Gauhati High Court
Budheswar Bora vs State Of Assam And Ors. on 29 August, 2006
Equivalent citations: (2007)1GLR453
Author: Chief Justice
Bench: Chief Justice
JUDGMENT B. Sudershan Reddy, C.J.
1. The petitioner invokes the extraordinary jurisdiction of this court under Article 226 of the Constitution of India with a prayer to issue writ in the nature of habeas corpus directing the respondents to produce the detenue Smti. Moni Bora aged about 30 years, wife of Danda Bora resident of Village Deopanigaon, P/S Bokajan, District Karbi Anglong before this court and release her from detention and/or to produce the detenue before the Magistrate without any delay and to pay adequate compensation for illegal detention and to institute an enquiry by an independent investigating agency into the incident of causing disappearance of the said Smti. Moni Bora.
Factual Matrix:
2. The allegations levelled in the writ petition are that on 20.4.2005 at about 8 A.M. a police party led by Additional Superintendent of Police Mukul Saikia while carrying out an operation in the forest of Kalapahar under Bokajan Police Station in the Karbi Anglong District picked up Smti. Moni Bora in an injured condition in presence of the local villagers and since then she has remained untraced. This incident has been widely reported in various newspapers. It is alleged that even by the time of filing this writ petition the respondents having taken the said Smti. Moni Bora into custody have not produced her before any Magistrate which they are duty bound in law to do so.
3. It is alleged that after the arrest of the detenue she has been taken to some undisclosed destination. The efforts made by the petitioner to know the whereabouts of the said Smti. Moni Bora did not yield any result. The authorities did not render any assistance or cooperation in the matter.
4. The petitioner apprehends the respondents having taken said Smti. Moni Bora into custody may have subjected her to torture in the police station which is the usual practice adopted by the police in the State of Assam in the name of anti-insurgency operations.
5. It is contended that the detention of Smti. Moni Bora by the police and her non-production before the Magistrate, as is required in law, is clear violation of Articles 14, 21 and 22 of the Constitution of India.
6. This court vide its order dated 23.12.2005 having directed notice to be issued to the respondents further directed the respondents to produce the alleged detenue Smti. Moni Bora before this court on 2.1.2006. On 6.1.2006 the officer present pursuant to the directions of this court submitted that in spite of the best efforts the police could not locate the whereabouts of the alleged detenue Smti. Moni Bora @ Joya Bora and further submitted that she was neither taken into custody nor arrested by any of the respondents. This court having recorded the statements so made directed the respondents to file proper affidavit.
Version of the police:
7. The Superintendent of Police, Karbi Anglong district, Assam filed a detailed affidavit-in-opposition, inter alia, stating that an operation was carried out on 20.4.2005 as alleged by the petitioner but denied that Smti. Moni Bora was picked up by the police party and taken away in an injured condition. It is specifically stated that said Smti. Moni Bora was not apprehended/picked up by the police in the aforesaid operation, therefore, the question of producing her before any Magistrate or in this court as such does not arise. The usual defence.
8. The Superintendent of Police in his affidavit-in-opposition further stated that on 20.4.2005 following a specific information that a group of ULFA extremists numbering about seven including one 'woman cadre' were camping at the village Raisin Rengma Naga Basti about 50 Kms. North West of Borpathar Police Out Post under Bokajan Police Station, a team of police led by Circle Inspector, Bokajan along with commandos and battalion personnel were deputed to conduct 'raid and search operation' in the locality. The police party spotted the camp inside the deep jungle at about 8 Kms. away from the Police Out Post. That, as the police party advanced towards the camp to assess the situation, the police party was subjected to sudden indiscriminate firing by "the ULFA militants". The police party retaliated and an encounter took place which lasted for about half an hour. After the cessation of the fire the police party having cordoned off the area conducted thorough search in the encounter zone area covering the inner and outer periphery of the camp. During the search, arms, ammunitions and incriminating documents were recovered while "the extremists managed to escape".
9. It is further stated that "trail of blood stains were also noticed which indicated that the fleeing extremists might have sustained bullet injuries but they could not be tracked down".
10. It is further stated that "ULFA camp was found made of thatches and bamboos and was in two parts. It was found that the woman cadre, i.e., Smt. Jdya Bora w/o Danda Bora used to live separately in the partitioned portion". The information was gathered that the "hardcore ULFA cadres Danda Bora with his wife Smti Joya Bora (ULFA cadre) and other 4/5 ULFA cadres were residing in that camp". It is specifically stated that none was arrested/picked up by the police party during the raid and search operation on 20.4.2005.
11. This court having taken note of the averments made in the affidavit-in-opposition filed by the Superintendent of Police vide order dated 1.2.2006 directed the Addl. Superintendent of Police Mukul Saikia and as well as Circle Inspector of Bokaj an Police Station, who is alleged to have led the team, to file their affidavits in the writ petition.
12. The Superintendent of Police, Karbi Anglong, however, filed an additional affidavit, inter alia, stating that the entire operation in question was planned by the then Superintendent of Police, Karbi Anglong one Pankaj Sarma and the actual search operation in which the encounter took place at Kalapahar was led by the then Circle Inspector Gopal Boro. The Addl. Superintendent of Police, Mukul Saikia was far away from the place of encounter and he played only a supervisory role in the said operation but was not present at the place of encounter.
13. The Addl. Superintendent of Police, Mukul Saikia in his affidavit stated that he had only played a supervisory role from the Out Post as well as the ambush locations in Koilamati and Jangpha area but not at the place of encounter.
14. The then Circle Inspector of Police in his affidavit denied the allegation that Smti. Moni Bora was picked up by the police party and taken away in injured condition even in presence of the local villagers.
15. During the course of hearing of this writ petition some third party affidavits were filed in which it is, inter alia, stated that the said Smti. Moni Bora was picked up by the police after the operation in injured condition.
16. This court having taken the affidavits and counter affidavits filed in the matter and having regard to the nature of controversy opined that a detailed enquiry is required to be conducted into the matter to find out whether said Smti. Moni Bora has been picked by the Assam Police during the operation conducted on 20.4.2005 and accordingly directed the learned District Judge, Golaghat to conduct an appropriate enquiry and submit his report to this court within a period of three months. Parties were given opportunity to adduce evidence in support of their respective stand taken in the matter.
Report of the District Judge:
17. The learned District Judge, Golaghat made a detailed enquiry after providing opportunity of being heard to both the parties. The parties were represented through their advocates. During the course of enquiry as many as 14 witnesses were examined.
18. The learned District Judge upon appreciation of the evidences concluded that "Smti. Moni Bora was picked up by the Assam Police from the forests of Kalapahar hill under Bokajan Police Station in the district of Karbi Anglong during the operation conducted on 20.4.2005 and she was never produced before any Magistrate and from the facts available on record, I do not see any hope of the production of said Moni Borah by the Police before any authority in the near future".
19. The learned District Judge mainly relied upon the statement of PW 2 Sepyanga Rangma, who is the Gaonburah (village Headman) appointed by the public. On the day of the operation he was in the village. That, after about an our of stopping of firing he had seen "the police party is coming down from the hills in a line and amongst them I noticed one civilian who was not in police uniform.... I tried to recognize that civilian and I could recognize that the said civilian is nobody else than Smti. Moni Bora. She was wearing full pant and one sporting shirt. I could recognize her since I used to see her earlier coming and going to the hill and sometime used to come to my house to take water.... I had seen blood stain on {he chest of Smti. Moni Bora. On returning from the hill the said police party along with Moni Bora entered into the jungle and thereafter they were not visible. I cannot say where they had gone." The respondents in their cross-examination of the said witness did not even raise a whisper about this part of the statement made by him before the learned District Judge.
20. The learned District Judge after an elaborate consideration of the matter observed:
From my findings and discussion as above, it is crystal clear that Moni Borah was in the camp at the Kalapahar hill and the police party has conducted the operation there on 20.4.2005 at about 8 AM to apprehend the ULFA extremists and to demolish the camp. It is also admitted by the Assam Police that Moni Borah, wife of Shri Danda Borah, was in the camp at the time of the operation. The operation at the top of the hill was conducted by the Police party on being led by Shri Gopal Chandra Boro, PW-14. PW-14 in his report Ex-12, submitted before the learned Superintendent of Police, Karbi Anglong, Diphu on 26.4.2005 has categorically stated that he found some blood stain marks in the camps. As such it is transpired that the extremists including the women cadres who were there in the camp have sustained bullet injury on their persons. But the police party claimed that they did not find any extremist in the camp when they reached near the camp after the silence prevailed on stopping of the firing. From the facts available on record, it is seen that the only Moni Borah amongst the women cadre was there in the camp and the others were male members at the time of the operation and the male members have fled away. But Moni Borah being a woman could not be able to flee away from the camp. Moreover, the Gaonburah, PW-2 has seen one civilian with the police party while coming down from the hill after the operation was over whom he identified to be Moni Borah having blood stain on her chest. He further clarified that he could identify Moni Borah as she used to visit his house now and then while coming down and going to the hill and also entered into his house to take water and disclosed her identity before him that she along with her husband is living on the hill. It is admitted by the Assam Police that the said Moni Borah is the wife of Shri Danda Borah, the ULFA extremist. But the Assam Police has failed to clarify as to what happened to Moni Borah. It is an admitted fact that the Assam Police did not produce her before any Magistrate after the operation. Md. Abdul Gafur, PW-13, Incharge of Barpathar Out Post, had lodged the FIR, Ex-8 before the Officer Incharge, Bokajan Police Station and the Police has registered the case being Bokajan P.S. Case No. 75/2005 and it is being investigated by Shri Nayanmoni Singha, S.I. of Bokajan P.S., PW-8. PW-8 in his evidence has categorically stated that he did not visit the place of occurrence and he did not also prepare any sketch map of the place of occurrence from his side and the sketch map, Ex-11 has been prepared by Md. Abdul Gafur, PW-13. The action of Nayanmoni Singh, PW-8 has created a doubt that Moni Borah Might have succumbed to the injury sustained in the operation and the police party led by Shri Gopal Chandra Boro, PW-14 might have disposed of the dead body amidst the deep jungles and Shri Nayanmoni Singh, PW-8, the Investigating Officer of Bokajan PS Case No. 75/2005 did not visit the piace of occurrence at any time after the case was registered on the strength of the F.I.R., Ex-8, lodged by Md. Abdul Gafur, PW-13 was entrusted to him. PW-2 has seen Moni Borah with the Police party while coming down from the hill and he had noticed blood stain on the chest of Moni Borah. PW-14 has found the blood stain marks in the camp.
Under the facts and circumstances discussed above, I am of the opinion that Smti. Moni Borah, wife of Shri Danda Borah, was picked up by the Assam Police from the forests of Kalapahar hill under Bokajan Police Station in the district of Karbi Anglong during the operation conducted on 20.4.2005 and she was never produced before any Magistrate and from the facts available on record, I do not see any hope of the production of said Moni Borah by the Police before any authority in the near future.
No objection has been filed as against the report submitted by the District Judge.
Analysis of the report:
21. Are there any reason to reject the report submitted by the learned District Judge ? The evidence available on record clearly supports the conclusions and the findings drawn by the learned District Judge. The eyewitnesses to the incident were not even subjected to any cross-examination by the respondents. Their testimony before the learned District Judge remain unimpeached. The learned Government Advocate, however, made an attempt to submit that the conclusions and findings drawn by the learned District Judge are based on surmises and conjectures and cannot be accepted. We find no merit in the submission made by the learned Government Advocate for the simple reason that material witnesses including the Gaonburah (village Headman) were not even subjected to any cross-examination with regard to the material and relevant statement made by them that they have seen the police party and Smti. Moni Bora coming down from the hills in the forest after the operation was over. The said Smti. Moni Bora was found in an injured condition. Even according to police and the records maintained by them trail of blood stains were noticed in the zone of encounter.
22. Be that as it may, this court in a proceeding under Article 226 of the Constitution of India confines itself to adjudicate issue relating to violation of guaranteed fundamental right and confines itself to enquiry if there is any violation of right to life or personal liberty at the hands of the police. The enquiry is not for the purposes of adjudicating upon guilt of any officer with a view to record any conviction and award of sentence. The scope of enquiry is to decide whether the guaranteed fundamental right of the person under Article 21 has been violated and whether the State is liable to pay compensation for such infringement.
23. In Khatri and Ors. v. State of Bihar and Ors. . The Apex Court observed:
The nature and object of the inquiry is altogether different from that in a criminal case and any decision arrived at in the writ petition on this issue cannot have any relevance much less any binding effect in any criminal proceeding which may be taken against a particular police officer. A situation of this kind sometimes arises when a claim for compensation for accident caused by negligent driving of a motor vehicle is made in a civil court or tribunal and in such a proceeding, it has to be determined by the court, for the purpose of awarding compensation to the claimant, whether the driver of the motor vehicle was negligent in driving, even though a criminal case for rash and negligent driving may be pending against the driver. The pendency of a criminal proceeding cannot be urged as a bar against the court trying a civil proceeding or a writ petition where a similar issue is involved. The two are entirely distinct and separate proceedings and neither is a bar against the other. It may be that in a given case, if the investigation is still proceeding, the court may defer the inquiry before it until the investigation is completed or if the court considers it necessary in the interests of justice, it may postpone its inquiry even after the prosecution following upon the investigation is terminated, but that is the matter entirely for the exercise of the discretion of the court and there is no bar precluding the court from proceeding with the inquiry before it merely because the investigation or prosecution is pending.
24. On the basis of evidences and materials available on record, we conclude for the purposes of this proceeding under Article 226 of the Constitution of India, that on 20.4.2005 during the course of anti-insurgency operation the police picked up Smti. Moni Bora @ Joya Bora wife of Danda Bora in injured condition and thereafter did not produce her before any Magistrate, as is required in law. Her whereabouts are not known. The only presumption that could be validly raised at this stage is that she may have been liquidated while in custody.
Enforcement of the constitutional right and award of compensation in public law:
25. It is well settled and needs no restatement at our hands that a public law remedy proceeding cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through ordinary process of courts. But it is equally well settled that this court in exercise of its jurisdiction under Article 226 of the Constitution of India may award compensation, based on strict liability for contravention of fundamental rights. That, 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 [See Nilabati Behera v. State of Orissa and Ors. .
26. In Rudul Sah v. State of Bihar and Anr. . The Supreme Court held Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this 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. If civilisation is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, 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.
(emphasis supplied)
27. It is needless to burden this short order of ours with various authoritative pronouncements of the Apex Court, holding that this court is not powerless to assist the persons, or their dependents, whose fundamental rights have been violated by the law enforcing agencies of the State. The power of the court to grant remedial relief always include the power to award compensation in appropriate cases. We are aware that this court while acting in a proceeding under Article 226 of the Constitution of India dealing in cases of infringement of guaranteed fundamental rights is required to act with certain amount of circumspection and self-restraint, lest proceedings are misused.
28. In Sube Singh v. State of Haryana and Ors. the Supreme Court after review of its earlier decisions observed:
In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, the courts may award compensation in a proceeding under Articles 32 or 226. However, before awarding compensation, the court will have to post to itself the following questions : (a) whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death or whether custodial torture is supported by medical report or visible marks or scars or disability. Where there is no evidence of custodial torture of a person except his own statement, and where such allegation is not supported by any medical report or other corroborative evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, the courts may not award compensation as a public law remedy under Article 32 or 226, but relegate the aggrieved party to the traditional remedies by way of appropriate civil/criminal action.
29. On the facts and in the circumstances we hold that the violation of Article 21 in the instant case is patent and incontrovertible and it is of a magnitude that shocks the conscience of the court. We accordingly award compensation of Rs. 2,00,000 (rupees two lakh) payable by the State to be recovered from the officers responsible for causing disappearance of Smti. Moni Bora @ Joya Bora for which purposes the State may hold an appropriate enquiry into the matter. The amount of compensation shall be deposited by the State with the Registrar General of this Court within a period of two months from today.
30. We are not, however, inclined to award the compensation amount to the petitioner who claims to be the brother of the husband of Smti Moni Bora, since even according to the averments made in the writ petition the parents of Smti. Moni Bora are still alive. The compensation amount may be paid to the parents of the victim Smti. Moni Bora @ Joya Bora, wife of Danda Bora on their being properly identified to the satisfaction of the Registrar General of this court.
31. The Director General of Police, Assam is directed to ensure that a case is registered within a period of one week from the date of receipt of a copy of this order and entrust the matter for investigation by CBI. He shall file compliance report within a period of three weeks from the date of such entrustment of investigation to the CBI.
32. The writ petition is accordingly allowed with cost quantified at Rs. 10,000 (Rupees ten thousand) only payable to the petitioner.