Gauhati High Court
Smt. Zukheli Sema vs Union Of India (Uoi) And Ors. on 22 July, 1998
Equivalent citations: 1999CRILJ49
ORDER
1. This Habeas Corpus petition relates to the missing of one Shri Viyikhu Seniu, aged about 70 years from the custody of the 4th respondent, Commanding Officer 5/3 Gorkha Rifles, Rangapahar Army Cantonment, Dimapur Nagaland, C/o. 99. A.P.O. on 11-4 1994. It is alleged that on 11-4-1994, the Contingent of 5/3 Gorkha Rifles under the leadership of one Major Kartar Singh Sirohi conducted search in and around the house of Viyikhu Sema at about 7 a.m. and he has been placed under arrest at gun point and taken away to the Army Cantonment at Rangapahai, and since than the husband of the petitioner was not traceable. This petition was espoused by his wife. Petitioner also reported the matter to the Officer-in-charge of Police Station (West) Dimapur on 16th April, 1994, without any result.
2. An application dated 22-4-1994 addressed to the Addl. Deputy Commissioner, Dimapur by the Head Gaonbura of Zilovi village stating that Viyikhu Sema has been arrested by the Jawans of the 4th respondent led by one Major after searching his house thoroughly on 11 -4-1994 at about 7 a.m., and since then, he could not be traced despite of vigorous search. Hence the present petition praying inter alia to produce the detenu before this Court.
3. After showing cause, respondent No. 4 filed two counters. One counter was filed on 6-6-1994 and the respondent No. 4 in paragraph 6 of the counter denied that person named Shri Viyikhu was arrested by 5/3 Gorkha Rifles nor the said individual is in the custody of 5/3 Gorkha Rifles. Subsequently, another counter was filed on 15-6-j 994 and it is stated in paragraph 4 of the counter that the detenu Shri Viyikhu Sema accompanied the patrol party to Rangapahar. The respondent however, denied that the detenu has been arrested at gunpoint nor was he directed to accompany patrol party to the post at Rangapahar. It is further averred in paragraph 4 of the counter that, during the casual search of the detenu's house, some incriminating documents were recovered from the house of the detenu, but in view of his old age, he was requested to come to the post the next day, i.e. on 12-4-1994, however, as requested by the detenu, he was allowed to accompany the petrol party to the post that day itself i.e. 11-4-1994, and after reaching the post, the patrol leader did not ask him any question, instead with due respect offered him lunch and after lunch the old man proceeded for his work to town on the same day i.e. 11-4-1994.
4. After hearing the counsel of both sides, this Court on 11 -6-1996 directed a thorough probe by C.B.I, in terms of the following order in para 6 of the judgment:-
After hearing counsel of both sides, and after perusal of the documents on record, one thing is cleared in our minds that Shri Viyikhu Sema, as admitted by the 4th respondent was seen last with the 4th respondent on 11-4-1994. Thereafter, the missing of Shri Viyikhu Sema in a mysterious circumstances calls for a thorough probe by an agency like C.B.I.
5. The C.B.I, was directed to submit its report within 6(six) months from the date of the receipt of the order.
6. Pursuant to the aforesaid direction. Superintendent of Police CBI : SPE : SCB : Cal. submitted its report on 12-1 -98 after completing the investigation holding that, no prima facie case is established against the 4th respondent for mysterious disappearance of the detenu Shri Viyikhu Sema.
6-A. The findings of the C.B.I, with regard to the arrest and release of Viyikhu Sema has been recorded i n paras 6 and 7 of its Report. Paragraphs 6 of the Report is reproduced below :-
6. It was learnt from the Army personnel that on 11-4-1994, four Army personnel led by Major Sirohi of 5/3 G.R. along with Gaon Bura and village Secretary of Zutovi and Pimla visited Viyikhu Sema's house (who was brother of S.S. Captain Sikuto Sema). Major Sirohi talked to Viyikhu Sema and made a casual search of his house where he found certain documents/photograph etc. Viyikhu Sema allegedly had expressed ignorance about the details of those documents. Seeing his age (around 70 years) and condition Mr. Sirohi did not intend to take him in custody, though he was having suspicion that Viyikhu Sema was a hard core NSCN supporter/sympathiser if not an active member. However, he requested Viyikhu Sema to visit Rangapahar Reserve Forest post next day, that is, on 12-4-1994. Thereafter, Viyikhu Sema approached Sri Sirohi and expressed his desire to come along with them by getting a lift since he also had some work in town, for which Major Sirohi agreed and Mr. Sema accompanied the Army personnel. But on other hand, it was learnt from the statement from the Gaon Bura. Village Secretary and some other villagers that Viyikhu Sema was picked up from his house by the said Army...personnel on gun-point. In order to come to a logical conclusion on this point we scrutinised the documents which were recovered from Viyikhu Senia's house by Army personnel and examined the local persons. Those document;; indicate that there is a good league between the NSCN group and the villagers of Zutovi village and the village itself is insurgent affected with sympathisers of NSCN. It is the understanding of some witnesses that Viyikhu Sema after being discovered as a close relative of NSCN activist might have gone underground and his wife might have filed a petition in order to have monetary benefit etc. on the instigation of the NSCN. Considering this fact it can be stated that though there are some persons who are speaking as, eye-witnesses of this incident stating that Viyikjiu Sema was picked up by Army personal on gun-point, they cannot be believed in entirely as being true and, unprejudiced. During CBI investigation no further evidence has come up to prove this version of forceful abduction by the Army.
(Emphasis supplied)
7. A reading of the aforesaid paragraph would reveal that Investigating Officer totally brushed aside the statements of Gaon Bura, Village Secretary and other elders of the village that the detenu Viyikhu Sema was picked up from his house by the Army personnel at gun-point on 11 -4-1994 without assigning any reason and without any justification. In a situation surcharged, with the insurgency activist obtaining in this part of the country, it would be highly unbelievable that the detenu who was the brother of S.S. Captain Sikuto so many incriminating materials in his house, the patrol leader would pat the detenu on his back and would friendly ask him to come to the post the next day on 12-4-1994. It is also highly unbelievable that the Army in operational area would gladly agree to carry the detenu in their vehicle on his own request. Because of the security reasons Army personnel in operational area never allow the civilians to travel in their vehicle unless they are arrested/apprehended for interrogation.
8. The Headman of the village, village Secretary and other villagers had stated before the Investigating Officer what they have seen. The 4th respondent also stated that they were accompanied by the Gaon Bura and other village elders at the time of conducting search in the house of the detenu. The statement of the Headman and other village elders that they have seen the detenu being arrested at gun-point is a statement of facts, and therefore, such statements cannot be easily brushed aside without assigning any compelling reasons. So also the finding of the Investigating Officer that the detenu Shri Viyikhu Sema might have gone under-ground have no basis and cannot be accepted. It is unimaginable that a man aged about 70 years would venture underground to lead a hard and difficult life. At the same time, if the detenu was treated with sympathy and friendly as claimed by the 4th respondent, there is no reason ostensible or otherwise for the detenu to have chosen to go underground and lead a hard life at this advancing age. Therefore, the findings of the Investigating Officer recorded in paragraph 6 of its Report that the detenu Viyikhu Sema being a close relative of NSCN activist might have gone underground are perversed and cannot be accepted.
9. From the facts and circumstances as discussed above, we hold that detenu Shri Viyikhu Sema was arrested by the personnel of the 4th respondent on 11-4-94 at gun-point and took him to their camp in their own vehicle. The statement that the detenu Shri Viyikhu Sema accompanied the patrol party voluntarily cannot be accepted.
10. Regarding the release and whereabout of the detenu Shri Viyikhu Sema has been recorded in paragraph 7 of its Report by the Investigating Officer. Paragraph 7 of the Report is reproduced below :-
7. During investigation we visited the Rangapahar Reserve Forest Army Camp, Dimapur, Nagaland and took photographs of that place. It was found that the said Army Camp is located in a no-man area and as such we did not get any independent witness to verify this point. However, attempts were made to verify if by examining the level) of 5/3. G.R. but they could not throw any light on it. It was only learnt from their statements that on 11-4-94 at about 1-30 p.m. Viyikhu Sema came to their camp alongwith Major Sirohi of B' Coy. 5/3 G.R. where he took lunch. The statement of Langarkhana In-charge of said Army camp also corroborate this version. The Company Havildar Major and Subedar L.B. Ale are the persons who last saw Shri Viyikhu Sema at their camp. They were examined and they stated that after taking lunch Viyikhu Sema left the Army camp for Dimapur town. They, also stated the route/direction of Shri Sema i.e. the way he had gone to Dimapur. In course of investigation, we also visited the entire route and asked the local people by showing Shri Sema's picture as to whether they had seen that person during the relevant period or not, but no such positive information could be gathered from their side. So no evidence came forth to establish that Viyukhu Sema was kept in a jungle by his captors.
(Emphasis supplied)
11. From the Report as reproduced above, it would clearly appear that the Army personnel of the 4th respondent admitted that the detenu was last seen at their camp on 11-4-94. Although the personnel of the 4th respondent had stated that the detenu had left their camp on 11-4-94 after lunch, nobody had seen the detenu thereafter. Also there is no evidence to show that the detenu has been released on 11 -4-94. If that is so, the personnel of the 4th respondent are squarely responsible with regard to the mysterious disappearance of the detenu Viyikhu Sema. The detenu as already said was last seen in the camp of the 4th respondent on 11 -4-1994, and therefore, the burden of proof lies on the 4th respondent as to whereabout of the detenu after 11 -4-94.
12. Also from the report of the Investigating Officer in paragraph 19 of its Report clearly shows that the detenu was interrogated at the Army camp of the 4th respondent. The relevant portion of the report is reproduced below :-
The Army personnel admitted that Viyikhu Sema voluntarily came to their Army Post on 11 -4-94 and stated that Viyikhu left the Army Camp on his own on the same day. This point could not be confirmed in course of, investigation as the Army camp is situated in a no-man's area and therefore we could not get any other witness except Army personnel who saw Viyikhu Sema leaving the said camp. However, considering the old age of the victim and his willingness to accompany the Army personnel to their Camp suggests that the Army personnel could not have caused him any harm and they had no reason, to do so. No evidence regarding his confinement in Army Camp, his torture or his death in army custody could be collected during the investigation. No trace of Viyikhu Sema's whereabouts also could be found in spite of the best efforts. It is most likely that come to the Army Camp and after some interrogation he was let off and thereafter underground being the close relative of a wanted NSCN leader.
(Emphasis supplied)
13. There is yet another reason as to why the statement of the 4th respondent that the detenu was released on 11 -4-94 and left the camp on that day cannot be accepted. Section 5 of the Armed Forces (Special Powers) Act, 1958, reads ''Any person arrested and taken into custody under this Act shall be made over to the Officer-in-charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.
14. Having seized so many incriminating materials connecting the detenu with the insurgency, the Army authority would not have let off the detenu without interrogation and without a report lodge before the Officer-in -charge of the nearest Police station. When Army authority handed over the arrested person to the Officer-in-charge of the nearest Police station, there is always a certificate effecting handing over and taking over of the arrested person. We therefore, hold that there is no evidence before us that the detenu Shri Viyijhu Sema has left the Army camp on 11 -4-1994 or released on 1 ! -4-94 as stated by the 4th respondent.
15. Now remains to be seen is as to what relief the petitioner is entitled to. Missing of precious and valuable life from the custody of the 4th respondent is definitely an act of infringement of fundamental rights. Although precious life cannot be measured in terms of rupees, in the light of various judgments of the Apex Court which we shall be referring hereinafter, the petitioner is at least entitled adequate compensation at this stage.
16. In Rudul Sah v. State of Bihar respondents AIR 1983 SC 1086 : 1983 Cri LJ 1644 there the petitioner was acquitted by the Court of Session Muzaffarpur Bihar on June 3rd, 1968 in criminal trial, but he was released from Jail only on October 16,1982 after more than 14 years after he was acquitted. He has filed Habeas Corpus petition asking his release on the ground that his detention in the Jail is unlawful. He also prayed for compensation for the illegal incarceration. While disposing of the petition; the Apex Court pointed out as under:--(at page 1647 of Cri LJ) :----
Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the powers of the Supreme Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. Respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers.
17. In Smt. Nilabati Behera alias Lalita Behera v. State of Orissa respondents AIR 1993 SC I960 : 1993 Cri LJ 2899, there the petitioner's son aged about 22 years died in Police custody, and the petitioner filed a writ petition under Article 32 of the Constitution inter alia claiming of compensation on the death of the petitioner's son. It was pointed out by the Apex Court as under (at page 2908 of Cri LJ):..."A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.
18. In D.K. Basu v. State of West Bengal (1997) 1 SCC 416 : 1997 Cri LJ 743, it has been held by the Apex Court that compensation can be grunted under the public law by the Supreme Court and the high Courts in addition to private law remedy for lonuous action and punishment to wrong doers under criminal law for established breach of fundamental rights.
19. In the facts and circumstances as slated above, and in view of the law laid down by the Apex Court, we would think that the petitioner is entitled adequate compensation. Accordingly, we direct the respondents to pay a sum of Rupees 2,00,000/- (Rupees two lakhs) as compensation to the petitioner in the nature of pelliative. The Union of India (respondent No. 1) is vicariously liable for any acts or commission of its instrumentalities even if they acted beyond their authority. Union of India shall deposit the compensation amount of Rs. 2,00,000/- (Rupees two lakhs) before this Registry within a period of three months from the date of receipt of this order. On being deposited, this Registry shall pay the compensation amount to the petitioner after proper identification.
20. Before parting with the record, we record our displeasure at the manner in which the present investigation has been conducted by he Superintendent of Police, CBI: SPE: SCB : Cal. Agency like CBI, being primary investigation agency, it is expected to investigate into any matter entrusted to them in a fair and impartial manner so as to build public confidence in the agency. In the instant case, we are of the view that the investigation is completely one sided.
21. Registry shall send a copy of this judgment along with the report submitted by the Superintendent of Police CBI : SPE : SCB : Cal. to the Director of CBI, New Delhi. We further direct the CBI to make further effort to trace out the missing person Shri Viyikhu Sema.
With the aforestated observations and directions, this Habeas Corpus petition is disposed.