ORDER
Tejinder Singh Doabia, J.
1. “Whenever human dignity is wounded, civilization takes a step backward-flag of humanity must on each such occasion fly half-mast”. Such were the strong sentiments expressed by Dr. A.S. Anan.d, J, later Chief Justice of India, while dealing with the rights of a person who is subjected to custodial violence. (See D.K. Basu v. State (1997) 1 SCC 416 : (1997 Cri LJ 743).
2. It is the case of the petitioners that the rights conferred upon them under Articles 21 and 22 of the Constitution were violated in as much as not only the person but the property belonging to them was also subjected to worst type of violence.
3. Before noticing the facts, it would be apt to mention that what was said by the Supreme Court of India in the case of D.K. Basu v. State of West Bengal (1997) 1 SCC 416 : (1997 Cri LJ 743). This decision takes notice of the rights of the citizens. There is no dispute with the proposition laid down in the aforementioned case vis-a-vis rights to which a citizen is entitled to, however, there is another aspect of the matter also which is to the effect that is the State property to be damaged whenever there is a bandh or some agitation either sponsored by a group or by a political organisation? No doubt, the rights of the citizens are sacrosanct and the State owes a duty to respect these rights but the corresponding duty of the citizens to protect the State property is equally sacrosanct. It is this aspect of the matter which is also required to be taken note of.
4. Before dealing with this aspect of the matter, the facts as projected in one of the petition i.e. 859/2000 be noticed as under :
Petitioner after rendering 16 years of service in the Indian Army, retired as Havildar on 1st Oct ’93. It is submitted by the petitioner that after retirement, he joined Indian National Congress in April ’94. He is a member of Batwal community. It is submitted that he is the President of Jammu and Kashmir Batwal Welfare Association also. Petitioner submits that he has great regard to the ideals of secularism and socialism. According to him, the democratic ideals which are ingrained in the political party to which he belongs stand ingrained in him also. According to the petitioner, on 4th Aug ‘2000 an unfortunate incident took place in the native village of petitioner; a cow was slaughtered by some miscreants. According to the petitioner, these anti-social elements had a nefarious design of smuggling out bovine animals from the State of Jammu and Kashmir. On account of slaughtering of the cow, there was strong resentment among the people of the area. It is stated that the police authorities were not able to gauge the resentment of the public in time and this resulted in a strong public protest. Thousands of people are said to have gathered in the main bazar of village Dablehar. The situation, it is stated got out of control. The gathering which has been described by the petitioner as a “massive demonstration” was critical of the role played by the police authorities. It is stated that the culprits were identified and the police was making an all out effort to keep them in safe custody. Petitioner submits that the gathering which held a massive demonstration was of the view that the local police was hand in glove with the culprits whose names have been given in para 7 of the petition. It is stated that the respected citizens brought this matter to the notice of the Deputy Commissioner, Jammu. A committee was also constituted. The Deputy Commissioner and the concerned police authorities were impressed upon the facts that the culprits should be punished under the public Safety Act so that in future no such incident takes place. The petitioner was also keen to perform the last rites of the dead cow. It is stated that as the police officials were siding with the culprits, there was another massive demonstration on 5th Aug. ‘2000. In this demonstration, it became known that the dead body of he cow had been found near Jagti in Nagrota. It is stated that this led to a further protest in which the public was joined by the local traders. The local population of the town of RS Pura also felt agitated and they also joined the demonstration. In para 12 of the petition, it is stated that as the situation was getting out of control, the Border Security. Force was also deputed to see that no untoward incident takes place. It is stated that the members of other political parties i.e. BJP, National Conference, Peoples Democratic Party and some other political organisations also joined the massive demonstration. As the situation got out of control, the civil authorities imposed Curfew. There was flag march by the army and paramilitary , forces. After making mention of these facts, it is stated that in the night intervening 5th/ 6th August, 2000 at about 1 a.m., the house of the petitioner was raided by the police officials. They were led by respondent No. 8. It is stated that the window panes of the house of the petitioner were broken. He was dragged from his house to the main road and was taken to the police station, R.S. Pura. It is further stated that the wife and the children of the petitioner were also given severe beatings by the police officials. A specific assertion has been made that gold jewellery and cash was also taken in custody by the respondent public authorities. These assertions have been made in para 14 of the petition. The further assertion made in the same para is that the shirt and Pajama which the petitioner was wearing was torn. His arms and legs were tied with the same very clothes which the petitioner was wearing. It is further submitted that filthy abuses were hurled on the petitioner and he was given severe beatings by iron rods. The petitioner suffered injuries on his fingers. His hairs were also plucked. It is stated in para 15 of the petition that the left hand thumb and fingers and the left foot suffered fractures. According to the petitioner, he was not produced before the concerned Magistrate even though, the requirement of law is that this should be done within 24 hours of the arrest. With a view to support what is said by the petitioner, reliance is being placed on newspaper cutting, Annexure C with the petition. Reliance is also being placed on Annexure D with a view to show that the petitioner was not allowed to meet his family members. According to the petitioner, he remained in police custody upto 12th August, 2000. He was then shifted to Central Jail. According to the petitioner on 16th August, 2000, he was produced before the Special Judge, Jammu. When this was done, he was in handcuffs. According to the petitioner, false cases were registered against him. However, petitioner was able to secure bail order from the Special Judge, Jammu, on 26th August, 2000. According to the petitioner, the act of respondents in inflicting bodily injuries on the person of the petitioner and also causing extensive damage to his property is required to be dealt with in terms of the decision of the Supreme Court in the case of D.K. Basu (1997 Cri LJ 743) (supra).
5. In writ petitions 911 /2000, 777/2000, the allegations which have been made are ‘ similar to those which have been made in writ petition 859/2000 and which stand noticed above. Petitioners accordingly seek compensation.
6. The stand taken by the respondent in writ petition 911/2000 is that the factual position as indicated by the petitioner is not correct. It is stated that the petitioner was instrumental in destroying the valuable record maintained in Tehsil office, building of the Treasury and the local police station. It is stated that some other Government offices were also burnt. It is also stated that the house of a person belonging to a Gujjar family was also burnt. This led to registration of six cases under Sections 147, 148, 336, 335, 353, 427, 380, 435, 436 and 452 of the Penal Code. It is stated that an offence under Section 3/4 of the Jammu and Kashmir Public Property Prevention of Damage Act, 1995, also stood committed by the petitioner. It is submitted that the petitioner was arrested on 6th August, 2000 in pursuance of FIR which stood recorded under the penal provisions referred to above. It is further submitted that the situation in the town of R S Pura became tense on account of agitational approach of the petitioner and this necessitated his shifting alongwith his associates and also the accused persons involved in cow slaughtering from Samba Police Station. It is submitted that before this was done, they were medically examined by the Block Medical Officer, Ramgarh. The injuries which the petitioner attributes against his person are said to have been sustained on 6th August, 2000. It is stated that the story put forward by the petitioner that he was beaten after being taken into custody is not correct. It is further submitted that an enquiry was conducted. It is accordingly submitted that the State is not responsible for the alleged violence which the petitioner attributes against his person and personal property. It is stated that after receiving the information that a cow was slaughtered by four persons namely Tarlok Ram, Tarsem Lal, Prem Lal and Hari Chand, a First Information Report was lodged under Sections 298A and 429 of the RPC. When the police authorities reached the spot, it was found that the cow stood removed from the place of occurrence to village Dablerhar. It is stated that the petitioner took the benefit of this situation and instigated the mob. They wanted to kill the persons who were apprehended by the police in connection with the cow slaughtering. It is submitted that the petitioner was taking advantage of religious sentiments of the gathering. According to the respondent State, the petitioner was asked time and again to not to take advantage of the situation and he should not add fuel to the fire. It is stated that the petitioner and other persons were informed that the requisite action has been taken against the accused person under the penal provisions and that sternest action would be taken in accordance with the law against the guilty persons but the petitioner alongwith other persons kept on instigating the people and were exploiting the religious sentiments. On account of their active instigation, there was a large gathering of about 5 to 6 thousand people. The police station was attacked. Not satisfied with the damage so caused, the petitioner and other persons were leading the mob with the sole object of causing bodily harm to the persons who were in police lock up. This led to further damage to the public property. It is stated that the petitioner and other persons caused damage to the police vehicle bearing No. JK0-2C-4073. It is stated that a Constable namely Sikander Lal No. 302/BO was making an all out effort to save this police vehicle but the mob lead by the petitioner hit the police Constable. He sustained serious injuries and had to be shifted to Chandigarh. It is submitted that the damage was thus caused to the public property. It is stated that the police did resort to use of tear gas. This was found essential to disperse the gathering. Ten rounds of Self Loaded Rifle were also fired in the air. This was done with the permission of the Magistrate. It is stated that even when the mob dispersed, the petitioner and some other persons still kept on instigating the public and this led to further damage being caused to Tehsil office and other Government buildings. It is stated that the valuable record was destroyed. It is also stated that the furniture, computers and other material laying inside these Government buildings was damaged. This was done under the leadership of the petitioner and his associates. It is stated that not only the damage was caused to the public property but a hut (Kulla) belonging to a Gujjar family was also burnt. It was on account of these factors, six FIRs came to be registered.
7. After making mention of the above said facts, it is stated that the petitioner was arrested at 6.30 a.m. and not in the manner suggested by the petitioner. It is denied that the petitioner’s legs were tied with the rope or he was tied with the hook of ceiling fan. The allegation that the petitioner was beaten with Lathis is also denied. The further allegation that his head and moustache were shaved has also been denied. The allegation of the petitioner that he was forced to drink urine has also been denied. It is submitted that the petitioner was medically examined and for this reliance is being placed on the report of the doctor who examined him. The other allegation that the damage was caused to the property of the petitioner or some valuables were removed from the house of the petitioner is also being denied. It is submitted that all these are disputed questions of fact and cannot be gone into in this petition.
8. As indicated above, two issues are required to be gone into in these petitions. One issue is with regard to the rights of the citizens as conferred upon them by Articles 21 and 22 of the Constitution of India and the other is vis-a-vis duty of a citizen to see to it that the public property is not damaged.
9. The Supreme Court in D.K. Basu’s case (1997 Cri LJ 743) (supra) did go into the question concerning police powers including the requirement to pay monetary compensation when there is infringement of fundamental rights guaranteed by Articles 21 and 22 of the Constitution. It was observed that the police authorities should not resort to torturing of the citizens and what was quoted is being quoted again:
Torture” has not been defined in the Constitution or in other penal laws. Torture of a human being by another human being is essentially an instrument to impose the will of the “strong” over the “weak” by suffering. The word torture today has become synonymous with the darker side of human civilisation.
Torture” is a wound in the soul so painful that sometimes you can almost touch it, but is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralysing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself.
10. It was further observed that “Custodial torture is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity.” “In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four wells of police station or lock up. Whether it is physical assault or rape in police custody, the extent of trauma, a person experiences is beyond the purview of law.” The fact that custodial violence occurs and this is not peculiar, it was precisely for this reason, the Universal Declaration of Human Rights in 1948 was quoted. Article 5 of the said declaration makes mention of the fact that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The report of Royal Commission on Criminal Procedure was also taken note of in the aforesaid case by the Supreme Court. The fact that fundamental rights occupy a place of price in the Constitution of India and the fact that Article 21 provides that no person shall be deprived of his life and personal liberty except under the procedure prescribed under law was taken note of and ultimately what was required to be done by the police when a person is to be deprived of his liberty was indicated in para 35 of the judgment. What is said is being quoted below:–
We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:
1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by a least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lockup, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee live outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
6) An entiy must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
11) A police control room should be provided at all district and State Headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
11. With regard to the remedy available to a person the concept of Ubi jus, ibi remedium’ was quoted and it was observed that “there is no wrong without a remedy”. It was accordingly observed that a person whose person or personal liberty is violated, is entitled to compensation. What was observed in this regard is also being quoted below:
Thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of the compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the Criminal Courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State….
12. As indicated in the very beginning that there can be no dispute with the proposition that the State is under an obligation to see to it that the fundamental rights as conferred under Article 21 and 22 of the Constitution of India are not transgressed and if there is a need to detain a person, then the police authorities are to follow the norms indicated in the judgment referred to above. As indicated above, there can be no dispute with this proposition but one cannot lose sight of the fact that a citizen of this country also owes a duty to the State which duty is to the effect that the State property is not damaged. The loss caused to the State property is a loss to the nation; the public exchequer and ultimately it is the body of citizens which suffers on account of this wide spread loss. It was precisely for this reason, the chapter on fundamental duties was added in the Constitution of India, Article 51A reminds the citizens of this country that they owe a duty to safeguard the public property and to avoid violence. The citizens of this country have also been reminded that they owe a duty to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. I am conscious of the fact that this chapter of fundamental duties was added by Constitution (Forty Second Amendment) Act, 1976 and this Chapter has not been adopted by the State of Jammu and Kashmir, nevertheless, a special statute by the name of Jammu and Kashmir Property Prevention of Damage Act, 1995, exists. The purpose of this is to see that the citizens of this country and State subject do not indulge in activities which cause loss to the State property, which loss is ultimately borne by the citizens at large. The fact that a citizen of this country owes a duty to protect the State property is inherent in the very concept of citizenship, Citizenship carries with it the idea of connection or identification with the State and a participation in its functions. In Corpus Juris Secundum Vol. 14, at page 1127, it has been mentioned that the term “citizen” is derived from the Latin word “elvis”, and has been variously defined. In its primary sense, it refers to an individual in respect of his relation to, or connection with, a city. In a larger sense, it denotes one who, as a member of a nation or of the body politic of a sovereign state, owes allegiance to, and may claim reciprocal protection from its Government.” The citizen is a “constituent member of the sovereignty, synonymous with the people; a member of the civil State, entitled to all its privileges.” In Baker v. Keck DC III 13 F Supp 486, the obligations and rights of a citizen have been dealt with. It has been observed that “as a citizen, one sustains special, political, and moral obligation to the State and possesses social and political rights under the Constitution and laws thereof.” The term “citizenship” stands defined at page 1130 of the same Volume of the Corpus Juris Secundum. It carries with it the idea of connection or identification with the State and participation in its functions. If such is the meaning of terms citizen” and “citizenship”, and if a citizen enjoys certain privileges within the State and if a citizen has no identification except when he stands as the one with the state, then the question arises as to whether he is not bound to protect the State property? As indicated above, a citizen of this country owes certain constitutional duties to the State. The term basic duty and the word “duty” connotes “a human action which is exactly conformable to the laws which require us to obey them, as the duty of…. The term is sometimes used in the sense of “obligation”. It also includes legal as well as moral obligation to do or refrain from doing; that which one is bound of under obligation to do.” A duty is correlative with right, importing a determinate person to whom the obligation is owing as well as one who owes the obligation. In Corpus Juris Secundum Vol. 28, at page 597, the term “legal duty” has been defined “to imply the existence of some relation of duty, public or private, special or general, either by contract or as an implication of public policy; and has been defined as an obligation arising from contract of the parties of the operation of law; that which the law requires to be done or forborne to a determinate person or to the public at large, and is correlative to a right vested in such determinate person or in the public.” If the concept of citizenship and that of a duty and ‘legal duty’ as noticed above, is taken into consideration, then, there can be no dispute with the proposition that a citizen of this country owes a duty and as a matter of fact, is under an obligation to see that the State property is not damaged. If it is done as an individual, penal laws are there to take care of it. The State is also well within its right to invoke civil remedies and claim damages. There are statutes which provide for a collective fine also. Thus, where a damage is caused to the State property by a collective action, then collective fine payable by the residents of the concerned area can equally be imposed.
13. Therefore, plea of the petitioners who have come to this Court with a plea that they are required to be compensated by the State for the alleged violation of their rights to be examined then the State is equally well within its rights to claim damages from the persons who have caused damage to the State property. The concept of Ubi jus, ibi remedium is not a one way traffic. If a right is available to a citizen of this country to seek compensation for the alleged violation of his rights then the State is also not remedy-less; it has also a right to claim damages from the person who is responsible in causing damage to the State property by adopting a mode of violence, if the damage to State property is caused individually then the individual is liable and where the darn-age is caused by a mob violence sponsored by the political party, then that political party can also not be absolved of its obligation to protect the State property and that party can also be made liable to pay compensation for the damage caused to the State property by its workers.
14. The further question arises as to whether the State or the police authorities did commit the acts attributed to them and as alleged in the petitions and whether the State property was damaged by the persons against whom the First Information Reports were lodged. These are disputed questions of fact and cannot be gone into in these petitions. With a view to determine this factual aspect so that a firm finding of fact is recorded, it would be apt to give a direction to the Court where criminal cases are pending to go into the question as projected in the petitions. The writ petitions would be treated as claim petitions and the objections preferred thereto would be treated as counterclaims. If the petitioners or the respondents want to make any further amendment and want to bring some other facts in support of their claim, they are free to do so. Registry would send a copy of writ petitions and objections preferred alongwith a copy of this judgment to the Court where the criminal cases are pending. When the criminal cases are disposed of, findings vis-a-vis loss sustained by the petitioners and the loss caused to the State property and the person responsible for the said acts would also be recorded. The State or the petitioner and any intervenor is left free to get arrayed any political party to which any of the person responsible for causing loss to the State property belongs. In case, a finding is recorded that damage has been caused to the State property, then the political party whose membership the petitioners claim would be responsible to meet the claim as may be determined by the said Court. The Court where the criminal cases are pending would also see to it that these matters are disposed of at the earliest possible.
15. I am accordingly of the view:
i) That the citizens of this country have a constitutional right to see to it that their life and liberty is protected when they are free and this right is also available to them even when they are taken in custody. It is here the concept of damages against custodial violence comes in. This has been commented upon in D.K. Basi’s case (1997 Cri LJ 473) (SC) (supra). Therefore, the petitioner can claim damages for the violence done to them before they were taken in custody or for the violence done to their person or property after they were taken in custody;
ii) That the citizens of this country owe a duty to protect the State property. The damage which has been caused in this case includes damage to the old revenue record. This damage caused is irreparable, and therefore, the State is well within its rights to claim damages from those who are responsible for this. If this damage was caused individually, then that individual is liable; if the damage was caused collectively, then the body of citizens are collectively responsible and if this was done at the instance of a political party, then nothing prevents the State from getting damages from the concerned political party, responsible for creating a situation which led to a public demonstration and thereafter the violence and damage to the State property;
iii) That the question as to whether the petitioners are entitled to damages or the State is entitled to damage and who is to meet these damages is a question which cannot be gone into in this litigation. Therefore, the Criminal Court where the case is pending would go into all these questions and submit a report to this Court. On the basis of their report, which may be submitted, any of the parties’ can approach this Court again so that further directions are given by this Court in the exercise of writ jurisdiction.
16. Before parting with this judgment, if would be apt to mention that in the exercise of power conferred on this Court under Article 226 of the Constitution, this Court has ample power to secure attendance of a deponent of affidavit in Court for being cross-examined where it is not possible for the Court to come to a definite conclusion on the basis of affidavits so submitted. Such was the view expressed by the Supreme Court of India in the case of Ram Saran v. State of Punjab in Civil Appeal 36/63, decided on 16th September, 1963. Thus, this Court can, in the exercise of writ jurisdiction examine the witnesses and record its own finding. However, taking into consideration the fact that a trial is going on, on the criminal side and that Criminal Court is to deal with the matter, the issue is left to the decision of that Criminal Court and any of the parties seeking benefit of this judgment can approach this Court again for implementation of the findings which may be recorded by the Criminal Court.
17. If the petitioner-citizens of this country — want that “the flag of humanity should not fly over at half mast”, then they are under an obligation and should make every endeavour to see that the flag of this Na-tion-a symbol of sovereignty and national pride — flies for all times and over all other flags.
18. Disposed of as such.