Sushrita Saren & Ors vs The State Of West Bengal & Ors on 22 April, 2025

[Cites 70, Cited by 0]

Calcutta High Court (Appellete Side)

Sushrita Saren & Ors vs The State Of West Bengal & Ors on 22 April, 2025

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 12 assured 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.

    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 16 may 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 17 fool 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 18 settle 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 20 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 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.

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.

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 25 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 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 26 the justice-delivery system suspect and vulnerable. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach at times of the courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock-up because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a 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, 27 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."

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 28 simplification 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 29 consistent 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, 30 if we may say so with respect, exhibited a total lack of sensitivity and a "could not care less"

attitude in appreciating the evidence on the record and thereby condoning the barbarous third degree methods which are still being used at some police stations, despite being illegal. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact-situations and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system a suspect. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilised society, governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in 'Khaki' to consider 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 34 countersigned by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or 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 35 arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the 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.' "

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 40 relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit."

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 43 be 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 45 cognizable 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."

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 47 police 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 50 every 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 51 provisions 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 53 Code. 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 54 Section 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:

"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 56 worthwhile 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 57 torture and abuse by the police and other law- enforcing officers is a matter of deep concern in a free society.

Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the 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 58 doors 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 61 amount of circumspection and self-restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law."

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.

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 68 may 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.

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.

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:

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 75 commission 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".

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 77 that 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 80 human 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.

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 83 can 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 84 even 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.

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 to refer 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 89 under 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 92 excess 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, 94 for 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.

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.)

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