Ab. Rashid Beigh vs State - 2003 Supreme(J&K) 309

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2003 Supreme(J&K) 309

IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Syed Bashir-ud-Din, J.
Ab. Rashid Beigh - Appellant
Versus
State - Respondent
OWP No. 263/2001
Decided On : 09 October, 2003

Advocates Appeared:
Advocate For Appellant: G.A. Lone
Advocate For Respondent: M.A. Rathore

Headnote:Constitution of India — Articles 21 & 226 — Custodial disappearance of son of petitioner — Victim was working as cameraman with University of Kashmir and picked up and taken away by personnel of STF/SOG — Matter investigated by State Human Rights Commission after taking cognizance of complaint given by mother of victim — Commission reached a conclusion that version put forth by writ petitioner was true and did not believe counter version that while in custody there was firing by militants and victim escaped and was not heard — Human Rights Commission recommended Govt. to grant interim relief of Rs. 5 lacs to family of victim and to register a case against police officials besides taking disciplinary proceedings — Non-implementation of recommendation of commission — Writ — Human Rights Commission had meticulously and in detail found basis on facts and law to accept the case as one of custodial dis-appearance — Police version appeared wholly unacceptable — Fundamental rights of citizen have to be guarded by State and any infringement thereof by Public Servant is vicarious liability of State — Writ petition was liable to be allowed.
       Held: The Writ Court on establishment of violation of fundamental rights, apart from calling upon the State Government to take punitive action and disciplinary proceedings against the officers/officials guilty of flagrant violation of fundamental rights, is also under an obligation to give compensation and relief under public law jurisdiction for the wrong done occasioned by breach of public duty by the State Government in failing to protect the fundamental rights of citizen. To repair the wrong done and provide judicial redress for the legal injury in question is a compulsion of judicial con-science apart from one created by the statute. The fundamental rights of the citizen guaranteed under Article 21 of the Constitution have to be jealously guarded by the State and any infringement thereof, by a public servant is vicarious liability of the State. Apart from the question of assessment of compensation, the whole object of awarding the relief/compensation in public law jurisdiction is to repair wrong done or offset in a measure the damages caused by infringement of fundamental rights of a citizen. This should be the reason for the State Legislature to come up with the J and K Protection of Human Rights and to provide a mechanism for protection of human rights and other connected incidental matters thereto. The need and requirement of respecting human dignity and strict observance of human rights is the job of State Human Rights Commission. Protection of rights to life and property is the prime responsibility of the State Government and its officers/officials, which cannot be fettered away and brushed aside on one or the other pretext. (Para 11)
       In the aforesaid view of the matter, the State Government/respondent is directed to register a criminal case against the erring officials as recommended to it by the Human Rights Commission. The investigation shall be entrusted to an officer of the rank of SSP or an officer of the higher rank. The registration of FIR No. 239/97 at P/S Soura and the final report, if any, filed in the Court shall not stand in the way of registration and re-investigation of the above cases shall be by one and the same Investigating Officer. The investigation shall be taken to its logical conclusion and completed as far as possible within a period of four months. (Para 13)
       The disciplinary proceedings against erring officers/police personnel involved in the custodial disappearance of the subject Fayaz Ahmed and responsible for the wrong done shall be simultaneously launched, processed and concluded promptly. (Para 14)
       The interim relief recommended by the Commission shall be paid to the family of the victim Fayaz Ahmed Beigh. The assessment of the relief by the Commission appears reasonable and fair in the totality of facts and circumstances of the case. It is of some interest to note that notwithstanding the stand of the State Government disowning its liability, in para 8(d) of the counter, it is stated “indifference to the Commission’s re-commendations, the State Government has decided to pay Rs. 1.00 lac ex gratia relief for the time being.” It would suffice to convey that Government accepts the liability of compensation but not pre-pared to pay the whole sum of relief as recommended by the Commission. (Para 15)
       Having regard to the facts and circumstances of this case, just and proper quantum of compensation in Public Law Jurisdiction is assessed at Rs 2 lacs for the wrong of custodial disappearance in breach of public duty by the State Government and its police agencies inasmuch as it has failed to protect the fundamental rights of the subject Fayaz Ahmed Beigh, a State subject citizen of India, unless the State Government decides to pay full amount of Rs. 5 lacs as recommended by the Human Rights Commission. (Para 16)
       Result: Petition allowed.

One Fayaz Ahmed Beigh was working as Camera-man with University of Kashmir in its Department of Central Asian Studies. He was taken in custody and whisked away by the personnel of STF/SOG camp Lethpora Awantipora of District Pulwama, from the University campus. The parents and other family members of the boy, on search and enquiries came to know about his arrest by the STF team. They approached STF and SOG officials through S.P., Operations, Awantipora, who after initial hesitancy admitted and acknowledged that said Fayaz Ahmed Beigh was with the STF Lethpora Awantipora. As these efforts brought no result, petitioner, father of the said Fayaz Ahmed Beigh filed a complaint before Human Rights Commission in December, 1997 at a time when his wife Mst. Maryam (mother of Fayaz Ahmed) filed HCP No. 1411/97 in the High Court wherein besides requiring the respondents to show authority and law under which Fayaz Ahmad Beigh was arrested and cause for continued detention of the detenu, prayer for registration of case against culprits regarding disappearance of said Fayaz Ahmed Beigh and quashment of false case registered at P/S Soura by the SOG, is also made. However, this writ petition was withdrawn on 29-4-1998, on the presentation of the petitioner that her husband has approached Human Rights Commission in the matter which has taken cognizance of the case and fairness and propriety require writ petition to be withdrawn.

The Human Rights Commission after taking cognizance of the complaint, during the course of the enquiry summoned officers of STF and SOG personnel and S.P., Operations, Awantipora to associate them with the proceedings and for filing their written version of the events and matter under inquiry. The Commission catalogued points requiring determination and allowed parties full opportunity to produce evidence and to examine and cross examine the witnesses. After a detailed fair transparent enquiry in which parties examined and cross-examined number of witnesses and produced other evidence, Commission came to the conclusion that version put forth by the writ petitioner as above, is true and did not believe the counter version put-forth by the Police and State Government of said Fayaz Ahmed Beigh having escaped en route for recovery of arms and ammunition by the search party at Nowhatta. The Commission held so as under :-

"We therefore, hold in firm words that Fayaz Ahmad Beigh S/o Ab. Rashid Beigh R/o Nowshera, was arrested by Sh. H. R. Parihar, SP, Operations, Awantipora and his subordinates namely Mohd. Amin SOG Lethpora, Rattan Chand Constable No. 602 JKAP and Abdul Rashid Trali, (killed in mine blast Tral), during the pendency of this enquiry. The said team after having taken into custody Fayaz Ahmed Beigh from Kashmir University Campus on 6-9-1997, caused him to disappear by foul play against the norms of law on the subject of arrest. The disappearance of Fayaz Ahmed Beigh by giving it a shape of escaping while in their custody, allegedly during recovery proceedings at Nowshera, due to heavy firing by unknown Militants is a made up, concocted and baseless story put forth by the defence, is far from iota of truth and in our opinion, the said team appear to have been hand in glove to liquidate the person of Fayaz Ahmed Beigh, while in their custody under the drama of arrest on 9-9-1997 and subsequent alleged recovery in the intervening night of 9/10-9-1997. Equally, Abdul Rashid Khan, the then SHO, Soura, at present SDPO, Pattan has fallen in line to commit the crime by giving legal cover to the disappearance of Fayaz Ahmed Beigh and creating false evidence by registering a false case and supporting the same before the Commission."

Having reached the conclusion and returned findings as above, the State Human Rights Commission recommended the Government to grant immediate interim relief of Rs. 5 Lacs to the members of his family and to register a case against the Police officials for investigation besides taking disciplin

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2003 Supreme(J&K) 309

IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMUSyed Bashir-ud-Din, J.Ab. Rashid Beigh - AppellantVersusState - RespondentOWP No. 263/2001Decided On : 09 October, 2003

IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Syed Bashir-ud-Din, J.
Ab. Rashid Beigh - Appellant
Versus
State - Respondent
OWP No. 263/2001
Decided On : 09 October, 2003