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2009 DIGILAW 97 (GAU)

Surabala Das v. State of Assam

2009-02-11

BIPLAB KUMAR SHARMA, J.CHELAMESWAR

body2009
JUDGMENT B.K. Sharma, J. 1. The Petitioner who is the mother of one Shri Anil Das (since deceased) has filed this writ petition praying for a judicial enquiry in respect of the death of her said son. Further prayer made in the writ petition is for payment of compensation on account of death of her said son. 2. We have heard Mr. N. Chakraborty, learned Counsel for the Petitioner as well as Ms. B. Goyal Sharma, learned State counsel. We have also considered the materials on record. 3. The facts as narrated in the writ petition are that on 21.4.2000 at about 11.30 p.m. the police personnel belonging to 15(IB) Bn visited the house of the Petitioner with a bailable warrant in connection with GR case No. 76/99 registered under Section 394, IPC in which the aforesaid Anil Das, i.e. the son of the Petitioner, was an accused. According to the Petitioner, at that point of time, her son was sleeping, but the police personnel, namely Shri A. Nath, ASI called him out and another police personnel, namely Shri Dhanraj Chettry, fired upon him without any reasonable cause as a consequence of which her son died. 4. An FIR was lodged on 22.4.2000 by one Shri Hemen Chandra Nath, ASI relating to the incident which was registered and numbered as Tongla RS. case No. 20/2000 under Section 353/ 307, IPC. As per the FIR when the police personnel went to the house of the deceased who was an accused in GR Case No. 760/99 pending in the Court of the learned CJM, Darrang, Mongoldoi with a warrant of arrest and called upon him to come Out, he jumped upon the constable Dhanraj Chetry with a khukri in his hand and said Dhanraj shot at him as a result of which he died. 5. Another FIR was lodged on 1.6.2000 by one Shri N.D. Phatowali, Executive Magistrate, Mongoldoi against Dhanraj Chettry which was registered and numbered as Tongla RS. Case No. 31/2000 under Section 304(A) IPC. The Petitioner has also enclosed a copy of the enquiry report dated 29.5.2000 submitted by the said Executive Magistrate alongwith the FIR. 5. Another FIR was lodged on 1.6.2000 by one Shri N.D. Phatowali, Executive Magistrate, Mongoldoi against Dhanraj Chettry which was registered and numbered as Tongla RS. Case No. 31/2000 under Section 304(A) IPC. The Petitioner has also enclosed a copy of the enquiry report dated 29.5.2000 submitted by the said Executive Magistrate alongwith the FIR. In the enquiry report certain inferences had been drawn and on that basis it was opined that said Shri Dhanraj Chettry fired upon the deceased out of fear because he got scared by the sudden jumping of the deceased from a height of 5 ft. breaking the wall of his house and that said Chettry could not take any decision and he fired upon the deceased. 6. It is on the above basis, the Petitioner has filed the instant writ petition for the aforesaid relief. As already stated above, the enquiry report of the Executive Magistrate is based on surmises and conjectures and it is only in the inference on the basis of which the report was prepared. 7. Learned Counsel for the parties have drawn our attention to the provisions of Assam Police act, 2007. Section 70 of the Act contemplates the establishment of State-level Police Accountability Commission. Section 71 provides for composition of the Commission and Section 78 enumerates various functions of the Commission. 8. The Commission is empowered to enquire into allegations of serious misconduct which means and includes any act or commission of police officer that 'leads or amounts to death' into police custody. This Court in Harendra Kumar Deka v. State of Assam and Ors. reported in (2009) 2 GLR 263, upon interpretation of the term "amounts to death in police custody" has held that on the facts like the one on hand, the deceased may not have been technically in the custody of the police but in the circumstances the death of the deceased amounts to death in police custody. It has been held that any other interpretation would be inconsistent with the scheme of 78 as an action of a police officer leading to the grievous hurt or death in police custody is a serious misconduct within the meaning of Section 78 but not the death of a person who was not technically in the custody of the police. 9. 9. Under Section 82 of the Act, the Commission is obligated upon completion of the enquiry to forward its findings to the Director General of Police of the State and the State Government with a direction either to register an FIR or initiate departmental proceeding. Section 82 further stipulates that such direction of the Commission shall be binding. 10. Depending upon the outcome of the enquiry conducted by the Commission and its recommendation, the aggrieved party may also stakes claim for compensation etc. Although the learned Counsel for the Petitioner upon a reference to the enquiry report of the Executive Magistrate furnished alongwith the FIR submitted that the Petitioner is entitled to compensation on that basis but on perusal of the said enquiry report we do not find any concrete material so as to hold the said enquiry to be conclusive of the fact alleged. Certain inferences only have been drawn and on that basis it has been observed that the particular police personnel fired at the deceased as he suddenly jumped from a height of 5 ft. It has also been observed that said police personnel could not take any prompt decision and fired upon the deceased. 11. Since the facts alleged have not been conclusively established in the report of the Executive Magistrate, Mongoldoi, we are of the opinion that the Commission under the Assam Police Act, 2007 would be the best forum to cause an enquiry into the incident which resulted in death of Shri Anil Das, son of the petitioner. Depending upon the finding of the Commission and its recommendation, consequential action would follow. The Petitioner would also be entitled to compensation etc. depending on the outcome of the enquiry now to be conducted by the Commission. 12. For the aforesaid reasons, we dispose of the writ petition with a direction to the State Respondents to cause an enquiry into the incident which resulted in death of Shri Anil Das by the aforesaid Commission and to take consequential action depending upon the outcome of the enquiry and the recommendation. 13. With the above direction, the writ petition is disposed of.