Thokchom Ongbi Manitombi Devi vs State Of Manipur And Others

R.S., CJ

[1] Heard Mr. L.Somorendro Roy, learned counsel for the petitioner and Mr.R.K.Umakanta, learned Govt. Advocate for the State respondents and Mr. S.Samarjeet, learend CGC for the Union respondents.\

[2] The prayers No.(ii) and (iii) of the writ petition read as follows:-

"ii) to issue a writ in the nature of Mandamus directing the Subordinate Senior Judicial Officer to cause a fact finding inquiry into the matter and direct the respondents to pay adequate compensation to the Petitioner in accordance with the finding of the fact finding enquiry at the rate of Rs. 15, 00, 000/- (Rupees fifteen lakhs) or more as deem just and fit by the Hon'ble Court;

iii) to issue appropriate writ or direction thereby directing calling the entire records of FIR No. 45(6)09 MI P.S. u/s 307/325/34 IPC, 20 UA(P) A. Act & 25 (1-c) A. Act and pass any appropriate order (s) or writ directing any of the Independent Investigating agency like Central Bureau of Investigation (C.B.I.) for effective investigation to take necessary appropriate actions against errant personnel of Commandos and 12 Maratha Light Infantry in killing Thokchom Samarjit Singh."

[3] The petitioner is the mother of the deceased Thokchom Samarjit Singh. It is stated that deceased Thokchom Samarjit Singh was a customary drummer (Pung) and he and one Waikhom Kenedy Singh were close friends. According to the petitioner, deceased Thokchom Samarjit Singh, aged 24 years, was killed by a combined team of Manipur Police Commando and 12 Maratha Light Infantry of Uchiwa Awang Leikai in an encounter. The incident happened in the evening of 20th June, 2009 when both the petitioner's son, Thokchom Samarjit Singh and Waikhom Kenedy Singh proceeded outside as friends. In the affidavit in para Nos. 5, 6 and 7, the petitioner gives certain details with regard to the petitioner's son and his friend being taken in custody by the officials of the respondents department and that they are alleged to have died in the custody of the respondents officials. Some details are given about actual firing and the details of seizure of arms and ammunitions are recorded in para No. 7. In this regard, FIR No.45(6) 09 MI PS u/s 307/325/34 IPC, 20 UA(P) A.Act and 25(1-c) A.Act was registered by Mayang Imphal police station.

[4] On 22.6.2009, post mortem report was conducted over the dead body at RIMS morgue and thereafter, the deceased was cremated at his native village. It is stated that the petitioner made a report to the 5th respondent on 28.7.2009 against the security personnel alleging that they killed the son of the petitioner. On 16.02.2010, it is stated that the petitioner filed an application for Magisterial enquiry. In the result, the relief as above, has been sought for.

[5] In this case, notice was issued on 08.11.2011 and thereafter, petitioner's counsel and respondent's counsel have appeared and taken time. On 17.8.2012, the following order was passed :-

"17.8.2012

On perusal of the pleadings of the petitioner in the writ petition as well as of the respondents in their counter affidavit, there is a serious disputed question of acts as to whether the petitioner's son, namely, Thokchom Samarjit Singh aged 24 years was killed by a combined team of Commandos and 12th Maratha Light Infantry at Uchiwa Awang Leikai in a fake encounter.

Accordingly, learned District Judge, Manipur East is directed to conduct an inquiry and submit the report within a period of 6(six) months i.e. on 18.02.2013.

It is made clear that parties are allowed to submit/produce evidence both oral and documents in support of their respective cases. The parties are to appear before the learned District Judge, Manipur East on 12.9.2012.

Registry shall send photo copies of the writ petition as well as affidavit-in-opposition filed by the respondents to the learned District Judge, Manipur East within 5(five) days."

Thereafter, the matter was adjourned from time to time. Then, in the inquiry recorded before the learned District Judge, Manipur East, it was observed by this Court in its order dated 17.8.2017 which reads as follows:-

"17.08.2017

(Acting CJ)

Heard Mr. L. Somorendro Roy, learned counsel for the petitioner.

When this matter was taken up, it has been found that the learned District Judge, Manipur East closed the enquiry report by an order passed on 28.12.2012 as follows :-

" ORDER

28-12-2012

Both the parties are present by their respective conducting counsel.

Ld. Counsel of the petitioner has submitted that the petitioner is not turn up neither to their chamber nor to the Court inspite of giving repeated informations from their side and prays for passing an appropriate order.

On perusal of the record it is evident that vide order dated 17-08-2012 passed in W.P.(Cril.)No. 115 of 2011 by the Hon'ble Gauhati High Court, Imphal Bench directed this Court to make enquiry and submit the report within a period of 6 months. As per direction this Court conducted the enquiry and issues are framed on 12-11-2012 and fix 28-11-2012 for P.W. hearing.

However, the case has been adjourned for 3 times due to failure of producing P.Ws.

In the result, I am of the opinion that the petitioner is not interested to proceed this enquiry further.

Accordingly, examination of P.W. is closed.

Since the petitioner failed to produce any witness in order to prove her assertion this enquiry Court has nothing to decide.

Hence, this enquiry report is submitted without any finding before the Hon'ble Gauhati High Court, Imphal Bench along with the case record, for doing the needful."

Mr. Somorendro submits that the absence of the petitioner was due to his leave from the State to attend her daughter-in-law's delivery in Tripura because of which the petitioner could not arrange the witnesses which resulted in the closure of the enquiry. Mr. Somorendro submits that if another opportunity is granted to adduce evidence, the petitioner may produce the witnesses in support of her claim.

We are of the view that the petitioner may accordingly approach the Court of the District & Sessions Judge, Imphal West under whose jurisdiction, the enquiry can be proceeded. Accordingly, let the petitioner may file an application before this Court before deciding the next course of action by this Court. He may do so within 2 (two) weeks as prayed.

List the matter after 2 (two) weeks on 05.09.2017."

[6] The same was reiterated in the subsequent order dated 09.9.2019 as follows:-

"R.S., CJ.

In so far as the prayer No.ii is concerned, the report of the learned District Judge, Imphal West dated 01.7.2019 records as follows:-

"7. The parties are also allowed to submit/produce evidence both oral and documents in support of their respective cases. The parties are also directed to appear before the leaned District Judge, Manipur East on 12.09.2012.

8 After appearing by the parties, the then District Judge, Manipur East formulated the following issues on 12-11-2012.

Whether the son of the petitioners, namely, Thokchom Samarjit Singh was killed on 20-06-2009 at Uchiwa Awang Leikai by the combine team of Commando and 12 Maratha Light Infantry in a fake encounter or not?

What are the facts and circumstances leading to the death of Thokchom Samarjit Singh on 20th June, 2009 at Uchiwa Awang Leikai?

However, as the petitioner did not produce any witness, this Court closed PW hearing and submitted a Report to the Hon'ble High Court Court vide order dated 28-12-2012.

However, on 24-01-2019, this Court again took up the case vide order of the Hon'ble High Court to continue the inquiry.

Now, in spite of affording opportunities to the petitioner, she did not produce any witness. On 28-06-2019, the Ld Counsel of the petitioner submitted that the petitioner has not co-operated with her Counsels regarding the production of witnesses and thus prayed to close P.W hearing. Hence, PW hearing has been closed.

As no evidence is produced, this Court is unable to decide anything and as such this Report is submitted without any finding."

Therefore, no relief can be granted. In so far as prayer No.ii is concerned, Mr.Shyam Sharma, learned Government Advocate seeks some time to give latest status report of the FIR pending in the Wangoi Police Station.

Report to be submitted on 17.9.2019."

[7] As per direction passed by the order dated 9.9.2019, today, Mr.R.K.Umakanta, learned Government Advocate produces a detailed status report dated 15.9.2019. In that, it is recorded as follows:-

"During the further course of investigation, from the reliable source report, it is revealed that the two deceased persons were the active cadres of KYKL outfit. Moreover, the family members of late W. Kenedy Singh had nexus with KYKL outfit since 2003. On 09/03/2003, his father W. Dhiren Singh and his mother W. (O) Mohini Devi were arrested by team of CDO-Thoubal for being sympathizer of KYKL outfit and forgiving shelter to the member of outfit who were involved in the killing of one Tarpon of Thoubal Wangmataba Mathak Leikai (Ref. FIR No. 53(6)2003 YPK-PS U/S 365/302/34 IPC & 25(1-C)A.Act. Investigation further revealed that late W. Kenedy Singh was involved as prime accused in an assault case of Lamphel-PS (Ref. FIR No. 146(11)2008 IPS U/S 353/325/34 IPC). Further reveals that the deceased person Kenedy had nexus with one Shri. Ingo Singh@ Hingchaba (32) of KYKL before his expiry in an encounter with CDO, Thoubal Ref. FIR No. 76(9)09 LPS U/S 121/121-A/307/34 IPC, 25(1-B)A.Act, 13 UA(P)Act & 5 Expl. Subs. Act. The seized Bolero and gold rings were released on Zima by the order being passed by Hon'ble JMFC/IW on 21/07/2009 to Waikhom Dhiren Singh F/o. (L) W. Kenedy Singh. The exhibits were sent to FSL, Pangei for expert opinion 616/MIPS/2017 Dtd. 16/09/2017 and result awaiting.

Further investigation of the case is in progress and hectic efforts have been made in order to collect more evidence against the two deceased persons for their nexus with the KYKL organization and their activities during their lifetime also to ascertain the identities of the escaped co-accused for causing their arrest."

[8] Having perused the detailed report dated 16.9.2019, we are convinced that the police authorities are proceeding with all sincerity to pursue the case but having encountered difficulty from various underground group while taking up investigation, the reason for delay in completing the investigation is accepted. We, however, impress upon the police authorities and the Superintendent of Police, Imphal West District to monitor the progress of the investigation and complete the same at an early date.

In the circumstances, the relief of directing an Independent Investigating agency like Central Bureau of Investigation to investigate the matter does not arise. In so far as the relief for enquiry by a judicial officer and compensation, we have already observed the non-cooperation of the petitioner. Therefore, the relief is declined. The relief sought for cannot be granted unless and until there is some material to show that the petitioner's son was killed by the security personnel. A mere statement in affidavit without any proof will not siffice. The two reliefs are declined.

[9] The writ petition stands disposed of as above.