A. K. Patnaik, J.-

This writ petition was originally registered on a FAX Message received from the petitioner No. 1 who is an Advocate of the Agartala Bar complaining of illegal detention of Shri Rakhal Mazumdar, an Advocate of Amarpur in the State of Tripura. Subsequently, the wife of Shri Rakhal Mazumdar was added as petitioner No.2. After hearing, die order of detention under the National Security Act, 1980 was quashed by the Court.on the ground that it was vitiated by non application of mind and Shri Rakhal Mazumdar was set at liberty by order dated 17.2.93. By the said order however, the Court did not close the case and observed that the allegations made against the respondent No.3 relating to the torture of Shri Rakhal Mazumdar would be examined and by order dated 19.4.93, the Court appointed Shri AB Pal, Additional District and Sessions Judge, Agartala, as the Enquiry Officer and directed him to conduct a detailed enquiry into the allegations after the notice to respondent Nos.3 and 4, such other officers against whom the allegations have been made, the Secretary, Gbvt of Tripura in the Home Department, Shri Rakhal Mazumdar and the petitioner.

2. Pursuant to the said order dated 19.4.93, the Enquiry Officer conducted a detailed enquiry and submitted his report in two parts : Part I containing his findings and Part II containing the deposition of witnesses and the exihibited documents. After receipt of the said Enquiry Report, by order dated 19.1.93, the Court granted time to the respondent Nos.3 and 4 to file their personal affidavits in reply to the report. By order dated 15.11.95, the Court also directed that Shri BM Sinha, the then BDO on whose complaint Shri Rakhal Mazumdar was detained would also be impleaded as respondent No.5 and he was given an opportunity to file his affidavit in connection with the report. By the said order dated 15.11.95, the Court also directed the petitioner and the State of Tripura to file their affidavits in respect of the complaints lodged by Shri BM Sinha. The State of Tripura filed an affidavit which indicated that a case under sections 448/354/376/511 IPC in the Birganj PS has been registered being Birganj PS Case No. 1 (3) of 1993 against Shri Rakhal Mazumdar but investigation into the said criminal case had not been completed. Finally, the matter was heard on 19.11.96, when Mr. B. Das, learned counsel appeared for the petitioners, Mr. AK Bhattacharyya and Mr. BP Kataky, learned counsel appeared for the State of Tripura, Mr. SN Sarma, learned counsel appeared for the respondent Nos.3 and 4 and Mr. JM Choudhury, learned counsel appeared*for the respondent No.5.

3. Mr. B. Das, learned counsel for the petitioner, referred to findings in the enquiry report of Shri AB Pal, Additional District an4 Sessions Judge, Agartala and submitted that it is clear from the said findings that Shri Rakhal Mazumdar had been beaten up and tortured by the police. He vehemently argued that the respondent Nos.3,4 and 5 as well as the then SDO, Amarpur should have been named by Shri Pal in his enquiry report as the persons responsible for the torture and assault of Shri Rakhal Mazumdar and in support of this argument relied on the statements of Shri Rakhal Mazumdar given in the enquiry as well as his affidavit filed before this Court. According to Mr. Das, this Court should direct severe action to be taken against the respondent Nos.3, 4 and 5 as well as the then SDO, Amarpur for such illegal acts of assault on Sriri Mazumdar. Relying on the judgment of the Apex Court in the case of Nilabati Behra vs. State of Orissa, AIR 1993 SC 1960, Mr. Das contended that the detenu's right under Article 21 of the Constitution having been violated by illegal acts of assault on the part of the authorities, the detenu Shri Rakhat Mazumdar was entitled to compensation. He placed before us the photographs, X-Ray reports and Medical. Reports which had been exhibited in the enquiry to show that the injuries suffered by Shri Rakhal Mazumdar on account of the assault by the authorities were of a severe nature. Mr. Das stated that for the treatement of the said injuries, Shri Rakhal Mazumdar had to go to a hospital at Calcutta and could not pursue his profession for several months, and even now Shri Mazumdar is unable to perform some normal acts and suffers from certain disabilities due to the injuries. According to Mr. Pas, Shri Mazumdar had also suffered loss of reputation for which he was entitled to damages. For all these physical injuries, loss of income and damage to his reputation of Shri Mazumdar, Mr. Das suggested an estimate of Rs.5 lakhs as compensation.

4. Mr. AK Bhattacharyya, learned counsel appearing for the State of Tripura did not dispute the findings in the enquiry report but contended that the aforesaid judgment of the Apex Court in the case of Nilabati Behra vs. State of Orissa (supra) would show that the compensation which was awarded by the Supreme Court was exemplary in nature and was awarded for violation of fundamental right to life under Article 21 of the Constitution and it was made clear in the said judgment that the compensation awarded for violation of fundamental rights was distinct from and in addition to the remedy that is available to a party in private law for damages in tort. According to Mr. Bhattacharyya, therefore, while some exemplary compensation may be awarded in case the Court finds that Shri Mazumdar was assaulted or tortured while in custody, damages to the extent of Rs.5.00 lakhs cannot be awarded to him as it was always open for him to pursue his remedy under private law for the damages in tort against which the State was entitled to take the defence of sovereign immunity. Mr. Bhattacharyya stated that pursuant to orders passed by this Court, the State Government of Tripura has already reimbursed to Sri Mazumdar the cost of treatment of his injuries. Mr. Bhattacharyya cited the judgment of the Apex Court in the case of State of Haryana vs. Bhajanlal, AIR 1992 SC 604 and submitted that the High Court should not exceed its jurisdiction while exercising its power under Article 226 of the Constitution when investigation into serious allegations made by the respondent No.5 against Shri Rakhal Mazumdar was pending. Mr. Bhattacharyya also submitted that since the then SDO, Amarpur is not a party in this writ petition, no direction can be issued which would adversely affect this interest. Mr. SN Sarma, learned counsel for the respondent Nos.3 and 4 and Mr. JM Choudhury, learned counsel for the respondent No.5, referred to the findings in the enquiry report in which it is clearly stated that the DM South, SP .South or EDO, Amarpur were not present in the scene of assault or did not cause any harm to the detenu. On the basis of the said findings, they submitted that this Court cannot record a finding that the respondent Nos.3,4 and 5 were responsible for the assault on Shri Rakhal Mazumdar. They contended that this Court cannot exercise its powers in this writ petition as an appellate Court and substitute its own findings for that of the Enquiry Officer. Hence, no action should be ordered by this against respondent Nos.3,4 and 5.

5. We do not agree with the said contention of Mr. Sarma and Mr. Choudhury. The Enquiry Officer was appointed by this Court to enquire into the allegations of assault on Shri Rakhal Mazumdar by some public officers and the Court can always direct further enquiry into the matter if it finds that there are some vital contradictions in the enquiry report and the enquiry is incomplete. None of the parties have disputed the findings of the Enquiry Officer in his report that Shri Mazumdar was mercilessly beaten by the police personnel as a result of which he suffered grievous injuries. The dispute between the parties, however, is on the question as to whether the respondent Nos.3,4 and 5 (the SP, DM and BDO) were in any way responsible for such brutal assault on Sri Mazumdar. The statement of Sri Mazumdar before the Enquiry Officer on which reliance was placed by Mr. B. Das, learned counsel for the petitioners, was to the following effect:

"After half an hour of the drive, the vehicles reached at a place named Gandhari.

There the DM's vehicle overtook the jeep and stopped in its front. Then also I again noticed the registration of the taxi by the head light of the jeep. I also noticed DM, YP Singh, SP, A. Kar and BDO, BM Sinha coming down from the taxi. I was brought down from the jeep at the orders of the DM and SP, 2 persons struck me on my back by lathi and I was ordered to take off my dress. As I was hesitating I was further beaten and DM and BDO also participated in the assault beating me with lathis. The police personnel whom I did not know started abusing me in filthy languages. Being beaten I law down. SP came near me and asked me what I had done against DM and BDO. I stated to him that I only defended Pranamoy Sana who published a news item against DM and BDO and I defended Sri Sana in a proceeding under section 107 CrPC. Sri Kar replied mat I was lying and he had beaten me with lathi on my leg and other parts of my body. I sustained serve injuries on my elbow and on other parts. They beat me mercilessly. Suddenly I felt that my right hand had been fractured."

In his aforesaid statements Shri Mazumdar had implicated respondent Nos.3,4 and 5 in the brutal assault on him and the reason suggested by Sri Mazumdar for such conduct of respondent Nos.3, 4 and 5 is the fact that Sri Mazumdar had defended Sri Pronay Saha who had published a news item against the respondent Nos.4 and 5. This version of Sri Mazumdar has, however been disbelieved by the Enquiry Officer on the ground that he did not mention the names of respondent Nos.3,4 and 5 before Sri Maniram Deb Barma, the Jailer-in-charge of die Udaipur District Jail, whom he met after the assault on 19.1.95 and Sri S. Deb Roy who had examined him on 20.1.95 and that he had only mentioned the name of the respondent No.3 to the correspondent of the 'Dainik Sam bad' who met him on 25.1.93. The Enquiry Officer has also disbelieved the statements of Sri Arun Chandra Bhawmik and Sri AM Lodh, Advocates, who were examined as witnesses before him, to the effect that Sri Mazumdar had mentioned to them that respondent Nos.3,4 and 5 along with other police personnel had physically tortured him at Gandhari on the way to Udaipur from Amarpur on 19.1.93 after his arrest on the ground that in the FAX message which was sent by Sri Bhawmik to the Chief Justice of this Court the name of the respondent No.3 only was mentioned and the names of the respondent Nos.4 and 5 had not been mentioned. The Enquiry Officer has further found that Sri Mazumdar was examined by the Chief Judicial Magistrate, South on 25.1.93 and in his statement before the Chief Judicial Magistrate, South Sri Mazumdarnamed only the respondent No.3 responsible for the assault on him but did not name either respondent No.4 or respondent No.5. At page 40 of the enquiry report the Enquiry Officer has held that it was only Sri Suranjan Das the leader of the police -team escorting Sri Mazumdar after his arrest who was responsible for the brutal assault on Sri Mazumdar and that the respondent Nos.3, 4 and 5 were not in the scene of assault or did not cause any hurt to Mazumdar.

6. From the aforesaid finding of the Enquiry Officer, the Court could have come to the conclusion that respondent Nos.3, 4 and 5 were not in any way responsible for the brutal assault on Sri Mazumdar. But at the end of the report, the Enquiry Officer conies a different finding suggesting that some interested persons may have instructed the police personnel .to mercilessly beat Sri Mazumdar. Relevant portions of the conclusion of the Enquiry Officer at pages 55 and 56 of the Enquiry Report are quoted herein below:

"Summing up the results of the enquiry I beg to say that Sri Rakhal Mazumdar, Advocate of Amarpur, was arrested under NASA at the midnight on 19.1.93 from his residence at Amarpur. A police team was sent by-SP (South) from Udaipur to Araarpur to execute the order of detention. At the time of arrest though Sri Mazumdar did not resist, the police personnel led by Sri Suranjan Das, Inspector of Police", manhandled with him, dragged him to the jeep. He was hot allowed to take any additional garment though if was cold winter night and he was wearing only a lungi, genji, a shirt and a sweater. Thereafter on the way from Amafpur to Udaipur the jeep stopped at Warengbari. Sri Mazumdar was brought down from the vehicle and then he was mercilessly beaten by four police constables, Sri Golam Hossein Bhuia, Sri Pranan Sarkar, Sri Subhas Pal and Sri Dulal Das obviously under instruction of the Inspector Sri Suranjan Das, Sri Mazumdar sustained severe injuries including fracture of his right hand. The DM (South) Sri YP Singh, the SP (South) Sri A. Kar or the EDO Amarpur, Sri BM Sinha were not present at the time and place of arrest of assault. The police personnel seem to have acted with a motive which might have originated from the instruction of some interested persons or from the very nature of the allegation made against Sri Mazumdar in the order of detention. The police personnel, however, refused to involve any other person or authority and tried to justify their actions by bolstering a story that Sri Mazumdar tried to escape from their custody while he was pretending to urinate. The story is not believable for the reasons that all the police personnel had fire arms and lathi and they had a jeep. It is highly improbable that a prudent man would take such an abortive attempt to escape from the custody of a strong police team at mid night in a lonely place with none to help him." (emphasis supplied)

There is thus a clear contradiction in the finding of the Enquiry Officer, on the one hand, that it was Suranjan Das, Inspector of Police who was solely responsible for the assault on Sri Mazumdar by the police personnel and his conclusion, on the other hand, that the police personnel seem to have acted with a motive which might have originated from the instruction of some interested persons. In our view, the finding of the Enquiry Officer that the respondent Nos.3,4 and 5 were not in the scene of assault and did not cause any hurt to Mazumdar, does not altogether rule out the possibility of the involvement of respondent Nos.3,4 and 5 in the assault on Sri Mazumdar in an indirect manner. One of the purposes of the enquiry directed by the Court was to find out the real persons responsible for the brutal assault on Sri Mazumdar, but the findings of Enquiry Officer discussed above clearly show that the enquiry has been incomplete in this regard. This is thus a fit case in which we should direct the State Government to make a further enquiry as to whether the assault on Sri Rakhal Mazumdar was carried out solely on the instruction of Sri Suranjan Das, Inspector of Police, or whether respondent Nos.3,4 and 5 were in any way responsible for the assault on Sri Mazumdar. 7. The next question is as to whether the Court can in exercise of its powers under Article 226 of the Constitution grant compensation to Sri Mazumdar. On this point, Mr. B. Das, learned counsel for the petitioner, submitted a written note citing several decisions, but it is not necessary for us to deal with all the said decisions cited by Mr. Das as in the case of Nilabati Behra vs. State of Orissa (supra) on which reliance has been placed by both Mr. Das and Mr. Bhattacharyya all the previous decisions of the Apex Court on the point have been dealt with at length and it has been held by Verma, J. in paragraph 16 of the judgment as reported in the AIR that the High Court in exercise of its powers under Article 226 of the Constitution can grant compensation in cases of violation of fundamental rights and the State cannot raise the defence of sovereign immunity in such cases. The Supreme Court further clarified in the said case that such compensation granted for violation of fundamental rights is distinct from damages in tort which may be recoverable undet private law through the remedy of a civil suit. This being a proceeding under Article 226 of the Constitution and not a civil suit or an appeal arising out of civil suit, we can grant only compensation for violation of fundamental rights of Shri Rakhal Mazumdar and not any damages that he may have suffered in tort such as loss of reputation etc.

8. Article 21 of the Constitution guarantees to every person that he shall not be deprived his life or liberty without the procedure established by law. As has been held by Dr. Anand, J. in his concurring judgment in the case of Nilabati Behra vs. State or Orissa (supra) in paragraph 30 of the judgment as reported in the AIR the precious right guaranteed by Article 21 of the Constitution cannot be denied to convicts, undertrials or other prisoners in custody except according to the procedure established by law, and the duty of care on the part of the State is strict and admits of no exceptions and the wrongdoor is accountable and the State is responsible for any deprivation of the right of the person in custody except in accordance with the procedure established by law. There is no law which authorised the merciless assault on Shri Rakhal Mazumdar while he was in police custody and such assault was therefore in clear violation of his fundamental right guaranteed under Article 21 of the Constitution for which Sri Mazumdar was entitled to compensation from the State and the State cannot take the defence of soveriegn immunity against such claim of compensation.

9. While determining the quantum of compesntaion for violation of his right under Article 21 of the Constitution, the Court will take into account the injuries and loss that Shri Mazumdar has suffered as a direct result of violation of his said right under Article 21 of the Constitution and will not take into consideration the damages which he may have suffered in tort such as loss or reputation etc. The Enquiry Officer in His report has discussed the injuries that Shri Mazumdar had suffered as direct result of the brutal assault on him on the basis of the evidence that has been adduced before him. Relevant portion of his report from page 20 of the enquiry report is extracted herein below :

"The statement of Dr. Sandip Deb Roy recorded by Sri SM Lodh, Chief Judicial Magistrate, South Tripura, Udaipur on 25.1.93 has been marked as Ext 28. It appears from his statement that the Medical Officer visited the District Jail at Udaipur and examined Sri Rattial Mazumdar. He found swelling on his right elbow, multiple scattered contutions, diffuse contutions and fracture. He advised X-Ray test of his right hand for determining the fracture. Ext 1 series are the 7 (seven) photographs of the detenu taken in the GB Hospital where he was under treatment. The photographs show several marks of injuries on his back, buttock and a fracture on his right hand. Witness No. 5 Dr. Satya Brata Dutta stated that the detenu Sri Mazumdar was under his treatment in the GB Hospital from 25.1.93 to 23.2.93. He found on his body multiple bruises swelling and tenderness of right elbow joint. An urgent X-Ray was done and he found fracture at his right hand. He advised for open reduction of the fracture and internal fixation. In his opinion the fracture was grievous in nature and the injuries could not be self inflicted."

Thus the injuries suffered by Sri Mazumdar were of a grievous nature. Considering the grievdUs nature of the injuries, we accept the statement of Mr. B. Das, learned counsel for the petitioners that as a result of the injuries Shri Mazumdar could not pursue his profession for several months and suffered substantial loss of income. Further Sri Mazumdar's wife, petitioner No.2, resides in the State of Tripura and has been pursuing this litigation sometimes by engaging counsel who have travelled from Agartala to Guwahati. Taking all these facts, we are of the considered opinion that ends of justice would be met if, in addition to the cost of treatment already reimbursed to Sri Mazumdar, the State of Tripura is directed to pay a compensation of Rs. 1 lakh to Shri Mazumdar for violation of his fundamental right under Article 21 of the Constitution.

10. We, therefore, dispose of this writ petition with the direction that for the brutal assault on Shri Rakhal Mazumdar, the State of Tripura will pay to him a compensation of Rs.1 lakh in addition to the cost of treatment already reimbursed to him and would also cause ah enquiry within a period of three months from today as to whether the respondent Nos.3,4 and 5 were in any way responsible for the said brutal assault on Shri Mazumdar by police personnel, In case such enquiry reveals that respondent Nos.3, 4 and 5 were any way responsible for such brutal assault, the State of Tripura would initiate disciplinary proceedings against the said respondents and would be at liberty to recover the compensation to be paid to Shri Rakhal Mazumdar from the salary of the aforesaid respondents. We make it clear that by this judgment we have not expressed any opinion on the merits of PS Case No. 1 (3) of 1993 under sections 448/354/3767 511/506IPC against Sri Rakhal Mazumdar and the investigation and trial of the said case will be conducted by the appropriate authority and the competent Court strictly in accordance with law.