MANU/SC/0157/1997

Equivalent Citation: 1997(21)AC R277(SC ), AIR1997SC 610, 1997(1)ALD(C ri)248, 1998(1)BLJR161, 1997C riLJ743, 1996(4)C rimes233(SC ),
(1997)2GLR1631, JT1997(1)SC 1, 1997(1)RC R(C riminal)372, RLW1997(1)SC 94, 1996(9)SC ALE298, (1997)1SC C 416, [1996]Supp10SC R284

IN THE SUPREME COURT OF INDIA

Writ Petition. (Crl) No. 539 of 1986.
Decided On: 18.12.1996
Appellants:D.K. Basu
Vs.
Respondent: State of West Bengal
Hon'ble Judges/Coram:
Kuldip Singh and Dr. A.S. Anand, JJ.
Counsels:
For Appearing Parties: V.R. Reddy, Solicitor General, N.M. Ghatate, Tapas Ray, K.
Amareswari and Abhishek Manu Singhvi, Advs.
Case Note:
Criminal - Conviction - Section 304/34 of Indian Penal Code, 1860 -
Respondents were convicted for offences of culpable homicide and fine was
directed to be paid to heirs of deceased by way-of compensation - Hence,
this Appeal - Whether, conviction of Respondent was justified - Held, claim
of citizen was based on principle of strict liability to which defence of
sovereign immunity was not available - Thus, citizen could receive amount
of compensation from State, which had right to be indemnified by wrong
doer - In assessment of compensation, emphasis had to be on
compensatory and not on punitive element - However, monetary or
pecuniary compensation was appropriate and indeed effective - Sometimes
only suitable remedy for redressal of established infringement of
fundamental right to life of citizen by public servants and State was
vicariously liable for their acts - Thus, said amount of compensation could
be adjusted against amount awarded to claimant by way of damages in civil
suit - Appeal disposed of.
Ratio Decidendi:
"Where right is one guaranteed by State, it is against the State that the
remedy must be sought if there has been a failure to discharge the
constitutional obligation imposed."
ORDER
Dr. A.S. Anand, J.
1 . The Executive Chairman, Legal Aid Services, West Bengal, a non-political
organisation registered under the Societies Registration Act, on 26th August, 1986
addressed a letter to the Chief Justice of India drawing his attention to certain news
items published in the Telegraph dated 20, 21 and 22 of July, 1986 and in the
Statesman and Indian Express dated 17th August, 1986 regarding deaths in police
lock-ups and custody. The Executive Chairman after reproducing the news items
submitted that it was imperative to examine the issue in depth and to develop
"custody jurisprudence" and formulate modalities for awarding compensation to the
victim and/or family members of the victim for atrocities and death caused in police

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custody and to provide for accountability of the officers concerned. It was also stated
in the letter that efforts are often made to hush up the matter of lock-up deaths and
thus the crime goes unpunished and "flourishes". It was requested that the letter
alongwith the news items be treated as a writ petition under "public interest
litigation" category.
2 . Considering the importance of the issue raised in the letter and being concerned
by frequent complaints regarding custodial violence and deaths in police lock up, the
letter was treated as a writ petition and notice was issued on 9.2.1987 to the
respondents.
3 . In response to the notice, the State of West Bengal filed a counter. It was
maintained that the police was not hushing up any matter of lock-up death and that
wherever police personnel were found to the responsible for such death, action was
being initiated against them. The respondents characterised the writ petition as
misconceived, misleading and untenable in law.
4. While the writ petition was under consideration a letter addressed by Shri Ashok
Kumar Johri on 29.7.87 to Hon'ble Chief Justice of India drawing the attention of this
Court to the death of one Mahesh Bihari of Pilkhana, Aligarh in police custody was
received. That letter was also treated as a writ petition and was directed to be listed
alongwith the writ petition filed by Shri D.K. Basu. On 14.8.1987 this Court made the
following order:
In almost every states there are allegations and these allegations are now
increasing in frequency of deaths in custody described generally by
newspapers as lock-up deaths. At present there does not appear to be any
machinery to effectively deal with such allegations. Since this is an all India
question concerning all States, it is desirable to issue notices to all the State
Governments to find out whether they are desire to say anything in the
matter. Let notices issue to all the State Governments. Let notice also issue
to the Law Commission of India with a request that suitable suggestions may
be made in the matter. Notice be made returnable in two months from today.
5 . In response to the notice, affidavits have been filed on behalf of the States of
West Bengal, Orissa, Assam, Himachal Pradesh, Madhya Pradesh, Haryana, Tamil
Nadu, Meghalaya, Maharashtra and Manipur. Affidavits have also been filed on behalf
of Union Territory of Chandigarh and the Law Commission of India.
6 . During the course of hearing of the writ petitions, the Court felt necessity of
having assistance from the Bar and Dr. A.M. Singhvi, senior advocate was requested
to assist the Court as amicus curiae.
7. Learned Counsel appearing for different States and Dr. Singhvi, as a friend of the
court, presented the case ably and though the effort on the part of the States initially
was to show that "everything was well" within their respective States, learned
Counsel for the parties, as was expected of them in view of the importance of the
issue involved, rose above their respective briefs and rendered useful assistance to
this Court in examining various facets of the issue and made certain suggestions for
formulation of guidelines by this Court to minimise, if not prevent, custodial violence
and for award of compensation to the victims of custodial violence and the kith and
kin of those who die in custody on account of torture.
8. The Law Commission of India also in response to the notice issued by this Court
forwarded a copy of the 113th Report regarding "Injuries in police custody and
suggested incorporation of Section 114-B in the Indian Evidence Act."

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9 . The importance of affirmed rights of every human being need no emphasis and,
therefore, to deter breaches thereof becomes a sacred duty of the Court, as the
custodian and protector of the fundamental and the basic human rights of the
citizens. Custodial violence, including torture and death in the lock ups, strikes a
blow at the Rule of Law, which demands that the powers of the executive should not
only be derived from law but also that the same should be limited by law. Custodial
violence is a matter of concern. It is aggravated by the fact that it is committed by
the persons who are supposed to be the protectors of the citizens. It is committed
under the shield of uniform and authority in the four walls of a police station or lock-
up, the victim being totally helpless. The protection of an individual from torture and
abuse by the police and other law enforcing officers is a matter of deep concern in a
free society.
These petitions raise important issues concerning police powers, including whether
monetary compensation should be awarded for established infringement of the
Fundamental Rights guaranteed by Articles 21 and 22 of the Constitution of India.
The issues are fundamental.
1 0 . "Torture" has not been defined in the Constitution or in other penal laws.
'Torture' of a human being by another human being is essentially an instrument to
impose the will of the 'strong' over the 'weak' by suffering. The word torture today
has become synonymous with the darker side of the human civilisation.
Torture is a wound in the soul so painful that sometimes you can almost
touch it, but it is also such intangible that there is no way to heal it. Torture
is anguish squeezing in your chest, cold as ice and heavy as a stone
paralyzing as sleep and dark as the abyss. Torture is despair and fear and
rage and hate. It is a desire to kill and destroy including yourself.
Adriana P. Bartow
11. No violation of any one of the human rights has been the subject of so many
Conventions and Declarations as 'torture'- all aiming at total banning of it in all
forms, but inspite of the commitments made to eliminate torture, the fact remains
that torture is more widespread now than ever before. "Custodial torture" is a naked
violation of human dignity and degradation which destroys, to a very large extent,
the individual personality. It is a calculated assault on human dignity and whenever
human dignity is wounded, civilisation takes a step backward-flag of humanity must
on each such occasion fly half-mast.
12. In all custodial crimes what is of real concern is not only infliction of body pain
but the mental agony which a person undergoes within the four walls of police
station or lock-up. Whether it is a physical assault or rape in police custody, the
extent of trauma, a person experiences is beyond the purview of law.
1 3 . "Custodial violence" and abuse of police power is not only peculiar to this
country but it is widespread. It has been the concern of 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 the pious declaration, the crime continues
unabated, though every civilised nation shows its concern and takes steps for its
eradication.
14. In England, torture was once regarded as a normal practice to get information

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regarding the crime, the accomplices and the case property or to extract confessions,
but with the development of common law and more radical ideas imbibing human
thought and approach, such inhuman practices were initially discouraged and
eventually almost done away with, certain aberrations here and there
notwithstanding. The police powers of arrest, detention and interrogation in England
were examined in depth by Sir Cyril Philips Committee-'Report of a Royal
Commission on Criminal Procedure' (Command-Papers 8092 of 1981). The report of
the Royal Commission is, instructive. In regard to the power of arrest, the Report
recommended that the power to arrest without a warrant must be related to and
limited by the object to be served by the arrest, namely, to prevent the suspect from
destroying evidence or interfering with witnesses or warning accomplices who have
not yet been arrested or where there is a good reason to suspect the repetition of the
offence and not to every case irrespective of the object sought to be achieved.
15. The Royal Commission suggested certain restrictions on the power of arrest on
the basis of the 'necessity principle'. The Royal Commission said:
...we recommend that detention upon arrest for an offence should continue
only on one or more for the following criteria:
(a) the person's unwillingness to identify himself so that a summons
may be served upon him;
(b) the need to prevent the continuation or repetition of that offence;
(c) the need to protect the arrested person himself or other persons
or property;
(d) the need to secure of preserve evidence of or relating to that
offence or to obtain such evidence from the suspect by questioning
him; and
(e) the likelihood of the person failing to appear at court to answer
any charge made against him.
The Royal Commission also suggested:
To help to reduce the use of arrest we would also propose the
introduction here of a scheme that is used in Ontario enabling a
police officer to issue what is called an appearance notice. That
procedure can be used to obtain attendance at the police station
without resorting to arrest provided a power to arrest exists, for
example to be finger printed or to participate in an identification
parade. It could also be extended to attendance for interview at a
time convenient both to the suspect and to the police officer
investigating the case....
16. The power of arrest, interrogation and detention has now been streamlined in
England on the basis of the suggestions made by the Royal Commission and
incorporated in Police and Criminal Evidence Act, 1984 and the incidence of custodial
violence has been minimised there to a very great extent.
17. Fundamental rights occupy a place of pride in the Indian Constitution. Article 21
provides "no person shall be deprived of his life or personal liberty except according
to procedure established by law". Personal liberty, thus, is a sacred and cherished
right under the Constitution. The expression "life or personal liberty" has been held

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to include the right to live with human dignity and thus it would also include within
itself a guarantee against torture and assault by the State or its functionaries. Article
22 guarantees protection against arrest and detention in certain cases and declares
that no person who is arrested shall be detained in custody without being informed of
the grounds of such arrest and he shall not be denied the right to consult and defend
himself by a legal practitioner of his choice. Clause (2) of Article 22 directs that the
person arrested and detained in custody shall be produced before the nearest
Magistrate within a period of 24 hours of such arrest, excluding the time necessary
for the journey from the place of arrest to the court of the Magistrate. Article 20(3) of
the Constitution lays down that a person accused of an offence shall not be
compelled to be a witness against himself. These are some of the constitutional
safeguards provided to a person with a view to protect his personal liberty against
any unjustified assault by the State. In tune with the constitutional guarantee a
number of statutory provisions also seek to protect personal liberty, dignity and basic
human rights of the citizens. Chapter V of Criminal Procedure Code, 1973 deals with
the powers of arrest of a person and the safeguards which are required to be
followed by the police to protect the interest of the arrested person. Section 41, Cr.
P.C. confers powers on any police officer to arrest a person under the circumstances
specified therein without any order or a warrant of arrest from a Magistrate. Section
46 provides the method and manner of arrest. Under this Section no formality is
necessary while arresting a person. Under Section 49, the police is not permitted to
use more restraint than is necessary to prevent the escape of the person. Section 50
enjoins every police officer arresting any person without warrant to communicate to
him the full particulars of the offence for which he is arrested and the grounds for
such arrest. The police officer is further enjoined to inform the person arrested that
he is entitled to be released on bail and he may arrange for sureties in the event of
his arrest for a non-bailable offence. Section 56 contains a mandatory provision
requiring this police officer making an arrest without warrant to produce the arrested
person before a Magistrate without unnecessary delay and Section 57 echoes Clause
(2) of Article 22 of the Constitution of India. There are some other provisions also
like Sections 53 54 and 167 which are aimed at affording procedural safeguards to a
person arrested by the police. Whenever a person dies in custody of the police,
Section 176 requires the Magistrate to hold an enquiry into the cause of death.
1 8 . However, inspite of the constitutional and statutory provisions aimed at
safeguarding the personal liberty and life of a citizen, growing incidence of torture
and deaths in police custody has been a disturbing factor. Experience shows that
worst violations of human rights take place during the course of investigation, when
the police with a view to secure evidence or confession often resorts to third degree
methods including torture and adopts techniques of screening arrest by either not
recording the arrest or describing the deprivation of liberty merely as a prolonged
interrogation. A reading of the morning newspapers almost everyday carrying reports
of dehumanising torture, assault, rape and death in custody of police or other
governmental agencies is indeed depressing. The increasing incidence of torture and
death in custody has assumed such alarming proportions that it is affecting the
credibility of the Rule of Law and the administration of criminal justice system. The
community rightly feels perturbed. Society's cry for justice becomes louder.
19. The Third Report of the National Police Commission in India expressed its deep
concern with custodial violence and lock-up deaths. It appreciated the demoralising
effect which custodial torture was creating on the society as a whole. It made some
very useful suggestions. It suggested:
...An arrest during the investigation of a cognizable case may be considered
justified in one or other of the following circumstances:

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 (i) The case involves a grave offence like murder, dacoity, robbery,
rape etc., and it is necessary to arrest the accused and bring his
movements under restraint to infuse confidence among the terror
stricken victims.
(ii) The accused is likely to abscond and evade and the processes of
law.
(iii) The accused is given to violent behavior and is likely to commit
further offences unless his movements are brought under restraint.
(iv) The accused is a habitual offender and unless kept in custody he
is likely to commit similar offences again. It would be desirable to
insist through departmental instructions that a police officer making
an arrest should also record in the case diary the reasons for making
the arrest, thereby clarifying his conformity to the specified
guidelines....
The recommendations of the Police Commission (supra) reflect the constitutional
concomitants of the fundamental right to personal liberty and freedom. These
recommendations, however, have not acquired any statutory status so far.
20. This Court in Joginder Kumar v. State MANU/SC/0311/1994 : 1994CriL J1981 ,
(to which one of us, namely, Anand, J. was a party) considered the dynamics of
misuse of police power of arrest and opined:
No arrest can be made because it is lawful for the police officer to do so. The
existence of the power of arrest is one thing. The justification for the
exercise of it is quite another.... No arrest should be made without a
reasonable satisfaction reached after some investigation about the
genuineness and bonafides of a complaint and a reasonable belief both as to
the person's complicity and even so as to the need to effect arrest. Denying a
person his liberty is a serious matter.
21. Joinder Kumar's case (supra) involved arrest of a practising lawyer who had been
called to the police station in connection with a case under inquiry on 7.1.94. On not
receiving any satisfactory account of his whereabouts the family members of the
detained lawyer preferred a petitioner in the nature of habeas corpus before this
Court on 11.1.94 and in compliance with the notice the lawyer was produced on
14.1.94 before this Court. The police version was that during 7.1.94 and 14.1.94 the
lawyer was not in detention at all but was only assisting the police to detect some
cases. The detenue asserted otherwise. This Court was not satisfied with the police
version. It was noticed that though as that day the relief in habeas corpus petition
could not be granted but the questions whether there had been any need to detain
the lawyer for 5 days and if at all he was not in detention then why was this Court
not informed, were important questions which required an answer. Besides if there
was detention for 5 days, for what reason was he detained. The Court, therefore,
directed the District Judge, Ghaziabad to make a detailed enquiry and submit his
report within 4 weeks. The Court voiced its concern regarding complaints of
violations of human rights during and after arrest. It said:
The horizon of human rights is expanding. At the same time, the crime rate
is also increasing. Of late, this Court has been receiving complaints about
violations of human rights because of indiscriminate arrests. How are we to
strike a balance between the two?

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 ....
A realistic approach should be made in this direction. The law of arrest is one
of balancing individual rights, liberties and privileges. On the one hand, and
individual duties, obligations and responsibilities on the others of weighing
and balancing the rights, liberties, and privileges of the single individual and
those of individuals collectively; of simply deciding what is wanted and
where to put the weight and the emphasis of deciding which comes first-the
criminal or society, the law violator or the abider.
This Court then set down certain procedural "requirements" in cases of arrest.
22. Custodial death is perhaps one of the worst crimes in a civilised society governed
by the Rule of Law. The rights inherent in Articles 21 and 22(1) of the Constitution
require to be jealously and scrupulously protected. We cannot wish away the
problem. Any form of torture or cruel, inhuman or degrading treatment would fall
within the inhibition of Article 21 of the Constitution, whether it occurs during
investigation, interrogation or otherwise. If the functionaries of the Government
become law breakers, it is bound to breed contempt for law and would encourage
lawlessness and every man would have the tendency to become law unto himself
thereby leading to anarchism. No civilised nation can permit that to happen. Does a
citizen shed off his fundamental right to life, the moment a policeman arrests him?
Can the right to life of a citizen be put in abeyance on his arrest? These questions
touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be
an emphatic 'No'. The precious right guaranteed by Article 21 of the Constitution of
India cannot be denied to convicts, under trials , detenues and other prisoners in
custody, except according to the procedure established by law by placing such
reasonable restrictions as are permitted by law.
23. In Neelabati Bahera v. State of Orissa MANU/SC/0307/1993 : 1993CriL J2899 ,
(to which Anand, J. was a party) this Court pointed out that prisoners and detenues
are not denuded of their fundamental rights under Article 21 and it is only such
restrictions as are permitted by law, which can be imposed on the enjoyment of the
fundamental rights of the arrestees and detenues. It was observed:
It is axiomatic that convicts, prisoners or under trials are not denuded of
their fundamental rights under Article 21 and it is only such restrictions, as
are permitted by law, which can be imposed on the enjoyment of the
fundamental right by such persons. It is an obligation of the State to ensure
that there is no infringement of the indefeasible rights of a citizen to life,
except in accordance with law, while the citizen is in its custody. The
precious right guaranteed by Article 21 of the Constitution of India cannot be
denied to convicts, under trials or other prisoners in custody, except
according to procedure established by law. There is a great responsibility on
the police or prison authorities to ensure that the citizen in its custody is not
deprived of his right to life. His liberty is in the very nature of things
circumscribed by the very fact of his confinement and therefore his interest
in the limited liberty left to him is rather precious. The duty of care on the
part of the State is strict and admits of no exceptions. The wrongdoer is
accountable and the State is responsible if the person in custody of the
police is deprived of his life except according to the procedure established by
law.
2 4 . Instances have come to our notice where the police has arrested a person
without warrant in connection with the investigation of an offence, without recording

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the arrest, and the arrested person has been subjected to torture to extract
information from him for the purpose of further investigation or for recovery of case
property or for extracting confession etc. The torture and injury caused on the body
of the arrestee has sometimes resulted into his death. Death in custody is not
generally shown in the records of the lock-up and every effort is made by the police
to dispose of the body or to make out a case that the arrested person died after he
was released from custody. Any complaint against such torture or death is generally
not given any attention by the police officers because of ties of brotherhood. No first
information report at the instance of the victim or his kith and kin is generally
entertained and even the higher police officers turn a blind eye to such complaints.
Even where a formal prosecution is launched by the victim or his kith and kin, no
direct evidence is available to substantiate the charge of torture or causing hurt
resulting into death, as the police lock-up where generally torture or injury is caused
is away from the public gaze and the witnesses are either police men or co-prisoners
who are highly reluctant to appear as prosecution witnesses due to fear of retaliation
by the superior officers of the police. It is often seen that when a complaint is made
against torture, death or injury, in police custody, it is difficult to secure evidence
against the policemen responsible for resorting to third degree methods since they
are incharge of police station records which they do not find difficult to manipulate.
Consequently, prosecution against the delinquent officers generally results in
acquittal. State of Madhya Pradesh v. Shyamsunder Trivedi and Ors.
MANU/SC/0722/1995 : (1995)4SCC262 is an apt case illustrative of the observations
made by us above. In that case, Nathu Banjara was tortured at police station,
Rampura during the interrogation. As a result of extensive injuries caused to him he
died in police custody at the police station. The defence set up by the respondent
police officials at the trial was that Nathu had been released from police custody at
about 10.30 p.m. after interrogation on 13.10.1986 itself vide entry Ex. P/22A in the
Roznamcha and that at about 7.00 a.m. on 14.10.1981, a death report Ex. P/9 was
recorded at the police station. Rampura, at the instance of Ramesh respondent No. 6,
to the effect that he had found "one unknown person" near a tree by the side of the
tank rigging with pain in his chest and that as soon as respondent No. 6 reached near
him, the said person died. The further case set up by SI Trivedi, respondent No. 1,
incharge of the police station was that after making a Roznamcha entry at 7.00 a.m.
about his departure from the police station he (respondent No. 1-Shyamsunder
Trivedi) and Constable Rajaram respondent proceeded to the spot where the dead
body was stated to be lying for conducting investigation under Section 174 Cr. P.C.
He summoned Ramesh Chandra and Goverdhan respondents to the spot and in their
presence prepared a panchnama Ex. P/27 of the dead body recording the opinion
therein to the effect that no definite cause of death was known.
2 5 . The First Additional Sessions Judge acquitted all the respondents of all the
charges holding that there was no direct evidence to connect the respondents with
the crime. The State of Madhya Pradesh went up in appeal against the order of
acquittal and the High Court maintained the acquittal of respondents 2 to 7 but set
aside the acquittal of respondent No. 1, Shyamsunder Trivedi for offences under
Section 218 201 and 342 IPC. His acquittal for the offences under Section 302/149
and 147 IPC was, however, maintained. The State filed an appeal in this Court by
special leave. This Court found that the following circumstances had been established
by the prosecution beyond every reasonable doubt and coupled with the direct
evidence of PWs 1, 3, 4, 8 and 18 those circumstances were consistent only with the
hypotheses of the guilt of the respondents and were inconsistent with their
innocence:
(a) that the deceased had been brought alive to the police station and was
last seen alive there on 13.1081;

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 (b) that the dead body of the deceased was taken out of the police station on
14.10.81 at about 2 p.m. for being removed to the hospital;
(c) that SI Trivedi respondent No. 1, Ram Naresh Shukla, Respondent No. 3,
Rajaram, respondent No. 4 and Ganiuddin respondent No. 5 were present at
the police station and had all joined hands to dispose of the dead body of
Nathu-Banjara;
(d) that SI Trivedi, respondent No. 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;
(e) 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' though the identity of the deceased,
when they had interrogated for a sufficient long time was well known to
them.
and opined that:
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 simplification of
the tell tale circumstances established by the prosecution.
26. One of us (namely, Anand. J.) speaking for the Court went on to observe:
The trial court and the High Court, if we may say so with respect, exhibited a
total lack of sensitivity and a 'could not careless' 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 old 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 loose sight
of the fact that death in police custody is perhaps one of the worst kind of
crime in a civilised society, governed by the rule of law and poses a serious
threat to an orderly civilised society.
This Court then suggested:
The Courts are also required to have a change in their outlook and attitude,
particularly in cases involving custodial crimes and they should exhibit more
sensitivity and adopt a realistic rather than a narrow technical approach,
while dealing with the cases of custodial crime so that as far as possible
within their powers, the guilty should not escape so that the victim of the
crime has the satisfaction that ultimately the Majesty of Law has prevailed.
27. The State appeal was allowed and the acquittal of respondents 1, 3, 4 and 5 was

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set aside. The respondents were convicted for various offences including the offence
under Section 304 Part 11/34 IPC and sentenced to various terms of imprisonment
and fine ranging from Rs. 20,000 to Rs. 50,000. The fine was directed to be paid to
the heirs of Nathu Banjara by way-of compensation. It was further directed:
The Trial Court shall ensure, in case the fine is deposited by the accused
respondents, that the payment of the same is made to the heirs of deceased
Nathu Banjara, and the Court shall take all such precautions as are necessary
to see that the money is not allowed to fall into wrong hands and is utilised
for the benefit of the members of the family of the deceased Nathu Banjara,
and if found practical by deposit in Nationalised Bank or post office on such
terms as the Trial. Court may in consultation with the heirs for the deceased
consider fit and proper.
28. It needs no emphasis to say that when the crime goes unpunished, the criminals
are encouraged and the society suffers. The victim of crime or his kith and kin
become frustrated and contempt for law develops. It was considering these aspects
that the Law Commission in its 113th Report recommended the insertion of Section
114B in the Indian Evidence Act. The Law Commission recommend in its 113th
Report that in prosecution of a police officer for an alleged offence of having caused
bodily injury to a person, if there was evidence that the injury was caused during the
period when the person was in the custody of the police, the Court may presume that
the injury was caused by the police officer having the custody of that person during
that period. The Commission further recommended that the Court, while considering
the question of presumption, should have regard to all relevant circumstances
including the period of custody, statement made by the victim, medical evidence and
the evidence which the Magistrate may have recorded. Change of burden of proof
was, thus, advocated. In Shyam Sunder Trivedi's case (supra) this Court also
expressed the hope that the Government and the legislature would give serious
thought to the recommendation of the law Commission. Unfortunately, the suggested
amendment, has not been incorporated in the statute so far. The need of amendment
requires no emphasis - sharp rise in custodial violence, torture and death in custody,
justifies the urgency for the amendment and we invite Parliament's attention to it.
2 9 . Police is, no doubt, under a legal duty and has legitimate right to arrest a
criminals and to interrogate him during the investigation of an offence but it must be
remembered that the law does nor permit use of third degree methods or torture of
accused in custody during interrogation and investigation with a view to solve the
crime. End cannot justify the means. The interrogation and investigation into a crime
should be in true sense purposeful to make the investigation effective. By torturing a
person and using third degree methods, the police would be accomplishing behind
the closed doors what the demands of our legal order forbid. No society can permit
it.
3 0 . How do we check the abuse of police power? Transparency of action and
accountability perhaps are two possible safeguards which this Court must insist upon.
Attention is also required to be paid to properly develop work culture, training and
orientation of the police force consistent with basic human values. Training
methodology of the police needs restructuring. The force needs to be infused with
basic human values and made sensitive to the constitutional ethos. Efforts must be
made to change the attitude and approach of the police personnel handling
investigations so that they do not sacrifice basic human values during interrogation
and do not resort to questionable forms of interrogation. With a view to bring in
transparency, the presence of the counsel of the arrestee at some point of time
during the interrogation may deter the police from using third degree methods during

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interrogation.
31. Apart from the police, there are several other governmental authorities also like
Directorate of Revenue Intelligence, Directorate of Enforcement, Coastal Guard,
Central Reserve Police Force (CRPF), Border Security Force (BSF), The Central
Industrial Security Force (CISF), the State Armed Police, Intelligence Agencies like
the Intelligence Bureau, R.A.W., Central Bureau of Investigation (CBI), CID, Traffic
Police, Mounted Police and ITBP, which have the power to detain a person and to
interrogate him in connection with the investigation of economic offences, offences
under the Essential Commodities Act, Excise and Customs Act, Foreign Exchange
Regulation Act etc. There are instances of torture and death in custody of these
authorities as well. In Re Death of Sawinder Singh Grover , (to which Kuldip Singh,
J.) was a party) this Court took suo moto notice of the death of Sawinder Singh
Grover during his custody with the Directorate of Enforcement. After getting an
enquiry conducted by the Additional District Judge, which disclosed a prima facie
case for investigation and prosecution, this Court directed the CBI to lodge a FIR and
initiate criminal proceedings against all persons named in the report of the Additional
District Judge and proceed against them. The Union of India/Directorate of
Enforcement was also directed to pay a sum of Rs. 2 lacs to the widow of the
deceased by way of ex gratia payment at the interim stage. Amendment of the
relevant provisions of law to protect the interest of arrested person in such cases too
is a genuine need.
32. There is one other aspect also which needs our consideration. We are conscious
of the fact that the police in India have to perform a difficult and delicate task,
particularly in view of the deteriorating law and order situation, communal riots,
political turmoil, student unrest, terrorist activities, and among others the increasing
number of underworld and armed gangs and criminals. Many hard core criminals like
extremists, the terrorists, drug peddlers, smugglers who have 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 and the problem is real. To deal with such a
situation, 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.
33. The response of the American Supreme Court to such an issue in Miranda v.
Arizona, 384 US 436, is instructive. The Court said:
A recurrent argument, made in these cases is that society's need for
interrogation out-weights the privilege. This argument is not unfamiliar to
this Court. See e.g., Chambers v. Florida, 309 US 227 : 84 1 ed 716, : 60
S.Ct. 472 (1940). The whole thrust of our foregoing discussion demonstrates
that the Constitution has prescribed the rights of the individual when
confronted with the power of Government when it provided in the Fifth
Amendment that an individual cannot be compelled to be a witness against
himself. That right cannot be abridged.
(Emphasis ours)

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34. There can be no gain saying that freedom of an individual must yield to the
security of the State. The right of preventive detention of individuals in the interest of
security of the State in various situations prescribed under different statues has been
upheld by the Courts. The right to interrogate the detenues, culprits or arrestees in
the interest of the nation, must take precedence over an individual's right to personal
liberty. The latin maxim salus populi est suprema lex (the safety of the people is the
supreme law) and salus republican est suprema. lex)(safety of the State is the
supreme law) co-exist and are not only important and relevant but lie at the heart of
the doctrine that the welfare of an individual must yield to that of the community.
The action of the State, however, must be "right, just and fair". Using any form of
torture for extracting any kind of information would neither be 'right nor just nor fair'
and, therefore, would be impermissible, being offensive to Article 21. Such a crime-
suspect must be interrogated-indeed subjected to sustained and scientific
interrogation - determined in accordance with provisions of law. He cannot, however,
be tortured or subjected to third degree methods or eliminated with a view to elicit
information, extract confession or derive knowledge about his accomplices, weapons
etc. His Constitutional right cannot be abridged except in the manner permitted by
law, though in the very nature of things there would be qualitative difference in the
method of interrogation of such a person as compared to an ordinary criminal.
Challenge of terrorism must be met with innovative ideas and approach. State
terrorism is no answer to combat terrorism. State terrorism would only provide
legitimacy to 'terrorism'. That would be bad for the State, the community and above
all for the Rule of law. The State must, therefore, ensure that various agencies
deployed by it for combating terrorism act within the bounds of law and not become
law unto themselves. That the terrorist has violated human rights of innocent citizens
may render him liable for punishment but it cannot justify the violation of his human
rights except in the manner permitted by law. Need, therefore, is to develop scientific
methods of investigation and train the investigators properly to interrogate to meet
the challenge.
35. In addition to the statutory and constitutional requirements to which we have
made a reference, we are of the view that it would be useful and effective to structure
appropriate machinery for contemporaneous recording and notification of all cases of
arrest and detention to bring in. transparency and accountability. It is desirable that
the officer arresting a person should prepare a memo of his arrest at the time of
arrest in the presence of at least one witness who may be a member of the family of
the arrestee or a respectable person of the locality from where the arrest is made.
The date and time of arrest shall be recorded in the memo which must also be
counter signed by the arrestee.
36. 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
atleast one witness, who may be either a member of the family of the
arrestee or a respectable person of the locality from where the arrest is
made. It shall also be counter signed by the arrestee and shall contain the

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 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 center 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 arrest and major and minor injuries, if any present on his/her body,
must be recorded at that time. The "Inspection Memo" must be signed both
by the arrestee and the police officer effecting the arrest and its copy
provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained
doctor every 48 hours during his detention in custody by a doctor on the
panel of approved doctors appointed by Director, Health Services of the
concerned State or Union Territory. Director, Health Services should prepare
such a penal 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.
37. Failure to comply with the requirements hereinabove mentioned shall apart from
rendering the concerned official liable for departmental action, also render him liable
to be punished for contempt of court and the proceedings for contempt of court may
be instituted in any High Court of the country, having territorial jurisdiction over the
matter.
3 8 . The requirements, referred to above flow from Articles 21 and 22(1) of the

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Constitution and need to be strictly followed. These would apply with equal force to
the other governmental agencies also to which a reference has been made earlier.
39. These requirements are in addition to the constitutional and statutory safeguards
and do not detract from various other directions given by the courts from time to
time in connection with the safeguarding of the rights and dignity of the arrestee.
40. The requirements mentioned above shall be forwarded to the Director General of
Police and the Home Secretary of every State/Union Territory and it shall be their
obligation to circulate the same to every police station under their charge and get the
same notified at every police station at a conspicuous place. It would also be useful
and serve larger interest to broadcast the requirements on the All India Radio besides
being shown on the National network of Doordarshan and by publishing and
distributing pamphlets in the local language containing these requirements for
information of the general public. Creating awareness about the rights of the arrestee
would in our opinion be a step in the right direction to combat the evil of custodial
crime and bring in transparency and accountability. It is hoped that these
requirements would help to curb, if not totally eliminate, the use of questionable
methods during interrogation and investigation leading to custodial commission of
crimes.
PUNITIVE MEASURES
UBI JUS IBI REMEDIUM-There is no wrong without a remedy. The law wills that in
every case where a man is wronged and undamaged he must have a remedy. A mere
declaration of invalidity of an action or finding of custodial violence or death in lock-
up, does not by itself provide any meaningful remedy to a person whose fundamental
right to life has been infringed. Much more needs to be done.
41. Some punitive provisions are contained in the Indian Penal Code which seek to
punish violation of right to life. Section 220 provides for punishment to an officer or
authority who detains or keeps a person in confinement with a corrupt or malicious
motive. Sections 330 and 331 provide for punishment of those who inflict injury or
grievous hurt or a person to extort confession or information in regard to commission
of an offence. Illustrations (a) and (b) to Section 330 make a police officer guilty of
torturing a person in order to induce him to confess the commission of a crime or to
induce him to point out places where stolen property is deposited. Section 330,
therefore, directly makes torture during interrogation and investigation punishable
under the Indian Penal Code. These statutory provisions, are however, inadequate to
repair the wrong done to the citizens. Prosecution of the offender is an obligation of
the State in case of every crime but the victim of crime needs to be compensated
monetarily also. The Court, where the infringement of the fundamental right is
established, therefore, cannot stop by giving a mere declaration. It must proceed
further and give compensatory relief, not by way of damages as in a civil action but
by way of compensation under the public law jurisdiction for the wrong done, due to
breach of public duty by the State of not protecting the fundamental right to life of
the citizen. To repair the wrong done and give judicial redress for legal injury is a
compulsion of judicial conscience.
4 2 . Article 9(5) of the International Covenant on Civil and Political Rights, 1966
(ICCPR) provides that "anyone who has been the victim of unlawful arrest or
detention shall have enforceable right to compensation". Of course, the Government
of India at the time of its ratification (of ICCPR) in 1979 had made a specific
reservation to the effect that the Indian Legal system does not recognise a right to
compensation for victims of unlawful arrest or detention and thus did not become a

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party to the Covenant. That reservation, however, has now lost its relevance in view
of the law laid down by this Court in a number of cases awarding compensation for
the infringement of the fundamental right to life of a citizen. See with advantage
Rudal Shah v. State of Bihar MANU/SC/0380/1983 : 1983CriL J1644 ; Sebastian M.
Hongrey v. Union of India MANU/SC/0163/1984 : [1984]3SCR22 ; Bhim Singh v.
State of J and K MANU/SC/0064/1985 : 1986CriL J192 and Saheli v. Commissioner of
Police, Delhi MANU/SC/0478/1989 : AIR1990SC513 . There is indeed no express
provision in the Constitution of India for grant of compensation for violation of a
fundamental right to life, nonetheless, this Court has judicially evolved a right to
compensation in cases of established unconstitutional deprivation of personal liberty
or life.
43. Till about two decades ago the liability of the Government for tortious act of its
public servants was generally limited and the person affected could enforce his right
in tort by filing a civil suit and there again the defence of sovereign immunity was
allowed to have its play. For the violation of the fundamental right to life or the basic
human rights, however, this Court has taken the view that the defence of sovereign
immunity is not available to the State for the tortious acts of the public servants and
for the established violation of the rights guaranteed by Article 21 of the Constitution
of India. In Neelabati Behera v. State, (supra) the decision of this Court in Kasturi Lal
Ralia Ram Jain v. State of U.P. MANU/SC/0086/1964 : (1966)IILL J583SC , wherein
the plea of sovereign immunity had been upheld in a case of vicarious liability of the
State for the tort committed by its employees was explained thus:
In this context, it is sufficient to say that the decision of this Court in
Kasturilal upholding the State's plea of sovereign immunity for tortious acts
of its servants is confined to the sphere of liability in tort, which is distinct
from the State's liability for contravention of fundamental rights to which the
doctrine of sovereign immunity has no application in the constitutional
scheme, and is no defence to the constitutional remedy under Articles 32 and
226 of the Constitution which enables award of compensation for
contravention of fundamental rights, when the only practicable mode of
enforcement of the fundamental rights can be the award of compensation.
The decisions of this Court in Rudul Sah and others in that line relate to
award of compensation for contravention of fundamental rights, in the
constitutional remedy under Articles 32 and 226 of the Constitution. On the
other hand, Kasturilal related to the value of goods seized and not returned
to the owner due to the fault of Government Servants, the claim being of
damages for the tort of conversion under the ordinary process, and not a
claim for compensation for violation of fundamental rights. Kasturilal is,
therefore, inapplicable in this context and distinguishable.
4 4 . 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 21 and
226 of the Constitution of India for the established violation of the fundamental
rights guaranteed under Article 21, is an exercise of the Courts under the public law
jurisdiction for penalising the wrong doer and fixing the liability for the public wrong

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on the State which failed in the discharge of its public duty to protect the
fundamental rights of the citizen.
45. The old doctrine of only relegating the aggrieved to the remedies available in
civil law limits the role of the courts too much, as the protector and custodian of the
indefeasible rights of the 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 cumbersome judicial process. Monetary compensation for redressal by the
Court finding the infringement of the indefeasible right to life of the citizen is,
therefore, a useful and at times perhaps the only effective remedy to apply balm to
the wounds of the family members of the deceased victim, who may have been the
bread winner of the family.
46. In Nilabati Bahera's case (supra), it was held:
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
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 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.
47. A similar approach of redressing the wrong by award of monetary compensation
against the State for its failure to protect the fundamental rights of the citizen has
been adopted by the Courts of Ireland, which has a written constitution, guaranteeing
fundamental rights, but which also like the Indian Constitution contains no provision
of remedy for the infringement of those rights. That has, however, not prevented the
Courts in Ireland from developing remedies, including the award of damages, not
only against individuals guilty of infringement, but against the State itself.

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48. The informative and educative observations of O'Dalaigh CJ in The State (At the
Prosecution of Quinn) v. Ryan (1965) IR 70 122, deserve special notice. The Learned
Chief Justice said:
It was not the intention of the Constitution in guaranteeing the fundamental
rights of the citizen that these rights should be set at nought or
circumvented. The intention was that rights of substance were being assured
to the individual and that the Courts were the custodians of those rights. As a
necessary corollary, it follows that no one can with impunity set these rights
at bought or circumvent them, and that the Court's powers in this regard are
as ample as the defence of the Constitution requires.

49. In Byrne v. Ireland (1972) IR 241, Walsh, J. opined at p 264:

In several parts in the Constitution duties to make certain provisions for the
benefit of the citizens are imposed on the State in terms which bestow rights
upon the citizens and, unless some contrary provision appears in the
Constitution, the Constitution must be deemed to have created a remedy for
the enforcement of these rights. It follows that, where the right is one
guaranteed by the State, it is against the State that the remedy must be
sought if there has been a failure to discharge the constitutional obligation
imposed.
50. In Maharaj v. Attorney General of Trinidad and Tobago (1978) 2 All E.R. 670,
The Privy Council while interpreting Section 6 of the Constitution of Trinidad and
Tobago held that though not expressly provided therein, it permitted an order for
monetary compensation, by way of 'redress' for contravention of the basic human
rights and fundamental freedoms. Lord Diplock speaking for the majority said:
It was argued on behalf of the Attorney General that Section 6(2) does not
permit of an order for monetary compensation despite the fact that this kind
of redress was ordered in Jaundou v. Attorney General of Guvana. Reliance
was placed on the reference in the sub-section to 'enforcing, or securing the
enforcement of, any of the provisions of the said foregoing sections' as the
purpose for which orders etc. could be made. An order for payment of
compensation, it was submitted, did not amount to the enforcement of the
rights that had been contravened. In their Lordships' view an order for
payment of compensation when a right protected under Section 1 'has been'
contravened is clearly a form of 'redress' which a person is entitled to claim
under Section 6(1) and may well be the only practicable form of redress, as
by now it is in the instant case. The jurisdiction to make such an order is
conferred on the High Court by para (a) of Section 6(2), viz. jurisdiction 'to
hear and determine any application made by any person in pursuance of
Sub-section (1) of this section'. The very wise powers to make orders, issue
writs and give directions are ancillary to this.
51. Lord Diplock then went on to observe (at page 680):
Finally, their Lordships would say something about the measure of monetary
compensation recoverable under Section 16 where the contravention of the
claimant's constitutional rights consists of deprivation of liberty otherwise
than by due process of law. The claim is not a claim in private law for
damages for the tort of false imprisonment, under which the damages
recoverable are at large and would include damages for loss of reputation. It

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 is a claim in public law for compensation for deprivation of liberty alone.
52. In Simpson v. Attorney General [Baigent's case] (1994) NZLR. 667 the Court of
Appeal in New Zealand dealt with the issue in a very elaborate manner by reference
to a catena of authorities from different jurisdictions. It considered the applicability
of the doctrine of vicarious liability for torts, like unlawful search, committed by the
police officials which violate the New Zealand Bill of Rights Act, 1990. While dealing
with the enforcement of rights and freedoms as guaranteed by the Bill of Rights for
which no specific remedy was provided. Hardie Boys, J. observed:
The New Zealand Bill of Rights Act, unless it is to be no more than an empty
statement, is a commitment by the Crown that those who in the three
branches of the government exercise its functions, powers and duties will
observe the rights that the Bill affirms. It is I consider implicit in that
commitment indeed essential to its worth, that the Courts are not only to
observe the Bill in the discharge of their own duties but are able to grant
appropriate and effective remedies where rights have been infringed. I see
no reason to think that this should depend on the terms of a written
constitution. Enjoyment of the basic human rights are the entitlement of
every citizen, and their protection the obligation of every civilised state. They
are inherent in and essential to the structure of society. They do not depend
on the legal or constitutional form in which they are declared. The reasoning
that has led the Privy Council and the Courts of Ireland and India to the
conclusions reached in the cases to which I have referred (and they are but a
sample) is in my opinion equally valid to the New Zealand Bill of Rights Act
if it is to have life and meaning.
5 3 . The Court of Appeal relied upon the judgments of the Irish Courts the Privy
Council and referred to the law laid down in Nilabati Behera v. State, (supra) thus:
Another valuable authority comes from India, where the Constitution
empowers the Supreme Court to enforce rights guaranteed under it. In
Nilabati Bahera v. State of Orissa (1993) Crl. L J 2899, the Supreme Court
awarded damages against the State to the mother of a young man beaten to
death in police custody. The Court held that its power of enforcement
imposed a duty to "forge new tools", of which compensation was an
appropriate one where that was the only mode of redress available. This was
not a remedy in tort, but one in public law based on strict liability for the
contravention of fundamental rights to which the principle of sovereign
immunity does not apply. These observations of Anand, J. at p. 2912 may be
noted.
The old doctrine of only relegating the aggrieved to the remedies available in
civil law limits the role of the courts too much as protector and guarantor of
the indefeasible 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. The purpose
of public law is not only to civilize public power but also to assure the citizen
that they live under a legal system which aims to protect their interests and
preserve their rights.
5 4 . Each of the five members of the Court of Appeal in Simpson's case (supra)
delivered a separate judgment but there was unanimity of opinion regarding the grant
of pecuniary compensation to the victim, for the contravention of his rights
guaranteed under the Bill of Right Act, notwithstanding the absence of an express

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provision in that behalf in the Bill of Rights Act.
5 5 . 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 wrong doer. In the
assessment of compensation, the emphasis has to be on the compensatory and not
on punitive element. The objective is to apply balm to the wounds and not to punish
the transgressor or the offender, as awarding appropriate punishment for the offence
(irrespective of compensation) must be left to the criminal courts in which the
offender is prosecuted, which the State, in law, is duty bound to do. The award of
compensation in the public law jurisdiction is also without prejudice to any other
action like civil suit for 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 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.
56. Before parting with this judgment we wish to place on record our appreciation
for the learned Counsel appearing for the States in general and Dr. A.M. Singhvi,
learned senior counsel who assisted the Court amicus curiae in particular for the
valuable assistance rendered by them.

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