B.D.AGARWAL, J. - (1.) This writ petition under Article 226 of the Constitution of India has been filed seeking monetary compensation for the death of petitioner's husband allegedly in a fake encounter.
(2.) I have heard Sri B. K. Mahajan, learned counsel for the petitioner. The Union of India and its officers (R 1 to R 4) were represented by Sri C. Baruah, learned CGC. The State of Assam and its officers were represented by Sri A. Sarma, learned Government counsel. Also perused the pleadings of both the sides as well as the report submitted by the District & Sessions Judge, Nalbari.
(3.) To appreciate the disputed facts whether the deceased was kidnapped and killed by the Army personnel and whether the petitioner is entitled to monetary compensation and if so, to what extent, it is necessary to have a cursory look on the facts and evidence which are as follows :- 3.1 On 19.5.2001, the petitioner's husband went to Nalbari town to repair a water pump. When the petitioner's husband did not return home in the night she informed it to her brother-in-law who in turn searched for the deceased in the town as well as in the Police Station. However, the deceased could not be traced out. Since at the relevant time, Army operation was on in the area the family members of the deceased suspected that the deceased Boloram Nath might have been picked up or killed by the Army personnel. Accordingly, a habeas corpus writ petition was filed in this Court which was registered as W.P.(Cril.) No. 22 of 2001. The said writ petition was closed primarily on the ground that a Magisterial enquiry was going on to ascertain the actual fact. Within next two days of filing of the habeas corpus petition the petitioner came to know that her husband met with an unnatural death and his dead body was lying at Ghagrapar Police Station. Thereafter, the petitioner and her family members visited the Police Station and identified the dead body and also looking at the number and sites of wounds they drew an inference that the person was intentionally killed by the Army personnel. However, they waited for the outcome of the Magisterial enquiry. Since the Magisterial enquiry failed to give a conclusive finding as to who killed the petitioner's husband, this writ petition was filed on 22.2.2005.;