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2019 DIGILAW 391 (GAU)

Kaphot Dam v. State of Assam

2019-03-28

N.KOTISWAR SINGH

body2019
JUDGMENT : N. KOTISWAR SINGH, J. 1. Heard Mr. N.K. Murry, learned counsel for the petitioner. Also heard Mr. D. Nath, learned Government Advocate, Assam, for the State respondents. 2. In this writ petition the petitioner has prayed for a direction to the respondent authorities to produce her husband, namely, Sri Santosh Dam, who was kidnapped by certain members belonging unlawful organization and has remained untraced since 31.01.2008 in which connection an FIR had been registered in Kheroni Police Station under P.S. Case No. 11 of 2008 under Sections 120(B)/121/123/171/365/326/302/307 IPC read with Section 25(1-b)/27 Arms Act on 01.02.2008 and failing which to pay a compensation of Rs. 20,00000/- to the petitioner's family for the sufferings they have undergone on account of the failure of State to protect the life of the petitioner's husband. 3. It is the case of the petitioner that on 31.01.2008 at about 6.30 P.M. a group of terrorist comprising of 12 numbers belonging to Dima Hali Daoga (DHD), kidnapped the husband of the petitioner's namely, Santosh Dam and other persons and on that day another villager was also shot dead by the afore-said gang in connection with which, an FIR was registered referred to above. It has been stated that the petitioner's husband was a reputed businessman in the locality and a law abiding citizen. However, after the kidnapping of the petitioner's husband by the aforesaid gang the petitioner's family had been reduced to penury as the sole bread earner has been snatched away from their midst. It has been stated that after the incident the petitioner also submitted a written representation before the Superintended of Police, Diphu, Karbi Anglong on 09.10.2008 narrating the aforesaid incident that in which it had been stated that after the petitioner's husband and others were kidnapped by the militant group they demanded a ransom amount of Rs. 20,00,00,000/- out of which the petitioner's family could arrange a sum of Rs. 20,00,000/- only to save the lives of the petitioner's husband and others who were kidnapped. It has been stated that though the aforesaid amount was paid to the militants, the petitioner's husband and others were not released and their whereabouts are still unknown. 4. It is also the allegation of the petitioner that the aforesaid act of demanding ransom by the extremists and payment of the same were also brought to the notice of the police. 4. It is also the allegation of the petitioner that the aforesaid act of demanding ransom by the extremists and payment of the same were also brought to the notice of the police. However, they did not take any action. It has been submitted that thereafter, the petitioner submitted several representations before the authorities for taking necessary actions and also for payment of adequate compensation for the abduction of the petitioner's husband. However, as nothing has materialized, the petitioner has been compelled the approach this Court by filing this writ petition. 5. The State respondents have filed their affidavit-in-opposition contesting the claim of the petitioner. It has been stated that soon after the FIR was lodged about the missing of the petitioner's husband and others, necessary investigation was carried out. However, the police could not recover the petitioner's husband. Subsequently, the final report was submitted on 31.08.2011 before the competent Court as there could not be any progress in the case due to lack of evidence no further evidence could be gathered. Accordingly, it has been submitted that the State authorities had taken all the necessary steps for the recovery of the body of the petitioner's husband but without any success. 6. It had been also stated that as narrated in the affidavit-in-opposition, the police and other law enforcing agencies had made all the attempts to recover by searching various neighbouring villages but could not trace out the whereabouts of the petitioner's husband. Though certain persons were arrested in connection with the said case, the arrested persons could not provide any clue about the whereabouts of the petitioner's husband and ultimately, it was decided to close the case as regards the kidnapping of the petitioner's husband and accordingly, it has been submitted that here is no negligence on the part of the authorities in investigating the matter. 7. It has been submitted that however as there is a scheme prepared by the State Government for providing financial assistance by way of ex-gratia payment to the next of kin of missing persons and persons abducted/kidnapped by the extremists/terrorist on or after 22.06.2004 and who are apprehended to the killed by the extremists/terrorist and his/her whereabouts is not known for more than 1(one) year which has been raised from Rs. 1,00,000/- to Rs. 3,00,000/-. 8. As such, it has been submitted that the petitioner may be entitled to get only Rs. 1,00,000/- to Rs. 3,00,000/-. 8. As such, it has been submitted that the petitioner may be entitled to get only Rs. 3,00,000/- and not Rs. 20,00,000/- as claimed by the petitioner, since, there is no involvement of the authorities in the missing of the petitioner's husband. The learned State Counsel has also submitted that the aforesaid claim of Rs. 20,00,000/- is exorbitant and cannot be granted merely on the ground that the petitioner's family paid a ransom of Rs. 20,00,000/- to the extremists as it would amount to encouraging extremists in committing such heinous crime, if at all, the petitioner's family had given the aforesaid amount of Rs. 20,00,000/-. 9. Learned counsel for the petitioner, on the other hand, submits that there has been utter negligence and lapses on the part of the State authorities including the police in not only preventing the aforesaid kidnap of the petitioner's husband but also in recovering her husband from the custody of the militants. It has also been submitted that the petitioner's family had approached the police personnel who assured them that if the aforesaid ransom amount is paid to the extremists, the petitioner's husband may be released unharmed and the policemen also assured the petitioner's family that the police will provide all the necessary help in the recovery of the petitioner's husband. Unfortunately, the petitioner's family never received any help from the police. On the other hand, they did not assist the petitioner's family in any manner in preventing the kidnapping of the petitioner's husband or his recovery from the custody of the extremists. It has been submitted by the learned counsel for the petitioner that this lapse on the parts of the authorities which led to the kidnapping amounts to violation of the right of the petitioner's husband as guaranteed under Article 21 of the Constitution of India. Since the petitioner has not yet been recovered as also admitted by the authority themselves by filing the final report, it can be presumed that the petitioner husband has been killed by the militants. If that is so it clearly amounts to violation of the rights of the petitioner's husband as guaranteed under Article 21 of the Constitution of India. 10. If that is so it clearly amounts to violation of the rights of the petitioner's husband as guaranteed under Article 21 of the Constitution of India. 10. It has been submitted by the learned counsel for the petitioner that if the right to life guaranteed under Article 21 is violated, the state authorities would be liable to adequate the compensate under public law remedy. In this regards, learned counsel for the petitioner has referred to the decisions in W.P.(Crl.) No. 27 of 2010 and W.P.(Crl.) No. 13 of 2012 disposed of on 10.06.2013, by which this Court directed the payment of Rs. 5,00,000/- to the relatives of the of those persons who were abducted by the extremists. In the aforesaid cases, the relatives of the petitioner therein were kidnapped by unknown persons and the State failed to ascertain the whereabouts and this Court relied upon the decision rendered by Hon'ble Supreme Court in the case of Railway Board Vs. Chandrima Das in (2000) 2 SCC 465 , holding that right to life as guaranteed under Article 21 of the Constitution of India has been violated and directed for payment of compensation to the extent of Rs. 5,00,000/-. This Court also relied upon the decision of the Hon'ble Supreme Court in the case of Deputy Commissioner, Dharwar Vs. Sivakka (2) & Ors. in 2011 12 SCC 419. 11. In the present case also the learned counsel for the petitioner has relied upon the other decisions of the Hon'ble Supreme Court passed in Rohtash Kumar Vs. State of Haryana reported in (2013) 14 SCC 290 and in S. Nambi Narayanan Vs. Siby Mathews & Ors. 12. Learned counsel for the petitioner relying of the aforesaid decisions further has submitted that since the petitioner's husband is missing since 2008 by this time it will be presumed that he is dead and it was the responsibility of the State to ensure the safety and life of every citizen and it can be said the fundamental right as guaranteed under Article 21 of the Constitution in the case of the petitioner's husband has been violated. In that view of the matter, the State will be liable to pay adequate compensation to the petitioner under public law remedy. 13. The petitioner's claim for payment of Rs. 20,00,000/- is primarily based upon the fact that the petitioner's family had to pay a ransom of Rs. In that view of the matter, the State will be liable to pay adequate compensation to the petitioner under public law remedy. 13. The petitioner's claim for payment of Rs. 20,00,000/- is primarily based upon the fact that the petitioner's family had to pay a ransom of Rs. 20,00,000/- after the petitioner's husband was abducted by the members of the DHD group and that the petitioner's husband was the sole earning member of the family, who is now missing since 2008 and now, presumed to be dead under Section 107 of the Evidence Act. Learned counsel for the petitioner relies upon the decision of S. Nambi Narayanan by the Hon'ble Supreme Court and has submitted that in the said case the Hon'ble Supreme Court had guaranteed Rs. 50,00,000/- as compensation of wrongful detention of a scientist of Indian Space Research Organisation (ISRO) and also for suffering by the petitioner for wrongful prosecution by the police. Learned counsel for the petitioner has also referred to the decision of the Hon'ble Delhi High Court in W.P.(C) No. 12826 of 2018 of Court on its own Motion vs. Govt., of NCT, New Delhi, in which the Hon'ble Delhi High Court has awarded a sum of Rs. 10,00,000/- with interest due to death of a school boy. The learned counsel for the petitioner submits that the basis for awarding compensation @ Rs. 5 to 50 lacs in the decisions referred to above is based on the principle of the right to life as guaranteed under Article 21 of the Constitution of India, which has to be secured by the State and which the State has failed to do so. In the present case also the right as guaranteed under Article 21 of the Constitution of India of the petitioner's husband has also violated and as such, the petitioner is also entitled to get the compensation of Rs. 20,00,000/- at least to the minimum. 14. Learned State Counsel, however, has tried to distinguish the aforesaid decisions on the ground that the facts as revealed in the aforesaid cases are different. In many of the cases referred to above by the learned counsel for the petitioner, those relates to either negligence on the part of the authorities or wrongful detention or involvement of the State agencies in depriving the right to life of the victim concern. In many of the cases referred to above by the learned counsel for the petitioner, those relates to either negligence on the part of the authorities or wrongful detention or involvement of the State agencies in depriving the right to life of the victim concern. In the present case, there is no involvement of any State agency or negligence on the part of the authorities since, the petitioner's husband was kidnapped by unlawful organization in which the petitioner or State are not directly involved. In that view of the matter, the decisions cited by the learned counsel for the petitioner are inapplicable. 15. Heard the learned counsel for the parties and perused the materials available on record. 16. From the materials available on record, it is not in dispute that the petitioner's husband was kidnapped by certain armed members of the unlawful organization. It is also not in dispute that the petitioner's husband has not yet been returned after the kidnapping. Accordingly, under Section 107 of the Evidence Act, it can be presumed that the petitioner's husband is no more alive having been found missing for more than 7 years. The State Government has also given up all hopes of making any recovery of the petitioner's husband. The case of the petitioner for grant of compensation is derives from violation of Article 21 of the Constitution of India and also negligence on the part of the State Authorities in securing the life and liberty of the petitioner's husband. 17. Before this Court decides the legal issues involved, it may be stated that the State of Assam has already formulated certain beneficial schemes for the victims of terrorist activities as mentioned above by which the State has already proposed to give Rs. 3,00,000/- to the next to kin of the missing persons, abducted/kidnapped by the extremists/terrorists to the extent, which has also been accepted by the learned State Counsel. Since, the petitioner's husband was abducted by the terrorist, which has not been disputed by the State authorities, there is certainly a liability on the part of the State Government to pay Rs. 3,00,000/- in terms of the aforesaid scheme. However, the petitioner has prayed for higher compensation to the tune of Rs. 20,00,000/- on the ground of violation of Article 21 of her husband based on the aforesaid decisions of Hon'ble Supreme Court. 18. 3,00,000/- in terms of the aforesaid scheme. However, the petitioner has prayed for higher compensation to the tune of Rs. 20,00,000/- on the ground of violation of Article 21 of her husband based on the aforesaid decisions of Hon'ble Supreme Court. 18. As regards the grants of compensation under public law remedy for violation of fundamental rights is concerned, the law is no more res integra. In view of the long run of decisions Hussainara Khatoon, however, in most of the cases what has been observed that there has been a demonstratable failure on the part of the State to safeguard the life and means of the person as guaranteed under Article 21 of the Constitution of India. It may be also observed that no hard and fast rules have been evolved by the Court and the payment of compensation is depended on the facts of the each case. The compensation, however, since have been increased, the Court is, however, inclined to give larger quantum of compensation where the State is directly involved in violation of the fundamental right As regards, the decisions cited by the learned counsel for the petitioner, it may be mentioned that in the case of Sivakka (Supra), the victim was killed while he was in the custody of the police and it was in that context, the Hon'ble Supreme Court directed to pay a sum of Rs. 10,00,000/- for violation of right to life under 21 of the Constitution. In Chandrima Das (Supra), the victim was subjected to brutal rape by employees of Indian Railways within the premises of the railways and as such, in that context the Hon'ble Supreme Court awarded a compensation of Rs. 10,00,000/- upholding the case of Hon'ble Calcutta High Court in which the victim was a foreigner and national of Bangladesh. The Hon'ble Supreme Court held that the right to life under Article 21 is not confined to the citizens of this country only but to any persons irrespective to the nationality. In the case of Rohtash Kumar (Supra) though the victim were alleged to be hardened criminals, but they were the victims of fake police encounter. Thus, the role of the State agencies was clearly demonstrated. In the case of Rohtash Kumar (Supra) though the victim were alleged to be hardened criminals, but they were the victims of fake police encounter. Thus, the role of the State agencies was clearly demonstrated. In the case of S. Nambi Narayanan (Supra), the matter involves scientist of the Indian Space Research Centre (ISRO), who was falsely accused of certain crimes which he never committed and for which he had to undergo serious trauma for a long period of his life. From the above what is seen that no guideline has been issued by the Hon'ble Supreme Court as to the amount of compensation to be awarded to the victims for violation of. Article 21 of the Constitution of India. Accordingly, in the present case also this Court had to examine the circumstances under which the petitioner's husband was missing which would determine the quantum of compensation to be given to the petitioner. 19. Though the fault on the part of the State authority is clearly visible in preventing the abduction of the petitioner's husband, it can be also observed that there was no active participation by any of the State agency in abducting of the petitioner's husband. Though, the petitioner also has alleged that the petitioner has paid a sum of Rs. 20,00,000/- towards ransom, unfortunately, there is no other corroborating evidence other than the statement made by the petitioner before the authorities. Though, the authorities did not examine this issue properly in their investigation, in absence of any clinching evidence to reflect that the petitioner had indeed paid Rs. 20,00,000/- to the extremists, this Court cannot consider the same while determining the amount of compensation. However, considering the peculiar circumstances in which the incident had occurred as revealed by the investigation, it seems that the payment of such ransom also cannot be totally ruled out However, this Court in absence of any clinching evidence in this regard is not able to come to a conclusion that an amount of Rs. 20,00,000/- had been paid by the petitioner's husband. This Court also has examined the circumstances in which the petitioner's husband was kidnapped by the militants belonging to unlawful organization. 20,00,000/- had been paid by the petitioner's husband. This Court also has examined the circumstances in which the petitioner's husband was kidnapped by the militants belonging to unlawful organization. The learned counsel for the respondent No. 5 also indicates that after the police got the information about the occurrence on 31.01.2018, a team of police/CRPF proceeded to the place of occurrence but due to fog the team could not proceed further and therefore, could reach the place of occurrence only on the next day, whereupon on further investigation the police came to know that a group of armed extremists hanged all the abducted persons including the Petitioner. It can also be said that the authorities were not at all negligence towards the duties, however, the facts also remain that ultimately it is the responsibility of the State to ensure the safety and lives of the citizens to that extent the State cannot overlook its responsibility. It is also not the case that the petitioner was involved in any anti national activity or illegal activity but was a mere a law abiding citizen taking out his livelihood by engaging business in his village and the petitioner's family had to undergo serious trauma throughout the entire period since the abduction of the petitioner's husband from 2008. The State has also admitted its failure to find out the whereabouts of the petitioner's husband till date as evidence from the final police record submitted. It may be also noted that this Court in a similar case in W.P.(Crl.) No. 27 of 2010 and W.P.(Crl.) No. 13 of 2012 disposed of on 10.06.2013 has guaranteed a sum of Rs. 5,00,000/- to the victims as compensation for abduction by the extremists. The aforesaid decision was rendered in 2013. As such, the State authorities are liable since the petitioner had not been recovered as has been admitted by the authorities themselves by the final report, it can be presumed that the petitioner's husband had been killed by the militants as Article 21 of the Constitution of India. The aforesaid decision was rendered in 2013. As such, the State authorities are liable since the petitioner had not been recovered as has been admitted by the authorities themselves by the final report, it can be presumed that the petitioner's husband had been killed by the militants as Article 21 of the Constitution of India. It has been submitted by the learned counsel for the petitioner that if the right to life as guaranteed in Article 21 is violated, the State authorities would be liable to adequately compensate under the public law remedy as regard, the learned counsel has referred the decision of the Hon'ble Supreme Court in the case of W.P.(Crl.) No. 27 of 2010 and W.P.(Crl.) No. 12 of 2012 disposed of on 10.6.2013 by this Court directing for payment of Rs. 5,00,000/- to the relatives of the abducted by the extremists. In the aforesaid cases, the relatives of the petitioners therein were kidnapped by the unknown persons and the State failed to ascertain their whereabouts and this Court relying on the decision rendered by the Supreme Court in the Railway Board and also holding that the right to life has guaranteed under Article 21 of the Constitution of India had been violated, directed to pay a compensate to the extent of Rs. 5,00,000/-. 20. Considering the above facts and circumstances, the present petition is allowed. This Court is of the view that awarding of Rs. 3,00,000/- may not be sufficient under the facts and circumstances above and accordingly, this Court would enhance the compensation to a sum of Rs. 10,00,000/- which may be paid by the State authorities within a period of 4 (four) months.