Mishra, J.
1. The appellant herein who has described herself as a domestic servant and her deceased husband as a construction worker, has filed a writ petition, W.P. No. 9195 of 1992 alleging that on 30-5-1992, she and her husband were woken up by the police at about 3.00 a.m. in the night, while they were in a hut near the Dental College at Annamalai Nagar in the District of South Arcot. One of the policemen told her husband to come to the police station. She wanted to know the reason, why policemen took her husband to the Police Station and was told that her husband was wanted for interrogation in connection with a case of theft. In the morning on 30th around 6.00 a.m., she went to her mother-in-law's place, told her about the arrest of her husband and then went with coffee for her husband to the Police Station. An orderly took the coffee for her husband and returned the empty tumbler. He asked her to bring idly for her husband and when she enquired about her husband, she was informed that he (her husband) had been beaten in the night and that he knew nothing else and that she should bring idlies for her husband. In the narration of the events a policeman was identified by her as 'Bhai' and some others either as an elderly policeman, or chokidar or as sweeper at the police station, but incidents thereafter narrated by her disclose as follows :
'In the morning around 6 a.m. (on 31-5-92) I went to my house. By brother-in-law came there and I told him about the detention of my husband. He said that he was also being searched for by the police and he could not go to the station to see my husband. He asked me to take coffee and food for my husband. I went to my mother-in-law's house and took coffee for my husband. I was asked to bring idly for my husband and accordingly I took idlies to the station and I gave them to a slim police constable. He gave them to my husband and returned the vessel and said that I should come back to the station after lunch. I went to my mother-in-law's place to return the vessel and thereafter I went to my house and fell asleep at about 11 a.m.
While I was asleep, I received a sharp lathi blow on my buttocks and when I woke up, I saw the elderly policeman with a lathi standing by my side and before I could stand up he gave several blows on me with his lathi saying 'how dare you asleep when you were told to come back to the police station', and so saying he pulled me out of my hut by my legs. This happened around 1 a.m. I saw two autorickshaws, one with 4 policeman and another with my husband Nandagopal and another person whom I came to know later on as one Subramani. Another policeman gave a blow on my back with his lathi and I ran to the auto in which my husband was sitting and I got into it. We were taken to the police station. In the station my husband and the said Subramani were put in the lock up and I was beaten and pulled by my blouse by the policemen led by the elderly policeman saying why I did not turn up to the station as directed by them and my blouse was torn. I was pushed to a corner. Unable to bear the pain and humiliation I could not control crying. The elderly policeman threatened to kill me if I cried.
In the evening one policeman told me to go home and change my dress and bring food for my husband. While giving food to my husband he said that he would not be freed and the police was threatening to kill him, before 5th June and that it was better that I escaped and went to some safer place. I told him that I was being followed by four or five policemen and I did not know what to do. Suddenly a policeman called Karunanidhi beat me and my husband with a lathi asking us what we were talking. He took my husband and pushed him inside the lock-up room even before he finished eating. I requested the policeman 'Bhai' to let me go home. One of the policemen said that I could be let off but the 'Bhai' policeman said that 'we will let her off after carrying out our plan'. Then two women police came there and I was made to stay in their room along with them.
On 1-6-1992 also police did not free my husband and me, nor did they produce me before the Court. The police told me not to move out. In the evening two women constables came and they were asked by the policeman Bhai whether they had brought saris. When they said 'no' the policeman 'Bhai' told them to go and bring their saris. After sending them, the Bhai policeman called the other policeman and discussed among themselves to pool in Rs. 50/- each. At that time another policeman came there and he was also asked to give Rs. 50/- and when asked what for, something was said secretly to him by the 'Bhai' policeman to which he reacted sharply whether they had no sisters and so saying he went out. I was not allowed to move out of their sight and even when I had to go to toilet one of them would accompany me.
After sometime two policemen took me to the open space (Mutram) inside the police station. Then they brought my husband and in his presence they stripped me naked. My husband cried in anguish and begged the policemen not to spoil me and do any harm to me and tried to resist the police. He was beaten up by the policemen. The co-lock-up prisoner Subramani who was seeing this from inside the lock-up room (the location of the lock-up room is such that one could see from inside what is happening in the mutram) stated 'she is like a sister, don't spoil her'. For this he was given severe beatings. I was tortured and molested by the policemen. They asked me to kiss them and when I refused they beat my husband severely. Unable to see my husband crying in pain and bear the pain due to torture, I obeyed their orders. The elderly policeman pushed me on the ground and inserted his lathi in my private part; I cried in pain. At that time the sound of a motor cycle coming to the station was heard. I was asked to dress up and elderly policeman threatened me that my husband would be killed if I disclosed the incident to anyone. After sometime the women constables who had gone out came back and they were asked to take me inside. I narrated the incident to them and requested them to help me to be let off; they expressed their inability to do anything.
On 2-6-1992 also myself and my husband were not freed; nor were we produced before the Court. My husband was beaten several times in regard to certain alleged theft. My husband pleaded innocence and begged the police to free him. In the evening the Sub-Inspector asked the women constables whether they had seen the film 'Sembaruthi' When they said no, he said that they could go for the movie, and the women police started off for the movie. I ran towards them and fell at their feet and begged them to take me along with them. When they asked the Sub-Inspector whether they could take her with them, he said 'no' and that I was wanted for interrogation. Then the women constables went out.
Thereafter the policemen took me to a room and my husband was also brought there in handcuff. The policemen including the S.I. were drunk. After my husband was brought inside the room, the S.I. bolted the room from inside. Sensing danger from them, myself and my husband begged them not to do any harm to us and leave us. The policemen stripped me naked. My husband fell at their feet and begged them to leave me. The S.I. gave a kick to my husband and pushed him to a policeman who caught him. One of the other policemen inside the room pushed me down and held my hands and another my legs. I cried and begged them to leave me. The S.I. raped me first in the presence of my husband and after him four other policemen who were in the room raped me one after another. My husband was being beaten severely and he was crying for water. The policemen did not give him water. I was not able to stand up. After great effort I got up and got water for my husband. While going towards my husband to give him water the elderly policeman took the water tumbler from me and said that he would allow me to give water to my husband if I kissed him. When I obeyed him, he again tried to spoil me saying that he wanted to have me once again. I resisted him and tried to bite him in anger. He kicked me and pushed me to the ground and again raped me. I got fainted and did not know what happened thereafter.
On 3-6-1992 when I regained consciousness and woke up I found my self half naked and two women constables lying by my side. I went to the S.I. and asked him about my husband. He said that my husband had been taken to the Court and that I could go to the Court and take my husband out on bail. While going to the women constables, I noticed the lock up room and found none inside. When I asked the women constables about my husband, they also told me that he had been taken to the Court. Then they took me in a van and left me in the Chidambaram Town Police Station.
At about 10.30 a.m. a person who had come there told me that my husband had been taken to the Court and I could go to the Court and take out my husband on bail. I did not believe his words and I was going to my house. On my way to the bus stand I was stopped by an autorickshaw driver and asked whether I was the wife of Nandagopal. When I replied yes, he told me that my husband was beaten to death and there was commotion near the Annamalai Nagar Police Station and it was not good for me to go there. Unable to bear the news, I started crying.
I requested the automan to help me to go the Court to meet the Advocate Venkataraman and he took me to the Court where I could not find the Advocate. I started telling people who were there about the murder of my husband and about my rape by the police and someone advised me to go and see the Tahsildar and the automan took me to the Tahsildar's office. I told the Tahsildar about the murder of my husband and the incident of my rape by the policemen. He told me to give a statement to the R.D.O. Then I was taken to the Annamalai Nagar Police Station where police had gathered in large numbers. I fainted when I saw the body of my husband. Then the R.D.O. asked me to give a statement. While narrating the incidents of torture of my husband and of my torture and rape, I fainted twice. Then I was taken to the Government Hospital, Chidambaram and after treatment and R.D.O. recorded my statement. At about 11 p.m. in the night the R.D.O. again sent me to the Government Hospital, Chidambaram.
In the hospital the South Arcot District Secretary of the Communist Party of India (Marxist) K. Balakrishana and his wife Smt. Jansi Rani who is the President of All India Democratic Association came to the hospital to whom I narrated the incident. Later on i.e. 5-6-92 they took me to the Superintendent of Police, South Arcot, who heard me and directed to meet the Assistant Superintendent of Police, Chidambaram.
Accordingly, I met the Asst. Superintendent of Police, Chidambaram, who directed one Ramalingam, S.I. of Police, Chidambaram Town, to record my statement and register my case and take up investigation immediately. However though the offence of my rape and the murder of my husband was clearly mentioned in my complaint the concerned police did not register the case for offences under section 302 and 376, I.P.C. I also understand that an enquiry was started by the R.D.O. in this regard. But I understand that both the investigation under the direction of Asst. Superintendent of Police and the R.D.O. enquiry were stopped on the direction of the Government on the ground that judicial enquiry under the Commission of Enquiry Act has been ordered.
I submit that the judicial enquiry also has not commenced so far. I further submit that as a result of the stopping of the investigation and other regular legal proceedings against the policemen concerned they (concerned policemen) are trying to destroy every evidence of the murder of my husband and my rape.'
For the reason of the above facts and also that some news item appeared in the Bombay edition of a newspaper 'Sunday Observer', dated 21-27 June, 1992, which indicated that the Director General of Police, Tamil Nadu, had made disparaging remarks about the petitioner's/ appellant's character, she has alleged that State's investigation machinery was not inclined to look into her case with an open mind and hence, in the interests of justice, the crime against her husband and against herself by the policemen concerned should be investigated by the Central Bureau of Investigation. She accordingly, thus, has invoked this Court's jurisdiction under Art. 226 of the Constitution of India for a direction to the Central Bureau of Investigation to investigate the crime of murder of Nandagopal, her husband and the rape by the policemen concerned in the police custody in Annamalai Nagar Police Station and there after, to proceed against the guilty persons in accordance with law, as well as for compensation of Rs. 5 lacs. The writ petition was placed for admission before a learned single Judge who ordered as follows :-
'This petition coming on for hearing upon perusing the petition and the affidavit filed in support of W.P. No. 9195 of 1992, on the file of the High Court and the counter-affidavit filed therein and upon hearing the arguments of Mr. N. T. Vanamamalai, Senior Counsel for M/s. Row and Reddy, R. Vaigai, S. Ayyathurai and G. Chamki Raj, Advocate for the petitioner and of Mr. Sriramulu, Public Prosecutor, on behalf of the reaspondents 1 and 2 and Mr. P. Rajamanickam, Central Govt., Public Prosecutor, on behalf of the 3rd respondent, the Court made the following order :-
Having regard to the facts and circumstances of the case and the allegations made in the affidavit filed in support of the writ petition and the counter-affidavit filed by the respondents on behalf of the State, this Court feels and it is a fit and proper case where an highest officer, in the rank of Senior Superintendent of Police, viz., Mrs. Lethika Saran, S.P. (C.B. C.I.D.), Madras, should personally investigate the matter in question, with reference to the custodial death of Nandagopal and with regard to the alleged ill-treatment and rape committed on the petitioner and to submit a report in a period of two months from this date (22-7-1992) and also to initiate the follow up action in pursuance thereof pending further orders in this petition.'
The appellant, however, evidently not satisfied with the above order, moved in appeal invoking Clause 15 of the Letters Patent of this Court. The appeal was first listed before a Bench of the Chief Justice and Venkataswami, J. on 4-8-1992. The Bench ordered as follows :-
'The Government pleader is directed to get Smt. Letika Saran, Superintendent of Police, C.B., C.I.D., present in Court on 18-8-1992 along with all relevant records. The learned counsel for the appellant shall see that the appellant appears before the Investigating Office Smt. Letika Saran, Superintendent of Police, so that the latter may proceed with the investigation. Post on 18-8-1992.'
It is thus that the monitoring of the case, which the learned single Judge ordered, by directing the State to entrust investigation of the petitioner/appellant's case to an Officer in the rank of Senior Superintendent of Police and to report in a period of two months, was taken over by the Bench hearing the appeal, and while Letika Saran, the Superintendent of Police who was asked to investigate the case, was directed to proceed with the investigation, the Court also directed her to be present on the next date, i.e., to say, 18-8-1992 along with all relevant records. The petitioner/appellant was also asked to appear before the Investigating Officer. On 18-8-1992, Srimathy Saran appeared in Court and prayed for 3 months' time of completion of the investigation. Learned Government Pleader filed the report of the Investigating Officer. The Bench ordered as follows :-
'Learned Government Pleader has filed the report of Smt. Letika Saran, Superintendent of Police, Crime Branch-I, C.I.D., Madras, regarding the investigation being conducted by her. Smt. Letika Saran is present in Court. She prays for three months' time for completion of the investigation. Time prayed for is too much. She is allowed time till 16-9-1992. Put up on 16-9-1992.'
Adjournments, however, continued from time to time for the completion of the investigation of the case, when in that course, at one stage, on 16th September, 1992, the matter was placed before a Bench of which one of us was a member (the other Hon'ble Judge has since relinquished office). It would transpire from the order recorded on the said date that two miscellaneous petitions were moved and the Court noted that in course of the monitoring pursuant to the earlier order of the Court in connection with the investigation of the case of the alleged murder of Nandagopal and rape of his wife, the petitioner-appellant, a report had been submitted to the Court by Investigating Officer Srimathy Latika Saran, Superintendent of Police, Crime Branch, C.I.D. and it was stated that the investigation was likely to reach its completion and a reasonable time for the said purpose was asked for. The Bench in its order recorded as follows :-
'After hearing learned counsel appearing for the parties in the case, we are of opinion that expedition alone will generate confidence and advance the cause of justice. At the same time we cannot ignore the fact that the investigating officer must not leave any aspect of the case and should be allowed time to complete the investigation in all respects. Keeping this in view we are inclined to order as follows :
(1) The investigating officer shall submit a report as required under S. 173, Criminal Procedure Code on or before the 9th day of October, 1992 and
(2) The investigating officer shall submit a report accordingly to this Court on or before 12th day of October, 1992.'
The interim petition for compensation was moved and on that, the Court ordered as follows :-
'Since there is a prayer also for compensation and there is a prima facie case as made out in the petition for such a relief that the appellant's husband was a victim of culpable homicide and she, as alleged, was subjected to criminal assault by some policemen it would be fair, in our opinion, before final adjudication that some interim compensation is paid to the appellant. Learned Government pleader has, however, prayed for one week's time to intimate whether the Government intended to pay any interim compensation and accordingly paid or would pay in due time.
The case thereafter was listed before the Bench which had been monitoring the case once again and there are orders in this behalf recorded on several dates including 23-9-1992, 1-10-1992 and 26-10-1992. In the order last cited, the Bench comprising of the Chief Justice and Venkataswami, J. ordered as follows :-
'An affidavit has been filed by Mrs. Latika Saran, Superintendent of Police, Crime Branch, C.I.D., Madras. She has stated that something more is yet to be done, such as obtaining some papers, securing the alleged culprits and subjecting them to identification parade, etc. before filing the charge-sheet. In view of this submission, we allow three weeks' time more for completion of the enquiry fully and take necessary further action in the matter.
2. Learned Counsel for the petitioner has insisted upon for compensation being allowed to the petitioner in view of the fact that the investigating officer has formed an opinion about a prima facie case being made out regarding the petitioner being ravished. The argument has force. This is a case of its own type where not only the allegation is regarding a person losing life while in custody, but also the wife of that man being ravished and thus losing her respect in the society. Learned Government Pleader realising the position wants three more weeks' time to find out if anything can be done without any direction from the Court in that regard. This point shall also be decided on the next hearing. Put up on 18-11-1992.'
The Government Notification appointing a commission of inquiry about which a mention is made in the Writ petition in W.P. No. 9195 of 1992 also, however, has been separately impugned in W.P. No. 10924 of 1992, the challenge being on the ground that the appointment of the commission by the Government vide G.O.Ms. 666, Public Department (Law and Order) dated 17-6-92 was not bona fide and several reasons are stated for the same. A learned single Judge of this Court, however, dismissed the petition holding that the order of appointment of commission by the Government preceded the order of this Court directing the investigation of the alleged offence and thus,
'It is not for this Court now to State that the appointment is not proper and especially when the Court directs investigation by the superior officer there shall not be appointment of Commission of Inquiry to enquire into the very same matter. The Commission of Inquiry appointed by the Government is only a fact finding authority and that will not stand in the way of investigation and the investigation is only as against the officers who were alleged to have committed the offence and the fact finding authority has wider jurisdiction to consider all the aspects of the matters and submit a report and it is for the government to decide and take action if necessary on the basis of the report against such officers. While so, it cannot be said that simply because an investigation is directed by this Court, the appointment of Commission of Inquiry by the fact finding authority is not proper or that the fact finding authority should be prevented from going on with the enquiry as directed by the notification. That apart, it is for the Government to choose the person who is to be appointed as a person of Commission and to use their discretion and it is not for the Court to direct the Government to appoint any particular cadre officer, as the fact finding authority.'
The petitioner/appellant preferred appeal in W.A. 1265 of 1992 and a Bench of this Court comprising of Venkataswami, J. and Swamidurai, J. on 2-12-1991 admitted it for hearing and in C.M.P. No. 13308 of 1992, stayed the Commission from proceeding further with the inquiry. The two appeals, however, were made analogous, for the appellant is the same in the two appeals and although one appeal is in a writ petition for a direction to the Central Bureau of Investigation for investigation and for compensation, and the other for quashing the notification appointing the Commission of Inquiry; the subject-matter of the investigation and the Commission of Inquiry are apparently one and the same. A new twist has, however, come to the matter by an objection on behalf of the State by the learned Advocate-General that the Writ Appeal No. 970 of 1992 itself is not maintainable and that the order passed by the Division Bench on 16-9-1992 without hearing the case fully, cannot be taken as correct. It is not understandable, why a special mention is made to the order dated 16-9-1992, as all orders in the appeal except 16-9-1992 are passed by a Bench of which Venkataswami, J. has been a member, and except for a mention about payment of compensation in the order dated 16-9-1992 that it would be fair that some interim compensation is paid to the appellant before final adjudication, for which purpose the Court only allowed time to the learned Government Pleader to intimate to the Court, whether the Government intended to pay any interim compensation and accordingly, paid or would pay in due time, when the order of the Bench of which Venkataswami, J. was a member, dated 26-10-1992 has been almost an adjudication stating as follows :-
'Learned Counsel for the petitioner has insisted upon for compensation being allowed to the petitioner in view of the fact that the investigating officer has formed an opinion about a prima facie case being made out regarding the petitioner being ravished. The argument has force. This is a case of its own type where not only the allegation is regarding a person losing life while in custody, but also the wife of that man being ravished and thus losing her respect in the society. Learned Government Pleader realising the position wants three more weeks' time to find out if anything can be done without any direction from the Court in that regard.'
It is, however, necessary that we say in particular that we find no defect in the appeal (W.A. No. 970 of 1992) and that the appeal is maintainable, for it is indeed not in doubt and cannot be doubted that the prayer in the writ petition for a direction to the Central Bureau of Investigation to investigate the case has been declined and instead, the Court has directed for entrusting the investigation to an Officer of the rank of Senior Superintendent of Police Mrs. Latika Saran, C.B., C.I.D., Madras. The impugned order has, thus, decided the issue whether investigation should be entrusted to the Central Bureau of Investigation and directed instead the State Police to proceed to investigate the case. The question of maintainability of appeals and as to what is a judgment for the purpose of appeal under Clause 15 of the Letters Patent of this Court, has been so frequently raised in this Court and answered by now, in so many judgments that it has almost appeared unbelievable to us that such an objection has been raised on behalf of the Government of the State. In Shah Babulal Khimji v. Jayaben, : [1982]1SCR187 , it has been stated (at page 1815) :
'Under the Code of Civil Procedure, a judgment consists of the reasons and grounds for a decree passed by a court. As a judgment constitutes the reasons for the decree it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the right of the parties with regard to all or any of the matters in controversy. The concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-section (2) of Section 2 cannot be physically imported into the definition of the word 'judgment' as used in Clause 16 of the Letters Patent, because the Letters Patent has advisedly not used the term 'order' or 'decree' anywhere. The intention, therefore, of the givers of the Letters Patent was that the word 'judgment' should receive a much wider and more liberal interpretation than the word 'judgment' used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a trial Judge would amount to a judgment, otherwise there will be no end to the number of orders which would be appealable under the Letters Patent. It seems to us that the word 'judgment' has undoubtedly a concept of finality in a broader and no a narrower sense.'
After saying so, the Supreme Court has described as to what a final judgment means and what is a preliminary judgment, which is appealable and proceeded to say that there are intermediary or interlocutory judgments, which in a given circumstance, are appealable. The test, however, which they have indicated, is stated by the Supreme Court in the following words (at page 1816) :-
'...... every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decided matters of moment or affect vital and valuable rights of the parties and which works serious injustice to the party concerned.'
In the case of Radhika Konel Parekh v. Konel Parekh, : AIR1993Mad90 , a Division bench of this Court and in the case of Loyal Textile Mills Ltd. v. Allenberg Cotton Company Ltd., 1991 (1) LW 132, a Full Bench of this Court has reiterated this aspect of the law and stated that for the purpose of Clause 15 of the Letters Patent, any order or adjudication need not have a particular form or shape, but it should decide matters of moment or affect vital and valuable rights of the parties and if such orders work serious injustice to the party concerned, they are judgments for the purpose of Clause 15 of the Letters Patent of this Court. This is what the Supreme Court has said in the case of Shah Babulal Khimji v. Jayaben, : [1982]1SCR187 and reiterated in Jugal Kishore Paliwal v. S. Sat Jit Singh, : (1984)1SCC358 , and this is the law that this Court has followed throughout.
2. We must, however, appreciate the attitude, that has taken this case out of the usual technicalities, of the learned Advocate-General who has appeared for the respondents as well as learned Additional Public Prosecutor and learned senior counsel Mr. N. T. Vanamamali and Miss Vaigai for the petitioner/appellant. As a result of the directions of this Court and the monitoring, it has been possible to ensure the completion of the investigation and submission of a charge-sheet, as a result of the investigation by the Investigating Officer, Mrs. Lathika Saran, Superintendent of Police on 18/11/1992 before the Judicial Magistrate No. I, Chidambaram. It appears from the order of the learned Magistrate dated 3/2/1992 that a petition was filed on her behalf before the Magistrate alleging that Police was not investigating the case properly, that she had filed a writ petition praying for investigation by the Central Bureau of Investigation into the allegation of the death of her husband, and the allegation that she had been raped in the Police Station and for other reliefs and being aggrieved by the order in the writ petition directing Mrs. Latika Saran, C.B. C.I.D., Madras, to investiage, she had filed a writ appeal (W.A. No. 970 of 1992) and in that also, she is directed to continue with the investigation. Since, however, she (petitioner) was interested in a proper investigation before taking the charge-sheet on file and before the Magistrate forming any opinion on it, she asked for permission to peruse all the documents relating to the case and opportunity to put forth her case. Learned Magistrate, however, after hearing learned counsel for the petitioner, learned Assistant Public Prosecutor No. I, Cuddalore and also a counsel for the accused persons, has declined to give to the petitioner permission to peruse the documents relating to the case, to direct any further investigation and take cognizance of the offence, but, has, however, said as follows :-
'From this I hold that there is no sufficient basis for further investigation in this charge-sheet. Further the petitioner cannot obstruct the right to speedy trial of the accused who are under suspension. Further these charge sheet were taken on file without prejudice to final orders from the High Court. Therefore even if the High Court gives directions there is sufficient time to file additional charge-sheet under S. 173(8), Cr.P.C.
After considering all the aspects of this case independently and without any bias. I am satisfied that without prejudice to the High Court order, these two chargesheets may be taken on file.'
A copy of the Magistrate's order has been produced before us along with an English translation. We have, however, not been able to see in this order any attempt made by the learned Magistrate to consider the report submitted by the Police along with all relevant materials including examination of the case diary to see the statement recorded by the Police under section 161 of the Code of Criminal Procedure. What a Magistrate has to do after receiving a report under section 173(2) of the Code of Criminal Procedure, has been stated by now so may times by the Supreme Court and the High Courts including this Court, and it is always a surprise when a Magistrate is found not following the rule laid down by the Supreme Court in this behalf and reiterated in the various pronouncements of the High Courts including this Court. In Abbinandan Jha v. Dinesh Mishra, : 1968CriLJ97 , the Supreme Court stated with reference to the provisions of the old Code of Criminal Procedure, Section 190, that when a final report is received by a Magistrate, he is free to differ with the conclusions of the Police, that he can take cognizance of the offence as found by him and on the basis of the report and the materials furnished by the Police in support of the report, can direct for reinvestigation. In Abbinandan Jha's case, the Supreme Court observed as follows at page 102 (of Cri LJ) :-
'There is certainly no obligation on the Magistrate to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police to take congnizance, under S. 190(1)(c) of the Code. That provision in our opinion is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police either wantonly or through bona fide error, fail to submit a report setting out the facts constituting the offence.'
A reading of the judgment of the Supreme Court, however, created an impression that a Magistrate, when he differed from the report of the Police, has as a rule to order re-investigation. A Full Bench of the Patna High Court in Kuli Singh v. State (SB), : AIR1978Pat298 has set this controversy at rest, stating as follows at page 1581 (of Cri LJ) :-
'There is no doubt the Supreme Court observed in that case that a Magistrate may take cognizance in terms of S. 190(1)(c) of the Code, but it does not lay down that in terms of S. 190(1)(b), a Magistrate has no jurisdiction to issue processes against persons not sent up for trial. All that is laid down is that out of several options open, it is open to a Magistrate to act in terms of S. 190(1)(c) and summon the accused. The Supreme Court in that case did not apply itself to the question whether S. 190(1)(b empowered a Magistrate to differe with the conclusion of the police in a final report and issue processes against the accused. It only laid down that S. 190(1)(c) provided an obvious answer to the contention raised in that case and therefore, Abbinandan Jha's case cannot be held to be an authority for the proposition that in terms of Section 190(1)(b) a Magistrate has no jurisdiction to issue process, differing with the police report.'
In the judgment, it is further stated,
'Thus Abbinandan Jha's case (supra) can not be an authority for the proposition that while acting in terms of S. 190(1)(b the only jurisdiction that a Magistrate has is to order re-investigation. How ridiculous the position would be can be appreciated if it is considered as to what a Magistrate would be required to do if the investigation was complete in all respects. Would a Magistrate be still expected to order re-investigation and not differ with the conclusions of the police That would be a fruitless exercise - the police reporting that there was no evidence against a particular accused and the Magistrate holding that there was evidence prima facie and yet having no jurisdiction to put the accused on trial.
That would create a deadlock no postulated by the Cr.P.C. That would militate against the basic principles of Criminal Jurisprudence under which, not the police, but a Magistrate, alone is the ultimate arbiter of deciding who should be summoned to meet the charge.'
What is emphasized, however, both in the above mentioned judgment of the Supreme Court, which has been subsequently reiterated in several other judgment and the Special Bench judgment of the Patna High Court, is that a Magistrate has to satisfy himself in all respects of a report submitted by the Police and in this he shall not be guided by the opinion of the Police. He shall exercise his jurisdiction to see the report and the evidence for the formation of the opinion whether there are facts disclosed in the report, which constitute an offence and if such facts are found in the report and the materials furnished by the Police along with the report, to decide what offences are disclosed, he shall also see the proposed evidence and if there is such evidence against a particular accused, whether forwarded by the Police or not, may summon him to take the charge in accordance with law and in case materials and proposed evidence are inadequate, to order for re-investigation and if there is no such evidence, to record accordingly. The informant's position and the role at the stage of the report of the Police to the Magistrate under S. 173(2) of the Code of Criminal Procedure, can be appreciated by a prescription in this behalf in S. 173(2)(ii), which says,
'The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.'
In Bhagwant Singh v. Commr. of Police, : 1985CriLJ1521 , the Supreme Court has noticed as follows at page 1523 (of Cri LJ) :-
'Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section 2(i) of S. 173 comes up for consideration by the Magistrate, one of the two different situation may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things; (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of S. 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses; (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report, the informant would certainly be prejudiced because the First Information Reports by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant is prompt and effecting action being taken on the First Information Report lodged by him is clearly recognised by the provisions contained in sub-section (2) of S. 154, sub-section (2) of S. 157 and sub-sec. (2)(ii) of S. 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issued process, because that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section 2(i) of S. 173, the Magistrate is not inclined to take cognizance of the offence and issued process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the the Magistrate to whom a report is forwarded under sub-section (2)(i) of S. 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under sub-section (2)(i) of S. 173 and if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate.'
Bhagwant Singh's case (supra) is also an authority for the proposition that there is no obligation under the Code of Criminal Procedure or from the principle of natural justice on the Magistrate to issue notice to the injured person or to a relative of the deceased in a case of murder/culpable homicide for providing such person an opportunity to be heard at the time of consideration of the report, unless such person is the informant who has launched the first information report. Even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. In the words of the Supreme Court at page 1524 (of Cri LJ) :-
'The injured person or any relative of the deceased though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if the otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him. We may also observe that even though Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the deceased, he may in the exercise of his discretion, if he so thinks fit, give such notice to the injured person of to any particular relative or relatives of the deceased, but not giving of such notice will not have any invalidating effect of the order which may be made by the Magistrate on a consideration of the report.'
Two situations noticed by the Supreme Court for reading in S. 173(2)(ii), not only of requirement of service of a copy of the report by the Office submitting the report upon the first informant, but also a requirement of notice by the Magistrate of the date for the consideration of the report as well, however, should not be understood that when a police report as to commission of an offence is received and the Magistrate decides to take cognizance of the offence reported by the Police, there may not be any occasion for a prejudice to the cause of the informant and a need of a notice and a hearing of the informant by the Magistrate on the report may not arise. We can take the case in hand as an illustration. The petitioner/appellant herein is the informant. She has been complaining against the Police and repeatedly saying that she has apprehensions of the Police not properly investigating the case. After completion of the investigation, however, when report is submitted to the Magistrate by the Police, she files a petition and says that the Police has omitted to report about the offence under Section 302, I.P.C. and other similar offences, and has deliberately converted a major offence of homicide into a minor offence of assault. Her protests were or are before the Magistrate who has, as we have already noticed, a duty to consider the report and other materials including the evidence collected by the Police in course of the investigation and to form his opinion as to the commission of offence. The Magistrate may, on a consideration of the report and other materials and evidence, disagree with the report and may take the view that there is sufficient ground for proceeding for the major offence and not the minor offence reported by the Police. In any case, since the law has commanded the Magistrate to issue notice and give opportunity of being heard to the informant, the Magistrate cannot postpone the hearing on the objections of the petitioner/appellant as to the report of the police for a later date. The petition that the appellant filed in the Court of the learned Magistrate, in which she stated that her husband had been murdered and that the police not submitted a proper report of investigation in this regard, was a complaint of the commission of an offence by certain persons, for which, information had been launched with the Police, but the police had not reported about it. Section 210 of the Code of Criminal Procedure states as follows :-
'210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence. - (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out or the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.'
The Code of Criminal Procedure has defined a complaint to mean any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code that some person whether known or unknown, has committed an offence, but does not include a police report. Section 200 of the Code says, if a complaint is made to a Magistrate for action under the Code against some person who is alleged to have committed an offence, the Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witness present, if any, and the substance of such examination shall be reduced to writing and shall be singed by the complainant and the witness and also by the Magistrate. If the allegation in the complaint appeared to constitute an offence exclusively triable by a Court of Sessions under section 202 of the Code, injury is contemplated in these words :-
'202. Postponement of issue of process. - (1) Any Magistrate, on receipt of a compliant of an offence of which he is authorised to take cognizance or which has been made over to him under section 192 may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding :
Provided that no such direction of investigation shall be made, -
(a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) Where the complaint has not been made by a Court, unless the complainant and the witnesses presents (if any) have been examined on oath under section 200.
(2) In an inquiry under sub-section (1) the Magistrate may, if he thinks fit, take evidence of witness on a oath.
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath.'
We have dilated a little into this aspect of the case, for in a case where a serious charge of murder is levelled by the informant, but the Police has found only minor allegations established and informant has knocked the Court's doors more than once for justice, if Magistrate fail to act as required by law and show no concern to the adherence of the commands of law, they shall even if they do justice quite rightly, give opportunity to the detractors of the system to blame it. The Magistrate was duty bound to ensure that a copy of the report was served upon the informant (appellant herein). That apparently was not done. The Magistrate was duty bound to given notice to the informant. He did not do that. The Magistrate was required to consider the report and the materials collected by the Police and the statements in the case diary (statement under section 161 of the Code of Criminal Procedure) and to afford opportunity of hearing at this stage to the informant. There appears, however, a compliance of at least the opportunity of being heard extended to the petitioner/appellant by the learned Magistrate. He has passed order in Miscellaneous Petition No. 4040 of 1992 filed on behalf of the petitioner/appellant before him and, taken cognizance of the offences allegedly committed by the persons forwarded by the Police. The grievance of the petitioner/appellant, however, that her husband has been murdered by certain Police personnel, it appears, has been rejected by the learned Magistrate without treating the petition No. 4040 of 1992 as a complaint and without examining the complainant on oath and taking the evidence of the witnesses of the complainant/appellant under section 202(2) of the Code of Criminal Procedure.
3. We are, however, informed at the Bar by the learned Additional Public Prosecutor that after cognizance of the offence by the learned Magistrate, the stage has reached for supply to the accused of copy of Police report and other documents. Learned Additional Public Prosecutor has already made a copy of the police report available to the learned counsel for the appellant. Learned counsel for the appellant has already been permitted inspection of all the materials including the case diary. We find from the order of the learned Magistrate that he has noted that the case reported by the Police is exclusively triable by the Court of Session. The case now after supply of copy of Police report and other documents to the accused, shall be posted for order of commitment under section 209 of the Code of Criminal Procedure. The Scheme of the law as envisaged in these provisions of the Code of Criminal Procedure shows that the Committing Magistrate has no power to discharge the accused at this stage, nor has he power to take oral evidence where a specific provision like Section 306 enjoins. It is also not open to the Magistrate at this stage to launch on a process of satisfying himself that a prima facie case has been made out on the merit. In Sanjay Gandhi v. Union of India, : 1978CriLJ642 , it is stated that at page 643 (of Cri LJ) :-
'....... the narrow inspection hole through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case as disclosed by the police report appear to the Magistrate to show an offence triable solely by the Court of Session.'
The Supreme Court has observed at page 643.
'If made-up facts unsupported by any material are reported by the police and a Sessions offence is made to appear it is perfectly open to the Sessions Court under S. 227, Cr.P.C. to discharge the accused. This provision takes care of the alleged grievance of the accused.'
In Hareram v. Tikaram, : 1978CriLJ1687 , it has been pointed out by the Supreme Court that at page 1689 (of Cri LJ) :
'Under S. 190 of the Code of Criminal Procedure the Magistrate takes cognizance of an offence made out in the police report or in the complaint and there is nothing like taking cognizance of the offenders at that stage, as to who actually the offenders involved in the case might have been, has to be decided by the Magistrate after taking cognizance of the offence.'
From a reading of the facts of this case, in the light of the aforementioned two judgments of the Supreme Court, it is clear that the Magistrate has exhausted the task of taking cognizance under Section 190 of the Code on the Police report, but he has not done so on the complaint of the informant, which complaint has been disposed of by him only as a protest to the police investigation. It is, therefore, open to the informant, if so advised, to file a proper petition of complaint, if any offence has been omitted in the police report or any accused has been left out. It is also clear that not much is possible at the stage of Section 209, narrow inspection by the Magistrate, but, as has been said in the case of Sanjay Gandhi supra and Hareram Satpathy supra, it is open to the Court of Sessions on committal of the case to it to discharge the accused, if upon consideration of the record of the case and documents submitted therewith and after hearing the submissions of the parties, it considers that there is no sufficient ground for proceeding against the accused. As a corollary, it is open to the Court of Sessions on committal of the case to it to charge the accused or such offence, which are found upon consideration of the record of the case and documents submitted therewith, after hearing the submissions of the parties. The appellant who is the informant will have one difficulty in the Court of Sessions. The trial will be conducted by a Public Prosecutor and not by the counsel of the informant (see Section 225 of the Code of Criminal Procedure). Section 301 of the Code says,
'(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.'
Under sub-section (2) of Section 301,
'If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.'
We do not anticipate, however, that the Public Prosecutor who shall conduct the case after commitment in the Court of Sessions, shall have any reluctance in accepting the instructions of the informant through her counsel and giving proper directions to the counsel appointed by the informant to act in the best interest of the Prosecution. The two, i.e. to say, the Public Prosecutor in charge of the case and the Pleader instructed by the informant do not stand as adversaries, as informant is interested in prosecution, so is the State, which has been made under the law of the land responsible to appoint Prosecutors and ensure that criminal administration of justice in the State does not suffer for the reason of any irrelevant or extraneous consideration.
4. We have not referred to the contents of the counter-affidavit of the respondents, who, have in course of the proceedings, said in no uncertain words that the State police machinery would maintain its competency and integrity, even though in the instant case, some police personnel are involved and the Director General of Police, Mr. Sripal has in particular denied the allegation that he had made any statement as published in the newspaper 'Sunday Observer'. Notwithstanding, however, the stand of the respondents, this Court in the writ petition as well as writ appeal ordered for investigation by a Senior Officer and the same has, as stated above, resulted in the action in the Court. We are informed at the Bar that all persons who have been forwarded by the Police in the chargesheet, are presently under suspension from service. They are presently released on bail and thus, under the orders of the Court to be present as and when required in accordance with law. In the proceedings, there is no reason, therefore, for any delay in the commitment order under section 309 of the Code of Criminal Procedure and the charge in the Court of Sessions. On the facts and in the circumstances of the case, therefore, it can be inferred that the petitioner/appellant has achieved the purpose of her complaint before the Police by a report acknowledging commission of offences by the police personnel and cognizance of the offences under section 376, I.P.C. etc. by the Court of the learned Magistrate. In her complaint, however, she has made a grievance of certain Additional Superintendent of Police meeting her and giving some instructions, but has made no specific allegation of any offence against him. Her complaint, however, has been that her husband was done to death in the Police Station by several police personnel, besides her case that she was kept in wrongful confinement and physicially assaulted by the policemen. Mainly, therefore, for the reason of her grievance that the Investigating Officer has not found her case of her husband having been done to death in the Police Station, supported by evidence and accordingly, not mentioned any such charge in the police report that a protest petition was filed in the Court before the learned Magistrate and arguments on her behalf were made before the learned Magistrate. We have already noticed that learned Magistrate has not treated the said petition as a petition of complaint in Court. The appellant, if so advised, can prefer a complaint in Court and when such a complaint is preferred in Court, the Court shall be duty bound to proceed, as provided under sections 200 and 202 of the Code of Criminal Procedure. Her counsel can appear and function under the directions of the Public Prosecutor in the Sessions Court and accordingly, pass on her instructions about the alleged homicide to the Public Prosecutor. The Public Prosecutor shall bring to the notice of the Sessions Court and the Sessions Court shall apply its mind to the evidence, which the Prosecution shall propose to prove the guilt of the accused and frame charge or discharge the accused in accordance with law only after seeing whether there is such evidence which, if not rebutted, would lead to conviction. In State of Bihar v. Ramesh Singh, : 1977CriLJ1606 , the law on the subject has been stated that at page 1607 (of Cri LJ) :
'Under S. 226 of the Code while opening the case for the prosecution the prosecution has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under S. 227 or S. 228 of the Code. If the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing, as enjoined by S. 227. If, on the other hand, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which is exclusively triable by the Court, he shall frame in writing a charge against the accused.'
The Supreme Court has then said,
'Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecution proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S. 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under S. 227 or S. 228, then in such a situation ordinarily and generally the order which will have to be made, will be one under S. 228 and not under S. 227.'
We have quoted in extenso from the above citation only to re-assure ourselves that a certain charge which may flow from the evidence, which the prosecutor shall propose to lead in the Court, shall not be omitted, merely because in the order taking cognizance or the order of commitment, the said charge is not mentioned. We are, for the above reason, of the opinion that Writ Appeal No. 970 of 1992 and Writ Petition No. 9199 of 1992 have substantially achieved their purpose. A rule as to compensation at the beginning of the prosecution awarded to a victim, who otherwise will be required to take recourse to proceedings by way of a suit for damages or receive any compensation at the conclusion of the trial, has been recognised by Courts in India as a rule of justice and fair play. The Apex Court, in the case of Rudul Sah v. State of Bihar, : 1983CriLJ1644 ordered for payment of compensation to the victim of an unjust detention, observing as follows (at page 1646 of Cri LJ) :-
'................. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21, which guarantees a right to life and liberty will be denuded of its significant content if the power of the Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Art. 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative selerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country, as it has perished in some others too well known to suffer mention it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers.'
In Sebastian M. Hongroy v. Union of India : 1984CriLJ830 , the Apex Court ordered for payment of compensation to the wife of the victim who suffered torture, the agony and the mental oppression and in Bhim Singh v. State of Jammu & Kashmir, : 1986CriLJ192 , it said as follows (at page 196 of Cri LJ) :-
'We do not have the slightest hesitation in holding that Shri Bhim Singh was not produced before the Executive Magistrate First Class on 11th and was not produced before the Sub-Judge on 13th. Orders of remand were obtained from the Executive Magistrate and the Sub-Judge on the application of the police officers without the production of Shri Bhim Singh before them. The manner in which the orders were obtained i.e., at the residence of the Magistrate and the Sub-Judge after office hours, indicates the surreptitious nature of the conduct of the police. The Executive Magistrate and the Sub-Judge do not at all seem to have been concerned that the person whom they were demanding to custody had not been produced before them. They acted in a very casual way and we consider it a great pity that they acted without any sense of responsibility or genuine concern for the liberty of the subject. The police officers, of course, acted deliberately and mala fide and the Magistrate and the Sub-Judge aided them either by colluding with them or by their casual attitude. We do not produced either before the Magistrate on 11th or before the Sub-Judge on 13th, though he was arrested in the early hours of the morning of 10th. There certainly was a gross violation of Shri Bhim Singh's constitutional rights under Arts. 21 and 22(2).
(At page 197) :
We can only say that the police officers acted in a most high-handed way. We do not wish to use stronger words to condemn the authoritarian acts of the police. If the personal liberty of a member of the Legislative Assembly is to be blamed within this fashion, one can only wonder what may happen to lesser mortals; Police officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to such bizarres acts of lawlessness. Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct. However the two police officers the one who arrested him and the one who obtained the orders of remand, are but minions, in the lower rungs of the ladder. We do not have the slightest doubt that a responsibility lies elsewhere and within the higher echelons of the Government of Jammu and Kashmir but it is not possible to say precisely where and with whom, on the material now before us. We have no doubt that the constitutional rights of Shri Bhim Singh were violated with immunity. Since he is now not in detention, there is no need to make any order to set him at liberty, but suitably and adequately compensated, he must be. That we have the right to award monetary compensation by way of exemplary costs or otherwise is now established by the decisions of this Court in Rudul Sah v. State of Bihar, : 1983CriLJ1644 and Sebastian M. Hongray v. Union of India : 1984CriLJ830 . When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious interest and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case. We direct the first respondent the State of Jammu and Kashmir to pay to Shri Bhim Singh a sum of Rs. 50,000/- within two months from today. The amount will be deposited with the Registrar of this Court and paid to Shri Bhim Singh.'
One of us has considered this aspect of the law in the case of Mrs. Meera Nireshwalia v. The State of Tamil Nadu, and stated, besides ordering compensation as follows (at page 2410 of Cri LJ) :-
'I would have parted with this case by awarding a monetary compensation to the petitioner, about which I shall be making specific order a bit later, had I not taken notice of the indifference of the State of Tamil Nadu in making attempts to implement the laws and ensure that its police personnel behave as policemen should behave. I am making these observations not on the basis of what I have noticed in the conduct of the fourth or the fifth respondent only. I am compelled to make these observations because of the affidavits filed on behalf of respondents 1, 2 and 3. They appear to think that their duty is over by looking into the record and justifying the conduct of the fifth and fourth respondents. They forget that as a welfare State they are duty bound to see that their officials do not transgress laws but as custodians of law as they are expected to act and not as those who use law as a weapon to deprive a citizen of his/her liberty.'
The Supreme Court has in the case of Saheli, A Women's Resources Centre v. Commr. of Police, Delhi, : AIR1990SC513 , has considered the case of two women who were severely beaten up by the landlord of the house in which they were living, in collusion with the Station House Officer (The Head of the Police Station). The Supreme Court has in that judgment said that a State is liable for tortuous acts of its employees and that for police atrocities, the State should pay compensation to the victims. Pending adjudication of damages, therefore, interim compensation ex debito justitiae should be ordered by the Court. In Re : Death of Sawinder Singh Grover, 1992 (6) JT (SC) 271, the Supreme Court has ordered for compensation in a case where the facts and circumstances created a prima facie case for investigation and prosecution, saying as follows :-
'It is not disputed that the matter has not yet been finally investigated. The learned Attorney General assisting us in this case states that he does not accept the findings of the report and he reserves his right to challenge the same at the appropriate stage. We are of the view that the facts and circumstances which have now come to light create prima facie case for investigation and prosecution. We, therefore, direct that all the persons named in the report of the learned Additional District Judge and others who are accused for the appropriate offences under the law by the Central Bureau of Investigation. We direct the CBI to ensure that a FIR is registered on the facts as emanate from our order and the report of the learned Additional District Judge. A copy of the report along with all the annexures be sent to the Central Bureau of Investigation. As an interim measure by way of ex gratia payment, we direct that a sum of Rs. 2,00,000/- (Two lakhs) shall be paid by the Union of India/Directorate of Enforcement to the widow of the deceased Sawinder Singh. In the event a suit being filed for compensation, appropriate compensation may be determined in accordance with law after hearing the parties. The contentions of the learned Attorney General which he wishes to place before us to this stage, should be reserved by him for an appropriate stage. In the event of a decree to be passed, the sum of Rs. 2,00,000/- to be paid ex gratia, shall not be taken into account. The payment of rupees two lakhs shall be made within three months from today. The amount shall be deposited in the Registry of this Court and the widow of deceased Sawinder Singh shall be at liberty to withdraw the entire amount on the identification to the satisfaction of the Registrar (Admn.). Any observation made by us in this order will not affect the investigation, prosecution and the trial. Notice is disposed of by us.'
In the instant case, it can be said without fear of contradiction that at least, there is a prima facie case of the appellant having been criminally assaulted at the Police Station and ravished to suffer not only physically, but also mentally. The scar caused by body wound may heal up, but the agony of having been ravished may not easily leave the appellant. We are, however, recording with satisfaction that the Government of the State has come forward with an interim compensation of Rs. 1,00,000/- to the appellant, subject to her right to sue in accordance with law for any further damages and subject to the right of the State to realise from the culprits who abused their position as the servants of the State Government and irrespective of the result of the prosecution. The appellant, we are informed, is in her twenties and does not have sufficient education to manage her financial affairs. Her husband having been killed or died, she is alone. There is none else to look after her. The State Government has offered a suitable employment to the appellant and if the appellant so desires, a residence in one of the homes run by the State. The employment, we hope, shall provide to the appellant money as emoluments per month, which may be enough for her needs of food and clothes. The appellant has at the moment no scheme of investment of the said amount of Rs. 1,00,000/- which the State Government has agreed to pay as compensation to her. It is not known who shall guide her and those who guide her, shall have only her interests in the mind, when she will be possessing some wealth. We are inclined, therefore, to direct the 1st respondent State of Tamil Nadu by the Secretary to Government, Home Department, to invest the said sum of Rs. 1,00,000/- in the name of the appellant in one of the State Government undertakings deposit schemes, which guarantees maximum rate of interest per month payable to the depositor (i.e., to say the appellant). The investment should be made before 1st of April, 1993 so that the first instalment of interest will become due on the 1st of May, 1993. The appellant shall furnish her permanent address and other details needed for deposit and the address at which the interest on the deposit in her name will be paid to her, within one week from today to the Secretary to Government, Home Department. On maturity of the deposit, the 1st respondent shall be entitled to a re-investment and continue such re-investment of the amount with any further interest or bonus not paid to the appellant, until the appellant attains the age of 58 years, subject, however, to any further or fresh order of the Court, in this behalf.
5. With the observations and directions as above, writ Appeal No. 970 of 1992 as well as Writ Petition No. 9195 of 1992 are disposed of.
6. Writ Appeal No. 1265 of 1992 has been preferred against an order passed in W.P. No. 10924 of 1992. The writ petition is directed against the notification under S. 3(1) of the Commissions of Inquiry Act, 1952 (Central Act 60 of 1952) with the following terms of reference, viz.,
'(i) To inquire into the allegation of death of Thiru Nandagopal, son of Thiru Ramasamy in the police custody in Annamalai Nagar Police Station at Chidambaram Town, South Arcot District on the 3rd June, 1992;
(ii) To inquire into the allegation of rape of Smt. Padmini, wife of Thiru Nandagopal by the policemen in Annamalai Nagar Police Station at Chidambaram Town, South Arcot District on the night of 2nd June, 1992;
(iii) If the allegations are found true, to identify the police personnel responsible for the same and to fix responsibility upon the police personnel involved in crime and suggest appropriate action to be taken against the culprits; and
(iv) To suggest necessary measures to ensure that such untoward incidents do not occur in future.
The main ground of attack is that the allegation of death, which, according to the petitioner/appellant, is the allegation of murder of Nandagopal in the police custody, and the allegation of rape of the appellant, are matters of a police investigation, which has now been concluded in the submission of charge-sheet and cognizance by the Court of Judicial Magistrate-I, Chidambaram. The effect of the submission of the charge-sheet and the proceedings in the Court have been fully dealt with by us in our judgment in W.A. No. 970 of 1992. When it has, however, transpired in the course of the arguments that any inquiry by the Commission into the reference and its conclusions will have no effect on the judicial proceeding initiated on the basis of the report under S. 173(2) of the Code of Criminal Procedure in the Court and the reference of the term seeking suggestions as to appropriate action to be taken against the culprits, therefore, will have no connection with the judicial proceedings in the Court, learned counsel for the appellant has sought permission to withdraw the appeal as well as the writ petition. The prayer is allowed. The appeal and the writ petition are dismissed as withdrawn. The stay ordered in C.M.P. No. 13308 of 1992 stands vacated. There will be no order as to costs in both the writ appeals.
7. Order accordingly.