The central legal point established in the judgment is the responsibility of the Indian Army in the custodial death of an individual, leading to the violation of Article 21 of the Constitution of India and the need for a CBI investigation under Section 302 of the IPC.

JUDGMENT :

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 9.6.2006 passed by the Gauhati High Court in Writ Petition (C) No. 9709/2003, by which the High Court has directed for CBI investigation with respect to the death of one Someswar Gayari alias Sombrom, as also, dismissal of review petition vide order dated 5.12.2008, the original respondents-Union of India and others have preferred the present appeals, by way of special leave petitions.

2. That the respondent herein-Smt. Junu Gayary, a young widow of deceased Someswar Gayari alias Sombrom filed a writ petition before the High Court under Article 226 of the Constitution of India for an appropriate writ, directions or order against the appellants herein-the original respondents directing them to institute a judicial enquiry into the cause and the persons responsible for the death of her husband-Someswar Gayari alias Sombrom. Further directions were also sought for compensation of rupees six lakhs to her and her family for their survival.

2.1 It was the case on behalf of the original writ petitioner that when her deceased husband was at his relative’s house at village Koilamaila under Bijni Police Station, he was taken away to Bhabanipur Army Camp by the personnel of 8th Madras Military Regiment at about 3:00 a.m. on 26.08.2003 and thereafter his whereabouts were not known until she was informed by the Officer Incharge of Amguri Police Outpost informing her that her husband had died on 30.08.2003 in an encounter with army near Bhabanhipurgaon.

2.2 The writ petition was opposed by the appellants herein – the original respondents. The stand taken by the original respondents in their affidavit was that no civilian as such was brought to Bhabanipur Army Camp as claimed by the original writ petitioner. They took the specific stand that the husband of the writ petitioner was killed in an encounter, which took place at about 3:50 hrs on 30.08.2003.

2.3 That vide order dated 4.4.2005, the High Court directed the learned District & Sessions Judge, Bongaigaon to hold an enquiry with regard to the circumstances leading to the disappearance and death of the original writ petitioner’s husband, Someswar Gayari. The High Court directed the learned District & Sessions Judge to submit the report. The High Court also directed the learned District & Sessions Judge to issue appropriate notice to all the parties and provide them an opportunity of hearing in the matter. Thereafter, holding necessary enquiry and giving opportunity to all concerned and after examining the concerned witnesses and on appreciation of the entire material available on record, the learned District & Sessions Judge submitted its report holding that the deceased Someswar Gayari was picked up from the house of Dilbahadur Chetry by army personnel in the night that followed the day of 26.08.2003. The learned District & Sessions Judge also opined that no Assam Police Personnel were involved in the act of picking up of the deceased from the house of Dilbahadur Chetry. The learned District & Sessions Judge further observed that whereabouts of the deceased was not known to the original writ petitioner till she was informed by the Bijni Police Station that the deceased died in an encounter with army. Upon appreciation of both direct and circumstantial evidence, the learned District & Sessions Judge came to the conclusion that the deceased was in the custody of the Indian Army since the time of his picking up by the army till the time of production of the dead body and handing over the same to the police in the police station. The learned District & Sessions Judge specifically observed that the death of the deceased was in the hands of army and an attempt, however, has been made by the army to show the death of the deceased as if in the course of encounter between the army and the deceased.

2.4 That thereafter the High Court gave the opportunity to the appellants herein to file their object