(Oral) (Katakey, J.)
This is another instance of an unfortunate death of a young boy, aged about 28 years, because of the torture while in custody of the Indian Army.
2. The undisputed fact, as it appears from the pleadings in the writ petition as well as in the affidavits filed by the Indian Army as well as the State Government, are that the petitioners husband was apprehended by the 94 Field Regiment of Indian Army on 31.05.2004 at about 2300 hours, who was in custody of the Army up to 1745 hours of 01.06.2004.
3. The petitioner alleges that while her husband Biswajit Acharjee was in Army custody, he was tortured, as a result of which received both external and internal injuries, for which after his release, though he was admitted in Lumding Railway Hospital, he eventually died on 02.06.2004. The petitioner has also contended that the Indian Army, by exerting pressure has extracted a writing from Ashok Roy, a relative of Biswajit Acharjee, that he was found to be healthy and not subjected to any torture while in Army custody. The petitioner, therefore, prays for a direction for payment of compensation and also for a job.
4. The writ petition filed by the petitioner has been contested by the Indian Army by filing affidavit-in-opposition by the Lieutenant Colonel of 94 Field Regiment, who having admitted the aforesaid facts as narrated relating to the date and time of apprehension and date and time of release, however, has contended that Biswajit Acharjee was never tortured while in Army Custody, who was examined by a doctor in Hojai Civil Hospital on 01.06.2004 at about 1200 hours and was certified to be both physically and mentally fit and no injury was found. It has also been contended that on 01.06.2004 he was produced before the Hojai Police Station, wherefrom he was released in a good condition and Sri Ashok Roy, a relative of Biswajit Acharjee has also given in writing that his physical condition was good at the time of release. In the said affidavit, though the Lieutenant Colonel has stated relating to holding of a Court of enquiry, result of the same has not been disclosed.
5. The State Government has controverted the statements made by the Indian Army in the affidavit-in-opposition filed. The Superintendent of Police, Nagaon, in his affidavit-in-opposition has clearly stated that it was found during enquiry that Biswajit Acharjee was tortured by the Indian Army while he was in their custody. The Superintendent of Police has also stated that though the Indian Army has stated that Biswajit Acharjee was physically produced before the Lumding Police Station on 01.06.2004 at about 1745 hours, he, however, was not physically produced but was kept inside an army vehicle outside the police station and secured the release order from the police without physically presenting him before the police. In the enquiry conducted by the State it was also found that the doctor in Lumding Civil Hospital has issued the certificate on 01.06.2004 relating to the physical condition of Acharjee without examining him. The State, therefore, has not supported the case of the Indian Army as projected in the affidavit relating to the torture of Sri Acharjee while he was in Army custody.
6. We have heard Mr. N. Bora, learned Central Govt. counsel appearing for the Indian Army and Mr. P.S. Deka, learned counsel appearing for the State of Assam. Unfortunately none has appeared for the petitioner, though the names of the learned counsel appearing for her are reflected in the cause list.
7. It has been contended by the learned Central Govt. counsel that it is evident from the stand taken by the Army in the affidavit-in-opposition filed as well as the documents appended thereto that though the Army apprehended Biswajit Acharjee on 01.06.2004 at about 2300 hours and he was released on 02.06.2004 at about 1745 hours, after his production in Lumding Police Station and at that time he was found to be in good condition. The learned counsel referring to the medical certificate issued by the doctor examining Biswajit Acharjee on 01.06.2004 at about 12 noon has also submitted that the fact that the Army never tortured Biswajit Acharjee while he was in custody, has been supported by such medical certificate certifying that on being examined, he was found to be in good physical and mental condition. The learned Central Govt. counsel, in view of the above, has submitted that the stand taken by the State in the affidavit, cannot be accepted and hence the claim of the petitioner for compensation from the Union of India needs to be rejected.
8. Mr. Sen Deka, the learned counsel appearing for the State, on the other hand, supporting the averments made by the Superintendent of Police in the affidavit-in-opposition filed, has submitted that based on the complaint received, an enquiry was conducted through the Sub-Divisional Police Officer, relating to the torture of Biswajit Acharjee while in Army custody, who has submitted his report on 04.06.2004, wherefrom it appears that Biswajit Acharjee was tortured while he was in Army custody and because of the injuries sustained by him for such torture, he was admitted after his release, in Lumding Railway Hospital, who, however, eventually died on 02.06.2004 at about 5.40 P.M. i.e. the next date of the release from the custody by the Army. It has also been submitted that on enquiry since it was found that the medical certificate was issued by the doctor in Lumding Civil Hospital without conducting any physical examination, no credence could be given to such medical certificate as produced by the Army in support of the claim that Acharjee was not tortured while he was in Army custody. The learned counsel referring to the averments made in the affidavit-in-opposition filed by the Superintendent of Police further submits that Biswajit Acharjee was released on 02.06.2004 at about 1745 hours without his physical production before the Assam Police, as he, at the time of release, was not allowed to come out of the Army vehicle and a writing was obtained from Ashok Roy, a relative of Sri Acharjee, by exerting pressure, that Sri Acharjees physical condition was good at the time of release.
9. We have considered the submissions advanced by the learned counsel for the parties and also perused the pleadings in the writ petition as well as in the affidavits filed by the Army as well as by the Assam Police along with the annexures appended thereto.
10. As noticed above, the fact of detention of Biswajit Acharjee at the dead hours of 01.06.2004 by the Army is not in dispute. It is also not in dispute that he continued to be in the custody of the Army up to 1745 hours of 01.06.2004. Another undisputed fact is that after the release from the custody, through Assam Police, Biswajit Acharjee was admitted in Lumding Railway Hospital, where he eventually died on 02.06.2004. There is hardly any gap between the time of release from the custody and the time of admission in the Lumding Railway Hospital.
11. In the autopsy report dated 03.06.2004 issued by the Medical and Health Officer, the following injuries on the person of Biswajit Acharjee were found. It was also opined that the death was caused due to shock and hemorrhage as a result of the injuries found on the body of the deceased. The injuries were found to be anti mortem in nature.
i) Bruise on left elbow 2â X 2â
ii) Bruise on left thigh 4â X 5â
iii) Bruise on left leg 5â X 3â
iv) Bruise on both buttock (whole)
v) Bruise on back lower part 4â X 8â
vi) Laceration on left fore arm ½â X ½â
vii) Nail of left ring finger dark
viii) Bruise on serotum and panis
ix) Bruise on survical region of neck 3â X 4â
12. The Army in the affidavit-in-opposition, as noticed above, has taken the stand that Biswajit Acharjee was never tortured while he was in Army custody, in support of which the medical certificate dated 01.06.2004 has been annexed, which is reproduced below in its entirety:
MEDICAL CERTIFICATE
1. Shri Biswajit Acharjee S/O Shri Bimalandu Acharjee resident of Vill Karimganj PO Karimganj PS Karimganj The Karimganj Dist Cachar (Assam) and vill: Jhulanpur Road, Lumding, PO: Lumding, Dist.-Nagaon (Assam) apprehended while carrying out searching (Name of operation) and is being handed over to Sh Ashok Roy (Brother-in-Law) (Name of indl):-
| Ser No | Name | Age | Sex | R/O | Identification marks | Identified by | Remarks |
| Biswajig Acharjee | 28 Yrs. | M | As above | One cut mark 1â lateral to Rt eyes | Sub Debendra Deb | No signal Internal or External Injury details |
Date: 01 Jun 2004
Sd/- xxxxxxxx
(Signature of Med Offr)
Copy Received
Sd/- xxxxxxxxx
A Hussain, SS Police
Officer-in-Charge
Lumding PS
Date: 01/6/04 at 7.30 PM
13. It appears from the aforesaid medical report that the doctor attending Biswajit Acharjee has certified him to be mentally and physically sound without making any sort of examination, as nothing has been disclosed as to the examination conducted by the doctor attending him. It is very strange how the doctor can certify that Biswajit Acharjee was apprehended by the Army during search operation, when she was admittedly not accompanying the Army during such search operation. It can, therefore, be safely concluded that certificate was issued by the doctor as dictated by the officials of the Indian Army and not upon physical verification of the person concerned. That apart, the stand taken by the Army that he was released at 1745 hours on 01.06.2004 from Lumding Police Station, on being physically produced, also cannot be believed, in view of the stand taken by the Superintendent of Police in the affidavit-in-opposition filed and also the enquiry report submitted by the SDPO, wherefrom it appears that Biswajit Acharjee in fact was not physically produced in the police station but was kept inside the army vehicle, from where he was released after obtaining the writing in that regard from one Ashok Roy. Had Biswajit Acharjees physical condition been good, there was no reason as to why he should not have produced before the Assam Police at the time of his release. All these factors demonstrate that Biswajit Acharjee was tortured by the Army while he was in custody. The arrest of Biswajit Acharjee was also made in complete disregard to the law laid down by the Apex Court in D.K. Basu Vs. State of W.B. reported in (1997)1 SCC 416.
14. Having regard to the aforesaid discussion, we are of the view that there is violation of the fundamental right guaranteed to a citizen under the Constitution of India, more particularly the right to life and liberty, for which deprivation adequate compensation has to be awarded under the public law remedy, based on the principles of strict liability and in addition to the claim available in private law for damages for tortious act of the public servants. Having regard to the age of the victim, i.e. 28 years, whose monthly income was Rs.10,000/- and also the fact that he left behind apart from his widow, a minor child, who was posthumously born, we are of the view that the ends of justice would be met if the compensation of Rs.10,00,000/-(Rupees ten lakh only) is awarded under the public law remedy for the deprivation of fundamental right to life and liberty. The said amount of compensation would be paid by the Union of India to the writ petitioner within a period of 2(two) months from today.
15. The State Government is also directed to investigate and find out the person(s) responsible for the death of Biswajit Acharjee while in army custody, for which Lumding P.S. Case Nos.64/04 and 65/04 have already been registered under Section 342/325/302/34 IPC, and to complete the investigation, if not already completed, so that if anyone is found to be guilty is punished under the law. The Army Authority shall cooperate with the investigation.
16. Registry is directed to send a copy of the judgment to the petitioner, as the learned counsel for the petitioner have not appeared to argue the case.
17. The writ petition is accordingly allowed.