Civil Rule (HC) No. 112 of 1991

18th June, 1991.

Petitioner Counsel: Mr. N. Dutta, Mr. Dr. Gogoi, Advocates, for
Respondent Counsel: Mr. A. R. Barthakur, Advocate General, Assam, Mr. Prasad, Senior Government Advocate, Assam, Mr. K. N. Chaudhury, Central Government Standing Counsel, Mr. J. Singh, Government Advocate, Assam, .

Cases Cited:
(1988) 3 Crimes 122,(1988) 3 JT 332 [Para 12]
1986 Cri LJ 1736,AIR 1986 SC 1773,1986 All LJ 1369 [Para 10]
1985 Cri LJ 516,AIR 1985 SC 195 [Para 13]
1985 Lab IC 1895,AIR 1985 SC 1363 [Para 10]
1984 Lab IC 560,AIR 1984 SC 802 [Para 10]
1983 Cri LJ 642,AIR 1983 SC 378 [Para 10]
1981 Cri LJ 1438,1980 Supp SCC 183,AIR 1981 SC 1767 [Para 10]

JUDGMENT

MANISANA, J.: -In this application

under Art. 226 of the Constitution of India for a writ of habeas corpus, the petitioner Pranab Jyoti Gogoi has challenged the arrest and detention of his brother Dhruba Jyoti Gogoi alias Bobby as illegal.

2. In the application made on l8-3-9l, the case of the petitioner, in brief, is that on 17-3- 91 at about 8.00 a.m. army personnel arrested Dhruba Jyoti at Doom Dooma. The information about the arrest was given to the petitioner at about 12.00 noon on the same day. The family members including the petitioner made inquiries about Dhruba Jyoti but is whereabouts were unknown. Dhruba Jyoti had been suffering from epilepsy. He had an inclination to have epileptic fit when he passed sleepless night, or if he was tortured physically or mentally.

3. On 20-3-91, Shri N. Dutta, learned counsel for the petitioner, drew the attention of the Court that Dhruba Jyoti died while in the custody of the army authority and the dead body of Dhruba Jyoti was handed over by the army authority to Digboi Police Station on the night of 19-3-91 at about 2.30 a.m. and that post mortem was held on the dead body. In that view of the matter, this Court made an order on 20-3-91 directing the State of Assam to produce (1) inquest report, (2) post mortem report, and (3) the report of army authority submitted to civil police while handing over the dead body of Dhruba Jyoti Gogoi, and also allowing the petitioner to file additional affidavit. The post mortem report, the inquest report and the report submitted by the army authority were produced on 25-3-91. On 25-3-91, this Court allowed the army authority to file counter with a direction that in the counter the following facts should be stated -

"1) When the deceased Dhruba Jyoti Gogoi was taken into custody by the members of the Armed Forces and from where and under what circumstances deceased Dhruba Jyoti Gogoi was taken by the Armed Forces.

2) To explain the reasons for detaining the person in the custody of the Armed Forces instead of handing over to the police with least possible delay and also non production of the person before the Magistrate within 24 hours, which is a constitutional mandate.

3) The name of officers or other persons under whose custody deceased was kept by the members of the Armed Forces and whether the concerned authority has conducted any enquiry as required under the Army Rule 180."

4. An additional affidavit was filed by the petitioner Pranab Jyoti Gogoi. In the said affidavit, it has been stated, inter alia, thus. Dhruba Jyoti was hale and hearty while he was arrested, but there were injuries on his body indicating marks of brutal torture. The marks of brutal torture on his body and sudden death in the custody of the army authority would show that Dhruba Jyoti was brutally murdered by the army personnel while in custody. The petitioner had no means of knowing the identity of the guilty army personnel. At this present period, the civil police are totally incapable of dealing with any complaint made against any army personnel. It is, therefore, necessary to appoint a commission to enquire into the matter. The parents of the deceased are also entitled to monetary compensation.

5. The army authority filed counter. The facts stated in the counter, in brief, are as follows. At about 07.00 hours on 18-3-91, the army authority got information about the presence of hardcore ULFA militants at village Naharani. A column was immediately rushed to Naharani and the area was cordoned off. At about 08.20 hours while the column was moving through the village, one person suddenly turned back and started running. On being chased, he entered a bamboo grove in the vicinity and started crawling attempting to hide himself. On being surrounded from all sides, the person attempted to throw granade and attempted to use his weapon on the party. In the ensuing encounter, Dhruba Jyoti was hit on his head with rifle butt and also other parts of the body, and ultimately he was overpowered. First aid was administered immediately from the army sources by army doctor Captain Syed. When the injured was asked, he disclosed his name as Dhruba Jyoti Gogoi alias Bobby, a resident of Dibrugarh.

An amount of Rs. 28,000.00, one Pistol .25 calibre loaded with 12 rounds and two Prime Hand Grenades were recovered from the possession of Dhruba Jyoti on search. On being questioned, he led the army personnel to the different locations in Naharani from where the following articles were recovered one revolver, one pistol, 1311 rounds of assorted ammunition, three (3) detonators, five (5) Bren Gun magazines, and one (1) G-3 magazine.

Thereafter, Dhruba Jyoti led the party to village Hulutupu near Makum for recovery of cache. After search army authority returned to the camp at about 19.00 hours. At about 23.30 hours the guard noticed the injured (Dhruba Jyoti) having epileptic fit and the doctor was immediately informed. Before the doctor came, the patient was under the care of the nursing assistant. The doctor arrived at the spot at 25.45 hours and attempts were made by him to bring the patient to normal condition by giving external cardiac massage. Then the doctor took him to the MI room where he was given necessary medical treatment. But, there was no improvement for about 15 to 20 minutes in spite of proper medical care taken. Dhruba Jyoti died at 00.30 hours. The matter was immediately reported to Digboi Police Station and FIR was lodged. Police came immediately, took charge of the dead body along with materials recovered from his possession and few other places mentioned above after preparing seizure list. The Digboi Police took away the dead body from the custody of the army authority after completion of the formalities including holding an inquest in presence of the army personnel present at the spot. The FIR, medical report submitted by the doctor Syed and list of seized articles have been annexed to the counter.

6. The petitioner filed rejoinder. In the rejoinder, the petitioner states that the medical case sheet of the deceased while in army custody written by Captain VS Syed is a false and fabricated document written after the death of the deceased for covering up the crimes of the army personnel. No explanation as desired by this Court in its order dated 25-3-91 has been furnished by the army authority. There has been wilful disregard to the order passed by this Court. Appropriate action should be taken against the erring army personnel.

7. As regards the writ of habeas corpus, it has become infructuous as Dhruba Jyoti had died while he was in the custody of the army authority.

8. In respect of judicial inquiry or commission, Shri N. Dutta, learned counsel for the petitioner, has contended that people are feeling insecured and have lost the confidence in civil administration, and that at the present moment civil police are totally incapable of dealing with any complaint against the army personnel. The petitioner is also not in a position to collect and produce the relevant materials before the Court in support of his case because of the peculiar facts and circumstances of the case. Therefore, a commission may be appointed or inquiry may be directed to inquire as to: (i) how Dhruba Jyoti met his death; (ii) how the injuries were caused; and (iii) who caused the injuries.

9. Mr. A. R. Barthakur, learned Advocate General Assam has contended that initially Digoboi P. S. (UD) Case No. 9 of 1991 was registered. Thereafter, a regular case being Digboi P. S. Case No. 44 of I 991 u/S. 302 read with S. 34, IPC has been registered and investigation is pending, and therefore, no parallel inquiry can be ordered.

10. The Supreme Court has, in a series of cases, appointed commission or directed inquiry by the appropriate agency for preservation and protection of fundamental rights (see, Rakesh Kaushik v. B. L. Vig, 1980 Supp SCC 183: (1981 Cri LJ 1438); Sheela Barse v. State of Maharashtra, AIR 1983 SC 378: (1983 Cri LJ 642) Bandhua Mukti v. Union of India, AIR 1984 SC 802: (1984 Lab IC 560); Mukesh Advani v. State of M.P., AIR 1985 SC 1363: (1985 Lab IC 1895); and Sheela Barse v. Union of India, AIR 1986 SC 1773: (1986 Cri LJ 1736).

11. Normally the High Court should make inquiry directly. But, there are cases where the High Court finds it difficult to

make inquiry or investigation directly, for example, difficulty in taking evidence without which the question in dispute cannot satisfactorily be decided, the party approaching the High Court for enforcement of fundamental rights is not in a position to furnish all the relevant materials and necessary particulars, the limitation of court time in some cases, etc. Therefore, to appoint a commission or to direct inquiry for finding out materials through an appropriate agency, is an alternative method or course. The commission that the Court may appoint or the investigation or inquiry that the Court may direct is for the satisfaction of the Court as to the correctness or otherwise of the allegations of violation of fundamental rights to enable the Court to decide the question in dispute.

12. We may refer to another decision of the Supreme Court reported as Mohan Lal Sarma v. State of U.P., (1988) 3 Crimes 122. In that case Mohanlal sent a telegram to the Supreme Court stating that his son Sanjay was murdered by the police in the police lock-up, and that the lock-up was washed by the police resulting in disappearance of materials. The Supreme Court registered the telegram as a writ petition. In the meanwhile a magisterial inquiry was pending. On receipt of the inquiry report, the Supreme Court was not satisfied with the report and the case was referred to Central Bureau of Investigation for a thorough investigation by it.

13. Present is a case of crime detection and punishment. As already stated, the police has registered a case u /Ss. 302 read with 34, IPC against the army personnel (unnamed) and investigation is pending. At this stage it would be helpful to refer to the decision of the Supreme Court reported as State of West Bengal v. Sampatlal, AIR 1985 SC 195: (1985 Cri LJ 516). In that case, dead bodies of two boys were found from the railway track. Although police investigation was pending, the Calcutta High Court directed the Deputy Inspector General, Central Bureau of Investigation to cause an enquiry to be made and report to the Court as to how the two boys met their death. But the Supreme Court after observing that "the appointment of a Special Officer with a direction to inquire into the commission of an offence can only be on the basis that there has not been a proper investigation", set aside the order of the High Court holding that the materials placed before the High Court did not justify to appoint a Special Officer.

14. The law for the disposal of this case may now be summarised. In the matter of crime detection and crime punishment there is a well defined and well demarcated function between the police and the Court. The High Court may appoint a commission or direct an inquiry through appropriate agency if there has not been a proper investigation, or may also direct the case to be investigated by another agency like Central Bureau of Investigation.

15. Coming to the case on hand, the cause of death is disputed. The army authority's account of cause of death conflicts with the petitioner's as is seen from their respective affidavits. The petitioner is not in a position to furnish all relevant materials and necessary particulars. We have also perused the case diary which has been produced as directed by us. In the case diary it is found that the Deputy Commissioner Tinsukia ordered for Magisterial inquiry and the inquiry was made by the Sub-Divisional Officer (C) Margherita. The inquiry report of the Sub-Divisional Officer which is in the case diary, shows that "the cause of death could not be found out through such an inquiry". On reading the case diary, we find that initially the case was registered as UD Case No. 9 of 1991 and thereafter a regular case has been registered against the army personnel (unnamed) under S. 302 read with S. 34, IPC, on the basis of the FIR dated 22-3-91 lodged by the petitioner Pranab Jyoti with the officer in charge Digboi Police Station. The Investigating Officer examined the petitioner Pranab Jyoti on 27- 3-91. Thereafter we do not find any further investigation made by the investigating officer till today. In the facts and circumstances of the case, we are inclined to direct that the case shall be referred immediately to the Central Bureau of Investigation for thorough and detailed investigation by it.

16. It has already been stated that the cause of the death is disputed. Whatever was the cause of death we are not expressing our opinion about it as it would prejudice the investigation of the case. But, admittedly Dhruba Jyoti died when he was in the custody of the army. Dhruba Jyoti suffered injuries. He must have suffered continuous pain. At the time of his death, Dhruba Jyoti was a student of Degree Course and was aged 22. Both the parents are alive. The parents of the deceased have been suffering from mental agony. A case has been registered u/ S. 302 read with S. 34, IPC, as already stated. On the facts and in the circumstances of the case we are of the view that ex-gratia payment (payment without legal consideration) or some monetary payment in the nature of a Palliative would be admissible in such a case. Therefore, if the payment of Rs. 2,00,000/- is ordered to be paid to the parents of the deceased Dhruba Jyoti, it would meet the ends of justice.

17. For the foregoing reasons, it is ordered and directed that the case shall be referred immediately to the Central Bureau of Investigation for a thorough and detailed inquiry by it. A copy of the report shall be submitted to this Court for follow up action, if need to be. It is further directed that the Union of India shall pay a sum of Rs. 2,00,000/- (Rupees two lakhs) to the parents of the deceased.

18. With the above observations and direction the writ petition is disposed of.

19. M. SARMA, J. : -I agree.

Order Accordingly