WP(C) 6426/2002 BEFORE HON’BLE THE CHIEF JUSTICE MR. MADAN B. LOKUR THE HON’BLE MR JUSTICE H. BARUAH JUDGMENT AND ORDER (H. Baruah,J) Petitioner, Musstt. Anowara Begum is the wife of Late Jabed Ali, a resident of village Gariapara, P.S. Mangaldoi, District-Darrang, Assam. While petitioner’s husband Late Jabed Ali was alive, on 13-7-1999 at about 2 p.m. som e police personnel with arms under the supervision of Md. Jalil Ali, a Sub-Inspe ctor of police then posted at Mangaldoi police station came to their house and m ercilessly beaten her husband Jabed Ali and her brother-in-law, Tamzid Ali causi ng serious injuries to their person and took both of them to the Mangaldoi polic e station. At about 6 p.m on the same day some villagers informed the petitioner that her husband died as a result of assault by the police personnel at the pol ice station and her brother-in-law Tamzid Ali was admitted in Mangaldoi Civil Ho spital in serious condition. Post mortem on the dead body of the petitioner’s hu sband was conducted on 14-7-1999 at about 3 p.m and thereafter handed over the d ead body to his family members for burial. It is contended that the petitioner’s late husband was a rickshaw puller and was the only bread winner of his family. On account of death of Jabed Ali for police atrocities, the villagers of Gariap ara village on 14-7-1999 submitted a representation before the Deputy Commission er, Darrang that Late Jabed Ali, husband of the petitioner died as a result of a ssault by police personnel, who went to the house of the petitioner under the su pervision of Md. Jalil Ali, Sub-Inspector of Police, Mangaldoi Police Station an d requested an enquiry against the police personnel who resorted to assault on J abed Ali. Thereafter, the petitioner herein also on 16-7-1999 submitted an appli cation before the Deputy Commissioner, Darrang informing inter alia that on 13-7 -1999 at about 2 p.m her husband Jabed Ali and brother-in-law Tamzid Ali were a rrested by police personnel who had been to their village under the supervision of Md. Jalil Ali, Sub-Inspector of Mangaldoi Police station in connection with Mangaldoi P.S Case No. 54 of 1998 and in the process her husband and her brother -in-law were mercilessly beaten by the police personnel, as result of such beat ing both sustained injuries on their person and her husband while under police custody died at Mangaldoi Civil Hospital while under going treatment. Her brothe r-in-law Tamzid Ali was, however, admitted in the Mangaldoi Civil Hospital in se rious condition. The petitioner, therefore, requested the Deputy Commissioner to make an enquiry for her husband’s death during the police custody at Mangaldoi Civil Hospital. However, on her representation/ application no action was taken by the Deputy Commissioner, forthwith. It would be apposite to state at this sta ge that the petitioner through her representation also claimed compensation on a ccount of death of her husband in police custody due to police atrocities. Havin g not provided with compensation on account of death of her husband, her husband ’s elder brother Md. Mansur Ali, submitted a representation before the Human Rig hts Commission, Assam narrating the facts on 18-7-1999. Said Md. Mansur Ali also submitted an application on 31-7-1999 before the Chief Judicial Magistrate, Dar rang intimating the death of his younger brother, Jabed Ali while in police cust ody at Mangaldoi Civil Hospital on 13-7-1999 and requested to provide him with a copy of the post mortem report. 2. It is also contended by the petitioner that as per direction of the Chief Judicial Magistrate, Darrang a copy of the post mortem report was supp lied to them wherefrom discovery of some injuries by the doctor conducting the a utopsy on the dead body of Late Jabed Ali has been indicated. The post mortem re port indicates discovery of 8(eight) numbers of injuries on the dead body of Jab ed Ali. It is contended that discovery of the injuries on the dead body of Jabed Ali indicates inhuman physical torture on Jabed Ali while was in police custody , which resulted in his death. 3. On 13-1-2000 a notice was hanged in the Office of the District M agistrate, Darrang under the hand and seal of Sub-Divisional Magistrate, Mangald oi indicating therein that an inquiry into the cause of death of Jabed Ali under Section 176 Cr. P.C would be conducted and asked persons having knowledge as to the cause of death of Late Jabed Ali to appear before him on 29-1-2000 to give evidence. Inquiry was, however not conducted on 29-1-2000. It was refixed on 14- 2-2000. On 7-11-2000 the petitioner again submitted a representation before the Deputy Commissioner, Darrang to take early action as to cause of death of her hu sband in police custody on 13-7-1999. But the Deputy Commissioner, Darrang, desp ite receipt of the representation did not take any appropriate action. Petition er thereafter, on 8-8-2002 submitted another representation before the Commissio ner and Secretary, Home Department, Government of Assam referring the earlier re presentations submitted before the Deputy Commissioner, Darrang but no appropria te action was taken by the Commissioner and Secretary, Home Department, Governme nt of Assam. 4. The petitioner feeling aggrieved of the inaction on the part of the respondents has approached this court by filing this writ petition seeking a direction to the respondents to pay Rs. 5,00,000/- (rupees five lakhs) as compe nsation to the petitioner for death of her husband, Jabed Ali while in police cu stody on 13-7-1999. 5. The respondents resisted this petition by filing counter affidav it. Respondent No. 3, the then Superintendent of Police, Darrang, Mangaldoi cont ended in his counter affidavit that the Officer-in-Charge of Mangaldoi police st ation on 13-7-1999 received a confidential information that Md. Jabed Ali (since deceased) along with some other dacoits were planning for commission of dacoity and to that effect making G. D Entry No. 306 dated 13-78-1999, a group of polic e personnel under the supervision of Md. Jalil Ali, Sub Inspector was detailed t o apprehend the dacoits and in the process two dacoits namely, Jabed Ali (since deceased) and Tamzid Ali, both brothers, with the help of public were apprehende d. During operation it is contended that dacoits had scuffled with public while trying to flee away from the spot and as a result sustained injuries on their pe rson. Both the apprehended dacoits as named hereinbefore were brought to Mangald oi police station and thereafter admitted in Civil Hospital. It is contended tha t the other dacoits managed to escape. He also stated that the Officer-in-charge of Mangaldoi P. S while submitting report also narrated that the two apprehende d dacoits received several injuries while scuffling with local people at the tim e of apprehension. Though both the dacoits were admitted in Mangaldoi Civil Hosp ital in injured condition on the same day at about 6.20 p.m, dacoit Jabed Ali di ed at hospital due to his injuries. It is also contended in the counter that pol ice recovered ’22 bore pistol with one cartridge from the custody of Jabed Ali ( since deceased). The report as indicated was submitted to him in connection with Mangaldoi P.S Case No. 186 of 1999 registered under Section 399 IPC. In paragra ph-8 of the counter it is stated that both Jabed Ali and Tamzid Ali, sons of Nur uddin Ahmed were rescued by the police party from the clutch of the mob consisti ng of 200 people at least. Both were manhandled by the mob. It is contended fur ther in paragraph-9 that on 13-7-1999 both Jabed Ali and Tamzid Ali were apprehe nded by public and severely assaulted as a result of which Jabeb Ali succumbed t o his injuries in the hospital. The Superintendent of Police, respondent No. 3 i n his counter also contended that a Magisterial Inquiry was conducted by one Fai jul Hussain, the then Sub-Divisional Magistrate, Mangaldoi as per order of the t hen Deputy Commissioner, Darrang, Mangaldoi as to the cause of death of Jabed Al i. Copy of the inquiry report is annexed to the counter affidavit as Annexure-1. 6. Respondent No. 2, the then Deputy Commissioner, Darrang, Mangald oi in his counter affidavit also contended that on 13-7-1999, the Officer-in-Cha rge of Mangaldoi police station having had the information of conspiracy of com mission of dacoity by a gang of dacoits, deputed Md. Jalil Ali, Sub-Inspector of police to nab the dacoits with several other police personnel. When the police party under the leadership of Md. Jalil Ali, Sub-Inspector of Police reached Gar iapara, found a mob gheraoing the dacoits. On the arrival of police party dacoit s tried to flee away from the place. However, Md. Jabed Ali (since deceased) and his brother Tamzid Ali were apprehended with the help of the public. The public manhandled both Jabed Ali and Tamzid Ali. Both sustained grievous injuries and accordingly shifted to Mangaldoi Civil Hospital for their treatment. He also con tended that Jabed Ali succumbed to his injuries while undergoing treatment at th e hospital. Respondent No. 2 also contended in his counter affidavit that a magi sterial inquiry was ordered to inquire into the cause of death of Md. Jabed Ali, the husband of the petitioner and magisterial inquiry was conducted by Md. Faiz ul Hussain, the then Sub-Divisional Magistrate, Mangaldoi and submitted report. 7. We have heard Mr. A. K. Bora, learned counsel for the petitioner as well as Mrs. B. Goyal, learned Govt. Advocate, Assam for the respondents. 8. From a close reading and scrutiny of the contents of the writ pe tition and the statements made in the counter affidavit by the respondent Nos. 2 and 3, it appears to us that both the party stand at two opposite pole in respe ct of death of Jabed Ali, the husband of the petitioner. The claim of the petiti oner is that a police party under the supervision of Md. Jalil Ali, Sub Inspecto r of Mangaldoi police station came to their village and apprehended her husband, Jabed Ali and his brother Tamzid Ali and after apprehension both were merciless ly beaten by the police personnel with the help of rifle butt and various other weapons like branches of trees. It is also the case of the petitioner that both Jabed Ali and Tamzid Ali were taken to police station in injured condition. On t he day of apprehension i.e. on 13-7-1999, Jabed Ali succumbed to his injuries. O n account of death of Jabed Ali, the petitioner herself and some of the villager s submitted representations to inquire into the cause of death of Jabed Ali. It is contended by the petitioner that Jabed Ali died as a result of merciless beat ing by the police personnel when he was under arrest. Though Tamzid Ali, brother -in-law of the petitioner received serious injuries on account of assault by the police personnel, after treatment he recovered. The petitioner, the wife of the Late Jabed Ali, therefore, on account of death of her husband in police custody on account of police atrocities by filing this instant petition seeks for a dir ection to the respondent authorities to provide compensation amounting to Rs. 5, 00,000/-(rupees five lakhs) to her. 9. The stand of the respondents is that Jabed Ali and his brother T amzid Ali were veteran dacoits and on 13-7-1999 having received secret informati on that they along with other dacoits were conspiring to commit dacoity in diffe rent localities, a police party under the supervision of Md. Jalil Ali, Sub Insp ector of police was deputed for their apprehension. When the police party arrive d at the village Gariapara, found a mob gheraoing the dacoits. On seeing police party the dacoits tried to flee away from the place but Jabed Ali and Tamzid Ali could be apprehended with the help of the public. Other dacoits however, manage d to flee away from the spot. While trying to flee away Jabed Ali and Tamzid Ali received injuries on their person and over and above they were manhandled by th e public. Both sustained injuries and were shifted to Mangaldoi Civil Hospital w here Jabed Ali died while under going treatment. Respective party to the proceed ing, therefore, appear to have taken two divergent stand. Therefore, the issue b efore us would be whether Jabed Ali died as a result of assault by the police pe rsonnel after his apprehension. We have already come across from the counter aff idavits filed by the respondent Nos. 2 and 3 that a magisterial inquiry was orde red to inquire into the cause of death of Jabed Ali. We have also come across th at one Md. Faizul Hussain, the then Sub Divisional Magistrate of Mangaldoi condu cted the inquiry and submitted the report. Under the facts, it would be appropri ate for us to make a survey of the inquiry report submitted by the then Sub Divi sional Magistrate, Mangaldoi. The aforesaid inquiry report is annexed to the cou nter affidavit as Annexure-2. From the report it appears to us that all together 23 (twenty three) witnesses were examined from public including the petitioner herself and her brother-in-law Md. Tamzid Ali, while 4 (four) other witnesses we re examined from the State side. They are S.I., Abdul Jalil, S.I, Jitendra Kr. S ingh, S.I, Mridul Barua and Constable/1345, Dukho Ram Boro. From a perusal of th e evidence of the witnesses, namely, Md, Tamzid Ali, Smti. Anwara Begum, Md. Nar uddin Ahmed, Md. Khairat Ali, Md. Jamiruddin Ahmed, Md. Faizul Hoque, Md. Farid Ali, Md. Sayedur Rahman, Smti Abida Khatun, Smt. Anawara Begum, Smt. Monowara Be gum, Smt. Tasiran Begum and Md. Farzan Ali, it would appear to us that police pa rty under the supervision of S. I. Jalil Ali apprehended Md. Jabed Ali (since de ceased) and Tamzid Ali and assaulted both of them severely with the help of rifl e butt and various other weapons. From the evidence it would also appear to us t hat both Jabed Ali (since deceased) and Tamzid Ali were severely kicked by the p olice personnel. These witnesses nowhere stated in their evidence that Jabed Ali (since deceased) and Tamzid Ali were ever manhandled by the public during the p rocess of apprehension. These witnesses also stated in their evidence that both Jabed Ali and Tamzid Ali were taken to police station by the police in injured c ondition in their vehicle. However, Jabed Ali, the husband of the petitioner whi le under going treatment in hospital succumbed to his injuries. Though Tamzid Al i, the brother-in-law of the petitioner did receive injuries on his person as a result of assault, he however, recovered after treatment. 10. It would also appear to us that some of the witnesses examined d uring inquiry by the Inquiry Officer did state that police on various occasions were after Jabed Ali and Tamzid Ali on account of their involvement in several d acoities. Witness Md. Sahir Ali, Md. Harmuj Ali, Md. Tayebuddin Ahmed, Md. Majbi l Ali and Md. Aijuddin Ahmed, who hailed from Gariapara village also stated in t heir evidence that Jabed Ali (since deceased) and Tamzid Ali, both brothers were entangled in several criminal cases. They also stated in their evidence that th ey and other villagers were worst sufferers of the activities of both Jabed Ali( since deceased) and Tamzid Ali. But the over all evidence appearing in the face of the inquiry from public go to show that on 13-7-1999, a police party under th e supervision of S. I Jalil Ali of Mangaldoi Police Station apprehended both Jab ed Ali (since deceased) and Tamzid Ali and after their apprehension both were se verely assaulted by the police personnel with the help of rifle butt and other w eapons including branches of trees and the police personnel also severely kicke d Jabed Ali. Both were taken to police station in injured condition. 11. A perusal of the evidence recorded by the Inquiry Officer of wit nesses, namely, S.I Abdul Jalil, S.I, Jitendra Kr. Singh, S.I., Mridul Barua and Constable Dukho Ram Boro, it would appear to us that before their arrival at th e scene, a mob gheraoed the dacoits and on their arrival when they tried to flee away from the place, both Jabed Ali and Tamzid Ali sustained injuries. They als o stated in their evidence that both Jabed Ali and Tamzid Ali were manhandled by the public as a result they received serious injuries on their person. It is al so in their evidence that they rescued both Jabed Ali and Tamzid Ali and took aw ay both of them to police station. Both were admitted in Mangaldoi Civil Hospita l for their treatment, but Jabed Ali succumbed to his injuries at the hospital. They also stated in their evidence that some of the dacoits managed to flee away from the spot. A ’22 bore pistol with ammunition was stated to have been recove red from Jabed Ali in presence of the witnesses. 12. A careful reading of the evidence of the witnesses recorded duri ng inquiry by the then Sub Divisional Magistrate, it would appear to us that the witnesses from the State side tried to put blame on the public in the context o f assault on both Tamzid Ali and Jabed Ali. They also tried to put before the In quiry Officer that they rescued both Jabed Ali and Tamzid Ali from the clutch of the mob who gheraoed them including several other dacoits. From their evidence and other documents proved before the Inquiry Officer also go to show that on 13 -7-1999 a police party under the supervision of S.I. Jalil Ali had been to Garia para village for apprehension of dacoits after being received a secret informati on that dacoits were conspiring themselves to commit dacoity in the locality. Ev idence of the State Officers also go to show that both Jabed Ali and Tamzid Ali were apprehended by them and taken to police station and admitted in the hospita l for treatment on account of receipt of injuries by them. The witnesses while d eposing before the Inquiry Officer tried to put impression that both Jabed Ali a nd Tamzid Ali were severely beaten by the public and not by the police party acc ompanying Abdul Jalil. However, a contrary fact from the evidence of the witness es, from the public comes on to the surface that the police party under the supe rvision of S. I Abdul Jalil on their visit to Gariapara village apprehended both Jabed Ali(since deceased) and Tamzid Ali from two different houses not belongin g to them and thereafter severely assaulted both of them by police personnel wit h the help of rifle butt and various other weapons. Their evidence also go to sh ow that police personnel also severely kicked both Jabed Ali and Tamzid Ali. The Inquiry Officer also took into consideration the post mortem report in respect of deceased Jabed Ali. The doctor who conducted autopsy on the dead body of Jebe d Ali discovered the following injuries. (1) One bruise on right shoulder 2cm x 1cm; (2) One linear bruise on the left shoulder 4cm X 3cm; (3) One haematomatous swelling on lower part of right arm; (4) One contusion on left shoulder 2cm x 1/2cm; (5) One haematomatous swelling on lower end of left leg; (6) Multiple haematomatous patch and bruises of various size and shape on th e back; (7) One haematomatous patch on the chest on middle portion slightly towards the right side; (8) The 4th rib fractured; and (9) The thoracic cavily is full of blood clot. The doctor, who conducted the post mortem examination on the dead body of Jabed Ali opined that cause of death is due to haemorrhage and shock as a result of in jury sustained on the lung. 13. The Inquiry Officer after consideration of the evidence of both sides and the documents proved recorded his findings as follows : FINDINGS : In view of the observations made as above, it appears that on that d ay a police raid was conducted at Gariapara village after getting informations f rom confidential sources that notorious dacoit Jabed Ali and Tamzid Ali camping at Gariapara along with some other dacoits. Getting the information a strong pol ice force under the leadership of S.I Abdul Jalil was send to apprehend the daco its. But in the meantime the dacoits were gheraoed by some people when police re ached the place of occurrence the dacoits tried to fled away and in the process injured and the people apprehended and manhandled them and handed over to police . It cannot be ruled out totally that, the dacoits after taken into custody of t he police were not beaten as section of the people providing evidence said in th eir statement. If their statements are to be believed the police party send for capturing the dacoits cannot be given a clean chit. However, both the dacoits re ceived grievous injuries during the process of taking into custody as a result o f which one of them Jabed Ali succumbed to injuries at the Hospital. With this I conclude my report. 14. From the above findings of the Inquiry Officer it would appear t o us that the Inquiry Officer did not rule out police atrocities and beating aft er arrest of Jabed Ali (since deceased) and Tamzid Ali and for that he (the I.O) has not given of a clean chit to the police party involved in the arrest of Jab ed Ali (since deceased) and Tamzid Ali. From the findings it would appear that t he Inquiry Officer inquiring into the cause of death of Jabed Ali did not absolv e the police personnel responsible for arrest of Jabed Ali and Tamzid Ali, who r eceived injuries on their person. 15. In our considered view the findings of the Inquiry Officer is no t liable to be thrown out since his findings are based on both oral and document ary evidence. Further respondent authorities did not deny apprehension of Jabed Ali (since deceased) and Tamzid Ali from the village Gariapara and also receipt of injuries on their person and their admission in the Mangaldoi Civil Hospital. The respondents are also not denying the arrest of Jabed Ali (since deceased) a nd Tamzid Ali in connection with Mangaldoi P.S Case No. 54 of 1998 and visit of the police party under the leadership of S.I Abdul Jalil to Gariapara on the bas is of G.D.Entry No. 306 dated 13-7-1999, G.D Entry No. 307 Dated 13-7-1999, G.D Entry No. 309 dated 13-7-1999 and lodgment of an FIR by S. I Abdul Jalil on the basis of the G. D Entry No. 306 of 13-7-1999. Therefore, apprehension of Jabed A li (since deceased) and Tamzid Ali appears to be an admitted fact. Sustention of injuries by both Jabeb Ali and Tamzid Ali and their admission in the Hospital a lso appear to be admitted facts. The Inquiry Officer recorded his findings on th e basis of the oral evidence and documentary evidence as well of either party th at the police beating after their apprehension cannot be ruled out and for that no clean chit can be recorded in their favour. 16. Taking all the facts and circumstances of the case appearing in the face of the record and the findings of the Inquiry Officer, who conducted th e inquiry as to the cause of death of Jabed Ali, we are of the considered view t hat the respondents herein are required to be saddled with compensation. Accordi ngly we consider it appropriate to order payment of compensation amounting to Rs . 1,50,000/- (rupees one lakh fifty thousands) which would