be awarded a sum of Rs. 236,000/- as exemplary compensation by the respondent No. 1 for violating their fundamental and legal rights. 82. Accordingly, in view of the discussions and analysis made hereinabove, the writ petition is allowed by issuing the following directions: (i) Respondent No. 1 is directed to pay a sum of Rs. 15,60000/-, as compensation to the petitioners, within a period of one month from today. This amount shall be deposited in the Registry of this Court and thereafter the amount shall be put in a fixed deposit and petitioners will be entitled to receive interest accruing on the same on monthly basis. (ii) It shall be open to respondent No. 1 to recover this amount from the erring officials, i.e., respondent No. 3, namely, Shiv Kumar, SI Kanwar Singh, ASI Rattan Singh and HC Mahender Singh. (iii) Respondent No. 1 is directed to initiate disciplinary proceedings against respondent No. 3 within a period of two weeks from today and conclude the same within a period of 12 weeks. (iv) The Additional Director General of Police, CID is directed to take action against SI Kanwar Singh under Rules 8 and 9 of the CCS (Pension) Rules within a period of eight weeks from today and submit the report to the disciplinary authority. (v) The Superintendent of Police, Mandi is directed to initiate disciplinary proceedings against ASI Rattan Singh and complete the same within a period of 12 weeks and submit the report to the disciplinary authority immediately thereafter. (vi) The Commandant 5th Indian Reserve Battalion is also directed to initiate disciplinary proceedings against HC Mahender Singh and to complete the same within a period of 12 weeks and submit the report to the disciplinary authority immediately. (vii) The disciplinary authority in the case of respondent No. 3, SI Kanwar Singh, ASI Rattan Singh and HC Mahender Singh shall take immediate action after receipt of the inquiry reports. (vii) The disciplinary authority in the case of respondent No. 3, SI Kanwar Singh, ASI Rattan Singh and HC Mahender Singh shall take immediate action after receipt of the inquiry reports. (viii) Since the matter is of a very sensitive and grave in nature, respondent No. 3, namely, Shiv Kumar Chaudhary, ASI Rattan Singh and HC Mahender Singh shall be put under suspension forthwith and remain under suspension during the trial and also till the disciplinary proceedings are completed against them. (ix) The trial court is directed to complete the trial within a period of three months from today by holding day-today proceedings. (x) Respondent No. 1 is also directed to issue instructions to all the Police Stations in the State of Himachal Pradesh that no police personnel shall indulge in custodial violence and no third degree method shall be used by the police personnel against any person in the police custody in order to ensure due compliance of Article 21 of the Constitution of India. No physical or mental torture will be caused to the persons brought to the Police Stations by giving them beatings, kicks, fist blows, by using dandas and any other method of subjugation. The police personnel should not use filthy and foul language in the Police Station and, if used, it will amount to physical and mental torture. (xi) The Superintendents of Police/Deputy Superintendents of Police are directed to carryout the periodical inspections in the Police Stations to ensure that no person is detained in the Police Stations without authority of law and also to ensure that if any citizen/person is arrested without warrant, he be produced before the Illaqua Magistrate within 24 hours. (xii) In order to ensure due compliance of directions No. (x) and (xi) the following committee of Judicial Officers/Sub Divisional Officers is constituted: (i) The Chief Judicial Magistrates of all the Divisions; and (ii) The Sub Divisional Magistrates of all the Divisions. The committee shall visit all the Police Stations weekly and report whether any person has been detained without authority of law. The committee shall also ensure that whether a person brought to the Police Station without warrant has been produced before the Illaqua Magistrate within 24 hours or not. The committee shall furnish reports to the Sessions Judges. The committee shall visit all the Police Stations weekly and report whether any person has been detained without authority of law. The committee shall also ensure that whether a person brought to the Police Station without warrant has been produced before the Illaqua Magistrate within 24 hours or not. The committee shall furnish reports to the Sessions Judges. The Sessions Judges are permitted to make recommendations for taking suitable disciplinary action against the persons who violated the constitutional and legal mandate. The recommendations made by the Sessions Judges would be binding on all the disciplinary authorities. (xiii) The respondent No. 1 is suggested to separate investigation from the Law and Order Wing to make the investigation scientific by re-modelling the police to increase the efficiency in the police force. The investigating agency should be properly trained and they should be taught how to uphold the Constitutional and basic human rights. (xiv) Respondent-State is directed to keep holding refresher courses to apprise the new developments and techniques in investigation. (xv) Respondent No. 1 is also directed to issue directions to the Superintendents of Police throughout the State of Himachal Pradesh that no matter of civil nature is compromised in the Police Stations, as it amount to intimidation. (xvi) Respondent No. 1 is further directed that no police officer/official is put on duty at a stretch beyond eight hours. (xvii) Respondent-State is directed to constitute the following committee to improve the conditions of service of the police personnel: (a) Principal Secretary/Secretary (G.A.D.), Government of Himachal Pradesh. (b) The Secretary (Finance), Government of Himachal Pradesh. The committee shall undertake the exercise the manner in which the conditions of service of police personnel can be improved by providing time bound promotions, incentives to those police personnel who improve their educational qualification, their duty hours, housing problems and over time allowances etc. The committee shall make its recommendations within a period of three months from today to the State Government. Thereafter, the State Government shall take necessary action within a further period of three months. It shall be open to the committee to make other recommendations concerning welfare of police personnel. (xviii) Respondents No. 1 and 2 are directed to file compliance reports separately within a period of three weeks. They are also directed to file status report(s) with regard to direction No. (viii) within 24 hours. It shall be open to the committee to make other recommendations concerning welfare of police personnel. (xviii) Respondents No. 1 and 2 are directed to file compliance reports separately within a period of three weeks. They are also directed to file status report(s) with regard to direction No. (viii) within 24 hours. The pending application(s), if any, also stands disposed of. The authenticated copy of this judgment be sent forthwith to the Chief Secretary, Govt. of Himachal Pradesh, Principal Secretary (Home), Govt. of Himachal Pradesh, Director General of Police, Himachal Pradesh and the Registrar General of this Court. In addition to this, the operative portion of this judgment be supplied to Mr. Vikas Rathore, learned Deputy Advocate General by the Court Master, for its due compliance.