1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH S.B. Civil Writ Petition No.935/07 Abdul Rehman Vs. State of Raj. & Anr. 18.04.2007 Hon'ble Mr. Justice Mohammad Rafiq Shri S.B. Gupta for petitioner. This writ petition has been filed by the petitioner with the prayer that the respondents may be directed to pay to him a sum of Rs.10 lacs as compensation for the torture, cruelty, inhuman and third degree treatment given to him by the concerned police officails while he was in judicial custody from the period 13.4.2000 to 17.4.2000. It has been contended that petitioner was falsely implicated in the criminal case for 2 offence under section 8/20 of the NDPC Act due to which reason he was taken into police custody and was subjected to torture. Co-accused Rameshwar filed a complaint on 16.8.2000 against the police officials in the Court of Judicial Magistrate, First Class, Indergarh which was sent for investigation to the Police Station, Indergarh under section 156(3) Cr.P.C. Since the complaint was made against the police officials themselves therefore, there was no proper and fair investigation and finally the F.R. was submitted. The petitioner was falsely implicated was proved when he was discharged by the Court on 26.3.2002. Co- accused Rameshwar filed a protest petition and the learned Magistrate has disallowed the F.R. and taken cognizance 3 against the police officials by order dated 11.5.2006. Learned counsel for the petitioner in support of his arguments has cited the judgment of Hon'ble Supreme Court in D.K. Basu Vs. State of West Bengal, AIR 1997 SC 610. On the strength of this judgment, he argued that the respondents should be commanded to make payment of compensation to the petitioner. Co-accused Rameshwar may have been proceeded against them in a criminal complaint, but the question that the injuries sustained by the petitioner were caused by police official can be proved only by leading evidence. While the co- accused Rameshwar has proceeded to file criminal complaint, but the petitioner has not taken any such step. He however 4 submitted some representatiion and now filed this writ petition. These facts would be required to be proved by lead of evidence. Such a determination cannot possibly be made in exercising of writ jurisdiction. The judgment of D.K. Basu, supra, relied by learned counsel for the petitioner was one relating to custodial death and in that case death occurred in police custody in itself proved the liability of the police to explain how and why the person died while he was in their custody and when he died during custody, any such proof can be had from the nature and number of injuries sustained by the deceased which give rise to the presumption of torture. The aforesaid judgment, therefore, cannot apply to the facts of the present case. 5 The appropriate remedy for the petitioner in the facts of the present case would therefore be to file Civil Suit if so advised. The writ petition for determination of such disputed questions of facts can certainly be not entertained. I do not find any merit in this writ petition. The writ petition is therefore dismissed as being not maintainable. (Mohammad Rafiq),J. RS/-