IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPA No. 254 of 2011 [ENTITY] and Ors. Petitioners [ENTITY] Respondents !Mr. [ENTITY], Sr. Advocate ^None, Advocate Honble Mr. Justice [ENTITY], Chief Justice Honble Mr. Justice [ENTITY], Judge Date: 07/05/2013 : J U D G M E N T :
[ENTITY], J.
1. This Letters Patent Appeal has been filed by the State and its officers against the judgment and order dated 03.05.2011 rendered in HCP No. 251/2000 titled [ENTITY] vs. State and Ors. The Writ Court has allowed the petition with direction to the appellants to pay an amount of Rs. 10 lacs (10,00000) by way of compensation for the arrest/disappearance of the petitioners son.
2. Brief facts:
3. Habeas Corpus Petition concerns the disappearance of one [ENTITY] S/o [ENTITY] R/o Gund Sunthipora Kralpora, [ENTITY] on 08.03.2000.
4. As per the averments made in the Habeas Corpus Petition, the writ petitioners son, namely, [ENTITY], the detenue, was arrested during the intervening night of 08/09-03-2000 by the Army Personnel of [ENTITY] Rashtria Rifles, posted at that time at Panzgam [ENTITY],. It is contended that the Army Personnel of above named Unit again came to the residence of the petitioner along with the detenue, who was in custody and searched the house of the petitioner. Nothing adverse was found during search process and the Army Personnel left the house of the petitioner along with the above named detenue.
5. It is further averred that on 09.03.2000, the petitioner approached the Police Chowki, Kralpora, where he made a written complaint that his above named son has been lifted by the Army Personnel on 08.03.2000 in the evening and that after repeated approach and on subsequent days, the detenue was not released. On the other hand the Army Personnel of 14th RR, who lifted the above named detenue from his residence, assured the petitioner-respondent and other respectable villagers that the said detenue would be released after interrogating him.
6. In the above stated background, the writ petitioner-respondent came forward with Habeas Corpus Petition, stating that after exhausting her remedies with all other higher authorities for securing the protection to her son, she has approached this Court, and prayed for a direction to the appellant-respondents to produce her son [ENTITY] before this Court and to set him at liberty. The petitioner also sought for further directions for conducting a Judicial enquiry and also payment of Rs. 10 lacs as compensation.
7. When the Habeas Corpus Petition came up for hearing after admission and initial notice on 28.09.2000, respondents were directed to file their reply. After perusing the reply, an order came to be passed on 10.10.2002 to the effect that since the respondents deny the alleged apprehension of the detenue, an enquiry was necessitated.
8. Learned Sessions Judge, [ENTITY] was appointed as an enquiry officer to enquire into the matter. Learned Sessions Judge, [ENTITY] submitted his report on 25.06.2007. A perusal of the report discloses that writ petitioner-respondent appeared before him and produced the witnesses, whose statements were recorded by the learned Judge. The learned Judge extracted the substratum of the evidence, both the chief examination as well as the cross-examination made by the parties.
9. In his report, the learned Judge ultimately drew the following conclusion which reads thus:-
 From the perusal of the case diaries it is clear that the police lodged an FIR after immense search the whereabouts of the missing person could not be traced. It has been stated in the case diaries that the police has not been able to find out the evidence on the basis of which the army personnel could be involved in disappearance of the petitioners son, as such, the police has closed the case as untraced.
From the perusal of file it transpires that JS Suraj Colonel Commanding Officer C/O 56 APO has submitted a detailed investigation report with respect to the complaint received from wife of [ENTITY] namely Mst. [ENTITY] wherein it has been stated that the petitioner is not clear about the unit allegedly involved in picking up her husband. He has further stated that some times allegations levelled against 14 [ENTITY], some times 4 GR under 14 [ENTITY] and some Rimes 14 [ENTITY] Rashtriya Rifles. Even he has been picked up or has disappeared on his own accord is too not established.
The name 14 [ENTITY] is being mentioned is an after thought and based on the fact that this unit was Incharge of Garrison Security of Panzgam where six other units were co-located. He has further stated that Rashtriya Rifles units are operating across River Kahmil whereas BSF unit was operating in Reshigund and even SOG/STF groups is operating in the same area. However, the unite denies any kind of its involvement in disappearance of [ENTITY] from his home.
On the meticulous examination of evidence lead by the petitioner in support of her claim it is emphatically clear that her son has been whisked away by the army personnel of [ENTITY] on 08th of March 2003 and in the first instance she was allowed to meet with her son at Payarpora Camp thereafter neither she was allowed to meet with her son nor her sons dead body was handed over to his family members. The family members of the said [ENTITY] have in unequivocal terms stated that it was 14 Rashtriya Rifles army personnel under the command of Major [ENTITY] who raided the hose of the petitioners son and took him in the camp for further investigation. The evidence further reveals that on next day morning petitioners son was again brought in this house and the house was raided and no illegal arms and ammunition was recovered during the search. The evidence also further reveals that the said [ENTITY] was not connected with any political, non-political or militant organizations. The evidence of the village Headman as well as Chowkidar cannot be lose sight of who have clearly stated that they were present on the day when the army personnel came to the hose of the petitioners son and he was apprehended by them. They have further stated they have been assured them that he will be released soon. The village headman has further stated that his father has conveyed the picking of a civilian by Army to the police concerned in writing but did not see the petitioners son till now. The petitioner has established her claim that her son has been picked up by the army personnel, although it is not clear by which unit he was picked up. It has been mentioned that unit was headed by one Major [ENTITY].
After perusal of the case diaries and the evidence on the record I have arrived at a conclusion that some armed personnel whether from army or from other security agency has whisked away the petitioners son from his house and till date his whereabouts are not known.
10. After receipt of the report, by order dated 20.11.2007, the parties were allowed to file their objections, if any, within four weeks.
11. On 31.12.2007, the opportunity to file objections to the report was extended by three weeks and on 05.02.2008, learned counsel for the appellants/ respondents stated that they have not received the copy of enquiry report, as such, copy was directed to be furnished to them within one week and objections, if any, within four weeks and on 11.03.2008, two weeks last and final opportunity was granted to file objections, however, the respondents failed to avail the opportunity for filing the objections.
12. In terms of order passed on 06.04.2010, learned Advocate General was asked to ensure representation on behalf of respondents 1 and 4 and to file response to the enquiry report. It was made clear that in default, both respondents 1 and 4 were to appear in person. Objections to the report filed by respondents merely stated that no operation was conducted by any Army Unit; and that the enquiry officer failed to appreciate that the statement of the petitioner Mst. [ENTITY] is un-reliable. It is contradictory in itself and that the detenue was neither arrested nor lifted on 08/09.03.2000. As far as the respondents 1 and 4 are concerned, it was their stand that since the allegations were not against them, they did not have any knowledge of the disappearance and/or arrest of the detenue by the Army Personnel. The writ Court, therefore, concluded that the evidence produced by the petitioner to record the finding that the detenue [ENTITY] was arrested by the Army Personnel on 08.03.2000 had gone unrebutted.
13. Learned Writ Court finally arrived at the conclusion that respondents 1 and 4 cannot be absolved of their responsibility in regard to the disappearance of the son of writ petitioner, and in terms of impugned judgment, allowed the writ petition and awarded compensation for an amount of Rs. 10 lacs for the arrest and disappearance of the writ petitioners son.
14. Appellants have challenged the Judgment on the grounds detailed out as under:
a) That the Judgment impugned is against the guidelines laid by the Honble Apex Court while announcing a land mark judgment in a case reported in [PRECEDENT]. The Honble Apex Court has held that the compensation under [SECTION] cannot be granted in certain situations and before granting or refusing the compensation, the writ Court has to consider the following:
i.) Whether the violation of [SECTION] is patent and incontrovertible;
ii.) Whether the violation is gross and of a magnitude to shock the conscience of the court;
iii.) Whether the custodial torture has resulted in death or whether the same is supported by medical report or visible marks or scars or disability;
iv.) Whether there is no evidence of custodial torture of a person except his own statement;
v.) Where such allegation is not supported by any medical evidence or other corroboration evidence, or where there are clear indications that the allegation levelled are false or exaggerated fully or in part.
b) That the writ Court cannot award compensation on disputed and contradictory facts but instead the petitioner was legally bound to approach a competent Court of Civil Original jurisdiction and it was within the domain of civil Court of law to award any compensation after the facts projected were established before the said Court. The Honble writ Court has no jurisdiction to go into the questions of facts and this vital aspect has not been dealt with by the Honble writ Court and has instead ignored this legal position which renders the impugned judgment to be quashed.
c) That taking the enquiry report as gospel truth, still it is respectfully submitted that the incident has not taken place either at the instance of the appellant-
State or at the behest of any other functionary of the State which fact also stands admitted in the writ petition by the petitioner. Since the Army was involved as per the report and the State functionary has no role to play. At no point the State or its functionaries were involved in the incident but even then the State took notice of the situation registered a criminal case of the incident and investigated the matter and after thorough investigation came to the conclusion that it was not the Army but some unidentified gunmen who have kidnapped the son of the petitioner and the case was closed.
It is in place to mention here that the appellant- State have shouldered their responsibility by discharging their lawful duty by registration of an FIR and subsequent investigation and beyond this the appellants-State has no role to play. The Honble Court has not taken note of this important aspect as well. The impugned judgment on this score also merits to be quashed.
d) That the impugned is not sustainable in view of the fact that the learned Single Judge has not given any basis on the strength of which the Court ordered payment of Rs. 10.00 lacs as compensation to the petitioner neither the petitioner has projected any ground for assessment of compensation nor the Honble Court has insisted for the same. It would by worthwhile to mention here that it is settled position of law that while assessing the compensation the Honble Court has to take note of proved facts which will make it to assess the compensation and the general principle is age factor of the person missing, his occupation, his earning capacity and other relevant factors. Neither the petitioner has given any clue about it nor the Honble writ Court has considered the same. On this ground also the impugned judgment is liable to be quashed.
d) That the impugned judgment is again not sustainable so far as the appellant are concerned, because in criminal investigation as well as in a magisterial enquiry conducted about the incident, the appellants or its functionaries have not in any way been found involved in the incident. Consequently, they were not to be held liable to pay any compensation.
15. Heard learned counsel for the appellant and perused the records.
16. Contention raised by Mr. [ENTITY], learned Sr. AAG on the strength of Apex Court Judgment, in case reported in [PRECEDENT], needs to be addressed to on the strength of the Judgments of the Honble Supreme Court regarding payment of compensation under [SECTION] of the [ACT] to be granted in certain situations therefore, this Court wish to be guided by the decisions of Supreme Court.
15. Before proceeding further, this Court wish to be guided by the decisios of the Supreme Court reported in AIR. 1983 Set 1086, [PRECEDENT], [PRECEDENT], [PRECEDENT]. Chairman, [PRECEDENT], [PRECEDENT] [PRECEDENT], [PRECEDENT], in order to consider the claim of the petitioner for compensation for the disappearance of her son who was aged 20 years at the time of his disappearance.
16. In the decision reported in [PRECEDENT], the Hon'ble Supreme Court has highlighted the right to life and liberty guaranteed under [SECTION] of the [ACT] and the remedy that can be granted in the event of violation of said right. Paragraph no. 10 of the said decision can be usefully referred to, which reads as under; -
 [SECTION] 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 [SECTION] secured is to mullet its violators in the payment of monetary compensation. Administrative sclerosis leading to fragrant infringemerits 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 civilization 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 added)
17. In [PRECEDENT], the Hon'ble Supreme Court dealt with a case of disappearance and awarded sum of Rs. 1 lac to the widows of the detenu's whose disappearance was finally ascertained. The Supreme Court, while awarding such a payment by way of exemplary costs, held as under in paragraph nos. 5 and 7.
"5. The view of this Court as expressed in the main judgment clearly indicates that the assertion of respondents I, 2 and 4 that [ENTITY] and [ENTITY] left Phungrei Camp where 21st Sikh Regiment were stationed is not correct and that to avoid respon- sibility flowing from the mysterious disappearance of [ENTITY] and [ENTITY] an attempt was made to suggest that they had left alive in the company of their compatriots. On that conclusion one can say that there is a wilful disobedience to the writ of habeas corpus by misleading the court by pre- senting a distorted version of facts not borne out by the record. It is thus established that the respon- dents 1, 2 and 4 have committed civil contempt by their wilful disobedience to the writ".
7. In the facts and circumstances of the case, keeping in view the torture, the agony and the men- tal oppression through which Mrs. [ENTITY], wife of Shri [ENTITY] and Mrs. [ENTITY], wife of Shri [ENTITY] had to pass and they being the proper applicants the formal application being by [ENTITY], the court considered it proper and directed that as a measure of exemplary costs as is permissible in such cases, respondents Nos. 1 and 2 shall pay Rs.1 lac to each of the aforementioned two women within a period of four weeks from today.
18. In the decision reported in [PRECEDENT], a detailed consideration was made to the power of this Court under [SECTION] for awarding compensation in proceedings for enforcement of fundamental rights as a remedy available in public law. The issue was dealt with in depth and the principles have been lucidly stated by the Honble Supreme Court in paragraph nos. 10, 22 and 23 as under :-
10. In view of the decisions of this Court in [ENTITY] v. State of Bihar and Another, (1993) 3 SCR 508, [PRECEDENT], Bhim Singh v. [ENTITY] (1984) Supp. S.C.C 504 and (1985) 4 SCC 677, [ENTITY], [PRECEDENT] and [PRECEDENT], the liability of the State of Orissa in the present case to pay the compensation cannot be doubled and as rightly not disputed by the learned Addl. Solicitor General. It would however, be appropriate to spell out clearly the principle on which the liability of the state arises in such cases for payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in an action on tort. It may be mentioned straightaway that award of compensation in a proceeding under [SECTION] by this Court or by the High Court under [SECTION] of the [ACT] is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings we shall now refer to the earlier decisions of this court as well as some other decisions before further discussion of this principle.
22. The above discussion indicates the principles in which the Courts power under [SECTION] and [SECTION] of the [ACT] is exercised to award monetary compensation for contravention of a fundamental right. This was indicated in [ENTITY] and certain further observations therein adverted to earlier, which may tend to minimize the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of this court in [ENTITY] and others in that line have to be understood and [ENTITY] distinguished therefrom. We have considered this question at some length in view of the doubt raised, at times, about the propriety of awarding compensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is clear case for award of compensation to the petitioner for the custodial death of her son.
23. The question now, is of the quantum of compensation. The deceased [ENTITY] was aged about 22 years and had a monthly income between Rs. 1200 to Rs. 1500. This is the finding based on evidence recorded by the District Judge, and there is no reason to doubt its correctness. In our opinion, a total amount of Rs, I, 50, 000 would be appropriate as compensation, to be awarded to the petitioner in the present case. We may, however, observe that the award of compensation in this pro- ceeding would be taken into account for adjustment, in the event of any other proceeding taken by the petitioner for recovery of compensation on the same ground, so that the amount to this extent is not recovered by the petitioner twice over. Apart from the fact that such an order is just, it is also in consonance with the statutory recognition of this principle of adjustment provided in [SECTION] [ACT] and [SECTION] of the [ACT]." (Emphasis added)
19. His lordships, Justice [ENTITY] (as he then was), while concurring with the judgment of His lordships Justice [ENTITY], added certain principles in paragraph nos. 31, 33, 34 and 35, which will have to be kept in mind by this Court while dealing with such claims for compensation, based on violation of [SECTION] of the [ACT]. The said paragraphs are usefully extracted for our purpose:-
"31. It is axiomatic that convicts, prisoner or under- trials are not denuded of their, fundamental rights under [SECTION] and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State, to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law while the citizen is in its custody. The precious right guaranteed by [SECTION] of the [ACT] cannot be denied to convicts, under trials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his rights to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law. I agree with Brother [ENTITY], J. that the defence of "sovereign immunity"
in such cases is not available to the State and in fairness to Mr. [ENTITY] it may be recorded that he raised no such defence either.
33. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much as protector and guarantor of the indefeasible Fights of the Citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations.
34 Therefore, when the court moulds the relief by granting "compensation" in proceedings under [SECTION] or [SECTION] of the [ACT] seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making monetary amends, under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of exemplary damages awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/ and prosecute the offender under the penal law.
35. .In doing so the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental rights of a citizen under [SECTION] is concerned. Law is in the process of developments and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the courts have to act firmly but with certain amount of circumspection and self restraint, lest proceedings under [SECTION] or [SECTION] are misused as a disguised substitute for civil action in private law. Some of those situations have been identified by this Court in the cases referred to by Brother [ENTITY], J", (Emphasis added)
20. The learned counsel for the respondents relied upon two others decisions reported in [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT], [PRECEDENT].
21.In the decisions reported in [PRECEDENT], the issue related to the death of a deceased by causes other than illegal detention or violation of [SECTION] of the [ACT] but were of some other causes such as death of a deceased due to electrocution etc. Dealing with such cases where the claim was made for compensation under [SECTION], the Hon'ble Supreme Court took the view that where such claims for compensation were made based on the alleged negligence on the part of the State or other public bodies and when such allegations are denied by contending that irrespective of due care or caution, due to circumstances beyond their control, such mishap has taken place, it will not be appropriate for the High Court, exercising its power under [SECTION], to award any compensation, inasmuch, there were many disputed questions of fact. This Court is convinced that such cases stand apart as against the cases where violation of fundamental right to life and liberty bases on [SECTION] of the [ACT], is made, where the Hon'ble Supreme Court having laid down well settled principles to be applied and by applying such a principle to the case on hand it can be safely held that the award of compensation is warranted in the facts and circumstances of this case.
22. In a recent decision of the Hon 'ble Supreme court reported in [PRECEDENT] the Hon'ble Supreme Court after considering all its earlier deci- sions including the decision reported in [PRECEDENT] has issued broad guidelines before awarding compensation as a public law remedy. Paragraph No. 21 of the said decision can be usefully referred to which reads as under:
"21. In cases where custodial death or custodial torture or other violation of the rights guaranteed under [SECTION] is established, courts may award compensation in a proceeding under [SECTION] or
[SECTION]. However before awarding compensation, the court will have to pose to itself the following question (a) Whether the violation of [SECTION] is patent and incontrovertible, (b) Whether the violation or [SECTION]. 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 corroboration evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, courts may not award compensation as a public law remedy under [SECTION] or [SECTION], but relegate the aggrieved party to the traditional remedies by way of appropriate civil/ criminal action.
17. Keeping in view the above principles in mind and the guidelines set out by the Honble Supreme Court in the recent decision, we find that having regard to the categoric findings of the learned Sessions Judge, [ENTITY] in the report dated 25.06.2007, which has been examined and confirmed by the writ Court, it will have to be held that in the case on hand violation of [SECTION] was patent and incontrovertible. It is not as if the disappeared detenue had any criminal background or was wanted in any serious criminal case in which he was alleged to have been involved. Therefore, when there were uncontroverted materials available on record to say with certainty that he was taken into custody by the Army, respondents except making a simple denial never came forward to dislodge the said conclusion.
24. The above factors, as compared to the plight of the petitioner, a gullible women, who had no other dependable women to fall back upon for her source of livelihood, it will have to be held that this was a case which would fall within the parameters of violation of the right under [SECTION] of the [ACT], which was gross and was of such grave magnitude which shocked the conscience of this court.
25. inasmuch as, this is a case of total disappearance of the detenu, this Court is of the view that this is a fit case where award of compensation as a public law remedy under [SECTION] to the aggrieved person, namely the petitioner, is fit and appropriate as well as in the interest of justice and it will not be proper to relegate the petitioner to go to a Civil Court for the redressal of her grievance.
18. Viewed thus, we uphold the order of the learned Writ Court, but for our own reasons recorded herein above, and dismiss this Letters Patent Appeal as being without any merit.
19. In terms of order dated 02.01.2013, this Court while admitting the appeal for hearing, directed the appellants to deposit Rs. 10,00000/- with Registrar Judicial of this Court within six weeks with further direction that on deposit same shall be kept as FDR in J&K Bank, Branch High Court Complex, [ENTITY] initially for a period of three months. The appellants in compliance of order deposited Rs. 10 lacs on 26.02.2013 and same has been kept in the shape of FDR. Therefore, Registry is directed to release the amount in favour of writ petitioner namely Mst. [ENTITY] widow of [ENTITY] R/o Gund Sunthipora, Kralpora, [ENTITY] after completion of all the legal formalities.
([ENTITY]) ([ENTITY]) Judge Chief Justice [ENTITY] 7.5.2013 [ENTITY]