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Gauhati High Court · body

2016 DIGILAW 27 (GAU)

Asian Centre For Human Rights v. Union of India

2016-01-19

HRISHIKESH ROY

body2016
JUDGMENT : Heard Mr. S.K. Medhi, the learned Counsel appearing for the petitioners. Also heard Mr. C.K. Sarma Barua, the learned CGC appearing for the respondent No.1. The learned Government Advocate Ms. K. Devi appears for the respondents 2 & 3. 2. The petitioner No.1 is a public trust working in the field human rights and the petitioner No.2 is the Director of the petitioner No.1. The Asian Centre for Human Rights made a complaint on 16.8.2003 (Annexure-P-2), where they alleged that the army authorities during their search operation on August 1-2, 2003 at the Gwmbrikhata and Bangshijhora village within Gouripur police station of Dhubri District, had subjected the villagers to inhumane torture, leading to critical injuries suffered by 24 villagers, for which they had to receive treatment at the civil hospitals and at the primary health centre. Accordingly the National Human Rights Commission (NHRC) was requested to enquire into the complaint and compensate the victims. The NHRC took cognizance of the petitioners complaint and issued notice to the Ministry of Defence and the State Police Authorities. 3. The Assam Police in their response to the NHRC notice, forwarded the inquiry report prepared by the S.P., Dhubri on 31.3.2005. In this report, the army operation on the night of 1.8.2003 to nab the wanted militant (Gamblow Brahma) was confirmed and the interrogation of the local people on the whereabouts of the militant was revealed. As many as 13 villagers of Gwmbrikhata village had revealed before the S.P. that, they were tortured by the Army personnel when they failed to disclose the location of the wanted militant. These 13 seriously injured villagers were treated for their injuries at the Dhubri and the Kokrajhar Civil Hospitals. Similarly 11 persons of the Bangshijhora village also confirmed about the torture inflicted upon them by the army personnel when they failed to reveal the whereabouts of the wanted militant. The injured received treatment at the Kajigaon State Dispensary but one of the seriously injured villager Dasarath Brahma, had to be treated thereafter at the Dhubri Civil Hospital. The non-filing of any FIR into the incident was attributed by the S.P. to the fear of the victims from the Army Personnel. 4. The injured received treatment at the Kajigaon State Dispensary but one of the seriously injured villager Dasarath Brahma, had to be treated thereafter at the Dhubri Civil Hospital. The non-filing of any FIR into the incident was attributed by the S.P. to the fear of the victims from the Army Personnel. 4. In their response before the NHRC, the Ministry of Defence denied the allegation and primarily because no FIR was lodged by the victims and Medico Legal Cases were not registered by the concerned hospitals, the veracity of the allegation was questioned by the Defence Ministry. 5. The NHRC considered the 2 versions projected by the State Police and the Defence Ministry and although the allegation of the petitioners were supported by the inquiry report given by the S.P., Dhubri, the Commission was influenced by the absence of FIR and non-registration of Medico Legal Cases for the injured victims. Therefore the NHRC through the impugned verdict dated 14.7.2008 (Annexure-P-9) declared that case of violation of human rights is not made out and accordingly closure of the complaint was ordered. 6. The function and powers of the NHRC are specified in Section 12 of the Protection of Human Rights Act, 1993 (hereinafter referred to as “the Human Rights Act”) and the Commission is empowered to either act suo-motu or on victim’s complaint, on violation of human rights or its abatement. Under Section 13, the powers of a Civil Court is vested on the Commission to make inquiries into the complaint and the NHRC is empowered to summon witnesses, receive evidence, to enquire into allegation of human rights violation. The Commission is also empowered to cause investigation to be conducted under Section 14 of the Human Rights Act. The procedure for functioning of the Commission is prescribed under Chapter-IV of the Human Rights Act and Section 19 provides for the manner of disposing the matters in respect of complaint of violation of human rights, committed by members of the Armed Forces. 7. In respect of the allegations made by the petitioners, 2 version were available and it appears from the impugned verdict that the NHRC chose to rely on the version projected by the Armed Forces. 7. In respect of the allegations made by the petitioners, 2 version were available and it appears from the impugned verdict that the NHRC chose to rely on the version projected by the Armed Forces. But while doing so, the Commission failed to take into account the inquiry report dated 31.3.2005 of the S.P., Dhubri District where the names of the villagers who were tortured by the troops were clearly revealed. In fact the medical treatment received by the severely injured villagers at the two civil hospitals were also specified in the police report. But only because the victims failed to file any FIR and Medico Legal Cases were not registered during the treatment of the victims at the hospitals, the Commission chose to order closure of the proceedings, by ignoring the other version of the incident given by the police. In fact, the fear of the Army Personnel by the victims was indicated as the reason for non-reporting the incident to the police stations but this aspect was totally overlooked by the NHRC. 8. When the Commission is conferred with the power of inquiry and investigation and it is competent to function as Civil Court to examine witness and record evidence, it is difficult to endorse the approach of the NHRC in ordering closure of the complaint, without taking into account the police report which definitely confirmed the genuineness of the complaint filed by the petitioners. In my opinion the NHRC would have better discharged its statutory obligation by recording its finding, on the basis of appropriate evidence and after hearing the parties. 9. But in the instant case, the complainant were not heard and the relevant witnesses were not examined and merely because of the absence of FIR and Medico Legal Cases, the self-serving version projected by the Defence Ministry was made the basis, for closure of the proceeding. 10. In a given situation, when the victims are fearful, they may not file any FIR before the police and just because Medico Legal Cases were not registered, final conclusion can’t be drawn into the petitioners’ complaint without due inquiry. 11. In the above circumstances, the NHRC’s conclusion reflected by the impugned verdict dated 14.7.2008 is found to be based upon an erroneous procedure and therefore the same is quashed. 11. In the above circumstances, the NHRC’s conclusion reflected by the impugned verdict dated 14.7.2008 is found to be based upon an erroneous procedure and therefore the same is quashed. Hence the matter is remanded back to the Commission for a de-novo decision through examination of witnesses and recording of evidences in accordance with the powers conferred on the Commission, under Section 13 & 14 of the Human Rights Act. It is ordered accordingly. As the complaint is ordered to be re-opened for a de-novo inquiry, the petitioners are permitted to furnish a copy of this order to the Commission, for further necessary action. 11. With the above order, the case stands allowed in the manner indicated.