JUDGMENT

T.S. THAKUR, J.

1. I have had the advantage of going through the order proposed by my esteemed and noble Brother Kalifulla J. While I entirely agree with the conclusions arrived at by His Lordship, I propose to add a few lines of my own.

2. The draft order has painstakingly and with remarkable lucidity dealt with the question of maintainability of a revision petition before the High Court and concluded that such a revision petition was indeed maintainable. I can make no addition to what Kalifulla, J. has said on that count except to place on record my deep appreciation for an articulate and erudite statement of the legal position on the subject. What has impelled me to add to what is already said is the importance of the second issue that falls for our consideration touching the true and correct interpretation of Section 197 of the Code of Criminal Procedure, 1973. Incidents of abuse of authority by public servants, despite several pronouncements of this Court in which such abuse has been deprecated, and the effect which such abuse has on the confidence of the people in the Rule of Law to which we are committed and the credibility of the institutions that are meant to preserve and nurture that confidence is what, in my opinion, calls for some elaboration. There is no gainsaying that excesses by those vested with power and abuse of official position by those who hold public offices cannot easily be eliminated, especially when respect for law is on the decline and enforcement machinery either insensitive or inadequate. Even when complete eradication of such excesses and abuse may be a far cry, the mechanism for redressal against such abuse ought to be efficient. Absence or failure of any such mechanism can lead to disturbing and in extreme cases disastrous consequences as was aptly prophesied by Lord Denning in his first Hamlyn Lecture of 1949 under the title 'Freedom under the Law' when he said:

'No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up-to date machinery, by declarations, injunctions and actions for negligence... This is not the task of parliament.... The courts must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare state; but abused they lead to a totalitarian state. None such must ever be allowed in this country.'

3. The above was said about civilized, highly developed countries with credible institutional backup. It is more so in the case of nascent democracies around the world. Experience in this country has shown that excesses are often committed by those in power. This Court has in several pronouncements expressed grave concern over the insensitivity of state authorities in protecting the basic rights of citizens and even gone to the extent of laying down principles that would bind such authorities to act humanely in situations that keep recurring. Of these decisions, cases dealing with custodial violence stand out in bold relief where this Court has deprecated incidents of torture and other inhuman, cruel or degrading treatment declaring such acts to be clear violations of citizens' fundamental right to life guaranteed under Article 21 of the Constitution of India. For instance in D.K. Basu v. State of West Bengal [JT 1997 (1) SC 1 : 1997 (1) SCC 416], this Court came down heavily on custodial torture and resultant de