Calcutta High Court (Appellete Side)
Sushrita Saren & Ors vs The State Of West Bengal & Ors on 22 April, 2025
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
Item No.8
22.04.2025
ct.no.35
(Suman) WPA 5591 of 2025
Sushrita Saren & Ors.
Versus
The State of West Bengal & Ors.
Mr. Jayanta Narayan Chatterjee, Sr. Adv.
Mr. Sirshendu Sinha Roy
Mr. Kartik Kumar Roy
Mr. Debashis Banerjee
Mr. Supreem Naskar
Ms. Jayashree Patra
Ms. Pritha Sinha
Mr. Rakesh Jana
... For the Petitioners.
Mr. Kishore Datta, ld. AG
Mr. Swapan Banerjee, ld. AGP
Ms. Sumita Shaw
Mr. Soumen Chatterjee
... For the State-Respondent(s)
The petitioners approached this Court being
aggrieved by the inaction of the Police Authorities,
including the Superior Police Officers of the
District of Paschim Medinipur, to that effect
Petitioner No. 1 sent an e-mail dated 06.03.2024
but the same was not responded, as such she
along with others approached this Court. It was
alleged that on 3rd March, 2025, in course of
peaceful protest being carried out, the officers of
All Women Police Station, Medinipur, along with
other Police Personnel, illegally arrested the
2
petitioner, along with others, and they were
subjected to brutal physical and mental torture.
Petitioner No. 1 is the informant, who is Post
Graduate in Santhali, having passed out from
Vidyasagar University in the year 2018, she
qualified in NET Examination in the year 2020
and SET Examination in the year 2023. She also
qualified in her B.Ed Examination in the year
2021.
Petitioner Barnali Nayak passed out from
Aliah University in the year 2024, she is Post
Graduate in Mathematics, presently pursuing her
B.Ed course from Bankim Behari Teachers
Training Institute.
Petitioner Ranusree Bej, passed out from
Vidyasagar University in the year 2017, being Post
Graduate in Bengali, and she subsequently
completed her B.Ed course in the year 2020 from
Jhargram Sebyatan College.
Petitioner Tanusree Bej, is Post Graduate,
from Vidyasagar University in English, and passed
out in the year 2014.
All the four petitioners are members of All
India Democratic Students’ Organization, (AIDSO).
Petitioners approached this Court as they
claim that their Fundamental Rights as well as
3
statutory rights were deliberately violated by the
police authorities within and outside the police
station. It has been further claimed that they were
illegally detained and were subjected to inhuman
torture, within the police station, and after the
same was brought to the notice of the superior
officers, instead of taking steps against the erring
officers, they were shielded. In order to elaborate
on the background of the incidents complained of,
it has been pleaded that on March 1, 2025, there
was a public announcement and press release on
behalf of AIDSO that the organization would call
for a student’s strike at the Colleges and
Universities throughout West Bengal on March 3,
2025. As such the petitioners and four others who
were members of AIDSO arrived at the Gate No. 1
of Vidyasagar University at Rangamati,
Midnapore, for participating in a peaceful
demonstration and rally in protest against the
incidents of torture and assault of students at
Jadavpur University on March 1, 2025.
It has been further stated that as soon as
the petitioners arrived at Gate No. 1 of Vidyasagar
University on March 3, 2025, at around 10.15
A.M., they were confronted by a group of sixty (60)
Police Personnel, including lady police
4
personnel and other Police officers who were
already present there. The police
officers’/personnel, without any provocation and
without affording any opportunity to the
petitioners, came down heavily upon the
petitioners and started assaulting them with
lathis, fists, blows and boots. As a result of such
severe assault, the petitioners suffered grave
injuries and the petitioner No. 3, namely
Ranushree Bej, became unconscious. The
petitioners and other four protesters were then
forced into two separate prison vans, which
headed towards the Kotwali police station and as
the petitioner Ranushree Bej was still lying
unconscious inside the prison van, the petitioners
begged the escorting officers for medical facility,
but no police personnel were ready to pay heed to
such requests. The petitioners were taken to the
All Women Police Station near Patnabazar area in
Midnapore, where they reached at around 11.00
A.M.
Mr. Jayanta Narayan Chatterjee, learned
advocate appearing for the Petitioners, submitted
that the lady police officer, whom the petitioners
had seen at the gate of Vidyasagar University and
was involved in the assault, appeared before the
5
petitioners in the room where they were kept,
which did not have any CCTV camera, and
identified herself as the Officer-in-Charge of the
said police station. It was alleged that the said
officer, along with other four lady police officers in
a group, started beating and assaulting the
petitioners mercilessly, hurling abusive and filthy
language, and even the Officer-in-Charge took out
her belt and used it as a whip to beat the
petitioners. Such brutal and merciless act of
atrocity went on continuously for about 20
minutes. It has been further alleged that while
they were being mercilessly assaulted, the Officer-
in-Charge asked her sub-ordinates to tune on
certain Hindi songs so that she could enjoy the
assault being inflicted upon the petitioners.
Thereafter, petitioner No. 2, 3 and 4 were taken to
the Lock-up and petitioner No. 1 was alone kept
inside the room. Two police officers were asked by
the Officer-in-Charge to stand on the leg of
petitioner No. 1 when the Officer-in-Charge
mercilessly assaulted her with a cane. When the
petitioner No. 1 was crying with pain, she was
asked her name and address however she was
unable to utter any word due to such pain and
trauma, when the petitioner No. 2, Tanushree Bej
6
was called from the Lock-up to the same room
and was asked to write the name and address of
the petitioner No. 1 on a piece of paper. When
Tanushree Bej was writing the name, the Officer-
in-Charge assaulted her with a cane on her
knuckles and abused her in filthy language. There
are other accusations against the police officers
made by the petitioner No. 1 including the factum
of hot melted wax from a burning candle being
poured on her hand for which she sustained
severe burn injuries. Petitioner No. 1 was finally
shifted to the Lock-up of the police station.
Petitioner No. 2, Tanushree Bej was kept in a
room. When she was also mercilessly assaulted,
she became senseless and when she regained her
senses, she found herself in the room of the
Officer-in-Charge. Petitioner No. 2 alleged that she
was also taken to a room from the Lock-up, pulled
by her hair in such a manner that she could not
touch her feet to the ground. She was assaulted
by the Officer-in-Charge on her knees with her
boots which resulted in bleeding injuries.
Petitioner No. 2 further alleged that in course of
such assault when blood dropped on the floor, she
was forced to drink the water soaked with her
blood. Petitioner No. 3, Ranushree Bej who
7
already became senseless in the morning when
she was assaulted near Vidyasagar University,
was also subjected to ruthless torture. She was
asked to assault petitioner No 2 and when she
refused, hot melted wax from a burning candle
was also poured on her hands, especially at her
fingers. All the four petitioners were thereafter
shifted to the lock-up and at around 1.00 P.M.,
they were supplied two packets of biscuits. About
2.00 P.M., they were provided with food in an
unhygienic manner.
In the afternoon hours, a member of the
organization came to the police station, wherein
the petitioners one after the other were taken out
of the Lock-up and at that stage, they were unable
to walk properly, because of the torture being
inflicted on them, when they were reprimanded by
the officer in charge, for deliberately not walking
properly, and trying to create a dramatic
situation, without any reason. However, when
petitioner No.1 entered the room of the officer in
charge, her wearing apparels were found to be
torn, when the officer in charge assured that she
would be handed over with a separate clothing,
and the same was in order to please the visitor.
The petitioners were never informed why they
8
were detained and tortured mercilessly, without
any FIR being lodged against them. However, to
this there were no answers from the police
authorities present at the police station.
Surprisingly, at night the petitioners were taken to
a separate bathroom within the police station, and
were forced to take bath, and the same
petitioners believe was for diluting the physical
injuries inflicted upon them. As no medical
assistance was rendered at the police station, the
petitioners suffered immense pain even when they
were in the Lock-up, and at the relevant point of
time also Sucharita Das of another organization
was sent in the Lock-up. At around 12.00 AM at
midnight, petitioners were again taken in a room,
where they were asked to sign on paper with a
prayer for apology, confessing their guilt, and were
threatened that in case they do not sign the same,
they may be implicated in a case where there
would be charges for which they could be detained
for years together. Petitioners having refused the
same, were sent to the Lock-up, and were
threatened that the members of their family would
be harmed, and their professional or academic
careers would be spoiled because of their actions.
Suddenly, at 2.00 A.M. in the night on March 4,
9
2025, the petitioners were made to wake up, and
were taken to the room of the officer in charge,
where they were asked to sign on printed forms,
which the petitioners signed under fear and
compulsion, and at the middle of the night, they
were asked to leave the police station. The
petitioners asked the officer in charge at that hour
of the night how they will reach their home, it was
bluntly replied that the same is never the concern
of a police station. Fortunately, the petitioners
made it, as one of the senior party member was
waiting outside the police station, and as such,
the petitioners were accompanied by such senior
party member.
On March 4, 2025, the petitioners were
informed by the senior party member that they
had to attend Kotwali Police Station at Midnapore
at 10 AM. Before recovering from the trauma and
agony, all the petitioners reached Kotwali Police
Station at 10 AM, and were there till 1 PM.
However, they were not attended by any police
officer at the said police station. Petitioners
intended to complain in respect of their horrific
experience at the All Women Police Station, which
included the assault inflicted upon them, the
abuse, and the manner in which they were
10
treated. However, the police authority refused to
accept the complaint. Petitioners then went to
Midnapore Medical College and Hospital for
treatment. Learned advocate drew the attention of
the Court to the documents enclosed in the writ
petition, which in the clinical notes referred to
physical assault of the petitioner and the advice of
the doctor to the medicines prescribed. It was
alleged that, in spite of narrating the incident of
police torture, the attending doctor refused to use
the word ‘Police Officer’ in the history of physical
assault. Learned Advocate drew the attention of
the Court to the documents of Medical College &
Hospital Kolkata for treatment, where the
petitioners went for better treatment on 5th
March, 2025, wherein also the medical officer
refused to write the term ‘Police Officer’ in the
history of the details narrated by the petitioners.
The learned advocate drew the attention of the
Court to the two separate reports where the
doctors not only refused to use the term ‘Police
Officer’ in their report but also being aware did
not reflect the physical injuries of the petitioners
in a proper manner as there is a difference of the
physical injuries which have been written by the
doctor of Medical College and Hospital Kolkata
11
with that of Midnapore Medical College &
Hospital. Learned Advocate submitted that in the
incident complaint by Petitioner No. 1, it has been
alleged that she was humiliated, scorned,
ridiculed as she belonged to a tribal community
and was also subjected to abuses relating to her
caste and tribe within the precincts of the police
station. Petitioners therefore prayed that stern
action be taken against the police officers who
were involved in violation of the Fundamental
Rights of the petitioners.
In order to fortify his argument Learned
Advocate relied upon Prem Chand (Paniwala) –
versus- Union of India and Others reported in
(1981) 1 SCC 639. The attention of the Court was
drawn to paragraphs 1, 5 (relevant part) and 10
which are as follows:
“1.Who will police the police? Is freedom of
movement unreasonably fettered if policemen
are given power of externment for public peace?
These twin problems of disturbing import,
thrown up by this bizarre case, deserve serious
examination. The former is as important as the
latter, especially when we view it in the strange
police setting painted by the petitioner. The
constitutional question, which we will state
presently and discuss briefly, has become
largely otiose so far as the present petitioner is
concerned because counsel for the State has
12assured the Court that they will drop police
surveillance or any action by way of
externment as proposed earlier. The police
methodology, with sinister potential to human
liberty described by the petitioner, if true,
deserves strong disapproval and constitutional
counteraction by this Court. But before
committing ourselves to any course, we must
set out the factual matrix from which the
present case springs.
5. …………..The version of the petitioner is
that once he yielded to the pressure of the
police to give false testimony disclosing a
rubberised conscience and un-veracious
readiness to forswear himself, there was
escalation of demands upon him and he
became a regular pedlar of perjury “on police
service”. Indeed, counsel for the petitioner
argued that his client was a “stock witness”
because he had to keep the police in good
humour and obliged them with tailored
testimony in around 3000 cases because the
alternative was police wrath. We were
flabbergasted at this bizarre confession but to
lend credence to his assertion counsel produced
a few hundred summonses where the petitioner
was cited as a witness. Were he not
omnipresent how could he testify in so many
cases save by a versatile genius for loyal
unveracity? For sure, the consternation of the
community at this flood of perjury will shake its
faith in the veracity of police investigation and
the validity of the judicial verdict. We have no
doubt that the petitioner, who has given
13
particulars of a large number of cases where he
had been cited as witness, is speaking the
truth even assuming that 3000 cases may be
an exaggeration. In justice, Justices and
justicing and likewise in the police and policing,
the peril to the judicial process is best left to
imagination if professional perjurers like the
self-confessed Paniwala are kept captive by the
police, to be pressed into service for proving
“cases”. Courts, trusting the police may act on
apparently veracious testimony and sentence
people into prison. The community, satisfied
with such convictions, may well believe that all
is well with law and order. We condemn, in the
strongest terms, the systematic pollution of the
judicial process and the consequent threat to
human rights of innocent persons. We hope that
the higher authorities in the Department who,
apparently, are not aware of the nefarious
goings-on at the lesser levels will immediately
take measures to stamp out this unscrupulous
menace.
10. ………To keep an eye on their
activities, without close shadowing and
surveillance may, perhaps, lead to criminal
discoveries, if they are not too influential for the
police. By this judgment what we mean is not
to tell the police to fold up their hands and
remain inactive when anti-social elements
suddenly grow in wealth but to be activist and
intelligent enough to track down those who hold
the nation’s health, wealth, peace and security
in jeopardy. The only insistence is that the
means must also be as good as the ends.
14
Reference was made to Whirlpool Corporation. -Versus- Registrar of Trade
Marks, Mumbai and others reported in (1998) 8
SCC 1 for emphasising regarding the powers of
the Court under Article 226 of the Constitution of
India and reliance was placed on paragraphs 14
and 15 which are follows:
“14. The power to issue prerogative
writs under Article 226 of the Constitution is
plenary in nature and is not limited by any
other provision of the Constitution. This
power can be exercised by the High Court not
only for issuing writs in the nature of habeas
corpus, mandamus, prohibition, quo
warranto and certiorari for the enforcement
of any of the Fundamental Rights contained
in Part III of the Constitution but also for “any
other purpose”.
15. Under Article 226 of the
Constitution, the High Court, having regard to
the facts of the case, has a discretion to
entertain or not to entertain a writ petition.
But the High Court has imposed upon itself
certain restrictions one of which is that if an
effective and efficacious remedy is available,
the High Court would not normally exercise
its jurisdiction. But the alternative remedy
has been consistently held by this Court not
to operate as a bar in at least three
contingencies, namely, where the writ
petition has been filed for the enforcement of
any of the Fundamental Rights or where
15
there has been a violation of the principle of
natural justice or where the order or
proceedings are wholly without jurisdiction
or the vires of an Act is challenged. There is a
plethora of case-law on this point but to cut
down this circle of forensic whirlpool, we
would rely on some old decisions of the
evolutionary era of the constitutional law as
they still hold the field.”
Petitioners drew the attention of the Court to
Harbanslal Sahnia & Anr. v. Indian Oil Corpn.
Ltd & Ors. reported in (2003) 2 SCC 107.
Attention was drawn to paragraph 7 for reiterating
that inspite of alternative remedy available, the
powers under Article 226 of the Constitution of
India can be invoked, the relevant part of the
paragraph referred by the petitioners are as
follows:
“7. So far as the view taken by the High
Court that the remedy by way of recourse to
arbitration clause was available to the
appellants and therefore the writ petition
filed by the appellants was liable to be
dismissed is concerned, suffice it to observe
that the rule of exclusion of writ jurisdiction
by availability of an alternative remedy is a
rule of discretion and not one of compulsion.
In an appropriate case, in spite of availability
of the alternative remedy, the High Court
16may still exercise its writ jurisdiction in at
least three contingencies: (i) where the writ
petition seeks enforcement of any of the
fundamental rights; (ii) where there is failure
of principles of natural justice; or (iii) where
the orders or proceedings are wholly without
jurisdiction or the vires of an Act is
challenged. (See Whirlpool
Corpn. v. Registrar of Trade Marks [(1998) 8
SCC 1]) The present case attracts
applicability of the first two contingencies.
Moreover, as noted, the petitioners’
dealership, which is their bread and butter,
came to be terminated for an irrelevant and
non-existent cause. In such circumstances,
we feel that the appellants should have been
allowed relief by the High Court itself instead
of driving them to the need of initiating
arbitration proceedings.”
Reference was made to the judgment of the
Hon’ble Supreme Court in Munshi Singh
Gautam (Dead) and Orthers v. State of M.P.,
reported in (2005) 9 SCC 631 and attention of the
Court was drawn to paragraphs 1 to 8,
emphasising the issue relating to custodial
violence, torture and abuse of police which is
quoted below for convenience:
“1 If you once forfeit the confidence of
our fellow citizens you can never regain their
respect and esteem. It is true that you can
17fool all the people some of the time, and some
of the people all the time, but you cannot fool
all the people all the time”, said Abraham
Lincoln. This Court in Raghbir Singh v. State
of Haryana [(1980) 3 SCC 70 : 1980 SCC
(Cri) 526 : AIR 1980 SC 1087] and Shakila
Abdul Gafar Khan v. Vasant Raghunath
Dhoble [(2003) 7 SCC 749 : 2003 SCC (Cri)
1918] took note of these immortal
observations while deprecating custodial
torture by the police.
2. Custodial violence, torture and abuse
of police power are not peculiar to this
country, but it is widespread. It has been the
concern of the international community
because the problem is universal and the
challenge is almost global. The Universal
Declaration of Human Rights in 1948 which
marked the emergence of a worldwide trend
of protection and guarantee of certain basic
human rights stipulates in Article 5 that “No
one shall be subjected to torture or to cruel,
inhuman or degrading treatment or
punishment.” Despite this pious declaration,
the crime continues unabated, though every
civilised nation shows its concern and makes
efforts for its eradication.
3. If it is assuming alarming
proportions, nowadays, all around it is
merely on account of the devilish devices
adopted by those at the helm of affairs who
proclaim from rooftops to be the defenders of
democracy and protectors of people’s rights
and yet do not hesitate to condescend behind
the screen to let loose their men in uniform to
18settle personal scores, feigning ignorance of
what happens and pretending to be peace-
loving puritans and saviours of citizens’
rights.
4. Article 21 which is one of the
luminary provisions in the Constitution and
is a part of the scheme for fundamental
rights occupies a place of pride in the
Constitution. The article mandates that no
person shall be deprived of his life and
personal liberty except according to the
procedure established by law. This sacred
and cherished right i.e. personal liberty has
an important role to play in the life of every
citizen. Life or personal liberty includes a
right to live with human dignity. There is an
inbuilt guarantee against torture or assault
by the State or its functionaries. Chapter V of
the Code of Criminal Procedure, 1973 (for
short “the Code”) deals with the powers of
arrest of persons and the safeguards
required to be followed by the police to
protect the interest of the arrested person.
Articles 20(3) and 22 of the Constitution
further manifest the constitutional protection
extended to every citizen and the guarantees
held out for making life meaningful and not a
mere animal existence. It is, therefore,
difficult to comprehend how torture and
custodial violence can be permitted to defy
the rights flowing from the Constitution. The
dehumanising torture, assault and death in
custody which have assumed alarming
proportions raise serious questions about the
credibility of the rule of law and
19
administration of the criminal justice system.
The community rightly gets disturbed. The
cry for justice becomes louder and warrants
immediate remedial measures. This Court
has in a large number of cases expressed
concern at the atrocities perpetrated by the
protectors of law. Justice Brandeis’s
observation which has become classic is in
the following immortal words:
Government as the omnipotent and
omnipresent teacher teaches the whole
people by its example, if the Government
becomes a lawbreaker, it breeds contempt for
law, it invites every man to become a law
unto himself. (In US p. 485, quoted in at p.
659.)
5. The diabolic recurrence of police
torture results in a terrible scare in the minds
of common citizens that their lives and liberty
are under a new and unwarranted peril
because the guardians of the law destroy the
human rights by custodial violence and
torture invariably resulting in death. The
vulnerability of human rights assumes a
traumatic torture when functionaries of the
State, whose paramount duty is to protect
the citizens and not to commit gruesome
offences against them, in reality perpetrate
them. The concern which was shown
in Raghbir Singh case [(1980) 3 SCC 70 :
1980 SCC (Cri) 526 : AIR 1980 SC 1087]
more than two decades back seems to have
fallen on deaf ears and the situation does not
seem to be showing any noticeable change.
The anguish expressed in Gauri Shanker
20Sharma v. State of U.P. [1990 Supp SCC 656
: 1991 SCC (Cri) 67 : AIR 1990 SC 709]
, Bhagwan Singh v. State of Punjab [(1992) 3
SCC 249 : 1992 SCC (Cri) 629]
, NilabatiBehera v. State of Orissa [(1993) 2
SCC 746 : 1993 SCC (Cri) 527 : AIR 1993 SC
1960] , Pratul Kumar Sinha v. State of
Bihar [1994 Supp (3) SCC 100 : 1994 SCC
(Cri) 1666] , KewalPati v. State of U.P. [(1995)
3 SCC 600 : 1995 SCC (Cri) 556] , Inder
Singh v. State of Punjab [(1995) 3 SCC 702 :
1995 SCC (Cri) 586 : 1995 SCC (L&S) 857 :
(1995) 30 ATC 122] , State of
M.P. v. Shyamsunder Trivedi [(1995) 4 SCC
262 : 1995 SCC (Cri) 715] and by now
celebrated decision in D.K. Basu v. State of
W.B. [(1997) 1 SCC 416 : 1997 SCC (Cri) 92 :
JT (1997) 1 SC 1] seems not even to have
caused any softening of attitude in the
inhuman approach in dealing with persons in
custody.
6. 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 — and the present case
is an apt illustration — as to how one after
the other police witnesses feigned ignorance
about the whole matter.
21
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 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 in the torture. The
courts must not lose sight of the fact that
death in police custody is perhaps one of the
worst kinds of crime 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 a law
22
unto themselves. Unless stern measures are
taken to check the malady of the very fence
eating the crop, the foundations of the
criminal justice-delivery system would be
shaken and civilisation 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 the judiciary itself, which if it
happens, will be a sad day, for anyone to
reckon with.
8. Though Sections 330 and 331 of the
Penal Code, 1860 (for short “IPC“) make
punishable those persons who cause hurt for
the purpose of extorting a 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 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
23
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
dehumanising aspect of the crime, the
flagrant violation of the fundamental rights of
the victim of the crime and the growing rise in
crimes of this type, where only a few come to
light and others do not, the Government and
the legislature must give serious thought to
the recommendation of the Law Commission
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, 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
the guilty should not escape so that the
victim of the crime has the satisfaction, and
that ultimately the majesty of law has
prevailed.
24
In order to emphasise on the issue relating to
custodial torture and violence, additionally
reference was made to paragraphs 13.5, 13.6 and
13.7 of the Dalbir Singh – versus State of Uttar
Pradesh and others reported in (2009) 11 SCC
376 which held:
“13……..
5. The diabolic recurrence of police
torture resulting in a terrible scare in the
minds of common citizens that their lives and
liberty are under a new and unwarranted
peril because the guardians of law destroy
the human rights by custodial violence and
torture, invariably resulting in death. The
vulnerability of human rights assumes a
traumatic torture when functionaries of the
State whose paramount duty is to protect the
citizens and not to commit gruesome offences
against them, in reality perpetrate them. The
concern which was shown in Raghbir Singh
case [Raghbir Singh v. State of Haryana,
(1980) 3 SCC 70 : 1980 SCC (Cri) 526] more
than two decades back seems to have fallen
on deaf ears and the situation does not seem
to be showing any noticeable change. The
anguish expressed in Gauri Shanker
Sharma v. State of U.P. [1990 Supp SCC 656
: 1991 SCC (Cri) 67 : AIR 1990 SC 709]
, Bhagwan Singh v. State of Punjab [(1992) 3
SCC 249 : 1992 SCC (Cri) 629]
, NilabatiBehera v. State of Orissa [(1993) 2
SCC 746 : 1993 SCC (Cri) 527 : AIR 1993 SC
1960] , Pratul Kumar Sinha v. State of
25Bihar [1994 Supp (3) SCC 100 : 1994 SCC
(Cri) 1666] , KewalPati v. State of U.P. [(1995)
3 SCC 600 : 1995 SCC (Cri) 556] , Inder
Singh v. State of Punjab [(1995) 3 SCC 702 :
1995 SCC (Cri) 586 : 1995 SCC (L&S) 857 :
(1995) 30 ATC 122] , State of
M.P. v. Shyamsunder Trivedi [(1995) 4 SCC
262 : 1995 SCC (Cri) 715] and by now a
celebrated decision in D.K. Basu v. State of
W.B. [(1997) 1 SCC 416 : 1997 SCC (Cri) 92 :
JT (1997) 1 SC 1] seems to have caused not
even any softening attitude to the inhuman
approach in dealing with persons in custody.
6. Rarely, in cases of police torture or
custodial death is there [any] 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
26the 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 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 a law unto
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] civilisation itself would risk the
consequence of heading towards total decay
resulting in anarchy and authoritarianism
reminiscent of barbarism. The courts must,
27therefore, 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 the judiciary itself, which if it
happens, will be a sad day for anyone to
reckon with.”
Learned Advocate for the petitioner referred
to paragraphs 16, 17 and 18 of State of M.P.
versus Shyamsunder Trivedi, reported in (1995)
4 SCC 262 to emphasise torture in Police custody
as well as custodial violence, the paragraphs
under reference are as follows:
“16. Indeed, there is no evidence to show
that after Ganniuddin, Respondent 5, who
along with Rajaram, Respondent 4, had
brought the deceased to the police station for
interrogation, had at any time left the police
station on the fateful night. In the face of the
unimpeachable evidence of PW 4 and PW 8, we
fail to understand how the learned Judges of
the High Court could opine that there was
no definite evidence to show the complicity of
Ram Naresh Shukla, Respondent 3, Rajaram
and Ganniuddin, Respondents 4 and 5
respectively in the crime along with SI Trivedi,
Respondent 1. The observations of the High
Court that the presence and participation of
these respondents in the crime is doubtful are
not borne out from the evidence on the record
and appear to be an unrealistic over
28simplification of the tell-tale circumstances
established by the prosecution. The following
pieces of circumstantial evidence apart from the
other evidence on record, viz., (i) that the
deceased had been brought alive to the police
station and was last seen alive there on 13-10-
1981; (ii) that the dead body of the deceased
was taken out of the police station on 14-10-
1981 at about 2 p.m. for being removed to the
hospital; (iii) that the deceased had died as a
result of the receipt of extensive injuries while
he was at the police station; (iv) that SI Trivedi,
Respondent 1, Ram Naresh Shukla,
Respondent 3, Rajaram, Respondent 4 and
Ganniuddin, Respondent 5 were present at the
police station and had all joined hands to
dispose of the dead body of Nathu Banjara; (v)
that SI Trivedi, Respondent 1 created false
evidence and fabricated false clues in the
shape of documentary evidence with a view to
screen the offence and for that matter, the
offender; (vi) SI Trivedi — respondent in
connivance with some of his subordinates,
respondents herein had taken steps to cremate
the dead body in hot haste describing the
deceased as a ‘lavaris’; (vii) Rajaram and
Ganniuddin — respondents, had brought the
deceased to the police station from his village,
and (viii) that police record did not show that
either Rajaram or Ganniuddin had left the
police station, till the dead body was removed
to the hospital in the jeep, unerringly point
towards the guilt of the accused and the
established circumstances coupled with the
direct evidence of PWs 1, 3, 4, 8 and 18 are
29consistent only with the hypothesis of the guilt
of the respondents and are inconsistent with
their innocence. So far as Respondent 2, Ram
Partap Mishra is concerned, however, no
clinching or satisfactory evidence is available
on the record to establish his presence at the
police station when Nathu deceased was being
subjected to extensive beating or of his
participation in the commission of the crime.
The High Court erroneously overlooked the
ground reality that rarely in cases of police
torture or custodial death, direct ocular
evidence of the complicity of the police
personnel would be available, when it observed
that ‘direct’ evidence about the complicity of
these respondents was not available. Generally
speaking, it would be police officials 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.
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,
30if 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
31
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. 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 Sections 330 and
331 of the Penal Code, 1860 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
32
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. 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
33
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.”
Learned Advocate for the petitioners has
drawn the attention to the celebrated judgment of
the Hon’ble Supreme Court in D.K. Basu -v- State
of W.B., reported in (1997) 1 SCC 416,
paragraphs 35, 36,44,45,46 & 54 has been relied
which are as follows:
“35. 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 either be 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
34countersigned 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 town
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
35arrest 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
State or Union Territory concerned. 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 Illaqa 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 notice
board.
36. Failure to comply with the
requirements hereinabove mentioned shall
apart from rendering the official concerned
liable for departmental action, also render him
liable to be punished for contempt of court and
36
the proceedings for contempt of court may be
instituted in any High Court of the country,
having territorial jurisdiction over the matter.
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 the 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 Article 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 wrongdoer 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
37
rights of the citizens. The courts have the
obligation to satisfy the social aspirations of
the citizens 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 a cumbersome judicial process.
Monetary compensation for redressal by the
court finding the infringement of the
indefeasible right to life of the citizen is,
therefore, useful and at time perhaps the only
effective remedy to apply balm to the wounds
of the family members of the deceased victim,
who may have been the breadwinner of the
family.
46. In NilabatiBehera case [(1993) 2 SCC
746 : 1993 SCC (Cri) 527 : 1993 Cri LJ 2899] ,
it was held : (SCC pp. 767-68, para 32)
“Adverting to the grant of relief to the
heirs of a victim of custodial death for the
infraction or invasion of his rights guaranteed
under Article 21 of the Constitution of India, it
is not always enough to relegate him to the
ordinary remedy of a civil suit to claim
damages for the tortious act of the State as
that remedy in private law indeed is available
to the aggrieved party. The citizen complaining
of the infringement of the indefeasible right
under Article 21 of the Constitution cannot be
told that for the established violation of the
fundamental right to life, he cannot get any
relief under the public law by the courts
38
exercising writ jurisdiction. The primary source
of the public law proceedings stems from the
prerogative writs and the courts have,
therefore, to evolve ‘new tools’ to give relief in
public law by moulding it according to the
situation with a view to preserve and protect
the Rule of Law. While concluding his first
Hamlyn Lecture in 1949 under the title
‘Freedom under the Law’ Lord Denning in his
own style warned:
‘No one can suppose that the executive
will never be guilty of the sins that are
common to all of us. You may be sure that
they will sometimes do things which they
ought not to do : and will not do things that
they ought to do. But if and when wrongs are
thereby suffered by any of us what is the
remedy? Our procedure for securing our
personal freedom is efficient, our procedure for
preventing the abuse of power is not. Just as
the pick and shovel is no longer suitable for
the winning of coal, so also the procedure of
mandamus, certiorari, and actions on the case
are not suitable for the winning of freedom in
the new age. They must be replaced by new
and up-to-date machinery, by declarations,
injunctions and actions for negligence…. This
is not the task of Parliament … the courts
must do this. Of all the great tasks that lie
ahead this is the greatest. Properly exercised
the new powers of the executive lead to the
welfare state; but abused they lead to a
totalitarian state. None such must ever be
allowed in this country.’ ”
39
54. Thus, to sum up, it is now a well-
accepted proposition in most of the
jurisdictions, 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
wrongdoer. In the assessment of
compensation, the emphasis has to be on the
compensatory and not on punitive element.
The objective is to apply balm to the wounds
and not to punish the transgressor or the
offender, as awarding appropriate punishment
for the offence (irrespective of compensation)
must be left to the criminal courts in which the
offender is prosecuted, which the State, in
law, is duty bound to do. The award of
compensation in the public law jurisdiction is
also without prejudice to any other action like
civil suit for 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
40relief 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.”
Reference was also made on behalf of the
petitioner to Lalita Kumari -versus- Government
of Uttar Pradesh and others reported in (2014)
2 SCC 1, reliance was made on paragraph 120,
which is as follows:
“120. In view of the aforesaid discussion, we
hold:
120.1. The registration of FIR is mandatory
under Section 154 of the Code, if the information
discloses commission of a cognizable offence and
no preliminary inquiry is permissible in such a
situation.
120.2. If the information received does not
disclose a cognizable offence but indicates the
necessity for an inquiry, a preliminary inquiry may
be conducted only to ascertain whether cognizable
offence is disclosed or not.
120.3. If the inquiry discloses the commission
of a cognizable offence, the FIR must be registered.
In cases where preliminary inquiry ends in closing
41
the complaint, a copy of the entry of such closure
must be supplied to the first informant forthwith
and not later than one week. It must disclose
reasons in brief for closing the complaint and not
proceeding further.
120.4. The police officer cannot avoid his duty
of registering offence if cognizable offence is
disclosed. Action must be taken against erring
officers who do not register the FIR if information
received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not
to verify the veracity or otherwise of the information
received but only to ascertain whether the
information reveals any cognizable offence.
120.6. As to what type and in which cases
preliminary inquiry is to be conducted will depend
on the facts and circumstances of each case. The
category of cases in which preliminary inquiry may
be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal
delay/laches in initiating criminal prosecution, for
example, over 3 months’ delay in reporting the
matter without satisfactorily explaining the reasons
for delay.
The aforesaid are only illustrations and not
exhaustive of all conditions which may warrant
preliminary inquiry.
120.7 While ensuring and protecting the
rights of the accused and the complainant, a
preliminary inquiry should be made time-bound
42
and in any case it should not exceed fifteen days
generally and in exceptional cases, by giving
adequate reasons, six weeks’ time is provided. The
fact of such delay and the causes of it must be
reflected in the General Diary entry.
120.8. Since the General Diary/Station
Diary/Daily Diary is the record of all information
received in a police station, we direct that all
information relating to cognizable offences, whether
resulting in registration of FIR or leading to an
inquiry, must be mandatorily and meticulously
reflected in the said diary and the decision to
conduct a preliminary inquiry must also be
reflected, as mentioned above.
Reference was also made to the judgment in
State of Karnataka -versus- T.N. Sudhakar
Reddy in Criminal Appeal No. (S) 5001 of
2024, and attention of the Court was drawn to
relevant part of paragraphs 15 to 21, which are as
follows:
“15. On the other hand, learned counsel for
the respondent would urge that the Superintendent
of Police acted in gross violation of law while
issuing an order to the Deputy Superintendent of
Police to register an FIR as preliminary inquiry in
‘corruption cases’ is a condition precedent for
registration of the FIR. Further, preliminary inquiry
can only be conducted by a police officer, who is
competent to investigate the offence, and thus, a
source information report, however detailed, cannot
43be taken to be a substitute for a preliminary
inquiry.
16. In addressing this issue, we must first
consider the legal framework established by this
Court in a catena of decisions, particularly in P.
Sirajuddin (supra), LalitaKumari (supra), Thomman
dru Hannah Vijayalakshmi (supra),
and Managipet (supra). This Court in P.
Sirajuddin (supra) has held that before any public
servant is charged with any acts of dishonesty, a
preliminary inquiry ‘must’ be conducted in order to
obviate incalculable harm to the reputation of that
person. The relevant para from P. Sirajuddin is
extracted herein below:–
“17. Before a public servant, whatever be
his status, is publicly charged with acts of
dishonesty which amount to serious
misdemeanour or misconduct of the type
alleged in this case and a first information is
lodged against him, there ‘must’ be some
suitable preliminary inquiry into the
allegations by a responsible officer. The lodging
of such a report against a person, specially one
who like the appellant occupied the top position in
a department, even if baseless, would do
incalculable harm not only to the officer in
particular but to the department he belonged to, in
general…”
17. However, the authoritative pronouncement
of law in respect of registration of the FIR emerges
from the decision of the Constitution Bench
in LalitaKumari (supra) wherein, the issue before
the Court was whether a police officer is obligated
44
to register an FIR upon receiving information
regarding the commission of a cognizable offence
under Section 154 of the CrPC (corresponding
Section 173 of the BharatiyaNagarik Suraksha
Sanhita, 202317) or whether it is essential to
conduct a preliminary inquiry to verify the
information before registration of the FIR. This
Court held that under Section 154 of the CrPC, a
police officer is required to register an FIR when the
information received by him discloses the
commission of a cognizable offence, without
undertaking a preliminary inquiry. However, the
Court was also cognizant of the possible misuse of
the criminal law resulting in the registration of
frivolous FIRs. To address this concern, it outlined
specific ‘exceptions’ to the general rule, which
mandates the immediate registration of FIR upon
receiving information about a cognizable offence.
The Constitution Bench in LalitaKumari (supra)
held:
“119. Therefore, in view of various
counterclaims regarding registration or non-
registration, what is necessary is only that
the information given to the police must
disclose the commission of a cognizable
offence. In such a situation, registration of an
FIR is mandatory. However, if no cognizable
offence is made out in the information given, then
the FIR need not be registered immediately and
perhaps the police can conduct a sort of preliminary
verification or inquiry for the limited purpose of
ascertaining as to whether a cognizable offence
has been committed. But, if the information
given clearly mentions the commission of a
45cognizable offence, there is no other option
but to register an FIR forthwith. Other
considerations are not relevant at the stage of
registration of FIR, such as, whether the
information is falsely given, whether the
information is genuine, whether the information is
credible, etc. These are the issues that have to be
verified during the investigation of the FIR. At the
stage of registration of FIR, what is to be seen
is merely whether the information given ex
facie discloses the commission of a cognizable
offence. If, after investigation, the information
given is found to be false, there is always an option
to prosecute the complainant for filing a false FIR.”
18………..
19………..
20………….
21. Following the rationale of Lalita
Kumari (supra), this Court in Managipet (supra)
held that while the decision in LalitaKumari (supra)
noted that a preliminary inquiry was desirable in
cases of alleged corruption, this does not vest a
right in the accused to demand a preliminary
inquiry. Whether the preliminary inquiry is required
to be conducted or not will depend on the peculiar
facts and circumstances of each case, and it cannot
be said to be a mandatory requirement, in the
absence of which, an FIR cannot be registered
against the accused in corruption-related matters.”
46
Petitioner also relied upon the judgment
Paramvir Singh Saini -v- Baljit Singh, reported
in (2021) 1 SCC 184, reference was made to
paragraphs 6,7,8,16,17 & 18 which read as
follows:
“6. This Court, vide order dated 16-9-2020
[Paramvir Singh Saini v. Baljit Singh, 2020
SCC OnLine SC 999] , impleaded all the States
and Union Territories to find out the exact
position of CCTV cameras qua each police
station as well as the constitution of Oversight
Committees in accordance with the order
dated 3-4-2018 of this Court in Shafhi
Mohammad [Shafhi Mohammad v. State of
H.P., (2018) 5 SCC 311 : (2018) 2 SCC (Cri)
704] .
7. Pursuant to the said directions of this
Court, compliance affidavits and Action-Taken
Reports were filed by 14 States (till 24-11-
2020), namely, West Bengal, Chhattisgarh,
Tamil Nadu, Punjab, Nagaland, Karnataka,
Tripura, Uttar Pradesh, Assam, Sikkim,
Mizoram, Madhya Pradesh, Meghalaya,
Manipur; and 2 Union Territories, namely,
Andaman & Nicobar Islands and Puducherry.
8. The majority of the compliance affidavits
and Action-Taken Reports fail to disclose the
exact position of CCTV cameras qua each
police station. The affidavits are bereft of
details with respect to the total number of
police stations functioning in the respective
State and Union Territory; total number of
CCTV cameras installed in each and every
47police station; the positioning of the CCTV
cameras already installed; working condition
of the CCTV cameras; whether the CCTV
cameras have a recording facility, if yes, then
for how many days/hours, have not been
disclosed. Further, the position qua
constitution of Oversight Committees in
accordance with the order dated 3-4-2018
[Shafhi Mohammad v. State of H.P., (2018) 5
SCC 311 : (2018) 2 SCC (Cri) 704] , and/or
details with respect to the Oversight
Committees already constituted in the
respective States and Union Territories have
also not been disclosed.
16. The State and Union Territory
Governments should ensure that CCTV
cameras are installed in each and every police
station functioning in the respective State
and/or Union Territory. Further, in order to
ensure that no part of a police station is left
uncovered, it is imperative to ensure that
CCTV cameras are installed at all entry and
exit points; main gate of the police station; all
lock-ups; all corridors; lobby/the reception
area; all verandahs/outhouses, Inspector’s
room; Sub-Inspector’s room; areas outside the
lock-up room; station hall; in front of the police
station compound; outside (not inside)
washrooms/toilets; Duty Officer’s room; back
part of the police station, etc.
17. CCTV systems that have to be installed
must be equipped with night vision and must
necessarily consist of audio as well as video
footage. In areas in which there is either no
electricity and/or internet, it shall be the duty
48
of the States/Union Territories to provide the
same as expeditiously as possible using any
mode of providing electricity, including
solar/wind power. The internet systems that
are provided must also be systems which
provide clear image resolutions and audio.
Most important of all is the storage of CCTV
camera footage which can be done in digital
video recorders and/or network video
recorders. CCTV cameras must then be
installed with such recording systems so that
the data that is stored thereon shall be
preserved for a period of 18 months. If the
recording equipment, available in the market
today, does not have the capacity to keep the
recording for 18 months but for a lesser period
of time, it shall be mandatory for all States,
Union Territories and the Central Government
to purchase one which allows storage for the
maximum period possible, and, in any case,
not below 1 year. It is also made clear that
this will be reviewed by all the States so as to
purchase equipment which is able to store the
data for 18 months as soon as it is
commercially available in the market. The
affidavit of compliance to be filed by all States
and Union Territories and Central Government
shall clearly indicate that the best equipment
available as of date has been purchased.
18. Whenever there is information of force
being used at police stations resulting in
serious injury and/or custodial deaths, it is
necessary that persons be free to complain for
a redressal of the same. Such complaints may
not only be made to the State Human Rights
49
Commission, which is then to utilise its
powers, more particularly under Sections 17
and 18 of the Protection of Human Rights Act,
1993, for redressal of such complaints, but
also to Human Rights Courts, which must then
be set up in each district of every State/Union
Territory under Section 30 of the aforesaid Act.
The Commission/Court can then immediately
summon CCTV camera footage in relation to
the incident for its safe keeping, which may
then be made available to an investigating
agency in order to further process the
complaint made to it.”
Learned Advocate for the petitioner lastly
relied upon the judgment of Pradeep
Nirankarnath Sharma -versus- State of
Gujrat & Ors. in SLP CRL No. 3154 of
2024 and referred to paragraphs 12 to 14
which are as follows:
“12. The scope of a preliminary
inquiry, as clarified in the said judgment, is
limited to situations where the information
received does not prima facie disclose a
cognizable offence but requires verification.
However, in cases where the information
clearly discloses a cognizable offence, the
police have no discretion to conduct a
preliminary inquiry before registering an
FIR. The decision in LalitaKumari (supra)
does not create an absolute rule that a
preliminary inquiry must be conducted in
50every case before the registration of an FIR.
Rather, it reaffirms the settled principle that
the police authorities are obligated to
register an FIR when the information
received prima facie discloses a cognizable
offence.
13. In the present case, the allegations
against the appellant pertain to the abuse of
official position and corrupt practices while
holding public office. Such allegations fall
squarely within the category of cognizable
offences, and there exists no legal
requirement for a preliminary inquiry before
the registration of an FIR in such cases. The
appellant’s contention that successive FIRs
have been registered against him with an
ulterior motive is a matter that can be
examined during the course of investigation
and trial. The appellant has adequate
remedies under the law, including the right
to seek quashing of frivolous FIRs under
Section 482 CrPC, the right to apply for bail,
and the right to challenge any illegal actions
of the investigating authorities before the
appropriate forum.
14. Further, this Court cannot issue a
blanket direction restraining the registration of
FIRs against the appellant or mandating a
preliminary inquiry in all future cases
involving him. Such a direction would not only
be contrary to the statutory framework of
the CrPC but would also amount to judicial
overreach. As rightly observed by the High
Court, courts cannot rewrite statutory
51provisions or introduce additional procedural
safeguards that are not contemplated by law.”
Mr. Kishore Dutta, Learned Advocate
General, appeared on behalf of the State and
opposed the contentions advanced on behalf of
the petitioners. Initially, Learned Advocate
General raised three issues on the maintainability
of the writ petition in respect of the prayers
advanced:
(a) Writ petition praying for mandamus for
the purposes of registration of FIR is not
maintainable.
(b) Public law remedy is not available
because of other alternative remedy being
available by way of compensation before a Civil
Court.
(c) In order to invoke the jurisdiction of the
Court in case of police atrocity, the same should
be of such magnitude that it hurts the conscience
of the Court.
Learned Advocate General, in order to fortify
his argument, on the first issue relating to
maintainability with regard to registration of the
FIR, relied upon the judgment of the Hon’ble
Supreme Court in Aleque Padamsee and others
v. Union of India and others reported in (2007)
52
6 SCC 171, attention of the Court was drawn to
the relevant part of paragraphs 1, 6, 7 and 8
which are as follows:
“1. …………….The basic grievance is that
though commission of offences punishable under
the Penal Code, 1860 (in short “IPC“) was
disclosed, the police officials did not register the
FIR and, therefore, directions should be given to
register the cases and wherever necessary
accord sanction in terms of Section 196 of the
Code of Criminal Procedure, 1973 (in short “the
Code”). It is stated that the speeches made by
Respondents 5 and 6 were likely to disturb the
communal harmony in the country and the likely
result of such inflammatory speeches was to
create hatred in the minds of citizens against the
persons belonging to minority communities.
6. “4. When the information is laid with the
police but no action in that behalf is taken, the
complainant [can under Section 190 read with
Section 200 of the Code lay] the complaint before
the Magistrate having jurisdiction to take
cognizance of the offence and the Magistrate is
required to enquire into the complaint as
provided in Chapter XV of the Code. In case the
Magistrate after recording evidence finds a prima
facie case, instead of issuing process to the
accused, he is empowered to direct the police
concerned to investigate into the offence under
Chapter XII of the Code and to submit a report. If
he finds that the complaint does not disclose any
offence to take further action, he is empowered
to dismiss the complaint under Section 203 of the
53Code. In case he finds that the
complaint/evidence recorded prima facie
discloses an offence, he is empowered to take
cognizance of the offence and [could] issue
process to the accused.”
These aspects have been highlighted by this
Court in All India Institute of Medical Sciences
Employees’ Union (Regd.) v. Union of
India [(1996) 11 SCC 582 : 1997 SCC (Cri) 303] ,
SCC p. 583, para 4. It was specifically observed
that a writ petition in such cases is not to be
entertained. The above position was again
highlighted
in GangadharJanardanMhatre v. State of
Maharashtra [(2004) 7 SCC 768 : 2005 SCC (Cri)
404] , MinuKumari v. State of Bihar [(2006) 4
SCC 359 : (2006) 2 SCC (Cri) 310] and Hari
Singh v. State of U.P. [(2006) 5 SCC 733 : (2006)
3 SCC (Cri) 63]
7. ……………….. The course available,
when the police does not carry out the statutory
requirements under Section 154 was directly in
issue in All India Institute of Medical Sciences
case [(1996) 11 SCC 582 : 1997 SCC (Cri) 303]
, Gangadhar case [(2004) 7 SCC 768 : 2005 SCC
(Cri) 404] , Hari Singh case [(2006) 5 SCC 733 :
(2006) 3 SCC (Cri) 63] and MinuKumari
case [(2006) 4 SCC 359 : (2006) 2 SCC (Cri) 310]
. The correct position in law, therefore, is that the
police officials ought to register the FIR whenever
facts brought to their notice show that cognizable
offence has been made out. In case the police
officials fail to do so, the modalities to be
adopted are as set out in Section 190 read with
54Section 200 of the Code. It appears that in the
present case initially the case was tagged by
order dated 24-2-2003 with WP (C) No. 530 of
2002 and WP (C) No. 221 of 2002. Subsequently,
these writ petitions were delinked from the
aforesaid writ petitions.
8. The writ petitions are finally disposed of
with the following directions:
(1) If any person is aggrieved by the
inaction of the police officials in registering the
FIR, the modalities contained in Section 190 read
with Section 200 of the Code are to be adopted
and observed.
(2) It is open to any person aggrieved by the
inaction of the police officials to adopt the
remedy in terms of the aforesaid provisions.
(3) So far as non-grant of sanction aspect is
concerned, it is for the Government concerned to
deal with the prayer. The Government concerned
would do well to deal with the matter within
three months from the date of receipt of this
order.
(4) We make it clear that we have not
expressed any opinion on the merits of the case.”
Reference was also made to an order passed
in MAT 1180 of 2023 (The State of West Bengal
and others -versus- Sirajul Islam Gharami and
others) and emphasis was laid on paragraphs 3, 5
and 7 which are as follows:
55
“3. The question would be whether such a
positive direction could have been issued by the
learned writ Court in the absence of any
specific finding that there has been deliberate
failure on the part of the police authorities in
taking on file a complaint reporting a cognizable
offence bearing in mind the decision of the
Hon’ble Supreme Court passed in LalitaKumari
vs. Government of Uttar Pradesh &Ors.
reported in (2014) 2 SCC 1.
5……….Thus, we are of the view that the
first question, which has to be considered
before a writ petition of such nature is
entertained by the learned writ Court is as to
whether a writ of mandamus is maintainable
when a remedy has been provided in the
Criminal Procedure Code, more particularly,
under Section 156(3) of the Code.
7. In our prima facie view, by way of
affidavits, it would be very difficult for a writ
Court to come to a definite conclusion that a
positive direction needs to be issued under
Article 226 of the Constitution of India for
registration of an FIR. Of course, we are
conscious of the fact that there are exceptional
circumstances wherein it has been held that the
remedy under Article 226 of the Constitution of
India is not fully barred. Nevertheless the Court
is required to pose a question to the writ
petitioner at the first instance as to why the
writ petitioner has bypassed the remedy
available under Section 156(3) of the Criminal
Procedure Code, 1973 and resorted to filing a
writ petition under Article 226 of the
Constitution of India. In this regard it is also
56worthwhile to point out that the procedure,
which has been contemplated in Chapter XV of
the Criminal Procedure Code, 1973 from
Sections 200 to 203 thereof which provide as to
how the complaints to the Magistrates are to be
dealt with.”
On the issue relating to public law remedy
being not applicable because of alternative remedy
being available before the Civil Court, reliance was
placed on Sube Singh -versus- State of Haryana
and others reported in (2003) 3 SCC 178.
Reference was made to paragraphs 37 to 47
which reads as follows:
“37. In D.K. Basu v. State of W.B. [(1997)
1 SCC 416 : 1997 SCC (Cri) 92] 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
57torture 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 Government become lawbreakers, 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 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? … 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
58doors what the demands of our legal order
forbid. No society can permit it.”
This extract is taken from Sube Singh v.
State of Haryana, (2006) 3 SCC 178 : (2006) 2
SCC (Cri) 54 : 2006 SCC OnLine SC 160 at
page 198
38. It is thus now well settled that the
award of compensation against the State 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 the
enforcement of the private law remedy in tort,
nor come in the way of the criminal court
ordering compensation under Section 357 of the
Code of Criminal Procedure.
This extract is taken from Sube Singh v.
State of Haryana, (2006) 3 SCC 178 : (2006) 2
SCC (Cri) 54 : 2006 SCC OnLine SC 160 at
page 199
39. This takes us to the next question as
to whether compensation should be awarded
under Articles 32/226 for every violation of
Article 21 where illegal detention or custodial
violence is alleged.
This extract is taken from Sube Singh v.
State of Haryana, (2006) 3 SCC 178 : (2006) 2
SCC (Cri) 54 : 2006 SCC OnLine SC 160 at
page 199
59
Whether compensation should be awarded
for every violation of Article 21
40. In M.C. Mehta v. Union of India [(1987)
1 SCC 395 : 1987 SCC (L&S) 7] a Constitution
Bench of this Court while considering the
question whether compensation can be
awarded in a petition under Article 32,
observed thus: (SCC pp. 408-09, para 7)
“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 action 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
60
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.”
This extract is taken from Sube Singh v.
State of Haryana, (2006) 3 SCC 178 : (2006) 2
SCC (Cri) 54 : 2006 SCC OnLine SC 160 at
page 199
41. In NilabatiBehera [(1993) 2 SCC 746 :
1993 SCC (Cri) 527] this Court put in a word of
caution thus: (SCC p. 769, para 35)
“Of course, relief in exercise of the power
under Article 32 or 226 would be granted only
once 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
61amount of circumspection and self-restraint,
lest proceedings under Article 32 or 226 are
misused as a disguised substitute for civil
action in private law.”
42. In D.K. Basu [(1997) 1 SCC 416 : 1997
SCC (Cri) 92] 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: (SCC p. 434, para 31)
“31. 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 hardcore
criminals like extremists, terrorists, drug
peddlers, smugglers who have organised
gangs, have taken strong roots in the society. It
is being said in certain quarters that with more
and more liberalisation 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
62
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 worse than the disease
itself.”
43. In Shakila Abdul Gafar
Khan v. Vasant Raghunath Dhoble [(2003) 7
SCC 749 : 2003 SCC (Cri) 1918] and Munshi
Singh Gautam v. State of M.P. [(2005) 9 SCC
631 : 2005 SCC (Cri) 1269] this Court warned
against non-genuine claims: (Munshi Singh
Gautam case [(2005) 9 SCC 631 : 2005 SCC
(Cri) 1269] , SCC p. 639, para 9)
“9. 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.”
44. In Dhananjay Sharma v. State of
Haryana [(1995) 3 SCC 757 : 1995 SCC (Cri)
608] this Court refused compensation where the
petitioner had exaggerated the incident and
had indulged in falsehood. This Court held:
(SCC pp. 782-83, para 54)
63“54. Since, from the report of CBI and our
own independent appraisal of the evidence
recorded by CBI, we have come to the
conclusion that Shri Dhananjay Sharma and
Sushil Kumar had been illegally detained by
Respondents 3 to 5 from the afternoon of 15-1-
1994 to 17-1-1994, the State 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
indefeasible 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 State
Government of Haryana to compensate
Dhananjay Sharma and Sushil Kumar but
since Sushil Kumar has indulged in falsehood
in this Court and Shri Dhananjay Sharma has
also exaggerated the incident by stating that on
15-1-1994 when he was waylaid along with
Sushil Kumar and Shri S.C. Puri, 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 CBI, 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.”
45. 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
64
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 rights 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 State or as to prevent or thwart
further investigation. The courts should,
therefore, while zealously 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 the police 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.
This extract is taken from Sube Singh v.
State of Haryana, (2006) 3 SCC 178 : (2006) 2
SCC (Cri) 54 : 2006 SCC OnLine SC 160 at
page 201
46. In cases where custodial death or
custodial torture or other violation of the rights
guaranteed under Article 21 is established, the
courts may award compensation in a
proceeding under Article 32 or 226. However,
before awarding compensation, the Court 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
65
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
corroborative evidence, or where there are clear
indications that the allegations are false or
exaggerated fully or in part, the 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.
47. 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
paragraph are satisfied. We may also note that
this Court has softened the degree of proof
required in criminal prosecution relating to such
matters. In State of M.P. v. Shyamsunder
Trivedi [(1995) 4 SCC 262 : 1995 SCC (Cri) 715]
66
, reiterated in Abdul Gafar Khan [(2003) 7 SCC
749 : 2003 SCC (Cri) 1918] and Munshi Singh
Gautam [(2005) 9 SCC 631 : 2005 SCC (Cri)
1269] , this Court observed: (SCC pp. 272-73,
paras 16-17)
“[R]arely 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
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.”
Additionally reliance was made on Ashoke
Kumar Nath -versus- Union of India and Ors.
67
reported in 2013 SCC OnLine Cal 22919.
Attention of the Court was drawn to paragraphs 8
to 14, 17 and 18 wherein it has been held as
follows:
8. He has relied on D.K. Basu v. State of
West Bengal, (1997) 1 SCC
416, NilabatiBehera v. State of Orissa, (1993) 2
SCC 746 : AIR 1993 SC 1960 and Municipal
Corporation of Delhi, Delhi v. Association,
Victims of Uphaar Tragedy, (2012) 1 WBLR (SC)
321 in support of his submission.
9. On the other hand, learned Counsel
appearing for respondent authorities submitted
that there is no illegality in the impugned order
and petitioner has been given liberty to move
the Civil Court in accordance with law.
10. The issue which falls for decision is
whether in the facts of the case the petitioner is
entitled to seek compensation under public law
from the respondent authorities.
11. Undoubtedly, in a case of blatant and
gross breach of fundamental right to life under
Article 21 of the Constitution of India, the Apex
Court in a series of decisions has granted the
relief of compensation, when no other remedy
was available, to vindicate such breach of
fundamental right of the victim which shocked
the conscience of the Court.
12. The apex Court has succinctly admitted
in paragraph 61 of Municipal Corporation of
Delhi, Delhi v. Association, Victims of Uphaar
Tragedy (supra) that compensation may be
awarded in a fit and proper case although there
68may not be a system or method to quantify the
same. It held as follows:–
“61. Law is well settled that
a Constitutional Court can award
monetary compensation against State and
its officials for its failure to safeguard
fundamental rights of citizens but there is
no system or method to measure the
damages caused in such situations. Quite
often the Courts have a difficult task in
determining damages in various fact
situations. The yardsticks normally
adopted for determining the compensation
payable in a private tort claims are not as
such applicable when a constitutional
Court determines the compensation in
cases where there is violation of
fundamental rights guaranteed to its
citizens. In D.K. Basu v. Union of India,
(1997) 1 SCC 416, a Constitution Bench of
this Court held that there is no strait
jacket formula for computation of
damages and we find that there is no
uniformity or yardstick followed in
awarding damages for violation of
fundamental rights. In Rudal Shah’s
case (supra) this Court used the
terminology Palliative’ for measuring the
damages and The formula of ‘Ad hoc’ was
applied in Sebastian Hongary’s
case (supra) the expression used by this
Court for determining the monetary
compensation was ‘Exemplary’ cost and
the formula adopted was ‘Punitive’.
In Bhim Singh‘s case, the expression used
69
by the Court was ‘Compensation’ and
method adopted was ‘Tortious formula’.
In D.K. Basu v. Union of India (supra) the
expression used by this Court for
determining the compensation was
‘Monetary Compensation’. The formula
adopted was ‘Cost to Cost’ method. Courts
have not, therefore, adopted a uniform
criteria since no statutory formula has
been laid down.”
13. However, in the self-same decision the
Supreme Court rung a note of caution stating
that such relief may be granted only “in
exceptional cases”. In paragraph 63 of the said
report, the apex Court field, as follows:–
“63. Legal liability in damages exist
solely as a remedy out of private law
action in tort which is generally time
consuming and expensive and hence when
fundamental rights are violated claimants
prefer to approach constitutional Courts
for speedy remedy. Constitutional Courts,
of course, shall invoke its jurisdiction only
in extraordinary circumstances when
serious injury has been caused due to
violation of fundamental rights especially
under Article 21 of the Constitution of
India. In such circumstances the Court can
invoke its own methods depending upon
the facts and circumstances of each case.”
14. A Three Bench of the apex Court had
the occasion of dealing with the issue of grant
of compensation as a public law remedy
in Sube Singh v. State of Haryana, (2006) 3
70
SCC 178. In the said report, the apex Court
held that compensation as a public law remedy
should be restricted to gross and patent cases
of violation of Article 21 which shocks the
conscience of the Court. It held as follows:–
“46. 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 Court 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.
71
47…………The public law remedy is
additionally available where the
conditions mentioned in the earlier para
are satisfied.”
17. The case of the petitioner by no stretch
of imagination can be construed to be one in the
realm of a gross and blatant breach of Article
21 of the Constitution resulting from custodial
torture and even ensuing death. Neither is it
similar to genocide of innocent citizens in a
movie hall directly attributable to the culpable
connivance of statutory authorities in permitting
the owners to run the said hall in palpable
breach of safety norms as in Municipal
Corporation of Delhi, Delhi v. Association,
Victims of Uphaar Tragedy (supra). It is not the
petitioner’s case that due to the illegal refusal of
the respondent authorities all other avenues of
livelihood had been obliterated. No factual
foundation had been laid by him that in fact,
during the said period he had no means of
livelihood or that grant of compensation in
public law is the only remedy available to him.
18. It would entail a factual enquiry to
establish a reasonable nexus between
damages, if any, suffered by the petitioner and
the wrongful acts of the respondents prior to
grant of compensation and such enquiry can be
best done by the appropriate civil Court under
ordinary law of the land.
Attention of the Court was further drawn to
Imteaz Ahmed -versus- State of West Bengal
72
and Ors. reported in 2013 SCC OnLine Cal
4415 and reliance was made on the following
paragraphs:
“In the instant case, we find that there is
no serious injuries caused to any person. Police
has admitted that they used rubber bullets and
lathi charge was also there. In paragraph 6, it
has been mentioned that mob became violent
and attacked by hurling bombs on the police
personnel and damaged the vehicles. It cannot
be said with certainty and it is a disputed
question of fact that police has used firearms or
not. In cannot be decided in the writ
application.
We do not find any ground has been made
out to make further enquiry in the instant case.
The enquiry has been made by the police and
F.I.R. has been registered. In case any of the
injured persons are still aggrieved with the
enquiry, it is open to them to file private
complaints before the competent Court for
taking appropriate actions. In case any such
complaint is filed, the Magistrate shall hold
adequate enquiry in accordance with law
without being influenced by any observation
made by us in this order.
In the aforesaid factual matrix of the case
we are not inclined to invoke the extra ordinary
writ jurisdiction to direct further enquiry into the
matter. No compensation be ordered to be paid,
in the peculiar facts of the case, as the disputed
factual matrix cannot be adjudicated in the writ
jurisdiction.
73
It has been laid down by the Apex Court in the
case Sube Singh v. State of Haryana reported
in (2006) 3 SCC 178 that before awarding
compensation, the Court will have to pose to
itself the following questions:
a) whether the violation of Article 21 is
patent and incontroverible;
b) whether the violation is gross and of a
magnitude in shock the conscience of the court;
and
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.
In the instant case, there is no medical
evidence to support the case of the petitioner of
police excess.”
In order to rebut the accusations made in the
information furnished, and the submissions
advanced on behalf of the petition relating to the
applicability of the Scheduled Caste and
Scheduled Tribes Prevention of Atrocities Act,
1989 reference was made to Hitesh Verma v.
State of Uttarkhand and Another, reported in
(2020)10 SCC 710 and emphasis was made on
paragraphs 8, 10,12,13,17 and 24 which are as
follows:
74
8. Against the backdrop of these facts, it is
pertinent to refer to the Statement of Objects
and Reasons of enactment of the Act. It is
provided as under:
“Statement of Objects and Reasons.–
Despite various measures to improve the socio-
economic conditions of the Scheduled Castes
and the Scheduled Tribes, they remain
vulnerable. They are denied number of civil
rights. They are subjected to various offences,
indignities, humiliations and harassment. They
have, in several brutal incidents, been deprived
of their life and property. Serious crimes are
committed against them for various historical,
social and economic reasons.
2. Because of the awareness created
amongst the Scheduled Castes and the
Scheduled Tribes through spread of education,
etc. they are trying to assert their rights and
this is not being taken very kindly by the
others. When they assert their rights and resist
practices of untouchability against them or
demand statutory minimum wages or refuse to
do any bonded and forced labour, the vested
interests try to cow them down and terrorise
them. When the Scheduled Castes and the
Scheduled Tribes try to preserve their self-
respect or honour of their women, they become
irritants for the dominant and the mighty.
Occupation and cultivation of even the
Government allotted land by the Scheduled
Castes and the Scheduled Tribes is resented
and more often these people become victims of
attacks by the vested interests. Of late, there
has been an increase in the disturbing trend of
75commission of certain atrocities like making the
Scheduled Castes persons eat inedible
substances like human excreta and attacks on
and mass killings of helpless Scheduled Castes
and the Scheduled Tribes and rape of women
belonging to the Scheduled Castes and the
Scheduled Tribes. Under the circumstances, the
existing laws like the Protection of Civil Rights
Act, 1955 and the normal provisions of the
Penal Code, 1860 have been found to be
inadequate to check these crimes. A special
legislation to check and deter crimes against
them committed by non-Scheduled Castes and
non-Scheduled Tribes has, therefore, become
necessary.”
10. The Act was enacted to improve the
social economic conditions of the vulnerable
sections of the society as they have been
subjected to various offences such as
indignities, humiliations and harassment. They
have been deprived of life and property as well.
The object of the Act is thus to punish the
violators who inflict indignities, humiliations
and harassment and commit the offence as
defined under Section 3 of the Act. The Act is
thus intended to punish the acts of the upper
caste against the vulnerable section of the
society for the reason that they belong to a
particular community.
12. The basic ingredients of the offence
under Section 3(1)(r) of the Act can be classified
as “(1) intentionally insults or intimidates with
intent to humiliate a member of a Scheduled
Caste or a Scheduled Tribe and (2) in any place
within public view”.
76
13. The offence under Section 3(1)(r) of the
Act would indicate the ingredient of intentional
insult and intimidation with an intent to
humiliate a member of a Scheduled Caste or a
Scheduled Tribe. All insults or intimidations to a
person will not be an offence under the Act
unless such insult or intimidation is on account
of victim belonging to Scheduled Caste or
Scheduled Tribe. The object of the Act is to
improve the socio-economic conditions of the
Scheduled Castes and the Scheduled Tribes as
they are denied number of civil rights. Thus, an
offence under the Act would be made out when
a member of the vulnerable section of the
society is subjected to indignities, humiliations
and harassment. The assertion of title over the
land by either of the parties is not due to either
the indignities, humiliations or harassment.
Every citizen has a right to avail their remedies
in accordance with law. Therefore, if the
appellant or his family members have invoked
jurisdiction of the civil court, or that Respondent
2 has invoked the jurisdiction of the civil court,
then the parties are availing their remedies in
accordance with the procedure established by
law. Such action is not for the reason that
Respondent 2 is a member of Scheduled Caste.
17. In another judgment reported
as Khuman Singh v. State of M.P. [Khuman
Singh v. State of M.P., (2020) 18 SCC 763 :
2019 SCC OnLine SC 1104] , this Court held
that in a case for applicability of Section 3(2)(v)
of the Act, the fact that the deceased belonged
to Scheduled Caste would not be enough to
inflict enhanced punishment. This Court held
77that there was nothing to suggest that the
offence was committed by the appellant only
because the deceased belonged to Scheduled
Caste. The Court held as under:
“15. As held by the Supreme Court, the
offence must be such so as to attract the
offence under Section 3(2)(v) of the Act. The
offence must have been committed against the
person on the ground that such person is a
member of Scheduled Caste and Scheduled
Tribe. In the present case, the fact that the
deceased was belonging to “Khangar”
Scheduled Caste is not disputed. There is no
evidence to show that the offence was
committed only on the ground that the victim
was a member of the Scheduled Caste and
therefore, the conviction of the appellant-
accused under Section 3(2)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act is not sustainable.”
24. In view of the above facts, we find that
the charges against the appellant under Section
3(1)(r) of the Act are not made out.
Consequently, the charge-sheet to that extent is
quashed. The appeal is disposed of in the
above terms.”
Learned Advocate General also drew the
attention of the Court to the pleadings made in
the writ petition and compared the same with the
annexures thereby submitting that the pleadings
in the allegation against the Police Authorities are
on the face of it bereft of any truth to inspire
78
confidence in respect of the allegation which have
been made in the writ petition or in the
information so furnished before the Superior
Police Officer. Yet the Police authority started
acting on the information, for collection of
materials from the concerned police station. It was
further contended that the allegation and or
accusations made in the writ petition are self-
contradictory in nature and the same has been
done for wreaking vengeance because of the
arrests which were on bona fide grounds made by
the police authorities. The medical documents
which are being relied upon by the petitioner
according to the State do not speak of any injury
i.e. of such nature which may not create a factual
foundation for taking steps against the Police
Personnel attached to All Women Police Station,
Midnapore. Further, the medical documents are
belated and as such have no relation with the date
of detention and the date on which the petitioners
had been to the hospital for treatment. By
referring to the medical documents, it was also
submitted that the prescribed medicines are too
general in nature to conclude that the pain may
be because of any atrocity inflicted by the police
authorities. It was further contended that from the
79
afternoon onwards, it is admitted in the writ
petition that a leader of the organization was
constantly present till the release of the
petitioners and as such the question of physical
assault as has been narrated in the petition is in
the form of a design to implicate the police
personnel for eroding their morale. So far as the
query of the Court relating to access to justice of
the petitioners are concerned, the learned
Advocate General relied upon Anita Kushwaha –
v- Pushap Sudhan reported in (2016) 8 SCC
509, attention was drawn to paragraphs
29,30,33,34,35,36,38 and 40 which are as
follows:
“29.To sum up: access to justice is and
has been recognised as a part and parcel of
right to life in India and in all civilised societies
around the globe. The right is so basic and
inalienable that no system of governance can
possibly ignore its significance, leave alone
afford to deny the same to its citizens. The
Magna Carta, the Universal Declaration of
Human Rights, the International Covenant on
Civil and Political Rights, 1966, the ancient
Roman jurisprudential maxim ubi jus
ibiremedium, the development of fundamental
principles of common law by judicial
pronouncements of the courts over centuries
past have all contributed to the acceptance of
access to justice as a basic and inalienable
80human right which all civilised societies and
systems recognise and enforce.
30. This Court has by a long line of
decisions given an expansive meaning and
interpretation to the word “life” appearing in
Article 21 of the Constitution.
30.1. In Maneka Gandhi v. Union of
India [Maneka Gandhi v. Union of India, (1978)
1 SCC 248] , this Court declared that the right
to life does not mean mere animal existence
alone but includes every aspect that makes life
meaningful and liveable.
30.2. In Sunil Batra v. Delhi Admn. [Sunil
Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979
SCC (Cri) 155] the right against solitary
confinement and prison torture and custodial
death was declared to be a part of right to life.
30.3. In Charles Sobraj v. Supt., Central
Jail [Charles Sobraj v. Supt., Central Jail,
(1978) 4 SCC 104 : 1978 SCC (Cri) 542] the
right against bar fetters was declared to be a
right protected under Article 21 of the
Constitution.
30.4. In Khatri (2) v. State of Bihar [Khatri
(2) v. State of Bihar, (1981) 1 SCC 627 : 1981
SCC (Cri) 228] , the right to free legal aid was
held to be a right covered under Article 21 of
the Constitution.
30.5. In Prem Shankar Shukla v. Delhi
Admn. [Prem Shankar Shukla v. Delhi Admn.,
(1980) 3 SCC 526 : 1980 SCC (Cri) 815] the
right against handcuffing was declared to be a
right under Article 21.
81
30.6. So also in RudulSah v. State of
Bihar [RudulSah v. State of Bihar, (1983) 4 SCC
141 : 1983 SCC (Cri) 798] the right to
compensation for illegal and unlawful detention
was considered to be a right to life under Article
21 and also under Article 14.
30.7. In Sheela Barse v. Union of
India [Sheela Barse v. Union of India, (1988) 4
SCC 226] , this Court declared speedy trial to
be an essential right under Article 21.
30.8. In ParmanandKatara v. Union of
India [ParmanandKatara v. Union of India,
(1989) 4 SCC 286 : 1989 SCC (Cri) 721] , right
to emergency, medical aid was declared to be
protected under Article 21 of the Constitution.
30.9. In Chameli Singh v. State of
U.P. [Chameli Singh v. State of U.P., (1996) 2
SCC 549] and Shantistar Builders v. Narayan
KhimalalTotame [Shantistar
Builders v. Narayan KhimalalTotame, (1990) 1
SCC 520] , right to shelter, clothing, decent
environment and a decent accommodation was
also held to be a part of life.
30.10. In M.C. Mehta v. Kamal Nath [M.C.
Mehta v. Kamal Nath, (1997) 1 SCC 388], right
to clean environment was held to be a right to
life under Article 21.
30.11. In Lata Singh v. State of U.P. [Lata
Singh v. State of U.P., (2006) 5 SCC 475 :
(2006) 2 SCC (Cri) 478] , right to marriage was
held to be a part of right to life under Article 21
of the Constitution.
30.12. In Suchita
Srivastava v. Chandigarh Admn. [Suchita
82
Srivastava v. Chandigarh Admn., (2009) 9 SCC
1 : (2009) 3 SCC (Civ) 570] , right to make
reproductive choices was declared as right to
life.
30.13. While in Sukhwant Singh v. State
of Punjab [Sukhwant Singh v. State of Punjab,
(2009) 7 SCC 559 : (2009) 3 SCC (Cri) 487] right
to reputation was declared to be a facet of right
to life guaranteed under Article 21. In a recent
Constitution Bench judgment of this Court
in Subramanian Swamy v. Union of
India [Subramanian Swamy v. Union of India,
(2016) 7 SCC 221 : (2016) 3 SCC (Cri) 1] , this
Court held reputation to be an inherent and
inseparable component of Article 21.
33. Four main facets that, in our opinion,
constitute the essence of access to justice are:
(i) the State must provide an effective
adjudicatory mechanism;
(ii) the mechanism so provided must be
reasonably accessible in terms of distance;
(iii) the process of adjudication must be
speedy; and
(iv) the litigant’s access to the adjudicatory
process must be affordable.
(i) The need for adjudicatory
mechanism
34. One of the most fundamental
requirements for providing to the citizens access
to justice is to set up an adjudicatory
mechanism whether described as a court,
tribunal, commission or authority or called by
any other name whatsoever, where a citizen
83can agitate his grievance and seek adjudication
of what he may perceive as a breach of his
right by another citizen or by the State or any
one of its instrumentalities. In order that the
right of a citizen to access justice is protected,
the mechanism so provided must not only be
effective but must also be just, fair and
objective in its approach. So also the procedure
which the court, tribunal or authority may
adopt for adjudication, must, in itself be just
and fair and in keeping with the well-
recognised principles of natural justice.
(ii) The mechanism must be conveniently accessible in terms of distance
35 The forum/mechanism so provided
must, having regard to the hierarchy of
courts/tribunals, be reasonably accessible in
terms of distance for access to justice since so
much depends upon the ability of the litigant to
place his/her grievance effectively before the
court/tribunal/court/competent authority to
grant such a relief. (See D.K. Basu v. State of
W.B. [D.K. Basu v. State of W.B., (2015) 8 SCC
744 : (2015) 3 SCC (Cri) 824] )
(iii) The process of adjudication must
be speedy
36. “Access to justice” as a constitutional
value will be a mere illusion if justice is not
speedy. Justice delayed, it is famously said, is
justice denied. If the process of administration
of justice is so time-consuming, laborious,
indolent and frustrating for those who seek
justice that it dissuades or deters them from
84even considering resort to that process as an
option, it would tantamount to denial of not only
access to justice but justice itself. In Sheela
Barse case [Sheela Barse v. Union of India,
(1988) 4 SCC 226] this Court declared speedy
trial as a facet of right to life, for if the trial of a
citizen goes on endlessly his right to life itself is
violated. There is jurisprudentially no
qualitative difference between denial of speedy
trial in a criminal case, on the one hand, and
civil suit, appeal or other proceedings, on the
other, for ought we to know that civil disputes
can at times have an equally, if not more,
severe impact on a citizen’s life or the quality of
it. Access to justice would, therefore, be a
constitutional value of any significance and
utility only if the delivery of justice to the citizen
is speedy, for otherwise, the right to access to
justice is no more than a hollow slogan of no
use or inspiration for the citizen.
38. Access to justice will again be no more
than an illusion if the adjudicatory mechanism
provided is so expensive as to deter a disputant
from taking resort to the same. Article 39-A of
the Constitution promotes a laudable objective
of providing legal aid to needy litigants and
obliges the State to make access to justice
affordable for the less fortunate sections of the
society.
40. Affordability of access to justice has
been, to an extent, taken care of by the State-
sponsored legal aid programmes under the
Legal Services Authorities Act, 1987. Legal aid
programmes have been providing the much
85
needed support to the poorer sections of the
society in accessing justice in courts.
By referring to the aforesaid paragraphs, the
Advocate General emphasized that since
alternative remedy is available, access to justice is
not only available by invoking the jurisdiction of
the High Court under Article 226 of the
Constitution of India but also other forums are
available to the petitioners. Learned Advocate
General also submitted a report prepared by the
Deputy Superintendent of Police, Paschim
Midnapore which includes the Memo of Arrest of
the four petitioners, the bail bonds and the
personal release bonds, so furnished. The General
Diary Entry No 44,56,62,76 dated 03.03.2025 and
81 dated 04.03.2025 were also enclosed along
with the report.
The reports submitted, also included the
Hazat register as also the register maintained at
the time of release. Another report was submitted
in respect of the summary of the CCTV footage,
and it was stated that the petitioner No. 1 was out
of the CCTV coverage for only 1 hour 26 minutes,
petitioner No. 2 was out of the CCTV coverage for
only 20 minutes. Similarly, the other two
petitioners were majority of the period not out of
86
the CCTV coverage, as such according to the
learned Advocate General, the narration of facts or
the allegations made in the pleadings and the
documents enclosed in the writ petition are an
embellished set of facts, which cannot be relied
upon to invoke the jurisdiction of this Court,
under Article 226 of the Constitution of India.
Mr. Chatterjee, Learned Advocate appearing
for the petitioner, has distinguished the
judgments relied upon by the Learned Advocate
General. In respect of Hitesh Verma (supra), it
was submitted that the said case was for inaction
of the police authority in respect of land dispute,
thus the factual aspect being completely different,
the same do not have applicability in the present
case. Similarly the judgement of Sube Singh
(supra) has no applicability according to the
petitioner, as the same related to the issue of
awarding compensation, which is completely
different from the stage of the present case. So far
as the judgments relied upon by the state i.e.
Ashoke Kumar Nath (supra) and Sirajul Islam
Gharami and Ors. (supra) it was submitted that
the ratio led down therein have no semblance to
the facts of the present case.
87
Learned Advocate for the petitioners
emphasised that none of the judgments relied
upon by the State do portray a circumstance
wherein student activists were arrested, brutally
and mercilessly assaulted by the Police Personnel
on a mere belief that there is a design to commit
cognizable offence.
I have considered the submissions advanced
on behalf of the petitioners as well as that on
behalf of the State. Learned Advocate General has
emphasized on Sube Singh (supra), in the said
case State has only referred to the public law
remedies available for compensation, however in
the said judgment itself in paragraph 16 it is
reflected that the Hon’ble Supreme Court by its
order dated 16.09.2002 directed the State
Government to take appropriate action on the
report of CBI, consequently Garhi Police Station
F.I.R. No. 152 dated 17.10.2002 was registered
under Sections 323, 342, 343, 365 and 384 of the
Indian Penal Code.
In this case what is seen from the records
are the medical documents which have been
enclosed both of Midnapore Medical College and
Hospital as well as Medical College and Hospital
Kolkata. The petitioners were arrested under
88
Section 170 BNSS and the GDE No 56 dated
03.03.2025 reflects that at the time of arrest the
petitioners were offered medical examination but
they declined the same and inspection of the
‘Memo of Arrest’ as produced before this Court
reflects that the Arresting Officer had other things
in mind as the petitioners were arrested under
Section 170 of BNSS and in the ‘Memo of Arrest’
under Serial No.(8)and Serial No.(9) it should not
have been written as follows:
(8) Forum/Court where to be produced:
Learned SDEM, Sadar, Paschim Midnapore
(9)Date of time of production in the Court:
On 04.03.2025 at 10.00 hours
Under such situation it would be apposite torefer to Section 170 BNSS:
Arrest to prevent commission of cognizable
offences:
(1) A police officer knowing of a design to
commit any cognizable offence may arrest, without
orders from a Judicial Magistrate and without a
warrant, the person so designing, if it appears to
such officer that the commission of the offence
cannot be otherwise prevented.
(2) No person arrested under sub-section (I)
shall be detained in custody for a period exceeding
twenty-four hours from the time of his arrest unless
his further detention is required or authorised
89under any other provisions of this Sanhita or of any
other law for the time being in force.
Chapter XII of BNSS which refers to
‘Preventive Action of Police’ nowhere refers to
production of an arrestee rather sub-section (2) of
Section 170 of BNSS is specific that the person
arrested should not be detained beyond 24 hours
until and unless the person is accused for other
provisions under the Sanhita or any other law.
It was argued on behalf of the State that the
Police Authorities had the right to detain even one
minute lesser than 24 hours but the Police
Authorities released the petitioners at about 2.00
A.M. in the night which is much prior to the 24
hours deadline referred to in the statute.
The reference to the Memo of Arrest is in
respect of AWPS MDP GDE No. 56 dated
03.03.2025. In the contents of the said GDE No.
56 (supra) it has been recorded that the
petitioners were informed as soon as bail bond is
furnished they would be released. Thus the GDE
No. 56 (Supra) was prepared prior to the Memo of
Arrest. Surprisingly the Memo of Arrest was
received as a relation/friend/witness by one
Sirsendu Bikash Sasmal. It is reflected that the
same Sirsendu Bikash Sasmal furnished the bail
90
bond which was as per GDE No. 81 dated
04.03.2025 at 1.25 hours. A comparison of GDE
No. 56 dated 03.03.2025 and GDE No 81 dated
04.03.2025 renders the contents of the police
authorities ridiculous as the petitioners could
have been released in the morning itself if the
contents of GDE No. 56 dated 03.03.2025 is
presumed to be correct. The documents therefore
furnished before this Court under the covering of
a report prepared by Deputy Superintendent of
Police (Administration), Paschim Midnapore
hardly inspires any confidence of this Court.
The next argument of the State relating to the
medical documents, the time period after which
the same was done and an alleged design
prepared to implicate the Police Officers by way of
pleadings in the writ petition by way of
falsification of facts and exaggeration are simply
to satisfy their grudge and wreaking vengeance.
This argument on behalf of the State can be
considered at a subsequent stage of the
proceedings may be after registration of FIR or at
the stage of consideration of charges or during
trial of a criminal case and not at this stage when
this Court lacks confidence on the records
furnished by the Police Authorities and the
91
medical documents enclosed to the writ petition
are in close proximity of time in respect of the
incidents complained of.
The maxim ‘Falsus in uno, falsus in omnibus’
has no application in India, as it is the duty of the
Court to separate the grain from the chaff, thus,
even if there are some exaggerations in cases of
custodial torture the Court should not be a mere
spectator and rise to the occasion to see that
human dignity is restored.
In Somnath-vs- State of Maharashtra and
Others (2024) SCC 1 SC 338 the Hon’ble
Supreme Court lamented in paragraph 24 and
observed:
“24. It is sad that even today, this Court is
forced to restate the principles and directions in D
K Basu (supra). Before D K Basu (supra), this Court
had expressed its concern as to how best to
safeguard the dignity of the individual and balance
the same with interests of the State or investigative
agency in Prem Shankar Shukla v. Delhi
Administration, (1980) 3 SCC 526. In Bhim Singh,
MLA v. State of Jammu and Kashmir, (1985) 4 SCC
677, this Court noted that police officers are to
exhibit greatest regard for personal liberty of
citizens and restated the sentiment in Sunil
Gupta v. State of Madhya Pradesh, (1990) 3 SCC
119. The scenario in Delhi Judicial Service
Association v. State of Gujarat, (1991) 4 SCC
406 prompted this Court to come down heavily on
92excess use of force by the police. As such, there will
be a general direction to the police forces in all
States and Union Territories as also all agencies
endowed with the power of arrest and custody to
scrupulously adhere to all Constitutional and
statutory safeguards and the additional guidelines
laid down by this Court when a person is arrested
by them and/or remanded to their custody.”
In light of the observations made above I am
of the opinion that the present is not a case where
the Court can be a mute spectator, as this Court
is of the opinion that the petitioners have been
able to satisfy the Court that their case falls
within the exception spelt out in Whirlpool
Corporation (supra) i.e. for enforcement of the
Fundamental Rights.
The records reflect substantial time has been
consumed since 12.03.2024 when the hearing of
the writ petition commenced and as such at this
belated stage it would be futile to direct an inquiry
to be conducted, consequently I direct that a
Special Investigating Team (SIT) be constituted
with the Mr. Muralidhar Sharma, IGP Training,
Swami Vivekananda State Police Academy, as its
Chief. He would be entitled to have a team of
Officers of his choice, of any rank and file. The SIT
would register an FIR and proceed with the
investigation of the case. At this stage it would be
93
pertinent to refer to Paramvir Singh Saini
(supra) wherein reference has been made to
Section 30 of The Protection of Human Rights Act
1993. The following provision of The Protection of
Human Rights Act 1993 is relevant which is
quoted below Section 2d of the said Act defines:
“human rights means the rights relating to
life, liberty, equality and dignity of the individual
guaranteed by the Constitution or embodied in
the international Convenants and enforceable by
courts in India.”
Human Rights Courts are referred in Section
30 of the Human Rights Act 1993 –
“30. Human Rights Courts. –For the
purpose of providing speedy trial of offences
arising out of violation of human rights, the State
Government may, with the concurrence of the
Chief Justice of the High Court, by notification,
specify for each district a Court of Session to be
a Human Rights Court to try the said offences:
Provided that nothing in this section shall
apply if —
(a) a Court of Session is already specified
as a special Court; or
(b) a special Court is already constituted,
94for such offences under any other law for
the time being in force.”
The SIT will file its FIR under the relevant
provisions of BNS, 2023 or any Special Act (as it
deems fit and proper) and report as such to the
Sessions Judge, Paschim Midnapore which is the
Human Rights Court within the meaning of
Human Rights Act 1993. The Sessions Judge’s
Court will act as an original Court as it has been
notified by the State of West Bengal in the year
2011. Thus all the powers which are to be
exercised by the Magistrate are to be exercised by
the Sessions Court for the purposes of day to day
proceedings that is remand, issuance of process,
acceptance of charge-sheet/complaint, cognizance
of the offence and also the trial of the proceedings
including any permission/order required by the
SIT in aid of the investigation.
The logistic support to the SIT would be
provided by the Home Secretary, Government of
West Bengal.
There are other issues in the writ petition,
except the aforesaid issue, as such State would
file their affidavit-in-opposition within six weeks,
affidavit-in-reply, if any, be filed within two weeks
thereafter.
95
List the writ petition under the heading
‘hearing’ in the monthly list of July, 2025.
All parties shall act on the server copy of this
order duly downloaded from the official website of
this Court.
Urgent Photostat certified copy of this order,
if applied for, be supplied to the parties, subject to
compliance with all requisite formalities.
(Tirthankar Ghosh, J.)
[ad_1]
Source link