Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 36693670/2015
Union of India and others ..Appellants
Versus
Junu Gayary ..Respondent
J U D G M E N T
M.R. SHAH, J.
Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 9.6.2006 passed by the Gauhati High Court in Writ
Petition(C) No. 9709/2003, by which the High Court has directed for
CBI investigation with respect to the death of one Someswar Gayari
alias Sombrom, as also, dismissal of review petition vide order dated
5.12.2008, the original respondents – Union of India and others have
preferred the present appeals, by way of special leave petitions.
2. That the respondent herein – Smt. Junu Gayary, a young widow
of deceased Someswar Gayari alias Sombrom filed a writ petition
before the High Court under Article 226 of the Constitution of India for
Signature Not Verified
Digitally signed by
JAYANT KUMAR ARORA
Date: 2019.11.20
10:16:48 IST
Reason:
an appropriate writ, directions or order against the appellants herein –
the original respondents directing them to institute a judicial enquiry
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into the cause and the persons responsible for the death of her
husband – Someswar Gayari alias Sombrom. Further directions were
also sought for compensation of rupees six lakhs to her and her family
for their survival.
2.1 It was the case on behalf of the original writ petitioner that when
her deceased husband was at his relative’s house at village Koilamaila
under Bijni Police Station, he was taken away to Bhabanipur Army
th
Camp by the personnel of 8 Madras Military Regiment at about 3:00
a.m. on 26.08.2003 and thereafter his whereabouts were not known
until she was informed by the Officer Incharge of Amguri Police
Outpost informing her that her husband had died on 30.08.2003 in an
encounter with army near Bhabanhipurgaon.
2.2 The writ petition was opposed by the appellants herein – the
original respondents. The stand taken by the original respondents in
their affidavit was that no civilian as such was brought to Bhabanipur
Army Camp as claimed by the original writ petitioner. They took the
specific stand that the husband of the writ petitioner was killed in an
encounter, which took place at about 3:50 hrs on 30.08.2003.
2.3 That vide order dated 4.4.2005, the High Court directed the
learned District & Sessions Judge, Bongaigaon to hold an enquiry with
regard to the circumstances leading to the disappearance and death of
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the original writ petitioner’s husband, Someswar Gayari. The High
Court directed the learned District & Sessions Judge to submit the
report. The High Court also directed the learned District & Sessions
Judge to issue appropriate notice to all the parties and provide them
an opportunity of hearing in the matter. Thereafter, holding necessary
enquiry and giving opportunity to all concerned and after examining
the concerned witnesses and on appreciation of the entire material
available on record, the learned District & Sessions Judge submitted
its report holding that the deceased Someswar Gayari was picked up
from the house of Dilbahadur Chetry by army personnel in the night
that followed the day of 26.08.2003. The learned District & Sessions
Judge also opined that no Assam Police Personnel were involved in the
act of picking up of the deceased from the house of Dilbahadur
Chetry. The learned District & Sessions Judge further observed that
whereabouts of the deceased was not known to the original writ
petitioner till she was informed by the Bijni Police Station that the
deceased died in an encounter with army. Upon appreciation of both
direct and circumstantial evidence, the learned District & Sessions
Judge came to the conclusion that the deceased was in the custody of
the Indian Army since the time of his picking up by the army till the
time of production of the dead body and handing over the same to the
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police in the police station. The learned District & Sessions Judge
specifically observed that the death of the deceased was in the hands
of army and an attempt, however, has been made by the army to show
the death of the deceased as if in the course of encounter between the
army and the deceased.
2.4 That thereafter the High Court gave the opportunity to the
appellants herein to file their objections, if any, to the Enquiry Report
submitted by the learned District & Sessions Judge. However, no
such objections were preferred by the appellants herein – the original
respondents. That thereafter after considering the submissions made
by the learned counsel appearing on behalf of the appellants herein
the original respondents on the enquiry report submitted by the
learned District & Sessions Judge, the High Court came to the
conclusion that the deceased – Someswar Gayari was taken into
custody by the army for whatever purposes and probably may have
been killed while in the custody. Therefore, the High Court by the
impugned judgment and order has directed that in view of the specific
and categorical finding recorded by the learned District & Sessions
Judge, the matter requires for further investigation in accordance with
law for which purpose a criminal case shall be registered for the
offence punishable under Section 302 of the IPC. The High Court has
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directed the Central Bureau of Investigation to undertake the
investigation so that the real culprits do not get away unpunished.
2.5 Having found that there is a violation of the Article 21 of the
Constitution of India and that the original writ petitioner is a young
widow required to look after her three minor school going children and
that the deceased was the only bread earner of the family, the High
Court has further directed original respondent nos. 1 and 3 – Union of
th
India and Commandant, 8 Madras Regiment to pay Rupees three
lakhs to the original writ petitioner by way of compensation for the
death of the deceased Someswar Gayari.
3. Feeling aggrieved and dissatisfied with the impugned judgment(s)
and order(s) passed by the High Court, the appellants herein – original
respondents – Union of India and others have preferred the present
appeals.
4. We have heard Shri R. Balasubramanian, learned Senior
Advocate appearing on behalf of the appellants. Service of notice is
complete on the respondent as per the service report received from the
concerned District Court but no one has entered appearance on behalf
of the respondent.
4.1 Having heard the learned Senior Advocate appearing on behalf of
the appellants and considering the impugned judgment and order
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passed by the High Court, as such, we see no reason to interfere with
the impugned judgment and order. The High Court has rightly
directed to register a criminal case for the offence punishable under
Section 302 of the IPC with respect to the death of Someswar Gayari
alias Sombrom and looking to the gravity of the offence committed the
High Court has rightly directed the CBI to undertake the investigation.
For the aforesaid, the High Court has taken into consideration the
report submitted by the learned District & Sessions Judge who
categorically recorded that the deceased Someswar Gayari alias
Sombrom was picked up from the house of Dilbahadur Chetry by
army personnel in the night that followed the day of 26.08.2003; that
the deceased was in the custody of the Indian Army since the time of
his picking up by the army till the time of production of the dead body
and handing over the same to the police in the police station; that the
death of the deceased was in the hands of army and an attempt,
however, has been made by the army to show the death of the
deceased as if in the course of encounter between the army and the
deceased. The aforesaid findings recorded by the learned District &
Sessions Judge were on considering the material on record and after
examining some witnesses and after giving an opportunity even to the
appellants also. Under the circumstances, the impugned judgments
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and orders passed by the High Court directing to register a criminal
case for the offence punishable under Section 302 of the IPC and
directing the CBI to undertake the investigation do not warrant any
interference.
5. Now so far as awarding rupees three lakhs by way of
compensation to the original writ petitioner is concerned, it is required
to be noted that there is a specific finding recorded by the learned
District & Sessions Judge and even by the High Court that there is a
violation of Article 21 of the Constitution of India. The persons who are
responsible for the death of Someswar Gayari shall be ultimately
investigated by the CBI. However, the fact remains that Someswar
Gayari has died and there is a prima facie finding against the
appellants. In fact, the High Court has awarded rupees three lakhs
only which, according to us, is on a lower side. According to us, if
rupees five lakhs is awarded towards compensation, at this stage, the
same shall be in the interest of justice. Therefore, in exercise of
powers under Article 142 of the Constitution of India and to do
substantial justice to the deceased and his family members, we
enhance the amount of compensation to rupees five lakhs, which shall
be deposited by the appellants with the Registrar General of the
Gauhati High Court within a period of four weeks from today, which
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shall be paid to the original writ petitioner on her being properly
identified. The assessment of compensation of ours shall not preclude
the original writ petitioner to avail such remedy as is available to her
in law whatsoever which may have to be decided on its own merits.
6. In view of the above and for the reasons stated above, the present
appeals challenging the impugned judgments and orders passed by
the High Court directing to register a criminal case and directing the
CBI to undertake the investigation deserve to be dismissed and are
accordingly dismissed.
7. Since the matter is very old, the CBI is directed to undertake and
conclude the investigation at the earliest so that the real culprits are
punished. It goes without saying and as held by this Court in the case
of General Officer Commanding v. CBI and another, reported in (2012)6
SCC 228, that after the charge sheet is filed by the investigating
agency and not after the cognizance is taken by the court, the
competent authority in the army shall take a decision within a period
of eight weeks from the date of filing of the charge sheet as to whether
the trial would be by the criminal court or by a court martial and
communicate the same to the Chief Judicial Magistrate concerned
immediately thereafter. In case, the option is made to try the case by
a court martial, the said proceedings would commence immediately
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and would be concluded in accordance with law expeditiously. It is
further observed and directed that in case the option is made that the
accused will be tried by the criminal court the CBI shall make an
application to the Central Government for grant of sanction within a
period of four weeks from the receipt of such option and in case such
an application is filed, the Central Government shall take a final
decision on the said application within a period of eight weeks from
the date of such an application. In case, sanction is granted by the
Central Government, the criminal court shall proceed with the trial
and conclude the same expeditiously.
8. With the aforesaid observations and directions, the present
appeals are disposed of.
…………………………………J.
[M.R. SHAH]
NEW DELHI; …………………………………J.
JULY 26, 2019. [A.S. BOPANNA]