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2015 DIGILAW 945 (GAU)

Gobang Narzari v. State of Assam

2015-08-03

HRISHIKESH ROY

body2015
ORDER : Heard Mr. BK Mahajan, the learned counsel appearing for the petitioners. The respondents are represented by the learned Govt. Advocate Mr. J. Handique. 2. The mater arises out of the police firing on 13.3.2008 at Bengtol in Chirang District, which wounded many and caused the death of five persons who died of the bullet wounds. The names of the victims are Nirjon Narzary, Baburam Narzary, Monen Borgoary, Binoy Basumatary and Gita Narzary. The petitioner No.1 is the brother of the deceased Nirjon Narzary and the petitioner No.2 is the nephew of the 2nd deceased Baburam Narzary and they allege that police resorted to unprovoked firing on innocent members of public and accordingly the petitioners have applied for an impartial inquiry and seek compensation for the dead victim(s), to be paid to their family member(s). 3. The above incident was preceeded by the Government decision to shift the designated camp of the members of the National Democratic Front of Bodoland (in short ‘the NDFB’) from Bengtol to Serfanguri. The local people who wanted the NDFB camp to continue at Bengtol were protesting the administrative decision. Thus the police were deployed to overcome the people’s resistance and at that stage, there was confrontation between the police and the public. 4. As the public had gathered in large number and gheraod the police, tempers were running high in the area. Therefore to assuage the public feeling, the police were forced to give written assurance to retain the NDFB camp at Bengtol, following which the public gherao was lifted. Then the police was proceeding towards the camp of another militant group i.e. Bodo Liberation Tigers (in short ‘the BLT’), whose camp at Bengtol was not being disturbed. The mob was then further provoked by the discriminatory approach and attacked the BLT camp. At that stage, the A.D.M., Chirang instructed the police to open fire in the air, to disburse the public. 5. In the resultant police firing at about 11:30 Hrs. several members of public suffered bullet injuries and although steps were taken to shift them to the Hospital, five persons died of bullet wounds. In the confrontation at Bengtol, the public were pelting stones because of which nine policemen and eight members of the BLT group were injured. 6. 5. In the resultant police firing at about 11:30 Hrs. several members of public suffered bullet injuries and although steps were taken to shift them to the Hospital, five persons died of bullet wounds. In the confrontation at Bengtol, the public were pelting stones because of which nine policemen and eight members of the BLT group were injured. 6. In the counter affidavit filed by the S.P., Chirang on 11.11.2008, the violent conduct of the mob is cited as the justification for the police firing and it is averred that the A.D.M. was compelled to order for firing to save public life and properties, as the agitated mob was pelting stones both at the police and the BLT cadre and had set on fire to the Govt. building, which was the designated camp of the BLT group at Bengtol. 7.1. Assailing the version of the Magisterial Enquiry, Mr. BK Mahajan, learned counsel submits that the affidavit of the respondents do not disclose that any case of arson or stone pelting was ever registered against the group, who had allegedly attacked the police and the BLT members on 13.3.2008 and accordingly it is submitted that the police version can’t be believed. 7.2. As the Magistrate had ordered the police to fire in the air, Mr. Mahajan refers to the post mortem report of the victims to show that they died of bullet injuries on their chest and other vital parts of the body and such bullet wounds can’t result from firing in the air and accordingly it is argued that the police acted beyond the ADM’s order. 7.3. The learned counsel reads Section 130 & Section 46(3) of the Cr.P.C. to argue that while the police can use reasonable force to disburse unlawful assembly, the use of minimal force/injury is contemplated by law and against unarmed agitated group direct firing on vital parts can’t at all be justified. 7.4. In the inquiry report of 30.4.2008, furnished by the Addl. D.C., Chirang, while stone pelting and arson is indicated, it is not reflected that any weapon was wielded by the public and accordingly it is argued that the police should not have straightway resorted to firing without exploring alternate means of public control like lathi charge, tear gas, etc. 8.1. On the other hand, Mr. J. Handique, the learned Govt. D.C., Chirang, while stone pelting and arson is indicated, it is not reflected that any weapon was wielded by the public and accordingly it is argued that the police should not have straightway resorted to firing without exploring alternate means of public control like lathi charge, tear gas, etc. 8.1. On the other hand, Mr. J. Handique, the learned Govt. Advocate submits that the people assaulted the police and the inmates of the BLT camp at Bengtol and several police and BLT cadres were injured by the mob attack on 13.3.2008 and therefore the Govt. Advocate contends that recourse to firing by the police was needed to protect the life and public property. 8.2. The Govt. Advocate further submits that the disorderly mob was indiscriminately attacking the police and the inmates of the BLT camp in support of their demand for retention of the NDFB designated camp at Bengtol and since the State Authorities had decided to shift the NDFB camp to Serfanguri, the police was required to implement the Government decision and the mob had obstructed the police in discharging their duties. 8.3. Mr. J. Handique refers to the inquiry report of 30.4.2008 of the Addl. D.C., Chirang to project that the police acted on the orders of the Magistrate and therefore compensation can’t be claimed by the victims who were the cause of the firing ordered by the Magistrate. 9. Although the Magisterial Report suggests that the police were ordered to fire in the air to disburse the protesting mob, the bullet injuries suffered in the vital body parts do not support the State’s version that the police fired in the air. It is also not discernable as to why preliminary steps like lathi charge and tear gas were not attempted at first instance, to control the mob. Moreover although the mob is said to have attacked the police and the BLT cadres and set fire to the BLT camp, no case of arson or injury is shown to be registered in the jurisdictional police station. It is also not possible to infer from the available materials as to whether the victims were curious bystanders or whether they had played any active part to provoke the police firing. 10. It is also not possible to infer from the available materials as to whether the victims were curious bystanders or whether they had played any active part to provoke the police firing. 10. In circumstances of similar nature, where compensation was claimed on account of police firing, confronted with two versions of the incident, this Court ordered for a fact finding inquiry by the jurisdictional District & Sessions Judge in several cases and Mr. Mahajan refers to Saira Begum Barbhuiya vs. State of Assam reported in 2006 (3) GLT 42 and State of Tripura vs. Sulekha Sarkar reported in 2014 (1) GLT 337, where inquiry by the jurisdictional District & Sessions Judge was ordered. 11. In the above backdrop, the learned District & Sessions Judge, Chirang is requested to record evidence and give a finding on the cause and circumstances leading to the firing, the justification for police action and culpability (if any) of the victim themselves for the events at Bengtol on 13.3.2008. During the proceeding, the petitioners, the police and other interested persons/organizations may adduce evidence before the Court in support of their respective version and the learned District & Sessions Judge after assessing the evidence should determine whether the victims were innocent or played any role in provoking the police fire. The Court should also examine whether firing was the only option available with the police to control the mob or whether the situation could have been controlled through lesser means like lathi charge and tear gas etc. The learned Judge should start the process by issuing notice to the petitioners, the police and the State Authorities and he should also requisition the records of relevant police case (if any), registered during the incident. After due assessment of the evidence, a report should then be furnished by the Chirang District & Sessions Judge within six (6) months of receipt of this order. 12. The Registry is accordingly directed to forward this order along with the complete case papers to the learned District & Sessions Judge, Chirang. The order copy be also given to the Superintendent of Police, Chirang, the officer-in-charge of Bengtol P.S. and Mr. BK Mahajan and Mr. J. Handique, respectively. 13. After the report is received, this case be listed for order(s).