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2019 DIGILAW 45 (GAU)

Manowara Begum (Mst. ) v. State of Assam

2019-01-17

UJJAL BHUYAN

body2019
JUDGMENT : UJJAL BHUYAN, J. 1. Heard Mr. R. Doley, learned counsel for the petitioner and Mr. R. Dhar, learned Govt. Advocate, Assam for respondent Nos. 1, 2 & 3. Also heard Ms. R. Devi, learned Central Government Counsel for respondent Nos. 4 to 7. 2. Petitioner in this case is Musstt. Manowara Begum. 3. By filing this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents to pay adequate compensation to her for the killing of her son Md. Samir Khan by personnel belonging to Central Reserve Police Force (CRPF) and Assam Police. An alternative prayer has been made to handover investigation of the case to the Central Bureau of Investigation. Further prayer made is for monitoring of investigation of the case by this Court. 4. Case of the petitioner is that she is the mother of Md. Samir Khan. At the time of his death, he was aged about 22 years and was a college student. It is stated that Samir Khan was an innocent fun loving youth without having any criminal antecedent. He was a student of Arya Vidyapeeth College, Guwahati. Apart from Samir Khan, petitioner has three daughters. 5. On 01.11.2001 at about 11:30 p.m., petitioner's son Samir Khan alongwith his friends numbering 12 were moving around in a group on scooters visiting different mosques in Guwahati city on the pious occasion of Sabebarat. The group was on their way to Burah Masjid located at Ambari when they were intercepted at a police check point at Zoo Tiniali, Guwahati which was jointly manned by personnel of CRPF and Assam Police from Geetanagar Police Station, Guwahati. Samir Khan was dressed in kurta pajama and had stopped his scooter at the interception. However, the CRPF personnel manning the check point fired at him which hit his abdomen as a result of which he fell down from the scooter and started bleeding profusely. Samir Khan was taken to Gauhati Medical College and Hospital in a police vehicle. After about 1 hour he was declared dead at about 1:15 a.m. on 02.11.2001. After carrying out post-mortem examination, the dead body of Samir Khan was handed over to the family for performing burial rites. 6. Samir Khan was taken to Gauhati Medical College and Hospital in a police vehicle. After about 1 hour he was declared dead at about 1:15 a.m. on 02.11.2001. After carrying out post-mortem examination, the dead body of Samir Khan was handed over to the family for performing burial rites. 6. On 02.11.2001 Havildar R.B. Singh of CRPF filed FIR before Geetanagar Police Station stating that at around 12:00 mid night 6 persons riding on scooters came from Dispur side at high speed. When they reached Zoo Narengi Tinali, they were signaled to stop by the police personnel at the check point but instead of stopping their scooters they only increased their speed and tried to flee away which led to firing in which one person was fatally injured. On the basis of the said FIR, Geetanagar Police Station Case No. 110/2001 was registered under Sections 353/307/34 IPC. 7. On 03.11.2001, husband of the petitioner Md. Siraj Khan lodged FIR before Geetanagar Police Station about the death of his son on the basis of which Geetanagar PS Case No. 111/2001 was registered under Section 302 IPC. The killing of petitioner's son in such a manner caused hue and cry in the city leading to public demonstrations and protest. It is stated that Hon'ble Chief Minister and other Ministers had visited the family and assured help. Likewise, senior officials of CRPF and Assam Police also assured help to the family. 8. On 02.11.2001 itself District Magistrate, Kamrup had directed Sri R.P. Das, Sub-Divisional Magistrate, Guwahati to hold an enquiry into the incident of killing of petitioner's son by CRPF personnel on the mid night of 01.11.2001. It is stated that the magisterial enquiry concluded that petitioner's son was killed by CRPF personnel in an unjustified manner vide the enquiry report dated 17.11.2001. Enquiry report also identified the security personnel manning the check point on the fateful night who had killed petitioner's son. 9. Though FIR was lodged immediately after the incident on 03.11.2001 there was no progress at all in the investigation of the case. In the meanwhile husband of the petitioner who used to work as a clerk in a tea establishment expired in the month of July, 2010. It is stated that the family comprising of mother and her daughters are running a small grocery shop in front of their house and somehow managing themselves. 10. In the meanwhile husband of the petitioner who used to work as a clerk in a tea establishment expired in the month of July, 2010. It is stated that the family comprising of mother and her daughters are running a small grocery shop in front of their house and somehow managing themselves. 10. It is in such circumstances that the present writ petition came to be filed on 7.1.2011 seeking the reliefs as indicated above. 11. Notice in this case was issued on 18.2.2011. Though an observation was made in the order dated 18.2.2011 that an endeavour would be made to dispose of the matter at the stage of admission hearing, the case was admitted for final hearing on 21.3.2011 and for one reason or the other the matter could not be finally heard for all these years. It is now almost 8 years when the case is taken up for final hearing and disposal. 12. Delay in disposal of cases, that too cases of such a nature, is a matter of serious concern. This is an aspect the judiciary needs to look within. 13. Be that as it may, Respondent Nos. 4 to 7 in their common affidavit have stated that on 31.10.2001, one CRPF constable was killed and another constable alongwith a civilian were injured in an attack by motorcycle borne suspected militants at Paltan Bazar area of Guwahati city. There were intelligence inputs of presence of militants planning security breach in the city. 13.1. On 01.11.2001, one section of A/114 Battalion consisting of one head constable and 5 constables under the command of Head Constable (HC) Rambir Singh alongwith state police personnel were performing Naka duty at Zoo Narangi Tiniali under Geetanagar Police Station on requisition of Superintendent of Police, Guwahati city. At about 11:56 p.m. on 01.11.2001 three scooters were coming from Ganeshguri direction towards the Naka point when they were asked to stop. All the scooterists were not slowing down their scooters, instead they increased their speed and tried to flee ignoring commands of the security personnel to stop. Head Constable Rambir Singh blew whistle as a signal to the scooterists to stop. It is stated that the scooterists ignored the instructions to stop; instead, they tried to run over CRPF constable Kanak Ch. Kalita. Head Constable Rambir Singh blew whistle as a signal to the scooterists to stop. It is stated that the scooterists ignored the instructions to stop; instead, they tried to run over CRPF constable Kanak Ch. Kalita. It was at that stage that constable T. Venkateshan fired upon from his service SLR apprehending imminent danger to his life. The bullet fired upon hit the left side of the body above the waist. The scooterist lost control and after dashing against the electric pole fell down. Pillion rider and the other scooterists had fled away. The injured was taken to Gauhati Medical College and Hospital by state police personnel but he succumbed to his injuries. The deceased was identified as Samir Khan, aged about 25 years, son of Siraj Khan, resident of Birubari, Guwahati city. 13.2. While Section Commander, Head Constable Rambir Singh lodged FIR before the Geetanagar Police Station leading to registration of Geetanagar PS Case No. 110/2001 under Sections 353/307/34 IPC, family members of Samir Khan also lodged FIR before Geetanagar Police Station which was registered as Geetanagar PS Case No. 111/2001 under Section 302 IPC. 13.3. It is further stated that Deputy Inspector General of Police, CRPF, Guwahati had ordered a Court of Inquiry to enquire into the circumstances leading to the firing and resultant death of Samir Khan. It is stated that Court of Inquiry submitted report dated 10.11.2001 whereafter final order was passed by the Commandant, 114 Battalion, CRPF dated 16.01.2004 absolving the CRPF personnel of any wrong doing. 14. Respondent No. 3 had also filed an affidavit on 17.03.2012 stating that Geetanagar PS Case No. 110/2001 lodged by Rambir Singh resulted in the filing of final report (FR) to the effect that the allegation was true but could not be prosecuted as the accused had died. In so far investigation of Geetanagar PS Case No. 111/2001 was concerned, it was stated that investigation was going on. 15. Petitioner has filed rejoinder affidavit to the affidavit of respondent Nos. 4 to 7. 16. On 01.09.2017 a Single Bench of this Court noticed that as per written instructions furnished to learned Govt. Advocate the accused persons were arrested and that the police was in the process of submitting charge- sheet. The Court noted that this was a case where a young boy was shot at point blank range by a CRPF personnel leading to his death. Advocate the accused persons were arrested and that the police was in the process of submitting charge- sheet. The Court noted that this was a case where a young boy was shot at point blank range by a CRPF personnel leading to his death. While Geetanagar PS Case No. 111/2001 was registered under Section 302 IPC, charge-sheet was yet to be filed though 16 years had gone by. In such circumstances, this Court had appointed an Amicus Curiae to assist the Court. Relevant portion of the order dated 01.09.2017 is extracted hereunder:-- "By producing a copy of the written instruction dated 30.08.2017, Mr. Nath submits that the accused person in this case were arrested and the police is in the process of submitting charge-sheet shortly. This is a case where a young boy was shot at point blank range by CRPF personnel leading to his death. Although, a police case being Geetanagar P.S. Case No. 111/2001 under Section 302 IPC, yet, even after 16 years no charge- sheet has been filed in the matter till date. The learned counsel for the respondent Nos. 4 to 7 has also failed to furnish any authentic information as to what action has been taken in the matter against the accused persons. Under the circumstances, I am of the view that this matter calls for deeper examination. Accordingly, Mr. A.M. Bora, learned Sr. counsel is hereby appointed as amicus curiae to assist the Court in the matter." 17. In the hearing which took place on 14.11.2017 learned Govt. Advocate informed the Court that charge-sheet was filed on 18.9.2017 against 6 personnel of 114 Battalion of CRPF, being charge-sheet No. 57 dated 18.9.2017. 18. Submissions made by learned counsel for the parties have been considered. 19. Before proceeding further it would be apposite to briefly advert to the magisterial enquiry report submitted by the Sub-Divisional Magistrate, Kamrup (M), Guwahati to the District Magistrate, Kamrup (M) on 17.11.2001. As already noticed above, magisterial enquiry was directed by the District Magistrate on 02.11.2001 itself to enquire into the incident which took place leading to the firing and resultant death of petitioner's son. As already noticed above, magisterial enquiry was directed by the District Magistrate on 02.11.2001 itself to enquire into the incident which took place leading to the firing and resultant death of petitioner's son. Relevant portion of the enquiry report is as under:- "During the course of enquiry it is revealed that on the night of 01.11.2001, to commemorate the day of "Sabebarat" twelve youths of Muslim community and various age groups ranging from 12 to 22 years of Birubari area of Guwahati with an intention to visit the various holy "Majars" of the city for offering "Namaj" proceeded from their area at around 9:30 p.m. with six numbers of two wheelers, two in each two wheeler. All of them clad in Kurta, Pajama & Topi. On their return at around 11:00 p.m. from the last spot of Sijubari Majar (Hatigaon) situated in the southern-most part of the city via Ganeshguri Zoo-Road (R.G Baruah Road), the security personnel on duty at Zoo- Tiniali area under Geetanagar police station during their routine checking fired and killed one of them, later on identified as Samir Khan, without any provocation. The bullet-hit youth by the police, did not die instantly, but died at Guwahati Medical College Hospital who was carried there after the incident by the police." 20. Thus, as per the magisterial enquiry, petitioner's son was killed by the security personnel without any provocation. After thorough examination of various aspects of the incident and after examining the police and CRPF personnel, the magisterial enquiry was concluded with the observation that the incident took place because of loose control over CRPF personnel deployed for Naka duty by the state police. It was also observed that there was lack of proper briefing to the security personnel about aspects relating to human rights. Just because there was violation of signal to stop during checking could not be a ground to directly fire upon an unarmed civilian by an armed jawan on duty. 21. From the pleadings and other materials on record, the following undisputed facts emerge:- 1. Petitioner's son was shot at by CRPF personnel as he was approaching police check point at Zoo Narangi Tiniali, Guwahati city around 11:56 p.m. on 1.11.2001 i.e. on the night of "Sabebarat". 2. The deceased was wearing traditional dress and cap due to religious occasion. 3. From the pleadings and other materials on record, the following undisputed facts emerge:- 1. Petitioner's son was shot at by CRPF personnel as he was approaching police check point at Zoo Narangi Tiniali, Guwahati city around 11:56 p.m. on 1.11.2001 i.e. on the night of "Sabebarat". 2. The deceased was wearing traditional dress and cap due to religious occasion. 3. It is evident that the deceased and his friends were moving around the city on scooters on the occasion of "Sabebarat" festival. 4. For failing to obey the command of the CRPF personnel to stop, the deceased was fired upon. 5. He was fired upon above the waist which ultimately led to his death. 6. Neither any weapon nor any ammunition were found with the deceased. That apart, no incriminating materials were found on the wearing apparel of the deceased. 7. Court of enquiry ordered by CRPF did not find CRPF personnel to be guilty of any wrong doing. Consequently they have been absolved of any wrong doing. 8. Geetanagar PS Case No. 110/2001 registered on the basis of first information of CRPF ended in filing of final report stating that though allegation under Section 353 IPC was correct, there could not be any prosecution because of the death of the accused. 9. In so far Geetanagar PS Case No. 111/2001 is concerned, it was registered on the FIR lodged by petitioner's husband. Charge-sheet has been submitted by the police on 18.09.2017 against 6 personnel of CRPF, namely, Sri T. Venkateshan, Sri Ranbir Singh, Sri Sanjay Kr. Singh, Md. Hanif, Sri Kanak Ch. Kalita and Sri Dhyan Singh. 22. Thus after FIR was lodged on 03.11.2001 investigation could be completed leading to filing of charge-sheet only on 18.09.2017 i.e. after almost 16 years. 23. This is where the matter stands now. 24. When charge-sheet has been submitted against 6 CRPF personnel, Court would refrain from expressing any opinion on the merit of the case as it may cause prejudice to either parties. 25. However, the factum of death of Samir Khan due to police firing by CRPF personnel Sri T. Venkateshan is not denied. Magisterial enquiry says it was unprovoked. 24. When charge-sheet has been submitted against 6 CRPF personnel, Court would refrain from expressing any opinion on the merit of the case as it may cause prejudice to either parties. 25. However, the factum of death of Samir Khan due to police firing by CRPF personnel Sri T. Venkateshan is not denied. Magisterial enquiry says it was unprovoked. According to the respondents, deceased was fired upon as the security personnel suspected the deceased and the group to be militants as there was a militant attack on the previous night with intelligence inputs suggesting presence of militants in the city. In so far Geetanagar PS Case No. 110/2001 is concerned, if there was commission of offence under Section 353 IPC it was by all the scooterists and the pillion riders, not alone by the deceased. Therefore, the concluding observation by the investigating officer that final report had to be submitted despite the allegation being true because the accused had expired has to be taken with a pinch of salt. 26. In so far Geetanagar PS Case No. 111/2001 is concerned, as noticed above, it had taken the police 16 long years to file the charge-sheet against the 6 accused CRPF personnel under Section 302 IPC; 6 years after filing of the present writ petition. 27. Though in our criminal jurisprudence there are elaborate provisions laying down procedural safeguards for the accused keeping in mind the principles of fairness and natural justice, nonetheless there has been a paradigm shift in recent times. While entitlement of the accused to speedy and fair trial being a facet of Article 21 of the Constitution of India has been repeatedly emphasized by the constitutional courts, at the same time the rights of the victim have been given due recognisation. In Mangal Singh Vs Kishan Singh reported in (2009) 17 SCC 303 , Supreme Court observed that any inordinate delay in conclusion of a criminal trial undoubtedly has a highly deleterious effect on the society. It will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. It will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. Highlighting this aspect of the matter, Supreme Court in Rattiram Vs State of Madhya Pradesh reported in (2012) 4 SCC 516 observed that delay in the prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost One cannot afford to treat the victim as an alien or a total stranger to the criminal trial. Criminal jurisprudence with the passage of time has laid emphasis on victimology. The view of the victim is given due regard. 28. In Pooja Pal Vs Union of India reported in (2016) 3 SCC 135 , Supreme Court reiterated the above position. Supreme Court has held that a trial encompasses investigation, inquiry, trial, appeal and retrial i.e. the entire range of scrutiny including crime detection and adjudication on the basis thereof. Jurisprudentially, the guarantee under Article 21 embraces both the life and liberty of the accused as well as interest of the victim, his near and dear ones. 29. Dragging on investigation in a case of this nature for 16 long years cannot be justified under any circumstances. The magisterial enquiry took just 15 days. Of course criminal investigation cannot be equated or treated at par with a magisterial enquiry but by any standard 16 years is too long a period for conclusion of an investigation into a clear case of death of a person killed by person in uniform. 30. In so far death of petitioner's son is concerned, following a catena of decisions of the Supreme Court starting from Rudul Sah Vs. State of Bihar reported in (1983) 4 SCC 141 followed by Sebastian M. Hongray Vs. Union of India reported in AIR 1984 SC 1026 elaborated upon in Nilabati Behera Vs State of Orissa reported in (1993) 2 SCC 746 it is now the settled legal position that compensation can be awarded to a person for violation of his fundamental rights under Article 21 of the Constitution of India under the public law remedy. Union of India reported in AIR 1984 SC 1026 elaborated upon in Nilabati Behera Vs State of Orissa reported in (1993) 2 SCC 746 it is now the settled legal position that compensation can be awarded to a person for violation of his fundamental rights under Article 21 of the Constitution of India under the public law remedy. In the said decisions followed by other landmark decisions Supreme Court has taken the view that for violation of the fundamental right to life or basic human rights the defence of sovereign immunity is not available to the State for the tortious acts of public servants and for the established violation of the rights guaranteed by Article 21 of the Constitution of India. 31. In D.K. Basu Vs State of West Bengal reported in (1997) 1 SCC 416 , Supreme Court has held that the claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. 32. In the year 2009, Section 357 A was inserted in the Code of Criminal Procedure, 1973 which provides for preparation of a scheme for victim compensation. While Section 357A CrPC provides for victim compensation by the legal services authorities constituted under the Legal Services Authorities Act, 1987 as per scheme prepared on recommendation by the Court, Supreme Court in recent judgments has emphasised providing of interim compensation to the victims or their near and dear ones while the trial goes on. It is seen that Govt. of Assam in the Political Department had issued notification dated 18.10.2012 making the Assam Victim Compensation Scheme, 2012 in exercise of powers conferred by Section 357 A CrPC. As per subsequent notification dated 5.3.2016 issued by the Government of Assam in the Political (A) Department, in case of death the amount of victim compensation has been fixed at Rs. 2,00,000.00. 33. Thus, in the light of the above discussions, Court is of the view that following directions would meet the ends of justice:- 1. As per subsequent notification dated 5.3.2016 issued by the Government of Assam in the Political (A) Department, in case of death the amount of victim compensation has been fixed at Rs. 2,00,000.00. 33. Thus, in the light of the above discussions, Court is of the view that following directions would meet the ends of justice:- 1. Since police has filed charge-sheet being Charge-Sheet No. 57 dated 18.9.2017 on completion of investigation into Geetanagar PS Case No. 111/2001, learned Sessions Judge, Kamrup (M), Guwahati is requested to ensure that trial of the related sessions case is conducted expeditiously, if necessary on day to day basis. 2. In view of the death of petitioner's son following firing by CRPF personnel on the mid night of 01.11.2001 and the gross delay in conclusion of investigation, petitioner should be awarded compensation of Rs. 5,00,000.00 by the State of Assam in the Home and Political Department. The above compensation shall be paid within 3 (three) months from the date of receipt of a certified copy of this order. 3. In addition to the above, it would be open to the petitioner to avail her remedy under the private law for additional compensation, if so advised. 4. Member Secretary, Assam State Legal Services Authority shall provide a competent legal aid counsel and a para legal volunteer to aid and assist the petitioner in availing her legal remedy including intervention in the sessions case, if considered necessary. 34. With the above directions, writ petition is disposed of. 35. A copy of this order be furnished to Member Secretary, Assam State Legal Services Authority for doing the needful.