JUDGMENT <NAME>, C.J.

1. This reference to a Full Bench has been made for a decision on the correctness of the <ORG> ruling in <ORG> v. <NAME> [1990] 1 KLT 10. The point in issue is whether in view of the provisions of Section 96(2) and (6) of the Motor Vehicles Act , 1939, it is open to the insurer to rely on a "reservation clause" in the policy and then to raise all the defences open to the insured against the third party, in an action for compensation filed by the third party. The respondents-claimants contend, on the basis of the ruling in <NAME>'s case  1 KLT 10, that, notwithstanding the existence of any "reservation clause" in the policy, it is not permissible for the insurer to either contend that there is no negligence on the part of the insured or that the quantum of compensation awarded against the insured is excessive even when the quantum is within the statutory limits in Section 95(2) . It is true that the ruling in <NAME>'s case  1 KLT 10 supports the respondents' case for saying that in spite of a "reservation clause" the insurer cannot take such defences before the <ORG> or file an appeal against the award raising such pleas. The decision states that Section 96(2) and (6) of the Act permit only certain specific defences to be taken by the insurer and that the said defences are exhaustive. It further says that it is only in the limited class of cases where Section 110C(2A) applies that the insurer can raise defences other than those stated in Section 96(2) . Section 110C(2A) permits the insurer to take all defences when it is impleaded suo motu by the <ORG> upon being satisfied that there is collusion between the claimants and the insured or where the insured is ex parte. The question is whether Section 96(2) and Section 110C(2A) are exhaustive and whether the insurer can, when there is a "reservation clause", raise all pleas available to the insured including pleas of want of negligence of the insured or that the award is excessive.

2. The contention on behaif of the insurer by learned counsel, <NAME>, is that Section 96(2) and Section 96(4) deal with cancellation or avoidance of a contract of insurance, He submits that when an insurer accepts the policy but denies liability under the policy, on the basis of a "reservation clause" in the policy, Section 96(2) and (6) cannot come in the way. It is also argued that Section 110C(2A) is only an enabling provision and that, if there is a "reservation clause" in the policy, the insurer can take all defences open to the insured against the claimants-even if there is no collusion between the insured and the claimants and even if the insured is not ex parte as stated in Section 110C(2A) . It is argued, therefore, that the insured could, in view of the "reservation clause", contend that there is no negligence on the part of the insured or his servants or that the quantum of compensation is on the high side, even though it is within the upper limit mentioned in Section 95(2) .

3. On the other hand, it is contended for the claimants by Sri <NAME>, Sri <NAME>, Sri <NAME> and others that Section 96(2) bars the insurer from raising the above contentions. It is also contended that except in the cases specified in Section 110C(2A) , the insurer cannot raise defences other than those stated in Section 96(2) . Reliance is also placed on Section 96(1) , Section 96(3) and Section 96(4) to say that the insurer is bound to pay the entire award amount and is then to recover excess from the insured. It is also pointed out that in some of these cases before us, extra premium is paid by the insured to make the insurer liable for an "unlimited" sum and, therefore, the appeals have to be dismissed without going into any question of negligence or correctness of the quantum of compensation.

4. On the basis of the above contentions, the following points arise for consideration :

(1) Whether, in a case where the insurance policy contains a reservation clause, the insurer can raise defences, other than those mentioned in Section 96(2) , in its own name ?

(2) Whether, in a case where the insurance policy contains a reservation clause, the insurer can raise all defences, even though the case is not one falling under Section 110C(2A) where there is collusion between the insured and the claimants or one where the insured has remained ex parte ?

(3) Whether, in view of Section 96(1) and 96(3) , the third party claimants could recover the total compensation amount from the insured leaving it to the insurer to recover any excess from the insured ?

(4) Whether, in a case where, on account of extra premium paid by the insured to the insurer so as to make the insurer's liability "unlimited" and not confined to the limits in Section 95(2) , the third party could claim the benefit of the unlimited liability as against the insurer directly under Section 96(1) read with Section 96(4) and Section 110B ?

Point No. 1.--Before going into the point, it would be convenient to refer to the so-called "reservation clause". We may point out that the clause does not use the word "reserved". In insurance parlance, it is actually called an "excess clause" (see <ORG>, 1984. 4th edition, page 289). The clause which is relied upon by the appellant-insurer is condition 2 of the policy of the insurance and reads as follows :

"No admission, offer, promise, payment or indemnity shall be made or given by or on behalf of the insured without the written consent of the company which shall be entitled, if it so desires, to take over and conduct in the name of the insured, the defence or settlement of any claim or to prosecute in the name of the insured for its own benefit, any claim for indemnity or damages or otherwise and shall have full discretion in the conduct of any proceedings or in the settlement of any claim and the insured shall give all such information and assistance as the company may require."

5. As the question is whether the above clause can be operated upon by the insurer in the presence of Section 96(2) and 96(4) , it is also necessary to refer to these statutory provisions, to the extent relevant. As Section 96(1) is the only provision which creates a direct right to the claimants against the insurer and is referred to in Section 96(2) , it is also necessary to refer to the said sub-clause.

"96(1). If, after a certificate of insurance has been issued under Sub-section (4) of Section 95 in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 95 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, nolwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree, any sum. not exceeding the sum assured, payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments."

6. The above provision in Section 96(1) thus directly creates a right in favour of the claimants against the insurer to recover the amount of such liability as is required to be covered by a policy under Section 95(1)(b) . We have held in another Full Bench case in M. F. A. No. 298 of 1987 <CITATION>  77 Comp Cas 134 (Ker) [FBI that inasmuch as Section 95(lKb) , in its turn, refers to Section 95(2)(b) , the insurer is liable only up to the limits in Section 95(2) and not for the entire award as passed against the insured. We shall now refer to Section 96(2) and (6).

"96(2). No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given, the insurer had notice through the court of the bringing of the proceedings or in respect of any judgment so long as execution is stayed thereon pending an appeal ; and an insurer to whom notice of the bringing of any such proceeding is so given, shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely :--

(a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident.. . and that either the certificate of insurance was surrendered to the insurer ... or that either before or not later than fourteen days after the happening of the accident the insurer has commenced proceedings for cancellation . . .

(b) that there has been a breach of a specified condition of the policy, being one of the following conditions . . .

(c) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular."

7. Section 96(6) which limits the defences for avoidance of the policy to the defences mentioned in Section 96(2) , reads as follows :

"96(6). No insurer to whom the notice referred to in Sub-section (2)... has been given, shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment as is referred to in Sub-section (1). . .. otherwise than in the manner provided for in Sub-section (2) . . ."

8. As already stated, the point is whether the "reservation clause" in the policy in any manner conflicts with Section 96(2) and 96(4) so as to become ineffective. Before we go into the above aspect, we shall point out that such a clause, which is called an "excess clause", is a well-known clause in the law of insurance. It fell for consideration in <ORG> v. <NAME> (1939] 4 All ER 204 before <ORG>. There the insured while driving a motor vehicle dashed against a pedal cyclist sometime before March, 1939, and injured the latter. The pedal cyclist sued for damages. The insurer, by reason of the reservation clause, entered into a settlement out of court with the pedal cyclist and paid him 45 and claimed 5 from the insured, as provided in the policy. Then the insured refused to pay 5 as agreed by him in the policy. As he refused to pay, the insurer filed an action against the insured for 5. The insured contended that the insurer had no right to settle the matter with the claimants without notice to him (the insured) and also that the settlement was not bona fide. The said contention was rejected. We shall refer to the relevant clauses in that policy. They are as follows (at p. 205) :

"The company . . . shall be entitled if it so desires, to take over and conduct in the name of the insured the defence or settlement of any claim or to prosecute in the name of the insured for its own benefit any claim for indemnity or damages or otherwise and shall have full discretion in the conduct of any proceedings or in the settlement of any claim and the insured shall give all such information and assistance as the company may require."

9. Another condition stated that the insured was "liable to pay the first 5 or any less amount for which the claim may be settled of each claim arising under this policy."

10. It was held by <ORG> that the insurer was entitled to settle the claim with the claimant and that the settlement was bona fide and the insured had no right to be consulted before settlement. <NAME> observed (at p. 206) :

"Once it is conceded, or once it is found, that the insurance company have the power to settle the claim, then the event which is contemplated in this provision has arisen. There has been a settlement, and thereupon the assured has agreed, it is declared, that he is liable to pay the first 5 for which the claim may be settled. That seems to me to conclude the matter."

11. The significance of the above decision which related to an accident that occurred just before March, 1939, is that, by that time, the Road Traffic Act, 1934, had come into force with effect from July 31, 1934, and Section 10(2) and (3) of that Act had directed that certain limited defences as specified in Section 10(2) and (3) alone could be taken by the insurer in an action by the claimants. No contention was raised that Section 10(2) and (3) were a bar to the defence that the insurance company was entitled to enter into a settlement in view of the reservation clause.

12. The provisions of Section 96(2) and (6) fell for consideration in two decisions of <ORG>. In British India Genera! <CITATION>  29 Comp Cas (Ins) 60 ; AIR 1959 SC 1331, <ORG> held that the defences referred to in Section 96(2) which an insurance company could take, were exhaustive and no more defences could be added thereto, unless such a right was reserved. The passage reads thus (at page 66 of 29 Comp Cas) :

"The statute (Motor Vehicles Act , 1939) has no doubt created a liability in the insurer to the injured person but the statute has also expressly confined the right to avoid that liability to certain grounds specified in it. It is not for us to add to those grounds, and, therefore, to the statute for reasons of hardship. We are furthermore not convinced that the statute causes any hardship. First, the insurer has the right, provided he has reserved it by the policy, to defend the action in the name of the assured and if he does so, all defences open to the assured can then be urged by him ..."

13. The above decision is a clear authority that it is open to the insurer to reserve a right in the policy of insurance to defend the action in the name of the assured and, in case there is such a reservation, all defences open to the assured can be urged by him. The above decision is binding on us and has been, in fact, followed by various <ORG>.

14. <CITATION>  63 Comp Cas 847 ; AIR 1988 SC 719, their Lordships referred to <NAME> case  29 Comp Cas (Ins) 60 (SC) but distinguished the same. There the contention for the claimants was that the insurance company cannot file an appeal for restricting its liability to the pecuniary limits mentioned in Section 95(2) of the Act. The contention was that the same was not one of the defences mentioned in Section 96(2) of the Act. <ORG> rejected the said contention and held that Section 96(2) which restricted the insurer to a limited number of defences applied only if the insurance policy was to be either "cancelled" as in Section 96(2)(a) or if it was to be totally "avoided" on the ground of misrepresentation or suppression of material facts as in Section 96(2)(c) or where as in Section 96(2)(b) , the insured had committed a breach of certain specified conditions of the policy thereby giving a right to the insurer to "avoid" the policy. It was held by their Lordships that when an insurer wanted to file an appeal contending that it could not be made liable for anything beyond the "liability required to be covered under Section 95(1)(b) ", such a plea could not be described as a plea to "avoid" the policy itself in toto within Section 96(6) .

15. That <NAME> case [1959] 29 Comp Cas (Ins.) 60 (SC) permits the insurer to "reserve" his right to defend the case on grounds available to the owner as stated above, has been rightly accepted and followed by this court earlier in <ORG> v. <NAME> [1989] 66 Comp Cas 818, and in <CITATION>  58 Comp Cas 746 and also in <CITATION>  67 Comp Cas 528. We are of the view that the decision to the contrary in <CITATION>  1 KIT 10, is not correct and it is accordingly overruled.

16. The view we have taken, following <NAME> case [1959] 29 Comp Cas (Ins.) 60 (SC), is in accord with the view taken in regard to the effect of the "reservation clause" by the Madras High Court in <CITATION> (1974] AC) 234 ; AIR 1974 Mad 318, <ORG> in <CITATION>  ACJ 11 (Delhi), <ORG> in Mangdal v. <NAME>  ACJ 86 (MP) (FBI, <ORG> in Orissa Co-operative Insurance Society Ltd. v. <NAME>  ACJ 49 (Orissa) and <ORG> in <CITATION>  ACJ 470 (J & K) [FB], We may point out that a Full Bench of <ORG> in <CITATION>  ACJ 239 ; AIR 1976 Orissa 175 [FB], has also, in principle, taken the same view as regards the effect of a reservation clause but in the end it did not allow the insurer to raise the defence, on facts, on the ground that the insurer did not choose to defend the action in the name of the insurer.

17. We may add that we are not in agreement with the latter point of view so expressed by <ORG> in the last mentioned Full Bench case in <CITATION>  ACJ 239 (Orissa) [FB], that the reservation clause would help the insurer to raise all defences against third parties which could have been raised by the insured only in case the insurer expressly defended the action in the name of the insured. That leads us to the question as to what the rights of the insurer are, in the case of "assignment" by the insured, in favour of the insurer, in respect of the former's rights against third parties. For the purpose of deciding this question it is necessary to refer to the general law relating to insurance. Under that law, a distinction has been made between the cases where the insurer obtains assignment from the insured, and cases where the insurer becomes subrogated to the rights of the insured by way of paying the amount due to the insured. It is settled in the law of insurance that the insurer can avail of all the defences and grounds or remedies which the insured then has against third parties. The only difference is that in the case of assignment the insurer can take action in his own name, while in the case of subrogation, the insurer has to take action only in the name of the insured. In <ORG>, 4th edition, volume 25, paragraphs 523 to 527, it is stated that the doctrine of subrogation applies to all contracts of non-marine insurance which are contracts of indemnity, sych as fire insurance, motor insurance and contingency insurance. It is further stated that in the strict sense of the term, subrogation expresses the right of the insurers to be placed in the place of the assured so as to be entitled to the advantage of all rights and remedies which the assured possesses against third parties, and that the most obvious case of subrogation arises in the law of torts. It is further stated that if an owner of a vehicle incurs third party liability, consequent to negligence of the owner's servants, then the insurer who discharges the liability of the insured gets subrogated to the rights of the insured against third parties : <NAME> v. <ORG>  AC 555 (HL). In the absence of a formal assignment of the rights of action, as stated in <CITATION> .  AC 250 (PC), the insurers cannot sue the third parties in their own name. <ORG> v. <ORG>  3 Doug KB 245. That is what is stated in <ORG>.

18. The law is also similarly stated in MacGillivray on Insurance Law, fourth edition, 1953, paragraph 1686 (accepted in later editions also) as follows:

"The legal right to compensation remains in the assured <CITATION> .  AC 250 ; Crandall v. <NAME>  16 Fed. Rep 75, and, therefore, unless there has been an express assignment of the legal right, actions at law brought for the benefit of the insurer are brought in the name of the assured <ORG> v. <NAME>  3 Doug KB 245 ; Wealkans v. <ORG>Ont A. R. 297 ; <ORG> v. <NAME>  39 MC 253. In Courts of Equity or of Admiralty, the insurer has always been allowed to sue in his own name St. Louis Rly v. <ORG>  139 US 223 ; <ORG> v. <ORG>  129 US 397 ; and <NAME> v. <ORG>  19 How US 312."

19. The decision in <CITATION> .  AC 250 (PC), above referred to in fact decided that when there was assignment by the <ORG> in favour of the insurer in respect of the <ORG>'s rights against third parties, the insurer can sue the third parties in his own name, and avail of all the defences and remedies of the <ORG> against the third parties.

20. The above principle laid down in English law has been accepted by various <ORG> in India. The principle has been accepted recently by <ORG> in a motor insurance case in <CITATION> . [1958-65] ACJ 527 ; AIR 1965 Mad 159. That was a case where the insured had assigned his rights (as against third party) in favour of the insurer, and the insurer was held entitled to sue the third party in his own name. In the above said decision, <ORG> followed an earlier ruling of the same <ORG> in <NAME> v. <NAME>, AIR 1916 Mad 473, and also the decision of the Calcutta <ORG> in <CITATION> .  66 CWN 419. It was further held in <NAME> case, AIR 1965 Mad 159 that such an assignment by the insured in favour of the insurer in respect of the rights covered by the motor insurance policy was not hit by Section 6(e) of the Transfer of Property Act, and that the assignment was valid as a transfer of a chose in action as defined in Section 130 of the Transfer of Property Act. In the other cases, the Madras and Calcutta <ORG> also held that Section 6(e) of the Transfer of Property Act was not attracted to cases of assignment of rights by an assured in favour of the insurer. The decision of <ORG> in <NAME> case, AIR 1965 Mad 159, has been followed by the Karnataka <ORG> in <CITATION> .  2 Kar LJ 521.

21. In the light of the above principles of law, it is, therefore, clear that the insurance company has a right to defend or take action against the third party in its own name, on the basis of the assignment by the insured in favour of the insurer in respect of the former's rights against third parties. It is not necessary in the case of assignment that the action by the insurer should be in the name of the insured.

22. The further question that arises is as to the meaning of the words in the reservation or assignment clause in question. We have already referred to the said clause, but we shall again refer to the relevant portion thereof. It reads :

"No admission, offer, promise, payment or indemnity shall be made or given by or on behalf of the insured without the written consent of the company which shall be entitled, if it so desires, to take over and conduct in the name of the insured, the defence or settlement of any claim . . ."

23. We have already noticed that in the case of assignment of rights by the insured in favour of the insurer the insurer has a right to conduct the proceedings in its own name. Therefore, we have to understand the relevant words in the above said reservation clause in the light of the said principle. In our view, the words "if it so desires", gain considerable importance in such a context. In our view, the insurer is given a choice "if it so desired" to conduct the proceedings in the name of the insured. But this does not mean that the insurer is precluded from defending or prosecuting the proceedings in his own name, and there are no words in the reservation clause which take away such a right in favour of the insurer which is available under the general law of insurance.

24. For the aforesaid reasons, we hold that the appellant-insurance company can take advantage of the "reservation clause" which is in the nature of assignment by the insured of his rights against the third party, and the insurer can defend any action filed by the third party by conducting the same in its own name (insurer). In such a case, the insurer can raise all defences which the insured could have raised, and obviously the insurer is not confined to the limited defences mentioned in Section 96(2) of the Motor Vehicles Act. Therefore, when there is a reservation or assignment clause as stated above, the insurer can even take a defence that there is no negligence on the part of the insured or that the quantum of compensation awarded to the third party is excessive, even when the said quantum is below the pecuniary limit mentioned in Section 95(2) of the Motor Vehicles Act. We hold accordingly on point No. 1.

Point No. 2-- It is the contention of the respondents-claimants that Section 110C(2A) of the Motor Vehicles Act, 1939, introduced by the Central Act 56 of 1969 with effect from March 2, 1970, leads to the inference that the insurer can raise all defences open to the insured against the third party, only in a case where the <ORG> has chosen to implead the insurer upon being satisfied that there is collusion between the insured and the third parly or where the insured has remained ex parte. The contention is that if the said situations are not in existence, the insurer cannot raise any defences other than those specified in Section 96(2) .

25. For the purpose of understanding the above contention, it is necessary to refer to Section 110C(2A) . It reads :

"110C(2A). Where in the course of any inquiry, <ORG> is satisfied that-

(i) there is collusion between the person making the claim and the person against whom the claim is made, or

(ii) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded by it in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made." (emphasis* supplied)

26. We have already held on point No. 1 that in view of the reservation or assignment clause, the insurer is vested with all the defences or grounds of the insured against the third party, and can take action in his own name. Therefore, prima facie, Section 110C(2A) cannot come in the way of the exercise of the rights under the reservation clause by the insurer.

27. Even otherwise, Section 110C(2A) which deals with the "procedure" before the <ORG>, can only be treated as an enabling provision. In our view, it does not exhaust all the situations in which the insurer can raise defences open to the insured against the third party. The provisions of Section 110C(2A) may, however, govern a case where there is no reservation clause or assignment of the rights of the insured in favour of the insurer, but otherwise, it cannot help the respondents. We hold, therefore, that even if there is no collusion between the insured and the third party or even if the insured has not remained ex parte the insurer can raise all defences open to the insured against the third party, provided there is a reservation or assignment clause by the insured in favour of the insurer. For the aforesaid reasons also we overrule the decision in <CITATION>  1 KLT 10. Point No. 2 is found accordingly.

Point No. 3.--This point concerns Section 96(3) . We shall refer to the said provision. It reads as follows :

"96(3). Where a certificate of insurance has been issued under Sub-section (4) of Section 95 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any conditions other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 95 , be of no effect :

Provided that any sum paid by the insurer in or towards the discharge of any, liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from that person."

28. Section 96(3) states that if there is any restriction in the insurance policy which purports to restrict the insurance of the persons insured, because of incorporation of any conditions other than those in Section 96(2)(b) , then such conditions will be of no effect, for the purpose of making the insurer discharge its liabilities as are required to be covered by a policy under Section 95(1)(b) . We should first know what the restrictions under Section 96(2)(b) are, the violation of which by the insured, permits the insurer to avoid the policy. Under Section 96(2)(b) , the insurer can avoid the policy for breach (by the insured) of (i) a condition that the insured should not use the vehicle (a) for hire or reward, where the vehicle is, on the date of the contract of insurance, a vehicle not covered by a permit to ply for hire or reward ; or (b) for organised racing or speed-testing ; or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle ; or (d) without side car being attached, where the vehicle is a motor cycle ; (ii) a condition excluding driving by a named person or unlicensed drivers, etc., (iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion. Therefore, under Section 96(3) if the policy permits avoidance of the insurer's liability under Section 95(1)(b) on the basis of conditions other than the above ones specified in Section 96(2)(b) , such conditions will be of no effect as against the third party.

29. So far as the proviso to Section 96(3) is concerned, it states that if on account of the above disability statutorily incurred by the insured in not being able to enforce the conditions other than those in Section 96(2)(b) as against the third parties, the insurer becomes liable to pay to the third party any excess sum which, but for the said statutory disability, it was not obliged to pay, then such excess sum could be recovered by the insurer from the insured.

30. We fail to see how Section 96(3) can be of any help to the respondents-claimants against the insurer. If the insurer takes out a defence under the law of torts that the insured has not been negligent or if the insurer contends that the quantum of compensation awarded is high (though it is within Section 95(2) limits)--then such defences are permissible in view of the reservation clause and in view of our decision on Point No. 1, and it cannot be said that the insurer is raising defences not covered by Section 96(2)(b) , nor that the said defences are of no effect. The raising of the above defences by the insurer in the written statement or in the appeal-as permitted by the reservation clause--does not, in our view, amount to imposing conditions other than the permissible conditions specified in Section 96(2)(b) so as to become ineffective by reason of Section 96(3) .

31. The further contention based on the proviso to Section 96(3) that the insurance company must first pay the compensation in full cannot also be accepted inasmuch as raising defences in the written statement or in the appeal on the basis of the reservation clause--cannot be treated as imposing extra conditions (outside Section 96(2)(b) ) which are ineffective. Point No. 3 is decided accordingly.

32. Point No. 4.--It is not disputed by the appellant's counsel that in some of these cases, the insured has paid extra premium to make the insurer's liability an unlimited liability. But the question then arises whether the insurer is liable to pay the entire assessed liability over and above its statutory liability under Section 95(2) and whether the insurer is to recover the excess amount over and above such statutory liability, from the insured, in view of Section 96(4) of the Act. Section 96(4) reads as follows :

"96(4). If the amount which an insurer becomes liable under this Section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person."

33. The provisions of Section 96(4) fell for consideration in M. F. A. No. 298 of 1987 before this very Full Bench ( <CITATION>  77 Comp Cas 134). In that case, the insurer filed an appeal contending that the <ORG> was wrong in making it liable for the entire amount payable by the insured, but that its liability should have been limited to the figure specified in Section 95(2) . It was, no doubt, not a case of extra premium. It was contended for the claimants that in view of Section 96(4) , the insurer should pay the entire amount and recover the difference from the insured. We rejected the said contention in that case. We referred to the relevant rulings of <ORG> in <ORG> v. A. E. Ranasinghe  AC 541 (PC), the majority decision of <ORG>, <NAME> v. <ORG>  2 Lloyd's Rep 193 and to the judgment of <ORG> in the appeal from that case, viz., <NAME> v. <ORG>  1 Lloyd's Rep 556 (PC). In all these cases, the provisions were similar to Section 96(4) . We held that the words "the amount which an insurer becomes liable under the section" in Section 96(4) meant the liability to the third party covered by Section 96(1) , namely, the statutory liability under Section 95(1)(b) , as further limited by the pecuniary limits in Section 95(2) . It was held that Section 96(4) only meant that in a case where the insurer avoided the policy on grounds stated in Section 96(2) , the insurer could then recover from the insured under Section 96(4) the compensation paid by the insurer to the third party in its entirety. That would be a case of "excess" over "nil", as pointed out by Lord <NAME> in <NAME>'s case  1 Lloyd's Rep 556 (PC). Again, in a case where the policy, was not avoided, but the insurer paid the actual amount mentioned in Section 95(2) and interest and costs to the third party, Section 96(4) could mean that the insurer could recover from the insured, if he wanted to do so, the interest and costs, that being the sum not payable if Section 96(1) did not apply. We held that the basic principle was that the right of the third party against the insurer was limited always to the liability covered by Section 95(1)(b) and Section 95(2) in view of Section 96(1) .

34. In the present case, a further question arises. Here, in view of the extra premium paid by the insured, the insurer's liability to the insured is unlimited. In other words, it is more than the statutory limits prescribed in Section 95(2) . But the point is whether the third party claimant could seek the benefit of the extra premium and claim for the entire award amount, over and above the statutory limits specified in Section 95(2) , from the insurer ?

35. In abstract principle, in view of Section 96(1) , it must be held that the third party cannot have a remedy against the insurer for anything above the limits specified in Section 96(1) , which means, the "amount as is required to be covered by Section 95(1)(b) ". Section 95(1)(b) , in its turn, refers to Section 95(2) . Thus the third party's rights against the insurer cannot, in the abstract, exceed Section 95(2) limits. The fact that the insured had paid extra premium might help the insured to resort to his remedies against the insurer for the amount recovered from the insured, apart from what is recovered from the insurer by the third party. In fact, this very question relating to additional premium arose before <ORG> as an additional point in <NAME> v. <NAME>  2 <ORG> (PC). That case arose under the Bermudan Motor Car Insurance (Third Party Risks) Act, 1943. Section 6(1) of that Act corresponds to Section 96(1) of our Act, while Section 6(4) corresponds to Section 96(4) of our Act. They read as follows :

"6(1). If, after a certificate of insurance has been delivered under Sub-section (4) of Section 4 to the persons by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of Sub-section (1) of Section 4 (being a liability covered by the terms of the policy) . . .

6(4). If the amount which an insurer becomes liable under this section to pay in. respect of a liability of a person insured by a policy exceeds the amount for which he would, apart from the provisions of this section, be liable under the policy in respect of that liability, he shall be entitled to recover the excess from that person." (emphasis* supplied)

36. In that case, the respondent was injured by the negligent driving of Mr. <NAME>. The car was owned by Mrs. <NAME> and was insured with the appellants under a policy. The respondent claimed damages for personal injuries against Mr. <NAME>, for $ 100,000 and costs by consent. The respondent-claimant wanted that the entire sum be paid by the insurer-appellant even though by virtue of the provisions of the Act of 1943, the statutory liability was restricted to $ 24,000. <ORG> at Bermuda held the appellant liable for the whole amount. Allowing the appeal, their Lordships held the appellant liable only to an extent of $ 24,000. Section 3(1) of the Act is similar to Section 94 , while Section 4(1) is similar to Section 95(1)(b) . The proviso to Section 4(1) corresponds to Section 95(2) limiting the liability of the insurance company to $ 24,000 and to other amounts in various situations. Again, Section 6(1) of the Act corresponds to Section 96(1) while Section 6(4) corresponds to Section 96(4) . Their Lordships followed the decision in <NAME>'s case  1 Lloyd's Rep 556 (HL) and <ORG>'s case  AC 541 (PC). The contention that <ORG>'s case  1 Lloyd's Rep 556 (PC) was wrongly decided and that the view of Lord <NAME>, M. R. in <ORG> in <NAME>'s case  2 Lloyd's Rep 193 was correct, was rejected.

37. A further point was also argued that in <NAME> case [1989] 2 Lloyd's Rep 227 the policy there covered $125,000 while the statutory liability of the insurance company was only $24,000, and the award is for $ 100,000 and that <NAME>'s case [1980] 1 Lloyd's Rep 556 (PC) was distinguishable. But Lord <NAME> of Kinkel observed :

"It is true that <NAME>'s case [1980] 1 Lloyd's Rep 556 (PC) was in certain respects different in its facts from the present one. But the reasoning of Lord <NAME> may nevertheless be applicable. That reasoning indicates that so far as the 1943 Act is concerned, the words in Section 6(1) -

'... such liability as is required to be covered by a policy under paragraph (b) of Sub-section (1) of Section 4 . . .' do not include liability in respect of any sum in excess of $ 24,000 arising out of any one claim by any one person, since by virtue of proviso (iii) to Section 4(1)(b) , such a liability is not required to be covered. It is, in their Lordship's opinion, nothing to the point, so far as the construction of Section 6 is concerned, that the insurers might under the terms of the policy be bound to indemnify the insured in respect of any excess over the statutory minimum for which an injured third party might have obtained judgment against the insured. The effect of Section 6(1) is to limit the amount which the injured third party can recover directly from the insurers."

38. Therefore, going strictly by the legal principles above stated, the third party cannot by resorting to Section 96(1) seek to recover from the insurer any amount over and above the statutory limits specified in Section 95(2) even though, as between the insurer and the insured, the limit of liability of the insured is unlimited.

39. But, in practice, in our country, the nationalised insurance companies have been paying directly to the third party, the amount up to the limit covered by the extra premium, even though the limit under Section 95(2) may be less. We do not want to disturb the existing procedure, whatever may be the principle in the abstract. In our view, there is not much benefit in following the strict rule laid down by <ORG> in <NAME> v. <NAME>  2 <ORG> (PC).

40. In our view, that may only lead to multiplicity of proceedings, namely, of the third party recovering the amount (beyond Section 95(2) limits) from the insured and the insured reimbursing himself from the insurer. We, therefore, do not want to extend the principle in <NAME> v. <NAME>  2 <ORG> (PC), in so far as the said case relates to the amount covered by the extra premium, to Indian conditions.

41. We, therefore, hold that where the insured has paid extra premium, the third party can claim the award amount, over and above Section 95(2) limits, directly from the insurer. We hold accordingly on Point No. 4.

42. In the result, we overrule <NAME> case [1990] 1 KLT 10. We hold that the insurer is entitled where there is a reservation clause to raise all defences open to the insured against the third party, in the proceedings initiated by the third party. This he could do in his own name. The insurer could plead that the insured was not negligent or that the third party was guilty of contributory negligence or that the quantum assessed was wrong or high. If there was liability in excess of the limits in Section 95(2) because of extra premium, the third party could be allowed to proceed against the insurer for the amount in excess of the limits in Section 95(2) .

43. We answer the reference accordingly. We send back the matters to <ORG> to decide the appeals on merits.


CASE NO.: Writ Petition (crl.) 237 of 1998 PETITIONER: <NAME> RESPONDENT: State of Haryana & Ors. DATE OF JUDGMENT: 03/02/2006 BENCH: CJI, <NAME> & <NAME> JUDGMENT:

J U D G M E N T R.V. RAVEENDRAN, J.

An undated letter from the petitioner, received by this Court on 19.11.1998, alleging illegal detention, custodial torture and harassment to family members was registered as a writ petition under Article 32 of the Constitution of India. The State of Haryana and its Director General of Police, were arrayed as respondents 1 and 2 and the six Police Officers referred to in the letter-petition were arrayed as respondent Nos.3 to 8.

PROLOGUE (According to Police)

2. On 10.3.1998, at about 10 a.m. <NAME> <ORG>, <ORG> Post Dhamtan Saheb (Narwana Tehsil, <NAME> District), along with <ORG> constables (<NAME>, <NAME> and <NAME>), while patrolling near Dhamtan Saheb Bus Stand, received information that one <NAME> (son of petitioner) and his associates were conspiring in his house, to apply pressure on some tender-bidders. When the police party proceeded towards <NAME>'s house, they saw two young men coming from the opposite side, on a motorcycle. On seeing the <ORG> party, the motorcycle suddenly turned back. On suspicion, the <ORG> party gave chase and stopped the motorcycle near a petrol-pump. The <ORG> asked the motorcyclist and the pillion-rider to identify themselves. The motorcyclist gave his name as <NAME>. The pillion-rider gave his name as <NAME>, a Palledar at Tohana. When the <ORG> asked <NAME> as to whether he was the same <NAME> who had jumped parole in a case, <NAME> started running. When the <ORG> party chased him, <NAME> turned back, whipped out a pistol and fired at them. <NAME>, one of the Constables, was hit and collapsed. In the ensuing confusion, both <NAME> and <NAME> escaped. The injured Constable succumbed to the bullet injuries. In this connection, FIR No.112 dated 10.3.1998 under Section 302 / 307 / 352 / 186  was registered in P.S., Garhi, against <NAME> and <NAME>. On receiving information of the death of constable, the SP and the DSP rushed to the hospital and later, went to the Dhamtan Saheb <ORG> Post. In the meantime, the <ORG> party which had gone to the house of <NAME>, in search of him, did not find him and brought his father <NAME> (Petitioner) to the <ORG> Station. According to police, the SDM and the Chairman of <ORG>, <NAME>, were also present at the <ORG> Post at that time. The petitioner denied any knowledge of the whereabouts of his son <NAME>. The SP made some enquiries with the petitioner and left. After inquiries, the petitioner was released.

2.1) The petitioner along with his brother-in-law <NAME> filed W.P. (Crl.) No.416/1998 in the Punjab & Haryana High Court on 24.3.1998 alleging harassment, torture and illegal detention for three days (from 10.3.1998 to 13.3.1998) and again for a day (15.3.1998 to 16.3.1998) and prayed for action against the concerned Police Officers and for a judicial enquiry. <ORG> by order dated 27.4.1998 disposed of the petition with an observation that petitioners may file a criminal complaint in a competent court.

2.2) The petitioner went underground for a few months. Further enquiries by the police revealed that several cases had been registered against the petitioner and his son <NAME>. <NAME> was declared as 'proclaimed offender' by order dated 12.6.1998 of <ORG> Narwana. The petitioner published a notice in '<ORG> dated 6.8.1998 that he had disowned his son <NAME> and was not responsible for his actions.

2.3) The <ORG> continued with their inquiries and in July, 1998, ASI <NAME> and other <ORG> Officers of Dhamtan Saheb <ORG> Post again tried to ascertain his whereabouts by making enquiries with the petitioner and his relatives/friends.

The Letter (re : alleged torture and illegal detention)

3. The petitioner sent an undated letter to this Court (received on 19.11.1998) wherein he alleged that <NAME>, In- charge of <ORG>, along with some <ORG> Officers, came to his house on 10.3.1998 at about 11 a.m, to enquire about the whereabouts of his son <NAME>; and that when he informed them that he was not aware of it, they started beating him. Thereafter, the <ORG> took him, his wife and two minor daughters forcibly to the <ORG> Post, through the bazaar. He was beaten with sticks on the way. When they reached the <ORG> Post, <NAME>, Superintendent of <ORG> as also the Deputy Superintendent of <ORG>, Narwana, were present. When <NAME> informed them that the persons brought were the father, mother and sisters of <NAME>, the S.P. directed that they may be brought to 'correct mental attitude'. The ASI took him inside and beat him for about 10 minutes and brought him back before the SP again. By then, his wife and daughters were made to sit in an uncomfortable posture (as students are made to sit in schools by way of punishment). When the petitioner stated that he was not aware of his son's whereabouts, the S.P. became furious and ordered his men to remove his moustache, whereupon <NAME> sat on his chest (with three policemen pressing his hands and feet) and plucked his moustache. Again, they started beating him, searched his pockets and took away Rs.2,350 which he was carrying. Then the police took him back to his house and ransacked the house. <NAME> broke open the lock of his trunk and seized his licensed gun, some cartridges and Arms licence, as also some jewellery found in the trunk. Thereafter, the petitioner was taken back to the <ORG> Post. Though his wife and daughters were sent back to the house, he was illegally detained in <ORG> custody for a day and then taken to P.S. Garhi where he was kept for 10 days and during the first 5 days of such detention, he was regularly beaten. Because of such police harassment and torture, when he was released he and his younger son <NAME> fled from his house.

3.1) On 8.7.1998, the petitioner returned to his house. <NAME>, <ORG>, (who had succeeded <NAME>) and <NAME> (HC) of <ORG>, came to his house, with four other policemen, handcuffed him and took him to <ORG>. He was tortured in <ORG> by the <ORG> and Head Constable <NAME> by thrashing him thrice, each time continuously for 15 minutes. When he requested for water, he was forced to drink hot water with salt. The <NAME>, <ORG> kept him in a wooden Shikanza for 5 days and he was not allowed to sleep. Then he was taken to Jind. He also alleged that the <ORG> forced him to bring money for the vehicles to conduct raids (to catch his son, <NAME>) and he was forced to accompany them on such raids and was put in wooden Shikanza at Tulvan Thana. When he begged that he should be released, he was informed that he was being taken for the raids on the instructions of <NAME>, S.P., Jind, and that without the permission of the S.P., he could not be released. After three days he was again taken back to <ORG> and kept there for 2 days. Thereafter, he was released with a condition to visit <ORG> everyday in the morning and evening.

3.2) The Petitioner alleged that his friends and relatives who wanted to meet him, when he was being illegally detained, were not permitted to meet him and they were also tortured. He also alleged that <NAME> (HC) of <ORG> was demanding money from him.

3.3) He alleged that in view of such torture, he was forced to leave his house and remain outside. He prayed for a direction to the <ORG> to stop the atrocities and torture. He sought compensation for himself and his wife and daughters for the social, physical and financial loss, and return of his licensed gun, gold ornaments and other belongings. He also prayed for a thorough inquiry into the atrocities and torture committed by the <ORG> and imposition of punishment to those who were responsible.

3.4) The letter of the petitioner was registered as a writ petition and Rule was issued on 11.1.1999. On 13.9.2000, this <ORG> appointed Mr. <NAME>, Advocate, as Amicus Curiae, to assist the <ORG>.

The alleged Second Round of Harassment :

4. <NAME> was arrested in June, 1999 by <ORG>. Before his arrest, he was allegedly involved in two robberies (registered on 19.3.1999 with PS, City Yamunanagar, and on 21.3.1999 with PS, Indri, Karnal District). On 25.1.2001, when he was being taken to <ORG> from Ambala jail, <NAME> escaped from police custody. It is further alleged by the police that on 13.2.2001, <NAME> and his associates murdered two residents of Tohana.

4.1) According to <ORG>, on 29.1.2001, the SHO, <ORG> Station, Garhi along with other police officials visited the house of petitioner in search of <NAME> who had escaped from custody. Again in February, 2001 after the double murder, the S.I. of <ORG> Station, Tohana along with the ASI in charge of Dhamtan Saheb <ORG> Post, and other <ORG> officials visited petitioner's house in search of <NAME>. In that connection, petitioner and his brother were taken to <ORG> Station Tohana on 14.2.2001 for inquiries and were released on the same day. They were again called for inquiries on the next day. On 22.6.2001, the Officer in Charge of <ORG> Post, Patiala Chowk, Jind, searched the house of <NAME> (sister of <NAME>), to find out whether <NAME> was hiding there. On 24.6.2001, petitioner's younger son <NAME> was arrested for possessing illegal arms.

4.2) The petitioner filed an affidavit dated 22.2.2001 before this Court on 3.3.2001 alleging interrogation by <ORG> on 26.1.2001 and 29.1.2001 in regard to escape of his son <NAME> from <ORG> custody. He also alleged that on 14.2.2001 he and his brother <NAME> were handcuffed and taken to Tohana <ORG> Station and interrogated and released on 15.2.2001. The S.P. <NAME> filed a detailed reply affidavit dated 11.8.2001. A further affidavit was filed by the petitioner on 1.10.2001 wherein he alleged that his younger son <NAME> was forcibly taken from his sister's house on 22.6.2001 and tortured. This brought forth a further affidavit dated 20.11.2001 from the S.P., <NAME>, by way of reply denying the allegations.

PROCEEDINGS IN THIS COURT :

5. Not being satisfied with the reply-affidavit filed on behalf of the <ORG>, in regard to the letter-petition, this Court on 9.11.2000 directed the Chief Secretary of the <ORG> of Haryana to file a detailed affidavit in regard to the steps taken on the allegations made by the petitioner. In view of it, the <ORG> got the matter inquired into by Dr. <NAME>, Inspector General of Police, (<ORG>), Haryana. He submitted a report dated 10.3.2001 stating that the allegations of the petitioner relating to police torture, illegal detention, harassment to wife and daughters, and removal of cash/licensed weapon/jewellery were not substantiated. The said report, however, confirmed that petitioner and his brother were called to the Police Station couple of times for interrogation regarding the whereabouts of <NAME>. Not being satisfied with the said report, this Court on 17.10.2001 directed the <ORG> to inquire into the matter with reference to the allegations made in the letter as also the subsequent affidavits filed by the petitioner and his relatives and the reply affidavits filed by the respondents.

5.1) The <ORG> held a preliminary inquiry and submitted the report of the Inquiry Officer (<NAME>, ASP) under cover of its letter dated 22.7.2002. The findings in the said report are arrived at, on the basis of the allegations made in the affidavits filed before this Court, and the statements made by the petitioner, his family members and others (nearly 100 witnesses) before the Inquiry Officer. The <ORG> has concluded that some of the allegations of the petitioner were substantiated while several others were not substantiated.

5.2) On 16.9.2002, this Court directed that the State Government to take appropriate action on the report of the <ORG>. In pursuance of it, an FIR was lodged in Garhi Police Station, Jind District, (FIR No.152 dated 17.10.2002 under Sections 323 , 342 , 343 , 365 and 384 ) on the basis of the <ORG> report, naming the following 10 officers :-

1. <NAME> (by then S.I.)

2. ASI Satyanarain 238/Jind

3. <ORG> (by then <ORG>)

4. Const. <NAME>, No.59/Jind

5. <ORG> No.450/Jind

6. Const. <NAME> No.811/Jind

7. Const. <NAME> No.99/Jind

8. Const. <NAME> No.704/Jind

9. Const. <NAME>Jind

10. Const. <NAME> 825/Jind (by then HC) The Deputy Superintendent of Police, Narwana, filed an affidavit dated 1.11.2002 confirming that FIR was lodged and that he was investigating into the matter.

5.3) On 11.11.2002, this Court noted that the FIR was registered and an appropriate chargesheet would be filed by the <ORG> in due course, and that the officers concerned have been suspended/posted outside the district. This Court also took note of the submission of the amicus curiae that in such cases, apart from <ORG> inquiry and criminal prosecution, compensation has to be awarded to the victims, and the submission of the <ORG> that having regard to the facts of the case and having regard to the registration of the FIR, the matter may have to await the result of the prosecution. While adjourning the case, this Court observed that the question of awarding any compensation at that stage, did not arise.

5.4) The SP, <NAME>, by affidavit dated 9.6.2003 informed this Court that the charge-sheet was filed in <ORG>, Narwana, and that the case was fixed for 18.7.2003 for framing of charge. Thereafter, when the matter came up on 4.8.2003, the amicus curiae again submitted that compensation should be awarded. This Court directed hearing on the limited question as to whether compensation should be awarded or not. The criminal court was also directed to expedite the trial. The criminal case against the <ORG> officers, we are informed, is under progress.

5.5) Thereafter, arguments on the question as to whether compensation should be awarded or not were heard on 6.10.2005 and written arguments were submitted by the Amicus Curiae and the <ORG> on 19.10.2005 and 16.11.2005 respectively.

(Preliminary) Inquiry Report of <ORG> :

6. The findings contained in the report of <ORG> are summarized below :-

Allegations by Petitioner (and his relatives) Finding by C.B.I.

1. Incident on 10.3.1998 1.1. Petitioner was tortured at Dhamtan Saheb Police Post on 10.3.1998 on the directions of Mr. <NAME>, Superintendent of Police, Jind and Mr. <NAME>, DSP, Jind.

Not substantiated 1.2 On 10.3.1998 <NAME> took cash of Rs.2,350/- from the pocket of the petitioner and Rs.4,700/- from the pocket of his friend <NAME>.

Not substantiated 1.3 <NAME>, <ORG>, took away the licensed gun, cartridges and jewellery from the house of petitioner, on 10.3.1998.

Not substantiated by any independent witness.

1.4 <NAME>, ASI, Incharge of <ORG> along with other Police officials picked up the Petitioner and his friend <NAME> on 10.3.1998 and took them to <ORG> and beat them on the way.

Substantiated 1.5 <NAME> (H.C., <ORG>, Garhi) and <NAME>, <ORG>, beat petitioner on 11.3.1998.

Substantiated (But no injury report or medical report is available.)

2. Illegal detention.

2.1. Petitioner was arrested on 10.3.1998 and taken to <ORG> on 11.3.1998 where he was illegally detained for 10 days and beaten during first 5 days.

Detention of petitioner at P.S. Garhi for some days was substantiated by an oral evidence of accused in an Excise Case (<NAME>).

2.2. <NAME> alias Ratna (brother in law of petitioner) was picket up on 10.3.1998 and kept illegally at P.S. Garhi and tortured for 2 days. He was again arrested on 16.3.1998, tortured for 4 days and released on 20.3.1998.

Picking up of <NAME> a few days after 10.3.1998 is established. However, alleged torture and wrongful confinement is supported only by his self statement and not by any medical or other evidence.

[Note: However, in the writ petition filed by <NAME> and petitioner on 24.3.1998 in <ORG>, it is alleged that petitioner and <NAME> were kept in illegal confinement from 10.3.1998 to 13.3.1998 and again from 15.3.1998 to 16.3.1998. There is no allegation of any torture at all. They only alleged that they apprehended harassment and torture by <ORG>.)

3. Incidents between 8.7.1998 and 7.11.1998 3.1 <NAME> (HC), in-charge of <ORG> handcuffed petitioner and took the petitioner to <ORG> on 8.7.1998.

Substantiated 3.2 <NAME>, <ORG>, harassed petitioner between 8.7.1998 and 7.11.1998.

Substantiated 3.3 <NAME>, <ORG>, demanded money from the petitioner and took money from petitioner, for fuel for the vehicle used to conduct raids.

Not Substantiated 3.4 <NAME> ASI took 10 kg. of Desi Ghee from petitioner's brother <NAME>. Not Substantiated 3.5 <NAME>, ASI, had detained <NAME> in police custody. Substantiated 3.6 <NAME>, ASI, tortured <NAME> and took Rs.500/- to release him. Not substantiated. 4. Re : Incidents in the year 2001 4.1 SHO, Police Station, Garhi along with other police officials raided the petitioner's house in January, 2001 and intentionally flashed a torch light on the faces of his young daughters. Not substantiated. (What is established is that SHO, PS, Garhi raided the petitioner's house on the night of 31.1.01 to check whether <NAME> who had escaped from police custody was at the house. A torch light was used as there was no electricity.) 4.2 On 14.2.01, SHO, <ORG>, Tohana along with other police officials had handcuffed the petitioner and his brother <NAME> and detained for a day. Not substantiated. (However, what is established is that the petitioner and his brother were taken to PS City Tohana on 14.2.01, for inquiries in connection with the report that petitioner's son <NAME> Singh and his associates had committed a double murder on 14.2.01. After a few hours of interrogation they were released). 4.3 On 22.6.01, <NAME>, younger son of petitioner was picked up (by Constables <NAME> and <NAME> in a vehicle driven by Constable <NAME>). He was confined at PS City, <NAME> and tortured. Substantiated only to the extent that <NAME> was picked up on 22.6.01 by police party and wrongfully confined at PS City, <NAME>. (In regard to alleged torture, the statement of <NAME> alone is available without corroboration). 4.4 <NAME>, Inspector, when he was SHO, PS <NAME> forcibly picked up one <NAME> on 26.7.01 and harassed him when <NAME>'s house was raided on 29.7.01. Not substantiated. (What is established is <NAME> had taken <NAME> on the instructions of ASP, <NAME> and examined him for an hour).

7. The report further shows that petitioner was involved in several criminal cases from 1972 and his son <NAME> was involved in more number of criminal cases from the year 1991, as detailed below :-

Cases in respect of petitioner :

1. FIR No. 275 dt. 13.10.72 u/s 61/1/14 Excise Act P.S. Sadar Kaithal.

2. FIR No.59 dt. 13.2.78 u/s 379 IPC PS <NAME>.

3. FIR No.231 dt. 22.7.85 u/s 25/54/59 Arms Act P.S. Sadar Kaithal.

4. FIR No.141 dt. 20.7.86 u/s 61/1/14 Excise Act <NAME>.

5. FIR No.142 dt. 25.4.91 u/s 25/54/59 Arms Act read with section 5 TADA Act <NAME>.

6. FIR No.147 dt. 25.4.91 u/s 285/336 I.P.C . P.S. Sadar Kaithal.

7. FIR No.219 dt. 17.7.91 u/s 324/323/506/34 IPC PS <NAME>.

8. FIR No.367 dt. 23.11.94 u/s 323/324/148/149 IPC PS Garhi.

9. FIR No.277 dt. 25.6.2001 u/s 332/353/225/186/511 IPC PS City, Jind.

(Note: The petitioner was convicted only in the first case. He was acquitted in all other cases.) Cases in respect of <NAME> :

a) FIR No.219 dated 17.7.91 u/s 323/324/506/34 IPC PS Sadar, Kaithal.

b) FIR No.395 dated 5.7.97 u/s 324/34 IPC PS Civil Lines, Hissar.

c) FIR No.242 dated 7.9.96 u/s 307/120-B IPC & 25/54/59 Arms Act , PS City, Tohana.

d) FIR No.245 dated 8.9.96 u/s 25/54/59 Arms Act , PS City, Tohana.

e) FIR No.112 dated 10.3.98 u/s 302/307/353/86/34 IPC & 25/54/59 Arms Act , PS Garhi..

f) FIR No.57 dated 31.3.99 u/s 392/395 IPC & 25/54/59 Arms Act , PS Indri, Karnal.

g) FIR No.99 dated 19.3.99 u/s 393/394/397/307/452 IPC , PS City, Yamunanagar.

h) FIR No.94 dated 21.6.99 u/s 399/401 IPC , 25/54/59 Arms Act , PS Malanwala, Distt. Firozepur, Punjab.

i) FIR No.8 dated 26.1.2001 u/s 223/224 IPC , <ORG>, Ludhiana, Punjab.

j) FIR NO.48 dated 14.2.2001 u/s 302/307/34 IPC and 25/54/59 Arms Act , PS City, Tohana.

k) FIR No.100 dated 16.2.2001 u/s 307/332/353/216 IPC and 25/54/59 Arms Act , PS Sadar, Fatehabad.

l) FIR No.38 dated 21.2.2001 u/s399/307/402 IPC and 25/54/59 Arms Act , PS City, Narwana.

m) FIR No.29 dated 16.3.2001 u/s 307, 120-B IPC and 25/54/59 Arms Act , PS City, Firozepur, Punjab.

n) FIR NO.149 dated 23.8.2001 u/s 25/54/59 Arms Act , PS Sadar, Kapurthala, Punjab.

(Note : <NAME> was convicted in regard to FIR 242/1996 and FIR No.245/1996. Sl. No. (c) and (d) above on 31.1.2002 and sentenced to undergo RI for six years and two years respectively) Position emerging from the records/CBI Report/arguments:

8. A careful examination of the facts, lead to the following inferences :

i) All allegations (relating to petitioner and his family members being taken to <ORG> Stations/<ORG> Posts and being questioned/beaten up/tortured) are in connection with the effort of <ORG> to find the whereabouts of <NAME>, whenever he was involved in a serious incident, that is (a) incident on 10.3.1998 when Joginder was suspected of killing a <ORG> constable, (b) incident on 25.1.2001 when Joginder escaped from <ORG> custody when he was being taken to court, and (c) incident on 13/14.2.2001 when Joginder was suspected of killing two persons at Tohana.

ii) Though there is some evidence of illegal detention and beating of petitioner and his relatives, the allegations of custodial torture are exaggerated and to a certain extent false.

iii) There is no medical evidence nor any visible scars/ marks/disability resulting from the alleged torture, either in the case of petitioner or his family members/relatives.

iv) The complaints of petitioner and his relatives are against different police officers of different police stations (totally unconnected with each other) in regard to incidents at different points of time, in March, 1998, April, 1998, July, 1998, January, 2001, February, 2001 and June, 2001.

v) The case of Petitioner is that he and/or his relatives were harassed, illegally confined, or tortured, to find out the whereabouts of <NAME>. The police contend that the allegations by petitioner and his relatives, are by way of a well conceived plot to prevent police investigation in regard to misdeeds by <NAME> and his associates and to pre-empt any action by the police against <NAME> or his family members.

9. We will next refer to the factors which indicate that petitioner and his relatives have made false and exaggerated claims in regard to illegal detention, torture etc., apart from suppressing material facts.

9.1) In his letter to this Court, petitioner has alleged that he was illegally confined by the <ORG> for 11 days from 10.3.1998 (one day at Dhamtan Saheb <ORG> Post and 10 days at <ORG> Station, Garhi). <NAME> (brother in law of petitioner) in his affidavit dated 13.5.1999 alleges that he was illegally detained for 2 days and again for 4 days. But in the writ petition filed by petitioner and <NAME> in <ORG> on 24.3.1998, it is alleged that the petitioner and <NAME> were confined by <ORG> between 10.3.1998 and 13.3.1998 (three days) and again for a day between 15.3.1998 and 16.3.1998.

9.2) Petitioner, in the letter to this Court, alleges beating and torture at Dhamtan Saheb <ORG> Post on 10.3.1998 and at <ORG> Station, Garhi for five days in <ORG> custody between 11.3.1998 and 16.3.1998. <NAME> alleges torture for 2 days (from 10.3.1998 to 12.3.1998) and again for four days (from 16.3.1998 to 20.3.1998). But in the writ petition filed in <ORG> on 24.3.1998 by petitioner and <NAME>, there is no allegation of beating or torture, but only expression of an apprehension that they may be arrested, harassed and tortured (Note : Petitioner blames his counsel for not mentioning the facts properly in the writ petition filed before <ORG>).

9.3) In the letter petition, petitioner completely suppressed the fact that he (along with <NAME>) had filed a writ petition on 24.3.1998 in <ORG> in regard to the said incident (between 10.3.1998 to 21.3.1998) and the fact that the said writ petition was disposed of on 27.4.1998 by <ORG> reserving liberty to file a criminal complaint.

9.4) In the letter petition, the petitioner has alleged four 'misdeeds' of police on 10.3.1998 : (a) His torture at the police post at the Dhamtan Saheb Police Post by <NAME>, ASI at the instance of Superintendent of Police and DSP, (b) Mistreatment of wife and daughters of the petitioner at the Dhamtan Saheb Police Post, (c) Rs.2,350/- being taken from his pocket by ASI <NAME>, and (d) Licensed gun, cartridges, arms licence and gold ornaments being illegally taken by ASI <NAME> on 10.3.1998. The <ORG> report finds that none of these four allegations is substantiated.

9.5) In the letter petition, the petitioner alleged that he had told police that he was not on good terms with his son <NAME>, that he had already disowned him and the family was having no connection with <NAME>. He even published a notice in '<ORG> in August, 1998 stating that he has no connection with his son <NAME>. In his affidavit dated 31.8.2001 (filed in this case on 1.10.2001), petitioner reiterates that he has disowned his son <NAME> and alleges that he did not have any contact with him; and that in spite of it, the police were continuously harassing him and his family members seeking information about the whereabouts of <NAME> and raiding his house and his relatives' houses to find out whether <NAME> was hiding there. But the <ORG> inquiry has categorically found that petitioner and his family members had not disowned <NAME>. They were regularly meeting <NAME> when he was in custody. Petitioner was traveling to meet his son <NAME> whenever he was being produced in courts, in respect of different cases. In fact petitioner received money from <ORG>, Tohana (Kacchi Union) of which he was a member, to meet the expenses of the travel (to meet his son) on 25.10.2000, 25.11.2000, 21.12.2000, 13.1.2001, 16.1.2001, 23.1.2001, 9.10.2001, 10.10.2001, 11.10.2001, 15.10.2001, 25.10.2001, 7.11.2001, 17.11.2001 and 20.11.2001. Further, the jail records showed that <NAME> was met by petitioner's wife on 26.8.1999, petitioner's brother <NAME> on 17.11.1999, 18.11.1999 and 1.3.2002, petitioner's uncle <NAME> on 20.11.1999, and petitioner's brother-in-law <NAME> on 5.3.2002.

10. There was thus reasonable cause for the <ORG> to think that the family members of <NAME> might know about his whereabouts. The repeated questioning of the family members of <NAME> in the year 1998 and 2001, either at their houses or by calling them to the <ORG> Station/Post was part of investigation process and cannot, per se, be considered as harassment or violation of Article 21. Whether the police exceeded their limits in questioning the petitioner or his relatives is of course a different aspect. The report of the <ORG> shows that there is prima facie evidence about petitioner and some of his relatives being illegally detained in <ORG> Station/Post and subjected possibly to some third degree methods, to extract information regarding the whereabouts of <NAME> Singh. At the same time, the report makes it clear that neither the illegal detention nor the alleged torture (if true) was of an extent, alleged by the petitioner and his relatives. The claims were clearly exaggerated and many a time false also. It is quite probable that the allegations against <ORG> were levelled and/or exaggerated to avoid enquiries by the <ORG> in regard to <NAME>.

11. This leads us to the question whether, in addition to directing <ORG> inquiry and prosecution of the officers concerned, on the facts and circumstances of this case, compensation should be awarded to petitioner and his family members, as a public law remedy for the violation of their fundamental rights under Article 21 of the Constitution.

Compensation as a public law remedy :

12. Though illegal detention and custodial torture were recognized as violations of the fundamental rights of life and liberty guaranteed under Article 21 , to begin with, only the following reliefs were being granted in writ petitions under Article 32 or 226 :

a) direction to set at liberty the person detained, if the complaint was one of illegal detention.

b) direction to the concerned <ORG> to hold an inquiry and take action against the officers responsible for the violation.

c) If the enquiry or action taken by the concerned department was found to be not satisfactory, to direct an inquiry by an independent agency, usually <ORG>.

Award of compensation as a public law remedy for violation of the fundamental rights enshrined in Article 21 of the Constitution, in addition to the private law remedy under the Law of Torts, was evolved in the last two and half decades.

13. In the Bhagalpur Blinding case, [<NAME> (II) vs State of Bihar  1981 (1) SCC 627], <NAME>, (as he then was), speaking for the Bench, posed the following question while considering the relief that could be given by a court for violation of constitutional rights guaranteed in Article 21 of the Constitution :-

"... but if life or personal liberty is violated otherwise than in accordance with such procedure, is the Court helpless to grant relief to the person who has suffered such deprivation? Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty."

The question was expanded in a subsequent order in Bhagalpur Blinding case [<NAME> (IV) vs State of Bihar  1981 (2) SCC

493), thus :-

"If an officer of the <ORG> acting in his official capacity threatens to deprive a person of his life or personal liberty without the authority of law, can such person not approach the court for injuncting the <ORG> from acting through such officer in violation of his fundamental right under Article 21 ? Can the <ORG> urge in defence in such a case that it is not infringing the fundamental right of the petitioner under Article 21 , because the officer who is threatening to do so is acting outside the law and therefore beyond the scope of his authority and hence the <ORG> is not responsible for his action ? Would this not make a mockery of Article 21 and reduce it to nullity, a mere rope of sand, for, on this view, if the officer is acting according to law there would ex concessionis be no breach of Article 21 and if he is acting without the authority of law, the <ORG> would be able to contend that it is not responsible for his action and therefore there is no violation of Article 21. So also if there is any threatened invasion by the <ORG> of the fundamental right guaranteed under Article 21 , the petitioner who is aggrieved can move the court under Article 32 for a writ injuncting such threatened invasion and if there is any continuing action of the <ORG> which is violative of the fundamental right under Article 21 , the petitioner can approach the court under Article 32and ask for a writ striking down the continuance of such action, but where the action taken by the <ORG> has already resulted in breach of the fundamental right under Article 21 by deprivation of some limb of the petitioner, would the petitioner have no remedy under Article 32 for breach of the fundamental right guaranteed to him ? Would the court permit itself to become helpless spectator of the violation of the fundamental right of the petitioner by the <ORG> and tell the petitioner that though the Constitution has guaranteed the fundamental right to him and has also given him the fundamental right of moving the court for enforcement of his fundamental right, the court cannot give him any relief."

Answering the said questions, it was held that when a court trying the writ petition proceeds to inquire into the violation of any right to life or personal liberty, while in police custody, it does so, not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the <ORG> is liable to pay compensation to them for such violation. This <ORG> clarified that the nature and object of the inquiry is altogether different from that in a criminal case and any decision arrived at in the writ petition on this issue cannot have any relevance much less any binding effect, in any criminal proceeding which may be taken against a particular police officer. This <ORG> further clarified that in a given case, if the investigation is still proceeding, the <ORG> may even defer the inquiry before it until the investigation is completed or if the <ORG> considered it necessary in the interests of Justice, it may postpone its inquiry until after the prosecution was terminated, but that is a matter entirely for the exercise of the discretion of the <ORG> and there is no bar precluding the <ORG> from proceeding with the inquiry before it, even if the investigation or prosecution is pending.

14. <CITATION> [1983 (4) SCC 141], the petitioner therein approached this Court under Article 32 of the Constitution alleging that though he was acquitted by <ORG> on 3.6.1968, he was released from jail only on 6.10.1982, after 14 years, and sought compensation for his illegal detention. This Court while recognizing that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of courts, civil and criminal, raised for consideration the important question as to whether in the exercise of its jurisdiction under Article 32 , this Court can pass an order for payment of money, as compensation for the deprivation of a fundamental right. This Court answered the question thus while awarding compensation:-

" Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this 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 Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis 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 <ORG> 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 <ORG> must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers."

<NAME> was followed in <CITATION> [1985 (4) SCC 677] and <ORG>CITATION> [1989 (4) SCC 730].

15. The law was crystallized in <CITATION> [1993 (2) SCC 746]. In that case, the deceased was arrested by the police, handcuffed and kept in a police custody. The next day, his dead-body was found on a railway track. This Court awarded compensation to the mother of the deceased. <NAME>, (as he then was) spelt out the following principles :-

"Award of compensation in a proceeding under Article 32 by this <ORG> or by the High <ORG> under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort.

Enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention.

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

[Emphasis supplied] Dr. A.S. Anand J., (as he then was) in his concurring judgment elaborated the principle thus :-

"... Convicts, prisoners or under-trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental rights by such persons. It is an obligation of the <ORG> to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody.

The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by <ORG> or under Article 226 by <ORG>, for established infringement of the indefeasible right guaranteed under Article 21 is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting 'compensation' in proceedings under Article 32 or 226 seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the <ORG> which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law. "

16. <CITATION> (1997 (1) SCC

416), this Court again considered exhaustively the question and held that monetary compensation should be awarded for established infringement of fundamental rights guaranteed under Article 21. This Court held :-

"Custodial violence, including torture and death in the lock ups strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society.

Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the <ORG> become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchy. No civilized nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him ? Can the right to life of a citizen be put in abeyance on his arrest. ... The answer, indeed, has to be an emphatic 'No'.

Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but it must be remembered that the law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true sense purposeful to make the investigation effective. By torturing a person and using third degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No society can permit it."

17. It is thus now well settled that award of compensation against the <ORG> is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21 , by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under section 357 of Code of Civil Procedure.

18. This takes us to the next question as to whether compensation should be awarded under Article 32 /226 , for every violation of Article 21 where illegal detention or custodial violence is alleged.

Whether compensation should be awarded for every violation of Article 21

19. <CITATION> [1987 (1) SCC 395], a Constitution Bench of this Court while considering the question whether compensation can be awarded in a petition under Article 32 , observed thus :-

"We must, therefore, hold that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32. The power of the court to grant such remedial relief may include the power to award compensation in appropriate cases. We are deliberately using the words "in appropriate cases" because we must make it clear that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the court in a petition under Article 32. The infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue act in the civil courts. Ordinarily, of course, a petition under Article 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of civil court. It is only in exceptional cases of the nature indicated by us above, that compensation may be awarded in a petition under Article 32. ....

If we make a fact analysis of the cases where compensation has been awarded by this Court, we will find that in all the cases, the fact of infringement was patent and incontrovertible, the violation was gross and its magnitude was such as to shock the conscience of the court and it would have been gravely unjust to the person whose fundamental right was violated, to require him to go to the civil court for claiming compensation."

(emphasis supplied) In Nilabati Behera (supra), this <ORG> put in a word of caution thus:-

"Of course, relief in exercise of the power under Article 32 or 226 would be granted only (when) it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, is possible. ....Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the courts have to act firmly but with certain amount of circumspection and self-restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law."

(emphasis supplied) In D. K. Basu (supra), this Court repeatedly stressed that compensation can be awarded only for redressal of an established violation of Article 21. This Court also drew attention to the following aspect :

"There is one other aspect also which needs our consideration. We are conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals. Many hard core criminals like extremists, the terrorists, drug peddlers, smugglers who have organized, gangs, have taken strong roots in the society. It is being said in certain quarters that with more and more liberalization and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation, it is felt in those quarters that if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may go scot-free without exposing any element or iota of criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot, however, be worst than the disease itself."

[Emphasis supplied] <CITATION> [2003 (7) SCC 749] and <CITATION> . [2005 (9) SCC 631], this Court warned against non-genuine claims:

"But at the same time there seems to be a disturbing trend of increase in cases where false accusations of custodial torture are made, trying to take advantage of the serious concern shown and the stern attitude reflected by the courts while dealing with custodial violence. It needs to be carefully examined whether the allegations of custodial violence are genuine or are sham attempts to gain undeserved benefit masquerading as victims of custodial violence."

<CITATION> [1995 (3) SCC 757], this Court refused compensation where the petitioner had exaggerated the incident and had indulged in falsehood. This Court held :

"Since, from the report of the <ORG> and our own independent appraisal of the evidence recorded by the <ORG>. we have come to the conclusion that <NAME> and <NAME> had been illegally detained by respondents 3 to 5 from the afternoon of 15.1.94 to 17.1.94, the <ORG> must be held responsible for the unlawful acts of its officers and it must repair the damage done to the citizens by its officers for violating their indivisible fundamental right of personal liberty without any authority of law in an absolutely high-handed manner. We would have been, therefore, inclined to direct the <ORG> Government of Haryana to compensate <NAME> and <NAME> but since <NAME> has indulged in false-hood in this Court and <NAME>, has also exaggerated the incident by stating that on 15.1.94 when he was way laid along with <NAME> and <NAME>, Advocate, two employees of respondents 6 and 7 were also present with the police party, which version has not been found to be correct by the <ORG>, they both have disentitled themselves from receiving any compensation, as monetary amends for the wrong done by respondents 3 to 5, in detaining them. We, therefore do not direct the payment of any compensation to them."

[Emphasis supplied]

20. Cases where violation of Article 21 involving custodial death or torture is established or is incontrovertible stand on a different footing when compared to cases where such violation is doubtful or not established. Where there is no independent evidence of custodial torture and where there is neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of human right violation, by persons having criminal records in a routine manner for awarding compensation. That may open the floodgates for false claims, either to mulct money from the <ORG> or as to prevent or thwart further investigation. Courts should, therefore, while jealously protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable <ORG> to discharge their duties fearlessly and effectively. While custodial torture is not infrequent, it should be borne in mind that every arrest and detention does not lead to custodial torture.

21. In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the <ORG> will have to pose to itself the following questions : (a) Whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death or whether custodial torture is supported by medical report or visible marks or scars or disability. Where there is no evidence of custodial torture of a person except his own statement, and where such allegation is not supported by any medical report or other corroboration evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, courts may not award compensation as a public law remedy under Article 32 or 226, but relegate the aggrieved party to the traditional remedies by way of appropriate civil/criminal action.

22. We should not, however, be understood as holding that harassment and custodial violence is not serious or worthy of consideration, where there is no medical report or visible marks or independent evidence. We are conscious of the fact that harassment or custodial violence cannot always be supported by a medical report or independent evidence or proved by marks or scars. Every illegal detention irrespective of its duration, and every custodial violence, irrespective of its degree or magnitude, is outright condemnable and per se actionable. Remedy for such violation is available in civil law and criminal law. The public law remedy is additionally available where the conditions mentioned in the earlier para are satisfied. We may also note that this Court has softened the degree of proof required in criminal prosecution relating to such matters. <CITATION> - 1995 (4) SCC 262, reiterated in <NAME> and <NAME> (supra),this Court observed :-

"Rerely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available...... Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues.......... The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact-situations and the peculiar circumstances of a given case....., often results in miscarriage of justice and makes the justice delivery system a suspect. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the <ORG> because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture."

Improving the present situation

23. Unfortunately, police in the country have given room for an impression in the minds of public, that whenever there is a crime, investigation usually means rounding up all persons concerned (say all servants in the event of a theft in the employer's house, or all acquaintances of the deceased, in the event of a murder) and subjecting them to third-degree interrogation in the hope that someone will spill the beans. This impression may not be correct, but instances are not wanting where police have resorted to such a practice. Lack of training in scientific investigative methods, lack of modern equipment, lack of adequate personnel, and lack of a mindset respecting human rights, are generally the reasons for such illegal action. One other main reason is that the public (and men in power) expect results from police in too short a span of time, forgetting that methodical and scientific investigation is a time consuming and lengthy process. Police are branded as inefficient even when there is a short delay in catching the culprits in serious crimes. The expectation of quick results in high-profile or heinous crimes builds enormous pressure on the police to somehow 'catch' the 'offender'. The need to have quick results tempts them to resort to third degree methods. They also tend to arrest "someone" in a hurry on the basis of incomplete investigation, just to ease the pressure. Time has come for an attitudinal change not only in the minds of the police, but also on the part of the public. Difficulties in criminal investigation and the time required for such investigation should be recognized, and police should be allowed to function methodically without interferences or unnecessary pressures. If police are to perform better, the public should support them, government should strengthen and equip them, and men in power should not interfere or belittle them. The three wings of the Government should encourage, insist and ensure thorough scientific investigation under proper legal procedures, followed by prompt and efficient prosecution. Be that as it may.

24. Custodial violence requires to be tackled from two ends, that is, by taking measures that are remedial and preventive. Award of compensation is one of the remedial measures after the event. Effort should be made to remove the very causes, which lead to custodial violence, so as to prevent such occurances. Following steps, if taken, may prove to be effective preventive measures:

a) Police training should be re-oriented, to bring in a change in the mindset and attitude of the Police personnel in regard to investigations, so that they will recognize and respect human rights, and adopt thorough and scientific investigation methods.

b) The functioning of lower level Police Officers should be continuously monitored and supervised by their superiors to prevent custodial violence and adherence to lawful standard methods of investigation.

c) Compliance with the eleven requirements enumerated in D.K. Basu (supra) should be ensured in all cases of arrest and detention.

d) Simple and fool-proof procedures should be introduced for prompt registration of first information reports relating to all crimes.

e) Computerization, video-recording, and modern methods of records maintenance should be introduced to avoid manipulations, insertions, substitutions and ante-dating in regard to FIRs, Mahazars, inquest proceedings, Port-mortem Reports and Statements of witnesses etc. and to bring in transparency in action.

f) An independent investigating agency (preferably the respective <ORG> or <ORG>) may be entrusted with adequate power, to investigate complaints of custodial violence against Police personnel and take stern and speedy action followed by prosecution, wherever necessary.

The endeavour should be to achieve a balanced level of functioning, where police respect human rights, adhere to law, and take confidence building measures (CBMs), and at the same time, firmly deal with organized crime, terrorism, white-collared crime, deteriorating law and order situation etc. CONCLUSION :

25. In this case, there is no clear or incontrovertible evidence about custodial torture, nor any medical report of any injury or disability. The grievance of the petitioner and his relatives is against different officers in different Police Stations at different points of time. More importantly, several of the allegations are proved to be exaggerated and false. We, therefore, do not consider this to be a fit case for award of compensation. All reliefs which should be granted in such a case, have already been granted by ordering an inquiry by the <ORG> and ensuring that the Police Officers named are prosecuted. The law will have to take own course.

26. This order will not come in the way of any civil court awarding compensation in an action in tort or the criminal court awarding compensation under section 357 CPC in the pending prosecution against any of the officers, if the charges are established. With the said observations, we dispose of this petition, as no further reliefs/directions are called for.

27. We record our appreciation for the effort put in by <NAME>, Amicus Curiae, in presenting the matter.