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 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.;