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Gauhati High Court · body

2003 DIGILAW 29 (GAU)

Fatema Begum (Musstt) v. Union of India and Ors.

2003-01-17

D.BISWAS

body2003
D. BISWAS, J. — This petition has been filed to vendicate the death of petitioners' husband Kadir Ali, allegedly killed in Army custody and for appropriate directions for investigation by the CBI including direction for payment of compensation. 2. Petitioners' case is that their husband Kadir Ali and another Md. Mafizuddin were forcefully taken away on 22.8.2000 by the personnel of 15 Dogra Regiment of Indian Army from their residence. Md. Mafizuddin was released on the way in an unconscious state. Their husband Kadir Ali was shot dead and his body was found by the road side, 40 Kms away, from his house. It is further alleged that the Army personnel while taking away the above two persons identified themselves as members of 15 Dogra Regiment stationed at Dhekiajuli. They also disclosed that the deceased would be released on the next morning after interrogation. The family members immediately contacted the officer-in-Charge of Missamari Police Station, and the Officer-in-Charge of the Police Station confirmed that the deceased was in the custody of the said regiment. Next morning, on 23.8.2000, the petitioners also came to know from the officer-in-Charge of Thelamara Police Station that their husband was in the custody of the said Regiment at Dhekiajuli. On that day at 11A.M., Md. Mainul Haque, the eldest son of Kadir Ali was told by the Officer-in-Charge of Dhekiajuli Police Station that a person was shot dead by the Army and his dead body was lying by the road side. Eventually, the dead-body was identified as that of Kadir Ali. Post Mortem examination was held on the dead body on 24.8.2000 at Kanaklata Civil Hospital, Tezpur, Md. Mainual Haque lodged a complaint at Thelammara Police Station alleging that the Army Personnel of 15 Dogra Regiment shot dead his father while he was in custody. The -police registered Thelamara P.S. Case No. 44/2000 under Section 302/325 IPC. It is submitted that the deceased was a businessman and was in no manner connected with any anti-social and criminal activities. He was killed by the Army in cold blood. The petitioners approached the Government of Assam for payment of compensation, but no action was taken to compensate the petitioners in any manner. The petitioners, on death of the only earning member of the family, have no means to survive. Hence, the petition for reliefs as noted above. 3. He was killed by the Army in cold blood. The petitioners approached the Government of Assam for payment of compensation, but no action was taken to compensate the petitioners in any manner. The petitioners, on death of the only earning member of the family, have no means to survive. Hence, the petition for reliefs as noted above. 3. The respondent No. 1 to 4 submitted an affidavit, sworn-in by the respondent No. 4 the Commanding Officer of Dhekiajuli Army Camp at Batasipur. The answering respondent not only denied the allegation of taking of Kadir Ali by the Army, but also maintained that no Patrol Party of 15 Dogra Regiment went to Ulubari No. 2 Village on 22.8.2000. Denying their complicity altogether, the answering respondents submitted that an encounter took place near village Lambakat at 03:00 hours on 23.8.2000 while an Army Patrol of the Regiment was returning from Village Gauband and Abdul Kadir was killed in that encounter. The respondents further submitted that the dead body of the deceased Abdul Kadir was handed over to the Officer-in-Charge of Dhekiajuli Police Station along with a report and seizure memo dated 23.8.2000. 4. The Respondent No. 7 Superintendent of Police, Sonitpur in his affidavit, reiterated the contents of encounter and death of Abdul Kadir as submitted by the Army in the FIR lodged at Dhekiajuli Police Station. He also mentioned about the registration of Dhekiajuli Police Station Case No. 130/2000 under Section 307, read with Section 23 (1 -B) (A)/ 27 Arms Act. In addition, the respondent No. 7 referred to the FIR filed by Md. Mainul Haque, son of the deceased on 23.8.2000 at 10.30 P. M. before the Officer-in-charge of Thelamara Police Station alleging that his father was taken away by Army Personnel belonging to 15 Dogra Regiment from their house. Besides, from available records, the Superintendent of Police deposed that the Officer-in-Charge of Missamari Police Station was informed over telephone at 11 P.M./ on 22.8.2000 about the taking of the deceased by the Army into their custody. The Superintendent of Police also submitted that it was in the knowledge of the then In-charge of Thelamara Police Station that one Abdul Kadir had been picked up by the Army as reflected in the G.D. Entry No. 453 dated 22.8.2000. 5. The Superintendent of Police also submitted that it was in the knowledge of the then In-charge of Thelamara Police Station that one Abdul Kadir had been picked up by the Army as reflected in the G.D. Entry No. 453 dated 22.8.2000. 5. It would appear from the pleadings on record that the Army admit of killing of Abdul Kadir by gun shot, but in an encounter. The petitioners' claim is that Abdul Kadir was picked up from his residence along with another person and killed while in custody. In the given situation, it has to be determined whether Abdul Kadir died in the alleged encounter with the Army or he was killed by Army in custody. 6. The copies of the situation report, seizure memo and inquest report, all dated 23.8.2000 (Annexures-1, 2 and 3 respectively), do not throw any light about the circumstances in which Abdul Kadir got killed. Seizure list indicate seizure of one 12 bore factory made double barrel gun with bullets. Annexure-3, the inquest report apart from other routine information mention of a report by captain Chetan Singh that the deceased belonged to militant group. Annexure-4 is the F.I.R. lodged by the Army from which we find that the Army Patrol came across a person suspected to be in possession of Arms and, on being challenged, the said person opened fire towards the Army Patrol. The Army opened fire in retaliation killing the said person, later on identified as Abdul Kadir. 7. The FIR lodged by the Army raises a serious doubt about the nature of encounter. A lone person suspected to be in possession of weapon is not likely to open fire on an Army Patrol at the first instance. His initial reaction in that situation would be to escape. No injury or any damage in any manner to the Patrol Party have been alleged. It is on this background, we may refer back to the pleadings on record. 8. The statement made by the Superintendent of Police, Sonitpur, based on records available in the Police Station become decisive of the matter at hand. On 22.8.2000, at P.M. the Officer-in-Charge of Missamari Police Station was informed over phone by one Abdul Hakim about taking of Abdul Kadir into Army custody. 8. The statement made by the Superintendent of Police, Sonitpur, based on records available in the Police Station become decisive of the matter at hand. On 22.8.2000, at P.M. the Officer-in-Charge of Missamari Police Station was informed over phone by one Abdul Hakim about taking of Abdul Kadir into Army custody. That apart, the Superintendent of Police has deposed that the Officer-in-Charge of Thelammara Police Station also had the knowledge that Abdul Kadir had been picked up by 15 Dogra Regiment and this is reflected in the G.D. Entry No. 453 dated 22.8.2000. It would be appropriate to quote herein below the relevant paragraphs from the aforesaid affidavit which, in the option of this Court, is of immense significance. The Superintendent of Police stated as follows: "4. That, with regard to the statements made in paragraph 2 of the writ petition, the deponent begs to state that in connection with the death of Lt. Abdul Kadir it is noted that on 23/08/2000 at 9 am. Hav (No. 3975954) Daljit Singh Gulia of 15 Dogra Regiment C/0.99 APO camped at Batasipur under Dhekiajuli P.S. lodged an F.I.R. at Dhekiajuli PS stating that while he along with his staff conducted night patrolling inside Chariduar Reserved Forest then on 23/8/2000 at about 3 AM, they confronted a suspected Armed person at Vill Lambakhat (A Jungle Village inside the Reserved Forest). On seeing the suspected armed person, they warned him to stop. Instead of stopping, the armed person fired aiming at them. In return the Army patrolling staff also fired and as a result the armed person died at the spot. Later on the armed person was identified to be one Abdul Kadir of Vill No. -2 Ulubari Missamari and belongs to the militant outfit "MULTA". On that report a case vide Dhekiajuli P.S. Case No. 130/2000 u/s 307 r/w 25(IB)(A)/27 Arms Act was registered. However, relating to the same incident, on 24/8/2000 at 12 AM, Complt. Md. Mainul Haque, S/O Lt. Abdul Kadir lodged an ejahar at Thelamara P.S. that on 22.8.2000 at about 10:30 PM some Army Personnel in civil dress, who identified themselves as from 15 Dogra Regiment, came to the house of Md. However, relating to the same incident, on 24/8/2000 at 12 AM, Complt. Md. Mainul Haque, S/O Lt. Abdul Kadir lodged an ejahar at Thelamara P.S. that on 22.8.2000 at about 10:30 PM some Army Personnel in civil dress, who identified themselves as from 15 Dogra Regiment, came to the house of Md. Abdul Kadir and picked him up form his house for interrogation whereas the next morning , on enquiring from the Dhekiajuli PS they came to know that the body of Abdul Kadir is lying at Lambari Vill under Chariduar RF with bullet injuries. It was mentioned that one Md. Nazar Ali (15 yrs) was also picked up, assaulted and released with injury. On this report a case vide Thelamara PS case No. 44/2000 u/s 302325 IPC was registered and investigated. 11. That with regard to the statements made in paragraph 9 of the writ petition, the deponent begs to state that from the available records it is revealed that Lt. Abdul Kadir had been picked up by 15 Dogra Army as reflected by Thelamara PS DGE No. 543 dt. 22/08/2000 and Dhekiajuli PS GDE No. 662,663 and 664 dt. 22.8.2000. However, the exact sequence of events that led to the death of Lt. Abdul Kadir are not known as the concerned Army personnel of 15 Dogra Regiment could not be examined by Investigating Officer of Thelamara PS Case No. 44/2000 as they have been presently deployed outside the state. 13. That with regard to the statements made in paragraph 11 of the writ petition, the deponent begs to state that as per available record, Thelamara PS GDE No. 453 Dt. 22.8.2002, it is a fact that O.C. Thelamara came to know of picking up of one person called Abdul Kadir by 15 Dogra Army in the night of 22.8.2000. Also the then Officer-in-Charge of Dhekiajuli P.S. SI. M.K. Boruah has recorded in GDE No. 662,663 and 664 dt. 22.8.2000 that he was informed over telephone by the then Supdt. 22.8.2002, it is a fact that O.C. Thelamara came to know of picking up of one person called Abdul Kadir by 15 Dogra Army in the night of 22.8.2000. Also the then Officer-in-Charge of Dhekiajuli P.S. SI. M.K. Boruah has recorded in GDE No. 662,663 and 664 dt. 22.8.2000 that he was informed over telephone by the then Supdt. of Police, Sonitpur about the abduction of one Abdul Kadir by some people in a white Maruti Van and subsequently he conducted Naka in front of the Dhekiajuli P.S. .During the said Naka, he checked one white Maruti Van bearing No. AS-12/5692 belonging to 15 Dogra Regiment, Camp Batasipur and he was told by Captain Chetan Singh who was driving the vehicle that they had picked up one Kadir of Ulubari upon enquiring about a person at the back of the vehicle. On the other hand the Army personnel have not so far deposed before the I/O in connection with the Thelamara P.S. Case No. 44/2000 u/s. 302/325 IPC to give their version. However, in their deposition before the I/O of Dhekiajuli P.S. Case No. 130/2000 U/S 307 IPC R/W Section 25(I-B)(A) Arms Act they have alleged an encounter details of which have been given in Para 4." 9. The statement above establish beyond all shadow of doubt that the Officer-in-Charge of Dhekiajuli Police Station who had recorded G.D. Entries No. 662, 663 and 664 dated 22.8.2000 was informed by the Superintendent of Police, Soniktpur about abduction of Abdul Kadir by some unknown people in a white Maruti Van and, on such information, the Officer-in-Charge had carried out search of vehicles in front of Dhekiajuli Police Station. During the course of check and search, the police found the Maruti Vehicle No. AS-12/5692 belonging to 15 Dogra Regiment, Batasipur Camp, Captain Chetan Singh, who was driving the vehicle, told the Officer-in-Charge that they had picked up one of Ulubari Village. Besides, the Officer-in-Charge of Thelamara Police Station was also informed over phone at about 11 p.m. on that very night that Abdul Kadir was picked up by the Army. The G.D. Entry No. 453 dated 22.8.2000 recorded by the Officer-in-Charge of Thelamara Police Station also indicate that Abdul Kadir was picked up by the Army, as alleged. 10. The veracity of the above statement made by the Superintendent of Police on the basis of official records has not been challenged. The G.D. Entry No. 453 dated 22.8.2000 recorded by the Officer-in-Charge of Thelamara Police Station also indicate that Abdul Kadir was picked up by the Army, as alleged. 10. The veracity of the above statement made by the Superintendent of Police on the basis of official records has not been challenged. This is suggestive that the deceased was picked up by the Army, as alleged. Next day, his dead body was recovered from wayside at a distant place. The story of encounter, in the given situation, appears to be nothing short of a blatant lie. That apart, the affidavit on behalf of the Union has been filed by the Commanding Officer of the concerned Army Camp who, undoubtedly, is not the authority having power to swear an affidavit on behalf of the Union. Therefore, the affidavit filed by the respondent No. 4 is of no importance. No reliance, as such, could be placed upon it. The ratio available in para-8 of the Judgment of the Apex Court in Gazi Khan alias; Chotia-Versus-State of Rajasthan and another( AIR 1990 SC 1361 ) may be relied upon. 11. It, therefore emerges that the Army Personnel belonging to 15 Dogra Regiment of Indian Army had picked up Abdul Kadir from his residence on 22.8.2000, as alleged, and killed him while in custody. The story of encounter is nothing but an attempt to cover-up the killing of Abdul Kadir in custody. 12. The Union Government, therefore, cannot escape the liability in the instant case. The Government has a duty not only to compensate the family members of the deceased, but also to take law to its logical end to bring the offenders to book. The decision in D.K. Basu-Vs-State of West Bengal AIR 1997 SC 610 and Nilabati Behera-Vs-State of Orissa and Others (1993) 2 SCC 746 and the ratio available therein are applicable in the instant case. The State cannot avoid its liability for the misdeed of its employees which resulted in the death of a person in custody, howsoever, grave the offences the deceased might have been charged with. Law 'does not permit any authority to infringe upon one's right to life and act beyond the parameters of law which results in deprivation of the right to life, except in due course of law, is an offence which calls for exemplary punishment. Law 'does not permit any authority to infringe upon one's right to life and act beyond the parameters of law which results in deprivation of the right to life, except in due course of law, is an offence which calls for exemplary punishment. The Army personnel in the instant case, in gross abuse of powers, had killed Abdul Kadir while he was in their custody. Therefore, the death of Abdul Kadir in the manner aforesaid cannot but shakes the confidence of the people in the Army who are otherwise regarded as protector of the lives and property of the citizens. The untold miseries of the wives and children of the deceased on the death of their only bread earner call for no description. The State has no alternative but to compensate them. Considering various circumstances, this Court is of the opinion that an amount of Rs. 2 Lakhs by way of compensation will meet the ends of justice in the instant case. 13. Hence this petition is disposed of with a direction to the Respondent No. 1 to 4 to pay an amount of Rs. 2 lakhs to the writ petitions as compensation within a period of three months from today . Besides, the Respondent No. 7 is directed to ensure that investigation is completed within six months and Final report submitted. The respondent Nos. 1 to 4 are directed to cooperate with the investigating agency in all possible manner.