UNION OF INDIA AND OTHERS versus JUNU GAYARY on 26 July 2019

[2019] 9 S.C.R. 843

UNION OF INDIA AND OTHERS

v.

JUNU GAYARY

(Civil Appeal Nos. 3669-3670 of 2015)

JULY 26, 2019

[M. R. SHAH AND A. S. BOPANNA, JJ.]

Penal Code, 1860 – s.302 – Constitution of India – Art.21 –Respondent-writ petitioner filed a writ petition u/Art.21 before theHigh Court alleging that her husband was picked up by armypersonnel from the house of a relative and thereafter, she wasinformed by police that her husband died in an encounter with army– High Court directed District & Sessions Judge to hold an enquiry– District & Session Judge specifically observed that the death ofthe deceased was in the hands of army and an attempt was made byarmy to show the death of the deceased was in course of anencounter – Pursuant thereto, High Court directed registration ofcriminal case u/s.302 IPC and CBI to undertake investigation –Original respondent nos. 1 and 3 were further directed to pay Rs. 3lakhs to the original writ petitioner by way of compensation – Onappeal, held: High Court rightly directed to register a criminal casefor offence punishable u/s.302 IPC and CBI to undertake theinvestigation – The findings recorded by the District & SessionsJudge were after considering the material on record, examiningwitnesses and after giving an opportunity even to the appellants –There is a prima facie findings against the appellants – In thecircumstances, no reason to interfere with the Judgment of the HighCourt – So far as compensation awarded to writ petitioner isconcerned, as there is a specific finding by District & Sessions Judgeand High Court that there is a violation of Art.21 of the Constitution– Accordingly, compensation enhanced from Rs.3 lakhs to Rs.5lakhs.

Disposing of the appeals, the Court

Held: 1. The High Court has rightly directed to register acriminal case for the offence punishable under Section 302 of theIPC with respect to the death of victim and looking to the gravity

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Aof the offence committed the High Court has rightly directed theCBI to undertake the investigation. For the aforesaid, the HighCourt has taken into consideration the report submitted by theDistrict & Sessions Judge who categorically recorded that thedeceased was picked up from the house of ‘D’ by army personnelin the night that followed the day of 26.08.2003; that the deceasedBwas in the custody of the Indian Army since the time of his pickingup by the army till the time of production of the dead body andhanding over the same to the police in the police station; that thedeath of the deceased was in the hands of army and an attempt,however, has been made by the army to show the death of theCdeceased as if in the course of encounter between the army andthe deceased. The aforesaid findings recorded by the District &Sessions Judge were on considering the material on record andafter examining some witnesses and after giving an opportunityeven to the appellants also. Under the circumstances, theimpugned judgments and orders passed by the High CourtDdirecting to register a criminal case for the offence punishableunder Section 302 of the IPC and directing the CBI to undertakethe investigation do not warrant any interference. [Para 4.1] [848-G-H; 849-A-D]

2. Now so far as awarding rupees three lakhs by way ofEcompensation to the original writ petitioner is concerned, it isrequired to be noted that there is a specific finding recorded bythe District & Sessions Judge and even by the High Court thatthere is a violation of Article 21 of the Constitution of India. Thepersons who are responsible for the death of victim shall beFultimately investigated by the CBI. However, the fact remainsthat victim has died and there is a prima facie finding against theappellants. In fact, the High Court has awarded rupees threelakhs only which, according to this Court, is on a lower side.According to this Court, if rupees five lakhs is awarded towards

compensation, at this stage, the same shall be in the interest ofGjustice. Therefore, in exercise of powers under Article 142 ofthe Constitution of India and to do substantial justice to thedeceased and his family members, the amount of compensationenhanced to rupees five lakhs, which shall be deposited by the appellants with the Registrar General of the Gauhati High Courtwithin a period of four weeks from today, which shall be paid tothe original writ petitioner on her being properly identified. Theassessment of compensation shall not preclude the original writpetitioner to avail such remedy as is available to her in lawwhatsoever which may have to be decided on its own merits.[Para 5] [849-D-H]

3. Since the matter is very old, the CBI is directed toundertake and conclude the investigation at the earliest so thatthe real culprits are punished. It goes without saying and as heldby this Court in the case of General Officer Commanding v. CBIand another, reported in (2012)6 SCC 228, that after the chargesheet is filed by the investigating agency and not after thecognizance is taken by the court, the competent authority in thearmy shall take a decision within a period of eight weeks fromthe date of filing of the charge sheet as to whether the trial wouldbe by the criminal court or by a court martial and communicatethe same to the Chief Judicial Magistrate concerned immediatelythereafter. In case, the option is made to try the case by a courtmartial, the said proceedings would commence immediately andwould be concluded in accordance with law expeditiously. It isfurther observed and directed that in case the option is madethat the accused will be tried by the criminal court the CBI shallmake an application to the Central Government for grant ofsanction within a period of four weeks from the receipt of suchoption and in case such an application is filed, the CentralGovernment shall take a final decision on the said applicationwithin a period of eight weeks from the date of such an application.In case, sanction is granted by the Central Government, thecriminal court shall proceed with the trial and conclude the sameexpeditiously. [Para 7] [850-B-E]

General Officer Commanding v. CBI and another(2006) 6 SCC 228 : [2012] 5 SCR 599 – relied on.

Case Law Reference

[2012] 5 SCR 599

relied on

Para 7

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ACIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3669-3670 of 2015.

From the Judgment and Order dated 09.06.2006 of the GuwahatiHigh Court in W.P. (Civil) No. 9709 of 2003 and order dated 05.12.2008in M.C. No. 2954 of 2007.

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R. Balasubramanian, Sr. Adv., Ms. Akanksha Kaul, A. K. Sharma,Mrs. Anil Katiyar, Advs. for the Appellants.

The Judgment of the Court was delivered by

M. R. SHAH, J.

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C1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 9.6.2006 passed by the Gauhati High Court in WritPetition(C) No. 9709/2003, by which the High Court has directed forCBI investigation with respect to the death of one Someswar Gayarialias Sombrom, as also, dismissal of review petition vide order datedD5.12.2008, the original respondents – Union of India and others havepreferred the present appeals, by way of special leave petitions.

2. That the respondent herein – Smt. Junu Gayary, a young widowof deceased Someswar Gayari alias Sombrom filed a writ petition beforethe High Court under Article 226 of the Constitution of India for anappropriate writ, directions or order against the appellants herein – theEoriginal respondents directing them to institute a judicial enquiry into thecause and the persons responsible for the death of her husband –Someswar Gayari alias Sombrom. Further directions were also soughtfor compensation of rupees six lakhs to her and her family for theirsurvival.

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2.1 It was the case on behalf of the original writ petitioner thatwhen her deceased husband was at his relative’s house at villageKoilamaila under Bijni Police Station, he was taken away to BhabanipurArmy Camp by the personnel of 8[th] Madras Military Regiment at about3:00 a.m. on 26.08.2003 and thereafter his whereabouts were not knownGuntil she was informed by the Officer Incharge of Amguri Police Outpostinforming her that her husband had died on 30.08.2003 in an encounterwith army near Bhabanhipurgaon.

2.2 The writ petition was opposed by the appellants herein – theoriginal respondents. The stand taken by the original respondents in their H

affidavit was that no civilian as such was brought to Bhabanipur ArmyCamp as claimed by the original writ petitioner. They took the specificstand 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 thelearned District & Sessions Judge, Bongaigaon to hold an enquiry withregard to the circumstances leading to the disappearance and death ofthe original writ petitioner’s husband, Someswar Gayari. The High Courtdirected the learned District & Sessions Judge to submit the report. TheHigh Court also directed the learned District & Sessions Judge to issueappropriate notice to all the parties and provide them an opportunity ofhearing in the matter. Thereafter, holding necessary enquiry and givingopportunity to all concerned and after examining the concerned witnessesand on appreciation of the entire material available on record, the learnedDistrict & Sessions Judge submitted its report holding that the deceasedSomeswar Gayari was picked up from the house of Dilbahadur Chetryby army personnel in the night that followed the day of 26.08.2003. Thelearned District & Sessions Judge also opined that no Assam PolicePersonnel were involved in the act of picking up of the deceased fromthe house of Dilbahadur Chetry. The learned District & Sessions Judgefurther observed that whereabouts of the deceased was not known tothe original writ petitioner till she was informed by the Bijni Police Stationthat the deceased died in an encounter with army. Upon appreciation ofboth direct and circumstantial evidence, the learned District & SessionsJudge came to the conclusion that the deceased was in the custody ofthe Indian Army since the time of his picking up by the army till the timeof production of the dead body and handing over the same to the policein the police station. The learned District & Sessions Judge specificallyobserved that the death of the deceased was in the hands of army andan attempt, however, has been made by the army to show the death ofthe deceased as if in the course of encounter between the army and thedeceased.

2.4 That thereafter the High Court gave the opportunity to theappellants herein to file their objections, if any, to the Enquiry Reportsubmitted by the learned District & Sessions Judge. However, no suchobjections were preferred by the appellants herein – the originalrespondents. That thereafter after considering the submissions madeby the learned counsel appearing on behalf of the appellants herein - the A

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Aoriginal respondents on the enquiry report submitted by the learnedDistrict & Sessions Judge, the High Court came to the conclusion thatthe deceased – Someswar Gayari was taken into custody by the armyfor whatever purposes and probably may have been killed while in thecustody. Therefore, the High Court by the impugned judgment and orderhas directed that in view of the specific and categorical finding recordedBby the learned District & Sessions Judge, the matter requires for furtherinvestigation in accordance with law for which purpose a criminal caseshall be registered for the offence punishable under Section 302 of theIPC. The High Court has directed the Central Bureau of Investigationto undertake the investigation so that the real culprits do not get awayCunpunished.

2.5 Having found that there is a violation of the Article 21 of theConstitution of India and that the original writ petitioner is a young widowrequired to look after her three minor school going children and that thedeceased was the only bread earner of the family, the High Court hasDfurther directed original respondent nos. 1 and 3 – Union of India andCommandant, 8[th] Madras Regiment to pay Rupees three lakhs to theoriginal writ petitioner by way of compensation for the death of thedeceased Someswar Gayari.

3. Feeling aggrieved and dissatisfied with the impugnedEjudgment(s) and order(s) passed by the High Court, the appellants herein– original respondents – Union of India and others have preferred thepresent appeals.

4. We have heard Shri R. Balasubramanian, learned SeniorAdvocate appearing on behalf of the appellants. Service of notice isFcomplete on the respondent as per the service report received from theconcerned District Court but no one has entered appearance on behalfof the respondent.

4.1 Having heard the learned Senior Advocate appearing on behalfof the appellants and considering the impugned judgment and order passedGby the High Court, as such, we see no reason to interfere with theimpugned judgment and order. The High Court has rightly directed toregister a criminal case for the offence punishable under Section 302 ofthe IPC with respect to the death of Someswar Gayari alias Sombromand looking to the gravity of the offence committed the High Court hasrightly directed the CBI to undertake the investigation. For the aforesaid,H

the High Court has taken into consideration the report submitted by thelearned District & Sessions Judge who categorically recorded that thedeceased Someswar Gayari alias Sombrom was picked up from thehouse of Dilbahadur Chetry by army personnel in the night that followedthe day of 26.08.2003; that the deceased was in the custody of theIndian Army since the time of his picking up by the army till the time ofproduction of the dead body and handing over the same to the police inthe police station; that the death of the deceased was in the hands ofarmy and an attempt, however, has been made by the army to show thedeath of the deceased as if in the course of encounter between the armyand the deceased. The aforesaid findings recorded by the learned District& Sessions Judge were on considering the material on record and afterexamining some witnesses and after giving an opportunity even to theappellants also. Under the circumstances, the impugned judgments andorders passed by the High Court directing to register a criminal case forthe offence punishable under Section 302 of the IPC and directing theCBI to undertake the investigation do not warrant any interference.

5. Now so far as awarding rupees three lakhs by way ofcompensation to the original writ petitioner is concerned, it is required tobe 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 ofArticle 21 of the Constitution of India. The persons who are responsiblefor the death of Someswar Gayari shall be ultimately investigated by theCBI. However, the fact remains that Someswar Gayari has died andthere is a prima facie finding against the appellants. In fact, the HighCourt has awarded rupees three lakhs only which, according to us, is ona lower side. According to us, if rupees five lakhs is awarded towardscompensation, at this stage, the same shall be in the interest of justice.Therefore, in exercise of powers under Article 142 of the Constitutionof India and to do substantial justice to the deceased and his familymembers, we enhance the amount of compensation to rupees five lakhs,which shall be deposited by the appellants with the Registrar General ofthe Gauhati High Court within a period of four weeks from today, whichshall be paid to the original writ petitioner on her being properly identified.The assessment of compensation of ours shall not preclude the originalwrit petitioner to avail such remedy as is available to her in lawwhatsoever which may have to be decided on its own merits.

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A6. In view of the above and for the reasons stated above, thepresent appeals challenging the impugned judgments and orders passedby the High Court directing to register a criminal case and directing theCBI to undertake the investigation deserve to be dismissed and areaccordingly dismissed.B7. Since the matter is very old, the CBI is directed to undertake B7. Since the matter is very old, the CBI is directed to undertakeand conclude the investigation at the earliest so that the real culprits arepunished. It goes without saying and as held by this Court in the case ofGeneral Officer Commanding v. CBI and another, reported in(2012)6 SCC 228, that after the charge sheet is filed by the investigatingagency and not after the cognizance is taken by the court, the competentCauthority in the army shall take a decision within a period of eight weeksfrom the date of filing of the charge sheet as to whether the trial wouldbe by the criminal court or by a court martial and communicate the sameto the Chief Judicial Magistrate concerned immediately thereafter. Incase, the option is made to try the case by a court martial, the said Dproceedings would commence immediately and would be concluded inaccordance with law expeditiously. It is further observed and directedthat in case the option is made that the accused will be tried by thecriminal court the CBI shall make an application to the Central Governmentfor grant of sanction within a period of four weeks from the receipt ofsuch option and in case such an application is filed, the Central GovernmentEshall take a final decision on the said application within a period of eightweeks from the date of such an application. In case, sanction is grantedby the Central Government, the criminal court shall proceed with thetrial and conclude the same expeditiously.

8. With the aforesaid observations and directions, the presentFappeals are disposed of.

Ankit Gyan

Appeals disposed of.

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