REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3669­3670/2015

Union of India and others ..Appellants

Versus

Junu Gayary ..Respondent

J U D G M E N T

M.R. SHAH, J.

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 objections, if any, to the Enquiry Report

submitted by  the learned District  & Sessions Judge.  However,  no

such objections were preferred by the appellants herein – the original

respondents.  That thereafter after considering the submissions made

by the learned counsel appearing on behalf of the appellants herein  ­

the original respondents on the enquiry report submitted by the

learned   District  & Sessions Judge, the  High  Court came to the

conclusion that the deceased – Someswar  Gayari was taken into

custody by the army for whatever purposes and probably may have

been killed while in the custody.   Therefore, the High Court by the

impugned judgment and order has directed that in view of the specific

and categorical finding recorded by the  learned District  & Sessions

Judge, the matter requires for further investigation in accordance with

law for  which  purpose  a criminal case shall be registered for the

offence punishable under Section 302 of the IPC.  The High Court has

directed the Central Bureau of Investigation to undertake the

investigation so that the real culprits do not get away unpunished.

2.5 Having  found that there  is  a violation of the Article  21 of the

Constitution of India and that the original writ petitioner is a young

widow required to look after her three minor school going children and

that the deceased was the only bread earner of the family, the High

Court has further directed original respondent nos. 1 and 3 – Union of

India  and Commandant,  8th  Madras  Regiment to  pay Rupees three

lakhs to the original writ petitioner by way of compensation for the

death of the deceased Someswar Gayari.

3. Feeling aggrieved and dissatisfied with the impugned judgment(s)

and order(s) passed by the High Court, the appellants herein – original

respondents – Union of India and others have preferred the present

appeals.

4. We have heard Shri R. Balasubramanian, learned Senior

Advocate appearing on behalf of the appellants.   Service of notice is

complete on the respondent as per the service report received from the

concerned District Court but no one has entered appearance on behalf

of the respondent.

4.1 Having heard the learned Senior Advocate appearing on behalf of

the appellants and considering the impugned judgment and  order

passed by the High Court, as such, we see no reason to interfere with

the impugned judgment and order.   The High Court has rightly

directed to register a criminal case for the offence punishable under

Section 302 of the IPC with respect to the death of Someswar Gayari

alias Sombrom and looking to the gravity of the offence committed the

High Court has rightly directed the CBI to undertake the investigation.

For the aforesaid, the High Court has taken  into consideration the

report submitted by the learned District & Sessions Judge who

categorically recorded that the deceased Someswar Gayari alias

Sombrom was  picked  up  from  the  house  of  Dilbahadur  Chetry  by

army personnel in the night that followed the day of 26.08.2003; 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; 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. The aforesaid findings recorded by the learned District &

Sessions Judge were on considering the material on record and after

examining some witnesses and after giving an opportunity even to the

appellants also. Under the circumstances,  the  impugned judgments

and orders passed by the High Court directing to register a criminal

case for the  offence  punishable  under  Section 302 of the IPC and

directing the CBI to undertake the investigation do not warrant any

interference.

5. Now so far as awarding rupees three lakhs by way of

compensation to the original writ petitioner is concerned, it is required

to be noted that there is a specific  finding recorded by the learned

District & Sessions Judge and even by the High Court that there is a

violation of Article 21 of the Constitution of India. The persons who are

responsible for the death of Someswar  Gayari shall be ultimately

investigated by the CBI.   However, the fact remains that Someswar

Gayari has died and there is a  prima facie  finding against the

appellants.   In fact, the High Court has awarded rupees three lakhs

only which, according to us, is on a lower side.   According to us, if

rupees five lakhs is awarded towards compensation, at this stage, the

same  shall be in the interest of justice.  Therefore, in exercise  of

powers under Article 142 of the Constitution of India and to do

substantial justice to the deceased and his family  members, we

enhance the amount of compensation to rupees five lakhs, which shall

be deposited by the appellants with the Registrar  General of the

Gauhati High Court within a period of four weeks from today, which

shall be  paid to the  original  writ petitioner on  her  being  properly

identified.  The assessment of compensation of ours shall not preclude

the original writ petitioner to avail such remedy as is available to her

in law whatsoever which may have to be decided on its own merits.

6. In view of the above and for the reasons stated above, the present

appeals challenging the  impugned judgments and orders passed by

the High Court directing to register a criminal case and directing the

CBI to undertake the investigation deserve to be dismissed and are

accordingly dismissed.

7. Since the matter is very old, the CBI is directed to undertake and

conclude the investigation at the earliest so that the real culprits are

punished.  It goes without saying and as held by this Court in the case

of General Officer Commanding v. CBI and another, reported in (2012)6

SCC  228,  that after the charge sheet is filed by the investigating

agency and not after the cognizance is taken by the court,   the

competent authority in the army shall take a decision within a period

of eight weeks from the date of filing of the charge sheet as to whether

the trial  would be by the criminal court or by a court martial and

communicate the same to the  Chief Judicial  Magistrate concerned

immediately thereafter.   In case, the option is made to try the case by

a court martial,  the said proceedings would commence immediately

and would be concluded in accordance with law expeditiously.   It is

further observed and directed that in case the option is made that the

accused will  be tried by  the criminal  court the CBI shall  make an

application to the Central Government for grant of sanction within a

period of four weeks from the receipt of such option and in case such

an application is filed, the  Central  Government shall take a final

decision on the said application within a period of eight weeks from

the date of such an application.   In case, sanction is granted by the

Central Government, the criminal court shall  proceed with the trial

and conclude the same expeditiously.

8. With the aforesaid observations and directions, the present

appeals are disposed of.

…………………………………J.   [M.R. SHAH]

NEW DELHI; …………………………………J. JULY 26, 2019. [A.S. BOPANNA]