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2018 DIGILAW 224 (GAU)

Pradip Chandra Saloi v. Swagmoni Boraik

2018-02-06

AJIT SINGH, HRISHIKESH ROY

body2018
JUDGMENT & ORDER : HRISHIKESH ROY, J. 1. Heard the learned Sr. counsel Mr. N. Dutta appearing for the petitioner in the Review Petition No.125/2009. Also heard Mr. U.K. Nair, the learned Sr. counsel appearing for the respective two petitioners in the Review Petition Nos.99/2009 and 100/2009. The learned Addl. Sr. Govt. advocate Mr. R. Dhar represents the State respondents. 2. These Review Petitioners are aggrieved by the direction in paragraph 17 of the judgment dated 06.05.2009 in the WP (Crl.) No.25/2008, whereby, recovery of the compensation sum, inter alia, from these three police officers have been directed by the Division Bench. The quantified sum of Rs. 3,00,000/- by way of public law damage, was ordered to be paid to the mother, widow and the children of one Anil Boraik (hereinafter referred to as the victim) , who died on 05.06.2017 after remaining in jail custody for around three weeks. The victim was arrested and was produced in Court on 14.05.2007 and the learned CJM, Golaghat on the same date, had remanded him to jail custody. Besides payment of the compensation, the Court also directed registration of criminal case against the Jail Superintendent and doctor of the Golaghat district jail and also the O/C of the Chromatin Police Outpost. 3. That apart, the Court suspected manipulation of the dates in the G.D. Entry and the police records in connection with the detention of the victim and accordingly the deponent of the affidavit filed in the WP (Crl.) No.25/2008 and the two officers who were posted as Superintendent of Police at Golaghat between 13.05.2007 25.09.2008 (Review Petitioners) , have been made responsible, to proportionately share the burden of the compensation, awarded to the victims family. SUBMISSION OF REVIEW PETITIONERS 4. The Review Petitioner Pradip Ch. Saloi was posted as the S.P., Golaghat from 12.10.2017 to 06.07.2008 and he is represented by Mr. N. Dutta, the learned Sr. counsel. Mr. Dutta submits that the victim after his arrest on 13.05.2007, was produced before the CJM, Golaghat on 14.05.2007, who remanded him to judicial custody on the same date. The arrested person was incarcerated in the Golaghat District Jail from 14.05.2017 until he died on 05.06.2007. When the victim was lodged in the Golaghat Jail and the police officers had no access to him, the Sr. The arrested person was incarcerated in the Golaghat District Jail from 14.05.2017 until he died on 05.06.2007. When the victim was lodged in the Golaghat Jail and the police officers had no access to him, the Sr. lawyer questions the logic of the adverse inference drawn by the Division Bench in paragraph 17 of the judgment and also the consequential direction for proportionate recovery of the compensation amount from the police officers. 5. The learned Sr. counsel makes it clear that the petitioners do not oppose the compensation which is already disbursed by the Government to the victims family. But he questions the logic of fastening liability on the Review Petitioner who had no role in the custodial death of the victim as he was continuously incarcerated in the Golaghat Jail for about 3 weeks, before he died on 05.06.2007. 6. The petitioners lawyer points out that the Government had registered the Golaghat Police Case No.307/2009 and the CID Police Station Case No.11/2009, in pursuant to the direction in paragraph 18 of the judgment, for prosecution of the officers who were responsible for the victims wellbeing while in custody and since the Review Petitioner had no role during the incarceration, the petitioners argue that the stigmatic order is not justified for those police officers who were neither responsible nor had access to the victim, during the 3 weeks, when he was lodged in the Golaghat Jail. 7. The learned Sr. counsel Mr. U.K. Nair appears for the two petitioners in the Review Petition No.99/2009 and the Review Petition No.100/2009. He submits that the role of the Review Petitioner Bir Bikram Gogoi as the Addl. Superintendent of Police (HQ) , Golaghat was limited to swearing the counter affidavit in the WP (Crl.) No.25/2008, as was directed by the S.P. Golaghat on 23.09.2008. Moreover, the Addl. S.P. (HQ) joined at Golaghat only on 14.12.2007, 7 months after the death of the victim and accordingly the logic of apportionment of the compensation burden on the deponent of the affidavit, is questioned by Mr. Nair. 8. The discrepancy in the reference to the dates in the Magisterial Inquiry Report is projected to be a case of carelessness and on that basis Mr. Nair argues that the stigmatic reference to the deponent of the affidavit, could have been avoided in the verdict of the Division Bench. 9. Nair. 8. The discrepancy in the reference to the dates in the Magisterial Inquiry Report is projected to be a case of carelessness and on that basis Mr. Nair argues that the stigmatic reference to the deponent of the affidavit, could have been avoided in the verdict of the Division Bench. 9. The Review Petitioner Rana Bhuyan is projected to have joined as the S.P., Golaghat only on 06.11.2007 and accordingly the adverse reference to this police officer for the earlier custodial death of the victim on 05.06.2007, is contended to be fallacious by Mr. Nair. RESPONDENTS SUBMISSION 10. The learned Addl. Sr. Govt. advocate Mr. R. Dhar supports the submission of the Review Petitioners and contends that the concerned G.D. Entry at the Khoomtai Outpost on the arrest of Anil Boraik, was inadvertently shown to be 13.05.2009 (in place of 13.05.2007) , during the proceeding in the WP (Crl.) No.25/2008. The Govt. advocate submits further that if the original records are compared, the careless error in referring to the date, will become apparent without any confusion. 11. According to Mr. Dhar, the compensation amount was disbursed by the Government and have been apportioned amongst the victims family in the manner directed. As regards the direction for launching of prosecution, the Govt. advocate submits that two separate cases namely, Golaghat P.S. Case No.307/2009 and the CID P.S. Case No.11/2009 were registered but eventually on order passed by the CJM, Golaghat on 18.11.2009, the two cases were amalgamated with the CID P.S. Case No.11/2009. RELEVANT BACKGROUND 12. The WP (Crl.) No.25/2008 was filed by Smt. Swagmoni Boraik, where the prayer was for prosecution of the O/C of the Khoomtai Police Outpost, Narendra Nath Gogoi, who allegedly took the victim Anil Boraik into custody on 13.05.2017. She also asked for compensation for the custodial death of her son, alleging torture and denial of medical treatment to the victim, while he was in judicial custody under the Superintendent of District Jail, Golaghat. In fact, no allegation was made against any of the 3 Review Petitioners nor any claim was made against them by the victims mother. 13. The victim Anil Boraik was suspected to be involved in stealing and selling of pilfered diesel and was brought to the Khoomtai Outpost for questioning on 13.05.2007, as can be seen from the G.D. Entry No.199. 13. The victim Anil Boraik was suspected to be involved in stealing and selling of pilfered diesel and was brought to the Khoomtai Outpost for questioning on 13.05.2007, as can be seen from the G.D. Entry No.199. After questioning the accused, the police found sufficient evidence to connect him with the Kumargaon P.S. Case No.99/2006 and the G.D. No.211 shows that the accused was shown arrested on 14.05.2007. The next G.D. No.212 recorded at 11 A.M. on 14.05.2007 reflects that the arrested accused Anil Boraik and Babul Baruah were produced before the Court after they were medically examined and then both were remanded to judicial custody on 14.05.2007 itself. DISCUSSION AND DECISION 14. The discrepancy on the date of the G.D. Entry, in the counter affidavit filed in the WP (Crl.) No.25/2008, where the year was wrongly mentioned as 13.05.2008 (instead of 13.05.2007) does not appear to be a malicious Act but is more likely to be an inadvertent error since all records including the consecutive G.D. Entries reflect that arrest and remand to judicial custody of the victim Anil Boraik had taken place on 13/14 May, 2007 and not in the year 2008. 15. The Magistrate who was asked to inquire into the death of the under-trial prisoner Anil Boraik was most casual in noting the dates, of her entrustment by the District Magistrate and also the date of death of the victim. In the Inquiry Report the Magistrate erroneously mentioned that she was entrusted with the enquiry by the District Magistrate on 03.06.2007 but this is an obvious impossibility, since the victim had died two days later on 05.06.2007. The same Magistrate also wrongly noted that the victim was sent to judicial custody on 15.05.2007 whereas the Asstt. Jailor, Golaghat took custody of the arrested accused on 14.05.2007. These again was a careless error of dates, by the concerned officer. 16. However, as can be seen from the observations made in the judgment under Review and more particularly the paragraph 13, 14, 15 thereof, the Court drew adverse inference on the averments in the counter affidavit and also the pleadings in the Court, only because of the above discrepancies in the dates. In fact, the Court suspected the genuineness of the G.D. entry by taking the entry date as 13.05.2008, which was 11 months after the death of Anil Boraik on 05.06.2007. In fact, the Court suspected the genuineness of the G.D. entry by taking the entry date as 13.05.2008, which was 11 months after the death of Anil Boraik on 05.06.2007. But as we refer to the contemporaneous records, we are quite sure that the date in the certified copy was wrongly noted and this is how the court was misled into believing that the G.D. entry was made months after the death of the arrested victim. 17. When we examine the sequence of events, it becomes clear that the accused Anil Boraik was in jail custody from 14.5.2007 until he died 3 weeks later on 05.06.2007. During these 3 weeks, none of the review petitioners had access to the under-trial, lodged in the Golaghat Jail. Therefore, it would be illogical to make them accountable for the death of the victim, while he was in jail custody. 18. Another important aspects which requires our observation is the denial of any opportunity to the review petitioners before they were fastened with the liability to share the burden of the awarded compensation. They were neither heard by the Court nor any opportunity was provided and the three police officers were penalized by the Division Bench without any specific mischief attributed to them. 19. From the above, we are quite certain that injustice was caused to the Review Petitioners as they were condemned without any basis and were punished in violation of the principle of audi alterem partem. It is further seen that the compensation sum was already disbursed to the victims family and that the criminal cases have been registered against the named officials. In such circumstances, when no prejudice would be caused to the victims family, we deem it appropriate to expunge the adverse remarks made against the three Review Petitioners. Consequently, the proportionate recovery of the awarded compensation from the three petitioners, as was ordered in the judgment, is found to be unsustainable. It is declared accordingly. 20. With the above order, the Review Petitions stand allowed in the manner indicated. No cost.