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2006 DIGILAW 307 (GAU)

Thaneswar Nath v. Union of India

2006-03-29

ANIMA HAZARIKA, B.S.REDDY

body2006
JUDGMENT B.S. Reddy, C.J. 1. This is yet another case of a missing citizen, whose whereabouts are not traceable, which was common phenomena in the State some years ago. 2. The writ Petitioner is the father of one Sri. Padum Nath. This writ petition has been filed in the following circumstances: It is alleged by the Petitioner that his son Padum Nath was picked up by the Army personnel on 04.06.1998 from his residence at around 4.00 P.M. under Sipajhar Police Station and thereafter his whereabouts were not known till filing of the application. That, at the relevant time Sri. Padum Nath was working as Hindi Teacher of Pachim Darrang Bidyajyoti High School, Darrang. The Petitioner contended that under the provision of Section 5 of the Armed Forces (Special Power) Act, 1958 the Army is required to forthwith handover any person arrested by it to the nearest police station. But, in the instant case, the army having picked up the alleged detenue Shri Padum Nath on 04.06.1998 failed to produce him to the nearest police station as is required in law. The Petitioner and his family members apprehend that the alleged detenue has been subjected to torture by the Army entailing physical dangers to the life of the detenue. It is in these circumstances this habeas corpus petition has been filed seeking appropriate direction to the Respondents to produce the alleged detenue and present him before the nearest Court as is required under the law. 3. In the affidavit-in-opposition filed by on behalf of the 1st Respondent, it is stated that the alleged detenue Shri Padum Nath met the Officer Commanding Duni Camp on 03.06.98 along with the Gaonbura and as the Company Commander was going for operations at that time, he asked them to come back next day. Accordingly, the alleged detenue Padum Nath left the camp accompanied by the Gaonbura Shri G. Deka and did not visit the camp on the next day. The family of Padum Nath and the Gaonbura expressed innocence and did not disclose about his whereabout. It is stated that the Army did not apprehend Padum Nath on 4.6.1998 from his residence as alleged. 4. The family of Padum Nath and the Gaonbura expressed innocence and did not disclose about his whereabout. It is stated that the Army did not apprehend Padum Nath on 4.6.1998 from his residence as alleged. 4. This Court vide order dated 06.01.1999, having regard to the averments made in the affidavit filed in opposition, directed the learned Sessions Judge, Darrang to hold an enquiry and record a finding whether the alleged detenue Sri Padum Nath was apprehended by the Army authority on 04.06.98 or not. The parties, through their counsel were directed to appear before the learned Sessions Judge, Darrang on 21.02.1999. 5. The learned Sessions Judge, Darrang made a detailed enquiry pursuant to the directions of this Court and submitted his report dated 17.01.2001. That altogether five witnesses were examined on behalf of the Petitioner and one witness on behalf of the Respondent. Learned Sessions Judge upon appreciation of evidence available on record found that on 04.06.98 in the afternoon in compliance of the oral order of the Major of the Duni Army Camp alleged detenue Padum Nath had gone to that camp and thereafter he never returned. The learned Sessions Judge rejected the defence set up by the Respondents. 6. The Report of the learned Sessions Judge, Darrang attained its finality since no objections has been filed by any of the Respondents. We find no reason or justification not to accept the Report of the learned Sessions Judge, Darrang. 7. This Court vide order dated 04.02.2002, in view of the inquiry Report submitted by the learned Sessions Judge, Darrang, directed the Superintendent of Police, Darrang to register a case make investigation to find out the truth of the matter. The report submitted by the learned Sessions Judge was also directed to be furnished to the Superintendent of Police. 8. The Superintendent of Police having registered No. 17/02 under Section 120(B)/346/201 of the Indian Penal Code on the file of Sipajhar Police Station against the Army Major has undertaken investigation. A number of witnesses were examined who substantially supported their statements in the findings recorded by the learned Sessions Judge, Darrang. The investigation, however, could not be completed for want of examination of Army Major Ram Singh Gujjar, 7 Sikh LI for which purposes notice has also been sent through the Brigadier, 11 Mountain Brigade, Hatigarh for his appearance and for recording his statement. The investigation, however, could not be completed for want of examination of Army Major Ram Singh Gujjar, 7 Sikh LI for which purposes notice has also been sent through the Brigadier, 11 Mountain Brigade, Hatigarh for his appearance and for recording his statement. The Superintendent of Police submitted another report on 28.07.2005 stating that the Army Major did not appear for his examination. Repeated efforts made by him did not bring any result. 9. The fact remains that the alleged detenue Padum Nath did not return from Duni Army Camp where he is stated to have reported on the basis of an oral order from the Army Major Ram Singh Gujjar, Incharge of Army camp at Duni. The suspicion entertained by the Petitioner, came to be proved and in all probability the alleged detenue may have been subjected to torture in Army Camp. The detenue has been subjected to illegal confinement and in all probability has been tortured and died in custody of the Army Personnel. Obviously, he has been subjected to inhuman treatment at the hands of law breakers. Possibly, no other view can be taken by the Court. 10. That, at the relevant time the detenue was working as Teacher and obviously he was the sole bread earner of the family. The Petitioner and his family members are entitled to proceed against the Respondents for causing disappearance of detenue Padum Nath and seek compensation/damages. But at the same time, reasonable compensation should be granted by this Court in this public law remedy. 11. We have dealt with the issue and the parameter of judicial review in the matter of awarding compensation to the family of victim, whose guaranteed fundamental rights have been infringed by the security forces (see order dated 29.03.2006 passed in W.P. (Crl.) No. 32/2000) reported in 2006 (1) GLT 688 : Uma Kanta Gayari and Anr. v. State of Assam and Ors. Therefore, we do not propose to burden this judgment by reiterating whatever stated already. 12. The Respondents are found responsible for causing disappearance of the detenue Padum Nath, who obviously may have died in Army Camp. The fundamental rights of the detenue Padum Nath have been violated by the action of the Respondents, we accordingly direct the Respondent No. 1 and 2 to pay a sum of Rs. 12. The Respondents are found responsible for causing disappearance of the detenue Padum Nath, who obviously may have died in Army Camp. The fundamental rights of the detenue Padum Nath have been violated by the action of the Respondents, we accordingly direct the Respondent No. 1 and 2 to pay a sum of Rs. 3,00,000/- (Rupees three lakhs only) as compensation to the writ Petitioner within a period of 3 (three) months. It shall be open for the Petitioner to bring it to the notice of the Court, if the order is not complied with by the Respondent No. 1 and 2. 13. The Superintendent of Police, Darrang is required to submit further report in this Court as to whether presence of Army Major Ram Singh Gujjar is secured in connection with the investigation of the trial and if not, what steps have been taken by him. It shall be open for him to move the Court of competent jurisdiction to obtain a non-bail-able warrant against said Army Major Ram Singh Gujjar for securing his presence. The Report should reach this Court within a period of 3 (three) weeks from today addressed to the Registrar General, Gauhati High Court, Guwahati. 14. The Registrar General upon receipt of the report submitted by the Superintendent of Police, Darrang shall place it before Hon'ble the Chief Justice for further appropriate orders. 15. The writ petition for the present is disposed of with the directions as above. 16. Furnish a copy of this order to Shri B.J. Talukdar, learned Govt. Advocate, Assam.