Masooda
Parveen Vs. Union of India &
Ors [2007] Insc 500 (2 May 2007)
B.P. SINGH & HARJIT SINGH BEDI
HARJIT SINGH BEDI, J.
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 Mohi-ud-din Regoo, the husband of
petitioner No.1.
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 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, Regoo 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 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 1st February, 1998 some surrendered militants alongwith a
unit of the Army (17 Jat ) reached Regoo's 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 thereafter 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.1 (his widow) and four children, the eldest being a
son 20 years of age.
Petitioner No.1 sent several applications to the State Chief 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. 1 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 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.
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.
In the affidavit in reply filed by Major D.S. Punia, the story, has to 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 A1 Barq Terrorist 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 fifty meters short of the
hideout and after ensuring that he was not in a position to escape, Regoo had
been released with a direction to go forward 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 L/NK Munim Singh too had received minor splinter injuries and had
been treated in the medical 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 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.
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.1.
Before we embark on an appreciation of the various contentions 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 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 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, 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.
Mr. M.S. Ganesh, the learned senior counsel for the petitioner has raised
three basic issues before us; first that the search in Regoo'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 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 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.
Mr. Vikas Singh, the learned counsel for respondent nos.
1 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
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 A1 Barq militant organization had been revealed by
Intelligence inputs received by the Battalion and by his interrogation on 2nd
February, 1998.
We now take up the arguments seriatim.
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 therein.
Section 6 to which special reference has been made by Mr. Ganesh, 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 explosive substance or any vehicle or vessel seized under
this Act, shall be made over to the 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".
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 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 vs. Union of India (1998) 2 SCC 109 to
contend that while upholding the vires of the Armed Forces (J&K) 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 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 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 compensation could be paid as a follow up
measure.
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 today giving
the general locations of Chandhara village, police station Pampore, Lethopora
Army Camp and the Wasturwan Heights where the Regoo had apparently met his end.
Concededly all four locations are very close the 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 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 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 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 should be frowned upon by the Court.
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 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.
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 accordingly been
at pains to emphasize that had the original file been produced 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 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.1 to Shri Atal Bihari Vajpayee, the then Prime Minister
of India, asking for relief from the Prime Minister's 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, 1988
pertaining to the incident examined along with the seizure 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 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, 1988.
We have also examined the various annexures constituting the shadow file
appended with the reply of respondent nos. 3 and 4. We put it 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.
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. Ganesh that he
had filed an affidavit denying he had made any such statement. 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 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.
We thus find no merit in the
petition. It is accordingly dismissed with no order as to costs.
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