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2003 DIGILAW 354 (GAU)

Dharma Kanta Nath v. Union of India (UOI)

2003-08-05

P.P.NAOLEKAR, RANJAN GOGOI

body2003
ORDER Ranjan Gogoi, J. 1. This Habeas Corpus petition has been filed by one Dharma Kanta Nath praying for a writ of Habeas Corpus for production of his son Sri Bipul Nath in the following facts and circumstances. According to the petitioner, on 7.10.2002 at about 2.30 A.M., his son Bipul Nath was picked up by some person in civil dress who appeared to be army/police personnel along with some surrendered militants. In the writ petition filed, it has been further stated that the aforesaid Bipul Nath was picked up from his residence at Survey, Beltola, Guwahati and that till the date of filing of the writ petition, i.e., 9.10.2002, the army/police personnel had not handed over the detenue Bipul Nath to the nearest police station as required under Section 5 of the Armed Force Special Powers Act, 1958. In the writ petition filed, it has been further stated that the son of the petitioner i.e. Bipul Nath is a contractor by occupation and though he is not involved in any militant or underground activities or organsiation, the army/police personnel have arbitrarily detained the petitioner's son whose whereabouts are not known. This Court while entertaining this writ petition on 10.10.2002 directed that if the detenue is in the custody of the Army or Police personnel, he shall be forthwith produced before the nearest police station. 2. The respondents No. 1 and 2 have filed an affidavit denying the allegations made in the writ petition and contending that the version of the writ petitioner that his son Bipul Nath was picked up by army personnel on 7.10.2002, is not correct. In the affidavit filed, it has been stated that on verification of records maintained by various army units, it has been revealed that no person by name of Bipul Nath had been arrested by the army and detained in custody. 3. The denial made by the respondents in the counter-affidavit made with regard to the arrest and detention of the son of the petitioner Bipul Nath has given rise to a disputed question, which cannot be resolved in a writ proceeding under Article 226 of the Constitution. 3. The denial made by the respondents in the counter-affidavit made with regard to the arrest and detention of the son of the petitioner Bipul Nath has given rise to a disputed question, which cannot be resolved in a writ proceeding under Article 226 of the Constitution. There being an affirmation by the petitioner that his son has been picked up by army/police personnel and a denial of the same, an effective resolution of the dispute would require a full-fledged investigation into various facts and events which may require the parties to adduce oral evidence. We are, therefore, of the view that instead of entering into any such investigation, it will be appropriate to direct an enquiry to be made with regard to the events leading to the disappearance of the detenue Bipul Nath by a competent judicial forum. It is our considered view that the aforesaid question should be decided by the learned District and Sessions Judge, Kamrup who may assign the matter for due investigation to one of the learned Additional District and Sessions Judge (Adhoc) manning the First Track Courts in the district. The investigation shall be completed within a period of 4 (four) months from the date of receipt of this order and thereafter, the report of enquiry/investigation shall be furnished to the Court. Office is directed to send the relevant papers to the learned District and Sessions Judge, Kamrup at Guwahati. 5. The matter shall be listed for hearing after the enquiry report is admitted.