Gauhati High Court
Sanu Saikia vs Union Of India (Uoi) And Ors. on 21 June, 2002
Equivalent citations: 2003ACJ408, 2003CRILJ515, 2003 CRI. L. J. 515, (2003) 3 ALLINDCAS 268 (GAU), (2002) 3 GAU LR 298, 2003 (3) ALLINDCAS 268, (2003) ACJ 408
Author: P.P. Naolekar
Bench: P.P. Naolekar
JUDGMENT
1. This Habeas Corpus application under Article 226 of the Constitution of India, has been filed by Sri Sanu Saikia, stating inter alia that on 4.12.1999 his brother Prafulla Saikia @ Manash Pratim Mech was picked up by Army personnel from the house of one Sri Bipul Gogoi @ Petua Mahari. The said detenue was assaulted and he was whisked away in any Army vehicle and since then his whereabouts are not known. The detenue was also not produced before the Magistrate or handed over to police as required. Upon filing of the present petition, this Court vide order dated 22.12.1999 directed the respondents to produce the detenue before the nearest Police Station.
2. The respondent Union of India filed an affidavit denying the allegations. It is stated that Prafulla Saikia @ Manash was never picked up by the Army and as such there is no question of handing over the said person to the Police. In view of the above denial, this Court vide order dated 8.2.2001, directed the District & Sessions Judge to enquire into the matter and submit a report. An enquiry was held wherein the petitioner examined four witnesses and the respondent Union of India examined one witness. The learned District Judge came to the following decision :
"In view of my above discussions and findings, i.e., considering the totality of the evidence on record and facts and circumstances of the case as a whole, it is safely decided that Prafulla Saikia alias Manash Pratim Mech, aged about 26 years, son of Sri Gopal Saikia, villege No. 2, Charaibari, under Police Station Khowang, District Dibrugarh, Assam, "was taken up by army on 4.12.1999"."
A copy of the enquiry report along with the statement of witnesses was furnished to the learned counsel of both sides and the respondent Union of India filed another affidavit challenging the finding of the learned District & Sessions Judge. We have perused the report and the statement of the witnesses.
3. All the witnesses examined by the petitioner have supported the case of the petitioner. The evidence of Sri Bipul Gogoi @ Petua Mahari is material and relevant as because the detenue was picked up from his house. The witnesses have categorically stated that Prafulla was chased by the Army persons and thereafter he was arrested and taken away by the Army people. The witnesses however could not name the Army persons and it was also not possible on his part to identify individual Army persons. One Sri Rabin Chowdung, who was detained at Dibrugarh Jail, had seen the detenue at Naharkatia and the enquiry officer on appreciation of the oral evidence on record came to the aforementioned finding.
4. The learned counsel for the Union of India has submitted that the petitioner's brother could have been taken away by some extremists outfit by using the Army uniform, which are available in the market. The learned counsel for the petitioner submits that a similar plea was raised by the respondent Union of India in the case of Mrs. P. Lily v. Union of India 1997 3 GLT542, a Division Bench of this Court declined to accept the above submission in absence of any congent reasons.
5. Considering the submissions of both sides and on perusal of the enquiry report and the statement of witnesses, we accept the finding of the learned District & Sessions Judge, that Sri Prafulla Saikia alias Manash Pratim Mech was picked up by the Army personnel on 4.12.1999 as stated. Although a Rule was issued in the year 1999, till today, the respondents have failed to trace out Sri Prafulla Saikia alias Manash Pratim Mech and produce him.
6. The learned counsel for the petitioner therefore submits that some compensation should be paid to the petitioner, the unfortunate brother of the missing Prafulla Saikia and the search must continue till the missing person is traced.
7. In the case of D.K. Basu v. State of West Bengal (1997) 1 SCC 416 the Apex Court observed :-
"The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, and protection of which is guaranteed under the Constitution, is a claim based on strict liability and is addition to the claim available in private law for damages for tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that live under a legal system wherein their rights and interest shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of fundamental rights guaranteed under Articles 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.
The old doctrine of only relegating the aggrieved to the remedies available in Civil law limits the role of the Courts too much, as the protector and custodian of the indefeasible rights of the citizens. The Courts have the obligation to satisfy the social aspirations of the citizens because the courts and law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim -Civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family."
8. The Apex Court referred to observations in Nelabati Behera's case 1993 2 SCC 746 and other decision of the Apex Court and summed up as below :-
Thus to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriating punishment for the offence (irrespective of compensation) must be left to the Criminal Courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like Civil suit for damages which is lawfully available to the victim of the heirs of the deceased victim with respect to the same matter for the tortious act committed by the State. The quantum of compensation will of course, depend upon the peculiar facts of each case and no straight-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is thus, in addition to the traditional remedies and not derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a Civil suit."
9. In view of what has been stated above and notwithstanding the denial made by the respondent Union of India, it is held that the petitioner's brother Sri Prafulla Saikia alias Manash Mech was picked up by the Army on 4.12.1999 and since then he is untraceable and the respondent State as well as Union of India have failed to trace out the said Prafulla Saikia @ Manash Mech. As the State has failed to protect the life of a citizen, following the ratio of law laid down in D.K. Basu's case we hold that the petitioner is entitled to compensation and considering the age of the missing person and his economic condition etc. a sum of Rs. 1,25,000 (One lakh twenty five thousand) as compensation in this case would be suffice and substantially meet the ends of justice. Accordingly, the respondent Union of India is directed to pay a sum of Rs. 1,25,000 (One lakh twenty five thousand) to the petitioner within a period of eight (8) weeks from the date of this order. The amount shall be deposited before the Registry of this Court whereupon the petitioner will be able to withdraw the same on proper identification by her counsel.
10. It is needless to mention that the petitioner will be at liberty to seek other remedies by way of damages in any Civil/Other Competent Court as available and grant of such compensation will be in addition to this.