Appeal Nos
5073751985 From the Judgment and Order dated 991985 of the Kerala High Court in TRC Nos 29 30 and 31 of 1985
AS Nambiar Mrs Shanta Vasudevan PK Manohar and CN Sreekumar for the Appellants
BP JEEVAN REDDY J Civil Appeal Nos
5073 75185
These appeals arise from a common judgment of the Kerala High Court in a batch of three tax revision cases
The question relates to the interpretation of Section 82A of the  658 In exercise of the power conferred upon it by Section 10 of the Kerala Sales Tax Act the State of Kerala issued a notification RS0415 of 1971 providing for an exemption in respect of the tax payable under the said Act in regard to the turn over of the sales of newsprint by the newsprint plant in the State for the period of two years from the date of starting production of the newsprint by the said plant  The appellant Hindustan Paper Corporation Limited entered into an agreement with the Government of Kerala in the year 1974 reiterating the said exemption
The relevant portion of the agreement reads thus The Government of Kerala with a view to help the project to tide over the difficulties in the initial stages and to establish itself agree to exempt the turnover relating to the sale of the products by the corporation from the payment of sales tax for a period of two years from the date of starting of production of the newsprint
 A major portion of the newsprint manufactured at the factory located within Kerala is sold in the course of inter state trade and commerce
During the assessment years relevant to the period of the two years from the date of commencement of production at the Kerala Factory the appellant claimed exemption not only from the State sales tax by virtue of the aforesaid notification and agreement but also from Central Sales Tax under and by virtue of sub section 2A of Section 8 of the 
The Sales Tax Officer accepted the claim under the State Sales Tax Act but rejected the claim under the 
The appeals preferred by the appellant to the Appellate Assistant Commissioner and the Sales Tax Appellate Tribunal were dismissed whereupon it approached the High Court by way of revisions under Section 41 of the State Sales Tax Act
The High Court too disagreed with the contentions urged by the appellant and dismissed the tax revision cases
Hence these appeals
The dispute between the parties in brief is thus the appellant says that exemption granted to it by the aforesaid notification issued under the Kerala Sales Tax is a general exemption within the meaning of Section 82A and therefore the inter state sales effected by it are equally exempt from Central Sales Tax by virtue of Section 82A
On the other hand the 659 case of the Government of Kerala is that the exemption granted to the appellant under the State Sales Tax Act is not a general exemption but a conditional one further the exemption operates only in certain specified circumstances
Accordingly they say the provision contained in Section 82A does not go to exempt the inter state sales of the appellant
The inter state sales effected by the appellant are those failing under Section 3A of the 
The liability to pay Central Sales Tax on inter state sales arises by virtue of sub section 1 of Section 6
Sub section 1A of Sec 6 says that a dealer shall be liable to pay tax under the Central Act on sale of goods effected by him in the course of inter state trade or commerce notwithstanding that no tax would have been leviable under the Sales Tax law of the appropriate State if such sale had taken place inside the State
Sub section 1 of Section 8 prescribes the rate at which the Central Sales Tax is chargeable where the goods are sold to persons and authorities mentioned therein while sub section 2 prescribes the rate in cases other than those falling under sub section 1
Sub section 2A of Section 8 which is material for our purpose reads thus 2A Notwithstanding anything contained in sub section lA of Section 6 or sub section 1 or clause b of sub section 2 of this section the tax payable under this Act by a dealer on his turnover in so far as the turnover or any part thereof relates to the sale of any goods the sale or as the case may be the purchase of which is under the sales tax law of the appropriate State exempt from tax generally or subject to tax generally at a rate which is lower than four per cent
Whether called a tax or fee or by any other name shall be nill or as the case may be shall be calculated at the lower rate
Explanation For the purpose of this sub section a sale or purchase of any goods shall not be deemed to be exempt from tax generally under the sales tax law of the appropriate State if under that law the sale or purchase of such goods is exempt only in special circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods
 660
What does sub section 2A says It opens with a non obstante clause which gives it an overriding effect over the provisions contained in Sections lA and over sub section 1 as well as clause b of sub section 2 of section 8
b section seeks to provide exemption to a dealer with expect to his turnover in so far as his turnover or any part thereof relates a sale of any goods the sale or as the case may be the purchase of which is under the sales tax law of the appropriate State exempt from tax generally or b where his turnover or any part thereof relates to the sale of any goods the sale or purchase of which is subject to tax generally at a rate which is lower than four per cent
In a case covered by a the Central Sales Tax will be nil while in a case falling under b Central Sales Tax shall he chargeable at the same lower rate at which the State sales tax is charge able
The explanation appended to sub section seeks to define the words exempt from tax generally
 The explanation is couched in negative terms
It says that for the purposes of the said sub section a sale or purchase of any goods shall not be deemed to be exempt from tax generally under the State Sales Tax law if i under the State law the sale or purchase of such goods is exempt only in specified circumstances or ii if under the  State law the sale or purchase of such goods is exempt only under specified conditions or iii if under the State law the tax is levied on the sale or purchase of such goods at specified stages or iv where under the State law the tax is levied otherwise than with reference to the turnover of the goods
The sole question in this case is whether the exemption granted under the aforesaid notification exempting the produce of a factory manufacturing newsprint from the State sales tax for a period of two years from the date of commencement of production in the factory can be called an exemption from tax generally
To put it differently the question is whether the said exemption is one operative only in specified circumstances or whether the exemption is one which is operative only under specified conditions in which case it cannot be said to be an exemption generally
The learned counsel for the appellant relies upon the decision of this Court in Pine Chemicals Limited vs Assessing Authority   a decision rendered by section Ranganathan V Ramaswami and ND Ojha J
According to him the said decision is conclusive on the question
661 The counsel for the State of Kerala on the other hand seeks to distinguish the said decision
According to him the said decision does not consider the precise question and aspect which really arises in these appeals
The learned counsel for the State of Kerala Sri G Vishwanath lyer puts his case thus if one is asked whether the exemption granted under the aforesaid notification is a general exemption his obvious answer would be No It is not an exemption which operates generally but an exemption limited to two years from the date of commencement of the production of newsprint in the factory
Similarly if a person is asked whether newsprint is exempt generally from the State sales tax in Kerala none would answer in the affirmative
He would say that the sale of newsprint in Kerala is exempt only in certain circumstances or subject only to a condition viz that newsprint is produced within two years of the commencement of the production in the factory located in Kerala
It is therefore idle to contend says Sri lyer that the sale of newsprint within Kerala is exempt generally from the State sales tax
In such a case says the counsel the provision contained in sub section 2A does not come into operation and the inter state sales of such newsprint cannot be said to be exempt from the Central Sales Tax
Mr lyer further says that the exemption notification issued by the Government of Kerala under Section 10 of the State Act does not exempt newsprint from the State sales tax al together
It grants exemption only in a specified situation viz in respect of the newsprint produced within the period of two years from the date of commencement of production by a factory manufacturing newsprint in the State of Kerala
The exemption would thus operate for different periods in the case of different assessees inasmuch as the date of commencement of production by all the manufacturers of newsprint may not be the same
Moreover the benefit of the said notification is available only where a factory goes into production after the commencement of the said notifica tion says Sri lyer He elaborates his submission saying that the exemption granted by the said notification is only in favour of certain dealers or a class of dealers in certain circumstances and is not in the nature of a general exemption
An exemption given under Section 10 of the State Act with reference to dealers or a class of dealers ie referable to clause ii of sub section 1 says the counsel can never be called a general exemption nor can it be characterised as an exemption operating generally 
A general exemption according to the learned counsel means a general unqualifiedunconditional exemption
Counsel says that the decisions of 662 this Court in Indian Aluminum Cables vs State of Haryana 38 STC 108 and in Industrial Cables Corporation V Commercial Tax Officer 35 STC 1 support his contention
The learned counsel places strong reliance upon the object and reasons appended to the bill proposing the substitution of sub section 2A in the year 1972
The objects and reasons relied upon by the learned counsel read thus Clause 5 Sub Clause a of this clause seeks to substitute a new sub section for the existing sub section 2A of Section 8 of the Principal Act
The new sub section seeks to bring out more clearly that an exemption or lower rate of levy under the local sales tax law of the appropriate State would be available in respect of an inter state sale of goods only if such exemption or lower levy is available generally with reference
to such goods or such class of goods under the local sales tax law
 According to Sri Iyer the said statement of objects and reasons puts the meaning purpose and object of the sub section beyond any doubt
On the other hand Sri AS Nambiar learned counsel for the appellant corporation submits adopting the reasoning in Pine Chemicals that the circumstances or conditions contemplated by the explanation to sub section must be the circumstances and conditions attaching to the sale and not to the dealer
The exemption notification merely serves to identify the dealer and the goods entitled to exemption but it does not lay down any circumstances or conditions attaching to the sale of goods Newsprint
Sri Nambiar says that once the goods are identified viz that it is a newsprint manufactured by a factory within two years of its commencing production there is no further condition attaching to the exemption the goods are exempt generally
It is not a case where the exemption is hedged in by certain conditions nor is it a case where the exemption operates only in certain circumstances
The learned counsel submits that the decisions of this court in Indian Aluminum and Industrial Cables have been considered and explained by this Court in Pine Chemicals and therefore the principle of those decisions cannot be read as supporting the State s submissions
While we see the force in the submissions of Sri Iyer learned counsel for the State of Kerala we cannot give effect to the same in the light of 663 the binding decision in Pine Chemicals which deals with an almost similar exemption notification
The Government of Jammu  Kashmir had issued orders providing for exemption from the State sales tax both on raw materials and finished products for a period of five years from the date the unit goes into production Question had arisen whether the said exemption attracts the exemption contained in Section 82A of the Central Act The said question was answered in the affirmative by V Ramaswami J speaking for the Bench
The learned Judge examined the scheme of sub section 1 and lA of Section 6 as well as of sub sections 1 2 and 2A of Section 8 and then observed On a plain reading of Section 82 A of the Central Sales tax Act it deals with the liability of a dealer to pay tax under the Act on his interstate sales turnover relating to any goods on the turnover relating to such goods if the sale had taken place inside the State is exempt from payment of sales tax under the sales tax law of the appropriate State
It provides that if an intrastate sale or purchase of a commodity by the dealer is exempt from tax generally or subject to tax generally at a rate which is lower than 4 per cent than his liability to tax under the when such commodity is sold on inter state trade would be either nil or as the case may be shall be calculated at a lower rate
Explanation states as to when the sale or purchase shall not be deemed as to be exempt from tax generally under the sales tax law
That is to say an intrastate sale or purchase shall not be deemed as to be exempt from tax generally under the sales tax law
That is to say an intrastate sale or purchase of a commodity shall not be deemed as exempt from State tax generally if the exemption is given only 1 in specified circumstances or under specified conditions or 2 the tax is leviable on the sale or purchase of such goods at specified stages or 3 otherwise than with reference to the turnover of the goods
These conditions or limitations are therefore with reference to the transaction of sale or purchase
The main clause deals with the turnover of a dealer  which term would include any dealer  or any class of dealers  The existence or otherwise of the three Limitations under the 664 explanation above referred to on claiming exemption under Section 82 A of the will therefore have to be tested with reference to the transaction of sale or purchase as the case may be of the dealer who claims the exemption in respect of his intrastate sale or purchase of the same goods
Thus the specified circumstances and the specified conditions referred to in the explanation should be with reference to the local turnover of the same dealer who claims exemption under Section 82 A of the 
The learned Advocate General for the State contended that the conditions that the industr y should have been set up and commissioned subsequent to the Government Orders 159 and 414 above referred to and the commodity sold by him in order to claim the exemption under the said government order shall be those manufactured by that industry are conditions or specified circumstances within the meaning of the explanation and therefore the dealer Pine Chemicals is not entitled to any exemption under Section 82 A of the 
We are unable to agree with this submission of the learned counsel for the State
The facts which the dealer has to prove to get the benefit of the government orders are intended only to identify the dealer and the goods in respect of which the exemption is sought and they are not conditions or specifications of circumstances relating to the turnover sought to be exempted from payment of tax within the meaning of those provision
The specified circumstances and the specified conditions referred to in the explanation should relate to the transaction of sale of the commodity and not identification of the dealer or the commodity in respect of the exemption is claimed
These conditions relating to identity of the goods and the dealer are always there in every exemption and that cannot be put as a condition of sale
We have already held that not only sale by the manufacturer to dealer that is exempt under the government orders but since the General Sales Tax Act had adopted only a single point levy even the sub 665 sequent sales would be covered by the exemption order
Therefore the question whether the tax is leviable on the sale or purchase at specified stage does not arise for consideration
This is not also a case where the exemption is with reference to something other than the turnover of the goods emphasis added The learned Judge then dealt with the decisions of this Court in Indian Aluminum and Industrial Cables and distinguished them pointing out that the exemption concerned in those cases was clearly a conditional one
The learned Judge pointed out that the exemption concerned therein was with respect to sales of an undertaking supplying electrical energy to the public under a licence or sanction granted or deemed to have been granted under the 9 of 1910 of goods for use by it in generation or distribution of such energy The learned Judge pointed out that the two conditions mentioned in the said notification related to purchaser company being a licensed undertaking supplying electrical energy to the public and further that the goods sold to it are for use by the said undertaking in generation or distribution of such energy
Following the decision in Pine Chemicals we must and accordingly we do allow these appeals
No orders as to costs
NVK Appeals allowed


Summary:
Petitioner s son aged about 22 years was taken from his home In police custody at about 8 am on 1121987 by respondent No6 Assistant Sub Inspector of Police of the Police Outpost in connection with the investigation of an offence of theft
He was detained at the Police outpost On 2121987 at about 2 pm the petitioner came to know that the dead body of her son was found on the railway track There were multiple injuries on the body and his death was unnatural caused by those injuries
The petitioner alleged in her letter dated 1491988 which was treated as a writ petition under Article 32 of the Constitution that it was a case of custodial death since her son died as a result of the multiple injuries inflicted to him while he was in police custody and thereafter his dead body was thrown on the railway track
It was prayed in the petition that award of compensation be made to her for contravention of the fundamental right to life guaranteed under Article 21 of the Constitution
The defence of the respondents was that petitioner s son managed to 582 escape from police custody at about 3 am on 2121987 from the Police
Outpost where he was detained that thereafter he could not be apprehended in spite of a search and that his dead body was found on the railway track on 2121987 with multiple injuries which indicated that he was run over by a train
The respondents denied the allegation of custodial death and their responsibility for the unnatural death of petitioner s son
On 431991 this Court directed the District Judge to hold an inquiry into the matter and to submit a report
After hearing the parties and appreciating the evidence the District Judge submitted the Inquiry Report dated 491991
The District Judge found that petitioner s son died on account of multiple injuries inflicted to him while he was in police custody at the Police Outpost
The correctness of the finding of the District Judge in his report was assailed in this Court
The respondents contended that petitioner s son managed to escape from police custody at about 3 am on 2121987 that he was run over by a passing train and sustained the fatal injuries that the responsibility of the respondents for his safety came to an end the moment he escaped from police custody and that the factual foundation for State s liability for payment of compensation for violation of the fundamental right to life under Article 21 was absent
Allowing the petition this Court HELD per LS
Verma J on his behalf and on behalf of N Venkatachala J 101
There is no cogent independent evidence of any search made by the police to apprehend petitioner s son if the defence of his escape from police custody be true
On the contrary after discovery of the dead body on the railway track in the morning by some railwaymen it was much later in the day that the police reached the spot to take charge of the dead body
This conduct of the concerned police officers is also a significant circumstance to assess credibility of the defence version
591 G H 102
The medical evidence comprising the testimony of the doctor who conducted the postmortem excludes the possibility of all the injuries to the deceased being caused in a train accident while indicating that all of 583 them could result from the merciless beating given to him
594 H 595 A 103
An inquiry under Section 176 Cr
PC is contemplated independently by a Magistrate and not jointly with a police officer when the role of the police officers itself is a matter of inquiry
There was hand cuff on the hands of the deceased when his body was found on the railway track with rope around it
It is significant that the Report dated 1131988 of the Regional Forensic Science Laboratory mentions that the two cut ends of the two pieces of rope which were sent for examination do not match with each other in respect of physical appearance
This finding about the rope negatives the respondents  suggestion that the petitioner s son managed to escape from police custody by chewing off the rope with which he was tied
1595 G H 105
It is a case of custodial death and the deceased died as a result of the injuries inflicted to him voluntarily while he was In police custody at the Police Outpost
596 A 201
Award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply even though it may be available as a defence in private law in an action based on tort
This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings
596 G 202
Enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention
602 A 203
A claim in public law for compensation for contravention of human rights and fundamental freedoms the protection of which is guaranteed in the Constitution is an acknowledged remedy for enforcement and protection of such rights and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from and in addition to the remedy in private law for damages for the tort resulting from the contravention of the fundamental right
The defence of sovereign immunity 584 being inapplicable and alien to the concept of guarantee of fundamental rights there can be no question of such a defence being available in the constitutional remedy
It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaran teed by the Constitution when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution
602 B D 204
The Court is not helpless and the wide powers given to this Court by Article 32 which itself is a fundamental right imposes a constitutional obligation on this Court to forge such new tools which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution which enable the award of monetary compensation In appropriate cases where that is the only mode of redress available
603 D 205
The power available to this Court under Article 142 is also an enabling provision in this behalf The contrary view would not merely render the court powerless and the constitutional guarantee a mirage but may in certain situations be an incentive to extinguish life if for the extreme contravention the court is powerless to grant any relief against the State except by punishment of the wrongdoer for the resulting offence and recovery of damages under private law by the ordinary process
603 E F 206
If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law is to be real the enforcement of the right in case of every contravention must also be possible in the constitutional scheme the mode of redress being that which is appropriate In the facts of each case
This remedy in public law has to be more readily available when invoked by the havenots who are not possessed of the wherewithal for enforcement of their rights in private law even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies where more appropriate
603 G 208
The principle of which the Court s power under Articles 32 and 226 of the Constitution is exercised to award monetary compensation for 585 contravention of a fundamental right
604 B Rudul Sah vs State of Bihar and Another 1983 3 SCR 508 Sebastian M Hongray vs Union of India and Others  and   Bhim Singh vs State of J  K 1984 Supp
SCC 504 and  Saheli A Women s Resources Centre and Others vs Commissioner of Police Delhi Police Headquarters and Others   State of Maharashtra and Others vs Ravikant section Patil  Maharaj vs Attomey General of Trinidad and Tobago No2  Khatri and Others IV vs State of Bihar and Others and Union Carbide Corporation and Others vs Union India and Others   referred to
Kasturilal Ralia Rain Jain vs The State of Uttar Pradesh   distinguished
Ratanlal  Dhirajlal s Law of Torts 22nd Edition 1992 by Justice GP Singh at pages 44 to 48 referred to
In the present case on the finding reached It Is a clear case for award of compensation to the petitioner for the custodial death of her son
604 D 210
The deceased was aged about 22 years and had a monthly income between Rs1200 to Rs1500
A total amount of Rs150000 would be appropriate as compensation to be awarded to the petitioner in the present case
604 E 211
The respondent State of Orissa is directed to pay the sum of Rs150000 lo the petitioner as compensation and a further sum of Rs10000 as costs to be paid to the Supreme Court Legal Aid Committee
The mode of payment of Rs150000 to the petitioner would be by making a term deposit of that amount in a scheduled bank in the petitioner s name for a period of three years during which she would receive only the Interest payable thereon the principal amount being payable to her on expiry of the term
The Collector of the District will take the necessary steps in this behalf and report compliance to the Register judicial of this Court within three months
604 H 605 A 212The State of Orissa is expected to take the necessary further action to ascertain and fix the responsibility of the Individuals responsible 586 for the custodial death of petitioner s son and also take all available appropriate actions against each of them
605 C Per Dr AS Anand J Concurring 101
Convicts prisoners or under trials are not denuded of their fundamental rights under Article 21 and It is only such restrictions as are permitted by law which can be imposed on the enjoyment of the fundamental rights by such persons
It is an obligation of the State to ensure that there is no infringement of the indefeasable rights of a citizen to life except in accordance with law while the citizen is in its custody
607 E 102
The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts under trials or other prisoners in custody except according to procedure established by law
607 E 103
There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life
His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious
The duty of care on the part of the State is strict and admits of no exceptions
wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law
607 G 105The death of petitioner s son was caused while he was in custody of the police by police torture
A custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law
The defence of sovereign immunityin such cases is not available to the State
607 G 201
Adverting to the grant of relief to the heirs of a victim of custodial death foe the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortious act of the State as that remedy in private law indeed is available to the aggrieved party
608 A 587 202
The citizen complaining of the infringement of the indefeasable right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life he cannot get any relief under the public law by the courts exercising writ jurisdiction
608 B 203
The primary source of the public law proceedings stems from the prerogative writs and the courts have therefore to evolve new tools  to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law
608 C 204
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 indefeasable 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
608 H 609 A 205
The public law proceedings serve a different purpose than the private law proceedings
The relief of monetary compensation as exemplary damages in proceedings under Article 32 by this Court or under Article 226 by the High Courts for established infringement of the indefeasable right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasable rights of the citizen
609 B 206
The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights
Therefore which the court moulds the relief by granting compensation in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen
1609 C 207
The payment of compensation in such cases is not to be understood as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making monetary amends  under the public law for the wrong done due to breach of public duty of not protecting the fundamental rights 588 of the citizen
609 D 208The compensation is in the nature of the exemplary damages  awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort through a suit instituted in a court of competent jurisdiction orand prosecute the offender under the penal law
609 E 209
This Court and the High Courts being the protectors of the civil liberties of the citizen have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings
609 F G 210
The State of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law through appropriate proceeding
Of course relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case is possible
609 H 610 A 211
Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles
It may be necessary to identify the situations to which separate proceedings and principles apply and the courts have to act firmly but with certain amount of circumspection and self restraint lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law
610 D E Freedom under the Law
By Lord Denning First Hamlan Lecture 1949 referred to
Rudul Sah vs State of Bihar and Anr   referred to
In the facts of the present case the mode of redress which 589 commends appropriate is to make an order of monetary amend in favour of the petitioner for the custodial death of her son by ordering payment of compensation by way of exemplary damages
The State of Orissa should pay a sum of Rs150000 to the petitioner and a sum of Rs10000 by way of costs to the Supreme Court Legal Aid Committee
610 G