WP(C) 3233/1999 BEFORE THE HON’BLE MR JUSTICE D. BISWAS, CHIEF JUSTICE (ACTING) THE HON’BLE MR. JUSTICE HRISHIKESH ROY IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Aru nachal Pradesh ) WRIT PETITION (C) NO.3233 OF 1999 Srimati Puspa Debnath Wife of Sri Kumud Chandra Debnath Village - Jalukbari, P.O. Jalukbari, P.s. Khairabari, Dist. Darrang, Assam. & & & PETITIONER -Versus- 1. The Union of India, Represented by the Secretary, Home Affairs, New Delhi, 2. G.O.C., IV Core, Tezpur. 3. The Officer In Charge, Goreswar Army Camp, P.O. Goreswar, P.S. Goreswar, District - Kamrup. 4. The State of Assam, Represented by its Secretary, Home Department, Dispur, Guwahati - 6. 5. District Magistrate, Kamrup at Guwahati. 6. The District Magistrate, Darrang at Mangaldoi. 7. The Officer In Charge, Goreswar Police Station, P.O. Goreswar, P.S. Goreswar. 8. The Officer In Charge, Khairabari Police Station, P.O. Khairabari, Darrang. & & &RESPONDENTS P R E S E N T HON’BLE MR. JUSTICE D. BISWAS, CHIEF JUSTICE (ACTING) THE HON’BLE MR. JUSTICE HRISHIKESH ROY For the Petitioner : Mr. S. Chouhan, Mr. A. Roy, Advocates. For the respondents : Mr. D.C. Chakraborty, Central Govt. Counsel. Ms. B. Goyal, Govt. Advocate, Assam. Date of hearing : 19.01.2007 Date of Judgment and : 19.01.2007 Order JUDGMENT AND ORDER (Oral) By D.Biswas, CJ (Actg.) Heard Mr. S. Chouhan, learned counsel for the petitioner and als o heard Mr. D.C. Chakraborty, learned Central Government Counsel and Ms. B. Goya l, learned Government Advocate, Assam. 2. This application under Article 226 of the Constitution has been filed for appropriate directions for investigation and payment of compensation f or alleged custodial death of Kajal Debnath, son of the petitioner. The petition er’s case is that on 12.8.1998 while they were sleeping after taking meal at 7.3 0 P.M., 5/6 Army personnel came to their house and enquired about young boys. Th ey directed the petitioner to call her sons. Accordingly, petitioner’s two sons, namely Ujjal Debnath and Kajal Debnath came out. Immediately, the Army personne l took away Kajal Debnath. Around 9.30 P.M., a gun shot was heard from a distanc e of about 1 K.M. from their house. The petitioner could not conceive that her s on Kajal was killed by the Army. The dead body of Kajal was handed over to Gores war Police Station on 13.8.1998 at 2.P.M. The Officer-in-Charge of the police st ation informed Shri Kamal Rajbanshi, Gaonborah of Jalukbari village about the de ath of Kajal Debnath. The police held inquest on the dead body on 14.8.1998 and, the dead body was handed over to the family members on 15.8.1998 at 2 P.M. On t his background, the writ petition has been filed for ordering enquiry to identif y the guilty persons and for payment of compensation. 3. The respondents in their affidavit gave a different version of t he occurrence. According to them, on receipt of specific information on 12th Aug ust, 1998 about the presence of seven armed BTF militants in village Singimari, who had confined Mr. Parshuram Pandiya, the manager of Krishna Tea Estate as hos tage, they arrived in the village by 6.30 P.M. to apprehend the militants and to secure release of the captive Mr. P.R. Pandiya. On further information from loc al sources on the subject, the Army raided two isolated houses on the outskirts of the village Kawaimari at 9.30 P.M. The Army noticed one individual coming out from one of the house. At the site of the Army, the said individual fled toward s the back side of the house. The Army also chased the individual covering a dis tance of approximately 20 metres. The said individual suddenly turned around and aimed a pistol towards the chasing party and attempted to open fire. The Army i n retaliation and in self defence killed the militant. One .303 sophisticated pi stol with one live round in the pistol and three live rounds in the clip were re covered from the militant. The militant was identified as Kajal Debnath of Villa ge Jalukbari, District - Darrang, Assam. According to the respondents, Kajal Deb nath was guarding Mr. Pandiya, the Manager of Krishna Tea Estate who after being abducted was being held captive for ransom. 4. In view of the conflicting pleas advanced on behalf of the parti es, this Court by the order dated 23.2.2005 directed the Additional District & S essions Judge, Darrang to make an enquiry with regard to the circumstances leadi ng to the death of Kajal Debnath and to submit his report within a period of fou r months. 5. The learned Additional Sessions Judge, in compliance with the di rection given by this Court, held enquiry after notice to the parties concerned. During the course of enquiry, the learned Judge recorded the statements of witn esses produced by both the sides and submitted a report dated 8.9.2006 to this C ourt for appropriate orders. It may be mentioned here that no objection has been filed on the findings of the aforesaid enquiry report by either of the parties. 6. The report submitted after exhaustive discussion of the evidence of the witnesses and other materials collected during the course of enquiry, re corded the following findings :- (i) Thus, it is clearly proved that on 12.0898 at about 9.30 P.M., while Ka jal Debnath was guarding the kidnapped manager of Krishna Sushibini Tea Estate - Mr. P.R. Pandia in a house at village Kawaimari under Khairabari P.S., where h e was kept as pawn for ransom by the Bengal Tiger Force activists after kidnappi ng him from his garden, the army of 13 JAKLI Army Camp at Goreswar consisting of Opp. Party witness No.1 - Lt. Col. P.K. Mishra (the then Major) and his rifle m en and Havildars, raided the said house and then Kajal Debnath was running away looking the army there and then a firing took place and Kajal Debnath got killed in the firing, and one .303 hand made pistol and four live cartridges were reco vered from him. . (ii) Secondly, from the circumstances of this case and the evidence of opp. Party witness No.2, it is clearly proved that Kajal Debnath was a member of Beng al Tiger Force terrorist, who kidnapped him from his garden and kept him in thei r custody for ransom. (iii) Concluding above discussion, I hold that Kajal Debnath was a member of Bengal Tiger Force terrorist in the year 1998, and on 12.8.98 at about 9.30 p.m. the army personnel of 13 JAKLI Army Camp, Goreswar raided a house at village Ka waimari under Khairabari P.S. in search of kidnapped manager of Krishna Sushibin i Tea Estate, Mr. P. R. Pandia and in that house Bengal Tiger Force activists ke pt the said manager as pawn for ransom and Kajal Debnath was guarding Mr. R.P. P andia at that time, and looking the army party he started to run away towards So uth and the army personnel killed him by firing on him. . 7. The learned Additional Sessions Judge, as it appears from the re port, did not find enough evidence to justify the case of the Army that there wa s an encounter. But, he has recorded his satisfaction from the evidence made ava ilable by the parties that Kajal Debnath was a member of a militant group and, a t the time of his death, he was guarding the kidnapped Manager of Krishna Tea Es tate. At the sight of the Army approaching the house, he attempted to flee and w as shot dead by the Army. The report also shows that there is no evidence to sho w that Kajal Debnath had fired at the Army from the pistol in his possession. De spite this deficiency in the report, we are satisfied with the positive findings recorded by the learned Additional Sessions Judge that the deceased Kajal Debna th belongs to a terrorist group and was engaged in guarding the kidnapped Manage r. We are also satisfied with the report to the effect that Kajal Debnath starte d running away from the place as soon as he saw the Army approaching towards the house and, to prevent him, the Army had to open fire resulting in his death. 8. Mr. Chouhan, learned counsel for the petitioner placed before th is Court for consideration a decision of the Apex Court in Malkit Singh, Petitio ner -Vs.- State of U.P., Respondents, reported in AIR 1999 SC 1522 and argued th at the ratio available in the aforesaid decision may also be followed in the ins tant case in awarding compensation. 9. The factual matrix of the case cited by the learned counsel has a marked difference with the facts of the case at hand. In the case before the H on’ble Supreme Court, the deceased was taken into custody by the police while he was travelling in a bus. What happened thereafter, and the manner in which the encounter took place, could not be explained by the police or by the investigati ng agency or by the Additional Chief Judicial Magistrate who had conducted the e nquiry. In that context, the Hon’ble Supreme Court directed payment of compensat ion, particularly because of the fact that the deceased was in the custody of th e police. The situation here is completely different as has been found in the en quiry report dated 8.9.2006. In our considered opinion, the judgment relied upon by the learned counsel is of no assistance in the instant case. 10. In the result, we find no merit in this Writ Petition and the sa me is dismissed. No costs. JUDGE CHIEF JUSTICE (ACTING) ISINGH