Shaffique, J. This appeal is filed by respondents 1, 3 and 4 in the writ petition challenging the judgment dated 14.3.2013 of the learned Single Judge in the writ petition. Respondents 1 and 2 herein are the writ petitioners who are hereinafter referred as the petitioners.
2. Alleging inaction on the part of the State and the law enforcing machinery in not preventing the murder of their son and further alleging that free and fair investigation has not been conducted into the said crime the writ petition was filed claiming compensation of Rs. 2 crores from the respondents.
3. The facts involved in the writ petition would disclose that petitioners' son, Balakrishnan was murdered on 18.9.2001. The petitioners have a case that the motive behind the murder is the events that followed on account of an affair, their son Balakrishnan had with Rasina, daughter one Abubacker. Rasina eloped with Balakrishnan on 26.5.2001 and they got married as per Hindu religious rites on 1.6.2001. The parents of Rasina were totally against the aforesaid marriage. Though attempts were made for settlement among the families, nothing happened. After some time, Balakrishnan and Rasina returned back. Petitioners allege that a conspiracy was plotted among Rasina's uncle one Mr. Parakkad Abdulla, Rasina's father and certain others to murder Balakrishnan and in furtherance of such a conspiracy, he was murdered.
4. Petitioners point out to the reports in newspapers regarding the conspiracy which took place in certain hotel rooms at Kasaragod on 9.8.2001 and 11.8.2001 for murdering Balakrishnan. Though police started investigation, they did not take appropriate steps to conduct proper investigation and to apprehend the accused. The 2nd petitioner therefore approached this Court by filing O.P. No. 9131/2002 complaining about the improper investigation into the matter. By judgment dated 10.4.2002, this Court directed the Circle Inspector of Police, Kasargod to complete the investigation and file a final report within a period of two months.
5. Alleging that no further investigation is being done in the matter, 2nd petitioner again filed W.P(C) No.
32794/2005 requesting to entrust the investigation to the Central Bureau of Investigation (CBI). In the said case, a statement was filed on behalf of the Superintendent of Police, CB-CID, Kannur, stating that there was no chance to arrest the first accused one Iqbal and 4th accused Gafoor, who according to them, were absconding. This Court disposed of the writ petition directing that the investigation of the crime shall be done under the direct supervision of Deputy Inspector General (DIG) of Police, Northern Region. Further directions were also issued as per judgment dated 30.1.2006.
6. Dissatisfied with such investigation, the 2nd petitioner again filed W.P(C) No. 29278/2006 to entrust the investigation to CBI. The said case was disposed of by judgment dated 13.4.2007. This Court observed that the investigation by local police was not meaningful and therefore CBI was directed to take up and complete the investigation. It is contended that even though CBI conducted further inquiry, the main conspirators behind the incident could not be brought to book. Still, final report was submitted by CBI on 11.6.2009. First accused was arrested on 28.7.2010. The petitioner again approached this Court by filing W.P(C) No. 6140/2011. Their grievance was that the conspirators were not made accused in the case. It was submitted by the CBI that a supplemental report was submitted before the Chief Judicial Magistrate's Court, Ernakulam on 15.11.2010 and the case against the 1st accused was committed to the trial court on 24.1.2011. Recording the said submission, by judgment dated 16.3.2011, the writ petition was closed.
7. The petitioners point out that there is absolute lack of proper investigation in the matter. The State police authorities were negligent in conducting investigation into a heinous crime. After the matter was entrusted with the CBI, at least the CBI could arrest the accused who was supposed to be abroad. Gross delay on the part of the police authorities in conducting investigation has resulted in a situation where the petitioners' right under Article 21 of the Constitution of India has been violated. In the said circumstances, as compensation for not providing adequate protection to the life of Balakrishnan and for not conducting proper investigation into the matter, the petitioners have invoked the public law remedy by filing the writ petition seeking compensation.
8. Counter affidavit was filed by the 1st respondent inter alia stating that on receiving information regrading the crime, police registered Crime No. 569/2001 where preliminary investigation was conducted by the Circle Inspector of Police, Kumbala. The Investigating Officer conducted inquest on the dead body of the deceased, collected dress items containing blood stains and sent the body for postmortem examination. The Investigating Officer visited the scene of crime, took photographs of the scene and collected material objects at the scene. Thereafter, the Investigating Officer seized the car bearing Reg. No. CTA 2697, which was reported to be involved in the crime. The finger print experts visited the scene and subjected the vehicle to scientific examination. The Investigating Officer seized the motor cycle bearing Reg. No. KL-14/B-7568, which was used by the deceased just before the incident.
9. The Investigating Officer arrested 2nd accused Mohammed Haneefa and 3rd accused Abdul Hameed on 25.9.2001. Weapon was recovered as per the statement of the 2nd accused made under Section 27 of the Indian Evidence Act. He also seized lodge registers which were maintained at Victoria Lodge and at City Tower Lodge, Kasaragod. Another vehicle with Reg. No. KL-21/M-300 was also seized in which the 1st accused travelled to Mangalore after commission of the offence. 98 witnesses were questioned and all formalities of investigation were complied with. The Investigating Officer included 4th accused also in this case for his participation in criminal conspiracy and the report had been submitted to the court.
10. Subsequently, the case was transferred to CB-CID, Kannur for investigation as per order dated 2.5.2003 of the DGP, Kerala and the case was renumbered as Crime No. 121/CR/KNR/2003. During the said investigation, the CB-CID obtained chemical examination report from the Regional Chemical Laboratory, Kozhikode on 17.9.2003. 5th accused was included as an accused. He was involved in the case for helping the 1st accused to escape to Mangalore and he was arrested on 9.1.2004. They obtained further information regarding accused nos. 1 and 4 and it was noticed that they have escaped to Gulf. 4th accused surrendered before the First Class Magistrate's Court, Kasaragod on 11.11.2005. The Investigating Officer also took action through Interpol for getting the details of absconding 1st accused Iqbal, who was in Gulf. The CB-CID examined 88 witnesses including those who were already questioned by the local police and a report was submitted on 19.9.2006. In the meantime, writ petition, W.P.(C)No.32794/2005 was filed for conducting CBI investigation. However, this Court directed the investigation to be conducted under the direction of DIG, Central Range, CB-CID. But, later as per directions issued in W.P.(C) No.29278/2006, the investigation was transferred to CBI on 2.5.2007. It is therefore submitted that police had taken all necessary action required for investigation of the case and there is no negligence on the part of the police.
11. Additional counter affidavit is also filed in the matter denying liability to pay compensation. It is indicated that the victim is entitled for compensation under Section 357 of the Code of Criminal Procedure.
12. The learned Single Judge having found that there was no negligence on the part of the police in not providing adequate police protection, however, came to a finding that there was negligence on the part of the State Police in conducting investigation of the crime and directed payment of compensation of Rs. 2,50,000/- to the petitioners with interest @ 6% from the date of filing the writ petition and cost of Rs. 15,000/-.
13. Heard Smt. Girija Gopal, learned Government Pleader and Adv. Sri. Kaleeswaram Raj, learned counsel appearing for respondents 1 and 2.
14. It is argued on behalf of the appellants that the writ petition is not maintainable as it barred by the general principle of constructive res judicata. Reference is made to the relief prayed for in W.P.(C)No.29278/2006 to indicate that though such a relief claiming compensation has been sought for in the earlier proceedings, since the court did not grant such relief, the very same relief cannot be claimed in the present writ petition. It is contended that there was no reason for the learned Single Judge to have come to a finding that investigation was not properly conducted. There was no material to suggest any bias or deliberate negligence on the part of the investigating officers. The accused were arrested and produced before court. The 4th accused surrendered by himself. Only the 1st accused could not be apprehended since he had left India. Even the CBI could arrest the first accused only after a considerably long period and therefore no negligence could be attributed to the investigating agency of the State. That apart delay in investigation by itself cannot give rise to a cause of action to claim damages.
15. On the other hand the learned counsel for the petitioners submitted that the maintainability of the writ petition was not taken as a defence and no materials were produced to substantiate the said contention. Though a claim was made in an earlier writ petition for compensation, no specific pleadings were made in that behalf. On merits it is contended that violation of Article 21 of the Constitution is clear from the fact that, there was considerable delay in completing the investigation and therefore the learned single Judge was justified in awarding compensation. It is also argued that compensation could as well be ordered under section 357A of the Code of Criminal Procedure. Both sides relied upon various judgments which we shall refer to at the time of considering the relevant issues.
16. Having regard to the contentions urged on either side, the following issues arise for consideration:
(i) Whether the writ petition is maintainable, applying the principle of constructive res judicata?
(ii) Whether the writ petition discloses a cause of action to invoke the public law remedy to be exercised by the writ court under Article 226 of the Constitution of India?
(iii) Whether the materials available on record was sufficient to prove negligence on the part of the police officials in conducting investigation?
(iv) Whether findings of fact are based on relevant materials which warrants award of compensation?
(v) Whether the award of compensation can be sustained for any other reason?
17. Before proceeding further, a reference to the judgment of the learned Single Judge may be useful to understand the manner in which compensation has been awarded. First of all, the learned Single Judge found that there was no failure on the part of the police authorities in giving adequate protection to the deceased Balakrishnan. Thereafter, the question as to whether a fair, impartial and proper investigation was done in the crime was considered. The learned Single Judge relied upon the fact that the petitioner had approached this Court on several occasions by filing repeated writ petitions and in the judgment dated 13.4.2007 in W.P(C) No. 29278/2006, this Court expressed the dissatisfaction about the manner in which the crime has been investigated. Thereafter, the CBI had taken up the investigation and it is found that the same could be achieved by the petitioners only after initiating repeated proceedings and after running from pillar to post complaining about the indifference, unconcern and apathy of the investigating agency and seeking remedial measures. It is therefore found that the fundamental rights of the petitioners have been violated as the police did not conduct proper investigation into the matter. It is further found that the inaction of the police was a clear case of lethargy or inefficiency and a reflection of indifferent attitude or unconcern of a citizen's right under Article 21 of the Constitution. Thereafter, having considered the law relating to development of public law doctrine, relying upon Rudal Shah v. State of Bihar (AIR 1983 SC 1086) Nilabati Behra v. State of Orissa (AIR 1993 SC 1960) and other judgments on the point, the court directed payment of compensation of Rs. 2,50,000/-. While coming to the said view, the learned Single Judge also referred to the judgments in Mangilal v. State of Madhya Pradesh (2004 K.H.C. 161), Sube Singh v. State of Haryana (2006 K.H.C. 386) and Sarwan Singh v. State of Punjab (1978 K.H.C. 612).
18. Coming to the first issue regarding the maintainability of the writ petition, the learned Government Pleader relies upon the pleadings in W.P(C) No. 29278/2006. In the said writ petition, the 2nd respondent, who was the writ petitioner, in addition to seeking an investigation through the CBI, has also claimed compensation. The learned Single Judge, who considered W.P(C) No. 29278/2006, by judgment dated 13.4.2007, did not feel it appropriate to grant any compensation. Therefore, it is contended that the present writ petition claiming compensation is barred by general principle of res judicata. She relied upon Explanation IV to Section 11 of Civil Procedure Code to contend that even if the court did not consider the claim for compensation, when a claim has been made and not considered in the judgment, it amounts to omission to sue or relinquishment of their right and therefore it was not possible for the petitioners to have claimed compensation in the present proceedings. It is submitted that the petitioners had a cause of action at the relevant time, they claimed compensation, but the same was not granted. She relied upon the judgment of the Supreme Court in State of Karnataka & another v. All India Manufacturers Organization & another, (2006) 4 SCC 683.
19. It is argued on behalf of the petitioners that though relief was sought for in the W.P.(C)No.29278/2006 claiming compensation, there was no pleadings to substantiate the claim. It was only claimed as one of the reliefs sought for without sufficient pleadings and therefore merely because of the fact that the learned Judge did not issue any directions in that regard, it does not amount to deprivation of the right of the petitioners to approach this Court claiming compensation. That apart, it is contended that claim for compensation after the CBI investigation, is on a separate cause of action which was not available to the petitioner at the time when the earlier writ petition was filed.
It is also argued that such a contention has not been raised by the appellants before the learned Single Judge. The learned counsel placed reliance upon several judgments which highlighted the application of the principle of res judicata in writ petitions and contended that the said principle has no application to the facts of the present case. Jaypore Sugar Company Ltd. v. Sales Tax Officer & Another, (1998) 9 SCC 358, was a case where the appellant challenged exigibility of sales tax in certain transactions. The said contention was rejected by the courts including the Supreme Court. A petition was filed seeking clarification, which was later dismissed as withdrawn. Thereafter, the appellant approached the High Court of Orissa challenging the order of the Tribunal. It was found that since the claim was already rejected in the earlier round of litigation, the relief sought was not maintainable on the principle of constructive res judicata. The Supreme Court held that in the initial challenge only the question of exigibility of tax was assailed. While challenging the exigibility of tax, the ground now taken that the benefit of C forms be made available in calculating the amount of sales tax to be paid was not taken.
In that background, it was held that the technical plea of constructive res judicata should not stand in the way of the appellant in prosecuting the appeal. In Ferro Alloys Corpn. Ltd. & Anr. v. Union of India & Others, (1999) 4 SCC 149, Supreme Court held that in order to attract the bar of Explanation IV to Section 11 CPC it has to be seen whether such a contention might and ought to have been made on the ground of defence or attack in such former proceedings. In Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra & Others, (1990) 2 SCC 715, a Constitution Bench held that the dispute raised by an application under Article 32 of the Constitution must be held to be barred by principles of res judicata including rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final. Reference is also made to the judgment in Forward Construction Co. & Others v. Prabhat Mandal (Regd.) m Andheri & Others, (1986) 1 SCC 100. In that case, the Supreme Court considered the scope and effect of constructive res judicata in proceedings under Articles 226 and 32 of the Constitution of India and held that ”Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided.” Constitution Bench in Olga Tellis & Others v. Bombay Municipal Corporation & Others, (1985) 3 SCC 545, was relied upon to emphasize that there is no estoppel or waiver when a claim is made on the basis of violation of fundamental rights. In M. Nagabhushan v. State of Karnataka & Others, (2011) 3 SCC 408, the Supreme Court considered the scope and effect of the principle of res judicata while considering the issue relating to a claim for compensation for the delay in payment of amount under the Land Acquisition Act. It was held “That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties.”
20. In Amalgamated Coalfields Ltd. v. Janapada Sabha, (1963 Supp (1) SCR 172) the Constitution Bench held as under:
“17. The question about the applicability of the doctrine of res judicata to the petitions filed under Article 32 came before this Court in another form in Daryao v. State of U.P.*, and in that case it has been held that where the petition under Article 226 is considered on the merits as a contested matter and dismissed by the High Court, the decision pronounced is binding on the parties, unless modified or reversed by appeal or other appropriate proceedings under the Constitution, and so, if the said decision was not challenged by an appropriate remedy provided by the Constitution, a writ petition filed in respect of the same matter would be deemed to be barred by res judicata. Therefore, there can be no doubt that the general principle of res judicata applies to writ petitions filed under Article 32 or Article 226. It is necessary to emphasise that the application of the doctrine of res judicata to the petitions filed under Article 32 does not in any way impair or affect the content of the fundamental rights guaranteed to the citizens of India. It only seeks to regulate the manner in which the said rights could be successfully asserted and vindicated in courts of law.”
*(AIR 1961 SC 1457)
21. In Direct Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra, (1990) 2 SCC 715, another Constitution Bench held that “It is well established that the principles of res judicata are applicable to writ petitions.” Further reference is made by the Constitution Bench to the judgment in Forward Construction Co. v.
Prabhat Mandal (Regd.), Andheri (1986) 1 SCC 100) and it is held as follows:
“The decision in Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri, further clarified the position by holding that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata.
22. It is therefore a settled position of law that general principle of res judicata and constructive resjudicata applies to writ proceedings as well, as can be seen from the judgments aforesaid. But the first question is whether such an issue can be raised at the appellate stage. Of course a question of law can be raised even at the appellate stage. In this case, the question of maintainability was not raised in the counter affidavit filed by the State. As to whether the petitioner had filed an earlier writ petition seeking compensation and whether such claim has been considered or rejected are purely questions of fact which is required to be verified before applying the principle of constructive res judicata. All the pleadings necessary for such a finding of fact has to be placed on record. Only the judgment in the writ petition is filed before court. From the judgment alone, it cannot be concluded that a claim has been raised and denied by the Court.
23. The learned Government pleader made available a copy of the writ petition to contend that the petitioner has in fact claimed compensation in the earlier round of litigation, but not allowed. Perusal of the writ petition in W.P. (C)No. 29278/2006 would show that though a relief is sought for no pleadings to claim compensation was incorporated in the pleadings. That part, the petitioner has a case that the writ petition was filed after the charge sheet was submitted by the CBI. Therefore, it is clear that the petitioners had a cause of action to claim damages after the entire investigation has been completed and after the accused were apprehended. The main case of the petitioner is that there was delay and negligence on the part of the investigating agency of the State Government in conducting investigation. As far as the claim for compensation for delay in investigation is concerned as long as the investigation is not complete, cause of action does not arise. Under such circumstances, we do not think that filing of W.P(C)No. 29278/2006 amounts to a bar for the petitioners to approach this Court claiming compensation. The writ petition is therefore maintainable.
24. Since the next three issues are interrelated those are considered together. The main ground on which the appellants rely upon is that sufficient materials were not available to come to the conclusion that there was lethargy, negligence or apathy on the part of the investigating officers of the State in conducting investigation. The argument is that the learned Single Judge only relied upon the observation made by this Court in the judgment in W.P(C) No. 29278/2006. It is stated that there was no independent consideration of the factual materials and the learned Single Judge did not verify the case diary of the case to ascertain the nature of investigation carried on by the State investigating machinery. In the absence of any such materials to come to the conclusion that there was negligence, there was no reason to invoke the jurisdiction of this Court to award compensation. It is argued by the learned counsel for the respondents that the delay in investigation by itself amounts to negligence on the part of the investigating agency. It is contended that the investigating agency was aware of the fact that the 1st accused was absconding and abroad. After the case was entrusted with the CBI, the CBI could arrest and detain the 1st accused. If that could have been done by CBI after six years of investigation by the State agencies, nothing prevented the State agencies to have taken up the said task even earlier. Therefore, it is argued that negligence is patent and the delay by itself will amply prove the negligence of the officers involved in investigation of the crime.
25. Perusal of the facts involved in the above case would show that the murder took place on 18.9.2001 at 10.30 p.m. and a crime came to be registered as Crime No.
569/2001 of Kasaragod Police Station on the same day. The respondents have a case that on 25.9.2001, accused 2 and 3 were arrested and the weapon was recovered. The place where the conspiracy is alleged to have made by the accused were inspected and the documents seized. The vehicle in which the 1st accused absconded to Mangalore was seized. 98 witnesses were questioned and all the formalities of investigation were complied with. The name of the 4th accused was also included for the participation in the conspiracy. The case was transferred to CB-CID, Kannur as per the directions issued by the Director General of Police on 2.5.2003. Their investigation further reveals that accused 1 and 4 had escaped to Gulf. The 4th accused who escaped to Mangalore was also arrested on 9.1.2004. 88 witnesses including those who were already questioned were examined and their statements were recorded. The 5th accused had surrendered before the Judicial Magistrate of First Class on 11.11.2005. The factual report was submitted to the Superintendent of Police on 19.9.2006 which was forwarded to the Headquarters on 25.9.2006. In the meantime, W.P(C) No. 32794/2005 was filed. Direction was issued to the CB- CID to continue investigation. Subsequently, by judgment dated 13.4.2007 in W.P(C) No. 29278/2006 dated 13.4.2007, the investigation was directed to be handed over to CBI. The CBI filed a report on 22.6.3009 before the Chief Judicial Magistrate, Ernakulam. They arrested the 1st accused on 27.7.2010 after obtaining letter rogatory under Section 166A of Code of Criminal procedure to UAE through Interpol, New Delhi. Supplemental report was filed under Section 173(8) on 15.11.2010.
26. Therefore, it can be seen that this is not a case in which there was deliberate negligence on the part of the investigating officers. It is not a case where they did not investigate the crime at all. Even during the initial stages of investigation, accused 2 and 3 were arrested. Accused Nos. 1 and 4 were absconding. The 1st accused could be arrested only in the year 2010 and that too after the CBI had taken up the investigation in the year 2007. Several witnesses had been examined. Their statements were recorded. All this would show that though there was delay in completing the investigation, it was not a case where the police has taken any deliberate action to delay the process. As rightly contended by the learned Government Pleader, the learned Single Judge did not consider any materials available in the case. In an instance where negligence is to be found in respect of an investigation, it was proper for the learned Single Judge to have verified the entire case diary relating to the investigation. Probably, such a step had not been taken by the learned Single Judge on the basis of the findings by another learned Single Judge in the judgment dated 13.4.2007 in W.P(C) No. 29278/2006. Apparently, in W.P(C) No. 29278/2006, the learned Single Judge was not considering the question of payment of compensation to heirs of the victim. It is stated in paragraphs 5 and 6 of the said judgment as under:
“5. I have gone through the said report dated 25.09.2006. I have gone through the factual report submitted by the Deputy Superintendent, C.B.C.I.D., Kasaragod, which is also appended to the said statement.
6. It is relevant to note that though it is alleged that accused 1 to 3 were the conspirators, no particular motive is seen alleged at all for accused 1 to 3 to commit the offence. In no way is accused 1 to 3 connected to the relatives of the girl who felt aggrieved by the marriage. It is not at all revealed as to what motivation prompted accused 1 to 3 to enter into a conspiracy as alleged. The story narrated by the investigator has so many loose ends that it is difficult for an ordinarily prudent person to accept and swallow the said version. I shall not enter into any further detailed discussion. I am satisfied and convinced that the investigation has not been done properly and adequately. The 1st accused is said to be abroad even now and in spite of the lapse of more than half a decade, no trace of the 1st accused has been made. Completion of the investigation without the arrest of the 1st accused would be a transparent case of negation of justice. I am satisfied that a break through in investigation can be archived only when the 1st accused is arrested. I may state the ultimate impression that I gather from the totality of circumstances by stating that the Court is satisfied that the investigators have only touched the tip of the iceberg. The assumption that accused 1 and 2 alone are responsible for the ploy does appear to me to be puerile.”
The said finding, we do not think, can be the basis to come to an independent conclusion that there was negligence on the part of the investigating officers. In the counter affidavit filed by the appellants, they have narrated the manner in which the investigation progressed. Apparently, they were not in a position to give a final report due to circumstances mentioned therein, especially since accused 1 and 4 could not be apprehended. It is also borne out from the counter affidavit that directions were issued by the DGP referring the investigation to CB-CID when it was found that the local investigation was unable to progress further.
27. Now, coming to the case law on the point. Smt.
Girija Gopal relied upon various judgments to substantiate the contention that delay in investigation cannot give rise to a cause of action to invoke public law remedy of directing payment of compensation. A three Judge Bench of the Supreme Court in Sube Singh v. State of Haryana & Others, (2006) 3 SCC 178, considered the question regarding award of compensation for violation of Article 21 of the Constitution of India. It is held that before awarding compensation, the court will have to pose to itself certain questions as to whether violation of Article 21 is patent and incontrovertible, whether the violation is gross and of a magnitude to shock the conscience of the court and whether the custodial torture has resulted in death or whether it is supported by a medical report or visible marks or scar or disability. In that case, the Supreme Court held that where there is no evidence of custodial torture of a person except his own statement and it is not supported by any medical report or other corroborative evidence and when there are indications that allegations are false or exaggerated fully or in part, courts may not award compensation as a public law remedy under Article 226 of the Constitution, but has to relegate the aggrieved party to traditional remedies by way of appropriate civil/criminal action. On this basis, it is argued that this is an instance where the contention is regarding delay in investigation, which is not supported by any incontrovertible material. It is neither patent nor incontrovertible and therefore the petitioners cannot invoke the public law remedy. The next case relied upon is S.P.S. Rathore v. State of Haryana & Others, (2005) 10 SCC 1. That was also a case where the court was concerned with the question whether an enquiry can be ordered into the question relating to implication of a person in false criminal case at the instance of the police. While considering the issue, the Supreme Court observed at paragraph 17, relying upon the decision in Khatri (IV) v. State of Bihar, (1981) 2 SCC 493 that in order to succeed violation of fundamental right has to be established and only then the petitioners can claim relief. Reliance is also placed on T.N. Electricity Board v. Sumathi, (2000) 4 SCC 543, wherein it is held that when a disputed question of fact arises and there is clear denial of any tortious liability, remedy under Article 226 may not be proper. It is argued that the contention urged by the petitioners with reference to delay in investigation cannot be termed as violation of fundamental right. The claim is for the negligence of the police officers involved in the matter or the State, which is a tortious liability to be established before a civil court when it is a disputed fact. Another judgment relied upon is Rabindra Nath Ghosal v. University of Calcutta & Others, (2002) 7 SCC 478, wherein the Supreme Court was considering grant of compensation under the public law remedy. It is held at paragraph 9 of the said judgment that every minor infraction of public duty by public officer cannot give rise to the grant of compensation in a petition under Article 226. The court, in exercise of extraordinary power under Article 226, would not award damages against public authorities merely because they have made some order which turns out to be ultra vires or there has been some inaction in the performance of the duties unless there is malice or conscious abuse. It is further held that before awarding exemplary damages, it must be shown that some fundamental right under Article 21 has been infringed by arbitrary or capricious action on the part of public functionaries and the sufferer was a helpless victim of that act. Yet another judgment relied upon is Hindustan Paper Corporation Ltd., v. Ananta Bhattacharjee & Others, (2004) 6 SCC 213, wherein at paragraph 8, the Supreme Court held as follows:
“8. The question which arises for consideration is as to whether in exercise of its jurisdiction under Article 226 of the Constitution of India such a direction was permissible in law. We are of the opinion that it was not. Public law remedy for the purpose of grant of compensation can be resorted to only when the fundamental right of a citizen under Article 21 of the Constitution is violated and not otherwise. It is not even violation of the provisions of the Constitution or a statute which would enable the court to direct grant of compensation. The power of the court of judicial review to grant compensation in public law remedy is limited. The instant case is not one which would attract invocation of the said rule. It is not the case of the respondents herein that by reason of acts of commission and omission on the part of the appellant herein the fundamental right of the respondents under Article 21 of the Constitution has been violated.”
Chairman, Grid Corporation of Orissa Ltd. & Others v. Sukamani Das (Smt) & Another, (1999) 7 SCC 298, is also relied upon wherein the Supreme Court held that in case of tortious liability when disputed questions of facts are involved, a petition under Article 226 is not a proper remedy. Reference is also made to a judgment of the learned Single Judge of the High Court of Andhra Pradesh in K.P. Hussain Reddy & others v. Executive Engineer M.I. Division, Nandyal & others, 2003 (3) ALT 143. The proposition in the said case is that delay in passing award under Land Acquisition Act is not a ground to claim more compensation by owner than to which he is entitled under Section 23 of the Act by way of damages. General principles relating to constitutional torts have been discussed by the learned Judge and ultimately at paragraph 53, it is held as under:
“(i) Torts like assault, battery, and false imprisonment which are trespass to person by Police Officer and investigating agencies which are not authorized under law are Constitutional Torts.
(ii) Awarding of compensation is public law remedy and available in a claim for deprivation of life and liberty alone. The compensation awarded is for the pecuniary and non-pecuniary loss suffered by the person due to illegal detention/imprisonment and is given to recompense for the inconvenience and distress suffered by the person.
(iii) The order of compensation is in the nature of palliative and is passed to mulct the violators of the fundamental rights in payment of monetary compensation.”
Further reliance is placed on the judgment of the Supreme Court in Khatri & Others v. State of Bihar & Others, (1981) 2 SCC 493. This judgment is relied upon to emphasize the position that unless the foundational fact is established by the petitioners, no relief can be claimed under Article 226 of the Constitution of India. That was a case where the question was whether the petitioners were blinded by police officials at the time of arrest while in police custody.
28. While arguing on the liability of the appellants to pay compensation, the learned counsel for respondents relied upon the judgment in Gang-Rape Ordered by Village Kangaroo Court in W.B., In re, (2014) 4 SCC 786, in which case, the Supreme Court, issued certain directions in respect of crimes against gang rape. The Supreme Court elaborately considered the issues concerning investigation, prevention of recurring such crimes and also victim compensation. The learned counsel took our attention to the manner in which the Supreme Court was considering the issue of victim compensation. Paragraphs 19 to 24 of the said judgment are relevant, which read as under:
“(iii) Victim compensation
19. No compensation can be adequate nor can it be of any respite for the victim but as the State has failed in protecting such serious violation of a victim’s fundamental right, the State is duty- bound to provide compensation, which may help in the victim’s rehabilitation. The humiliation or the reputation that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace.
20. In 2009, a new Section 357-A was introduced in the Code which casts a responsibility on the State Governments to formulate schemes for compensation to the victims of crime in coordination with the Central Government whereas, previously, Section 357 ruled the field which was not mandatory in nature and only the offender can be directed to pay compensation to the victim under this section. Under the new Section 357-A, the onus is put on the District Legal Services Authority or the State Legal Services Authority to determine the quantum of compensation in each case. However, no rigid formula can be evolved as to have a uniform amount, it should vary in facts and circumstances of each case. In State of Rajasthan v. Sanyam Lodha6, this Court held that the failure to grant uniform ex gratia relief is not arbitrary or unconstitutional. It was held that the quantum may depend on facts of each case.
21. The learned amicus also advocated for awarding interim compensation to the victim by relying upon judicial precedents. The concept of the payment of interim compensation has been recognised by this Court in Bodhisattwa Gautam v. Subhra Chakraborty7. It referred to Delhi Domestic Working Women’s Forum v. Union of India8 to reiterate the centrality of compensation as a remedial measure in case of rape victims. It was observed as under: (Bodhisattwa Gautam case7, SCC p. 503, para 18) “18. … If the court trying an offence of rape has jurisdiction to award the compensation at the final stage, there is no reason to deny to the court the right to award interim compensation which should also be provided in the Scheme.”
22. This Court in P. Rathinam v. State of Gujarat9, which pertained to rape of a tribal woman in police custody awarded an interim compensation of Rs 50,000 to be paid by the State Government. Likewise, this Court, in Railway Board v. Chandrima Das10, upheld the High Court’s direction to pay Rs 10 lakhs as compensation to the victim, who was a Bangladeshi national. Further, this Court in Satya Pal Anand v. State of M.P.11, vide order dated 5-8-2013, enhanced the interim relief granted by the State Government from Rs 2 lakhs to 10 lakhs each to two girl victims.
23. The Supreme Court of Bangladesh in State v. Mohd. Moinul Haque12 has interestingly observed that “victims of rape should be compensated by giving them half of the property of the rapist(s) as compensation in order to rehabilitate them in the society”. If not adopting this liberal reasoning, we should at least be in a position to provide substantial compensation to the victims.
24. Nevertheless, the obligation of the State does not extinguish on payment of compensation, rehabilitation of victim is also of paramount importance. The mental trauma that the victim suffers due to the commission of such heinous crime, rehabilitation becomes a must in each and every case.”
Another judgment relied upon is that of High Court of Madras in Govindaswamy and G. Kannan v. State of Tamil Nadu & Others, 2013 (4) CTC 809. It was held that if there is any scheme under Section 357(A) of Cr. P.C., it would enable the criminal courts as well as the Legal Service Authorities to recommend any payment of compensation as per the scheme. In the absence of any such scheme, the Constitutional Court has the power under Article 226 for directing payment of compensation. That was a case in which the petitioners had approached the High Court for compensation on the allegation that daughter of the 1st petitioner was raped and murdered. The High Court held that since there are several disputed questions of fact, the parties are to be relegated to the civil court. However, relying upon Section 357(A), the High Court made the observation aforesaid. A judgment of the Punjab and Haryana High Court is also relied upon. The said decision dated 27th May, 2011 is in Crl. Misc. No. M-42311 of 2007 (O & M). In the said case, the learned Single Judge of the said High Court directed payment of compensation to the petitioner for an amount of Rs. 3 lakhs on account of death of one Manoj and Babli, relying upon the judgment of the Supreme Court in D.K. Basu v. State of West Bengal, (AIR 1997 SC 610) and the judgment of the same Court in Karnail Singh & another v. State of Punjab & Others, 2005 (1) R.C.R. (Criminal) 581. The learned counsel placed reliance on the judgment of the Supreme Court in Chairman, Railway Board & Others v. Chandrima Das (Mrs) & Others, (2000)2 SCC 465. In that case, the Supreme Court held that a writ petition against the State or its instrumentality for payment of compensation is maintainable irrespective of availability of an alternate remedy, if the matter relates to violation of fundamental rights or enforcement of public duties. Paragraphs 11 and 12 are relevant, which read as under:
“11. Having regard to what has been stated above, the contention that Smt Hanuffa Khatoon should have approached the civil court for damages and the matter should not have been considered in a petition under Article 226 of the Constitution, cannot be accepted. Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would still be available under the public law notwithstanding that a suit could be filed for damages under private law.
12. In the instant case, it is not a mere matter of violation of an ordinary right of a person but the violation of fundamental rights which is involved. Smt Hanuffa Khatoon was a victim of rape. This Court in Bodhisattwa Gautam v. Subhra Chakraborty has held “rape” as an offence which is violative of the fundamental right of a person guaranteed under Article 21 of the Constitution. The Court observed as under: (SCC p. 500, para 10) Rape is a crime not only against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is violative of the victim’s most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21.”
Reference is also made to the judgment of the Supreme Court in Vakil Prasad Singh v. State of Bihar, (2009) 3 SC 355. In that case, the Supreme Court was considering the question as to whether delay of more than two decades in investigation and trial would result in violation of constitutional right guaranteed under Article 21 of the Constitution of India. It was held that the delay which depends upon the factual circumstances in a case clearly violates constitutional guarantee of a speedy investigation under Article 21 of the Constitution. Paragraphs 15 and 16 are relevant, which read as under:
“15. The power possessed by the High Court under the said provision is undoubtedly very wide but it has to be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. It is trite to state that the said powers have to be exercised sparingly and with circumspection only where the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. (See Kurukshetra University v. State of Haryana, Janata Dal v. H.S. Chowdhary and State of Haryana v. Bhajan Lal.) 16. In Bhajan Lal case while formulating as many as seven categories of cases by way of illustration, wherein the extraordinary power under the aforestated provisions could be exercised by the High Court to prevent abuse of process of the Court, it was clarified that:
“8. … It was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of the circumstances in which such power could be exercised.”
Learned counsel also placed reliance on a Division Bench judgment of this Court in Vibin v. State of Kerala, 2013 (1) KLT 103, wherein this Court was considering the question whether compensation can be paid under Article 226 of the Constitution under public law to victims who suffered infringement of their right to life and personal liberty guaranteed under the Constitution. Paragraphs 22 and 23 are relevant, which read as under:
“22. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much as protector and guarantor of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations, the Supreme Court reminds us.
23. Therefore, in view of the case law set out on this point under Art.141 of the Constitution of India, it is very clear in our mind that notwithstanding the right to remedies under Civil suits or Criminal proceedings, this Court can grant compensation in exercise of jurisdiction under Art.226 of the Constitution of India under public law to the victims who suffered infringement of their right to life and personal liberty guaranteed under the Constitution."
29. Though public law remedy by directing compensation to be paid to the victims/heirs of victims had been exercised by the constitutional court in several cases, no judgment had been cited before us to indicate that any such relief had been granted in an instance where there had been delay in investigation. If such a view is taken, every case in which investigation cannot progress on account of various circumstances, may result in claim for compensation. We are mindful of the observation made by the Supreme Court in Sube Singh (supra) wherein it is held that “Difficulties in criminal investigation and the time required for such investigation should be recognised, 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.”
30. The liability to pay compensation arises only if claimants suffer damages on account of any breach of duty, breach of obligation or negligence on the part of the persons liable to pay compensation. In the present case, compensation is claimed on the ground that there was delay and negligence in arresting and charge sheeting the accused in the case. The allegation points out that proper investigation has not been conducted in the case. Whether a proper investigation has been conducted or not is clearly a question of fact, which cannot be decided by a writ court. Therefore, it will be difficult to conclude that in cases where there is delay or negligence on the part of the investigating officers in conducting investigation, a claim for compensation arises. The enormity of judgments relied upon clearly indicate that an award of compensation by invoking public law remedy arises only in cases where an adjudication of disputed facts is not required.
31. The question is whether a mere negligence on the part of investigating officers or mere delay on the part of investigating officers in completing the investigation can give rise to a claim for compensation. Though it is argued by the learned counsel for the petitioners that from the delay caused by itself, it can be presumed that there is deliberate negligence on the part of the investigating officers, we do not think that such a proposition could hold good. To award compensation, sufficient materials should be available to indicate that the wrongdoers were responsible for culpable or deliberate delay or negligence in proceeding with the investigation. The learned Single Judge apparently did not deem it necessary to enquire into the manner in which investigation had been conducted. The fact that the petitioner had to approach this Court on several occasions by filing repeated writ petitions was taken as a reason to come to the conclusion that there was negligence on the part of the investigating officers in conducting investigation. There might be instances where the investigating officers will not be in a position to complete the investigation on account of various reasons. It might be a case where the crime could not be detected for want of evidence, the evidence obtained might be insufficient, material objects could not be recovered, the accused could not be apprehended etc. Such factors during the investigation process would take time and therefore we cannot agree with the view, that mere delay on the part of investigating officers in completing the investigation process would give rise to a claim for damages.
In the judgment in Vakil Prasad Singh's case (supra), the Supreme Court no doubt held that the right to speedy trial in all criminal prosecutions is an inalienable right under Article 21 of the Constitution. Such right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. That was a case in which an application under Section 482 of the Code of Criminal Procedure for quashing the proceedings pending against an accused for offences under Sections 161, 109 and 120B of Indian Penal Code read with Section 5(2) of Prevention of Corruption Act was dismissed. The Supreme Court was considering the question regarding the delay in investigation and prosecution and the right available to the accused. The genesis of the case dated back to 8th April, 1981. The police charge sheeted the case on 28th February, 1982 and the Magistrate took cognizance on 9th December, 1982. On 30th June, 1983, an application was filed for reinvestigation. The petition came to be filed under Section 482 of Code of Criminal Procedure on 7.12.1990. The same was disposed of on the same day, quashing the Magistrate's order, taking cognizance of the case and directing the investigation to be completed by the police. No progress was made in the investigation. The matter was taken up for hearing on 11th May, 2007. An affidavit was filed by the police stating there was a direction to complete the investigation and a fresh charge sheet was filed on 1st May, 2007. In this background, the Supreme Court considered the entire issue. This judgment does not lay down a proposition that delay in investigation can give rise to claim for damages. Several instances are pointed out before this Court, but in none of those cases, we have come across a law that has been laid down, which indicates that compensation can be paid on account of delay in investigation. The averments in the writ petition, which have been denied by the respondents, amount to disputed questions of fact. It is inter alia contended by the petitioners that there is deliberate negligence and bias on the part of the investigating agencies. When such facts amounts to disputed questions of fact, which cannot be decided on the materials placed on record, it will be unsafe to rely on the mere delay in investigation and direct payment of compensation by invoking the public law remedy in a writ petition. The only material relied upon by the learned Single Judge is the findings in W.P(C) No. 29278/2006. As already observed, the findings in the said judgment can never be the basis for a claim for compensation. Under such circumstances, we do not think that the learned Single Judge was justified in awarding compensation on the aforesaid ground of delay or negligence on the part of the investigating officers.
32. It is argued by the learned counsel for the respondents that under Section 357A of the Code of Criminal Procedure, the Government has to provide a scheme for payment to the victim compensation. By an interim order dated 2nd April, 2014, this Court observed as under:
“Today, when the matter came up, the stand of the learned Government Pleader is as follows:
“Government as per GO(MS) No. 37/14/Home dated 24.2.2014 accorded administrative sanction for the implementation of Victim Compensation Scheme (VCS) 2014 for giving adequate compensation to the victims of crime as envisaged in Section 357 A of Cr. P.C. Though administrative sanction was given, the VCS Fund was not constituted by Government yet, as envisaged in the above scheme.
In the above circumstances, Government decided that the request of the petitioner in the representation can be considered as and when the VCS Fund is constituted under the VCS and necessary steps will be taken to disburse eligible compensation as per rules, to the petitioner.
Accordingly, the representation is disposed of as above and the order of the Hon'ble High Court in the interim order is complied with.”
It is argued by the learned counsel for petitioners that even if a claim for compensation is not justifiable on the ground of delay in investigation or any other ground as contended by the appellants, still compensation can be paid by invoking the Victim Compensation Scheme as envisaged under Section 357A of Code of Criminal Procedure. It is in the said background that he relied upon the judgments of the Madras High Court and Punjab and Haryana High Court referred above.
33. As rightly contended by the learned counsel for the writ petitioners, though not as a claim for compensation for the delay or negligence on the part of the investigating agency, still, we are of the view that award of compensation can be justified in the event a scheme is framed under Section 357A of the Code of Criminal Procedure. It is relevant to note that the plight of the petitioners as parents of a murdered son is imaginable. As rightly pointed out by the learned Single Judge, they were running from pillar to post to see that accused are apprehended and charge sheeted. It might be true that the investigating agency could not achieve the results in a manner as visualized by the petitioners. Every victim or relative of victim, or even the public always feels that investigation into the crime should be done within a reasonable time. This is an instance where investigation could not be completed within a reasonable time on account of several factors. The petitioners were ventilating their grievances time and again by approaching this Court on several occasions. Taking into consideration their repeated strive for justice to see that justice is done to the victim, they have taken up the cause by engaging lawyers and approaching this Court on four occasions. Such an approach by the parents cannot be brushed aside by this Court. Therefore, though not for the delay in investigation, as a special case we are of the view that the petitioners are liable to be compensated for the ordeal they had undergone in taking up the matter before the court on several occasions. If an investigating agency is unable to complete the investigation within a time frame, it is the obligation of the superior police authorities to ensure that the investigation is entrusted to a better agency. The victim or their parents/relatives or any other person in public interest should not be forced to approach a constitutional court, whereas the State, through its police department, has to chalk out appropriate measures to entrust such investigation to better or specialised agencies to ensure that a proper investigation is conducted and the accused are charge sheeted within a reasonable time.
34. Under such circumstances, we are of the view that though not on the grounds mentioned by the learned Single Judge, for the agony and ordeal suffered by the petitioners, the compensation awarded by the learned Single Judge is justified. In the event, the petitioners are entitled for victim compensation as provided under any scheme framed by the Government under section 357A of Code of Criminal Procedure, the amount awarded hereunder shall be duly adjusted. Since we have not sustained the award of compensation on the ground pleaded and has moulded the relief, we set aside the direction to pay cost.
In the result, this writ appeal is disposed of confirming the award of compensation, but for different reasons as stated above, thereby modifying the judgment to the extent indicated above.
Tds/ Sd/-
Ashok Bhushan, Ag. Chief Justice Sd/-
A.M. Shaffique, Judge.