Hon’ble Amitava Lala, J.—The present writ petition is filed by the petitioner for the purpose of issuance of writ in the nature of habeas corpus in connection with production of body of Gulab, husband of the petitioner, and releasing the same; taking penal action by way of writ of mandamus as regards responsible persons for fake encounter and also compensation of Rs.5 lacs or whatever sum is to be fixed by the High Court along with incidental prayers. As because this Court was sitting in criminal writ jurisdiction in which the writ of habeas corpus is not assigned, the Court was about to release the matter when Mr. Yogesh Agrawal, learned Counsel appearing for the petitioner, did not press relief as regards writ of habeas corpus. Therefore, such prayer is deleted from the writ petition. The remaining prayers are about taking penal action against the responsible person and payment of compensation.

2. Mr. Neeraj Kant Verma, learned A.G.A., contended before this Court that there was no occasion of any encounter. Exchange of fire was made in between the police and criminals as a result whereof the death occurred. By relying upon the counter affidavit he said that after the encounter and post mortem, the family members were informed but they did not turn up to collect the body. Accordingly the same was cremated as per Hindu rites on the State expenses. He further contended that the petitioner’s husband had the criminal history, which will be available from the paragraph-4 of the counter affidavit and the annexures. Learned A.G.A. further contended that a final report has been filed before the appropriate Court of Magistrate, which was also accepted by such Court.

3. Mr. Agrawal relied upon a judgment reported in AIR 1988 SC 2181, Bharat Singh and others v. State of Haryana and others and said that in the cases of writ petition, unlike the civil suit, there should be pleadings of evidence about the availability of post mortem, final report etc.

4. Under such circumstances, we have directed the State to file supplementary affidavit annexing the post mortem report and final report etc. We have also directed the concerned Magistrate through Registry of the High Court as well as the District Judge to produce the case diary under a sealed cover. On 27th July, 2006 on the date of further hearing supplementary affidavit on behalf of the State as well as the case diary under sealed cover were made available to the Court. We have seen the annexures to the supplementary affidavit about the post mortem and final report and compared the same with the case diary of the Court of Magistrate and found both are identical. Therefore, procedural technicalities are no longer available for the Court.

5. Now, as a natural consequence, the question arise whether the writ Court will proceed with the matter in spite of final report and taking cognizance in connection thereto or not.

6. Mr. Agrawal relied upon a judgment reported in AIR 1993 SC 1960, Smt. Nilabati Behera alias Lalita Behera v. State of Orissa and others and contended that 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.

7. Mr. Verma relied upon a judgement reported in JT 2006 (2) SC 235, Sube Singh v. State of Haryana and others and unreported judgment of the Division Bench following the aforesaid judgement in Criminal Misc. Writ Petition No. 365 of 2003 (Smt. Rama Devi v. State of U.P. and others). According to Mr. Verma, the Supreme Court arrived at a situation in connection with the custodial torture. The Supreme Court held wh