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2004 DIGILAW 451 (GAU)

Tehalamthak v. Union of India

2004-07-29

AMITAVA ROY, P.P.NAOLEKAR

body2004
JUDGMENT P.P. Naolekar, C.J. 1. The Petitioner, who is the brother of the missing person, namely Sri Wanghang Lamthak, has filed this petition seeking leave for issuance of a Rule of Habeas Corpus calling upon the Respondents to show cause to why the illegal detention and the wrongful confinement of the brother of the Petitioner by the Respondents shall not be set aside and quashed. 2. The necessary facts on the basis of which the relief is being claimed as alleged by the Petitioner are that on 2.2.2003, the Petitioner's brother Wanghang Lamthak and other colleagues were playing cards in one of their friend's residence. The Army personnel headed by Sri Annupam Roy, Lieutenant, Commanding Officer, 7/8 Gorkha regiment, Deomali, Tirap, Arunachal Pradesh, appeared suddenly in the said residence and picked up the brother of the Petitioner, Wanghang Lamthak and other companion Sri Ngonglin Boi and taken to the Army Camp. The Petitioner lodged an FIR before the Officer-in-Charge, Deomali Police Station on 5.2.2003 reporting about the missing of his brother. But no case was registered rather the complaint made by the Petitioner was forwarded by the Officer-In-Charge, Deomali Police Station, to the Army authority. It is alleged that neither the local police nor the Army authority are in a position to tell him the whereabouts of his brother and that neither the Army personnel who picked up his brother had informed the arrest of his brother to the local police nor his brother had been arrested under any legally executed warrant. According to the Petitioner, the Petitioner's brother is under the custody of the Army and, therefore, the Army authority may be directed to produce him. 3. After service of notice on the Respondents, the Respondents have entered appearance and filed their replies whereby they denied that the Petitioner's brother, namely Wanghang Lamthak was picked up by them on 2.2.2003 or he is in their custody. 3. After service of notice on the Respondents, the Respondents have entered appearance and filed their replies whereby they denied that the Petitioner's brother, namely Wanghang Lamthak was picked up by them on 2.2.2003 or he is in their custody. In view of complete denial of the fact of Petitioner's brother being in the custody of the Army authority, this Court has issued directions on 1.8.2003 to the Deputy Commissioner, Tirap District, Arunachal Pradesh to hold an enquiry with regard to the allegations of disappearance of Sri Wanghang Lamthak.; Pursuant to the aforesaid direction of this Court, enquiry was conducted by Shri J.P. Choudhury, the Deputy Commissioner, Tirap District, after examining all the witnesses and on 26.3.2004, the Deputy Commissioner, Triap District, submitted his final report. On appreciation of the statements made by the witnesses before the Enquiry Officer, the Enquiry Officer came to the conclusion that Sri Wanghang Lamthak has not been picked up by the Army authority from the residence of his colleague on 2.2.2003 and that Sri Wanghang Lamthak is not in custody of the Army authority. The counsel for the Petitioner challenges the report submitted by the Enquiry Officer before us. It is submitted by the counsel for the Petitioner that there is a direct evidence of two witnesses, i.e., EW-2, Samsek Moidam and EW-4, Yengsen Veti. Yengsen Veti, EW-4, has specifically stated in his evidence that Sri Wanghang Lamthak had been picked up by the Army personnel in their presence and his statements is in corroboration with the statement of the EW-1, the Petitioner. It is further submitted that the reasons for rejection of the statements of these witnesses EW-2 and EW-4 is that the EW-4 is drug addicted and that the statement of EW-2 has not been corroborated by any other witnesses are not correct. On the other hand, it is submitted by the learned Counsel for the State of Arunachal Pradesh, that the evidence of EW-3, Sri Ngonglin Boi who had admittedly accompanied the Army in search of certain insurgents has specifically stated that Sri Wanghang Lamthak had not been picked up by the army. 4. We have carefully perused the statements of the witnesses recorded by the Enquiry Officer and we find that EW-2, Samsek Moidam and EW-4, Yengsen Veti, have stated that they were sitting in the residence of Sri Yengsen Veti on 2.2.2003. 4. We have carefully perused the statements of the witnesses recorded by the Enquiry Officer and we find that EW-2, Samsek Moidam and EW-4, Yengsen Veti, have stated that they were sitting in the residence of Sri Yengsen Veti on 2.2.2003. In the evening Sri Wanghang Lamthak (the missing person) came there after sometime. While they were sitting and talking Sri Ngonglin Boi (EW-3) came at the entrance of the residence and shouted from outside whether Sri Thatwang Boi was there or not. EW-4 replied that Sri Thatwang Boi was not there. Immediately thereafter one person in civil dress wearing half pant came inside the residence. He was carrying a small fire arm. He directed all of us to stand up and enquired what we were doing there? He asked our names. Then he asked Sri Wanghang Lamthak what he was doing there and caught hold of him and asked to go with him and then he was taken away from the residence of Sri Veti. EW-1, the Petitioner who has received the information of missing of his brother from the residence of Sri Yangsen Veti from him stated before the Enquiry Officer that he learnt from Yangsen Veti that his brother Sri Wanghang Lamthak and Sri Sansi Moidam were sitting in his residence. One Sri Ngonglin Boi and the Army personnel came to his residence and enquired about one Sri Thatwang Boi of village Turet and thereafter the Army personnel took away Sri Wanghang Lamthak along with them. On the basis of this information, the Petitioner had lodged the FIR in the police station. The question put to EW-4 by the Enquiry Officer was whether he was an opium addict? He answered Yes, I used to take a little bit' On the basis of the answer, the Enquiry Officer came to the conclusion that this witness is an opium addict and, therefore, his evidence cannot be relied upon. From the aforesaid statement we do not find that there is an admission by this witness that he is an opium addict. What he stated is that he used to take little bit of opium. It does not construe that he is an opium addict. Therefore, we cannot agree with the Enquiry Officer's reasoning in rejecting the evidence of this witness on the ground that he is an opium addict. What he stated is that he used to take little bit of opium. It does not construe that he is an opium addict. Therefore, we cannot agree with the Enquiry Officer's reasoning in rejecting the evidence of this witness on the ground that he is an opium addict. The evidence of EW-2 has been rejected being uncorroborated, ignoring the statement of EW-4. The evidence to be relied upon does not require corroboration. The statement of the witnesses is to be judged not on the basis of quantity but the quality of evidence which is material. We find further corroboration from the statement of EW-1 who has lodged the FIR on the basis of the information given by EW-4. On over all consideration of the evidence placed before the Enquiry Officer, we cannot accept the finding recorded by the Enquiry Officer. According to us, it has been established in the enquiry that the brother of the Petitioner Sri Wanghang Lamthak has been picked up by the Army authority on 2.2.2003. 5. In D.K. Basu v. State of West Bengal : (1997) 1 SCC 416 , the Apex Court observed : The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, and protection of which is guaranteed under the Constitution, is a claim based on strict liability and is addition to the claim available in private law for damages for tortuous acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that live under a legal system wherein their rights and interest shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalizing the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizens. The old doctrine of only relegating the aggrieved to the remedies available in Civil law limits the role of the Courts too much as the protector and custodian of the indefeasible rights of the citizens. The Courts have the obligation to satisfy the social aspirations of the citizens because the Courts and law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim-Civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizens is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the bread earner of the family. 6. In other decision of the Apex Court reported in Nilabati Behera (Smt.) Alias Lalita v. State of Orissa and Ors. : (1993) 2 SCC 746 , held thus -- Thus to sum up, it is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometime perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of citizen by the public servant and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor of the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the Criminal Courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The objective is to apply balm to the wounds and not to punish the transgressor of the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the Criminal Courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim of the heirs of the deceased victim with respect to the same matter for the tortuous act committed by the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no straight-jacket formula can be evolved in that behalf. The relief to redress the rights of the citizen under the public law jurisdiction is thus, in addition to the traditional remedies and not derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damage in a given suit. 7. In view of the principles of law laid down by the Apex Court and on the basis of our finding that the Petitioner's brother Sri Wanghang Lamthak was piked up by the Army authority on 2.2.2003 and since then he has remained untraceable and the State Respondents as well as the Union of India have failed to trace out him and produce him before the Court pursuant to notice issued by this Court to that effect, we hold that the Army authorities have failed to produce a person taken into custody before us or before police authorities within 24 hours, following the ratio of law laid down by the Apex Court in D.K. Basu v. State of West Bengal : (1997) 1 SCC 416 , the family members of the missing person are entitled to compensation. Considering the age of the missing person being 37 years and his being the businessman, the ends of justice would meet, if we direct the Union of India to pay a sum of Rs. 1,25,000.00 as compensation to be paid to the family members of the missing person. Accordingly the Union of India is directed to pay a sum of Rs. 1,25,000.00 as compensation to be paid to the family members of the missing person. Accordingly the Union of India is directed to pay a sum of Rs. 1,25,000.00 to the family members of the missing person within a period of eight (8) weeks from today. The aforesaid amount of compensation shall be deposited to the Registry of this Court for payment to the Petitioner who in turn shall pay the entire amount to the wife and the two children of the missing person (as being informed by the learned Counsel for the Petitioner) on proper identification of the Petitioner by his counsel and after obtaining undertaking from the Petitioner that the amount withdrawn shall be paid to the wife and the two children of the missing person, namely Sri Wanghang Lamthak. 8. Needless to mention that the Petitioner on the next kith and kin of the missing person will be at liberty to seek other remedy by way of damages in any civil or other competent Court and the grant of any compensation therein would be in addition to the compensation awarded by us. The writ petition stands disposed.