Holding

The Court held that there was no evidence to support the petitioner's claim and that the Army's actions complied with the Armed Forces (J&K) Special Powers Act, so the writ petition was dismissed.

Summary

Masooda Parveen, the widow of Ghulam Mohi‑ud‑din Regoo, filed a writ petition under Article 32 seeking compensation and a compassionate appointment, alleging that her husband died in army custody and that the Army violated Section 6 of the Armed Forces (J&K) Special Powers Act by not promptly informing the nearest police station. The respondents contended that the operation was conducted under AFSPA, that Regoo was a Pakistani‑trained militant who died in an explosion while uncovering a weapons cache, and that the short time lapse made immediate police hand‑over impracticable. The Court examined the statutory requirement of Section 6, the factual timeline, and the absence of any independent evidence contradicting the Army’s version. It held that the Army’s actions were in line with the Act, the minimal delay was justified by operational exigencies, and there was no proof that the petitioner’s case was credible. Consequently, the petition was dismissed with no order as to costs.

Issues considered

Whether the Army violated Section 6 of the Armed Forces (J&K) Special Powers Act, 1958 by failing to inform the officer‑in‑charge of the nearest police station without delay.
Whether the petitioner is entitled to compensation and a compassionate appointment under Article 32 of the Constitution.
Whether the deceased was a militant and the circumstances of his death justify denial of relief.
Whether the non‑production of the original police record indicates a cover‑up warranting judicial intervention.

Legislation cited

Constitution of Indias. Art.32

Subjects

custodial deathcompensationcompassionate appointmentArmed Forces (J&K) Special Powers ActSection 6police hand‑overmilitancyhuman rightswrit petitionArticle 32

Judgment

A MASOODA PARVEEN
v.
UNION OF INDIA AND ORS.

MAY 2, 2007

B [B.P. SINGH AND HARJIT SINGH BEDI, JJ.]

Constitution of India, I 950:

Art.32-Writ petition seeking compensation and job on compassionate
C ground for custodial death of husband-Army and police show that deceased
was militant and the circumstances leadinr. to his death were as per the
circumstances put on record by respondents-No evidence to suggest that
petitioner's case was worthy of belief-Writ petition dismissed-Armed Forces
(J&K) Special Powers Act, 1958-s.6.
D The petitioner filed Writ Petition under Article 32 of the Constitution
of India for seeking compensation and job on compassionate ground for the
custodial death of her husband. According to petitioner, deceased R was
practicing Advocate. Some militants who were working alongwith the Army
got him arrested on 6th October, 1994 on the allegation that he was a
E Pakistani Trained Militant and kept in custody for about three months and
then released. On 1st February, 1998 some surrendered militants alongwith
a unit of the Army (17 Jat) reached R's home in Chandhara and searched his
house but found nothing incriminating therein. He was nevertheless taken to
the Lethapora Army Camp, the Head Quarters of the 17 Jat, and tortured
F mercilessly leading to his death whereafter explosives were placed on his dead
body and then detonated to camouflage the murder. I-
The grievance of petitioner was that despite the fact that police station
Pam pore was a stone throw away from village Chandhara, no effort had been
made by the Army to convey the information to the police at the earliest and
G the police had been called in only on the morning of 3rd February 1998 after
'R' had been done to death; that the story with regard to the circumstances in
which 'R' had died and the fact that the original record had not been produced
before this Court led to the inference that there was something amiss and
the respondents were accordingly engaged in a cover up exercise.

H 1106
MASOODA PARVEEN v. U.0.1. 1107
Respondents contended that the raids on 'R' house and all subsequent A
events were purely an army operation and the police had come into the picture
only after 'R' had died and the record up to the stage of his death was with the
, army and it had been produced before the Court during the course of the
hearing.

Dismissing the Writ Petition, the Court
B

HELD: 1. Many in Kashmir who have gone astray are Indian citizens
and it is this situation which has led to this incident. A fight against militancy
is more a battle for the minds of such persons, than a victory by force of arms,
which is pyrrhic and invariably leads to no permanent solution. In this process C
some unfortunate incidents do occur which raise the ire of the civil population,
often exacerbating the situation, and the belief of being unduly targeted with
a feeling in contrast of the law and order machinery that it is often in the
dock and called upon to explain the steps that they have taken in the course
of what they rightly believe to be the nation's fight. The examination of a D
complaint, and the provision of an effective redressal mechanism preferably
at the hands of the administration itself, or through a court of law if necessary,
is perhaps one the most important features in securing a psychological
advantage. In an investigation of this kind based only on affidavits, with a
hapless and destitute widow in utter despair on the one side and the might of
the State on the other, the search for the truth is decidedly unequal and the E
court must therefore tilt just a little in favour of the victims.
[Para 6) [1111-F-H; 1112-A, BJ

2.1. A bare reading ofs.6 of Armed Forces (J & K) Special Powers Act,
1958 would show that information with regard to the arrest of any person or F
seizure of property or arms and ammunition or explosives under the Act has
to be conveyed to the officer in-charge of the nearest police station with the
least possible delay etc. [Para 11) [1113-C-D)

Naga People's Movement of Human Rights v. Union of India, (1998) 2
sec 109, referred to. G
"ll 2.2. The site plan produced by petitioner in Court gives the general
locations of Chandhara village, police station Pam pore, Lethapora Army Camp
and the Wasturwan Heights where 'R' had apparently met his end. Concededly
all four locations are very close the each other - the maximum distance being H
I 108 SUPREME COURT REPORTS [2007] 5 S.C.R.

A 4-5 kilometers, with village Chandhara virtually in the middle. However, the
application of the guidelines referable to Section 6 cannot be mechanically
applied and must of necessity relate to the facts of each case. It is almost the
admitted position that 'R' had been taken from village Chandhara at about
8.30 on the night of 2nd February, 1998 and had been interrogated at Lethapora
•
B Army Camp and had met his end at about 2.30/3.00 a.m on 3rd February, 1998.
Therefore the time gap between the arrest and the death was clearly minimal.
It is also apparent that after 'R' had been detained, and his interrogation had
revealed the presence of arms and ammunition, the first would priority have
been to recover the weapons, as to cause any delay, could lead to a failure of
C the operation. In the short time available to the army patrol it was perhaps
not feasible nor practicable to first inform police station Pam pore situated at
the extreme North with the Lethapora and Wasturwan Heights situated
towards the extreme South with Chandhara in the centre to first approach
the police authorities. The prompt action by the army in such matters is the
key to success and any delay can result in the leakage of information which
D would frustrate the very purpose of the army action. [Para 12) (1114-A-FJ
3. The record is almost contemporaneous with the incident. It starts
with an application addressed by petitioner no. 1 to the then Prime Minister
of India, a·sking for relief from the Prime Minister's Relief Fund and
E compensation on account of the killing of her husband. This application had
been received in the Prime Minister's office on 8th June, 1998 and had been
forwarded to the Ministry of Defence about three weeks later. The matter had
thereafter been examined in the Human Rights Cell of the Army and the entire
record including the after action report dated 2nd /3rd February, 1988
pertaining to the incident examined along with the seizure memos and a
F recommendation had been made that as 'R' was a militant, any compensation
awarded to his family would lower the morale of the security forces engaged
in fighting militancy. These recommendations were accepted by the General
Officer Commanding who was an officer ir. the rank of Major General. It is
noteworthy that this entire exercise started on 26th June, 1998 when the
G application was received by P.M's Office and the enquiry was completed and
approved right upto the rank of Major General by 29th October, 1988.
[Para 14) (1115-A-EJ ,

5. There is not an iota of evidence to support the petitioners' plea except
for the statements that she has made in the present petition. It has already
H
MASOODAPARVEENv.U.0.1. [H.S. BED!,J.] 1109
been observed at the very initial stage that the court must lean a little in favour A
of the victims on account of the adverse situation in which they stand placed,
but the Court must find something to· lean on. There is no evidence to suggest
that the petitioners' case was worthy of belief. On the contrary the army and
police record pertaining to the incident clearly show that 'R' was indeed a
militant and that the circumstances leading to his death were as per the B
circumstances put on record by the respondents. [Para 16) (1116-A-CJ

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 275of1999.

(Under Article 32 of the Constitution of India)

M.S. Ganesh, Shomona Khanna, Seshachary and Anupam Lal Das for C
the Appellant.

Vikas Singh, ASG., Vikas Sharma, R.C. Kathia, Shiva Lakshmi, Amrita
Narayan, T. Prasad, D.S. Mabra, Shreekant N. Terdal, Anis Suhrawardy, S.
Mehdi Imam and Tabrcz Ahmed for the Respondents.
D
The Judgment of the Court was delivered by

HARJIT SINGH BEDI, J. I. In this writ petition, a prayer has been made
that the respondent - Union of India be called upon to pay compensation and
to provide a job on compassionate grounds for the custodial death of Ghulam E
Mohi-ud-din Regoo, the husband of petitioner No. I.

2. The facts taken from the petition are as under:

The deceased Ghulam Mohi-ud-din Regoo, was an advocate enrolled
and practicing in the High Court of Jammu and Kashmir before the Srinagar F
Bench. In addition to his practice he was also a small-time businessman
trading in saffron, but on account of certain factors, sustained heavy losses
on which his creditors approached local militants for help in recovering the
amounts due to them. As a consequence of this pressure, Re goo shifted from
his village Chandhara to Sopore and remained away for a period of two years
from 1992 to 1994 and then returned as there was in the meanwhile a decline G
Ii in the strength of the militants. It appears that some militants who were
working alongwith the Army got him arrested on 6th October, 1994 on the
allegation that he was a Pakistani Trained Militant (PTM) and he was kept
in custody for about three months and then released, and on return continued
to follow his vocations in a peaceful manner. On !st February, 1998 some
surrendered militants alongwith a unit of the Army (17 Jat) reached Regoo's H
1110 SUPREME COURT REPORTS (2007] 5 S.C.R.

A home in Chandhara at about 8.30 p.m. and searched his house but found
nothing incriminating therein. He was nevertheless taken to the Lethapora
Army Camp, the Head Quarters of the 17 Jat, and tortured mercilessly leading
to his death whereafter explosives were placed on his dead body and then
detonated to camouflage the murder. It is further the petitioners' case that the
morning after the incident, his body was handed over to the police and was
·sthereafter subjected to a very casual and cursory post mortem examination.
It is in these circumstances that a case for compensation etc. has been made
on the plea that the deceased had left behind an indigent family comprising
of petitioner No. I (his widow) and four cliildren, the eldest being a son 20
years of age. Petitioner No. I sent several applications to the State Chief
C Minister, and other Government agencies and also addressed letters to the
Chief Justice of India on 22nd June, 1998 and 20th July, 1998, on which the
matter was referred to the Supreme Court Legal Services Committee which
advised her to approach the State High Court. Petitioner No. I in her letter
dated 19th October, 1998 to the Chief Justice of India pointed out that she
was not interested in pursuing her case before the Jammu and Kashmir High
D Court as the Bar Association was politicizing it which was not called for. The
matter was accordingly treated as a Writ Petition under Article 32 of the
Constitution of India and after notice to the parties, Rule-Nisi was issued on
9th February, 2001.

E 3. Two affidavits in reply have been filed by the respondents; one by
Major D.S. Punia, the officer in-charge of the patrol of the 17 Jat which had
arrested Regoo and taken him for interrogation to the Lethapora Army Camp
and the other by respondent nos. 3 & 4 the State of Jammu and Kashmir etc.

4. In the affidavit in reply filed by Major D.S. Punia, the story, has to
p a point, been admitted. It has however been pointed out that on the basis of
intelligence provided to the Battalion, a patrol party from the Lethapora Army
Camp had searched Regoo's house at about 8.30 p.m. on 2nd February, 1998
which had led to his apprehension and that he had thereafter been taken to
the Camp and interrogated on which he had revealed that he was a Pakistani
Trained Militant and an Ex-divisional Commander of the A I Barq Terrorist
G Group, and had also offered to lead a patrol to a hide out in the Wasterwan
Heights, a short distance away, where arms and ammunition had been stored
in a militant hideout. It has further been deposed that a patrol under his
command was accordingly deputed to move to the hideout accompanied by
Regoo to effect the recoveries but as patrol leader, he had stopped the patrol
H fifty meters short of the hideout and after ensuring that he was not in a
MASOODA PARVEEN v.U.0.1. [H.S. BED!, J.] llll

position to escape, Regoo had been released with a direction to go forward A
to uncover the hideout and when he had tried to create an opening in it, an
explosion had resulted (probably due to booby trapping) leading to his death
at about 2.30 a.m. on 3rd February, 1998. It has also been pleaded that three
jawans, Sepoy Kashi Ram, Havaldar Randhir Singh and LINK Munim Singh
too had received minor splinter injuries and had been treated in the medical B
inspection room and thereafter discharged. It has further been highlighted
that the search of the hideout had thereafter been carried out and 03-AK
Magazines, 130-rounds of AK ammunition and 05-Hand Grenades had been
recovered. Along with the affidavit, annexure-A has been appended to prove
the injuries suffered by the three jawans, annexure-B the seizure memo in
support of the recoveries of the arms and ammunition and annexure-C the C
copy of the FIR lodged at Police Station Pampore on 3rd February, 1998. It
has accordingly been pleaded that Regoo was not an innocent as claimed
who had been done to death in army custody but was in fact a militant who
had died in an explosion while in the process of uncovering a cache of arms
and ammunition.
D
5. Respondent Nos. 3 and 4 have supported the stand taken by the first
and second respondents and have in support of their case, appended several
documents from the police record. Several affidavits and documents by way
of a rejoinder have also been filed by petitioner No.!.

6. Before we embark on an appreciation of the various contentions E
raised by the learned counsel for the parties, we must give a preview of the
manner in which we intend to deal with this matter. We cannot ignore the fact
that many in Kashmir who have gone astray are Indian citizens and it is this
situation which has led to this incident. We do appreciate that a fight against
militancy is more a battle for the minds of such persons, than a victory by F
force of arms, which is pyrrhic and invariably leads to no permanent solution.
We cannot ignore that in this process some unfortunate incidents do occur
which raise the ire of the civil population, often exacerbating the situation,
and the belief of being unduly targeted with a feeling in contrast of the law
and order machinery that it is often in the dock and called upon to explain
the steps that they have taken in the course of what they rightly believe to G
be the nation's fight. We however believe that the examination of a complaint,
and the provision of an effective redressal mechanism preferably at the hands
of the administration itself, or though a court of law if necessary, is perhaps
one the most important features in securing a psychological advantage. We
also understand that in an investigation of this kind based only on affidavits, H
1112 SUPREME COURT REPORTS (2007] 5 S.C.R.

A with a hapless and destitute widow in utter despair on the one side and the
might of the State on the other, the search for the truth is decidedly unequal '\
and the court must therefore tilt just a little in favour of the victims. We have
chosen to examine this matter on this broad principle.

7. Mr. M.S. Ganesh, the learned senior counsel for the petitioner has
B raised three basic issues before us; first that the search in Re goo's house and
his detention was apparently taken under the authority conferred by the
Armed Forces (J&K) Special Powers Act, 1958 (hereinafter referred to "the
Act") which retains the pre-eminence of the civil authority over the army
inasmuch that it provides that the use of the armed forces would be only "in
C aid of the civil power", but has pointed out that the Army Authorities had
completely excluded the participation of the local administration and the
police in this operation, secondly, that the story projected by the respondents
in their affidavit was clearly an afterthought as despite specific orders of this
Court and the undertakings given by respondent Nos. 3 and 4 from time to
time, the original police record had not been produced and only a shadow file
D with several significant passages missing, had been put on record from which
an inference had to be drawn that an attempt was being made to conceal the
truth, and finally, that there were no evidence to show that Regoo was a
Pakistani Trained Militant or that he had any association with any militant
organization, as alleged.
E 8. Mr. Vikas Singh, the learned counsel for respondent nos. I and 2 has
however pointed out that the action taken on the 2nd and 3rd February, 1988
by the Army patrol was fully in consonance with the provisions of the Act,
which authorized a search, seizure and arrest under certain circumstances. It
has also been pleaded that the original police file could not be produced in
p court as it had been lost and this matter had also been referred to a departmental
enquiry and that Regoo was a Pakistani trained militant and an Ex-divisional
Commander of A I Barq militant organization had been revealed by Intelligence
inputs received by the Battalion and by his interrogation on 2nd February,
1998.

G 9. We now take up the arguments seriatim.

I0. It is true, as has been contended by Mr. Ganesh, that the Army
action had been taken pursuant to the Notification under Section 3 of the Act
declaring Jammu and Kashmir as a disturbed area. Section 4 of the Act permits
persons of specified rank to arrest without warrant in situations referred to
H
MASOODA PARVEEN v.U.0.1. [H.S. BED!, J.] 1113
therein. Section 6 to which special reference has been made by Mr. Ganesh, A
I'
is however, re-produced below.

"Arrested persons and seized property to be made over to the
police - Any person arrested and taken into custody under this Act
and every property, arms, ammunition or expl.:isive substance or any
vehicle or vessel seized under this Act, shall be made over to the B
officer-in-charge of the nearest police station with the least possible
delay, together with a report of the circumstances occasioning the
arrest, or as case may be, occasioning the seizure of such property,
arms, ammunition or explosive substance or any vehicle or vessel, as
the case may be".
c
11. A bare reading of this provision would show that information with
regard to the arrest of any person or seizure of property or arms and ammunition
or explosives under the Act has to be conveyed to the officer in-charge of
the nearest police station with the least possible delay etc. It is Mr. Ganesh's
plea that despite the fact that police station Pampore was a stones throw D
away from village Chandhara, no effort had been made by the army to convey
the information to the police at the earliest and the police had been called in
only on the morning of 3rd February, 1998 after Regoo had been done to
death. Mr. Ganesh has also placed reliance on the judgment of this Court in
Naga People's Movement of Human Rights v. Union of India, [1998] 2 SCC
109 to contend that while upholding the vires of the Armed Forces (J&K) E
Special Powers Act, 1958, this Court had laid down certain guidelines which
would mutatis mutandis apply to a search, seizure and arrest under the Act
as well. He has pointed out that the basic principle which governed the
exercise of authority under the Act was that the army was to act in aid of the
civil power meaning thereby that the pre-eminence of the civil authority had
F
1 in no way been diluted. He has, in particular, placed reliance on the specific
conclusions drawn in paragraph 74 of the Report and has pointed out that
this Court had clarified that the civil power continued to function even after
the deployment of the armed forces, and a person arrested and taken into
custody was to be handed over to the officer in-charge of the nearest police
station with the least possible delay so that he could be produced before a G
).
Magistrate within 24 hours and that any property or arms and ammunition
likewise seized were to be handed over to the police alongwith a note explaining
the circumstances which had led to the recovery, and the creation of an
agency which could redress the grievances of those who alleged misuse of
authority by the armed forces so that if the allegations were found proved
H
1114 SUPREME COURT REPORTS [2007] 5 S.C.R.

A compensation could be paid as a follow up measure. '(

12. We have considered Mr. Ganesh's argument in the light of the facts
of the case. We have also perused the site plan produced by him in Court ..
..r
today giving the general locations of Chandhara village, police station Pam pore,
Lethopora Army Camp and the Wasturwan Heights where Regoo had
B apparently met his end. Concededly all four locations are very close to each
other-the maximum distance being 4-5 kilometers, with village Chandhara
virtually in the middle. We must however observe that the application of the
guidelines referable to Section 6 and in the cited case cannot be mechanically
applied and must of necessity relate to the facts of each case. It is almost the "
c admitted position that Regoo had been taken from village Chandhara at about
8.30 on the night of 2nd February, 1998 and had been interrogated at Lethapora
Army Camp and had met his end at about 2.30/3.00 a.m. on 3rd February, 1998.
To our mind therefore the time gap between the arrest and the death was
clearly minimal. It is also apparent, as contended by Mr. Vikas Singh, that after
Regoo had been detained, and his interrogation had revealed the presence of
D arms and ammunition the first priority would have been to recover the weapons
as to cause any delay could lead to a failure of the operation. We agree with
Mr. Vikas Singh's submission that in the short time available to the army
patrol it was perhaps not feasible nor practicable to first inform police station
Pampore situated at the extreme North with the Lethapora and Wasturwan
Heights situated towards the extreme South with Chandhara in the centre to
E
first approach the police authorities. We are also not un-mindful of the fact
that prompt action by the army in such matters is the key to success and any
delay can result in the leakage of information which would frustrate the very
purpose of the army action. We re-emphasize however that the guidelines laid
down in the cited case must be scrupulously observed and any deviation
F should be frowned upon by the Court.
t
13. We now examine the other two arguments of Mr. Ganesh. It has been
emphasized that the story with regard to the circumstances in which Regoo
had died and the fact that the origina.1 record had not been produced before
this Court led to the inference that there was something amiss and the
G respondents were accordingly engaged in a cover up exercise.
~

~
14. It is true that the original police record has not been produced
before the Court despite several opportunities and only a shadow file with
some pages missing is before us and has been appended as an annexure to
the written statement on behalf of respondent nos. 3 and 4. Mr. Ganesh has ~

H
MASOODAPARVEEN v.U.0.1. [H.S. BED!. J.] 1115
,-· accordingly been at pains to emphasize that had the original file been produced A
the true story of the circumstances leading to Regoo' s death would have been
revealed and it is for this reason that the file had been withheld. Mr. Vikas
Singh has however, pointed out that it had to be understood at the very
outset that the raid on Regoo's house and all subsequent events were purely
an army operation and the police had come into the picture only after Regoo
had died. He has in this background submitted that the record up to the stage B
of his death was with the army and he has produced the relevant army file
before us during the course of the hearing. We have examined this record and
find that it is almost contemporaneous with the incident. The record starts
with an application addressed by petitioner no. I to Shri Atal Bihari Vajpayee,
the then Prime Minister of India, asking for relief from the Prime Minister's C
Relief Fund and compensation on account of the killing of her husband. This
application had been received in the Prime Minister's office on 8th June, 1998
and had been forwarded to the Ministry of Defence about three weeks later.
The matter had thereafter been examined in the Human Rights Cell of the
Army and the entire record including the after action report dated 2nd/3rd
February, 1998 pertaining to the incident examined along with the seizure D
memos and a recommendation had been made that as Regoo was a militant,
any compensation awarded to his family would lower the morale of the
security forces engaged in fighting militancy. These recommendations were
accepted by the General Officer Commanding who was an officer in the rank
of Major General. It is noteworthy that this entire exercise started on 26th E
June, 1998 when the application was received by P.M's Office and the enquiry
was completed and approved right upto the rank of Major General by 29th

- October, 1998.

15. We have also examined the various annexures constituting the
shadow file appended with the reply of respondent nos. 3 and 4. We put it F
to Mr. Ganesh repeatedly as to whether he could identify the information that
had to be obtained from the police record. He could give no categorical
answer to this query except to state that the reluctance of the civil authority
to produce the file betrayed a guilty mind and the possibility existed that there

-
was something in the file which needed to be hidden.
G
, . 16. It is also interesting to note that in addition to the several documents
appended to the inquest report furnished by the police by way of annexures
with the written statement of respondent Nos. 3 and 4 a statement of Jalaluddin
Regoo, the brother of the deceased completely exonerating the army of any
wrong doing, has been appended although it has been pointed out by Mr. H
1116 SUPREME COURT REPORTS [2007) 5 S.C.R.

A Ganesh that he had filed an affidavit denying he had made any such statement. .'i
We are therefore of the opinion that there is not an iota of evidence to
support the petitioners' plea except for the statements that she has made in
the present petition. It has already been observed at the very initial stage that .-
the court must lean a little in favour of the victims on account of the adverse
situation in which they stand placed, but the Court must find something to
B lean on. We find no evidence to suggest that the petitioners' case was worthy
of belief. On the contrary we have the army and police record pertaining to
the incident which clearly show that Regoo was indeed a militant and that the
circumstances leading to his death were as per the circumstances put on
record by the respondents.
c 17. We thus find no merit in the petition. It is accordingly dismissed
with no order as to costs.

D.G.' Writ Petition dismissed.

-