Penal Code, 1860 – s.302 – Constitution of India – Art.21 – Respondent-writ petitioner filed a writ petition u/Art.21 before the High Court alleging that her husband was picked up by army personnel from the house of a relative and thereafter, she was informed 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 of the deceased was in the hands of army and an attempt was made by army to show the death of the deceased was in course of an encounter – Pursuant thereto, High Court directed registration of criminal case u/s.302 IPC and CBI to undertake investigation – Original respondent nos. 1 and 3 were further directed to pay Rs. 3 lakhs to the original writ petitioner by way of compensation – On appeal, held: High Court rightly directed to register a criminal case for offence punishable u/s.302 IPC and CBI to undertake the investigation – The findings recorded by the District & Sessions Judge were after considering the material on record, examining witnesses and after giving an opportunity even to the appellants – There is a prima facie findings against the appellants – In the circumstances, no reason to interfere with the Judgment of the High Court – So far as compensation awarded to writ petitioner is concerned, as there is a specific finding by District & Sessions Judge and High Court that there is a violation of Art.21 of the Constitution – Accordingly, compensation enhanced from Rs.3 lakhs to Rs.5 lakhs.
Disposing of the appeals, the Court
Held: 1. 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 victim 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 District & Sessions Judge who categorically recorded that the deceased was picked up from the house of ‘D’ 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 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 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. [Para 4.1] [848G-H; 849-A-D]
2. 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 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 victim shall be ultimately investigated by the CBI. However, the fact remains that victim 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 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 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, the amount of compensation enhanced 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 shall be paid to the original writ petitioner on her being properly identified. The assessment of compensation 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. [Para 5] [849-D-H]
3. 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 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. [Para 7] [850-B-E]
General Officer Commanding v. CBI and another
(2006) 6 SCC 228 : [2012] 5 SCR 599 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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