Amitabh Kalita vs Union of India (UOI) and Others

V.D. Gyani, J.—This is a petition for issuance of a Writ of Habeas Corpus, Heard learned Counsel for the Petitioner as well as the learned Additional Advocate General appearing for the Respondent-State and the learned standing counsel for the Union of India.

An enquiry was directed to be held by the Sub-Divisional Officer (Civil) vide order dated 30.7.97. The report was directed to be submitted by 27th October, 1997, however, it has been submitted on 25th November, 1997 and the same is available on record. Learned Standing Counsel for the Union of India has made a grievance that the copy of the report have not been supplied, the same be supplied by the Registry to the learned Counsel for the parties. But this non-supply of report is hardly a ground for postponing further hearing of this petition. The Union of India was very much a party and going through the report it is evident that the Army personnel despite notice simply refused to participate in the enquiry and now a grievance is made about non-supply of the report. It is only with a view to obviate any difficulty that the report is directed to be supplied.

The facts as revealed from the report and the allegations made in the petition are, to say the least, simply shocking. A young boy, aged about 27 years, is said to have been picked up by the Army personnel, and as per report submitted by the S.D.O.(C) the fact is established except the identity of the boy who was picked up by the Army personnel.

The Respondents are directed to produce the boy, who was picked up on 8.6.97 from village Sialmari under Tihu P.S. before this Court on 9th March, 1998 irrespective of the question of his identity and in order to facilitate the identification of the boy so picked up, the Petitioner and his mother are directed to remain present-in-person and the Respondent-State is directed to afford all reasonable facilities for their safe arrival to the Court providing them with police protection.

learned Counsel for the Petitioner has brought to our notice some other developments which in the meanwhile have taken place. According to him the army authorities are dissuading the Petitioner from pursuing the relief that he is seeking in this petition. They invariably at odd hours visit the Petitioner''s house and intimidate the widow mother and her daughter. If that be true, the army authorities are exposing themselves to further proceedings for contempt But at this stage, we are not passing any order till actually the army officer concerned. Officer-in-Command, 5 Dogra Regiment, Temporary Camp at Tihu and Officer-in-Command, Army Camp at Rangiya, appear. But their non-participation before the Inquiry Officer, which is just an off-shoot of this proceeding, is itself disobedience of the Court''s direction and they are called upon to show cause as to why contempt proceedings should not be initiated against them.

It is by now more than eight months that the boy was captured by the army on 8.6.97 and still has not been produced before this Court or any other Magistrate, nor handed over to police, as contemplated by Section 5 of the Armed Forbes Special Powers Act.

While this petition is going on ever since it was filed on 10th July, 1997, the widowed mother, brother and sister are anxiously waiting to see the face of the boy. It is established on enquiry that a boy had in fact been picked up by the army although his identity is in dispute. The Respondents are directed to produce the boy who was so picked up on 8.6.97 from village Sialmari under Tihu P.S. before this Court on 9th march, 1998.

In the meanwhile, it is further directed that the Union of India shall deposit Rs. 1 (one) lack in a Nationalised Bank having its branch at Tezpur in the name of Union of India for a fixed term of 37 months, the interests accrued thereon shall be payable to the Petitioner''s mother Smt. Niroda Kalita, wife of Late Debodhar Kalita. The amount must be deposited by 9th of March, 1998. This is an interim arrangement until further orders. The amount paid or recovered by the Petitioner''s mother shall be adjustable towards the amount of compensation that may ultimately be determined by this Court. The Union of India is also at liberty to recover any such amount as may be determined and decided to be paid by way of compensation to the Petitioner, from the salary of the erring officer who may ultimately be held responsible. Registry is directed to supply copies of this order to the learned Counsel for the parties free of costs by today.