Rajen Gogoi v. Union of India &
Case Details
WP(C) 230/2005 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) Heard Mr. A.C. Borbora, learned Sr. Counsel, assisted by Mr. M. Smith, learned c ounsel for the petitioner. Also heard Mr. R. Sarma, learned ASGI and Mr. M. Bhag awati, learned State Counsel. 2. By means of this writ petition filed in 2005 and to be prØcise on 4.1.20 05, the petitioner has prayed for a direction to the respondents to cause an enq uiry relating to the death pf his father Late Robin Moran on the night of 14.8.2 003 while was accompanying Army personnel. Further prayer made is to pass approp riate order for prosecution of the offending personnel and also to grant adequat e compensation to the family members of the deceased.
Decision
3. The prayer for judicial enquiry ought to have been pursued immediately a fter filing of the writ petition, but on perusal of the order sheet, no such end eavor is discernible. 4. Mr. Borbora, learned Sr. Counsel for the petitioner also submits that at this distant date, a judicial enquiry relating to the cause of death of the fat her of the petitioner may not serve any purpose. However, he insisted for paymen t of compensation as according to him the father of the petitioner was killed by Army personnel showing it to be a case of encounter. In this connection he has placed reliance on the following decisions: 1. 2. 3. dia); 4. 5. 1995 (2) GLT 384 (Rajen Gogoi Vs. Union of India & 7 Ors.); (1994) 2 GLR 359 (Robindra Nath Chetia Vs. Union of India & Ors.); (1998) 2 SCC 109 (Naga People’s Movement of Human Rights Vs. Union of In AIR 1984 SC 571 (Sebastian M. Hongray Vs. Union of India & Ors.) and AIR 1984 SC 1026 (Sebastian M. Hongray Vs. Union of India). 5. Countering the above argument, both Mr. R. Sarma, learned ASGI and Mr. M . Bhagawati, learned State Counsel submit that the father of the petitioner havi ng died due to his own fault, there is no question of payment of any compensatio n. They have also submitted that there was delay in filing the writ petition. Re ferring to the enquiry report forwarded by the Additional Deputy Commissioner, T insukia, they further submit that the report itself will prove that the deceased died due to his own fault. 6. I have very carefully considered the submissions made by the learned cou nsel for the parties and so also the materials on record. The decisions, on whic h the learned counsel for the petitioner has placed reliance are all in respect of custodial death and payment of compensation. 7. In Rajen Gogoi (supra), the person concerned were arrested and taken int o custody by Army. It was found that the detenu was inflicted bodily injuries wh ile in custody. There was also failure to take appropriate care. It was in such circumstances, direction was issued for payment of compensation. In Robdindra Nath Chetia (supra) also it was found that Army killed the 8. petitioner’s son. No judicial enquiry was ordered in view of expiry of three yea rs from the date of incident. In such circumstances, compensation was awarded. I n Naga People Movement of Human Rights (supra) the Apex Court discussing the pow er conferred on the Army under Armed Forces (Special Powers) Act, 1958 held that such power cannot be arbitrary. In paragraph 54 of the judgment, a list of (cid:28)Dos and Don’ts (cid:29) has been laid down with the direction to follow the same while prov iding aid to the civil authority. 9. In (Sebastian M. Hongray) (1) (supra), the Apex Court was concerned with the power and jurisdiction towards issuance of writ of habeas corpus. In (Sebas tian M. Hongray) (2) (supra) when submission of the Government that the persons in question had left camp alive was not found correct, it was held that the Gove rnment was guilty of civil contempt and accordingly direction was issued to pay compensation to the wife of the deceased. 10. There cannot be any quarrel with the proposition of law laid down in the aforesaid cases. Needless to say that ratio of a decision will have to be under stood in the background of the facts involved in each case. In the instant case, the specific plea of the Army is that on the basis of the regular intelligence gathering, it was found that the deceased was a well entrenched over ground work er set up in the area by the militant organization. It has also been stated that one Sri Polak Moran, who had been apprehended earlier and handed over to the Du mduma Police Station on 6.8.2003 and graded as ’BLACK’ confessed that the deceas ed was an active linkman of the particular militant organization. 11. In paragraph-6 of the counter affidavit, it has been stated that a team of 21 PARA (SF) comprising of one officer, one JCO and 15 others set out from Ph illobari camp at 11.30 PM on 14.8.2003 had proceeded with a view to take the dec eased by surprise. On reaching his house, one NCO with two others of the team pr etending to be members of militant organization contacted the deceased while the other members of the team positioned near the vicinity. Seeing the police perso nnel suspicion arose in the mind of the deceased and he tried to escape. He was then taken into custody. He was taken to the particular camp for further questio ning. 12. During investigation, the deceased confessed about his hiding of certain ammunitions in the chicken coop at his residence. Few personnel then rushed to his house and requested his wife to co-operate which she declined. Hence they st arted searching and digging the area and with the help of metal detector recover ed 40 rounds of 9 mm ammunition from the particular chicken coop. Photographs an d video clipping of the recovery were also made. 13. In paragraph 13 of the counter affidavit, it has been stated that on the basis of the information provided by late Robin Moran about a secret place of a rms and ammunitions in the Dumduma jungle, a party comprising of 2 officers, 1 J CO and 11 others led by the deceased proceeded towards the mentioned location at around 5 PM to thick jungle. Initially, the deceased tried to misled the team b y showing one place after another. It was around 6.30 PM he had indicated anothe r suspected area and started digging that particular place and suddenly pulled o ut a 7.62 mm country made pistol, fired a shot and tried to run away taking adva ntage of the forest and darkness. The same was followed by a grenade blast, whic h the deceased intended to throw at the patrol members and the members fired at the fleeing deceased. Thereafter it was discovered that late Robin Moran had die d. The information about the encounter was passed on to the Head Quarter with a request to arrange a police party. 14. In paragraph-14 of the counter affidavit, it has been categorically stat ed that the deceased was not detained in any undisclosed place. It has also been denied that he was inflicted any torture by Army personnel. During the operatio n, the following recoveries were made: (cid:28)a) 7.62 mm County made Pistol. b) 7.62 mm ammunition - 1 fired cases 2 live rounds c) 9mm ammunition Mahendra Baruah alias Rupam Gohain of 28 Battalion ULFA. (cid:29) - Diary of SS Sgt 15. In the counter affidavit filed by the State Government, a copy of the en quiry report dated 27.10.2003 has been enclosed. On perusal of the said report, it appears that a detail enquiry was carried out. During the enquiry general not ice was issued inviting the public to depose before the enquiry and to furnish a ny information, clue etc. relating to the incident. Four persons came forward wi th their submission/evidence. From the side of the Army also a written statement was submitted. A written statement was also submitted by one Sri Nobaran Gohain , Vice President of Kakopathar Anchalik Panchayat. 16. After taking into account the entire evidences on record including the p ost mortem report, the Enquiry Officer has more or less agreed with the aforesai d stand of the Army personnel in their affidavit. The report has revealed that t he deceased was categorized as (cid:28)BLACK (cid:29). It has also been recorded in the report that he had led the Army column headed by Major S. Pandey to conduct search for hidden weapons/arms. He had dug the ground on two different spots, but nothing c ould be found. Thereafter he changed his direction to a side trail and started s earching on the ground and suddenly he pulled out a 7.62 mm country made pistol from the place and fired a shot and tried to run away. After initial confusion, the Army jawans fired back and he stumbled and fell down. A sound like grenade b last was also heard. The aforesaid recovery has also been certified in the enqui ry report. As per the report, the deceased had revealed to the Army that arms/ammun 17. itions were hidden in Doomdooma forest and he led the army party to the forest. It has been recorded in the enquiry report that the army personnel ought not to have been taken the deceased to the jungle as a free man without chaining him se curely or handcuffing, more particularly, when he was already termed as (cid:28)BLACK (cid:29). The Enquiry Officer has also found fault of the timing of the search operation. The Enquiry Officer has disbelieved the story that the deceased pulled out a co untry made pistol from the ground and fired a shot at the army party. However, t he enquiry report has confirmed that in the militant organization’s news letter (cid:28)Freedom Fortnightly (cid:29) at Page No. 4, the name of the deceased appeared as freedo m fighter. 18. On the basis of the aforesaid revelation, the Enquiry Officer has clearl y held that the deceased has some link with the banned militant organization and that he was categorized as (cid:28)BLACK (cid:29). However, as noted above, the Enquiry Office r has expressed his displeasure in the manner in which the deceased was taken to the jungle for recovery of arms and ammunitions. Accordingly to him, he should have been closely guarded and protected by the Army for fruitful utilization of his service in tracking down he extremists. 19. On perusal of the report, coupled with the stand of the Army in their af fidavit, what has crystallized is that the deceased had link with the banned mil itant organization and arms and ammunitions were also recovered from him. The pa rticular news letter of the militant organization also clearly mentioned him as freedom fighter while mentioning his occupation. 20. Search was carried out by the army personnel on receipt of the intellige nce report and in fact arms and ammunitions were also recovered from the chicken coop. Video operation of which was also carried out. Going to the jungle as was led by the deceased further arms and ammunitions were also recovered. 21. Although the aforesaid affidavit-in-opposition was filed by the Army way back in 2005 (28.3.2005), the petitioner has not shown any response to the same . 22. In the matter of awarding compensation, negligence etc. because of which the death is claimed will have to be established conclusively. Compensation can not be claimed as a matter of course in each and every case where a member of th e militant organization dies. The enquiry report has clearly reflected the case of the army as depicted in their counter affidavit. Only what has been attribute d is that he should have been properly chained so that his service could be util ized effectively. There may be variation in the action taken by the army, but th e same will have to be considered as per the demand of the situation. When the d eceased himself volunteered to unearth the hidden arms and ammunitions, the part icular commander of the army might have thought it prudent to follow the decease d instead of handcuffing him or chaining him. For that no fault can be attribute d to the army personnel. 23. For all the aforesaid reasons, I am of the considered opinion that after so many years of death of the deceased, it will not be reasonably practicable t o conduct an enquiry relating to his cause of death as has been claimed by the p etitioner. It will be a futile exercise to order such enquiry, more particularly when the Additional District Magistrate has already carried out the enquiry ref erred to above. Learned counsel for the petitioner has also not insisted for con ducting enquiry. As regards payment of compensation, in absence of any materials to hold 24. that the army was responsible for the death of the deceased, coupled with the re velation made in the enquiry report, I am not inclined to pass any order for pay ment of compensation to the members of the deceased family. 25. The writ petition is dismissed, without, however, any order as to costs.