Mahmud Ali vs Union of India (UOI) and Others

A.K. Patnaik, J.—This writ petition was initially filed as Habeas Corpus petition. The Petitioner''s case in this writ petition is that his cousin Md. Nazml Islam @ Mantu Das son of Md. Samnur Ali was picked up by the Army Personnel of Madras Field Regiment of Majbat Camp on 5.8.98 from the house of Sri Akshay Kalita of Orang market by the side of the Orang Tea Estate. The Petitioner''s further case is that Md. Nazrul Islam @ Mantu Das was neither handed over to the police nor produced before the Magistrate.

An affidavit-in-opposition was filed by one Sri Pushpendra working in Army as Captain on behalf of the Respondent Nos. 2 and 3 denying that Md. Nazrul Islam @ Mantu Das was picked up by the Army Personnel from the house of Sri Akshay Kalita. It was, however, stated in the said affidavit-in-opposition that on 5.8.98 at about 20.30 hours an Army petrol went to a meeting place if MULTA, a Muslim militant organization in village Goriapathar but found that the meeting was by then over. Two persons, namely Md. Nazrul Islam and Sri Babul Hoque were apprehended and arms and ammunitions were recovered from them and they confessed that they belong to MULTA and both these persons were handed over to the Dhekiajuli Police Station on 6.8.98 at about 17.30 hours. An affidavit-in-opposition has also been filed by the DSP, Headquarter, Darrang, on behalf of the Respondent No. 6 stating therein that the Army Units operating at Udalguri and Majbat were contacted but they have denied picking up of any person in the name of Md. Nazrul Islam @ Mantu Das but the statements of witnesses recorded revealed that the Army Personnel picked up Md. Nazrul Islam @ Mantu Das from the house of Sri Akshay Kalita on 5.8.98. It was further stated therein that Md. Nazrul Islam @ Mantu Das was not handed over to the police by the Army Personnel. But on the night of 5.8.98 an ambush was led by the Army party of 6th Kumaon Regiment at Blchar Chuburi under Harisinga Out Post in which there was exchange of fire between the Army and some extremists and on physical checking a dead body of unidentified militant was found lying on the ground. It was further stated in the said affidavit-in-opposition of the DSP, Head quarter Darrang, that the photograph and finger print of the dead body was taken and thereafter the dead body was cremated. On 15.8.98 one Md. Amir Hussain, Subject teacher of Duni H.S. School was shown the photograph and he identified the same as that of Md. Nazrul Islam @ Mantu Das and that Md. Nazrul Islam @ Mantu Das was the Organizing Secretary of Satpukhuri Sakha of ULFA. On 14.12.98, the court took the view that it was necessary to determine as to whether the detenu was killed in an encounte or had died under the Army custody after he was picked up and such finding can be recorded after the parties led their evidence and accordingly, appointed the learned District &Sessions Judge, Darrang, Mongaldoi, as Inquiry Officer, to conduct an enquiry and submit a report and directed the parties to appear before the learned District & Sessions Judge, Darrang, Mongaldoi, through their counsel. Thereafter, the learned District & Sessions Judge, Darrang, Mongaldoi, conducted the enquiry and submitted his report on 20.2.2001. A reading of the report submitted by the learned District & Sessions Judge, Darrang, Mongaldoi, shows that 7 witnesses were examined on behalf of the Petitioner and one witness on behalf of the Army. The learned District & Sessions Judge, Darrang, Mongaldoi, after discussing the said evidence adduced on behalf of the parties has disbelieved the case of the Army that Md. Nazrul Islam @ Mantu Das was killed in an encounter and has instead believed the version of the Petitioner that Md. Nazrul Islam @ Mantu Das was picked up by the Army on 5.8.98 from the residence of Sri Akshay Kalita of Orang and he was killed while he was in Army custody..

Mr. Konwar, learned Counsel for the Petitioner, submitted that a reading of the enquiry report would show that the District & Sessions Judge, Darrang, Mongaldoi, has considered at length the evidence adduced before him and on the basis of such evidence has come to a definite conclusion that Md. Nazrul Islam @ Mantu Das was picked up by the Army on 5.8.98 from the house of Sri Akshay Kalita of Orang and was killed while he was in Army custody. According to Mr. Konwar, therefore, this was a fit case in which court should direct the Respondent Nos. 1 and 2 to pay compensation to the parents of Md. Nazrul Islam @ Mantu Das and some costs to the Petitioner. He has filed an affidavit on 30.8.2001 on behalf of Md. Samnur Ali, father of Md. Nazrul Islam @ Mantu Das which indicated that the father of Md. Nazrul Islam @ Mantu Das was aged of 60 years and the mother of Md. Nazrul Islam @ Mantu Das aged 52 years and the source of income of the family is only cultivation and after the death of Md. Nazrul Islam @ Mantu Das the family is facing immense hardship. He cited several decisions of the Supreme Court wherein compensation has been awarded to the family of a person who has been killed in custody by the army or the police.

Mr. D. Sur, CGSC, on the other hand, relied on the additional affidavit-in-opposition filed on behalf of the Respondents, disputing the findings of the learned District & Sessions Judge, Darrang, Mongaldoi, in the enquiry report on various grounds. He argued that the court should not accept the enquiry report submitted by the District & Sessions Judge, Darrang, Mongaldoi, and should reject the prayer for compensation to the father and the mother of Md. Nazrul Islam @ Mantu Das.

We have perused the enquiry report and we find that seven witnesses on behalf of the Petitioner and one witness on behalf of the Army were examined before the learned District & Sessions Judge, Darrang, Mongaldoi, and after considering their evidence the learned District & Sessions Judge has come to the finding that Md. Nazrul Islam @ Mantu Das was picked up by the Army on 5.8.98 from the residence of Sri Akshay Kalita of Orang and was killed while he was in their custody. PW 5 who was incharge of Harisinga out post has deposed before the learned District & Sessions Judge that on 6.8.98 the Army handed over a dead body of a person with a report that the same was a dead body of ULFA member killed in an encounter with the Army and the dead body was buried by the side of morgue of Mongaldoi Civil hospital. But on 23.9.98, the dead body was exhumated and identified as that of Md. Nazrul Islam @ Mantu Das'' by his family members. The learned District & Sessions Judge has also held that the only witness on behalf of the Army was also not a member of the patrolling part and he has not deposed from his personal knowledge. On the other hand, the witnesses produced on behalf of the Petitioner had all stated before learned District & Sessions Judge and even Shri Akshay Kalita had earlier given statement before the police, marked as Ext. Ka, Kha 1, Ka 2 and Ka 3 that Md. Nazrul Islam @ Mantu Das was picked up by the Army on 5.8.98. We therefore, accept the enquiry report of the learned District & Sessions Judge, Darrang. Mongaldoi, that Md. Nazrul Islam @ Mantu Das was picked up by the Army on 5.8.98 and killed in their custody.

In Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, cited by Mr. Konwar the facts were that Suman Behera was taken from his house in police custody on 1.12.87 in connection with the investigation of an offence of theft and detained in Jeraikela Police Out Post and about 2 PM of the next day his dead body was found in railway track near a bridge at some distance from the Jeraikela railway station. The learned District Judge, Sundargarh, was directed by the Supreme Court to hold an enquiry into the cause of his death and the learned District Judge, Sundargarh submitted his report stating therein that Suman had died on account of multiple injuries while he was in police custody when he was in Jeraikela Police Out Post. The Supreme Court accepted the said report and ordered for payment of compensation of Rs. 1,50,000.00 to the Petitioner, mother of late Suman Behera for violation of the fundamental right to life under Article 21 of the Constitution. In addition, the Supreme Court also awarded costs of Rs. 10,000.00 to the Supreme Court Legal Aid Committee.

In Peoples People''s Union for Civil Liberties Vs. Union of India and another, cited by Mr. Konwar, the Petitioner Union alleged that on the night of 3.4.91 certain villagers were caught by police and taken away in a truck to a distant place and two of them were killed there. An affidavit-in-opposition was filed by the Joint Secretary (Home) to the Government of Manipur denying the said allegations stating therein that there was a genuine cross firing between the police and the activists of Hmar Peoples Convention during which the said two deaths took place. The Supreme Court passed order on 30.5.95 directing the learned District and Sessions Judge, Churachandpur, to hold an enquiry as to what exactly happened on that day and submit a report. Subsequently, the enquiry was entrusted to the learned District & Sessions Judge, Manipur (West),who submitted his report on 8.4.96 to the effect that there was no encounter on the night between 3.4.91 and 4.4.91 at the village and that the two deceased were shot dead by the police while they were in custody on 4.4.91. The finding recorded by the District & Sessions Judge was accepted by the Supreme Court. Following its earlier decision in the case of Smt. Nilabati Behera alias Lalita Behera v. State of Orissa (supra), the Supreme Court awarded Rs. 1,00,000.00 to the families of each of the two deceased and also awarded a cost of Rs. 10,000.00 to the Peoples'' Union for Civil Liberties which had filed the writ petition and further directed that the said compensation and cost will be paid by the State of Manipur.

In Smt. Postsangbam Ningol Thokchom and another Vs. General Officer Commanding and others, three boys were picked up by the Army at Imphal on 23.9.80 one of them was released but two of the boys were not. The mothers of the two boys filed Habeas Corpus writ petition before the Court on 9.4.81 which was dismissed by a learned Single Judge of the Court on the strength of averments made by the Respondents that the said boys had left their custody. Appeals were filed before the Division Bench of this Court which were also dismissed in view of the said averments made by the Respondents. Special Leave to Appeal against the order of the Division Bench were filed before the Supreme Court and the Respondents reiterated before the Supreme Court that the two boys were released after interrogation. On 24.4.90, the Supreme Court directed the learned District & Sessions Judge, Imphal, to conduct an enquiry into the circumstances which led to the disappearance of these two boys. The learned District & Sessions Judge submitted a report holding that there was no cogent evidence to show that the two boys had been released from the custody of the Respondents. Following its earlier decision in Smt. Nilabati Behera v. State of Orissa (supra), the Supreme Court awarded compensation of Rs. 1,25,000.00 to the mothers of the two boys and in addition cost of Rs. 7,500.00 to each of the said two Appellants.

The present case is similar to the cases of Smt. Nilabati Behera v. State of Orissa (supra), People''s Union for Civil Liberties v. Union of India (supra) and Postsangbam Ningol Thokchom (Smt.) and Anr. v. General Officer Commanding and Ors. (supra). In this case also there is a clear finding of the learned District & Sessions Judge. Darrang, Mongaldoi, in his enquiry report that Md. Nazrul Islam @ Mantu Das was picked up by the Army on 5.8.98 and thereafter killed while he was in their custody. We, therefore, direct that the Respondent Nos. 1 and 2 will pay compensation of Rs. 1,50,000.00 for violation of fundamental right to life guaranteed under Article 21 of the Constitution of India. The said amount of Rs. 1,50,000.00 will be paid to Md. Samnur Ali, the father of Md. Nazrul Islam @ Mantu Das through the Deputy Commissioner, Darrang, Mongaldoi on proper identification. In addition, the Respondent Nos. 1 and 2 will pay Rs. 10,000.00 to the writ Petitioner Md. Mahmud Ali through the Deputy Commissioner, Darrang, Mongaldoi, on proper identification for the cost of this writ petition as well as the cost of enquiry before the District & Sessions Judge, Darrang, Mongaldoi.

With the aforesaid directions, the writ petition is disposed of.