JUDGMENT M.L. Singhal, J.

1. Santokh Singh son of Pritam Singh was Branch Manager in Central Cooperative Bank at Village Jadla. According to his father-Pritarn Singh, he was picked up by Nawanshahar Police on 25.12.1992 when he was going to Village Karyam, Tehsil Nawan-shahar alongwith one Kulwinder Singh. On 26.12.1992, he alongwith the members of the panchayat and the employees of Central Cooperative Bank of Village Jadla met Balkar Singh, Deputy Superintendent of Police to find out the cause why his son had been taken on 25.12.1992. Balkar Singh, Deputy Superintendent of Police assured them that he would be lei off after interrogation and that they should contact him the following day. On 27.12.1992, he alongwith members of the panchayat and others went to police Station, Nawanshahar. Santokh Singh and Kulwinder Singh were handed over to them at about 2 P.M. They came back happily as they were able to secure Sankoth Singh and Kulwinder Singh. On 28.12.1992, at about 4 P.M. the police of Police Post, Jadla picked him (Pritam Singh) when he was st his house. He was taken to Police Station Nawanshahar and was kept there throughout the night. He was mentally tortured and was forced to produce Santokh Singh. On the following day i.e. 29-12.1992 at about 2 P.M., Sankolh Singh was handed over to Inspector Ranbir Singh, SHO, Police Station, Nawanshahar. At that time, Malkiat Singh Sarpanch, Atma Singh, Lambardar etc. had also gone to the Police Station. Sankoth Singh was handed over to the police and his father Pritam Singh was released. They were assured by the police that Santokh Singh would be let off and handed over back to them after interrogation. On the following day i.e. 30.12.1992, Pritam Singh and members of the Panchayat met Deputy Superintendent of Police Balkar Singh and Inspector Ranbir Singh. They did not supply any clue to them about the whereabouts of Santokh Singh and put them off. Since then, he and his relatives have been driven from pillar to post in quest of Santokh Singh to secure his release but the providence has not helped him.

2. In the issue dated 11.1.1993 of'Ajit'Punjabi daily Jullunder there appeared a news item that Nawanshahar police had shown Santokh Singh under arrest with them and Deputy Superintendent of Police Balkar Singh had briefed the press that Santokh Singh @ Sukhi had been taken into custody by Nawanshahar police on the allegation that he was giving shelter to the militants and some arms and ammunition had also been recovered from him; Annexure P-1 is the said news item. On 11.1.1993, he came to know that the police had registered an FIR in which they had depicted tha! when Santokh Singh was being taken for the recovery of fire arms, the police party was ambushed by unidentified persons and the police party was attacked. There was an armed encounter. As a sequel to that encounter, the hook of the belt of constable with whom the handcuffs with which Santokh Singh had been tied got broken and Santokh Singh made good escape together with handcuffs. Pritam Singh apprehends that his son has been liquidated in a stage managed encounter. The facts recited in the FIR dated 11.1.1993, Annexure P-2 are false and designed to hoodwink the reality and land the truth into a state of grave obscurity and uncertainty. His apprehension that his son has been liquidated has gained currency when he was hearing every now and then that to contain the menace of terrorism afflicting the State of Punjab for the last few years, the Punjab Police has manoeuvred the stage managed encounters to show the elimination of terrorists in such stage managed encounters. In a number of cases, the Supreme Court has felt extremely doubtful about the genuineness of these encounters and has taken a few steps to contain the reign of terrorism let loose by the State on its subjects. This Court has also felt the same way and has taken some steps to contain the menace of State terrorism. His apprehension is that his son has been victim of the feeling of over-zealousness on the part of the Punjab Police. He has either been done away with or is being detained by the police unlawfully. Ever since after 11.1.1993, Santokh Singh has not been heard of. During the last few years, there WES terror let loose by the Punjab Police on its subjects. Nobody could have courage to highlight ihis high-handedness of the police. If (here was any such high-handedness by the police, that was spumed silently, lest he was eliminated at a stage managed encounter, it was for this reason that Pritam Singh did not raise his voice againstthis high-handedness of the police who either eliminated his son on 11.1.1993 or is detaining his son unlawfully. Pritam Singh became bold enough when he found that the courts are enforcing the right to life and liberty granted to everyone under the Constitution of India with a sense of great zealousy. On these allegations, Pritam Singh had knocked the door of this Court through this Criminal Writ Petition under Article 226 of the Constitution of India for the issuance of writ of Habeas Corpus against the respondents to produce Santokh Singh before this Court.

3. Respondents 1 and 2 i.e. State of Punjab and Senior Superintendent of Police, Jalandhar, opposed this petition urging that Santokh Singh was never picked up by the police on 25.1.1992. Santokh Singh was required by the police in case FIR No. 12 dated 20.11.1992 under Sections 302/307/34 IPC, Section 25 of the Arms Act as well as Sections 3/4 of the Terrorists & Disruptive Activities (Prevention) Act (TADA), of Police Station Rahon registered on the statement of one Chuhar Singh son of Swaran Singh, on 20.11.1992. Santokh Singh was never arrested prior to 10.1.1993. On 10.1.1993, Santokh Singh was apprehended alongwith one Raj Kumar during the course of patrolling by a patrol party headed by Inspector Ranbir Singh. They were apprehended because they wee felt to be moving in suspicious circumstances. A .303 bore rifle alongwith 10 live cartridges was recovered from Santokh Singh. A .315 bore rifle alongwith six live cartridges was recovered from Raj Ku-mar. Santokh Singh and Raj Kumar were taken into custody in cases Nos. 6 and 7 dated 10.1.1993. Santokh Singh was produced in the court of Sh. M.S. Walia, Judicial Magistrate First Class, Nawanshahar. He was remanded to police custody for one day. He was interrogated. On interrogation, he made disclosure slatement which was to the effect that he had kept one .12 bore gun alongwith 10 live cartridges at Village Mirpur Lakha. Police party headed by Inspector Ranbir Singh was taking Santokh Singh with a view to his getting the recovery effected in pursuance of his disclosure statement. A .12 bore gun aiongwith 7 live cartridges was recovered from the place pointed out by him. In view of this recovery, case FIR No. 8 dated 11.1.1993 was registered against Santokh Singh under Section 25 of the Arms Act and Sections 3/4/5 of the Terrorists & Disruptive Activities (Prevention) Act. Unfortunately, when the police party was coming back with Santokh Singh after this recovery, there was arnbush by terrorists and there was a fierce encounter. In this encounter, two persons lost their lives who had ambushed the police party. One of them was identified as Sodhi Singh son of Amar Singh. Finding an opportunity to escape, Santokh Singh managed to escape. Said Sodhi Singh was also wanted by the police in case FIR No. 12 dated 20.11.1992 of Police Station, Rahon. He was co-accused with Santokh Singh. One AK47 rifle with five live rounds was recovered from near the dead body of Sodhi Singh. The other persons killed in the encounter could not be identified. A .30 bore mauser was found lying near his dead body. Case FIR No. 9 dated 11.1.1993 was registered under Sections 304/34/224 of the IPC and Section 25 of the Arms Act and Sections 3/4/5 of the Terrorists & Disruptive Activities (Prevention) Act. Since then, the police has been making frantic efforts for the search of Santokh Singh but to no effect. He was declared a proclaimed offender in case FIR No. 8 of 1993 of Police Station, Nawanshahar. It was denied that there was any misuse of powers by the police. It was denied that Santokh Singh was done away by the police or was unlawfully detained by the police. Santokh Singh rather ran away from police custody.

4. Inspector Ranbir Singh-respondent No. 4, also contested this writ petition. It was denied that Santokh Singh was arrested on 25.12.1992. I! fact, he was arrested on 10.1.1993 alongwith one Raj Kumar. Santokh Singh was produced before the Magistrate and the Magistrate gave his police custody remand for one day. On 11.1.1993, he was interrogated, on interrogation he made disclosure statement. His disclosure statement led to the recovery of . 12 bore gun with 7 live cartridges. In this behalf, case FIR No. 8 dated 11.11.1993 was registered at Police Station, Nawanshahar against Santokh Singh. It was when the police party was coming back after his recovery from Santokh Singh that the police party was ambushed and a fierce battle took place which lasted for more than 30 minutes. As a sequel to that encounter, Santokh Singh managed to escape. Two persons lost their lives among those who had ambushed the police party. One of them was identified as Sodhi Singh a hardcore terrorist and the other could not be identified. A case was registered regarding the escape of Santokh Singh and regarding the ambushing of the police party by them. Ever since 11.1.1993 Santokh Singh could not be located. He was declared a proclaimed offender in case FIR No. 8 dated 11.1.1993. He was declared a proclaimed offender in case FIR Nos. 6/92, 8/92 and 9/92 of Police Station Banga and FIR No. 12/92 of Police Station Rahon. It was further alleged that there is inordinate delay in the institution of this writ petition. Why did not Pritam Singh knock the door of this Court earlier when his son was not being heard of since after 30.12.1992 and why did he knock the door of this Court in 4/95 and why not soon after 30.12.1992?

5. Vide order dated 16.7.1996, this court ordered learned Sessions Judge, Jalandhar to hold an enquiry into every aspect touching the episode relating to the disappearance of Santokh Singh from police custody. It was ordered that he will particularly determine whether it was escape from police custody so far as Santokh Singh is concerned or whether it was elimination of Santokh Singh and the encounter was only stage managed and not genuine. The Sessions Judge, Jalandhar was required to unravel the mystery surrounding the disappearance of Santokh Singh from police custody.

6. District & Sessions Judge, Jalandhar held an enquiry into the disappearance of Santokh Singh from police custody viz. "whether it was escape from police custody so far as he was concerned or whether it was his elimination and the encounter was only stage managed and not genuine and vide his report dated 20.11.1996, Sessions Judge, Jalandhar did not accept the version regarding encounter and in his opinion, the theory of encounter was stage managed just to eliminate Santokh Singh and he felt that accountability could safely be fastened upon Inspector Ranbir Singh who was heading the police party at the relevant time and lhat the version regarding escape from police custody was inconceivable when police had allegedly fired about 200 shots and two persons from the side of the assailants were killed. It was not possible how Santokh Singh could be allowed to run away and he could be safely apprehended with the use of fire arm.

7. Inspector Ranbir Singh respondent No. 4 put in objections to this report.

8. Vide order dated 27.11.1999, the matter was remitted to learned Sessions Judge, Jalandhar. It was felt by this court that the enquiry report submitted by the learned Sessions Judge was incomplete and did not conclusively bring out how the death of Santokh Singh took place. Learned Sessions Judge, Jalandhar was directed to go afresh into this matter in the light of what Ranbir Singh respondent has stated with regard to the death of Sanlokh Singh. He was directed to examine Inspector Ranbir Singh, Constable Harjinder Singh, Head Constable Parminder Singh etc. He was directed to unravel the mystery surrounding the death ofSantokh Singh i.e. whether he escaped from police custody when he was being brought back after recovery on 11.1.1993 and the counter that ensued between the police party and the ambushers in which two persons lost their lives out of whom one was Santokh Singh or Santokh Singh had been killed on 21.1.1993 by Banga Police. Learned Sessions Judge was directed to recast the report already submitted byhim. If recasting of the report was warranted by the new facts brought before him, he was directed to allow Pritam Singh also to produce evidence if he so wished.

9. It was in pursuance of this order that Sessions Judge, Jalandhar has submitted his report dated 27.5.2000. According to the learned Sessions Judge, Jalandhar, the siory of death of Santokh Singh was not believable. He found that Santokh Singh did not escape in the manner as suggested. Encounter as alleged and escape of Santokh Singh was just stage managed to eliminate Santokh Singh. For the elimination of Santokh Singh, he held Inspector Ranbir Singh liable. For this finding, he was one with the reasoning adopted by Shri K.S. Kauldhar who had submitted the earlier report dated 20.11.1996. From the evidence recorded during the course of enquiry, the learned Sessions Judge has arrived at this finding that prima facie it was a case of elimination of Santokh Singh at a stage managed encounter and it was not a case of his escape from the police custody, when he was being brought back after the recovery of some arms and ammunition on 11.1.1993 in pursuance of his disclosure statement. S.H.O., Police Station, Nawanshahar is, therefore, directed to register a case with regard to the murder of Santokh Singh. The Director General of Police, Punjab will entrust the investigation of this case to any Officer not below the rank of Superintendent of Police, who is not posted in any District which falls within Jalandhar range.

10. He will try to conclude the investigation within four months of the receipt of copy of this order.

11. It was submitted by Shri Navkiran Singh, Advocate for Pritam Singh, dead now for Smt. Gurbux Kaur widow of Santokh Singh, who was substituted for Prilam Singh on his death, for prosecuting this criminal writ petition that on Santokh Singh's demise, his wife Gurbux Kaur, sons Balvinder Singh, Jasbir Singh and a daughter Harsukhdeep Kaur were left who were his dependents. It was submitted that in the death of Santokh Singh, they have been deprived of their sole bread winner and, therefore, they should be compensated to the tune of Rs. 3 lacs. It was submitted that as Santokh Singh was murdered by the functionaries of the State, the State is liable for their acts to compensate the dependants of Santokh Singh. It was submitted that the liability of the State to compensate them is vicarious. It was submitted that Santokh Singh was Junior Accountant, working as Branch Manager, B.O. Jadla and in the month of December 1992 his emoluments were as follows :

Basic pay 2200.00 D.A.

1562.00 H.R.A.

100.00 Medical 125.00 Total 3987.00

12. It was submitted that if not more, out of a salary of Rs. 3987/-, he must have been spending at least Rs. 2500-3000/- per month on his wife and children. It was submitted that if that be so, he must have contributed immeasurably towards their maintenance over the years. He was only 35 years old then. He would have survived for another 35 years or more, if his life had not been cut short the prime.

13. In my opinion, the family of Sankoth Singh should be suitably compensated so that they don't remain unprovided for. It was held by the Hon'ble Supreme Court in Nilabati Be-hera v. State of Orissa, 1994(1) RCR (Cri) IS (SC) : 1993(2) SCC 746 as under :

"It follows that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can.be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rupil Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution for contravention of fundamental rights.

We respectfully concur with the view that the court is not helpless and the wide powers given to this Court by Article 32, which itself is a fundamental right, imposes a consti-

tutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available. The power available to this Court under Article 142 is also an enabling provision in this behalf. The contrary view would not merely render the court powerless and the constitutional guarantee a mirage, but may, in certain situation, bean incentive to extinguish life, if for the extreme contravention the court is powerless to grant any relief against the State, except by punishment of the wrong-doer for the resulting offence, and recovery of damages under private law, by the ordinary process. If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the Constitutional Scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have-nots, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate.

We may also refer to Article 9(5) of the International Covenant on Civil and Political Rights, 1966 which indicates that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right. Article 9(5) reads as under :-

"Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation."

14. It is, thus, clear that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. The Punjab Government is, therefore, directed to pay a sum of Rs. 3 lacs to Smt. Gurbux kaur wife of Santokh Singh, Balvinder Singh son, Harsukhdeep Kaur daughter and Jasbir Singh son. This amount shall be shared by them equally. The amount pertaining to share of the children who are minors shall be deposited in a fixed deposit for a period till they attain majority in the Central Cooperative Bank Limited, Nawanshahar. This amount of Rs. 3 lacs shall be adjusted towards the amount of compensation which might he awarded to them, if they bring any action under the common law.

Criminal Writ Petition is disposed of.

15. Petition allowed.