JUDGMENT <NAME>, Kt., C.J.

1. The only question in this application made un behalf of the Broach City Municipality is whether an order made or a decision given by <ORG> under Section 160(3) of the Bombay District Municipal Act (Bom. Act III of 1901) can be executed, or whether it is necessary to make an application to the <ORG> to pass a decree in accordance with the order or decision. It would certainly be very remarkable, when a summary method has been provided for by the <ORG> for determining disputes arising for money compensation or damages which are directed to be paid by the Act that it should be necessary in order for the successful party to obtain relief to file a suit when <ORG> has come to a definite conclusion on the merits. <ORG> in cases in which the compensation is claimed in respect of land should follow, as far as may be, the procedure provided by the Land Acquisition Act , 1894, for proceedings in matters referred for the determination of the <ORG>. Under the Land Acquisition Act , in the case of a reference, the <ORG> proceeds to hear the parties, and to determine the value of the land, and to make an award. Clearly that award could be executed as a decree. It follows that where <ORG> makes an order under Section 160(3) , it must be treated for the purpose of execution in the same way as an award made in a reference under Section 18 of the Land Acquisition Act, 1894.

2. We have been referred to the decision in <CITATION> (1911) I.L.R. 36 Bom. 47: 13 Bom. L.R. 958 but that, if anything, is against the present applicant's contention. It was decided there that no appeal lies from the decision of <ORG> under Section 160(3) of the Bombay District Municipal Act, 1901. Once we find that the decision of the <ORG> under that section is considered as an order, though it may not be a decree, it must follow that there is some way for the parties entitled to the benefit of the order to get satisfaction without having to file another suit.

3. Again it is clear from Section 160 , proviso (b), that the <ORG> has full power to give and apportion the costs of all proceedings in any manner it thinks fit, According to the applicant's contention, although the <ORG> had full power to apportion costs, it had no power to issue execution in order that a successful party might get his costs given to him already by the <ORG>.

4. In my opinion, therefore, there can be no doubt that the decision of the lower Court was right and that the rule should be discharged with costs.


JUDGMENT <NAME>, <NAME> - In this reference we are required to give out opinion on the following question :-

"Whether in the facts and circumstances of these cases, <ORG> was right in holding that the directors of the respondents company had a controlling interest in it as contemplated by Section 2 (21) of the Excess Profits Tax Act."

This reference has been made at the instance of the Commissioner of Excess Profits Tax, West Bengal, and arises out of five consolidated applications made under the Excess Profits Tax Act covering the chargeable accounting periods ended 31st December, 1939, to 31st December, 1943. The point involved in them is the same.

The dispute before <ORG> and <ORG> was whether the respondent company was or was not a director-controlled company within the meaning of Section 2(21) of the Excess Profits Tax Act, 1940, during the chargeable accounting periods in question. The material portion of that section is as follows :- "Statutory percentage" means - (a) in relation to a business carried on by a body corporate (other than a company the directors whereof have a controlling interest therein), eight per cent. per annum;.............. (c) in relation to a business to which sub-clause (a) does not apply, ten per cent. per annum.

If the respondent company is a director-controlled company, then on the increase in its average capital, the statutory percentage allowed under that section will be 10 per cent. and if not, it will be 8 per cent.

The respondent company was incorporated under the Indian Companies Act having a capital of Rs. 36 lacs divided into 3,60,000 shares of Rs. 10 each. During the chargeable accounting periods in question, these shares were held as follows :-

S.No.

S.No.

Name of shareholder.

Name of shareholder.

Number of shares held in C.A. Ps. 31-12-1939 31-12-1940 & 31-12-1943.

Number of shares held in <ORG> ended and 31-12-1941 Number of shares held in <ORG> ended and 31-12-1941

1. <ORG> MONTREAL, 3,59,790 3,59,600

2. Mr. <NAME> ...

3. " " P. J. Pathak

4. " " Manu Subhedar

5. " " H. K. Shah .....

6. " " Kenneth Hall .....

Article 90 of the Articles of Association of the respondent company is as follows :-

"90. Where a company registered under the provisions of the Indian Companies Act or not is a member of this company a person duly appointed to represent such company at a meeting of this company in accordance with the provisions of Section 80 of the Indian Companies Act, 1913, shall not be deemed to be a proxy but shall be entitled to vote for such company on a show of hands and to exercise the same powers on behalf of the company which he represents as if he were an individual member of this company including the power to appoint a proxy whether special or general and the production at the meeting of a copy of such resolution appointing such representative duly signed by one director of such company and by the secretary (if any) and certified by them or him as being a true copy of the resolution shall on production at the meeting be accepted by this company as sufficient evidence of the validity of his appointment."

Article 105 empowers <ORG>, to appoint three permanent directors on the board of directors. Article 113 provides that the nominee director appointed by <ORG>, shall act as chairman of the meeting of the directors.

The first directors were Mr. <NAME> and Mr. <NAME> nominated by the respondent company, and Mr. <NAME>, Mr. <NAME> and Mr. <NAME> nominated by <ORG>

The articles also provide that the directors nominated by <ORG>, were entitled to retain office for life.

All the life directors except Mr. <NAME> ultimately retired Mr. <NAME> continued in that office.

By several resolutions passed by the directors of <ORG>, between 23rd May, 1935, and 20th October, 1942, it was resolved that <ORG>, "a corporation organised and existing under the Companies Act of the Dominion of Canada, hereby constitutes and appoints Mr. <NAME> its true and lawful agent and attorney-in-fact for it and in its name, place and stead to vote and/or from time to time to appoint special or general proxy to vote the said shares on behalf of <ORG>, at any general or special meetings of the shareholders of <ORG>"

The resolutions recite Article 90 set out above. The "said shares" in the resolutions refer to the shares owned by <ORG>, and <ORG> is the respondent company.

The appellate Assistant Commissioner held that Mr. <NAME> functioned in the dual capacity of a director of the assessee company and as an agent of <ORG> and that he was controlling the assessee company by exercising the voting rights in respect of the shares held by the foreign company as agent of the said company and not as a director of the assessee company, and on that view, he, in agreement with the Income-tax Officer, treated the assessee as not a director-controlled company within the meaning of Section 2 (21) of the Excess Profits Tax Act. From this order there was an appeal to <ORG>. The Tribunal held that in view of the power-of-attorney given to Mr. <NAME> by the <ORG>, there was no room for doubt that the respondent company was a director-controlled company and set aside the order of the Appellate Assistant Commissioner.

The Commissioner of Excess Profits Tax thereupon asked the Tribunal to make a reference saying that the following question of law, among others, arose out of the order of the Tribunal :-

"Whether on the facts and in the circumstances of the case and on the construction of the power-of-attorney, the <ORG> was right in holding that the assessee was a company the directors whereof had a controlling interest therein."

The <ORG> accordingly has made the reference and has asked for our opinion on the question formulated by it as stated above. This is the question on which we have to express our opinion.

On behalf of the Commissioner, a point was taken by Dr. <NAME> that Article 90 in the Articles of Association was ultra vires the Indian Companies Act and, therefore, was invalid, and consequently the power-of-attorney given to Mr. <NAME> was of no effect. Counsel referred to Section 80 of the Act, which is as follows :-

"A company which is a member of another company may, by resolution of the directors, authorise any of its officials or any other person to act as its representative at any meeting of that other company, and the person so authorised shall be entitled to exercise the same powers on behalf of the company which he represents as if he were an individual shareholder of that other company."

The "company" in the section means a company incorporated under the Indian companies Act. <ORG>, is not a company incorporated under the Indian Companies Act . Applicants counsel Dr. <NAME> said that Section 80 of that Act had no application to the case of <ORG>

He also pointed out that apart from Section 80 there was no other provision in the Act which authorised <ORG>, to give such a power-of-attorney and so the power given to Mr. <NAME> was invalid.

It is true that Section 80 does not apply and there is no provision in the Companies Act which expressly authorise the company to give such a power-of-attorney. But that does not mean that <ORG>, cannot give such a power-of-attorney. A corporation has no body nor a soul and must, ex necessitate rei, act through some human agency. If this is so, I do not see any reason why <ORG>, could not give such a power-of-attorney to Mr. <NAME>. Indeed the form of the power-of-attorney is taken from the Encyclopaedia of Forms edited by Dr. <NAME> and is also given in <ORG>.

Both counsel agree that the English Companies Acts do not contain any express provision authorising an English company to execute a general power-of-attorney like the one under consideration. If a corporation has no authority to execute such a power, I do not see any meaning in the great authorities giving the forms, I have above referred to, as specimen forms.

But in the reference before us we are not called upon to decide the question raised by Dr. <NAME>. We are of opinion that the applicant before us is not entitled to take the point as to the invalidity of the power. The point the applicant took before the <ORG> was not that the power was invalid but that on the true construction of the power given to Mr. <NAME>, he was not entitled to vote as a director in respect of the shares held by <ORG> There the applicant argued that by virtue of the power given to Mr. <NAME>, he could only vote as an agent of <ORG>, and, therefore, the respondent company was not a director-controlled company. It is clear, therefore, that the argument was based on the validity of the power.

But now Dr. <NAME> seeks to argue that such a power is invalid. We are clearly of opinion that the point as to the validity of the power having not been taken before <ORG>, it does not arise out of the order.

It must be remembered that the reference has been made under Section 66 of the Indian Income-tax Act. That section authorise <ORG> to issue a mandamus to an inferior court or a public officer to show cause why a particular act should not be done or forborne. One of the principles of mandamus is that the court never issues a mandamus unless it is shown that it is incumbent on the inferior Court to do an act or forbear from doing an act. In this case how could it possibly be said that it was incumbent on the <ORG> to make a reference as to the invalidity of the power when that point was not raised before it ? Further no mandamus is issued unless it is just so to do. As I have said before, the applicant before us proceeded before the <ORG>, the Appellate Assistant Commissioner, and the Income-tax Officer on the footing that the power was invalid. How can the applicant now be allowed to argue his case on the foot in that the power is invalid ? It would be most unjust for this Court to allow such a point to be taken.

We have been referred to a recent decision of <ORG> as an authority for the proposition that even if a point is not taken before the <ORG>, such a point can be said to arise out of the order of the <ORG>. We are unable to take that view. It has been clearly laid down in <CITATION> , that a question of law can be said to arise out of an order of the Appellate <ORG> cannot be said to arise out of its order even if on the facts of the case appearing from the order, the question fairly arises. We respectfully agree with the view expressed by <ORG>. The decision of <ORG> accords with the principle underlying a mandamus.

Dr. <NAME> argued that the question framed by the <ORG> was in very wide terms and as such he was entitled to take the point before us. We do not agree. The matter surely does not rest on the words used by the <ORG> in framing the question but on the substance of the matter.

The only point, therefore, for our consideration is whether in view in of the fact that Mr. <NAME> had a valid power-of-attorney from <ORG>, to vote on the shares held by that company, the respondent company can be said to be a director-controlled company. The question depends on the meaning to be given to the words "controlling interest" in Section 2 (21).

The control of a company resides in the voting power of its shareholders. "Controlling interest" means the extent to which the shareholders have the power of controlling the decisions of the company by vote. The fact that the beneficial interest in the shares is in a third party is immaterial. No distinction can be made between the case when the director-trustee has, and when he has not, a beneficial interest in the shares. This is the decision of <ORG> in <ORG> v. <ORG> In this case the issued capital of the company concerned consisted of 750,000 Pounds preference shares and 500,000 Pounds ordinary shares. The preference shares carried no votes. Each ordinary share carried one vote on a poll. There were eight directors who were respectively beneficial owners and registered holders of ordinary shares which amounted to a total of 209,332 shares. Three of the directors were registered as joint holders of 57,500 other ordinary shares which they held as trustees of their sisters marriage settlement. The company employed in its business in the chargeable accounting period from 1st April, 1939, to 31st December, 1939, an average amount of capital greater than the average amount in the standard period and was, therefore, by virtue of the Finance (No. 2) Act, 1939, Section 13(3) , entitled to have its standard profits increased by a percentage of the increase in its capital. Sub-section (9) of the same section provided that if the directors have a "controlling interest" in the company, the standard profits might be increased by 10 per cent., but where they had no such interest, only by 8 per cent. The question for the determination of the <ORG> was, therefore, whether the 57,500 shares ought to be added to the 209,332 shares for the purpose of determining whether the directors had a controlling interest in the respondent company.

<ORG>, affirming the decision of <ORG>, held that on a true construction, the words "controlling interest" did not refer to the directors beneficial interest in the company, but to the power of controlling by votes the decisions binding on the company in the shape of resolutions passed at a general meeting. The fact that a vote-carrying share was vested in a director as a trustee was, therefore, as far as the company was concerned, immaterial. Accordingly, the directors were entitled to include the shares held by them for the purpose of ascertaining whether they had a "controlling interest" has been explained.

Again, the expression "controlling interest" has been explained by <ORG> in <ORG> v. Commissioner of Inland Revenue. Viscount <NAME>, L. C., made the following observations at page 67 :-

"The case turns on the meaning of the words controlling interest in the context in which they are used.

The appellant argues that, in order that one company should have a controlling interest in another, it must be the beneficial owner of a requisite number of shares in that other company, either registered in its own name or in the name of its nominees; and that if company No. 1 owns all the shares in company No. 2, which in turn owns all the shares in company No. 3, company No. 1 has no interest, controlling or otherwise, in company No. 3.

It is true that in such circumstances company No. 1 owns none of the assets of company No. 2, and a fortiori owns none of the assets of company No. 3, and in that sense neither owns, nor has an interest in, company No. 3. But that is to treat the phrase controlling interest as capable of connoting only a proprietary right, that is, an interest in the nature of ownership. The word interest, however, as pointed out by <ORG>, is a word of wide connotation and I think the conception of controlling interest may well cover the relationship of one company towards another, the requisite majority of whose shares are, as regards their voting power, subject, whether directly or indirectly, to the will and ordering of the first-mentioned company. If, for example, the appellant company owns one-third of the shares in company X, and the remaining two-thirds are owned by company Y, the appellant company will none the less have a controlling interest in company X if it owns enough shares in company Y to control the latter.

In my opinion this is the meaning of the word interest in the enactment under consideration, and where one company stands in such a relationship to another, the former can properly be said to have a controlling interest in the latter. This view appears to me to agree with the object of the enactment as it appears on the face of the Act.

I find it impossible to adopt the view that a persons who (by having the requisite voting power in a company subject to his will and ordering) can make the ultimate decision as to where and how the business of the company shall be carried on, and who thus has in fact control of the companys affairs, is a person of whom it can be said that he has not in his contention got a controlling interest in the company."

<CITATION> ., the same view was taken. In that case out of the 100 shares of the assessee company 43 were held by the directors in their own right. Twenty shares were held by five persons as trustees, one of them A being also a director. It was argued that interest contemplated by Section 2(21) (a) of the Excess Profits Tax Act, 1940, was beneficial interest and, therefore, the trustees could not be said to have an interest in the shares within the meaning of that section. <ORG> (<ORG>, and <ORG>) held that the interest of the trustees in the shares was interest within the meaning of the section and that as under the trust deed and also the Articles of Association of the company the trustee A had the right to vote as he pleased at a meeting as between the company and the shareholders, he had a controlling interest in respect of the 20 shares, and the company, therefore, was a director-controlled company within the meaning of the section.

Dr. <NAME> referred us to a later Bombay case, <CITATION> , in which a contrary view was taken. In this case <ORG> (Chagla, C.J., and Tendolkar, J.) has taken the view that if the directors can influence the ultimate decision of the company, they have a controlling interest. But the ultimate control must be brought about by directors having a majority of votes on the register and not by any extraneous circumstances which may result in the majority against them being reduced to a majority. With respect, we are unable to agree with the view expressed in the latter Bombay case. It is to be noted that this case does not make any reference to the earlier Bombay case and it does not appear that their Lordships attention was drawn to that case.

The material words in the section which is now under consideration are "directors whereof have a controlling interest therein." The section does not make any reference to any register. There is nothing in the section to show that such control must be brought about by directors having a majority of votes on the register.

It is necessary to discuss other cases which were cited by counsel because in my humble opinion the two decisions of <ORG> and the earlier Bombay case very clearly decide the meaning of the expression "controlling interest" in the section under consideration.

It is clear, therefore, on the principle stated above that the respondent is a director-controlled company. It is quite true that Mr. <NAME> had no beneficial interest in the shares which were owned by <ORG>, but by virtue of the power he held from that company, he, a director, was in a position to control the decision of the respondent company by votes at a general meeting.

The applicant has referred us to Article 88 to show where the voting right was. That article is fatal to the applicants case because, if each shareholder is taken to have a vote, it is clear that of the six shareholders, the directors have the majority votes.

The answer to the question asked, therefore, must be in the affirmative.

The applicant must pay the costs of the reference.

<NAME>, C.J. - I agree.

Reference answered accordingly.


CASE NO.: Writ Petition (crl.) 237 of 1998 PETITIONER: <NAME> RESPONDENT: State of Haryana & Ors. DATE OF JUDGMENT: 03/02/2006 BENCH: CJI, <NAME> & <NAME> JUDGMENT:

J U D G M E N T R.V. RAVEENDRAN, J.

An undated letter from the petitioner, received by this Court on 19.11.1998, alleging illegal detention, custodial torture and harassment to family members was registered as a writ petition under Article 32 of the Constitution of India. The State of Haryana and its Director General of Police, were arrayed as respondents 1 and 2 and the six Police Officers referred to in the letter-petition were arrayed as respondent Nos.3 to 8.

PROLOGUE (According to Police)

2. On 10.3.1998, at about 10 a.m. <NAME> <ORG>, <ORG> Post Dhamtan Saheb (Narwana Tehsil, <NAME> District), along with <ORG> constables (<NAME>, <NAME> and <NAME>), while patrolling near Dhamtan Saheb Bus Stand, received information that one <NAME> (son of petitioner) and his associates were conspiring in his house, to apply pressure on some tender-bidders. When the police party proceeded towards <NAME>'s house, they saw two young men coming from the opposite side, on a motorcycle. On seeing the <ORG> party, the motorcycle suddenly turned back. On suspicion, the <ORG> party gave chase and stopped the motorcycle near a petrol-pump. The <ORG> asked the motorcyclist and the pillion-rider to identify themselves. The motorcyclist gave his name as <NAME>. The pillion-rider gave his name as <NAME>, a Palledar at Tohana. When the <ORG> asked <NAME> as to whether he was the same <NAME> who had jumped parole in a case, <NAME> started running. When the <ORG> party chased him, <NAME> turned back, whipped out a pistol and fired at them. <NAME>, one of the Constables, was hit and collapsed. In the ensuing confusion, both <NAME> and <NAME> escaped. The injured Constable succumbed to the bullet injuries. In this connection, FIR No.112 dated 10.3.1998 under Section 302 / 307 / 352 / 186  was registered in P.S., Garhi, against <NAME> and <NAME>. On receiving information of the death of constable, the SP and the DSP rushed to the hospital and later, went to the Dhamtan Saheb <ORG> Post. In the meantime, the <ORG> party which had gone to the house of <NAME>, in search of him, did not find him and brought his father <NAME> (Petitioner) to the <ORG> Station. According to police, the SDM and the Chairman of <ORG>, <NAME>, were also present at the <ORG> Post at that time. The petitioner denied any knowledge of the whereabouts of his son <NAME>. The SP made some enquiries with the petitioner and left. After inquiries, the petitioner was released.

2.1) The petitioner along with his brother-in-law <NAME> filed W.P. (Crl.) No.416/1998 in the Punjab & Haryana High Court on 24.3.1998 alleging harassment, torture and illegal detention for three days (from 10.3.1998 to 13.3.1998) and again for a day (15.3.1998 to 16.3.1998) and prayed for action against the concerned Police Officers and for a judicial enquiry. <ORG> by order dated 27.4.1998 disposed of the petition with an observation that petitioners may file a criminal complaint in a competent court.

2.2) The petitioner went underground for a few months. Further enquiries by the police revealed that several cases had been registered against the petitioner and his son <NAME>. <NAME> was declared as 'proclaimed offender' by order dated 12.6.1998 of <ORG> Narwana. The petitioner published a notice in '<ORG> dated 6.8.1998 that he had disowned his son <NAME> and was not responsible for his actions.

2.3) The <ORG> continued with their inquiries and in July, 1998, ASI <NAME> and other <ORG> Officers of Dhamtan Saheb <ORG> Post again tried to ascertain his whereabouts by making enquiries with the petitioner and his relatives/friends.

The Letter (re : alleged torture and illegal detention)

3. The petitioner sent an undated letter to this Court (received on 19.11.1998) wherein he alleged that <NAME>, In- charge of <ORG>, along with some <ORG> Officers, came to his house on 10.3.1998 at about 11 a.m, to enquire about the whereabouts of his son <NAME>; and that when he informed them that he was not aware of it, they started beating him. Thereafter, the <ORG> took him, his wife and two minor daughters forcibly to the <ORG> Post, through the bazaar. He was beaten with sticks on the way. When they reached the <ORG> Post, <NAME>, Superintendent of <ORG> as also the Deputy Superintendent of <ORG>, Narwana, were present. When <NAME> informed them that the persons brought were the father, mother and sisters of <NAME>, the S.P. directed that they may be brought to 'correct mental attitude'. The ASI took him inside and beat him for about 10 minutes and brought him back before the SP again. By then, his wife and daughters were made to sit in an uncomfortable posture (as students are made to sit in schools by way of punishment). When the petitioner stated that he was not aware of his son's whereabouts, the S.P. became furious and ordered his men to remove his moustache, whereupon <NAME> sat on his chest (with three policemen pressing his hands and feet) and plucked his moustache. Again, they started beating him, searched his pockets and took away Rs.2,350 which he was carrying. Then the police took him back to his house and ransacked the house. <NAME> broke open the lock of his trunk and seized his licensed gun, some cartridges and Arms licence, as also some jewellery found in the trunk. Thereafter, the petitioner was taken back to the <ORG> Post. Though his wife and daughters were sent back to the house, he was illegally detained in <ORG> custody for a day and then taken to P.S. Garhi where he was kept for 10 days and during the first 5 days of such detention, he was regularly beaten. Because of such police harassment and torture, when he was released he and his younger son <NAME> fled from his house.

3.1) On 8.7.1998, the petitioner returned to his house. <NAME>, <ORG>, (who had succeeded <NAME>) and <NAME> (HC) of <ORG>, came to his house, with four other policemen, handcuffed him and took him to <ORG>. He was tortured in <ORG> by the <ORG> and Head Constable <NAME> by thrashing him thrice, each time continuously for 15 minutes. When he requested for water, he was forced to drink hot water with salt. The <NAME>, <ORG> kept him in a wooden Shikanza for 5 days and he was not allowed to sleep. Then he was taken to Jind. He also alleged that the <ORG> forced him to bring money for the vehicles to conduct raids (to catch his son, <NAME>) and he was forced to accompany them on such raids and was put in wooden Shikanza at Tulvan Thana. When he begged that he should be released, he was informed that he was being taken for the raids on the instructions of <NAME>, S.P., Jind, and that without the permission of the S.P., he could not be released. After three days he was again taken back to <ORG> and kept there for 2 days. Thereafter, he was released with a condition to visit <ORG> everyday in the morning and evening.

3.2) The Petitioner alleged that his friends and relatives who wanted to meet him, when he was being illegally detained, were not permitted to meet him and they were also tortured. He also alleged that <NAME> (HC) of <ORG> was demanding money from him.

3.3) He alleged that in view of such torture, he was forced to leave his house and remain outside. He prayed for a direction to the <ORG> to stop the atrocities and torture. He sought compensation for himself and his wife and daughters for the social, physical and financial loss, and return of his licensed gun, gold ornaments and other belongings. He also prayed for a thorough inquiry into the atrocities and torture committed by the <ORG> and imposition of punishment to those who were responsible.

3.4) The letter of the petitioner was registered as a writ petition and Rule was issued on 11.1.1999. On 13.9.2000, this <ORG> appointed Mr. <NAME>, Advocate, as Amicus Curiae, to assist the <ORG>.

The alleged Second Round of Harassment :

4. <NAME> was arrested in June, 1999 by <ORG>. Before his arrest, he was allegedly involved in two robberies (registered on 19.3.1999 with PS, City Yamunanagar, and on 21.3.1999 with PS, Indri, Karnal District). On 25.1.2001, when he was being taken to <ORG> from Ambala jail, <NAME> escaped from police custody. It is further alleged by the police that on 13.2.2001, <NAME> and his associates murdered two residents of Tohana.

4.1) According to <ORG>, on 29.1.2001, the SHO, <ORG> Station, Garhi along with other police officials visited the house of petitioner in search of <NAME> who had escaped from custody. Again in February, 2001 after the double murder, the S.I. of <ORG> Station, Tohana along with the ASI in charge of Dhamtan Saheb <ORG> Post, and other <ORG> officials visited petitioner's house in search of <NAME>. In that connection, petitioner and his brother were taken to <ORG> Station Tohana on 14.2.2001 for inquiries and were released on the same day. They were again called for inquiries on the next day. On 22.6.2001, the Officer in Charge of <ORG> Post, Patiala Chowk, Jind, searched the house of <NAME> (sister of <NAME>), to find out whether <NAME> was hiding there. On 24.6.2001, petitioner's younger son <NAME> was arrested for possessing illegal arms.

4.2) The petitioner filed an affidavit dated 22.2.2001 before this Court on 3.3.2001 alleging interrogation by <ORG> on 26.1.2001 and 29.1.2001 in regard to escape of his son <NAME> from <ORG> custody. He also alleged that on 14.2.2001 he and his brother <NAME> were handcuffed and taken to Tohana <ORG> Station and interrogated and released on 15.2.2001. The S.P. <NAME> filed a detailed reply affidavit dated 11.8.2001. A further affidavit was filed by the petitioner on 1.10.2001 wherein he alleged that his younger son <NAME> was forcibly taken from his sister's house on 22.6.2001 and tortured. This brought forth a further affidavit dated 20.11.2001 from the S.P., <NAME>, by way of reply denying the allegations.

PROCEEDINGS IN THIS COURT :

5. Not being satisfied with the reply-affidavit filed on behalf of the <ORG>, in regard to the letter-petition, this Court on 9.11.2000 directed the Chief Secretary of the <ORG> of Haryana to file a detailed affidavit in regard to the steps taken on the allegations made by the petitioner. In view of it, the <ORG> got the matter inquired into by Dr. <NAME>, Inspector General of Police, (<ORG>), Haryana. He submitted a report dated 10.3.2001 stating that the allegations of the petitioner relating to police torture, illegal detention, harassment to wife and daughters, and removal of cash/licensed weapon/jewellery were not substantiated. The said report, however, confirmed that petitioner and his brother were called to the Police Station couple of times for interrogation regarding the whereabouts of <NAME>. Not being satisfied with the said report, this Court on 17.10.2001 directed the <ORG> to inquire into the matter with reference to the allegations made in the letter as also the subsequent affidavits filed by the petitioner and his relatives and the reply affidavits filed by the respondents.

5.1) The <ORG> held a preliminary inquiry and submitted the report of the Inquiry Officer (<NAME>, ASP) under cover of its letter dated 22.7.2002. The findings in the said report are arrived at, on the basis of the allegations made in the affidavits filed before this Court, and the statements made by the petitioner, his family members and others (nearly 100 witnesses) before the Inquiry Officer. The <ORG> has concluded that some of the allegations of the petitioner were substantiated while several others were not substantiated.

5.2) On 16.9.2002, this Court directed that the State Government to take appropriate action on the report of the <ORG>. In pursuance of it, an FIR was lodged in Garhi Police Station, Jind District, (FIR No.152 dated 17.10.2002 under Sections 323 , 342 , 343 , 365 and 384 ) on the basis of the <ORG> report, naming the following 10 officers :-

1. <NAME> (by then S.I.)

2. ASI Satyanarain 238/Jind

3. <ORG> (by then <ORG>)

4. Const. <NAME>, No.59/Jind

5. <ORG> No.450/Jind

6. Const. <NAME> No.811/Jind

7. Const. <NAME> No.99/Jind

8. Const. <NAME> No.704/Jind

9. Const. <NAME>Jind

10. Const. <NAME> 825/Jind (by then HC) The Deputy Superintendent of Police, Narwana, filed an affidavit dated 1.11.2002 confirming that FIR was lodged and that he was investigating into the matter.

5.3) On 11.11.2002, this Court noted that the FIR was registered and an appropriate chargesheet would be filed by the <ORG> in due course, and that the officers concerned have been suspended/posted outside the district. This Court also took note of the submission of the amicus curiae that in such cases, apart from <ORG> inquiry and criminal prosecution, compensation has to be awarded to the victims, and the submission of the <ORG> that having regard to the facts of the case and having regard to the registration of the FIR, the matter may have to await the result of the prosecution. While adjourning the case, this Court observed that the question of awarding any compensation at that stage, did not arise.

5.4) The SP, <NAME>, by affidavit dated 9.6.2003 informed this Court that the charge-sheet was filed in <ORG>, Narwana, and that the case was fixed for 18.7.2003 for framing of charge. Thereafter, when the matter came up on 4.8.2003, the amicus curiae again submitted that compensation should be awarded. This Court directed hearing on the limited question as to whether compensation should be awarded or not. The criminal court was also directed to expedite the trial. The criminal case against the <ORG> officers, we are informed, is under progress.

5.5) Thereafter, arguments on the question as to whether compensation should be awarded or not were heard on 6.10.2005 and written arguments were submitted by the Amicus Curiae and the <ORG> on 19.10.2005 and 16.11.2005 respectively.

(Preliminary) Inquiry Report of <ORG> :

6. The findings contained in the report of <ORG> are summarized below :-

Allegations by Petitioner (and his relatives) Finding by C.B.I.

1. Incident on 10.3.1998 1.1. Petitioner was tortured at Dhamtan Saheb Police Post on 10.3.1998 on the directions of Mr. <NAME>, Superintendent of Police, Jind and Mr. <NAME>, DSP, Jind.

Not substantiated 1.2 On 10.3.1998 <NAME> took cash of Rs.2,350/- from the pocket of the petitioner and Rs.4,700/- from the pocket of his friend <NAME>.

Not substantiated 1.3 <NAME>, <ORG>, took away the licensed gun, cartridges and jewellery from the house of petitioner, on 10.3.1998.

Not substantiated by any independent witness.

1.4 <NAME>, ASI, Incharge of <ORG> along with other Police officials picked up the Petitioner and his friend <NAME> on 10.3.1998 and took them to <ORG> and beat them on the way.

Substantiated 1.5 <NAME> (H.C., <ORG>, Garhi) and <NAME>, <ORG>, beat petitioner on 11.3.1998.

Substantiated (But no injury report or medical report is available.)

2. Illegal detention.

2.1. Petitioner was arrested on 10.3.1998 and taken to <ORG> on 11.3.1998 where he was illegally detained for 10 days and beaten during first 5 days.

Detention of petitioner at P.S. Garhi for some days was substantiated by an oral evidence of accused in an Excise Case (<NAME>).

2.2. <NAME> alias Ratna (brother in law of petitioner) was picket up on 10.3.1998 and kept illegally at P.S. Garhi and tortured for 2 days. He was again arrested on 16.3.1998, tortured for 4 days and released on 20.3.1998.

Picking up of <NAME> a few days after 10.3.1998 is established. However, alleged torture and wrongful confinement is supported only by his self statement and not by any medical or other evidence.

[Note: However, in the writ petition filed by <NAME> and petitioner on 24.3.1998 in <ORG>, it is alleged that petitioner and <NAME> were kept in illegal confinement from 10.3.1998 to 13.3.1998 and again from 15.3.1998 to 16.3.1998. There is no allegation of any torture at all. They only alleged that they apprehended harassment and torture by <ORG>.)

3. Incidents between 8.7.1998 and 7.11.1998 3.1 <NAME> (HC), in-charge of <ORG> handcuffed petitioner and took the petitioner to <ORG> on 8.7.1998.

Substantiated 3.2 <NAME>, <ORG>, harassed petitioner between 8.7.1998 and 7.11.1998.

Substantiated 3.3 <NAME>, <ORG>, demanded money from the petitioner and took money from petitioner, for fuel for the vehicle used to conduct raids.

Not Substantiated 3.4 <NAME> ASI took 10 kg. of Desi Ghee from petitioner's brother <NAME>. Not Substantiated 3.5 <NAME>, ASI, had detained <NAME> in police custody. Substantiated 3.6 <NAME>, ASI, tortured <NAME> and took Rs.500/- to release him. Not substantiated. 4. Re : Incidents in the year 2001 4.1 SHO, Police Station, Garhi along with other police officials raided the petitioner's house in January, 2001 and intentionally flashed a torch light on the faces of his young daughters. Not substantiated. (What is established is that SHO, PS, Garhi raided the petitioner's house on the night of 31.1.01 to check whether <NAME> who had escaped from police custody was at the house. A torch light was used as there was no electricity.) 4.2 On 14.2.01, SHO, <ORG>, Tohana along with other police officials had handcuffed the petitioner and his brother <NAME> and detained for a day. Not substantiated. (However, what is established is that the petitioner and his brother were taken to PS City Tohana on 14.2.01, for inquiries in connection with the report that petitioner's son <NAME> Singh and his associates had committed a double murder on 14.2.01. After a few hours of interrogation they were released). 4.3 On 22.6.01, <NAME>, younger son of petitioner was picked up (by Constables <NAME> and <NAME> in a vehicle driven by Constable <NAME>). He was confined at PS City, <NAME> and tortured. Substantiated only to the extent that <NAME> was picked up on 22.6.01 by police party and wrongfully confined at PS City, <NAME>. (In regard to alleged torture, the statement of <NAME> alone is available without corroboration). 4.4 <NAME>, Inspector, when he was SHO, PS <NAME> forcibly picked up one <NAME> on 26.7.01 and harassed him when <NAME>'s house was raided on 29.7.01. Not substantiated. (What is established is <NAME> had taken <NAME> on the instructions of ASP, <NAME> and examined him for an hour).

7. The report further shows that petitioner was involved in several criminal cases from 1972 and his son <NAME> was involved in more number of criminal cases from the year 1991, as detailed below :-

Cases in respect of petitioner :

1. FIR No. 275 dt. 13.10.72 u/s 61/1/14 Excise Act P.S. Sadar Kaithal.

2. FIR No.59 dt. 13.2.78 u/s 379 IPC PS <NAME>.

3. FIR No.231 dt. 22.7.85 u/s 25/54/59 Arms Act P.S. Sadar Kaithal.

4. FIR No.141 dt. 20.7.86 u/s 61/1/14 Excise Act <NAME>.

5. FIR No.142 dt. 25.4.91 u/s 25/54/59 Arms Act read with section 5 TADA Act <NAME>.

6. FIR No.147 dt. 25.4.91 u/s 285/336 I.P.C . P.S. Sadar Kaithal.

7. FIR No.219 dt. 17.7.91 u/s 324/323/506/34 IPC PS <NAME>.

8. FIR No.367 dt. 23.11.94 u/s 323/324/148/149 IPC PS Garhi.

9. FIR No.277 dt. 25.6.2001 u/s 332/353/225/186/511 IPC PS City, Jind.

(Note: The petitioner was convicted only in the first case. He was acquitted in all other cases.) Cases in respect of <NAME> :

a) FIR No.219 dated 17.7.91 u/s 323/324/506/34 IPC PS Sadar, Kaithal.

b) FIR No.395 dated 5.7.97 u/s 324/34 IPC PS Civil Lines, Hissar.

c) FIR No.242 dated 7.9.96 u/s 307/120-B IPC & 25/54/59 Arms Act , PS City, Tohana.

d) FIR No.245 dated 8.9.96 u/s 25/54/59 Arms Act , PS City, Tohana.

e) FIR No.112 dated 10.3.98 u/s 302/307/353/86/34 IPC & 25/54/59 Arms Act , PS Garhi..

f) FIR No.57 dated 31.3.99 u/s 392/395 IPC & 25/54/59 Arms Act , PS Indri, Karnal.

g) FIR No.99 dated 19.3.99 u/s 393/394/397/307/452 IPC , PS City, Yamunanagar.

h) FIR No.94 dated 21.6.99 u/s 399/401 IPC , 25/54/59 Arms Act , PS Malanwala, Distt. Firozepur, Punjab.

i) FIR No.8 dated 26.1.2001 u/s 223/224 IPC , <ORG>, Ludhiana, Punjab.

j) FIR NO.48 dated 14.2.2001 u/s 302/307/34 IPC and 25/54/59 Arms Act , PS City, Tohana.

k) FIR No.100 dated 16.2.2001 u/s 307/332/353/216 IPC and 25/54/59 Arms Act , PS Sadar, Fatehabad.

l) FIR No.38 dated 21.2.2001 u/s399/307/402 IPC and 25/54/59 Arms Act , PS City, Narwana.

m) FIR No.29 dated 16.3.2001 u/s 307, 120-B IPC and 25/54/59 Arms Act , PS City, Firozepur, Punjab.

n) FIR NO.149 dated 23.8.2001 u/s 25/54/59 Arms Act , PS Sadar, Kapurthala, Punjab.

(Note : <NAME> was convicted in regard to FIR 242/1996 and FIR No.245/1996. Sl. No. (c) and (d) above on 31.1.2002 and sentenced to undergo RI for six years and two years respectively) Position emerging from the records/CBI Report/arguments:

8. A careful examination of the facts, lead to the following inferences :

i) All allegations (relating to petitioner and his family members being taken to <ORG> Stations/<ORG> Posts and being questioned/beaten up/tortured) are in connection with the effort of <ORG> to find the whereabouts of <NAME>, whenever he was involved in a serious incident, that is (a) incident on 10.3.1998 when Joginder was suspected of killing a <ORG> constable, (b) incident on 25.1.2001 when Joginder escaped from <ORG> custody when he was being taken to court, and (c) incident on 13/14.2.2001 when Joginder was suspected of killing two persons at Tohana.

ii) Though there is some evidence of illegal detention and beating of petitioner and his relatives, the allegations of custodial torture are exaggerated and to a certain extent false.

iii) There is no medical evidence nor any visible scars/ marks/disability resulting from the alleged torture, either in the case of petitioner or his family members/relatives.

iv) The complaints of petitioner and his relatives are against different police officers of different police stations (totally unconnected with each other) in regard to incidents at different points of time, in March, 1998, April, 1998, July, 1998, January, 2001, February, 2001 and June, 2001.

v) The case of Petitioner is that he and/or his relatives were harassed, illegally confined, or tortured, to find out the whereabouts of <NAME>. The police contend that the allegations by petitioner and his relatives, are by way of a well conceived plot to prevent police investigation in regard to misdeeds by <NAME> and his associates and to pre-empt any action by the police against <NAME> or his family members.

9. We will next refer to the factors which indicate that petitioner and his relatives have made false and exaggerated claims in regard to illegal detention, torture etc., apart from suppressing material facts.

9.1) In his letter to this Court, petitioner has alleged that he was illegally confined by the <ORG> for 11 days from 10.3.1998 (one day at Dhamtan Saheb <ORG> Post and 10 days at <ORG> Station, Garhi). <NAME> (brother in law of petitioner) in his affidavit dated 13.5.1999 alleges that he was illegally detained for 2 days and again for 4 days. But in the writ petition filed by petitioner and <NAME> in <ORG> on 24.3.1998, it is alleged that the petitioner and <NAME> were confined by <ORG> between 10.3.1998 and 13.3.1998 (three days) and again for a day between 15.3.1998 and 16.3.1998.

9.2) Petitioner, in the letter to this Court, alleges beating and torture at Dhamtan Saheb <ORG> Post on 10.3.1998 and at <ORG> Station, Garhi for five days in <ORG> custody between 11.3.1998 and 16.3.1998. <NAME> alleges torture for 2 days (from 10.3.1998 to 12.3.1998) and again for four days (from 16.3.1998 to 20.3.1998). But in the writ petition filed in <ORG> on 24.3.1998 by petitioner and <NAME>, there is no allegation of beating or torture, but only expression of an apprehension that they may be arrested, harassed and tortured (Note : Petitioner blames his counsel for not mentioning the facts properly in the writ petition filed before <ORG>).

9.3) In the letter petition, petitioner completely suppressed the fact that he (along with <NAME>) had filed a writ petition on 24.3.1998 in <ORG> in regard to the said incident (between 10.3.1998 to 21.3.1998) and the fact that the said writ petition was disposed of on 27.4.1998 by <ORG> reserving liberty to file a criminal complaint.

9.4) In the letter petition, the petitioner has alleged four 'misdeeds' of police on 10.3.1998 : (a) His torture at the police post at the Dhamtan Saheb Police Post by <NAME>, ASI at the instance of Superintendent of Police and DSP, (b) Mistreatment of wife and daughters of the petitioner at the Dhamtan Saheb Police Post, (c) Rs.2,350/- being taken from his pocket by ASI <NAME>, and (d) Licensed gun, cartridges, arms licence and gold ornaments being illegally taken by ASI <NAME> on 10.3.1998. The <ORG> report finds that none of these four allegations is substantiated.

9.5) In the letter petition, the petitioner alleged that he had told police that he was not on good terms with his son <NAME>, that he had already disowned him and the family was having no connection with <NAME>. He even published a notice in '<ORG> in August, 1998 stating that he has no connection with his son <NAME>. In his affidavit dated 31.8.2001 (filed in this case on 1.10.2001), petitioner reiterates that he has disowned his son <NAME> and alleges that he did not have any contact with him; and that in spite of it, the police were continuously harassing him and his family members seeking information about the whereabouts of <NAME> and raiding his house and his relatives' houses to find out whether <NAME> was hiding there. But the <ORG> inquiry has categorically found that petitioner and his family members had not disowned <NAME>. They were regularly meeting <NAME> when he was in custody. Petitioner was traveling to meet his son <NAME> whenever he was being produced in courts, in respect of different cases. In fact petitioner received money from <ORG>, Tohana (Kacchi Union) of which he was a member, to meet the expenses of the travel (to meet his son) on 25.10.2000, 25.11.2000, 21.12.2000, 13.1.2001, 16.1.2001, 23.1.2001, 9.10.2001, 10.10.2001, 11.10.2001, 15.10.2001, 25.10.2001, 7.11.2001, 17.11.2001 and 20.11.2001. Further, the jail records showed that <NAME> was met by petitioner's wife on 26.8.1999, petitioner's brother <NAME> on 17.11.1999, 18.11.1999 and 1.3.2002, petitioner's uncle <NAME> on 20.11.1999, and petitioner's brother-in-law <NAME> on 5.3.2002.

10. There was thus reasonable cause for the <ORG> to think that the family members of <NAME> might know about his whereabouts. The repeated questioning of the family members of <NAME> in the year 1998 and 2001, either at their houses or by calling them to the <ORG> Station/Post was part of investigation process and cannot, per se, be considered as harassment or violation of Article 21. Whether the police exceeded their limits in questioning the petitioner or his relatives is of course a different aspect. The report of the <ORG> shows that there is prima facie evidence about petitioner and some of his relatives being illegally detained in <ORG> Station/Post and subjected possibly to some third degree methods, to extract information regarding the whereabouts of <NAME> Singh. At the same time, the report makes it clear that neither the illegal detention nor the alleged torture (if true) was of an extent, alleged by the petitioner and his relatives. The claims were clearly exaggerated and many a time false also. It is quite probable that the allegations against <ORG> were levelled and/or exaggerated to avoid enquiries by the <ORG> in regard to <NAME>.

11. This leads us to the question whether, in addition to directing <ORG> inquiry and prosecution of the officers concerned, on the facts and circumstances of this case, compensation should be awarded to petitioner and his family members, as a public law remedy for the violation of their fundamental rights under Article 21 of the Constitution.

Compensation as a public law remedy :

12. Though illegal detention and custodial torture were recognized as violations of the fundamental rights of life and liberty guaranteed under Article 21 , to begin with, only the following reliefs were being granted in writ petitions under Article 32 or 226 :

a) direction to set at liberty the person detained, if the complaint was one of illegal detention.

b) direction to the concerned <ORG> to hold an inquiry and take action against the officers responsible for the violation.

c) If the enquiry or action taken by the concerned department was found to be not satisfactory, to direct an inquiry by an independent agency, usually <ORG>.

Award of compensation as a public law remedy for violation of the fundamental rights enshrined in Article 21 of the Constitution, in addition to the private law remedy under the Law of Torts, was evolved in the last two and half decades.

13. In the Bhagalpur Blinding case, [<NAME> (II) vs State of Bihar  1981 (1) SCC 627], <NAME>, (as he then was), speaking for the Bench, posed the following question while considering the relief that could be given by a court for violation of constitutional rights guaranteed in Article 21 of the Constitution :-

"... but if life or personal liberty is violated otherwise than in accordance with such procedure, is the Court helpless to grant relief to the person who has suffered such deprivation? Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty."

The question was expanded in a subsequent order in Bhagalpur Blinding case [<NAME> (IV) vs State of Bihar  1981 (2) SCC

493), thus :-

"If an officer of the <ORG> acting in his official capacity threatens to deprive a person of his life or personal liberty without the authority of law, can such person not approach the court for injuncting the <ORG> from acting through such officer in violation of his fundamental right under Article 21 ? Can the <ORG> urge in defence in such a case that it is not infringing the fundamental right of the petitioner under Article 21 , because the officer who is threatening to do so is acting outside the law and therefore beyond the scope of his authority and hence the <ORG> is not responsible for his action ? Would this not make a mockery of Article 21 and reduce it to nullity, a mere rope of sand, for, on this view, if the officer is acting according to law there would ex concessionis be no breach of Article 21 and if he is acting without the authority of law, the <ORG> would be able to contend that it is not responsible for his action and therefore there is no violation of Article 21. So also if there is any threatened invasion by the <ORG> of the fundamental right guaranteed under Article 21 , the petitioner who is aggrieved can move the court under Article 32 for a writ injuncting such threatened invasion and if there is any continuing action of the <ORG> which is violative of the fundamental right under Article 21 , the petitioner can approach the court under Article 32and ask for a writ striking down the continuance of such action, but where the action taken by the <ORG> has already resulted in breach of the fundamental right under Article 21 by deprivation of some limb of the petitioner, would the petitioner have no remedy under Article 32 for breach of the fundamental right guaranteed to him ? Would the court permit itself to become helpless spectator of the violation of the fundamental right of the petitioner by the <ORG> and tell the petitioner that though the Constitution has guaranteed the fundamental right to him and has also given him the fundamental right of moving the court for enforcement of his fundamental right, the court cannot give him any relief."

Answering the said questions, it was held that when a court trying the writ petition proceeds to inquire into the violation of any right to life or personal liberty, while in police custody, it does so, not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the <ORG> is liable to pay compensation to them for such violation. This <ORG> clarified that the nature and object of the inquiry is altogether different from that in a criminal case and any decision arrived at in the writ petition on this issue cannot have any relevance much less any binding effect, in any criminal proceeding which may be taken against a particular police officer. This <ORG> further clarified that in a given case, if the investigation is still proceeding, the <ORG> may even defer the inquiry before it until the investigation is completed or if the <ORG> considered it necessary in the interests of Justice, it may postpone its inquiry until after the prosecution was terminated, but that is a matter entirely for the exercise of the discretion of the <ORG> and there is no bar precluding the <ORG> from proceeding with the inquiry before it, even if the investigation or prosecution is pending.

14. <CITATION> [1983 (4) SCC 141], the petitioner therein approached this Court under Article 32 of the Constitution alleging that though he was acquitted by <ORG> on 3.6.1968, he was released from jail only on 6.10.1982, after 14 years, and sought compensation for his illegal detention. This Court while recognizing 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, raised for consideration the important question as to whether in the exercise of its jurisdiction under Article 32 , this Court can pass an order for payment of money, as compensation for the deprivation of a fundamental right. This Court answered the question thus while awarding compensation:-

" 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 violators 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 <ORG> 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 <ORG> must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers."

<NAME> was followed in <CITATION> [1985 (4) SCC 677] and <ORG>CITATION> [1989 (4) SCC 730].

15. The law was crystallized in <CITATION> [1993 (2) SCC 746]. In that case, the deceased was arrested by the police, handcuffed and kept in a police custody. The next day, his dead-body was found on a railway track. This Court awarded compensation to the mother of the deceased. <NAME>, (as he then was) spelt out the following principles :-

"Award of compensation in a proceeding under Article 32 by this <ORG> or by the High <ORG> under Article 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.

Enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention.

A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. 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 <ORG> 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."

[Emphasis supplied] Dr. A.S. Anand J., (as he then was) in his concurring judgment elaborated the principle thus :-

"... Convicts, prisoners or under-trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental rights by such persons. It is an obligation of the <ORG> to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody.

The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by <ORG> or under Article 226 by <ORG>, for established infringement of the indefeasible right guaranteed under Article 21 is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting 'compensation' in proceedings under Article 32 or 226 seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the <ORG> which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law. "

16. <CITATION> (1997 (1) SCC

416), this Court again considered exhaustively the question and held that monetary compensation should be awarded for established infringement of fundamental rights guaranteed under Article 21. This Court held :-

"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. 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.

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 <ORG> 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 anarchy. No civilized 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. ... The answer, indeed, has to be an emphatic 'No'.

Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but it must be remembered that the law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true sense purposeful to make the investigation effective. By torturing a person and using third degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No society can permit it."

17. It is thus now well settled that award of compensation against the <ORG> is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21 , by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under section 357 of Code of Civil Procedure.

18. This takes us to the next question as to whether compensation should be awarded under Article 32 /226 , for every violation of Article 21 where illegal detention or custodial violence is alleged.

Whether compensation should be awarded for every violation of Article 21

19. <CITATION> [1987 (1) SCC 395], a Constitution Bench of this Court while considering the question whether compensation can be awarded in a petition under Article 32 , observed thus :-

"We must, therefore, hold that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32. The power of the court to grant such remedial relief may include the power to award compensation in appropriate cases. We are deliberately using the words "in appropriate cases" because we must make it clear that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the court in a petition under Article 32. The infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue act in the civil courts. Ordinarily, of course, a petition under Article 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of civil court. It is only in exceptional cases of the nature indicated by us above, that compensation may be awarded in a petition under Article 32. ....

If we make a fact analysis of the cases where compensation has been awarded by this Court, we will find that in all the cases, the fact of infringement was patent and incontrovertible, the violation was gross and its magnitude was such as to shock the conscience of the court and it would have been gravely unjust to the person whose fundamental right was violated, to require him to go to the civil court for claiming compensation."

(emphasis supplied) In Nilabati Behera (supra), this <ORG> put in a word of caution thus:-

"Of course, relief in exercise of the power under Article 32 or 226 would be granted only (when) it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, is possible. ....Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the courts have to act firmly but with certain amount of circumspection and self-restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law."

(emphasis supplied) In D. K. Basu (supra), this Court repeatedly stressed that compensation can be awarded only for redressal of an established violation of Article 21. This Court also drew attention to the following aspect :

"There is one other aspect also which needs our consideration. We are conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals. Many hard core criminals like extremists, the terrorists, drug peddlers, smugglers who have organized, gangs, have taken strong roots in the society. It is being said in certain quarters that with more and more liberalization and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation, it is felt in those quarters that if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may go scot-free without exposing any element or iota of criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot, however, be worst than the disease itself."

[Emphasis supplied] <CITATION> [2003 (7) SCC 749] and <CITATION> . [2005 (9) SCC 631], this Court warned against non-genuine claims:

"But at the same time there seems to be a disturbing trend of increase in cases where false accusations of custodial torture are made, trying to take advantage of the serious concern shown and the stern attitude reflected by the courts while dealing with custodial violence. It needs to be carefully examined whether the allegations of custodial violence are genuine or are sham attempts to gain undeserved benefit masquerading as victims of custodial violence."

<CITATION> [1995 (3) SCC 757], this Court refused compensation where the petitioner had exaggerated the incident and had indulged in falsehood. This Court held :

"Since, from the report of the <ORG> and our own independent appraisal of the evidence recorded by the <ORG>. we have come to the conclusion that <NAME> and <NAME> had been illegally detained by respondents 3 to 5 from the afternoon of 15.1.94 to 17.1.94, the <ORG> must be held responsible for the unlawful acts of its officers and it must repair the damage done to the citizens by its officers for violating their indivisible fundamental right of personal liberty without any authority of law in an absolutely high-handed manner. We would have been, therefore, inclined to direct the <ORG> Government of Haryana to compensate <NAME> and <NAME> but since <NAME> has indulged in false-hood in this Court and <NAME>, has also exaggerated the incident by stating that on 15.1.94 when he was way laid along with <NAME> and <NAME>, Advocate, two employees of respondents 6 and 7 were also present with the police party, which version has not been found to be correct by the <ORG>, they both have disentitled themselves from receiving any compensation, as monetary amends for the wrong done by respondents 3 to 5, in detaining them. We, therefore do not direct the payment of any compensation to them."

[Emphasis supplied]

20. Cases where violation of Article 21 involving custodial death or torture is established or is incontrovertible stand on a different footing when compared to cases where such violation is doubtful or not established. Where there is no independent evidence of custodial torture and where there is neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of human right violation, by persons having criminal records in a routine manner for awarding compensation. That may open the floodgates for false claims, either to mulct money from the <ORG> or as to prevent or thwart further investigation. Courts should, therefore, while jealously protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable <ORG> to discharge their duties fearlessly and effectively. While custodial torture is not infrequent, it should be borne in mind that every arrest and detention does not lead to custodial torture.

21. In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the <ORG> will have to pose to itself the following questions : (a) Whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death or whether custodial torture is supported by medical report or visible marks or scars or disability. Where there is no evidence of custodial torture of a person except his own statement, and where such allegation is not supported by any medical report or other corroboration evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, courts may not award compensation as a public law remedy under Article 32 or 226, but relegate the aggrieved party to the traditional remedies by way of appropriate civil/criminal action.

22. We should not, however, be understood as holding that harassment and custodial violence is not serious or worthy of consideration, where there is no medical report or visible marks or independent evidence. We are conscious of the fact that harassment or custodial violence cannot always be supported by a medical report or independent evidence or proved by marks or scars. Every illegal detention irrespective of its duration, and every custodial violence, irrespective of its degree or magnitude, is outright condemnable and per se actionable. Remedy for such violation is available in civil law and criminal law. The public law remedy is additionally available where the conditions mentioned in the earlier para are satisfied. We may also note that this Court has softened the degree of proof required in criminal prosecution relating to such matters. <CITATION> - 1995 (4) SCC 262, reiterated in <NAME> and <NAME> (supra),this Court observed :-

"Rerely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available...... 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.......... 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....., 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 <ORG> 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."

Improving the present situation

23. Unfortunately, police in the country have given room for an impression in the minds of public, that whenever there is a crime, investigation usually means rounding up all persons concerned (say all servants in the event of a theft in the employer's house, or all acquaintances of the deceased, in the event of a murder) and subjecting them to third-degree interrogation in the hope that someone will spill the beans. This impression may not be correct, but instances are not wanting where police have resorted to such a practice. Lack of training in scientific investigative methods, lack of modern equipment, lack of adequate personnel, and lack of a mindset respecting human rights, are generally the reasons for such illegal action. One other main reason is that the public (and men in power) expect results from police in too short a span of time, forgetting that methodical and scientific investigation is a time consuming and lengthy process. Police are branded as inefficient even when there is a short delay in catching the culprits in serious crimes. The expectation of quick results in high-profile or heinous crimes builds enormous pressure on the police to somehow 'catch' the 'offender'. The need to have quick results tempts them to resort to third degree methods. They also tend to arrest "someone" in a hurry on the basis of incomplete investigation, just to ease the pressure. Time has come for an attitudinal change not only in the minds of the police, but also on the part of the public. Difficulties in criminal investigation and the time required for such investigation should be recognized, and police should be allowed to function methodically without interferences or unnecessary pressures. If police are to perform better, the public should support them, government should strengthen and equip them, and men in power should not interfere or belittle them. The three wings of the Government should encourage, insist and ensure thorough scientific investigation under proper legal procedures, followed by prompt and efficient prosecution. Be that as it may.

24. Custodial violence requires to be tackled from two ends, that is, by taking measures that are remedial and preventive. Award of compensation is one of the remedial measures after the event. Effort should be made to remove the very causes, which lead to custodial violence, so as to prevent such occurances. Following steps, if taken, may prove to be effective preventive measures:

a) Police training should be re-oriented, to bring in a change in the mindset and attitude of the Police personnel in regard to investigations, so that they will recognize and respect human rights, and adopt thorough and scientific investigation methods.

b) The functioning of lower level Police Officers should be continuously monitored and supervised by their superiors to prevent custodial violence and adherence to lawful standard methods of investigation.

c) Compliance with the eleven requirements enumerated in D.K. Basu (supra) should be ensured in all cases of arrest and detention.

d) Simple and fool-proof procedures should be introduced for prompt registration of first information reports relating to all crimes.

e) Computerization, video-recording, and modern methods of records maintenance should be introduced to avoid manipulations, insertions, substitutions and ante-dating in regard to FIRs, Mahazars, inquest proceedings, Port-mortem Reports and Statements of witnesses etc. and to bring in transparency in action.

f) An independent investigating agency (preferably the respective <ORG> or <ORG>) may be entrusted with adequate power, to investigate complaints of custodial violence against Police personnel and take stern and speedy action followed by prosecution, wherever necessary.

The endeavour should be to achieve a balanced level of functioning, where police respect human rights, adhere to law, and take confidence building measures (CBMs), and at the same time, firmly deal with organized crime, terrorism, white-collared crime, deteriorating law and order situation etc. CONCLUSION :

25. In this case, there is no clear or incontrovertible evidence about custodial torture, nor any medical report of any injury or disability. The grievance of the petitioner and his relatives is against different officers in different Police Stations at different points of time. More importantly, several of the allegations are proved to be exaggerated and false. We, therefore, do not consider this to be a fit case for award of compensation. All reliefs which should be granted in such a case, have already been granted by ordering an inquiry by the <ORG> and ensuring that the Police Officers named are prosecuted. The law will have to take own course.

26. This order will not come in the way of any civil court awarding compensation in an action in tort or the criminal court awarding compensation under section 357 CPC in the pending prosecution against any of the officers, if the charges are established. With the said observations, we dispose of this petition, as no further reliefs/directions are called for.

27. We record our appreciation for the effort put in by <NAME>, Amicus Curiae, in presenting the matter.