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2003 DIGILAW 320 (JK)

Gh. Nabi Bhat v. State

2003-10-15

MUZAFFAR JAN

body2003
Writ petition has been filed praying for direction to the BSF to render assistance for completion of the investigation in the case of disappearance of Ghulam Nabi Bhat and also compensation of Rupees ten lacs. 2. The main submissions made in the petition are that Ghulam Nabi Bhat, brother of the petitioner, was taken in custody in the year 1992 by BSF Personnel and was not released thereafter. In pursuance of direction passed in petition under section 491/Cr.P.C. (No. 88/92) to disclose the whereabouts of the missing person Ghulam Nabi Bhat, the respondents appeared and denied to have caused the disappearance of the said person. An Inquiry was conducted by District Judge Bank Cases into the cause of disappearance and it was reported in the inquiry vide order dated 12.5.1998 that after the said Ghulam Nabi was arrested by BSF, the whereabouts of Ghulam Nabi are not known. Accepting the inquiry report. FIR 126/98 under section 343 was registered in police Station Nowhatta. The main grievance of the petitioner is that, inspite of lapse of nine years, the whereabouts of Ghulam Nabi are not known, after his arrest by BSF Personnel. 3. While admitting that the said Ghulam Nabi was lifted by BSF in a Gypsy on 8.6.1992 and FIR No. 124/96, under section 364,342 R.P.C. has been registered in police station Nowhatta, the stand and submission of the respondents is that after the arrest of the said Ghulam Nabi, by constabulary 107 BN of BSF, Ghulam Nabi was handed over to constable Labhour Singh No. 90191378, and Guard Commander N. K. Rama during night 9/10th of June 1992. The said Ghulam Nabi escaped from their custody, on the pretext of answering to a call of nature during the night. Departmental inquiry was conducted but as the constable Labhour Singh and Guard Commander N. K. Rama, were killed in separate militancy related action at different places, no action could be taken against them. On the submissions it is prayed that writ petition be dismissed as it is without merit. 4. Heard Learned Counsel for the respondents. 5. Facts which are not denied but are admitted are that Ghulam Nabi was arrested on 8.6.1992 by the constabulary of 106 BN of BSF at Kani Devar Hawal. On the submissions it is prayed that writ petition be dismissed as it is without merit. 4. Heard Learned Counsel for the respondents. 5. Facts which are not denied but are admitted are that Ghulam Nabi was arrested on 8.6.1992 by the constabulary of 106 BN of BSF at Kani Devar Hawal. It is also admitted that the said Ghulam Nabi was in custody after his arrest by the BSF and his custody was not shifted, either to the police or any other agency. Although the stand taken by the respondents is that the said Ghulam Nabi escaped during the night of 9/10 June 1992 from the custody of Labhour Singh and Guard Commander N. K. Rama but nothing has been submitted to show that a serious department action was initiated, immediately after the so called escape against these personnel for their failure, to prevent escape of said Ghulam Nabi. It appears that the stand, of escape has been set up to avoid legal consequences, and in the facts and circumstances as reflected from the record, the stand taken is not sustained from record, and appears to be highly improbable, and has to be rejected. The learned District Judge (Bank cases) in his enquiry has held, that during the custody of Ghulam Nabi he was visited by his relations and was found in good health, but afterwards the whereabouts of the said Ghulam Nabi were not either conveyed to the present petitioner or any of his relations, till date of conclusion of enquiry on 12.5.1998. 6. In the present circumstances, submission of the petitioner that the respondent No. 4, had caused disappearance of Ghulam Nabi during custody, is made out from record. 7. Learned counsel for the respondents Mr. Rathore, in fairness, submits that on custodial death, Rs. 1.00 lac is permitted as ex-gratia relief. In the instant case, as the whereabouts of said Ghulam Nabi are not known, after his arrest by the BSF and the defence set up of escape from custody is not made out, the State in these circumstances, has obviously failed in its duty either to protect the life of an innocent citizen who was arrested by an agency of the State, or to account for his disappearance in the custody of the BSF. This is one of those rare cases where, in order to balance the rights of the parties and ensure complete justice, the relief has to be moulded by allowing compensation in the facts and circumstances of the present case. Therefore, on negligence of the state to protect the life of a citizen, compensation would be permissible as held by the Apex court in S.S. Ahluwalia v. Union of India and others, 2001 AIR SCW 1130. 8. Therefore, for the reasons given above, the writ petition is allowed, with the direction that respondents will pay Rupees 1.00 lac as compensation to the petitioner. No order as to costs.