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VALIDITY OF CBI INVESTIGATION ON THE DEATH OF A PERSON WHO WAS IN ARMY CUSTODY

Union of India and others v. Junu Gayary, CIVIL APPEAL NOS. 3669­3670/2015 – JULY 26, 2019.

The High Court of Gauhati has passed an order dated 9.6.2006 directing CBI investigation with respect to someswar Gayari alias Sombrom. Aggrieved by the above order the original respondents – Union of India and others have preferred this appeal, by way of special leave petition. The respondent herein, a young widow of the deceased Sombrom filed a writ petition, under Article 226 of the Constitution of India before the High Court, for investigating the murder mystery of her husband. The High Court directed the learned District & Sessions judge to submit a report after investigating the matter. From the enquiry and findings made by the District Judge, the High Court came to a conclusion that the deceased was taken into custody by the army and was killed while in custody. Also the HC directed the CBI to undertake the investigation to punish the real culprits and directed the original respondents to pay a compensation of 3 lakhs to the widow of Sombrom.

The question in the matter is Whether the CBI investigation, directed by the High Court of Gauhati, on the death of Sombrom valid?

Shri R. Balasubramanian learned senior advocate appeared on behalf of the appellants contended that service of notice was complete on the respondent but no one has appeared on their behalf. After hearing the contentions of the appellants the honorable Supreme Court has made the following observations.

The Supreme Court, after considering the impugned judgment and order passed by the High Court and hearing the learned Senior Advocate of the appellants, felt that there is no reason to interfere with the impugned judgment and order. The direction of the High Court to register a criminal case and to undertake a CBI investigation is absolutely right. The High Court came to such a conclusion after considering the report submitted by the learned District & Sessions Judge. The latter recorded that the deceased Sombrom was picked up by an army personnel and was in custody of the Indian Army till his dead body was handed over to the police station. Also from the report of the District Judge it is concluded that the death of the deceased was in hands of the army and an attempt was made by the army to show that the death of the deceased was in the course of encounter between the army and the deceased. The conclusions and findings of the learned District & Sessions Judge was made only after considering the material on record and after examining some witnesses and after giving an opportunity even to the appellants also. Thus the Supreme Court has no warrant to interfere with the conclusions of the High Court which directed to register a criminal case for the offence punishable under Section 302 of the IPC and directed the CBI to undertake the investigation of the case.

However the compensation granted by the High Court to the widow of Sombrom, is quiet low according to the Supreme Court. Both according to the findings of the learned District & Sessions Judge and the High Court, there is a clear violation of Article 21 of the Constitution of India. According to the Supreme Court, there should be an enhanced compensation of 5 lakhs should be granted to the family of the deceased. Thus the Supreme Court held that, “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 4 weeks from today, which shall be paid to the original writ petitioners on her being properly identified”

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 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.

Thus the Supreme Court from the above mentioned reasons concluded that the present appeals, challenging the impugned judgment and order passed by the High Court, deserve to be dismissed. Also the Supreme Court from this judgment directed the CBI to conclude the investigation at the earliest and punish the real culprits. Here it is also required  to mention another case named General Officer Commanding V. CBI and another, reported in (2012) 6 SCC 228.  In this case the question arose was whether the trail would be by a criminal court or a court marshal which should be decided by the competent authority in the army with in a period of 8 weeks and communicate the same to Chief Judicial Magistrate immediately.  In case, the opinion is made to try the case in the court marshal, the proceedings would commence immediately and would conclude according to law. In case, if the case is to be tried by the criminal court the CBI shall make an application to the central govt. for the grant of sanction within 4 weeks and the central govt. shall make its decision on the said application within 8 weeks.  If the sanction is granted, the criminal court shall proceed with the trial and conclude the same.

From all these above observations the Supreme Court held that the present appeal under this case shall stand dismissed.

Priyadharshini R

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