Point of Law : Court in exercise of extraordinary power under Articles 226 and 32 of the Constitution, therefore, would not award damages against public authorities merely because they have made some order which turns out to be ultra vires, or there has been some inaction in the performance of the duties unless there is malice or conscious abuse.

JUDGEMENT :

N. Kotiswar Singh, J.

Heard Mr. D.C.K. Hazarika, learned counsel for the petitioners. Also heard Mr. R.K.D. Choudhury, learned ASGI for respondent Nos.1 & 2 and Mr. R.K. Bora, learned counsel appearing for respondent Nos.3, 4 and 5.

2. The present petition has been filed by 2(two) petitioners, namely, Sri Konto Warisa and Sri Golom Nunisa who alleged that their sons, namely, Poresh Warisa and Sujit Nunisa, aged about 23 years, residents of Wari Lamphu village were picked up by the personnel of 12th Battalion Madras Regiment on 14.07.2009 from the said village and subsequently, were shot dead and the dead bodies brought to the Haflong Police Station on 19.07.2009.

The said Poresh Warisa has been also referred to as Pirush Warisa, and sometimes as Pirosh Warisa and Phirosh Warisa in the pleadings.

3. It was submitted that in connection with the said incident, an F.I.R. was lodged with the Dehangi Police Station by one Dimanon Kemprai. On receipt of the F.I.R., Dehangi P.S. Case No. 05/2009 dated 20.07.2009 was registered under Section 302 IPC corresponding to G.R. Case No.177/2009 against the personnel of the 12th Battalion Madras Regiment, Camp at Kobak Post. However, since no progress was made for bringing the persons responsible for custodial death of the aforesaid two persons, namely, (i) Poresh Warisa and (ii) Sujit Nunisa to book, the present petition has been filed seeking for a direction for holding a judicial inquiry into the killing of the aforesaid 2(two) persons and to take appropriate action against the army personnel in accordance with law and also to award adequate monetary compensation to the tune of Rs.20,00,000/-(Rupees twenty lakhs) only each to the petitioners, as follows:

“It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to admit this petition and consider the above materials facts, call for the records, after hearing the parties be pleased to issue rule upon the Respondents to show cause as to why a Writ of Mandamus, directing the Respondents, particularly, the Respondent No.3 to initiate independent judicial enquiry into the killing of detenues namely, (i) Poresh Warisa, aged about 23 years, son of Sri Konto Warisa (Petitioner No.1) and (ii) Sujit Nunisa, aged about 23 years, son of Sri Golom Nunisa (Petitioner No.2) in the custody of the 12th Madras Regiment, C/o. 99 APO, Haflong (Respondent No.2) during 14.07.2009 to 19.07.2009 for which Dehangi PS Case No. 05/09 dated 20.07.2009 U/S 302 IPC corresponding GR No. 177/2009 was registered and to take appropriate actions against the Army personnel/perpetrators in accordance with law and be pleased to declare failure on the part of the Respondents to protect and safeguard the life of the son of the Petitioners and such killings by the Respondent No.2 is illegal and unconstitutional and further direct the Respondent No.1 and 2 to award suitable/adequate monetary compensation to the tune of Rs.20,00,000/-(Rupees twenty lakhs) each to the Writ Petitioners and further pass such order/orders as your Lordships may deem fit and proper for the ends of justice.”

4. According to the petitioners, from the nature of the injuries as indicated in the post mortem reports, it was very clear that the said two persons received bullet injuries which were ante-mortem in nature and death was caused due to shock and haemorrhage. It has been alleged that post-mortem reports indicate numerous marks of torture and accordingly, it was contended that the aforesaid two persons had been victims of torture and fake encounter and accordingly, the persons responsible for the death were liable for appropriate action under law and also for payment of compensation to the petitioners as mentioned above.

5. This petition has been contested mainly by the respondents No. 1 and 2 by filing their affidavit-in-opposition in which it was alleged that two persons were killed in an encounter when they hurled grenade and started firing indiscriminately to t