UNION OF INDIA AND OTHERSversusJUNU GAYARY

                          [2019] 9 S.C.R. 843                            843


                UNION OF INDIA AND OTHERS                                A
                                  v.
                          JUNU GAYARY
               (Civil Appeal Nos. 3669-3670 of 2015)
                           JULY 26, 2019                                 B
           [M. R. SHAH AND A. S. BOPANNA, JJ.]
      Penal Code, 1860 – s.302 – Constitution of India – Art.21 –
Respondent-writ petitioner filed a writ petition u/Art.21 before the
High Court alleging that her husband was picked up by army
                                                                         C
personnel from the house of a relative and thereafter, she was
informed by police that her husband died in an encounter with army
– High Court directed District & Sessions Judge to hold an enquiry
– District & Session Judge specifically observed that the death of
the deceased was in the hands of army and an attempt was made by
army to show the death of the deceased was in course of an               D
encounter – Pursuant thereto, High Court directed registration of
criminal case u/s.302 IPC and CBI to undertake investigation –
Original respondent nos. 1 and 3 were further directed to pay Rs. 3
lakhs to the original writ petitioner by way of compensation – On
appeal, held: High Court rightly directed to register a criminal case
                                                                         E
for offence punishable u/s.302 IPC and CBI to undertake the
investigation – The findings recorded by the District & Sessions
Judge were after considering the material on record, examining
witnesses and after giving an opportunity even to the appellants –
There is a prima facie findings against the appellants – In the
circumstances, no reason to interfere with the Judgment of the High      F
Court – So far as compensation awarded to writ petitioner is
concerned, as there is a specific finding by District & Sessions Judge
and High Court that there is a violation of Art.21 of the Constitution
– Accordingly, compensation enhanced from Rs.3 lakhs to Rs.5
lakhs.
                                                                         G
      Disposing of the appeals, the Court
     Held: 1. 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 victim and looking to the gravity
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                                 843
844            SUPREME COURT REPORTS                      [2019] 9 S.C.R.


A     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
      District & Sessions Judge who categorically recorded that the
      deceased was picked up from the house of ‘D’ by army personnel
      in the night that followed the day of 26.08.2003; that the deceased
B
      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
C     deceased as if in the course of encounter between the army and
      the deceased. The aforesaid findings recorded by the 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
D
      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. [Para 4.1] [848-
      G-H; 849-A-D]
            2. Now so far as awarding rupees three lakhs by way of
E     compensation to the original writ petitioner is concerned, it is
      required to be noted that there is a specific finding recorded by
      the 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 victim shall be
F     ultimately investigated by the CBI. However, the fact remains
      that victim 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 this Court, is on a lower side.
      According to this Court, if rupees five lakhs is awarded towards
      compensation, at this stage, the same shall be in the interest of
G     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, the amount of compensation
      enhanced to rupees five lakhs, which shall be deposited by the

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      UNION OF INDIA AND OTHERS v. JUNU GAYARY                         845


appellants with the Registrar General of the Gauhati High Court        A
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 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.
                                                                       B
[Para 5] [849-D-H]
      3. 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        C
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         D
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     E
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.   F
In case, sanction is granted by the Central Government, the
criminal court shall proceed with the trial and conclude the same
expeditiously. [Para 7] [850-B-E]
      General Officer Commanding v. CBI and another
      (2006) 6 SCC 228 : [2012] 5 SCR 599 – relied on.                 G
                      Case Law Reference
[2012] 5 SCR 599               relied on              Para 7


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846             SUPREME COURT REPORTS                           [2019] 9 S.C.R.


A           CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3669-
      3670 of 2015.
            From the Judgment and Order dated 09.06.2006 of the Guwahati
      High Court in W.P. (Civil) No. 9709 of 2003 and order dated 05.12.2008
      in M.C. No. 2954 of 2007.
B           R. Balasubramanian, Sr. Adv., Ms. Akanksha Kaul, A. K. Sharma,
      Mrs. Anil Katiyar, Advs. for the Appellants.
            The Judgment of the Court was delivered by
            M. R. SHAH, J.
C            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
D     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
E
      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.
F
             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
G     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
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       UNION OF INDIA AND OTHERS v. JUNU GAYARY                                  847
                     [M. R. SHAH, J.]

affidavit was that no civilian as such was brought to Bhabanipur Army            A
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            B
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          C
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          D
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           E
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        F
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            G
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
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848             SUPREME COURT REPORTS                           [2019] 9 S.C.R.


A     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
B
      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
C     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
D     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
E     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
F     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
G     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,
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       UNION OF INDIA AND OTHERS v. JUNU GAYARY                                   849
                     [M. R. SHAH, J.]

the High Court has taken into consideration the report submitted by the           A
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
                                                                                  B
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             C
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.
                                                                                  D
       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          E
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.        F
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.   G
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.

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850                SUPREME COURT REPORTS                        [2019] 9 S.C.R.


A            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.
B             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
C     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
D     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
E     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
F     appeals are disposed of.



      Ankit Gyan                                                Appeals disposed of.

G




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